Can a Kal ve-Chomer be Employed to Administer Monetary Compensation
TALMUDIC METHODOLOGY
By Rav Moshe Taragin
Shiur #03:
Can a kal ve-chomer be employed to administer monetary compensation
One of the 13 exegetical
methods by which the Torah is decoded is kal ve-chomer. Two halakhot
often exhibit basic similarity, with slight differences in severity. If those
differences are significant enough, we can label one scenario kal (less
severe), while the other halakha is designated as chomer (more
severe). Logic dictates that laws which apply to the kal halakha
should certainly apply to the chomer one even if the Torah did not
specifically assert those halakhot for the chomer. This tool is so
basic that it opens R. Yishmaels list of 13 exegetical tools.
The gemara in Makkot
(10a) derives a well-known principle that limits the application of a kal
ve-chomer: ein onshin min ha-din. Although kal ve-chomer
may be used to determine halakhot, it ca not be employed to derive a
PUNISHMENT. The gemara reaches this conclusion based on the fact that the
Torah lists a full sister as an erva; after all, if a
half-sister is an erva, certainly a sister from both parents should be
considered one! The gemara concludes that ein onshin min ha-din
we cannot infer a punishment through the tool of kal ve-chomer, and
therefore the Torah was compelled to iterate each and every type of erva.
Although this concept holds
fast in general areas, there seems to be an exception. In the beginning of
Bava Kama, Chazal question the need to delineate 4 different types of
avot nezikin. Why didnt the Torah merely describe one form of
mazik, and we would infer the others through kal ve-chomer? The
gemara ultimately claims that the tool, although operative, would fail in
this case, as we can isolate particular reasons not to learn one form of
mazik from another. It does seem, however, that the gemara was
prepared IN THEORY to derive one type of nezek from another, which would
seem to reject the principle of ein onshin min ha-din. Similarly
the gemara confidently derives toladot - types of damages that are
similar but not identical to the Torahs description. In these cases, like the
original Biblical templates, the mazik is chayav to pay. Once
again, this seems to flout the principle of ein onshin min ha-din.
Yet a third gemara in
Bava Kama (49b) questions why the Torah describes two separate cases
involving a pit - a pit that was dug and a pit that was uncovered. If uncovering
a dangerous pit makes a person liable for damages, certainly digging a new one
should make him chayav! The gemara therefore derives a different
halakha from this repetition. Once again, if the laws of ein onshin
prevent derivations of punishments, the repetition of digging and uncovering is
absolutely NECESSARY and should not enable a different halakha
derivation.
Interestingly, the Mekhilta of
R. Yishmael does impose the concept of ein onshin min ha-din. Commenting
on the repetition of the halakhot regarding digging and uncovering pits,
the Mekhilta resolves the problem - as we expected the gemara to by
claiming ein onshin min ha-din. Similarly, when attempting to
derive the toladot of one of the avot-nezikin-keren, the
Mekhilta is compelled to cite a pasuk. This approach is consistent with
the overall theme of ein onshin and accentuates our question why didnt
the Bavli follow this logic?
Perhaps the question revolves
around the issue of how to understand compensation for damaging other peoples
possessions (nizkei mammono). We have been assuming that this
compensation is a penalty or punishment, but perhaps it is, in fact, a very
rational reimbursement. If so, we may argue that while PENALTIES or PUNISHMENTS
can not be derived through kal ve-chomer, monetary reimbursement can be.
Perhaps the Bavli viewed nizkei mammon in this fashion and therefore felt
comfortable inferring one track of REIMBURSEMENT from the others.
An interesting Tosafot in
Kiddushin (13b) may contribute to a better understanding of this question.
Tosafot describes two different types of monetary obligations: those which are
self-evident and dont need a pasuk to install them and those that are
not obvious and would not be obligatory unless the Torah mentioned them. The
gemara refers to the first type as
milve she-einah ketuva ba-Torah, and it includes loans and
contractual payments, while the latter is referred to as milveh ha-ketuva
ba-Torah, such as the monies used for pidyon ha-ben and erakhin
(dedications to hekdesh). These categories and the applicable scenarios
are not novel. What is NOVEL is Tosafots inclusion of nizkei mammon as a
milveh ha-ketuva batorah, implying that such compensation is not
self-evident but obligatory ONLY because the Torah requires it. This would
suggest that the payment is more penal; if it were compensatory, it should be a
more self-evident payment and obligatory even if the Torah had not written it.
Perhaps this penal view of nezikin payments is what informed the
Mekhiltas view that ein onshin [nizkei mammon] min
ha-din. The Bavli, on the other hand, may have viewed nizkei mammon
as more compensatory, and therefore inferable through kal ve-chomer.
Of course, Tosafot may not
have been able to explain the Bavli in this fashion. Asserting that nizkei
mammon is a milve ha-ketuva ba-Torah would cast these payments as
penal and the principle of ein onshin min ha-din should obtain.
Evidently, there must be a different logic allowing the Bavli to freely derive
one form of nezek from another according to Tosfot. Investigating the
logical basis of the principle of ein onshin may help explain why it
should not apply to the cases in Bava Kama.
Rashi in Sanhedrin
(73a) differentiates between a kal ve-chomer and a hekesh
(textual juxtaposition). Why can penalties be derived from the latter but not
from the former? Rashi claims that a hekesh (and a comparable situation
of ma matzinu) are truths that are textually latent; a kal ve-chomer
is based on personal logic WHICH WAS NOT DELIVERED THROUGH THE MESORAH,
and is therefore not authoritative enough to warrant derivation. Seemingly, the
ein onshin min ha-din limitation upon kal ve-chomer is based on
lack of AUTHORITY. If this is true, it would indeed be difficult to distinguish
between general penal derivation and monetary issues in the application of the
principle of ein onshin min ha-din.
In contrast, ein onshin min
ha-din may be based on the fear of error. How can we independently derive an
onesh that may mistakenly require a particular punishment? If this is the
basis of the principle, we may distinguish between corporal punishments, which
are irreversible, and monetary ones, which can be repaired. Perhaps the Bavli is
operating under the notion that the general aversion to onshin min ha-din
is based upon the fear of error and would not apply in any situation of
mammon regardless of the nature of the payment.
Even if the payments for damages are penal since they are ultimately monetary
payments and not corporal punishments, the concern for error is mitigated and a
kal
ve-chomer can be employed to extend payments to non-stated
situations.
To summarize, there are two approaches toward solving the Bavlis readiness to
employ kal
ve-chomer to extrapolate payments for damages. Either the Bavli
understood these payments to be compensatory and not penal. The limitation upon
kal
ve-chomer employment may be in penal cases, not reimbursements.
Alternatively, the Bavli may have viewed damage payments as penal but
nevertheless, any monetary payments can be logically extrapolated because we
arent hamstrung by the fear of error. This assumes that the principle of ein
onshin min ha-din is based upon the fear of error and not the formal lack of
authority to independently administer penalties.