Davar Ha-Gorem Le-Mammon (Part 1)

  • Rav Moshe Taragin
An item can sometimes provide monetary benefit for someone who does not legally own it. For example, an animal dedicated as a korban is legally owned by hekdesh, yet the person who dedicated the animal remains responsible to deliver the korban; failure to do so would incur additional replacement charges. This animal, although not under his legal ownership, does provide monetary benefit in that it exempts him from potentially purchasing a different replacement korban. R. Shimon adopted an interesting theory known as “kol ha-gorem le-mammon ke-mammon dami” – items that provide this benefit are considered equivalent to legally owned items. Consequently, if someone steals a korban, he is halakhically obligated to compensate the original owner who dedicated the korban. Even though the original owner is not in full legal possession, as the korban is legally owned by hekdesh, the original owner still receives compensation for this gorem le-mammon theft. This shiur will explore the nature of R. Shimon’s chiddush.
 
The question of how to understand R. Shimon emerges from the syntax of his principle. In asserting that a gorem le-mammon is “ke-mammon,” R. Shimon employs the letter kaf to create an analogy. The “kaf ha-dimayon” associates two items – a known template and a derivative. In this case, the known template is legally owned mammon, while the derivative is an item that provides monetary interest (gorem le-mammon). A strict reading of this association would assume absolute parity; the derivative is identical to the template. A looser reading would merely assume similarity of halakha, not absolute or inherent identity.
 
In this instance, a strict reading of R. Shimon’s association would assume that a gorem le-mammon, although not adhering to classic legal ownership, is still owned by the beneficiary. Halakha defines ownership not only based on purely legal factors, but also upon pragmatic issues. If a person derives potential monetary benefit from an item, he is considered a partial owner even though he doesn’t possess legal ownership.
 
A looser reading may yield a very different conclusion. The original owner does not enjoy ownership, but he receives monetary reparation as if he owned it. A gorem le-mammon item is not owned, but the damage to the financial interests does warrant compensation. The theft of a korban obligates the owner to purchase a replacement korban, and these costs must be reimbursed. Although he doesn’t own an item, he still enjoys certain compensatory payments.
 
To help determine whether gorem le-mammon is actually owned by the subject of the monetary interest, we must first study the breadth of this halakha. What halakhot apply to gorem le-mammon? The classic base example was stated earlier: The original owner receives payment from thieves. Other gemarot broaden gorem le-mammon consequences to additional monetary consequences. Thus, although the halakhot of overcharging (ona’ah) do not apply to hekdesh items, they do apply to korbanot designated to hekdesh that contain monetary interests for the original owner (Bava Metzia 56). A shomer who guards classic hekdesh items is not obligated to swear upon returning the item, but if he guards designated korbanot that are gorem le-mammon for the original owner, he must swear when returning the item (Shavuot 42b).
 
These applications may reflect either model of understanding the gorem le-mammon association. Even if the item isn’t owned by the subject, the financial interests are halakhically significant and must be protected through laws of ona’ah or laws of shomrim. Would gorem le-mammon items, however, be treated as possessions in the context of non-monetary applications?
 
One striking example is provided by the Yerushalmi (Pesachim perek 1), which appears to claim that a person is allowed to intentionally let blood from a korban for which he is still responsible and which is classified as gorem le-mammon, even though it is usually forbidden to cause a wound to a hekdesh animal. The ability to willfully cause a wound to this animal indicates that according to R. Shimon, the financial interest regarding the item has redefined the ownership; it is not fully owned by hekdesh, and the prohibition of causing a blemish therefore does not apply.
 
The question of whether gorem le-mammon impacts non-monetary conditions similarly emerges from a gemara in Pesachim (5b) debating the application of the bal yeira’eh prohibition to chametz that a Jew is guarding for a non-Jew. The Jew does not possess legal ownership over the chametz, but he does maintain an “interest” in it, as he would be required to purchase replacements if the chametz were to disappear. Would the Jew violate bal yeira’eh based on this item’s definition as gorem le-mammon? This is not a question of compensating for damages to gorem le-mammon items or protecting that interest. This question rests squarely upon the issue of whether the person of interest actually owns the gorem le-mammon item. If he owns the item, he would be prohibited from possession over Pesach; if he doesn’t own the item but merely receives financial compensation for it, he would not violate bal yeira’eh. The dispute in the gemara between two different opinions may reflect two fundamentally different ways of viewing gorem le-mammon according to R. Shimon.
 
This question also seems to arise in a different but parallel gemara discussing the laws of burning the property of an ir ha-nidachat (Sanhedrin 102). The gemara asserts the even korbanot that were designated by city residents are destroyed, even though these animals are legally owned by hekdesh.
 
The gemara offers two opinions as to whether this anomaly can be attributed to R. Shimon’s position about gorem le-mammon. According to Reish Lakish, the city resident who dedicated the animal still partially owns a gorem le-mammon and therefore imparts the status of “ir hanidachat animal.” Evidently, Reish Lakish maintained that gorem le-mammon creates an ownership profile upon the item. R. Yochanan disagreed and offered a different logic to justify the animal’s burning, implying that gorem le-mammom cannot establish an ownership profile and cannot mandate the burning of this animal. This well-known question is first addressed by the Ketzot Ha-Choshen (386:7).
 
An additional question relates to proactive rights and duties upon items of gorem le-mammon. The person of interest can receive compensation for gorem le-mammon because his interests were damaged by the theft, damage, or overcharging. But would this person be obligated to compensate if the hekdesh-designated animal damages other animals? The Tosefta (Bava Kama, perek 4) implies that he is obligated, indicating that the designator still retains partial ownership. In a related question; may the person of interest sell the animal or perform other owner-based halakhic activities (such as performing bittul chametz)? The Pnei Yehoshua (Bava Kama 66b, cited by the aforementioned Ketzot) allows the gorem le-mammon party to sell while the Sha’agat Aryeh (chapter 77) does not allow him to perform bittul. Presumably, they debate this very issue: whether a financial stake of gorem le-mammon yields para-ownership or merely compensatory rights.
 
Perhaps the most striking indicator that the gorem party enjoys partial ownership rights stems from a statement of the Ketzot (100:1). A collector whose debt cannot be paid may typically seize monetary items of the debtor. According to the Ketzot, he may also seize items that are not owned by the debtor but upon which he still maintains a financial stake. For example, if the debtor is guarding an item on behalf of another person, that item is defined as gorem le-mammon status (since its disappearance will require expenses in compensating the original true owner). As it is a gorem le-mammon for the watchman/debtor, it can be collected by his creditor. This very provocative position can only be explained by redefining the gorem le-mammon item as partially owned by the watchman.