An Offender who is Exempt at Law but Liable Before Heaven (Bava Kama 55b-56a) - part 1

 

It was taught: Rabbi Yehoshua said: There are four acts for which the offender is exempt according to dinei adam (the laws of man) but liable according to dinei shamayim (the laws of heaven). They are: Breaching a fence in front of a neighbor's animal; bending over a neighbor's standing corn in front of a fire; hiring false witnesses to testify; and knowing testimony in favor of another person and not testifying on his behalf.

I. What is liability according to dinei shamayim?

            What is the meaning of the expression "liability according to dinei shamayim?" First, we must clarify the simple factual meaning of the expression. One of the cases listed in our passage as an example of such liability is: "One who performs work with mei chatat (water of purification) or with parat chatat (the heifer of purification) is exempt according to dinei adam but liable according to dinei shamayim." This case is also cited in Gittin 53a, and there Rashi comments: "Exempt according to dinei adam – from paying; and liable according to dinei shamayim – retribution dispensed to the wicked who intended to cause damage to a Jew." According to Rashi, liability according to dinei shamayim does not involve any liability to make compensation to the injured party. We are dealing here with punishment that the person who caused the damage should expect to receive from heaven at some point, and not with any practical obligation.

            The common understanding, however, is that we are dealing here not with a punishment, but with liability to pay[1] - liability according to dinei shamayim, rather than according to dinei adam. Of course, the nature of this odd "creature" requires clarification – are we dealing here with a legal obligation that for one reason or another is not enforced by the court, or perhaps with an obligation that does not belong to the world of Choshen Mishpat, but to a system of good traits and behaviors to which the Torah expects man to adhere?

            Rabbi Yehoshua's ruling is also quoted in the Tosefta, Shavu'ot, chap. 3, but there the formulation is slightly different: "There are four who are not liable to pay according to the law, but they are not pardoned by heaven until they do pay." This formulation implies that by strict law there is no obligation to pay, but there is anger in heaven that is liable to lead to punishment, similar to what Rashi suggested. The way to cancel that anger and achieve pardon from heaven involves maximum repair of the damage that was caused, and this may be done through monetary compensation to the injured party. According to this, we are not dealing with an obligation to pay, but with the benefit that the person who caused the damage has in paying so as to spare himself punishment at the hand of God.

            In contrast, the Meiri offers a novel understanding of our passage:

Whatever we have written about here regarding liability according to dinei shamayim, this means that he is liable to make restitution… From here the great authorities of the generations have written that one who is liable according to dinei shamayim is disqualified from offering testimony until he makes restitution. This seems to be correct, for since he is liable to make restitution, the status of being a robber applies to him until payment is made.

            The Meiri certainly does not accept the formulation of the aforementioned Tosefta, for according to him we are dealing with an obligation falling upon the person who caused the damage, and not merely with any preference he may have in paying. But the novelty in his words is more far-reaching, namely, that we are dealing here not with a moral obligation, but with a halakhic one. When, for example, Reuven takes an oath that he will pay Shimon a certain amount of money on a particular day, he has a clear and well-defined halakhic obligation to do so. And if he fails to do so, he violates a Torah prohibition. It is clear, however, that the status of being a robber does not apply to him if he does not fulfill his oath. The Meiri maintains that the liability according to dinei shamayim in our passage is not merely an obligation falling upon the person who caused the damage to make payment. But a monetary claim that the person who suffered damage has against the person who caused that damage. He cannot enforce this claim in court. But as long as the person who caused the damage does not actualize the injured party's claim, he is holding money in his hand that by Torah law belongs to the other person. Accordingly "the law of robbery" applies to him.

            It should be noted that the Maharshal on our passage (Yam shel Shelomo 6, 6) cites an opinion among the posekim that even though the court cannot coerce the mazik to pay, nevertheless "he may be pressured in a non-coercive manner." The Maharshal himself rejects this view, arguing that there is no judicial enforcement whatsoever of this obligation. And the Meiri might very well not accept the opinion cited by the Maharshal – even if we are dealing with a monetary claim, the bottom line is that in such a situation the court does not compel payment, and as such there is no room to apply any pressure in that direction. Disqualification from giving testimony is not regarded as the application of pressure, but rather a consequence of the fact that we are dealing with money in Reuven's hand that according to the Torah should be handed over to Shimon.

            Another ruling discussed in the aforementioned passage in the Maharshal demands more complex consideration. The Maharshal relates to the well-known novel position of Rashi in Bava Metzia 91a, s.v. Rava. Rashi there deals with the law of kim lei bederaba minei, according to which a person who commits an act simultaneously incurring the death penalty and the payment of monetary compensation, e.g., where he burned another person's wheat on Shabbat, only the more severe penalty (death) is imposed on him, and he is exempt from the monetary payment. Rashi maintains that this law does not mean that the monetary obligation is not created, but only that the court is not authorized to enforce it. This, argues Rashi, leads to two important halakhic conclusions. First, we see that the offender is obligated to pay according to dinei shamayim. And second, we can infer that if the plaintiff seized the amount owed to him, the court does not compel him to return it to the defendant. This is because he seized money to which he is entitled according to the law. While it is true that the court cannot force payment, the plaintiff's seizure of the money is not an illegitimate act of aggression, but rather the actualization of true entitlement. This is Rashi's position in Bava Metzia regarding liability according to dinei shamayim in a case where the defendant enjoys the exemption of kim lei bederaba minei.

            Can Rashi's novel position be applied also to Rabbi Yehoshua's ruling in our passage? That is to say, in the cases of indirect damage (gerama) discussed in our passage, which are subject to liability according to dinei shamayim, can the injured party forcibly seize the amount of the damage and, despite the injured party being the one to enforce this law (and not the court), the court will not be able to remove the money from his possession? The Maharshal answers in the negative, explaining his position as follows:

In such a case all agree that the money is removed from him. Granted in a case of kim lei bederaba minei, he is indeed liable, only that we do not impose two punishments… But in a case of gerama damages, where there is no liability by law but only to satisfy heaven, it is obvious that if [the injured party] seized payment, it is removed from him.

            The Maharshal argues that even Rashi would agree that his novel idea does not apply in the case of gerama, for there is a significant difference between the cases. As stated above, in the case of kim lei bederaba minei, according to Rashi, there is monetary liability, only that the Torah does not allow the court to enforce it. In such a case the obligation according to dinei shamayim is an expression of the existing legal obligation, and therefore the person who is entitled to compensation can actualize the payment on his own. In the case of gerama, on the other hand, there is no foundation for obligation according to human laws, for the damage inflicted is too indirect. This is not a situation in which there is some cause of liability, and alongside it some reason for exemption, but rather a situation in which the cause of liability itself is flawed. The novelty in liability according to dinei shamayim here, according to the Maharshal, is not that there is no liability according to dinei adam (as in the case of kim lei bederaba minei), but rather that there is no absolute exemption.

            Must the Meiri disagree with the Maharshal's argument? In my opinion, this is not necessary. The Meiri can agree that unlike a situation of kim lei bederaba minei, in a case of gerama there is no foundation for full monetary liability, and therefore seizing the money on one’s own does not help. Nevertheless, when the Torah or Chazal introduced the idea that there is liability according to dinei shamayim, they assigned a certain right to the injured party, not a right that can be actualized in a court, but a right on the level of the moral obligations between man and his fellow. This right does not validate seizure, but it suffices to define the mazik as one who is in possession of money that according to the Torah belongs to another person. Accordingly, "the status of being a robber applies to him until payment is made," and he is disqualified from offering testimony based on the law of a robber until he fulfills his obligation and makes compensation.

A Topical comment

            I wish to conclude this section with a short topical comment. The exemption from liability in a case of gerama is one of the major difficulties in applying the Torah's laws governing damages in our modern world, as it is sometimes necessary to impose much broader responsibility than can be imposed based on the direct damage that was caused. The law of garmi offers only a partial solution to this difficulty. Therefore, contemporary batei din (Rabbinic courts) search for ways to overcome this difficulty and impose liability even in cases defined as gerama (sometimes in situations where there was intent to cause damage, and sometimes even in situations where such intent was missing). See for example what Rav Yoel Sternberg writes in Halakha Pesuka, 50, a journal that reports about the activities of contemporary Rabbinic courts dealing with monetary cases:

The position of batei din regarding liability for damages defined as gerama or for emotional suffering has changed in recent years. In the arbitration contracts that are in common usage today, the courts retain for themselves the right to impose liability for damages defined as gerama, for court expenses, and the like. The changes that the courts create through the inclusion of clauses in the arbitration contracts that grant the courts powers that do not exist in the framework of Halakha raise the question: Don’t these changes empty the notion of din Torah ("judgment according to the Torah") of its meaning?

            When the courts introduce into arbitration contracts the parties' agreement that the court may impose liability for damages defined as gerama, formally it may be argued that we are not dealing with liability for damages, but rather liability stemming from the agreement – the parties agreed that the court may impose monetary liability in certain circumstances, and confirmed the agreement with a kinyan. Rav Sternberg, however, in the aforementioned passage, raises the question whether justice carried out in this manner still qualifies as din Torah. This is a serious question, and a much broader issue than the ones with which we are dealing. However, the topic currently under discussion provides a certain answer in the local context – if according to Halakha there are cases where there is liability according to dinei shamayim, and if this liability bestows upon the injured part an unenforceable monetary right – when the courts come up with strategies to enforce this obligation, they are not enforcing an obligation that is alien to the spirit of Torah law. The problem from the outset is exclusively on the level of enforcement, and the courts find reasonable solutions to this problem.

            It may also be argued that the interplay between the laws of gerama, the law of garmi – especially according to its more flexible understandings – and liability according to dinei shamayim with all of its various consequences, teaches us that the Torah never intended to limit liability for damages to a narrow and restricted field. Rather it wanted that the broad expanse between direct acts of damage, on the one hand, and acts of exceedingly indirect damage, for which there is certainly no room to impose liability, on the other, should be governed by flexible tools, which the halakhic authorities of each generation can apply in an intelligent manner to changing circumstances. Needless to say, these are mere musings, and this is not the place to draw conclusions about this weighty matter.

 

Sources for the next shiur

            In the next shiur we shall examine two of the cases about which Rabbi Yehoshua said that the offender is exempt according to dinei adam, but liable according to dinei shamayim:

One who breaks down a fence in front of a neighbor's animal – Rashi, s.v. iy be-kotel; Hagahot ha-Gra; [Tosafot, s.v. ileima]; Rambam and Ra'avad, Hilkhot Nizkei Mamon 4:2, and Migdal Oz, ad loc. in the name of Responsa Ha-Rambam. Try to explain the various positions.

One who knows testimony favorable to another person, but does not testify on his behalf – Ramban, Kuntrus Dina de-Garmi: "For he too is only obligated to testify on his behalf based on the law of practicing kindness (chesed), which obligates him to testify, but if he did not wish to fulfill this mitzva, by strict law there should be no monetary liability… To what may this be likened? To one who sees his fellow's wallet about to be lost, and does nothing to save it, or to one who does not want to give any of his money to a poor man, for which a court does not impose liability. Here too the court does not obligate him to pay from his pocket, for the Torah did not impose liability. Rather it is like other mitzvot, and not a monetary obligation."

Rabbeinu Yerucham, Meisharim, Netiv 2, part 7: "One who knows testimony in favor of another person but does not testify on his behalf: if there are two witnesses, he is liable by Torah law; if there is one witness, he is exempt according to dinei adam but liable according to dinei shamayim."

Also complete on your own the study of the Gemara until the end of p. 56a.

 

(Translated by David Strauss)

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