SALT - Wednesday, 24 Shevat 5776 - February 3, 2016

  • Rav David Silverberg

            Yesterday, we noted the rule inferred by the Mekhilta in Parashat Mishpatim that “ein oneshim mamon min ha-din” – Halakha cannot impose a payment requirement upon a litigant based on an argument of logical deduction.  The Mekhilta arrives at this conclusion from the fact that the Torah had to specify two cases in which one who creates a hazard in a public area is liable for damages it causes – one who digs a ditch, and one who uncovers a preexisting ditch that had been covered (21:33).  Although these two cases are very similar, nevertheless, the Torah had to specify both cases because we cannot, based on our own logic, extend the Torah’s liabilities beyond the specific context in which they were stated.  As we saw, Tosefot in Bava Kama (2a) noted that the first Mishna in the masekhet (as well as the Gemara, 5b) disagreed, and maintained that the oral halakhic tradition can, in fact, extend liabilities through logical deduction.  Indeed, the situations of nezikin (damages) discussed by the Torah in Parashat Mishpatim are viewed as paradigms of damage liability that apply in all similar situations.

            As we saw, financial liability differs this in respect from malkot (whipping) and execution.  When it comes to physical punishment, Halakha does not authorize Beit Din to punish sinners for transgressing prohibitions established through logical deduction.  The question then arises as to the reason underlying this distinction.  Why can financial liability be established based on logical deduction, but not court-administered punishment?

            Rav Yehuda Leib Ginsburg, in his Musar Ha-mishna (Bava Kama 1:1), explains that when it comes to malkot and execution, we cannot determine based on logical deduction for which violations God required punishments.  In His infinite wisdom, He stipulated in the Torah certain punishments to atone for very specific sins, for reasons we can only speculate, and we are not authorized to apply them beyond these contexts.  When it comes to financial liability, however, once the Sages determined, based on the logical tools at their disposal, that liability stated in one case applies in another, there is no reason to deprive the plaintiff of the money owed to him.  If the Torah explicitly imposes liability in one case, then the Sages are authorized to apply it in a similar case – as long as there is no compelling difference between the two – because we can assume that the victim in the second case is no less entitled to compensation than the victim in the first case.  As opposed to malkot and execution, which relate to God’s “personal” retribution against a sinner, financial liability is necessary to compensate people who have incurred a loss or stand to incur a loss.  Halakha cannot discriminate between one victim and another; if the Torah awards compensation to a litigant in one case, and Halakha can establish that the rationale applies in a similar case, then the litigant in that similar case deserves compensation.  As such, according to the accepted position, liability can be extended based on logical deduction.