[Avodah] gzalas akum

[Zev Sero]

M Cohen wrote:
> RSZ writes ...this explains nearly all the differences in halacha between us
> and them.
> We owe them only the basic duty that every person owes every other:
> not to harm them, not to steal from them, not to defraud them.  But we have
> no positive obligation to help them in any way; we do have such a duty to
> our brothers, precisely because they are our brothers.
> 
> This is true. 
> 
> however, given the above I have never understood hashkofically the rishonim
> (& din) that gzalas akum is only asur m'drabbon.

It's not at all clear that this is the din.  The Rambam and Smag and
SA all seem to hold that it's d'oraita.  The Kesef Mishna is medayek
from the Rambam otherwise, but almost everyone else doesn't see it.

The shita that it's only midrabanan (if that) is based on a Rashi in
Sanhedrin 57a (dh Yisrael Bekuti Mutar) and Sukkah 30a (dh Mai Ta'ama).
Rashi learns this from the pasuk "lo ta`ashok et re`acha velo tigzol";
apparently he applies the "et re`acha" to both oshek and gezela.  Li
hakatan it seems that on the contrary, if this were so the pasuk should
have said "lo ta`ashok velo tigzol et re`acha", or "lo ta`ashok et
re`acha velo tigzelenu"; since the pasuk puts "et re`acha" between the
two it seems to me that it's explicitly saying that oshek hagoi is
mutar but gezel is assur.  (Refraining from oshek can really be seen
as a kind of hashavat aveida, particularly the kind of passive oshek
that remains mutar even d'rabanan.  If someone makes a mistake in my
favour, why should it be my duty to correct him, unless I love him?)

At any rate, the GRA points out both in Sanhedrin and in CM 348:8 this
Rashi is very strange and contradicts almost every other source we can
find.  The Shach CM 359:2 is also puzzled by this, and says the Rambam
and the Smag both seem to pasken that it's d'oraita, but says that
ledina the Maharshal paskened like Rashi.  Also see Shach 348:2.

Another place all this is discussed is Ramo EH 28:1, and the nos'ei
kelim there.  But it's not clear there that the Ramo holds it's
mutar mid'oraita; maybe he only holds that mid'oraita once the avera's
been done one doesn't have to return it.

-- 
Zev Sero               Something has gone seriously awry with this Court's
zev at sero.name          interpretation of the Constitution.
                      	                          - Clarence Thomas