[Avodah] reasons for torah loopholes in dinei mamonos

[Chana Luntz]

RDR writes:
> You are eliding a fundamental distinction in halacha which may not
> translate well to common law.  That is the distinction between mamon and
> knas.

Actually it translates very easily into common law - because damages goes to
the individual damaged, and knas goes to the court/government.  There is a
concept of punitive or augmented damages, which is arguably a form of fine
which does indeed go to the individual, but is fundamentally based on the
damage received.

The halacha in fact is the one that elides the distinction - because it has
both fines and damages going to the individual damaged - and where it cannot
find a person who has been damaged, or does not regard money as suitable
remedy, it does not use monetary penalty but other penalties.

  We have a general rule "ein govin knas b'bavel", and, indeed,
> that principle applies as well to some unusual sorts of mamon.  It's
> true that the gemara views boshes as unusual in this regard, but it's
> equally true that boshes doesn't fit well into the category of "mamon"
> since the fine is not evaluated based on quantity of damage, but on
> other considerations (like intent). 


The rule is that a tam ox that gores pays chetzi nezek, which is regarded as
a fine (and as you say not is not judged in bavel) whereas the same ox, if
it then gores three times, pays nezek shalem, which is regarded as monetary.
That means of course that in fact even your classic, basic form of damage  -
that of a muad ox, is not purely evaluated on quantity of damage, but on
other considerations (such as the nature of the ox doing the goring and
whether its owner had previously been warned).  And yet if the aforesaid ox
gored my ox first, and your ox third, I am significantly out of pocket
compared to you.  And there are loads of other cases where the evaluation is
not purely based on quantity of damage - the example of objects that
happened to be hidden in a haystack is yet another - and the list goes on
and on - there is always a balance drawn between what the damager might be
expecting to happen (no goring by a tam ox, no items in haystacks, no
embarrassment without intent), and what actually happened. It is part of the
same continuum.

 Several of the cases you cited
> don't fit the category of "mamon" well because they are fines, and,
> since we don't assess fines, the court is acting in some capacity other
> than evaluating damage.
> 

Well you do sometimes assess fines in halacha (well not in bavel, but in
theory).  Everybody agrees that chetzi nezek for a tam ox is a fine, and
yet, you can't work out what "chetzi" is if you don't work out what the
nezek is, and for that you need assessment.

On the other hand, some things that are clearly defined as fines in halacha
appear, contrary to the way we would generally understand fines, ie purely
as penalties to deter the offender, to also be rough and ready assessments
for damage, to avoid the need for an assessment.  The payment for violation
of a woman raped or seduced, for example, is of course a fine, but also
allows for payment to the father for the stain on the family name, which
could be greater or less great.  In the common law, fines are paid into
court, and victims then in theory have access to a fund set up for them to
compensate them, which is independent of any actual payment by the damager,
but this is not the case in halacha.

> The original poster, AIUI, was asking specifically about mamon rather
> than knas.  This is intuitively appealing, since we might not expect
> fines to follow logical rules; they might very well depend on transient
> social norms.

Well if you are talking about the torah, it is much more difficult to say
that it is talking about "transient" social norms.  Part of the point I was
making was that damages, even when phrased as compensatory, are also or at
root function in the form of knas.  And when they found themselves in bavel
without the power to inflict knas, they found the level of damages they were
then able to award to be severely restricted - eg they can't ever provide
compensatory damages for the goring of an ox, even a muad ox, because to
become a muad ox one has to go through the procedure for a tam, and since
they could not do that, even that form of compensatory damages was blocked.
In my view part of the whole point of that gemora discussion is to show
exactly how intertwined mammon and knas are in the case of damages within
halacha, in distinction to systems like the common law, where there is a
much greater attempt to separate.

The theory behind separation a la the common law, is that why should the
victim specifically profit because of the wrongdoing of the damager, rather
than general society.  This does not appear to be a similar concern of the
halacha.

So part of the other point I was making in my original post, is that mammon
and knas are by their nature intertwined.  Accidents happen all the time,
that cannot be attributed to others.  Or even where they can be attributed
to others, the perpetrator is not always able to be caught and if caught,
can often not be made to pay.  A victim is thus arguably in a lucky position
if a person who can be held liable exists, can be brought before the justice
system, and money can be extracted from him.   The reality of any court
system is thus that for every victim who obtains recompense, there are many
many others who do not because of inability to find, judge or extract money
from the damager.  All damages thus really works hand in hand with knas,
with assessment giving the added benefit that the damager is faced with the
real consequence of their damage.

> There's a difference between recompensing the damaged party and
> discouraging the offender from repeating his offence.  Corporal
> punishment accomplishes the latter but not the former.  

Less so in the case of slander.  In the case of slander, what the person in
question really needs is for it to be made clear to everybody who has heard
the slander that it is not true.  That is the only way to put the victim
back in the position that he was in before.  Hence money is a relatively
poor way of recompensing a person for slander.  In a relatively small closed
society, a public flogging is likely to be a far better method of spreading
the word than a monetary payment.  Monetary payment in our society, somewhat
bizarrely, is in many ways an attempt to do the same - absent the ability to
spread the word in other ways.  Were it not for this need to "get the word
out" then it would seem that the common law system would likely not have
allowed for monetary recompense in the case of slander either, as it has
traditionally not allowed for damages for any other form of "mental
distress" absent any physical damage as well - despite the recognition that
mental distress can easily be caused by a damager.  Where however there is
physical damage, there has been recognition of mental distress (eg the
mental distress and nightmares that go along with being hit by a car has
traditionally been actionable, including but not limited to psychiatrists
bills, the mental distress of nearly being hit by a car has not - despite
the fact that the levels of mental distress can be such that a person then
becomes incapable of work).


This, I think,
> reinforces my point that your case is not a case of being recompensed
> for monetary damages caused by slander.



 
> No.  If you told them "this is a kosher chicken and you could sell it
> for more if you labelled is as such", you could get more for it.

No they wouldn't because they need nemanus, and they don't have it, but
nemanus is a characteristic of the person selling, not the chicken.  The
nemanus can be maintained by a person having it transferring it to bits of
plastic wrapper and metal attached to wings and things, but without that the
chicken will get no further if sold in the non Jewish market.

>My own grocery store sells both kosher and non-kosher
> poultry; if you like I'll check the price difference, but I imagine it's
> at least equally large as the difference you see.

Agreed, and the one lot sell to Jews and the other to non Jews.  And if the
grocery store (I assume it is a non Jewish grocer store) gets overstocked in
kosher chickens (eg erev yom tov), they probably discount the kosher
chickens (after all the Jews have gone off to shul I imagine) to the same
price as the non kosher chickens and the non Jewish consumers pick them up
(they may or may not take off the kosher packaging, but I don't think
anybody would fault them if they did).  

> But you've forgotten the initial question.  It was why should "hezek
> she'eino nikar" be patur min haTorah.  The Rambam says that it's because
> no damage occurred.  You argued, IIRC, that it's because damage occurred
> in one market but not in another.  The Rambam is very clear that it's
> because no physical damage occurred.  The value of a thing is not the
> thing itself.

I don't think this is so clear at all.  As I said, it is quite possible to
read the Rambam as just setting the scene.

OK, lets find a nafka mina.  The cases of hezek sheino nikar as given in the
gemora and as listed in the codifiers are all cases where the problem with
the item is that it has become much less fit for Jews, but the value does
not change for non Jews. This to me is significant.  For you it is not
significant.  So what is the case where in fact the item is not damaged, but
the value would change both in the market of the Jews and non Jews. I have
struggled to think of a case, but the best I can come up with is the
distinction between "new" and "used".  People (both Jewish and non Jewish)
will pay a fair bit more for something labelled "new" than something
labelled "used", even if the use in fact did absolutely no damage to the
item - in the words of the Rambam, the form did not change - and nobody who
did not know could tell the difference.  Do you then hold that if I were to
use your item, so that you then could not, without lying, label it as new, I
would be patur from paying any damages based on the hezek sheino nikar
principle?  Or in fact would you say that either a) I need to pay damages,
but perhaps since the damages for depreciation are less than a shava pruta I
am exempt,  - ie you might still ultimately not have to pay, but this is not
based on the hezek sheino nikar principle - which deems it automatically
patur from the Torah, or b) I need to pay damages based on the difference
between the new and second hand but in perfect condition market?  What if I
saw a lovely piece of new clothing at my friend's which she had decided to
return to the shop as it did not fit her, - I took it, wore it for a
wedding, and brought it back.  Exempt from damages as the damage is ano
nikar - even though her contract with the shop was that she could only take
it back if it was not worn (although she could clearly take it back if she
was prepared to lie) or not exempt?

Can you think of any other cases where the value would drop across the board
but the form would not change to fit in with the formulation of the Rambam?
How would you hold?

Shabbat Shalom

Chana