[Avodah] reasons for torah loopholes in dinei mamonos

[David Riceman]

I'm trying to crystallize what we're arguing about, before going into 
the details:

The original question was how to justify the Torah's ptur for hezek 
she'eino nikar.  You postulate two markets (which I would rather call a 
"shadow market" since I think you're misusing terminology from 
economics).  I postulate that it's not really damage at all.

We then moved to an argument about whether payment for damage has the 
primary goal of compensating the injured party or of restraining 
behavior which may lead to damage.  Some of the cases clearly belong in 
one or the other camp, but many are ambiguous.

If I may be permitted an extravagant generalization I'd say that the 
goal is compensation if we wish to encourage risky behavior (taking your 
placid ox from place to place), and the goal is restraint if we wish to 
discourage risky behavior (taking your moody ox from place to place).

Now it's clear that the Rabbis motive was restraint when they imposed a 
fine on hezek she'eino nikar - "kdei shelo yelech kol ehad v'ehad 
v'ytamei tohorosav shel haveiro".  But why didn't God impose a penalty? 
My answer is that since the good has not been damaged there can't be a 
penalty.  You're answer is that since the good can be classified as a 
commodity in a few ways, and in one of those ways the price hasn't 
changed, there hasn't been <I don't know how to finish this sentence -- 
picture your noun here>.  I objected to this idea of using a shadow 
market, but now that I've expressed it this way I don't understand why 
it's not more widely applicable.  Even if I break your baseball bat or 
your fiddle, it's price in the firewood market hasn't changed.  What's 
special about hezek she'eino nikar?

I'll try to compress the details:
> Me
>   
>> You are eliding a fundamental distinction in halacha which may not
>> translate well to common law.  That is the distinction between mamon and
>> knas.
>>     
> RCL:
> Actually it translates very easily into common law - because damages goes to
> the individual damaged, and knas goes to the court/government.
Is that true in the US also? All the cases I we've been discussing, as 
far as I know (and I'd be happy if someone who actually knows something 
piped in here) the fine would go to the damaged party.
> RCL:
> Well if you are talking about the torah, it is much more difficult to say
> that it is talking about "transient" social norms.
That's another possible digression, but I can think of plenty of 
examples.  One calendrically appropriate one is the Rabbis raising the 
value of machatzis hashekel.

RCL:
> 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, <snip>
>
> 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?
>   
Suppose I fail to mow my lawn, board up a few of my windows, and make my 
house look abandoned.  That would cause the value of my neighbors' 
houses to drop, without physically damaging them.  My impression (I can 
try to find sources -- there are analogies in agricultural cases) is 
that al pi din my neighbors can hire someone to mow my lawn and repair 
my windows and then sue me in Beis Din for the cost of the repairs.  But 
I have no idea if this is Biblical or Rabbinic.

IIUC in New Jersey my neighbors can go to court to force me to do the 
work, but I don't know what mechanism the court would use to enforce the 
judgment.

Has that case provided any help? I can't see how.

David Riceman