[Avodah] reasons for torah loopholes in dinei mamonos

[Chana Luntz]

RDR writes:

> 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?

What to my mind is intriguing about hezek she'eino nikar as it is brought in
the Codes and as the rabbis legislated for it, is that the decrease in
value, the difference between the main market and the shadow market, if that
is the way you want to express it, is solely due to Torah values.  If we did
not have commandments regarding tumah and tahara, or yayin nesech or even
shechita and nevilos, we would not have these two markets.  This is not true
in the fiddle versus firewood market - which would have existed pre matan
Torah.  ie all the cases of hezek she'eino nikar that seem to be discussed
were impossible to achieve prior to matan Torah.

Now thinking about this further, and going back to look at various of the
gemoros, I wonder if there is a case that disproves my thesis, that of a
thief who stole a coin, and in the meantime the government withdrew it from
acceptable tender, making its value worthless (because this has nothing to
do with Torah, and the same loss would apply to a non Jew as well as a Jew).
This case is followed by two cases that fit my thesis much better, the first
where the thief stole and then the produce he stole became tamei, and the
second where the thief stole chametz, and then pesach passed, making this
chametz, post pesach, worthless.  And in all three cases the thief can say
to the owner, here is your property, and he does not have to make any
further restitution.  And this Mishna is the one that is used to prove that
Chezkiya is wrong and hezek sheino nikar lo shmei hezek.  On the other hand,
this particular case (ie the one of the coin) seems a bit odd to be used to
disprove Chezkiya for a number of other reasons - because there is
absolutely nothing the thief could have done to prevent the coin becoming
worthless, it was done by fiat of government, and presumably suddenly (not
like pesach where people know it is coming and can sell or use up their
chametz) and not even like the case of fruit rotting, where it is in the
normal course to expect fruit to rot, so he might have known that when he
took it.  And the same thing would have happened under the owner, he would
not have had any other remedies (not even the - I could have taken my ox to
the swamp argument from Baba Kama is applicable here - before the government
withdrew the coin, he would not have had any reason to change it, and after
they did, he would have found nobody to sell it to).  So it is a bit hard to
understand any other position than that the thief can say, herey shelcha
lefanecha, give back the coin and the owner is left with a worthless coin
(or at least only the value of the metals to be found in the coin),
regardless of whether the damage could be considered nikar or not (I mean
even if the government was able by remote control to cause all these coins
to change colour and shape to make it clear they were worthless, ie it was
clearly a shinui and nikar, are we really going to make the thief liable for
the value of the coin at the date of theft without any act on his part or
even any negligence vis a vis guarding the coin?).  I know Tosphos grapples
with some of these issues on Gitten 53b, d"h "gozel" but I confess I am not
sure that what they say fully explains the matter to me.  I confess
therefore that I tend to think that the proof to Chezkiya is from the other
cases, but you could perhaps argue differently.

> 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.

Is that a fine?

 
> 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.

Based on a different principle I think, so I don't think it helps.  To fully
be analogous I think we need a case where there is a ma'ase b'yadaim - as
there is most clearly in the deliberate making of food tamei or making wine
nesach - the person does something that acts on the item and decreases its
value, just it is not visible.  
 
> David Riceman

Shabbat Shalom

Chana