[Avodah] Sovar VeKibbel

[Meir Rabi]

I was inclined to think that sovar vekibbel means that we have altered the
threshold that divides Shogeg from Oness. It means that the circumstances
that we usually utilise to determine Shogeg or Oness are not applied here.
The assumption is that these actions can not be construed by BD as they
would usually, because they agreed to enter an unusual arena.

But, if we should show that at the jousting tournament the intent was not to
knock his opponent but to kill him, there would be full compensation to pay.
We are not entertaining the prospect of boxing matches where the express
purpose is to injure the opponent. This is Assur beyond doubt. No amount of
agreement between the sparring partners can permit one to raise a hand in
order to injure another. But those who engage in wrestling matches where the
risks are greater but the intent is not to injure, sovar vekibbel would
raise the bar of Oness.

Now, if this is true, then determining shogeg or mezid which is the question
of Sanhedrin 77b, should also be altered. The burden of proof to prove
intent should be much greater.

 

 

Savar vekibbel is a legitimate consideration in dinei mamonot, where the
plaintiff is seeking financial compensation for his injury; if he willingly
accepted the risk, then he consented to the injury and is not entitled to be
paid for it.  The same would presumably apply if he was killed and his
estate sued for financial compensation for his death.  But in the second
case we are not dealing with dinei mamonot; nobody is asking for financial
compensation.  Instead we're dealing with the crime of manslaughter, and for
that purpose the victim's assumption of risk is irrelevant: even if a person
explicitly consents to be killed, that does not excuse the killer from
criminal culpability.

 

 

> I believe Rabbenu Tam suggests that those chaps who engage in jousting 

> matches as a form of entertaining the groom and bride, are not able to 

> claim financial compensation for damages suffered in those duels, 

> since they have understood the dangers and agreed to them. SoVar VeKibbel.

> 

> Is this not an argument that should equally apply to the game of 

> throwing a stone against a wall where the players try to catch and 

> throw the stone back or something like that? See Rashi Sanhedrin 77b. 

> However in this case, if someone gets killed, there may be a Golus 

> sentence imposed or possibly it may be more than a Shogeg in which 

> case Golus will not grant immunity and he must employ his own protection.

 

 

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