[Avodah] lifnei iver/kanaus

[Chana Luntz]

RDB writes:

> I didn't say it is impossible, I said it isn't realistic. Of 
> course it is possible. Reuven is about steal Shimon's 
> diamond. Reuven catches Shimon, Shimon runs away, Reuven 
> chases him with a knife. Levi, standing a few feet away,has 
> permanently blinding 'mace' which he can spray on the Rodef, 
> or grab the diamond himself (with the intent to return it) 
> and call out to Reuven that he has the diamond. 

I am not sure I am understanding the example - but I can't see how it
helps you.

Is Shimon holding the diamond or not?  Ie when Reuven is chasing after
Shimon, is he chasing Shimon plus diamond, or Shimon minus diamond?

If he is chasing Shimon plus diamond, then what you seem to be
suggesting is that Levi takes it out of Shimon's hand - and the surely
that should be a decision for Shimon (ie whether he passes the diamond
to Levi for safekeeping or not).  If Shimon does not want to pass the
diamond to Levi, despite being chased by a man with a knife, why is that
not stealing any more than Reuven's taking?  The property owner has made
it clear that he does not want it saved in this manner.  You might think
that I am taking great risks in having expensive jewelry lying around,
tempting burglars, but that does not give you authority to seize such
jewelry and put it in the bank for me.

If Reuven is chasing Shimon minus diamond, and the diamond is just lying
there, allowing Levi to pick it up - where is it and how did it get to
being so easily accessible that Levi can just grab it?  If it fell from
either Shimon or Reuven's hand then it can reasonably be considered a
lost object where what Levi is doing is picking up and returning a lost
object, which of course is mutar and a mitzvah.

Even if you want to say, and this is the scenario which is closest to
the sort of situation you want - that it was in its place (eg in its
display case), and by Reuven running after Shimon, it meant that the
diamond was no longer being guarded by Shimon, it is not totally clear
that Levi should pick it up, rather than stand guard himself.  It *may*
be mutar for Levi to then pick it up for safekeeping, but only because,
not being able to ask Shimon, he is assuming that this is what Shimon
wants him to do - it is an assumption that Shimon would, in this
circumstances, want Levi to act as his shomer, and is a form of zachai
adam shelo b'fanav.  If Shimon yelled out, "do not touch that diamond",
to Levi, then I don't believe that Levi may take the diamond, whether
taking the diamond would stop Reuven in his tracks or not. That
certainly sets a very bad precedent, the idea that you can take away my
property because you think that I am taking risks to my life that I
would not otherwise have - to whit the expensive jewelry lying around
the house case.  You might try and reason with me, explaining the risks
to my family if burglars do target my house and take my jewelry, but I
certainly do not believe you have the right to seize my jewelry against
my will even to stick it in the bank.  Whether Levi then decides to use
the mace is another question, but assuming that Reuven was really posing
a risk to Shimon's life - despite the diamond was not in Shimon's hands,
then it seems clear that the use of the mace is really independent to
the diamond.

The major difference between the case you are setting up and the talmid
case, is that there is no question that the talmid does not want the
rebbe to take the item away, which is why the rebbe cannot be genuinely
classed a shomer, but a thief, while in this case, it is reasonable to
assume that Shimon would want Levi to take the diamond.

> >> And if by doing some other averah to achieve the same result ought 
> >> there
> also to be leeway - eg if the rav was boel the talmid's wife 
> as a way of bringing him to his senses, that would also be 
> OK?  Ok that is a yarog 
> v'al yavor, but I am sure you can come up with an issur lav. <<
> 
> But you concede that in a case of a Rodef, blinding him 
> instead of taking the diamond would be excessive force.

See above, no I don't.  If Reuven said to Levi "Do not take my diamond"
then I do not see how Levi could take it - even if Levi was convinced
that that would stop Shimon in his tracks.  If Shimon said to Levi "take
my diamond" then that is with the permission of the baal, and hence
clearly not theft.  It is only if Shimon was not capable of saying
anything or of being asked that Levi might be able to act, and only
because we are assuming that this is what Shimon the owner really wants,
but just can't say.  And if the diamond is in the rodef's hand already,
there has already been shinui rishus, and Levi is not stealing from the
true owner, but the thief - and recovery of stolen property from a thief
is mutar whether one has a mace alternative or not.

> >> Rav Henkin does bring all this. The main point he is 
> making though is
> that one could not even start a discussion about whether 
> gezeila is yarog v'al yavor if you allow gezela as a kal 
> v'chomer from hitting. The whole argument goes away based on, 
> well hitting is not yarog v'al 
> yavor, gezela is more kal than hitting, so therefore it 
> cannot be yarov v'al yavor, end of issue.  The fact that this 
> line of reasoning is not imployed in the yarog v'al yavor for 
> gezela discussion, even by those 
> who hold that gezeila is not yarog v'al yavor indicates that 
> in fact we do not learn the kal v'chomer in this way. <<
> 
> If that were true, then Yehareg V'Al Yaavor for Gezeila would 
> fall away due to other Issurei Misas Beis Din not being 
> Yehareg V;Al Yaavor, (notwithsatnding the Aggadic statement 
> of K'illu Notel Es Nafsho).

Sorry? Where do we see a kal v'chomer being made between Gezeila and
other issurei missas beis din?

> Kol Tuv,
> 
> Doron

Shavuah tov

Chana