[Avodah] lifnei iver/kanaus

[Chana Luntz]

RDB writes:
> 1) The realism, or lack thereof, does not detract from the 
> absurdity of equating Chavalah and Gezeila (or making 
> Chavalah less serious)  in the aim of achieving a particular 
> desired result.

If an example is impossible, it does not strike me as a relevant
example.

 In the case of a desired result of Chinuch, I 
> find it exceedingly difficult to suggest that if a Rebbe hits 
> his Talmid to the point where he kills him B'Shogeg he is 
> Pattur from Galus, (Makkos 8) and yet that does not dictate 
> leeway in taking his away his property for acheiving the same result. 

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.

The point about a rav who strikes his talmid to the point where he kills
him is that the rav has no intent to kill him, it was an accident.  He
intended to hit him as is permitted by the halacha.  Nobody suggests
that we are talking about murder here, the only question is galus, ie
the question of shogeg.  But if the rav takes away his property then,
argues Rav Henkin, you do not have a halachic category into which you
put "taking away property in order to reprove which is handed over to
the individual".  Taking away property against the will of a person is
gezela, and so that is what the Rav intended to do.  The fact that he
was trying to do a mitzva haba b'averah, does not make it, according to
Rav Henkin, any less an averah.  Nor that he may not have other,
specifically sanctioned means to achieve the same result (maybe that
makes it worse).  Note of course that the beis din is able to take away
property in order to reprove an individual, but here you either have
specific source in the Torah, or hefker beis din hefker.

> 2) Restraining is not Chavalah.

Agreed - but the point is that in order to legitimately engage in
Chavalah in a rodef situation, restraint has to not be enough, so for
your comparison to have any practicality, you need a scenario where
restraint is not enough, and taking of property is, and that seems
logically impossible to me.

> 3) While the Tur is not a clear-cut source for the Issur 
> Hezek stemming from Gezeila,  the Rabbeinu Yonah to Avos 
> (1:1) is very clear in this regard, though I am aware of 
> other sources for this Issur (Yad ramah to BB 26 has two more) 
> 
> 4) The position that Gezeila is Yehareg V'Al Yaavor is 
> rejected by the vast majority of Rishonim, (though the Ramban 
> to Kesuvos 19 quotes such a possibility in interpreting the 
> Gemara there) and even though the Rashi to BK 60, B'Pshuto 
> does seem to say this, as pointed out by the Parshas Derachim 
> (who is incredulous that it is possible for Rashi to hold 
> this), many Acharonim (Yad David, Beis Aharon, et al) learn 
> Rashi differently.  

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.

> 5) The main reason the Gemara re Nirdaf breaking the Keilim 
> being Pattur doesn't do me any good is because there the Kal 
> VaChomer is from being able to kill him outright, not 
> necessarily from Chavalah.

I confess I don't think it reads that way, rather the kal v'chomer is to
chavla, which itself is a kal v'chomer from being able to kill him
outright.  Note of course that if you kill the rodef, then actually the
property that has been damaged ends up belonging to his heirs, who may
well be innocent (same is true of the talmid killed b'shogeg - if you
take away his property, and that doesn't work, and you then resort to
hitting, and then the talmid is killed, you are then sitting on the
property of innocent heirs).  One of the reasons I always thought that
there is a lot of discussion regarding which particular aveiros were
significantly henious that not only is the person chayav misa, but their
property is forfeit is because the latter hits subsequent existing
generations (while killing him only hits potential generations that he
might have produced had he not been killed).

> Kesivah VaChasimah Tovah,
> 
> Doron

Kesiva VaChasima Tovah and Shabbat Shalom

Chana