[Avodah] lifnei iver/kanaus

[Doron Beckerman]

RnCL writes:

>> Is this a realistic example?  I suspect that if a person could be
stopped from doing something by the mere taking of his money, then
blinding him would be excessive use of force, and not permitted under
the pen yosif principle.  A (slightly) more realistic example might be
whether you could stop someone attempting to kill a person either by
taking away his money or by physically restraining him, and I would
assume in this case Rav Henkin would say that you should physically
restrain him until he causes no more danger rather than take away his
money.  But I just can't see how you could have a rodef situation where
mere physical restraint is not enough, and you need to go to the extreme
of blinding him, and yet where somehow taking away his money would
succeed in stopping him in his tracks (whereas bribing him, ie giving
him some of your money would not work, given that bribing him is not
only mutar but a mitzvah).  Of course, the actual (and realistic)
example used in the halacha (see eg Choshen Mishpat siman 380 si'if 3)
is where in the course of saving somebody's life from a rodef, property
(eg kelim) of the rodef are incidentally damaged.  It is there that the
statement is made: "shelo yiyeh mamono chamur m'gufo"  - but I don't see
that that gets you to where you want to be, firstly it is talking about
damaging property, not theft, and secondly all it says is that pikuach
nefesh is doche both.  Now you might eliminate the first objection by
quoting the Tur at the beginning of siman 380 where he seems to link up
the issur of damaging property with that of genava and gezela (seeming
to imply that this is the source of the issur of property damage), but
the meforshim seem to understand that statement as merely clarifying
that just as with genava and gezela, there is an issur even if one does
it with the intention to pay for the item taken, so there is an
intrinsic issur from the torah in damaging property, not withstanding
that one fully intends to pay for the damage caused (note in particular
that the Bach sources the essence of the issur of nezek mamon
elsewhere). Nor does this deal with my second objection re pikuach
nefesh.

All the above paragraph is my analysis, not Rav Henkin's.  I do note
however that Rav Henkin in the teshuva has an extensive discussion
about, inter alia,  a statement of Rabbi Meir which seems to suggest
that in fact gezela is yarog v'al yavor and that Rashi at least seems to
hold this way (he quotes Rashi on Baba Kama 60b d"h v'yitila) and other
statements which suggest it is problematic to save oneself via the
property of others, while the same cannot be said of hitting.  So in
some ways, he says, one might argue a kal v'chomer the other way, and
hence one cannot say that this is more chamur than that, or that is more
chamur than this, but that they are two separate dinim that apply in
their own spheres with their own chumros and kulos, and therefore just
because one is permitted to hit a talmid, does not mean one is permitted
to take his property. <<

  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. 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.

2) Restraining is not Chavalah.

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.

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.
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