[Avodah] Avodah] reasons for torah loopholes in dinei mamonos

[Chana Luntz]

RMC writes:

> The torah (via gezeras hakasuv) paturs a damager in various cases
> (that sechel haAdom would say are not understandable)
> For example: kelim b'bor, tamun b'aish, hezek shaino nikar, admit to
> chazti nezek (modeh b'knas), etc etc

You would have to take these on a case by case basis, by why do you say that
these are not understandable by sechel haAdom?

If you go back to the theory of damages, there is a clearly a spectrum of
what one could require. At the one end, one could say that a person is
responsible for what they or their property did, regardless of how
foreseeable the damage is - ie no matter how remote the likelihood of the
particular damage is, the person is liable if he or she was the ultimate
cause.  At the other extreme one can say that a person should only be liable
for something if it was absolutely clear to them precisely what damage would
be caused by their action - and anything a bit more remote that they *might*
not have foreseen would be the consequence should be exempt.

The Torah clearly takes a stance somewhere between these two extremes, as do
our modern legal systems, but differences in the middle ground occupied does
not necessarily seem to make any particular position illogical.

So, for example, the kelim b'bor case.  It is not unreasonable to say that a
person who digs a hole in the public domain should be liable for animals
that fall in, as he or she should reasonably expect animals to be walking
around (they go of their own volition), and it was a normal part of society
up until very recently for animals, who were the means of transport in most
cases, to be walking up and down the public domain.  Hence it is not that
difficult to foresee the type and nature of animals that might fall in.
Kelim however cannot go on their own, they need either an animal or a human
to bring them.  And to expect a person to foresee the nature of the kelim
that could possibly fall into a hole, if they happened to be carried by an
animal, is asking for a whole additional level of foresight, as well as far
more sophisticated valuation skills.  You could argue that a more nuanced
answer would be to examine the road in question, look at the types of kellim
that are normally carried by animals there (if this is a general
thoroughfare for caravans carrying exotic goods, then one might expect more
expensive and breakable kellim than if it were a different kind of road,
where it might not be reasonable to expect a caravan carrying expensive and
exotic goods), but such a level of inquiry would eat up judicial and legal
time, and you have to balance.  Our modern English/American legal systems do
go much more for the full assessment of damages, but it is not totally clear
that this is an ideal.  The situation we have in modern Western society when
one desperately hunts around for somebody to "blame" for the damage so as to
have recourse to deep pockets does not necessarily produce a productive
society (think of the situation where a baby is injured due to medical
negligence compared to the situation where the baby has problems which can
not be pinned on the medical profession, but where the parents and child
will face the same medical and other needs throughout their lifetime).

There are hence two aspects of requiring a damager to pay damage.  The one
is to put the person damaged back in the same position, or as near as money
can, to the way they were before, and the second is to deter potential
damagers and to punish those who do damage.  In terms of the first, however,
you are privileging those who suffer misfortunate by the hands of a damager
who can be found and brought to court over those who suffer damage from
somebody who cannot be found, cannot be brought to court, or over those who
suffer damage as a result of bad mazel (an unusual wind or whatever).  It is
not totally clear in terms of absolute justice why this should be.  Hence it
is not illogical to say that  a large part of making damagers pay is about
deterrent, and if a certain level of damages is an appropriate deterrent, to
query the extent to which you necessarily want to go further than that with
all the associated costs.

Modeh b'knas is a totally different kind of concept and is clearly (like
lower penalties for somebody pleading guilty in modern legal systems) to
encourage acceptance of responsibility and lower the cost to society of
conducting full trials.  Knas itself is much more like secular criminal
penalty, with the major difference being that instead of the money going to
the government (as it does in Western legal systems) it goes to the person
damaged.  But like a fixed penalty in modern criminal law, it is more about
deterrent and punishment than about recompensing anybody who might be
damaged in the process.

Hezek sheano nikar is a really fascinating one - because it generally deals
with situations where the object has become diminished in value because of
the Torah value placed on it, rather than its intrinsic value.  It is indeed
an extraordinary philosophical question as to why.  But it is not without
its logic - if we place a higher value on something because we are following
the Torah, it does not automatically mean (although perhaps one might think
it should mean) that we should compel others to. It does seem strange and
almost "modern" not to so compel, but there is a logic to it -especially
given that to a non Jew in most cases the object has the same value it
always had, and hence the same value in the non Jewish second hand market
which is often the only real way of measuring some form of market value.
> 
> 
> ie if someone deliberately puts nails on the road to damage car tires, he
> is patur in beis din

Presumably you are talking about the damage to the tires, rather than any
injuries to humans in the cars caused by the cars then careening out of
control (where I wouldn't have thought the din was so clear).  Even with the
cars, however, is it totally clear that they fall into the category of
kellim rather than being treated as a form of mechanical horse - which in
many ways is what they really are - in essence they perform the function of
horses, donkeys and oxen in the gemora?  In terms of the theory I outlined
above, a car would more comfortably fit within the foreseeability test used
for animals in the Torah and gemora, whereas the kellim of the gemora are
intrinsically much more akin to luggage being carried within the car.  I
don't know if any modern day posek has said this, and of course this is a
purely modern question, as it is only recently that machines have replaced
the function of animals and so the animal/kellim distinction has become
blurred.  But it seems to me that at least some of your discomfort with the
Torah din as you have applied it may in fact be rooted in the modern
replacement of animals with machines, and your automatically applying the
din of kellim to such machines.

> (though possibly chayav b'yidei shamayam because of gramma)
> For many of the gezeras hakasuv's of the torah (basar v'chalov, shatnez,
> para aduma, etc)
> the mforshim attempt to give reasons for the gezeras hakasuv
> Does anyone know of possible explanations for these peturim in dinei
> mamonos?
> mordechai cohen

Regards

Chana