[Avodah] Avodah] reasons for torah loopholes in dinei

[Chana Luntz]

RDR writes:

> Of course generally we use market value to determine value (I 
> don't know what "intrinsic value" means).  Does this mean that market 
> value doesn't apply when the market is distorted by halacha?

In a society made up of two groups: frum Jews and non Jews (whether they be
Jews and gerei toshav, or Jews and the non Jews amongst whom the tanaim and
amoraim lived), in certain cases Torah values create two different markets-
one amongst the Jews and the other amongst the non-Jews.  And in the case of
hezek sheaino nikar, the market value of the item amongst the non Jews
generally will not change, ie there is only a reduction in value when you
consider the item as assessed in the market amongst Jews. In many other
cases, however, there is only one market (eg the value a Jew and a non Jew
places on an animal who can or cannot work to a certain level is likely the
same) and hence only one market value can be placed on the item as it
stands.  The position that there is no remedy halachically in damages for a
person whose item is only damaged in a way that would lessen its value in
the market of the Jews, and not in the market of the non Jews is fascinating
- as it seems to give a certain priority in terms of assessment of damages
to the non Jewish world.  Of course there is more of them than us, so on the
one hand perhaps it is logical, on the other hand one might have thought
that a Torah system would give priority to what might be considered the
Torah market, even if it is a small one.

> What if I physically 
> destroy a piece of kosher meat? Why can't I replace it by an equally 
> appealing piece of non-kosher meat?

The question is not so much your replacing it, but whether, given that this
is a case where the value of the item destroyed is worth more in the market
of the Jews than in the market of the non Jews, should you have to pay to
the Jew whose meat you destroyed the value of a kosher piece of meat or of a
treif piece of meat.

 I think this needs deeper analysis.  In particular, I suspect that "value"
is a red herring, and 
> you need to think harder about what constitutes "damage".

I am not sure I understand this statement.  Value is at the heart of the
assessment of damages - well it is in both the Torah and common law systems
- I guess it does not have to be, you could theoretically have a damages
system that works on a replacement basis - ie the defendant is required to
go out and purchase a replacement and give it to the plaintiff, an act which
would then presumably permit him to take away the damaged goods  - but I am
not aware of any legal system that works that way (although insurance
contracts sometimes do).  I suspect it would be just too difficult to
enforce, and lead to far too many arguments that the replacement does not
adequately match the original, and it would take too much time of the courts
if they were required to effectuate the purchase.  Hence the usual way of
dealing with damages is for the court to make some sort of assessment, and
of course they have to turn to the market (or a market at any rate) to do
that and to determine that the value of the item has indeed been diminished.

> David Riceman

Regards

Chana