[Avodah] Avodah] reasons for torah loopholes in dinei

[Chana Luntz]

RDR writes:

> It's easier to understand "hezek she'eino nikkar lav shmaih hezek"
> literally. 

I am not sure that you are in fact translating it any more literally than I
am.  You are translating this as "Damage that cannot be detected *is not*
damage", I am translating it as "Damage that cannot be detected is not
considered [in the courts] to be damage". I would argue that my translation
is as literal, if not more so, than yours - given that the opening word
makes it clear that what we are dealing with is indeed is a form of damage.

And I think that can also been seem by the formulation of the Shulchan Aruch
on this (this is Choshen Mishpat siman 385 si'if 1):

 Hamazik es chavero hezek sheano nikkar ... min hatorah hu patur aval
hachachmim kansu l'shalem nezek shalem me'hayafa shebenichnasav k'din kol
hamazikim ...

 You haven't damaged the object by making it tamei (see H.
> Hovel UMazik 7:1); you have damaged the owner's ability to use the
> object (admittedly this presumes the Rambam's opinion that tumah is a
> legal status rather than a physical status).

Either way you are assuming (that is what is so interesting about this case)
that tumah or whatever is a legal status rather than a physical status (ie
that despite this being a biblical situation, that it is really quasi din
gavra rather than cheftza).  

  Here's another example: as
> I understand it (and I know almost nothing about common law so please
> correct me if I'm wrong) if someone slanders me I can sue him for the
> damage he's done to my reputation.  In halacha no such resort exists.
> He hasn't damaged me; he's damaged my relationship with others.

Are you sure about there being no remedy in halacha?  What about the
discussion in the Rema in Choshen Mishpat siman 420 si'if 38 which certainly
seems to give rise to the possibility of remedy, depending on the case.  The
Sde Chemed has a whole mareches on this called Mareches Chirufin (Vol 8
pp165-179) in which he goes into great detail about those forms of name
calling which are potentially actionable and those which aren't.  The issue
seems often to indeed be about reputation (the difference between being
called a "mamzer" and being called "like a mamzer", would surely seem to
hinge on that question).

But leaving all that aside, one of the things for which payment is made if
damage to the person is determined is for embarrassment.  The fact that
embarrassment on its own, without physical damage, does not allow somebody
to pursue a claim in damages would thus seem not to mean that embarrassment
is not considered a form of damage, but merely that it is not one that is
actionable in the courts without there being a physical aspect as well.

> Rather than postulating the existence of multiple markets

It is not a matter of postulating multiple markets - multiple markets were
and are a fact of life.  An equally appealing kosher and treif piece of meat
has the same value in the market of the non Jews, it does not in a market of
Jews.  You just can't make those markets the same.  The question is thus not
about multiple markets, but about which market should be used as the basis
for any assessment of damages.

> (which would be subject to arbitrage)

Its called the Monsey butcher scenario - that is precisely what he did,
arbitraged between the kosher and general market.

> I think it's easier to postulate that there's a
> preliminary step before assessing damage: determining whether damage
> occurred.

But what does it mean to say that no damage has occurred to an item when
before time X it could be sold for 100 units in a given market, and now it
can only be sold for 50?  How do you describe this item?  Much more
straightforward to say that the item is indeed damaged, but damaged in a way
that may or may not actionable in the courts (ie any person who caused this
is patur).

It is of course also interesting that of the d'orisa positions outlined by
the previous poster, this is the one that the chachamim saw as needing to be
fixed (as made clear in the Shulchan Aruch I quoted above). 

I had a thought (although it is kind of sort of drush really) that one could
argue that by imposing matan Torah on us, Hashem could be said to have
inflicted hezek sheaino nikar on our property.  After all, before Matan
Torah, the produce of our crops had a certain value in the general market,
as did our animals etc etc.  After Matan Torah, that value suddenly
diminished.  After all, the crops were now tevel that needed to be metaken
by taking trumos and ma'asros, at a cost to us, our animals needed to be
ma'asered etc etc and so we would receive less for them on the general
market than we would have before.  If hezek sheaino nikar was chayav, then
technically would we not have a damages claim against Hashem (especially
given the har hagiga)?  Of course one might say that our property decreased
in physical value and increased in spiritual value (as it can now be used in
the performance of mitzvos such as being metaken tevel, ma'asering behamos
etc) but since one cannot take spiritual value into account in terms of
hezek, maybe you need hezek sheaino nikar to be patur to make the equation
work.  On the other hand, when a person (rather than Hashem) engages in
hezek sheino nikar, generally they are decreasing, not increasing, the
mitzvah potential of the item, hence the need for the rabbinical fix.

> David Riceman

Regards

Chana