[Avodah] reasons for torah loopholes in dinei mamonos

[Chana Luntz]

RDR writes:

> I don't own a Sdei Hemed.  My impression of the Rama is that the Beis 
> Din has the authority to award a fine in its capacity as keeper of 
> communal peace, rather than in its capacity as remedying monetary 
> damage.

Well it rather seems more than that. Basically one who is motzei shem ra is
guilty of a torah violation, but because it is a lav she ain bo ma'aseh,
there are no lashes min hatorah.  But there are lashes d'rabbanan (makos
mardus) at least according to one opinion.  Now neither form of lashes are
given today, but in their place are the possibility of nidui or other
remedies as decided by beis din.

I agree that the remedy is not necessarily monetary - but that does mean
there is not a remedy in halacha, just that there may not be a remedy in
damages.  As I understand the basic underlying argument why one might not
provide a monetary remedy when embarressing somebody with words is that, in
theory, such a situation can be rectified in other ways, so a monetary
penalty is not needed.  A public flogging for slander would seem to do the
trick rather effectively I would have thought.  The fact that the common law
legal system provides primarily a remedy for slander that involves monetary
recompense does not mean that that the only available remedy (and it is not
in fact in the common law either, there are various injunctions and other
equitable remedies available, publishing of retractions etc).

> Boshes is a weird din because it requires intention, unlike the 
> standard cases of nezikin.

Why is it a weird din because it requires intention?  As I think I said at
the outset, the spectrum along which any judicial system could award damages
ranges from, at the one extreme, only when there was intention to have the
particular consequence (or certainty of forseeability, which amounts to the
same thing.  If you know with 100% certainty there is going to be a certain
consequence to your actions, and you do it anyway, you have intention or you
are a shoteh) to at the other extreme, liability for the consequences of
your actions, no matter how remote and how unlikely it was that you forsaw
it.  The fact that halacha has put different forms of damages at different
points on the spectrum, with actual damage towards the less easily forseen
end, shevet and refua further along the spectrum and boshes at the the other
end does not seem to me to make it a weird din.

 
> On the contrary there is one market, and kosher and non-kosher meat 
> are different things which carry different prices.

That is not at all true in the non Jewish market. If I buy my kosher chicken
at my kosher butcher, and go down to the non Jewish market (in fact there
was an open air non Jewish meat market near my old work, I used to walk
through it sometimes on my way to work, and they were just packing up at
8.30am or so, having finished for the day) I would get no more for that
chicken in that market than I would for a treif one with the same physical
characteristics.  To them it is exactly one and the same thing.

>  Multiple markets means that the same thing sells for different prices 
> in different markets in the same town (i.e. the differences aren't 
> attributable to cost of access).

Yup, and it does - my kosher chicken sells for £8 pounds in my kosher
butcher and if I take that chicken down to the goyishe market I would get,
what, maybe £3-£4 for it.  Same chicken, different prices, no problem with
access.  Same thing is likely true with wine that I can certify has not been
the subject of nesech, or produce which has not become tamei - we Jews will
pay a higher price for them, but in the general non Jewish market, they will
go for whatever it is that the wine or wheat is selling for - and the non
Jew will not care whether it comes with fancy stamps or it does not.  And in
fact the Jew only cares to the extent that he is shomrei torah - ie it is
only because he has accepted upon himself ol malkus shamayim that suddenly
it matters and these things go for higher prices.  

>  That can't happen because of arbitrage, and that is what I understood 
> you to postulate in your initial post.
> > 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?
> See the Rambam I cited last time: "hoil vl'o nishtanah hadavar vlo 
> nifsdah tzuraso ... aval midivrei sofrim amru hoil v'hifhis d'maihem 
> harei zeh hayyav".  The item hasn't been damaged; it's market value 
> has been reduced.

I thought that was what I was arguing - ie that the issue is the change in
market value.  But then you have to ask what is the market.  If you look at
the non Jewish market as the basis, there has been no reduction in value
-wine before nesach and produce before becoming tamei obtains the same price
as afterwards - so there is absolutely nothing to pay.  To say that the
market value has been reduced is already making a judgement about the market
- and saying the market is the shomrei torah market, as no non Jew (or non
frum Jew) would pay a penny less than he would have beforehand.

The problem it seems to me with saying that hezek sheino nikar lo shmei
hezek  means hoil vlo nishtaneh hadarvar vlo nifsda tzuraso , is how do you
then explain the position (Chizkiya on Gitten 53a) that hezek sheaino nikar
shmei hezek?   The Rambam's formulation remains just as true, it is still
true that lo nishtanah hadavar vlo nifsdah tzuraso.  So that part of his
formulation could not be expected to change which ever way the machlokus
went.  I therefore just understand that part of his formulation as
explaining so the audience understands the case, it is not saying there is
no damage (or there is damage), it is saying that the case is where the
object does not change form - clearly true however you understand it.   It
is only after that that we get into the question of which way to posken.  Ie
which market value - and then all you need to say is that Chizkiya is
looking at the market of the Jews as the basis of measurement of the Torah,
and in that market the value has been reduced while Rav Yochanan understands
the basis of measurement of the Torah as being the more general goyishe
market in which it hasn't, with the rabbis then modifying that to allow one
to look at the market of the Jews.  BTW, under Chizkiya's formulation, the
Torah obligates payment whether intentional or unintentional, but according
to him d'rabbanan the unintentional is exempted from payment, so that you
get to a similar situation to boshes, ie intentional chayav, unintentional
patur - and it is not weird at all.
 
> David Riceman

Regards

Chana

PS RYG's point is well taken, it is interesting that we have these two
opinions as to what the Torah is really saying is the underlying din without
any reference to derivations from psukim - and only references to mishnayos
(ie torah shebaal peh) to try and prove that the halacha is one way or the
other.


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