[Avodah] Avodah] reasons for torah loopholes in dinei

[David Riceman]

Chana Luntz wrote:
> 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 ...
>   
It certainly is interesting that he doesn't use the Rambam's formulation.
>  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.
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.
> 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.
>   
Boshes is a weird din because it requires intention, unlike the standard 
cases of nezikin.  Again I think it is better understood under a 
different rubric.
> 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.
>   
On the contrary there is one market, and kosher and non-kosher meat are 
different things which carry different prices.  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).  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.

David Riceman