[Avodah] reasons for torah loopholes in dinei mamonos

[David Riceman]

You are eliding a fundamental distinction in halacha which may not 
translate well to common law.  That is the distinction between mamon and 
knas.  We have a general rule "ein govin knas b'bavel", and, indeed, 
that principle applies as well to some unusual sorts of mamon.  It's 
true that the gemara views boshes as unusual in this regard, but it's 
equally true that boshes doesn't fit well into the category of "mamon" 
since the fine is not evaluated based on quantity of damage, but on 
other considerations (like intent).  Several of the cases you cited 
don't fit the category of "mamon" well because they are fines, and, 
since we don't assess fines, the court is acting in some capacity other 
than evaluating damage.

The original poster, AIUI, was asking specifically about mamon rather 
than knas.  This is intuitively appealing, since we might not expect 
fines to follow logical rules; they might very well depend on transient 
social norms.

Detailed comments follow:
>
> Me:
>
> 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.
>
RCL:
>
> 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).
>
There's a difference between recompensing the damaged party and 
discouraging the offender from repeating his offence.  Corporal 
punishment accomplishes the latter but not the former.  This, I think, 
reinforces my point that your case is not a case of being recompensed 
for monetary damages caused by slander.

Me:
>
> > Boshes is a weird din because it requires intention, unlike the
>
> > standard cases of nezikin.
>
RCL:
>
> 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.
>
Adam muad l'olam.  If indeed this is recompense for damage (classified 
above as "mamon"), requiring intent is unusual, to say the least.  If, 
as you seem to undertand it above, it's a fine to discourage 
misbehavior, it's weird because it is codified in nezikin rather than 
elsewhere.
>
>  Me:
>
> > On the contrary there is one market, and kosher and non-kosher meat
>
> > are different things which carry different prices.
>
RCL:
>
> 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.
>
No.  If you told them "this is a kosher chicken and you could sell it 
for more if you labelled is as such", you could get more for it.  What 
you are describing is the result of ignorance and of structural problems 
(they'd need reputable hechshers and a knowledgable clientele, both of 
which would appear very quickly if they could sell kosher chickens for 
half price).  My own grocery store sells both kosher and non-kosher 
poultry; if you like I'll check the price difference, but I imagine it's 
at least equally large as the difference you see.
> RCL:
>
> > > 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?
>
Me:
>
> > 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.
>
RCL:
>
> 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.
>
But you've forgotten the initial question.  It was why should "hezek 
she'eino nikar" be patur min haTorah.  The Rambam says that it's because 
no damage occurred.  You argued, IIRC, that it's because damage occurred 
in one market but not in another.  The Rambam is very clear that it's 
because no physical damage occurred.  The value of a thing is not the 
thing itself.
>
> 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.
>
Gavra aGavra ka ramis? I don't see that this is a problem.  Hizkiyah is 
certainly entitled to disagree about the definition of damage, and the 
Rambam, who viewed himself as a codifier rather than an interpreter, had 
no need to explain his opinion.

RCL:
>
>   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.
>
Yes, and it's also interesting that the gemara does cite a pasuk to 
demonstrate that boshes requires intent.

David Riceman