[Avodah] some halachot of moser

[Jonathan Baker]

From: Zev Sero <zev at sero.name>
> Daniel Eidensohn wrote:
> > Zev Sero wrote:

> >> Because that's all the Rama says (at the end of se'if 7). 
> >> ... It seems to me just from the Rama's words that this may
> >> be a privilege granted to the victim of an assault, because ein adam
> >> nitpas al tzaaro.

but what is tzaar?  see below.
 
> > At this point I have presented a number of sources while you keep 
> > responding with "it just seems to me". 
 
> Because the sources you present are not talking about the same thing
> that the Rama's plain language is talking about.  I'm just taking him
> at his word.  This is what he says, and he doesn't say any more than
> that.  I have *not* claimed that a third party may *not* masser someone
> who has assaulted someone once, but the Rama doesn't say one may, and
> nothing you have presented shows otherwise.

I just read S'if 7, and S'if 12 with the cited Sma.
 
> >>> *Sema (C.M. 388:30)*:This that the abuser is not reported to the
> >>> secular authorities is only when he is verbally abusive to the
> >>> individual but if he causes financial loss and surely if he beats
> >>> him or causes bodily suffering it is permitted to report him to the
> >>> secular authorities as is stated in the Rema and the Darchei Moshe.

> >> Sorry, you've mistranslated the Sema in several places.  There is
> >> nothing in the Sema about "verbally abusive", or "causes financial
> >> loss".  

> > This is the understanding of the Chasam Sofer (Gittin 7a) and the 
> > Minchas Yitzchok (8:148)- sorry you disagree with them.
 
> Again, you have simply mistranslated the words.  The Sema's words are
> what they are, and anyone can look at them and see that they are not
> as you have quoted them.   The Chasam Sofer does say this, but not in

Well, I looked in to see what would exorcise two such greats to vehement
opposition, and I gotta say, on my own (weak) reading, you're both right
and you're both wrong.

1) In S'if 7, the Rema does seem to be giving a particular halacha, as
a "yesh omrim," that a victim of physical injury (I don't see any distinction
between singular and habitual injurious behavior, but it does seem to be
physical, rather than emotional/verbal) may go to the secular authorities,
even though the injuring party may suffer greatly at the hands of the 
authorities.

2) In S'if 12, they are discussing a different case.  The Mechaber seems
to say that if Reuven is moser on Shimon (rather than Reuven being moser
on the community), nobody may moser Reuven in turn.  The Sma narrows the
case considerably, making a diyuk on the Mechaber, who uses the word 
"tzaar".  

Since tzaar (in terms of nezikin) is something different from
nezek (monetary damage) or rephuah (physical injury), it must be verbal/
emotional abuse (Your mother was a hamster and your father smelled of 
elderberries!).  He relies on the Mechaber's own words in S'if 9 to 
draw that distinction.  It's not nezek begufo (physical) or bemamono
(monetary), it's something else - so it must be emotional abuse.

So the Sma narrows it to: if Reuven was moser Shimon in such a way that
the secular authority only caused emotional damage to Shimon, then nobody
has the right to moser Reuven in turn.

> > Bottom line. You have a concern that there might be a difference
> > between the victim and others. You bring no source to justify this
> > concern
 
> My source is the Rama himself.  All I have done is quote his exact
> words, and posit a reason for why he *might* mean exactly what he
> says.  To show that he didn't mean it, the burden is on you to show
> him saying the opposite somewhere else.

It does seem to me that the Rema in 7 is talking about a different case
than the Mechaber/Sma in 12.

But there is an exception for the victim in one case, according to the
Rema.

Let's summarize:

S'if 9 (mechaber):
  it is forbidden to moser Shimon, whether the damage that Shimon
  will suffer is going to be physical, monetary or emotional.

S'if 12 (mechaber as modified by Sma): 
  if Reuven masar the community, the community may moser Reuven.
  if Reuven masar Shimon:
     if Shimon suffered physically or monetarily, others may moser Reuven;
     if Shimon only suffered emotionally, others may not moser Reuven.

S'if 7 Rema at end:
  Some say, if Reuven injured Shimon, Shimon may [as the victim] moser
  Reuven to the authorities, even though Reuven may suffer greatly at 
  the hands of the authorities.

So the Rema's yesh omrim is an execption to the no-mesirah rule in S'if
9, and really has little/nothing to do with the subject matter of S'if
7, which is mostly about getting money back from Reuven which Reuven caused
Shimon to lose through mesirah of Shimon.

So:

  Zev is right in that the Rema provides an exception for the victim of
  physical injury.

  RDE is right in that the Sma talks about emotional vs. monetary vs.
  physical abuse/damage.

  Zev is right in that the Sma is not particularly relevant here, since
  it's talking about permissible revenge-mesirah on someone who has 
  already committed mesirah, either against an individual or the community.

Oddly enough, the Rema provides an exception at the end of 12 which looks 
like it should have been at the end of 7, since it has to do with compensation
for losses because of mesirah.  Maybe the two exceptions somehow got switched?
Perhaps to confuse outsiders who might be reading about mesirah?  That's pure
speculation, though.

Now you can both explain how I'm misreading the whole thing, and the 
carousel will continue to turn...

-- 
        name: jon baker              web: http://www.panix.com/~jjbaker
     address: jjbaker at panix.com     blog: http://thanbook.blogspot.com