<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 3.2//EN">
<HTML>
<HEAD>
<META HTTP-EQUIV="Content-Type" CONTENT="text/html; charset=iso-8859-1">
<META NAME="Generator" CONTENT="MS Exchange Server version 6.5.7036.0">
<TITLE>Re: [Avodah] reasons for torah loopholes in dinei mamonos</TITLE>
</HEAD>
<BODY>
<!-- Converted from text/rtf format -->
<P DIR=LTR><SPAN LANG="en-gb"></SPAN><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">RDR writes:</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> I don't own a Sdei Hemed. My impression of the Rama is that the Beis </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> Din has the authority to award a fine in its capacity as keeper of </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> communal peace, rather than in its capacity as remedying monetary </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> damage.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">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.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">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).</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> Boshes is a weird din because it requires intention, unlike the </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> standard cases of nezikin.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">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.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New"> </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> On the contrary there is one market, and kosher and non-kosher meat </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> are different things which carry different prices.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">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.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> Multiple markets means that the same thing sells for different prices </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> in different markets in the same town (i.e. the differences aren't </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> attributable to cost of access).</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">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. </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> That can't happen because of arbitrage, and that is what I understood </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> you to postulate in your initial post.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> > But what does it mean to say that no damage has occurred to an item </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> > when before time X it could be sold for 100 units in a</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> given market,</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> > and now it can only be sold for 50? How do you describe this item?</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> See the Rambam I cited last time: "hoil vl'o nishtanah hadavar vlo </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> nifsdah tzuraso ... aval midivrei sofrim amru hoil v'hifhis d'maihem </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> harei zeh hayyav". The item hasn't been damaged; it's market value </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> has been reduced.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">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.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">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.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New"> </FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">> David Riceman</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">Regards</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">Chana</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"><FONT SIZE=2 FACE="Courier New">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.</FONT></SPAN></P>
<P DIR=LTR><SPAN LANG="en-gb"></SPAN><SPAN LANG="en-gb"></SPAN></P>
</BODY>
</HTML>