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Bava Kama, 56

1) SENDING WITNESSES TO TESTIFY FALSELY

QUESTION: The Gemara teaches that a person who hires false witnesses to testify that one person owes money to another person is exempt from having to reimburse the victim b'Dinei Adam, but he is nevertheless Chayav to pay b'Dinei Shamayim.

Why does the Beraisa discuss only a person who *hires* false witnesses? What is the Halachah of one who *sends* witnesses by just asking them to testify in court falsely, without paying them?

ANSWERS:

(a) TOSFOS (DH Ela) and the RASHBA explain that only when one *hires* false witnesses is he Chayav b'Dinei Shamayim. If he merely *asks* them to testify falsely, he is not Chayav at all, not even b'Dinei Shamayim, because he did not expect them to listen to him and to transgress the prohibition of bearing false testimony.

Tosfos adduces proof to this from the Mishnah later (59b, which our Gemara c ites) which teaches that one who sends a fire with a Cheresh, Shoteh, or Katan is Patur b'Dinei Adam and Chayav b'Dinei Shamayim. In contrast, when one sends a fire with a Pike'ach, "the Pike'ach is Chayav," implying that the sender is entirely Patur, even b'Dinei Shamayim.

Since the Mishnah does not specify that the sender is Patur only if the Pike'ach has money and pays for the damage, it implies that the sender never bears responsibility, even if the Pike'ach does not or cannot pay. (This seems to be the intention of Tosfos. See, however, PNEI YEHOSHUA.)

The reason the sender is exempt from paying b'Dinei Shamayim is because of the principle of "Ein Shali'ach l'Devar Aveirah," as the Gemara in Kidushin (42b) infers from that Mishnah.

(b) The RITVA (Kidushin 42b), however, and the TOSFOS HA'ROSH (there) write that even if a person merely *tells* witnesses to bear false testimony, he is Chayav b'Dinei Shamayim. The Mishnah (59b) that exempts the person who sends a fire with a Pike'ach is also exempting him from Dinei Shamayim at the time that the Pike'ach actually pays and the victim was reimbursed. This is also the opinion of the ME'IRI (Bava Kama 59b).

Why, then, does our Gemara refer to a person who *hires* false testimony, rather than a person who just *tells* witnesses to bear false testimony? The TOSFOS HA'ROSH (there) answers that the Beraisa means to teach that even one who *hires* false witnesses is Patur m'Dinei Adam. The RASHBA here asks why would it be necessary to teach such a point? Why would we think that by simply hiring witnesses the person should be Chayav b'Dinei Adam? His act is still not more than an act of "Gerama," of an indirect cause of damage to the other person!

Some Acharonim explain that when a person *hires* someone to perform a task, he is not appointing a Shali'ach, but rather he is hiring a worker. The principle of "Ein Shali'ach l'Devar Aveirah" might not apply to a worker, since "the hand of the worker is like the hand of the employer" ("Yad Po'el k'Yad Ba'al ha'Bayis"). Therefore, the Beraisa must teach that even a hired worker is not allowed to perform an Aveirah for the one who hired him.

The SHACH (Choshen Mishpat 32:3) answers that the Beraisa refers specifically to *hiring* false witnesses, because normally a person will not agree to bear false testimony unless he is paid for it. The Shach there cites a strong proof for the opinion of the Ritva from the Gemara in Kidushin (43a) which teaches that when a person sends a Shali'ach to kill a third person, although the sender is not punished with a "great punishment" ("Dina Rabah") because of "Ein Shali'ach l'Devar Aveirah," nevertheless the sender is punished with a "minor punishment" ("Dina Zuta"). It seems clear from the Gemara that there is punishment b'Yedei Shamayim for a person who simply asks his friend to harm someone else for him, even if he does not hire the friend. (The TOSFOS HA'ROSH in Kidushin preceded him with this proof, and the SEFER HA'MIKNAH there and PNEI YEHOSHUA here cite this proof as well.)

How will Tosfos respond to this proof for the view of the Ritva, that the sender is Chayav b'Dinei Shamayim even when he did not hire the witnesses? The CHAVOS YA'IR (#166) answers that Tosfos agrees that one who sends false witnesses without hiring them is punished with "Dina Zuta." Rather, what he means is that he does not have a "Dina Rabah," he is not punished with a "great punishment."

The TUMIM (32:2) explains this further. He points out that the Chiyuv b'Yedei Shamayim to which our Gemara refers is not merely divine punishment, but rather an obligation to *compensate* monetarily the person who was damaged in order to exempt oneself from divine retribution. Only if the crime that he committed is punished with a "Dina Rabah" will that Chiyuv b'Yedei Shamayim obligate him to compensate the victim, since "Dina Rabah" means that it is as if the sender actually caused the victim's loss. When the act is punishable only with a "Dina Zuta," it means that the sender is not actually responsible for the victim's loss, and therefore he can gain atonement by simply repenting without compensating the victim.

A similar explanation is offered by the KETZOS HA'CHOSHEN there and by the CHACHAM TZVI (#138).

The difference between the Chiyuv Mamon of a "Dina Rabah" and the Chiyuv of a "Dina Zuta" can be demonstrated from our Gemara as well. The Gemara says that if a person withholds his testimony that could prevent a loss to another person, it is obvious that he is Chayav b'Dinei Shamayim, because the verse says about such a person, "v'Nasa Avono" (Vayikra 5:1). How can we prove from "v'Nasa Avono" that he must compensate the victim b'Dinei Shamayim and not only that he is punished b'Dinei Shamayim? The Beraisa obligates the person to pay the victim b'Dinei Shamayim, and that would not seem to be apparent from the verse! It must be that "v'Nasa Avono" implies a "Dinah Rabah" b'Yedei Shamayim, and whenever such a Din exists b'Yedei Shamayim, the sinner cannot be exonerated unless he compensates the victim monetarily. Why, then, does Tosfos write that if a person tells someone to bear false testimony, he does not have to pay the victim in order to achieve atonement (TAL TORAH)? The answer is that when a person tells someone to bear false testimony he is punished only with "Dinah Zuta," and atonement can be achieved, therefore, without paying the victim.

The TOSFOS HA'ROSH in Kidushin does not accept this distinction. He writes that even though one who tells someone to cause harm to a third person is punished with only "Dina Zuta", it is logical that he will not achieve atonement unless he compensates the victim monetarily. He therefore argues with Tosfos who says that if one does not hire the witnesses, he is not Chayav to pay the victim b'Dinei Shamayim.

It would seem that Tosfos ha'Rosh views "Dina Zuta" differently than Tosfos. Perhaps he learns like Rashi in Kidushin, that "Dina Zuta" means that the one who sent another person to harm a third person is only considered to be doing an act of "Gerama," an indirect causative act, in the harm that was caused. That is why he receives a more lenient punishment b'Yedei Shamayim. If the punishment b'Yedei Shamayim is in response to the loss that the sinner caused to the third person, then it is logical that he will not achieve atonement unless he compensates the third person. Tosfos, in contrast, might be learning that the "Dina Zuta" is not a punishment for the loss that the third person incurs, but a punishment for causing the person who was sent to do a sin. Consequently, the sender does not have to compensate the victim in order to achieve atonement.

The Acharonim point out that there are times where the sender is not even punished with "Dina Zuta" b'Dinei Shamayim. They prove this from the Gemara in Sanhedrin (29a) which says that the Nachash ha'Kadmoni could have exempted itself from all punishment with the claim that Adam ha'Rishon should have listened to Hashem and not to him -- "Divrei ha'Rav v'Divrei ha'Talmid, Divrei Mi Shom'in." (This is the same argument which teaches the principle that "Ein Shali'ach l'Devar Aveirah" -- a Shali'ach cannot be sent to do an Aveirah on behalf of the sender, but rather the Shali'ach himself is held culpable for the Aveirah.) The Gemara implies that this would have exempted the Nachash from any punishment b'Yedei Shamayim. Why should that be so? The Nachash should have still been Chayav a "Dina Zuta," just like the person who sends another person to kill a third person! (SHACH Choshen Mishpat 32:3, and BI'UR HA'GRA there)

1. The VILNA GA'ON explains that "Dina Zuta" applies only to one who sends a Shali'ach to kill, but not to do any other Aveirah. The reason for this is that the Torah warns that even if you see that a person's life is in danger, you must rescue him, because of "Lo Sa'amod Al Dam Re'eicha," and thus certainly one may not put the other person's life in danger, even with a verbal suggestion. (The MAHARITZ CHIYUS here cites a Midrash in Bereishis Rabah which derives from a verse to show that one is punished for sending someone else to kill another person. The verse is specifically addressing the sin of Retzichah, murder.) The Vilna Ga'on writes, based on this, that one who sends someone to testify falsely will not be punished even with "Dina Zuta." (It is not clear why one cannot argue that just as one is obligated to prevent a loss to another person's property (RASHBAM in Bava Basra 53a, DH Mavri'ach Ari; see Insights to Bava Kama 2a), one is certainly obligated not to *cause* a loss to another person, even by suggesting to others to cause a loss.)

2. The PNEI YEHOSHUA and HAGAHOS IMREI BARUCH on the Shulchan Aruch add that if the sender does not simply ask another person to do a sin for the benefit of the sender, but rather he convinces the person to sin for that person's own benefit, then the sender is not punished with "Dina Zuta," since the Aveirah was ultimately done for the benefit of the person who sinned and not for the sender. (Obviously, the sender will transgress the Isur of "Lifnei Iver Lo Siten Michshol" (Vayikra 19:14), but he will not be punished for the act that was actually done. In the case of the Nachash, the Isur of "Lifnei Iver" could not obligate the Nachash, because he was not commanded to observe that Isur, but only the Isur of eating from the Etz ha'Da'as, like all the other creations.)

56b

QUESTION: The Gemara discusses whether a Shomer Aveidah is like a Shomer Chinam (Rabah) or like a Shomer Sachar (Rav Yosef). The Gemara cites proofs for the various views.

Why is this discussion cited here in Bava Kama? It belongs in Bava Metzia, in the chapter of "Elu Metzi'os," where the Gemara discusses the laws of returning a lost object! The Gemara there (Bava Metzia 29a) indeed quotes this Machlokes between Rabah and Rav Yosef, but it does not cite any of the proofs to either side that our Gemara cites. Why was this Sugya placed into the Gemara here? (PNEI YEHOSHUA)

ANSWER: The PNEI YEHOSHUA explains that the Machlokes between Rabah and Rav Yosef is relevant to the Halachah of our Mishnah which states that when one gives an animal to a Shomer, the Shomer is responsible for any damage that the animal causes. What is the Halachah in a case where a person finds a lost animal and takes it into his custody, and the animal causes damage? Will the finder be responsible for the damage that the animal causes?

If the finder is negligent and lets the animal cause damage, then he certainly is responsible. If, however, the animal is a type of animal that normally must be guarded with a Shemirah Me'ulah (a Tam according to Rebbi Yehudah, and a Tam or Mu'ad according to Rebbi Meir), and the finder guards it with only a Shemirah Pechusah, will he be obligated to pay for the damage that it causes?

According to Rav Yosef, who holds that the finder has the status of a Shomer Sachar, he will be obligated to pay for damages, since a Shomer Sachar must guard an animal with a Shemirah Me'ulah. According to Rabah, who holds that the finder has the status of a Shomer Chinam, it suffices to guard the animal with a Shemirah Pechusah, since a Shomer Chinam does not have as strong of a requirement to guard the animal, as the Gemara says earlier (45a; see Tosfos 57a, DH Ela).

The Pnei Yehoshua adds that according to the Gemara's conclusion (57a) that after an animal is lost, even a Shomer Chinam must guard it with a Shemirah Me'ulah since it has become accustomed to wandering out, even Rabah will agree that the finder must guard the animal with a Shemirah Me'ulah, and if he does not, then he will be responsible for any damage that the animal causes.

(Others argue that an animal that has become accustomed to wandering out must be guarded only with a Shemirah Me'ulah to prevent it from *wandering*, not to prevent it from *damaging* others. If that were not the case, then even the owner should have to guard his Mu'ad animals (which normally need only Shemirah Pechusah, according to Rebbi Yehudah) with a Shemirah Me'ulah once they wander out once -- as the Pnei Yehoshua himself asks. See BEIS AHARON.)

The OR SAME'ACH (Hilchos Nizkei Mamon 4:4) adds that perhaps the opposite is true: According to the opinion that Rav Yosef gives a finder the status of a Shomer Sachar because the Torah obligates him to watch the item, the finder might be obligated only to prevent the animal from *becoming* damaged like a Shomer Sachar, but he is *not* obligated to prevent the animal from *causing* damage like a Shomer Sachar, since the Torah does not obligate him to prevent the animal from causing damage.

QUESTION: Rabah and Rav Yosef argue whether a Shomer Aveidah is considered a Shomer Chinam or a Shomer Sachar (see previous Insight). RASHI defines a Shomer Aveidah as one who brings an object that he found into his home. Why should the argument between Rabah and Rav Yosef not apply even from the moment that the person finds the object? Even if he returns the item directly to the owner and the item is lost or stolen from him on the way, the Machlokes should still apply!

Later (57a, DH Mai), Rashi again infers from the wording of the Gemara that the argument between Rabah and Rav Yosef applies to an object that the finder has brought home. Rashi's words there imply that if the finder did not yet bring the object home, then even Rabah will agree that the finder has the status of a Shomer Sachar. Why should that be so?

ANSWER: What is the reason why Rabah does not agree to Rav Yosef that the finder becomes a Shomer Sachar because he is exempt from giving Tzedakah to a poor person while he is taking care of the Aveidah? TOSFOS in Bava Metzia (29a) and Shavuos (44a) explains that Rabah agrees that one is exempt from giving Tzedakah while caring for the Aveidah, but he does not consider the finder to be a Shomer Sachar because of this, since it is such an uncommon benefit; it is not common for the finder to actually benefit in such a manner. Rav Yosef argues that as long as the finder can possibly benefit in such a way, he is considered a Shomer Sachar from the moment that he finds the object.

Based on this approach, the RADVAZ (1:519) suggests that perhaps even Rabah would agree that at the moment that a person is tending to the lost object, he is indeed considered a Shomer Sachar, since he is definitely benefiting at that moment by not having to give Tzedakah due to the Mitzvah that he is involved in by taking care of the Aveidah.

The TOSFOS HA'ROSH writes that not only when a person is caring for the lost item in his home is he considered Osek b'Mitzvah and is exempt from giving Tzedakah, but even while he is carrying the Aveidah to his house (or to the owner's house) he is also exempt from giving Tzedakah, since he is performing a Mitzvah with the Aveidah at that time.

Perhaps Rashi wrote that the Machlokes between Rabah and Rav Yosef applies only when the Aveidah is sitting in the finder's house, because if the finder is carrying the Aveidah to his house or to the loser's house, he is actually performing a Mitzvah with the Aveidah at the time, and therefore even Rabah will agree that at that moment he has the status of a Shomer Sachar, like the Radvaz writes. (M. Kornfeld)