Tuesday, September 2, 2008

Tuesday's Thoughts on the Daf - Gittin 53

Gittin 53 continues a discussion which began with the mishna on Gittin 52b dealing with fines which were imposed for damaging another person's property. The focus of the discussion is an analysis of whether damage which is not recognizable to the human eye (hezek she'ayno nikar) is considered damage or not.

Within the context of the discussion, the gemara mentions Chizkiah's position that if the damage is not recognizable, it is still considered damage. The gemara then asks why according to the mishna on 52b, a person who accidentally damages the property (by being mitamei, or menasech or making it midama) is not required to pay while the person who does so on purpose must pay. The gemara answers that a person who does so accidentally might be dissuaded from owning up to his actions if he was required to make payment and admit his negligence, therefore he is exempted from payment where the damage is not recognizable so as to give him an incentive to admit his mistake. On the other hand, a person who does the action on purpose does not need this reason because (according to Rashi d'h L'tzarueh) he wants the other person to know that he damaged that person's property.

The gemara later attempts to prove that the imperceptible damage is still damage (and thus must be reimbursed) by making reference to a situation where a Kohain has piggul thoughts (an intention to eat the sacrifice beyond its permitted time) when the sacrifice is offered. The gemara teaches that the priest who does this on purpose must make payment to the individual who wanted to bring the sacrifice. Rashi (d'h Chayavim) explains that this is equally applicable whether the sacrifice was obligatory or voluntary. Rashi notes that if the sacrifice is obligatory, the individual will have to bring another sacrifice in order to fulfill his obligation and the Kohain must make him whole by reimbursing him for the animal. Rashi also explains that if the sacrifice is voluntary the Kohain must still make reimbursement, because otherwise the person will refrain from making voluntary sacrifices if he knows that there is a chance that the sacrifice will be voided by the Kohain's intentional malfeasance.

On 53b, the gemara tries to tie a dispute between R' Yehuda and R' Meir to the issue of whether or not fines are imposed for unintentional acts so that a person will not come to act intentionally. As part of this discussion, the gemara mentions two situations involving R' Yehuda, one in which a person mixes regular produce with terumah produce (thus creating a meduma mixture) and another scenario where a person bakes on shabbos. In the meduma example, R' Yehuda says that the accidental mixing of another's property is not compensable, but if it was done on purpose it is compensable. In contrast, R' Yehuda says that if a person baked on shabbos, whether or not on purpose, the food cannot be eaten on shabbos. In the former situation (meduma) we say that a fine is not imposed for accidental conduct because we do not seek to prevent intentional conduct, whereas in the latter situation (shabbos) we are seeking to avoid any intentional conduct and will penalize someone for accidental conduct as a mechanism of further insuring that there will not be intentional violations. In explaining why according to R' Yehuda there is a difference between meduma and shabbos, the gemara offers an explanation that shabbos is a Biblical prohibition so we look to avoid violations at all costs. However, since meduma is Rabbinic in nature, we don't need to impose an additional fine to prevent intentional conduct.

Tosafos (d'h B'Doraisa) asks the following question on this answer - why do we absolve the Kohain from making restitution for making the sacrifice piggul? Isn't this also a Biblical prohibition? Yet, we do not impose a requirement to reimburse the other person if the piggul is accidental! Tosafos answers that if we were to fine the Kohain for accidental piggul and make him reimburse the offerer every time that the Kohain errs, the Kohain will simply refuse to bring sacrifices.

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