Chovel uMazzik - Chapter 7

As the Rambam explains, he is speaking in this and the following halachah about a person who did not damage his colleague’s article at all, but reduced its value, by causing a halachic difficulty.

For the only laws of damages mentioned in the Torah involve actual damage done to the substance of the article or person involved.

This reduces its value, for people who are ritually pure will not desire to come in contact with it. This refers to ordinary food. If the food is terumah, the loss is far more substantial, for impure terumah is forbidden to be eaten at all and may be used only for kindling.

See Hilchot Terumot, Chapter 13. Produce that is deemed dimu’a may be eaten only by priests while in a state of ritual purity. Thus, instead of the produce being able to be sold at its ordinary price, a major reduction will have to be made, so that it will be purchased by the priests.

See Hilchot Ma’achalot Asurot, Chapter 11, which explains that a Jew is forbidden to derive any benefit from wine used for idolatry.

I.e., because this law was instituted primarily as a deterrent.

E. g., a person touches food without knowing that he had contracted ritual impurity previously.

E. g., a person who is ritually impure is forced to touch food by powers beyond his control.

Generally, a person is liable for the damages he causes, even if he causes them untentionally or inadvertently (Chapter 6, Halachah l). Nevertheless, our Sages did not apply that principle in this instance, because the primary reason for this penalty was to serve as a deterrent, and this does not apply when damage is caused unintentionally or by forces beyond one’s control.

Piggul refers to the slaughter of a sacrifice or the receiving, carrying or sprinkling of its blood, with the intent that the sacrifice be eaten at a time when it is forbidden to be eaten. See Hilchot Pesulei HaMukdashim 13:1-3.

The Ra’avad and the Ramban differ with the Rambam regarding this point and maintain that a priest is not liable in such an instance. The Maggid Mishneh justifies the Rambam’s ruling on the basis of his interpretation of Gittin 53a.

By performing work with either the heifer or the water, a person disqualifies them for this purpose. See Hilchot Parah 1:7, 7:1. Thus, he causes the owner financial loss.

I.e., he sends a red heifer to the place where its mother is working, with the intent that it will nurse, but implicit in his intent is that it will walk together with its mother and thresh while it is nursing. See Hilchot Parah, the conclusion of 1:7.

For when a person who is watching water intended for this purpose diverts his attention, the water is no longer acceptable.

Gittin 53a makes this distinction, for bringing the heifer into the threshing area to nurse is fundamentally a desirable act. It is only the intent of the person that causes the heifer to be disqualified.

When, by contrast, a gentile uses a Jew’s wine as a libation, it becomes forbidden.

Chulin 41a explains that we maintain that the Jew did not actually mean to offer the wine as a libation, but was merely intending to annoy his colleague.

Since his own share of the wine becomes forbidden, we assume that he actually intended to worship the false deity. Hence, his partner’s share is also forbidden.

In which instance, we can assume that he in fact intended to worship the false deity. Hence, the wine is forbidden.

For it is an accepted principle that a person never incurs both capital punishment and financial responsibility for the same act.

The principle absolving a person from financial responsibility when capital punishment is involved applies only when the responsibility for both penalties is incurred simultaneously.
Significantly, although the explanation given by the Rambam here is found in the Talmud (Gittin 53a), the Rambam omits this explanation in his Commentary on the Mishnah (Gittin 5:4) and offers two other resolutions to the question asked above.

The principle mentioned by the Rambam in this halachah, referred to as dina d’gramei, is the subject of much discussion by the commentaries. They note that in Hilchot Nizkei Mammon 2:19 and 14:14, the Rambam frees a person who brings about damage from liability in an earthly court, because he did not cause the damage himself. They refer to such an instance as grama bin’zikin.
Dina d’gramei refers to actions that serve as more direct causes of damage, while with regard to grama bin’zikin, the damage is caused by another force. The person merely makes it possible for the damage to occur. See the Tur and the Shulchan Aruch (Choshen Mishpat, section 386) and the commentaries on those texts.

I.e., the Rambam considers this as a case of dina d’gramei. Tosafot (Bava Kama 26a) differs and considers this an instance of grama bin’zikin. For the person does not do anything that directly caused the utensil to break; he merely removed an object that would have prevented it from breaking. The Shulchan Aruch (Choshen Mishpat 386:3) follows the Rambam’s perspective, while the Tur and the Ramah follow that of Tosafot.

For the person who owned the pillows and the utensil is not obligated to leave his pillows on the ground. The person who threw the utensil acted improperly, and he is the one responsible for the utensil to land without breaking.
The Ra’avad and the Tur differ with the Rambam with regard to this ruling, noting that Bava Kama 26a specifically states that when a person throws a utensil toward pillows, he is not liable, because “his arrows have ceased” - i.e., his actions will not cause damage. The Maggid Mishneh and the Kessef Mishneh justify the Rambam’s ruling, stating that this represents a preliminary understanding that ultimately is not accepted as the halachah.

And they divide the damages between them, for they both acted improperly. The person who threw the utensil had no right to throw it, nor did the person who removed the pillows have the right to remove them.

For since the promissory note is destroyed, its owner cannot collect the debt from the debtor.

Bava Kama 98b states that this law applies when there are no witnesses to testify that a promissory note that had been validated was destroyed. If there are witnesses to that effect, they can have a new promissory note written for the full amount of the one destroyed (Ramah, Choshen Mishpat 386:2).

If the promissory note was not validated, we cannot be certain that the owner of the note would be able to collect his debt.

And claims that he destroyed an ordinary piece of paper.

For there are no witnesses who can testify with regard to the value of the promissory note.

Hilchot Mechirah 6:12; Hilchot Zechiyah UMatanah 10:2. There it is explained that since according to Scriptural Law, the sale of the promissory note does not transfer the debt, the original creditor always has the potential of waiving the loan.

Which was certainly more than Levi paid him for it.

According to the Maggid Mishneh, the intent is that he tells his creditor that the debt will be paid by giving him a particular servant. The lien for the debt becomes centered on that servant alone. See Hilchot Milveh ViLoveh 18:3.

The Ra’avad differs with the Rambam regarding this point, but the Maggid Mishneh justifies the Rambam’s decision.

For once a creditor has accepted an entity as an apotiki, he can no longer expropriate any other property belonging to the debtor. See Hilchot Malveh V’Loveh 18:6.

This would create unfavorable gossip regarding the acceptability of the marriage prospects of the freed servant’s children (Bava Kama 41a.)

Our translation is not a literal rendition of the Rambam’s words, but is rather based on Rashi’s commentary on Bava Kama 98a. This interpretation appears necessary, because if the person had actually pushed the coin itself into the sea, there is no question that he would have been liable for its loss.

Tosafot (Bava Kama 98a) and the Tur differ with the Rambam on this point and on the final clause of the halachah and consider them to be instances of grama bin’zikin. According to their understanding, the person who caused the loss is not liable.
The Shulchan Aruch (Choshen Mishpat 386:1) quotes the Rambam’s ruling, while the Ramah (ibid.:3) follows the perspective of Tosafot.

In its present state, it is not fit to offer as a sacrifice on the altar.

For the coin is no longer as valuable as it was with the imprint.

He does not even bear partial responsibility. Instead, the person who threw the utensil is liable for the full amount (Maggid Mishneh; Shulchan Aruch, Choshen Mishpat 386:4).

As reflected by Hilchot Nizkei Mammon 5:1, this refers not only to an ox that gores others and kills or injures them, but also to one that destroys property.

I.e., a tree that hangs into the public domain and presents a danger. See Hilchot Nizkei Mammon 13:25; Hilchot Sh’chenim 5:1. Today, parallels are very easy to conceive of: a leafy tree at the comer of a busy intersection that prevents drivers from seeing cars approaching from the intersecting street.

A penalty is not exacted for the worth of the tree or the animal, because they were condemned. Nevertheless, since the person was prevented from fulfilling this mitzvah himself, the judges may decide that he should be recompensed.
Sefer Me’irat Einayim 382:1 states that the judges see whether this person is one who is fastidious in his observance of the mitzvot. If he is, we assume that he would have desired to fulfill this mitzvah himself, and a fine is meted out.

The Ramah (Choshen Mishpat 382:1) states that only in this instance is such a claim accepted. See Chapter 5, Halachah 11.

Their blood must be covered, but not that of a domesticated animal. (See Hilchot Shechitah 14:1.)

When, however, the slaughterer gives permission, another person may cover the blood. For this reason, it is common to ask the slaughterer for permission to cover the blood of a chicken used for kapparot, so as to add another mitzvah to one’s merits before Yom Kippur.

Including those mentioned in the previous halachah.

The Shulchan Aruch (Choshen Mishpat 382:1) quotes these two halachot verbatim, without ruling in favor of either approach. It also states that such fines are not imposed by the judges of the present era. Nevertheless, if the person who was prevented from performing a mitzvah seizes money belonging to the person who prevented him, it should not be expropriated from him.

One of the examples given is a person who circumcises a person’s son without the permission of the father (Ramah, Choshen Mishpat 382:1).

When a person steals an article, he is required to return the equivalent of the article that he stole. In this instance, however, the person whose property was damaged cannot tell the person who caused the damage: “Take the carcass or the broken utensil and provide me with a healthy animal and a functional utensil” (Sefer Me’irat Einayim 387:1).
The Siftei Cohen 387:1, however, states that the law stated by Sefer Me’irat Einayim applies only when it is not possible to repair the utensil. If it can be repaired, the person who caused the damage is required to repair it.

See Hilchot Nizkei Mammon 7:8.

To make wine.

If the grapes (or raisins) are more valuable than the wine. See Bava Batra 126a, which implies that wine is generally more valuable than these.

See Hilchot Nizkei Mammon 5:10, which also states that movable property should be expropriated first. Bava Kama 7b explains that movable property is considered to be easier to sell than landed property. Therefore, it is considered to be “choicer” and should be given priority.
Sefer Me’irat Einayim 419:1 writes that the person who caused the damages has the prerogative of giving the person whose property he damaged movable property or landed property, whichever he desires. The Siftei Cohen 419:2 differs and states that according to the Rambam, the Beit Yosef and others, if the person who caused the damages possesses movable property, he must pay in movable property, regardless of whether or not he desires.

Exodus 22:4 specifically mentions that when a person’s ox (or other property) causes damage, he must pay “from the best of his field.” The same principle applies when he causes the damage himself.

See Hilchot Na’arah Betulah, Chapters 1 and 3, for a description of these penalties.

I.e., according to Scriptural Law, the person who caused the damage would not be liable unless there were witnesses who testified on the plaintiff’s behalf. Nevertheless, our Sages instituted this oath for the plaintiff’s benefit, to enable him to collect recompense for the damages that he suffered.

I.e., the claims he made were in keeping with an estimation we would make of his social standing.

See Hilchot Gezelah Va’Avedah 4:1-3.

This is the subject of an unresolved difference of opinion in Bava Kama 62a. Because there is no definite ruling requiring a defendant to pay in such an instance, the Rambam rules that he is not liable.
According to the Rambam, the question debated by our Sages was: Should we say that since the person placed an object in a place where it is not normally kept, the person who caused the damages had no way of knowing that it was there, and therefore he is not liable? Or should we say that since he willfully destroyed property belonging to a colleague, he must bear the responsibility?

The Maggid Mishneh quotes Tosafot as stating that even if witnesses testify that there were pearls in the sack, the defendant is not liable, for it was negligent for him to leave them there. [The Maggid Mishneh himself differs and prefers the position taken by the Rashba, that if there are witnesses who substantiate the plaintiff’s claim, he must be reimbursed for the pearls. The Ramah (Choshen Mishpat 388:1) quotes Tosafot’s position.]

This follows the Rambam’s approach that whenever a plaintiff seizes property concerning which there is an unresolved halachic debate, it is allowed to remain in his possession. The Rambam’s approach is quoted by the Shulchan Aruch (Choshen Mishpat 388:1). The Tur and the Ramah differ and require the property to be returned.

This phrase though missing from the standard printed texts of the Mishneh Torah, is found in manuscripts and in early printings and is logically consistent with the Rambam’s approach.

See Hilchot She’ilah UFikadon 5:6, which cites a similar instance. The defendant is a modeh b’miktzat - he admits a portion of the plaintiff’s claim. Therefore, he is required by Scriptural Law to take an oath denying the remainder of that claim. He cannot take this oath, because he admits that he does not know the number of gold pieces the wallet contained. Therefore, he is required to pay.
This is the Rambam’s position, and it is quoted by the Shulchan Aruch (Choshen Mishpat 388:1). The Ra’avad, the Tur and the Ramah differ and require the plaintiff to take an oath to affirm his claim before collecting.