This week’s Parsha Parshas Mishpatim is primarily a Parsha of Mishpitai
Hatorah 21:1 (וְאֵלֶּה, הַמִּשְׁפָּטִים). This week’s Parsha has 53
Mitzvos in the Minyan Hamitzvos. Of those 53 not all are Bain Adam
L’chaveiro. Not all of the Mitzvos are Mishpatim. It is interesting that
the Chasam Sofer writes (וְאֵלֶּה, הַמִּשְׁפָּטִים) of the 53 only 42
are Mishpatim which is Gematria (וְאֵלֶּה).
Many of these Mitzvos are in Maseches Bava Kamma which Yeshiva is
learning this year and many of you have learned it in Yeshiva a number
of years ago. So today, we will have a special edition of getting ready
for Shabbos. I am going to present you with a list of Shailos of Bava
Kamma Shailos. These will not be complicated ones. These will be ones
that touch on the basic Yedia (a piece of knowledge) that anybody who
learned Bava Kamma would know, but as you know we are very very far from
being able to apply it as a Halacha L’maiseh unless it is pointed out
to us. And so, let me begin the 5 Shailos.
1. This is a Shaila that took place. A man paid a debt to another
man, this was one Yid to another Yid and he paid him cash. The next day,
the person who received the money came back to the one who gave it and
said that one of the $100 bills that he had received from him was
counterfeit. He had gone into a store to change it and he was told that
it is counterfeit. He checked in the bank and indeed one of them was
counterfeit. Therefore the person who received the payment is demanding
payment from the one who paid because he says the $100 that you gave me
is no good and therefore, you still owe me a hundred dollars. What is
the Halacha, does he have to pay? This is an application of the
well-known Sugya in a number of places in Seder Nezikin of Bori V’shema.
The person who is claiming the money says that he is certain that the
money that is counterfeit is from the money that he received. The one
who paid it doesn’t know. Is it true that the $100 that was counterfeit
was the one that he gave? He has no way of knowing for certain. We
Pasken Bori V’shema Lav Bori Odif. That when there is a Bori and a Shema
the Bori can’t be Motzi Mamon (meaning he can’t demand payment from the
Shema) because the Shema doesn’t have to pay. Still it says in Shulchan
Aruch that Latzeis Yidai Shamayim, It is better to pay if you trust the
person who is demanding payment. Therefore, in this case, someone who
wants Latzeis Yidai Shamayim should pay. However, Mai’ikur Hadin it is
Bori V’shema Lav Bori Odif. A Bori can’t be Motzi Mamon, he can’t demand
payment. It is a simple application of a Yesod that we all learned in
the Gemara.
2. Somebody was sitting in a Shul Davening and there was a nail
sticking out of the bench on which he was sitting. He ripped his suit.
He went to the Rav who owned the Shul, it was a Shul in someone’s house
and demanded payment. He said that it is a Bor Birshus Harabim. After
all, a Shul is a public area because people come and go and it is a Bor
Birshus Harabim and he ruined his suit because of the Rav’s negligence
of having a bench with a nail sticking out. What is the Halacha? As you
all know Bor is Pattur on Kailim because of the Drasha of the Posuk
21:33 (וְכִי-יִפְתַּח אִישׁ בּוֹר, אוֹ כִּי-יִכְרֶה אִישׁ בֹּר--וְלֹא
יְכַסֶּנּוּ; וְנָפַל-שָׁמָּה שּׁוֹר, אוֹ חֲמוֹר) is Shor V’lo Adam and
Chamor V’lo Keilim. The Gemara that Darshuns this Posuk is found on 53b
(6 lines from the bottom) (נפל לתוכו שור וכליו ונשתברו כו': מתניתין דלא
כר'יהודה דתניא ר"י מחייב על נזקי כלים בבור מאי טעמא דרבנן דאמר קרא ונפל
שמה שור או חמור שור ולא אדם חמור ולא כלים). So even if it true that the
bench is a Bor Birshus Harabim, however, ripping the suit which is an
object is excluded from the payments of Bor. If you remember when we
learned Maseches Bava Kamma in Yeshiva I pointed out that if someone
were to go to Ocean Parkway and dig a huge whole in middle of the street
with a jackhammer and stand at the side giggling and waiting for a car
to come through, fall right into the hole and the car would be totaled,
Al Pi Din the person who dug the Bor is Pattur because of the Miut in
Dinai Bor of Shor V’lo Adam and Chamor V’lo Keilim. Even though it is a
Chok and we don’t understand the reason why it should be so, but Bor is
Patur on Keilim.
3. This Shaila happened to someone in the class when we learned
Bava Kamma 2 cycles ago. He was a tenant in an apartment in a lower
floor of a 2 family or 3 family house. One day when he was in Yeshiva, a
water pipe that was in the ceiling burst. No one was home. The water
came cascading out soaking and ruining the couch and the carpeting. The
landlord was settling with him to pay him for his losses and they had a
dispute over how much to pay for the couch. The landlord said it was a
used couch and I only have to pay a partial value. The tenant said what
do you mean, I can’t buy a partial couch. I have to buy a new couch so
pay for the amount of a new couch. They decided that they would ask me.
This young man in Yeshiva asked me the Shaila. I responded that we had
just learned a Gemara on Daf 6b in Bava Kamma (3rd line from the top)
(רבינא אמר לאתויי הא דתנן הכותל והאילן שנפלו לרה"ר והזיקו פטור מלשלם
נתנו לו זמן לקוץ את האילן ולסתור את הכותל ונפלו בתוך הזמן והזיקו פטור
לאחר הזמן חייב) that Kosel V’ilan Shenafla L’rishus Harabim the Bailim
are Pattur. The Halacha is that even though Adam is a Muad L’olam (if a
person does damage he is responsible for those actions), however, if his
Mamon (objects) does damage, if someone is an Ones (guiltless) he is
Pattur. If somebody has a perfectly good wall and over the years it gets
old and one day it collapses and ruins somebody’s car or damages
somebody’s animal he is Pattur. This is because an Ones is Pattur (הכותל
והאילן שנפלו לרה"ר והזיקו פטור מלשלם).Unless there was a prior history.
Meaning there was a warning that there was a water leak. But here where
there was no such warning the person asking the Shaila doesn’t get a
full couch or even a partial couch. The Bal is Patur L’gamri. I might
add that this third Shaila would apply to the second as well in the case
of the bench in Shul. If the owner of the bench was guiltless and it
just so happened that a good bench over time had a nail that started to
protrude, then he too is Pattur for this reason. We learned 3 Klallim in
a few minutes. The rule of Bori V’shema Lav Bori Odif, the idea of
P’tur Keilim Min Habor, and now the idea of Kosel V’ilan Shenafla
L’rishus Harabim that even though Adam Hamazik we say Adam Muad L’olam,
however, when it comes to Mamon Hamazik, someone’s property, then there
is no such rule.
4. This one will most probably be the most confusing to everybody.
Somebody takes a torch and goes over to someone else’s house and lights
his curtains and carpeting and the whole house was burned down. In the
house there was money that was hidden in a very unlikely place. Maybe in
the tank of a toilet or some other unlikely place that a person would
think of hiding money. Does the arsonist have to pay? The Gemara says
that Aish is Patur on Tamun. Something hidden in a house that is burned
and a person would be Chayuv for Aish, Tamun is Pattur. Many of you are
thinking that this is a trick question because you all know that Tamun
is Pattur. Well, I have to explain something to you. If you remember in
the second Perek there is a Sugya of Aisho Mishum Chitzav. This can be
found on 22a (6 lines from the top) (אתמר ר' יוחנן אמר אשו משום חציו
וריש לקיש אמר אשו משום ממונו). Today, Yeshiva Bachurim learn Bava Kamma
the whole year for much time in the morning and Chazeir the Shiur in the
evening but they don’t know what Aish actually is. We Pasken that (אשו
משום חציו) Aisho Mishum Chitzov which means that just like when a person
takes a hammer and breaks someone’s window that is called Adom Hamazik
and not hammer Hamazik. The (Adam) human being who did damage used the
tool. We Pasken the same thing regarding a fire. If someone takes a fire
and torches someone’s building that is Adam Hamazik and not Aish and is
Chayuv on Tamun. The Gemara explains the case of Aish is really rare.
We need a case of (כלו ליה חציו) Kalu Lo Chitzav which the Gemara
explains as follows. The Gemara on 23a (2 lines from the top) says (אמר
רבא קשיא ליה לאביי למ"ד אשו משום חציו טמון באש דפטר רחמנא היכי משכחת לה
וניחא ליה כגון שנפלה דליקה לאותו חצר ונפלה גדר שלא מחמת דליקה והלכה
והדליקה והזיקה בחצר אחרת דהתם כלו ליה חציו אי הכי לענין גלוי נמי כלו ליה
חציו אלא למאן דאית ליה משום חציו אית ליה נמי משום ממונו וכגון שהיה לו
לגודרה ולא גדרה דהתם שורו הוא ולא טפח באפיה וכי מאחר דמאן דאית ליה משום
חציו אית ליה נמי משום ממונו מאי בינייהו איכא בינייהו לחייבו בארבעה
דברים) when someone torches someone’s house wherever the fire travels it
is like his arrow and it is Adam Hamazik. However, if at the time he
torched it there was a wall that would have prevented the fire from
spreading and subsequently that wall fell down, Kalu Lei Chitzav (the
person’s arrows have ceased) it is a place where his arrow could not go
at the time he lit the fire. If he was negligent in not preventing the
fire from travelling further, only there does it have a Din of Aish. So
again, a very basic idea but something not well known that Aisho Mishum
Chitzav (arrows). I have reminded you as of now of 4 Sugyos that
hopefully sound familiar from your years in Yeshiva.
5. A person stepped into a car service in the neighborhood and as
he was riding to his destination he noticed on the floor an envelope
which he picked up and it contained a large amount of cash which he
quietly slipped in to his pocket. Then he called me. His question was
the following. We learn out of this week’s Parsha 22:3 (אִם-הִמָּצֵא
תִמָּצֵא בְיָדוֹ), the Gemara on 64b (bottom line to top of 65a) (והאי
אם המצא להכי הוא דאתא הא מיבעי ליה לכדתניא ידו אין לי אלא ידו גגו חצירו
וקרפיפו מנין ת"ל אם המצא תמצא מ"מ א"כ לימא קרא או המצא המצא או תמצא תמצא
מדשני קרא ש"מ תרתי) learns from here Kinyan Chatzeir that a person can
acquire something without his knowledge if the Hefker item is in his
Chatzeir (in his property). It doesn’t have to a courtyard or a house it
can even be in a car or in a Keili, anything that a person owns. The
question is, is this car service owner or perhaps the owner of the car
that was driving perhaps be the owner of that cash. Why? That cash was
in his Chatzeir, it was in his car and it had become Hefker when the
owner realized he lost it and was Miyaeish. Therefore, it should be his.
Or if it is a type of Aveida that you don’t have to return such as that
of a non Jew then it should transfer to the ownership of the driver of
the car or the owner or the car with Kinyan Chotzeir. Is he Kone with
Kinyan Chotzeir or not? Well my time is very limited for today but I
will introduce you to a beautiful and Geshmake Teshuva in the Igros
Moshe, Choshen Mishpat Cheilek Bais Teshuva 44. This is a great Teshuva
to learn especially for this week’s Parsha. There we find a Shaila that
came to Rav Moshe of someone who found an envelope of cash in a bank
vault. It is the same Shaila, was the bank Kone or is it his? Rav Moshe
makes the unlikely argument that a bank vault is a Chotzeir She’aino
Mishtameres. The only time that a Chatzeir is Kone is a Chotzeir
HaMishtameres, a Chotzeir which is safe and which is guarded for its
owner. A Chotzeir that people come and go is called a Chotzeir She’aino
Mishtameres and is not Kone. That is the short answer of the Shaila here
regarding the cab. Although Rav Moshe has a very interesting insight
into this whole discussion.
And so with these few minutes I hope we have Chazered 5 old friends: 1)
Bori V’shema Lav Bori Odif, 2) the idea of P’tur Keilim Min Habor, 3)
the idea of Kosel V’ilan Shenafla L’rishus Harabim that even though Adam
Hamazik we say Adam Muad L’olam, however, when it comes to Mamon
Hamazik, someone’s property, then there is no such rule and Ones is
Pattur by Mamon Hamazik, 4) The case of Tammun, Aisho Mishum Chitzov,
and now 5) the idea that a Chatzeir needs to be a Chotzeir HaMishtameres
and you can look it up in the Igros Moshe for a more in depth analysis
of Chotzeir HaMishtameres
