Tashlumei Nezek and Vulnerability

מיכאל ריטש

ב"ק סד: מאי טעמא דרב דאמר מודה בקנס ואחר כך באו עדים פטור? דכתיב: אם המצא תמצא, אם המצא בעדים תמצא בדיינים, פרט למרשיע את עצמו.

Bava Kama 64b, sugya of מודה בקנס פטור [someone who confesses to damages is exempt from fines]: “What is Rav’s reason ...? It is written (Shmos 22(3)), ‘If he is found [double verb]’: If he is found by witnesses, he is found by the judges - excluding someone who confesses.”

It’s hard to read. “Found by witnesses” means, he got caught as opposed to turning himself in. But what is “found by judges”?

It sounds like it’s saying, he is vulnerable: the judges have access to him to collect the fine. By failing to turn himself in, by getting caught, he laid himself open to the beis din.

It seems to me this is the way that Chazal generally describe collecting damages - even regular damages. When a person harms another, he has trespassed; he has crossed into his neighbor’s רשות, his property. This might be regular property, or might refer to some other aspect of life that we understand should be under his neighbor’s control and not his. By trespassing, he does more than just committing a sin. He has moved himself into his neighbor’s land and his רשות, if only temporarily while the damage is done. Now he is vulnerable. His neighbor can “grab” him.

Perhaps the most famous example are the laws of ממון המזיק, damage done by his property. Almost all these laws assume a division of the world into three regions: רשות המזיק, רשות הרבים, רשות הניזק. In some cases (קרן, בור) the damager is chayav in reshus harabim but not his own reshus. In others (שן, רגל) he will only be chayav in reshus hanizak.

Now we could very well understand all of these by converting these regions into statements about right and wrong, and responsibility (and the gemara indeed often phrases them this way, ...הוה ליה ל). In reshus harabim he is obligated to be more careful with other people’s things than in his own reshus; in reshus hanizak he has to be more careful still than in reshus harabim, where he has a certain level of right to operate.

Still, note that the Torah’s simple description of these rules is that here you are in the nizak’s control, here he has some rights and control, here he has none. The “obligations” can be understood to stem from his ability to collect. If you trespass you are more vulnerable.

The law of גרמא, causation, is פטור מדיני אדם וחייב בדיני שמים: not collectible in beis din even though it is collectable “in the Heavenly Court”. That might be a little hard to understand; if it is “collectable in the Heavenly Court”, the mazik obviously did wrong. He didn’t do wrong enough for the earthly courts to be able to collect? It sounds rather that he did do wrong, but in such a way that the earthly courts can’t touch him. So to speak, he gets off on a technicality.

What defines גרמא? Roughly it is cases where the mazik didn’t interact physically with the nizak. He did cause it to happen, completely, but he wasn’t there. Since his body wasn’t “caught” in the trespass, לא ימצא בדיינים - the courts can’t grab him.

In the case of ממון המזיק, גרמא would means that his own property didn’t interact physically either; he doesn’t get a patur of גרמא if he lets his cow eat someone’s field. The whole idea of ממון המזיק is that his property can act as his proxy by “being there” in the trespass. You can catch him via his cow or his pit. He wasn’t there, but his cow is an extension of him; his property was found in the nizak’s reshus. [Sometimes the din even reflects that cow’s special status, משלם מגופו - you can only collect from the cow itself which was involved.]

This doesn’t just apply for monetary damages.

במדבר לה(כד) וְשָׁפְטוּ הָעֵדָה בֵּין הַמַּכֶּה וּבֵין גֹּאֵל הַדָּם עַל הַמִּשְׁפָּטִים הָאֵלֶּה: (כה) וְהִצִּילוּ הָעֵדָה אֶת־הָרֹצֵחַ מִיַּד גֹּאֵל הַדָּם וְהֵשִׁיבוּ אֹתוֹ הָעֵדָה אֶל־עִיר מִקְלָטוֹ כו'

The law of rotzeich is presented as a din Torah between two claimants. The rotzeiach would like to keep his “blood”, his life. The other claimant, the גואל הדם - representing the nirtzach - would like to collect the blood and the life of the rotzeiach.

The outcome depends on how the murder was done. If it was a complete אונס, an unavoidable accident, the rotzeiach “wins” and is completely off the hook. If he did it במזיד, on purpose, the goel hadam wins and is allowed to collect the rotzeiach’s nefesh. And if the murder was done בשוגג, accident/carelessness, יחלוקו - they split the difference. The rotzeiach’s is protected but he must go to an ir miklat, a city of refuge.

One could explain these results in terms of the culpability of the rotzeiach. Was he completely free of responsibility? - no penalty. Was he completely responsible? - a full penalty. Or was he partially responsible? - a partial penalty.

But one could also explain it like this: The rotzeiach has trespassed into the most intimate domain of the nirtzach - his life. He trespassed with his own body when he committed the murder. Therefore his own life is on the line. But it depends on how complete the trespass was.

Was it only his body, but his will, his desire, was completely uninvolved? You can’t take a person’s life away if his own nefesh was not involved in the crime.

Was the person’s nefesh completely involved? Then the nefesh is completely vulnerable, and the penalty takes it away and gives it to the goel hadam.

Was the act done בשוגג - in other words, the nefesh was connected and not connected? Then it is only vulnerable to a limited extent and can only receive a partial penalty.

Now, I haven’t given any reason to understand these laws in the second way; I’ve only described how they would be presented accorded to that picture. But there is a gemara that I think uses this picture - I found it unreadable any other way:

מכות יב• ת"ר אם יצא יצא הרוצח. אין לי אלא במזיד, בשוגג מנין? ת"ל אם יצא יצא, מ"מ. והתניא במזיד נהרג, בשוגג גולה. לא קשיא כו' אמר אביי: מסתברא כמ"ד כו' שלא יהא סופו חמור מתחלתו. מה תחלתו במזיד נהרג בשוגג גולה, אף סופו במזיד נהרג בשוגג גולה עכ"ל

Makos 12a: “The sages taught, ‘If the rotzeiach leaves the ir miklat, [he dies]...’ - I only know if he left במזיד; how do I know if he left בשוגג?... But a ברייתא says, במזיד he dies, בשוגג he goes [back] into golus... Abaye says, [the second opinion] is more logical: His later judgment should not be worse than his earlier judgment. Originally, if the murder were במזיד he would die, בשוגג he would go into golus. So too here at the later judgment, במזיד he dies and בשוגג he goes into golus.”

Abaye’s point is very hard to understand. What do the “earlier judgment” and the “later judgment” have to do with one another?

Try it like this. When the murder was committed, the rotzeiach entered the reshus of the nirtzach, trespassed into his life. His judgment then depended on whether he entered במזיד or בשוגג. Since it was שוגג, his own nefesh was divided, so to speak: His world was separated into two reshuyos. Inside the ir miklat was his reshus, outside was now the reshus of the nirtzach, of the goel hadam. Outside, “אין לו דם” - he had no nefesh, no right to live.

When he did go outside, what he did was essentially a re-enactment of the murder. Once again he entered the reshus of the nirtzach, put his own nefesh in a vulnerable place. So Abaye says that it shouldn’t be worse than the original murder, and he should only lose his nefesh if he entered completely. כנלע"ד וה' יאיר עיני.

[This same presentation can be used for non-damages like חטאת for chilul Shabbos as well. If he sinned with his whole soul, his whole self is vulnerable to a חיוב מיתה. If only partially (שוגג), יומת בממון (Shabbos 70a) - only his possessions, his extended self, are vulnerable.]

עדים זוממין is a unique type of damages, where the witnesses use the legal system as a weapon against a nizak. The Torah prescribes (D’varim 19(19)): וַעֲשִֹיתֶם לוֹ כַּאֲשֶׁר זָמַם לַעֲשֹוֹת לְאָחִיו, “You shall do to them what they planned to do to their brother.” Their damages are set by the damage they tried to do - that is how vulnerable they are.

And the Torah insists on this: עדות שאי אתה יכול להזימה לא הויא עדות, testimony which cannot be turned around is invalid (Bava Kama 75b and other places). Witnesses must make themselves vulnerable in order to be valid witnesses. They must put themselves on the line in court for whatever they threaten to do with their testimony.

See Rashi in Parshas Mishpatim on the verse (Shmos 22(8)) אֲשֶׁר יַרְשִׁיעֻן אֱלֹהִים יְשַׁלֵּם שְׁנַיִם לְרֵעֵהוּ - “whichever one proves false, pays double to his fellow”:

שמות כב(ח) רש"י בא"ד עד הדיינין יבא דבר שניהם, ויחקרו את העדות, ואם כשרים הם וירשיעוהו לשומר זה, ישלם שנים, ואם ירשיעו את העדים שנמצאו זוממין, ישלמו הם שנים לשומר עכ"ל.

Rashi: “The matter of the two of them comes to the judges - they examine the witnesses. If they are true, this guardian is wrong and must pay double. And if the witnesses are proved false, they pay double to the guardian...”

The Torah’s description of testimony includes their vulnerability.

משלי ו(ב-ג) נוֹקַשְׁתָּ בְאִמְרֵי־פִיךָ נִלְכַּדְתָּ בְּאִמְרֵי־פִיךָ: עֲשֵֹה זֹאת אֵפוֹא ׀ בְּנִי וְהִנָּצֵל כִּי בָאתָ בְכַף־רֵעֶךָ כו'

Mishlei 6(1-3): “If you are trapped by your words... Therefore do this, my son, to be saved, since you came into your fellow’s hand...”

יומא פז• ז"ל אמר רבי יצחק: כל המקניט את חבירו, אפילו בדברים צריך לפייסו, שנאמר כו'

The verse in Mishlei says that if a person has upset another, he is now vulnerable; the other has now “trapped” him.

[I’d like to note that this article is a little unusual for me, in that it presents a “lomdishe chakirah” without an obvious נפקא מינה. All I am trying to suggest is that a number of sugyos read more easily if you look at things this way.]