Q&A: The Principle of “It Just Doesn’t Sit Right” (Column 447)
The Principle of “It Just Doesn’t Sit Right” (Column 447)
Question
To the Rabbi,
A. Regarding the boy who smashed his friend’s idol. Without getting into the core of the issue itself, seemingly he should be exempt under the law, as explained in the Shulchan Arukh (Choshen Mishpat 266:4), that it is permitted to kill another person’s cat if it is harming the public. And the Yam Shel Shlomo wrote (Bava Kamma ch. 7, sec. 37): “In any case, if someone now killed another person’s white cat, or a black one descended from a white one, we do not obligate him monetarily because of the doubt, since he acted because of danger to life, and thought that he was permitted to kill it. Nevertheless, he must accept upon himself a rabbinic oath that this was indeed his intention, and then he is exempt. But if he acted out of spite and to harm him, he is liable, like anyone else who damages another’s property.” End quote. And in our case, since the plain meaning of the language of the halakhic decisors is that every idolatrous image should be broken, this one acted properly in breaking it.
B. The supervisor in the yeshiva separated his student from an “offense” that had entered his institution, for it is clear that part of his responsibility toward his student is to separate him from wrongdoing, according to his judgment (authority that was granted to him by the student himself, who shelters under the wings of the institution). Incidentally, separating someone from prohibition is the duty of each and every person, and it is mentioned in the Shulchan Arukh in many places (Yoreh De’ah 303, 267, 242; Choshen Mishpat 421:13), and see Netivot HaMishpat (sec. 3, subsec. 1). And certainly this is so regarding someone who is in another person’s house (or institution), as explained in the Tur (Orach Chayim 170), which cites the story brought in Derekh Eretz Rabbah (ch. 6): “An incident involving Rabbi Shimon ben Antafras, to whom guests came, and he decreed that they should eat and drink, but they were making vows and oaths, so he had them flogged.” End quote.
In any case, by your giving the book to that student, despite knowing where things were headed, there is a strong presumption that you agreed that if he were “caught,” you would lose your book — and that is precisely a case of knowingly abandoning property. However, the student himself may perhaps be obligated to pay you, and one could analyze the words of the Shulchan Arukh (Choshen Mishpat 340:3): “If one borrowed an animal from his fellow to travel on a known road, and robbers or wild animals came upon him on that road and took it from him by force, this is considered properly as ‘it died through its work.’” End quote. And see the comments of the halakhic decisors there, though this is not the place to elaborate. In addition, the supervisor has no obligation whatsoever (from the standpoint of monetary law) to believe you that you are the owner of the book, and there is a presumption that whatever is in a person’s possession is his.
C. Regarding the halakhic concept (!) that Your Honor invented: “it just doesn’t sit right.” I would like to challenge Your Honor: if, Heaven forbid, you are correct, then many laws of our holy Torah are nullified. For example: a daughter’s inheritance; indirect damages; payment from the best-quality property (even with bran); exemption when the owner is with him; the status of a mamzer (the mamzer is not to blame!); a raped woman being forbidden to her husband if he is a priest; frightening another person and causing him to go deaf (for which one is exempt); liability of one who benefits by stuffing food into another person’s throat; the lower level of guarding required for an ox with prior offenses and the higher level required for an innocuous ox; a pit being exempt for damage to vessels — and thousands more…
Rather, since the opinion of the earthly human being is shaped by what he has seen and read, his opinion is not decisive; and the social conventions change from generation to generation. Therefore our determination can be given only over to the divine law that was given at Sinai.
Answer
A. In my opinion there is no exemption here. We are talking about clear physical damage, not a doubtful concern about spiritual damage (and this is not dependent on the dispute between Rashba and the Beit Yosef whether one desecrates the Sabbath because of a concern that someone may be driven into apostasy). If I damage my friend’s pork out of concern that he may come to eat it, I am liable to pay him. True, if he is actually on his way to eat it, then perhaps this can be done under the law of coercing observance of the commandments. And that is certainly so regarding the case of the book, which in his view was forbidden and in my view was not. But that is with regard to the book case. As for the case you describe here (smashing an idol), I agree that he is exempt from payment, since the Torah itself said to smash the idol, so this is coercing observance of the commandments, and of course there is no obligation to pay. I don’t recall having written otherwise. And regarding the cat: if he had the ability to check, he has no right to kill based on his own assumption. By simple logic, it is obvious that this refers to a case of pursuit, when there is no time to wait for clarification. And of course there too we are talking about physical damage; and with regard to a monetary pursuer, Maimonides already wrote in the Laws of One Who Injures and Damages (and see also ch. 11 of the Laws of Theft) that he is exempt.
B. The supervisor can at most confiscate the book from the student, but he is liable for damaging it. The supervisor also did not know what I knew or did not know. Beyond that, even if I did know, that has absolutely nothing to do with exempting the supervisor or with the law of knowingly abandoned property. You assume that he is permitted to destroy the book, and now conclude that this is knowingly abandoned property?! Obviously separating someone from prohibition is a duty on every person, but from where do we derive that one may destroy my property in order to separate someone else from what in your eyes is considered a prohibition? That’s twisted. And if in your eyes this supervisor is comparable to robbers and wild animals, then we have no disagreement. As for his obligation to believe me, I will allow myself to leave aside this foolish argument.
C. See the answer I just now wrote to Reuven’s question here: https://mikyab.net/posts/74875#comment-58621
Discussion on Answer
A. He thought there was danger, otherwise what is a cat that is fit to be killed? The fact that someone thought something was permitted when it is forbidden, or vice versa, does not exempt him from anything. He should go study. If someone thinks it is permitted to cause damage, is he exempt? But I already wrote that regarding breaking the idol he is certainly not obligated to pay, not because he thought it was permitted but because it really is permitted (and even obligatory). So what exactly is the discussion about?
B. I already answered that, and I see no point in repeating myself.
And if the supervisor claims that nothing of the sort ever happened, or that the book is not in his possession, then he too is exempt. What does that have to do with the discussion? Indeed, one can lie and win a case. Is that some great novelty? If a borrower falsely claims that he never borrowed, then he is exempt. So what?
C. As I showed correctly, it exists in all directions. The fact that there are stringencies one ought to observe even without there being a legal obligation is nothing new.
A. That is the Maharshal’s novelty: that something ruled as Jewish law, even if in the specific case it does not apply — such as where that particular cat was not dangerous at all; look carefully at the Maharshal there — nevertheless, the one who erred is exempt, since he acted in accordance with the accepted ruling; examine this carefully. That is unlike an ordinary mistaken person who simply did not know the Jewish law.
B. We are not dealing with wicked people. I said that the supervisor is not obligated under monetary law to believe the student that the book is not his, and therefore he will be exempt, as stated.
To the Rabbi,
A. You did not understand my words properly. The law about killing a cat was also said in a place where there is no danger at all to the one doing the killing (for if there were, there would be no need for the enactment and it would be obvious). Even so, the Maharshal exempted the killer even if he killed a cat that was not one that should be killed at all (see his words there), and the reasoning of his words is that he saw fit to exempt him because the killer “thought that he was permitted to kill it,” and he based his words on the Talmud and Jewish law. Therefore, even though this act was ultimately not justified, since he killed a cat that was not dangerous, nevertheless he is exempt. The same applies in your case, since the one who smashed it thought he had to break the idol, and his reasoning is based on the words of the halakhic decisors. If so, even if some sage would want to say that fundamentally this idol had already been nullified, nevertheless the one who broke it is exempt, since his reasoning was founded on the law; examine this carefully.
B. A yeshiva student who enters the yeshiva accepts the authority of the yeshiva, which includes confiscating objects that are not in the spirit of the yeshiva and its worldview. (And one could discuss whether the authority extends only to confiscation or also to causing damage.) In any case, since you certainly knew that the borrower was a yeshiva student, and that he might be “caught,” and that the borrowed object might even be damaged by the yeshiva administration — which, as stated, you clearly knew was opposed to it — and the administration’s reasoning, that this object is one regarding which there is an obligation to separate from prohibition (which binds every single person, and certainly the administration), does not create any exception to the lender’s presumed intent; this is obvious. Giving the object into the student’s hands is knowingly abandoning property, and the view of the Rema is that this makes it actual ownerless property (see Shulchan Arukh, Choshen Mishpat 261:4) and the commentaries there at length. I also added that the student himself may be liable, and the issue in Choshen Mishpat 340 can be analyzed.
As for what you said about my claim that he is not believed that the object is his: my intention is that under Torah law, if the supervisor makes such a claim, his claim would be accepted. See a very close parallel in Choshen Mishpat 99:1 and the commentaries there at length. There is also a discussion of this in the responsa Divrei Chaim regarding someone who betrothed a woman with a ring, and the seller claimed that he had given him a ring that was not his own; the conclusion there is that he is not believed, but this is not the place to elaborate.
C. It should be noted regarding the basis of “it just doesn’t sit right” that in my humble opinion it exists as a stringency, as we see from the concept of “a scoundrel within the bounds of the Torah.” And see the story in Gittin 58 about the carpenter’s apprentice, etc., and the glosses of Rabbi Yaakov Emden there, who wrote that from the words of the Talmud we see that there is a terrible prohibition such that even though it is not written explicitly, it is still a grave prohibition; see there.