Q&A: A Kal Va-Chomer with Two Hundred Maneh
A Kal Va-Chomer with Two Hundred Maneh
Question
When studying the topic of kal va-chomer and the rule that we do not derive punishments from logical inference, together with the Mekhilta about one who uncovers and one who digs a pit, the later authorities wonder that the kal va-chomer in the Mekhilta is not a regular kal va-chomer but rather a kal va-chomer of the type called "there is a maneh within two hundred maneh".
But apparently, one could say exactly the same thing about the kal va-chomer in Makkot 5a regarding one's sister's daughter. The Talmud says that from there we learn that we do not derive punishments from logical inference, and the source for this is that the Torah needed to write both his sister's daughter from his father, and his sister's daughter from his mother, and also his sister's daughter from both his father and his mother even though in the last case there is a kal va-chomer from the two previous cases.
And I have hardly seen anyone point out that this kal va-chomer too is of the type "there is a maneh within two hundred maneh". After all, his sister's daughter from both his father and his mother is also at least his sister's daughter from his father, and also at least his sister's daughter from his mother, meaning that in his sister's daughter from both his father and his mother there is already included his sister's daughter from his father and his sister's daughter from his mother, so here too there is a case of "there is a maneh within two hundred maneh".
I wanted to know whether there are those who point this out and I just haven't seen it, or perhaps there is some particular reason why they do not say that this kal va-chomer too is "there is a maneh within two hundred maneh".
Answer
I completely agree. I was always bothered by the Maharsha on this. Maybe one could connect it to the dispute between the Babylonian Talmud and the Sifra that is brought in Tosafot at the beginning of Bava Kamma.
Discussion on Answer
A pit of ten handbreadths is for death, not for damages. For damages, no depth is needed at all; even a banana peel is a pit. Though that still needs a bit of clarification with regard to its vapor. It doesn't seem plausible to me that such a thing would be considered "one who uncovers," and at the very least they should have explained it instead of just casually talking about uncovering. Beyond that, according to your approach there is never really such a thing as a digger in the world, only an opener.
Indeed, I was mistaken.
I'll try to suggest something, and if it has merit it might vindicate the Maharsha's words. In general, digging and uncovering are not because the digger uncovers a cover that is ten handbreadths of earth. Rather, the digger who excavates the pit in the final clod of earth, the one that completes the pit to the required measure, is doing a regular act of uncovering. Removing the final clod is opening, not digging, and it is similar to removing a cover from an existing pit, not to creating a new pit. The measure of ten handbreadths is the measure for a pit with respect to damages, but even without that there is still a pit in the world. And now accordingly: the act of digging done by the digger in all the clods except the last is ancient history, for which he is certainly exempt. In the final act, however, he is only a regular opener, and therefore he should be liable. And why is he not a digger but an opener? Because the pit already exists in the world. And the fact that in the past he moved his hands in digging is irrelevant. But in the case of his sister from his father and mother, he performs one act that is more severe than his sister from his father alone. And in the case of conspiring witnesses who caused an execution, where they are not themselves executed, they now stand before us with the severe act in their hands: they testified falsely and as a result an execution came about. For such a severe act one cannot punish them, because we do not derive punishments from logical inference. In the case of digging a pit, there are two separate acts, digging and uncovering, and the last one is the one that generates liability. In that respect one can wonder about the Mekhilta: why did it choose to infer such a surprising thing, that even in such a case we do derive punishments from logical inference, instead of drawing other conclusions? What do you think? By the way, apparently this passage in the later edition of Maharsha (Bava Kamma 49) is not by the Maharsha but by his son-in-law, the author of Melabeh Daat.