Question

Hello Rabbi, this evening I happened to be learning a passage from Nachmanides’ treatise on liability for indirect damage, and in the course of learning a question came up for me. I don’t know if this is the right place or time, so if it goes beyond the limits of the Rabbi’s time that is completely understandable, but if not I’d be very glad to receive either an answer or some directions for thinking about it. Also, in the spirit of the last column that was published, I feel relatively comfortable sending the Rabbi a question that touches more on Talmudic give-and-take than on philosophical analysis.
Nachmanides, at the beginning of the treatise, discusses at length the Babylonian Talmud’s proof in Bava Kamma (100a) that Rabbi Meir rules liability for indirect damage. The center of the discussion revolves around the famous baraita of “a vineyard partition that was breached.” In chapter 2, Nachmanides deals with the question why a vineyard that grows and spreads toward the neighbor’s field is different from an ox that gored and caused damage; after all, in both cases we are dealing with one’s property that caused damage, for which the owner bears responsibility. The answer adopted by Nachmanides is Rabbi Isaac’s answer, according to which the novelty of the damage in the baraita is that it depends on the person’s intent. For the Jewish law of kilayim is that so long as the person has not given up on removing the vine from the field, the prohibition of mixed species does not take effect, even if the field increased by one part in two hundred. Nachmanides then discusses another answer of the medieval authorities (Rishonim) to this question, claiming that the difference is that the damage is defined as indirect damage rather than direct damage, since the damage is only a result of the prohibition and not actual physical damage. In other words, indirectly, through the grain becoming prohibited, it is left with no use and the field owner is harmed. One of Nachmanides’ claims against this explanation is that it is hard to accept, because in the Mishnah in Kilayim brought earlier in the passage in Bava Kamma as well — one who spreads branches over his fellow’s grain — there too the damage is created indirectly through a prohibition, yet the Talmud itself was not willing to accept that as proof that Rabbi Meir rules liability for indirect damage. From here it follows that the fact that damage is caused because of a prohibition does not make it indirect damage. That is certainly a persuasive proof, except that on a simple reading it also raises difficulty for the explanation Nachmanides chose to adopt. After all, in the case of one who spreads branches by hand as well, the prohibition does not take effect immediately. As long as there is no further growth of the field, there is no prohibition of kilayim. And what happens if after spreading the branches the owner regrets it and wants to remove the covering? Would the prohibition of kilayim still take effect then? If we say no, it turns out that dependence on the owner’s intent also cannot serve as a criterion for indirect damage, since it too appears in the Mishnah that was rejected by the Talmud.
The obvious conclusion is — and this is what my wife also said — that one has to say that when a person spreads branches by hand, the act creates a sufficiently strong finality of intent that prevents him from retracting. To sharpen the point: I am not talking about a case where the person removed the vine before the grain had time to grow; in such a case it is obvious that there is no prohibition of kilayim. I mean to ask what the law would be in a case where the person spread the branches, regretted it a moment before the growth, but did not manage to stop the growth. So physically a mixture between the species was created, but from the standpoint of the person’s intent there was no finality of intent. The difficulty in accepting this conclusion is that it seems to be a quantitative and somewhat arbitrary distinction. From the Jerusalem Talmud on this Mishnah it is a bit hard to infer precisely, and in any case according to the Jerusalem Talmud it can be learned that Rabbi Meir does impose liability for indirect damage precisely from this Mishnah, unlike the Babylonian Talmud, which may make it somewhat harder to draw an analogy from the Jerusalem Talmud to our question.
Alternatively, one could say that in every case, once there is finality of intent, the person can no longer retract, even when the vine spread on its own. It is not sufficiently clear what the Mishnah in Kilayim means: “One who sees vegetables in a vineyard and says, ‘When I reach it I will pick it,’ it is permitted. ‘When I return I will pick it’ — if it increased by one in two hundred, it is prohibited.” If he said, “I will return and pick it,” and it increased by two hundred, he is liable. But if he said, “I will return and pick it,” and before it increased by two hundred he turned around, and a moment before he managed to pick it it increased by two hundred — what is the law?
Now that I think about it, in your answer you can fill the role of the Orthodox rabbi and the secular rabbi at the same time: both giving guidance on Talmudic-halakhic questions, and settling a dispute between husband and wife.
Thanks in advance. I hope I’m not wasting the Rabbi’s time with empty Talmudic hair-splitting.