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BAVA METZIA 62

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1) WHOSE LIFE COMES FIRST?
QUESTION: Rebbi Elazar derives from the verse, "v'Chei Achicha Imach" (Vayikra 25:36), that Ribis taken unlawfully must be returned "so that the borrower will be able to live." Rebbi Yochanan disagrees and maintains that the verse teaches a different Halachah, the Halachah expressed in the Beraisa. The Beraisa teaches that if two people are traveling in the desert and one of them has a flask of water, but it contains only enough water to enable one of them to reach civilization alive, Ben Petura rules that it is better for them to share the water even though neither one will survive, rather than to have one of the drink all of the water and watch the other person die. Rebbi Akiva disagrees and derives from the verse, "v'Chei Achicha Imach," that one's own life takes priority over the life of his fellow man, and therefore the owner of the flask should drink the water and live.

The Beraisa implies that without the verse "v'Chei Achicha Imach," logic would support the ruling of Ben Petura. The reasoning for this is that as soon as the other person is about to die of thirst, the owner of the flask would be required to give him enough water to keep him alive because of the Mitzvah of "Lo Sa'amod Al Dam Re'echa" (Vayikra 19:16), the injunction not to let one's fellow man die. The owner of the flask would then take a drop of water for himself to prevent himself from dying, but he would need to leave over whatever he does not immediately need so that he could help the other person remain alive.

TOSFOS in Sanhedrin (73b) and elsewhere writes that although a person must give up his life rather than kill another Jew, if he is faced with an option of refraining from doing an action and thereby causing another Jew to die, he is not required to give up his life, and he indeed may refrain from the action. The Halachah of "Yehareg v'Al Ya'avor" applies only when a person is asked to do an action which will kill someone else, but not an inaction. Why, then, should logic dictate that a person should offer his friend the flask to prevent him from dying? Since the life of the owner of the flask is at stake, and he can save his life with an inaction (i.e. not giving the flask to his friend), "Yehareg v'Al Ya'avor" should not apply and he should be allowed to keep the water for himself in order to stay alive!

In fact, in this case the prohibition that the owner of the flask will transgress by not giving the water to the other person is not the Isur of murder, "Lo Sirtzach," but rather the Isur of "Lo Sa'amod Al Dam Re'echa," and thus he certainly should be permitted to transgress the Isur through an inaction when his life is at stake. (CHIDUSHEI RABEINU CHAIM HA'LEVI, Hilchos Yesodei ha'Torah 5:1, who uses this question as a proof against Tosfos; see also

ANSWERS:
(a) The CHAZON ISH (in his comments to Chidushei Rabeinu Chaim there, and in Choshen Mishpat, Likutim #20 to this Daf) suggests that since the life of the owner of the flask is not at immediate risk at the moment that he gives the water to his companion to drink, it is not comparable to a case in which a person's life is directly threatened. Although he might die eventually as a result of the lack of water, nevertheless his companion's immediate need overrides the possible long-term need of his own. A person may not transgress a Mitzvah in order to prolong his life if there is no immediate threat to his life at the present moment.

(b) The Chazon Ish adds that a case can be contrived in which the owner of the flask indeed will be doing an action that will endanger his companion's life. Such a case exists, for example, when there are three people walking together in the desert, and one of them has an extra flask of water and the other two have none. It should be prohibited for the owner of the flask to give the entire flask to one of the two others, because by doing so he will be causing the death of the third person through an action. Rebbi Akiva, who learns from "v'Chei Achicha Imach" that the owner's life takes precedence, would rule that the owner has the prerogative to give the flask to whomever he chooses.

(c) Another answer may be suggested as follows. When the person who owns the flask drinks the water, he is doing an action. It is that action that is prohibited because of the threat to his companion's life. Although the act of drinking cannot be compared to an act of killing ("Lo Sirtzach"), it is a transgression of "Lo Sa'amod Al Dam Re'echa," because if he drinks even a drop it will prevent his companion from reaching civilization alive. Therefore, neither the owner nor his friend should drink from the flask, because by doing so he will actively cause the other to die. Why, then, does Ben Petura say that both of them should drink from the flask? He should say that neither may drink from the flask!

The answer is, as the Toras Kohanim writes, that Ben Petura also learns his ruling from "v'Chei Achicha Imach." He understands the verse to mean that "you and your brother shall live together" (and not die together).

Accordingly, the Gemara's wording is precise when it says that Rebbi Yochanan uses the verse of "v'Chei Achicha Imach" "*for the way the Beraisa uses them*." That is, whether he rules like Ben Petura or like Rebbi Akiva, he uses the verse for the Halachah of the Beraisa. (When Rashi (DH b'Din and DH Lav) writes that Rebbi Yochanan learns the Halachah of Rebbi Akiva from "v'Chei Achicha Imach," he simply may be choosing to express the Halachic opinion.) (M. Kornfeld)

2) THE OBLIGATION TO RETURN "RIBIS KETZUTZAH"
QUESTION: Rebbi Elazar and Rebbi Yochanan disagree about whether one must return Ribis Ketzutzah that one collected from a borrower. The Gemara cites proof for Rebbi Elazar's opinion that one must return the Ribis from a Beraisa which states so explicitly.

In order to defend the view of Rebbi Yochanan, the Gemara says that this matter might be the subject of a Machlokes Tana'im, and the Gemara cites a different Beraisa in which the Tana'im disagree about whether the lender receives Malkus for collecting Ribis or whether he is exempt because he has a way of removing the Isur that he did (i.e. by returning the money). According to the first Tana, the lender receives Malkus and has no obligation to return the money. This Tana supports Rebbi Yochanan's opinion. The Gemara rejects this defense of Rebbi Yochanan and says that neither Tana in the Beraisa would exempt the lender from Malkus because he must return the money. Rather, the Tana who exempts the lender from Malkus does so because the lender may destroy the Shtar. RASHI (DH Lo) explains that the Gemara means that according to both Tana'im, returning the money does not exempt the lender from Malkus, because the Isur of Ribis is not a "Lav ha'Nitak l'Aseh," a prohibition that is rectifiable by the performance of a Mitzvas Aseh to return the money.

The flow of the Gemara seems illogical. The Gemara attempts to reject the support which it brought for Rebbi Yochanan from this Beraisa, and thus one would expect the Gemara to say that both Tana'im agree with Rebbi Elazar that the money must be returned. Instead, the Gemara seems to say that both Tana'im agree that the money need not be returned, and thus the Beraisa does support Rebbi Yochanan! (Because of this question, TOSFOS (DH Lo) explains the Gemara differently from Rashi.)

ANSWER: The RAMBAN and other Rishonim explain that according to Rashi, the Gemara does mean that both Tana'im agree with Rebbi Elazar and maintain that Ribis Ketzutzah must be returned. When the Gemara says that the transgression of the Isur of Ribis is not rectified by the Mitzvas Aseh to return the money, it does not mean that there is no Mitzvah at all to return the money. Rather, it means that the Mitzvah to return the money does not serve to rectify the wrongdoing of taking Ribis, but it is an independent Mitzvah "to return it to the borrower in order that he may live." The RASHBA cites proof for this from the fact that the borrower is also commanded not to pay Ribis. Obviously, the Isur of Ribis is not merely a prohibition against taking someone else's money, but rather it is a prohibition against participating in such a transaction. Thus, it cannot be compared to the Mitzvah to return a stolen object, which rectifies the wrongdoing of stealing (see Makos 16a).

This approach also answers why the Gemara does not ask what Rebbi Elazar does with the verses that Rebbi Yochanan cites to prove that Ribis need not be returned (see Ritva). Rebbi Elazar agrees that the Ribis is "l'Misah v'Lo l'Hishavon" -- Ribis is punishable with death and cannot be returned. However, this does not mean that there is no Mitzvah to return it. Rather, it means that returning it is an independent Mitzvah and does not serve to rectify the wrongdoing or to lessen the perpetrator's punishment.

3) THE EXEMPTION FROM "MALKUS" FOR TRANSGRESSING THE PROHIBITION AGAINST "RIBIS"
QUESTION: The Gemara concludes that Tana'im disagree about whether the Isur of "Lo Sesimun" (Shemos 22:24) is punishable with Malkus as soon as a Shtar with Ribis is written, or it is exempt from Malkus before the Ribis is actually collected since the Shtar can be destroyed. When Rebbi Nechemyah and Rebbi Eliezer ben Yakov teach that the Malveh and Arev (that is, an Arev Kablan who collects the Ribis from the Loveh after the Malveh collected it from him; see Ritva here and Rashba to 71b) are exempt from Malkus, it is because they can destroy the Shtar without collecting the Ribis and thereby not transgress the Isur of "Lo Sesimun."

The Gemara cites a Mishnah which teaches that the Loveh and witnesses (and scribe) also transgress the Isur of "Lo Sesimun" when they prepare a Shtar that includes Ribis. If the Shtar is destroyed, then they, too, should be exempt from Malkus! Why, then, do Rebbi Nechemyah and Rebbi Eliezer ben Yakov teach that only the Malveh and Arev are exempt from Malkus of "Lo Sesimun"? They should exempt the Loveh, witnesses, and scribe as well!

ANSWERS:
(a) The RASHBA explains that only a person who has the ability to destroy the Shtar is exempt from Malkus as long as the Shtar can be destroyed. Since the Loveh, witnesses, and scribe cannot destroy the Shtar (since it is not in their hands to do so), they transgress "Lo Sesimun" as soon as the Shtar is written and are liable for Malkus immediately.

(b) The RAMBAM, however, makes no mention of Malkus with regard to any of the Isurim of Ribis. He does not include the Isur of Ribis or "Lo Sesimun" among the list of prohibitions (in Hilchos Sanhedrin 19:1) that bear a punishment of Malkus. It is clear from the Rambam that even the witnesses are not punished with Malkus.

Moreover, even if the Shtar is not destroyed and the Ribis is collected, the Malveh is not punished with Malkus. Why is he not punished with Malkus? (PNEI YEHOSHUA)

With regard to the Malveh, it seems that the Rambam maintains that according to Rebbi Elazar, who requires the Malveh to return the Ribis, just as the Mitzvah to return the Ribis exempts the Malveh from Malkus for the Isur of "Lo Sashich," it also exempts him from Malkus for writing the Shtar in the first place (the Isur of "Lo Sesimun"). (This also seems to be the opinion of Rashi (DH Lo), who implies that if the Isur of "Lo Sashich" would be a "Lav ha'Nitak l'Aseh," then the Mitzvas Aseh would remove the Malkus for "Lo Sesimun" as well. Tosfos (DH Lo) argues with Rashi on this point.)

The Rambam learns -- as the Gemara assumed originally -- that Rebbi Nechemyah and Rebbi Eliezer ben Yakov exempt the Malveh from Malkus because it is a "Lav ha'Nitak l'Aseh" by the Mitzvas Aseh to return the Ribis. He therefore rules that "Lo Sesimun" is also "Nitak l'Aseh" by the Mitzvas Aseh to return the Ribis. That is why the Malveh and Arev can never receive Malkus for the Isur of "Lo Sesimun" or for "Lo Sashich."

Why, though, do the Loveh, witnesses, and scribe not receive Malkus? After all, they have no Mitzvah to return the Ribis or to destroy the Shtar, since neither of these acts is within their control. The SEFER HA'CHINUCH (end of #68) answers that it is not appropriate for the Malveh to be exempt from Malkus and for those who were secondary to his sin to be liable for Malkus. If the Malveh is exempt, then the witnesses and scribe who helped him also must be exempt.

Why, then, does the Beraisa teach that only the Malveh and Arev are exempt from Malkus, if the others involved are also exempt? The answer is that the others are exempt from Malkus only because the Malveh and Arev are exempt. Therefore, the Beraisa discusses only the Malveh and Arev, since the exemption from Malkus of the others depends on the exemption of the Malveh and Arev.

(c) Perhaps the Beraisa does not mention whether the Loveh, witnesses, and scribe receive Malkus because even without the fact that it is a "Lav ha'Nitak l'Aseh," they would be exempt from Malkus since they transgressed the Isur without an action, and the Beraisa maintains that a "Lav she'Ein Bo Ma'aseh" (a transgression committed without an action) is not punished with Malkus. (Writing or signing the Shtar is not considered an action. See PNEI YEHOSHUA.) Even though the Loveh does an action when he pays the money of Ribis to the Malveh, he cannot be punished with Malkus for that act since he is forced to do so by the Malveh. Therefore, the only ones who perform a "Lav she'Yesh Bo Ma'aseh" are the Malveh and Arev who actively collect the Ribis from the Loveh. (M. Kornfeld)

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