QUESTION: The Gemara teaches that a person who hires false witnesses to testify that one person owes money to another person is exempt from having to reimburse the victim b'Dinei Adam, but he is nevertheless liable to pay b'Dinei Shamayim.

Why does the Beraisa discuss only a person who hires false witnesses? What is the law when one sends witnesses by just asking them to testify in court falsely, without paying them?

(a) TOSFOS (DH Ela) and the RASHBA explain that only when one hires false witnesses is he liable b'Dinei Shamayim. When he merely asks them to testify falsely he is not liable at all, not even b'Dinei Shamayim, because he did not expect them to listen to him and to transgress the prohibition of bearing false testimony.

Tosfos adduces proof for this position from the Mishnah later (59b, and which the Gemara here cites). The Mishnah teaches that one who sends a fire with a Cheresh, Shoteh, or Katan is Patur b'Dinei Adam and Chayav b'Dinei Shamayim. In contrast, when one sends a fire with a Pike'ach, "the Pike'ach is Chayav," which implies that the sender is entirely Patur, even b'Dinei Shamayim.

Since the Mishnah does not specify that the sender is exempt only if the Pike'ach has money and pays for the damage, it implies that the sender never bears responsibility, even if the Pike'ach does not or cannot pay. (This seems to be the intention of Tosfos. See, however, PNEI YEHOSHUA.)

The reason the sender is exempt from paying b'Dinei Shamayim is the principle of "Ein Shali'ach l'Devar Aveirah," as the Gemara in Kidushin (42b) infers from that Mishnah.

(b) However, the RITVA and TOSFOS HA'ROSH in Kidushin (42b) write that even when a person merely tells witnesses to bear false testimony he is Chayav b'Dinei Shamayim. The Mishnah (59b) which exempts the person who sends a fire with a Pike'ach also exempts him b'Dinei Shamayim at the time that the Pike'ach actually pays and the victim is reimbursed. This is also the opinion of the ME'IRI (Bava Kama 59b).

Why, then, does the Gemara here refer specifically to a person who hires false witnesses, and not to a person who merely tells witnesses to bear false testimony? The TOSFOS HA'ROSH (there) answers that the Beraisa means to teach that even one who hires false witnesses is Patur mi'Dinei Adam. The RASHBA challenges this answer. Why is it necessary to teach such a point? Why would one have thought that one who merely hires witnesses should be Chayav b'Dinei Adam? His act is nothing more than an act of "Gerama," an indirect cause of damage (for which one is exempt) to the victim of the false testimony.

Some Acharonim explain that when a person hires someone to perform a task, he is not appointing a Shali'ach but rather he is hiring a worker. The principle of "Ein Shali'ach l'Devar Aveirah" might not apply to a worker, since "the hand of the worker is like the hand of the employer" ("Yad Po'el k'Yad Ba'al ha'Bayis"). Therefore, the Beraisa must teach that even a hired worker is not allowed to perform an Aveirah for the one who hired him.

The SHACH (CM 32:3) answers that the Beraisa refers specifically to hiring false witnesses because normally a person does not agree to bear false testimony unless he is paid for it. The Shach there cites strong proof for the opinion of the Ritva from the Gemara in Kidushin (43a) which teaches that when a person sends a Shali'ach to kill a third person, although the sender is not punished with a "great punishment" ("Dina Rabah") because of "Ein Shali'ach l'Devar Aveirah," nevertheless the sender is punished with a "minor punishment" ("Dina Zuta"). It seems clear from the Gemara that there is some form of punishment b'Yedei Shamayim for a person who simply asks his friend to harm someone else for him, even if he does not pay his friend to do so. (The TOSFOS HA'ROSH in Kidushin preceded him with this proof, and the SEFER HA'MIKNAH there and PNEI YEHOSHUA here cite this proof as well.)

How will Tosfos respond to this proof for the view of the Ritva, that the sender is Chayav b'Dinei Shamayim even when he did not hire the witnesses? The CHAVOS YA'IR (#166) answers that Tosfos agrees that one who sends false witnesses without hiring them is punished with "Dina Zuta." Tosfos means that he does not have a "Dina Rabah" -- he is not punished with a "great punishment."

The TUMIM (32:2) explains this further. He points out that the Chiyuv b'Yedei Shamayim to which the Gemara refers is not merely divine punishment, but rather an obligation to compensate monetarily the person who was damaged in order to exempt oneself from divine retribution. Only if the crime he committed is punished with a "Dina Rabah" will that Chiyuv b'Yedei Shamayim obligate him to compensate the victim, since "Dina Rabah" means that it is as if the sender actually caused the victim's loss. When the act is punishable only with a "Dina Zuta," it means that the sender is not actually responsible for the victim's loss, and therefore he can gain atonement simply by repenting without compensating the victim.

A similar explanation is offered by the KETZOS HA'CHOSHEN there and by the CHACHAM TZVI (#138).

The difference between the Chiyuv Mamon of a "Dina Rabah" and the Chiyuv of a "Dina Zuta" can be demonstrated from the Gemara here as well. The Gemara says that if a person withholds his testimony which could prevent a loss to another person, it is obvious that he is Chayav b'Dinei Shamayim because the verse says about such a person, "v'Nasa Avono" (Vayikra 5:1). How does the Gemara prove from "v'Nasa Avono" that he must compensate the victim b'Dinei Shamayim and not only that he is punished b'Dinei Shamayim? The Beraisa obligates the person to pay the victim b'Dinei Shamayim, but that does not seem apparent from the verse! It must be that "v'Nasa Avono" implies a "Dinah Rabah" b'Yedei Shamayim, and whenever such a Din exists b'Yedei Shamayim the sinner cannot be exonerated unless he compensates the victim monetarily. Why, then, does Tosfos write that if a person tells someone to bear false testimony, he does not have to pay the victim in order to achieve atonement (TAL TORAH)? The answer is that when a person tells someone to bear false testimony he is punished only with "Dinah Zuta," and therefore atonement can be achieved without paying the victim.

The TOSFOS HA'ROSH in Kidushin does not accept this distinction. He writes that although one who tells someone to cause harm to a third person is punished with only "Dina Zuta," it is logical that he will not achieve atonement unless he compensates the victim monetarily. He therefore argues with Tosfos who says that if one does not hire the witnesses, he is not liable b'Dinei Shamayim to pay the victim.

The Tosfos ha'Rosh apparently defines "Dina Zuta" differently from Tosfos. Perhaps he learns like Rashi in Kidushin who explains that "Dina Zuta" means that the one who sends another person to harm a third person performs only an act of "Gerama," an indirect causative act of harm. That is why he receives a more lenient punishment b'Yedei Shamayim. If the punishment b'Yedei Shamayim is in response to the loss that the sinner caused to the third person, it is logical that he will not achieve atonement unless he compensates the victim. Tosfos, in contrast, apparently understands that the "Dina Zuta" is not a punishment for the loss that the third person incurs, but a punishment for causing the person who was sent to do a sin. Consequently, the sender does not have to compensate the victim in order to achieve atonement.

The Acharonim point out that there are times when the sender is not punished even with "Dina Zuta" b'Dinei Shamayim. They prove this from the Gemara in Sanhedrin (29a) which says that the Nachash ha'Kadmoni could have exempted itself from all punishment with the claim that Adam ha'Rishon should have listened to Hash-m and not to him -- "Divrei ha'Rav v'Divrei ha'Talmid, Divrei Mi Shom'in." (This is the same argument which teaches the principle that "Ein Shali'ach l'Devar Aveirah" -- a Shali'ach cannot be sent to do an Aveirah on behalf of the sender, but rather the Shali'ach himself is held culpable for the Aveirah.) The Gemara implies that this would have exempted the Nachash from any punishment b'Yedei Shamayim. Why should that be so? The Nachash should have still been liable for a "Dina Zuta," just like the person who sends another person to kill a third person! (SHACH CM 32:3, and BI'UR HA'GRA there)

1. The VILNA GA'ON explains that "Dina Zuta" applies only to one who sends a Shali'ach to kill, but not to do any other Aveirah. The reason for this is that the Torah warns that even if one sees that a person's life is in danger, he must rescue him because of "Lo Sa'amod Al Dam Re'eicha," and thus certainly one may not put the other person's life in danger even with a verbal suggestion. (The MAHARATZ CHAYOS here cites a Midrash in Bereishis Rabah which derives from a verse that one is punished for sending someone else to kill another person. The verse specifically addresses the sin of Retzichah, murder.) Based on this, the Vilna Ga'on writes that one who sends someone to testify falsely will not be punished even with "Dina Zuta." (Further elucidation is needed to resolve why one cannot argue that just as one is obligated to prevent a loss to another person's property (RASHBAM to Bava Basra 53a, DH Mavri'ach Ari; see Insights to Bava Kama 2a), one is obligated not to cause a loss to another person, even by suggesting to others to cause a loss.)

2. The PNEI YEHOSHUA and HAGAHOS IMREI BARUCH (on the Shulchan Aruch) add that when the sender does not simply ask another person to do a sin for the benefit of the sender, but rather he convinces the person to sin for that person's own benefit, the sender is not punished with "Dina Zuta" since the Aveirah was ultimately done for the benefit of the person who sinned and not for the sender. (Obviously, the sender transgresses the Isur of "Lifnei Iver Lo Siten Michshol" (Vayikra 19:14), but he will not be punished for the act that was actually done. In the case of the Nachash, the Isur of "Lifnei Iver" could not have obligated the Nachash because he was not commanded to observe that Isur, but only the Isur of eating from the Etz ha'Da'as.)

QUESTION: The Gemara discusses whether a Shomer Aveidah is like a Shomer Chinam (Rabah) or like a Shomer Sachar (Rav Yosef). The Gemara cites proofs for the various views.

Why is this discussion cited here in Bava Kama? It belongs in Bava Metzia, in the chapter of "Elu Metzi'os," where the Gemara discusses the laws of returning a lost object! The Gemara there (Bava Metzia 29a) indeed quotes this dispute between Rabah and Rav Yosef, but it does not cite any of the proofs to either side as the Gemara here cites. Why is this topic discussed by the Gemara here? (PNEI YEHOSHUA)

ANSWER: The PNEI YEHOSHUA explains that the dispute between Rabah and Rav Yosef is relevant to the Mishnah which states that when one gives an animal to a Shomer, the Shomer is responsible for any damage that the animal causes. What is the Halachah in the case of a person who finds a lost animal and takes it into his custody, and the animal causes damage? Is the finder responsible for the damage that the animal causes?

If the finder is negligent and lets the animal cause damage, he certainly is responsible. If, however, the animal is a type of animal that normally must be guarded with a Shemirah Me'ulah (a Tam according to Rebbi Yehudah, and a Tam or Mu'ad according to Rebbi Meir), and the finder guards it with only a Shemirah Pechusah, will he be obligated to pay for the damage that it causes?

According to Rav Yosef, who rules that the finder has the status of a Shomer Sachar, he will be obligated to pay for damages since a Shomer Sachar must guard an animal with a Shemirah Me'ulah. According to Rabah, who rules that the finder has the status of a Shomer Chinam, it suffices to guard the animal with a Shemirah Pechusah since a Shomer Chinam does not have as strong of a requirement to guard the animal, as the Gemara says earlier (45a; see Tosfos 57a, DH Ela).

The Pnei Yehoshua adds that according to the Gemara's conclusion (57a) that after an animal is lost even a Shomer Chinam must guard it with a Shemirah Me'ulah since it has become accustomed to wandering out, even Rabah will agree that the finder must guard the animal with a Shemirah Me'ulah. If he neglects to do so, he will be responsible for any damage that the animal causes.

(Others argue that an animal that has become accustomed to wandering out must be guarded only with a Shemirah Me'ulah to prevent it from wandering, not to prevent it from damaging others. If that were not the case, even the owner should have to guard his Mu'ad animals (which normally need only Shemirah Pechusah, according to Rebbi Yehudah) with a Shemirah Me'ulah after they have wandered out once, as the Pnei Yehoshua himself asks. See BEIS AHARON.)

The OR SAME'ACH (Hilchos Nizkei Mamon 4:4) adds that perhaps the opposite is true: According to the opinion that understands that Rav Yosef gives a finder the status of a Shomer Sachar because the Torah obligates him to watch the item, the finder might be obligated only to prevent the animal from becoming damaged like a Shomer Sachar, but he is not obligated to prevent the animal from causing damage like a Shomer Sachar, since the Torah does not obligate him to prevent the animal from causing damage.

QUESTION: Rabah and Rav Yosef disagree about whether a Shomer Aveidah is considered a Shomer Chinam or a Shomer Sachar (see previous Insight). RASHI defines a Shomer Aveidah as one who brings an object that he found into his home. Why does Rashi limit the question of the finder's status to when he brings the object into his home? The dispute between Rabah and Rav Yosef should apply even from the moment that the person finds the object, before he brings it into his home! Even if he does not bring the object to his home but returns the it directly to the owner and the item is lost or stolen from him on the way, the question concerning his status should still apply.

Later (57a, DH Mai), Rashi again infers from the wording of the Gemara that the dispute between Rabah and Rav Yosef applies to an object which the finder has brought into his home. Rashi's words there imply that if the finder has not yet brought the object home, even Rabah agrees that the finder has the status of a Shomer Sachar. Why should that be so?

ANSWER: Rav Yosef's reason for why the finder has the status of a Shomer Sachar is that he is exempt from giving Tzedakah to a poor person while he is taking care of the Aveidah. Why does Rabah not agree with Rav Yosef's reasoning? TOSFOS in Bava Metzia (29a) and Shevuos (44a) explains that Rabah agrees that one is exempt from giving Tzedakah while he cares for the Aveidah, but he does not consider the finder a Shomer Sachar because of this since it is such an uncommon benefit; it is not common for the finder to actually benefit in such a manner. Rav Yosef argues that as long as the finder can possibly benefit in such a way, he is considered a Shomer Sachar from the moment he finds the object.

Based on this approach, the RADVAZ (1:519) suggests that perhaps even Rabah would agree that at the moment the finder begins to tend to the lost object, he indeed is considered a Shomer Sachar since he definitely benefits at that moment by not having to give Tzedakah due to the Mitzvah that he is involved in by taking care of the Aveidah.

The TOSFOS HA'ROSH writes that not only when a person is caring for the lost object in his home is he considered Osek b'Mitzvah and is exempt from giving Tzedakah, but even while he is carrying the Aveidah to his home (or to the owner's home) he is also exempt from giving Tzedakah, since he is involved in a Mitzvah (Hashavas Aveidah) at that time.

Perhaps Rashi writes that the dispute between Rabah and Rav Yosef applies only when the Aveidah is in the finder's home because if the finder is carrying the Aveidah to his home or to the owner's home, he is actively performing a Mitzvah with the Aveidah at the time and even Rabah will agree that at that moment he has the status of a Shomer Sachar, as the Radvaz writes. (M. Kornfeld)