Tifshot Leih mid'Rabah d'Amar Rabah Zarak Keli mi'Rosh ha'Gag u'Ba Acher v'Shavro b'Makel Patur d'Amarinan Leih Mana Tavira Tavar. l'Rabah Peshita Leih l'Rav Miba'i Leih.
According to Rabbah, who says we do posken basar m'ikara . ... would he allow the person on the bottom to take the vessel instead of breaking it?
Soheil Zaman, Sherman Oaks
If the person on the bottom is capable of saving the vessel from being broken, then it would not be considered a broken vessel. Rabah said that the person at the bottom is exempt for breaking it only if there was no possibly of saving it. It follows that if he is capable of saving it, he has a Mitzvah of Hashavas Aveidah to do so, because he is able to protect his friend's property.
Kol Tuv,
Dovid Bloom
Shalom Rav Bloom,
Thank you for getting back to me Rav.
My understanding of basar m'ikara is the vessel is considered broken because of it's inherent state. Because the vessel is freefalling towards inevitably breaking, we categorize the vessel as broken. Accordingly, why would an external circumstance affect the status of it's inherent state? We wouldn't say someone's classification as a treifa would be negated just because there is a cure available?
Furthermore, even if we do say that the external state can affect the vessel, it can only be if that external variable will definitively change the state of the vessel. The reason why I think this is because of "ein safek motzi midi vadai." It's a vadai that the vessel is going to break. Only a safeik that it will be saved. Consequently, mitzvahs do not compel anyone to do anything. They command but they do not coerce. So it's only a safeik that the person will actually save it. So how can we say the possibility of this person saving the vessel would change the inherent state of the vessel?
Menachem, thank you as always for the wonderful "Shakla v'Tarya"!
1) The Rambam (Hilchos Chovel u'Mazik 7:12) brings the Halachah about the falling vessel as follows:
"If he threw a Kli from the top of the roof, and there were no vessels beneath it, and somebody else broke it with a stick when it was in the air before it reached the ground, he is exempt because he merely broke a Kli which is doomed to break immediately certainly."
2) The Teshuvos ha'Rivash (#506, DH v'Acharei, mentioned briefly in the Mishneh l'Melech on the Rambam) writes that one can infer from what the Rambam writes "immediately" that if the Kli would not have broken immediately, the person who broke it would be liable. The Birkas Shmuel (Bava Kama 11:4) writes that if it is not certainly going to be broken, this is not considered a "Mana Tevira," a broken Kli that he broke. If one does not say this, nobody would ever be liable for breaking anything because he could always argue that it would have broken soon anyway. (This is a support, bs'd, for what I wrote in a previous reply, that we consider only the immediate situation.)
3) We see from what the Rambam writes that it was doomed to break certainly, that if someone could have put cushions and blankets on the ground in time to save the Kli, then the person who got in first and broke the Kli with the stick would have to pay.
4) The Rambam (Hilchos Rotze'ach u'Shemiras Nefesh 2:8) writes:
"He who kills a Tereifah... is exempt from the Din in this world. Every man is assumed not to be a Tereifah, and someone who kills him is put to death by the Sanhedrin, unless we know with certainty that he is a Tereifah and the doctors say that this malady has no cure for a human and he will die of this if he does not die of something else [first]."
We learn from the Rambam that a person's classification as a Tereifah is negated if there is a cure available.
5) We saw above in the Rambam (Chovel u'Mazik 7:12) that the person who broke the Kli on its way down to the ground is exempt only if the kli will immediately break with certainty. That means that if there is a possiblity that it might be saved, the person who broke it instead must pay for what he broke.
6) The Nesivos ha'Mishpat (end of Choshen Mishpat 261:1) writes about the Kli that was thrown off the roof that if there are people on the spot who are capable of saving the vessel, this means that the owners do not have Yi'ush because there is a prohibition of Bal Taschis on someone who breaks the falling Kli. Because there is a Mitzvah to save the Kli, the owner hopes that somebody might perform this Mitzvah so he has not yet given up on his Kli. Since it still might be saved, it follows that the person who broke it instead must pay for the damage he did.
Dovid Bloom
Shalom Rav Bloom
I believe the lashon of the Gemara also supports my case as well.
The case of the Gemara is the guy on the bottom is hitting it b'meizid with a stick. Why didn't the Gemara construct a case where the second guy broke it b'onus (where we can taina adam muad l'olam) or he was poshea? I believe the Gemara is setting up the case where he broke it deliberately to imply to us that he could have also saved it definitively. That is, it would stand to reason if the guy can intentionally break it, he can save it.
Yet we still say basar m'ikara even though he could have saved it.
Another observation. I believe a case of where there is a safek if it can be saved applies to the following case:
If the guy on the roof is throwing a vessel to someone on the bottom and there is a safeik if he can catch it or not, then we wouldn't taina basar m'ikara because the vessel is not considered inherently broken. This which is fundamentally different in the case of the Gemara where the vessel will definitely break and there is chance someone can save it.
Shalom, Reb Menachem!
1) It would be difficult to set up a case where the guy at the bottom is b'Ones, because according to Tosfos (27b, DH u'Shmuel), we only say Adam Mu'ad l'Olam if it is similar to Aveidah, which is actually not far off from Poshe'a. So we would have to find a scenario where the guy at the bottom had a reasonable chance of saving the Kli but instead broke it.
In fact, the case in the Gemara (end of 17b) is where he could have been called a Poshe'a, because he broke it deliberately, but he is still Patur because he had no chance of saving it since he had no access to any soft cushions or blankets which could soften the fall.
2) I think that what you write seems to fit with the Rambam in Hilchos Chovel u'Mazik 7:12, who writes that when the person threw the Kli off the roof, there were no cushions on the floor and somebody broke it on the way down with a stick. The breaker is exempt because he broke a Kli which is inevitably going to break.
Kol Tuv,
Dovid Bloom
1) Response to Point 3 in earlier question-
- I do not think that read is muchrach; I actually read it differently. When the Rambam says that it breaks with certainty, it could very well mean that if there is a chance that the kli might not break on impact, then we do not say basar m'ikara.
However, this example of placing cushions and blankets on the ground in time to save it could actually reverse the halachic status of basar m'ikara. The reason is because we would say the the inherent status of this vessel being broken has changed. When there are cushions on the floor, no more can we say that the vessel would have broken upon impact. This is not the same obviously as if the vessel would have broken on impact but someone could have saved it.
I'm curious Rav, did you furnish this example or did you see it somewhere?
2) Response to point 4 in previous question-
- This was fascinating! I appreciate this point very much and although I know I brought this case as a proof for my contention that an external variable cannot change the internal status of something, I believe this example is not fit for proof anymore.
The reason is, I believe, that we see that the definition of basar m'ikara (BM) that the Rambam holds by is when the status of something is inherently broken and not that it will break in the future. I believe the reason is because when the Rambam says we say BM when the "Kli which is doomed to break immediately certainly."
One way to understand the word "immediately" is it comes to mean that if the vessel will be broken in the future, you don't say basar m'ikara. So for example, Rambam would not hold basar m'ikara on if someone breaks a stationary vessel that a rock has been propelled at it.
So the question is what is a treifa? Is a treifa someone who is actively dying or someone who will die (shortly) in the future. I believe that a treifa is someone who will die shortly; it's characterizing a future state and not a present/inherent state. Accordingly, if the future state of a person is that he is going to shortly die, then certainly an external variable can that can heal the person's terminal status would negate the future state.
I possibly see support that a treifa is referring to a person's future state as opposed to an inherent state because there is already another term in halacha which refers to someone actively/inherently dying and that's a goses. So the distinction between a treifa and a goses is that a treifa is someone who will shortly die and a goses is someone who is actively/inherently dying.
Furthermore, I know the term chaye sha'ah in medical halacha is specifically in reference to a person's who will die within 6 months to a year. It might be that when a person is a treifa, he is a chaye sha'aha (which actually just defines the length of life that he has left). But I don't know, this is just speculation that might be worth mentioning.
3) Response to point 6 in earlier question-
- There was never a question whether the bal hakli owns the vessel. Certainly, he owns the vessel. The question is whether can:
Can an external variable affect an inherent state of this vessel? I appreciate that I would be a fool of the highest order if I disagree with the Nesivos, but all I have in life is svara and I have not yet seen any proof against it.
Also Rav, I also said that even if we do say that an external variable can affect the inherent state of this vessel, because this vessel will vadai be broken and there is only safeik that it can be saved - won't we way say ein safek motzi midi vadai? I don't believe you addressed this point.
4)
Finally, a posed this question to a Rosh Kollel, Rav Kirshenbaum while he was running out of the Beis Medrish and he paused for a second and told me this question might be toleh on if you can steal someone's issur hana or not, but he's not sure.
I thought I share it with the Rav because I thought it was worth pondering.
Reb Menachem, it is great to get back into the Sugya with you again!
1) I think that we are in agreement about Peshat in the Rambam (Hilchos Chovel u'Mazik 7:12). The falling vessel is considered a Mana Tevira only if it is for sure going to break with no possiblity of saving it. If there is any chance that it could be saved, then the person who broke it on the way down with his stick will be Chayav.
However, I think there may be a difference between our positions, because you seem to say there is a difference between whether there are cushions on the floor already or whether the cushions are not yet on the floor but could be feasibly placed on the floor in time to save the Kli. I contend that if there is any chance of saving the falling Kli by putting down the cushions, then we do not say Basar me'Ikara. I got the idea of the cushions from the Gemara near the end of 26b. The only difference is that, there, the cushions were removed from the floor, while my scenario involves placing the cushions on the floor.
2)
(a) We can learn what a Tereifah is from the Halachos about the husband who disappeared and now the wife wants to remarry. The Rambam (Hilchos Gerushin 13:16) describes a scenario where somebody was thrown into the sea and a net was cast to try and save him. All the net found was one limb, but it is impossible to live without this limb. The Rambam writes that on the basis of this evidence one may testify that he died and the widow may remarry. The Magid Mishneh cites the Ramban and the Rashba who say that she may remarry only after waiting twelve months. The Magid Mishneh writes that it is well-known that a Tereifah cannot live for twelve months (see Chulin, end of 57b). The Shulchan Aruch (Even ha'Ezer 17:32) writes that what happened was that they found the leg of the lost husband, that had been cut off above the knee, so she may remarry after twelve months because if the leg was amputated in such a way, he is a Tereifah and cannot survive twelve months.
(b) We see that a Tereifah is someone who has a specific injury or illness from which one cannot survive for twelve months. However, at the present moment, the Tereifah may look totally healthy to the innocent onlooker. The Rambam (Hilchos Rotze'ach 2:8) writes that if somebody kills a Tereifah, even though the Tereifah is able to eat normally and walk freely in the street, he is exempt from the capital penalty in the Dinim of this world.
(c) There is a very basic difference between the doomed Kli on its way down to the floor and the Tereifah person. The Rambam (Hilchos Chovel u'Mazik 7:12) writes that the person who broke the falling Kli is exempt only if the Kli will break immediately. Concerning the Tereifah, there is no condition that he has to die immediately. It could take twelve months. In addition, there is nothing wrong with the physical state of the falling Kli. It is in good condition, but merely in the wrong place. In contrast, the Tereifah person possesses a deformity or illness that is so severe that he cannot survive twelve months.
(d) A Goses is a different definition. The Gemara (Kidushin 71b) states that most Gosesim die. However, Tosfos in Yevamos (120b, DH l'Meimra) infers that a minority of Gosesim survive. In contrast, all Tereifos must die within twelve months. On the other hand, if a Goses is going to die, the process of Goses will not last more than three days. This is clear from the Shulchan Aruch (Yoreh Deah 339:2) that if witnesses say that they saw a Goses three days ago, a close relative must keep the Dinim of mourning because we can assume that the Goses died.
(e) So a Tereifah will certainly die but it may take up to twelve months to happen. If a Goses is going to die, it will happen within three days, but a minority of Gosesim survive entirely. The reason for the difference may be understood according to the last paragraph of the Shitah Mekubetzes in Bava Kama 26b in the name of the Ri Migash. A Tereifah is someone who suffers from one of the 18 Tereifos mentioned in the third chapter of Maseches Chulin; for example, there is a hole in the brain membrane. He will surely die even though at the moment he is able to stand on his feet. A Goses does not suffer from any of the 18 Tereifos. However, he is a sick, weak man, but since there is no specific problem in any one of his limbs, it is possible that he will recover and he could live for many more years.
(f) The Chochmas Shlomo (by Rav Shlomo Kluger, printed at the end of Shulchan Aruch YD 155) writes that we learn from the law that a Tereifah cannot live twelve months that if someone cannot live for twelve months, his life is not considered life. The Chochmas Shlomo writes that it follows that if someone can live only less than twelve months he is considered to possess only Chayei Sha'ah.
3) What the Nesivos (end of 311) is saying is that it all depends on whether you give up or not. If the Kli is falling off the roof and the owner is convinced that there is no chance that anyone can save it, then he has Yi'ush; he despairs. The first Rashi in the second chapter of Bava Metzia writes that if you have Yi'ush, that it equivalent to being Mafkir the item. If it is Hefker, then it no longer belongs to the original owner. This can also explain why it is sufficient that there is a Safek that it can still be saved. This is because that Safek is enough to give the owner hope that it might still be saved, so he does not have Yi'ush and it still belongs to him.
Chag Same'ach!
Dovid Bloom