1. How does this din of machshovo (poroh & mai chatos) not being treated as if he did it compare to other dinei Torah e.g. Shabbos + others. Surely this is his intention as well?
2. If we say shmei heizek (omud beis shmei heizek) how can we say he has to pay fully? Surely this is totally beyond his control - maybe not even gromoh - and much further removed from himself than the case of machshovo of mei chatos / proh where we say he is potur?
Good wishes to Rabbi Kornfeld Shlita please.
Yonason Chody, London, UK
1) a) The Din of Parah and Mei Chatas is more stringent than that of Shabbos. We learn this in the Gemara in Shabbos 120b, that if a fire breaks out on Shabbos it is permitted to extinguish it in a Grama fashion, by placing a wall of vessels full of water in the path of the fire. The Torah (Shemos 20:10) states concerning Shabbos, "You shall not do any work," from which we learn that only "doing" Melachah is forbidden, while causing work to be done is not forbidden by the Torah. This is because the Torah wants us to rest on Shabbos, so it is only "doing" something that represents violating the requirement to rest, not merely causing something to happen.
b) In contrast, the Sugya in Gitin 53a states that one is liable b'Din Shamayim for damaging in a Grama way. Rashi (DH v'Chayav) writes that the person who does this is a Rasha and will be punished because he willfully intended to do damage. The Shitah Mekubetzes (Bava Kama 56a, DH v'Chasav ha'Me'iri) writes that whenever it says that a person is Chayav b'Dinei Shamayim, this means he is disqualified as a witness in Beis Din until he pays for the damage he caused. One does not receive a similar punishment for doing Melachah through Grama on Shabbos.
c) Similarily, in the laws of murder, one who causes a murder is also considered a murderer. See Rambam, Hilchos Rotze'ach 2:2, who cites different examples of murder through Grama, such as one who hires a murderer. The Rambam writes that such a person spilled blood, has transgressed the sin of killing, and is liable for the death penalty at the hands of Heaven.
d) However, Beis Din in this world cannot punish a person for Grama. This may be because one cannot prove what his intentions were. In the case of the Parah, it is only his intention -- that he wanted the cow to thresh as well as suckle -- that creates the prohibition. Only Hash-m knows fully what his intention was, but Beis Din in this world cannot prove it. Similarly, in the case of the Mei Chatas, it is only his intention -- to use the Mei Chatas as a weight on the balance -- that makes them Pasul, and again Beis Din cannot prove what his intentions were. Therefore, only in the Din of Heaven can he be punished.
Bs'd I will try to answer question #2 later.
Kol Tuv,
Dovid Bloom
P.S. Regards to Rav Mordechai Chody, who learned in the Yeshiva of Rav Tzvi Kushelevsky many years ago.
I will now address your second question.
2) (a) I assume that your question is from the Beraisa that Rav Papa cites concerning (A) the stolen coin which was disqualified by the king, (B) the Terumah that became Tamei, and (C) the Chametz after Pesach.
Your question is in fact asked by Tosfos DH Gazlan. Tosfos asks what is the comparison between Rav Papa's Beraisa, in which the Terumah became Tamei only indirectly, and a case of directly making the Terumah Tamei, which is what we have been discussing until now in the Sugya?
(b) Tosfos answers that since we are saying "Shmei Hezek," this means that when the Taharos became Tamei, it is considered as though clear, recognizable damage has been done to the object. This means that it is considered as if one can see clearly that (A) the coin has been defaced, (B) the Tum'ah is on the food and therefore the food is rotten, and (C) the Chametz is visibly worthless because it was not sold to a Nochri before Pesach. Since it is as if there is a physical change in the object, this is equivalent to a proper Shinuy and the thief thereby acquires the object through this Shinuy. It follows that he cannot say, "Harei Shelcha Lefanecha" -- "This is the object that I stole from you and I now am returning it," because it is a very different object from what he stole. Since he cannot return the stolen object, it follows that he must pay money.
(c) Accordingly, even though the damage in Rav Papa's Beraisa is indirect, it makes a Shinuy in the object. It does not matter whether this change was made directly or indirectly, because in the final analysis the object has been changed and cannot be returned in its new state. Therefore, a monetary payment must be made, even though the damge is indirect.
(d) In contrast, with the Parah and the Mei Chatas, since the damage depends on what he thought, the Beis Din in this world cannot prove that he is guilty, as I wrote in my reply to question #1.
Dovid Bloom