PAYING FOR BEING MOSER [Moser: payment]
Question: Why did R. Chiya give a Minyan (of 24 Avos Nezikim)?
Answer: This is to exclude Moser (one who tells extortionists about others' property) and Mefagel (a Kohen who says during the Avodah that he intends to eat or offer part of a Korban after the permitted time).
Bava Kama 5a: He did not list Mefagel, for he discusses only Chulin. He did not list Moser, for he damages through mere words. R. Chiya does not list such damagers.
Question: The Tana of our Mishnah mentioned four Avos (primary damagers), because there are also Toldos (secondary damagers).
R. Chiya mentioned also Avos. What are the Toldos of his additions?
Answer (R. Avahu): They are all called Avos because they pay from Meitav (Idis, i.e. highest quality land).
(The Torah teaches about Meitav regarding a Mu'ad ox.) An extended Gezeirah Shavah teaches this about all 24. Regarding every one, it says "Tachas", "Nesinah", "Yeshalem" or "Kesef".
62a (Ameimar) Question: If it is clear that Ploni was Moser Yakov's property, but it is not known how much, can Yakov swear how much was taken and collect?
The opinion that exempts for Garmi (strong causation of damage), surely exempts. We ask according to the opinion that obligates for Garmi.
This question is unresolved.
Bava Metzi'a 77b (Beraisa): If Reuven sold a field to Shimon for 1000, and Shimon paid 200, if Reuven retracts, Shimon has the upper hand. He can demand his money back, or land worth 200. He may take Idis (best quantity land).
Question #1: Shimon is a creditor. A Mishnah teaches that a creditor collects middle quantity land!
Question #2: Shimon should take from the land that he bought!
Answer (Rav Acha brei d'Rav Ika): To raise money to buy such an expensive land, Shimon probably had to sell his Metaltelim or small fields at a loss. Therefore, Reuven is considered a Mazik, who pays from Idis.
Kesuvos 42a - Question (Abaye): If Reuven said 'you raped my daughter, and Beis Din obligated you to pay', and Shimon denied it and swore (and later admitted that it was true), since he already was judged, is this like regular Mamon, and he brings a Korban?
Or, is it still like a fine?
Answer (Rabah): It is like Mamon.
Rambam (Hilchos Chovel u'Mazik 8:1): If a Moser (Ploni) handed money over to an extortionist, the Moser must pay from the best of his property. If he died, we collect from his heirs, like other damagers. Whether the extortionist is a Nochri or Yisrael, the Moser must pay everything that the extortionist took, even if he did not physically give the money to him, just he was Margil (told him about it).
Magid Mishneh: 'The best of his property' refers to land. All Metaltelim are called Idis, like the Rambam wrote above. If a Moser did not pay from Idis, the Gemara would not have asked why R. Chiya omitted it. Also, even Metamei and Medame'a (mixing Terumah with Chulin), which are Hezek she'Eino Nikar (unperceivable damage), pay from Idis. All the more so Moser pays from Idis! This is not Hezek she'Eino Nikar, for which heirs are exempt. The Gemara connotes that Moser is letter of the law, and not a fine. Rav Hai Gaon, the Ramban (Kuntres Dina d'Garmi) and Rashba say so.
Rashi (2b DH u'Mefagel): Mefagel does not pay from Idis, for he damages through mere words, and it is Hezek she'Eino Nikar.
Rebuttal (Tosfos 2b DH Leme'utei): Bava Kama connotes that it was not omitted because he does not pay from Idis, rather, because the Tana does not discuss Kodshim.
Ketzos ha'Choshen (388:2): Rashi says that Moser does not pay from Idis, but Tosfos disagrees.
Lechem Mishneh: According to the Magid Mishneh, when the Gemara (Bava Kama 116b) asked what is the difference whether it is Dina (an obligation according to letter of the law) or a fine, it could have answered that this determines whether his child must pay if the Moser died. The Gemara preferred to say that it determines whether we learn from here to other cases.
Teshuvas Rosh (101:1): I heard from R. Yakov that Reuven charged Shimon 'your father slandered me to Nochrim, and caused a loss to me', and my Rebbi exempted him. He said that Moser is a fine, like the Yerushalmi connotes. We fine only in a place proper for a fine. We fine one who blemished a Bechor, or sold his slave to a Nochri, or worked his field in Shemitah, but we do not fine his son.
Mordechai (Bava Basra 654): If Beis Din obligated a person to pay for being Moser, and he died, even according to the opinion that one may not collect a Milveh Al Peh (a loan without a document) from heirs, here, since it was in Beis Din, there is publicity. However, if Beis Din obligated a fine, they do not fine his son.
Nimukei Yosef (Bava Metzi'a 47b DH Stama): The buyer needed to sell property at a loss, so the seller must pay him due to Dina d'Garmi. All damagers pay from Idis. This shows that anyone who pays due to Dina d'Garmi, pay from Idis (Rashba citing the Ra'avad).
Tosfos (Kesuvos 42a DH Oh): All texts say that if it is still like a fine, one who admits is exempt. However, Rashi says that the question was only about Korban Shevu'ah, but surely in every other respect it is like Mamon. He pays due to his admission, and the father bequeaths it to his heirs. The question was only regarding Shevu'ah, for the verse discusses a deposit, which was initially Mamon. The Sugya is unlike this.
Shulchan Aruch (CM 388:11): If a Moser (Ploni) handed money over to a Nochri or Yisrael extortionist, Ploni must pay from the best of his property everything that the extortionist took.
Beis Yosef (DH u'Mah she'Chasav v'Dino): The Tur says that Moser is like other damagers. This is to teach that he pays from Idis, like it says in Bava Kama, or to teach that we collect from his heirs.
Gra (12): Even though the Gemara and Yerushalmi discuss Moser to a Nochri, it merely discusses a typical case. The Mishnah discusses a Stam extortionist. A Tosefta (Bava Kama Sof Perek 10) says that if people stole together, and one of them repented, he pays only his share. However, if he put the property in front of them (his partners), he must pay for everything (due to Moser).
Gilyon Maharsha: The Shach (348:5) says that if he told a known thief about property, this is only Gerama (weak causation of damage), and he is exempt.
Shach (11): Moser applies also to informing about land.
Shach (12): Even though Dina d'Garmi is only mid'Rabanan, they enacted it like Torah law.
Shulchan Aruch (ibid.): This is even if Ploni did not physically give the money to the extortionist, just he was Margil. If he died, we collect all the damage from his heirs.
SMA (5 and Shach 13): Margil means that he told the extortionist 'Reuven's money is in this place.'
Gra (15): Margil means that he damaged through mere words. Similarly, one who sold a loan document and pardoned the debt is liable due to his words (Mordechai Bava Kama 187).
Shach (14): The Mechaber holds that Moser is Dina, and not a fine, like the Magid Mishneh. Therefore, it is collected from heirs even if he was not judged for this.
i. Rema: Some say that this is only if Beis Din already judged the case, but if not, the heirs are exempt.
Darchei Moshe (CM 388:10, brought in Shach 15): The Rambam says so, and the Magid Mishneh says so in the name of Rav Hai Gaon, the Ramban and Rashba. Also Maharam (599, brought in Mordechai Bava Kama 91) says so.
Rebuttal (Shach 15): This is wrong. Surely, Maharam disagrees. The Magid Mishneh and Ramban hold that Moser is Dina, so it is collected from heirs even if their father was not judged. The Ramban says that Maharam disagrees.
Gra (17): In 66:32, the Shulchan Aruch brought only the first opinion (that Dina d'Garmi is collected from heirs in every case, and the Rema did not bring another opinion).
Gra (18): After he was judged, it is Mamon. See Tosfos (Kesuvos 42a).