חושן משפט א׳Choshen Mishpat 1

Se’if 4ד׳

דיני דגרמי וכן דין המוסר דנין אותם דיינים שאינם סמוכים בא"י: הגה עדים שהעידו עדות שקר והוזמו והוציאו ממון על פיהם ואי אפשר למיהדר דנין אותן ומחייבין אותן לשלם (מרדכי ריש פרק החובל) וע' לקמן סי' כ"ט ס"ב:

[With respect to] the laws of damage caused indirectly,35B.K. 98b; Ket. 86a where it is related that in the case of an action for damage caused indirectly, Rafram (in accord with R. Meir ibid. 100a) compelled R. Ashi, who in his childhood had destroyed by burning, the bond of a creditor, to make payment ‘like a beam fit for decorative mouldings,’ i.e., a proverbial expression for ‘straight and exact’ and out of the best of one’s estate (v. ibid. 5a), whence we see that payment for indirect damage (גרמי) may be collected even by laymen Judges outside the Land of Israel, and such payment is not regarded as a fine (קנס). , Yad Ḥobel u-Mazzik VII, 9. There are three expressions used in Talmudical terminology with reference to different categories of damage that require elucidation, viz., a) היזק שאינו ניכר — damage not discernible in the object itself, such as, leavened matter over which Passover has passed (which had been in the house during Passover) that becomes forbidden for use after Passover, although the damage is not evident here; b) דינא דגרמי — indirect damage which is discernible and is not the result of any action performed, such as, in the case of the fence of a vineyard that has been broken down and the owner of the adjoining cornfield requires the owner of the vineyard to restore it. If the owner of the vineyard neglects the matter and does not restore it, he thereby causes his neighbour’s produce to become forfeit (Deut. XXII, 9) and is held responsible for the loss; c) גרמא בנזקין — where the damage caused indirectly is not evident, e.g., when one places a ladder near his neighbour’s dovecote, thereby causing indirectly a marten to jump in, the law is that since there is also the possibility that the marten will not jump in, hence the one who placed the ladder is not held responsible — N.Yos. to B.K. Cf. ‘Ar. Comp. II, p. 365 s.v. גרם and v. infra § 386 on further distinctions between גרמא and גרמי. Cf. also infra § 66, 32; B.B. 94a, RaShBaM s.v. נותן לו. and likewise, [regarding] the law of the informer,36B.K. 116b-117a records a number of cases regarding ‘informers’ which were adjudicated by the Amoraim in Babylon. , Yad, Gezelah wa-Abedah IX, 3. — Judges who are not duly ordained in the Land of Israel37 supra par. 1, n. 1. may adjudicate them.38One may be compelled nowadays to support his minor children since it is a religious duty and does not belong to the category of fines — K.H. Gloss: Witnesses who offered false evidence and were found Zomemim,39Zomemim, plur. of Zomem, from the rt. זמם ‘to plot’ or ‘to scheme.’ This refers to witnesses whose personal presence at the alleged offence is challenged by other witnesses. In other words, they are proven to have been ‘schemers’ or ‘plotters,’ and they are punished by the law of retaliation (Deut. XIX, 16ff.). According to W.G., Isserles mentions this ruling here, since as in the aforementioned law of the ‘informer’ damage is caused by mere speech without tangible action (this is also apparent in Mord. to B.K. VIII, the source of this ruling) contra M.E. who writes that Isserles states this here as an independent law. and they [the Judges] had [already] collected payment on [the strength of] their testimony,40This applies only if money had already been collected on their testimony, although the principle, as he had purposed to do (Deut. ibid.) and not as he had done (v. Ḥul. 11b, Rashi s.v. אין נהרגין and Torah Temimah ibid.) would imply that only if the money had not yet been collected from the person against whom they plotted is payment exacted from th Zomemim witnesses, but not if payment had been ordered and paid, — nevertheless, in civil liability (as in the present case) the above principle (which is of a penal nature) is not applicable (v. B.K. 4b, Tosaf. s.v. עדים). The reason why the example of הזמה (the refutation of the witnesses by another set of witnesses by proving an alibi, e.g., ‘How can you offer this testimony, if, at the time you state that the alleged offence was committed, you were present with us in another locality?’) is mentioned, and not the example of הכחשה (counter-evidence which contradicts the testimony of the first set of witnesses), is because in the latter case when two witnesses state that So-and-So borrowed money from So-and-So, as a result of which money was collected on their testimony, and subsequently, two other witnesses came and offered counterevidence, the former set of witnesses cannot be ordered to make payment, for we may say, that the evidence offered by the second set of witnesses does not carry more weight than that of the first set. Not so, however, if the witnesses are proven Zomemim (v. infra § 31, 38; § 46, 37) — M.E. , also infra § 28, 3, Gloss. However, if the testimony of the witnesses, who were subsequently proven Zomemim, merely exempted the defendant from taking an oath, thereby causing damage to the claimant, — for if the defendant would have had to take an oath (which, now it appears would have been a false oath), he would have made payment instead of swearing falsely, — nevertheless, the Zomemim witnesses are not required to make restitution, for this is not considered a case of דינא דגרמי (indirect damage which is discernible. , supra n. 35) but rather belongs to the category of גרמא בנזקין (indirect damage which is not evident. , ibid.) — P.Tesh. and it is impossible to recover [the payment now],41e., the claimant who received payment on the testimony of the witnesses who were proven Zommim, had already spent the money. — [the law is that] they judge them and order them to pay.42Mord. to B.K. VIII beg. — G. Thus also RaShaL ibid. Infra § 29, par. 2.

Se’if 5ה׳

אע"פ שדיינים שאינם סמוכים בא"י אינן מגבין קנסות מנדין אותו עד שיפייס לבעל דינו וכיון שיתן לו שיעור הראוי לו מתירין לו (בין נתפייס בעל דינו בין לא נתפייס) וכן אם תפס הניזק שיעור מה שראוי לו ליטול אין מוציאין מידו: הגה ואם יאמר הניזק שומו לי נזקי שאדע עד כמה אתפוס אין שומעין לו אלא אם כבר תפס שמין לו ואומרים לו כ"וכ תחזיק וכ"וכ תחזיר (טור בשם הרא"ש פ' החובל וספ"ק דב"ק) וכל זה דוקא בקנסות הכתובים אבל קנסות שבאים חכמים לקנוס מעצמן על תקנתן גובין בכל מקום וכמו שיתבאר בסי' ב' (מרדכי ס"פ השולח):

Although [the law is] that Judges that are not duly ordained in the Land of Israel28, supra par. 1, n. 1 cannot order the payment of fines,43 supra par. 1 and notes [nevertheless], they may place him44The injurer. under the ban until he appeases his litigant [with money],45Yad, Sanhedrin V, 17 and Alfasi to B.K. VIII on the authority of the Yeshiboth presided over by the Geonim. Thus also Tur. The injurer is placed under the ban only in the case where he or his chattel caused injury, because the injured person does not receive more than the damage incurred, and should we not adopt this stringency one would feel that he is free to injure his fellow-man and be entirely exempt. This, however, does not have reference to cases which involve the payment of the double amount or the four or five-fold restitution — M.E., ShaK, RaShaL. ‘Ir Shushan writes that when the defendant is placed under the ban, which is lifted only after he appeases the plaintiff by compensating the latter for the damage, such compensation must include not only an approximate amount of the actual damages suffered but also of the payment of the double and the four and five-fold restitution. M.E. rejects this ruling because as stated above the injurer is placed under the ban only in the case where there is no additional payment of fines. and as soon as he44The injurer. gives him an amount which appears reasonable [to the injurer to be given] to him, they release him44The injurer. [from the ban],46This does not refer to an exact amount corresponding to the damage but rather to an approximate amount. Thus also Tur on the authority of R. Sherira Gaon, Asheri and Alfasi. This explains the words, ‘they release him (from the ban),’ i.e., although the injured person demands full payment. This also follows from the Gloss of Isserles, ‘whether his litigant was appeased etc.’ The following words, however, ‘if the injured person seized an amount etc.,’ refers to seizure of the full amount. The latter statement has reference to a seizure that also compensates the injured person with respect to the payment of the double amount or the four or five-fold restitution. Biblically, one who admits an act with which a fine is connected, is exempt from the fine (מודה בקנס פטור v. Ket. 43a). But the admission must be made in the presence of a Court duly ordained (v. supra par. 1, n. 1). Hence, nowadays the defendant’s admission would not exempt him from the additional fine also seized by the claimant, save that the following distinction should be borne in mind, viz., that if the defendant admitted that witnesses were present during the time that the damage was done, he is still held responsible and his admission does not exempt him, but if no witnesses were present at that time, the claimant’s seizure of the additional amount corresponding to the fine is not valid — Nethiboth. If the injurer died, we do not place his heir under the ban, for the main purpose of the Geonic enactment (v. supra n. 45) was that violent men should not be on the increase. Hence, the injurer only is placed under a ban but not his heir in the case of the former’s death — Nethiboth and Tummim. whether his litigant was appeased [thereby] or whether he was not appeased. And likewise, if the injured person seized an amount, [viz.,] whatever is proper for him to take, they do not reclaim [it] from him.47Conclusion reached in B.K. 15b; Ket. 41b. This ruling applies even if the plaintiff seized an amount corresponding to the fine as well, for the law is that had we been permitted to adjudicate this matter today, the defendant would have paid an amount corresponding to the actual damage plus the fine. Consequently, the plaintiff’s seizure is considered valid. So also Asheri and Tur (infra § 349 end). , also Isserles infra § 348, 4 Gloss. Caro and Isserles state the law here without making a distinction as to whether the seizure was made at the time the damage was suffered or subsequent to that, or whether the chattel that caused the damage was seized by the injured person or other possessions of the injurer. R. Tam in Tosaf. to B.K. and Ket. ibid. s.v. ואי תפס holds that the plaintiff seized the animal that caused the damage, i.e., before it reached the owner’s hand. Thus Hag. Maim. to Yad ibid. This is substantiated by Ket. 84b according to which R. Tarfon maintains that the seizure of a man’s produce by a creditor is valid after the latter’s death, provided, — as Rab and Samuel explain — it lies in a heap in a public domain, i.e., in a place where Meshikah is possible. In other words, before it passes into the hands of the heirs. , Hag. Derisha u-Perisha. But other chattels cannot be seized by him. For if so, the plaintiff will continue to seize thereafter other items too, and we would not be able to dispossess him thereof, since this comes under the category of ‘fines’ which are not adjudicated today. Asheri on the other hand, maintains, that even other chattels, not necessarily the animal that caused the damage, may be seized. Should he seize more than his damage we may dispossess him of the surplus which does not come under the category of ‘fines’ since the adjudication will be for the surplus seizure which is permissible to be dealt with by the Judges. , also RIDBaZ to Yad ibid. who writes that were R. Tam’s explanation correct, the text should have stated ואי תפסיה i.e., ‘he seized it’ and would be referring to the tort-feasant animal or the like (v. B.K. and Ket. ibid.). Furthermore, the law is that the nuisance, in this case the animal, must be abated, as R. Nathan said, ‘Whence is it derived that a man should not breed a bad dog in his house? — From the text, That thou bring not blood upon thy house (Deut. XXII, 8).’ Hence, we see that Caro and Isserles in stating the law here adopt the opinion of Asheri. Mord. writes that if the damage was caused through ‘Horn’ we follow R. Tam, and in other cases of damage (e.g., cattle that caused damage to man even through ‘Tooth’ and ‘Foot’ which are of infrequent occurrence. Thus K.H.) we adopt the opinion of Asheri. In the case of an ‘innocuous animal’ (Tam. , Glos.) that caused damage, some say that the seizure is valid only if the plaintiff seized the animal proper, for the owner of such an animal pays only half-damages and the payment is made out of the body of the tort-feasant animal (v. Mishna B.K. 34a) — Nethiboth. The seizure spoken of here refers to one made in accordance with Jewish Law but not if carried out through non-Jewish Law (RaShaL) — ShaK. R.A.Eger, however, writes that only ‘in the first instance’ (לכתחילה) is it forbidden to seize through a non-Jew, but if already done (דיעבד) the seizure is considered valid (thus implied in RaShaL, the source of this ruling. Cf. infra § 4 Gloss) — P.Tesh. If a guardian advances the plea of theft in the case of an article which was entrusted with him for safekeeping and took the ‘guardians’ oath’ (שבועת השומרים) after which it was discovered that he himself had stolen the deposited article, — the law is that if the plaintiff seized an amount including the payment of the double amount or the four or five-fold restitution, since nowadays one is not required to pay the latter, the reason being that the oath must be taken before a duly ordained Court comprised of Mumḥin, — the seizure is not valid — ShaK, Nethiboth. Gloss: And if the injured person should say,48To the Judges. 'Assess for me my damage so that I should know up to how much I should seize,' he is not obeyed,49For otherwise it would mean that we adjudicate penal cases. But whatever he is instructed to return to the injurer does not come under the category of penal matters, since he had already seized it himself. RaShaL rules in accord with Alfasi that with respect to anything which is of a civil and not of a penal nature save that it is of infrequent occurrence, we do obey him and assess the damage for him — ShaK. save that if he had already seized, they assess for him [his damage] and instruct him, 'So much you may keep [as your own] and so much you must return [to the injurer].'50Tur on the authority of Asheri to B.K. VIII and to B.K. I end — G. This is contra MaHaRIW who maintains that all that was seized by the claimant must be returned. Isserles, as can be seen, adopts the opinion of Asheri that only the surplus should be restored. Asheri and Tur also rule that if the plaintiff does not produce witnesses that he is entitled to the amount seized, he must return whatever he seized. Isserles, however, writes that this applies only if he seized in the presence of witnesses, but if the seizure was not in the presence of witnesses, and the defendant denies having incurred any damage, the claimant is believed on the principle of Miggo (a legal rule according to which a deponent’s statement is accepted as true on the ground that if he had intended to tell a lie, he might have invented one more advantageous to his case, viz., he might have said, ‘I did not seize at all’). , infra § 87, 30. This principle applies not only to claims of civil liability but also to those of a penal nature (Mord. to B.K. III; Tur infra § 399; Isserles and ‘Ir Shushan) — M.E. R. Mordekai ha-Lewi (cited by Tur ibid.) states that the principle of Miggo is not valid in penal cases. Thus also N.Yos. to B.K. III end; Mag. Mish. to Yad, Nizke Mamon IX end. In the case where the injurer died, the seizure of the orphans’ money or chattels is not valid in penal cases, for legally movable property of orhpans does not become mortgaged to a creditor save that the Geonim decreed that they become mortgaged. But this Geonic decree certainly does not apply to penal cases — Nethiboth, A.H. If the injured person seized an amount which also corresponds to the fine, after which the injurer reseized the fine, the Judges nowadays cannot order this fine to be returned to the injured person, for if so, it would mean that they adjudicate fines — Nethiboth. R.A.Eger, however, states that the amount corresponding to the fine may be restored to the injured person, for once the latter seized this amount it became his personal property and no longer falls under the category of fines — P.Tesh. And all this51That nowadays Judges have no authority to adjudicate fines. [applies] only to fines stated [in Biblical Law], but [as to] fines which the Sages come [from time to time] to impose of their own accord with respect to [one who does not observe] their ordinance[s],52e., ordinances decreed by the Sages for the sake of safe-guarding the Torah laws — A.H. they may collect everywhere30Whether in or outside the Land of Israel. As in the case of one who tears his fellow-man’s garment or breaks his vessels or mutilates his shoots. as will be explained in § 2.53Mord. to Git. IV end — G. Mord. also writes that although we do not order the payment of fines nowadays, we should however, adjudicate these matters in accord with the ‘seven representatives of the town’ (שבעה טובי העיר). , Meg. 27a. In the Decisions of Isserlein it is recorded that one who does not heed the decisions of the Court may be penalized — M.E.