Shabbat Parashat Mishpatim | 5769
Two Damagers but Only One Liable
Hemdat HaDaf HayomiRabbi Ofer Livnat
This week in the Daf Hayomi (53a-b), we learned Rebbi Natan's rule: If there are two damagers, even though, in principle, each one should pay half the damage, if for some reason one of them cannot be held liable, the other must pay the entire cost of the damage. Therefore, if two animals belonging to two people caused damage, each owner has to pay for half of the damage. However, if one of the animals was Hekdesh (sanctified to the
The Ketzot Hachoshen (410, 3), based on this principle, questions an interesting Halacha in the Shulchan Aruch. There are situations where, if a judge erred and mistakenly made a litigant pay, then he must compensate the litigant. If the court was comprised of three judges who erred, each judge pays a third of the money lost. What happens if it was a court comprised of three judges, but only two erred, and the third judge was correct, but his opinion was not accepted, because he was in the minority? The Remma (Choshen Mishpat 25, 3) rules that the judge who was correct is exempt, while the two judges that erred must each pay a third of the loss, and the litigant loses the remaining third. The reasoning of the Remma is that, since the two judges could not have ruled without the third, they cannot be held liable for the entire loss. The Ketzot questions this ruling in light of Rebbi Natan's principle. Why do we not say that, although all three judges caused the damage, since the judge who was correct cannot be held liable, the other two judges should cover the entire loss?
In order to resolve this question, the Ketzot quotes a passage in the Gemarah that we learned a few weeks ago in the Daf Hayomi. The Gemarah (13a-b) deliberates regarding an ox dedicated to be a Korban Shelamim (a sacrifice where most of the animal is eaten by the owner and only certain parts, called Imoorim, are burned on the altar), that caused damage. Regarding a Shor Tam (an ox that does not usually gore) that gored, the damage is only paid up to the value of the ox. However, regarding a a Korban Shelamim, only the part of the meat which is eaten by the owner is considered to be his property, while the Imoorim, which are burnt on the altar, are not considered to be his property and their value cannot be taken into account when paying for the damage. Furthermore, the Gemarah states that, even if there is enough value in the meat to cover the damage that the owner is required to pay, he still does not pay all of it, but rather one calculates, based on the value of the meat in comparison to that of the Imoorim, how much of the damage is attributed to the meat and how much to the Imoorim, and only that attributed to the meat must be paid. The Gemarah explains that this ruling is in accordance even with the principle of Rebbi Natan, since only when the damagers acted separately can we hold one liable for the entire damage, but in this case, since the meat and the Imoorim are part of the same ox, and one cannot cause damage without the other, one cannot hold one of them liable for the entire damage.
Based on this distinction, the Ketzot resolves the ruling of the Remma. Three judges comprising a Beit Din, a judicial court, do not function separately, but rather they together form a Beit Din, and the ruling of the Beit Din is what makes the litigant pay. Therefore, if the ruling of the Beit Din was mistaken on the basis of a majority opinion, and thus the minority opinion cannot be held liable, the two judges cannot be held liable for the entire damage, since they did not act independently, but rather as part of the Beit Din. Therefore, they are only liable for their relative part in the Beit Din, which is two thirds.
Another interesting discussion regarding the principle of Rebbi Natan is what happens when there are two damagers and both are liable, but one cannot pay because he does not have any money. The Tur (Choshen Mishpat 410, 29) quotes the opinion of the Rammah who states than in this case as well, the other damager must pay for the entire damage. The Tur, however, disagrees and states that only when one cannot fundamentally be held liable is the other damager required to pay for the entire damage. Both opinions are quoted in the Shulchan Aruch (Choshen Mishpat 410, 37).
Top of page
Print this page
Send to friend
This edition of Hemdat Yamim is dedicated to the memory of
R ' Meir ben Yechezkel Shraga Brachfeld
Hemdat Yamim is endowed by Les & Ethel Sutker of
and Louis and Lillian Klein, z”l.