THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Metzia, 62
BAVA METZIA 62 (10 Shevat) - Dedicated by Hagaon Rav Yosef Pearlman of London,
England, in memory of his father in law, Harav Yeshayah ben Rav David Chaim Goldberg
Z"L, who passed away on 10 Shevat 5738.
1) WHOSE LIFE COMES FIRST?
QUESTION: Rebbi Elazar derives from the verse, "v'Chei Achicha Imach" (Vayikra 25:36)
that Ribis which is taken wrongly must be returned, "so that the borrower will be
able to live." Rebbi Yochanan argues and maintains that the verse is teaching the
Halachah expressed in the Beraisa: If two people are traveling in the desert and one
of them has a flask of water but it is only enough water to enable one of them to
reach civilization, Ben Petura rules that it is better for them to share the water
even though neither one will survive, rather than to have one of the drink it and
watch the other person die. Rebbi Akiva learns from the verse "v'Chei Achicha Imach"
that one's own life takes priority over the life of someone else, and therefore the
owner of the flask should drink the water.
2) THE OBLIGATION TO RETURN "RIBIS KETZUTZAH"
The Beraisa implies that without the verse "v'Chei Achicha Imach," logic would
dictate that the ruling of Ben Petura should be followed. The reasoning for this is
that as soon as the other person is about to die of thirst, the owner of the flask
would be required to give him enough water to keep him alive because of the Mitzvah
of "Lo Sa'amod Al Dam Re'echa," the injunction not to let one's fellow man die. The
owner of the flask would then take a drop of water for himself to prevent himself
from dying, but he would leave over whatever he does not need so that he could
continue to support the other person.
TOSFOS in Sanhedrin (73b) and elsewhere writes that even though a person must give up
his life rather than kill another Jew, nevertheless if he is faced with an option of
*refraining* from doing an action and thereby causing another Jew to die, he is not
required to give up his life and he indeed may refrain from the action. The Halachah
of "Yehareg v'Al Ya'avor" applies only when a person is asked to do an *action* which
will kill someone else, but not an *inaction*. Why, then, should logic dictate that a
person should offer his friend the flask to prevent him from dying? Since the life of
the owner of the flask is at stake, and he can save his life with an *inaction* (i.e.
not giving the flask to his friend), then "Yehareg v'Al Ya'avor" should not apply and
he should be able to keep the water for himself in order to stay alive!
In fact, in this case, the prohibition that the owner of the flask will transgress by
not giving the water to the other person is not the Isur of murder, "Lo Sirtzach,"
but rather the Isur of "Lo Sa'amod Al Dam Re'echa," and thus he certainly should be
permitted to transgress the Isur through an inaction when his life is at stake!
(CHIDUSHEI RABEINU CHAIM HA'LEVI, Hilchos Yesodei ha'Torah 5:1, who uses this
question as a proof against Tosfos; see also HE'OROS B'MASECHES BAVA METZIA here.)
(a) The CHAZON ISH (in his comments to Chidushei Rabeinu Chaim there, and in Choshen
Mishpat, Likutim #20 on this Daf) suggests that since the life of the owner of the
flask is not at immediate risk at the moment that he gives the water to his companion
to drink, it is not comparable to a case in which a person's life is directly
threatened. Even though he might die eventually as a result of the lack of water,
nevertheless his companion's immediate need overrides the possible long-term need of
his own. A person cannot transgress a Mitzvah in order to prolong his life if there
is no immediate threat to his life now.
(b) The Chazon Ish adds that a case can be contrived in which the owner of the flask
will indeed be doing an action that will endanger his companion's life. Such a case
exists, for example, when there are *three* people walking together in the desert,
and one of them has an extra flask of water and the other two have none. It should be
prohibited for the owner of the flask to give the entire flask to one of the two
others, because by doing so he will be causing the death of the third person through
an action. Rebbi Akiva, who learns from "v'Chei Achicha Imach" that the owner's life
takes precedence, will rule that the owner also has the prerogative to give the flask
to whomever he chooses.
(c) Another answer might be suggested as follows. When the person who owns the flask
drinks the water, he is doing an action. It is that action that is prohibited because
of the threat to his companion's life. Even though the drinking cannot be compared to
killing ("Lo Sirtzach"), it *is* a transgression of "Lo Sa'amod Al Dam Re'echa,"
because if he drinks even a drop it will prevent his companion from reaching
civilization. Therefore, neither the owner nor his friend should drink from the
flask, because by doing so he will be actively causing the other one to die. Why,
then, does Ben Petura say that both of them should drink from the flask? He should
say that *neither* may drink from the flask!
The answer is, as the Toras Kohanim writes, that Ben Petura also learns his ruling
from "v'Chei Achicha Imach." He understands the verse to be saying that "you and your
brother shall *live* together" (and not die together).
Accordingly, the Gemara's words are precise when it says that Rebbi Yochanan uses the
verse of "v'Chei Achicha Imach" "*for the way the Beraisa uses them*." That is,
whether he rules like Ben Petura or like Rebbi Akiva, he uses the verse for the
Halachah of the Beraisa. (When Rashi (DH b'Din and DH Lav) writes that Rebbi Yochanan
learns the Halachah of *Rebbi Akiva* from "v'Chei Achicha Imach," he might simply be
choosing to express the Halachic opinion.) (M. Kornfeld)
QUESTION: Rebbi Elazar and Rebbi Yochanan argue whether one must return Ribis
Ketzutzah that one collected from a borrower. The Gemara cites proof for Rebbi
Elazar's opinion that one must return the Ribis from a Beraisa which states so
3) THE EXEMPTION FROM "MALKUS" FOR TRANSGRESSING THE PROHIBITION AGAINST "RIBIS"
In order to defend the view of Rebbi Yochanan, the Gemara says that this matter might
be the subject of a Machlokes Tana'im, and the Gemara cites a different Beraisa in
which the Tana'im argue whether the Malveh receives Malkus for collecting Ribis or
whether he is exempt because he has a way of removing the Isur that he did (i.e. by
returning the money). This implies that according to the first Tana, the lender has
no obligation to return the money. The Gemara rejects this defense of Rebbi Yochanan,
saying that neither of the Tana'im in the Beraisa would exempt the lender from Malkus
because he must return the money. Rather, the Tana that exempts from Malkus does so
because the Malveh may destroy the Shtar. RASHI (DH Lo) explains that the Gemara
means that according to both Tana'im, returning the money does not exempt one from
Malkus because the Isur of Ribis is not an Isur that is rectifiable by the
performance of a Mitzvas Aseh to return the money.
The flow of the Gemara seems illogical. The Gemara is trying to reject the support
which was brought for Rebbi Yochanan from this Beraisa, and thus we would expect the
Gemara to say that both Tana'im agree with Rebbi Elazar that the money must be
returned. Instead, though, the Gemara seems to be saying that *both* Tana'im agree
that the money need *not* be returned, and thus the Beraisa is a *support* for Rebbi
Yochanan and not a rejection! (TOSFOS DH Lo; because of this question, Tosfos
explains the Gemara differently than Rashi.)
ANSWER: The RAMBAN and other Rishonim explain that according to Rashi, the Gemara
*is* answering that both Tana'im agree with Rebbi Elazar and that they hold that
Ribis Ketzutzah must be returned. When the Gemara says that Ribis is not rectified by
the Mitzvas Aseh to return the money, it does not mean that there is no Mitzvah to
return the money. Rather, it means that the Mitzvah to return the money is not meant
to rectify the wrongdoing of taking Ribis, but is an independent Mitzvah "to return
it to the borrower in order that he may live." The RASHBA adduces proof for this from
the fact that the borrower is also commanded not to pay Ribis. Obviously, then, the
Isur of Ribis is not merely taking someone else's money, but rather participating in
such a business deal. Thus, it cannot be compared to the Mitzvah to return a stolen
object, which rectifies the wrongdoing of stealing (see Makos 16a).
This approach also answers why the Gemara does not ask what Rebbi Elazar does with
the verses that Rebbi Yochanan cites to prove that Ribis need not be returned (see
Ritva). Rebbi Elazar agrees that the Ribis is "l'Misah v'Lo l'Hishavon" -- Ribis is
punishable with death and cannot be returned. However, this does not mean that there
is no Mitzvah to return it. Rather, it means that returning it is an independent
Mitzvah and does not serve to rectify the wrongdoing nor to lessen the perpetrator's
QUESTION: The Gemara concludes that Tana'im argue whether the Isur of "Lo Sesimun"
(Shemos 22:24) is punishable with Malkus as soon as a Shtar with Ribis is written, or
it is exempt from Malkus before the Ribis is actually collected since the Shtar can
be destroyed. When Rebbi Nechemyah and Rebbi Eliezer ben Yakov teach that the Malveh
and Arev (that is, an Arev Kablan who is collecting the Ribis from the Loveh that the
Malveh collected from the Arev; see Ritva here and Rashba to 71b) are exempt from
Malkus, it is because if they destroy the Shtar without collecting the Ribis then
they have not transgressed the Isur of "Lo Sesimun."
The Gemara cites a Mishnah which teaches that the Loveh and witnesses (and scribe)
also transgress the Isur of "Lo Sesimun" when they prepare a Shtar that includes
Ribis. If the Shtar is destroyed, then they, too, should be exempt from Malkus! Why,
then, do Rebbi Nechemyah and Rebbi Eliezer ben Yakov teach that only the Malveh and
Arev are exempt from Malkus of "Lo Sesimun?" They should exempt the Loveh, witnesses,
and scribe as well!
(a) The RASHBA explains that only a person who has the ability to destroy the Shtar
is exempt from Malkus as long as the Shtar can be destroyed. Since the Loveh,
witnesses, and scribe cannot destroy the Shtar (since it is not in their hands to do
so), they transgress "Lo Sesimun" as soon as the Shtar is written and are liable for
(b) The RAMBAM, however, makes no mention of Malkus with regard to any of the Isurim
of Ribis. He does not include the Isur of Ribis or "Lo Sesimun" among the list of
prohibitions (in Hilchos Sanhedrin 19:1) that carry a punishment of Malkus. It is
clear from the Rambam that even the witnesses are not punished with Malkus.
In addition, even if the Shtar is not destroyed and the Ribis is collected, the
Malveh is not punished with Malkus. Why is he not punished with Malkus? (PNEI
With regard to the Malveh, it seems that the Rambam maintains that according to Rebbi
Elazar, who requires the Malveh to return the Ribis, just as the Mitzvah to return
the Ribis exempts the Malveh from Malkus for the Isur of "Lo Sashich," it also
exempts him from Malkus for writing the Shtar in the first place (the Isur of "Lo
Sesimun"). (This also seems to be the opinion of Rashi DH Lo, who implies that if the
Isur of "Lo Sashich" would be "Nitak l'Aseh," then the Mitzvas Aseh would remove the
Malkus for "Lo Sesimun" as well. Tosfos (DH Lo) argues with Rashi on this point.)
The Rambam learns as the Gemara assumed originally, that Rebbi Nechemyah and Rebbi
Eliezer ben Yakov exempt the Malveh from Malkus because it is "Nitak l'Aseh" by the
Mitzvas Aseh to return the Ribis. He therefore rules that "Lo Sesimun" is also "Nitak
l'Aseh" by the Mitzvas Aseh to return the Ribis. That is why the Malveh and Arev can
never receive Malkus for the Isur of "Lo Sesimun," nor for "Lo Sashich."
Why, though, do the Loveh, witnesses, and scribe not receive Malkus, since they do
not have any Mitzvah to return the Ribis or to destroy the Shtar, as neither of these
acts are within their control? The SEFER HA'CHINUCH (end of #68) answers that it is
not appropriate for the Malveh to be exempt from Malkus and for those who were
secondary to his sin to be punished with Malkus. If the Malveh is exempt, then the
witnesses and scribe who helped him must also be exempt.
Why, then, does the Beraisa teach that only the Malveh and Arev are exempt from
Malkus? The others involved are also exempt! The answer is that the others are exempt
from Malkus only because the Malveh and Arev are exempt. Therefore, the Beraisa
discusses only the Malveh and Arev, since the Malkus of the others is dependent on
(c) Perhaps the Beraisa does not mention whether the Loveh, witnesses, and scribe
receive Malkus, because even without being "Nitak l'Aseh," they would be exempt from
Malkus, since they transgressed the Isur without an action, and the Beraisa maintains
that a "Lav she'Ein Bo Ma'aseh" (a transgression committed without an action) is not
punished with Malkus. (Writing or signing the Shtar is not considered an action. See
PNEI YEHOSHUA.) Even though the Loveh does an action when he pays the money of Ribis
to the Malveh, he cannot be punished with Malkus for it, since he is forced to do so
by the Malveh. Therefore, the only ones who are performing a "Lav *she'Yesh* Bo
Ma'aseh" are the Malveh and Arev who are actively collecting the Ribis from the
Loveh. (M. Kornfeld)