דרשת שבת שובה תש'פ - הרב יעקב הבר אחריות Taking Responsibility For The Tzibbur

(9) Neither repentance nor the Day of Atonement atone for any save for sins committed between man and God, for instance, one who ate forbidden food, or had forbidden coition and the like; but sins between man and man, for instance, one injures his neighbor, or curses his neighbor or plunders him, or offends him in like matters, is ever not absolved unless he makes restitution of what he owes and begs the forgiveness of his neighbor. And, although he make restitution of the monetory debt, he is obliged to pacify him and to beg his forgiveness. Even he offended not his neighbor in aught save in words, he is obliged to appease him and implore him till he be forgiven by him. If his neighbor refuses a committee of three friends to forgive him, he should bring to implore and beg of him; if he still refuses he should bring a second, even a third committee, and if he remains obstinate, he may leave him to himself and pass on, for the sin then rests upon him who refuses forgiveness. But if it happened to be his master, he should go and come to him for forgiveness even a thousand times till he does forgive him.¹⁰Ibid. 85b; Baba Kamma, 92a; Yoma, 87b. C.

In this case, where Rav Naḥman ruled that their transaction is void, in accordance with the Rabbis, the court erred by one-sixth. But in that case, where Rav Naḥman ruled that the orphans cannot protest when they grow up, they did not err by one-sixth. The Gemara asks: If Rav Naḥman’s ruling that the orphans cannot protest is referring to a case where they did not err by one-sixth, why did Shmuel say that they can later protest; what is the nature of their protest? The Gemara answers: They can protest with regard to the locations. One of the orphans can contend that he prefers property in a different location than he was given. § Rav Naḥman says: With regard to brothers who divided property received as an inheritance, they are considered like they are purchasers from each other, and the halakhot of fraud are like those for regular transactions: If there was an error of less than one-sixth in the distribution, the transaction is acquired, i.e., valid. If it was more than one-sixth, the transaction is void. If the error was precisely one-sixth, it is acquired, and the one who received more than his fair share must return the amount of the fraud. Rava says: That which we said, that with regard to less than one-sixth the transaction is valid and the item is acquired, we said only in a case where the brother receiving a smaller share did not appoint an agent to deal with the distribution on his behalf. But if the brother receiving a smaller share appointed an agent, this halakha does not apply, as the one who appointed the agent can say: I sent you to act for my benefit and not to my detriment. The agent’s right to act in this capacity did not extend to a case where it was to the detriment of the one who appointed him. Rava continues: And that which we said, that if the brothers erred by more than one-sixth the transaction is void, we said only when the brother receiving a smaller share did not say: Let us divide the estate by an appraisal of the court. But if he said: Let us divide it by an appraisal of the court, the transaction is valid, as we learned in a mishna (Ketubot 99b): This is the halakha with regard to the appraisal of an article’s value in order to sell it, as done by the judges: In a case where they decreased the price by one-sixth of its market value or added one-sixth to its market value, their sale is void. Rabban Shimon ben Gamliel says: Their sale is valid. Rava continues: And that which we said, that if the brothers erred by one-sixth the one receiving a larger share acquired it and he must return the amount of the fraud, we said only with regard to movable property. But with regard to land, the halakha is that there is no fraud with regard to land. And with regard to land, we said that the halakha of fraud does not apply only when they divided it according to the value of the land. But if they divided it by measure and erred in the measurement, we do not say that there is no fraud. This is in accordance with the statement of Rabba, as Rabba said: Any matter that is according to measure, or according to weight, or according to number, if it turned out to be in error, even if the error was less than the amount that constitutes fraud, it is also returned. § The Gemara returns to discuss various aspects of agency. And there is a difficulty from that which we learned in a mishna (Bava Kamma 59b): In the case of one who sends an item that causes a fire in the hands of a deaf-mute, an imbecile, or a minor, the one who sent it is exempt according to human laws but liable according to the laws of Heaven. If he sent it in the hands of a halakhically competent person, only the halakhically competent person is liable. But why is the halakhically competent person liable? Let us say that the legal status of a person’s agent is like that of himself. The Gemara answers: There it is different, as there is no agency for transgression, as we say: When there is a conflict between the words of the Master, i.e., God, and the words of the student, i.e., a human being, whose words should be listened to? Consequently, the agent is considered to have acted of his own accord, and the one who sent him bears no responsibility. The Gemara comments: And there is a difficulty from that which is taught in a baraita with regard to the halakhot of misuse of consecrated property: In the case of an agent who did not perform his agency but deviated from the instructions of the one who appointed him and made use of consecrated property, the agent has misused consecrated property and is liable to bring the guilt-offering for that sin. In the case of an agent who performed his agency, the owner has misused consecrated property and is liable to bring the offering. The Gemara asks: The baraita states that when the agent performed the agency of the owner, the owner has in any event misused consecrated property. Why? Let us say that there is no agency for transgression. The Gemara answers: The case of misuse of consecrated property is different, as it is derived by means of a verbal analogy of “sin” in this case and “sin” from teruma, as the verse states: “And sin through error” (Leviticus 5:15), with regard to misuse of consecrated property, and it states: “Lest they bear sin for it” (Leviticus 22:9) with regard to teruma: Just as with teruma one can appoint an agent, so too with misuse of consecrated property one can appoint an agent, although the latter is a transgression. The Gemara suggests: And let us derive a principle from misuse of consecrated property, that one can appoint an agent even to perform a transgression. The Gemara explains: This is not done because misuse of consecrated property and misappropriation of a deposit, i.e., a bailee using an item that was deposited with him, are two verses that come as one, i.e., they teach the same matter, that an agent can be appointed to perform a transgression. And any two verses that come as one do not teach their common aspect to apply to other cases. The Gemara clarifies this statement: The verse pertaining to misuse of consecrated property is that which we said, but what is the verse pertaining to misappropriation? This is as it is taught in a baraita: The Torah uses the inclusive term “every” with regard to one suspected of misappropriating a deposit: “For every matter of trespass” (Exodus 22:8). Beit Shammai say: This inclusive term “every” serves to render one liable for speech and thought, i.e., intent to misappropriate, like action. And Beit Hillel say: One is liable only if he actually misappropriates it, as it is stated: “Whether he has not put his hand unto his neighbor’s goods” (Exodus 22:7). Beit Shammai said to Beit Hillel: But isn’t it stated: “For every matter of trespass,” which indicates that one is liable without actually misappropriating the deposit? Beit Hillel said to Beit Shammai: But isn’t it stated: “Whether he has not put his hand unto his neighbor’s goods”? Beit Shammai said to Beit Hillel: If so, if one is liable only for actual misappropriation, why do I need: “For every matter of trespass”? Beit Hillel replied: It is necessary, as one might have thought that I have derived liability only if he himself misappropriated it; from where do I derive that he is liable also if he told his slave or his agent to do so? The verse states: “For every matter of trespass,” to teach that the bailee is liable if one acting on his behalf misappropriates the deposit. The Gemara explains further: This answer, that misuse of consecrated property and misappropriation are two verses that come to teach the same matter, works out well according to the opinion of Beit Hillel. But according to the opinion of Beit Shammai, who establish this verse as rendering one liable for thought like action and do not learn from here that the bailee is liable if one acting on his behalf misappropriates the deposit,

MISHNA: In the case of one who brought his flock of sheep into the pen and locked the door before it in a manner that is appropriate, and despite this sheep went out and caused damage in another person’s field by eating produce or trampling it, the owner is exempt, since he safeguarded the animals appropriately. If he did not lock the door before the sheep in a manner that is appropriate, and sheep went out and caused damage, the owner is liable, since his negligence led to the damage. If the owner locked the door appropriately but the wall of the pen was breached at night, or bandits breached it, and sheep subsequently went out and caused damage by eating or trampling, the owner of the sheep is exempt from liability. If the bandits themselves took the sheep out of the pen and the animals subsequently caused damage, the bandits are liable. If the owner left the animal in the sun, causing it to suffer, or if he conveyed it to a deaf-mute, an imbecile, or a minor, who are not able to safeguard it, and the animal went out and caused damage, the owner is liable because he was negligent. If the owner conveyed the animal to a shepherd to care for it, the shepherd enters in his place and is responsible for the damage. If the animal fell into a garden and derives benefit from produce there, its owner pays for the benefit that it derives and not for other damage caused. If the animal descended into the garden in its usual manner and caused damage there, its owner pays for what it damaged. How does the court appraise the value of the damage when the owner pays for what it damaged? The court appraises a large piece of land with an area required for sowing one se’a of seed [beit se’a] in that field, including the garden bed in which the damage took place. This appraisal includes how much it was worth before the animal damaged it and how much is it worth now, and the owner must pay the difference. The court appraises not only the garden bed that was eaten or trampled, rather the depreciation in value of the bed as part of the surrounding area. This results in a smaller payment, as the damage appears less significant in the context of a larger area. Rabbi Shimon says: This principle of appraisal applies only in a case where the animal ate unripe produce; but if it ate ripe produce, the owner pays the value of the ripe produce. Therefore, if it ate one se’a of produce, he pays for one se’a, and if it ate two se’a, he pays for two se’a. GEMARA: The Gemara clarifies the definition of locking the door in a manner that is appropriate. The Sages taught: What is considered locking in a manner that is appropriate, and what is considered locking in a manner that is not appropriate? If one locked the door such that it is able to withstand a typical wind without collapsing or opening, this is considered a manner that is appropriate, whereas if he locked the door such that it is unable to withstand a typical wind, this is considered a manner that is not appropriate. Rabbi Mani bar Patish said: Who is the tanna who taught with regard to animals that are forewarned that it is sufficient for the owner to provide only reduced safeguarding? Since the mishna deals with damage categorized as Eating or Trampling, for which all animals are considered forewarned, it must be in accordance with the opinion of Rabbi Yehuda, as we learned in a mishna (45b): If the owner of an ox tied it with reins to a fence or locked the gate before it in a manner that is appropriate, but nevertheless the ox went out and caused damage, whether the animal is innocuous or forewarned the owner is liable because this is not considered sufficient precaution to prevent damage; this is the statement of Rabbi Meir. The mishna continues: Rabbi Yehuda says that if the ox is innocuous the owner is liable even if he safeguarded it appropriately, since the Torah does not limit the required safeguarding for an innocuous animal. But if the ox is forewarned, the owner is exempt from payment of damages, as it is stated in the verse describing the liability for damage caused by a forewarned animal: “And the owner has not secured it” (Exodus 21:36), and this ox that was tied with reins or behind a locked gate was secured. Rabbi Eliezer says: A forewarned ox has no sufficient safeguarding at all other than slaughtering it with a knife. According to this mishna, only Rabbi Yehuda maintains that reduced safeguarding is sufficient to render exempt from liability the owner of an ox that is forewarned. The Gemara answers: You can even say that the mishna is in accordance with the opinion of Rabbi Meir, who holds that the owner of a forewarned ox is liable even if he provides only reduced safeguarding. Although animals are considered forewarned with regard to Eating and Trampling, one cannot apply to them a halakha stated with regard to an animal that is forewarned with regard to Goring. The halakha is different with regard to Eating and Trampling since the Torah limited the required standard of safeguarding for them. As the amora Rabbi Elazar says, and some say it was taught in a baraita: There are four matters for which the Torah limited their required standard of safeguarding, and these are: Pit, and Fire, Eating, and Trampling. Where does the Torah limit the required standard of safeguarding with regard to the category of Pit? As it is written: “If a man shall open a pit, or if a man shall dig a pit and not cover it, and an ox or a donkey fall therein, the owner of the pit shall pay” (Exodus 21:33). One can infer: But if he covered it, he is exempt from liability, even though it is possible that the pit would become uncovered in the future. Where does the Torah limit the required standard of safeguarding with regard to the category of Fire? As it is written: “The one who kindled the fire shall pay compensation” (Exodus 22:5), which is interpreted to mean that one is exempt from liability unless he acts in a manner that is similar to actively kindling the fire in another’s property by being negligent. Where does the Torah limit the required standard of safeguarding with regard to the category of Eating? As it is written: “If a man causes a field or vineyard to be eaten, and he set his animal loose, and it feed [uvi’er] in the field of another” (Exodus 22:4). This indicates that the owner does not bear liability unless he acts in a manner that is similar to causing his animal to feed there, by being negligent. Where does the Torah limit the required standard of safeguarding with regard to the category of Trampling? As it is written: “If a man causes a field or vineyard to be eaten, and he set his animal loose [veshilaḥ], and it feed in the field of another” (Exodus 22:4). This indicates that the owner is not liable unless he acts in a manner that is similar to setting his animal loose. And it is taught in a baraita: With regard to the term veshilaḥ: This is referring to damage by Trampling, and similarly, the verse states: “That send forth [meshaleḥei] the feet of the ox and the donkey” (Isaiah 32:20). With regard to the term uvi’er: This is referring to damage by Eating, and similarly, the verse states: “As one consumes with the tooth, until it be all gone” (I Kings 14:10). Evidently, the reason for the owner’s liability is specifically that he acted in a manner that is similar to setting the animal loose or causing it to feed. One can infer: But if he did not act in such a manner, even if he provided only reduced safeguarding, he is not liable. Rabba said: The wording of the mishna is also precise, as it taught the halakha specifically with regard to sheep. This raises the question: Since we have been dealing with cases involving an ox in all the previous mishnayot, then let this mishna also teach the halakha with regard to an ox. What is different in this mishna that it teaches the case of sheep? Is it not because the Torah limited its requirements specifically with regard to the safeguarding against damage that is more likely to be caused by sheep, i.e., caused by Eating and Trampling, since sheep are unlikely to gore? If so, the wording of the mishna is in accordance with the opinion of Rabbi Meir, who holds that a reduced level of supervision is sufficient only with regard to Eating and Trampling, but not Goring. The Gemara rejects this: One can not necessarily derive from the wording of the mishna that it is in accordance with the opinion of Rabbi Meir. Perhaps the mishna specifically uses the case of sheep to teach the opinion of Rabbi Yehuda, because if it would have used an example of an ox here, one might have thought that it also includes damage caused by Goring, about which it is not written in the Torah that reduced supervision is sufficient. Therefore, the mishna specifically uses the example of sheep, to indicate damage caused by Eating and Trampling, about which it is written that reduced supervision is sufficient. And it teaches us that only with regard to Eating and Trampling, for which animals are considered forewarned from the outset, is reduced supervision sufficient according to the opinion of Rabbi Yehuda. The Gemara concludes that this is a valid reading of the mishna and one may learn from it that the mishna may even be in accordance with the opinion of Rabbi Yehuda. § It is taught in a baraita that Rabbi Yehoshua said: There are four matters in which one who commits an offense concerning them is exempt from liability according to human laws but liable according to the laws of Heaven and it would be proper for him to pay compensation, and the cases are as follows: One who breaches a fence that stood before another’s animal, thereby allowing the animal to escape; and one who bends another’s standing grain before a fire so that it catches fire; and one who hires false witnesses to testify; and one who knows testimony in support of another but does not testify on his behalf. The Gemara clarifies each of the cases listed in the baraita. The Master says: With regard to the case of one who breaches a fence that stood before another’s animal, what are the circumstances? If we say it is speaking of a stable wall that would not have fallen by itself, the one who breached it should also be liable according to human laws, at least for the damage caused to the wall. Rather, here

(1) Moshe received the Torah from Sinai, etc.: (I will begin the commentary on "Avot" of our great, pious and holy rabbi, Rabbi Yonah the son of Rabbi Avraham, may he be remembered for blessing.) Our rabbis, may their memory be blessed, said (Bava Kamma 30a) "One who wishes to be pious should fulfill the words of Avot (the Ethics of the Fathers), and [some] said about it, the words of Damages (Nezikin)". And since a person ascends the steps of piousness by doing one of these matters, they placed [Avot] in the Order of Damages. And even though they also said to fulfill the words of Blessings (Berakhot) which is in the order of Seeds (Zeraim); because it speaks of the blessings on seeds and fruits, they placed it in that order (Editor's note: See what Midrash Shmuel wrote about this in the name of Rabbi Yosef Nachmias, may his memory be blessed). Furthermore, since it is the teachings of the Sanhedrin, they placed it in the order of the laws (of Damages); and so [too], all the sages mentioned [here] until Rabban Yochanan ben Zakkai are all from the Sanhedrin.

(2) Moshe received the Torah from Sinai and transmitted it to Yehoshua: Both the written Torah and the oral Torah. As the Torah was given with its explanation. As if it were not so, it would be impossible to understand [its contents]. As behold, it is written (Leviticus 19:13), "do not rob" - and all of the [laws of] damages are within this negative commandment, and they themselves are the Torah that was received by Moshe at Sinai, even though they were not written. And it is also written (Deuteronomy 17:8), "between a blood and a blood and between a judgement and a judgement and between an infection and an infection" - and many of the sightings of blood and many of the various judgments and so many of the infections are known to us by the transmission [of this information]... And they are not explained [in writing] because it is not allowed to be written. And it is written (Exodus 24:12), "and I will give you the stone tablets and the Torah and the commandment" - "Torah" is the written Torah; "and the commandment" is the oral Torah. it comes out that you say that every commandment that He gave to Moshe at Sinai, was given with its explanation. And that which is written is what is called the written Torah and the explanation is what is called the oral Torah. And Moshe learned it from the mouth of the Mighty One.

(3) and transmitted it to Yehoshua: As it is stated (Exodus 33:11), " but his attendant, Joshua son of Nun, a youth, would not stir out of the tent."

(4) and Yehoshua to the Elders: As it is stated (Joshua 24:31), and all the days of the elders who had length of days after Joshua."

(5) and the Elders to the Prophets, and the Prophets transmitted it to the Men of the Great Assembly: And that is Ezra and his group. And [some of] the prophets of the Second Temple were in that group, as they said in Yevamot 16a, "Rabbi Dosa ben Harkinas said, 'When Chaggai said these three things, he was sitting on this mortar.'" Hence the prophets of the Second Temple were there after the destruction, since Haggai the prophet was there. And the men of the Great Assembly transmitted it to the men of their generation. And the sages [transmitted it] to their children after them in each and every generation. And the transmission was from one sage to another, until all of the sages of Israel gathered and a suggestion was given from all of their mouths to write down the oral Torah. And [so] they wrote and sealed the Talmud, and afterwards nothing was added to it and nothing was taken away from it. And that generation also transmitted it to the Geonim and the transmission was from one Gaon to another, one rabbi to another - until this day.

(6) They said three things: Be deliberate in judgment: They said [this] to teachers of legal decisions and decisors of legal decisions and decisors of litigation; that they should not rely on the first thought, but rather upon great deliberation and incisive investigation, so that they not err in their evaluation. As a man who is quick to make a decision is called a sinner - and even though he thought he was saying the truth, it is not [considered] accidental but rather is [considered] to be close to volitional, since he did not put it into his heart to say, the quick hearts do not understand to know. As error is found in all men, as the rabbis say (Avot 4:13), " Be careful in study, for an error in study is considered an intentional transgression." And about this matter, Shlomo, peace be upon him, stated (Proverbs 26:12), "If you see a man who thinks himself wise, there is more hope for a dullard than for him." And it is as the sages, may their memory be blessed, said (Avot 4:7), "One who is nonchalant about giving legal decisions is an imbecile, wicked, and arrogant in spirit." Therefore, it is incumbent upon a man who makes legal decisions to go back and forth on the matter and let his thought ripen and to hold on to it; as the matter that they said (Sanhedrin 35a) [that] we should ripen a judgement, as through ripening and deliberation, he adds reasoning to his reasoning and sharpness to his sharpness, until he judges a completely true judgement. As he will see to say with the second thought that which he did not see with the first. And about this matter, Asaf stated (Psalms 73:21), "As my heart ripened and my kidneys were silent," which is to say [that] after my heart has ripened and been sharp with wisdom and with my kidneys, I have been silent and have refined my understanding to know. As without this, I have not known, and this is my portion. (And as) it is after it, "I was a dolt, without knowledge; I was brutish toward You." And the reason [they] said, "Be deliberate in judgment," is in order to warn about litigation more than other legal decisions, as they are fundamental in the knowledge of Him, may He be blessed and elevated; and as Yirmiyahu the prophet stated (Jeremiah 9:23), "ponder and know Me, for I am the Lord who makes kindness, justice, and equity in the world; for in these I delight, declares the Lord." And how can a man a ponder and know God, as it is not possible? However with this have we known Him, by dong judgment and justice, since God does these. And that is what is stated (Jeremiah 22:16), "He judged for the poor and needy— then all was well. That is truly knowing Me, declares the Lord." And it is written in another place (Micah 6:8), "And what does the Lord require of you? Only to do justice and to love kindness," since judgments are a pillar of the Torah. And from them the world is made firm, as is said in the Midrash (Shemot Rabbah 30 3), "It is written in front of The Ten Commandments, 'and they will judge the people at all times' (Exodus 18:22). And after the Ten Commandment, it is written, 'And these are the laws' (Exodus 21 1). There is a parable [about this] concerning a matron that was walking along the way and her armed guards were walking in front of her and behind her."

(7) raise up many disciples: As per the opinion of Beit Hillel. [This is] like the matter that we have learned (The Fathers According to Rabbi Nathan 2:9), "Beit Shammai say, 'We only teach a student who is fit, modest, proper and who fears Heaven, as it is stated (Job 20:26), "All (darkness) waits for his treasured ones." And Beit Hillel say, 'We teach everyone: One hundred so that ten good ones will come out from them; and ten so that two will come out of them; and two, "since you do not know which will be proper, this one or that one or if they will both be equally good." And so was there a story of Hillel, who brought together all of his students and said to them, 'Are all of you here?' They said [back] to him, 'Yes.' One of his students said to him, 'All of them are here except the smallest one.' He said to them, 'Let the small one come, for the future generation will be conducted by him .' And they brought Rabban Yochanan ben Zakkai. Behold that one should not push off the small ones for the bigger ones, since the kids will become goats." And about this matter the rabbis, may their memory be blessed, expounded (Yevamot 62b), "'Sow your seed in the morning, and don’t hold back your hand in the evening' (Ecclesiastes 11:6), - if you have raised disciples in your youth, raise disciples in your old age." Behold that the multiplication of disciples is a very good thing and a merit to the teacher.

(8) and make a fence for the Torah: As the matter that is stated (Leviticus 18:30), "And you shall guard My guarding"; which is to say, make a guarding for my guarding. And a fence is a great thing and it is praiseworthy to make a fence for the commandments so that the one who fears the word of God not stumble in them. Hence one who observes the words of the sages, may their memory be blessed - which are the fences for the commandments of the Torah - has shown more love for [this] fear than one who does the commandment itself. As the doing of the commandments does not prove fear like the one who observes the fences, since he is careful from the start not to come to error. However, the one who does the commandment but does not observe the fence shows us that if it is good in his eyes to do the commandment, [yet] it is not bad in his eyes if he errs in it; and that he is not concerned about the fear that he will make a breach in it, and 'one who makes a breach will be bitten by a snake.' Behold that the words of the sages, may their memory be blessed, are pillars and 'trees' in the fear of Heaven; which is a foundation of the world and a fundamental principle of virtue. And all of the commandments are appetizers for it, as they said in the Midrash (Shir HaShirim Rabbah 1), "'For your love is more delightful than wine' (Song of Songs 1:2) - the words of the scribes are more beloved than the wine of Torah."