May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel ben Harav Yoel David Balk, a”h.

This week we learned Bava Kamma 116. Here are some highlights.

Damaging an insured item

Shu”t Maharsham (Chelek Daled Siman 7) discussed damage to an insured house. A wealthy man was angry at his friend. He decided to burn down the man’s house. He did not want to risk anyone’s life. He made sure to perform the arson when the home was empty. He also first checked and confirmed that the homeowner had insurance. Then he burned down the house. When his friend demanded reimbursement from him, he argued that he did not owe anything. “You were fully insured. The insurance company reimbursed you in full. I caused you no loss. I owe you nothing. True, it is frustrating to rebuild, but you angered me and I wanted to teach you a lesson.” Was the arsonist exempt from paying?

Maharsham ruled that, based on our Gemara, the damager had to pay for the full value of what he burned down. The fact that the homeowner had an insurance policy and that policy covered all the costs was irrelevant. He had caused damage and had to pay for his actions. This can be deduced from our Gemara’s lesson about donkeys.

The Mishnah taught that if a river swept away my donkey, valued at 100, and my friend’s donkey, valued at 200, and I jumped in to save the animal of my friend and as a result could not save my animal, my friend would only owe me money for my labors—swimming to the animal and getting it out. My friend would not owe me the value of my donkey. However, if before I went into the water I made a deal with him and stipulated, “I will go in and save your donkey, even though as a result I will lose my donkey, on condition that you pay me the 100 for my donkey.” Then he would owe me money for my efforts as well the 100 for my donkey. Rav Kahana asked, “What would the law be if the owner of the more expensive donkey had agreed to pay for the less-expensive animal, and the owner of the cheaper animal saved the more valuable beast; but then the less-expensive animal came out of the river on its own?” Would the owner of the donkey worth 200 still owe his friend 100 for his animal?

The Gemara reaches the conclusion that the man whose animal was extricated would still owe his friend the 100. It was Hashem’s decision to gift to him the cheap animal by saving it. Hashem’s gift is irrelevant to the obligation. The man with the donkey worth 200 had promised to give his friend wages for efforts and for his animal. He still owed him that amount.

Similarly, the insurance company payment to the owner of the house is irrelevant to the actions of the damager. It is a payment from another source. The damager must still pay for the house that he burned down.

Or Sameach (Sechirut 7:1) also ruled like the Maharsham. He, too, understood our Gemara to mean that a gift from Hashem is irrelevant to the damager. So, too, an insurance payment would be irrelevant to the damager. He would owe the full cost of the house he ruined.

Shu”t Harei Besamim (Mahadura Tinyana Siman 245) disagrees with Or Sameach and Maharsham. He ruled that if the owner of the house was reimbursed fully by the insurance company and then he pressed a claim against the arsonist, the damager would not owe anything. There had been no damage, he had all his money back, and, as a result, there would be no obligation to pay. (Chashukei Chemed, Daf Digest, Mesivta)

When building a needed new shul building, does every member contribute equally, or do the wealthy pay more?

Our Gemara taught that if bandits attacked a caravan and someone paid them off, he is to be reimbursed from the other travelers according to their wealth. The wealthy should pay more of the ransom than the poor. The bandits were looking for wealth. Those with more wealth benefited more. Therefore, they are to contribute more toward that benefit. However, if the group had an expenditure that was needed to save lives, such as the cost of the guide, the costs are also divided based on people. Each person would pay an equal amount of the cost. Each traveler was equally in danger and equally saved from getting lost in the desert and dying.

Yam Shel Shlomo on our Gemara taught that communal mitzvah costs are to be shared equally by every member of the community. Each person needs a shul. Each person benefits equally from the shul. Therefore, every member should pay equally for the costs of a new shul building, mikvah or communal teacher.

The Mordechai (Bava Batra Siman 478-9) disagreed. He felt that our Gemara contained a principle. Costs to save or preserve lives are divided by the person. However, all other costs are divided by wealth. Therefore, the cost of the new shul building should be divided up according to the wealth of the congregants.

There is a contradiction in the Rama about this issue.

In Choshen Mishpat (Siman 173 Se’if 3), Rama ruled that to hire a chazan, build a shul or pay for a teacher to teach children whose parents cannot afford to pay tuition, the costs are divided according to wealth. However, in Orach Chaim (53:23) he ruled that when hiring a chazan, half the cost should be divided equally among the community members and half according to wealth. This seems to contradict his own words in Choshen Mishpat where he ruled that the costs of hiring a chazan are divided according to wealth.

Machatzit Hashekel in Orach Chaim gave an answer. The basic law is that the costs should be carried based on wealth. However, in some towns, there was a longstanding minhag to divide the cost—half per person and half according to means. Rama in Orach Chaim was merely teaching that the town’s custom should be followed. Where there was no custom the costs would be borne according to wealth.

Teshuvot Maharam Padua (Siman 42) recorded that the rabbis of Prague, including Rav Heller, the author of Tosfot Yom Tov, all agreed that it was the minhag for all holy expenses, such as building a shul or renting a room in which to pray, to split the costs. Half were per person and the other part was according to wealth. Since this was a longstanding practice, it would be wrong to deviate from it or create a new custom in which the costs were divided differently.

By Rabbi Zev Reichman

 (Mesivta)