Thursday, June 01, 2023

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 Kama 53 and 55. These are some highlights.

Bava Kama 53: Partners in theft, who is responsible?

The following question was brought to Rav Zilberstein. Two men decided to be thieves together. One man drove a truck. He parked his truck outside a building. His friend climbed on the truck, entered a second-floor apartment, stole goods and then he put the goods into the truck. The truck driver escaped with the goods. Who was responsible? Was it the person who took the objects? Was it the driver who spirited the items away?

Our Gemara deals with two damagers: an ox who pushes an animal into a pit. Both the ox and the pit contributed to the damage. What would the law be in a case of two thieves?

Rama (Choshen Mishpat 348:8) dealt with a similar scenario. He taught that if a thief hid the stolen objects but left the city unable to carry them, and then sent another man to spirit the contraband out of the locale, the one who transported the stolen goods out of the town is the one who is responsible to pay. He was the primary thief. Based on this ruling, Chavot Yair (Chapter 212, quoted in Pitchei Teshuvah 7) ruled that if there were two thieves—one brought a ladder, and the second climbed the ladder into a second-floor apartment—the one who climbed, then threw items of jewelry down, and the ladder-holder caught them and ran away with them, the ladder holder would be the primary thief and the one who had to pay. Therefore, in our case, the truck driver would be the primary thief and he would be the one who had to pay for he performed the main act of theft, getting the goods away from their owner.

What would the law be if the truck driver was not around and there was no way to collect from him? Chavot Yair initially thought that the victims could then collect from the thief who climbed into their home. Then he questioned this ruling. Shulchan Aruch (Choshen Mishpat 410:37) records that it is disputed that when two damage someone, and one of the damagers is not around, can the remaining damager be forced to pay for all the damage. Some say that the damager who is around can be made to pay for all the damage. Others say that the damager who is around can claim, “My friend is also guilty. Why should I pay for him?” Chavot Yair then suggested that the same should be true when two steal. It would be a dispute among the authorities as to whether they are both obligated and, if one is not around, the money can be collected from the other; or, perhaps, if one is not around, the money cannot be collected from the other. Pitchei Teshuva quoted the Shevut Yaakov, who distinguished between two who damage and two who steal. When two damage together they are not truly partners. They are gaining nothing from their actions. For such a situation there are opinions that if one is not around the other is still not liable. However, when two people steal, they are both benefiting. As a result they are partners. If one thief is not around, one can collect from the other.

Thus, in our case, when one drove the truck and the other one climbed into the apartment, according to Rama and Chavot Yair the main thief is the one who drove the truck. If he is not around to collect from him, according to Chavot Yair we could not force the one who climbed into the apartment to pay. However, according to Shevut Yaakov, we could force the thief who climbed into the apartment to pay the full amount of the theft, for as a thief he and his pal were partners and equally obligated. (Chashukei Chemed)

Bava Kama 55: His store alarm went off, neighbors called, must he go at night to turn it off?

Rav Zilberstein was asked the following question: A man owned a store. He had an alarm in the store. One day, at the close of a full day of business, he armed the alarm and went home. At 3 in the morning he received a phone call. “Your store alarm suddenly went off. It is not allowing us to sleep. You better come now and turn it off.” Did the store owner have to get up at night, return to his store and turn off the alarm?

Initially, Rav Zilberstein suggested that he did not have to get out of bed and go and turn off the alarm. Our Mishnah taught that if someone had locked his sheep into a pen appropriately and later, at night, the pen opened, he would be exempt from damage that his sheep might cause. Tosfot ask, why did the Mishnah mention the case of the door opening at night? Wouldn’t it be the same law if the door enclosing the sheep opened by day? Tosfot answer that the Mishnah is teaching that even if the owner was told at night that the door to his sheep opened, he is not obligated to get out of bed and stumble about in the dark night to try and get his sheep back into the pen. However, were he to be told by day that the enclosure opened he would be obligated to pursue the sheep and get them back into the enclosure. Perhaps, therefore, the store owner, as well, was not obligated to get out of bed at night and stop his alarm from damaging. According to Tosfot, didn’t our Mishnah teach that the sheep owner need not get up at night and stop his sheep from damaging?

Ultimately, Rav Zilberstein rejected this reasoning. In our day, night is like day. We have electric street lights. One who finds out about his damager being out and about at night is not exempt from getting up and stopping the damager. Secondly, in Tosfot’s case, even were he to get up he might not succeed in finding the sheep and preventing it from damaging. However, with the alarm, he can be sure that if he gets up and goes to the store he can stop the damage from continuing. Finally, as a neighbor, one is obligated to show concern and affection. One must treat his neighbor as he would treat himself. It would be unfair for him to sleep at night while the neighbors of his store cannot sleep due to the noise his alarm is causing. Therefore, he was obligated to get up, go to the store and turn off the alarm. (Chashukei Chemed)

Rabbi Zev Reichman



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