קם ליה בדרבה מיניה
Gittin 53a
“Judge! He killed my husband. I have seven small children and no money. And you won’t award me damages?” “I cannot,” sighed the judge. “The law says kam lei bederabah minei.”
קם ליה בדרבה מיני – kam lei bederabah minei, referred to as – קם ליה – kam lei, means that if an illegal act incurs both capital punishment and monetary liability, the judge may only apply the more severe punishment, but has no authority both to execute the perpetrator and award damages.
Moreover, even if the perpetrator of the capital offense is never actually executed, such as when the fatal act was unintentional, Kam Lei applies and the Judge cannot award damages.
Kam lei only applies when the act, which incurs the death penalty, occurs simultaneously with the act that incurred the monetary liability. Thus, for example, someone who steals a pocketbook out of the victim’s house on Shabbat must pay damages, even though he may be subject to the death penalty for violating the prohibition of carrying on Shabbat. This is because whereas the act of theft occurred when he picked up the pocketbook inside the house, the melacha of carrying occurred afterwards when the pocket book was carried from the private domain of the house into the public domain of the street. If, however, the thief did not pick the item up in the house but pushed it out of the front door with his foot, he would be exempt from damages. This is because in this scenario, the theft and the Sabbath violation occurred at the same time.
According to some opinions, kam lei applies not only when the court carries out the execution of the perpetrator, mitat beit din, but also when it is carried out by his premature death at the Hand of God, karet. Accordingly, a person who burns down his neighbor’s house on the day of Yom Kippur, for which he incurs the punishment of karet, is exempt from paying damages.
When an illegal act incurs corporal punishment, that is lashes (malkot), and monetary liability, the rule of kam lei also applies. Accordingly, the perpetrator receives lashes and is exempt from paying damages. When lashes are not administered, such as when the illegal act was unintentional, the violator must pay damages. When, however, the illegal act injured a person, the perpetrator pays damages but does not receive lashes.
What are the legal and moral justifications for kam lei? Why should a blameless victim be denied damages when harmed by the illegal act of another over which the victim has no control? What difference does it make to the victim if the perpetrator received the death penalty or lashes? Does the death penalty or the lashing rehabilitate the victim?
A legal answer to this question is that kam lei does not wipe out the victim’s right to damages or the perpetrators obligation to compensate. The right and the concomitant obligation continue to exist. It is just that the Jewish courts of law have no jurisdiction to enforce them. But if the victim takes the law into his own hands and seizes assets of the perpetrator, he may keep them to cover his loss.
From an ethical point of view, kam lei can perhaps be explained in the following way. Some crimes are so heinous in the eyes of the Halacha that the suggestion that money can compensate for them is insulting. Indeed, opponents of Nazi reparations consider it adding insult to injury.
Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].
