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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.


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.

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 explicitly.

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 punishment.

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 Malkus immediately.

(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 YEHOSHUA)

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 them.

(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)


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