Normal Way of Carrying

Abaye sat and related the above halachah. Rav Ada bar Masnah asked him from the following braisa: [There is a halachah of kim leih bid’rabbah minei -whenever someone is deserving of two punishments, he receives the one which is more severe.] If one steals a purse on Shabbos, he is obligated to pay for the purse as well, as he had already stolen before he had been liable to be stoned (for desecrating Shabbos). If he was dragging the purse little by little out of the original owner’s domain, he is exempt from paying for the purse, as the act of desecrating Shabbos and the act of stealing happened at the same time. Now, a purse is something that is normal to be lifted, and nevertheless, it is acquired through meshichah!?

Abaye answered: It is referring to a purse that is tied by a string.

Rav Ada (thinking that Abaye meant that it was small) asked him back: I also understood it to be referring to a small purse (and that is why I asked my question that it should not be acquired through meshichah; rather, through hagba’ah)!?

Abaye responded: It is referring to a purse that needs a string attached to it (due to its large size, it can only be dragged; not lifted).

Tosfos asks: How could the Gemora think that the braisa is referring to a small purse which can be lifted? If so, he should not be liable for violating the Shabbos, since it is not the normal way of carrying something!?

Tosfos answers that although with respect to acquisitions, the item can only be acquired through lifting, for this is its normal mode of transport; nevertheless, with respect to Shabbos, it is regarded as normal.

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Paying Kofer

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The Gemora (Bava Kamma 4a) explained the Mishna according to Rav as follows: The nature of ox, that it pays kofer (if the ox kills a person, the owner is liable to pay a kofer payment), is not the same as the nature of a person, who does not pay kofer (and therefore, if the Torah would only write that one is liable for an ox, we would not necessarily know that one is liable for his own damaging).

Tosfos asks: Why is the fact that an ox pays kofer regarded as a stringency? The reason why a person does not pay kofer when he kills someone is because of the principle of kim leih bid’rabbah minei - (whenever someone is deserving of two punishments, he receives the one which is more severe). And since a man is executed for killing another man, he is not required to pay the kofer payment. It emerges that not paying the kofer is not a leniency, but rather, it is due to a stringency, namely – that he is put to death!?

The Riva answers that a person would not pay kofer even if he would not be executed. This would be in a case of an accidental killing.

The Darchei Dovid explains: Although this is also a type of kim leih bid’rabbah minei; whenever someone accidentally does something - and this same action, if it would have been done intentionally, would have exempted him from a monetary payment – it exempts him from the payment in this case as well; nevertheless, it must be regarded as a lenient ruling, for the bottom line is that he is not executed and he is not obligated to pay anything.

Alternatively, Tosfos answers that he is not exempt from the kofer payment due to kim leih bid’rabbah minei.

The Maharam explains: The principle of kim leih bid’rabbah minei only applies when he committed an action that he deserves to be executed for, and simultaneously, he does something else that he is required to pay money for. However, in our case, where a man killed someone, the punishment of execution and the kofer payment are both coming for the same reason. Kim leih bid’rabbah minei will not apply here.

The Reshash explains Tosfos to mean that the principle of kim leih bid’rabbah minei does not apply in this case because the kofer payment serves as an atonement for the killing. Kim leih bid’rabbah minei exempts a money obligation which is a payment because of compensation; however, it does not exempt payments on account of forgiveness.

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‘KIM LEIH B’DIRABAH MINEIH’ IN A CASE OF UNCERTAINTY

Reb Akiva Eiger rules that if one seduces an idolater, he is exempt from paying a fine because of the principle of ‘kim leih b’dirabah mineih,’ one incurs the more severe penalty of death and he is not liable for the monetary payments. Since the halacha is: Zealots have a right to kill one who cohabits with an idolater, he will not be required to pay the fine. If, however, it is uncertain if the girl is a Jew or an idolater, he will be liable for the fine because in this situation, the zealots cannot kill him.

Reb Elchonon Wasserman in Koveitz Shiurim (84) learns from here that whenever it is uncertain if the principle of ‘kim leih b’dirabah mineih’ applies, he would still be liable for the payment.

Reb Yitzchak Zilberstein comments that if not for Reb Elchonon, a distinction could have been made between a court-imposed death penalty and a case where one incurs death by the hands of the zealots. In a case of an uncertainty regarding a court-imposed death penalty, such as one who desecrated Shabbos in a time where it is uncertain if Shabbos has started or not (bein hashemoshos), and at the same time he burned the stalks of his fellow, he would be exempt from paying for the damages. The reason is as follows: Even though, Beis Din cannot administer the death penalty, he would be exempt from paying because he might be liable for death. However, in a case where one does not incur a death penalty; it is a transgression where zealots have a right to kill him. In a case of uncertainty, where he may not be killed, he should certainly be responsible for the monetary payments involved.

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