כ״א בשבט ה׳תשע״ו (January 31, 2016)

Gittin 49a-b: To Discourage Robbers

We learned on yesterday’s daf that for reasons of tikkun olam  established a rule that nizakin – debts that stem from damage done to someone – will be paid in idit – the best land. In explaining this law our Gemara quotes a baraita where Rabbi Shimon says that this rule was enacted in order to discourage inappropriate behavior on the part of gazlanim and hamsanim – robbers of various sorts. If they know that any damage they cause will have to be paid back in idit, they will think carefully before carrying out a criminal act. Aside from this explanation the sages also relied on a passage in the Torah that hints to such a law. In Sefer (22:4) the Torah says regarding someone who does damage to another that, “Metav sadehu u’metav karmo yeshalem – he will pay from his best field and his best vineyard.”

Although the rule of idit as presented in the Mishna referred to a case of nizakin – damages – which may not have been done intentionally, according to Rabbi Shimon the main source for the halakha is a case where intentional damage is done. In truth, these, too, fall into the category of nizakin. Furthermore one could argue that even if the damage was done unintentionally, a person will take better care if he knows that the consequences of his actions will be punished more severely.

Rabbi Shimon gave two examples of nizakin, gazlanim and hamsanim. We usually understand that hamsanim are people who force a person to sell an object against his will, but who pay the full value of the object. Since our discussion of nizakin would not appear to apply to someone who paid for the object that he took, some of the rishonim remove the word hamsanim from the text of the Gemara. Some explanations are offered that would include the case of hamsanim, like that suggestion made by Rabbi Uziel Moshe Rothstein in his Nahalat Moshe that we are dealing with a case where the hamsan promised to pay but has not yet done so.

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