Ten Gold Coins; The Prohibition to Cause Damage (91b-92a) - part 2

[Editor’s note: Due to the length of this shiur, it was split into two. The first part was sent out last week.]

II. The Prohibition of Bal Tashchit

            The prohibition of bal tashchit against destroying things of value is stated in the Torah with respect to the destruction of fruit trees in a time of war:

             When you shall besiege a city long time, in making war against it to take it, you shall not destroy its trees by forcing an axe against them; for you may eat of them, and you shall not cut them down, for is the tree of the field a man, that it should be besieged by you? Only the trees which you know that they be not trees for food, you shall destroy and cut them down: and you shall build bulwarks against the city that makes war with you, until it shall be subdued. (Devarim 20:19-20)

            As is explained in our passage of the Gemara, the prohibition is limited neither to a time of war, nor to fruit trees: "Rabbi Elazar said: I heard that he who rends [his garments] too much for a dead person transgresses the command, 'You shall not destroy.'" The Rambam writes:

           We should not cut down fruit trees outside a city nor prevent an irrigation ditch from bringing water to them so that they dry up, as it is stated: "You shall not destroy its trees." Anyone who cuts down such a tree should be lashed. This does not apply only in a siege, but in all situations. Anyone who cuts down a fruit tree with a destructive intent, should be lashed…

            This prohibition does not apply to trees alone. Rather, anyone who breaks utensils, tears garments, destroys buildings, stops up a spring, or ruins food with a destructive intent transgresses the command "Do not destroy." However, he is not lashed. Instead, he receives stripes for rebellious conduct as instituted by the Sages. (Hilkhot Melakhim 6:8, 10)

            The Radbaz in his commentary implies that he understood that according to the Rambam the prohibition to destroy something that is not a fruit tree is only by rabbinic decree, and this is the reason that he only receives stripes for rebellious conduct as instituted by the Sages. The words of the Rambam, however, imply otherwise (I heard this from my teacher, Rav Ezra Bick, and from Rav Asher Weiss), that one who destroys something transgress a Torah prohibition, but the Rambam is consistent with his position in other contexts, mentioned in shiur 27, that sometimes lashes are only administered for the core of the prohibition explicitly mentioned in the Torah, and not to its extensions, even if they are also forbidden by Torah law. (See the wording of the Chinukh in mitzva 529: "Included in this prohibition is that one may not cause any monetary loss… but nevertheless lashes are only administered to one who cuts down fruit trees, as this is explicitly stated in Scripture.")

            [It would seem that just as the prohibition applies to utensils, so too it applies to non-fruit bearing trees. However, the wording of the Rambam in halakha 9 suggests that one may cut them down even if there is no need to do so: "It is permissible to cut down any non-fruit bearing tree, even if one has no need for it. Similarly, one may cut down a fruit bearing tree that has become old and produces only a slight yield that does not warrant the effort required to care for it." It might, however, be suggested that regarding a non-fruit bearing tree, or a fruit tree that turned into sort of a non-fruit bearing tree, any time he cuts it down, it is for the sake of using its trunk or at least for using its place, because the tree has no other use. Still, the matter is not simple, because non-fruit bearing trees provide shade and beauty (not to mention a green lung), and therefore cutting them down might at times fall into the category of inappropriate destruction. The matter requires further study.]

Cutting Down a Tree for Some Need

            An important question discussed in our passage relates to the type of destruction that is forbidden and the needs for which destruction might be allowed. On the one hand, it would appear that in the case of war of which the Torah speaks, we are not dealing with wanton destruction for no need at all, but nevertheless the Torah forbids it. On the other hand, it is clear that there are circumstances in which destruction for various purposes is permitted, as is evident also from our passage. This allowance may be understood in two possible ways:

1) The prohibition of bal tashchit is like any other prohibition in the Torah, which may not be transgressed in order to save money or the like. The allowance is based on the fact that in certain situations the action is not considered a destructive act, because essentially it is a constructive one.

2) There are certain situations in which a need permits the action even though it is considered a destructive act, because the prohibition of bal tashchit is unique in that its purpose is that one should not cause harm to the world in general, and therefore a need the value of which is greater than that of preventing harm to the world might allow the destructive act.

            In my opinion, based on logic and an examination of our passage and Rashi, the allowance seems to be comprised of two different laws. When we speak, for example, of rending garments for a dead person, there is no room to say that we are not dealing with destruction, for the whole objective of the action is to destroy and thereby give expression to one's distress. Nevertheless, when the act is done in a measured manner, this is the way of the world and in light of the worthy objective the act is permitted. Of course, "one who rends his garments too much for a dead person transgresses the command, 'You shall not destroy,'" because he deviated from the way of the world and caused greater destruction than is necessary.

On the other hand, when one cuts down a tree because its trunk is more valuable than its fruit, it would seem that the action is not at all considered an act of destruction, but rather optimal use of the tree (or as the Netziv formulates it:[1] "If the wood is more valuable than the fruit, the wood is the fruit and purpose of the tree").[2] If it is permitted to cut down a tree for the sake of its place (as argued by the Rosh, at the end of sec. 15), there is room to say that this is permitted destruction, but there is also room to say that an object's place is part of that object, and this too is considered maximized use.[3] When one cuts down a tree because it is causing damage to another tree, as is discussed at the end of our passage, the simple understanding is that with respect to the tree that is cut down it is considered destruction, only that it is permitted because of the other tree. But there is also room to see this as part of the allowance to cut a tree down for its place.

            This distinction finds expression in the baraita cited in our passage:

           "Only the trees that you know" implies even fruit-bearing trees; "That they be not trees for food," means a non-fruit bearing tree. But since we ultimately include all things, why then was it stated: "That they are not trees for food"? To give priority to a non-fruit bearing tree over one bearing edible fruits. As you might say that this is so even where the value [for other purposes] exceeds that for fruits, it says "only."

            The baraita teaches that even a fruit tree may be cut down during a time of siege, but priority should be given to a non-fruit bearing tree. We seem to be dealing with actions defined as destructive acts, only that a great need permits them, and in this context the Torah establishes an order of priorities. In contrast, when we are dealing with a fruit tree where the value of its wood is greater than that of the fruit, the act is not considered one of destruction, as explained above, and therefore in such a case there is no reason to give priority to a non-fruit bearing tree.

            The Tosafot Rid, however, understands the matter differently. In his view, "greater value" refers to the relationship between the value of the non-fruit bearing tree and the fruit tree – if the non-fruit bearing tree is worth more than the fruit tree, if we let it continue to grow, it is preferable to cut down the fruit tree and use its trunk. He explains: "The Torah was not concerned about destroying the fruit, but about destroying the tree's value, for that which it says that the non-fruit bearing tree should be cut down first, that is because presumably the fruit tree is more important than the non-fruit bearing tree." He too would of course agree that the Halakha is that if the wood of a fruit tree is worth more than its fruit, it is permitted to cut it down, and there is no bal tashchit, for even though he destroys the fruit, he increases the value of the tree, and the Torah was more concerned about value than about the fruit.

            According to the Rid, the destruction forbidden by the Torah is economic destruction. Value, by its very nature, is not connected to one object or another, but rather it is more general. One must examine whether the action performed is an action whose economic benefit is greater than its harm or not. Therefore, regarding the question raised above, whether there is destruction that the Torah permits, or whether we are not dealing with a case of destruction, the Rid's position is that there is no destruction, but that is because he understands that the destruction that is forbidden is economic destruction, with respect to which there is no room to distinguish between different types of objects or trees. Even when we cut down one tree for the sake of another, there is no destruction, because from an economic perspective this is beneficial.

            The other Rishonim as well do not seem to accept the distinction that we have proposed between different contexts with respect to the definition of the allowances. For example, the Gemara in Avoda Zara 11a permits the burning of the articles of a king who died and the mutilation of his horses, and the Tosafot there (s.v. okrin) explain that "since this is done in honor of the king there is no destruction," even though when we focus on the article the action is certainly one of destruction, and destruction might even be its objective (but compare with the words of Tosafot, Bava Batra 32b, s.v. mi-divrei, who write: "The honor of a king and nasi are given priority, just like the prohibition of bal tashchit is set aside because of their honor").

            Now let us see the words of the Rambam in this context (Hilkhot Melakhim 6:8-10). The Rambam writes:

            Anyone who cuts down a fruit tree with a destructive intent, should be lashed. Nevertheless, a fruit tree may be cut down if it causes damage to other trees or to fields belonging to others, or if a high price could be received for its wood. The Torah only prohibited cutting down a tree with a destructive intent… This prohibition does not apply to trees alone. Rather, anyone who breaks utensils, tears garments, destroys buildings, stops up a spring, or ruins food with a destructive intent transgresses the command 'Do not destroy.' However, he is not lashed. Instead, he receives stripes for rebellious conduct as instituted by the Sages.

            The Rambam introduces a general condition for the violation of the prohibition of bal tashchit: that the action must be performed "with a destructive intent." As stated above, logically this is easy to understand, as this takes into consideration optimal use of the tree. But the Rambam includes in this cutting down a tree that is causing damage to another tree or to another person's field.

            The Netziv suggests an interesting explanation of the Rambam's position (Responsa Meishiv Davar, II, no. 56). In his view, the Rambam is very stringent about the prohibition of destroying fruit trees (and there is significance to the severity of the prohibition that lashes are only administered in the case of such trees). He even disagrees with the allowance granted by the Rosh to cut a tree for the sake of its place. The prohibition to cut down a tree that yields only one kav of fruit a year demonstrates that we are not dealing with the relative benefit of the tree and the fruit. Rather, as soon as the tree is defined as a fruit tree there is a prohibition to cut it down.

            In which cases may it be cut down? When the wood is worth more than the fruit, the Netziv agrees that there is no destruction (as I already cited: "If the wood is more valuable than the fruit, the wood is the fruit and purpose of the tree"). In other cases we are dealing with destruction, which is permitted to prevent damage; and this only in certain contexts: when damage is being caused to other trees it is permitted, because this tree is not given priority over the other trees; and when the damage is being caused to a field, the Netziv notes that according to the Rambam cutting down the tree is only permitted when the damage is being caused to fields belonging to other people, but not to his own field. According to him, a person must absorb a loss in order not to transgress the prohibition of cutting down a tree, but damage caused to other people sets aside the prohibition.[4]

            From the wording of the Rambam, however, it would seem that like "greater value," so too cutting the tree down to prevent damage is not considered to be an action "with destructive intent." According to this it would also be permitted to cut a tree down to prevent damage to his own field, and indeed there are editions of the Rambam that omit the words "belonging to others" in this halakha (see the variant readings in the Frankel edition).

            As for the Netziv's argument that the Rambam does not accept the Rosh's allowance to cut a tree down for its place, the Rambam explicitly writes in one of his responsa that this is permitted: "It is permitted to cut a tree down to benefit from its place or from the money received from its wood, because the Torah only prohibited cutting down a tree with a destructive intent" (no. 112). The Rambam's position is that an action performed for a need defines it as not having destructive intent. If so, what cutting down of trees did the Torah prohibit in the framework of warfare? The Rambam answers this question in his Sefer ha-Mitzvot (negative commandment 57): "The Torah forbids us to destroy trees when we besiege a city in order to press its people and cause them pain in their hearts." We are dealing with an action that presumably is performed in order to bring to a positive result, but its essence is that of destruction and that is precisely what the person who performs it aims at achieving. Without a doubt, such an action is performed with destructive intent. But cutting down a tree in order to prevent damage or create space, even though it does not lead to optimal use of the tree, is not an action performed with destructive intent.

            The Ramban in his strictures to the Rambam's Sefer ha-Mitzvot presents a different and more lenient position:[5]

            When we lay siege to a city to fight and seize it we are commanded to show compassion to it as we would show compassion to our own, as we might capture it. But when we go out to the land of the enemy we may destroy every good tree. And so too in a time of siege to press the people of the city by cutting down the trees so that they not live off of them, all this is permitted. The Torah only prohibited needless destruction… The wording of the Master [the Rambam] in this mitzva is incorrect.

            According to the Ramban the prohibition is limited to needless destruction, vandalism practiced incidentally to battle (and this too is permitted in the land of the enemy).[6] Destroying trees in order to prevent the enemy from benefiting from them is permitted not because of pikuach nefesh, but because this is not defined as destruction.

            The prohibition of bal tashchit in actual practice is a broad issue, and we cannot exhaust the matter in this framework. I wish to conclude by relating to a question raised by Rav Asher Weiss in a shiur that he delivered on the topic. He raised the question whether the prohibition of bal tashchit is a prohibition in the realm of commandments between man and God or in the realm of commandments between man and his fellow. Between man and God, because a person is forbidden even to destroy his own property, because this is damage to God's world;[7] or between man and his fellow, because of the damage caused to the world's population and to property from which it could potentially derive benefit. He suggested a proof to the second understanding from the examples offered by the Rambam for the prohibition of destruction apart from trees: various types of property used by people. He offered another proof from the words of the Rosh in his commentary to tractate Tamid (28a). The Rosh asks why is it permitted to burn the clothes of the Temple's guards who fell asleep, and why is there no prohibition of bal tashchit? He answers that this is permitted based on the principle that whatever the court declares ownerless is ownerless. This answer is puzzling, for what does it help that the court declares the property ownerless? Surely a person is forbidden to destroy even his own property, and all the more so then should he be forbidden to destroy ownerless property. Rav Weiss explains that the law that whatever the court declares ownerless is ownerless is broader than the context of ownership; it gives the Sages control over the realm of interpersonal relations, and it is within their power to cancel a protection of the interests of mankind. Since the prohibition of bal tashchit is a prohibition that is intended to prevent harm to property from which humanity could potentially derive benefit, the rule that whatever the court declares ownerless is ownerless can cancel the prohibition.

            In any event, God created a wonderful world for our benefit, and it behooves us to use it wisely, to develop it and certainly not to cause it damage. It is instructive that even in time of war the Torah demonstrates sensitivity to this ecological perspective, and while engaged in battle, we are commanded to make a special effort: "You shall not destroy its trees."

(Translated by David Strauss)

 

SOURCES FOR SHIUR 29

            In next week's shiur we shall complete our study of Chapter Ha-Chovel, by examining two issues discussed in the last mishna in the chapter on p. 92a.

I. Atonement for a person who causes an injury

Study the mishna until "Avimelekh, etc.," and the Gemara until "ad she-yevakesh mimenu," Rashi, Chiddushei ha-Ra'avad and the explanation of the Gaon in the Shita Mekubbetzet (see below).

Rambam, Hilkhot Teshuva 1:1, 2:9; Hilkhot Chovel u-Mazik 5:9-10.

Why is it necessary to ask for the other person's forgiveness? For which offenses must a person ask for forgiveness as a condition for atonement?

II. Permission to cause damage to and strike another person

Study the rest of the mishna, the Gemara on p. 93a, "Ha-omer samei" until the end of the chapter.

Permission to cause damage: The mishna assumes that such permission can be granted and that the person who causes damage after receiving such permission is exempt. Why is this so? The Tosafot in Ketubot 56a discuss the issue in light of the disagreement between Rabbi Meir and Rabbi Yehuda whether or not one can stipulate against something that is written in the Torah in monetary matters. They explain why granting permission to cause damage is possible even according to Rabbi Meir who says that such a stipulation cannot be made: "There too if he said: 'Tear and break with the understanding that I will not have a claim of damages against you,' this would be considered a stipulation against what is written in the Torah; but he can waive [what is his].' Is this the simple understanding? See also the Ketzot ha-Choshen 246, 1: "Since he acted with the permission of the owner, he is automatically exempt. The Torah only made a person liable for damage in a case where he acted on his own; but if he acted with the owner's permission, there is no liability whatsoever."

Permission to cause an injury: Is there a fundamental difference between damage and injury? Try to understand the different explanations recorded in the Gemara.

Ra'avad 92a:

"Humiliation is like an illness, for his face turned green, his blood grew dense, all his organs weakened and his heart filled with worry. And with the sums mentioned in the mishna, they said for what sum of money a person would be willing to suffer such an illness. But one whose intention it was to cause pain does not fulfill his obligation to heaven until he appeases the other person, and the latter will pray for him, since he sinned by causing pain to his fellow."

Shita Mekubbetzet in the name of a Gaon:

"A Gaon explained as follows: Even though he gives him the five payments, he is not forgiven until he asks him for forgiveness, etc. But as for his pain, even though he pays him for his pain, even if he gives him all the money in the world, he is not forgiven until he asks him for forgiveness, because a person does not waive distress to the body for the rew