Ten Gold Coins; The Prohibition to Cause Damage (91b-92a) - part 1

 

[Editor’s note: Due to the length of this shiur, it will be split into two. The second part will be sent out next week.]

 

 

I. Ten Gold coins

 

The foundation and definition of this law

 

Your teaching could hold good in the case where the ox was marked for slaughter and so also the tree had to be cut down… He says to him: I wanted to perform the precept myself in the way taught: "'He shall pour out… and cover it,' implying that he who poured out has to cover it; but it once happened that a certain person performed the slaughter and another anticipated him and covered [the blood], and Rabban Gamaliel condemned the latter to pay ten gold coins.

 

            This famous law is cited both in our passage and in the Gemara in Chullin 87a. I wish to use this opportunity to clarify its underlying principles.

 

            The Rif (32b) cites the view of Rabbeinu Chananel[1] that this obligation is "a kenas (penalty) imposed [by Rabban Gamliel], and so we cannot learn from it to another case." The Rif raises an objection from our passage itself, which learns from Rabban Gamliel's ruling regarding the covering of blood to impose liability in the case where an ox was marked for slaughter. He therefore concludes: "Rather, it is a din (monetary obligation), and we can learn from it [to other cases]."

 

See also the Shakh[2] who rules in accordance with Rabbeinu Chananel that we are dealing here with a kenas. He explains that Rabbeinu Chananel maintains that we cannot derive anything from a kenas, but our passage was taught in accordance with the view of Rav, that we can in fact learn from a kenas to another case. As for the view of the Rif, we must clarify whether he maintains that we are dealing with a regular chiyyuv mamon (monetary obligation) for all purposes (this is the view of the Ramban in Chullin), or perhaps he agrees that we are dealing here with a kenas, only that he understands that we are not dealing with a localized punishment, but with a general law relating to stealing mitzvot (so it would appear from the Rambam, Hilkhot Chovel u-Mazik 7:13-14, at least according to the second view that he lists).

 

            The Rosh (no. 15) agrees with the Rif, and adds another argument against the opinion of Rabbeinu Chananel:

 

And furthermore, were it not a din, why is there room here for imposing a kenas? The person performed a mitzva, and we come and penalize him?

 

            The Rosh understands that Rabbeinu Chananel means to say that the objective in imposing liability for 10 gold coins is to punish the person who stole the mitzva, and he disagrees with this based on a logical argument. Why should we want to punish a person who simply fulfilled a mitzva? Rabbeinu Chananel can answer that he was interested not in punishment, but in compensating the victim for non-monetary damage, and this too is considered a kenas. Alternatively he can say that there is indeed room to punish the person who stole the mitzva, as Chazal did not flinch from criticizing the performance of a mitzva in a defective and inappropriate manner (as we find in Yoma 23a, regarding "two priests who were equal as they ran to mount the ramp and when one of them came first within four cubits of the altar, the other took a knife and thrust it into his heart").

 

            The Rosh, in any event, understood that there is no room to say that they wished to punish the person who stole the mitzva, and therefore the purpose of the liability is to compensate the victim for that which was taken from him – performance of a mitzva. The Rosh continues along these lines and adduces an additional proof:

 

And furthermore, in chapter Kisui ha-dam, the question is raised regarding this ruling of Rabban Gamliel: Was this the reward for [being deprived of the performance of] the commandment or for [being deprived of] the benediction? But where would there be any practical difference [between these two views]? In the case of the Grace after Meals.

 

            The Rosh adduces proof from the fact that the Gemara is in doubt whether the reward for which the liability of ten gold coins was imposed is the reward for the performance of the commandment or the reward for the recitation of the blessing. The Rosh seems to be referring to the assumption that underlies the discussion, that the liability here is not a kenas for the offender's conduct, but rather compensation for what was taken from the victim, i.e., the reward.

 

            The assumption here is that in addition to a person's desire that God's will should be fulfilled, he also wishes to fulfill the mitzva personally, and that we are dealing with a legitimate interest that justifies compensation. In the case of the covering of the blood, it can be argued that stealing the mitzva impairs its quality, as the Torah's desire that the person who slaughters the animal should also cover the blood was not fulfilled, and there is room to say that not only did the person who was entitled to the mitzva not receive his portion, but the mitzva itself was not fulfilled in perfect manner. It seems, however, that the law of ten gold coins is not limited to this case, and that it applies even in cases where the mitzva is performed just as well by the person who stole it, as he caused a loss by taking it away from someone who was entitled to fulfill it, thereby impairing his legitimate interests.

 

            The simple understanding is that this interest is the reward. But the Chatam Sofer in his novellae to Chullin has his reservations, both because it is difficult to determine that 10 gold coins constitutes a fair compensation for the reward for the mitzva that was lost, and because one who wanted to perform a mitzva, but was prevented from doing so because of ones (unavoidable accident), is regarded by Scripture as if he had performed the mitzva, and is therefore entitled to his reward. Therefore, the Chatam Sofer offers a different understanding:

 

There is a difference between one who performs a mitzva and receives his reward, and one who is prevented from performing the mitzva owing to ones, but nevertheless receives his reward, because the person who performs the mitzva serves God with joy and good-heartedness, and is rewarded for that, whereas the person who is prevented from performing the mitzva owing to ones is distressed about not having merited to serve God, and he receives reward from heaven for his distress. It turns out that even though there is no difference with regard to the reward from heaven, nevertheless there is a difference with regard to the distress to the body, and Rabban Gamliel imposed a penalty of ten gold coins in accordance with the distress caused to the victim's body.

 

            I wish to add in this context that the Gemara in Chullin says that the liability is for the reward for the blessing. The context there relates to Grace after Meals, but it seems from some of the Rishonim and Posekim that even though there is liability even in the case of mitzvot that do not have a blessing, e.g., the case of the cutting down of the tree (as in our passage), nevertheless, in the case of mitzvot that do have a blessing, the essence of the liability is for the blessing and not for the mitzva. For this reason Rabbeinu Tam in the Tosafot in our Gemara and in the Rosh in Chullin maintains that when the victim could have answered Amen, he is not entitled to compensation, for greater is the one who answers Amen than the one who recites the blessing. The Yam shel Shelomo on our passage, no. 60, has difficulty with this argument, but the Shakh (382, no. 4) agrees with Rabbeinu Tam, and adduces support from the Gemara in Chullin that the primary liability is for the blessing.

 

It seems to me (and I believe that I heard this from my teacher, R. Binyamin Tabory), that the focus of fulfilling a mitzva is the fulfillment of God's will, and the blessing recited over the mitzva adds to the religious experience of the person who fulfills the mitzva. Thus, we can understand that when God's will is fulfilled either way, the grounds for suing the person who stole the mitzva are focused on the blessing recited over the mitzva, which represents what was stolen from the plaintiff.

 

            Rabbeinu Yehonatan (cited in the Shita Mekubbetzet on our passage) also relates to the basic definition of the obligation to pay ten gold coins. Alongside the understanding that we are dealing with a kenas, he proposes an alternative understanding, according to which we are not dealing here with a kenas, and therefore the exemption granted to one who admits to a kenas does not apply here; at the same time we are not dealing with a chiyyuv mamon that can be justified based on the general principles governing theft or damages. Rather we are dealing with an obligation of another sort: "It is merely an ordinance instituted so that mitzvot should be precious to their owners." This understandings is very interesting: the focus of the liability lies not in a critique of the conduct of the person who stole the mitzva, nor in compensating the plaintiff for any real damage caused him, but rather in the desire to send out a message regarding the importance of the mitzvot to those performing them and the weight that a mitzva has over and beyond the result that God's will has been realized – making the mitzva precious to its owner.

 

            According to all the understandings that we have seen, an important question may be raised: When is a mitzva called the mitzva of a certain person so that we should impose liability on some other person who steals it? The answer to this question depends, as we shall see, on the foundation of the liability of ten gold coins, but of course also on our understanding of the parameters of the particular mitzva.

 

Being called up to the torah

 

            One case about which the Rishonim disagree in an instance of a stolen mitzva is the case of a person who goes up to read from the Torah in place of another person. It is clearly evident from the Tosafot on our passage (s.v. ve-chiyevo) that it is enough that the Gabbai called the plaintiff to the Torah to define the mitzva as belonging to him. On the other hand, the Tosafot in Chullin (s.v. vechiyevo) maintain that the mitzva is not considered as belonging to him, even if an ordinary Jew went up to read in place of a kohen: "For everyone is obligated in the Torah reading… and even if he went up in place of a kohen. For that which we expound: 'And you shall sanctify him' – for all matters of sanctity, to open with him and that he should recite a blessing first, is merely an asmakhta" (Editor: the verse quoted is merely a support and not actually the source).

 

Rav Avraham Dov Kahana-Shapira of Kovno, in his book, Devar Avraham (III, no. 24), understood as self-evident that the liability for ten gold coins applies both in the case of a Torah law and in the case of a rabbinic decree.[3] He therefore had difficulty with these words of the Tosafot – what difference does it make that we are dealing here with an asmakhta? He therefore proposes the following answer: What the Tosafot mean is not that the kohen's right is by rabbinic decree, but rather an even lower degree of obligation. It is clear from the Gemara in Gittin 61a that a distinction is made between a rabbinic mode of acquisition, which creates full ownership, and a situation in which the Sages ordained that for the sake of peace, it is forbidden to take a certain article from another person; in the latter case we are not dealing with ownership, and therefore if the person took the article, the person from whom he took it cannot recover it through the courts.

 

The Devar Avraham understands in a similar manner that the kohen's right to the first aliya is merely for the sake of peace, and just as if we were dealing with an object, he would be unable to recover it through the courts, so too when we are dealing with a mitzva, we do not impose liability upon the person who stole it. According to the Devar Avraham then, the foundation for the liability of ten gold coins is a quasi-proprietary right of the plaintiff in the mitzva that he wishes to fulfill. The ownership can be by Torah law or by rabbinic decree, as long as it parallels money that can be recovered through the courts.

 

            What do the Tosafot in our passage maintain? The Tosafot understand that a mitzva is stolen not only in the case of an ordinary Jew who stole an aliya from a kohen, but even in the case where an ordinary Jews went up in place of the person who was called by the Gabbai. One possibility is that our Tosafot as well accept the proprietary understanding proposed by the Devar Avraham, only that according to them, the Gabbai, as the community's representative, is authorized to bestow the right to an aliya on the person of his choice. It is more likely, however, that our Tosafot do not require that the plaintiff should enjoy ownership over the mitzva. They suffice with the fact that according to the accepted practice, the plaintiff was supposed to fulfill the mitzva, and the other person came and stole it from him.

 

There is room to say, though this is not necessary, that this question depends on how we understand the foundation of the liability for ten gold coins. According to the Tosafot in Chullin, in accordance with the Devar Avraham, we are dealing with an obligation that focuses – as argued by the Rosh on our passage – on compensating the plaintiff for the privilege that was stolen from him, and therefore we require that he be entitled to this privilege. This is more understandable if the liability is a chiyyuv mamon, but it is valid even if the liability is a kenas. If, however, the focus of the liability is punishing the person who stole the mitzva for his improper conduct, there is room to adopt the approach of our Tosafot, that it suffices that the person was supposed to fulfill the mitzva and the other person came and stole it from him.[4]

 

            What is the law in the case where people purchase aliyot to the Torah? The Yam Shel Shlomo on our passage (no. 60) argues that this custom creates ownership, and the aliya becomes the property of the person who purchased it; he is therefore entitled to the ten gold coins. See, however, the Shakh (382, no. 4) who writes that the Maharshal's position is not necessary. According to the Maharshal, what is the law in the case where the person who bought the aliya paid more than 10 gold coins (and there are such cases)? On the assumption that the sum of 10 gold coins is precise, and the law is not "as the judges see fit" (see two opinions in the Rambam and Shulchan Arukh, 382), it seems that he cannot demand more than 10 gold coins, and that he cannot claim the higher sum based on the laws of damages, since this is a case of gerama, indirect damage (and according to the Shakh he cannot make a claim even if he paid an amount less than 10 gold coins). He can also not make a claim based on the law of benefit, i.e., that the person who stole the aliya benefited at his expense, unless he can prove that this was a reasonable sum for the honor in question (about this even the Shakh might agree).

 

A Father's circumcision of his son and His appointment of a Mohel

 

            A fundamental and interesting discussion is found in the Rosh in Chullin (6:8) with respect to the mitzva of circumcision. He opens by citing the position of Rabbeinu Tam, in a manner that is different from that found in the Tosafot on our passage:

 

It once happened that someone asked a certain mohel to circumcise his son, and another person went ahead and circumcised him. And the person who had been asked by the father to perform the circumcision demanded 10 gold coins from the second person. But Rabbeinu Tam exempted him, as it says in chapter Ha-Chovel (Bava Kama 84b) that wherever there is no actual monetary loss, we do not act as the agents [of the mumchin judges in Eretz Israel]. And even if the first mohel seized property belonging to the second mohel, we remove it from him. Since he was there at the time of the circumcision, and he answered Amen, greater is the one who answers Amen than the one who recited the blessing. And if he didn't answer Amen, he caused himself the loss… As for being called up to the Torah, if someone went up who had not been called by the chazzan [sic], he would be exempt even in Eretz Yisrael, for everyone is obligated in the Torah reading, and the calling up of the chazzan is only that people should not come to fight…

 

            On the assumption that what is stated about the Torah reading is also in accordance with the position of Rabbeinu Tam, it turns out that according to what is brought in the Rosh, Rabbeinu Tam agrees that regarding the Torah reading, there is no entitlement, and it is possible that he requires quasi-ownership of the mitzva, and he maintains that the person called up to read does not acquire any entitlement by virtue of the fact that he was called up. In contrast, regarding a mohel who was appointed by the father, Rabbeinu Tam maintains that such an entitlement exists, and therefore he exempts the second mohel only because in our times we do not impose the kenas of 10 gold coins, and because the liability is primarily because of the blessing, and he could have answered Amen.[5] Rabbeinu Tam seems to imply that fundamentally the first mohel acquired the right to circumcise the infant.

 

            This right is based on two foundations. First, that the newborn's father enjoys special standing regarding his son's circumcision. The Gemara in Kiddushin 29a states that there are three levels in the obligation of circumcision: A father is obligated to circumcise his son; if he failed to do so, the obligation falls upon the court (i.e., the entire community); and if they failed to do so, the uncircumcised person is obligated to circumcise himself. According to Rabbeinu Tam, we must assume that the father's precedence gives him a certain right in the mitzva. The second foundation upon which the mohel's right is based is the father's ability to transfer his mitzva to the mohel. This can be understood in two ways:

 

1) The mitzva of circumcision in itself is a single mitzva, and it is fulfilled in equal measure whether the father circumcises the child, or someone else does so; only that the father enjoys the first right to perform the mitzva, and he can transfer that right to a different person. Here it must be noted that the Rishonim disagree as to whether a kinyan is binding when the father obligates himself with a kinyan to transfer his right to a particular mohel. The disagreement is not with respect to the 10 gold coins, but to the question whether the father has the right to change his mind. The Maharam of Rothenberg (cited by the Tashbetz Katan, no. 398) maintains that the kinyan is binding and the father cannot retract, whereas the Rosh in his responsa (12, 3) disagrees and says that this is a kinyan of words that has no legal force. According to our understanding of Rabbeinu Tam, he must agree with the Maharam, for otherwise the mohel did not acquire the mitzva.

 

2) The father's right regarding his son's circumcision is related to the fact that there is an added fulfillment of a mitzva when the father circumcises his son. Therefore, the only way that the father can transfer this right to another person is by appointing him as his agent, and assuming that this appointment is effective and that the special fulfillment of a father who circumcises his son is also achieved when the father appoints an agent to circumcise his son. An objection, however, may be raised that if we are dealing with agency and the principle that a person's agent is like the person himself, it would seem that it is the father who should sue the person who stole the mitzva, because through his action he prevented the father from fulfilling his special obligation and the child was merely circumcised by some member of the Jewish community, but not by the father's agent.[6]

 

However, it stands to reason that even though the father suffered, as he was supposed to fulfill his special obligation, and owing to the second mohel's action, he did not fulfill it, nevertheless the fulfillment of the mitzva and its reward belong to the person who actually performs it, i.e., to the agent, and therefore it is he who can sue the person who stole the mitzva (only that practically speaking he cannot sue him, because the reward of a person answering Amen is greater than that of the person reciting the blessing.) According to this understanding of Rabbeinu Tam, he can adopt the Rosh's position in his responsa that a mohel appointed by the father does not acquire the right to circumcise the child, and the father can still change his mind. As long as the father has not retracted, and the mohel enjoys the status of being his agent, it is he who is supposed to fulfill the mitzva in a special manner, and therefore he is the victim of the theft of the mitzva.

 

            But the Rosh himself disagrees with Rabbeinu Tam's assumption, as he maintains that the mohel enjoyed no special right to the newborn's circumcision:

 

Even without these reasons of Rabbeinu Tam, it seems to me that the mohel should be exempt. For even though the father asked a certain mohel to circumcise his son, the latter did not acquire the mitzva so that another person who goes ahead and performs it should be liable. This is not similar to covering blood, regarding which the Torah said: "'He shall pour out… and cover it,' implying that he who poured out has to cover it." And similarly, a father who is obligated to circumcise his son, and wished to do so, and someone else came and did it first, the latter is liable. But if the father did not want to circumcise his son, all of Israel are obligated to circumcise him, and with the words that the father spoke to the mohel, the mohel did not acquire the mitzva, so that someone else who went ahead and circumcised the child first should be liable.

 

            It is clear from the Rosh’s words that he agrees that the father himself has a special entitlement to his son's circumcision, and therefore a father who planned to circumcise his son himself can sue another person who steals that mitzva from him. The disagreement relates to the stage of transferring that entitlement to another person. "But if the father did not want to circumcise his son, all of Israel are obligated to circumcise him, and with the words that the father spoke to the mohel, the mohel did not acquire the mitzva, so that someone else who went ahead and circumcised the child first should be liable." As for the transfer of that entitlement, the Rosh is consistent with his position in his responsa that the father's entitlement cannot be transferred to another person.

 

However, the Rosh must also disagree about the mechanism of the agency: It would seem from his words that the father has a unique obligation with respect to his son's circumcision, and that this obligation is a personal one that cannot be fulfilled by way of an agent. Any circumcision performed by a mohel who is not the child's father falls into the category of the obligation falling upon all of Israel to circumcise the child, and not that of the obligation falling upon the father. With respect to the obligation falling upon all of Israel, the mohel appointed by the father has no special standing, and therefore he cannot make a claim if some other mohel steals the mitzva from him.

 

            The Shakh (Choshen Mishpat 382, no. 4[7]) concludes from the words of the Rosh in Chullin that a father who knows how to perform circumcision must circumcise his son by himself and he may not pass the matter over to somebody else, for he thereby loses the special mitzva of the father, and the circumcision will be that which falls upon all of Israel (it may be asked, according to this, why should the father not be obligated to learn how to perform circumcision). This is a serious stringency and of great practical importance. It is well-grounded in the words of the Or Zarua in Hilkhot Mila (no. 107), who writes:

 

If the father knows how to perform circumcision, he may not let someone else do it… because the mitzva is cast upon the father, and where there is no father, others are obligated to circumcise [the child].

 

            However, in Hilkhot Mila in Yoreh De'a, the Rema in the Darkhei Moshe (264, 1) cites the words of the Or Zarua, and asks: "The matter requires further study: How is this different from other mitzvot regarding which a person can appoint an agent in his place?" It is clear from his words that agency works with respect to a father's obligation to circumcise his son. This also follows from the words of the Shulchan Arukh (265:9): "The father of the child stands next to the mohel in order to tell him that he is his agent."

 

            As stated, the Shakh's stringency is serious and of great practical importance. It is puzzling to me that the Shakh did not mention it in its proper place in Yoreh De'a in critique of the words of the Shulchan Arukh and the Rema, but only incidentally in Choshen Mishpat. Actually, my question is not about the Shakh, but about the Rosh: If this is his position, why did he only mention it incidentally in the course of his comments on the passage dealing with the 10 gold coins.

 

I might have suggested, against the Shakh, that the Rosh did not come to introduce a stringency in the laws of circumcision, and the Rosh might well be of the opinion that the father fulfills his special obligation even when he appoints a mohel, whether because an agent is like the person who sent him with respect to circumcision, or because the essence of the obligation falling upon the father is not to perform the actual circumcision, but to see to it that his son is circumcised, and therefore he fulfills his obligation when he appoints a mohel to circumcise his son, even without agency (see Tosafot Rid, Kiddushin 29a, s.v. ihi; Responsa Maharach Or Zarua, no. 11). However, the matter is different with respect to liability for the 10 gold coins. The liability for the 10 gold coins is not for the very fulfillment of the obligation, but – as we saw above – for the spiritual experience of the person who fulfills a mitzva by himself. When a person fulfills a mitzva through another person, whether through agency, or because the definition of the mitzva is to see to a certain result, there is no experience of fulfilling the mitzva by himself, and he is not eligible for compensation. Even with respect to the agent, he does not fulfill a mitzva that belongs specially to him. This is what the Rosh means when he says that the agent is like all of Israel.

 

            The plain meaning of the words of the Rosh tends towards the Shakh, and not to my suggestion. However, even if what we said is incorrect in the Rosh, it seems to be correct in the Rema. As stated above, the Rema in the Darkhei Moshe in Yoreh De'a maintains as obvious that agency is effective with respect to a father's mitzva to circumcise his son. Nevertheless, the Rema in Choshen Mishpat, regarding which the words of the Shakh pertain, rules in accordance with the Rosh: "If one had a son to circumcise, and another person came and circumcised him, the latter is liable to pay the former 10 gold coins. But if he asked someone else to circumcise his son, and another person came and circumcised him, he is exempt." If a father is entitled to 10 gold coins for the theft of the mitzva of circumcision, and agency works so that the mohel should be regarded as the father's agent and in that way the father fulfills his obligation, why isn't the father or the mohel entitled to compensation for the theft of the mitzva from the mohel?[8] It seems to me that the Rema maintains that agency is effective, but it does not suffice to make a person liable for the ten gold coins for the distress caused to the plaintiff, as we have explained.

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