Gittin - Daf 53
- היזק שאינו ניכר
The Mishnah on Daf 52b taught that if one damages another’s property in a way that is physically unrecognizable, he only pays if he did so deliberately. Chizkiyah explains: דבר תורה אחד שוגג ואחד מזיד חייב – Biblically speaking, whether such damage was done unintentionally or intentionally, he is liable, because היזק שאינו ניכר שמיה היזק – damage which is unrecognizable is considered true damage. The Rabbis exempted an unintentional damager כדי שיודיעו – so that he will inform [the owner] that his food is prohibited. If he would be liable, he may hesitate to inform the owner, causing him to eat the prohibited food. One who damaged deliberately, however, will certainly inform the owner (even if he must pay), because his entire purpose was to harm him, which is only effective if he informs him. Rebbe Yochanan disagrees: דבר תורה אחד שוגג ואחד מזיד פטור - Biblically speaking, whether such damage was done unintentionally or intentionally, he is exempt, because היזק שאינו ניכר לא שמיה היזק – unrecognizable damage is not considered genuine damage. The Rabbis penalized one who intentionally damaged this way, שלא יהא כל אחד ואחד הולך ומטמא טהרותיו של חבירו – so that everyone should not go and be metamei his friend’s tahor foods, ואומר פטור אני – and say, “I am exempt!”
- גזל מטבע ונפסל תרומה ונטמאת חמץ ועבר עליו הפסח
Rav Pappa challenged Chizkiyah from a Mishnah: גזל מטבע ונפסל – One who stole a coin, and it was disqualified for use by the government, תרומה ונטמאת – or he stole terumah and it became tamei (and prohibited for consumption), חמץ ועבר עליו הפסח – or he stole chametz and Pesach passed, אומר לו הרי שלך לפניך – [the thief] may return the item and say, “What is yours is before you and returned,” and is not liable for its loss in value. Rav Pappa argues that if unrecognizable damage is classified as damage as Chizkiyah asserts, then since this man stole the goods (thereby assuming responsibility for them), and he now returned them in a state which is considered damaged, ממונא מעליא בעי שלומי – he should pay fully for the stolen item which he did not return as it was, yet the Mishna says that he is not liable for its loss in value!? The Gemara concludes: תיובתא – This is indeed a refutation of Chizkiyah’s opinion.
- Penalizing שוגג because of מזיד re: היזק שאינו ניכר and מבשל בשבת
A Baraisa is quoted in which Rebbe Meir says that one is liable for unrecognizable damages, even when done unintentionally, and Rebbe Yehudah says (like our Mishnah) that he is only liable for intentional damages. The Gemara explains that although they both agree that היזק שאינו ניכר is not considered damage, and deliberate damage is liable by Rabbinic decree, Rebbe Meir holds: קנסו שוגג אטו מזיד – they penalized unintentional acts because of intentional acts (i.e., so people could not intentionally damage and avoid liability by claiming it was unintentional), and Rebbe Yehudah holds they did not. The Gemara asks that this diametrically opposes their machlokes regarding one who cooks on Shabbos, where Rebbe Meir says: בשוגג יאכל– if he did so unintentionally, he may eat the food, even on Shabbos. במזיד לא יאכל – If it was intentional, he may not eat it. Rebbe Yehudah says that for שוגג, he cannot eat it until after Shabbos, as a penalty because of מזיד, and for מזיד, he may never eat it. We see that Rebbe Meir did not penalize שוגג because of מזיד, and Rebbe Yehudah did!? The Gemara differentiates between Biblical transgressions (cooking on Shabbos) and Rabbinic transgressions (unrecognizable damages): Rebbe Meir holds they only penalized שוגג by Rabbinic transgressions, because people tend to take them lightly. Rebbe Yehudah holds they only penalized שוגג by Biblical transgressions, because they are more severe. מנסך is an exception according to each opinion.
