Baba Basra 2-3 - damaging sight

(To prevent any 'mar'is ayin,' this post was posted in America, and while it is already Shabbos in Israel, it is not yet Shabbos in the US.)

The gemara introduces us to the concept of hezek re'iyah. At the simplest level, this means that it is possible to cause damage to another with one's vision. The question is, What is the damage that is being discussed here?

I understood that there are at least two different types of damage spoken of here. One is that there is a damage that can be caused by simply looking with an 'ayin hara' - evil eye - at someone elses property. Another understanding is that there is a damage that is caused when a person can not go about his private affairs because I have visual access to his domain.

It is significant that the Gemara, as it continues onto daf gimel, gives two different assumptions as to whether or not the responsibility for preventing this type of damage is upon the neighbor who 'sees' or it is upon the one who is being looked at. The first assumption of the Gemara is that 'hezek re'iyah lav shmei hezek' - damaging sight is not considered a damage. This would mean that the 'offender' who is seeing is not the problem, but rather it is the problem of the one being seen. The question is, Why? The second section of the gemara assumes the opposite, that in fact this type of damaging sight is indeed a significant damage and is the responsibility of the one who is looking. Again, the question is, Why?

If we try to understand more deeply the two different explanations we gave earlier, we will see that the difference between them will indeed be upon whom the responsibility will be placed.

If we understand that the damage here is based on the concept of ayin hara - evil eye - then we need to understand what is an evil eye? The concept of the evil eye is that if someone (we will call him Reuven) looks jealously at another's property (we will call him Shimon), it brings about a question in the heavenly court as to whether or not the one who owns it really deserves it. Thus they look at the records for Shimon and if he is indeed unworthy, he may lose it because of Reuven's negative look.

Of course, this begs for explanation. Why should Reuven lose something because of Shimon's bad thoughts? If anything, we should judge Reuven the negative thinker, not Shimon! The answer is that there is a responsibility on Shimon to be tzanuah - to be modest and not show off the good things that he has. The negative thought that Reuven has is a result of Shimon's showy way of life, and thus, Shimon is judged, for his lack of modesty has brought about a negative thought on the part of Reuven.

Once we understand this, we can understand why hezek re'iyah is not considered the responsibility of the one who is looking. It is the problem of the one who is being looked at! Therefore, he is the one who must build a wall to protect himself.

In the other understanding, however, the damage that is being caused is because the one who is being looked at (again Shimon) can not go about his private affairs because there is someone (again Reuven) 'intruding' with his gaze. This limitation is solely the responsibility of the gazer, and thus we would say the concept that hezek re'iyah is indeed considered a damage, and the responsibility is upon the gazer to prevent himself from damaging and to therefore build a wall.

BK 86 - payment for impermanent damage

The Gemara brings the argument between Rava and Abaye as to the obligation where one has caused an impermanent damage. Abaye says the damager pays 'sheves gedolah,' the value of the hand, and 'sheves ketana,' the loss of work as a cabbage patch guard. Rava says there is no payment for the hand, rather he is paid for his loss of work, but his work as a regular full-fledged worker.

I was wondering why according to Abaye one would have to pay for the hand if it is going to return to full usage later. I realized that the payment will be the difference between what he was worth before the damage, and what he would be worth now if he was sold as a slave. If he was currently sold, the person buying would be aware that his new slave's hand would be returning to full use soon, so the market value of the one damaged has not gone down as much as if he had lost the use of his hand completely.

It is also important to note that both according to Rava and Abaye, the value of the hand is being paid for, however, it is really just a question of how we look at the temporary devaluation - as נזק - the regular damage, and therefore we look at the slave value (Abaye); or as שבת - the loss of work, and therefore we look at his full loss of work (Rava).

BK 76 - when did you slaughter?

The Gemara on 76B seems to be saying (in R' Elazar's question) that the slaughtering that creates an obligation to pay four or five times must be one that permits the animal to be eaten. If there is some other factor that is missing, for example the sprinkling of the blood (according to R' Yochanan) or the redemption of the animal (according to Resh Lakish), then the slaughtering has not permitted on its own and would not create an obligation to pay four or five times.

Question is, Why do we care if the slaughtering permits it to be eaten on its own?

נראה לי בס"ד that the reason the Torah obligates one to pay four or five times when he slaughters the animal or sells it is because he has done something to create a greater benefit for himself, what we might call מקרב הנאתה. When he slaughters it, he now benefits directly because he can actually eat it. Before he slaughtered it, he could not directly benefit. Similarly, when he sells the animal, he has gotten money for it, which he can now directly use for his own benefit.

With that introduction, the explanation of R' Elazar's implication becomes clear. If the slaughtering alone does not create the ability for the animal to be eaten, because another factor is missing (i.e. sprinkling or redeeming), then that act of slaughtering has not brought about a direct benefit to the thief. This in turn means that he would not be fined the extra two or three times because he is still missing the ability to be able to directly benefit from the animal he has slaughtered.

BK 62 - Watching haystacks

What does Rashi mean (ד"ה חטין וחיפן בשעורים) when he says that when a person is supposed to protect a haystack, and it seems to be made of barley, that he will not watch it well?

One possiblity is that barley does not get burned as easily, thus it requires less carefullness.

Another possibility is that since the barley is not as significant, it does not give the same impetus to the one who is supposed to watch it to take care of it properly.

ונראה לי פשט שני

In either pshat, if he would have known there was wheat to be watched there, he would have taken better care not to create this destruction through his fire.

BK 59 - Damage times sixty

The gemara says we paskin like Rav Papa and Rav Huna brei d'Rav Yehoshua. It is unclear whether we are paskin like the first version where they did like Rav Nachman or like the second version where they did not. It is also unclear which version of the sixty times we do (as per the machlokes amoraim on 58B)

The Nimukei Yosef rounds up these two issues, saying that we paskin like the first version where they did like Rav Nachman said, and the way we determine the damage is by taking sixty similar date palms and seeing how significant the devaluation of this one is from that perspective.

As an aside, it is interesting to note that we take a multiplicative factor of sixty, in effect nullifying the damage (בטל בששים)! This needs explanation.

BK 58 - Preventing damage

The classic case of preventing damage (מבריח ארי) is where Reuven sees a lion headed toward Shimon's flock. Reuven chases away the lion to prevent the damage it would cause to Shimon. There is no monetary value to this action of Reuven, despite the fact that he has saved Shimon a tremendous amount.

The case under discussion in our gemara is where Reuven has a field that Shimon's animal accidentally trespasses upon. The field is quite muddy, and Shimon's animal is in danger of being damaged in the mud. Reuven unwittingly helps out Shimon's animal when the animal tramples on some wheat stalks. While this trampling saves Shimon's animal from damage, it simultaneously causes the wheat stalks to be destroyed. There is a value in this case to the damage that Reuven has unwittingly prevented. Shimon must pay Reuven for this benefit.

The Gemara says that our case is different than the aforementioned one for two possible reasons. One is that in the former case, Reuven was fully aware that he was saving Shimon from damage, which is not so in our case. The second reason is that in the former case there was no loss of money when he chased away the lion, which is not so in our case, where the prevention of damage to the animal inflicted damage on the wheat stalks.

The first distinction needs explanation, because of what significance is it if the person is aware? Just because he knows he is saving the other person's property, would it be as if he is relinquishing his claim to monetary compensation? If we would say that the issue is that when he knows, so he accepts upon himself any damages, then what is the difference between the first and second answers? The gemara seems to indicate that they are independant (from the language אי נמי)!

A careful reading of Tosfos answers this question.

Tosfos explains that the first answer is assuming that מבריח ארי is only when the savior is aware he is preventing damage, and thus he implicitly relinquishes his claim to monetary compensation, even if he loses money on the way. In our case, however, he is not aware, and thus there is no implicit relinquishing of the compensatin for loss.

The second explanation of the Gemara assumes that when a person is not intentionally preventing damage, it would also be called מבריח ארי. Thus, Reuven would only be left without compensation in a case where there is no damage to himself. If he is unaware, and there is indeed damage, so there would be an obligation to pay the damage, as in the case of our gemara.

So it comes out that the two answers are simultaneously independent and interdependent; the main focus of the first answer is the aspect of awareness, and the main focus of the second answer is the damage, but both include the other factor as well, just in a different light.