QUESTION: Rabah rules that if one throws his friend's coin into the sea, he is exempt from paying. He may say to his friend that the coin is available, lying on the seabed, and if the owner wants he may take it from there. This claim applies only when the water is clear and the coin can be seen. If the water is murky, he is liable to pay. The Gemara adds that the exemption from payment (when the water is clear) applies only when the coin was in the hand of its owner, and the person struck him under his hand and caused the coin to be cast into the sea. However, if he actually takes the coin out of the hand of the owner and throws it into the sea, it is considered an act of theft for which he is obligated to pay. In such a case, he is obligated to return the coin even if he threw it into clear water.

Earlier (26b), Rabah says that when one throws a vessel off of the roof when there are cushions on the ground to break its fall, but someone else comes and removes the cushions before the vessel lands and the vessel shatters, the person who threw the utensil is exempt. At the time he threw the vessel it was not destined to break since the cushions were there at that time.

Why does Rabah not say that when the person lifts up the vessel in order to throw it from the roof, he is considered as though he is stealing the vessel, and he therefore is obligated to return the stolen vessel?

(a) The SHACH (CM 386:20) answers that the Gemara there (26b) refers to a case in which the person who threw the vessel off the roof did not actually lift it up first; rather, he merely pushed it off the roof. If he would have lifted up, his act indeed would have been considered an act of theft and he would have been obligated to return the stolen object (but since he broke the object, he would be obligated to pay for it).

(b) The CHAZON ISH (Bava Kama 2:12) disagrees with the Shach. He asserts that the Gemara's wording -- he "threw" the vessel off the roof -- implies the normal way of throwing, which involves lifting up the object first. Had the Gemara there intended to say that he merely pushed it off the roof, it should have said so explicitly, with terminology similar to that of the Gemara here (which says that he "pushed it" out of the owner's hand).

Therefore, the Chazon Ish distinguishes between the two cases of the Gemara in the following manner. In the case of the one who throws a vessel off the roof, the thrower is exempt even if he lifted it up before he threw it. At the time that he lifted it, the cushions were on the ground, and thus his lifting of the vessel did not represent any act of damage. The Chazon Ish adds that even if he intended afterwards to remove the cushions himself (the Gemara there says that even in this case he would be exempt), at the time he lifted it there was no act of stealing (as the act of damage did not yet exist).

The Chazon Ish asserts that this case is comparable to the case of one who raises his friend's vessel with intention to place it on the ground and then to break it with a stick. His original act of lifting the vessel is not considered an act of theft. He is liable only for his later act of breaking. In contrast, when he lifts up the coin with intention to throw it into the sea, the original lifting is done in such a way that it is capable of resulting immediately in a loss or damage (i.e. being thrown into the sea). He therefore is responsible to return the coin to its owner. (D. Bloom)

QUESTION: The Gemara (end of 98a) quotes Rabah who states that when one burns someone else's loan document, he is exempt from paying for the other person's inability to collect his loan. He may say to the lender that he burned merely a piece of paper, and not the money that was owed to the bearer of the document.

The Gemara later quotes Ameimar who states that according to the opinion that one who damages through Garmi (a more causal form of indirect damage) is obligated to pay, one who burns a lender's loan document is obligated to pay the full sum of the loan. According to the opinion that damage of Garmi does not obligate one to pay, one who burns a lender's loan document pays only for the value of the paper that he burned; he does not pay for the value of the debt itself.

The Gemara relates that a case in which Rafram forced Rav Ashi to pay full payment, "Ki Keshura l'Tzalmei" ("like a beam used for etched drawings, i.e. straight and smooth, the beam of highest quality). RASHI explains that Rafram made Rav Ashi pay for a lender's loan document which he had burned in his childhood. He made him pay the full sum that was written in the document, and he made him pay from his best land.

Why does Rashi explain that Rafram collected payment for damages done by a minor? The Mishnah (87a) states that one who encounters a person who is deaf and dumb, insane, or a minor, stands only to lose, because anyone who damages such a person must pay for the damages, while when such a person damages anyone else, he is exempt. Since a minor who damages is exempt, why did Rafram force Rav Ashi to pay for a document that he burned when he was a minor?

(a) The HAGAHOS ASHIRI (8:9) answers in the name of the OR ZARU'A that although a minor is exempt before he reaches the age of adulthood, he is obligated to pay when he becomes an adult. Rafram made Rav Ashi pay when he was an adult for damage that he did when he was a minor.

The Hagahos Ashiri cites proof for this answer from the Gemara earlier (39b). The Mishnah there (39a) states that when the bull of a person who is deaf and dumb, insane, or a minor gores, Beis Din appoints a trustee. In the Gemara there, Rava explains that if the bull gores three times, Beis Din appoints a trustee. If it gores a fourth time, the damages are collected from the highest quality land. Rebbi Yosi bar Chanina explains that this means that the victim of the damage collects from the highest quality land of the trustee. When the orphans reach adulthood, the trustee may then collect reimbursement from them. If a trustee may collect reimbursement for payments given on behalf of a minor (for damage caused by his bull when he was a minor) after the minor reaches adulthood, certainly one may collect payment for any damages which the minor himself caused when he was a minor.

(b) The BACH (OC 343, DH Kasav b'Hagahos) writes that the Poskim do not agree with the assertion of the Hagahos Ashiri that a person is obligated to pay when he becomes an adult for any damage he did when he was a minor. The Bach offers a different explanation for why Rafram forced Rav Ashi to pay.

The RAMBAM (Hilchos Geneivah 1:10) writes that it is fitting for Beis Din to administer corporal punishment to minors who steal, according to the strength of the child, to deter them from becoming accustomed to stealing. The Rambam also writes that minors should be punished similarly for other damages they caused. The Bach writes that Rav Ashi was a child when he burned the document and thus was exempt from paying according to the letter of the law. Instead, he should have received some form of punishment from Beis Din. However, Rav Ashi did not want to receive this punishment; he preferred to pay for the damage that he did. Rafram therefore forced Rav Ashi to pay when he was still a child.

The Bach reasons that it is more logical to suggest that Rav Ashi was a minor when he paid for the damage than to suggest that Rav Ashi, as an adult, was forced by Rafram to comply with the Beis Din's order. Why would a great sage like Rav Ashi need to be compelled to follow the orders of Beis Din? It must be that Rav Ashi was a minor at the time, and had Rafram not forced him to pay, Beis Din could not have entitled the victim to collect the damages from Rav Ashi's property since, according to the strict letter of the law, a minor is exempt from paying for damages.

The Bach refutes the Or Zaru'a's proof from the Gemara earlier (39b). The case of the Gemara there involves a unique enactment which the Rabanan instituted for the sake of "Tikun Olam" (to ensure that people would not be dissuaded -- if they could not collect reimbursement from the orphans later -- against being appointed as trustees for the property of orphans; see Rashi there, DH v'Chozrin).

(c) The REMA (OC 343:1) writes that "a minor who hit his father or did other transgressions in his childhood, even though he does not need to repent when he grows up, is nevertheless encouraged to accept upon himself something for repentance and atonement, despite the fact that he did the transgressions before he was liable for punishment." The Rema apparently maintains that Rav Ashi would have been exempt from paying. Based on the Rema, the TAZ writes that Rav Ashi indeed was exempt from paying even when he became an adult. Rafram made him pay in order that his conduct be "Lifnim mi'Shuras ha'Din," beyond the letter of the law. (D. Bloom)