Tuesday, November 8, 2016

Chayecha Kodmin

לזכות הר"ר אהרן ישראל בן משה מרדכי וכל בני ביתו לברכה והצלחה בכל מעשי ידיו!!

לרפואת הגאון הרב משה בן רחל בתוך שח"י!!

לרפואת הגאון הרב גבריאל בן רבקה בתוך שח"י!!

לזכות ר' נח בן חי' ליבא לבריאות השלימה וכל טוב סלה!!

לזכות משה יהודה בן פעשא דינה לזיווג במהרה וכל טוב סלה!!

לזכות שרה רבקה בת לאה לזיווג הגון במהרה!!

לזכות המירוץ לנשיאות שייבחר המועמד שיהיה הכי טוב לאמריקה, ליהודים ולארץ ישראל!!

The Sefer Kesef Kedoshim [Choshen Mishpat 166] writes that even though if harm is coming to one person it is forbidden to push it on to another person instead, nevertheless, one is allowed to protect ONESELF from harm even if it means passing it on to another person. For example, if one person has a death sentence and if he escapes another person will be killed instead [this happened many times during the Holocaust], he may nevertheless escape because חייך קודמים - your own life comes first. But this only applies to physical harm but not monetary damage. One has no right to pass on monetary damage that is going to occur to him onto another person. 

According to this principal we can suggest the following: 

If two people are in mortal danger and if a third person saves them, then ONE other person will be killed, it is also permitted to save them because two take precedence over one. [Or maybe this is not true and one can only save his own life at someone else's expense but not two people who are already in danger if it means a third person being killed]. 

It says in the Yerushalmi [Terumos 8/4, SA YO"D 157/1] that if the Goyim say "hand over one Jew, otherwise we will kill you all", nevertheless it is forbidden to give him over, because it is forbidden to actively cause the death of another person. 

However, based on the Chazon Ish [Yo"d 69], if for example one is driving a speeding car and the brakes stop working, if he continues going straight then many people will be killed but if he turns the steering wheel then fewer people will be killed, it seems that one should actively turn the steering wheel. The logic is that the act of turning the steering wheel is not considered an act of murder of the few but an act of saving for the many which will incidentally result in a few deaths. 

One cannot bring a proof from the Kesef Kedoshim because there he discusses escaping [or helping someone escape] which is not a direct hit on the future victim while here the killing is more direct.

According to the Chazon Ish it would seem that not only may one steer the wheel in order to save the many over the few, but also to save oneself at someone elses expense because חייך קודמין. What about turning the steering wheel to save oneself at the expense of saving the many? Do we say חייך קודמין even when it is one against two or more?? צריך עיון. 

Maybe we can answer בדרך חריפות based on the gemara in Bava Kamma [26a] which says that only when an ox kills a person is there a special payment of כופר but not when a person kills another person, as we derive from the word עליו - ולא על האדם. 

Asked Tosfos [ד. ד"ה כראי] why do we need a pasuk to exempt from כופר, why don't we simply say that a murderer is liable to the death penalty and is thus automatically exempt from all monetary payments as per the rule קים ליה בדרבה מיניה [according to תנא דבי חזקיה we say קים ליה בדר"מ even when one is שוגג]?

Based on the foregoing we can answer Tosfos' question, that there are instances when one may kill in a permitted way, and if so there is no death penalty and nevertheless there is no obligation to pay kofer [because of the limmud from the pasuk]. For example if one veered the car off its path in order to save a himself and instead killed another person and caused damage at the same time. In such an instance, one would be obligated to pay damages, because one has no right to cause monetary damage to someone else [and he was only permitted to cause a loss of life in order to save his own life] and must pay. We would think that in such an instance there would also be a payment of כופר - so the pasuk teaches us that there is not. [This is true if we follow the opinion that כופר is ממון. Since he is obligated on the monetary payment for damages one might think that he is also obligated in the monetary payment of כופר. But if כופר is כפרה [see Bava Kamma 40a] then maybe he would have to pay. But anyway if כופר is כפרה the Rishonim say that one is not obligated בשוגג, so either way he would be exempt in out case from כופר].  

[עפ"י אוצרות הגר"א גנחובסקי זצ"ל]