לזכות ידיד נפשי וידיד עליון הרב הגאון ר' אליעזר זאב בן דבורה רייניץ שליט"א לברכה והצלחה בכל מעשי ידיו יחד עם כל בני ביתו!!
לזכות ידיד נפשי הרב ר' חיים יהושע בן אפרים הכהן לברכה והצלחה כל מעשי ידיו יחד עם כל בני ביתו!!
לזכות ידיד נפשי הרב ר' חיים יהושע בן אפרים הכהן לברכה והצלחה כל מעשי ידיו יחד עם כל בני ביתו!!
A] The gemara [Eiruvin 62a] says:
"בן נח נהרג על פחות משוה פרוטה ולא ניתן להשבון".
A בן נח is executed for stealing even less than a פרוטה [because the death penalty applies whenever a בן נח transgresses one of the שבע מצוות בני נח] and it can't be returned.
Rashi explains:
"דגבי ישראל כתיב והשיב את הגזילה אבל בעכו"ם לא כתיב השבה, הלכך כיון שעבר ונהרג אינו משלם".
Regarding a Jew it says "he should return the stolen object" but with respect to a בן נח it doesn't say that he returns it, therefore since he transgressed and was executed, he doesn't pay.
What does Rashi mean? Why doesn't he return the stolen object? Tosfos [ע"ז עא: ד"ה בן נח] explains that Rashi means that he need not return the object because of the rule of קים ליה בדרבה מיניה. Since he receives the more severe punishment of מיתה he is exempt from the monetary obligation to return the object.
Tosfos argue and say that the din of לא ניתן להשבון - the money is not returned, applies only to Jews because they are מוחל less than a שוה פרוטה [so there is no reason to return it because it was forgiven] but it doesn't apply to בני נח [who are not מוחל]. They explain that קלב"מ doesn't apply to בני נח, so that can't be the reason why they don't have to return the object.
On the surface, they mean that this din of קים ליה בדרבה מיניה is a חידוש in the pasuk which applies only to Jews and not to בני נח. However, it would appear that there is a deeper explanation, as we will demonstrate בס"ד.
B] The Rosh in Bava Kamma [פ"א סי"ט] writes that if an ox of an עכו"ם gores an ox of a Jew we can only extract payment from him if there are kosher Jewish witnesses. So paskened the Tur and Shulchan Aruch [חו"מ סי' ת"ח ובסמא]. The Nemukei Yosef [פ"ב דיבמות ד: מדפי הרי"ף] disagrees and and writes that עכו"ם are Biblically qualified to testify, as it says in Sanhedrin that בני נח are executed according to Torah law based even on the testimony of a relative. If they can testify about capital cases they can CERTAINLY testify about monetary cases. So he holds that that we don't require valid witnesses in order to extract money from an עכו"ם and we have a קל וחומר to that effect. If in capital cases we says [Sanhedrin 57b] that a בן נח is executed with one witness and one judge and even a relative is kosher, certainly the same would apply when it comes to extracting money. The Minchas Chinuch [51-8] wondered why the Rosh would argue with such a seemingly logical argument. We may wonder together with him!
C] It would appear that we can explain that we can explain their מחלוקת as follows: They are arguing about he nature of the חידוש that in order to execute a בן נח two witnesses are not required and one witness and one judge suffice. The N"Y learns that הריגת בני נח is subsumed under the rubric of דיני נפשות, just that there is a special קולא that he is executed based on the testimony of one witness and one judge. Since we are dealing with "דיני נפשות", a classic legal case of capital punishment, we can derive from a קל וחמור that if regarding דיני נפשות one witness and one judge suffice, then CERTAINLY regarding דיני ממונות this קולא would apply and kosher witnesses are not required.
But the Rosh learns that this act of execution is NOT classified as classical דיני נפשות but rather it is a mitzva like other mitzvos. If so, the קל וחומר of the N"Y doesn't hold water. It is true that to execute a בן נח we don't require two kosher witnesses, but that is because it is not דיני נפשות proper. That would not constitute a model for דיני ממונות. So when it comes to monetary matters such as the goring of an ox belonging to a Jew by an ox belonging to a בן נח, two kosher witnesses would be required.
A source for the חידוש of the Rosh can be found in the gemara in Sanhedrin [15b]:
Rabbi Elazar asked: If the ox of a High Priest killed a person, by how many judges is it sentenced? Do we compare it to a trial that could result in the death of its owner, the High Priest, which would have to be judged by seventy-one judges, or perhaps we compare it to a trial that could result in the death of owners in general, which could be judged by twenty-three judges?
Why doesn't the gemara inquire about a much more common scenario - how many judges are necessary when the ox of a בן נח gores? Do we require 23 or one as would suffice for he himself? From this omission we can learn that the gemara asked only about the ox of a Kohen Gadol, where his execution is definitely included in classical דיני נפשות just his דין is different insofar as it needs 71 judges and the gemara asks if his ox has the same דין. But when it comes to the execution of an עכו"ם things are different because regular תורת דיני נפשות doesn't apply to him and for this reason one witness and judge suffice. If so, there is no room for the question of how many judges are required to judge his ox, because this ox is no less than an ox of הפקר whose דין is to be judged with 23 and thus the leniency that applies to the עכו"ם himself cannot apply to his ox.
According to this logic we can question the חידוש of the Rav Chaim Ozer [שו"ת אחיעזר ח"ג סי' נ"ז] who writes that a בן נח has to pay for his acts of גרמא [indirect damage] and his דין is more stringent than that of a Jew who is exempt for גרמא. His proof is from what we find that a בן נח is executed even for killing בגרמא and in Sanhedrin [76b] we learn a קל וחומר about a מצמצם [harming by confining], that if the Torah obligates a person for דיני נפשות then it certainly obligates for damages [and the one who argues with this only does so because there is a special exclusion in the pasuk]. So too, with regard to גרמא of a בן נח we can employ a similar קל וחומר - from the fact that that he is executed for killing בגרמא, certainly he will be obligated for damages.
However, based on what we wrote, maybe this קל וחומר applies only to Jews whose capital punishment is classified as דיני נפשות and we can make a קל וחומר from דיני נפשות to דיני ממונות [i.e. מזיק] and say that if he is liable for דיני נפשות for מצמצם, then he is certainly liable for דיני ממונות. But when it comes to a בן נח, we can't derive the liability for גרמא with regard to damages from the fact that he is liable to גרמא with regard to נפשות. This is because his execution is not considered דיני נפשות proper while for a monetary obligation we require that he have a תורת מזיק בדיני ממונות - a bona fide damager in the formal, legalistic sense. If so, maybe his גרמא is not considered damage and he is not liable.
It would seem that this is what Tosfos meant when they said that קלב"מ does not relate to an עכו"ם. They don't mean that it doesn't apply to עכו"ם like most Torah laws don't apply to גויים. But rather that this חידוש doesnt relate to עכו"ם because their execution is not classified as דיני נפשות as it is regarding a Jew but rather is just a regular mitzva so קלב"מ doesn't apply [as it doesn't for other mitzvos]. Only for a Jew we say that the more stringent דיני נפשות overrides the less stringent דיני ממונות.
[עפ"י תורת הגאון רבי חיים שמואלביץ זצ"ל]
