Mishpatim

Replacement Or Reimbursement?

This week's parshah, Parshas Mishpatim, discusses many various halachos regarding monetary issues. One of the topics is when one damages another person's property. One is responsible to pay for the damage that either he or his possessions caused.

The Machaneh Ephraim (Hilchos Nizkei Mammon) discusses the following scenario: one breaks an item that is worth $10 at the time that it was broken. On the day that the individual is to pay, the item has devalued and is only worth $8. How much does he have to pay, $10 or $8? Similarly, can he replace the item with an exact replica of the broken item that is now worth less or does he have to reimburse the owner with the cash value of the item at the time it was broken?

The Gemara discusses the halacha of this case regarding when one steals an item. If the item is still intact, it can be returned even if the price has decreased. If the item is physically damaged, one cannot return it and cannot buy a new one at the lesser price; rather, he must pay the owner what it was worth at the time it was stolen. Here's the question: Does the halacha of repaying for damages follow the halacha of stealing, or does it differ – allowing one to replace the damaged item at a lower price?

The Machaneh Ephraim says that this is in fact a machlokes Rishonim. The Rambam, Rashi, and Tosafos are all of the opinion that the halacha of paying for damages does not follow the halacha of repaying for stealing an item, and thus one may replace the item at a lower price or pay the current lower price. The Raavad and the Rush opine that the halacha of reimbursing one for damages that were incurred to one's property follows the halacha of paying for a broken stolen item; thus one is obligated to pay the value that the item was worth at the time that it was broken.

We can simply explain that the machlokes Rishonim is dependent on the following question: When one damages an item is he obligated to replace the item, either with an actual item or with money to purchase an item at today's price, or is he obligated to pay for the loss that the owner incurred at the time of the damage?

Based on this, the Machaneh Ephraim explains the following machlokes between the Rambam and the Raavad (Hilchos To'en V'niten 5:2): the halacha is that mi'de'oraysa one can only swear regarding movable objects; one cannot swear on a matter concerning land. If one claims that his fellow dug two holes on his land and thereby cheapened the value of the land and his fellow only admits to digging one hole, he does not have to swear mi'de'oraysa. Generally, when one admits to part of a claim he is obligated to swear mi'de'oraysa. However, says the Rambam, since this oath would concern land he is exempt from swearing. The Raavad argues that this case is not considered swearing regarding land, but rather they are disputing how much money is owed – in which case he is obligated to swear mi'de'oraysa.

The Machaneh Ephraim explains that this machlokes is dependent on the question that we discussed above. The Rambam, as mentioned earlier, holds that when one damages an item he is obligated to replace it. Therefore, when one damages land he is obligated to replace the land. This being the reason that the Rambam considered the dispute to be concerning land, he was unable to swear mi'de'oraysa. The Raavad was of the opinion that one is not obligated to replace the item that he damaged, but rather that one is indebted to pay the owner the value that was lost at the time of the damage. It is for this reason that the Raavad said that the dispute here concerns money and not land – thereby allowing for an oath mi'de'oraysa.

Reb Chaim Soloveitchik raised the following question regarding this scenario:  there only exists two of a certain type of stamp and they both belong to one individual. Since two of these stamps exist, they are each worth $50. If there would only be one of them in the world, it would be worth $100. If someone were to destroy one of the stamps, would he be obligated to pay the owner or would we say that since there was technically no loss of money – as the remaining stamp increased in value – he is not obligated to pay?

Initially, Reb Chaim said that it is dependent on the question that we mentioned earlier. If the obligation to pay, when one damages, is to reimburse the owner for his loss, then in this case where there was no loss one need not pay anything. However, if one is obligated to replace an item that he damaged, and if he is unable to replace it he must then pay for it, then in this case that finds him unable to replace the item he should be obligated to pay for it.

Reb Chaim then said that even if the obligation of someone who damaged is to replace the broken item, he is only obligated when there is a loss. If there is no loss whatsoever, he is not a mazik (damager), and would thus not be responsible. Therefore, if the remaining stamp is worth less than the combined value of both stamps (less than $100) – namely that the owner incurred a loss – he is considered a mazik, and will therefore be obligated to replace the stamp at full cost.

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Bishalach

Lechem Mishneh

At the onset of the Bnei Yisrael's journey through the midbar, we read in this week's parshah that the Bnei Yisrael's complaint was for food to eat. Hashem responded that He would send "lechem min hashamayim" (also known as mun), and that the Bnei Yisrael would collect each day's portion according to the number of members of his household. One was not allowed to leave over any mun for the next day, and if he would it would spoil. On the sixth day a double portion would fall and the second portion was to be saved for Shabbos, as the mun would not fall on Shabbos. This double portion would not spoil, even though it was left over to the next day.

            The Gemara in Shabbos 117b derives from the pasuk that mentions the double portion of mun that fell for Shabbos that one is obligated to "break" bread on two loaves of bread on Shabbos. Rashi explains that the obligation is only to recite the berachah of "hamotzi lechem" on two loaves; one need not break both loaves. The Gemara relates a story in which Rav Kehana held two loaves while reciting the berachah and only broke one of the loaves. The Gemara then relates another incident in which Rav Zera broke enough bread for the entire meal. The interpretation of the second incident is the subject of a dispute between Rashi and the Rashba. Rashi explains that it is an unrelated episode that teaches us that Rav Zera would break a bigger piece of bread than usual in honor of Shabbos. The Rashba explains that the Gemara is offering a disputing opinion to the previous one of Rav Kehana. Rav Kehana would only recite the berachah on the two loaves, and Rav Zera would even break both of them.

            In other words, according to Rashi, one must only recite the berachah of hamotzi on two loaves and one need not break both of them; in his view this is not a matter of dispute. According to the Rashba, this is the opinion of Rav Kehana. Rav Zera disagrees and says that one must break both loaves as well. The Rashba adds that Rav Hai Gaon ruled that since the Gemara did not rule in this matter between Rav Kehana and Rav Zera, one is free to do as he wishes.

                The Shulchan Aruch (Orach Chaim 274:2) rules in accordance with Rashi's view that one must only recite the berachah on the two loaves, and that one need not break both of them. Also, that it is a mitzvah on Shabbos to break a big piece that would suffice for the entire meal. The Vilna Gaon, in the abovementioned siman, agrees with the Rashba that one should break both loaves of bread. Similarly, the Magen Avraham cites the fact that the Maharshal was accustomed to breaking both loaves of bread as well.

                I would like to discuss the basis for this machlokes, and explain on a deeper level where they disagree. According to Rashi everyone agrees that one must only recite the berachah on the two loaves. On this opinion, the halacha that one must have lechem mishneh is similar to that of the daytime Kiddush. There is an obligation that the seudah begins with a berachah on lechem mishneh. Therefore, the following chiddush halacha should result: Just the same as Kiddush Rabbah (by day), only one person is required to recite the berachah, and everyone can fulfill their obligation without even drinking from the wine. So too only one person must recite the berachah on the lechem mishneh, and everyone will have fulfilled the obligation of lechem mishneh. This applies even if they do not eat from the lechem mishneh; rather they can eat from their own bread and make their own birchas hamotzi on it.

            The Eishel Avraham (Reb Avraham from Butchatch found this in the back of the Shulchan Aruch, Orach Chaim 274) adds that one can even be yotzi his obligation of lechem mishneh if he hears the berachah before he washed his hands, and that the washing and reciting of its berachah will not be an interruption. Even though he will recite his own berachah of hamotzi, it is sufficient that he heard the berachah that was recited on the two loaves.

            The Rashba explained that Rav Zera disagrees with Rav Kehana, saying that one must break both loaves. In fact he makes no mention of the berachah at all. In his view one must break both loaves and need not recite the berachah over both of them. According to this opinion the obligation to break both loaves of bread is a part of the seudah, and the seudah should be eaten with both loaves broken. One need not eat from both loaves, but we see that it is a part of the seudah. According to this opinion one would have to eat from one of the two broken loaves. It would not suffice to merely listen to the recitation of the berachah over them.

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