Ketubot 39 - 45
Sinai and Mountain Mover
A halachic issue troubled the two leading sages of Babylon, Rabbah and Rabbi Yosef, for 22 years. Only after Rabbah passed away and was succeeded by Rabbi Yosef as Rosh Hayeshiva was the problem finally resolved.
The background for this incident is provided by Rashi. At one point both Rabbah and Rabbi Yosef were candidates for the position of Rosh Hayeshiva and each had his own special qualification. Rabbi Yosef was known as "Sinai" because of his encyclopedic knowledge while Rabbah was reputed as "a mover of mountains who grinds them together" because of his sharp analytic powers. The Babylonian community turned for guidance to the Sages in Eretz Yisrael, who advised appointing Rabbi Yosef because "everyone is dependant on the supplier of the wheat," a reference to that sage's store of information.
Despite the fact that he was offered this prestigious position, Rabbi Yosef declined to accept it. He had earlier learned from astrologers that he was destined to serve as Rosh Hayeshiva for two years and he reckoned that if he accepted the position, his life would come to an end in a couple of years. He therefore chose to wait for 22 years during which he completely deferred to the leadership of Rabbah and began his own term of leadership after Rabbah's passing. It was only then that the 22-year-old problem was solved.
How was it that a problem whose solution eluded both of these sages for so many years was suddenly solved by the new Rosh Hayeshiva?
This, concludes Rashi, was an act of heavenly intervention. Since Rabbi Yosef was not as distinguished for the brilliance of his analysis as was his predecessor, there was a danger that he would not command the same respect of the Torah scholars. He was therefore provided with Heavenly assistance in solving the problem so that the "Sinai" would also be revered as a "mountain mover."
Hold That Tiger!
An animal which does damage in an unusual manner obligates its owner to pay a penalty equal to half the value of the damage. This includes the classic case of an ox goring the first three times or the parallel of a dog eating sheep. This is considered a penalty rather than payment because the owner was not expected to be aware of the wild nature of his animal. But because it is only a penalty imposed by the Torah to make people more careful in guarding their animals, only a court of judges with semicha such as existed in Eretz Yisrael had the jurisdiction to impose it upon the offender. In Babylon in Talmudic times, and everywhere today, a rabbinical court cannot force the owner of such an animal to pay the aforementioned penalty.
If, however, the victim confiscates property of the animal's owner in order to cover the cost of this penalty, the court will not take it away from him. What exactly constitutes legal confiscation is the subject of a major dispute amongst the commentaries.
Tosefot cites the view of Rabbeinu Tam that only if the victim seizes the offending animal itself do we allow him to keep it in order to cover the penalty. Should he seize other property it will be removed from him. His reasoning is that if we allow him to confiscate other items, he may seize property worth much more than the sum due him and the court will not be able to remove from him the extra amount because it has no jurisdiction to get involved in litigation concerning penalties.
This view is sharply contested by Rabbeinu Asher (Rosh) and others who contend that confiscation of any property is effective. Should the value of the property confiscated exceed the amount of the penalty the court will compel the confiscator to return the difference. This is not considered judging a case of penalty because that facet of the case has already been concluded with the initial confiscation, and the court is merely dealing with the reclamation of the extra money.
Rabbeinu Tam's approach is the subject of much discussion by later commentaries. Although in our gemara he is quoted only as limiting confiscation to the offending animal, another condition is added in Tosefot Bava Kama (15b): The confiscation must take place at the time of the damage. Some commentaries interpret this as confiscation before the animal returns to the home of its owner, drawing a parallel to a later gemara (Ketubot 84b) which distinguishes between confiscation of property for debt payment before it enters the domain of the heirs or afterwards. Another view is that Rabbeinu Tam limited confiscation to the very time of damage. The logic of this is that this was a special rabbinic dispensation for the victim who cannot be expected to restrain himself from seizing the offending animal at that moment of anger. This approach may also serve to answer the challenge of the Rashash that even according to Rabbeinu Tam there is the problem of the offending animal being worth more than the penalty and requiring court action to reclaim the difference.