In honor of Parshas Zochor, we will be discussing:
Question #1: Stole a Brocha?
Someone walked into our Purim seudah, helped himself to some kreplach, recited a loud brocha and then disappeared. Should we have answered “amen” to his brocha?
Question #2: Purim Damage
An inebriated Purim drop-in damaged some property in our house. May we collect damages?
Question #3: Hurt at a Wedding
At a wedding, two people collided, causing one of them to break a leg and lose work time. Is the person who hurt him liable?
Although we certainly hope that our Purim celebrations do not result in anyone getting hurt, the topic of this week’s article is whether someone is required to pay compensation, should he cause damage in the course of festivities. As we will discover, this is an old question, with sources dating back to the time of the Beis Hamikdash! As always, our discussion is not meant for halachic conclusion – for that we refer the reader to his own rav, dayan or posek. The purpose of our article is to provide educational background.
Early sources in the Mishnah and Gemara discuss whether one is required to pay for harm that transpired in the course of a celebration. Let us begin with an anecdote mentioned in the Mishnah (Sukkah 45a), which states, according to Rashi’s interpretation, that after the completion of the hakafos in the Beis Hamikdash on Hoshanah Rabbah, the adults would grab the lulavim and esrogim from the children and eat the esrogim. Rashi explains that there was no prohibition involved because this was part of the holiday festivities. To quote Rashi’s actual words, Ve’ein badavar lo mishum gezel velo mishum darchei shalom shekein nohagu machmas simcha, “there is no violation of the laws of theft or of darchei shalom, because this practice was part of the celebration.” Rashi’s unusual reference to “theft or darchei shalom” is presumably based on the fact that children who were underage could have acquired their esrogim in one of two ways:
(1) Their fathers could have purchased them, in which case the lulavim and esrogim belong to the children min haTorah, and one would have thought that taking them violates stealing.
(2) The children found the lulavim and esrogim, in which case the violation is because of darchei shalom. (See Mishnah, Gittin 59b, for further discussion on this last point.)
(Those who would like to research this subtopic in more detail should note that the approach is based on the comments of the Kapos Temarim, who disagrees with the view of the Tosafos Yom Tov.
The Kapos Temarim was authored by Rav Moshe ibn Chabib, a distant cousin of the author of the Ein Yaakov [both of them were descendants of the Nimukei Yosef]. Rav Moshe ibn Chabib was born in Salonica about the year 1654, attended yeshivah in Istanbul and was sent to Yerushalayim by Rav Moshe Ya’ish, a businessman in Istanbul, to become a magid shiur of the yeshivah there that Rav Ya’ish supported. As hakaras hatov to his benefactor, for the first three years after his arrival in Yerushalayim, Rav Moshe ibn Chabib sent back to Rav Ya’ish notes from his shiurim in the yeshivah, which he developed into seforim on mesechtos Rosh Hashanah, Yoma, and Sukkah. Rav Ya’ish arranged for these chiddushim to be published in Istanbul.
After three years in Yerushalayim, Rav Moshe Galanti, the first to hold the position called rishon letziyon, passed on, and Rav Moshe ibn Chabib, then only about thirty-five years old, was appointed as his replacement to be the rishon letziyon. This is quite astounding, since there were approximately one hundred great talmidei chachamin at the time in the very small community of Yerushalayim, many of them decades older than he. This underscores his tremendous status as a gaon in learning.
Unfortunately for us, his responsibilities as rishon letziyon apparently precluded his continuing his series on Shas. We do have scattered responsa from him and a monumental work on the laws of gittin. Rav Moshe ibn Chabib served as rishon letziyon until his premature passing at the age of 47.)
Tosafos notes that, according to Rashi, the following halacha would result.
“We can learn from here that young men who ride on their horses to greet a chosson and they fight together (probably a jousting match or something similar, performed to entertain the celebrants) – if one of them tears the other’s clothing or injures his horse, they are not liable, because this is the minhag established because of simcha.” In other words, when people are involved in celebration, even should it get somewhat rowdy, the established practice exempts a person from paying damages that may result.
We should note that Tosafos mentions that one young man tore another’s clothing or injured his mount, both of which are instances of property damage – but Tosafos does not discuss whether there is liability in the event of physical injury. We will discuss more on this point shortly.
Tosafos then suggests an alternative way to explain the Mishnah: After the last of the hakafos, the children removed their own lulavim from the hadasim and aravos and began to play with their lulavim and eat their own esrogim (and not that the adults grabbed the children’s lulavim and esrogim). According to this approach, the Mishnah contains no reference to someone taking another person’s property as part of the celebration, and it therefore provides no source that a celebration exempts liability should one damage someone else’s property. However, although the second approach does not provide a source exempting a simcha situation from liability, this does not necessarily mean that those who understand the Mishnah this way require that a celebrant pay damages. It simply means that there is no source from the Mishnah regarding this law.
It is interesting to note that Rashi on the Gemara (46b) cites Tosafos’ approach in explaining the Gemara and disagrees with it on the basis of a Midrash Rabbah that he quotes. This leads to an interesting discussion among the early acharonim.
The Maharam notes that Tosafos does not point out in either place that Rashi himself mentions the other approach and disagrees with it. The Maharam concludes that Tosafos obviously did not have this text in Rashi; he also notes that he found other editions of the Gemara that do not have this Rashi. The Gra similarly states that this text is not part of what Rashi wrote but was written by someone later, and then added to our editions by an errant copyist. However, we should note that these comments are attributed to Rashi’s commentary even in the very earliest printed Shas, the Bomberg edition, printed in Venice in 1521. That would mean that the Maharam and the Gra are noting that this mistake crept into Rashi even earlier, probably before the era of printing.
We find evidence that not all rishonim agree that someone who caused damage while celebrating a simcha is exempt. This disagreement is borne out by a ruling of the Rosh, recorded in the following responsum (Teshuvos Harosh 101:5).
Just muling around
For the occasion of his wedding and sheva brochos, a chosson rented an elegant mule. The rental agreement from the non-Jewish owner included a provision that, if the mule was injured, the renter/chosson would be required to pay not only damages but also a substantial fine, far more than the market value of the animal.
In the course of the merriment, a celebrant who was on horseback playfully chased after the chosson. His steed collided with the chosson’s mule, severely injuring the mule. Subsequently, there was a din Torah concerning payment for the damage to the chosson’s rented mule. (Some friend! And what a way to celebrate your wedding!) The Rosh rules that the friend is obligated to pay the damages for the mule, but he is not obligated to pay the cost of the contractual fine over and above the value of the mule, for reasons unrelated to our discussion.
The Maharshal notes that if a celebrant at a simcha is exempt from damages, the chosson’s friend should have no legal responsibility to make restitution. He therefore concludes that the Rosh disagrees with those who contend that there is an exemption from paying damages caused by mitzvah merriment (Yam shel Shelomoh, Bava Kama 5:10).
The Beis Yosef (Orach Chayim 695) quotes some of the sources that excuse the merrymaker from damages, but notes that this immunity exists only in communities where this type of rowdy merrymaking is common practice. He then notes that in the area in which he lives, this type of rowdy celebrating does not exist. Therefore, we understand why he omitted any discussion of exempting merrymakers from damages when he wrote the Shulchan Aruch. On the other hand, numerous other authorities, predominantly Ashkenazim, exempt the person from paying damages caused by mitzvah gaiety (e.g., Mordechai, Sukkah 743; Agudah, Sukkah ad locum; Terumas Hadeshen 2:210; Yam shel Shelomoh, Bava Kama 5:10). The Rema rules this way in three different places (Orach Chayim 695:2; 696:8; Choshen Mishpat 378:9), and it is accepted subsequently as normative halacha. (One later authority who disagrees with the Rema is the Yesh Seder Lemishnah, in his commentary to the Mishnah in Sukkah.) Here I will quote one of the places where the Rema cites this law: Young men who ride to greet the chosson and kallah, and damage one another’s property while celebrating, are exempt from paying, since this is the accepted custom. However, if it appears to beis din that this practice needs to be curtailed, it is authorized to require payment.
Notwithstanding the generally accepted approach that a merrymaker is exempt from paying damages, there are exceptions. Here is an extreme example, mentioned by the Terumas Hadeshen:
Eliezer claims that Gershom pushed him extremely hard during the Hoshanos and the subsequent impact broke Eliezer’s shoulder blade. Eliezer is now suing Gershom for compensation for his medical expenses, lost work time, and other damages. Gershom retorts that since it happened in the course of the Sukkos celebrations, he is exempt from paying. Testimony was introduced that Gershom’s act was premeditated – he was angry at Eliezer and used the Hoshanos observance as a ruse to disguise his reprehensible intentions. The two men were indeed involved in a serious tiff.
Indeed, although the Torah would require someone who injures someone intentionally to pay not only for the other abovementioned costs, but also for embarrassment and pain, such claims require the authorization of judges who have semicha for these laws in a mesorah that traces itself back to Moshe Rabbeinu. In addition, these claims can be collected only when they can be proven. Nevertheless, the Terumas Hadeshen rules that since the damage was malicious, and Gershom attempted to mask his intentions in a way that he would not be liable, the situation requires punishment beyond what the law would necessarily require (Terumas Hadeshen 2:210).
We should note that the Terumas Hadeshen contends that Gershom is responsible because he intended to injure Eliezer. However, had the injury been unintentional, the Terumas Hadeshen agrees that there would be no financial liability, notwithstanding the fact that there was physical injury and fairly extensive damages. This leads us to our next subtopic.
Does the exemption of liability caused in the course of mitzvah merriment apply even when there is physical injury? The Magen Avraham raises this question, and notes that it is subject to a dispute among halachic authorities. He quotes the Keneses Hagedolah, who rules that one is obligated to pay for physical harm, whereas the Agudah rules that one is not. We also noted above that the Terumas Hadeshen held, like the Agudah, that one is not obligated to pay even in the instance of physical injury, should the cause of damage be the merriment and not someone’s despicable intentions.
A similar question was asked of the Bach. During a wedding meal, one of the celebrants smashed his drinking glass against a wall and the flying glass caused someone serious, permanent injury. Is the glass smasher obligated to compensate for the damages, or is he exempt because of the rule of merrymaking? The Bach cites the dispute about whether a merrymaker is obligated to compensate for physical injuries. He rules that, even according to those who rule that physical injuries are included in the exemption, permanent physical injury is not included (Shu”t Habach #62). This opinion of the Bach is cited by some later authorities (He’aros Rav Boruch Frankel on Shulchan Aruch, Orach Chayim 695; Mishnah Berurah 695:13).
Stole a Brocha
At this point, let us examine the first of our opening questions:
Someone walked into our Purim seudah, helped himself to some kreplach, recited a loud brocha, and then disappeared. Should we have answered “amen” to his brocha?
The halachic question here is that, in general, it is forbidden to recite a brocha on stolen food, and, therefore, one may not answer amen to such a blessing. The question is whether this food is considered stolen.
Some prominent 15th century halachic authorities quote an early ruling of the Riva, one of the baalei Tosafos, that all food grabbed by young men in the course of a Purim celebration is not considered stolen, provided that this happened sometime between the reading of the Megillah at night and the end of the Purim seudah (Terumas Hadeshen 1:110; Shu”t Maharam Mintz, end of #16). The Beis Yosef (Orach Chayim 696) quotes this ruling as normative halacha. As a result, the Mishnah Berurah rules that someone who took food from another person during the Purim celebrations may recite a brocha. Nevertheless, he also quotes the Shelah (quoted by the Elya Rabbah) who frowns on this behavior, stating that anyone concerned about his Judaism should not conduct himself this way. Nevertheless, notwithstanding the conclusion that the Mishnah Berurah applies to this ruling, the halacha remains that, since the individual who helped himself to the kreplach did not steal, he was required to recite a brocha prior to eating it, and the brocha was therefore not recited in vain. The result is that one is required to answer amen to this brocha.
Please click here for Part II of this article. .