Ketubot 32 - 38 Issue #325
26 Nissan � 2 Iyar 5760 / 1 � 7 May 2000

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A Fate Worse Than Death

A punishment worse than death? Yes, says the Sage Rav. Chanania, Mishael and Azariah were the three Jewish heroes who defied the order of the Babylonian ruler Nebuchadnetzar to bow to the statue he had erected even though it meant being cast into a fiery furnace. "We shall not serve your god nor bow to the golden statue which you have erected," they boldly declared before being thrown to a flaming death from which they were miraculously saved (Daniel 3:18). Had these same three heroes been subjected to the torture of beatings, says Rav, they would have bowed to the statue.

Our gemara cites this statement of Rav as a challenge to the assumption that the punishment of death meted out by a court is worse than the punishment of lashes. This challenge is summarily dismissed by distinguishing between the fixed amount of lashes given by the court and the endless beatings inflicted by an enemy bent on breaking his prisoner.

But Rav's statement about the limited heroism of Chanania, Mishael and Azariah comes under close analysis by Tosefot. The gemara's account of Rabbi Akiva's martyrdom (Mesechta Berachot) seems to suggest that where martyrdom is required it is even in the face of torture. When the Romans ripped his flesh with iron rakes, he told his disciples that he finally had an opportunity to realize his lifelong ambition to fulfill the Torah command to love Hashem "with all your soul" which means even giving up your life. If Rabbi Akiva considered himself bound to retain his faith in the face of torture worse than lashes, why does Rav conclude that those three heroes would have succumbed to idol worship for fear of lashes?

Tosefot cites the explanation of Rabbeinu Tam that the statue of Nebuchadnetzar was not really an idol to be worshipped, only an instrument for paying homage to the king. This is indicated in the aforementioned declaration of the three heroes which distinguishes between serving the king's god and bowing to his statue. There was therefore no obligation for martyrdom. They were willing to give up their lives, however, because there was an element of "kiddush Hashem" -- sanctification of Hashem's Name -- in their action. For this, however, they would not have endured endless beatings.

Although Tosefot does not clarify why there was a "kiddush Hashem" involved in their action, we do find an explanation in the words of Nimukei Yosef at the end of Mesechta Sanhedrin. Although it is wrong for an ordinary Jew to be a martyr where it is not required by law, it is proper for a pious leader to do so when he feels that he will thus strengthen his generation. Since most Jews mistakenly assumed that the statue was an idol and thus became weakened in their abhorrence of idolatry, it was a "kiddush Hashem" for the three heroes to sacrifice their lives in order to counteract this trend.

The Price of Meat

A man borrows a cow and dies before returning it. His children, assuming that the cow belonged to their father and passed on to them as an inheritance, slaughter the cow and eat its flesh. When they discover their error, are they required to pay for the loss they caused to the cow's owner?

Yes, says the Sage Rava, but not the total value of the meat -- only as much as they would have paid to purchase meat at a cheap price.

This ruling of Rava is difficult to understand. If we consider the children responsible for damage caused even without intention, then why should they not be required to pay the full value of the cow? If lack of intention exempts them from responsibility, why should they be compelled to pay anything?

This ruling of Rava is cited by Tosefot (Bava Kama 27b) as proof that although the Torah made a person responsible for damage he causes without any intent, there is no responsibility when the matter is completely beyond his control. Another example is that cited in the above gemara of a man breaking the vessel of another while walking in the street in the darkness of night.

Since we cannot hold these children responsible for the damage caused in circumstances totally beyond their control, the only claim the cow's owner can have to them is that they derived benefit from his animal. This benefit, says the gemara (Bava Batra 146b) is calculated at only two thirds of the value of the meat they ate. The logic for this, explains Rashbam (ibid.), is that we assume that had they been aware that they would be required to pay for the meat, they would have refrained from indulging in this pleasure. But if they would have been able to purchase such meat at a reduction of one third, we assume that they would have been glad to do so, and this is the sum which is therefore considered the benefit they derived and which they are required to repay.

Rashi adds one footnote to the payment responsibility of these innocent heirs: If the skin of the animal is still around they must return it in its entirety to the original owner.

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