Gittin 53

Accidentally on purpose.

The mishnah under discussion today appeared on yesterday’s daf:

One who causes another’s produce to become impure, mixes another’s produce with terumah, or uses another’s wine for idolatrous libations: If done unintentionally, one is exempt from payment. If done intentionally, one is liable.

What are the consequences for rendering another person’s goods unusable — either by making them impure, mixing them up with goods earmarked for the priests, or using them for idolatrous purposes?

According to this mishnah, the person who does this is liable to the owner only if it was done intentionally. The mishnah seems to be striking a balance between holding people accountable for their (intentional) actions and allowing them some leeway to make mistakes.

But it turns out that the situation is more complicated than that. On today’s daf, the Gemara brings this response to the mishnah:

Hizkiyah said: “By Torah law, whether unintentional or intentional, one is liable.”

What is the (Torah’s) reason? Damage that is not recognizable is considered damage. 

And then why did they say (in the mishnah) that if one acted unintentionally, they are exempt? So that they will inform.

Hizkiya explains that, from the Torah’s perspective, a person who renders another person’s goods inedible is liable, whether the damage was intentional or not. However, the rabbis allowed the transgressor a pass if it was not one’s intention to cause damage — in order to encourage that person to inform the owner of one’s mistake. Otherwise, the owner might inadvertently transgress as well, by consuming something they shouldn’t. 

The Gemara now offers a counterpoint:

And Rabbi Yohanan said: “By Torah law, whether unintentional or intentional, one is exempt.” 

What is the (Torah’s) reason? Damage that is not recognizable is not considered damage.

And what is the reason they said (in the mishnah) that if one acted intentionally, they are liable? So that one doesn’t go around and defile another’s pure produce and say, “I am exempt.” 

Rabbi Yohanan holds the opposite stance from Hizkiya — both about what the Torah says and the reasoning for the mishnah’s ruling. If damage cannot be detected, he argues, then according to the Torah one is not liable to pay for it. This applies whether or not the transgressor intended to damage the object. But the rabbis still decided to hold the person liable in the case of intentional damage, so people wouldn’t use this leniency in the Torah as an excuse to inflict damage on a neighbor and get away with it. 

Interestingly, this amoraic (late rabbinic) debate between Hizkiya and Rabbi Yohanan is already present in the Tosefta, a tannaitic text that more or less parallels the Mishnah. Tosefta Gittin 3:7 reads

Originally, they said that one who makes another’s produce impure or mixes another’s produce with terumah — they reconsidered to say even one who uses another’s wine for idolatrous libations; if done unintentionally, one is exempt from payment, if done intentionally, one is liable, for the betterment of the world.

Rabbi Dr. Shaul Lieberman, a 20th-century rabbi and scholar who commented on the Tosefta, notes that one can ask whether the phrase “betterment of the world” applies to the clause about transgressing unintentionally or to the clause about transgressing intentionally. If the former, this implies that by the Torah law one should be liable for payment in an unintentional case, but if the latter, this implies that by Torah law one should be exempt in an intentional case. This is exactly the debate between Hizkiyah and Rabbi Yohanan.

What is at stake in all of this? The real question is how to deter people from transgression without overly penalizing them or, alternatively, giving them leeway to make excuses for improper behavior. If one is always punished for unintentional actions, one may hide accidental harms, causing others to unintentionally sin as well. On the other hand, offering too much leniency may allow some an excuse to benefit from a transgression, arguing that it was unintentional all along. The question becomes what is the appropriate balance, and how we can enact laws that better the world.

Read all of Gittin 53 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 8th, 2023. If you are interested in receiving the newsletter, sign up here.

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