Question-You wrote last week that under certain circumstances one is liable in the heavenly court-chayav bedinei shomayim for causing the damaged car’s owner to rent a replacement vehicle. Does that mean that in those circumstances the one who damaged must pay in full for the rental? Suppose the guilty one decides not to pay but the injured party has money of his, can he refuse to return his money?
There is a dispute among the Rishonim and Acharonim what is the exact nature of the obligation in dinei shomayim for one who damaged in a causative manner. The Meiri (BK 56A) cites and agrees with the Sefer Hashlomo that where the Gemara says that one who caused a loss is chayav bedinei shomayim it means that he has a full-fledged monetary liability. It merely differs from other liabilities in that with other liabilities beis din is empowered to carry out justice, but here beis din is not empowered to carry out justice. In terms of theoretic liability they are equivalent. Therefore, he says, one who does not pay an obligation bedinei shomayim has the status of a thief and no longer qualifies to serve as a witness, just like one who fails to comply with any decision of beis din.
He argues that when the Gemara singles out certain actions and says about them that the one who perpetrated them is chayav bedinei shomayim, it cannot mean that he just deserves punishment from Hashem but nothing more. This is because one is never allowed to cause damage (as is stated by the Gemara in BB 23A) and if he does he will certainly be punished by Hashem like any other violation. By singling out specific actions and saying that for these actions one is chayav bedinei shomayim, the Gemara must mean that in these cases there is an additional monetary obligation.
Thus, according to the Meiri there are two distinct classifications: 1] chayav bedinei shomayim which means that the guilty one has a monetary obligation, and 2] other prohibitions where the act is forbidden but it does not create a monetary obligation.
There is a dispute whether Tosafos agrees with the Meiri. One of the cases where the Gemara rules that one is chayav bedinei shomayim is where one hired witnesses to testify falsely and thereby caused beis din to rule that a person was liable for something that he was not really liable. Tosafos proves that it is only because the person hired these false witnesses that he is chayav in dinei shomayim. Had he just persuaded witnesses to testify falsely then he would not have been chayav in dinei shomayim and this is ruled by the Shulchan Aruch (CM 32, 2).
The Shach (32, 3) asks that we find in the Gemara (Kiddushin 43A) that if one persuades someone to murder someone he is punished by Hashem. From this we can infer that if one persuades someone to testify falsely he will also be punished by Hashem. So how can Tosafos say he is not chayav bedinei shomayim?
There are two important answers to the Shach’s question. The Gra (32, 2) answers that killing is unique as we see that the Torah singles out death and forbids one to stand idly by and not save a Jew who is in mortal danger, so certainly one will be punished for causing someone to die. This does not apply to loss of money. This is against the Rambam in Sefer Hamitzvos who writes that the reasoning does apply to loss of money as well. However, many others disagree with this Rambam.
The Ketsos (32, 1) has a different approach. He answers that the Shach confused two concepts, since chayav bedinei shomayim is a monetary obligation, whereas punishment at the hands of Hashem is a different concept. The Gemara cited by the Shach never said that one who persuaded someone to kill is chayav in dinei shomayim. It only said that he will be punished by Hashem. He says that there are many other actions where one causes damage and will be punished for it by Hashem, but the cases mentioned in the Gemara are singled out because they create a monetary obligation.
Thus we have a dispute among the poskim about the approach of Tosafos. According to the Ketsos, Tosafos understood like the Meiri that there is a monetary obligation. But according to the Shach and Gra there is no monetary obligation. We should mention that even though the approach of the Ketsos in Tosafos is similar to the Meiri, it is not certain that he agrees with the Meiri that one who does not pay is disqualified from serving as a witness.
Even though the Shach understands that chayav bedinei shomayim does not mean that there is a monetary obligation, nevertheless, the Shach himself (32, 2) rules that in order to avoid punishment at the hands of Hashem the guilty must pay for the damage he caused, unless his victim is willing to forgive his loss.
However, the obligation to pay according to the Shach is not the same as the obligation according to the Ketsos. According to the Shach there is no direct monetary liability but rather a sin which must be gotten rid of. If it requires money to do this then the guilty will need to pay but if the victim is willing to forgive without payment the guilty will not have to pay. According to the Ketsos there is a direct monetary obligation.
Rav Aharon Kotler (Res. Mishnas Rav Aharon 1, 21) suggests another approach. We mentioned earlier that the Gemoro writes that it is forbidden even to cause damage. The Gemara (Avodo Zoro 30B) states that it is even forbidden to cause temporary damage. The Gemara says that this is the reason one is not allowed to place water that may contain snake venom near someone else’s cat. Even though snake venom does not kill cats, it causes them temporary weakness, thereby preventing the owner temporarily from selling his cat.
There is a dispute about the source and nature of the prohibition to cause damage. The Rama (BB 2, 107) says that the source is the mitzvah to love our fellow man as ourselves – ve’ohavto lerei’acho komocho.
However, the Shulchan Aruch (CM 378, 1) writes that it is forbidden to damage another, and the Gra comments that the prohibition includes causing damage. Thus, according to the Gra, the same prohibition which one violates when directly damaging is also violated when only causing damage. Rabbenu Yona (Pirkei Avos 1, 1) writes that the source for the prohibition to damage is the pasuk that forbids stealing. If we combine the Gra with R. Yona it comes out that the source of the prohibition to cause damage is the prohibition to steal.
Of course, it is not a full act of stealing and therefore there is no mitzvah of veheshiv es hagezeilo – in this case to pay for the damage. But since the way to undo the prohibition against damage is by paying for the damage, one must pay as the means to undo his wrongdoing.
Rav Aharon proves that many other basic Rishonim including the Ramban and Ritvo also follow the approach of R. Yona. Rav Aharon says that according to this approach anyone who causes damage is a thief.
We should note that this is not the approach of the Meiri and Ketsos because they both maintain that there are cases of causative damage where one is not called a thief, whereas according to Rav Aharon one who damages in any causative manner violates the prohibition to steal. Rav Aharon says his is the approach of the Meiri, but it seems clear that the Meiri does not agree.
We should note further that it is clear from the Gemara that one must pay whenever paying will rectify a Torah prohibition. Besides being logical, one can derive this from a question of the Gemoro. The Gemoro asks that if two witnesses refuse to testify, they must pay for the loss suffered by the one who would have been helped by their testimony since the Torah requires two witnesses to testify. Here we see that even though the Torah did not write that witnesses who fail to testify are liable, the Gemoro still understood that they are liable. The Devar Avrohom (2, 32) explains that the reason it is obvious is because paying will rectify their failure to testify and one must do anything he can to undo his wrongdoing.
Summarizing, we have learned the following: 1. One is not allowed even to cause damage to another. 2. The Gemara writes about some actions that cause damage, that the one who did them is chayav bedinei shomayim. 3. There is a dispute among the Rishonim and poskim about the nature of the obligation of one who damages in a manner that the Gemara rules is chayav bedinei shomayim. Some rule that he has a monetary liability and some understand that he has sinned and must pay in order to undo his sin but he does not have a direct monetary liability.
Your second question was whether one can withhold money from one who is chayav to him bedinei shomayim. This would seem to depend on the above dispute between the Meiri and others and the Ketsos and Shach in Tosafos. If we understand like the Meiri and Ketsos that when one is chayav bedinei shomayim he has a monetary liability, then it is logical that one could withhold money owed to him. But if one maintains, like the Shach, that he does not have a monetary liability and just has to pay in order to clear away his sin, then one may not withhold payment, because it is the sinner’s personal responsibility to rectify his wrongdoing. In fact, the Shach (28, 2) cites the Maharshal who rules that the victim may not take the law into his own hands. This in fact is the approach of the Sha’arei Yosher (5, 16).
As we explained this makes sense according to the Shach’s understanding of the meaning of chayav bedinei shomayim. However, this too is the subject of a major dispute with others who disagree with the Maharshal and Shach.
Besides these poskim there are many others who take sides in this dispute. R. Akiva Eiger writes (note on the Shach 28, 2) that it is a dispute among the Rishonim and he remains with a doubt whether the victim can grab money from one who is chayav to him bedinei shomayim. Here the victim is just withholding money that is already in his possession.
Thus, the answer to your second question is that it is a dispute whether he is allowed to withhold money and therefore, if he withholds the money it will be difficult to make him give it up.