On the surface, this is a rather startling claim. I am quite convinced that if we took a survey of all those reading these words, at least 90% would much prefer having “injury” to their money rather than injury to their body[2]. And assaulting someone is almost always a much greater sin than theft.
Yet such is only true from a pragmatic perspective. On a conceptual level, stealing from or assaulting another demonstrates our self-centeredness and insensitivity towards others, and it matters little what the precise method of hurt is[3]. To put it slightly differently, the Gemara’s comment is not meant to minimize the sin of physically hurting others, but to underscore the evil of taking another’s money. It is not at all uncommon for those who have been financially cheated to have physical manifestations of the hurt they have suffered. Monetary and physical pain are often two sides of the same coin, such that “it makes little difference if he causes him bodily harm or he causes him monetary harm”.
The difference between theory and practice also manifests itself as the discussion continues. The Gemara is puzzled as it tries to determine the practical distinction between gezeilot vechavalot and hodaot vehalvaot. Rabbi Avahu himself ruled that both require three expert judges, so in what way are loans not included in the category of “monetary laws require three [experts]”?
The Gemara responds that in theory, there actually is no difference between the various areas of law. However, the rabbis modified the law—as is their right in monetary matters—so that “the door not be closed to borrowers” (Sanhedrin 3a). Had we kept the Biblical law as is and required expert judges for every loan dispute, it would be too difficult to find judges, people would stop lending money, credit would cease and the economy would grind to a halt. Thus, the rabbis allowed a court of three laypeople to adjudicate many monetary disputes. As the Tosafists (s.v. shelo) note, people are happy to use any excuse not to lend money[4] and thus, we have to make it easy for creditors to collect their loans. However, when it comes to recovering money stolen from us or suing those who assault us, we will always continue to pursue a legal remedy, regardless of the difficulty of court delays and a shortage of judges.
The Gemara presents a second approach, that of Rav Acha the son of Rav Eika, noting that according to Torah law, one judge is sufficient when it comes to loans and the like. However, because of “yoshvei kranot”, literally translated as people who hang out on street corners and are ignorant of the law, the rabbis insisted that all cases have three judges. As to the possibility that all three judges would be yoshvei kranot, the Gemara notes that, “it is not possible that there is not one who is learned” in the ways of commerce.
When all is said and done, all agree that pretty much any court of three non-experts is sufficient for loans and the like. However, unlike the case with experts involved, if these laypeople make an honest mistake they are liable to make amends, even from their personal funds. If this would not be the case, lenders, afraid of making errors, would definitely refuse to lend money. And an exemption from liability would also encourage even more “yoshvei kranot” to volunteer to serve as judges (as with rabbis and teachers, judges were not allowed to be paid in Talmudic times). Rather, by increasing the pool of judges and at the same time placing responsibility on their shoulders, the rabbis did their best to ensure a responsible, accessible and efficient court system.
[1] This is quite similar to the notion of klal uprat, one of the 13 hermeneutical principles of Rabbi Yishmael for elucidating and reading between the lines of the Biblical text. This principle teaches that when a general rule, in this case "monetary law with three", is followed by a specific ruling, "theft and assault with three", the specific ruling limits the general principle to those specific cases mentioned. While Rabbi Yishmael’s rules do not necessarily apply to Talmudic texts, perhaps we begin masechet Sanhedrin with this idea to highlight the role of the Sanhedrin in not only interpreting the law, but in formulating it.
[2] On this note, let me recount another beautiful story told by Dr. Pelcovitz at our recently concluded medical ethics conference. As we discussed ways of letting go when we are hurt, he told us that the Chafetz Chaim had once stated the obvious: that all of us have troubles during the year. For some, they are health-related (and worse); for others they are financial, family-related, issues with our children, etc. There is no one who would not trade one of those problems for a few minutes of being insulted or slandered by others. Think about that the next time someone insults you! Perhaps the hurtful words are an act of great mercy from G-d—and if not, pray that they should be—sparing us some act of more long-lasting damage. This is undoubtedly hard. This is the same Chafetz Chaim whose essential teaching in life was not to hurt others via speech, as he realized the terrible hurt this can cause. But those who can rise above it and view their hurt as reducing their suffering in other areas (even if such is not actually true –something we cannot possibly know) will do themselves much good.
[3] Similarly, Jewish law does not distinguish between the theft of a penny or theft of a million dollars, with the former being heard in court before the latter should it arise a day later. Even the penalty is the same – paying double what you stole. Of course, on a practical level, there would be a difference; but not on the conceptual level. In a similar vein, Jewish law views life as having almost infinite value such that ending a person’s life one moment earlier than necessary is considered an act of murder. Clearly, on a practical level, saving the life of a twenty year old is of greater importance than saving the life of a sick ninety year old.
[4] This is more readily understandable when we consider the Torah prohibition to charge interest on a loan. As the modern era dawned—and large commercial loans became common—our Sages realized that unless creditors were allowed to make a profit on their loan, few would lend money. It is one thing to lend a friend $100 or even $1,000 interest-free. It is quite another to extend a million dollar loan so that some businessman can invest in his company. Thus, our Sages developed the heter iska, which effectively converts a loan into a business partnership so that the creditor may share in the profits and be much more willing to loan money.
