Hitting a Jew: Part II

Three Catagories of Hitting

The Rambam in Hilchos Choveil U'Mazik lists 3 catagories in the issur of hitting a Jew.

1) If you hit someone and don't cause damage more than a perutah you get malkos.

2) If you hit someone and cause damage more than a perutah you pay the damages and m'meilah you are patur from malkos.

These 2 catagories are learnt from the lav of "lo yosif l'hakoso" in Ki Tzeitzei. As the Rambam and Chinuch write "if it is assur to give a rasha an extra malkos then kal v'chomer it is assur to hit another Jew".

One could ask that "ein onshin min hadin" and therefore why would someone get malkos based on this kal v'chomer. One answer is found in the Bach (Siman 420) that there are 2 lavin in the possuk , "lo yosif" and "pen tosif". "lo yosif tells us you get malkos for giving extra malkos. We then have a kal v'chomer that it is assur to hit another Jew and the chiyuv malkos for that is from "pen tosif"

3) The third catagory is the issur of raising your hand to strike someone. The m'kor for this is Sanhedrin 58B and is learnt from Moshe's response to Dasan and Aviram "Rasha, lama sakeh rei'echa".

Issue D'Rabanan or D'Oreisa

The question on this third catagory is whether it is an issur d'rabanan or an issur d'oreisa. The Chinuch and the Ramabm in Lo Saseh 300 seem to imply it is only d'rabanan and that is the way the Birkas Avraham in Sanhedrin learns these opinions. The Mordechai in Sanhedrin also leanrs it is only m'd'rabanan.

However, the GR"A and the Sema in Choshen Mishpat 30 seem to hold it is an issur m'd'oreisa as we will explain.

The Rema paskens that if one raises his hand against his friend you are pasul l'eidus m'd'rabanan. The question is why are you only posul m'd'rabanan.

The Mordechai in Sanhedrin writes that you are only posul l'eidus m'd'rabanan because the issur is only d'rabanan. The Shut Beis Yosef also learns this way.

However the Beis Yosef in Siman 30 says that this is an issur d'oreisa however, the only time you are posul l'eidus is if you are chayav malkos. Therefore, since you are not chayav malkos for raising your hand, you can't be posul m'd'oreisa. At the same time it doesn't make sense to say that you are better than someone who does an issur d'rabanan and is posul m'd'rabanan. Therefore, the Beis Yosef says you are at least posul l'eidus m'd'rabanan. This is also the opinion of the Sema and the GR"A.

Chiyuv Malkos and Posul L'eidus

A similar question arises with one who hits his friend and causes damage more than a peruta. You are patur from malkos so would we say that you are not posul l'eidus? The Shut Beis Yosef says it would not make sense to say that if you don't damage the person you are chayav malkos and posul l'eidus but if you damage the person you are kosher l'eidus. Rather since the lav has a chiyuv malkos you are always patur l'eidus. The Maharit however seems to hold that if there is no chiyuv malkos there is no pesul eidus and therefore, if you cause damage you are still kosher l'eidus. The Shiuri R' Shmuel on Sanhedrin learns the Maharit like this and I think that is pashut p;shat in the Maharit. As far as the lomdus why you need a chiyuv malkos to create a p'sul eidus, ein kan m'komo but the Chavtzeles Hashoron on Parshas Shemos delves into it.

Cheirem and Pasul L'Minyan

Interestingly, the Rema in Choshen Mishpat Siman 420 writes that there is a "cherem hakadmonim" on someone who hits his friend and he is posul for a minyan. (The m'kor is a Maharam Rottenberg). The Chasam Sofer was asked if one should make a macha'ah against such a fellow. The Chasam Sofer answered that ein hachi nami you should but now a days it is not practical. Noone will listen to you and they will make fun of you instead. Furthermore, if we were going to be makpid on charamim we could pasul plenty of people. L'ma'aseh he suggests not doing anything since it would be counter productive. He uses very strong language in describing how we live in a time where people don't listen to leadership.

Nireh li, that I now understand why on Erev Rosh Hashana people do a hataras charamim. We see that there are things people could do that put themselves in cheirem and it could even passul you for a minyan.

Reshus to Hit

Rav Moshe writes that if someone gave you reshus to hit him, if it is a chavala k'tana it is not derech b'zayon and would be muttar. If it is a chaval g'dolah and would cause monetary damage that it is assur even with reshus, after all it is assur to even hurt yourself. I guess according t o this boxing would be assur. I wonder what Rav Moshe would say about tackle football on an organized level (high school or college) -is it a p'sik reisha to cause monetary damage or maybe most people don't get seriously injured so if you do seriously injure someone maybe it is a davar sh'eino miskavein.
Just food for thought.