Commentary on al-Fāsī: On the Babylonian Talmud, Tractate Bava Kamma

If a Jew was coerced by Samaritans, and he showed them the property of another, he is exempt. This is the case only if he merely showed them the property, but if he actively took it and gave it to the Samaritan, he is liable, even though he was coerced. It makes no difference if they coerced him and he then went and brought it, or whether they coerced him to bring it and he brought it. [Al-Fāsī on b. Bava Kamma 43a]

Ephraim of Qal‘at Ḥammād

Our master was imprecise regarding this matter, as he did not examine it in detail when he was going through his studies. For it stands to reason that if they coerced him for the property of another, rather than for his own property, he should be exempt, even if he actively transferred the property. Instead, this is how this case should be taught: If a Jew was coerced by Samaritans for his own property, and he showed them the property of another, he is exempt.

What is the reason? He caused damages indirectly, and one is not liable for indirect action, unless he intended to cause harm. But if he actively took it and gave it to the Samaritan, he is liable, as here he certainly saved himself by means of the property of another. However, the case of one who was coerced by Samaritans for the property of another is not discussed in this mishnah at all. Rather, its law is derived from a later discussion in the Gemara. As it states below:

There was a certain man with whom a silver goblet was deposited. Thieves came upon him, and he took the goblet and gave it to them. R. Ashi said: Let us examine the matter. If he is a wealthy man, the thieves came for his property; if he is not wealthy, they certainly came for the silver goblet. [b. Bava Kamma 117b]

Now consider, here it is merely due to his lack of wealth that we infer that the thieves came for the silver goblet, and yet we exempt him, even though he actively transferred the goblet. All the more so, he should be exempt if he knew for certain that they were coming for the property of another. Consequently, in a case where they coerced him for the property of another, it makes no difference if they coerced him to show them the property, and he did so, or if they coerced him to bring it, and he brought it. In all situations he is exempt, in accordance with R. Ashi, as ruled by R. Ḥananel, and one should not stray from his decision.

Translated by Avi Steinhart.

Published in: The Posen Library of Jewish Culture and Civilization, vol. 3: Encountering Christianity and Islam.

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In this comment, Ephraim dismisses al-Fāsī’s ruling that if someone actively takes part in the theft of property while under duress, he is held liable and considered a thief. Ephraim instead adopts the view of the earlier North African authority, Ḥananel ben Ḥushiel, that he is exempt in this case because he was compelled.

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