The name of the GRA is associated with learning in depth. However there is an aspect of the Gra that implies learning fast. That is saying the words in order and going on without any review until one finishes the whole book. This is implied when he stressed the importance of getting through at least once the whole two Talmuds, Tosefta, Sifrei Sifra, Midrash Rabah, Midrash Tanchuma (I.E. all the oral law from the redaction of the Mishna until the sealing of the two Talmuds.) 

 

This later fast approach is generally known to come from the Talmud itself in Shabat page 63 and the musar book The Ways Of The Righteous .

I used the approach of ''saying the words in order and going on'' in Torah learning and also in physics and mathematics; saying the words in order and going on until the end of the book and then review from the beginning --and I learnt a lot more than if I had said ''This is too hard for me'' and given up.  But in Torah, Math, and Physics it is best if one can hear and learn from a teacher.  No matter how much I might have learned in Southern California, there is no question that i would not have understood a thing unless I had gone to those two great NY yeshivot, Shar Yahuv and the Mir and learned from people like Reb Shmuel Berenbaum who really knew the depths of Torah. My only complaint  is that I never got the how to get into the depths of Tosphot that Naftali Yeger had in Shar Yashuv and David Bronson. I suspect that it is not something that one can get unless he has that special kind of I.Q. and talent. But at least, the books of the gedolai Lita [Lithuanian Sages] are around so that one can get a taste of authentic learning. 

[note: I am aware that some people just don't appreciate learning Torah. taste. Maybe to appreciate it one needs a certain kind of  taste. But it might be like many good things--it is an acquired taste.   ]

"If you refuse to admit a problem exists, and stonewall any attempt to fix it, then don't complain when someone else fixes it for you."

 When the religious refuse to serve in the Israeli Defense Force, it does not seem to be a result of trust in God, nor from great attachment to learning Torah. It seems to be, '' Let the fry yiden [secular Jews] do it because the are garbage.''   However I am sure that there are some people that learn Torah for its own sake and that trust in God for their needs. But for every one person like that, there are at least a hundred or more who learn in yeshiva in order to get out of serving in the army, and because it provides easy money that the fry yidden have to work for. This scandal has been going on since the creation of the State of Israel. No voice has been raised about the hypocrisy and scandal of this. All I can say is, "If you refuse to admit a problem exists, and stonewall any attempt to fix it, then don't complain when someone else fixes it for you."

 It is a curious fact that the Schrodinger wave equation is not really like any wave equation, but rather like the heat equation --which describes the diffusion of heat through a medium. A wave equation is taking a value for the acceleration of a string and saying that equals the curvature. That is, the second partial  derivative with respect to time equals the second partial derivative with respect to position. The Schrodinger equation on the other hand, is the first partial derivative with respect to time times i equals the second partial derivative with respect to position times i^2. What is the relation between diffusion of heat with the wave?     The first partial derivative with respect to time ought to be the velocity, and in the heat equation in fact tells us the speed the heat spreads. But that is not a wave equation.    In a string it would tell us the velocity of the string equals the curvature.

Schrodinger went to find such a equation because de Broglie had said in his PhD Thesis that an electron ought to have a corresponding wave equation based on E=mc^2 and velocity of a wave = wavelength times frequency, and energy = h times frequency But he never suggested what the equation for that wave.

So the Schrodinger wave equation is the heat equation with an "i" thrown in. Take heat and thrown in an i and you get an electron wave?     And after all what is  heat? Kinetic energy of moving particles. Kinetic energy times I gives you a wave? Or entropy times i gives you a wave? 

Note: Particles have kinetic energy. So  Schrodinger's wave equation is describing particle's KE  spreading through a medium, i.e a complex medium.  

The Closing of the American Mind

In The Closing of the American Mind, Allan Bloom located the central problem of universities [and as an extension the whole of American society] to  be a essential contradiction of Enlightenment thought. He thought that either things will become clear or the whole of the social studies departments  and humanities departments of university structure will disintegrate.  I have thought because of that, it is necessary to come to some sort of resolution IN PHILOSOPHY. I thought Kant provided the best possible approach, but outside of philosophy departments, he is ignored. He is not as flashy as DEI, Marxism, existentialism, The One Dimensional Man, Eros and Civilization.    And to some degree you can see that part of the fault is in Kant himself--in the B Deduction which there has never been the slightest agreement about what Kant says there. And my favorite version of Kant with the approach of Leonard Nelson is universally ignored. 

For some reason Allan Bloom did not refer to Kant as a possible solution. But he did suggest that people learn the Republic of a Plato, and that in itself suggest the Kant-Friesian School of thought because the major thesis of Fries is that there is a deep source of knowledge that begins before knowledge based on the outside world or knowledge based on pure reason i.e., non intuitive immediate knowledge. This correlates with Plato who held knowledge is from what we remember from what we knew before we were born. 

The Rambam might be considered a proto Friesian in that he does not think moral principles are derivable from Reason. They had to have been given by GOD at Sinai, but without that, they would not be known at all.

Sunwall writes :"First of all with regard to the primal status of monotheism, Maimonides has ruled out the most powerful argument that could have been made in its favor, that of an innate moral or metaphysical faculty in the human mind. This was a characteristic notion of his own, predominantly Islamic, cultural epoch. This sort of rationalistic anthropology motivated works such as lbn Tufayl's The Life of Hayy, in which the inhabitant of a desert island arrives independently at rational, moral, and monotheistic conclusions. However, Maimonides debars himself from saying "all human beings are natural monotheists" in the same sense that many of his contemporaries would have asserted that "all human beings are natural Muslims" (i.e. when they are born and until they may happen to be perverted by the cultures of non-Muslim societies). Rather in the Guide and elsewhere in his ethical writings, Mairnonides goes to great pains to deny that human beings have any innate metaphysical, and especially, moral intuitions. For Maimonides, although there are moral and metaphysical absolutes, these have been discovered, revealed, or forgotten, within the context of human history as a whole and then transmitted, correctly or otherwise, by tradition. This places the burden of justifying the primal nature of monotheism entirely on historiography."

Utopia the perfect society

 

Confessions of a Utopophobe MICHAEL HUEMER MAY 5 Here, I explain what’s wrong with “ideal theory” in political philosophy.* [ *Based on: “Confessions of a Utopophobe”, Social Philosophy and Policy 33 (2016): 214-34. ] I. Ideal Theory In political philosophy, there is some debate about the relative merits of “ideal” versus “non-ideal theory”. Ideal theory is described in two different ways (sometimes confused with each other): When we’re doing ideal theory, we choose political principles based (partly) on the consequences those principles would have if everyone perfectly complied with them. (I call this “strict compliance theory”.) When doing ideal theory, we try to describe a perfect society. (I call this “perfection theory”.) Sometimes, the distinction is applied just to theorizing about justice, where the ideal theorist is said to choose principles of justice based on the assumption of perfect compliance, or to be describing the perfectly just society. Examples John Rawls In his original position thought experiment, Rawls imagines the parties in the O.P. choosing the principles to govern their society, on the assumption that whatever principles are chosen will be perfectly followed. He also thinks the result tells us what would happen in a perfectly just society. So, when the parties decide that the state should distribute wealth in the way that most benefits the poorest people, they imagine that the government will know how to do that, they will want to do it, there won’t be special interest groups trying to manipulate the wealth redistribution system for their own benefit, people won’t cheat the welfare system by lying about their income, etc. They get to assume all that, not because it’s true, but because Rawls stipulates that we’re doing ideal theory. Joseph Carens Carens came up with a way to make socialism work: Everyone gets taxed such that their pre-tax incomes are equal. In addition, however, suppose that everyone just voluntarily works their hardest to try to maximize their pre-tax income (despite getting no monetary reward for this), out of concern for the good of society. Don’t say that’s unrealistic, because we’re doing ideal theory now. That is what should happen, even if it’s highly unlikely that it will happen. G.A. Cohen Cohen imagines a friendly, socialist camping trip, in which everyone voluntarily shares all resources, and everyone cooperates for the common good. No one expects to get extra rewards for giving benefits to the group, because they’re all friends. This is how society should work. If you complain that this is unrealistic, you’re confusing “should” with “would”. Jason Brennan Brennan responds to Cohen by imagining a friendly, capitalist society in which everyone voluntarily trades with each other, everyone respects each other’s rights, and the poor are fine because people voluntarily contribute to charity to help anyone in need. If you complain that this isn’t how real capitalist societies work, you are again confusing “should” with “would”. II. Why Ideal Theory? Why do some philosophers consider ideal theory interesting or useful? A. “Ideal Theory Sets the Goal” Some say that we have to do ideal theory first, so that we know what goals we are aiming at. Once we know that, we will do some non-ideal theory to figure out how to achieve those aims. Rawls: “until the ideal is identified … nonideal theory lacks an objective, an aim, by reference to which its queries can be answered.” Stemplowska & Swift: “[W]ithout knowing our long term goal, a course of action that might appear to advance justice . . . might nonetheless make less likely, or perhaps even impossible, achievement of the long-term goal.” Reply: You don’t have to describe the perfect society in order to pursue a useful goal. You can work to reduce particular injustices without knowing what a Perfect Society or Perfect Justice is like. There is no reason to think that doing this would prevent you from attaining societal perfection. Analogy: Your car has a flat tire. You can try to change the tire without first articulating the nature of the Perfect Car. Indeed, discussing what the Perfect Car would be like would be a useless distraction. Nor is there any reason to think that changing the tire would somehow prevent you from attaining vehicular perfection later. B. “Ideal Theory Defines Justice” Maybe I have begged the question by assuming that we can identify particular injustices without a theory of justice. Maybe “injustice” just denotes a departure from perfect justice, and thus we need to know what perfect justice is before we can identify any particular injustices. A. John Simmons: “To dive into nonideal theory without an ideal theory in hand is simply to dive blind, to allow irrational free rein to the mere conviction of injustice and to eagerness for change of any sort.” Reply: We don’t need a theory of perfection in order to identify problems in any other area: If your car has a flat tire, you can know that this is a problem without knowing what a perfect car would be. I know that Ted Bundy was a bad person, even though I don’t know what a perfect person is or what the complete ultimate theory of virtue is. I know that Game of Thrones is a good TV show, despite having no theory of the aesthetic ideal. There’s no obvious reason why justice should be different. C. “Ideal Theory Enables Comparisons” Maybe we need ideal theory to know which injustices are worse than which. John Simmons again: “[T]he priority to be given to grievous (over less grievous) injustices is to be understood in terms of the lexical ordering of the principles of ideal theory violated by the injustices at issue.” Reply: We don’t need a theory of perfection to compare problems, either. E.g., I know the car’s flat tire is a higher priority than the dust on the body, despite having no theory of the perfect car. I know Ted Bundy’s crimes were worse than my jaywalking, despite having no theory of the ideal person. And I know that wrongly imprisoning 500,000 people is a worse injustice than mispronouncing Kamala Harris’ name, despite having no theory of ideal justice. D. “Today’s Utopia Is Tomorrow’s Reality” Humanity has seen dramatic progress over the course of history. For most of history, if someone had described a society like our current society, they would have been dismissed as utopian. So it’s likely that future societies will be much better still. So it makes sense for us to aim high in planning for the future. Maybe we will one day have something close to a perfect society! Reply: The first part is true: the future will probably be vastly better than the present. But that doesn’t mean that we can usefully theorize about a distant future society that is nearly perfect. Compare: Suppose some political philosopher back in 1500 A.D. wrote some treatises about what society should be like in the 21st century, including recommendations for how society should be run, what institutions and policies we should have, etc. Without knowing any details, how useful would you think the 1500 A.D. philosopher’s plans would be to us? I think the reasonable answer is, “Completely useless.” Maybe they’d be of historical interest. But no one would dream of trying to use them. That is how people in 500 years will look at anything we write today about what society should be like in the distant future. Except that our treatises will be even more useless, because society will probably change even more in the next 500 years, because the pace of change has been increasing. Compare: Perhaps one day we will have flying cars with antigravity technology. But thinking about this possibility is of no use when your actual car has a flat tire. Similarly, it is not useful to think about a possible future society in which socialism would work.* [ *Why isn’t thinking about anarcho-capitalism similarly useless? Briefly, I think an-cap is much less utopian than socialism, because it does not require any changes to human nature to work. ] E. Strict Compliance Theory The above discussion concerned perfection theory. What about Strict Compliance Theory, the idea that we should choose political principles based on their consequences in a world of perfect compliance? This is an importantly different idea. Rawls asserts it, but I don’t see any argument for it. Consider two examples: The Recusal Rule: If a judge has a personal relationship with a defendant, he has to recuse himself from the case. We wouldn’t have this rule if everyone always complied with all principles of justice; we wouldn’t need it, since judges would be perfectly impartial and just, even when their friends and family members were involved. Yet obviously, we should have this rule. The Drug War: Many people criticize the drug war for its failure, and for the huge costs that result from noncompliance. E.g., we have hundreds of thousands of people sitting in prison for drug crimes, we have more other crimes, there is increased police corruption, etc. On strict compliance theory, we’d ignore these costs since they wouldn’t happen if everyone complied with the laws. Yet obviously, we shouldn’t ignore them. What matters is the effects of a policy in a world with realistic levels of compliance, not its effects in a world of perfect people. There’s no obvious reason why the principles of justice should work differently. Approximation In science, people sometimes use idealizations; e.g., ignoring air resistance in computing the trajectory of a projectile. This is because the idealization is an approximation to reality (e.g., because it is known that the effect of air resistance is small). It is not done in cases where the idealization would not approximate reality. In the political case, is the “idealization” of a world of perfect compliance at least an approximation to reality? No, it isn’t. Of particular interest to Rawls, the assumptions that government agents have perfect knowledge of and desire to implement the distribution that maximizes the welfare of the poor, and that no one will try to game the system for personal advantage, are not approximations to reality. They are utterly false, and that makes a huge difference to what we should do. III. Utopian Illusions Ideal theorists are prone to three big mistakes. A. Agentless Norms Norms require agents: It cannot be true that A should be done unless there is some particular agent who should do it. Ideal theorists often disregard this, e.g., by talking about what “society” should do. (Society isn’t an agent, so there’s nothing that it “should” do.) E.g., Carens says that we should have a system wherein everyone maximizes their pretax income, while the state enforces equal after-tax incomes. But there is no agent who can bring this about. The state can’t bring it about, since they can’t make all the citizens pure altruists. No citizen can bring it about, since they can’t make their compatriots altruists. And “society” can’t do it, because society isn’t an agent. B. Crazy Standards There is such a thing as too much altruism. E.g., suppose a healthy patient in the hospital wants to donate his heart, lungs, and both kidneys to other patients. We would not say, “That’s wonderful, let’s schedule the surgery!” We would conclude that he was crazy.* [ *See the episode of House, M.D., “Charity Case”. ] That’s similar to (though more extreme than) Carens’ (or the socialists’) idea of the people who just selflessly work for the good of society. That isn’t consistent with a normally functioning human motivational system. C. Excess Abstraction Frequently, ideal theorists such as Rawls try to arrive at political conclusions by starting from general, abstract principles, like “it’s unjust that people have unequal resources due to morally arbitrary differences between them.” This is a highly unreliable way of forming conclusions, because philosophers are almost always wrong about abstract, general principles. Instead, a better approach is to start from widely-shared, strong ethical intuitions about concrete cases, then draw analogies from these cases to more controversial cases. (Examples: (a) The Starving Marvin analogy for immigration; the killer’s accomplice example for gun control, discussed in my other papers.)

''It is better to sit in one's room and twiddle one's thumbs, rather that to go around looking for mitzvot to do.''

  In the Gemara Megilah  is brought this verse and explanation in Deuteronomy 12, '' These  are the commandments that God has set before you this day..'' ''From here we learn that no prophet can add anything new.'' אין נביא רשאי לחדש דבר מעתה Later I saw  brought from the Gra  the verse ''You have seen that every man who was joined to Baal Peor [an idol], God destroyed,'' that the worship of Baal Peor was to throw feces at it, and some people had done so thinking that it was a mitzvah. From here the Gra also shows that one not ought to go around looking for mitzvot to do. And in the Sidur haGra is brought a statement from Reb Chaim of Veloshin,  ''It is better to sit in one's room and twiddle one's thumbs, rather that to go around looking for mitzvot to do.''

In Deuteronomy 4 it says "Thou shalt not add nor subtract from these commandments" which pretty much sums up this subject.

Gemara Bava Kama 65a Rav said a stolen object is evaluated as it was at the time it was stolen, and the double, four and five time amount  at time standing before the court. The Gemara asks does this disagree with Raba who said if one steals by force a barrel that was worth a zuz and then it goes up in value to four, and then breaks it or drinks it, pays four. But if it broke by itself he pays one zuz. The Gemara answers no. Rather Rav was talking about a case when the object went down in value. The Rambam brings the law of Rav as the Gemara states it. Then he writes one who steals an object not by force and it goes up in value from one to four and breaks it, he pays the double four or five times at the rate of the higher value. But if it broke by itself [like in an earthquake] he pays the double as per the value it was worth at the time it was stolen. The Gra [Choshen Mishpat chapter 354 halacha 3 paragraph 8] asks on this later part when it broke by itself and says this can't be learned from Raba, but rather he pays one zuz as per the time it was stolen, and four zuz to pay for the double. I think the Gra holds that the breaking of the vessel is a long act of stealing, like the Netivot in Choshen Mishpat 34. The reason is thus: he is thinking that since Rav learns his law from a verse, it must apply to all cases. So when the Gemara says Rav said his law only in a case the object went down in value, it means that in a case when it went up in value, and then broken, the time of stealing and time of standing before the court are the same. If it would not have been broken but witnesses came and testified that he stole it, then he would give back the object, and then also it would be evaluated at time of giving it back. But if he gave it back before witnesses testified against him he would give it back without the double according to Rashi on page 68]   I might mention here that the main reason the Gra is saying there is no proof from Raba to the law of the Rambam about when it was broken by itself is that Raba is talking about a case of stealing by force where there is no double.

I saw this Gra brought in Rav  Isar Metlzer's Even haAzel, , and I have been looking at Rav Shach' approach to this halacha and also a book called Afikei Yam from a sage in Europe who discussed thi halacha with Reb Chaim of Brisk.. So far I have not seen anyone suggest the reason for the Gra might be becaue he holds by the same opinion as the Netivot. [This is opposed to the Ketzot who holds breaking the vessel after stealing it is obligated because of causing damage. Rav Shach asks on that opinion from very powerful arguments. at any rate, everyone of the achronim are trying to answer the question of the Gra.  ]

In the meantime I am wondering why the Gemara does not answer that Rav is talking about paying back a sheep and Raba is talking about paying back in money. This is how the Gemara later on page 66 answers a question on Rav and it seems to me before I get to look into it that the same answer should apply to the question from Raba on Rav. [answer to rabbainu izhak the gemara means like it says on pg 65. the difference is between hen the thief fattened up the sheep and when it went up in value in th marketplace.]

I might mention here the reason the Gra disagrees with the Rambam is that the Gemara did not ask any question from when vessel broke by itself, only from when he broke the vessel, and it answered that question .  It was never bothered by double, four or five times the value of the animal because that doe not apply in a case of theft by force.  

You might look at R. Isar Meltzer who brings a Rosh that there can be theft after theft which is clearly  the opinion of the Gra and Rav Shach on this halacha. But R. Isar Melzer holds like the Ketzot and uses that to explain the Rambam. He   explains the Rambam based on  Rabbainu Tam. I can see a point here. That is, if he breaks the vessel on purpose when it was worth four, then he has to pay four.  But if it broke by itself, then he just pays for the theft, and breaking according to its value at the time he stole it. Later on Rav Shach seem to agree that there can be an obligation of damage even for a stolen object in the first chapter of theft and lost objects. 

Let me mention here what R Isar  Meltzer is saying. That is,  that later on on page 61a the Gemara brings a Braita that says  double four and five go by the time of theft. Then asks if that disagrees with Rav? It answers no. Because one case is live animals and the other is money. Rabainu Tam says that means the braita is talking about when the object went up in value. Thus when it goes up from one to four, the double four and five still go by  the time of theft. That is exactly what the Rambam writes about the case when the object went up in value, and then it broke by itself. But if he broke it on purpose, he pays four  because of causing damage.      

___________________________________________________  ___________________________

בבא קמא ס''ה ע''א רב said a stolen object is evaluated as it was at the time it was stolen, and the double, four and five time amount  at time standing before the court. The גמרא asks does this disagree with רבה  who said if one steals by force a barrel that was worth a זוז and then it goes up in value to four זוז, and then breaks it or drinks it, pays four? But if it broke by itself he pays one זוז. The  גמרא answers no. Rather רב was talking about a case when the object went down in value. The רמב''ם הלכות גניבה א' הלכה י''ד brings the law of רב as the  גמרא states it. Then he writes one who גונב an object not by force and it goes up in value from one to four and breaks it, he pays the double four or five times at the rate of the higher value. But if it broke by itself [like in an earthquake] he pays the double as per the value it was worth at the time it was stolen. The גר''א asks on this later part when it broke by itself and says this can't be learned from רבה, but rather he pays one זוז as per the time it was stolen, and four זוז to pay for the double. I think the גר''א holds that the breaking of the vessel is a long act of stealing, like the נתיבות in חושן משפט ל''ד . The reason is thus: he is thinking that since רב learns his law from a verse, it must apply to all cases. So when the גמרא says רב said his law only in a case the object went down in value, it means that in a case when it went up in value, and then broken, the time of stealing and time of standing before the court are the same. If it would not have been broken but witnesses came and testified that he stole it, then he would give back the object, and then also it would be evaluated at time of giving it back. But if he gave it back before witnesses testified against him he would give it back without the double according to רש''י on page 68] 

I might mention here that the main reason the גר'א is saying there is no proof from רבה to the law of the רמב''ם about when it was broken by itself is that רבה is talking about a case of גזילה by force where there is no double.

In the meantime I am wondering why the גמרא doe not answer that רב is talking about paying back a sheep and רבה is talking about paying back in money. This is how the גמרא later on page ס''ו ע''א answers a question on רב and it seems to me (before I get to look into it) that the same answer should apply to the question from רבה on רב.

I might mention here the reason the גר''א disagrees with the רמב''ם is that the גמרא did not ask any question from when vessel broke by itself, only from when he broke the vessel, and it answered that question .  It was never bothered by double, four or five times the value of the animal because that doe not apply in a case of theft by force.  

 ר' איסר מלצר  brings a רא''ש that there can be theft after theft which is clearly  the opinion of the גר''א and רב שך on this הלכה. but רב איסר מלצר  holds the כמו הקצוות החושן and uses that to explain the רמב''ם. and though I can not see how he   explains the רמב''ם based on a variation on ר''ת and the ר''י I can see a point here. That is--if he breaks the vessel on purpose when it was worth four then he has to pay four.  But if it broke by itself, then he just pays for the theft and breaking according to its value at the time he stole it. 

Later on רב שך seem to agree that there can be an obligation of damage even for a stolen object in the first chapter of גזילה ואבדה. 

Let me mention here what רב איסר מלצר is saying. That is,  that later on on page ס''א ע''א the גמרא brings a ברייתא that says  double, four and five, go by the time of theft. Then asks if that disagrees with רב? It answers no. Because one case is live animals and the other is money. רבינו תם says that means the ברייתא is talking about when the object went up in value. Thus when it goes up from one to four, the double four and five still go by  the time of theft. That is exactly what the רמב''ם writes about the case when the object went up in value, and then it broke by itself. But if he broke it on purpose, he pays four  because of causing damage.      

בבא קמא ס''ה ע''א רב אמר חפץ גנוב מוערך כפי שהיה בעת גניבתו, והסכום הכפול, ארבע וחמשה בזמן שעומד לפני בית הדין. שואלת הגמרא האם זה חולק על רבה שאמר שאם גונבים בכוח חבית ששווה זוז ואז היא עולה בערכה לארבע זוז, ואחר כך שובר אותה או שותה, משלם ארבעה.

.אבל אם נשבר מעצמו הוא משלם זוז אחד

הגמרא עונה שלא. אלא רב דיבר על מקרה שבו החפץ ירד בערכו. הרמב''ם הלכות גניבה א' הלכה י''ד מביא את דין רב כפי שקובע הגמרא. אחר כך כותב מי שגונב חפץ שלא בכוח והוא עולה בערכו מאחד לארבע ושובר אותו, משלם את הכפול ארבע או חמש פעמים בשיעור הערך הגבוה יותר. אבל אם נשבר מעצמו [כמו ברעידת אדמה] הוא משלם את הכפל לפי השווי שהיה שווה בזמן גניבתו. שואל הגר''א [שו''ע חושן משפט שנ''ד הלכה ג'ס''ק ח' ] על החלק המאוחר הזה מתי שנשבר מעצמו, ואומר לא ניתן ללמוד זאת מרבה, אלא משלם זוז אחד לפי שעת גניבה, וארבע זוז משלם בגלל הכפל. אני חושב שהגר''א גורס ששבירת הכלי היא מעשה ארוך של גניבה, כמו הנתיבות בחושן משפט ל''ד. הטעם הוא כך: הוא חושב שמאחר שרב לומד את דינו מפסוק, הוא חייב לחול על כל המקרים. אז כשהגמרא אומר רב אמר דינו רק במקרה שהחפץ ירד בערכו, משמע שבמקרה שעלה בערכו, ואחר כך נשבר, זמן הגניבה וזמן העמידה בפני בית הדין הם אותו זמן. אם זה לא היה נשבר אבל באו עדים והעידו שהוא גנב אותו, אז היה מחזיר את החפץ, ואז גם זה היה מוערך בזמן החזרתו. אבל אם החזירו קודם שהעידו עליו עדים יחזירו בלא הכפל ע"פ רש"י בעמוד 68. אני יכול להזכיר כאן שהסיבה העיקרית שהגר"א אומר אין הוכחה מרבה לדין הרמב"ם היא שרבה מדבר על מקרה גזילה בכוח שבו אין כפל.

בינתיים אני תוהה למה הגמרא לא עונה שרב מדבר על החזר כבש ורבה מדבר על החזר בכסף. כך עונה הגמרא בהמשך עמוד ס''ו ע''א על שאלה על רב, ונראה לי (לפני שאספיק לעיין בזה) שאותה תשובה יכולה לחול על השאלה מרב על רב

אני יכול להזכיר כאן את הסיבה שהגר"א חולק על הרמב"ם היא שהגמרא לא שאל שום שאלה משעה שנשבר הכלי מעצמו, רק משעה ששבר את הכלי, והוא ענה על השאלה הזאת. מעולם לא הפריע לו ערך כפול, פי ארבעה או חמישה, כי זה לא חל במקרה של גזילה בכוח.

ר' איסר מלצר מביא את הרא''ש שאוחז שיכולה להיות גניבה אחר גניבה וזה ברור לדעת הגר''א ורב שך על ההלכה הזו. אבל רב איסר מלצר מחזיק כמו הקצוות החושן ומשתמש בזה כדי להסביר את הרמב''ם. ולמרות שאיני יכול לראות כיצד הוא מסביר את הרמב"ם על סמך וריאציה של ר"ת והר"י, אני יכול לראות כאן נקודה. כלומר--אם שבר את הכלי במזיד כשהיה שווה ארבע, אז צריך לשלם ארבעה. אבל אם הוא נשבר מעצמו, אז הוא רק משלם על הגניבה והשבירה לפי ערכו בזמן שגנב אותו

בהמשך נראה שהרב שך מסכים שיכול להיות חיוב מזיק גם על חפץ גזול בפרק הראשון של גזילה ואבודה.

הרשו לי להזכיר כאן את מה שאומר ר' איסר מלצר. כלומר, שבהמשך בעמוד ס''א ע"א מביאה הגמרא ברייתא שאומרת כפול ארבע וחמש הולכים  לפי זמן הגניבה. ואז שואל אם זה לא מסכים עם הרב? זה עונה לא. כי מקרה אחד הוא חיות והשני זה כסף. רבינו תם אומר משמע שהברייתא מדברת כשהחפץ עלה בערכו. לפיכך כשהוא עולה מאחד לארבע,  כפל ארבע וחמש עדיין הולכים לפי שעת הגניבה. זה בדיוק מה שכותב הרמב"ם על המקרה כשהחפץ עלה בערכו, ואז הוא נשבר מעצמו. אבל אם שבר במזיד, משלם ארבעה מחמת בגלל גרימת נזק

Rambam in Laws of Theft, Rashbam in Bava Metzia 96 in Tosfot

 The Rambam in Laws of Theft  chapter 1 halacha 15 holds one does not evaluate the value of an object that a thief stole and broke but  pays the whole amount. The Raavad holds that applies only to the value of the object, not the double that the thief is obligated to pay.

The Rashbam in Bava Metzia 96 in tosfot holds a thief can pay in what ever is worth money, and it seems that the Rambam agree with that as he writes in Laws of Theft chapter 3 halacha 11 that the thief can pay in movable objects' and the Raavad does not disagree there. Therefore it seems that the Rambam intends that one does not evaluate the value of the object at the time of the theft, but rather later at the time of standing in court. Then one evaluates the worth of such an object that one would buy in the market. And it seems that the Raavad holds that one evaluates the double at the time of the theft. This all applies to when the value of such an object has changed from the time of the theft until the time of being in court.

However this can not be thus because in ch. 1 halacha 14, the Rambam writes if a thief steals an object and breaks it, and it goes down in value, then the thief pays according to the amount it was worth at the time of the theft and the double according to the time he stands before the court. 

Therefore' I think when the Rambam writes in Laws of Theft 3:11 that the thief can pay in movable objects, he must mean like the Tosphot, Rashi and Rosh that that means whole vessels, not just anything worth money. 

I noticed that Rav Isar Meltzer  has some very deep insights on this subject. I have not had a chance yet to dig into his approach. I see Rav Shach also has some important insights here, and apparently I need to understand the Gra here who has a different approach than the Rambam. Plus there is an argument between the Ketzot haChoshen and the Netivot which is relevant here along with the Gemara in Ketuboth page 34. 

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The רמב''ם in הלכות גניבה  פרק א' הלכה ט''ו holds one does not evaluate the value of an object that a thief stole and broke, but  pays the whole amount. אין שמין לגנב. The ראב''ד holds that applies only to the value of the object, not the double that the thief is obligated to pay.

The רשב''ם in בבא מציעא צ''ו בתוספות   holds a thief can pay in what ever is worth money, and it seems that the Rambam agree with that as he writes in Laws of Theft chapter 3 halacha 11. The ראב''ד does not disagree there. Therefore, the רמב''ם intends that one does not evaluate the value of the object at the time of the theft, but rather later at the time of standing in court. Then one evaluates the worth of such an object that one would buy in the market. The ראב''ד holds that one evaluate the double at the time of the theft. This all applies to when the value of such an object has changed from the time of the theft until the time of being in court 

However this can not be thus because in פרק א' הלכה י''ד  the רמב''ם writes if a thief steals an object and breaks it, and it goes down in value, then the thief pays according to the amount it was worth at the time of the theft and the double according to the time he stands before the court. 

Therefore I think when the רמב''ם writes in בהלכות גניבה פרק ג' הלכה י''א that the thief can pay in movable objects מיטלטלים, he must mean like the תוספות רש''י ורא''ש that that means whole vessels, not just anything worth money. 

הרמב''ם בהלכות גניבה פרק א' הלכה ט''ו מחזיק לא מעריכים את שוויו של חפץ שגנב גנב ושבר, אלא משלם את כל הסכום. אין שמין לגנב. הראב''ד קובע שזה חל רק על ערך החפץ, לא הכפל שהגנב מחויב לשלם. הרשב''ם בבא מציעא מחזיק גנב יכול לשלם בכל מה ששווה כסף, ולכאורה הרמב"ם מסכים עם זה כפי שהוא כותב בהלכות גניבה פרק ג' הלכה י''א שהגנב יכול לשלם במטלטלים, והראב''ד לא חולק שם. לפיכך לכאורה כוונת הרמב''ם שאין להעריך את שווי החפץ בשעת הגניבה, אלא מאוחר יותר בשעת עמידה בבית הדין. ואז מעריכים את השווי של חפץ כזה שאפשר לקנות בשוק. ולכאורה הראב''ד סבור כי מעריכים את הכפיל בזמן הגניבה. כל זה חל כאשר ערכו של חפץ כזה השתנה מרגע הגניבה ועד למועד היות הגנב בבית המשפט 

 

אולם זה לא יכול להיות כך כי בפרק א' הלכה י''ד הרמב''ם כותב אם גנב גנב חפץ ושבור אותו, והוא יורד בערכו, אז הגנב משלם לפי הסכום שהיה שווה באותו זמן של הגניבה, והכפל לפי הזמן שהוא עומד בפני בית הדין

 לכן אני חושב שכאשר הרמב''ם כותב בהלכות גניבה פרק ג' הלכה י''א שהגנב יכול לשלם בחפצים מיטלטלין, הוא חייב להתכוון כמו התוספות רש''י ורא''ש שזה אומר כלים שלמים, לא סתם כל דבר ששווה כסף