GEMARA BAVA KAMA 5771

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In loving memory of Channa Schreiber (Channa Rivka bat Yosef v' Yocheved) z"l,
with wishes for consolation and comfort to her dear children
Yossi and Mona, Yitzchak and Carmit, and their families,
along with all who mourn for Tzion and Yerushalayim.

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Shiur #10: Rav Chiya's List of Nezikim

Based on shiurim by Rav Moshe Taragin

Last week's shiur demonstrated some of the broader ramifications of R. Oshaya's larger set of avot nezikin.  We gauged the implications for shomrim in general and for a sokher (a renter) in particular.  This week's shiur will employ the same tactic for R. Chiya's list.  The latter list balloons to twenty-four, including the likes of ganav, to'en ta'anat ganav and eidim zomemin.

Ganav

Though R. Oshaya had embraced shomrim and included them within the world of nezikin, he did not include a gazlan (thief).  Does R. Chiya's inclusion indicate a different fundamental understanding of gazlan - one which would mandate its classification as an av nezek?

Does gezeila (robbery) represent a completely different track, or can its chiyuv (obligation) be compared to that of a mazik?  This issue might be influenced by our view on how a gazlan's debt is generated.  It should be noted that if the stolen object is intact, it is returned to the victim.  Payment for gezeila occurs only if the object is damaged or lost.  Does the thief compensate for the loss he inflicted upon the victim, or does he render payment for the illegal ACT of theft which happened to cause that loss?  Does he pay for the ma'aseh gezeila (stealing another's item for personal use) or the resulting loss inflicted?  This question has many ramifications and is fully explicated in the seventh perek of Bava Kama.  One interesting test case would be a thief who has no intention of retaining the item for personal use.  The Yerushalmi at the beginning of the sixth perek of Bava Kama suggests that a gazlan who will shortly dispose of the item without benefiting, might not be defined as a classic halakhic gazlan.  This position would imply that the ACT of gezeila generates the obligation and in this instance no ACT of robbery was performed (if one defines theft as intention to steal for personal use).  If, however, the victim's loss triggers a compensatory debt for the gazlan, we would care little as to the future intentions of the gazlan - after all, the victim has lost his item.

This question could potentially determine the degree of symmetry between gazlan and mazik.  If a thief pays for the loss incurred by his victim, gazlan would greatly resemble mazik.  If a gazlan pays for his unique act of stealing, it would share less correspondence.  R. Chiya, by listing gazlan alongside mazik, might have been suggesting a closer parallel between the two.

R. Chayim deduced from the Rambam that gazlan payments are based upon mazik-like concepts.  In Hilkhot Geneiva 1:8, the Rambam excludes an owner from the thefts of his servants since they have a will of their own and cannot be watched (this particular exemption was elaborated upon in shiur #6).  This servant exemption was developed by the mishna in Yadayim regarding DAMAGES caused by servants.  This was also the context in which the gemara in Bava Kama cited this clause.  By extending this rule to ganav, the Rambam seems to equate him with a mazik.  If the two obligations were not structurally similar, this comparison would fail.

Tosafot express a similar sentiment at the beginning of the seventh perek (62b s.v. Yotzu – the second one).  The gemara draws on a special pasuk to exclude contracts from the laws of geneiva.  If someone steals a contract, he is not subject to the normal consequences of geneiva.  Tosafot question the need for exemption.  After all, if one DAMAGES a contract he does not pay, since he did not directly cause a loss ("garmi").  The actual debt expressed in the contract is abstract and was only affected indirectly by the PHYSICAL damage to the contract.  If DAMAGING a contract is excluded from mazik payments, certainly contracts should be excluded from ganav payments too.  This question, as well, assumes an overlap between ganav and mazik.

To'en Ta'anat Ganav

The gemara subsequently questions R. Oshaya's omission of ganav.  In response, the gemara claims: "R. Oshaya alluded to ganav by listing shomrim."  Rashi explains that by stating shomrim, R. Oshaya referred to all possible shomer ramifications - including the case of "to'en ta'anat ganav."  If a shomer does not return the article, and instead falsely swears that it was stolen, but subsequently is caught, he pays kefel (double the original amount), as a classic gazlan would.  This case, known as to'en ta'anat ganav, is developed by the gemara in the beginning of the seventh perek of Bava Kama.  R. Oshaya considered to'en ta'anat ganav (a halakha he had implied by listing shomrim) to be ample reference to the world of ganav.  He saw no reason to reiterate ganav proper.

This response, in defense of R. Oshaya, is based on a very glaring assumption.  R. Oshaya is effectively aligning to'en ta'anat ganav with classic ganav.  They each pay kefel because they are considered thieves – one actual and one "legal" - using the law to commit a theft.  Hence, by alluding to to'en ta'anat ganav, R. Oshaya had little reason to restate ganav.  Consequently, R. Chiya (by listing both to'en ta'anat ganav AS WELL AS ganav) might have DISASSOCIATED to'en ta'anat ganav from ganav proper.  He might view the kefel payments of a shomer as a separate track – a severe betrayal of the shomer-owner agreement which nets a double payment as penalty.  Logically, severing to'en ta'anat ganav from ganav would impel him to list each separately.

This question – whether to'en ta'anat ganav is a virtual ganav or whether his obligation stems from his breach of faith with the owner - obviously has broader implications.  For example, the gemara in Bava Kama (62b, 106b) cites a debate about whether a toe'n ta'anat ganav would also pay four or five times the debt if, subsequent to his oath, he sold the animal or performed shechita (as is the case with a classic ganav).  If we convert a to'en ta'anat ganav into a ganav, he would share his payment tables.  Just as a ganav, who subsequently sells the animal, pays these penalties, so would a to'en ta'anat ganav.  If we disengage a to'en ta'anat ganav from ganav and view him as a treasonous shomer, we would have no license to automatically impose ganav payments upon him.

This structural question might in turn be a product of a larger and logically prior question - which pasuk serves as the source for to'en ta'anat ganav?  The gemara in Bava Kama (62b) cites two possible opinions - either we infer this category from an extra phrase in the pasuk stipulating the laws of GANAV, or we derive it independently from a different pasuk.  Clearly, if we derive to'en ta'anat ganav from the same pasuk as ganav, we would be inclined to view him as a derivative form of ganav.

This might have been the disagreement between R. Oshaya and R. Chiya.  By listing ganav and not relying upon his allusion to to'en ta'anat ganav, R. Chiya might have been indicating the independence of to'en ta'anat ganav from ganav.  R. Oshaya for his part, by condensing ganav into to'en ta'anat ganav, might have been signaling a unity between them.

Onshin mamon min ha-din

Can we independently create nezikin payments through exegesis? 

R. Chiya listed eidim zomemin as one of his twenty-four avot.  This classification is dubious, since the payment conditions of eidim zomemin are somewhat incongruous to nezikin.  Normally, a mazik pays for the damages he inflicted.  If he attempted to damage, but failed, he is excused from payment.  Eidim zomemin behave differently: If the eidim planned a conspiracy, but were caught before succeeding, they must remit the exact sum they conspired to extort.  If, however, they succeeded and the victim was penalized unfairly (as a result of their testimony), they are excused from payment.  This halakha stems from a gezeirat ha-katuv (biblical decree) "'ka'asher zamam' - ve-lo ka'asher asa" - 'as they had planned' but not as they executed.  R. Chiya's willingness to consider eidim zomemin as an av nezek is very problematic based upon this difference.  How can eidim zomemin, which so blatantly defies conventional mazik patterns, be considered a mazik?

            This question is posed by Tosafot (4b) s.v. Ve-eidim.  Tosafot answer that although in general, eidim zomemin are exempt from payments once their plot succeeds, monetary matters are not included in this exemption.  In other words, if eidim zomemin succeed in coercing money from the victim and are detected, they must still pay the victim.  Tosafot claim that this "extension" in monetary cases can be derived independently through a kal va-chomer: If an attempted plot mandates punishment, certainly a successful one should.  In general, punishments cannot be independently generated through human logic, or by applying the thirteen exegetic tools (of which kal va-chomer is one).  The gemara in Makkot (5b) states this quite clearly.  Tosafot claim, however, that in cases of monetary payments, punishments can in fact be independently produced.  If the Torah obligated attempted eidim zomemin to repay their would-be victims, then certainly ACTUAL VICTIMS must be compensated.  Tosafot effectively discriminate between corporal punishments, which cannot be administered unless the Torah clearly stipulates, and monetary claims which can be deduced.

            Tosafot have clear support for this position from two additional sugyot.  First of all, the confidence with which the gemara in its initial stages searches for toladot nezikin despite the absence of any pesukim clearly mandating these extensions, suggests an ability to independently establish nezikin payments for actions not clearly stipulated by the Torah.  In our first shiur, we mentioned the dissenting opinion of the Mekhilta that at least toladot keren require a specific textual mandate.  Similarly, we cited the Mahari Katz who questioned that latitude to develop toladot without pesukim.  However, our gemara appears to be indifferent to the need for a pasuk and most Rishonim do not raise the Mahari Katz's concern.  The first few pages of Bava Kama – including the mishna which explored the possibility of deriving actual avot from each other - all indicate a willingness to independently establish nezikin payment through standard exegetical devices.

            The gemara in BK (49b) also asserts this license.  When describing a person who digs a bor, the Torah writes: "If one opens a [dug] pit or digs a new pit ..." The gemara questions this repetition: "If opening an old pit establishes liability, surely digging a new one should?!"  At this stage, the gemara should have replied: "Since we cannot independently derive monetary payments, the Torah was compelled to itemize each and every logically distinct scenario of bor."  Indeed, this is the reply provided by the Mekhilta.  Logically, we can derive a "digger" from an "opener."  But we do not enjoy this liberty (based on Makkot 5b) and require an exact and precise list of liabilities.  Our gemara, however, does NOT provide this response, opting instead for a different law suggested by this redundancy.  This gemara, as well, indicates that, in theory, we can derive a digger from an opener because we can logically establish monetary debts.  How do we explain the gemara's readiness to derive mamon payment from logic?

            This question might be answered by a better understanding of the rule that we may not derive corporal punishments based upon our own logic.  Are we concerned with human error?  If this is the basis of the limitation, we might experience this constraint in cases of mamon as well.  On the other hand, the Riva (quoted in the same Tosafot above) points out that monetary errors can be subsequently rectified, if an error in judgement was made, whereas corporal punishment cannot.

Alternatively, it could be that we just do not have the authority to impose unlicensed punishments upon other human beings.  If the Torah authorizes these punishments, we act as mere agents in their execution.  However, if the Torah does not explicitly commission a penalty in a certain case, despite the fact that we sense a warrant, we cannot administer.  If this were the basis of the limitation, we might possess greater latitude in monetary penalties.  We might not be authorized to impose bodily punishment but have greater license to establish logically compelling monetary payments.  [See the excerpt of the Lekach Tov, posted at the website http://www.vbm-torah.org/sources/bk2.htm for an elaboration of this issue.]

            Next week's shiur (#11) will IY"H address the topic of hezek she-eino nikar (non-physical forms of damage).  Some claim that these damages are identical to physical damages and similar payment is rendered.  The dissenting opinion maintains that hezek she-eino nikar lav shmei hezek (legal damages are not considered actual damages) and no liability exists on a d'oraita level.  The Rabanan however established a liability. Next week's shiur will focus on understanding the nature of that Rabbinic institution.

1) Background information:

Gemara BK, until the colon on 5a

Gittin (52b) mishna, gemara (53a) "u-leman deyalif kenasah... ve-omer patur"

2) Did the Rabanan recreate the definition of hezek, defining non-physical damages as Rabbinic damages?

BK 117a - "umina teimra... nami chasheshu"

Gittin (44b) "amar abaye naktinan..." until colon

Ra'avad BK 98a s.v. be-kastera: "tamah ani... chayav;" "ve-efshar deraba... shechi'ach"

3) Ra'avad BK (5a) s.v. metameh.  How might our definitions of hezek she-eino nikar affect the meitav rule according to R. Chiya?

4) Rambam Chovel U-mazik 7:1-3

5) Tosafot BK (5a) s.v. ve-katani

Shita Mekubetzet BK (5a) s.v. ih hezek (in the name of the Mahari Katz)