GEMARA BAVA KAMA 5771

Shiur #18:Half-payments and Fine collection (15b)

Based on shiurim by Rav Moshe Taragin

CHATZI NEZEK

The gemara introduces the dispute regarding chatzi nezek (half-damages) payments of keren (in the case of shor tam).  Do we treat these payments as standard monetary ones or as a penalty to the owner for not properly watching the item?  In the gemara's terminology: Do we view the payments as mamona (compensatory) or kenasa (a fine)? 

The gemara links this question to a more fundamental one.  Is a standard shor expected to perform keren damages?  According to one position, 'stam shevarim be-chezkat shimur kaimi' - animals are not expected to perform keren damages.  Such damages are absolutely irregular and unpredictable and hence the owner should not be held accountable.  Since, however, we want to encourage the owner to improve his guardianship, we levy a fine of half nezek - 'Palga nizka kenasa.'  Fundamentally, he is excused from strict compensatory payments, until the animal becomes a mu'ad.  At this point only, the full payments become compensatory, because the owner should by now guard against this repeating pattern. 

            This first opinion is fairly reasonable.  Keren payments would appear to be different from other nezikin, with its characterizing feature being 'meshuneh' - the damages performed are irregular.  Such strange events should not obligate compensatory payments; if anything, the half payments are a fine. 

            The second position of the gemara, however, does require clarification.  Rav Papa reasons that palga nizka mamona - half nezek is indeed compensatory since 'stam shevarim lav be-chezkat shimur kaimi' - animals are expected to perform keren damages.  Since the owner should have anticipated and prevented keren the first time, it is only reasonable that he should pay some form of damages.  In fact, theoretically, he should offer full payment, even for the first time.  The Torah, however, was lenient with him until the fourth time the animal damages. 

Two questions immediately present themselves:

1) What exactly are the two positions debating?

2) According to the second position, assuming that keren is just as predictable as other forms of nezek, why should it receive this unique half nezek dispensation?

The first question is not directly addressed by the Rishonim, but suggests two different approaches.  Rav Papa and Rav Huna might be engaging in a purely statistical machloket as to whether a regular animal is expected to perform keren damages, or not.  Alternatively, they might agree on the statistical average, yet debate the level of negligence when generating an obligation to pay.  They might admit that the statistical expectation of keren is lower than normal damages but debate whether it is low enough so low that an owner is not at all negligent.  Though he is not an absolute poshey'a, he certainly is not o-nes.  He has a certain amount of liability, but not as much as other nezikin.  Consequently, the Amoraim differ regarding which side of the scale he is closer to. 

Perhaps we can reformulate the debate as follows: Is gross negligence the obligating factor to pay for shein (for example)?  If so, and such a degree of negligence represents the standard, we might not see keren as meeting such a standard.  Consequently, its payments cannot be classified as standard or as mamona, but rather an extra-compensatory fine.  If, however, we obligate shein because of a person's legal ownership, then the role of peshi'a becomes ancillary and even a moderate peshi'a would be sufficient basis for obligation.  If one's legal ownership obligates him, as long as he is not an 'o-nes,' even average levels of peshi'a would suffice.  As such, the average peshi'a of keren might be sufficient to define it as standard compensatory payment and not some external fine.  The argument might not surround the degree of peshi'a in keren.  Rather, it would revolve around the degree of peshi'a NECESSARY to be defined as standard payments or mamona.

            The second question - why keren should receive a discount if it is just as predictable as other nezikin - generates a famous machloket Rishonim.  Most Rishonim maintain that although according to Rav Papa keren might be more predictable and closer to the world of nizkei mammon than Rav Huna claimed, it is still unique, insofar as it is somewhat less predictable and less preventable.  It is not meshuneh enough to render the payments kenas.  However, it still is meshuneh enough to justify a discount.  In other words, even if keren is granted the status of mamona, it is still not rendered 'normal' (urchei) in the same manner as a classic nezek.  Based on its being relatively less anticipated than normal, the Torah discounts the first three payments. 

Tosafot however, consistently equate keren (according to the mamona position) with other forms of nezek.  We witness this equation in Tosafot (2b) who maintain that, according to 'mamona,' a form of keren would actually have been derived from other nezikin.  The same issue repeats itself on 5b when the gemara claims that, according to one position, keren is 'adifa' (more likely to be obligated to pay) and hence derivative from other nezikin.  Rashi comments that he does not know to which position this gemara is referring.  After all, no matter what perspective we adopt, keren is still irregular and provides less basis for liability.  Tosafot, however, refer us to our gemara - according to the mamona position.  Keren is just as urchei (usual) as shein or regel and as a result, obligates compensatory payment and could have been derived from other nezikin. 

Though Tosafot's position seems inherently strained (after all, throughout Bava Kama, keren is associated with meshuneh - how would Rav Papa explain this association?) a second problem presents itself: If keren is just as predictable and 'standard' as shein or regel why the half discount for the first three payments?  According to other Rishonim, even Rav Papa who claims mamona, never perceived keren as predictable as other nezikin.  It was just PREDICTABLE ENOUGH to warrant a compensatory payment.  The first three payments were discounted because the damage was still not as frequent as shein or regel.  According to Tosafot, however, keren, according to Rav Papa, is just as usual as shein; so why should its payments be reduced?

The Shitta Mekubetzet raises this question according to Tosafot and offers the following answer [reiterated by the Rosh in his Tosafot commentary to the parallel sugya in Ketubot (41)]: All categories of nezek exhibit certain leniencies.  Bor does not pay for keilim, just as eish doesn't pay for 'tamun' (hidden items).  Keren's special dispensation is that the first three damages are only partially compensated for.  In effect, this position concedes the identity between keren and shein offering only formal exemptions to explain the half nezek rule. 

The Rishonim's opinion of keren-mamona can be gauged from a statement offered at the conclusion of the sugya.  The gemara declares: "Now that palga nizka is viewed as kenasa (as Rav Huna claimed), a dog that eats a goat is meshuneh (abnormal) and must make kenasa payments, but not in Bavel (taken as a general way of referring to Jewish residences outside of Eretz Yisrael)."  Once the Jews were exiled from Israel, the concept of semukhin (judges who had been ordained in an uninterrupted chain since Moshe Rabenu) was suspended.  Judges without this form of semikha were only allowed to adjudicate mammon cases, but not kenasa (see next section).  Hence, these keren-kenasa payments cannot be enforced.  The simple reading of the gemara yields little new.  Rav Huna (according to whom we ruled) claimed that keren is kenasa and as such they cannot be collected outside of Israel without semukhin.

Tosafot offer a different reading of this gemara.  They are bothered by the gemara's introducing a specific form of keren to discuss a general ruling.  All keren is kenasa and non-enforceable in Bavel.  Why, then, did the gemara select this specific form of keren (a dog eating a goat) to demonstrate a general rule?  Tosafot explain that this example of keren would only obligate payments (in the theoretical non-enforceable sense since it is Bavel) according to Rav Huna who holds keren-kenasa.  If, however, keren is mammon, then only normal forms of keren generate obligation.  A dog eating a goat, which is clearly abnormal and unexpected, would not be defined as urchei and would be excluded from keren.  This conforms to Tosafot's general position that Rav Papa viewed keren as commensurate to other forms of nezek.  Any situation which is clearly not urchei would be excluded from the category of keren.  What is astonishing is that Tosafot recognize 'black holes' in Bava Kama - damages which do not generate any liability.  According to Rav Papa, keren - even the first three times - is classic, but discounted, damage and anything deviant would be excluded from this category and would not generate a chiyuv.  This is quite surprising to those of us who saw the landscape of Bava Kama as one in which all damages were covered by one mazik or another without any exceptions - save for the unique exemption to each mazik (tamun, keilim, shein and regel in reshut ha-rabim).  Tosafot evidently do not have as tight a picture of Bava Kama. 

TEFISAT KENASOT BE-BAVEL

            The gemara concludes by allowing some manner of recuperating this non-enforceable kenasa-keren payment - tefisa or grabbing something of appropriate value from the mazik.  This allowance is somewhat troubling, since it directly contradicts our view of kenasa.  There are many halakhot which suggest a more active role for bet din in the initiation of a fine.  Mammon payments stem primarily from the action committed.  A thief is obligated to compensate the actual item stolen, or its corresponding value.  This payment evolves as a product of his theft.  Bet din's role is merely judicial (adjudicating the case).  Kenasa, however, (such as the double payment which the ganav makes) is not something he deserves to pay.  Bet din doesn't merely prove the existence of a debt but creates or levies the fine.  Their role is much more basic to the conception of the fine.

This understanding of kenas is evidenced by several halakhot:

1) If a thief steals an item worth $1 and the item price inflates to $4, he pays the capital based upon the initial value and the fine based upon the latter $4 value at the time of the collection (see Bava Kama 75a).  Evidently, the debt on the capital is created at the time of the theft (when the item was priced at $1) and the debt of the fine was created at the time of the sentencing (when the item was worth $4). 

2) One who admits to the crime (and prevents due process of testimony from incriminating him) escapes without paying the fine and pays only the capital.  This might also reflect the fact that bet din's role is more central in creating the fine.  Any disruption of due process would prevent the fine from ever generating.

3) The very rule that non-semukhin judges in 'Bavel' can enforce capital payments but not kenasa, reinforces our notion that a stronger bet din is necessary to legislate kenasa.  Possibly because their role in kenasa is more fundamental. 

If this is the case, that without bet din's involvement no debt of kenasa exists, what gives the victim license to collect?  In standard cases of mammon in which (for whatever reason bet din might not collect), the concept of tefisa (grabbing on one's own) seems more reasonable.  In these cases the basic debt exists without bet din's intervention, but for some technical reason bet din was not successful in collecting the debt.  In such situations, it might be tolerable for the victim to independently appropriate the monies owed him.  In the case of kenasa, however, if bet din cannot generate a debt (in Bavel without semukhin), it seems odd that we allow the victim to independently seize the value owed him.  After all, without bet din's initiative no debt exists whatsoever!?!

There are three approaches to this issue in the Rishonim:

1.         The Rabenu Tam claims that, indeed, private collection options are not available to the victim.  Instead, Rabanan issued a specific decree allowing the nizak to seize the ANIMAL ITSELF which performed the keren damages.  According to Tosafot in Ketubot (41b), he is only permitted to grab the animal immediately after the damages have taken place.  Apparently, Rabenu Tam agreed with our premise that independently collecting a kenasa debt without bet din's initiation is illogical.  Instead, he interpreted our gemara in a very narrow manner: a special dispensation exists allowing the victim to seize the perpetrator of the damage.  The continuation of the gemara in Bava Kama cites the rule of Rav Natan that a person is not allowed to raise dangerous animals within his house and, according to the gemara in the seventh perek, other members of society are allowed to seize such animals.  Ostensibly, Rabenu Tam's position is based on this notion.  General tefisa is not allowed; eliminating the hazard is permitted.  If the victim can also benefit by removing the hazard - so that he recovers his losses - why not allow this form of tefisa?

2.         The Ra'avad in two sections of his commentary to the third perek argues that chatzi nezek is different from standard kenasa.  Typical fines are in no way compensatory.  The thief has already compensated the capital but must remit kefel (double) payments to the victim.  He is not receiving any deserved payments but is rather the beneficiary of bet din's levying a fine upon the criminal.  In these classes of standard fines, bet din's role is central.  The half nezek fine is unique: On the one hand, it cannot be regarded mammon since the owner could not have anticipated the damages the first three times.  Alternatively, the half payments are compensatory in as much as the victim is receiving partial remuneration for his losses.  Thus, half payments are an atypical form of kenasa.  They deviate from standard kenasa in two critical areas:

1) Even if the owner were to confess that his animal damaged, he would still be obligated to pay even though normally we rule that modeh be-kenas patur - one who confesses to a fine is exempt from payment.

2) Even in Bavel, where the fine cannot be officially processed, the victim has the right to seize anything of value to independently collect the loss. 

In other words, the Ra'avad (like Rabenu Tam) delimits the tefisa clause in our sugya to this form of payment.  According to the latter, half nezek is a unique kenasa which allows collection.  According to the former, the victim is not really collecting; instead, he is removing a public danger and recovering his losses in the process.

            The Rosh offers a third opinion.  Effectively, he views this gemara as characteristic of all kenasot.  In all cases, a person may independently appropriate money from the criminal if bet din is powerless to prosecute the kenasa.  This ability to collect indicates that, in fact, our theory about kenasot is not as absolute as outlined earlier.  According to the Rosh, even before bet din initiates the due process, the basic obligation to pay a fine has already been generated.  In this respect, a kenas is similar to mammon - they each stem from the action performed and they each exist without and before bet din begins its process.  Even though they exhibit differences in certain areas (how we evaluate the payment, whether a confessor pays) in one respect they are identical - a person may independently seize monies from the culprit if bet din is powerless to prosecute.  The Rosh views this gemara as reflective of all kenasot rather than as an exception to standard kenasot.  The Rosh's position and commentary to Bava Kama (15b) is a major statement about the nature of kenasot.

Mekorot and Questions for next week's shiur -

Rav Natan Preventing Danger

1) See the gemara 15b "Ve-hashta ... (Mishna)," Shitta Mekubetzet s.v. Mi-derebbi, and Yere'im 210.  What are the extensions of the pasuk made by Rav Natan and by the gemara?

2) See Sifrei Ki Tetzeh 19.  What basis could be brought from the Sifrei for these extensions?  See Onkelos Devarim 22:8 and Rambam Hilkhot Rotze'ach 11:4.  Do they agree to these extensions?  See the gemara 51a "Eitivei ... tefei," Rashi s.v. Lav, Meiri s.v. Chayiv, Bayit.  How can the question of these extensions be connected to this gemara?

3) See the gemara Kiddushin 34a "Ve-eizohi ... ha-ken," Tosafot s.v. Ma'akeh, Ramban s.v. Ha, and Semak 152.  What is the debate between the Rishonim regarding the relationship between the aseh and the lav?

4) See Yere'im 334.  How does he explain the apparent contradiction between the different halakhot of the Sifrei?  See Emek Ha-netziv (on the Sifrei) s.v. Min.  How does he use the Rishonim from part 3 to answer the same problem?  See also Chayei Adam 15:24.