GEMARA BAVA KAMA 5771

Shiur #20: Tzerorot

The first mishna of the second perek of Bava Kama introduces the category of 'regel.'  This av nezek encompasses any damage inflicted by an animal 'carelessly' as it walks along its way.  Unlike shein, which is driven by animal desires, and keren by intent to damage, regel is damage performed 'derekh hilukho,' without any initiative on the part of the animal, but rather as a side-effect of the animal walking.  The ensuing gemara cites several examples of regel (or its toladot), with the av of regel referring to the damages performed by the animal's feet while the tolada relates to damages by the rest of the animal's body or by items attached to the animal's body (for instance, the harness, or a package).  One 'case' of 'regel' is designated for special treatment, referred to by the gemara as 'tzerorot' - literally pebbles.  If the animal, while walking, steps on small pebbles which then fly and perform damage, only half-payments (chatzi nezek) are rendered.  The same halakha applies to other similar instances in which the animal does not 'directly' perform the damage but inadvertently 'throws' an item that performs the damage.  For example, if a chicken hops around raising dust, or even wind, which subsequently damages another item, tzerorot chatzi nezek payments are applied. 

Definition

            What is the underlying factor about tzerorot which accounts for the payment reduction? Indeed, the gemara attributes this discount to a "halakha le-Moshe me-Sinai," which exempts the need for a specific pasuk.  [Halakha le-Moshe me-Sinai is a law that is not written in the Torah, but has been passed down through the Oral Law as having been received at Sinai, as opposed to rabbinical laws.]  Yet we still might inquire why these unique forms of damages should warrant a reduction in payments.

            The most obvious approach would be to attribute the discount to the fact that the damages occurred 'indirectly.'  In the absence of any direct contact between the mazik and the damaged item, the classic structure of nezek is missing.  In fact, the gemara strikes a comparison between tumat hesset and nezikin.  One of the ways by which a zav (one who has become impure through bodily emissions) can confer tuma is known as hesset - moving an item without directly touching it.  For example, if he nudges a vessel with a rod, he confers tuma upon it, even though he has made no direct contact with it.  He is still considered the 'mover' that has affected the vessel.  By contrast, if he throws something that moves another item after it leaves his hands, no tuma is conferred.  The gemara cites this contrast as a model for nezek.  Anything which will confer tumat zav, will obligate full nezek payments; if the animal were to damage something with its body OR ANYTHING ATTACHED to its body, full damages would be paid.  If, however, the animal flings something which then causes damage, the tzerorot payment of chatzi nezek apply. 

            In other words, we might assess the tzerorot discount as a function of the 'detachment' between mazik and nizak.  Classic nezek entails 'contact,' even if indirect.  When contact is missing, a weaker form of damage has occurred and part of the payment is reduced.

            A later sugya (on 19a) might alter our definition of the tzerorot reduction.  The gemara questions a case where the animal is walking in an area where it is impossible NOT to scatter stones.  Would tzerorot in this instance retain the chatzi nezek discount?  Why should tzerorot in this scenario be any different from textbook tzerorot?  After all, the damage is still being performed through kocho (force generated by the animal as opposed to actual contact) and should enjoy the standard discount!

The Rabenu Chananel's reading of the gemara's question is illuminating.  The hava amina to distinguish between this case and others is based on the fact that throwing stones in this context is completely 'urchei,' natural and normal, since it is impossible to walk WITHOUT kicking stones.  Being that tzerorot IN THIS CASE is urchei, we might not apply the reduction.  The undeniable impression given by this reading is that the standard reduction is not based upon tzerorot merely being an indirect form of damage.  The chatzi nezek payments of tzerorot are a function of its being an unusual manner by which damage is performed.  Scattering stones is not the most natural or routine form of damage.  Just as keren damages only obligate chatzi nezek only because it is abnormal for an animal to intentionally damage, similarly tzerorot generates chatzi nezek payment because it is unusual for damage to occur through this means.  Hence, the gemara considered suspending tzerorot in an instance in which it is perfectly natural and even unavoidable for tzerorot to occur.  Seen through this lens, the half-payments of tzerorot are structurally similar to those of keren. 

The Rambam, in his commentary on the first mishna of the second chapter, defines 'hezek shelo ke-darka' (unnatural damages - a term which is generally reserved for keren) as any damages 'which occur infrequently (keren) or through a different agent (tzerorot).'  Grouping keren and tzerorot together merely accentuates this view of tzerorot.  Though it is perfectly natural for the animal to walk and carelessly damage, throwing stones while walking is not the usual form of damage.  Keren enjoys a discount because the impetus for damage (kavana le-hazik) is so unusual; tzerorot benefits from a similar discount because the MANNER by which the damage occurred was so strange.

Scope

An interesting outcome of this question might be the scope of tzerorot.  The gemara introduces tzerorot within the mishna of regel and most of the cases listed by the gemara are instances of regel.  In fact, the gemara (3b) seems to establish what might seem as an exclusive relationship between tzerorot and regel.  The gemara searches for toladot which do not exactly resemble their avot and arrives at tzerorot.  Though it does not share all the features of regel, it does not render payments in reshut harabim.  The gemara clearly identifies tzerorot as a tolada of regel. 

Would the category extend to the situation for shein, for example (eish and bor are somewhat difficult to conceive)?  The gemara (BK 17b) lists the case of a pig who rummages through the garbage and throws an item, which then causes damages.  The simple reading of this gemara yields a shein version of tzerorot, (presumably the animal was rummaging to find some food).  In fact, Tosafot (s.v. nover) explicitly designate this case as a form of shein, confirming the presence of tzerorot shein.  The Rashba (s.v. ve-tinfu) agrees with Tosafot's view.  Rashi (Bava Kama 18b), however, appears to disqualify non-regel instances of tzerorot.  Why might we choose to limit tzerorot discounts to regel?

This issue might be a factor of our earlier question.  If we recognize the 'absence of contact' as the factor responsible for the tzerorot discount, we would have little reason to distinguish between regel and shein.  If however, the chatzi nezek of tzerorot is a factor of the abnormal manner in which the damage occurred, this discount might be available only to regel.  What best characterizes regel is that the damage is an integral part of the animal's routine.  No initiative whatsoever to perform damage is taken.  Unlike shein, in which the animal attempts to sate its desires, or keren, in which an animal expresses its hostility, regel is a completely passive and natural form of damage.  Within this av nezek, the degree to which we can define the damage as routine, is significant.  Unnatural forms of damage such as tzerorot, since they are not routine, would be antithetical to regel and not be liable to full regel payments.  By contrast, the category of shein is not characterized by the routine nature of the damages and would in no way warrant reduced payments for tzerorot.  In other words, the definition of tzerorot affects in many ways the scope of tzerorot. (An alternative explanation of Rashi's opinion was suggested in shiur #4 dealing with shein).

Method of Payment

A second issue which might stem from the definition of tzerorot might be the method of payment.  The gemara questions whether the chatzi nezek which tzerorot obligates should be rendered specifically migufo or even me-aliyah.  The standard payment of damages is in no way limited by the worth of the animal which PERFORMED the damage.  This type of payment is referred to as 'aliyah,' payments literally from the pockets or assets of the owner of the animal.  Chatzi nezek payments of keren are defined as migufo (from the body of the animal), which means that the damages do not exceed the worth of the animal which damaged.  Would half payments of tzerorot be similarly limited?  Intuitively, there seems little room to apply this payment limitation to tzerorot.  After all, the migufo clause is derived from a pasuk describing keren (Shemot 21:35) and would seem to have little relevancy to a tolada of regel.  Yet the gemara (18a) raises the question of whether tzerorot payments should be restricted by the value of the animal which damaged. 

One way to justify the possibility of tzerorot paying migufo would be to define migufo as an automatic dispensation whenever payments are more lenient.  The Torah specifies migufo in the context of keren but intends migufo as an option for many discounted payments.  The Rashba (Bava Kama 3b) claims that the basis for the gemara's consideration of migufo is that 'since the Torah was lenient [regarding tzerorot] and reduced payments to chatzi nezek, we might think that it enjoys the standard chatzi nezek leniency of migufo.'  According to this reading, the notion of migufo for tzerorot does not stem from any redefinition of tzerorot.  Rather, we see migufo as extendable beyond the parameters of keren.

A different way of understanding the gemara's hava amina would be to suggest that by considering tzerorot, the gemara actually probes the degree to which tzerorot resembles keren.  Is the chatzi nezek of tzerorot merely a function of its being indirect (kocho)?  Or might we view these types of damages as unusual and hence recognize similarity between tzerorot and keren?  Such similarity might express itself in tzerorot enjoying several 'keren' halakhot beyond the chatzi nezek rule. 

Mekorot for next week's shiur - a continuing discussion of tzerorot:

I.  Ha'ada'ah for tzerorot :

1) Reread the gemara until 19a.

2) Rashi (18b) s.v. elah, Tosafot s.v. be-muad , Rashi (18b) s.v. l'keren

3) Tosafot Rabenu Peretz s.v. tolada de-regel, Me'iri s.v. tzerorot, s.v. tarnegol, Shitta Mekubezet in the name of the Rabenu Netanel

Questions:

1) Which position is more intuitive – that there should be a form of ha'ada'ah for tzerorot or not?

2) How does the Shitta Mekubezet in the name of the Rabenu Netanel solve the problem?

II.  Shinuy be-tzerorot:

1) Rabenu Peretz s.v. yesh shinuy

2) Tosafot (3b) s.v. le-potro

3) Tosafot Rabenu Peretz BK (53a) s.v. shutfutai "elah vadai ... end of the piece"

4) Tosafot (3b) s.v. amai, Rambam Hilkhot Nizkei Mammon 2:1-5

Questions:

1) How does the Rabenu Peretz understand the option of shinuy for tzerorot paying half payments?

2) Would tzerorot through shinuy necessarily be defined as keren?

3) How might we understand tzerorot as a separate and independent category?