GEMARA BAVA KAMA 5771

Shiur# 21: Ha'ada'ah and Shinuy for Tzerorot

In the previous shiur, we introduced the concept of Tzerorot - a form of damage which, though 'urchei' (normal behavior), obligates chatzi nezek damages similar to keren.  We posed a question regarding the nature of this reduction.  Is the 'discount' based upon the indirect nature of the damage, or do we attribute the chatzi nezek to the unique and irregular form of such nezek?  If we select the latter, we might expect Tzerorot to exhibit other traits similar to keren (aside from the same payment level).  One example of a keren-type expression which might affect Tzerorot is the possibility of limiting payment to migufo (the value of the animal which performed damage).  By considering the option of importing migufo (generally viewed as a law specific to keren) into the world of Tzerorot, the gemara might be suggesting that Tzerorot and keren are logically similar.  This similarity might be a function of attributing the payment reduction to the irregularity of indirect damage.  Keren and Tzerorot, though not identical, might be structurally similar. 

Ha'ada'ah

            The gemara introduces a second element which might be a carry-over from keren - the possibility of becoming a mu'ad.  As the gemara suggests - 'yeish ha'ada'a li-Tzerorot oh ein ha'ada'a li-Tzerorot?' (should an animal which damages through Tzerorot three times, pay the full compensatory payment upon the fourth occurrence?).  At first glance this notion of mu'ad li-Tzerorot (acquiring increased liability) seems difficult.  Keren is awarded chatzi nezek status since its damages are meshuna – abnormal behavior.  Seeing as they cannot be predicted, prevention is difficult. Therefore, the owner is partially excused from his liability.  After three successive attacks, however, this animal's capacity for damage transforms into urchei - normal and expected.  As such the owner should be on guard and his failure to prevent a fourth damage warrants absolute liability.  Tzerorot, however, is urchei even during the initial stages of damage and the reduction is not a function of its being an unusual form of damage!!  As Rashi exclaims (s.v. ela), since Tzerorot is urchei what difference does it make whether it damages once or one hundred times?!  There is no warrant for the payments to increase. 

            Three options present themselves in solving this issue.  One option is to limit the gemara's question to a very unique form of Tzerorot - that of keren.  If an animal stomps upon stones with intent to damage, it has seemingly performed a mix of keren and Tzerorot.  Later in this shiur we will question whether the initial payment should be half or a quarter (i.e. half of standard Tzerorot payments = half of a half = a quarter).  A second question regarding this novel form of Tzerorot might be whether repeated attacks of this nature augment the payments. 

If we adopt this stance, we have limited the scenario of Ha'ada'ah for Tzerorot to keren-Tzerorot and thereby evade Rashi's question.  Typical Tzerorot and Ha'ada'ah are incompatible since the initial reduced payments do not reflect an abnormal act and these payments should not increase upon repeated instances.  The gemara only introduced Ha'ada'ah for keren-Tzerorot. 

            A second logical approach would be to redefine our perspective of Ha'ada'ah based upon its possible application to Tzerorot.  Indeed, if we view the process of Ha'ada'ah as a gradual adjustment toward nezek, matched by increasing payments, it would seem to have little relevance to standard Tzerorot.  If however, we disassociate Ha'ada'ah from this process of 'becoming a more regular damage,' we might be able to extend the scope of Ha'ada'ah beyond keren proper.  This discussion pertaining to the nature of Ha'ada'ah will be deferred until this series of shiurim directly addresses the topic of Ha'ada'ah (dealt with by the gemara BK 24).

            A third option reverts back to our assessment of Tzerorot.  If indeed the initial chatzi nezek discount was a function of  the irregular nature of Tzerorot, we might envision a process of Ha'ada'ah.  Indeed, it is normal for the animal to perform this  type of nezek - unlike keren which is abnormal.  However indirect damage is still unusual; successive damages of Tzerorot might be a process of classifying 'stone throwing' - which is generally seen as irregular - as a more 'regular' form of damage as far as this animal is concerned.  Unquestionably, we can differentiate between keren and Tzerorot.  However, if we attribute the payment reduction to the irregularity of this form of damage, we might be more willing to consider Ha'ada'ah even in the standard case of Tzerorot. 

SUMMARY:

            We have witnessed an additional example of a keren halakha which might be transported to the world of Tzerorot.  This symmetry between keren and Tzerorot might be a function of how we understand the reduction of Tzerorot.

Shinuy

We will now consider a final question raised by the gemara which could yield a novel approach to understanding Tzerorot.  The gemara questions 'yeish Shinuy li-Tzerorot le-reva nezek, oh ein Shinuy li-Tzerorot le-reva nezek?'  What happens if Tzerorot is performed in the 'keren' mode?  How much should an animal pay if it kicks stones with intent to damage?  Should the regular chatzi nezek be paid or should only a quarter of the damages be reimbursed?  The question itself appears to revolve around two related issues:

1) What was the justification for standard Tzerorot paying only chatzi nezek?  Was the discount based upon the damage having been performed through 'kocho' - indirectly?  If so, it might be possible to further reduce the payments (to a quarter) in an instance of abnormal Tzerorot (keren).  Alternatively, if the initial reduction to a half were based on the unusual nature of Tzerorot - we might not further reduce payment in an instance of meshuna (keren) since we have already extended such a reduction - based upon the unusual nature of the hezek.  If the standard Tzerorot reduction were based upon the irregular nezek, we might not further reduce payment in a case of keren Tzerorot because the damage was also abnormal. 

2) A second question which might influence our issue, is the exact nature of the chatzi nezek payment of keren.  Was the Torah offering a '50% off' discount to the owner of an animal which performed an 'unpredictable' damage?  Or did the Torah set keren's payment at chatzi nezek?  In other words, does keren pay 50% of damages, or half of the standard payments.  The consequence of this question would be keren of Tzerorot.  Tzerorot normally pays half damages (based upon the halakha le-Moshe me-Sinai).  If such damage occurs in a keren-esque form, would the payment remain a half, or would it be half of the standard payment - namely a quarter?  

Tosafot Rabenu Peretz addresses this very issue in a different context.  The gemara (53a) discusses a case of a shor tam which pushes another animal into a bor.  In theory, the payment should be shared by both parties (the owner of the shor and the bor).  Yet, the gemara allows the owner of the animal to pay only a quarter, since he can claim 'shutfutai mai ahani li' - if I am forced to pay half, I will not be benefiting from the fact that another party partook in this damage (since the owner of the animal would have paid half even if his animal had damaged alone).  Rabenu Peretz clarifies that a tam must pay half of what he would have otherwise paid in this particular scenario.  Had his animal been a mu'ad and pushed another into a bor, he would have paid half (sharing the payments equally with the owner of the bor).  Since this animal is only a tam he must only pay a quarter - half of the payments as a tam.  Might we stake the same claim in our case?  Since standard Tzerorot obligates only half payments, should keren-tam Tzerorot pay only a quarter?  Or do we interpret the half payment rule of keren as a fixed amount - half regardless of the amount which a mu'ad form of such damage would pay?

            We have detailed the possible issues underlying the gemara's question of quarter payments for Tzerorot meshuna.  CLEARLY such a form of Tzerorot is classified as keren.  After all, it bears no resemblance to regel since the damage is meshuna.  The only question which the gemara might be struggling with, is whether to append a further discount to the original reduction of half damages.  The identity of this form of nezek however is unquestionable. 

            This view is challenged by the following sugya (19a): Rav Yirmiya asked Rabbi Zeira about an animal which intentionally kicks stones while walking in reshut ha-rabim.  Should he be liable (as is the case with keren which pays for damages performed in reshut ha-rabim) or should he be excused (similar to regel which does not pay in reshut ha-rabim)?  This question is very troubling, since it seems indisputable that Tzerorot meshuna should be defined as keren.  The only reason Tzerorot was designated as a tolada of regel was because its damages were urchei - normal.  Indeed the payments were discounted, (possibly because the damages occurred in an unusual fashion).  If however, the animal damages by intentionally kicking the stones, the damages would clearly be classified as keren!!  If so, liability should certainly extend to reshut ha-rabim, as in standard forms of keren.  What warrants the gemara's question whether Tzerorot meshuna is liable in reshut ha-rabim? 

Many Rishonim were so troubled by this question that they edited out the word 'kicking'.  They assume the gemara refers only to a regular case of inadvertent throwing of stones while walking.  This would refer to standard Tzerorot about which the gemara questions payments in reshut ha-rabim.  Aside from the difficulty in editing the gemara, this position is weakened by an additional concern.  The gemara (3b) already inquired about classic Tzerorot in reshut ha-rabim and ruled that Tzerorot is exempt from payment.  Why would the gemara be resuscitating a question it had already determined earlier?

            By contrast the Rambam takes the gemara's question literally and even provides a commentary about the underlying issue involved.  The gemara was probing whether this form of Tzerorot is considered keren (obligated in reshut ha-rabim) or regel (exempt).  How could the gemara even consider defining Tzerorot with intent to damage as regel?  Regel's defining characteristic  is hezek derekh hilukho (damaging while walking routinely), while this is an instance of intentional kicking!!

            The Birkhat Shmuel cites a position of Rav Chayim which dramatically alters our understanding of Tzerorot.  We had assumed that without a special halakha le-Moshe me-Sinai Tzerorot would have paid full damages.  After all, it may be classified as a tolada of regel.  The fact that the damage is indirect does not exclude it from the regel category nor diminish its status as an av nezek.  The purpose of the special halakha le-Moshe me-Sinai clause was to REDUCE Tzerorot payments to half, based on its being indirect.  This is certainly the simple reading of the gemara in BK 17b. 

            Rav Chayim asserted a different stance.  Without special classification Tzerorot would not have obligated payment at all.  In theory a person is liable only for damages which his animal performs with its body, not those indirectly caused by throwing items.  The halakha le-Moshe me-Sinai INVENTED a new obligation and a new and independent Bava Kama category.  This form of damage is unlike ANY of the conventional avot and requires a special clause to establish liability.  The fact that it shares characteristics with regel is not what designates it as regel;  inherently it is unlike any category.  We merely designate it regel since most of the halakhot resemble regel.  Hence, it can retain its status as 'regel,' even when performed through a Shinuy.  It was not defined a member of the regel category and as a damage which corresponds to regel.  Instead, it exists as an independent form of damage, nominally referred to as regel since it dovetails with many halakhot of regel.  By so defining its association with regel, we allow 'mutant' forms of Tzerorot, which share no inherent regel traits to retain their title as regel. 

            In truth Rav Chayim's view is somewhat forced in the gemara BK (17).  This gemara suggests that, in general, kocho (indirect actions) is considered similar to gufo (direct actions).  As such, the gemara seems to imply we would fully obligate Tzerorot and that the halakha Le-Moshe me-Sinai merely provides a special dispensation.  However, according to Rav Chayim, Tzerorot (kocho) would have been completely exempt from payments had the halakha le-Moshe me-Sinai not 'intervened.' 

            The gemara in BK (3b), though, does seem to support Rav Chayim's contention.  The gemara inquires why Tzerorot is assigned as a tolada of regel.  Instead of locating common features (as it does in assigning other toladot) the gemara justifies this association between regel and Tzerorot based upon common halakhot.  Many Rishonim are bothered by this strategy.  Why not justify the 'marriage' based on inherent similarities rather than shared halakhic consequences?  This might confirm Rav Chayim's assessment fundamentally, Tzerorot is unlike any category.  We assign it to regel based on a preponderance of halakhic parallels; the gemara is merely assessing those parallels. 

            Tosafot develops an interesting phrase which also seems to evoke Rav Chayim's position.  Commenting on the gemara's question, 'Why was Tzerorot called a tolada of regel?' Tosafot explain that in fact Tzerorot should have been designated as an independent category.  The gemara never considered associating Tzerorot with another category, but instead weighed the idea of  maintaining the independence of Tzerorot.  Of course, most positions claim that this concept was thoroughly rejected by the conclusion of the gemara which comfortably assigns Tzerorot to regel.  Rav Chayim claimed that even in its conclusion, the gemara saw Tzerorot's association with regel as nominal rather than inherent.  As such, even forms of Tzerorot which deviate from regel's characteristic features may still be considered a subset of regel. 

The next shiur will address two topics :

I.  Kishkush (an animal which damages while 'swinging' a body part)

II.  Delil - a string which becomes attached to an animal and is dragged. 

I.  Kishkush:

1) Gemara BK 19b 'yativ Rabbi Yehuda ... le-hazik teiku'

Rambam Hilkhot Nizkei Mammon 1:11

Ra'avad s.v. kishkesha

Tosafot Rabenu Peretz s.v. keren

2) Rashba s.v. ve-chi

Shitta Mekubezet s.v. ve-zeh lashon Ha-rosh (in the name of the Rosh)

Nachalat David s.v. sham amud bet bi-gemara

Questions:

a) Why should kishkush obligate payment like keren?  And regel?

b) How are we to interpret the gemara's challenge 've-khi yochazena be-zenava ve-yeilekh?'

3) Why does keren not enjoy a similar exemption based upon ve-khi yochazena?

II.  Delil:

1) Gemara BK 19b 'ha-tarnegolin...mishna'

Rashi s.v. aval, ela

Tosafot s.v. ve-chi

Tosafot Rabenu Peretz s.v. aval

BK 21b mishna, 23a gemara 'man chayav...gechalto'

Rambam Hilkhot Nizkei Mammon 2:10-11

Questions :

1) How might Rashi distinguish between a chicken which 'throws' someone's unattended string and a wind which carries someone's unattended stone?

2) How might he distinguish between chickens hurling strings and dogs transporting fires (BK 23)?

3) Ultimately, why is a person who actively ties a string to a chicken liable if the chicken throws the string and damages? How does the Rambam differ from Rashi?