GEMARA BAVA KAMA 5771

Shiur #6:  (3b):
The role of legal ownership in establishing liability for nizkei mammon

Based on shiurim by Rav Moshe Taragin

The summarizing statement of the first mishna in Bava Kama declares:  "The common denominator of all the aforementioned forms of nezek, is that the owner is obligated to guard them and if damages occur (because he neglected this responsibility), he must render payments from his choice fields."  In other words, the mazik is obligated to pay for damages which his property or items (eish and bor) caused, because he was responsible to guard these items and he failed.  The Rif adds one word to this mishna which could potentially change the very nature of an owner's compensatory obligations.  He adds the word "u-mammonkha" – these items actually belong to the person and thus he is responsible.  This issue - whether the word mammonkha should be inserted into the mishna – is debated by several other Rishonim as well.  Tosafot (BK 3b s.v. U-mammonkha) claim that the word should not be taken seriously since a bor (for example) is not legally owned.  Tosafot (BK 4a s.v. Adam) actually excise this word from the mishna.  The same debate can be found in the Rashba's comments on the mishna itself.  He cites Rashi's view that the word should be included, even though, ostensibly, a bor dug in reshut ha-rabim is not legally owned by the one who dug it.  The Rashba objects to this concept and, like Tosafot, chooses to omit this word from his reading of the mishna.

Negligence or Ownership?

            This question – which presents itself as a syntactical one – could greatly impact the nature of the owner's obligation for property damages.  Why, indeed, does the Torah obligate one to pay damages which his animal caused?  One might suggest that the owner's NEGLIGENCE makes him responsible.  If so, is some form of legal ownership necessary to create the obligation?  Indeed, only one who was responsible to WATCH an item is considered negligent if he fails to.  Furthermore, in general, a person must WATCH an item since he is its owner.  However, we might conceive situations in which a non-owner is obligated to watch and is considered negligent if he neglects to do so.  Would such an individual also have to render payments for nizkei mammon?  What is the key ingredient in establishing the debt of an "owner?"  Does his very ownership obligate him to cover" losses which his property caused?  Or do we see his ownership as the basis for his responsibility to watch an animal - a responsibility he failed to execute.  Having failed this task, he is considered negligent and hence obligated to pay compensation.

            Obviously this question will have significant impact upon our understanding of bor and eish - two forms of nizkei mammon that do not appear to be formally owned.  In establishing these types of nizkei mammon, should we struggle to nevertheless locate varieties of ownership which might include these situations?  Or does a person's obligation exist independent of legal ownership?  For example, a dispute between Rav Yochanan and Reish Lakish pertaining to the nature of eish is recorded by the gemara BK (24a).  According to Rav Yochanan, lighting a fire is akin to shooting an arrow.  Reish Lakish rejects this comparison and defines fire as "mammono" – damages performed by objects in your possession.  Are we to take this word mammon literally?  Must a person actually own the fire with which he lit?  What would happen if he used someone else's torch to light a field?  If ownership is the basis of nizkei mammon obligations, we might reach these conclusions.  If, however, liability is determined primarily by negligence, ownership would not be a prerequisite.  These questions will be deferred until the topics of eish and bor are more directly addressed.

Ganav

Exploring the possibility of non-owners who are nevertheless responsible for damage compensation, might shed additional light on our topic.  The first mishna in the sixth chapter of Bava Kama maintains that if a thief removes an animal which subsequently causes damage, he – and not the victimized owner – is responsible for payment.  On the surface, this halakha seems questionable.  Indeed, we might exonerate the owner since it was already removed from his possession at the time of damage.  The thief, however, has not yet achieved legal ownership over the animal (he must still return it to its rightful owner).  What, then, allows us to obligate the thief to render compensatory payments for the nizkei mammon of the animal? 

This question is posed by Tosafot (56b s.v. Peshita) who provide two different answers.  The second answer presents an important theory about the nature of geneiva (robbery).  A ganav (thief) acquires partial "ownership rights" in the item he has stolen.  Though he cannot legally sell the item, nor use it to betroth a woman and if the item itself is damaged or re-stolen payments are made to the legal owner, he nonetheless enjoys certain privileges in the stolen item.  Certain types of appreciations are awarded to him and in certain circumstances he might even achieve full legal ownership (with, of course, a residual obligation to compensate his victim).  This concept – known as kinyanei geneiva (the ownership rights of a ganav) are elaborated in the seventh chapter of Bava Kama.  Tosafot, in their second answer, assert that in becoming a partial owner, the ganav must pay nizkei mammon as a complete owner would.  Though Tosafot make a dramatic statement about the nature of a ganav, the essence of nizkei mammon payments remains unchanged; an owner pays for nizkei mammon and a ganav pays because of his status as a partial owner.

            Tosafot's first answer does alter our notion of nizkei mammon liability.  Indeed, the ganav cannot even be considered a partial owner.  Instead, he must assume liability because, in reality, the animal was in his possession at the time of damages and he was the only person capable of WATCHING it.  An owner's liability does not stem from his formal status as OWNER.  Instead, it evolves from his negligence in WATCHING.  This negligence can apply to anyone in whose possession the item is found, if that person is derelict in WATCHING the animal.

            These two positions in Tosafot echo the above stated views of why an owner covers nizkei mammon payments.  If we assume that this liability stems from his formal license, then the ganav's liability may be justified only by establishing a pseudo form of ownership.  If, alternatively, an owner pays because he failed to watch the item in his possession and within his capability to WATCH, a similar claim can be lodged regarding a ganav even if he does not attain legal rights.  Practically, the item was in his "hands" and he should have watched it.  Failure to do so results in nizkei mammon liability.

Shomer

A parallel question to ganav might be raised regarding a shomer (watchman/guardian).  Why does he render nizkei mammon payments to the victim?  Indeed, he agreed to watch the animal and pay for damages to it, but these agreements were made with the original owner regarding bodily damage caused TO the animal.  Why should he pay a victim he never met, for the damages which the item he was protecting inflicted?

The mishna in Bava Kama (44b) claims that the four types of shomrim (see Bava Metzia 93a for a thorough listing) "nichnesu tachat ha-ba'alim" – literally step into the place of the owner and thus assume nizkei mammon laws.  Are we to read this statement literally – that a shomer also becomes a partial owner and that this status warrants nizkei mammon liability?  Or might we liken shomer to ganav according to the first view of Tosafot (56b) - in either case the animal is in the possession of the shomer/ganav and this reality obligates them to WATCH, independent of any formal status as owners.  By not watching, they neglect their obligation and must suffer the consequences.  (See Rav Chayim in his commentary on the Rambam for a discussion of this concept regarding a shomer.)

            We have attempted to discern the source of an owner's responsibility by probing "marginal owners" (ganav and shomer) and discovering the basis for their obligation.  We might also note the level of negligence necessary to generate an obligation.  This, as well, might potentially demonstrate the true source of an owner's liability – his legal rights or his negligence.

            The gemara in two locations (45b and 55b) cites a dispute between R. Meir and R. Yehuda regarding the degree of guarding necessary to exonerate an owner from nizkei mammon payments.  According to one position (initially believed to be R. Meir), an owner must provide shemira me'ula (superior protection); while, according to R. Yehuda, shemira pechuta (limited protection) suffices.  Might this debate, as well, reflect the nature of an owner's obligation?  If it stems from his negligence, we might only obligate him if ABSOLUTELY NO protection were provided, in which case he can be designated a poshei'a (grossly negligent).  If he performed even minimal shemira (pechuta), we might not congratulate him, but we also would not refer to him as grossly negligent; shemira pechuta would seem to suffice according to this view.  If, however, his responsibility stems from his legal rights to the animal, his watching is merely a manner of excusing himself from that baseline responsibility; he watched as well as he could have and is considered "o-nes" - a case of an accidental cause which is excused from any legal liability.  However, to be legally defined as o-nes, he would have to provide thorough and comprehensive protection - shemira me'ula.  Anything short of this might not be negligence, but would also not be considered purely accidental.  What is the role of negligence in generating the liability of the owner?  Is it the primary factor: an owner who does not watch properly, pays?  Or is the liability a consequence of legal ownership and successful watching is merely a cancellation of that liability?  This question may affect the degree of watching required in order to be exonerated.

Sources and questions for Bava Kama shiur #7

Part I

Comparing shein to keren.

Gemara 3b "Ha-mav'eh … kol she-kein" (4a)

Tosafot 3b s.v. Lo.

Shita Mekubetzet 4a in the name of the Mahari Katz s.v. U-mahari katz.

Ra'avad s.v. Lo re'i, ve-lo re'i (2x)

Shita Mekubetzet in the name of the Ri Migash s.v Ve-nish'al "Ve-nomar she-batchila zeh" (this is the text of a question sent by Rav Kaluf to the Ri Migash about how to understand our gemara)

Why should shein be more severe than keren?

How could the gemara immediately reverse its train of thought?

Does the gemara view keren and shein as basically similar (with two possibilities either keren being more severe or shein)?  Or does it see them as two potentially different models of nizkei mammon?

Part II

Liability for damages of household servants and children.

Gemara 4a "Itztarekh … maneh be-khol yom"; Rashi (especially s.v. Afilu hakhi), Tosafot s.v. Midi, lav, (Rabbenu Peretz s.v. Af al gav).

Mishna Yadayim 4:7.

Shita Mekubetzet s.v. Matzati be-shem Rabbenu Yona ... lehazik.

Od yesh lomar de-hava ... end of the piece.

Shita Mekubetzet s.v. U-le'ikar.

Meiri (BK) s.v. Eved, Rambam Hilkhot Geneiva 1:9

1) According to the gemara in BK why is a master exonerated from payment stemming from damages caused by his servants?

2) What is the "problem" with this reading given the flow of BK?

How do the Tosafot deal with the problem?

Which phrase in the mishna of yadayim is not quoted by Bava Kama and not factored in according to the Tosafot?

Who did factor this issue into the equation?

Is the exemption Biblical or Rabbinic in nature?