GEMARA BAVA KAMA 5771
SHIUR #7: Bava Kama 3b-4a
Based on shiurim by Rav Moshe Taragin
1) An initial comparison between keren
2) Liability for damages caused by
subordinate members of a household
I. Comparing Shein to Keren:
Much of the first few pages of the first perek of Bava Kama is dedicated
to analyzing the structural differences between various forms of nezek. By explicitly outlining 4-5 distinct
sections, the Torah appeared to be specifying unique and independent tracks.
However, a question surfaces: Could the Torah have done with less? Would it not be possible for the
Torah to specify one av and allowed us to induce similar ones on our own? Could the Torah not provide one model
of nezek, allowing us to extrapolate the generalized obligation? To these questions, the gemara
responds that the avot are sufficiently different to prevent deducing or
deriving one from another. This
message is essentially delivered by the mishna when it states: "Shor is unlike
mav'eh and mav'eh is unlike shor, shor and mav'eh are unlike eish and bor, while
shor, mav'eh and eish are unlike bor."
This statement, however, is ambiguous, since the respective definitions
of shor and mav'eh are disputed by Rav and Shmuel. The gemara (commencing on 3b)
addresses this debate and draws the necessary conclusions about interpreting the
mishna's statement. After suggesting
that, according to Shmuel, shor refers to keren and mav'eh to shein, the gemara
attempts to understand the mishna's equations appropriately.
makes the gemara's treatment fascinating, is the ease with which it reverses its
conception of the relevant avot. The
basic assumption throughout this whole sugya is that if one is obligated to pay
for damages in a certain case, then logically in cases where the damage is less
severe, responsibility cannot be assumed.
The gemara then proceeds to analyze all the avot in this manner. Initially, the gemara considers keren
('shor' according to Shmuel) as more severe than shein ('mav'eh') since the
animal does not derive pleasure from keren.
Therefore, had the Torah written only keren, I would not have been able
to derive the LESS severe case of shein, since the latter presents the
extenuating circumstance of deriving pleasure - which seems to reduce liability. Immediately afterwards, the gemara
claims that shein, too, cannot serve as a model to derive keren. Had the Torah written the former, I
would have attributed its liability to the lack of intent to damage (kavana
lehazik). Keren, which is
characterized by this intent, would have been seen as LESS severe and less
likely to obligate payment. Of
course, these reversals are not the gemara's invention. The mishna introduced us to this
concept by reminding us that shor's itemization would not have secured mav'eh's
liability, nor would the enumeration of mav'eh have provided accurate knowledge
about shor. Having defined shor and
mav'eh according to Shmuel (keren and shein respectively), the gemara proceeds
to develop this condition of mutual independence.
It now becomes the task of the Rishonim to explain why shein and keren
are really seen as different.
Preventing or Predicting Damage
(3b s.v. Lo) suggest the following reading: Had the Torah specified keren, I
would have viewed its damage as a greater negligence, since it could have been
prevented - the animal is not acting to satisfy its desires. Shein, however, in which the animal
is compelled to eat and pursue other corporeal pleasures, is relatively
unstoppable. The owner is almost
considered an "o-nes" (Tosafot's language) and hence would not be liable. Said simply: the absence of pleasure
would have defined keren as greater negligence and more liable than shein. Listing the former does not imply the
Tosafot explain the second stage of the gemara in a similar fashion. Shein, for its part, might be seen as
greater negligence, since the animal is not being spurred by aggressive
tendencies. Being more preventable,
the owner is more negligent and ultimately more liable. Keren, however, is less preventable
since the animal is crazed by violent impulses and the owner is deemed less
negligent. We therefore might not
have derived keren from shein.
Tosafot's map to our gemara is quite clear. The owner's responsibility stems
directly from his negligence. In
addition, negligence is measured purely by the degree of "preventability." Either shein or keren can be viewed
as more preventable and consequently, a greater negligence on the part of the
owner. We would have adopted either
of these views depending of which form of nezek the Torah had listed first. To prevent either of these
exclusionary positions, the Torah listed both.
Although Tosafot's position exhibits a "tight" degree of cohesiveness, it
seems a bit too narrow. It would
appear somewhat 'fickle' to alternatively view lack of pleasure (keren) as more
preventable and then lack of aggression (shein) as more preventable. Do these two options differ
fundamentally or just in their assessment as to which situation is more
preventable? For the gemara to make
such a sudden turnabout regarding an issue which could easily be researched,
seems a bit too 'capricious.'
The Tosafot maintained negligence as the primary factor which generates
nizkei mammon. The gemara ponders
which form of nezek entails greatest negligence.
At no point, however, were alternate models of nizkei mammon liability
Negligence or the Damaging Act
contrast, the Ra'avad does see the gemara's deliberation as one regarding which
model of nizkei mammon liability we adopt.
What is the primary factor in establishing this debt? Does the state of negligence on its
own (with the ultimate act of damage) create a debt, or does the act of damage
itself (assuming no one is involved) generate that debt? (See shiur #6). According to the Ra'avad, this was
the gemara's deliberation. Had keren
been listed, we would have inferred a model centered around the act of damage. Keren would have been seen as a
prototype of this model, containing a deliberate and aggressive act of damage,
and just reason for establishing a debt.
Shein, however, would have been viewed as a more enigmatic "act" in which
the animal is not involved in a destructive act but is merely eating to satisfy
its basic needs. Provided only with
keren, we would have extrapolated a model of nizkei mammon which would have
naturally highlighted keren and excluded shein; we would have defined nezek as
stemming from a ma'aseh hezek, a vicious act of damage. This definition would have included
keren but excluded shein.
Conversely, had the Torah written shein, we would have viewed this as a
prototype of owner negligence since it could have easily been predicted. Keren, however, which occurs
infrequently (meshuneh) and is less predictable, would not have met the
"negligence criteria" and would not automatically have created a debt. According to the Ra'avad, therefore,
by exploring the non-extendibility of these two forms of nizkei mammon, the
gemara was really probing different models for establishing the primary factor
which generates nizkei mammon debts.
This question of which factor generates nizkei mammon - the negligence of
the situation, or the physical act of damage is a fundamental question and will
re-surface in future shiurim.
According to the Ra'avad, it was already voiced at this stage of the gemara. Quite possibly, the Torah - by
enumerating both keren and shein - was allowing for multiple and coexisting models.
Liability for Damages Committed by Servants and Minors
lines hence, the gemara's conversation addresses an owner's liability for his
slave's damages. The gemara attempts
to demonstrate that intent to damage (kavana lehazik) mitigates liability rather
than augmenting it. After all, an
owner is excused from paying for his servant's damages ostensibly because they
were performed with intent. To this,
the gemara responds that this exemption has little to do with the kavana lehazik
of the servants. Instead, it stems
from what appears to be a practical concern: obligating the owner would give
free license to a servant to implicate his owner.
Knowing that his owner will be forced to compensate his damages, the
servant may rampage in order to manipulate his owner. Unwilling to empower the servant and
hazard society, an owner was excused from this liability. At first glance, this exemption would
appear to be rabbinic in nature and external.
The basic laws of nizkei mammon do warrant owner liability; social
concerns and maintaining an owner's authority force halakha to allow an external
This reading - though grounded in the gemara's actual text - is
questionable from a logical standpoint.
This rationale is clearly stated by the mishna in Yadayim which serves as
the source of this halakha. How
might we explain the gemara's initial notion that the source for an owner's
exemption is the kavana of the servant?
In fact, the mishna in Yadayim is the only 'talmudic' source containing
the servant exemption. Evidently, by
invoking this source the gemara was familiar with the mishna. How, then, was it familiar with the
ruling but not with the underlying logic explicitly stated by that mishna?
Tosafot (s.v. Lav) pose this question.
In truth, Rashi seems to have been aware of this concern and responded by
locating an alternate source for the exemption which the gemara might have
recognized in its hava amina (original assumption). The maskana (conclusion) of the
gemara finally discovers the mishna in Yadayim, the genuine logic behind the
exception, and the consequent irrelevance to keren. Tosafot themselves respond that the
hava amina was merely looking for a general precedent for kavana lehazik as a
mitigating factor. It quoted Yadayim
with full knowledge of the rationale of the exception. Nevertheless, the hava amina sought
to invoke a precedent for kavana lehazik as an additional mitigating factor. The maskana rebutted this notion by
assuring us that the ONLY factor responsible for this exemption is the
empowerment of the servant to injure his master's financial interests. A more elaborate version of this
answer can be found in Rabbeinu Peretz's comments to Tosafot. Despite Tosafot's attempt to
reconcile the gemara's initial thoughts with the explicit mishna in Yadayim, we
are still uneasy about the gemara's hava amina.
An alternative approach might be built upon the Rambam's reading of this
gemara. In Hilkhot Geneiva (1:9) he
writes that a master is excused from paying for his servant's damages since the
latter "has a will of his own and therefore cannot be watched. The servant might, indeed, become
angry with his master and take revenge by wrecking property, just to force his
master to pay." The critical
addition of the Rambam is the factor of 'independent will' in establishing the
exemption. According to the Rambam,
the servant's independent will serves as the basis for what appears to be a
fundamental, and not merely technical, exclusion.
One might wonder whether the Rambam saw this law of eved (slave) as a
secondary "takana" (to protect the master's assets) of a more intrinsic clause:
One is not forced to pay for damages performed by possessions which act on their
threat of a rampaging servant merely illustrates the futility of obligating a
master for a free-minded slave's damages.
This view of the exemption of eved is not a novel addition of the Rambam. The very mishna in Yadayim which our
gemara quoted supplies this logic.
Interestingly enough, the gemara in Bava Kama chose not to cite this reasoning. The Rambam appears to have based the
exclusion upon this notion. An owner
is not responsible for payment of items which he cannot and does not have to
watch. The Torah only obligated him
to guard items which have no will of their own and hence CAN be guarded. Servants and children were never
included in an owner's obligation.
Based upon the Rambam's reading, we might suggest an alternative analysis
of our sugya. The gemara's initial
suggestion - to deduce from this mishna that kavana lehazik on the part of the
animal is a mitigating factor - might have been based upon this notion. If indeed, servants and minors acting
on their own volition lie beyond one's legal liabilities, can the same case be
made for an animal acting with a will of its own?
Indeed, damages of shein and regel – in which the animal acts
instinctively - are the owner's responsibility to protect against. What about an animal possessed with
some aggressive desire to damage?
Does this define the animal as "unwatchable" and not included within an owner's
responsibility? Might this have been the
gemara's initial comparison between kavana lehazik in the case of keren and
"yesh lahem da'at" (they have a will of their own) in the case of servants?
Of course the gemara ultimately rejects this inference and does not see
in the case of servants a precedent for excusing an owner from keren damages. Is this because the gemara retreats
from this fundamental understanding of the servant exemption, choosing instead
to define it as a rabbinic decree aimed at protecting the master and hence
irrelevant to the keren discussion?
Or does the gemara maintain its view of the servant exclusion as driven by a
fundamental limitation of owner liability to items without free will? Animals, however, acting upon
aggressive tendencies are not deemed as possessing their own will. The basic model remains even in the
gemara's conclusion (as the Rambam's position seems to indicate). What fails, however, is the
comparison to animals. A servant
acts with free will and lies beyond the bounds of owner liability. The same cannot be said about an
animal – even if it seems to act of its own volition.
Mekorot for Bava Kama shiur #8
3b – "Ve-khi ka'amar
Rav Papa a-toleda de-mav'eh… ke-mav'eh."
matmorohi"; 4a – "u-Shmuel mai ta'ama lo amar ke-Rav… hakha nami adam shemirat
gufo alav," Tosefot s.v. keivan.
Mishna, 26a; Gemara,
26b until "le-inyan nezikin chayav."
27b – "U-va acheir…
ba-afeila shanu"; Tosefot s.v. u-Shmuel.
Bava Metzia 82b –
"Tanu Rabbanan… yeshalem"; Ramban s.v. ve-ata.
Logically, does the
category of "adam ha-mazik" belong together with the other categories listed in
our mishna? Why or why not?
Rav and Shmuel argue
also as to whether or not keren constitutes one of the four avot nezikin
(general categories of damage liability).
Try to explain the conceptual underpinnings of this debate.
What is the dispute
between Tosefot and the Ramban in explaining the mishna's comment, "adam mu'ad
Do Tosefot and
Ramban argue with regard to the fundamental basis for liability in cases of
"adam ha-mazik"? Explain.