GEMARA BAVA KAMA 5771

SHIUR #7: Bava Kama 3b-4a

Based on shiurim by Rav Moshe Taragin

1) An initial comparison between keren and shein

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.

What 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

Tosafot (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 latter.

            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 considered. 

Negligence or the Damaging Act

By 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. 

II.         Liability for Damages Committed by Servants and Minors

A few 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 exception. 

            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 own volition.

The 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

Sources:

1.    3b – "Ve-khi ka'amar Rav Papa a-toleda de-mav'eh… ke-mav'eh."

2.    "Mai mav'eh… matmorohi"; 4a – "u-Shmuel mai ta'ama lo amar ke-Rav… hakha nami adam shemirat gufo alav," Tosefot s.v. keivan.

3.    Mishna, 26a; Gemara, 26b until "le-inyan nezikin chayav."

4.    27b – "U-va acheir… ba-afeila shanu"; Tosefot s.v. u-Shmuel.

5.    Bava Metzia 82b – "Tanu Rabbanan… yeshalem"; Ramban s.v. ve-ata.

Questions:

1.    Logically, does the category of "adam ha-mazik" belong together with the other categories listed in our mishna?  Why or why not?

2.    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.

3.    What is the dispute between Tosefot and the Ramban in explaining the mishna's comment, "adam mu'ad le-olam"?

4.    Do Tosefot and Ramban argue with regard to the fundamental basis for liability in cases of "adam ha-mazik"?  Explain.