GEMARA BAVA KAMA 5771

Shiur #8: The Classification of "Adam Ha-mazik"

By Rav Yair Kahn

Translated by David Silverberg

1.  Rav and Shmuel

The Gemara records a debate between Rav and Shmuel as to the definition of the four avot nezikin (categories of damage liability) listed in the mishna.  Shmuel identifies "mav'eh" as shein (damage caused by an animal eating), whereas Rav interprets it as a reference to adam (damage caused by the person himself, rather than by his property).  The Gemara (3b) first addresses the linguistic issue concerning the word "mav'eh":

"Rav says that 'mav'eh' refers to adam, as it is written, 'The watchman said: Morning came, and so did night.  If you wish to ask, then ask' ('im tiv'ayun be'ayu' - a phrase related to the word 'mav'eh,' and which refers here to human activity).  And Shmuel says that 'mav'eh' refers to shein, as it is written, 'How thoroughly rifled is Esav; his hoards are emptied' ('niv'u matzpunav' - 'mav'eh' thus means devouring)... Why did Rav not say as Shmuel did?  He would say to you: Does it say [in the mishna], 'niv'eh' [in the passive form, which would refer to produce that was consumed]?  And why did Shmuel not say as Rav did?  He would say to you: Does the mishna say 'bo'eh' [in the active form, which would refer to a person causing damage]?"

But the Gemara does not end its discussion with this explanation of the two sides of the argument.  After all, "mav'eh" is an ambiguous word that may be interpreted to mean either shein or adam: "Given that the verses indicate neither Rav['s view] nor Shmuel['s view], why did Rav not say as Shmuel did, and why did Shmuel not say as Rav did?"  The Gemara therefore touches upon the more fundamental issues at hand in this debate, and in this shiur we will focus our attention on the fundamental points that arise from this argument between Rav and Shmuel.

2. The Term "Shor" in the Mishna, and Its Significance

The first fundamental point involves not adam ha-mazik, but rather shor ha-mazik - damage caused by an ox.  According to Shmuel, who understands "mav'eh" as a reference to shein, the category of "shor" includes only regel damages, whereas in Rav's view, "shor" includes all damages caused by an ox.  These two positions concerning the category of "shor" reflect two different perspectives on shor ha-mazik in general.  According to Shmuel, shein and regel clearly signify two distinct avot nezikin, despite the fact that the Torah introduces them both in the same verse (Shemot 22:4) and they appear to have the same halakhic status.  Indeed, Tosefot (17a s.v. keitzad) raise some question concerning this absolute separation between shein and regel, and write in the name of the Ri, "shein and regel are considered as one because they are identical in terms of their halakhot and are extracted from the same verse."

            Rav, on the other hand, not only classifies shein and regel together in the same av, but also includes keren in that same category.  This combination appears somewhat awkward, given that shein and regel are presented in the same verse, while the Torah addresses keren in a different context.  Moreover, the laws of shein and regel differ significantly from those of keren.  Why, then, did Rav insist on combining all three together into a single av?  Rav apparently felt that all instances of an ox's damage comprise one av, and the halakhic differences between them stem from external, ancillary factors.  If the animal causes damage as it conducts itself in an expectable fashion, its owner must pay nezek shalem - full compensation; if the damage results from unusual behavior on the part of the animal, the owner pays only chatzi nezek - partial compensation.  We would approach the exemption from liability for shein and regel damages in a public domain in a similar vein.  This indeed appears to emerge from the Rambam's formulation (Hilkhot Nizkei Mamon 1:1-2):

"Any live animal in a person's possession that caused damage - the owner is required to pay, since his property caused damage, as it says, 'When a man's ox injures his neighbor's ox...' This applies both to oxen and to other animals, beasts and birds; the verse speaks of an ox only because it is common.  How much does he pay?  If it caused damage through actions it normally performs at all times, as is common for its species, such as an animal that ate straw or sheaves, or if it caused damage with its leg as it walked normally, he [the owner] must pay full compensation from his highest quality property, as it says, 'he must pay [from] the choicest of his field and the choicest of his vineyard.'  But if it deviated and performed actions that it does not normally perform at all times, and thereby caused damage, such as an ox that gored or bit, he must pay half compensation from the carcass of the damaging animal itself, as it says, 'they shall sell the live ox and split its money' etc."

3. "Adam Mu'ad Le-olam"

I would like to focus, however, on a different point of contention between Rav and Shmuel. The Gemara (4a) asserts that Shmuel did not accept Rav's definition of "mav'eh" as adam because adam is mentioned in a later mishna (15b), and there is no reason why two mishnayot would list the same category of nezek.  But why, the Gemara then asks, did our mishna, according to Rav, omit adam from its list of the basic categories of nezikin?  The Gemara responds, "It deals with damages caused by property; it does not deal with damage caused by one's body."  Meaning, Shmuel maintains that adam ha-mazik does not belong in the list of nezikin presented in our mishna, because our mishna deals strictly with damages caused by a person's property, such as his animal, fire or pit.  Moreover, the Torah's discussions of damages caused by one's property appear in Parashat Mishpatim (Shemot 21-22), whereas the halakha of adam ha-mazik is presented much later, in Parashat Emor (Vayikra 24:18 - "One who kills an animal shall make restitution for it").  Indeed, Rav's view, that adam ha-mazik has its place among the other categories of nezikin, requires elucidation.

In order to explain Rav's position, we must first analyze the halakha of "adam mu'ad le-olam," which holds a person liable for all damages he directly causes, even without intent and even in cases of oness - circumstances beyond his control.  This halakha is introduced in the mishna (26a), and, as explained in the Gemara (26b), stems from verse, "petza tachat patza" ("a wound for a wound" - Shemot 21:24).  The Gemara writes that from this verse we learn that one bears liability "for unintentional [damage] just as for intentional [damage], and for [damages caused in cases of] oness just as for [cases involving] willful [actions that cause damage]."  The Ramban (Bava Metzia 82b) takes this passage at face value, to mean that a person bears liability for all damages he physically causes, regardless of the circumstances, even if he caused damage due to circumstances entirely beyond his control.  He notes that Chazal gave examples such as a stone unknowingly situated in one's lap that falls and causes damages when he stands (Bava Kama 26b), and a person who causes damage when an unusually strong gust of wind blows him off a roof (Bava Kama 27a).  If the Gemara mentions these cases as instances of oness where the individual bears liability, then "they mentioned all possible cases of oness; for 'an unusually strong wind' appears to include even wind such as Eliyahu's... which is among the most extreme cases of oness in the world..."

            This view of the Ramban runs counter to the position taken by Tosefot, who exempt a person who causes damage in cases of oness.  When it comes to shomrim (people entrusted with the property of others), we find different gradations of liability.  A shomer chinam, who agrees to watch an item without pay, is liable only in cases of peshi'a (negligence).  A watchman hired for pay, bears liability even for theft and loss, and a borrower who does not pay for using the item is liable even for cases of oness.  According to Tosefot, an adam ha-mazik is liable for oness only if the oness resembles a situation of aveida (losing the object), where he is partially to blame for the loss.  However, in cases of an oness resembling theft, not to mention instances of "oness gamur," where the circumstances were entirely out of the individual's control, he bears no liability.  Tosefot write (Bava Kama 27b s.v. u-Shmuel):

"And even though earlier we [the Gemara] derive from 'petza tachat patza' that [a case of] oness is like a willful act with respect to adam ha-mazik, the Torah did not include 'oness gamur'... It would seem that we should deduce that an adam ha-mazik is exempt in cases of oness resembling theft... But in cases of oness resembling aveida, which is closer to negligence... it would seem that an adam ha-mazik bears liability."

            It stands to reason that the Ramban and Tosefot argue as to the fundamental basis of a person's liability when he personally causes damage.  According to the Ramban, who holds a person liable even for damage caused due to circumstances entirely out of his control, clearly this liability does not stem from any degree of guilt or negligence on the individual's part.  Rather, the very fact that he directly caused his fellow financial loss obligates him to pay compensation.  Tosefot, by contrast, do not hold an adam ha-mazik liable unless the incident involves a certain degree of negligence on his part, even though in determining negligence we are stricter with regard to an adam ha-mazik than regarding damages caused by one's property.

            It turns out, then, that according to Tosefot, liability in cases of adam ha-mazik resembles liability in cases of nizkei mamon (damage caused by property), in that both hinge on a degree of negligence.  When it comes to adam ha-mazik, we hold a person liable even with a small degree of negligence, whereas with regard to damage caused by his property, his liability requires a relatively higher level of negligence, that the owner did not act to prevent a foreseeable act of damage.  The Ramban, however, sees adam ha-mazik and nizkei mamon as two fundamentally different categories of nezikin.  Liability for nizkei mamon is built upon a degree of negligence on the owner's part, whereas someone who personally causes damage must pay because he bears full responsibility for all his actions, regardless of his innocence or guilt, and must compensate for any damages he causes.

            Let us now return to the debate between Rav and Shmuel.  Clearly, the Ramban's approach suits Shmuel's position, that the category of adam ha-mazik has no place in our mishna, which deals with nizkei mamon.  According to Tosefot's understanding, however, adam ha-mazik and nizkei mamon share a common denominator which quite conceivably warrants their joint inclusion in our mishna.  And in this light we should understand the Gemara's discussion later concerning the phrase in the mishna, "u-shmiratan alekha" - that the four avot nezikin share the quality that "you are responsible to watch them."  As the Gemara notes, this phrase clearly refers only to a person's property, and not to himself.  And yet, the mishna mentions this as a characteristic shared by all the avot nezikin.  How, then, can Rav identify "mav'eh" as adam ha-mazik?  The Gemara answers that according to Rav, "adam shemirat gufo alav" - a person is responsible to watch after his body and ensure that it causes no damage to other people's property.  Thus, according to Rav, just as one bears responsibility to guard against damage caused by his property, so must he guard against damage caused by his own self.  Adam ha-mazik thus strongly resembles nizkei mamon, as both these categories of liability stem from a person's responsibility to guard against damage, even if he bears a higher level of responsibility with respect to damage he causes directly.  In both categories, the obligation to compensate stems from the person's failure to adequately protect against damage caused by either his property or his self.

Mekorot for Bava Kama shiur #9

This shiur will cover several issues which arise in the gemara 4a - 4b.

1) Gemara BK - (4b) "Hezeika de-memeila

2) Does a murderer pay 'kofer?'

a) BK (26a) "Ve-yehei adam ... ve-lo al ha'adam;" Rashi.

b) Tosafot BK (4a) s.v. Kara'i, Rabbenu Peretz on this Tosafot.

3) Definition of a 'sokher.'

a) Bava Metzia (93a) Mishna, gemara ... dineihem shlosha.

b) Rashi - commentary to the Torah Shemot 22:14.

c) Ra'avad BK s.v. Hinachti.

Is a sokher more similar to a sho'el or a shomer sakhar?

See also Rambam Hilkhot She'eila U-pikadon (1:8-9).

Does Rav Hosheia's classification scheme affect our view of sokher?  See Tosafot BK 4b s.v. Shlosha asar.

4) Definition of shomrim according to Rav Hosheia:

Is there any link between nizkei mammon payments and shomer?

a) Rambam Hilkhot Sekhirut (2:3).

b) Tosafot Rabbenu Peretz Bava Kama (86a) s.v. Ve-rava, "Ve-ta'ama ... mazik."