GEMARA BAVA KAMA 5771

Shiur #17: Liability for partial damage (10b)

Based on shiurim by Rav Moshe Taragin

The gemara attempts to locate additional scenarios of one who facilitates part-damage but is completely liable for payment of the entire damage.

PART I – FIVE GUARDS:

            The gemara suggests the following situation: If five people are appointed to guard an animal from being damaged (they are shomrim) and one person deserts his post, causing the animal to be damaged.  He has 'contributed to the damage,' but might be held responsible for the entire compensation.  To which the gemara responds that such a scenario does not fit the criteria of the mishna.  If the animal cannot be guarded properly unless he assists, then his desertion is tantamount to 'causing the entire damage.'  After all, if it takes five people to watch an animal and he leaves, his missing link causes the damage to occur.  Therefore, he should make full compensation and we do not require a mishna to inform us of this.  Conversely, if his supervision was not necessary to guard the animal and he left - 'ihu mai ka-avid' - what did he actually do?  The gemara's intention in asking this question is not entirely clear to the Rishonim. 

            Rashi, when addressing parallel cases of partial participation, explains that this person effectively made no contribution to the damage (since the remaining people could easily have watched the animal) and therefore should be completely exonerated.  Most Rishonim disagree with Rashi.  After all, all five agreed to watch the item.  Why should he be allowed to leave with impunity, without incurring any obligation?  Instead, they explain the gemara's question: 'What did he do' more than the others.  He should share the liability with the remaining watchmen, who also failed in their mission.  He should not be saddled with full liability, as this is disproportionate with his negligence.  We cannot, however, fully exempt him from payments merely because he was the first to leave.  The actual desertion imposes equal liability upon him. 

            Rashi's position, though textually supported, ('what did he do' implies that he should be completely exempted) raises certain logical concerns.  After all, as an equal shomer he has no moral right to leave.  Beyond the moral failure, his departure constitutes an abrogation of his shomer responsibilities, which should obligate partial payment.  How might we explain the logic behind Rashi's position?

ROSH

            The Rosh claims that Rashi's position can only be accepted if two conditions exist.  First of all, the remaining shomrim must undertake that THEY WILL REMAIN.  If the others announce their intention to desert, the first's disappearance is considered negligent.  However, if they affirm that they will continue guarding, he is not deserting his watch – he is merely transferring it to others.  According to some positions (Bava Metzia 36a), a shomer can fully transfer an item in his deposit to a different (capable) shomer never appointed by the original owner.  Certainly, then, he may 're-orient' the schedule of watching or the entire system under which the item is watched by the various people which the owner himself designated. 

The second condition relates to the type of arrangement originally specified by the owner.  If he specifically requested a five-part watch and clearly stipulated that they all guard in unison - none of them has the right to desert.  Indeed, in general one's shomer responsibilities entail assuring the safety of the item.  If one transfers this responsibility to others, one has fulfilled his obligation.  However, if the depositor made specific demands which one assented to, one cannot deviate. 

            To summarize: According to the Rosh, Rashi's position, completely excusing the deserter (if the others were capable of guarding without him), can be accepted only under the following conditions:

1) The others gave the impression that they would continue guarding.

2) The owner did not demand simultaneous watching from all five people. 

TALMID HA-ROSH VE-HARASHBA

The Talmid Ha-rosh Ve-harashba omits the first condition.  Even if the latter shomrim declare their intention to desert after the first person leaves, Rashi would hold that the first person to leave is excused from punishment.  This opinion highlights the inherent difficulty within Rashi's stance.  The Rosh attempted to moderate Rashi's claim.  Indeed, he is excused from payment only because the latter guards were expected to stay – based on their own undertakings.  According to the Talmid Ha-rosh Ve-harashba, however, his exemption stems solely from the capacity of the latter shomrim to watch.  Even if they declare their intent to leave, the first one out is exonerated.  What view of shomrim might support this claim?

We might better understand this 'extreme' version of Rashi by re-examining the terms of a shomer's responsibility to pay for damages caused by the item he guards.  After all, he does not own it, so why should he bear responsibility for its damages?  Shiur #6 discussed this issue and two possibilities were presented.  One option is that a shomer achieves a partial status as owner and must thus convey payments.  This notion is possibly reflected by the mishna (44b) which claims that a shomer 'nikhnas tachat ha-ba'alim' - takes the place of the owner to make nizkei mammon payments.  Alternatively, we suggested that even in the absence of a partial status of owner, a shomer might bear liability simply because he has the capacity to watch.  Nizkei mammon payments might devolve not necessarily upon an owner, but upon the one who had the ability and responsibility to watch, but failed to do so.  As such, the shomer liability stems not so much from his formal status as from the reality of his being able to watch.  This question might strongly influence our situation.  Can a shomer merely leave, assuming others, capable of watching and assigned to watch, are left behind?  If his role as shomer conferred quasi ownership status which obligates Bava Kama liability, he cannot evade or abdicate that status and the consequent responsibilities so easily.  If, however, the Bava Kama liability stems from his technical ability to watch, why should he not be able to change that reality?  If he leaves an animal without any supervision, he has failed in his obligation to watch and bears responsibility to the victim of his animal's damage.  If he left capable watchmen, he has not ignored his responsibilities and has simply created a condition in which it is no longer in his capacity to watch the animal.  He thereby exonerates himself of all responsibility. 

Said otherwise: the ease with which a shomer may leave might depend on what he has to terminate.  If he must terminate some official status, this might require some formal interaction with the depositor.  If, however, no formal status ever evolved, but rather he assumed responsibilities simply because he was the only one who could realistically watch, he might have an easier time changing that reality.  Rashi's position – in its unmoderated form – might best reflect the position that a shomer does not achieve any status which obligates nizkei mammon payments. 

PART II – FIVE ON A BENCH:

            After failing to associate the case of five shomrim with the mishna, the gemara opts for a different scenario.  If four people are sitting on a bench and a fifth comes to join them, thereby causing the bench to break, who is responsible?  Might this provide an instance of someone who contributes partially to damage but bears full responsibility?  To this the gemara offers the familiar response: If the bench would have broken without the final 'sitter,' why should he bear any responsibility?  On the other hand, if it would not have broken without him, then effectively he performs the entire damage and rightfully bears full liability.  Therefore, we cannot see this as a form of partial nezek which obligates full payment.  In its attempt to fit the case to the mishna, the gemara redefines the scenario: the mishna might be referring to a situation in which the bench would have broken in three hours without the final sitter.  His sitting merely accelerates the damage.  Even though he performs only partial damage (since the bench would have broken anyway - he merely accelerates the breakage), he must make full payments.  At this stage, the gemara rebuffs this claim - why can he not turn to the others and justify a sharing of liability by claiming that without their collective weight he alone would not have broken the bench? 

            Apparently, the gemara accepts this counter-claim which refuses to assign special guilt to the last sitter.  After all, their collective weight and their collective negligence precipitated the damage.  When the last person joined them they should have re-evaluated the time they could remain sitting before the bench would break; failure to re-evaluate seems to warrant equal liability.  The gemara appears to re-format the case: we are referring to a situation in which the last one stood in front of the others leaning on them and preventing them from standing.  In this case, he would bear full responsibility.  This is, indeed, the manner in which the Rif explains the gemara.  In the former case, in which he simply joins them, he does not bear any more liability than the rest.  The Rambam, however, seems to dispute this claim.  He rules according to the initial stance of the gemara: the last one alone is responsible, since he accelerated the pace of breakage.  How might we understand the Rambam's position; after all, their collective weight caused the damage and they should all be considered negligent. 

ADAM HA-MAZIK

            We might justify the Rambam's position by better understanding the nature of 'adam ha-mazik' - damages which a person himself commits.  How similar are these payments to nizkei mammon?  Do we see these liabilities as parallel to nizkei mammon?  Just like one must watch his animal, prevent it from doing damage and pay when he fails to do so, similarly, he must watch his own body and pay for the failure to do so.  Or do we maintain that adam ha-mazik entails a completely different model of liability?  Since he himself performed the damage, we might obligate him for the very act of destruction regardless of his negligence.  In the case of nizkei mammon, we cannot obligate him for the act itself since he did not commit the act.  We have to attribute payments to him because of his negligence.  In the case of adam ha-mazik, however, we might ignore the negligence and obligate payment based entirely on the performance of the act of hezek. 

            This question which determines the degree of similarity between adam ha-mazik and nizkei mammon, might have served as basis for Rav and Shmuel's dispute about 'mav'eh' in the mishna (daf 3b).  Shmuel felt that it refers to shein while Rav assumed it meant adam.  Rav might have been more willing to group adam ha-mazik alongside nizkei mammon recognizing similar patterns of liability.  Shmuel, by refusing entry to adam, might have been emphasizing the differences between adam ha-mazik and nizkei mammon. (See shiur #8). 

            An additional indicator of the potential difference between adam ha-mazik and nizkei mammon might be the mishna in BK 26a which obligates adam ha-mazik even in cases of unintentional or EVEN ACCIDENTAL damage.  Though the Rishonim dispute the degree of accident which obligates payment, one thing stands out – nizkei mammon payments are never offered if the owner was o-nes.  Yet adam ha-mazik renders payments for several cases of o-nes.  Does this suggest a different model for adam ha-mazik?  Could this suggest that his obligations stem from the ACT itself and not from his liability?

            This view of adam ha-mazik might have influenced the Rambam's position.  Though all the sitters might be equally negligent, only one is actively performing an act of damage - the last person by sitting and accelerating the breakage.  Though the former sitters are all negligent, they are passive their negligence consists in not rising when they are joined by the last one.  Can we obligate adam ha-mazik in cases where the person is totally passive?  If adam hamzik is indeed a new model of liability – an obligation stemming not from negligence but from the act of damage – this category would exhibit certain stringencies and certain leniencies.  On the one hand, even an o-nes would be obligated, since he committed the act of destruction.  Alternatively, a 'passive' damager would not bear liability since he performed no act.  Hence the Rambam might have ruled that only the last person must pay, since he was the only one to perform an act of damage.  Though the others are equally responsible, their passivity deems them incompatible addresses for adam ha-mazik payments. 

            If our assessment is true, then the capacity to obligate the accelerator and not the former participants is limited to adam ha-mazik.  Because of the unique dimensions of adam ha-mazik, we obligate only the active performer and not the previous contributors.  See the Rabbenu Tam, who attempts to extend this clause to other forms of mazik (namely eish).  Ostensibly, he understood the possibility of obligating the final person in a different manner - one which would not limit its application to adam ha-mazik. 

Mekorot for next week's shiur

Note – We will skip to the gemara on 15a which begins a discussion about 'keren.'  The intervening sugyot discuss issues which are only marginally related to Bava Kama.

BK 15a "Itmar palga … mishna (15b).

Rashi s.v. Lav.

Tosafot (5b) s.v. She-kein, (2b); s.v. Aval kaimi.

Shittat Ha-kadmonim BK 15a s.v. Stam.

Shitta Mekubetzet (15a) in the name of R. Yisrael.

Tosafot Ha-rosh Ketubot (41a) s.v. 

Tosafot (15b) s.v. Ve-hashta.

Tosafot (15b) s.v. Ve-i; Rosh 1:20; Ra'avad s.v. 

Questions:

1) How might we explain the machloket between palga nizka kenasa and palga nizka mamona?

2) According to the position which claims palga nizka mamona – is keren just as predictable and regular as shein?

3) Why should the Torah reduce payment according to the position which holds palga nizka mamona?

4) How might we justify the ability to 'grab' payment for keren damages in 'Bavel,' even though beit din cannot officially process these cases?