GEMARA BAVA KAMA 5771
Shiur #17: Liability for partial damage (10b)
Based on shiurim by Rav Moshe Taragin
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
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.
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
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
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.
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.
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
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.
Shittat Ha-kadmonim BK 15a s.v. Stam.
Shitta Mekubetzet (15a) in the name of R.
Tosafot Ha-rosh Ketubot (41a) s.v.
Tosafot (15b) s.v. Ve-hashta.
Tosafot (15b) s.v. Ve-i; Rosh 1:20;
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?