SHIUR #22: Kishkush and Delil

By Rabbi Moshe Taragin

The gemara on 19b investigates the payments of an animal which swings a body part (either its tail or its amma (organ) and causes damage. Would such payments apply in reshut ha-rabim? Ostensibly the gemara is questioning whether we define this case as regel (patur in reshut ha-rabim) or keren (chayav in reshut ha-rabim). The Rishonim differ as to the possible reasons why we might question the definition of kishkush (swinging).

Addressing the question of swinging a tail, Rashi (s.v. kishkesha) claims that the gemara questioned the 'urchei' level of this act. Is it considered usual (regel) or abnormal (keren)? The dispute revolves around a technical question - how common is it for an animal to swing its body parts. Though Rashi only comments upon the machloket regarding swinging a tail, we might assume that a similar issue - assessing the frequency - is at stake when the gemara considers the swinging of the amma. From the Rambam's formulation, a different picture emerges. The Rambam groups the cases of swinging a tail and swinging an amma in the same halakha and presents them as the same uncertainty - are they keren or regel? Ostensibly the statistical frequency of each is different and hence they cannot be collapsed into one singular question. Apparently the Rambam felt that the gemara was inquiring about a different issue. The statistical level of these events is not being investigated but is taken as a given in each case respectively. What is being explored is the formal definition of these forms of damages. The Rambam does not specify the terms of this inquiry and we may only suggest the issue that the gemara was speculating about.

One idea would be to ascribe the gemara's question to the unique nature or root of these actions. Unlike standard regel forms of damage, these actions entail some ACTIVE force - a force which does not occur as a natural byproduct of walking. Standard regel might be defined not just as ordinary routine nezek which is not motivated by intent (kavana le-hazik - keren) or by desire (hana'a - shein). Regel might be types of damages which occur absolutely PASSIVELY as a normal consequence of the animal's natural walking. When the animal swings its tail with extra velocity (what the gemara calls kishkush yeteira) or swings its amma, we might not be able to define such acts as regel since they are actively initiated by the animal. Our inability to define these acts as regel might compel us to designate them as keren. The gemara might have been questioning the category of regel and whether actively initiated acts can be considered regel or default to keren.

Another option is presented by the Rishonim but only to explain the gemara's question regarding the swinging of an animal's amma. In truth this issue seems to be the factor which the actual text of the gemara presents: This nezek might resemble keren since the animal's desires dominate its actions; alternatively it differs from keren since the animal has no intent to damage. This suggests that the gemara is actually probing this nezek's compatibility with KEREN. It might be subsumed under keren since the damage occurs through the animal's being overwhelmed by its yetzer (desires) - (unlike shein, these are not basic instincts necessary to sustain life). Alternatively the absence of intent to damage might prevent categorization as keren and force a designation of regel. The gemara might have been assessing the significance of kavana le-hazik in determining the status of keren. In other words, can a damage be considered keren when the animal acts without malignant intent?

These two approaches to the gemara's question(s) assume one very interesting concept - what might be called the logical contiguity of mazikim. Do we view the avot nezikin as 'contiguous' - where one category ends the other necessarily begins? Can we justify designation as regel simply because a model does not meet the standards of keren? Conversely may we define as keren that which does not accord with regel? Or must we positively define each nezek on its own terms allowing for 'blank spaces' for those types of mazikim which do not meet any standards? Our explanations assumed the former stance. If something cannot be considered regel - since the damage was initiated - it must necessarily be keren.

II Ve-khi Yochazena Be-zenava Ve-yeilekh

Initially the gemara assumes the kishkush issue to be referring to normal swinging of an animal's tail. The gemara replies that this form is unquestionably exempt from payment since 'Ve-khi Yochazena Be-zenava Ve-yeilekh' - should a person be forced to hold his animal's tail while walking in reshut ha-rabim? Assuming this is an impossible option (and hence we cannot consider an obligation to pay for normal tail swinging), the gemara adjusts its question to excessive swinging. What is the logic driving the gemara's exemption based upon Ve-khi Yochazena Be-zenava? The Shitta Mekubezet cites (in the name of the Rosh) that this case is considered an 'o-nes' - a person cannot be forced to hold his animal's tail in reshut ha-rabim. Such an extreme formulation is problematic on two fronts:

1) Do we really consider a person who fails to hold his animal's tail an o-nes? Indeed it is difficult and even embarrassing to walk while hanging on to your animal's tail. But failure to do so cannot be defined as o-nes.

2) If indeed we define this person as o-nes, why should we obligate keren to make payments in reshut ha-rabim? Should we not apply the same standards to the owner of keren and exclude him by claiming 'what should he have done he is an o-nes?!' In fact we might adopt this view and choose to obligate keren tam purely as a kenas (according to the opinion that palga nizka kenasa). Would we be comfortable obligating an o-nes to pay?

We might accept the Rosh's concept with a slight moderation to his formulation. Instead of referring to the individual as o-nes, we might claim that his level of peshi'a is not sufficient to justify payment. Since these damages occur with such great frequency, inability to prevent does not entail gross negligence and no culpability is realized.

The Rashba offers a different view. Not holding your animal's tail in reshut ha-rabim cannot be considered an o-nes. An o-nes is defined as the unavoidable and clearly to prevent tail damages in reshut ha-rabim, the owner could have stayed at home. Alternatively we might excuse the owner simply because it is illogical to demand that either people stay at home or hold their animal's tails in reshut ha-rabim. Bava Kama forces us to strike certain compromises to allow for the regular flow of traffic and commerce through the public areas. Indeed the owner of the animal could have prevented tail swinging damages either by staying at home or by holding his animal's tail. Either option though, is far too drastic and we therefore excuse him from damages resulting from this swinging. In the case of keren tam damages, since they occur so infrequently, we can legislate harsh measures without affecting people's daily lives. We can install partial payment even for the acts that are difficult to prevent, simply to encourage the owner to remove an animal which has already shown predilection towards damaging.

The Nachalat Dovid offers a third view of this exemption. Being that it is difficult to prevent tail swinging (or any other form of urchei damage) the nizak (subject of damage) should have anticipated the hazard and protected or removed his items from the public thoroughfare. Failure to do so defines him as poshei'a; his negligence diminishes the culpability of the owner. Though the Nachalat Dovid does not explain the obligation of keren tam, we might suggest that as these acts are infrequent, the nizak displays no negligence by failing to protect his items from keren tam forms of damage.

This phrase 've-khi yochazena be-zenava ve-yeilekh' seems to be the basis for exempting regel and shein payments in reshut ha-rabim. Its meaning will be vital in explaining the nature of the exemption and ultimately the scope of this application. These issues will be examined Iy"H in next week's shiur and we will return to this phrase.

III. Delil

The gemara presents a very complicated discussion surrounding a string (or any other item) which becomes entangled in the legs of an animal and is used to damage. Though the gemara addresses several different scenarios, we will limit our discussion to two central issues which arise from the gemara's discussion.

First the gemara considers liability for an owned string which is thrown. According to Rashi the gemara suggests that if a person ties a string on to a chicken which subsequently throws the string, he cannot be liable to pay. Only the owner of the chicken would make payments akin to tzerorot; the person tying the string, however, is excused. Tosafot wonder about this exemption especially in light of the category of eish. If someone left his weight on a roof and a natural wind blew the weight and damaged something, the owner of the weight is obligated to pay as a tolada of eish. Why should tying your string onto a chicken be different from allowing your weight to be carried by a wind. Tosafot argue with Rashi and suggest a similar eish-based obligation for the owner of the string.

One obvious distinction might be between a wind that carries a weight and a chicken that throws a string. The model of eish is very unique in that a different force acted upon the mazik and yet the 'owner' of the fire pays. Ultimately (as we will Iy"h discuss in a few weeks), we can cast the natural wind as an agent of the person lighting the fire and obligate him to pay. Can we make the same designation regarding a chicken who throws my string. Can we see it as a force that merely assists my damage? Or do we visualize it as the chicken's damage? We might not be able to apply the eish model when the 'wind' carrying the 'eish' is an animate object.

Though logically this idea seems plausible the sugya in BK 23 suggests otherwise. The gemara assumes liability for someone who negligently leaves his fire unattended while a dog transports it to another location. The gemara seems willing to cast a dog in the role of wind and manufacture an eish obligation. Apparently Rashi would have to furnish a different answer to Tosafot's question.

The Nachalat Dovid provides an alternative approach. Rashi might distinguish between strings and weights or fires. A fire or a weight is an item inherently capable of damaging. By leaving it unattended, a person is negligent with a damaging force. Ultimately the wind or an animal must provide transportation to the scene of the crime, but the damage was created by the owner himself. A string however does not possess the damaging capability. It can act as a carrier for the force applied by the chicken but cannot be considered an independent mazik. Leaving it alone, does not entail the creation of eish ha-mazik.

Ultimately the gemara considers an UN-OWNED string which a person tied onto the legs of a chicken. When the chicken subsequently walks with the string and changes its location. Thus causing someone to trip over it in its new location, the person who tied the string should be liable. Rashi assumes that he is obligated to pay based on the mazik of bor. The gemara itself suggests this approach when it likens the obligation to 'bor ha-mitgalgel' (a bor which rolls through the reshut ha-rabim - being moved to a different location other than the one in which you placed it). Even though you placed the bor on the legs of the chicken, when it is kicked to a different place, you still retain responsibility. The problem with Rashi's position is that a bor liability would extend only to people, but not to damaged keilim (since bor is exempt from payments resulting from the damage of utensils).

By contrast, the Rambam describes a case where the delil causes damage while being moved by the animal and therefore groups this case within the laws of regel (as the gemara does by citing this scenario within the regel discussion). The difficulty facing the Rambam is in obligating someone who does not OWN the animal for regel payments. Several commentators suggest the following. The gemara (BK 56b) discusses a case of someone who pushes another's animal to eat some food. Though he never takes possession of the animal, he is obligated to pay the resulting shein damages. It appears from Tosafot that a new form of culpability exists for those who do not own the item that damaged, but help create the circumstances of its damage. Rav Moshe Soloveitchik referred to this track as 'yetzirat ha-mazik' - someone who creates a mazik, even if he does not own it. Might we be witnessing another example of culpability arising from someone who was involved in the act of yetzirat ha-mazik? Had I not tied the string onto the animal it could not have 'reached' the damaged item - the natural legs of the animal would not have extended sufficiently. By augmenting the size of the animal's leg I am 'creating' regel. Though I do not own the animal, I might be obligated to pay its regel damages since I CREATED the extended regel.

Mekorot for next week's shiur:

The exemption for shein in Reshut ha-rabim:

1) Mishna (19b)...de-aspasta (20a)

BK 21a 'amar rav u-vemechazeret..zavit'

Rosh 1:1 've-shein ve-regel...tamid'

2) Rashba (20a)s.v. ki-de'amar

Milchamot Hashem Le-Ramban (8a in the Rif's pages)...beinaiyhu

Rosh 2:4

3) Tosafot (20a) s.v. mitgalgel

Ra'avad s.v. mitgalgel mahu

BK (23a) mahn chayav...le-hana'ata

Tosafot (23a)...le-tokh pihah

1) Why should an animal be obligated to pay if he stretched his neck?

2) Why does Rav Oshiya require jumping on top of the other animal?

3) How might we explain the machloket between Rav and Shmuel regarding the tzidey rechava?

4) How does Rashi's explanation of the gemara's question regarding mitgalgel differ from the Ra'avad's first approach?