GEMARA BAVA KAMA 5771
Shiur #24: The Exemption From Shein in Reshut Ha-rabim
week's shiur addressed the nature of the exemption from shein payments in
Should it be viewed as formal in nature - by writing 'bisdei acher' the
Torah excludes the public domain from these payments - or might we adopt the
Rif's opinion, which perceives the exemption as a 'logical' rule. Since damages of shein and
regel are urchei (standard behavior) when performed in reshut
ha-rabim, the owner cannot be held liable.
We examined these differing perspectives through the prism of several
intriguing cases of shein: an animal which eats from another's back, one
who jumps upon another animal and eats, and finally, an animal which consumes
food from a storefront which juts out into reshut ha-rabim. This week's shiur will I"H extend the
discussion into several additional scenarios, which might confirm our previously
established notions of the exemption as well as introduce new formulations.
discussing the machloket between Rav and Shmuel regarding a protruding
storefront, the gemara (21a) presents the situation of mekatzeh makom. Though the Rishonim differ as to the
exact nature of this area, a generalized picture emerges: the gemara addresses
an area which is legally part of a PRIVATE DOMAIN but through which pedestrians
are allowed to pass. Rav applies the
shein exemption while Shmuel maintains liability for these damages. Our instincts support Shmuel's
contention - if this area is legally defined as reshut ha-nizak,
why should payments be exempted? After posing an initial suggestion the gemara
offers a more attractive explanation for Rav's stance: the mazik can
complain to the nizak, "Who gave you license to position your fruits so
close to reshut ha-rabim?"
Even though the nizak placed his fruits in his own domain, since
he invited/allowed pedestrian crossing through that area he was in effect
'inviting' the damage upon himself.
In as much as the owner of the animal pays because of his negligence in watching
his animal, he is excused from payments if the damages were precipitated by the
nizak's negligence. Said
otherwise, the 'peshiyat ha-nizak' could potentially absolve the
mazik of payments. Even
though the fruits were formally stationed in the reshut ha-nizak,
the blame is assigned to the nizak, since the fruits were easily
accessible to animals walking in reshut ha-rabim, legally passing
into his reshut. By
presenting this situation, the gemara might be developing a new concept - the
exemption of the mazik for shein damages in reshut
ha-rabim is based upon the nizak's own negligence in leaving his
fruits unattended and susceptible to damage.
This rule is highlighted by providing a situation in which shein
is exempted EVEN though the fruits are lodged in what is formally defined as a
reshut ha-nizak. Since
pedestrians are expected, the nizak erred in leaving his fruits
nizak factor - gauging his level of negligence - might underlie a different
sugya regarding shein in reshut ha-rabim. In last week's shiur we introduced
the case of mitgalgel and the gemara's (20a) uncertainty about applying
the reshut ha-rabim exemption.
The Rishonim differ as to the
conditions of mitgalgel (literally, rolling). The Ra'avad suggests that the gemara
questions fruits which lie in reshut ha-nizak but can be eaten by
an animal which is standing in reshut ha-rabim (or possibly vice
versa). Thus, according to the
Raavad, the gemara's question is whether we determine payments based upon the
location of the fruit or the location of the animal. This reading of the gemara seems very
difficult. Why should we place such
significance upon the location of the fruit?
If the entire eating process occurs in a reshut ha-rabim,
why should the initial location of the fruit in reshut ha-nizak
dictate liability? We might explain
this approach based upon the aforementioned 'nizak-based' understanding
of the reshut ha-rabim exemption.
If the ONLY reason that we exempt this payment is because the nizak
was negligent in leaving his fruits unattended, we might not excuse payments if
the nizak were not negligent, even though the actual damages occurred in
Reshut ha-rabim damages per se do not provide basis for exemption. Rather, most cases of damages within
reshut ha-rabim entail some degree of negligence of the nizak
(for leaving his fruits in a public thoroughfare). In this unique case - where he placed
his fruits safely in his own property (and did not invite the public to trespass
as he did in the case of mekatzeh makom - the case addressed earlier) he
might exhibit absolutely no negligence.
In the absence of his negligence, we cannot excuse the mazik from
payments - EVEN if the actual damage occurred in the reshut ha-rabim.
so far demonstrated three different views of the shein and regel
exemption in reshut ha-rabim.
The Rosh claimed that it was a purely formal issue, based upon the verse
'ubi'eir bisdei acher.'
The Rif asserted that since these damages are perfectly routine, we
cannot obligate the owner to pay - "should we demand that he walk in reshut
ha-rabim grasping the tail of his animal?" (BK 19b). Based on the gemara 21b we posed a
third option - a person who leaves his fruit in a public area unattended is the
truly negligent party and cancels any liability of the mazik.
A possible fourth option arises from a gemara in the sixth perek
regarding the manner of appraising the compensation. If an animal ate attached fruit from
a field, should its owner compensate the value of the fruit, or the loss which
the field absorbed? A bushel of
fruit when sold alone is worth more than its value relative to the overall
field. Which strategy should be
employed to assess the damages? The
mishna (55b) cites the majority opinion that the value is assessed based upon
the overall field. The ensuing
gemara cites the following source in support: "Ubi'eir bisdei acher"
(he will consume another's field) comes to teach us that we evaluate based upon
the overall field. We might reason
that this assessment strategy is not merely a peripheral issue but rather
reflects a broader concept. What do
we identify as the 'damaged item' the fruit or the field? Assessing the diminished value of the
field might indicate that we view this animal as having damaged the field by
eating its fruit.
Keep in mind that this gemara refers to ATTACHED FRUIT - a situation in
which the animal might truly be attacking the field by eating the fruit. In different circumstances - for
example, eating detached fruit gathered in the nizak's field or damaging
items which were never attached - we might not visualize the attack as one
against the field. Alternatively, we
might claim that all shein and regel is an attack on the 'field.' Animals are not expected to roam into
private property, but to remain within the public domain; by violating this rule
and invading my privacy the animal pays for that very invasion. Of course, if no damage to any item
occurs no liability exists, for the invasion was harmless. If, however, some form of damage
ensued, we might obligate full payment since the field or domain has been
invaded in a harmful manner.
This question might revolve around a grammatical issue - how to read the
letter 'bet' within the word bisdei.
This letter could connote 'in another field,' indicating the LOCATION of
the damage. Alternatively, it might
connote upon, or 'a,' in which case it identifies the field as the object of the
attack. For example, the talmudic
term 'me'ila b'hekdesh' (which also applies the introductory bet)
suggests abuse 'of' hekdesh, not abuse within the location of hekdesh. It is possible to view the actual
private field as the object of the damage and the particular item which was
consumed as merely the manner by which this invasion becomes abusive.
If we adopt this broader perspective, we understandably redefine the
nature of the reshut ha-rabim exemption. As the liability exists for invading
a field - if the damage of the same specific item occurred without any invasion
of the private realm, no liability exists.
This might help us better understand several specific applications of the
reshut ha-rabim exemption.
For example, consider the manner in which Rashi explains the mitgalgel
case: the fruits were positioned in reshut ha-nizak and the animal
seized the fruit and transferred them to a reshut ha-rabim in
which he ate them; do we assess the location of the seizure or the actual
eating. Intuitively we would
certainly side with the latter approach.
Since the animal ultimately pays for the consumption and destruction of
the item, we would be inclined to study the location of the eating. Why should we attribute meaning to
the area in which the seizure occurred?
However, shein and regel pay for the harmful invasion of a
field - the actual appropriation of the item and detachment from the field looms
larger than the subsequent consumption.
The actual seizure constitutes the attack of the field - once it has been
removed, the subsequent consumption is of little consequence to the actual
field. It would therefore be logical
to assess the location of the 'lekicha,' or seizure. See also Tosafot in his commentary to
the gemara 23a s.v. Tifshot, regarding the significance of lekicha.
Questions for Next Week's Shiur:
BK (19b) mishna
ve-kama... minei (21a)
s.v. zeh ein
Rif (8b in the pages
of the Rif) ve-im ...(9a) mammona
s.v. ha ithanit
1) What generates
the obligation known as Ma She-neheneit?
2) How could we
exempt zeh neheneh ve-zeh lo chasser while also exempting ze lo
neheneh ve-zeh chasser?
3) How much
liability exists if minor loss allowed significant benefit?
4) If the resident
supplied lateral benefit (see gemara (21a) about preventing spirits from
damaging the house) why should that excuse his primary obligation to pay?
5) How might we
explain the machloket between Rabba and Rava in assessing the mah