SHIUR #26: Techilato B'peshiya Ve-Sofo B'onnes

by Rabbi Moshe Taragin

The gemara introduces a case of an animal which jumped off a wall and shattered vessels lying beneath that wall. The gemara infers that the owner is liable only if the animal jumped; had it accidentally fallen off the wall no liability would exist. This suggestion raises the specter of a very interesting halakha known as 'techilato b'peshiya ve-sofo b'onnes.' According to many positions (and in fact halakha rules this way), if a person is negligent in watching his animal and ultimately an accident occurs, he still might be obligated to pay for that onnes. Since his initial negligence contributed to the ultimate accident which occurred, he might be liable to make payments. In our case, for example, the owner was seemingly negligent in allowing his animal to walk on top of a wall from which it could have jumped and broken vessels. Ultimately, the animal fell and broke vessels, instead of jumping, and an animal's fall is clearly defined as onnes. However, since the falling was precipitated by a prior peshiya (allowing the animal to freely walk across the wall), we might define this case as techilato b'peshiya ve-sofo b'onnes. The gemara actually challenges the mishna (which implies an exemption for vessels broken by the animal's accidental fall) based upon the principle of techilato b'peshiya ve-sofo b'onnes. In this shiur we will attempt to define the general parameters of this halakha and gauge the various applications mentioned in Bava Kama.

I Techilato B'peshiya for Shomrim

Any assessment of techilato b'peshiya must begin with its application to the world of shomrim (watchmen). The gemara in Bava Metzia (42a) addresses the situation of a shomer who places money in a locked wooden box and the money is eventually stolen by armed robbers. According to one opinion, although an onnes has occurred he must nevertheless pay, since his initial negligence (placing the money in a combustible area) facilitated the ultimate theft. Had he buried the money - as recommended, the thieves would never have located it. This position - that techilato b'peshiya ve-sofo b'onnes is obligated to pay - is ultimately accepted as halakha by the gemara.

A second gemara in Bava Metzia (36b) suggests a very important limitation to the liability of techilato b'peshiya. According to Abaye, if a shomer allows his animal to wander away (a peshiya, since the animal could easily become lost) and the animal died of natural circumstances, the shomer does not pay. Even though techilato b'peshiya is generally liable, in this specific instance the initial peshiya in no way CONTRIBUTED to the ultimate onnes; the animal would have died naturally even if confined to the house. Techilato b'peshiya obligates only if the original negligence in some way facilitated the eventual onnes - what the Rishonim label as 'machmat' (literally 'because'- the onnes evolved in part because of the original peshiya). In the aforementioned case, placing the money in the box (as opposed to hiding them in the ground - the preferred manner of guarding money) allowed the armed robbers to locate and seize the money. In our case, allowing the animal to roam in no way contributed to its eventual death.

This position suggests the following understanding of techilato b'peshiya: Although not DIRECTLY the cause of damage, the shomer, through his peshiya, was a contributor. A shomer pays for damage not only if he is the primary cause, but even if he slightly 'contributes.' By placing the money in the box, a shomer contributes to the armed robbery since they would not have otherwise located the money. By allowing an animal to roam, the shomer doesn't contribute to its ultimate natural death and thus escapes payments.

A third discussion in Bava Metzia which elucidates the techilato b'peshiya clause can be found in the mishna (78a). If a shomer was instructed to walk the animal along a certain path and he deviated, thereby directly causing the damage, he is liable to pay. Instructed to walk in the valley, if he leads the animal up a hill and then it slips his negligence obligates payment. The owner was concerned regarding the animal's balance and therefore instructed the shomer to walk in the valley and not the mountains. Alternatively, if the owner requests the mountainous route and the shomer opts for the valley, causing the animal to overheat, the shomer is similarly liable since his deviation (from a cooler route to a hotter one) directly caused the death. If, however, the shomer changes from mountain to valley and the animal slips, or he changes from valley to mountain and the animal overheats - each is seen as death by onnes and the shomer is excused. The Rishonim wonder why the principle of techilato b'peshiya does not apply. After all, by changing routes the shomer exposed the animal to some new danger; even if this danger did not materialize he should still be liable!!!

The Ramban responds that changing planned routes - though a deviation from the owner's instruction - cannot be termed as 'peshiya.' Each route poses different dangers and although he did not follow the owner's wishes the shomer cannot be defined as negligent. Indeed, if the death was a direct consequence of the deviation (the animal slipped on the mountain) the deviation itself obligates payment. If, however, the cause of death was accidental (slippage in a valley), the initial deviation did not lead to consequences which obligate payment. Effectively, the Ramban requires gross negligence to obligate situations of techilato b'peshiya ve-sofo b'onnes. Deviation, though sufficient to generate liability in ordinary cases, does not suffice for techilato b'peshiya.

We might see in this position an alternate view of techilato b'peshiya. Since the shomer was not directly responsible for the death we cannot obligate him to pay for the DAMAGE proper. Instead, we obligate him to pay for the ACT OF NEGLIGENCE itself. By not guarding the animal, he betrayed his commitments to the owner and thus might be obligated to pay for the very act of betrayal (assuming some eventual damage occurred). Hence, only gross negligence can be classified as an act of outright betrayal, (as opposed to deviation from stipulations which do not classify as negligence), and only in these conditions is a shomer obligated to pay for techilato b'peshiya.

SUMMARY:

We have suggested two different perspectives upon the obligation of techilato b'peshiya for shomrim. Since the shomer did not directly cause the ultimate damage, we might find him liable for the act of betrayal itself. Alternatively, we might be able to view him as a supplementary contributor since his original peshiya facilitated the ultimate onnes. The logical consequences of this question are as follows: what degree of negligence will obligate payment? If we aim to find him liable for the very act of negligence (even though it did not directly cause the damage) we might 'require' actual negligence which can be seen as betrayal of their original agreement. A second question involves the relationship, if any, between the negligence and the ultimate damage. We might only apply the techilato b'peshiya clause if the negligence ultimately contributed in some way to the damage - a condition referred to as 'onnes machmat ha-peshiya.'

II Techilato B'peshiya For A Mazik

Having established two different models towards understanding the rule of techilato b'peshiya, we might now inspect the application of this rule to the world of Bava Kama. Although with regard to shomrim we might view these two models as equally valid, regarding Bava Kama one approach seems more appealing. When discussing the liability of a shomer we might elude the onnes problem by obligating for the very act of betrayal. Instead of establishing liability for the accidental damage (which was slightly facilitated by the original negligence), we stress the very act of disloyalty toward the owner as the basis of liability. After all, the owner and shomer formulated an agreement (which might even contain benefits for the latter) and that contract was broken. Violating this contract would certainly be cause for financial remuneration even if the violation didn't directly cause damage. By contrast, when we consider the situation of a mazik who never reached an agreement with the damaged party and possibly never even met him, we might find it difficult to obligate payments based upon the peshiya per se - independent of its contribution to the ultimate damage. Essentially, all Bava Kama payments originate from the fact that an item was damaged and compensation must be proffered. If we can trace this loss back to the negligent owner of the mazik, whose irresponsible behavior was a contributing factor, we can certainly obligate payment. The model of techilato b'peshiya by which we demand payment because of the mazik's facilitating - through his negligence - the damage, certainly is compatible with our view of Bava Kama. The alternative - to obligate based solely upon an act of betrayal - might be less operative within the realm of Bava Kama.

Translating this strong disposition toward one model of techilato b'peshiya (and the accompanying disinclination toward the alternate model) would yield the following view of techilato b'peshiya in Bava Kama: We might strongly insist upon the condition of 'machmat' - that the onnes should be in some way a product of the original peshiya. Only in this context might we trace the loss back to its author - the mazik - and obligate payment. In the absence of machmat we might be severely handicapped in applying the clause within Bava Kama. Conversely, we might not be too concerned with the degree of peshiya since an intense level of peshiya was necessary only assuming the model by which we obligated the shomer to pay based purely upon his betrayal. Though this model was applicable to shomrim (and consequentially we might insist upon a severe form of negligence), it has little relevance to Bava Kama; the degree of negligence' might not be at all meaningful to Bava Kama.

The importance of the machmat clause within Bava Kama led many Rishonim to justify the absence of techilato b'peshiya within an important Bava Kama sugya (52b). The gemara addresses someone who covered a bor (pit) with a plate capable of withstanding the weight of lighter animals but not heavier ones. If a lighter animal should happen to accidentally fall into this bor, would the owner be obligated to pay? Should we classify the cover as a legitimate preventive measure since it protected against lighter animals falling in, or do we define it as insufficient simply because heavier ones could have fallen through? The gemara presents this debate independent of the techilato b'peshiya rule, suggesting that it might not apply. Tosafot, based on this conspicuous omission, assert that in this particular context techilato b'peshiya ve-sofo b'onnes might not apply, since the peshiya bears little relation to the ultimate damage. The accident which allowed the light animal to fall into the pit (even though a sturdy cover was placed) would have occurred even if the bor were covered with an extra-strength protection against heavy animals. Since the onnes did not evolve 'machmat' - because of the peshiya, the techilato b'peshiya rule cannot obligate payment. This Tosafot is consistent with our expectations; the strategy by which we 'link' the damage which occurred through an onnes to the initial peshiya seems to be the most viable way to export techilato b'peshiya to Bava Kama. If such linkage does not exist, because the onnes was in no way facilitated by the peshiya, we cannot obligate based upon techilato b'peshiya.

Several other Rishonim adopt differing opinions as to why the gemara never invoked the techilato clause. The Baal Ha-maor, in a dramatic statement about the nature of bor hamazik, suggests that the entire principle of techilato b'peshiya would not be relevant to the case of bor, even if the necessary conditions such as 'machmat' were to obtain. Just as bor is different from other paradigms of mazik in that it exhibits an extremely unique exemption - payment is excused if utensils are damaged in the bor - it is also dissimilar from other forms of hezek in that the techilato rule doesn't apply. Why exactly bor is incompatible with techilato b'peshiya and the parallel to the keilim exemption lie beyond the perimeters of this shiur. For an initial analysis see shiur #14 in which the structural model of bor was examined, particularly as it relates to the keilim exemption.

The Ra'avad in his Hagahot to the Rif disagrees with Tosafot's view and suggests a different reason why techilato doesn't apply to this sugya: the peshiya and the ultimate onnes pertained to different items. The original peshiya manifested itself with regard to heavy animals (for which this cover was insufficient); ultimately, a light animal (for which the cover was sufficient) fell in through some accident (such as unexpected erosion). Since the peshiya and the onnes 'applied' to different objects the clause of techilato b'peshiya cannot apply.

This very concern - that the original negligence must apply to the very same object which was ultimately damaged - is raised within our sugya (21b) in the case of the animal which walked on top of a wall and fell on top of keilim. The gemara infers from the mishna that if the animal falls upon keilim the owner is not responsible. The gemara questions this inference: If we apply techilato b'peshiya to Bava Kama, the owner should be obligated because his initial negligence (allowing the animal to walk upon the wall and possibly jump upon keilim) facilitated the ultimate onnes (the animal falling upon the vessels). To this the gemara responds that the vessels were actually placed very close to the wall - so close that an animal could not intentionally jump and shatter them (for he would inevitably overshoot the utensils lying so close). Hence, allowing the animal to freely walk upon the wall does not endanger the near-lying keilim and no peshiya has been perpetrated. Rishonim wonder about this interpretation; if the vessels are so close to the wall that the animal cannot intentionally jump upon them, how could the mishna legislate liability if the animal actually found some way to jump on them and directly damage them? Tosafot Rabenu Peretz suggests an interesting solution: there were two vessels under the wall. The more distant ones could be intentionally broken and hence the owner was negligent in allowing the animal to walk upon the wall and endanger those vessels. If the animal were to jump upon those distant vessels and break them the owner would be liable - as the mishna asserts. If, however, the animal fell and 'accidentally' shattered other keilim lying right underneath the wall, the owner is excused from payment. Even though we might normally apply techilato b'peshiya, since in our example the peshiya applied to the distant vessels, (which the animal could have jumped upon), while the damage actually occurred to the closer ones, we cannot apply the techilato clause. Again we witness the requirement of the Ra'avad - in order to apply techilato b'peshiya to Bava Kama we require that the peshiya and onnes be addressed to the same item.

This insistence that the damage occur to the same object endangered by the original negligence also suggests the model of techilato b'peshiya stated earlier. If we seek to link the damage to the owner because his negligence contributed to the damage, we might insist that this linkage is feasible only if the negligence and damage occurred to the same item.

AFTERWORD:

Having suggested that only one viable model of techilato b'peshiya applies to Bava Kama, see Tosafot (BK 22a s.v. de-apich). Tosafot wonders about augmenting the payments of keren because the damage evolved from a negligence which in theory could have spawned regel or shein. If we apply techilato b'peshiya should we obligate keren to pay as much as regel might have if the peshiya would have materialized (namely 100%)? Which model of techilato b'peshiya do you think this question is premised upon?

Subsequently, Tosafot reject this possibility; does it seem that the issue hinges upon the model of techilato b'peshiya we adopt, or does it speak more directly to our understanding of the 'keren-tam' discount?

Sources and Questions for Next Week's Shiur:

Next week, we will discuss the fourth of the "avot nezikin," eish (fire).

1. See Shemot 22:5, what is implied by the Torah's description of eish?

2. See Bava Kama 22a - 23a. The gemara presents a debate between Rabbi Yochanan and Reish Lakish regarding the nature of "eish" - is it a form of "mammon" or "chitzav?"

3. When the gemara suggests that eish is a form of mammon, or chitzav, to what extent is Rabbi Yochanan or Reish Lakish's formulation to be taken literally?

Reish Lakish:

There is a debate between Rashi and Tosafot regarding the practical implications of Reish Lakish's opinion. How does Rashi answer the questions raised by Tosafot? See Shita Mikubetzet in the name of the Gilyonot of Tosafot. See also The opinion of the Talmide HaRi (cited in the Shita Mikubetzet), who seems to suggest that there may be two types of "isho mishum mammono."

Rabbi Yochanan:

The Rishonim question whether Rabbi Yochanan's understanding of eish may be extended to other areas of halakha. See Tosafot Sanhedrin 77a regarding shechita and retsicha (murder), and the explanation of Rabbi Chaim HaLevi Soloveitchik (Hilkhot Shekhenim). See also the famous question of the Nemuke Yosef (Bava Kama 10a in the Rif). What is the initial assumption of the Nemuke Yosef, and what is his conclusion?

1. The gemara concludes (23a) that Rabbi Yochanan agrees that the obligation to pay for damages caused by fire is ALSO because of mammono. See Rashi d"h vekhi, and the Shita Mikubetzet in the name of Rabbenu Yishaya, and in the name of Talmide HaRi. See also the Rambam in Hilkhot Nizke Mammon 14:15.