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Bava Kama, 15

1) "V'HA'NIZAK V'HA'MAZIK B'TASHLUMIN"

The Gemara is bothered by the wording of the Mishnah (14b), "v'ha'Nizak v'ha'Mazik b'Tashlumin," which implies that the Nizak helps the Mazik pay him. In what way, though, does he help? The Gemara explains that according to the opinion that Chatzi Nezek is "Mamon," then he helps the Mazik by relinquishing half of the value of the damages, which the Mazik would otherwise have to pay. According to the opinion that Chatzi Nezek is "Kenas," the Nizak helps the Mazik pay by absorbing the loss if the carcass of the dead ox decreases in value before the case comes to court. The VILNA GA'ON (Bi'urei ha'Gra on the Mishnah) suggests an ingenious interpretation of the Mishnah which explains the simple meaning of the wording of the Mishnah.

He explains that the words "v'ha'Nizak v'ha'Mazik" belong with the preceding words, and not with the following word "b'Tashlumin." The Mishnah thus reads, "Woman are included in the [laws of] Nezek, and the Nizak, and the Mazik." The Mishnah is teaching that women are the same as men with regard to Nezikin in three ways. First, women are included in the general category of Nezek, such that if an ox harms a man's wife, the owner of the ox must pay the husband just as if he would have had to pay him had the ox gored the husband himself.

"V'ha'Nizak" means that if the woman is not married and an ox gores her ox, then the owner of the Shor ha'Mazik must pay her for her ox, just as he pays when his ox damages a man's ox.

"V'ha'Mazik" means that if the woman owns an ox that gores another person's ox, she must pay the damages just like a man must pay when his ox causes damage.

Why, then, does the Gemara understand the Mishnah to mean that "the Nizak is together with the Mazik" with regard to Tashlumin? The Vilna Ga'on explains that the Gemara infers this from an extra word in the Mishnah. The Mishnah should have said simply that "woman are included in the [laws of] Nezek, and the Nizak, and the Mazik." Why does it add the word "b'Tashlumin," "with regard to payments?" It seems obvious that the Mishnah is referring to payments!

From this extra word in the Mishnah, the Gemara infers that the Mishnah is teaching an additional Chidush -- that the Nizak also is involved in the payments, just like the Mazik.

We might add that perhaps this interpretation explains why the Gemara cites three verses to teach that women are included in Nezek.

The first verse, which teaches that women are like men with regard to all punishments in the Torah, is teaching that if her Shor damages someone else's property, then she must pay, just like a man.

The second verse, which teaches that women are like men with regard to all monetary cases (Dinim), is teaching that if a woman comes to court with a monetary claim, the court responds to her just as they respond to a man. This teaches that a woman is entitled to the claim of a Nizak, a claimant for damages, just like a man.

The third verse, which teaches that if a Shor kills a woman the owner must still pay Kofer, is teaching that a woman is included in Nezek, and her husband or her heirs must be paid for whatever damages were caused to her.

Why, then, does the Gemara explain the need for each verse with a "Tzerichusa," if each one is teaching a different thing, as we have explained? It is because we might have been able to learn one from the other with a Binyan Av, if not for the "Tzerichusa" that prevents us from learning the Halachos of one verse without the other. (M. Kornfeld)

15b

QUESTION: The Mishnah teaches that a lion, wolf, bear, leopard, and snake, are always considered "Mu'adim" to do damage, unlike Shor and other more docile animals.

Why are these wild animals different from other animals? According to the opinion (15a) that maintains that the payment of Chatzi Nezek is a Kenas, it makes sense why the Mishnah singles out these animals. The reason the payment of Chatzi Nezek is a Kenas is because a Shor is "b'Chezkas Shimur," it is assumed not to do damage and thus the owner should not be obligated to pay. These animals, in contrast, are considered Mu'adim from the start because they are not "b'Chezkas Shimur;" we must expect them to do damage.

However, according to the opinion that maintains that Chatzi Nezek is Mamon, because a Shor is not "b'Chezkas Shimur" (and thus the owner should have watched his Shor more carefully), what is the difference between these wild animals and an ox? Just like the Torah exempts the owner of an ox from Chatzi Nezek because of a Gezeiras ha'Kasuv, the owner of any of these animals should also be exempt from half of the Nezek because of the same Gezeiras ha'Kasuv!

ANSWERS:

(a) TOSFOS (16a, DH v'ha'Nachash), the ROSH and RASHBA explain that indeed these animals are only Mu'adim if they damage in the way that they normally damage. If they damage in such a way, the owner must pay Nezek Shalem, because it is a Toldah of *Shen*. Therefore, if they damage in an unusual way, the owner must pay only Chatzi Nezek, and even if they damage in a normal way in Reshus ha'Rabim, the owner will be exempt, like he is exempt for Shen in Reshus ha'Rabim.

(Tosfos points out that when a Nachash kills an animal or walks on it, it would seem that it cannot be a Toldah of Shen, since the Gemara in Ta'anis teaches that a Nachash "does not have Hana'ah from its prey" (since it does not necessarily kill in order to eat). We have learned (4a) that having Hana'ah from what it damages is one of the defining characteristics of Shen, and therefore any damage that a Nachash does must be a Toldah of *Regel*. The RASHBA (2b) argues that the damage of the Nachash could also be a Toldah of *Shen*, since the Nachash does derive Hana'ah from *biting* and killing what is near it, even though it does not derive Hana'ah by eating it afterwards. According to the Rashba, even a Hana'ah that is not derived from the damage itself, but rather from the act that causes the damage, also puts it into the category of Shen.)

According to this answer, what is the Mishnah teaching? It is obvious that any animal that damages in the normal manner is Shen v'Regel! In addition, why does the Gemara (16a) ask that the Mishnah should count more than five forms of an animal becoming a Mu'ad, since these animals are also Mu'adim? These animals were already included in the Mishnah when it counted Shen v'Regel as Mu'adim!

The TOSFOS HA'ROSH answers that the Mishnah is teaching that these animals are even Mu'adim to eat animals that are larger than they. Other animals, in contrast, are only Mu'adim to eat animals that are smaller (as the Gemara says earlier).

(b) RASHI on the Mishnah (DH Harei Elu Mu'adim) implies that the owner of these wild animals is Chayav for Nezek Shalem for *any* damage they cause, even damage that is unusual. This is also the ruling of the RAMBAM (Hilchos Nizkei Mamon 1:6, cited by the Hagahos ha'Gra 16a), according to the way the TUR (CM 389) interprets understands his ruling (the MAGID MISHNAH, though, learns that the Rambam is ruling like Tosfos). It seems that they maintain that nothing is considered an unusual type of damage for these animals.

The Gemara (16b) seems to support Tosfos. Shmuel teaches that if a lion killed another animal and ate it right away ("Toref"), the owner of the lion is Chayav when the damage was done in Reshus ha'Rabim. But if the lion eats an animal live ("Daras") in Reshus ha'Rabim, the owner is exempt, because it is an act of Shen in Reshus ha'Rabim. This clearly implies that there is such a thing as an unusual manner of damage for a lion, which is included in the category of Keren, and the owner should only have to pay Chatzi Nezek for such damage since it is unusual for the animal to do it (as Rashi himself writes on 16b, DH Chayav, that even a lion only obligates its owner to pay Chatzi Nezek if it causes damage in an unusual manner).

The LECHEM MISHNAH (Hilchos Nizkei Mamon 1:6) and the Vilna Ga'on (Hagahos ha'Gra, Choshen Mishpat 389:15, 16, 20) explain that the Rambam does not rule like Shmuel (see Hilchos Nizkei Mamon 3:7) because the Gemara asks a number of questions on Shmuel's ruling, and the RIF also omits Shmuel's ruling. That is why the Rambam rules that no damage is considered unusual for these animals.