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Bava Kama, 44

44b

QUESTION: The Gemara quotes a Machlokes between Rebbi Yehudah and Rebbi Shimon regarding whether the owner of a Shor pays for damages that his Shor caused without intent ("she'Lo b'Kavanah"). Both Rebbi Yehudah and Rebbi Shimon agree that when a Shor *kills* someone without intent, the Shor is not put to death ("k'Misas Adam Kach Misas ha'Shor"), and the owner must pay Kofer, since the payment of Kofer is not related to the death of the Shor (like Shmuel says). Rebbi Yehudah maintains that when the Shor causes damage unintentionally, and not death, the owner is Chayav to pay for damages, because he compares the payments of damage to the payment of Kofer. Rebbi Shimon maintains that when a Shor causes damage without intent, the owner is exempt, because he compares the payment of damage to the Chiyuv Misah of the Shor.

The logic of the Gemara is easy to understand with regard to Keren. However, what will be the Halachah with regard to damages of Shen v'Regel? We do not find that if an animal kills a person through Shen v'Regel that it is put to death, since any time an animal kills a person through Regel, such as by trampling on him or by walking through Reshus ha'Rabim, it is done inadvertently, without intent. Similarly, if an animal is eating food and inadvertently bites a person and kills him, the animal should not be Chayav Misah. The only time we find that the Shor is Chayav Misah is when it intends to kill, and that, by definition, is Keren! If we follow through Rebbi Shimon's logic with regard to Shen v'Regel, one should never be Chayav for damages caused by Shen v'Regel; since the Shor is never Chayav Misah in cases of Shen v'Regel, one should not be Chayav to pay for damages! This is especially true of Regel, where the damages that the animal causes through Regel are always inadvertent. (RISHONIM)

ANSWERS:

(a) The BA'AL HA'ME'OR explains that Rebbi Shimon indeed exempts one from paying for damages caused by Shen v'Regel. However, the damages that he is discussing are only Nizkei Adam, when the animal damages a person. If the animal damages other animals or objects, Rebbi Shimon certainly does not exempt the owner from payment, and he does not compare it to the Chiyuv Misah of a Shor that kills a person.

This also seems to be the opinion of RASHI (DH v'ha'Nezakin), the RAMBAM, and ME'IRI.

(b) The RAMBAN (in Milchamos) explains that Rebbi Shimon's ruling indeed applies to Shen v'Regel as well as Keren. However, what determines whether the owner pays for damages of Shen v'Regel according to Rebbi Shimon is not whether the animal would be Chayav Misah for killing a person through Shen v'Regel, but whether the animal would be Chayav Misah for killing in such a way through Keren. This means that since we find with regard to Keren that we compare a Shor that caused damage to a Shor that killed a person in order to teach that when the Shor damaged inadvertently the owner is exempt, we extend this rule to Shen v'Regel to teach that if a Shor caused damage through a totally inadvertent act, the owner is Patur. But if it caused damage by doing an act that it intended to do, then even though the *damage* was inadvertent, the owner must pay since the *act* itself was intentional. For example, if a Shor rubs itself against a wall and the wall falls down, it is considered damaging inadvertently since the Shor was not trying to push down the wall. If the animal steps on a person while walking and causes damage, then the owner *is* Chayav because the animal did intend to walk in that place even though it did not intend to cause damage by walking there.

This also seems to be the intention of RABEINU TAM in Tosfos (44a, DH Hacha Nami; see TOSFOS RABEINU PERETZ) and as cited by the SHITAH MEKUBETZES. (Tosfos himself seems to maintain -- due to our question -- that the Shor is indeed Chayav Misah if it kills a person through Shen v'Regel.)

(c) RABEINU CHANANEL writes that Rebbi Shimon is following his opinion elsewhere, where he holds that one is Patur for a "Davar she'Ein Miskaven," and that is why he exempts the owner of the animal. According to this, it is clear that he will make the same distinction as the Ramban makes between damage caused by a Shor that walks where it intends to walk, and a Shor that inadvertently walks in a different place from where it intended.

It is not clear how the words of Rabeinu Chananel can be reconciled with our Gemara that says that Rebbi Shimon exempts the owner from paying for damages because he compares the Chiyuv for damages to the punishment of the Shor being put to death. Perhaps in his text he did not have the four words, "v'Shor la'Afukei Kofer d'Chiyuvei," and thus the Gemara is saying that Rebbi Shimon compares the Chiyuv of the Shor to the Chiyuv of its owner, meaning that just like the owner is not responsible for what does through a "Davar she'Eino Miskaven," so, too he is Patur for the damage that his Shor does in such a case. (See EVEN HA'EZEL, Hilchos Nizkei Mamon 2:10:5, 5:6; Kehilos Yakov, Taharos end of #49; YAM HA'TALMUD, He'oros #5.)

(d) The TOSFOS RID explains as follows. He asks what does the Gemara mean that according to Rebbi Shimon we learn the Shor's Chiyuv for damages from the Chiyuv the Shor has when it kills a person? When the Shor kills a person, it certainly is Chayav, because the Shor itself is put to death. But when the Shor causes damage, in what way is it an obligation on the *Shor* to pay? (See KOVETZ BI'URIM.)

The Tosfos Rid answers that when a Shor damages without intent, even if it is a Mu'ad, it pays only Chatzi Nezek mi'Gufo, like a Tam, because it cannot be a Mu'ad to do something inadvertently. Mu'ad means that we expect it to do damage, and we cannot expect something to do damage without intent. Since it is paying mi'Gufo, it can be called an obligation of the Shor.

According to the Tosfos Rid, it is clear that for Shen v'Regel -- since their Chiyuv is a Chiyuv of Nezek Shalem -- there is no reason to compare the Chiyuv Nezikin of Shen v'Regel to Misah of the Shor when the Shor kills a person. However, in his footnotes to his additions to the Tosfos Rid, Rav Nisan Zacks points out that the opinion of the Tosfos Rid is very difficult to reconcile with the words of the Gemara, since the Gemara says that had the unintentional damages been compared to the Chiyuv of Kofer that is paid when the Shor kills unintentionally, then the owner would have had to pay for the damages. According to the Tosfos Rid, who says that every Shor is considered a Tam with regard to Nezek done inadvertently, the Shor should never be Chayav Kofer for killing inadvertently, since a Tam is not Chayav Kofer!

Apparently, the Tosfos Rid learns that the words "Im Kofer" (Shemos 21:30; 43b) are a Gezeiras ha'Kasuv that teaches that one pays Kofer when a Shor kills without intent, even though it is considered a Tam with regard to all other matters.

QUESTION: The Gemara quotes a Machlokes between Rebbi Yehudah and Rebbi Shimon regarding whether the owner of a Shor pays for damages that his Shor caused without intent ("she'Lo b'Kavanah"). (See previous Insight.) Rebbi Shimon maintains that when a Shor causes damage without intent, the owner is exempt, because he compares the payment of damage to the Chiyuv Misah of the Shor. Since the Shor is not put to death when it kills unintentionally, the owner does not have to pay when the Shor does damage unintentionally.

RAV ELCHANAN WASSERMAN (Kovetz Bi'urim #27) asks that according to Rebbi Shimon, how could a person be Chayav for damages caused by his fire (Esh) if Esh is "Mamono?" The Gemara (23a) concludes that both Reish Lakish and Rebbi Yochanan agree that the verse that exempts the owner of the Esh from paying for damage caused to "Tamun" implies that the Chiyuv of Esh is "Mishum Mamono" and not "Mishum Chitzav;" that is, it is not because of Adam ha'Mazik, but rather it is like one's animal that causes damage. How, though, can one be Chayav for damages caused by a fire if the fire is considered "Mamono?" Since Esh is an inanimate object, it cannot damage with intent, and thus according to Rebbi Shimon one should not be Chayav for the damages that it does. It should be like a Shor that damages without intent! Conversely, if the Torah teaches that one is Chayav for Esh because it is considered "Mamono" even though it damages "unintentionally," we should learn from there that one is *always* Chayav for unintentional damage caused by a person's property (even by one's Shor)!

Similarly, according to Rav, the Gemara (28b and elsewhere) teaches that when a person is not Mafkir an object of his and leaves it in Reshus ha'Rabim, he is Chayav for damages that it causes to Kelim, because it is considered like Shor ha'Mazik. How could one be Chayav for such damage according to Rebbi Shimon? Since the object is inanimate, it should be like a Shor that damages without intent! (See Insights to 28:2:c, in the name of the RA'AVAD. The Ra'avad's approach might answer this question according to Rav.)

ANSWER: We may ask what is the reason why a Shor is exempt from Misah or from paying for damages when it acts without intent according to Rebbi Shimon? Is it because intent is required in order to create a Chiyuv, or is it because the Shor is not acting in the way that a Shor normally acts, and a Shor is Chayav Misah (or its owner is Chayav to pay for damages) only when the Shor acts in the way in which it normally causes damage or death?

Perhaps the second approach is correct. It is only the fact that the Shor is not causing damage in the normal manner that exempts its owner from payment. If this is true, then it is clear that for damage caused by one's Esh, or by one's object left in Reshus ha'Rabim, one would be Chayav to pay, since it is causing damage in the way that an Esh, or an obstacle left in Reshus ha'Rabim, normally causes damage. Since there is no change from the way that damage is normally caused, Rebbi Shimon would not exempt the owner. (See also AVI EZRI Hilchos Rotze'ach 5:4.)