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Bava Kama 2

1) THE LIST OF THE FOUR "AVOS NEZIKIN"

QUESTION: The Mishnah teaches that there are four "Avos Nezikin." TOSFOS and the Rishonim point out that the Mishnah does not use the term "Hen" ("it says "Arba'ah Avos Nezikin" and not "Arba'ah Avos Nezikin *Hen* -- "four Avos Nezikin *they are*"), as it normally does when it lists a number of items and introduces the list with a number, and gives no descriptive terms for the items in the list. Similarly, the Gemara later (4b) cites a Beraisa of Rebbi Oshiya that lists thirteen Avos Nezikin, and a Beraisa of Rebbi Chiya that lists twenty-four Avos Nezikin, and both of those Beraisos omit the word "Hen." The Rishonim mention that the only other place where the Mishnah presents a numbered list without the word "Hen" is in Kerisus (8b), where the Mishnah says that there are "Arba'ah Mechusrei Kaparah" and it does not say "Arba'ah Mechusrei Kaparah *Hen*."

Why does the Mishnah here leave out the word "Hen?"

ANSWERS: The Rishonim suggest a number of answers which complement each other.

(a) The RASHBA suggests that the Mishnah does not say "Hen" to allude to the fact that these are not the only Avos Nezikin. There actually are more Avos Nezikin, as Rebbi Oshiya and Rebbi Chiya list. The Mishnah does not count the other Nezikin because it chose to present a limited list (see reasons on 4b). The same is true for Rebbi Oshiya's Beraisa which leaves out the Avos Nezikin counted in Rebbi Chiya's Beraisa. The Gemara asks on Rebbi Chiya's Beraisa, as well, what is it that he left out, and it explains that he also chose to limit his list, leaving out two items from his list

The Rashba explains that the way that the Gemara knew that Rebbi Chiya left something out from his list is because he did not say the word "Hen."

The Rashba, however, leaves unanswered why the Mishnah in Kerisus does not say "Hen."

The Gilyon cited by the SHITAH MEKUBETZES points out that the same answer might be applied to the Mishnah in Kerisus, according to TOSFOS in Kerisus (2b, DH la'Afukei). Tosfos there explains that the Mishnah in Kerisus chooses to limit its list and not enumerate all of the cases of Mechusrei Kaparah just like our Mishnah.

(b) The MAHARI KOHEN TZEDEK cited by the Shitah Mekubetzes answers that the word "Hen" is written to emphasize the differences between the items listed. He seems to mean that the word "Hen" is used when one might think that some of the items in the list are identical and should not be counted independently. The Mishnah adds the word "Hen" to emphasize that there indeed are this many different items that must be enumerated, and no less.

In our Mishnah (and in the Mishnah in Kerisus), on the other hand, it is obvious that the different Avos (or, in Kerisus, the Mechusrei Kaparah) should be listed separately because of their distinct qualities. The Mishnah writes "four" to exclude *more* than four and not less than four, and therefore it does not need to use the word "Hen."

This is also the answer of the TOSFOS RID cited by the Shitah Mekubetzes, and the answer of the NACHALAS DAVID.

(Even though the Mishnah continues and says "Lo Harei...," it is not trying to point out that the Avos are different, but rather that each Av has a *Kula* and therefore it cannot be learned from a combination of the others.)

We find a similar concept in TOSFOS in Kerisus (2b, DH l'Me'utei), who says that when the Mishnah emphasizes the differences between the items in its list, it is not necessarily excluding other items from the list. That is, some Mishnayos tell us the *minimum* number of items, and other Mishnayos tell us the *maximum* number of items.

(c) Perhaps the Mishnah uses the word "Hen" when the list includes items that are not discussed explicitly in the Torah. "Hen" means that besides the ones in the list that we already know, there is a another certain amount of items that should be included in this list. For example, the Mishnah (Shevuos 49a) says, "Arba Shomrim Hen," because one of them, the Socher, is not mentioned anywhere in the Torah explicitly (see Rashi 5a, DH Tachas Nesinah). The Mishnah in Rosh Hashanah (2a) says, "Arba Roshei Shanim Hen," because those days are not described by the Torah as Roshei Shanim. The items that our Mishnah, and the Beraisos of Rebbi Oshiya and Rebbi Chiya, list -- the Avos Nezikin -- are written explicitly in the Torah, as are the Mechusrei Kaparah listed in Kerisus. They are mentioned in the Mishnah only to teach that they pay from "Meitav." (Even though Rebbi Oshiya and Rebbi Chiya mention "Socher," they do not mean to teach us anything new by that, since Socher is already listed in the Mishnah of the four Shomrim.)

(This answer is similar to the previous answer.)

QUESTIONS: The Mishnah teaches that had the Torah not mentioned each one of the Avos Nezikin, the ones not mentioned could not have been derived from those that were mentioned through a Binyan Av. (See Chart to 5b. The Rishonim point out that according to the Gemara's conclusion on 5b, this part of the Mishnah was written only "l'Hagdil Torah ul'Ha'adirah;" see also Tosfos here, DH v'Lo.) It seems clear from the Mishnah and Gemara that had one of the Avos been more lenient than all of the others, the rest could have been derived from it through a Kal v'Chomer or Binyan Av. TOSFOS (DH v'Lo) explains that although the normal rule is "Ein Onshin Min ha'Din," a punishment cannot be derived through an exegetical process such as a Kal v'Chomer of Binyan Av (rather, it must be written in the Torah explicitly or learned from a Hekesh), nevertheless we are able to punish the Mazik based on a Kal v'Chomer and force him to pay for the damage he did because *monetary* punishment *can* be learned from a Kal v'Chomer. It is only *physical* punishment that cannot be learned from a Kal v'Chomer. This is clear from many Gemaras and Mishnayos that derive a monetary punishment through a Kal v'Chomer (see, for example, the Mishnah later, on 24b; see also RASHI in Chagigah 11b, DH l'Vito).

There are a number of questions on this principle.

(a) This rule seems to contradict the Mechilta (cited by Tosfos), which teaches that the reason the Torah writes that a person who "opens a ditch or who digs a ditch" (Shemos 21:33, "v'Chi Yiftach... O Ki Yichreh") is Chayav is to teach us that had it not written explicitly that the digger is Chayav, then he would be exempt because of "Ein Onshin Min ha'Din!" (TOSFOS DH v'Lo)

(b) The basis (see HALICHOS OLAM 4:12) for the principle of "Ein Onshin Min ha'Din" is that a Kal v'Chomer is based only on logic, and it can be refuted by a logical disproof (Pircha). Since a logical disproof can counter the Kal v'Chomer, we can never be absolutely certain that the Kal v'Chomer is correct; perhaps someone later will come and find a logical disproof to the Kal v'Chomer. Therefore, we cannot rely on a Kal v'Chomer to administer a physical punishment, but only to derive a prohibition to perform a certain act l'Chatchilah.

According to this logic, a monetary punishment should also not be able to be learned from a Kal v'Chomer. As long as there is a possibility that the defendant is not Chayav, he should be exempt from paying based on the claim of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah!" (SEFER KOVETZ AL HA'RAMBAM, Hilchos Avodas Kochavim 6:4)

ANSWERS:

(a) TOSFOS implies that the Mechilta might be arguing with our Mishnah. However, other Rishonim find this difficult to accept, since so many Mishnayos seem to take it for granted that a monetary punishment can be administered based upon a Kal v'Chomer. The RASHBA explains that the Mechilta means to say that with regard to Bor, a monetary punishment could not have been derived through a Kal v'Chomer had the verse not stated the punishment. The reason Bor is unique is because it is a Chidush that a person is Chayav to pay for the damages caused by his Bor, since the damaged item (such as an ox) brought itself into the Bor, and the Bor did not approach the item and damage it. Also, the Torah teaches that even though the Mazik does not own the Bor (for example, the Bor is in Reshus ha'Rabim), he still must pay as though it was his property that did the damage (see later, 29b). Since Bor is a Chidush, we would have thought that we can obligate a person only with what the Torah itself teaches and we cannot make a Kal v'Chomer. This is because a Chidush of the Torah might not follow the dictates of our logic (see Moed Katan 7a, Nazir 37a, Chulin 34a).

The Rashba's point is not clear. It would still seem that our Gemara is arguing with the Mechilta, since the Gemara (5b) proposes to learn the other Nezikin from Bor through a Kal v'Chomer or Binyan Av. Second, if the rule of the Rashba is correct, then why does the Mishnah and Gemara in Makos (5b) ask that Edim Zomemin should be Chayav for killing a person because of a Kal v'Chomer (the Gemara cites verses to prove that "Ein Onshin Min ha'Din")? We should not be able to learn Halachos of Edim Zomemin from a Kal v'Chomer, because the law of Edim Zomemin is a Chidush (Bava Kama 72a)!

Perhaps the Rashba means that the Mechilta learns from this verse that Bor *would* have been viewed as a Chidush and we would not have been able to learn Halachos from Bor through a Kal v'Chomer had the Torah not said "Ki Yichreh." Now that the Torah says "Ki Yichreh," it teaches that Bor is to be viewed as the same as other Avos Nezikin (and we may derive other Avos Nezikin from it).

Why, though, does the Mechilta teach us what would have been the Halachah in a case of Bor had it been a Chidush, if it is not a Chidush?

The answer is that the Mechilta wants to teach us the way the logic of Kal v'Chomer is applied in other cases where a Halachah is indeed a Chidush. Perhaps such a case would be a case of Edim Zomemin who testified about a monetary obligation. The Mechilta would hold that we do not derive a punishment for such a case through a Kal v'Chomer, unlike Tosfos (4b, DH v'Edim) whom the Rashba himself cites (5a).

With regard to the Gemara in Makos which says that we do not punish -- based on a Kal v'Chomer -- Edim Zomemin who caused a person to be killed because of the rule of "Ein Onshin Min ha'Din," the RITVA there writes that this is not the real reason why we do not punish Edim Zomemin who cause someone to be killed. Rather, the real reason is indeed because Edim Zomemin is a Chidush and we cannot learn a Kal v'Chomer from a Chidush. The Gemara mentions "Ein Onshin Min ha'Din" only because the discussion there revolves around Edim Zomemin who caused a person to be killed, in which case we do not have to point out that Edim Zomemin is a Chidush, because even if it was not a Chidush, we could not punish them because "Ein Onshin Min ha'Din." However, even if it was not a matter of corporeal punishment but of a monetary obligation, we still would not be able to derive the obligation from a Kal v'Chomer because Edim Zomemin is a Chidush.

(b) The SEFER KERISUS (1:17) suggests that the words, "Ein Onshin Min ha'Din," as used by the Mechilta mean something completely different than what the words normally mean. (This is a common occurrence in the Gemara; see RASHBA to Yevamos 108a, and Nidah 21b.)

The Mechilta means as follows. The Gemara (50a) asks the question of the Mechilta -- why does the Torah have to teach that one must pay for damages if he digs a Bor, if the Torah has already taught that one is obligated to pay even if he merely opens a pre-existing Bor? Rebbi Akiva answers that had the Torah only taught that one is obligated for *opening* a Bor, we might have thought that if one *digs* a Bor, he is obligated to pay for damages even if he covers it with a strong covering. We might have thought that one is only exempt from damages caused by his Bor when he fills up the Bor entirely. The Gemara later (55b) cites a Beraisa that teaches that based on this point, Bor is one of the four things for which the Torah does not require a strong Shemirah, and it lessened the degree of the Shemirah required (one is not required to fill in the ditch but merely to cover it).

This is what the Mechilta means to say. Logically, we would have thought that one who digs a ditch must fill it in and it is not enough to cover it. The Torah says "Ki Yichreh" to teach that "Ein Onshin Min ha'Din" -- we do not punish a person *in the way that is befitting*, according to what he deserves; rather, it suffices for him to cover the pit without filling it in.

(c) The MAHARI KOHEN TZEDEK cited by the Shitah Mekubetzes explains that the Mechilta means to say that a punishment "b'Yedei Shamayim" is not derived through a Kal v'Chomer.

Anyone who harms another person due to negligence, through one of the Avos Nezikin, can be Chayav also b'Dinei Shamayim (see Rashi to Shemos 21:29). That is why the Torah had to state explicitly that a person is Chayav for digging a Bor. Without the verse, though, we would have known the *monetary* obligation (because of the Kal v'Chomer). (See also TOSFOS in Chulin 115b, DH Mah, who proves that the punishment of Kares cannot be derived from a Kal v'Chomer.)

2b

OPINIONS: The Mishnah (2a) states that there are four "*Avos* Nezikin," implying that there are also Nezikin which are "Toldos." The Gemara shows that the Toldos of Melachos of Shabbos *are* "k'Yotzei ba'Hem;" the Toldos are similar to the Avos Melachos. It also shows that the Toldos of Tum'ah are *not* "k'Yotzei ba'Hem;" the Toldos do not have the same Halachos as the Avos ha'Tum'ah. The Gemara inquires whether the Toldos of Nezikin are similar to the Avos, "k'Yotzei ba'Hem," or not.

If the Toldah is like the Av, then we learn the Halachos of the Toldah from the Av. However, if the Toldah is not like the Av, then what determines its Halachos?

(a) RASHI (DH Hacha Mai; DH Mai Shena Keren; and 3a, DH Mai Shena Regel) explains that the Gemara's question is whether one is obligated to pay for damage when he inflicts it through a Toldah of one of the Nezikin, or whether one is completely exempt from compensating for the damage caused by a Toldah. If Toldos of Nezikin are similar to the Toldos of Tum'ah, then just like the Toldos of Tum'ah are not strong enough to be Metamei the same way as an Av, the Toldos of Nezikin are not strong enough to create an obligation for a person to pay.

If one is not obligated to pay for a Toldah of Nezikin, then in what sense is it a "Toldah?" It is not considered to be a Nezek altogether if one is not obligated to pay for it!

It seems that Rashi means that it is considered a Toldah insofar that one is obligated to prevent such damage from occurring. However, one who does not fulfill his obligation to prevent such damage from occurring and transgresses and causes damage to another person's property, he does not have to pay for it.

It is clear from Rashi that anytime a person damages someone else or someone else's property, he is also transgressing a prohibition, even if he fulfills his monetary obligation to compensate for the damage (or even if he is exempt from monetary obligation). What is the source for this Isur?

1. RASHI in Gitin (21b) writes that since we find that an owner of an Eved must free his Eved if he damages any of the Eved's Roshei Evarim, it can be inferred that it is *prohibited* to damage the Eved in the first place. Rashi seems to be learning that anytime we find a monetary obligation, we may infer that it is prohibited to do an act that causes such an obligation. (The BIRKAS SHMUEL cites RAV CHAIM SOLOVECHIK who suggests that since the Torah says "v'Lo Yishmerenu Be'alav" (Shemos 21:36), teaching that the owner of the ox must pay because he did not guard the ox properly, we can infer that the Torah expects a person to guard his ox properly.)

The KEHILOS YAKOV questions this logic. How can we say that it is prohibited to allow one's animal to cause damage? In the case of Regel, the animal is simply walking in its normal manner through the marketplace when it causes damage (as the Gemara asks on 19b, "is the owner of the ox obligated to hold on to its tail [so that it does not wag it while walking]?"). It is permitted to allow the ox to walk in its normal manner, and yet we see that one is obligated if his ox does damage while walking!

However, others point out that this is exactly why one is exempt from damages caused by Shen and Regel in Reshus ha'Rabim (see ROSH 1:1). When a person walks his ox through a neighbor's field, he indeed must be careful that it not cause damage even in the normal manner of walking.

2. RABEINU YONAH (beginning of Avos) writes that we learn the Isur to damage another person's property from Lo Sigzol,. This is also the implication of the TUR (beginning of Choshen Mishpat 378).

It is not clear how the prohibition to cause damage can be learned from the prohibition against stealing, since that prohibition is only transgressed when the thief does an act of *Kinyan* on the other person's property (see Bava Metzia 26b). Perhaps he means that it is learned from a "Meh ha'Tzad" from Lo Sigzol and from the prohibitions of Ona'ah and Rivis (see 61a).

Similarly, the RASHASH in Kesuvos (18a) and the KEHILOS YAKOV (Bava Kama #1) suggest that the prohibition to cause damage is learned from the Mitzvah of Hashavas Aveidah; if one is obligated to return another's property, then one certainly is not allowed to harm another's property.

3. The YAD RAMAH (Bava Basra 26a, #107) writes that the prohibition to damage another's property is learned from "Lifnei Iver Lo Siten Michshol" (Vayikra 19:14) and "v'Ahavta l'Rei'acha Kamocha" (Vayikra 19:18), Mitzvos that teach moral obligations.

(b) The RIF explains that there are some Avos Nezikin for which one must pay Chatzi Nezek "Min ha'Aliyah" (Regel, Shen, and Keren Mu'edes), and there are some Avos for which one must pay Chatzi Nezek "m'Gufo" (Keren Tamah). Therefore, the Gemara is asking whether the Toldos of the Avos have the same Halachah as the Av, or whether they have the leniencies that we find in other Avos.

As the BRISKER RAV (beginning of Hilchos Nizkei Mamon) explains, the Rif was not satisfied with Rashi's explanation, because if a Toldah is completely exempt from liability, then it should not be called a Toldah altogether. Therefore, he preferred to explain that the Gemara's question is whether the Toldah has certain leniencies that the Av does not have.

Why did the Rif need to point out that the Av of Keren Tamah pays Chatzi Nezek? Even if there would be no Av that pays Chatzi Nezek, we should still question whether the Toldos are dealt with more leniently than the Avos and one only needs to pay Chatzi Nezek instead of Nezek Shalem for them?

The ROSH answers that had we not found an Av that has these leniencies, we would not have questioned whether the Toldah has original leniencies of its own. Once we find that it is possible for a Mazik to pay in such a manner, we are willing to consider the possibility that a Toldah pays in such a manner. (The NACHALAS DAVID offers a similar explanation, although he does not understand this to be the intent of the Rosh.)

(c) The BRISKER RAV interprets the Rif's words differently. He points out from a number of Gemaras and Rishonim that there are times when it seems that a Mazik which is learned from a Binyan Av *could* be more severe than the Avos from which it was derived. To explain this, he suggests (as the Gemara concludes on 5b) that the Torah did not write the various Avos in order to teach their basic obligation, since it is possible to derive the basic obligation for all of them through a Meh Matzinu from Keren and Bor. Rather, the Torah writes the Avos in order to teach the specific leniencies that apply to each one (for example, that one pays Chatzi Nezek for Keren when it is a Tam, that one is exempt for Shen and Regel in Reshus ha'Rabim, that there is no liability for a Bor that damages Adam or Kelim, and that there is no liability for an Esh that damages items that are hidden, "Tamun").

The Brisker Rav suggests that according to this, the specific exemptions and leniencies should apply only to a Mazik that bears the "Shem Av" of the Av for which the leniency was originally given. Therefore, if a Mazik is derived through a Meh Matzinu between Keren and Bor, since it is does not have the title, or "Shem Av," of Keren nor the title of Bor, its laws will be more strict than the laws of both Keren and Bor and it will be liable in all situations.

This, he suggests, is the intention of the Rif. According to the Rif, the Gemara is asking whether the Toldos have the "Shem Av" of their respective Av, and therefore a Toldah of Keren, for example, pays Chatzi Nezek, or whether they do not retain the "Shem Av" and therefore a Toldah of Keren pays Nezek Shalem.