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Bava Kama, 19

1) "TZEROROS" IN RESHUS HA'RABIM

QUESTION: The Gemara records the question of Rebbi Yirmiyah, who asks if an animal was walking in Reshus ha'Rabim, and it kicked up Tzeroros and caused damage, is the owner Chayav or Patur? Is it like Keren, for which one is Chayav in Reshus ha'Rabim, or is it a Toldah of Regel for which one is Patur in Reshus ha'Rabim? Rebbi Zeira replies that it makes sense that it is a Toldah of Regel and one is Patur for damage done by Tzeroros in Reshus ha'Rabim.

The word "u'Va'atah" ("and it kicked") in Rebbi Yirmiyah's question is printed in parentheses in our texts of the Gemara (Vilna edition), with a marginal note stating that the MAHARAM deletes this word from the text. In fact, most older manuscripts and most Rishonim do not include this word in the text. Nevertheless, it is possible to explain that the Gemara's question *is* when the animal kicked the Tzeroros (kicking being an unusual manner for the animal to act), whether it states so explicitly or not, and many Rishonim do explain like this. It is also possible to explain that the question is when the animal causes Tzeroros to fly out *without* kicking, but rather in the normal manner of Regel.

The problem is that, either way, the Gemara's question seems difficult to understand. If the Gemara's question is specifically when the animal *kicks* the Tzeroros, then the question is whether Tzeroros of *Keren* is considered like Keren or like a Toldah of Regel. However, the Gemara asks whether Tzeroros of Keren can become a Mu'ad ("Yesh Ha'ada'ah l'Tzeroros") after three times (according to the first Lashon of Rashi), which implies that we do consider the possibility that Tzeroros of Keren *is* considered like Keren, but the Gemara here concludes unequivocally that it is a Toldah of Regel and one is Patur for Tzeroros in Reshus ha'Rabim, and thus why should there by a question of "Yesh Ha'ada'ah l'Tzeroros?"

Also, why should Rav Ashi have a question (at the beginning of the page) whether "Yesh Shinuy" for Tzeroros of Keren, such that the owner would pay only Revi'a (quarter) Nezek? If it is like a Toldah of Regel, why should the owner pay only Revi'a Nezek?

On the other hand, if the question of the Gemara concerns regular Tzeroros (where the animal was walking in its normal manner, and not where it kicked up the Tzeroros), then why is there any a question altogether whether one is Patur for Tzeroros in Reshus ha'Rabim? We learned earlier (3b) that the Amora'im all agree that one is *Patur* for Tzeroros in Reshus ha'Rabim, and that is why it is a Toldah of Regel. Why should the Gemara here raise the question again?

Moreover, this question becomes more complicated because RASHI in the Sugya seems to alternate back and forth between the two explanations. He writes first (DH l'Keren Medaminan Lah) that the question is whether we compare this case to Keren, "since the animal kicked," but then he says, "and one is Chayav to pay Chatzi Nezek like for Keren," implying that we compare it to Keren because one pays Chatzi Nezek, referring to *all* cases of Tzeroros and not just to a case where the animal kicked. Similarly, in his next comment (DH O Dilma) Rashi begins by saying that the question is whether "all Tzeroros are a Toldah of Regel," meaning even Tzeroros of Keren, but then he continues and says that "Tzeroros that is done in a normal manner (k'Orchaihu) is a Toldah of Regel!" Throughout the following comments, too, Rashi seems to alternate back and forth between the two explanations of the question. How are we to understand the Gemara and Rashi?

ANSWERS:

(a) The Rishonim present two distinct ways of explaining the Gemara. It would seem that these two ways are dependant on the first Lashon and second Lashon in RASHI earlier (18b, DH Ela). This is evident most clearly in Rashi's words on the Rif, where he seems to be following the original explanation of Rashi on the Gemara (that is, the second Lashon of Rashi on 18b; see what we wrote in the end of Insights to 18:1). Hence, there are a number of important differences in the words of Rashi on the Rif and in his words on the Gemara.

First, Rashi on the Rif leaves out the words, "v'Chayeves Chatzi Nezek k'Keren" ("and it is Chayav Chatzi Nezek like Keren"). In the next comment, he leaves out the word, "k'Orchaihu." These changes make it clear that he is explaining that the question of the Gemara concerns specifically a case where the animal *kicked*, and it is asking whether Tzeroros of Keren is like regular Tzeroros of Regel or whether its Halachos are different.

In fact, in the previous comment of Rashi on the Rif (which corresponds to Rashi's words in our Sugya in DH O Dilma), Rashi on the Rif adds a number of words which makes this even more evident. Rashi there is referring to the question of the Gemara of an animal that was walking in a place where it could not help but cause Tzeroros to fly up even when walking in its normal manner, but it kicked and caused Tzeroros to fly up. The Gemara asks whether such a case will have the Halachah of Keren or the Halachah of Regel. Rashi asks what is the difference -- Tzeroros of Keren and Tzeroros of Regel have the same Halachah! Rashi first answers that for Tzeroros of Keren one might have to pay Revi'a Nezek (according to one side of the question of Rav Ashi). Then Rashi answers ("Lishna Achrina mi'Pi ha'Moreh," "another version in the name of the teacher"), that the difference is if it kicks up Tzeroros three times, it will become a Mu'ad and obligate the owner to pay Nezek Shalem (according to that side of the question of whether "Yesh Ha'ada'ah l'Tzeroros"), if the act is considered Tzeroros of Keren. Rashi then writes that the first answer is the correct one, and that the second answer is incorrect. Rashi on the Rif adds *why* it is incorrect. He says that the second answer is incorrect because Tzeroros of Keren is *not* considered to be any different than Tzeroros of Regel, since we see that the Gemara -- in its next question -- concludes that for Tzeroros of Keren one is Patur in Reshus ha'Rabim because it is considered a Toldah of Regel. If Tzeroros is a Toldah of Regel, then the Halachos of Tzeroros of Keren and Tzeroros of Regel cannot be different!

By explaining this, Rashi on the Rif is, actually, completely rejecting the first Lashon of Rashi on the Gemara (18b), where he wrote that the question of "Yesh Ha'ada'ah l'Tzeroros" *is* exactly whether one must pay Nezek Shalem for Tzeroros of Keren after the animal does it three times, and it is different than Tzeroros of Regel!

It is clear that Rashi on the Rif is following the second Lashon of Rashi, and that is why he is able to explain the question of Rebbi Yirmiyah (at the end of 19a) as a question whether Tzeroros of Keren is different than Tzeroros of Regel. The question is in a case where the animal kicks (making it Tzeroros of Keren, an unusual act), and the question is whether it can become a Mu'ad after three times (or is Chayav in Reshus ha'Rabim). The Gemara concludes that it is really a Toldah of Regel. (The logic for this is, as we have explained in the Insights to 18b, that it is *only* considered a Toldah of Keren when the animal actually comes in direct contact with the object that it damages, and not when it pushes something else that then damages the object, similar to what Rashi wrote with regard to Tzeroros of Shen.)

According to this explanation, what is the question of Rav Ashi when he asks whether one pays Revi'a Nezek for Tzeroros of Keren? This is not such a problem, because even if we say that Tzeroros of Keren has the *Kulos* (leniencies) of Tzeroros of Regel and one is therefore Patur in Reshus ha'Rabim, since we see that the Halachah l'Moshe mi'Sinai of Tzeroros is lenient in a case of Tzeroros perhaps it *also* has the Kula of Keren, and therefore it also pays *half* of the Chatzi Nezek of Tzeroros, meaning a Revi'a Nezek, until it does the act three times. It can have the Kulos of both Regel and Keren: it is Patur in Reshus ha'Rabim, and it pays only a quarter of the Nezek. However, it cannot have the *Chumros* of Keren and obligate the owner to pay Nezek Shalem after three times.

This conforms with Rashi's second Lashon, the original way that Rashi learned the Gemara.

This is also the way the RAMBAM (Hilchos Nizkei Mamon 2:5) explains the Gemara; the question of the Gemara is in a case where the animal kicked, and it is asking whether one is Patur in Reshus ha'Rabim for Tzeroros of Keren.

(b) However, as we pointed out, Rashi changed his mind and added the first Lashon to his commentary. The first Lashon *does* conform with the explanation of the "Moreh" which he cites here (19a, DH O Dilma). That is why Rashi also omits the question that he asked on that explanation in his original commentary, which is included in the words of Rashi on the Rif. Since he sided with that explanation, he no longer questioned it (see Insights to 18:1, where we show that the explanation of Rashi's teacher in DH d'Dachik Lah was in agreement with the first Lashon).

Since Rashi in the first Lashon explains that the Gemara does consider the possibility that the Halachah of Tzeroros of Keren is more strict than Tzeroros of Regel, he cannot explain that the Gemara here is concluding that Tzeroros of Keren has *no* unique Chumros (such as being Chayav in Reshus ha'Rabim). Therefore, Rashi explained that the question of the Gemara is when the animal did *not* kick. Rather, the question is simply whether for Tzeroros "k'Orchaihu" -- Tzeroros of Regel -- one is Patur in Reshus ha'Rabim, like normal Regel, or whether one is Chayav in Reshus ha'Rabim because the Halachah l'Moshe mi'Sinai, which teaches that one pays Chatzi Nezek for Tzeroros, is trying to make Tzeroros similar to Keren, and therefore it might be making it similar to Keren with regard to the Chumra (i.e. the Chiyuv in Reshus ha'Rabim) of Keren as well.

How does Rashi understand the Gemara earlier (3b) that concludes that one is Patur for Tzeroros in Reshus ha'Rabim? TALMIDEI RABEINU PERETZ explain that the Gemara there was written after the conclusion of our Gemara was reached, which is that Tzeroros of Regel is a Toldah of Regel and one is therefore Patur for Tzeroros of Regel in Reshus ha'Rabim. This is also the explanation of RABEINU YESHAYAH, the RASHBA, and the TALMID HA'RASHBA V'HA'ROSH in our Sugya.

It was according to this explanation that Rashi adds everything that he says in our Sugya about being obligated to pay Chatzi Nezek for Tzeroros, just like for Keren, and about "k'Orchaihu," meaning that the question of the Gemara concerns normal Tzeroros, Tzeroros of Regel.

19b

QUESTION: Rav Ina asks what the Halachah is in a case where the animal caused damage by being "Kishkeshah b'Amasah." Is it like Keren, because Keren is damage done when the animal is overtaken by its urges, and the animal in this case is also overtaken by its urges, or is it not like Keren, because the urge of Keren is to do damage, and here the animal's urge is not to do damage? The Gemara concludes "Teiku" and does not answer this question.

What is Rav Ina's question in the first place? We should just ascertain whether or not this act is something normal for the animal to do! We have a rule that any act which is unusual is considered Keren, and any act which is the normal way for an animal to act is not considered Keren. Even though the Gemara here (and earlier, 2b) mentions that Keren is defined by "Kavanaso l'Hazik" (it has intention to damage), it seems clear from many Gemaras that even if the animal has other intentions (such as hunger) that drive it to do what it does, even if it is clear that the animal does not intend to do damage, the damage done in an unusual way is still considered to be Keren. We see this first from the Gemara earlier (15b) that says that a dog that ate a sheep is considered to be a Shinuy (and an act of Keren), because dogs usually do not attack animals bigger than themselves. The Gemara says that it is considered Keren, even though the dog *ate* the sheep and was clearly interested in eating and not just in causing damage. Similarly, we find (16b) that a lion which is "Toref v'Ochel" (it first kills its prey and then immediately eats it) is considered a Shinuy, and even though the lion was eating what it killed, it is still considered Keren. Also, we find (18b) that if a chicken inserts its head into a glass vessel and crows, causing the vessel to break, it is a Shinuy and is considered Keren, even though the animal certainly did not intend to break the glass by making a loud noise. We see that the defining characteristic of Keren is that it is an act that is unusual for the animal to do.

Conversely, we find that an act that is normal for the animal to do is *not* considered Keren *even* when the animal has intention to do damage. For example, Tosfos (16a, DH v'ha'Nachash) explains that even though a snake does not benefit from killing what it bites, and it bites only to kill and cause damage, nevertheless since that is the normal manner of a snake to bite, it is considered Regel and not Keren (and the owner is Patur for such damage in Reshus ha'Rabim).

Therefore, when an animal is "Kishkeshah b'Amasah," we should simply ascertain whether it is the normal manner of an animal to act in that way or not. Why should there be a question of whether it has intention to do damage? Why should that make a difference? (RISHONIM)

ANSWERS:

(a) The ROSH explains that the question of our Gemara is whether such an act is the normal manner ("Urchei") or not. This means, the Rosh explains, that it is not a frequent occurrence for the animal's urges to overtake it in such a way, and in that sense it is an unusual act. On the other hand, in general, when an act is infrequent, the infrequency should demonstrate that the act is not something that the animal does as its normal way of acting (such as walking), and it is not something the animal does for its own benefit and pleasure (such as eating). Therefore, if it does something infrequently, it shows that it does it in order to cause damage. In our case, though, the infrequency of the act cannot show that the animal intends to do damage, because the animal's urges have overtaken it; the infrequency does not demonstrate that the act is being done out of the animal's intent to do damage. Since it cannot be that it wants to do damage, perhaps we should say that the fact that the animal is sometimes overtaken by this urge should make it be considered "Urchei," its normal manner and a common occurrence, even though the amount of times that such an act happens is infrequent. Rather, anything that happens by a natural process should be considered to be "Urchei," the normal manner of an animal to act, despite its infrequency. Thus, the question is do we consider it infrequent (and unusual) because of the amount of times that it occurs, or do we consider it frequent (and normal) because it is a natural process that is causing it to act in such a way?

In the case of the snake, the snake damages frequently and it is clear that it is a natural process that causes it to act in such a way (bite), and therefore it is certainly Regel. In the case of the dog that eats a larger animal, even though we see that the dog benefits from it, since it is an unusual occurrence we can say that perhaps it is not a natural process, but it is doing this because it wants to cause damage more than it wants to eat.

In the case of "Kishkeshah b'Amasah," though, where the animal cannot be doing the act because it wants to do damage, the Gemara asks whether it is considered Keren or not.

(b) The SHITAH MEKUBETZES cites RABEINU YESHAYAH and TALMIDEI RABEINU PERETZ who explain that it *is* "Urchei," the normal manner, for an animal to be "Mekashkeshes b'Amasah," and nevertheless it could be considered Keren and be Chayav in Reshus ha'Rabim, since we find that Keren *Mu'ad* is something that is "Urchei" and is nevertheless Chayav in Reshus ha'Rabim, unlike Shen and Regel. The reason this act would not be considered Regel, they explain, is because the animal does it only when its urges overtake it, and it does not do the act on its own accord.

According to this, it is not clear why we do not apply what the Gemara teaches earlier, that a person is not obligated to watch out for anything that an animal normally does ("does a person have to hold on to the tail of his animal as it walks!?"), and he is permitted to walk his animal through the public marketplace. In other words, it is expected that the other people in the marketplace will be careful and keep away from his animal in such a way that it should not cause damage through the way that it normally acts (such as through walking, eating, etc.). This, in fact, is the reason why one is Patur for Shen and Regel in Reshus ha'Rabim -- the people are all "Mevater" to each other; people allow each other to walk their animals there and will take care by themselves not to let the other's animal do damage to them, since they can expect and be cautious of the animal's normal way of acting.

Why, then, should "Kishkeshah b'Amasah" be different? If it is something normal and expected, then let other people be careful and be "Mevater" to each other, and walk their animals through Reshus ha'Rabim without having to worry about their animals doing this act!

Perhaps these Rishonim mean that not every animal has such a strong Yetzer ha'Ra that it is prone to be "Mekashkeshes b'Amasah." Only certain animals have such strong urges. In this sense, the animal is like a Keren Mu'ad -- people do not protect themselves from a Keren Mu'ad that is walking in the marketplace, because they do not know, and cannot be expected to know, that this animal is a Mu'ad. If the owner, though, knows that his animal is a Mu'ad, then the owner must watch his animal and keep it from doing damage.

In this case, too, people are not supposed to expect that someone's animal will be "Mekashkeshes b'Amasah," and that is why it is like an animal that is a Keren which the owner must watch. On the other hand, although the owner has seen that his animal has a strong Yetzer, that is no reason to suspect that the animal will do damage in this way, since it is such an unusual type of damage. Even though the owner knows that the animal has a strong Yetzer ha'Ra and is prone to be "Mekashkeshes b'Amasah," nevertheless perhaps he is Patur in Reshus ha'Rabim, since no one could expect an animal to do damage in such a way, and therefore the owner does not have to be responsible for this act anymore than the other people in Reshus ha'Rabim have to be responsible for this act. We consider it to be the type of normal act that is similar to Shen and Regel, where each person in the marketplace will watch out for himself, and we do not require the owner of the animal to keep his animal from doing damage.

(c) The NETZIV suggests as follows. A normal case of Keren is an uncommon act that is uncommon in two ways: first, it is uncommon in that the animal should have an urge to do damage, and, second, even if it does have an urge to do damage, it is uncommon that it actually does damage. In the case of "Kishkeshah b'Amasah," although it is not common for an animal to have such a strong urge to be "Mekashkeshes b'Amasah" in the first place, nevertheless when it does have such an urge, it is overtaken entirely by the Yetzer and therefore it becomes *common* that it will do damage, since it does not pay attention at all to what it is doing.

That is the question of the Gemara: do we say that the main thing is the thing that *caused* it to do damage, which is the Yetzer ha'Ra which is not common and not "Urchei," or do we say that we should follow the act itself, which is the act of "Kishkush," and once the animal is already being "Mekashkeshes," it *is* common and "Urchei" for the animal to do damage.