Perek Hakones XI - Mekarev Davar Eitzel HaAish I

A. Analysis of Tosfos' Question

See Tosfos (s.v. Eelaima). Tosfos ask that considering the implication of our Gemara that there is no difference between moving the fire close to the item destroyed, or moving the item getting destroyed close to the fire, (as we see that moving produce to where the fire will consume it will obligate the perpetrator), why then does the Gemara in Sanhedrin 77a state that if one ties someone else in a place where the heat or cold will reach him and kill him, or, similarly, in front of a lion, he is not considered a direct murderer. He has merely caused the death of the victim. According to the opinion that holds Isho Mishum Chitzav (see beginning of previous post), then we should equate this to bringing the vehicle of death to the victim. Meaning, just as one who lights a fire that kills someone is a murderer according to this opinion, so too, based on this Gemara, should be someone who brings a victim to a place where fire (or, as in Sanhedrin, heat, cold, or wild animals) will kill him.

This requires explanation. In the case of bringing someone toward the fire, the fire was not propelled by the criminal, nor even ignited by him. How is there any way to consider the fire as "his arrows"?

Perhaps this can be explained based on R' Chaim Soloveitchik's comments to Hilchos Shecheinim (11:1) . In the matter of Isho Mishum Chitzav, there are two ways to define the novelty being conveyed by this formulation and categorization of Aish:

A - Although it is the wind that is transporting the fire, nevertheless, since he ignited it, we do not consider the wind's force as a mitigation of the human's action. On the contrary, we consider the wind as part of the human's action. Meaning, the Torah is telling us that when using the forces of nature in order to transport the Mazik created from point A to point B, this is considered the force of the human being. The reality of the ignition of the fire and its transportation are all traced back to be considered the force of the lighter of the fire. The Bircas Avraham adds somewhat more clarity to this by adding that just as the ability of the fire to burn and spread and consume is not considered extraneous, and hence exculpatory, to the human's input, but is considered part of the human's action, similarly the wind's intervention in transporation of the fire is considered to be employed by the human himself.
[It should be noted that the Chazon Ish in his glosses to R' Chaim there expresses difficulty with this interpretation of Isho Mishum Chitzav, and explains that when utilizes the force of the wind which is available immediately to propel the fire, this is considered Kocho]

B - Although in reality it is not the force of the human being used to propel the fire, nevertheless Halachah is informing us that just as when one shoots an arrow and utilizes his own force to propel it, he is culpable for the result, so too when one utilizes the force of nature to transport the fire he is just as responsible. These two cases, though distinct in terms of the reality of where the propellant forces are viewed as coming from, are treated Halachically without any difference.

It would seem that our Tosfos is following this second approach. Just as the Torah innovates that whatever the wind propels is Halachically synonymous with a shot arrow, despite the reality of the human involvement in propelling the arrow, since it is a force of nature being used to propel the fire and not a power source with any sort of cognitive input, similarly, when one brings the produce proximate to the fire, since he is using the forces of nature to damage the produce, this is also included in Chitzav.

[R' Chaim in Hilchos Shecheinim concludes that the first way of looking at Isho Mishum Chitzav is correct. R' Soloveitchik quotes R' Chaim as saying that indeed there is no application of Isho Mishum Chitzav in a situation of bringing something close to the fire, and that Tosfos' question is therefore moot. (See part B below) It seems clear that this is based on R' Chaim's conclusion. See also Bircas Avraham to 22b (Mahadura Basra) that R' Chaim explains Tosfos there (s.v. V'hayah) based on the second side of this Chakirah).]

[See Maharam Shiff to Tosfos that the question is inapplicable according to the view of Reish Lakish, Isho Mishum Mamono, since there is no question of culpability for murder even in a situation of lighting the fire.]

B. Additional Answers to Tosfos' Question

1) We brought R' Chaim earlier, and the Chochmas Shlomo (To Shulchan Aruch Choshen Mishpat 418) concurs, that there is the application of Isho Mishum Chitzav is limited to one igniting a fire, but when bringiing something close to the fire there is only Isho Mishum Mamono, and there is no culpability on grounds of Retzichah.

The Shitah Mekubetzes quotes the Ra'ah, who distinguishes between murder and damage. wherein one is not culpable for murder unless it is done by the person's body or force generated by him - "and Isho, according to the opinion that it is Mishum Chitzav, as well as his actual arrows, is considered fully as his Koach, but generally speaking this is not so. And it also stands to reason that a rock, knife, or bundle placed atop of his roof, where they fell due to a common wind and damaged, which is considered a sub-category of Aish, cannot be considered Chitzav, but only Mamono.

It seems that the fundamental idea behind this Ra'ah is identical to R' Chaim, in that he holds like the first side of the Chakirah earlier - that Isho Mishum Chitzav is considered, in reality, to be his Koach, as is implied by the language of the Ra'ah - כוחו גמור חשבינן ליה - and therefore where the Koach of the perpetrator has already been expended, such as in the case of the rock and knife, or when bending the produce where he brings the produce proximate to the fire, there is no application of Isho Mishum Chitzav.

2) The Ran (Sanhedrin 77b, end of s.v. Zarak) holds that even if we were to assume Isho Mishum Chitzav, and the perpetrator ignites the fire, there is no culpability for murder. The reason for this is that it is not really a direct act of murder on the part of the person who lit the fire, since he merely lit the fire. It is not even like a case of מצמצם (Sanhedrin 76b - restricting someone to a place or situation where he will die, such as holding someone under water, where the victim went under the water initially on his own), where he is doing a direct act.

The difficulty with this position is the Gemara on 22b, that states that if one lights a haystack with a slave tethered to it, and a goat nearby, and everything was consumed by the fire - he is absolved from having to pay for the haystack, according to the opinion of Isho Mishum Chitzav, based on the rule of Kim Leih B'Derabbah Mineih - he has done an act worthy of the death penalty and therefore he does not have to pay for the monetary damage. The implication here is that the person lighting the fire is culpable for murder of the slave.

The Minchas Chinuch (Mitzvah 56) explains that since he is causing the person to die by his "arrows", he has the status of a Rodef (someone chasing after another to kill him), and a Rodef who breaks someone else's utensils is absolved since he is in a situation where someone else can legally kill him. [See the Minchas Chinuch there, who uses this idea to explain the Rambam's opinion, unlike our Tosfos, that even if the perpetrator moves the victim toward the heat or cold he is not culpable for murder. However, R' Chaim in Hilchos Shecheinim there. and the Brisker Rav in Hilchos Rotzeiach dispute the explanation of the Minchas Chinuch in the Rambam. They are of the opinion that the Rambam does hold one ignites a fire responsible for murder according to the approach of Isho Mishum Chitzav. This is beyond the scope of our discussion here]

3) The Tosfos Rid distinguishes between a situation of the heat or cold approaching, versus our case - in a case of sun or cold they do not kill immediately, but only after a great amount of timeh has elapsed, and even though the cold reaches the victim eventually, this is insufficient grounds for culpability for murder. But in the case of fire, the fire burns him immediately, and since it is going to come, there is no greater act of murder than this.

All of these answers, along with the answer of Tosfos, present interesting ramifications. For instance, throwing someone into oncoming traffic, or tying someone to the train tracks. Tosfos and Tosfos Rid would hold one responsible for murder in these cases (assuming the traffic is high-speed enough to kill upon impact, as per the Tosfos Rid criterion) whereas R' Chaim and the Ran would not.

4) Maharsha to Tosfos (Sanhedrin 77a) explains Tosfos there that Isho Mishum Chitzov applies only if the wind is transported with no wind at all, but if the wind is transporting the fire it is considered Koach Kocho, and therefore the person who lights the fire is not culpable for murder. However, the Chazon Ish (Bava Kama 2:2) explains this Tosfos along the lines of the Ra'ah above. See also B'ikvei Hatzon (7: 3-6)

Perek Hakones X - Kofef Kamaso Shel Chaveiro Bifnei HaDeleikah

(See Meiri for a description of the simple parameters of the cases of common/uncommon wind)

A. Rashi's opinion:

1) See the Gemara earlier of 22a, the dispute between R' Yochanan and Reish Lakish as to whether Isho Mishum Chitzav/Mishum Mammono; i.e., is the obligation to pay for fire which consumes something else similar to the obligation to pay for an arrow which one shot, (R' Yochanan) or similar to the obligation to pay for one's animal which does damage.

Rashi there (s.v. Mishum Mammono) writes that according to Reish Lakish, there is a requirement that the fire be owned by the perpetrator in order for him to be obligated to pay. Tosfos there (s.v. Isho Mishum Mammono) disagree. One of the proofs is our sugya, that one who bends someone else's produce is liable despite the fact that the fire does not belong to him.

The Shitta Mekubetzes, Pnei Yehoshua, and, in more detail, the Nachlas Dovid, distinguish between the case of כופף קמתו של חבירו, where the act was done to the item which is being damaged, wherein the Mechayev is not based on the Av Nezikin of Aish, rather it is under the rubric of an אדם המזיק - a person doing damage directly, similar to one who throws someone's garment into the fire, who is considered an אדם המזיק - see Tosfos (6a Dibbur HaMaschil L'Assuyei).

[The Bircas Avraham asks, that according to Reish Lakish, the reason why generally one is not responisble for fire he lights based on Chitzav, i.e. אדם המזיק, unlike Rabbi Yochanan, is because the fire is not moving because of an input of force provided by the Mazik (האי אש לאו מכחו קאזיל) - and, if so, the same limitation should apply to this case of bending the produce. Perhaps this is not a difficulty, though, since we can suggest that the fire, according to Reish Lakish, would be like an arrow "shot" by the wind; and one who bends produce toward a place where the fire will reach it when propelled by a common wind, is similar to one who places his fellow's object in a place where it will be pierced by an arrow shot by someone else, wherein he would be considered an אדם המזיק]

The Beis Aharon here writes that the above approach is what Rashi means in our Sugya in Dibbur HaMaschil "B'Ruach Metzuyah" - הרי בידים הבעיר ובדיני אדם ניחייב - meaning, even according to Reish Lakish he should be liable to pay בדיני אדם based on אדם המזיק.

2) The Gemara states that the case that the perpetrator is חייב בדיני שמים is where the wind was an uncommon one. What is interesting is that we do not find a Halachah that one who lights a fire and it spreads through an uncommon wind is obligated to pay even בדיני שמים. [We certainly cannot obligate him בדיני אדם, for in terms of אשו משום חציו there can be no obligation based on the rule of כלו ליה חציו ("the arrows have been expended") - see 23a, the case where a wall falls down after the fire has started and the fire spreads beyond where it would have initially; and even based on אשו משום ממונו, we have already said on 55b that the Torah limited the level of Shemirah required for Aish (See Chazon Ish (Bava Kamma 2:2 ד"ה והנה))]. Indeed, the Yad Ramah to Bava Basra (Perek 2:(107)) holds that in the case of כופף קמתו he is חייב בדיני שמים, whereas when he lights a fire, and did nothing to the actual item being damaged, he is completely absolved. (See also Poras Yosef , glosses to Bava Basra 26, for a similar distinction). This still requires more explanation, though.

It seems that according to Rashi, this distinction works out well, since when an uncommon wind transports the fire, this is Halachically considered an אונס, as per Rashi on 3b, 29a) [See Hakones II, section II]. We must determine, then, whether one is totally absolved for גרמא באונס. See Hakones V, Preface II, where we said: "It also seems from Rashi that the punishment is not for the incurring of the loss per se, i.e. the result of the action, but rather for the intent of causing a fellow Jew to lose money. The implication is that for Gerama B'Shogeg one would be completely Pattur, and the Chazon Ish indeed decides the Halachah that one is completely Pattur for Gerama B'Shogeg." (This is based on Rashi to Gittin 53, where he writes חייב בדיני שמים שנתכוון להפסיד את ישראל. We can suggest that this actually depends on that Chakirah in Hakones V, in the preface there. According to Rashi, that חיוב בדיני שמים means that there is a punishment from Hashem which needs atonement through payment, it seems correct to say that when there is an אונס, there is an absolution based on the Passuk of ולנערה לא תעשה דבר - there is a general absolution in the eyes of Hashem for any transgression violated באונס. However, in the case of bending the produce there is not really an אונס (or, in the language of the Meiri - "כמקצת אונס" - like a bit of an אונס), as the ניזק can claim that the perpetrator had no business bending the produce at all [See later 62a, a similar סברא , in the case giving a gold coin to someone to watch, and the guardian was told that it is silver], and therefore he is חייב בדיני שמים like any case of גרמא.

[Perhaps for this reason Rashi here does not use his regular explanation for uncommon winds - "אונס" - and says, instead, that "לא סליק אדעתיה" - he did not think it would happen.]

According to the Meiri , elaborated upon in Hakones V there, that חייב בדיני שמים by גרמא is a complete monetary obligation, it might be said that he would indeed hold that even in a case where he lit a fire and it spread through an uncommon wind that he would be obligated to pay. However, based on what the Meiri writes on 56a, that where there is no intent to damage the perpetrator is not obligated to pay, we modified the standard interpretation of the Meiri by saying that he holds that the monetary obligation is triggered by violation of an Issur, and therefore the Meiri would also agree that in a case of אונס he would be פטור.

B. Other Rishonim

To explain why the one who bends the produce is responsible בדיני שמים in a case of an uncommon wind, we can say the following:

a) Since there is an additional force abetting the damage, it is considered גרמא according to the Meiri's interpretation of the Rambam. (See Hakones VII)

b) If we assume unlike the Meiri, and the Rambam holds that it all depends on intent to damage, we might suggest that the unlikelihood of damage occurring mitigates the intent. One cannot be that intent on a particular result if the result is unlikely (and especially if there are more direct ways to acheive this objective). [See later on 56a, the case of placing poison before someone else's animal, for which one is also חייב בדיני שמים, where the Meiri writes - הואיל ואין דרכה שתאכל, אין כוננה זו קרויה כוונה להזיק"

c) Perhaps the absolution is based on מקצת אונס , as per the Ramban mentioned earlier.

d) If we assume that the disticntion between גרמא and גרמי is based on ברי היזיקא (see Hakones V, preface I), see Pilpula Charifta to Rosh (9:13:(200)), that since we are referring to an uncommon wind it is not considered ברי היזיקא.

Perek Hakones IX - Poretz Geder Bifnei Behemas Chaveiro IV

(continued from previous post)



2) The opinion of the Rambam is that the one who broke the wall is responsible B'Dinei Adam for the wall; and for the damage that the animal does he is Pattur B'Dinei Adam and Chayav B'dinei Shamayim.



The Rambam elucidates in his responsum:

"And if the wall was shaky wherein the animal is not guarded, the one who breached it is absolved from this damage which the animal did, but his is responsible B'Dinei Shamayim because he caused the owner to have to pay since the wall was shaky [...since the owner was negligent the one who breached the wall is absolved and the owner is responsible since this is a case of תחילתו בפשיעה (i.e. the owner had done nothing to prevent this damage from happening. Although in the end it was the one who breached the wall who let the animal out (סופו באונס), nevertheless we decide the Halachah that תחילתו בפשיעה וסופו באונס is חייב)], as we explained, that even if robbers dig under the wall or breach it, the owner of the sheep is responsible; and since had he not breached the wall it was possible that the animal would not have gone out and damaged, therefore the one who breached the wall is חייב בדיני שמים."


So, the rule is that one who causes damage (גרמא) in a situation where the owner of the animal was negligent, he is absolved, even if his intent was to have damage done. [Where the Rambam normally holds the one who caused the damage is חייב בדיני אדם if that was his intent, see previous post.



3) The third opinion is that of the Rosh, Tosfos to Sanhedrin and Tosfos Rabbeinu Peretz in their second approach, the R"i MiLuneil and others - he is responsible B'Dinei Shamayim for the wall and the animal.

Regarding the CB"S for the wall, there are distinctions in the Rishonim as to the reason for this:

1. Tosfos - since he derives benefit from it until workers become available to repair the wall. (The Yam Shel Shlomo asks that if this wall is certainly fit to last for two or three days, then he should have to pay B'Dinei Adam for those three days.Rav Soloveitchik (Reshimos pg. 288) explains that the case is where the wal has no value on the market because nobody would be willing to purchase it, however as long as it stands the owner is getting some benefit from it.)
2. Rosh - Since it is fit to stand for a day or two until he finds workers and building materials. One could explain that this is identical to Tosfos, however see Pilpula Charifta (2) - "Now the owner must spend more and hire the workers for more money". This is clearly a case of Gerama, and therefore it is clear why he would only have to pay B'Dinei Shamayim.
3. Shiltei Giborim - Since there is an animal in front of the wall, he should not have demolished the wall due to the risk of the animal leaving. (Why this dictates that he is CB"S and not CB"A is still unclear to me)
4. Ra'ah (quoted in Shita Mekubetzes) - There is a doubt as to whether the wall will collapse or not, and therefoe, due to this doubt, he is CB"S. The Dvar Yaakov explains why this is different than any Safek Mammon where he is not CB"S, in that in this case, if it is known to HaShem that the wall would not fall, he is indeed a Mazik, it is just that since Beis Din doesn't know what would have happened they cannot obligate him to pay. In this scenario, in order to be Yotzei Yedei Shamayim he has to pay.

Perek Hakones VIII - Poretz Geder Bifnei Behemas Chaveiro III

Case II - a shaky wall (Kosel Rau'a)


There are three opinions in the Rishonim regarding the obligation for the wall:

1) The one who breaches the wall is completely Pattur for the wall, and the Chiyuv B'Dinei Shamayim relates to the lost animal.

2) The Poretz is Chayav B'Dinei Shamayim for the wall.

3) The Poretz is Chayav B'Dinei Adam for the wall.

To elaborate:

1) Tosfos in our Sugya, as well as in Sanhedrin (and the Tosfos Rabbeinu Peretz here) in their first approach, hold like the first option above.

[This opinion's strong point in its favor, is that it is clear why R' Yehoshua speaks of breaching a wall before an animal, and not just breaching a wall].

There are two reasons why he would be completely absolved for the wall:

A) The wall would have collapsed on its own in any event.
B) The owner is commanded to knock down his wall so that others do not get damaged by it falling on them.


There are two major problems with this approach:
a) (raised by Tosfos) - later on 56a, when the Gemara discusses what the novelty is in each of the cases of R' Yehoshua, the Gemara says - "since it is meant to be knocked down, what did the breacher do, and so (I would think) he should be absolved even B'dinei Shamayim, therefore (R' Yehoshua) is teaching us (that this is not so)". The implication is that the discussion is about the wall.

b) The Rambam in his responsa to the Chachmei Lunil writes that for a whole utensil, one pays for the value of a whole utensil, and for a shaky one, one pays for the value of a shaky one! This seems to be true - what would the Tosfos respond?

The responses to these questions depends on the two aforementioned reasons for the absolution from payment, and the analysis is different for each of these reasons:

-If we assume like reason B) is correct, that the owner is responsible to knock it down on his own, then we can approach the matter as follows:
The answer to question a) above is that the intent of the Gemara on 56a is - I might have thought that since the wall is shaky and the owner must knock it down himself so that it does not fall on people, so anyone who knocks it down has essentially been alacritous in the performance of a Mitzvah, and so he should be absolved even B'Dinei Shamayim for the animal, so R' Yehoshua is telling us that this is not so.

The reason, writes the Rashba, is that the breacher should have warned the owner of the animal that he needs to guard his animal, and since he neglected to do so, and the animal got lost, this is a case of Gerama.

Rav Soloveitchik explains this in some more depth, based on the Sugya (60b, 117a) that one may not save himself by using someone else's property, wherein Tosfos (60b, s.v. Mahu) hold that certainly Pikuach Nefesh overrides theft or damage, and the Gemara means that one must pay for the damage that he did to save his life. If so, here the one who knocked down the wall must pay for the animal, since the Mitzvah of saving people from potential damage (which is the basis for the allowance of knocking it down) does not eradicate the obligation to pay for the loss of the animal. The reason that he is only Chayav B'Dinei Shamayim is because this is only a Gerama of the loss of the animal, as above.

[This is in accordance with Tzad A in preface II here that Chiyuv B'Dinei Shamayim is essentially a monetary obligation, for if it was merely a prohibition which needs to be atoned for by payment of money, then the Mitzvah of saving other people from damage would eradicate the prohibition altogether! Clearly this Chiyuv B'Dinei Shamayim is a monetary obligation]

To answer the second question above, the Pnei Yehoshua says that since the wall is meant to be knocked down, and the person doing so is doing a Mitzvah, he is completely Pattur, as opposed to any shaky utensil where there is no obligation to knock it down. [Even if it will fall only in the even of an uncommon wind (as Tosfos sets up the case), we must say that even so there is a Mitzvah to knock down the wall to prevent endangering people in the event of an uncommon wind. This is a bit difficult, though].

[In truth, the Rambam himself in that responsum to Chachmei Lunil writes that if the wall is meant to be knocked down, and there is a Mitzvah involved, then the one who did so is completely Pattur. If so, then we can suggest that there really is no dispute between Tosfos and the Rambam - Tosfos is talking about a wall meant to be knocked down, whereas the Rambam is talking about a shaky wall which is not meant to be knocked down. If this is true, though, then there is a difficulty on the Rambam from the Gemara on 56a, which says that the wall is למיסתריה קאי - meant to be knocked down! However, there is another version which is למיסתר קאי - and Tosfos at the end of the Dibbur explains this as למיסתר ולמיפל - i.e. it is going to fall. Perhaps this was the version of the Rambam. See below.]



- If we assume like reason A) above, that the person who breached the wall is absolved because the wall would fall of its own accord, then the explanation for Tosfos is as follows:


The answer to question a) is that the Gemara since the wall would have fallen anyhow and the animal may very well have run away as a result, I might have thought that the he should be Pattur B'Dinei Shamayim, so R' Yehoshua is telling us that since it is possible that the animal would not have run away, he is obligated at least B'Dinei Shamayim. [He cannot be Chayav B'Dinei Adam, since this is Gerama.]


To answer question b) we can suggest that since the wall is shaky and is going to fall by itself, this is considered that מנא תבירא תבר - he has broken a utensil which is already essentially broken (see Bava Kama 17b).

If so, we need to move back to the Rambam. Why would he be responsible to pay for such a utensil?

When looking at the Rambam in the aforementioned responsum carefully, it seems that according to the Ramban a 'shaky wall' is not a wall which is about to fall, but rather a type of wall that the animal could breach through and do damage. The indication that this is so, is that Rambam emphasizes there that in this situation the animal is אינה משתמרת, not guarded, and he also writes that ואם לא פרץ אפשר היה שלא תצא ולא תזיק - had he not breached the wall it would have been possible that the animal would not have gone out and damaged; the Rambam does not talk about the wall possibly falling on its own.

The following is an interesting point that I've seen nobody speak about. The Meiri (end of s.v. Gedolei HaMechabrim), when elucidating the position of the Rambam, writes: אפשר היה שלא תפול ולא תזיק - implying that the issue is whether the wall would have fallen or not. This seems to be against what we just suggested, that the wall certainly would not fall on its own according to the Rambam!
However, fascinatingly, the Meiri as quoted in the Shita Mekubetzes states: אפשר היה שלא תפיל ולא תזיק meaning the issue is that the animal might not have caused the wall to collapse! And based on Dikduk, I think this is surely the correct Girsa, since if we are talking about the wall, it should have said אפשר היה שלא יפול, since כותל is masculine. When talking about the בהמה knocking down the wall, the word תפיל is grammatically correct!

Tosfos, though, understands that the wall may fall by itself, and he is therefore not responsible for the wall at all.

Based on all the above, then, there seems to be no Machlokes between the Rambam and Tosfos at all, since they are speaking about different types of כותל רעוע, unlike the Sm"a (396:(9)) who states that there is a dispute between them on whether the poretz is responsible for the wall.

Perek Hakones VII - Poretz Geder BiFnei Behemas Chaveiro II

(continued from previous post)

C) Rambam (Nizkei Mammon 4:2)

The Rambam holds that the person who breaches the wall is responsible even for damage that the animal does.

In a responsa to Chachmei Lunil (quoted in the Migdal Oz ibid.), the Rambam distinguishes between the case of Listim breaching the wall, where the Mishnah states that they are absolved, and the case of one who breaches the wall, in that it depends on the intent of the one who does the breaching. If his intent is to steal, and after the breaching he leaves it and does not steal the animal - so he did not do what he initially intended to do, and he is not responsible for damage that the animal does.

In explaining the opinion of the Rambam as to why the person who breached the wall should not be absolved based on this being a case of Gerama, the Meiri writes that since his intent was that damage occur, and the damage happened by the hand of the person who breached the wall himself, with no other force abetting him - this is included in Dina D'Garmi.

However, the Shach (386:(4)) writes that in reality the opinion of the Rambam is like that of Rashi (see this post Preface I, B) that there is no difference between Gerama and Garmi. The Gr"a (386:(8)) explains more, in that according to the Rambam holds that all Gerama is Chayav (See Rambam Chovel UMazik 7:7), but only on condition that he has intent. (See Rambam Sanhedrin 6:1,4 regarding judges who err in their judgement, wherein an expert judge who makes a mistake on a D'var Mishnah is absolved - "even though he caused damage he did not intend to do damage", but if he is not an expert and he was not accepted explicitly by the litigants - "he pays like all those who cause damage, for this (is tantamount) to intent to damage".

[The Rambam's position needs more clarification in light of the Sugya (56b) of leading someone else's animal to produce which does not belong to him. B'ezras HaShem we will deal with this there].

Perek Hakones VI - Poretz Geder BiFnei Behemas Chaveiro I

Case I - A solid wall (Kosel Bari)

In explaining the parameters of obligation to pay, there are three opinions in the Rishonim:

A) Rashi, Tosfos, Rabbeinu Chananel et al:

The one who breaches the wall is Chayav B'Dinei Adam for the wall, and Pattur B'Dinei Adam for the animal - both for loss of the animal and/or damage that the animal does.

The reason for the absolution for loss of the animal, write Tosfos and other Rishonim, is because it is Gerama. And, similarly, regarding damage that the animal does, the Meiri writes that the one who breached the wall is not responsible B'Dinei Adam because it is Gerama.

Should this qualify as a case of Gerama or Garmi?

The Ramban (Kuntress Dina D'Garmi) utilizing his definition above (see previous post) writes in explaining this opinion - "Because (the Mazik) can say to (the Nizak) who says it would have gone out, and if it does go out, who says it will get lost - maybe it will be found, and therefore it is not a case of Bari Hezeika."

[Rashi brings a proof from our Mishnah for this opinion, see Maharam Shiff and Rashba as to the strength of this proof]

B) Ra'ah, Ramban (quoting a Yesh Mefarshim), Ramah, and one possibility in Tosfos (Sanhedrin 77a):

The breacher is Chayav B'Dinei Adam for the loss of the animal, but not for damage it does.

The rationale for such a position (despite seeming to be Gerama) is stated by the Ramban as follows:

"Although the Mishnah states that the robbers breach the wall and they are not responsible unless they hit the animal, (Bava Kama 56b) this is regarding responsibility to pay for damage the animal does, insofar as the animal has not entered into the domain of the robbers they are not responsible for damage it does, but for the animal itself they are always responsible until they return it to a place which is guarded, because at the time that he breached the fence it left the domain of the owner, and the robbers caused this, therefore they are not absolved from responsibility for the animal itself until they return it to a place which is guarded, in the domain of the owner, since they took it out of the domain of the owner at the time that they breached the wall."

The implication of the Ramban is that the definition of the damage here is the removal from the Reshus of the owner, and since the wall was breached - although nothing was done to the animal itself - the perpetrator caused the animal to leave the Reshus of the owner at the time that the wall was breached, and therefore the Mazik must rectify this situation by returning the animal to its former guarded state [See R' Chaim Soloveichik (Hilchos To'en V'Nit'an) that the nature of the obligation to pay for damage is, in essence, to return to the status quo ante before the item was damaged.]

In what is quite possibly an additional layer of understanding of the Ramban, see Emes L'Yaakov (R' Yaakov Kamenetzky) to Bava Basra (22b), that since the Halachah is that one who sees a cow in an unguarded barn is obligated in Hashavas Aveidah, meaning that in that situation the animal is considered lost, so the Mazik who essentially made a protected animal, into a Halachically 'lost; animal is considered as a Mazik B'Yadayim, similar to one who tells robbers where to find money belonging to someone else (Moser Mammon Chaveiro L'Massikin - Bava Kama 117a), where the person is considered as one who has 'burnt' that money.

[Compare to the Ramban (Kuntress Dina D'Garmi s.v. Shisah Bo) where this seems to be the rationale - removal from the Reshus of the owner by removal of Shemirah is the Nezek]

See, also, support for this idea in the Nesivos HaMishpat (291:(7)), that one who takes his friend's item from a guarded place and places it in an unguarded place is considered a Mazik B'Yadayim.

- Is this Mazik B'Yadayim or Garmi?

From the phrasing of the Ramban it would seem that this is a case of Garmi. The Beis Yosef (Choshen Mishpat 396) when explaining the Ramah writes - "Since they breached the wall in front of it it is as if they actively destroyed it." The Yam Shel Shlomo writes - "It is like a Mazik B'Yadayim." The GR"A (396:(10) seems to write both possibilities. The Ra'ah (quoted in Shitta Mekubetzes) - "He is a Mazik Gamur".

Presuming that there is a Machlokes about this, perhaps we can suggest that this depends on the definition of the difference between "causation" of damage and actually doing damage. We can suggest two options:

1) Did the loss occur to the item that the destructive action was done to itself - which would be a Ma'aseh B'Yadayim? This is contra Garmi where through an action to item A the damage occured to item B.

If this is the definition, then this case should qualify as Garmi, since the action was done to the fence whereas the loss is the animal.

2) Is there any kind of 'gap', or separate stage, between the loss and the action, i.e. the loss is a result of the action, such as by burning one's bills of debt, wherein through the burning of the bill, as a result, the owner cannot collect? This would be Garmi, contra Mazik B'Yadayim where the loss is immediate - both in time and in essence.

If so, the case of breaching the fence would be a case of Mazik B'Yadayim, since the damage is precisely the fact that the animal is unguarded. This is not a result of breaching the fence, but an immediate and direct occurence - the breaching of the wall is precisely what makes the animal unguarded.

[Compare Rosh (Bava Kama (2:16), and Hagahos Asheri there, where there are similar (but not identical) distinctions drawn between Gerama and Garmi]

[For an additional (difficult) explanation of this opinion of this opinion of the Ramah, see Toras Chaim on this Sugya.

Perek HaKones V - Pattur MiDinei Adam V'Chayav B'Dinei Shamayim

Preface I: The difference between Gerama and Garmi.

In many places in Shas, the Gemara states that Gerama (causation) of damage is Pattur (but Assur, see e.g. Bava Basra 22b). On the other hand, the Gemara has a number of places where there is a Machlokes cited between R' Meir and Chachamim as to whether we are Dan Dina D'Garmi - whether Beis Din has a right to enforce payment of causation of damage to the damagee or not. (A classic case of Garmi is where one tears up a Shtar Chov of another, thereby causing him to be unable to collect his loan.) [We decide the Halachah in accordance with the position that we do enforce such payment, see, for example, Bava Kama 117, et al]. The question that the Rishonim grapple with is how to resolve this seeming contradiction in being liable for payment for causation of damage.

A) Most Rishonim take the approach of defining a difference between what the Gemara refers to as Gerama, vs. what is refered to as Garmi, and then examining each case to determine whether it fits into that rule. There are many different nuances within this approach. As a sampling:

• Tosfos (Bava Basra 22b D"H Zos Omeres) quotes the R"i: Garmi is where the person himself (not with the aid of some other force) causes damage to the other's property.

• Tosfos (ibid.) quotes the R"i again: Garmi is where the damage happens at the exact same time as the action of the perpetrator.

• Rosh (Bava Kamma 9:13;Bava Basra 2:17) - In addition to the R"i's first approach above, it must also be Bari Hezeika (very strong likelihood that the damage will occur) to qualify as Garmi.

• Ramban (Kuntress Dina D'Garmi) - Garmi = Bari Hezeika plus not dependent on the Da'as of anyone else.

• Meiri (Sugya here) - He must have intent to damage plus the damage must occur through the efforts of the perpetrator alone with no other extraneous abetting force.

B) A minority of Rishonim take the approach that the two are essentially the same:

• Tosfos (Bava Basra ibid.) quotes the Ritzv"a - In terms of the definition of the manner of damage the two are identical, however Dina D'Garmi is a penalty imposed as a special Rabbinic penalty in cases where the particular form of damage was common. In such cases the Rabbis imposed a fine so that people should not go around causing damage to other people's property with impunity in Beis Din.

• Rashi holds that the two are completely identical, and that those Sugyos which indicate that one is Chayav for Garmi hold that one is Chayav for Gerama as well. There are a number of proofs that this is the position of Rashi - see Shach to Choshen Mishpat (386:(4)). One of those proofs is from Rashi in our Sugya ( Dibbur HaMaschil Pattur) - "Kasavar Gerama B'Nizakin Pattur". This implies that there are those who contend that one is Chayav for Gerama! There are no Gemaros that have such an opinion, unless we say that Rashi is referencing the opinion that one is Chayav for Garmi, and that Rashi holds that the two are identical. The Ramban in Kuntress Dina D'Garmi also states this as the position of Rashi. This position of Rashi is shared by the Raavan as well.

(Compare to the Nimmukei Yosef in our Sugya, who paraphrases Rashi while omitting this first critical word of Kasavar!)

Preface II - Defining Chiyuv B'Dinei Shamayim

A chakirah regarding the meaning of Chiyuv B'Dinei Shamayim regarding Mazik:
Tzad A: The perpetrator essentially is a Mazik and he is obligated to pay. The only difference between this and a Chiyuv B'Dinei Adam is whether Beis Din will enforce this obligation.
Tzad B: There is no intrinsic monetary obligation to pay at all, rather, the perpetrator has committed an Aveirah and he needs Kapparah.

Rashi (Gittin 53a) states the following - "פטור מדיני אדם - לשלם, וחייב בדיני שמים - פורענות לשלם לרשעים שנתכוון להפסיד את ישראל " ("He is absolved in human courts from having to pay, but he is culpable in heavenly judgement since he intended to cause a Jew to incur a loss"). The simple reading of Rashi would indicate that he holds of the second Tzad of the Chakirah. Certainly, according to Rashi CB"S does not mean that he is obligated to pay by Hashem, rather that there is some sort of punishment that Hashem will give the perpetrator.
This is also the position of Rabbeinu Chananel to Kiddushin (brought in the Shitas HaKadmonim) - "והקב"ה נפרע ממנו על שהבעית חבירו".

However, it seems impossible to explain the matter at face value, that one who does causes damage has no obligation to pay, in light of the Tosefta (Sh'vuos 3:2) and the Yerushalmi (Bava Kama 6:1) which state: "Four people need not pay based on the letter of the law, but they are not forgiven by Heaven until they pay". Based on this, the Chazon Ish (Bava Kamma 5:4) explains that this concept does not mean merely that one is prohibited from doing this and one who does this has committed an Aveirah, as is the prima facie implication of Rashi, rather it means that he has not discharged his obligation in the eyes of Heaven until he pays.

It also seems from Rashi that the punishment is not for the incurring of the loss per se, i.e. the result of the action, but rather for the intent of causing a fellow Jew to lose money. The implication is that for Gerama B'Shogeg one would be completely Pattur, and the Chazon Ish indeed decides the Halachah that one is completely Pattur for Gerama B'Shogeg.

However, the Meiri disagrees with this approach. He writes that CB"S means that one is responsible to repay the loss, but regarding the prohibited nature of the act, even things which he is Pattur B'Dinei Shamayim, he has still committed a prohibited act.

However, in a number of places in this Sugya, it seems that if there was no intent to damage on the part of the perpetrator, he is Pattur even B'Dinei Shamayim. It would seem, then, that the explanation of the opinion of the Meiri is that he holds that there is a monetary obligation toward the damagee, but it is only triggered by violation of an Issur, similar to the (Beis Din enforcable) monetary obligation by one who injures another (Chavalah) according to R' Chaim Soloveitchik [as opposed to Mazik Mammon where there is no link between the monetary obligation and the prohibited nature of the act] - see Levush Mordechai (R' Moshe Mordechai Epstein) Simman 43 on this matter.

Some possible Nafka Minas for this Chakirah:

a) Does Tefisah (the damagee grabbing money or items of value from the perpetrator) work to enable the damagee to keep what he grabbed without further intervention from Beis Din?

See Shach 28:(12) who quotes the Yam Shel Shlomo (Bava Kama 6:6) and the Rivash who both hold that in any case where we say that someone is CB"S, if the damagee grabs property from the Mazik he must return it (with the exception of a case of Kim Leih B'D'Rabbah Mineih, where Rashi holds that Tefisah does work, since in that circumstance there really is an obligation to pay, it is only the Beis Din which is estopped from making the perpetrator pay). This would seem to follow from assuming that the CB"S is merely a need to atone for an Aveirah.

On the other hand, R' Akiva Eiger and the Pischei Teshuva there bring the opinion of the Rashba and the Ran that Tefisah does work when the perpetrator is CB"S.

[This Nafka Minah is not ironclad at all. See our discussion later regarding the Sugya of Tammun B'eish, as well as Lev HaMishpat (R' Zalman Nechemia Goldberg) pp. 20-21 that even if the CB"S is a bona fide monetary obligation, even so there an individual has no more legal power than the Beis Din itself.]

b) Yam Shel Shlomo (6:6 D"H U'Matzasi) brings two opinions regarding whether Beis Din can verbally demand that the person who is CB"S pay the victim. He concludes like the Raavan, that it is not done - "If the perpetrator comes, we must inform him, that we cannot obligate you, but you must fulfill your obligation toward heaven, for your case is handed over to Heaven; so that he should take it to heart, and appease his friend, and fulfill his obligation toward Heaven.

We can suggest that this question depends on the Chakirah above.

c) The Meiri writes - "Based on this the Gedolei HaDoros have written that anyone about whom it is said that he is CB"S, he is disqualified from testimony until he makes restituition. And this seems correct, for since he is required to make restitution, the status of Gezeilah devolves on it until he makes restitution."

According to Rashi, though, this does not seem to be the case, for there is no status of Gezeilah on something that he is only obligated to give as atonement for violating a prohibition, rather than a discharge of a bona fide monetary obligation.