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Bava Kama, 17


QUESTION: The Mishnah describes the Mazik of Regel. It teaches that if the animal kicks pebbles, or steps on pebbles causing them to fly through the air, and the pebbles damage something, the owner of the animal pays only Chatzi Nezek. This is the Halachah of "Tzeroros."

RASHI explains that the reason why one pays only Chatzi Nezek for damage caused by Tzeroros is because of the Halachah l'Moshe mi'Sinai. However, the reason one pays Chatzi Nezek when the animal *kicks* and thereby causes damage is because it is a strange way for the animal to act, and therefore it is considered Keren, like the Mishnah says (15b), and for damage caused by Keren one pays Chatzi Nezek (when it is a Tam).

If "Meva'etes," kicking, is considered Keren like the Mishnah (15b) says, then why does the Mishnah here mention it altogether? We already learned the Halachah of Meva'etes in the previous Mishnah! Second, since Meva'etes is Keren, it has nothing to do with Regel, which is the subject of our Mishnah! (TOSFOS DH Meva'etes)


(a) TOSFOS explains that the Mishnah lists Meva'etes simply because it is similar to Tzeroros both in the amount that is paid and in the manner in which the damage is done. Really, though, it does not belong in the Mishnah of Regel. It was only included in this Mishnah because of its similarity to Tzeroros. The MAHARAM SHIF questions on Tosfos' answer from the Gemara (16b) which proves that the Beraisa (19b) -- which lists among the damages of Shen a wild animal that killed another animal and ate it right ("Toref v'Ochel"). The Gemara proves that such a damage is called Shen and not Keren, since -- if it was Keren (and the animal did it three times and pays Nezek Shalem because it is a Mu'ad) -- it would not belong in the Beraisa which discusses the Mu'ad of Shen. According to Tosfos, the Beraisa might have included it because of its similarity to Shen, even though it is Chayav because of Keren!

The answer to this question might be that there is no point in listing things that are similar to Shen that pay Nezek Shalem, since most Mazikim pay Nezek Shalem. It is only our Mishnah -- which lists a Mazik which oddly pays only Chatzi Nezek -- that mentions, as an aside, the Halachah of Meva'etes which is damaged that is also caused by the foot and that also pays Chatzi Nezek.

Alternaively, Tosfos might intend to explain like the TALMIDEI RABEINU PERETZ in the Shitah Mekubetzes, who write that the Mishnah includes the Halachah of Meva'etes paying Chatzi Nezek in order to record a "Stam" Mishnah that follows the view of the Rabanan who argue with Rebbi Tarfon, and who hold that Keren in Reshus ha'Nizak pays Chatzi Nezek (our Mishnah is discussing Reshus ha'Nizak since it is discussing a place where one is Chayav for Regel). The Talmidei Tosfos Rabeinu Peretz explain that the reason the Mishnah gives an example of *Meva'etes* to teach the Halachah of the Rabanan who argue with Rebbi Tarfon, rather than giving the normal case of Keren -- and the reason why it includes this case in this Mishnah rather than in any other Mishnah -- is because of its similarty to the case of Tzeroros. Accordingly, the Mishnah only lists something similar to another Halachah in the Mishnah if it is able to teach us something new by doing so (which cannot be said about the Beraisa on 19b).

(b) The RASHBA (see also PNEI YEHOSHUA) explains that the Gemara later (19a) presents a question whether Tzeroros of *Keren* pays Chatzi Nezek, or *half* of Chatzi Nezek (i.e. a quarter of the Nezek done). The Rashba suggests that the case of Meva'etes of the Mishnah is also a case where the animal kicked up Tzeroros in an unusual way, making it Tzeroros of Keren, and the Mishnah is teaching us how much one must pay for Tzeroros of Keren -- half or a quarter of the Nezek. The reason the Gemara remains inconclusive on this matter is because the ruling of the Mishnah can be understood in one of two ways: either it is teaching that Meva'etes pays half of the entire Nezek, as opposed to a quarter of the Nezek, or it could be saying that Tzeroros pays Chatzi Nezek only if it is *not* done through kicking (but is done in the normal manner of walking). If the kicking itself causes Tzeroros, then one pays a quarter of the Nezek.

(c) The RASHASH suggests that the Mishnah is simply teaching what the Gemara tells us at the beginning of the Masechta (2b), that even though kicking is done with the foot, it is not called a Toldah of Regel, but rather it pays Chatzi Nezek, like a Toldah of Keren. He brings proof for this from the Mishnah later (19b) which lists the cases of Shen and adds in the middle that if the animal eats clothing or something that it does not usually eat, then it pays only Chatzi Nezek. The Mishnah makes that point in order to show that not every act that involves eating is called Shen; if it is unusual, then it is called Keren. Our Mishnah, too, is pointing out that not everything done with the foot is called Regel.

Tosfos does not accept this answer for one of two reasons. First, this does answer our first question, why the Mishnah points out that kicking is Keren when we already learned it in an earlier Mishnah (15b). Second, according to the Rashash, the Mishnah should not have grouped Meva'etes together with Tzeroros. It should have said that if the animal damages by kicking, the owner pays Chatzi Nezek, and if it damages through Tzeroros, the owner also pays Chatzi Nezek. The fact that the Mishnah combines them into one Halachah ("if the animal damages by kicking or by Tzeroros, one must pay Chatzi Nezek") shows that Meva'etes is in some way related to Tzeroros.


QUESTION: Rava asks what the Halachah is in a case where an animal steps on a utensil, causing it to roll somewhere else and to strike a different object and break. Is this considered Tzeroros, since the utensil that rolled only broke after it finished rolling, when it was no longer near the foot of the animal, or is this considered like a normal case of Regel, since it was the kick that the animal gave it which caused it to break? The Gemara phrases the question in terms of whether "Basar me'Ikara Azlinan" -- do we consider the damage to have been done at the beginning, at the moment that the animal kicked the utensil, and therefore it is not a case of Tzeroros, or "Basar Tevar Mana Azlinan" -- do we look at the point in time at which the utensil broke, and at that time it was no longer near the animal's foot?

How can the Gemara question whether we say "Basar me'Ikara Azlinan" and consider everything to have been done at the moment that the animal kicked it? According to this logic, when will we ever have a case of Tzeroros? Every time an animal kicks a stone that eventually hits a utensil and breaks it, we should say "Basar me'Ikara Azlinan" -- that the moment the animal kicked the stone was the moment of the damage and therefore it is not Tzeroros! When will we ever have a case of Tzeroros if we follow "Basar me'Ikara?"


(a) TOSFOS (DH Zarak Kli) explains that there is a difference between an animal that kicks an object that then damages another item, and an animal that kicks something which itself gets damaged after rolling. We can only say "Basar me'Ikara Azlinan" when the object which will be damaged itself has already been set into motion, and something has already been done to it (the animal has kicked it). Since it is already moving, we can say that the object itself is already considered to be broken. In contrast, the fact that an animal kicks one object cannot make a second object -- which is still motionless and nothing has been done to it at all -- be considered to be broken at the moment that the animal kicks a pebble towards it. Since nothing at all has begun to happen to that object yet, it cannot be considered broken until it actually breaks. (All of the Rishonim here distinguish between the two cases in a similar manner.)

Therefore, explains Tosfos, in a normal case of Tzeroros, we cannot say "Basar me'Ikara Azlinan" and thereby consider the damage to have been done by the animal itself rather than by the Ko'ach of the animal, something that the animal kicked or pushed, since the animal kicked a pebble which damaged a second object. In the case of Rava's question, the animal kicked a Kli which itself became damaged; in that case we can say "Basar me'Ikara Azlinan" and that it is not the Ko'ach of the animal that caused the damage, but rather it is the animal itself that caused the damage.

(b) The KETZOS HA'CHOSHEN (CM 390:1) argues with Tosfos. He suggests that even if we apply the rule of "Basar me'Ikara Azlinan" to something which does not itself break but causes something else to break, we can nevertheless distinguish between an animal that kicks a Kli which breaks, and an animal that kicks a rock that breaks a Kli. He explains that even if we say "Basar me'Ikara Azlinan," and thus when an animal kicks a rock it is as if the Kli that the rock will hit is already broken, nevertheless the Kli has been broken by the rock that hit it and not by the animal's foot itself. Therefore, it is only the Ko'ach of the animal doing the damage, and the Halachah l'Moshe mi'Sinai teaches that something that breaks because of the Ko'ach of the animal -- something that the animal sets in motion -- obligates the owner of the animal to pay only Chatzi Nezek, because of Tzeroros. However, when the animal kicks the Kli itself, if we say "Basar me'Ikara Azlinan," then it is the foot of the animal that broke the object rather than the animal's Ko'ach, and we say that the moment at which the foot hit the object, it broke the object.

The KEHILAS YAKOV (Bava Kama 4:6) explains this further by saying that the Ketzos ha'Choshen is differentiating between when the animal itself touched the object that broke, in which case it is considered damaged caused by "Gufo," the body of the animal itself, and when the animal never touched the object that broke, but rather something else which the animal kicked touched the object, in which case it is considered "Kocho" or Tzeroros, and not "Gufo."

The difference between the approach of Tosfos and the approach of the Ketzos ha'Choshen is a case in which a person throws an object, or shoots an arrow, at a Kli, and another person breaks the Kli before the arrow hits it. According to Tosfos, in such a case the person who actually broke the Kli is certainly Chayav, because we cannot say "Basar me'Ikara Azlinan," since nothing was done to the Kli itself until the arrow would hit it; we only say "Basar me'Ikara Azlinan" when the object itself was set into motion already, and that same object is going to break. In this case, at the time that the arrow was shot, nothing happened to the Kli which eventually broke. Therefore, Tosfos rules that the person who breaks the Kli before the arrow hits the Kli is Chayav.

The Ketzos ha'Choshen suggests that according to his understanding, in such a case, perhaps the second person will not be Chayav; rather, the person who shoots the arrow will be Chayav, just like in the case that the Gemara cites in which a person throws a Kli down from a high place and another person breaks it before it hits the ground. Just like the second person is not Chayav in that case, because of "Basar me'Ikara Azlinan" and it is considered as though he broke a Kli that was already broken, so, too, when one shoots an arrow at a Kli and another person breaks the Kli before the arrow hits it, we can say "Basar me'Ikara Azlinan" and say that the second person broke a broken Kli. It makes no difference whether the Kli would have been broken by the "Guf" of the person or by the "Ko'ach" of the person. In either case, someone else broke it, since, when it comes to Adam ha'Mazik, we do not differentiate between "Kocho" and "Gufo," but rather a person is Chayav for damage caused by both, equally. Only with damage caused by an animal do we differentiate between "Kocho" and "Gufo" because of the Halachah l'Moshe mi'Sinai of Tzeroros.

(The Ketzos ha'Choshen suggests that some Rishonim may agree to his way of understanding. He cites the Rosh (1:1) and Nimukei Yosef (21a). However, other Acharonim reject his proofs.)

RAV GUSTMAN zt'l, in Kuntrusei Shi'urim (10:17), finds a Rishon who does seem to suggest the difference suggested by the Ketzos ha'Choshen. The RASHBA in our Sugya points out that the RIF rules that "Basar me'Ikara Azlinan," and therefore if someone throws a Kli from the roof and someone else shatters it before it hits the ground, the second person is exempt. Nevertheless, the Rif quotes part of the Maskana of our Gemara (18a) which apparently is necessary only if we do *not* say "Basar me'Ikara Azlinan!" The Gemara there proves that "Basar me'Ikara Azlinan" from the Beraisa cited here (17b), which teaches that if hens were pecking at the rope of a bucket and the rope broke and the bucket fell and broke, the owner of the hens must pay Nezek Shalem. The Gemara says that from here we see that "Basar me'Ikara Azlinan," because otherwise the owner should only have to pay Chatzi Nezek for the bucket, since the bucket broke by falling and breaking. Rav Bibi bar Abaye answers that the bucket did not fall and break, but rather the hen pushed the rope and the bucket until the bucket broke; the hen was pushing the bucket itself.

The Rif cites Rav Bibi bar Abaye's answer, that the reason the owner of the hen must pay Nezek Shalem is because the hen was pushing the bucket itself, and *not* because of "Basar me'Ikara Azlinan!" But if the Rif rules that "Basar me'Ikara Azlinan," why does he quote the reason of Rav Bibi bar Abaye?

The RASHBA answers that the Rif might hold that even if we rule "Basar me'Ikara Azlinan," that only makes it as though the damage all happened at the time that the bucket first started to fall. Nevertheless, since the hens did not touch the bucket itself but rather they touched only the rope, it is called only Tzeroros. That is why the Rif needs to rule that the hen actually pushed the bucket itself and broke it rather than saying that it pushed the rope causing the bucket to break.

The Rashba's explanation is a very strong support for the logic of the Ketzos ha'Choshen -- that even if we say "Basar me'Ikara Azlinan," we still will consider it to be a case of Tzeroros ("Kocho") as long as the animal did not touch the object that broke, but rather something else that the animal touched caused the object to break.

(The Rashba also agrees to the difference of Tosfos, though, that when the object that broke was not set into motion, we do not say "Basar me'Ikara Azlinan." He simple adds that even when that object was set into motion, we still do not say "Basar me'Ikara Azlinan" to remove it from the category of Tzeroros, unless the animal actually touched the object.)

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