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Bava Kama, 45


QUESTION: Rebbi Yehudah teaches that if a person guards his Shor with a lesser form of Shemirah ("Shemirah Pechusah"), such as by putting it behind a gate that can withstand a Ru'ach Metzuyah (normal, frequent wind) but not a Ru'ach she'Eino Metzuyah (an unusually strong, infrequent wind), and a Ru'ach she'Eino Metzuyah comes and blows down the gate and the Shor goes out and causes damage, if the Shor is a Tam, the owner is Chayav for the damage, and if the Shor is a Mu'ad, the owner is Patur.

Even though Rebbi Yehudah derives this from a verse, there must be some logical way to reconcile this ruling, or else Rebbi Yehudah would have found a more logical way to explain the verse. What is the logic to suggest that one has a greater obligation for damages of a Shor Tam than for damages of a Shor Mu'ad?

In addition, when the Gemara earlier (42a) suggests that the owner of a Shor Tam is Chayav for Demei Vlados while a Mu'ad is Patur, Rava challenged the suggestion, saying that it is senseless, since the laws of Tam are more lenient than the laws of Mu'ad. What is the logic to explain Rebbi Yehudah's ruling?


(a) The ME'IRI, cited by the Shitah Mekubetzes, explains that since people know about a Shor Mu'ad, the obligation to avoid its damage falls equally on the people that were damaged; they are responsible to stay out of its way. Since the Nizak bears some of the responsibility, the Torah exempts a Mu'ad in a case of "Shemirah Pechusah."

According to this logic, why should a Shor Mu'ad not be Patur even if the owner was not guarding it all? The answer is that certainly if the owner let the Shor out in the first place by not guarding it, he is responsible for the Shor's action. However, if he guarded it in a way that would normally prevent it from causing damage, but an Ones occurred, such as a Ru'ach she'Eino Metzuyah, which allowed the Shor to escape, then since there is an element of Ones involved, he should not be more Chayav to prevent it from damaging than the person who was damaged.

This argument cannot be used to justify why the owner of a Shor Tam should pay Demei Vlados while for a Mu'ad he is Patur, and that is why the Gemara earlier considers that to be illogical.

(b) According to the opinion that holds that Chatzi Nezek is a Kenas, since the Torah is obligating the owner for something for which he does not carry full responsibility, anytime that a Shor Tam damages it should be no different when the owner guards the Shor with a "Shemirah Pechusah." The Torah can obligate a person to pay a Kenas for something that he does not bear full responsibility for, as a penalty. However, if he guards the Shor with a "Shemirah Me'ulah," and the damage is entirely beyond the control of the owner, then the Torah does not impose a Kenas.

According to the opinion that holds that Chatzi Nezek is Mamon, the Torah only required that the owner of a Tam pay Chatzi Nezek because "the Torah had mercy on the owner," since he is not entirely at fault (since people do not expect the Shor to do damage when it is a Tam, as the Gemara says on 15a). Accordingly, perhaps in exchange for being more lenient with the person with regard to the amount of payment, the Torah was more stringent with a person with regard to the circumstances that can cause him to be Chayav. That is why he must pay even if he guards it with a "Shemirah Pechusah." (M. Kornfeld)

This argument will not suffice to obligate the owner of a Shor Tam to pay Demei Vlados, since the Chiyuv of Demei Vlados has nothing to do with a lack of guarding it on the part of the owner. That is, the Chiyuv has nothing to do with teaching him to guard his Shor better. The Torah is only Machmir in order to ensure that the person does not take lightly the damages of his Shor.

According to both of these answers, why should Rebbi Yehudah rule that one pays for the Tzad Tamus of a Mu'ad when it damages after being guarded with a "Shemirah Pechusah," like Rav Ada bar Ahavah rules? According to the Me'iri, we should be lenient even with regard to the Tzad Tamus, since people know to be aware of the Shor! According to the second answer, we should also be lenient with regard to the Tzad Tamus, since it certainly is not a Kenas (see Gilyon ha'Shas here), and, since we are not lenient with regard to paying Chatzi Nezek in the case of a Mu'ad, there is no need to have a reciprocal Chumra to be Mechayev the owner in a case of "Shemirah Pechusah!" The logical arguments that we have presented would seem to support the opinion of Rav (beginning of 46a) who argues with Rav Ada bar Ahavah and maintains that Rebbi Yehudah exempts even the Tzad Tamus of a Mu'ad (as the PNEI YEHOSHUA points out).

Apparently, according to Rav Ada bar Ahavah, since the Torah already was Machmir for a Tam and required the owner to pay if it damages when guarded with a "Shemirah Pechusah," the Torah did not remove that Chiyuv even when the Shor became a Mu'ad. This was in order to prevent "Chotei Niskar," to prevent the owner from benefiting as a result of allowing his Shor to gore more frequently.

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