The previous article introduced the two subcategories of the class of damage keren – tam and mu’ad – and looked at a finer point in tam. In this article we will take a closer look at mu’ad which will help us to understand nezikim (damages) in general.
The last Mishnah in the fourth perek cites a debate regarding the level of protection required for a shor mu’ad. Once that level is provided, if under exceptional circumstance the animal escapes and causes damage, the owner is not liable. R’ Yehuda maintains that a basic level of protection is required while R’ Meir maintains that a high level of protection is required (for example the use of iron chains and fencing that can withstand even abnormal winds).
R’ Eliezer enters the debate remarking that “there is no [sufficient] protection [for a shor mu’ad] other than the [slaughter] knife.” What is implied by this statement?
Some Rishonim believe that R’ Eliezer introduces a third opinion (, Tosfot Rid, Bartenura). No level of protection is sufficient for such a creature and the owner is always liable for any damage caused.
This is at least how the Gemara first understood R’ Eliezer (Bava Kama 46a). There Rava cited a pasuk as the source for this position that no level of protection is enough (“ve’lo yishmerenu”). Abaye questioned this understanding as there is a linguistic similarity when the Torah discusses the class of damage bor (pit) (“ve’lo yechasenu”); provided that the owner covers the pit he is not liable for any damage caused. Instead Abaye explains that R’ Eliezer’s position is rooted in the broader prohibition of housing dangerous objects, for example, a rabid dog or a faulty ladder (“ve’lo tasim damim be’veitecha”). How do we understand the Gemara’s conclusion?
R’ Atlas (on Chiddushei HaRa’avad), when explaining the Rif, explains that when R’ Eliezer obligates the owner despite having provided a high level of protection it is not because he considers him negligent. Instead it is because he has transgressed the biblical prohibition of housing this dangerous creature. He explains that the exemption after having provided sufficient protection is only if the owner acted in accordance to what the Torah commanded him.4
Other Rishonim have a completely different understanding (Tosfot, Ra’avad). They understand that R’ Eliezer agrees with R’ Meir that a high level of protection is sufficient. Instead he is introducing a new component – this biblical prohibition. In other words, if the owner provided a high level of protection and the animal nonetheless somehow causes damage, the owner is indeed not liable. Nevertheless he has still transgressed this biblical prohibition of housing this animal.
This second opinion introduces a fundamental new understanding to damages. Ordinarily one thinks that guilt is a function of financial liability of the owner towards the damaged party – what have I done to you? What am I liable? It is a man-to-man issue. Yet there is another component beyond that. It is about the owner himself and by extension his relationship with his Creator. What type of objects is he willing to bring into his home.
This second factor is very important to remember as we study about damages, as we study these Mishnayot. It is not just about determining the boundaries of financial liability. There is a second avenue that is also being travelled. We also assess and determine the world in which we choose to live.
4 The Tosfot HaRid explains slightly differently that the monetary obligation is a knas, a fine, for having transgressed a Torah prohibition.
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