Lesser Degree of Precaution (55b)

SOURCES FOR THE FIRST SHIUR

In the first shiur we will deal with the opening passage of chapter Ha-Koness, which discusses the level of precaution that a person must exercise to ensure that his property does not cause damage to others, with respect to the various categories of damage.

Study the Mishna and the Gemara until "de-mu'adin hu, shema mina; also the Mishna 45b, and the Gemara ad loc. until "tzad tamut bi-mekoma omedet," and the passage on 15a, "itmar palga nizka… de-linterei le-turei."

Try to define the essence of "shemira pechuta" (precaution of a lesser degree) and "shemira me'ula" (precaution of a higher degree), and to understand the rationales underlying the various positions.

HakonesS – Shiur 1

Lesser degree of precaution – Bava Kama 55b

Rav Shmuel Shimoni

Mishna: If a man brings a sheep into a shed and locks the door in front of it properly, but the sheep [nevertheless] gets out and does damage, he is not liable. If, however, he does not lock the door in front of it properly, and it gets out and does damage, he is liable…

Gemara: Our Rabbis taught: "What is considered 'properly' and what is 'not properly?' If the door was able to withstand a normal wind, it would be [considered] 'properly' [locked], but if the door could not withstand a normal wind, it would be [considered] 'not [locked] properly.'" Rav Mani bar Patish said: Who is the Tanna [who holds] that in the case of Mu'ad, even precaution of a lesser degree suffices [to grant exemption]? It is Rabbi Yehuda. For we have learned: "If the owner fastened his ox [to the wall inside the stable] with a cord or shut the door in front of it properly and the ox got out and did damage, whether it was a Tam (not known to cause damage) or already a Mu'ad (attested as a dangerous animal), he would be liable; [these are] the words of Rabbi Meir. [But] Rabbi Yehuda says: In the case of a Tam he would be liable, but in the case of a Mu'ad [he is] exempt, for it is written: 'And his owner has not kept him in' (Shemot 21:36), and this [animal] was kept in. Rabbi Eliezer says: No precaution is adequate [for Mu'ad] save the [slaughter] knife." We may even say that it is in accordance with Rabbi Meir, for shein (lit. tooth, refers to damage done by the animal eating) and regel (lit. foot, refers to damage done by the animal trampling while walking) are different [in this respect], since the Torah required a lesser degree of precaution in their case as stated by Rabbi Elazar, or, according to others, as stated in a Baraita: "There are four cases [of damage] where the Torah requires a lesser degree of precaution. They are these: bor (damage caused by falling into a pit) and aish (damage caused by fire), shein and regel. Bor as it is written: 'And if a man shall open a pit or if a man shall dig a pit and not cover it' (ibid. 21:33), implying that if he covered it he would be exempt. Aish, as it is written: 'He that kindled the fire shall surely make restitution' (ibid. 22:5), [that is to say] only where he acted [culpably], as by actually kindling the fire. Shein, as it is written: 'And shall feed in another man's field' (ibid. 22:4) [that is to say] only where he acted [wrongly] by actually sending it forth [to eat]. Regel, as it is written: 'And he shall send forth' (ibid. 22:4), [that is to say] only where he acted [wrongly] as by actually sending it [to trample]…  This is so [i.e., he is liable] only for the reason that he acted [culpably] as by actually sending it forth or feeding it there, whereas when he did not act [in such a manner] this would not be so [and he would be exempt].

It is evident from this passage that it is possible to speak about three different levels of precaution regarding damages. One level is "a lesser degree of precaution" (shemira pechuta), which is referred to in our mishna and in the mishna on p. 45b by the more flattering expression - "proper precaution" (ka-ra’uy, "and locks the door in front of them properly"). A second level is that which is required by Rabbi Meir in the case of keren (lit. horn, or damage done by the animal goring), and is called in the earlier passage shemira me’ula ("a higher degree of precaution"). The third level is that which is required by Rabbi Eliezer – the slaughterer's knife. This level can be seen in one of the proposals put forward by the Rishonim with respect to bor – filling it in with earth. Obviously this third level is not just a precaution, but rather an obliteration of the property in its present configuration. The ox is no longer a living animal, but at best meat that is fit to be eaten. And similarly, the pit is no longer a pit; it would become normal ground that can be walked on without caution. In contrast, the first two levels are levels of shemira (precaution). We shall try to explain the relationship between them, and thereby explain the various positions among the Tannaim.

            The Rosh at the beginning of our chapter suggests an interesting formulation of the relationship between the two levels of shemira:

Ka-ra’uy refers to a door that is able to withstand a normal wind, and this is the extent of the precaution that must be taken by a shomer chinam (unpaid watchman)… Shemira me’ula is a door that is able to withstand an abnormal wind like the law governing a shomer sakhar (paid watchman).

            The issue under discussion here is the necessary level of precaution of tractate Bava Kama – the precautions that a person must take to ensure that his property does not cause damage to others. In contrast, the passages in tractate Bava Metzia relate to the laws of shomrim (watchmen) – the precautions that a person must take to ensure that the property of another person that had been given to him for safekeeping should not suffer damage. The Rosh compares these two areas in which shemira levels are discussed and asserts that shemira pechuta corresponds to the level of precaution required of a shomer chinam, whereas shemira re’uya corresponds to the precaution that must be taken by a shomer sakhar. The Rosh's position is based on an earlier passage in our tractate (see p. 45a). For our purposes, it may be possible to use the comparison suggested by the Rosh in order to understand the relationship between the different levels of shemira.

The Gemara in Bava Metzia 93b, according to the views that have been accepted as the final Halakha, explains the difference between the level of precaution expected from a shomer chinam and that expected from a shomer sakhar as follows: A shomer chinam must guard the property entrusted to him "in the manner that people guard property" – i.e., in the manner that people generally guard their own property. Generally speaking, a person is not required by law to guard his own property, but nevertheless there is a normal and reasonable level of precaution that people take with their possessions. In the case of a shomer chinam, this level turns into a halakhic requirement. On the other hand, a shomer sakhar must guard the property entrusted to him at a higher level than the way people guard their own property. As the Rambam writes: "The shomer receives a wage in order to watch the animals in an effective (me’ula) manner" (Hilkhot Sekhirut 3:9). A shomer sakhar is a professional whose job it is to properly safeguard another person's property. A shomer chinam, in contrast, is not a professional. His function is to treat the other person's property as he would treat his own property. According to the Rambam (ibid. 2:3), a shomer chinam who doesn't exercise even a lesser degree of precaution – thereby characterizing his level of precaution as peshiya (negligence) – falls into the category of a mazik (one who damages another person's property). Such a person demonstrates carelessness and abandon, and his responsibility for the damages to the property entrusted to him is similar to that of a person who damages another person's property with his own hands.

If we try to characterize in this light the nature of shemira pechuta, it seems that this is precisely what the term means – the same level of precaution that a person ordinarily takes to prevent damage to his own property he must take to prevent damage to the property of others. "In the manner that people guard property": He is not a professional like a shomer sakhar, but he must not act in a careless and negligent manner. Such carelessness demonstrates a lack of sensitivity to the other person's property, and this is considered peshiya, and to a certain degree the person is considered a mazik – with his behavior, he damages the other person's property.

This understanding finds expression in our Gemara regarding precaution of a lesser degree with respect to aish, shein and regel.

Aish, as it is written: 'He that kindled the fire shall surely make restitution' (ibid. 22:5), [that is to say] only where he acted [culpably], as by actually kindling the fire. Shein, as it is written: 'And shall feed in another man's field' (ibid. 22:4) [that is to say] only where he acted [wrongly] by actually sending it forth [to eat]. Regel, as it is written: 'And he shall send forth' (ibid. 22:4), [that is to say] only where he acted [wrongly] as by actually sending it [to trample]…  This is so [i.e., he is liable] only for the reason that he acted [culpably] as by actually sending it forth or feeding it there, whereas when he did not act [in such a manner] this would not be so [and he would be exempt].

What this means is that the level of lack of precaution that makes a person culpable is such that the owner of the property is considered as if he himself set fire to the other person's field, or sent his animal to feed in or tread upon the other person's field.[1] It is interesting to note that even though there is no parallel exposition regarding a bor, there are Rishonim who maintain that the Torah sees the owner of the pit as if he had put a stumbling block before the other person and caused him to fall:

Regarding the damage caused by a pit, the owner is considered as if he pushed the other person into it. For a pit is a case of gerama (indirect damage), but the Creator made a person liable for such indirect damage as if he had acted with his own hands (Tosafot Rid, above, 53a).[2]

            We have explained the nature of shemira pechuta and the significance of failure to adhere to that level of precaution. What then is the meaning of the obligation to adhere to the level shemira me’ula? Seemingly, it is tempting to continue with the comparison to the laws of shomrim and say that in those cases where there is liability as long as the owner did not maintain shemira me’ula; this means that the Torah imposed a duty of heightened precaution, similar to the professional nature of the heightened degree of precaution demanded of a shomer sakhar.

            This understanding, however, encounters a difficulty when we apply it in those cases where shemira me’ula is actually required. Thus, for example, it is Rabbi Meir's position – according to the conclusion of our passage – that regarding the damage of keren (both in the case of Tam and in the case of Mu'ad), shemira me’ula is required, whereas regarding all the other categories of damage – including shein and regel – shemira pechuta suffices. If this means that we impose different levels of precaution in different cases, how are we to understand the law of an ox, which embodies both the potential for the damage of keren and the potential for the damage of shein and regel? What is the level of precaution demanded by the Torah with regard to such an animal? Does it suffice to lock it behind a door that can withstand a normal wind, or perhaps it must be locked up behind a door that can withstand even an abnormal wind?

            This is not a conclusive objection. It may be suggested that owing to the potential for the damage of keren, the animal's owner must exercise shemira me’ula. But nevertheless with respect to the damages of shein and regel, shemira pechuta suffices.[3] Nevertheless, it is difficult to accept that different levels of shemira must be adopted with respect to the same animal.

            It may, therefore, be possible to suggest another understanding of the law regarding shemira me’ula. According to this understanding, we are not dealing with cases where the level of expected precaution is higher, but rather with cases in which the responsibility and obligation to pay is higher. In these cases, the Torah established that the very fact that a certain person is the owner of property that caused damage casts upon him the responsibility for the damage caused. This responsibility is not absolute and unqualified. When a person takes all reasonable precautions – i.e., shemira me’ula – he is exempt from liability, because of the general rule that there is no liability in cases of unavoidable accident ("ones Rachmana patrei"). That is to say, even though his liability does not stem from his behavior or his failure to adhere to the required level of precaution, there is a general principle in the Torah that exempts a person from liability for things that happen owing to circumstances beyond his control. Shemira me’ula is not a higher level of conduct that is expected in certain situations, but rather an expression of the notion that when a person bears responsibility, and precaution exempts him from that responsibility, that precaution can only exempt him when the person takes all reasonable steps to prevent damage. According to this, a person is never actually obligated to exercise shemira me’ula, but there are cases in which a person is liable to pay unless he did exercise shemira me’ula.

The viewpoints of Rabbi Meir and Rabbi Yehuda

            Thus far we have proposed ways to understand the terms shemira pechuta and shemira me’ula. Now let us apply these understandings to the viewpoints of the Tannaim discussed in our passage.[4]

            According to the conclusion of the Gemara, Rabbi Meir’s view is that the ordinary standard is shemira pechuta. However, the formulation, "There are four cases [of damage] where the Torah requires a lesser degree of precaution," implies that we are dealing with a leniency and that there might have been room to demand a higher level, but the bottom line is that this is the ordinary standard set for damages. The exception to this rule is the case of keren. Regarding the case of keren – whether in the case of Tam or in the case of Mu'ad – the owner is liable as long as he did not exercise shemira me’ula. Why is this? It stands to reason that the principle suggested above, that a person bears liability simply by virtue of the fact that his property caused damage, only applies to an action that by its very nature is one of damage. Here, Rabbi Meir argues, there is a clear difference between keren and the other categories of damage. The other categories of damage are unfortunate consequences of an ordinary action that is free of any intention to cause damage. The result might be enormous damage, but the actual event is a mishap (for example, it is a normal action for an animal to eat food). Keren, on the other hand, is not a by-product of an ordinary action. Two of the main characteristics of keren are that the damage is meshuneh ("unusual") and that it is accompanied by an "intention to cause damage."[5] Here the damage is not only in the result, but in the event itself. Regarding such events the Torah set down that the responsibility for the damage falls upon the owner of the property that caused the damage. As stated above, this applies in a case where the person does not enjoy the exemption stemming from circumstances beyond his control.

            Rabbi Yehuda's viewpoint presents us with a much more difficult challenge. In his view, the dividing line does not pass between the usual categories of damage and keren. He agrees that regarding the normal categories of damage, shemira pechuta suffices. But he maintains that the same applies to keren that is Mu'ad. Only in the case of an ox that is Tam does Rabbi Yehuda say that the owner is liable unless he exercised shemira me’ula. Here the difficulty is striking (as the Gemara asked in a similar regard on 42a): How can the law governing an ox that is Tam be more severe than the law governing an ox that is Mu'ad? This position is indeed based on an exposition of the verses, but it is difficult to accept that we are dealing here with an arbitrary Scriptural decree.

            The Meiri (above, 45b) proposed the following explanation:

The reason seems to me to be that since [the animal] is spoken about, people should be careful about it.

            The Penei Yehoshua offered a similar explanation:

The rationale needs an explanation. That for a Tam he is liable if he exercised shemira pechuta, whereas for a Mu'ad, he is exempt – this is because a Mu'ad is spoken about and people stay away from it and it falls upon them to distance themselves and their animals from it so that it not cause damage. Thus it turns out that such damage is not so common, and so shemira pechuta suffices, which is not true in the case of a Tam.

            The Meiri and the Penei Yehoshua argue that the fact that a specific ox has an established propensity to gore places a certain responsibility on those around it to take precautions against it. For this reason, an event involving damage is less expected and therefore there is less reason to expect the owner to foresee it (Penei Yehoshua), and the owner's responsibility should be qualified in consideration of the responsibility of those suffering the damage (Meiri).

            In my opinion this explanation is very difficult. How can we be lenient with the owner of a proven source of damage just because society is aware of that source of damage? Must society take into account the possibility that the animal will breach the bounds of shemira pechuta and invest in precautions against the source of damage?

            Perhaps, then, we should propose an alternative understanding of Rabbi Yehuda's viewpoint, which is based on the definition that we gave earlier for shemira me’ula, i.e., that it does not involve an obligation to exercise a higher level of precaution, but rather that it expresses the fact that the obligation to make restitution stems from the very fact that a person's property caused damage, and it is only through the exercise of shemira me’ula that grants an exception based on the principle of ones Rachmana patrei.

            Why does this principle of liability based on the fact that a person's property caused damage apply specifically to a Tam ox? Earlier in the tractate (15a), the Amoraim disagree about the liability to pay half the damage caused by a Tam ox:

As for the liability of half-damages – Rav Pappa said: It is a civil obligation. Rav Huna the son of Rav Yehoshua said: It is a kenas (penalty). R. Papa said that it is a civil obligation, for he maintains that average cattle cannot control themselves not to gore, so that by strict law he should be obligated to pay full damages, but the Torah exercised mercy [and released half payment] on account of the fact that the cattle have not yet become Mu'ad. Rav Huna the son of Rav Yehoshua said that it is a kenas, for he maintains that average cattle can control themselves not to gore, so that by strict law he should not have to pay anything, but the Torah penalized him so that [additional] care should be taken of cattle.

            The Amora who says that payment of half-damages is a civil obligation assumes that average cattle can control themselves not to gore. Earlier in the Gemara (45b), according to our reading, it says that Rabbi Yehuda is of the opinion that average cattle can control themselves not to gore, whereas Rabbi Meir maintains that they cannot control themselves not to gore. From this the Ra'avad concludes (in his novellae, ad loc., s.v. ka-savar) that Rabbi Meir and Rabbi Yehuda disagree about the same issue that underlies the Amoraic dispute on p. 15a, and that Rabbi Yehuda maintains that payment of half-damages is a kenas.[6] If we are prepared to accept that this is the foundation of Rabbi Yehuda's viewpoint, it might make it easier for us to understand his position.

            As stated, the authority who maintains that payment of half-damages is a civil obligation assumes that average cattle can control themselves not to gore. Accordingly, based on the general principles governing the laws of damages there would have been room not to impose any responsibility, and it was the Torah that imposed the penalty of paying half-damages in order to encourage cattle-owners to take additional care of their animals. This argument is, of course, incorrect with respect to a Mu'ad ox. This indeed is the way that Rabbeinu Chananel explains the Gemara: "They can control themselves not to gore, that is to say, it is as if they are watched, i.e., they do not need somebody watching over them, as they are domesticated animals. And the Torah only imposed an obligation to watch the animal in the case of a Mu'ad ox, about which it says: 'And the owner has not kept him in' (Shemot 21:36)." The verse, "And the owner has not kept him in," is also used by Rabbi Yehuda in our passage: "In the case of Tam he is liable, but in the case of Mu'ad he is exempt, for it is stated: 'And the owner has not kept him in,' [thus excluding this case where] it was kept in."

            It seems that with respect to foreseeable sources of damage, including bor, aish, shein, and regel, regarding which the owner is always considered to be forewarned, and keren in the case of a Mu'ad ox, the Torah obligated a person to watch his property, and from this follows his liability for damages caused by his property. The obligation expected in these cases is to exercise shemira pechuta. When a person meets this level of required precaution, liability for payment is not imposed upon him. In the case of a Tam ox, the Torah did not obligate a person to watch his animal, as average cattle can control themselves not to gore. Accordingly, by strict law there should be no liability for such an animal's goring. Nevertheless the Torah imposed an artificial penalty. The owner is not regarded as guilty, but we want partial responsibility to be imposed upon him, based on the belief that such responsibility will lead to fewer instances of damages. Since his liability does not stem from a failure to adhere to an obligatory level of precaution, what we have here is liability stemming from the very fact that his property caused damage. In such a case only shemira me’ula can exempt him, based on the principle that a person is exempt in situations of ones.[7] For this reason liability stemming from the fact that a person's property caused damage is limited specifically to a Tam ox.

            This explanation, however, is still problematic. If there is room to obligate a person – even if only for half-damages and as a kenas – for the very fact that his property caused damage, we would have expected that this obligation should not lessen after his ox becomes a Mu'ad. Indeed, it is very easy to understand Rav Ada bar Ahava's approach on p. 45b that reads: "The exemption laid down by Rabbi Yehuda applies only to the part of the payment due on account of the ox having been declared Mu'ad, but the portion due on account of Tam remains unaffected." The partial liability that stems from the very fact that a person's property caused damage should apply to a Mu'ad ox, no less so than to a Tam ox, and so the owner of a Mu'ad ox who exercised shemira pechuta is liable for half-damages.

            This position, however, was not accepted as normative law, and so we are left with a somewhat uncomfortable feeling with respect to Rabbi Yehuda's position. This discomfort has no decisive weight, for the bottom line is that we are dealing with a kenas, and so there is room to say that for pragmatic reasons the Torah only imposed it in the case of a Tam ox. This is what follows, for example, from the Maharshal's explanation of the matter, an explanation that adopts certain aspects of the explanation that we saw above in the words of the Meiri and the Penei Yehoshua:

Since in any event one is forbidden to keep a Mu'ad ox, as I have explained, and since most people, who see that that their animal has an established propensity to gore, after goring three times, exercise on their own a shemira me’ula so that it not cause damage, and since a God-fearing man does not keep such an animal in his house at all… therefore it is not common that a person should keep it in his house, even with shemira pechuta. And if someone happened to do this, he is exempt. And the Torah was not concerned about this to impose a penalty and make him liable, as it is something not common at all, and by strict law he is exempt, for the bottom line is that he exercised [some level of] precaution. But in the case of a Tam ox, which is permitted, and the owner is not concerned so that he should watch over it – for this reason the Torah imposed a penalty and made him liable (Yam shel Shlomo 4, 34).

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