Avot Mi-khlal De-ika Toladot - Understanding the Concept of Toladot in Halakha (2a)
Sources and Questions for Shiur #1
1. Shemot 21:28-37; 22:1-5
2. Bava Kama 2a mishna; gemara until "lavka-yotzei ba-hen" (2b)
3. Vayikra 4:2; Sanhedrin 62a "d'tanya Rebbi Yosi omer...makal lefaneha
4. Vayikra 25:4-5; Mo'ed Katan (2b) Rava amar... lo mechayev (3a)
5. Shemot 21:29 ; Mekhilta deRabbi Yishmael Parasha 12 ve-khi yigof...zo neshikha; Shitta Mekubezet Bava Kama (2a) s.v. od sham teima (in the name of the Mahari Katz)
1. What is unique about the categorical structure which the Mishna imposes upon nizkei mammon (damages by property)?
2. Is the derivation of toladot intuitive?
3. Which areas of halakha allow for the "spinning-off" of toladot?
4. What is the textual source for toladot in Bava Kama?
Prior to delineating the various laws of damages performed by one's property (nizkei mammon), the gemara describes the categorical structure of the overall system of laws. Masekhet Bava Kama begins by enumerating four 'avot' - 'super-categories' under which all nizkei mammon are classified. Our first shiur will address the logic of this structure.
In general, Halakha outlines the necessary parameters of a particular halakha - be it a mitzva or an issur (prohibition). If the principal criteria are met, the mitzva has been performed or the issur violated. In addition, provided the basic conditions exist, little else influences the definition of the act or event. For example, the Torah prohibits eating neveila (meat that is not kosher, because it was not slaughtered correctly, or was sick). By employing the root 'akhila' (eating), it dictates that the formal act of eating is required in order to violate the biblical injunction. One who derives pleasure, but does not eat, has not violated this prohibition. Furthermore, once the condition - a formal act of eating - is met, little else is of importance; it does not make much difference when or why he ate or what he was wearing at the time. One can thus conceive of infinite cases of prohibited forms of eating, by changing the non-essential variables. All these cases, however, share a lowest common denominator responsible for the consequent halakha: the person has performed the formal act of eating. A similar situation exists in the world of mitzvot. If one sits in the sukka in the defined way, with the requisite structure, it makes little difference whether he sat in the morning or the evening, or whether he sat to rest or to learn. The bottom line remains - he sat in the sukka!! Essential criteria are a means of defining and thereby delimiting a halakhic set. Acts which meet these criteria become integrated parts of a unified set; acts which fail to meet the criteria are completely excluded. There is no middle ground for acts which RESEMBLE the fundamental criteria, but do not entirely conform to them.
The beginning of Bava Kama provides us with a decidedly different categorical structure. As mentioned earlier, we are introduced by the mishna to four avot - four prototypes of damages for which an owner is liable. Why is the world of nizkei mammon divided into four distinct categories and what halakhic significance does this carry? A related question pertains to the first comment of the gemara: "avot mi-khlal de-ika toladot." Our gemara infers from the term "avot" (literally parents; figuratively prototypes) that "children" or derivatives of these avot exist. As the subsequent sugyot (2b-3b) confirm, one is obligated to pay for cases of nizkei mammon which bear resemblance to the original templates described in the Torah. For instance, the Torah describes the av category of keren, an animal which maliciously and violently gores another animal. Goring with horns - explicitly mentioned in the Torah (Shemot 21:28) - is classified as an av. If an animal violently and intentionally damages with another part of its body, it constitutes a tolada of keren - a spin-off which derives from the parent and shares all of its constituent halakhot, although not mentioned explicitly in the Torah. This phenomenon of halakhic derivatives is also peculiar. Conventionally, as mentioned earlier, an item which does not meet the EXACT criteria of the Torah's description is completely excluded from the halakhot which apply to that category. For example, if someone doesn't EAT neveila, even if he receives benefit through some other way, he does not violate any issur. The category cannot be flexed beyond demanding halakhic criteria. Yet in the case of nizkei mammon, derivatives which merely resemble the base category, rather than being identical to it, are assigned the status of toladot. These spin-offs are different from their "parents", but not sufficiently to exclude them from most of the respective halakhot. How then are we to understand this av-tolada phenomenon in the case of nezikin?
The logical starting point might be to search for parallel instances in which halakha generates this structure of avot and toladot. The most immediate example is the melakhot (forbidden actions) of Shabbat, which the gemara itself cites as a parallel. Though the gemara invokes the hierarchy of tum'a (impurity - see 2a-b), it would appear that this comparison is suggested only because it is an area in which we find the term "av" and does not appear rigorous. Regarding nezikin and Shabbat, the toladot are different cases which are derived from the model cases and therefore the same laws apply to them. The toladot of tum'a, however, are 'actual' derivatives, on a lower, more lenient level of tum'a, which they attained through contact with the av tum'a. Most commentators assume that this comparison to tum'a is only a loose one intended to highlight a situation of 'descending severity' of halakhot within a hierarchy. [See the Nachalat David who underscores the 'loose' nature of the comparison. The question of whether toladot maintain all or most of the halakhot of the parent will be addressed in a future shiur Iy"h.] Consequently, our sugya furnishes only one analogue to the av-tolada dynamic: the melakhot of Shabbat.
Another possible instance of toladot in the gemara can be located in Sanhedrin (62a) regarding avoda zara (idol worship). The gemara relates to the prohibition of perverting the "avodat ha-mikdash" (service normally performed in the temple) for idol worship: one who sacrifices, collects or sprinkles blood, or burns an animal in the worship of avoda zara, is violating the issur of worshiping avoda zara. The gemara records that one who breaks a stick in front of an idol has performed a tolada of shekhita (slaughtering) and violates the issur. Although he hasn't actually sacrificed an animal, he has performed an action which resembles sacrifice and violates a tolada of avoda zara.
A third instance of toladot might be perceived in the gemara Mo'ed Katan (2b) regarding the prohibition of farming during shemitta (every seventh year we allow the land to lie fallow). The gemara questions why the Torah specifically enumerates the prohibition to prune trees, if pruning is merely a form of planting (which is already known as forbidden activity during shemitta), since pruning a tree stimulates its further growth? Furthermore, why did the Torah specify the prohibition of collecting grapes (betzira) when in reality it is merely a form of harvesting (ketzira) - also an established prohibition during shemitta? Would we not have derived these subsidiary prohibitions on our own? This question supports the notion that we can develop 'spin-off' shemitta prohibitions - ostensibly as toladot. The gemara responds that the Torah highlighted these toladot to indicate that these are the ONLY toladot which are forbidden during shemitta. For some reason, the latitude in generating toladot is strictly limited in the caof shemitta. Interestingly enough, both in its que(which assumed free reign to develop toladot) as well as in its answer (which limits toladot to biblically-specified cases) the gemara endorses the production of some toladot in the realm of shemitta. This represents a third example of toladot.
What then is the common denominator between the issurim of Shabbat, shemitta, avoda zara, and nizkei mammon? Why do these categories allow tolada extrapolation while other issurim resist such expansion? Though the Rishonim, by and large, do not explicitly mention the rigidity of general halakhic categories, it seems an implicit basic assumption of the entire halakhic system. [See Tosafot in Bekhorot 25a who explicitly deny the formation of toladot regarding the violation of shearing the wool of a first born sheep.]
One approach to justifying the production of toladot in these areas might be to locate a similarity in the nature of each of these halakhot. In general, violation of an issur is forbidden only because Hashem commanded so and any subsequent violation is just that – a halakhically banned action which was performed. Granted, any violation of a mitzva entails an assault on malkhut shamayim (Hashem's sovereignty), but that is a separate non-inherent consequence of the aveira. The action is forbidden in an absolute and self-defined manner and not because it damages a broader framework.
By contrast, a violation of Shabbat is not just a forbidden act, it also entails an attack upon the over-arching kedusha (holiness) of Shabbat and Am Yisrael. This aspect of Shabbat - the kedusha which permeates the seventh day - has a definite halakhic impact too. Violation of Shabbat defines someone as a nokhri (Gentile), since his actions carry broader implications - the reduction of the kedusha of Shabbat and of his own personal kedusha as a Jew. Thus, the act is forbidden not merely because Hashem defined it as "assur," but also because its violation damages a broader system or framework. Consequently, not only is the "ma'aseh" (action) forbidden, but also the "totza'a" (result). In this case then, toladot, which are slightly different actions achieving the same net result, should also be forbidden. For instance, if the Torah forbade baking as an av on Shabbat partially because it profanes the holiness of Shabbat, then its tolada, cooking, should be forbidden as well. Had only the act of baking per se been forbidden, we would have no right to extend it to cooking, which is similar but not identical to baking. However, since the prohibition is based partly upon the consequences of the act and the resulting damage to the holiness of the day, we might allow expansions. After all, cooking is similar to baking and seems to damage the kedushat Shabbat in the very same manner.
This could also be claimed about shemitta, which is referred to as "Shabbat la-Hashem" and is considered to be a form of Shabbat (kedushat ha-zeman). The overall holiness of the seventh year is denigrated by working during shemitta. Thus, only when the result comprises an integral part of the issur, can a tolada be forbidden.
Similarly, worshipping avoda zara is not just a formal prohibition. Rather, it entails a direct attack upon malkhut shamayim, especially when avodot (sacrificial activities) normally employed in the beit ha-mikdash are perverted for purposes of avoda zara. If shechita to avoda zara is forbidden because it "attacks" malkhut shamayim, one can well imagine breaking a stick in front of avoda zara accomplishing a similar result. Hence it may be labeled a tolada for it achieves an identical result through a similar action. It would appear that this is the factor that unifies the examples of Shabbat, avoda zara, and shemitta, and distinguishes them from general issurim.
Indeed, nizkei mammon shares this unifying factor as well. If the Torah specified payments for someone whose animal caused damage to another by intentionally goring it, one might broaden these payments to include a case where someone's animal intentionally bites as well (neshikha, biting, is in fact a tolada of keren - see BK 2b). Had only the performance been forbidden, we might not have stretched the payments to include anything but goring, which was specified in the Torah. Once, however, we pay attention to the result of the action (in this case, the damage caused), similar models which achieve comparable results should be factored in.
In summation, we might justify the existence of toladot in areas of halakha in which the general consequences, and not just the inherent act, comprise part of the prohibition.
Source for Toladot
Having offered a condition to warrant the existence of toladot, we might pose a second question. In general, the ability to generate toladot (when applicable) is inferred from a distinct source (makor). For example, the aforementioned gemara in Sanhedrin derives toladot of Shabbat and avoda zara from a pasuk in Vayikra (4:2). Similarly, the toladot of pruning trees or picking grapes on shemitta are explicitly mentioned in the Torah (Vayikra 25:4-5). Yet, the toladot of nizkei mammon are generated without an explicit source. The Mekhilta does indeed search for a makor for the generation of toladot. It concludes that the license to generate toladot stems from the phrase "ve-lo yishmerenu - If he will not watch his animal" (Shemot 21:29). This general description of liability authorizes us to impose payments for cases similar to the biblically defined avot. By not citing this Mekhilta and not even addressing the issue, it would appear that the gemara did not sense the need for a pasuk to authorize tolada-generation for nizkei mammon. Why does the gemara require a pasuk for toladot of Shabbat and not for toladot of nizkei mammon? Having distinguished between nizkei mammon, Shabbat, and avoda zara and the general cases, how might we further distinguish between nizkei mammon, which allows toladot even without biblical authorization, and Shabbat, whose issurim in the case of toladot rest upon a textual source?
The Mahari Katz (quoted in the Shita Mekubetzet on BK 2a) cites this very question. His answer assumes that, in general, a biblical source is NOT required to promote toladot; nizkei mammon represents this norm. Shabbat, however, due to its unique circumstances, would normally not have admitted toladot, had an explicit pasuk not authorized them. [We will not address his full answer here.]
It is feasible to consider an alternate approach to distinguishing between Shabbat and nizkei mammon. Indeed, in both cases the action affects some other framework or person and these broader ramifications invite toladot. In the case of melakha on Shabbat the result is one element of the prohibition but by no means the only factor. Baking on Shabbat is forbidden because Hashem proscribed the act (similar to eating neveila) and, IN ADDITION, because once forbidden the act violates and curtails the kedusha of Shabbat. Though toladot produce identical negative results, they still differ in terms of the act committed. As the act itself entails part of the prohibition, toladot cannot be forbidden unless the Torah authorizes it. If the action itself still comprises part of the prohibition, toladot cannot be seen as a natural assumed extension. They are definitely an option, but by no means automatic.
Nizkei mammon presents a completely different situation. Does it really make a difference HOW the damages were caused? If indeed the Torah is obligating compensatory payments, should we really attach any significance to the method of damage? If my property damages another's interests through my own negligence, I should be obligated to compensate regardless of the circumstances of the damage. Unlike issurim in which distinct actions are banned, nizkei mammon is a situation in which the details of the act of damage should be completely irrelevant. This inattention to the particulars of the action renders toladot a perfectly natural choice. Why should one require a pasuk to generate compensatory payments for biting or kickingif commensurate damages were caused. Nizkei mammon might be a result-driven system par excellence in which toare not just justifiable, but inherently obvious even without direct authorization.
This final issue might serve as introduction for future shiurim. This week we studied the phenomenon of toladot: Why does the Torah realize toladot in certain areas of halakha and not in others? Within the tolada halakhot, why do we require a source in some instances and not in others? How do some of our conclusions affect the way in which we understand the avot themselves? If indeed nizkei mammon is completely result-centric, driven by the need to compensate damages which one is loosely responsible for, why should the issues of the animal's motive (seeking pleasure or intent to damage) play a role? Why indeed, does the gemara divide parshat Mishpatim into four distinct categories known as avot, if they all fall under the general category of damages which should be recompensed?
[This shiur is based upon one delivered by Harav Aharon Lichtenstein, but was not reviewed by him.]
Sources for next week's shiur
The Definition of "Keren"
- 2b – "Tanu Rabanan 3 avot… toladot keren ke-keren."
- Tosefot s.v. aval; 15a – "Itmar… de-linterei torei"; 15b – "ve-hashta… be-bavel," Tosefot s.v. ve-hashta, Shita Mekubetzet s.v. ve-hashta, ve-Riva.
- Rashba, 2b s.v. neshikha; 3a – Tosefot s.v. ve-shein; 16a – Tosefot s.v. ve-ha-nachash; Shita Mekubetzet, 16a s.v. od katvu be-Tosefot harei kemo regel.
- 19b – "Yativ…teiku," Rashba s.v. ve-khi, Shita Mekubetzet s.v. o dilma.
- Rambam, Hilkhot Nizkei Mamon, chapter 1.