Hakoness – Shiur #03: "If Robbers Took it out" – A Robber's Liability For The Damage Caused By The Animal He Stole – Bava Kama 56b
"If robbers took it out [and it did damage], the robbers are liable for the damage." Is this not obvious, seeing that as soon as they took it out, it was placed under their charge in all respects!
What is the basis for this argument that the Mishna's law is obvious? From where do we know that a robber is liable for the damage caused by the animal that he stole? This question is raised by a most fundamental Tosafot in our passage – s.v. peshita. This Tosafot has been discussed at length by the Acharonim owing to an important distinction that the Tosafot make between a robber and a shomer (watchman) with respect to the nature of their respective obligations toward the owner of the property. But our primary concern today will be with the various explanations proposed by the Tosafot regarding the simple law that a robber is liable for the damage caused by the animal in his possession.
1. The Beginning of the Tosafot
At the beginning of the passage, the Tosafot propose (using the formulation: "one should not say") that a robber's liability may be learned from that of a shomer. For surely – so presumably are we to understand what drove the Tosafot to this understanding – a robber bears greater liability than do the four types of shomerim, as a robber is liable toward the owner even in a case of ones (unavoidable accident), and even in a case of meita machamat melakha (if the animal died while doing its normal work).
The Tosafot, however, quickly reject this proposal. The Tosafot argue that there is an aspect of stringency regarding a shomer as compared to a robber, namely, that a shomer is obligated to watch over the animal entrusted to him. A robber, so argue the Tosafot, is not obligated to watch over the animal, for he never entered into an agreement with the owner, thereby committing himself to watch over it. A robber is obligated to return the stolen object, and therefore he is liable in a case of ones. He is not responsible for what happens to the object – he is merely obligated to return it, or to pay its value if the object itself is no longer extant. As long as the stolen object exists, he can fulfill the obligation to return it and say, "harei shelkha lefanekha" ("That which is yours is before you"). In this way he exempts himself from further obligation, even if the object decreased in value since the time he stole it, and even if it was slightly damaged, provided that it was not changed in a fundamental way. The Tosafot offer the following example – produce some of which began to rot. The assumption is that we don't look at each piece of fruit individually, but rather we see the crate of fruit as a single unit, and since it did not suffer fundamental damage, the robber can say, "harei shelkha lefanekha." As for a shomer, on the other hand, if he is responsible for the fruit's rotting, he is liable for the damage, as it was his responsibility to watch over it. But a robber is not obligated to watch over the stolen property, and therefore it makes no difference whether or not he was responsible for the fruit's rotting. As stated above, the distinction of Tosafot has given rise to extensive discussion regarding the laws governing a robber as well as those governing a shomer, and it raises fascinating questions that are not presently of concern to us. It is also not clear that this distinction was accepted by all authorities.
As for the matter at hand, at this point the Tosafot understand that the liability of a shomer for damage stems from a factor that he has but a robber lacks – an agreement with the owner that gives rise to an obligation to watch over the object. This agreement, which is founded on the laws of shomerim in tractate Bava Metzia, is what establishes the liability here. This stands in contrast to a possible understanding according to which it is the Torah that casts upon the shomer the liability of Bava Kama, because he is now responsible for the object. At this stage the Tosafot maintain that the shomer's agreement with the owner, which obligates the shomer to watch over the object, includes responsibility not only for the damage caused to the owner should something happen to the object (the responsibility of Bava Metzia), but also responsibility towards potential victims of damage caused by the object (the responsibility of Bava Kama). This factor is lacking in the case of a robber, for he never entered into any agreement and is not obligated to watch over the object. We shall discuss the liability of the shomer for damage in the next shiur. In this shiur we shall focus on the robber's liability, and here the Tosafot propose two different understandings.
2. The Robber as Owner
I wish to open with the Tosafot's second proposal, because that proposal, as I understand it, accepts the assumptions made by Tosafot up to this point. That is to say, the shomer is liable for damage because he obligated himself to watch over the object, and this factor is absent in the case of a robber. The Tosafot propose that a robber's liability for damage stems from a factor found in a robber, but missing in a shomer. They suggest that he is liable in just the same way that the animal's owner is liable, and not in the same way that a shomer is liable. Let us examine the wording of the Tosafot:
Since [the stolen property] was placed under the robber's charge, even with respect to ones, he is considered an owner more than a partner. This is the implication of the words: "it was placed under their charge in all respects" – the fact that it was placed under his charge in all respects works here.
An explanation of their explanation: We said above that a robber is not obligated to watch over the stolen property but only to return it. This gives special meaning to his liability in a case of ones. He is not liable for what happens to the object through ones, but the accident interferes with his ability to fulfill his obligation to return the object. The robber acquires, as it were, the object, only that the Torah obligates him to return it. This acquisition works largely to his disadvantage. From our perspective, the object is his, and if it breaks owing to ones, the loss falls upon him, just as it would fall upon a person whose own property breaks as a result of ones. Such an accident has no effect on the obligation to return the object – if the object no longer exists for any reason whatsoever, the obligation to return it is transformed into an obligation to make a monetary payment in lieu of the object (as the Rambam writes in his Sefer ha-Mitzvot, positive commandment, no. 194: "He commanded us to return the stolen property itself if it is found in its original state… or to pay its value if it has been changed"). This stands in contrast to the rule that applies in all Torah matters that ones Rachmana patrei (the Torah grants exemption in a case of ones). Here we do not obligate the robber for what happened, and so the rule is irrelevant. This is what the Tosafot mean when they say: "Since [the stolen property] was placed under the robber's charge, even with respect to ones, he is considered an owner more than a partner." The robber's liability in a case of ones reflects his standing regarding the stolen property as similar to that of an owner. And this ownership makes him liable for the damage caused by the property he stole, as it is "property of his that caused the damage."
[Parenthetically it may be noted that this approach raises a question regarding a sho'el (a borrower), who is also liable for ones. According to certain approaches, the liability of a sho'el also stems from his owner-like standing with respect to the property. The Tosafot here explain that the liability of a sho'el in a case of negligence is similar to that of a shomer, that is, that a sho'el is also obligated to watch over the object, as opposed to a robber. But it is not clear from what they say whether the liability of a sho'el for ones is similar to the liability of a shomer, or perhaps it stems exclusively from the obligation to return the object that falls upon him as it falls upon a robber. The practical difference is clear – what is the law if some of the produce (or something else that is more appropriate for lending out) suffered rot owing to ones: Is the sho'el liable for payment like a shomer, or perhaps he can say, "harei shelkha lefanekha" (like in the case of a robber). For our purposes, this has ramifications with respect to the nature of the liability of a sho'el for damage caused by the borrowed animal: Does it stem from the agreement made with the owner, as in the case of the other shomerim, or perhaps it stems from ownership, as in the case of a robber? As stated, it is clear from the Tosafot that the first factor exists, like with the other shomerim. But there is still room to consider whether the second factor exists as well. In the event that we find practical differences between the two factors (an issue that will be discussed in the next shiur), a sho'el might be liable because of both factors].
3. The Unique Definition of Ownership with Respect to the Laws of Damage
I reversed the order and opened with a clarification of Tosafot's second proposal, because that proposal preserves the dichotomy between owner and shomer and places the robber on the side of the owner. Now let us examine Tosafot's first proposal that challenges the aforementioned distinction:
It stands to reason that the robber enters in place of the owner. Since he removed it from the charge of the owner who had been obligated to watch over it, and the owner cannot watch over it since it has been stolen from him, it falls upon the robber to watch over it, for regarding damage anyone in whose hand it is to watch over it is called the owner.
Try for a moment to read this explanation while omitting the final clause: "It stands to reason that the robber enters in place of the owner. Since he removed it from the charge of the owner who had been obligated to watch over it, and the owner cannot watch over it since it has been stolen from him, it falls upon the robber to watch over it." What emerges from this seems to be a neutralization of the principle of ownership with respect to damage, and the basing of all liability on the obligation to watch over the property. The idea is that the Torah obligates the party upon whom it is most reasonable to impose an obligation to watch the animal (sometimes this is impossible, such as in the case of an ownerless animal). Basically, the animal's owner is obligated to watch over it – he is the logical candidate upon whom to impose this obligation, among other reasons, because he has the means to fulfill it. However, when a robber removes the animal from the owner's charge – meaning the owner can no longer watch over it while the robber can – it falls upon the latter to watch over it.
The Tosafot, however, do not stop with this argument, but they added the concluding phrase: "For regarding damage anyone in whose hand it is to watch over it is called the owner." With this they follow a complicated and interesting course. On the one hand, the Tosafot clarify that they have not abandoned the principle of ownership; it is clear to them that the Torah casts responsibility for damage on the animal's owner. On the other hand, in the context of damage, ownership is defined in a unique way, entirely different than the usual definition of ownership – "anyone in whose hand it is to watch over it."
On the face of it, it is difficult to understand what the Tosafot have gained from this, as it looks like legal acrobatics that contribute nothing to the laws of liability (for in any event this depends upon which person is in a position to watch over the animal). It may be suggested that with this understanding the Tosafot adopt a complex position on a matter that greatly occupied the Acharonim regarding the basis of liability for damage caused by one's own property: Is such liability based on the failure of the party who is obligated to watch over the animal to adequately watch over it; or perhaps the very fact that the person's property caused damage suffices to impose liability upon him. The Tosafot adopt the second understanding, and therefore it is necessary to define the robber as an owner, only that the definition of this ownership is "anyone in whose hand it is to watch over it."
You might ask: If so, what are the practical ramifications? What difference does it make whether he is liable because of his failure to watch over the animal, or because of ownership, which is defined by the obligation to watch over the animal? The answer is that there is an important difference between these two approaches. According to the first possibility the liability follows from a failure to watch over the animal, whereas according to the second possibility the liability follows from the very damage, and watching over it can only serve as a factor that can exempt him in a case of ones. There can be a simple practical difference between the two in a case where a person's animal caused damage, and there is a doubt as to whether he adequately watched over it. If liability is based on failure to watch over the animal, the burden of proof falls upon the plaintiff, i.e., the party who suffered the damage (this is the position of the Penei Yehoshua in Bava Kama 56b, s.v. gemara leima). But if liability is based on the very fact that there was damage, there is a cause of liability established with certainty and a doubtful cause of exemption, and so, based on the rule of ein safek motzi mi-din vadai ("a doubt does not override certainty"), it is possible that we can impose liability (this is the view of the Chazon Ish, Bava Kama, end of no. 7, that the owner of the animal that caused the damage must prove that he had adequately watched over the animal). There are many other practical ramifications, but this is not the place to conduct this important discussion.
4. What is the Difference Between the Two Approaches of Tosafot?
It was noted in the previous section that the Tosafot's first proposal also imposes liability upon the robber as an owner, following the unique definition of ownership that they give in the context of damage. However, let there be no confusion – there is still an important difference between the two approaches of the Tosafot. According to the second approach (according to the order in the Tosafot), what defines the robber as liable for damage is his standing as an owner. According to the first approach, on the other hand, what defines the robber as liable is his ability to watch over the animal combined with the true owner's inability to do so (even if this is done with the help of the novel idea that this ability to watch over the animal defines ownership with respect to liability for damage, with the ramification suggested above). We shall try now to examine the difference between the two approaches.
One possible ramification relates to the way we understand the liability of a shomer for damage. As we said above, according to the simple understanding of what the Tosafot say at the beginning, which is maintained also in their second approach, there is a clear distinction between the owner's liability for damage, which stems from his very ownership and the responsibility that the Torah casts upon him because of it, and the liability of a shomer, which is based on the agreement he has with the owner that obligates him to watch over the property entrusted to him – that it not suffer damage (the responsibility of Bava Metzia) and that it not cause damage (the responsibility of Bava Kama). In contrast, according to the first approach, that "regarding damage anyone in whose hand it is to watch over it is called the owner," there is room to say that there is no longer any reason to distinguish between a shomer, on the one hand, and the owner and a robber, on the other – they are each liable because in their respective circumstances it is in each one's hand to watch over the animal. This has certain ramifications. We shall deal with this question in the next shiur when we examine a shomer's standing regarding damage. Today we shall focus on the ramification that this may have regarding a robber's liability for damage.
Is there a ramification with respect to the practical manner in which the robber becomes liable for damage? According to the Tosafot's second approach, this depends on the fact that the animal entered into the robber's charge, that is to say, that he became responsible for it and even acquired it at the level that a robber acquires the property he has stolen. According to the prevalent opinion, this requires an act of kinyan on the part of the robber, which might even parallel an ordinary act of kinyan in its demands. If so, only a robber who performed such an act of kinyan is liable for damage. In contrast, according to the first approach in Tosafot, that "it stands to reason that the robber enters in place of the owner. Since he removed it from the charge of the owner who had been obligated to watch over it, and the owner cannot watch over it since it has been stolen from him, it falls upon the robber to watch over it," it would seem that there is no place to require a valid act of kinyan.
The matter, however, requires further study. Already our mishna states: "If robbers breached the fence, and it went out and did damage, he is exempt. If robbers took it out [and it did damage], the robbers are liable for the damage." That is, the robbers are not liable simply because they caused the animal to go out and they could have watched over it. In fact, the Tosafot's words, "for regarding damage anyone in whose hand it is to watch over it is called the owner," cannot be understood in their plain sense. It is certainly not enough that it is in my hands - in my practical possibility – to watch over the animal, to define me as responsible for it with respect to damage. If my neighbor left his house and doesn't know that his wall collapsed in an unusual wind, and I see that his animals have gotten free, and it is in my hand to watch over them, I am not called the owner with respect to damage. The term "in his hand to watch over it" is certainly not merely a factual matter, but a normative one as well – one in whose hand it is to watch over the animal and who is expected to do so (beyond for the fulfillment of the mitzva of practicing lovingkindness of one sort or another, like the mitzva of returning lost property). This is also the weakness in the definition proposed by the Tosafot, as it does not provide an answer to the question when is it expected from a person in whose hand it is to watch over the animal that he should actually watch over it. Accordingly there is room to say that the Torah has such expectations only from a person who is defined as one in whose charge the animal is now standing, i.e., a robber. It is not far-fetched to say that for this he must meet the halakhic parameters of a robber, which include an act of kinyan.
Here is the place to relate to the opening words of Tosafot: "Our Mishna is referring to a case where they took it out in order to steal it, as it is understood in the Yerushalmi." Tosafot cite and accept as law what is stated in the Yerushalmi, chap. 6, end of halakha 1: "If robbers took it out, the robbers are liable. Rav Hosh’aya said: Where they took it out in order to steal it. But if they took it in order to cause its loss, the robbers are exempt." We are dealing with an issue that occupied the commentators in various contexts within the laws of theft and robbery; is one who steals in order to cause its loss - that is, he steals the object not in order to make use of it, but in order to destroy it - treated as a mazik or as a robber? The Gemara below (98a) clearly implies that if there was an act of kinyan, he is obligated to return it like a robber, even if his intention was to throw the object into the sea. On the other hand, the Yerushalmi here, which Tosafot and the Shulchan Arukh (396:3) accept as law, says that if the robbers took the animal out in order to cause its loss, they are not liable for the damage it causes. Some Acharonim distinguish between the two sources, arguing that one who steals an animal in order to cause its loss is obligated toward its owner with respect to its return, but he is not liable for the damage caused by the animal. Without going into the details, this may be seen as another expression of the fact that the Tosafot maintain that it is not enough that the robber prevents the owner from watching over the animal, and that it is in his power to do so; liability for damage can only be cast upon him if he can be defined as the one in charge of the animal. This requires a certain level of kinyan, perhaps even higher than that required to impose upon the robber the obligation to return the stolen property and liability for unavoidable accident – only possession of the article that is achieved with something that substitutes for the intent to acquire that is required for an ordinary kinyan: intent on the part of the robber to keep the article for his own benefit.
It may be possible to suggest another difference between the two approaches in the Tosafot. If there is a situation where the animal's owner sees the animal as unwatched, and while he cannot presently take the animal back into his possession, he can watch over it that it not cause damage. According to the second approach, that it is the robber's kinyan that defines him as the animal's owner with respect to damage, it would seem that this situation continues as long as the stolen animal has not been returned to its original owner. The law should be different according to the first approach that is based on the fact that "since he removed it from the charge of the owner who had been obligated to watch over it, and the owner cannot watch over it since it has been stolen from him, it falls upon the robber to watch over it." In our case the owner can in fact watch over it, and so it can be argued that the obligation to watch over it still falls upon him. One can, however, disagree and argue that once the robber becomes obligated to watch over the animal (and in the continuation of the Tosafot this defines him as owner: "For regarding damage anyone in whose hand it is to watch over it is called the owner"), the obligation to watch over the animal is cast upon him until he returns it to the owner. My own inclination is that the difference proposed here is correct – as long as the owner has not declared his animal ownerless, it is his and he is obligated to watch over it, unless it was stolen from him so that he cannot watch over it, for then the robber is obligated to watch over it. When, however, the owner is capable of watching over it, his obligation is more basic than that of the robber, and it supersedes it.
This is common in Torah study. Sometimes even a short passage in a Tosafot can occupy us for an entire shiur, and this is without our exhausting all the various topics that arise from it. We have not addressed other important issues that arise in the Gemara, including the liability of one who places his neighbor's animal over his standing corn – is it based on shein as argued by the Tosafot (which raises difficult questions regarding the role of ownership with respect to damage caused by a person's property), or is it based on the damage caused by the person himself as argued by the Rashba? And is the practical difference regarding exemption in the public domain self-evident in light of the rationales underlying this exemption. Of course, anybody wishing to delve into these topics will find it rewarding.
Sources for next week's shiur:
In next week's shiur we will examine a shomer's liability for the damage caused by an animal entrusted to him. Learn the Gemara on p. 56b: "Mesara le-ro'eh… nikhnesu tachat ha-ba'alim (the continuation of that passage moves on to the topic of liability in the case where the first shomer handed the animal over to a second shomer, which will be studied in the following shiur, and will be based on today's and next week's shiur). Learn also the Gemara on p. 45a from the colon until the Mishna on p. 45b with Rashi and the Rashba, p. 45a, s.v. kulhu, "… le-hachzir shor le-ba'alav; Rambam and Ra'avad, Hilkhot Nizkei Mamon 4:4, 8, 10; Maggid Mishneh and Kesef Mishneh on halakha 4. It would be worthwhile to see also the passage printed below from Chiddushei Rabbeinu Chayyim ha-Levi on the Rambam, Hilkhot Nizkei Mamon 4:11:
As for the fact that a shomer is liable for damage, the Tosafot (Bava Kama 56b) explain that this is based on his standing as an owner, and not on his standing as a shomer. This is necessary, for the liability of a shomer relates only to the monetary value of the object itself, and not to the damage it causes… As for the law that the owner becomes exempt when he hands over the animal to a shomer, based on the law governing a shomer that he enters instead of the owner, we can understand this in two ways: We can say that the shomer enters instead of the owner with respect to the fundamental liability for damage. The animal now stands in his charge with respect to damage, and the owner is removed and no longer responsible in any way for the damage caused by the animal, and the animal is no longer in his charge with respect to damage. Alternatively, we can say that even after he hands the animal over to the shomer, the owner is not removed from the fundamental liability for damage. He too is governed by the law of a mazik for the damage that he caused, and the obligation of a mazik should actually fall upon him. But the essence of this law is that the shomer enters instead of the owner with respect to the obligation to pay, and this is what exempts the owner from paying the party who suffered the damage, because the shomer entered into his place regarding the obligation to pay. But in fact there is no removal of the law of a mazik from the owner when he hands the animal over to the shomer.
(Translated by David Strauss)
 It is interesting in this context to consider the standing of one who watches over lost property, who did not enter into an agreement with the owner and did not obligate himself to him to watch over it. The law governing one who watches over lost property will be discussed in a later shiur.
 See Sema, 354, no. 7 (this was already rejected by the Ketzot, ibid. no. 2, and the Netivot, ibid. no. 3, based on our Tosafot); Tosafot Rabbeinu Peretz, Bava Metzia 96b, s.v. kachash basar (in apparent contradiction with what he writes on our passage parallel to the Tosafot).
 This sentence is formulated in a general manner that levels the differences found in the various approaches to this issue. A clarification of the robber's standing vis-à-vis the stolen property requires a detailed examination of chapters 7, 9, and 10 of our tractate, something that cannot be done in this framework. To see a dicussion of this topic, see the VBM article on the topic of avankari (traders) in Masekhet Sukka: http://vbm-torah.org/archive/sukka/14sukka.htm.
 See, in two different formulations, Rashba, Bava Metzia 36b, s.v. mai, and Meiri, s.v. yesh sho'alin.
 Some understand that Rashi in Bava Metzia 81a, s.v. shemira, disagrees.
 I alluded to this in the first shiur on chapter Ha-Kones, though there is no full correspondence between its application there and here.
 See Bava Kama 79a, Tosafot, Ketubot 31b, s.v. u-be-reshut; Ketzot 348, no. 2.
 See, for example, Shakh 396, 1.
 This arouses interesting discussions as to whether it is possible to see the action of an animal that was caused by a person as the action of the person himself. See, for example, Even ha-Ozer, printed at the end of vol. II of Shulchan Arukh OC 328. The Tosafot also raised a third possibility that the liability is based on the law of aish; this too raises interesting questions.