HAKONESS – SHIUR 2 (PART II) THE FOUR ACTS FOR WHICH THE OFFENDER IS EXEMPT ACCORDING TO THE LAWS OF MAN BUT LIABLE ACCORDING TO THE LAWS OF HEAVEN (PART II) – BAVA KAMA 55B
In the first part of this shiur we dealt with the general parameters of the law of Rabbi Yehoshua. Now we shall examine separately two of the cases with which he deals.
I. Breaching a fence in front of a neighbor's animal
"Breaking down a fence in front of a neighbor's animal." Under what circumstances? If we assume that it was a kotel bari (the fence was sound), the offender should be liable also according to dinei adam (the laws of man)? It must therefore be where the fence was shaky… These four cases were particularly necessary to be stated by him, as otherwise you might have thought that even according to dinei shamayim (the laws of heaven) there should also not be any liability. It was therefore indicated to us [that this is not so]. In the case of breaking down a fence in front of a neighbor's animal you might have said that since the fence was in any case bound to come down [he was planning on destroying it], what offense was committed, and that even according to dinei shamayim there should be no liability. It was therefore indicated to us [that this is not so].
The Gemara establishes as obvious that if a person breached a kotel bari before his neighbor's animal, liability can be imposed upon him even according to dinei adam. What liability are we talking about here – for the damage to the fence, for the damage caused to the owner of the animal that ran away (the loss of the animal), or for the damage caused by the fleeing animal? The three main positions found in the Rishonim relate to these three possibilities.
1. The position of the Rif and Rashi
The Rif (24a in the Alfasi), Rashi (s.v. iy) and Tosafot (s.v. ileima) share the same position. According to them, the only liability that may be suggested in this context is liability for the damage done to the fence itself. For the escape of the animal there is no room to impose liability according to dinei adam, as this is a case of gerama (see Tosafot for an explanation of the various stages of our passage according to this view).
2. The position of the Rama and the Ramban
A second position is raised and rejected by the Tosafot, but remains as the final position of the Rama (cited by the Tur, 396) and the Ramban [in his Kuntrus Dina de-Garmi]. According to this view, even though liability cannot be imposed upon the person who breached the fence for the damage caused by the freed animal, he can be obligated to compensate the animal's owner for the loss of his animal. Why is the damage caused by the animal regarded as gerama, while the damage to the animal is considered direct damage that is subject to liability? The Beit Yosef explains the Rama's position as follows:
Since he breached the fence in front of [the animal] it is as if he caused it to be lost with his own hands.
In my opinion, he means to say that from the moment that he breached the fence, the animal was regarded as lost. This is regarded as direct damage and not gerama, as this is a direct act that turns something good – a well-watched animal – into something defective – an animal that is not being watched. Accordingly, the one who made the breach is seen as having caused direct damage and injury to the animal. Of course, the damage caused by the animal is completely different; regarding that damage, the breach of the fence is merely an indirect factor.
A similar explanation is offered by the Ramban in his Kuntrus in a different context – the liability falling upon one who shows another person's property to bandits. The Ramban compares his liability to that of a person who puts another person's wallet on the street:
Since the collectors did not see the other person's money, and he showed it to them, he caused all the damage, for the money had been well-watched and he caused it to be removed from the owner's possession. For since they stood near it, it was in their possession, as it says (Bava Kama 117a): 'Since they stood near it, it is the same as if it had already been burnt,' for it was removed from the owner's possession. This is similar to one who takes his neighbor's wallet and leaves it in the public domain. Hence he is liable to pay.
One might have thought that one who leaves his neighbor's wallet in the street causes him damage, in that someone will come by and take the wallet. The Ramban, however, sees the case differently. His very leaving of the wallet in the street is regarded as if he had "burned" it, and therefore it is an act of damage that carries liability – the mazik (one who caused damage) took a good wallet and turned it into an abandoned wallet, which is regarded as if it had been burnt. If by chance the wallet remains undamaged, it can, of course, be returned to its rightful owner, but as long as it lies in the street it is regarded as destroyed. The same is true in our case: Freeing the animal renders the animal a freed animal. It seems to me that the Ramban understands our passage as did the Rama: "For when he breached the fence, it left the owner's possession… Therefore, he is not exempt [from liability] for the animal itself until he returns it to a well-watched place in the owner's possession, for he removed it from his possession when he breached the fence." In other words, the very removal of the animal from the owner's possession is an act of damage that bears liability.
The difficulty that arises from this explanation is that this would subject every thief and robber to the law of a mazik, even if he did not perform an act that can be seen as a kinyan, but merely caused the object to be removed from its owner's possession, for removal from the owner's possession is an act of damage. A clarification of this issue requires a broad discussion that cannot be conducted in this forum.
3. The position of the Rambam and the Shulchan Arukh
Let us move on to a third opinion that broadens the scope of responsibility to the maximum – the viewpoint of the Rambam (Hilkhot Nizkei Mamon 4:2, and so too Shulchan Arukh, CM 396:4):
If one breached a fence in front of another person's animal, and it went out and caused damage – if the fence was strong and sound, he is liable.
The words, "and it went out and caused damage," and so too the location of this ruling, clearly indicate that one who breaches a sound fence is liable according to dinei adam for the damage caused by the freed animal. Therefore, the Ra'avad immediately notes: "If he refers to the damage [caused by the animal], this is incorrect, unless he struck it and directed it to the damage." When he says "he struck it," the Ra'avad means to raise a difficulty from the law of the Mishna, which exempts bandits from the damage caused by an animal that they stole unless they took the animal out or struck it, as stated in the Gemara 56b. Why is a bandit exempt, whereas one who breaches a fence is liable? It should be emphasized that this is not merely an objection from a source that appears to contradict the Rambam's ruling, but also a logical objection. How can the Rambam impose liability in a situation that seems to be a clear case of gerama? Of course, despite this difficulty, there are many advantages to the Rambam's understanding our passage. The very connection to our Mishna intimates that we are dealing with damages caused by the animal, and the liability according to dinei shamayim when the fence is shaky is easily understood. Liability cannot be imposed according to dinei adam because it is possible that the damage might have occurred even had the person not breached the fence, and therefore we go down one notch – to liability according to dinei shamayim (which is not the case if we are dealing with liability for the fence, for then we must propose a forced answer to explain the exemption according to dinei adam). But how would the Rambam counter the Ra'avad's objection?
In truth, the Rambam himself clarifies his position in a responsum to the Sages of Lunel:
If the fence was strong and sound, the person who breached it is liable for the damages according to dinei adam. But if the fence was shaky, so that the animal is not well-watched, the person who breached it is exempt according to dinei adam for the damage caused by the animal, and liable according to dinei shamayim, for he caused the owner to pay, since the fence was shaky, as we have explained. For even if bandits broke into or breached it, the sheep's owner is liable, and had he not breached the fence, the animal might not have gone out and caused damage. For this reason he is liable according to dinei shamayim. That which you objected to this from the fact that bandits who breached the sound fence of a corral are not liable for the damage unless they took the animal out, but if it went out by itself, they are exempt – this is certainly an objection… and this is the resolution: There is a big difference between bandits who breached a corral and his neighbor who breached a fence in front of his animal. For it is the bandits' intention to steal the animal; therefore as long as they have not removed it from its owner's possession, they are not liable for theft, and it is not in their possession. But if they left it there, they haven't done the intended damage, i.e., theft, and therefore they are exempt. But someone who breaches a fence in front of another person's animal has no intention to steal it. His intention is merely that the animal should get out and cause damage, so that its owner would become liable for the damage. Therefore, he is liable for that damage as is every mazik. This is the difference between bandits and someone who breaches a fence in front of another person's animal. All these things are correct and all were given by a single shepherd.
There are two main novelties in this responsum: The first relates to liability according to dinei adam in the case of a kotel bari, and the second to liability according to dinei shamayim in the case of a shaky fence. As for dinei adam, the Rambam proposes that this depends on the mazik's intention. A thief who breached a corral in order to steal does not have in mind that the animal should not be well-watched. On the contrary, he intends to take it and watch it well (so that it should remain in his possession). Therefore, there is no room to make him liable for the damage that it causes. In our case, on the other hand, we are dealing with a person who "merely intended that the animal should get out and cause damage, so that its owner would become liable for the damage." The scenario is a little strange, and so too the breacher's assumption that the owner will become liable for damages is also puzzling, for we are dealing with a well-watched animal. But nevertheless his intention is that the animal should cause damage, and therefore he is obligated to compensate the owner for the damages.
As for dinei shamayim, the Rambam proposes that the breacher's obligation is to the owner – the owner is liable for the damages caused by his animal, as he did not watch it well and it went out and caused damage. He is not granted an exemption because the breach was not his fault, but the fault of the breacher (for the Rambam rules in Hilkhot Nizkei Mamon 4:1 in accordance with the opinion that in a case of negligence at the beginning, and unavoidable accident at the end, there is liability). The owner is therefore liable in dinei adam toward those who suffered damage, and the breacher's liability according to dinei shamayim is toward the owner for having caused him to be liable to make compensation. If, for example, the people who were damaged by the escaped animal make no claim from the owner, and the owner pays nothing, the breacher bears no liability to the owner even according to dinei shamayim.
On what is the liability according to dinei adam based? The Gra in his comments on the Shulchan Arukh (396, 8) explains that the Rambam's position is based on a wide interpretation of the law of garmi:
He maintains that this is garmi, just that he is only liable if he intended to cause damage. This is in keeping with his position as he maintains that in all cases of gerama there is liability… he only distinguishes between whether or not he had intention.
This means that the liability of the person who breached the fence stems from the law of mazik and the law of garmi. The Gra understands that according to the Rambam in every case of gerama in which the mazik had intention to cause damage, he is liable according to dinei adam, based on the law of garmi.
The Meiri on our passage preceded the Gra with this explanation of the Rambam's viewpoint. But he proposes a narrower definition of the liability of garmi:
It was the bandits' intention to steal, and as long as their intention was not realized, they are not liable for the damages caused by the animal. But the person who breached the fence intended merely to cause damage, and his intention was realized, and therefore he is liable. We can strengthen their words that this is included in the law of garmi and not in gerama. For you already know that many commentators toiled to explain the difference between a case of garmi where he is liable and a case of gerama where he is exempt. To the point that they explained that wherever he intended to cause damage and the damage was done exclusively by him, this is a case of garmi, as in the case of one who burned the shetar (bill of indebtedness) of another person, or one who waived payment on a shetar after having sold it. And wherever it was not his intention to cause damage, or he intended to cause damage but there is somebody else helping cause the damage, this is a case of gerama where he is exempt… Here too we say according to [the Rambam], that this gerama, since it was his intention to cause damage, and the damage was done exclusively through him, is included in the law of garmi, and he is liable for the damage. But in the case of a shaky fence, the other person was negligent, and in a case of gerama with the negligence of another person, he is exempt.
The Meiri imposes another condition in addition to intention to cause damage: that the mazik is the sole factor responsible for the damage. Of course, this does not mean that there is no other necessary condition for the occurrence of damage apart from the mazik, for every event has a long causal chain of factors that brought it about. The reference here is to an additional factor that can be seen as responsible. This factor need not be a person who is subject to liability. Thus, for example, the Rambam writes in the continuation of the halakha with which we are dealing that "if a person places poison in front of an animal belonging to another person, he is exempt according to dinei adam, but liable according to dinei shamayim." According to the Gra, we must say that there is no intention to cause damage here. According to the Meiri our explanation is much smoother – it is the animal that causes itself the damage when it ingests the poison, and therefore this is a case of gerama and not garmi.
However, it is difficult to understand why when a person breaches a fence in front of another person's animal and it goes out and causes damage he is considered the sole cause of the damage, whereas when he places poison before the animal he is not seen as the sole cause. Perhaps we can draw a different distinction between the two cases (see Bava Kama 47b). It must, however, be admitted that often the distinctions that are required to explain the difference between cases of gerama where he is exempt and cases of garmi where he is liable are very forced; they often are not solely rooted in logic but in a need to solve for various givens. In my opinion, we should concede that the position of the Ritzba quoted in Tosafot in Bava Batra (22b, s.v. ve-zot), according to which "the law of garmi is a kenas (penalty)… and therefore in all cases of common damage, the Sages imposed a kenas. The reason for the kenas is that people should not go around causing damage to other people's property," is not only a position that has a practical advantage for maintaining civil society, but also a position with a theoretical advantage, for it frees us from the need to offer forced distinctions between similar cases.
II. Knowing testimony in favor of another person and not testifying on his behalf
Knowing testimony in favor of another person and not testifying on his behalf. With what case are we dealing here? If with a case where there are two [witnesses], is it not obvious that it is by Torah law, [as it is written]: "If he does not utter it then he shall bear his iniquity" (Vayikra 5:1). It must therefore be where there is one [witness]…. You might also have said that [the offender could argue]: Who can say for certain that even had I gone and testified on his behalf, the other party would have admitted [the claim], and would not perhaps have sworn falsely [against my evidence]? And so even according to dinei shamayim he should not be liable. It was therefore indicated to us [that this is not the case].
The case of a person who knows testimony favorable to another person but does not testify on his behalf stands out among the other cases discussed by Rabbi Yehoshua. This is because according to the simple understanding we are not dealing here with the causing of indirect damage, but with the failure to come to another person's assistance. The Ramban formulated this idea well in his Kuntrus Dina de-Garmi, where he explains why there is no liability according to dinei adam based on the law of garmi:
For he too is only obligated to testify on his behalf based on the law of practicing kindness, which obligates him to testify, but if he did not wish to fulfill this mitzva, by strict law there should be no monetary liability… To what may this be likened? To one who sees his fellow's wallet about to be lost, and does nothing to save it, or to one who does not want to give any of his money to a poor man, for which a court does not impose liability. Here too the court does not obligate him to pay from his pocket, for the Torah did not impose liability. Rather it is like other mitzvot, and not a monetary obligation.
This being the case, it stands to reason that the liability in this case according to dinei shamayim is also different from the liability in the other cases, and that it constitutes a much more novel idea – not liability for indirect damage, but a rare instance in which the Sages imposed liability for failure to perform a required act of kindness. It may be difficult to understand why the Sages imposed liability for failure to give testimony, but did not do so for failure to fulfill the obligation to return lost property, for example, but that is indeed the situation.
I therefore have difficulty understanding the Gemara's question: "If with a case where there are two [witnesses], is it not obvious that it is by Torah law, [as it is written]: 'If he does not utter it then he shall bear his iniquity.'" Even if we assume that this verse teaches that there is a Torah obligation for two people who know testimony to testify, from where do we know that it is obvious that monetary liability according to dinei shamayim is imposed upon one who fails to testify? Surely we are dealing with a very novel obligation. Granted, if we understand that the liability according to dinei shamayim is a punishment imposed for improper conduct (as in last week’s lesson when we discussed the view of Rashi in 53a regarding one who performs work with mei chatat), we could say that the Gemara is saying that it is obvious that the witnesses should be punished, for the Torah explicitly states that the witness will bear his iniquity. But as we have seen, the prevalent approach is that liability according to dinei shamayim is a monetary obligation to pay the injured party; why then does the Gemara think that this falls into the category of the "obvious?" It seems that Chazal understood that the words "and he will bear his iniquity" teach that he must bear responsibility for the damage that was caused, and this also explains the difference between refraining from giving testimony and refraining from returning lost property. But it is still far from clear that this falls into the category of "obvious," and I would be very grateful to hear your suggestions about how to understand the matter.
Quite surprisingly, there are Rishonim who take this one step further, and understood that liability can be imposed upon the witnesses not only according to dinei shamayim, but even according to dinei adam. There are two versions of this understanding. One version is proposed by Riaz (in Shiltei Gibborim, here, 24a in Alfasi, no. 2). According to him, we are dealing with gerama, and since we accept the law of garmi, we can impose monetary liability according to dinei adam for the damage that was caused. The source for this approach is Rashi (discussed two weeks ago), who writes that Rabbi Yehoshua's exemption according to dinei adam is only according to the view that grants exemption in a case of gerama (it seems that he is referring to the view that grants exemption in a case of garmi, for according to him they are the same). I am inclined to understand according to Rashi’s rule that the exemption according to dinei adam should apply only in the other three cases, and not for one who knows favorable testimony for another person and fails to testify, for this does not at all fall into the category of gerama. The Riaz does not say this, and his position is quite novel.
The second version is proposed by Rabbeinu Yerucham, who understands the Gemara in a different manner.
One who knows testimony in favor of another person but does not testify on his behalf: if there are two witnesses, he is liable by Torah law; if there is one witness, he is exempt according to dinei adam but liable according to dinei shamayim (Meisharim Netiv 2, part 7).
Rabbeinu Yerucham understands that the Gemara's question is not only that it is "obvious," but also that the law is incorrect! In a case where there are two witnesses, liability should even be imposed according to dinei adam, and not only according to dinei shamayim. This is not based on garmi, as argued by Riaz, but based on the verse: "If he does not utter it then he shall bear his iniquity." According to him, this verse teaches about the witness's obligation to pay, and we are dealing with a routine monetary obligation according to dinei adam. This sharpens the novelty in the words of Chazal, and requires further study.
Sources for next shiur:
In the next shiur we shall clarify the source of a robber's liability for the damage caused by the animal that he stole. The principles that we will encounter will serve us also later in our discussion of a shomer's liability for the damage caused by the animal entrusted to him. For the next shiur see the Gemara on p. 56b until "de-hikishuha" and carefully study Tosafot, 56b, s.v. peshita.
(Translated by David Strauss)
 Unfortunately, we cannot clarify the other two cases mentioned by Rabbi Yehoshua. The matter of bending over a neighbor's standing corn in front of a fire is connected to the category of aish (fire), which will be discussed in the continuation of the chapter. We might have an opportunity at some point to return to our passage here (for further study, see the important words of the Re'a in Shita Mekubetzet, ad loc., and Chidushei Rabbeinu Chayyim ha-Levi, Hilkhot Shekhenim 11:1). The matter of hiring false witnesses to testify is connected to the general discussion of shelikhut li-devar aveira (agency for a prohibited act); in connection with our passage, see Tosafot, s.v. ela; Shakh, 32, 3.
 Tosafot Rabbeinu Peretz, ad loc.; Tosafot, Sanhedrin 77a, s.v. bi-nezakin.
 Responsa ha-Rambam, no. 432, cited by Migdal Oz, ad loc.
 This, of course, applies as long as he does not assume responsibility for damages as a thief – an issue that will be clarified in next week's shiur.
 The Rambam at the beginning of the passage clarifies that a kotel bari is one that provides satisfactory safekeeping, whereas a shaky fence is one in which the animal is not regarded as safely kept.
 It seems clear to me that this novel idea of the Rambam was only stated with respect to liability according to dinei shamayim in the case of a shaky fence, and not with respect to liability according to dinei adam in the case of a kotel bari. The Or Same'ach understood the Rambam's ruling differently, and his position requires further study.
 This is puzzling, for the other person's negligence was not a contributing cause of the damage. It stands to reason that the Meiri agrees here with Tosafot 52b, s.v. u-shekhichi, who understand the passage below 56a, where the damage was caused because the fence was shaky, that the breacher could not have breached the fence had it not been shaky, and therefore it is a case that begins with negligence and ends with unavoidable accident (on the assumption that the accident must come about because of the negligence).
 The liability in the case of a single witness is for the fact that he could have forced the defendant to take an oath, and it is very possible that the defendant would have chosen in that situation to pay and not take a false oath. Rabbi Akiva Eiger discusses whether this liability still applies after the establishment of the heset oath, which obligates anyone who completely denies a claim to take an oath (not specific to a case of a single witness). And similarly whether this liability applies in the case of landed property, regarding which there is no oath because of a single witness. The standing of a single witness and the relationship between the testimony of a single witness and that of two witnesses is a broad topic that cannot be adequately addressed in this context.
 This point troubled the Rishonim ad loc. This verse is the source of the law of shevuat ha-edut, which imposes liablity for a sin-offering upon one who has information supporting a plaintiff's claim and falsely denies under oath that he has such information. From where then do we know that there is any liability even without a false oath? See in this context Tosafot, s.v. peshita, and Rashba, s.v. iy.
 It stands to reason that he did not have the reading "it is obvious," but rather the reading of the Meiri, in which that word does not appear. As opposed to the Meiri, Rabbeinu Yerucham understands that the question is not that the matter is obvious, but rather that the law is incorrect. See also the reading discussed in Piskei ha-Rid.