Reshut Ha-rabim (Part 2)
By Rav Moshe Taragin
Shiur #12: Reshut Ha-rabim (Part 2)
In the previous shiur, we outlined two different models of understanding the exemption of regel and shein payments for damage in a reshut ha-rabim. The Rosh claims that the exemption is a purely formal exclusion reflecting little about the nature of regel and shein damages, while the Rif claims that damages in a reshut ha-rabim are too routine and natural to entail payment obligations.
An obvious nafka mina between these two approaches would develop in a situation in which the damage occurs in reshut ha-rabim but in an unusual manner. We would expect the Rosh to extend the exemption, since the damage occurred in reshut ha-rabim (regardless of HOW it took place), but we would expect the Rif to obligate payment, since the form of damage is not normal or routine. In our last shiur, we isolated two instances of damages that fall into this category. Firstly, in the case of a non-domesticated animal which causes damage in a reshut ha-rabim, Tosafot extended the exemption from regel and shein payments, indicating possible agreement with the Roshs position. Secondly, Shmuel's distinction - between lions that first kill their prey and those that devour them immediately - may be gauging the level of normalcy; even slight deviations from the norm may be sufficient to eliminate the reshut ha-rabim exemption according to the Rif, and evidently according to Shmuel as well.
The gemara in Bava Kama appears to present two situations that also reflect this question. The mishna (19b) comments that animals that eat food located on the "side of the road" must pay for the damage, even though this road is legally considered a reshut ha-rabim. Rav and Shmuel (21a) debate which scenario is described here. According to Rav, if the animal veers its head and snatches food located on the side of the road, its owner must pay. According to Shmuel, however, such a scenario would be exempt from payment, just like ordinary reshut ha-rabim cases. The mishna actually refers to a case in which the animal physically relocated itself from the reshut ha-rabim, walked upon the side of the road, and ate the food.
Perhaps Rav and Shmuel were debating the same issue as the Rif and the Rosh. Rav claimed, like the Rif, that the exemption of reshut ha-rabim stems from the routine nature of the damage. Animals that turn their heads and grab food from alcoves of a reshut ha-rabim are not behaving in classically routine fashion and therefore do not enjoy the reshut ha-rabim exemption. Shmuel, on the other hand, favored the Roshs approach. Accordingly, slight deviances in the action of the animal are not sufficient to eliminate the petur. Instead, the mishna which DOES exempt payment if food was eaten from the side of the rod - must be referring to a situation in which the animal itself walked in the side of the reshut ha-rabim. There is ample halakhic precedent for redefining this area as a virtual RESHUT HA-YACHID; for Shabbat and kinyan purposes, certain areas known as tzidei reshut ha-rabim (the margins of a reshut ha-rabim, including sidewalks and storefronts) may be attributed reshut ha-yachid status. Perhaps Shmuel was re-zoning these areas for Bava Kama purposes as well.
However, the exemption can only be eliminated if the animal itself leaves reshut ha-rabim and relocates to reshut ha-yachid.
Rav was concerned with the anatomy of the damage itself, whereas Shmuel was more concerned with the actual formal definition of the area in which the damage occurred, reflecting the fundamental distinction between the Rosh and the Rif.
Of course, this analysis does not seem to conform to our earlier analysis of Shmuel's distinction (shiur #11) between lions that devour and those that first kill and then devour. By obligating payment in the case of a lion that deviates from the routine, EVEN IF THE DAMAGE OCCURRED IN RESHUT HA-RABIM, Shmuel appears to adopt logic similar to that of the Rif. On the other hand, by displaying concern with the location of the animal and not the nature of the action in his debate with Rav, Shmuel may have indicated an allegiance to the Rosh's view.
A second appearance of this question among the Amoraim can be traced to an interesting machloket between Rava and Ilfa. The gemara (20a) discusses scenarios in which shein damages would be obligated in a reshut ha-rabim. Rava and R. Hoshia each describe a situation of kofetzet in which the animal leaps on top of another animal and eats the produce the victimized animal is carrying. In such a case, payment is obligated because the animal has effectively relocated from the reshut ha-rabim to a different zone (the back of the victimized animal), and the damage may be classified as occurring in a reshut ha-yachid.. Ilfa does not require actual relocation to the other animals back; as long as the mazik STRETCHED ITS NECK and grabbed fruit from the back of the animal victim, damages are obligated. It seems that Ilfa maintains that there is a form of damage that occurs in a reshut ha-rabim but is still obligated to pay. Even though the animal has not relocated to a different zone, its shein damages are collectable.
The Ramban writes in his Milchamot Hashem that Ilfa agreed with the Rif's version of the reshut ha-rabim exemption. The exemption only applies to animals that walk in a routine fashion through a reshut ha-rabim and eat the food lying immediately in view, without veering from their typical path, as these damages are TOO ROUTINE to obligate payment. However, if the animal stretches its neck and draws food from another animal's back, the exemption for routine damages can no longer be applied. Rava, on the other hand, agreed with the Rosh and viewed the reshut ha-rabim exemption as purely formal; in order to obligate payment for reshut ha-rabim events, the animal must actually relocate by hopping on the back of another animal, which may be deemed a virtual reshut ha-yachid.
In essence, Ilfa and Rava are debating the very same question that Rav and Shmuel discussed. If the reshut ha-rabim exemption is formal, the animal must relocate to a different marginal zone in order to be obligated in payment. Both Rava 20a) and Shmuel (21a) issued this requirement, evidently siding with the Rosh that the exemption is formal. However, Ilfa (20a) and Rav (21a) adopted the logic of the Rif that the exemption was logical and based on the routineness of the activity. Once the activity is even slightly deviant (stretching a neck according to Ilfa or even turning a head and eating from the sidewalk according to Rav), the action is no longer routine and no exemption is in effect. The Ramban indeed highlights the parallel between the two disputes.
An additional scenario of irregular eating that may not enjoy the reshut ha-rabim exemption appears in an interesting question posed by R. Yirmya to R. Zeira about a case of tzerorot in a reshut ha-rabim (19a). Typically, the category of tzerorot damages is associated with the nezek of regel. Although Rava and R. Pappa dispute the application of the mi-gufo payment cap to tzerorot (see 3b), all agree that as a derivative of regel, tzerorot should be exempt in a reshut ha-rabim. Surprisingly, this unanimous conclusion is questioned by R. Yirmiya.
One girsa of the gemara suggests that R. Yirmiyas question pertains to tzerorot performed through aggressive kicking that is, tzerorot of keren. The resulting mutant form of tzerorot may indeed display keren qualities (payment in reshut ha-rabim), and not regel traits (exemption in reshut ha-rabim). (This hybrid between tzerorot and keren was analyzed in an earlier shiur [shiur #05].) However, most Rishonim do not adopt this girsa, instead reading R. Yirmiya's question as pertaining to classic tzerorot damages. Why should these be payable in a reshut ha-rabim if tzerorot is firmly associated with regel?
Perhaps R. Yirmiya was probing the nature of the reshut ha-rabim exemption. If the exemption is formal, it should apply to all situations of regel, INCLDUING tzerorot. However, if the reshut ha-rabim exemption is based on the routine nature of typical regel occurrence, it may not cover tzerorot, which is not a routine event. Theoretically, tzerorot payments may carry liability without making animal passage through a reshut ha-rabim impossible.