Reshut Ha-rabim (Part 3)

  • Rav Moshe Taragin


By Rav Moshe Taragin

Shiur #15: Reshut Ha-rabim (Part 3)

Is the Mazik Exonerated Because the Nizak is Negligent?



In the previous two shiurim (11metho.htm and 12metho.htm), we outlined two very different understandings of the reshut ha-rabim exemption for shein and regel. The Rosh claimed that the exclusion is purely formal – a Torah mandated discount for shein and regel damages. The Rif, on the other hand, claimed that the exemption is based on intuitive and logical premises: since animals typically walk through the reshut ha-rabim (urchei), we cannot obligate owners to compensate for damages that occur during normal or routine activity. The Amaraim themselves apparently debated this question, as they argued regarding whether location or form of consumption is the determining factor in establishing payment obligation.


Interestingly, there may be a third understanding of the reshut ha-rabim exemption, which is not as clearly articulated as the other two approaches but may be implied by several gemarot.


Perhaps the gemara that best reflects this new model is the discussion between Rav and Shmuel concerning the situation of mekazeh makom (21a).  What would happen if a person unilaterally allows public passage through his property? If he positioned his items in this newly established public thoroughfare and they were damaged, would shein and regel payments apply? Shmuel claims that payments would indeed be obligated, since the legal status of this area is unchanged; the items were located in reshut ha-yachid, and no reshut ha-rabim exemption can be applied.  Rav disagrees and claims that shein and regel payments are not applied EVEN THOUGH THE AREA IS STILL CONSIDERED a reshut ha-yachid. The owner of the animal can deflect guilt by accusing the “victimized” owner of the damaged items, "You (the owner of the damaged items) are guilty because you positioned your items so close to a reshut ha-rabim (IN AN AREA OF PERMITTED PASSAGE)."


This strategy of defense is completely new – the mazik deflects his guilt by establishing negligence on the part of the nizak. If the nizak is (also) a poshei’a, the mazik does not have to offer payment. In the SPECIFIC case of the gemara, the nizak is negligent; even though he placed his fruits on his own property, by placing them so close to the public domain and inviting passage, he ultimately is negligent and forfeits any payments. 


Based on Rav's logic, we can EXTRAPOLATE to a situation of ACTUAL RESHUT HA-RABIM – the reason the mazik is exempt in THAT case is because the nizak HIMSELF is considered a poshei'a! Since he knew that animals typically traverse a reshut ha-rabim and placed his items in harm's way, the nizak was negligent and bears responsibility for the ultimate damage; he is not a candidate for reimbursement. 


This option of understanding the reshut ha-rabim exemption as based on the nizak's negligence in leaving his items in harm's way  may have been raised by R. Zeira, who posed a question regarding a case of “mitgalgel,” or rolling items- (19a).  The Ra'avad suggests that R. Zeira was referring to a situation in which the fruits were located in a reshut ha-yachid and the animal dragged them into reshut ha-rabim and consumed them. If this is true, the damage took place entirely in a reshut ha-rabim; why should there be any question regarding culpability? After all, shein damages in reshut ha-rabim are exempt, either due to a formal ruling (Rosh) or an intuitive concept (Rif). The Ra'avad (and possibly Rashi) suggests that since the food was originally located in a reshut ha-yachid – EVEN THOUGH THE DAMAGE TOOK PLACE ENTIRELY IN RESHUT HA-RABIM – payments are obligated. The implied logic is that the only reason that reshut ha-rabim damages are generally exempted is because the fruits were PLACED THERE NEGLIGENTLY. In this instance, where the items were positioned in a reshut ha-yachid but were dragged into reshut ha-rabim no negligence occurs and therefore no exemption applies, even though all of the damage took place in a reshut ha-rabim. R. Zeira may have been investigating whether the reshut ha-rabim exemption is based on the logic of the Rif or Rosh or whether it is rooted in the peshiya of the nizak, and he conjured up a case that would contrast the two approaches. 


A third indication that the reshut ha-rabim exemption is based on the negligence of the nizak may stem from an interesting comment of Rashi (14a).  Ravina discusses a field that is owned jointly by partners, who have an understanding that each can walk their animals through the area, but only ONE can store his fruits there. Ravina claims that if the animal of one partner damaged the fruits of the partner licensed to store his fruits, the animal owner must offer payments. Most Rishonim are surprised by this position – if each partner can traverse the area with his animal, it should be considered a reshut ha-rabim, and no shein damages should be obligated! In fact, Tosafot are so surprised by Ravina’s approach that they actually amend the text and claim that Ravina was referring to a situation in which NEITHER partner had license to transport animals. In such an instance, the invasion of the aggressor animal into an area from which it was banned can be likened to damages that occur in a reshut ha-yachid, and payment is obligated. If, however, EACH partner had license of animal passage, the field would be similar to a reshut ha-rabim and the damages exempt from payment. 


Rashi, however, is not troubled by Ravina’s ruling, accepting it at face value.  If each animal is allowed passage, why should payments be offered? 


Perhaps Ravina adopted the THIRD theory behind the shein and regel exemption in a reshut ha-rabim – since the nizak was negligent, the mazik is exonerated. TYPICALLY, fruits stored in public areas are considered the negligence of the nizak, but if the nizak has explicit permission to store his fruits in the area, he cannot be considered a poshei'a. In the absence of the nizak's negligence, the mazik pays, even though the area may be defined as reshut ha-rabim.


An interesting case raised by the gemara (23a) may also imply this third understanding of the reshut ha-rabim exemption. The gemara poses a strange situation referred to as “pi para (literally, “the mouth of the cow”), and the Rishonim debate the exact details of this inquiry. Rabbenu Tam assumed that the gemara discusses a scenario in which a third party thrusts food into the mouth of the animal, who proceeds to consume the food. Would the negligence of a THIRD party exempt the animal from damages? Presumably, the gemara's question is premised upon viewing the reshut ha-rabim exemption as based on the negligence of the nizak, who placed his items in harm's way. If the nizak's negligence can cancel payment and obligation of the mazik, perhaps a third party's negligence can accomplish the same. There is certainly room to distinguish between a nizak's guilt and that of a third party and the respective impacts upon the mazik's potential payments, and perhaps this was the basis of the gemara's query. However, the very suggestion of exonerating a mazik due to peripheral guilt is an idea that presumably underwrites the reshut ha-rabim exemption.