The Prohibition to Cause Damage (2a-2b)

Based on shiurim by Rav Moshe Taragin

         Our masekhet delineates the payment tables for various forms of nizkei mammon.  As detailed in previous shiurim, these tables are highly structured to reflect the successive sections in parashat Mishpatim.  This week's shiur will address a different background issue to our masekhet – an issue which incidentally emerges from an interesting question raised by the Rashba on 2b.  Is one forbidden to allow his property to damage other people with full intent to compensate the loss?  In other words, is the actual act of damage itself forbidden, or does it merely incur an obligation to compensate the victim?  Citing other parallel examples from the end of Bava Kama we recognize that certain civil laws do not merely obligate payment, but are also forbidden.  The Torah prohibits theft and bodily assault quite apart from the payments which they obligate.  In fact, there might occur situations in which the issur is violated, although payments are not obligated.  For example, if someone steals less than a peruta's worth of money (the smallest recognized monetary value in the gemara), he violates the issur of lo tignov ("Do not steal"), but does not have to make reparations.  We see then, that in the case of theft and bodily assault, the Torah specified two independent laws: payments and issurim.  What about nizkei mammon?  Is a person permitted to allow nizkei mammon?  This question will be addressed in this week's shiur.

I.  References in the Gemara

         There is little explicit mention of an issur in the gemara itself.  However, there might be two parallel allusions to an issur in Bava Kama 51a and Kiddushin 42b.  The first gemara addresses the issue of bor (digging a pit in reshut ha-rabim).  The gemara probes the possibility of one who appoints a shaliach (proxy) to dig the pit.  This option is rejected since "Ein shlichut li-devar aveira" – halakhic shelichut (representation) fails when the requested mission is forbidden (and the shaliach himself is held accountable - see Kiddushin 42b).  This implies that it is forbidden to dig a bor – hence a shaliach cannot be appointed for that task.  Therefore, one might conclude from this gemara that nizkei mammon are forbidden.  Rashi (BK 53a), however, provides a different reading of this gemara.  He asserts that the issur involved in digging a bor, which undermines shelichut, has nothing to do with nizkei mammon.  Instead, the gemara was referring to an issur of damaging public property.  The damage inflicted to the public property is a direct result of a human act and is classified as ‘adam hamazik’. Nizkei mamon, on the other hand, refers to damages caused by property, such as an animal falling into my pit. (The relationship between adam hamazik and nizkei mamon will be explored in a future shiur.) Thus, according to Rashi's reading of Bava Kama 51 we still cannot conclude that it is forbidden to cause general nizkei mammon.

         A parallel gemara in Kiddushin might, however, provide the proof we are searching for.  The gemara – again discussing the concept of creating shelichut for forbidden tasks - addresses the case of requisitioning an agent to torch someone's property.  The gemara cancels shelichut in this case too, because the assigned task is forbidden. This gemara more conclusively indicates an issur of causing damage to someone else's property.  Bava Kama 51 could have been referring to the prohibition of damaging public property, but Kiddushin (42b) can refer only to a prohibition of "torching," which is presumably nizkei mamon, since the damage does not flow directly from human action. The person lights a fire, which later spreads due to wind and other factors. This would depend on a famous debate between Rav Yochanan and Reish Lakish, whether aish is considered adam hamazik or nizkei mamon (see 22a). 

         A secondary allusion to an issur of causing nizkei mammon might be gleaned from an oft-recurring statement the gemara makes about the concept of 'gerama.'  Gerama refers to someone who damages indirectly.  For example, if one destroys another's contract he might have caused a considerable loss of money, consequently rendering a debt uncollectable. The only DIRECT damage, however, was the actual burning of paper – essentially valueless.  The perpetrator must pay for the direct damages, but according to most opinions not for the indirect damage caused.  The gemara rules "gerama be-nizakin patur aval assur" – indirectly causing damage does not obligate one to pay, but is still forbidden. Can we consider nizkei mamon as grama be-nezikin. After all, even though the person’s actions did not cause the damage directly, he can be considered an indirect cause, since the damage occurred due to his negligence. 

         What is still unclear from these gemarot is the degree of the prohibition which might apply.  Is the prohibition biblical and if so, what is the source?  Or do these gemarot refer to a prohibition which was rabbinically instituted to deter nizkei mammon?  None of these gemarot directly addresses this question.

II.  References in the Rishonim

         The Rambam (Nizkei Mammon 5:1) writes: "It is forbidden for one to damage another's property and even 'causing damage is forbidden.'"  The Rambam is referring to a person who was negligent in guarding his ox, which is a classic case of nizkei mamon. However, the Rambam does not specify the degree of the prohibition nor its source.  The Maggid Mishna (Hil. Rotzeach 2:2) is explicit that the prohibition to damage is only rabbinic. (See Minchat Chinukh 53 who argues on the Maggid Mishna

         A second reference within the Rishonim to a prohibition, can be found in the Rashba to Bava Kama 2b.  The gemara considered defining "keren" as damages of keren telusha – performed with detached horns.  According to this view, mechuberet (damages performed with regular, attached horns) would not have been standard keren and would not have enjoyed the chatzi nezek clause for tam (see Glossary below).  In other words, keren mechuberet, according to the gemara's original considerations, would have paid full damages.  The Rashba asks: If we are uncertain about mechuberet's status, why do we automatically assume a more stringent payment table? If, indeed, it were not to follow standard keren (according to our first assumption), we should excuse it from full payment, even when it develops into a mu'ad.  The Rashba responds by claiming that we would naturally tend to be stricter, "just like issurim."  The simple reading of this statement suggests that, aside from compensatory payments, nizkei mammon are prohibited.  Not only does a prohibition exist, but somehow it can influence the payment table as well.  When deciding how much mechuberet should pay (half or full damages), we recognize the latent issur and therefore (possibly to deter the violation of this prohibition) impose a stiffer payment. 

         In truth, one might have read the Rashba in a non-literal manner asserting that no issur exists but rather that we are more stringent with keren payments JUST AS we tend to be more stringent in the world of issurim.  Indeed, nizkei mammon payments do not constitute an issur but we are strict, similar to our stringent disposition regarding issurim.  Though this second reading is defensible in the Rashba, it certainly is not the immediate choice.  Had the Rashba intended this meaning he probably should have elaborated the aforementioned relationship between nizkei mammon and issur: they are not identical but rather structurally parallel in this particular aspect.  His stark pairing of the two certainly suggests a more literal reading.

III.  The Source and Nature of the Prohibition:

         Having traced the issur component through the gemarot and Rishonim, we might now inquire as to the source of this prohibition. If the issur is rabbinic in origin, we are excused from locating a source.  If, however, the issur is de-oraita (biblical), we must locate some source for this prohibition.  The Yad Rama in his commentary to Bava Batra (chapter 2, siman 107) claims that damaging another is forbidden because of Ve-ahavta le-rei'akha kamokha ("Love your neighbor as yourself").  This mitzva of damages – whether nizkei mammon in the strict sense or broadly speaking, protecting your neighbor's interests as your own - forbids all forms of unethical and insensitive neighborly conduct in the general sense (the subject of the first two chapters of Bava Batra).  To be sure, the scope of this mitzva extends well beyond the boundaries of Choshen Mishpat (see Glossary).  For example, visiting the sick is also a fulfillment of this mitzva, as is burying the dead (see Rambam Avel 14:1).  Essentially, the Yad Rama subsumes nizkei mammon under a very general prohibition pertaining to interpersonal relationships.

         In a similar vein, the Chatam Sofer (YD 241) asserts that causing damages violates the mitzva of ve-nishmartem me'od le-nafshoteikhem (acting cautiously while not excessively endangering your life).  This too, is a general prohibition which applies in non-monetary contexts and just happens to include nizkei mammon.  What is not clear from the Chatam Sofer is whether causing non-life threatening nizkei mammon would also be forbidden. Many forms of nizkei mammon do not necessarily endanger human life. Similarly, the Minchat Chinukh (53) prohibits digging a pit based on the law of ma’aka (the requirement to build a fence around one’s roof). This suggestion may also be limited to life threatening obstacles. 

         Several opinions attempt to locate a more indigenous source for the prohibition of causing damage.  The Rabbenu Yona in his commentary to Avot (1:1) claims that nizkei mammon would be forbidden based upon lo tigzol – the prohibition of stealing. Though mazik and gazlan (robber) do not share many halakhot and payments, they are each part of a common issur. Of course, this view greatly impacts upon our definition of halakhic theft.  Clearly, the owner of the guilty animal is not performing any act himself, nor is he benefiting from the damage (with the exclusion of nizkei shein). Had we viewed these elements as being essential to defining a gazlan, we might not have classified nizkei mammon within the category of gezeila.

         The Yad Rama, mentioned above, prior to his suggestion of Ve-ahavta le-rei'akha kamokha, offers a different option as the prohibition of nizkei mamon. He suggests that the prohibition is included in the pasuk (Vayikra 19,14) “lifnei eever lo titen michshol” (don’t place a stumbling block before the blind). This prohibition, which is normally understood figuratively, forbidding one to cause another to violate halakha, according to the Rama, should also be understood literally.

         Rav Elchanan links the prohibition of nizkei mammon to another mitzva: hashev teshiveim - the mitzva to return lost property. Part of the responsibility of returning items, is protecting them from possible damages.  It follows that if one has to protect property which is not his (but found on the street) from potential external damage, then obviously he has to "protect" an item from damage which he will cause to it. Here too, the logic is not necessarily compelling.  One might envision a responsibility to retrieve and care for lost items without necessarily being obliged to prevent negligence which MIGHT POSSIBLY lead to property damage.  In a general sense, though, Rabbenu Yona, Rama and Rav Elchanan suggested more localized models for the issur of nizkei mammon.  They expanded related categories to account for this prohibition.

         A third opinion was expressed by Rav Chayim (as he is quoted by the Birkhat Shmuel in his commentary to Bava Kama – siman 2).  The gemara in Bava Kama (45b) quotes the phrase "Ve-lo yishmerenu" (literally, IF the owner does not guard, he is liable to pay) as a source to help determine the level of guarding necessary to avoid liability.  Rav Chayim, however, saw in this verse a concealed reference to the fact that not watching (literally ve-lo yishmerenu) is actually forbidden.  As such, there exists a unique and particular source for the prohibition of damaging. This prohibition is not a function of a general issur, nor is it a particular subcategory of a related mitzva in the realm of monetary matters.  Instead, the Torah encrypts a specific prohibition which applies to all forms of nizkei mammon.

         One very interesting difference between Rav Chayim's view and the alternate positions springs to mind (and is cited by the Birkhat Shmuel).  Each av nezek carries unique exemptions.  Would these situations – where clearly no payment is made – also be exempt from any issur?  For example, would shein damages performed in reshut ha-rabim (in which case no payments are due) be forbidden?  Or might we claim that just as the payments do not pertain, the issur itself does not apply?  If the issur in question is of a general nature (interpersonal sensitivity, not creating threatening situations, or protecting the property of others), we might still see the issur as relevant.  Payments are excluded, but the above categories are in no way affected by a local shein exemption.  Even if we do not classify the situation as shein, these principles still apply.  If, however, the issur is a specific nizkei mammon prohibition, we might ponder its relevancy in situations which do not meet these same internal nizkei mammon criteria.  If shein in public property is not considered halakhic shein, we might not recognize an issur, just as we do not impose payments.

Glossary:

1. CHATZI NEZEK – keren damages pay only 50% for the first three occurrences.
2. TAM - the first three occurrences of keren damages; payment equals 50% of damages.
3. MU'AD - After damaging by keren three times, the animal is defined as a "mu'ad" (expected to damage) and henceforth pays 100% of damages.
4. CHOSHEN MISHPAT - one of the four volumes of Shulkhan Arukh, dealing with monetary matters.

For next week: Mai Sh'na Shein, De-yeish Hana'a Le-hezeika

1) See Gemara 2b "Tanu Rabanan ... (3a) Ve-hachamor." What are the various ways to define the relationship between the three shor prototypes?  What classification within the three can be inferred from the gemara's discussion?  (For further study of this question see the machloket between Rav and Shmuel regarding mav'eh (3b) and the gemara's ensuing discussion regarding how the mishna is read according to both.  See also Otzar Ha-ge'onim teshuva 2.)

2) See Gemara 3a "Ta'ama ... ke-shein."  What does the suggested limitation of mechalya karna imply about the nature of shein (See Rachi "Idi" and Rashba "Shein" who justify the suggestion's linkage to shein in particular.) See Yerushalmi "Toldot ha-shein ... gufa."  How does the conclusion of the Yerushalmi regarding shein's scope differ from that of the Bavli?  How might the difference reflect variant understandings of the nature of shein?

3) See Rabbeinu Chananel "Ilulei ... she-neheneit," Rashi 18b "De-dachik," and Shita Mekubetzet 3a Aval.  What is the disagreement regarding the case of "tinfa peirot?"  How might it reflect different understandings of shein?  (See also Rashba 2b "U-parik" and Maggid Mishneh Nizkei Mammon 1:10.)

4) See Gemara 3b "Amar Rav Yehuda ... (4a) kol she-kein," Tosafot "Lo."  How do Tosafot explain the suggestion that shein be less stringent than keren?  Can you think of an alternative suggestion? (See also Tosafot 6b "Shor" and Maharsha.)

5) See Rashi 3a "Ha-galal" and Tosafot 2b Ka'asher. How could this argument regarding the derivation of shein be the basis of different understandings of its nature? How can Rashi and Rabbeinu Chananel be explained le-shitatam?

6) See Meiri 3a "Ha-shein."  What is the conceptual difference between the basis of culpability in the two tracks he describes?