A.  Does a Murderer Pay Kofer?

         The gemara (4a) contrasts damages performed by an animal with those performed by man.  In general, human damages are viewed in a more severe light (chamur) than nizkei mammon (for example, human damages must be compensated even if the person committed them by accident).  Yet the gemara does locate an obligation which applies to animal damages and not to humans who damage - kofer.  If a shor mu'ad kills someone, the owner must pay kofer (the "value" of the deceased, or according to others, the "value" of the owner himself); whereas a person who murders is excused from this payment. Our gemara does not immediately clarify why a murderer is excluded from kofer.  The Rishonim provide several different approaches. 

         Tosafot (s.v. Ka-re'i) present the Riva's opinion, which assumes that the exemption is based upon the principle of "kim lei."  This clause excuses criminals who receive capital punishment from concurrent civil liability.  For example, if one burns another's field on Shabbat, he is exempt from monetary payments, since he will receive capital punishment for desecrating Shabbat. Being that a person who murders will be put to death, we excuse him from kofer payments.  In fact, the principle of kim lei applies even if the actual capital sentence is not executed.  Anyone who commits a crime which, in theory, carries a capital sentence, is excused from incidental monetary debts.  Even if a human involuntarily murders (in which case he is not put to death), he will not be obligated to remit kofer payments.

Tosafot then cite the Ri's differing position.  The Ri disputes the Riva's rationale, since the gemara invoked the kofer discrepancy as an indicator that nizkei mammon can be classified as more severe than damages performed by humans.  The kofer payments of animal's damages and the absence of such payments for humans were seen as proof of this condition.  According to the Riva, however, the lack of kofer for human murderers stems from an external INCIDENTAL factor - he cannot pay kofer because he is put to death.  The absence of kofer payments does not indicate a less severe degree of damage; if anything the opposite is true - the lack of kofer is caused by the murderer's own execution.

         The Ri offers a different explanation for the lack of kofer: a special pasuk exempting murderers from kofer.  He cites the sugya on 26a which derives the halakha "alav ve-lo al ha-adam" (kofer payments apply only for murders committed by one's property, and not for human murders) as indication that kofer for humans is not incidentally excluded, but fundamentally.

         Though the Ri's position is anchored in the gemara (26a), we must nevertheless question why the kim lei principle does not apply to kofer.  Why did the Torah directly exclude a human murderer from kofer, if we could have independently established that exclusion through applying kim lei?  Tosafot themselves allude to an answer - one which is greatly explicated by the Rabbenu Peretz and the Maharam respectively.  Kim lei is relevant for "incidental" compensatory payments.  A person who burns a field on Shabbat is effectively committing two logically separate crimes: Shabbat violation and property damage.  They are merely performed simultaneously.  Kim lei dictates that we administer sentence for the grave crime and ignore the less severe civil crime.  In this case, the monetary debt is incidental to the Shabbat violation. Two logically distinct acts happened to be committed together.  Kofer, on the other hand, is just as much a result of the murder as the consequent death sentence itself.  Had kofer not been explicitly canceled for human murder, kim lei might not have accomplished that task.  Kofer payments would theoretically have been mandated for the very murder itself, not for an incidental civil crime.  Two punishments would have been mandated for murder - one capital and one monetary - and therefore, kim lei would have been incapable of canceling one in light of the other.  Said otherwise, kim lei cancels secondary debts which happen to coincide with capital offense.  It is ineffective in addressing multiple sentences for the same act.  The kofer exemption for a murderer must be based upon a separate pasuk.

         A different option - not exercised by Tosafot - emerges from Tosafot in Ketubot (30b) s.v. Zar.  Tosafot question the absence of kim lei for teruma payments. In certain situations where a non-kohen eats teruma, one receives both a death sentence (not a capital one executed by a human court, but mita bi-yedei shamayim - a heavenly death sentence) and is also obligated to render payment to the kohanim.  Tosafot question this dual penalty in light of the kim lei principle. They respond that teruma remuneration is not compensatory in nature but rather a form of penitence.  As proof, Tosafot claim that teruma payment may be rendered to any kohanim - not just the kohen who owned it.  Had payments been compensatory, we would have demanded compensation to the injured party.  Since the payment is a form of atonement, any kohen may receive this payment.  kim lei cancels compensatory payments but leaves "kapara" (atonement) payments intact. 

         Based upon this concept, we might offer a similar reason for kim lei not affecting kofer payments and the ultimate need to establish a specific exemption based upon a local pasuk ("alav ve-lo al ha-adam").  The gemara indicates that kofer can also be seen as a form of atonement (see BK 40a "Kufra kapara").  After all, the owner's negligence indirectly led to a murder.  In fact, according to some, the owner actually deserves a heavenly death sentence and that kofer is a means of exonerating that sentence.  If indeed, kofer is not fundamentally compensatory, but a means of penitence, we might view kim lei as irrelevant, just as it does not affect teruma payments.  For this reason, the gemara locates a parochial basis for the lack of kofer for a human murderer.  Kim lei has no impact upon kofer. 

         In fact, in light of Tosafot's answer in Ketubot, we must question why the Riva thought that kim lei IS applicable. After all, if kim lei does not apply to kapara and kofer is a form of kapara, the principle would be irrelevant to our case.  Evidently, the Riva would dispute one of these two assumptions.

B) Parallels between Shomer and Mazik

         R. Oshaya's alternative listing of avot nezikin (4b) prompts some interesting considerations.  By grouping shomrim alongside classic shein and eish as avot nezikin, was he making a statement about the nature of shomrim payments? Was he, in fact, recognizing those payments as structurally similar to nizkei mammon payments - a similarity which warrants their being listed together and one which justifies the classification of 13 AVOT NEZIKIN?  Or was R. Oshaya's listing scheme merely a way of indicating that these diverse payments all adhere to the meitav rule (see BK 5a)?  If R. Oshaya's use of the term av nezek, with regard to shomrim was exact and precise what can we deduce about the nature of shomrim payments? 

         Generally, we do not immediately associate shomrim with nezek.  A shomer pays because he AGREED to cover losses incurred during his watch.  This would present little correspondence to a mazik who did not reach any prior agreement with the nizak (he might never have met the nizak prior to this altercation).  The famous position of the Rambam regarding peshi'a (gross negligence, for which all shomrim are liable) might force a reconsideration of the shomer-nezikin alignment.  The Rambam (Hilkhot Sekhirut chapter 2) claims that peshi'a payments of a shomer are akin to the payments of a mazik.  In his terminology (based on a gemara in Bava Metzia 95a), "peshi'a ke-mazik" - a negligent shomer is considered a mazik.  By agreeing to watch the animal and subsequently failing, he is indirectly wreaking loss upon the item.  According to the Rambam, even items which are excluded from shomer payments (for instance, land and hekdesh - see Bava Metzia 56) must be compensated if the damage was enabled by the shomer's gross negligence.

Did the Rambam draw this comparison from R. Oshaya who grouped shomer alongside nezikin?  Did the Rambam perhaps probe the shomrim tables in search of a payment MOST similar to nezikin and decide upon peshi'a?

         A second example of a possible shomer-nezikin alignment appears in Tosafot Rabbenu Peretz in his comments to Bava Kama (86a).  Tosafot claim that a person who "assaults" an animal must compensate the loss but is excused from the additional four payments (pain, unemployment, medical coverage, and embarrassment) which usually accompany an assault upon a person.  The Rabbenu Peretz extrapolates that a person who borrows an animal and causes recoverable damage is exempt from compensating the owner for the resulting loss of income until the animal recovers.  Just as a mazik is exempt from unemployment payments, so is a sho'el (a borrower - one of the four types of shomrim).  Tosafot question whether we might distinguish between a mazik (who would be exempt) and a sho'el (who might not necessarily be) and respond: [We cannot discriminate] since in the beginning of Bava Kama (4b) a sho'el was designated as a mazik. The Tosafot Rabbenu Peretz apparently takes R. Oshaya's listing quite seriously and derives halakhic applications based upon the shomer-nezikin alignment.  A parallel position appears in Tosafot in Gittin (42b).

A third manifestation of this correspondence appears in the Shach's comments to Choshen Mishpat 66:34.  A mazik is excused for paying for non-physical halakhic damages.  For example, if one's animal brought a dead animal and defiled someone's teruma (rendering it "useless"), he does not have to render payments.  Would this rule apply to shomrim as well?  If the item in his watch were to be rendered halakhically useless, would the shomer be held responsible?  Or, based upon the comparison to nezek, would we apply a similar standard and exonerate the shomer?  This question could potentially be driven by the fundamental relationship between shomrim and nezikin signaled by R. Oshaya's classification scheme. 

         In closing, it must be noted that the possible relationship according to the Rambam might be qualified.  The Rambam did not refer to ALL shomer payments; only to gross negligence.  A sho'el and a shomer who is grossly negligent might be more similar to a mazik then a regular shomer who pays for theft.  Would the latter case also be comparable to mazik?  R. Oshaya's scheme (if we are to take it literally) mentioned shomer sakhar, ostensibly including ALL his liabilities, even for theft and lost items.  One can only speculate whether the Rambam would view these payments as logically correspondent to nezikin.

C) Sokher 

         The gemara in Bava Metzia cites a dispute between R. Meir and R. Yehuda regarding the halakhic status of a sokher (one who rents an item).  One position views him as a shomer chinam (unpaid guard), with limited liability. The other position casts him as a shomer sakhar (paid guard) liable for gross negligence as well as theft and loss. The logic of the second position suggests that the utility a sokher receives, serves as his salary and that, essentially, the difference between a paid guardsman and a renter is purely semantic. Consequently, they do not merely share halakhot - they are logically identical. 

         If this were true, why does R. Oshaya bother to list them as separate?  Shouldn't his final number be twelve and not thirteen?  Tosafot already sensed this incongruity (see s.v. Shelosha assar).  A careful reading of Rashi's comment on the pasuk of shomer might shed light upon this issue.  In his comments to Shemot 22:14, he seems to indicate that a sokher is a watered-down form of sho'el.  Like a sho'el, he uses the item, but since he must remit payment in lieu of his use, his liabilities are not as sweeping as a sho'el's.  Similar sentiments can be traced in Rashi's comments to Bava Metzia (80b s.v. R. Yehuda).  In other words, although a sokher's liability might be similar to that of a shomer sakhar, logically he does not resemble a shomer sakhar; the latter receives formal pay, while a renter does not.  Instead, he can be viewed as watered-down version of a sho'el, whose payment tables happen to correspond to a shomer sakhar's (gross negligence and theft/loss).  In reality, though, he shares little with a shomer sakhar other than the liability tables. 

         If this were true, we would clearly understand R. Oshaya's insistence on distinguishing between a shomer sakhar and sokher and listing them separately.  This might have been his way of conveying that from an essential standpoint, sokher and shomer sakhar are indeed distinct entities. 

         This analysis might be latent in the Ra'avad's comments on Tosafot's question.  He, too, sensed the problem Tosafot raised, but his response is more direct: "Since the sokher can use the item (unlike a shomer chinam, or shomer sakhar), he was listed separately."  Is this discrepancy between sokher and shomer chinam/sakhar merely a technical reason for listing them separately or does it signal a more fundamental deviance between them, driving the sokher closer to the realm of sho'el?  If this were true, we would understand R. Oshaya's choice as fundamental rather than technical.

Mekorot and questions for Bava Kama shiur #10

Gemara ... two dots (5a)

1) Are ganav and mazik similar types of liabilities?

See Rambam Hilkhot Geneiva 1:8.

Tosafot Bava Kama 62b s.v. Yatzu (the second one).

Which option does Rav Chiya's list suggest?

2) What is the relationship between to'en ta'anat ganav and ganav?

BK (63b) "Mina hani mili ... lishvu'a" – what is the source for this halakha?

Mishna BK (62b), gemara ...two dots

Why should 4 times and 5 times payments apply to to'en ta'anat ganav?

What does Rav Oshaya's listing suggest about this correspondence?

3) 'Onshin mammon min ha-din'- independently deriving monetary payments by employing conventional exegetic tactics.

See Tosafot (4b) Ve-eidim.

Makkot (5b) mishna, gemara... min ha-din.

BK (49b) Mai ta'ama ... lo.

Tosafot (2a) s.v. Ve-lo zeh "ve-ketzat kasheh ...end of Tosafot.