Uncertainty regarding Liability by Damages

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The Gemora (Bava Kamma 3a) asks: Why didn’t the Torah just write v’shilach, which connotes both shein and regel (which the Gemora proceeds to prove), and u’vier would not be necessary?

The Gemora answers: If the Torah would only write v’shilach, we would only have learned that one is liable for one of those damages; either regel because its damage is usual, or shein because it has physical pleasure when damaging (but we would not have learned that there is liability for both types).

The Gemora asks: But they are both equal, so let us derive both types of damages from one verse, for which one of them would be excluded?

The Gemora answers: If shein and regel would be derived from one verse, we might have said that one is liable only if the owner sent the animal out; however, one would not be liable if the animal went out by itself and damaged. The Torah therefore writes u’vier as well.

The Rashba asks on the Gemora’s question: Why would we learn out both damages from one verse based on the fact that we do not know which one of them to exclude? On the contrary! Since we are trying to extract money from the damager, why don’t we apply the principle that the one who is attempting to extract money is the one who is obligated to bring the proof?

A possible answer on this question is that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, we can understand why both damages will be included in one verse since we do not know which one to exclude. Why didn’t the Rashba answer like this?

The Chasam Sofer adds that this is even more problematic, for the Rashba himself (2b) uses this principle to answer a different question. The Gemora had stated: One might think that when the Torah differentiates between a tam (an ox that did not yet gore three times; the owner only pays for half the damage) and a mu’ad (an ox that gored already at least three times; the owner pays the full amount of the damage), it is only when the horn is disconnected from the animal (in a case where the animal took its uprooted horn in its mouth and gored; as the case of Tzidkiyah was of an unattached set of horns). However, when an animal gores with its horns attached to its head, it should always pay full damages. This is why the braisa quotes the additional verse from the Torah.

The Rashba there asked: On the contrary! Let us say that when an animal gores with its horns attached to its head, it should always pay half damages!?

He answered that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, when faced with the option of always paying full damages or paying half, the Gemora chooses the option of paying in full.

It would therefore seem that the Rashba is contradicting himself! How do we treat damages? Do we automatically rule stringently because it is like a prohibition, or do we rule leniently, for we are attempting to extract money away from the one who possesses the money, and for that, proof is needed?

The Har Tzvi suggests the following answer: The Levush (C”M 378) writes that not only does the Torah obligate the damager to compensate the person who was damaged, but there also is a prohibition to damage someone else’s property, in the same manner that it is forbidden to steal. If someone does not guard his possessions against inflicting damage on someone else’s property, he has violated a Biblical prohibition.

Accordingly, the Rashba can be explained as follows: The Gemora above was discussing a case where the damager is certainly obligated to pay. The animal inflicted damage with a disconnected horn in its mouth. The Gemora’s only question was with respect to the amount of the compensation. Should he always (whether it’s a tam or a mu’ad) pay full damages, or should he only pay half. In such a case, we would rule stringently, for the owner has indeed transgressed the prohibition of allowing his animal to cause damage. He now has to “fix” his sin by compensating the owner for his loss. This would be similar to a case where one said to his fellow, “I know that I owed you money, but I do not know if I paid.” He would be obligated to pay. However, in our case, where the Gemora is not certain if one should be liable at all for shein or regel; we must rule leniently. For it is quite possible that the Torah did not mandate that there should be any obligation to guard one’s property against causing such a damage. This is why the Rashba asks that if we are uncertain if there is any liability at all, we should rule leniently, and apply the principle of the one who is attempting to extract money is the one who is obligated to bring the proof. Accordingly, there is no contradiction at all.

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Blessing by a Bas Mitzvah

The Rema (O”C 225:2) writes that one whose son is becoming bar mitzvah should recite the following blessing: Blessed are You, Hashem, our God, King of the universe, that You freed me from the punishment due this boy. He concludes that it is preferable to recite this blessing without mentioning Hashem’s name.

The question is asked: Why is this blessing not recited when one’s daughter becomes bas mitzvah?

The Peri Megadim states that it would depend on what the reason is for this blessing.

The Magen Avraham (ibid; 5) explains this blessing as follows: Up until this juncture, the father was punished when his son sinned because he obviously did not train him well enough. Once the child becomes an adult, he is responsible for his own actions.

The Levush, however, interprets this blessing in the exact opposite manner. Up until now, the child gets punished for the sins of his father, as the Gemora Shabbos (32b) states: For the sin of unfulfilled vows, a person’s children die when they are young. The meaning of the blessing is that his son will now not incur any punishments on account of the parents.

According to the Levush, there is no reason to make any distinction between a son and a daughter. However, according to the Magen Avraham, we can say that the blessing is only applicable to a son, where there is an obligation of chinuch. However, a father does not have a mitzvah of chinuch for a daughter and therefore there is no reason to recite the blessing when she becomes bas mitzvah.

The Kaf Hachayim writes that we can apply a different logic according to the Magen Avraham. It is customary for a father to sustain his daughter until she is married and therefore, she is naturally under his jurisdiction until then. He is capable of rebuking her until she marries and will be under the jurisdiction of her husband. He therefore does not recite the blessing when she becomes bas mitzvah since he is still rebuking her.

He explains according to the Levush as well. The Levush said that the reason for the blessing is because up until then, the son gets punished for the sins of his parents. It is possible to say that a daughter, who is already under the mazal of her husband, as it is said: It is announced in heaven, “The daughter of So-and-So will be married to So-and-So,” his mazal will benefit her that she will not be punished on account of her father’s sins.

Reb Yitzchak Zilberstein questions this explanation from our Gemora (Kesuvos 78a). The Gemora states: In the Beis Medrash of Rabbi Yannai, they replied: In the first case, it was into her possession that the property had come (prior to becoming an arusah, she is the legal possessor of whatever is given to her); in the latter case, the property came into his possession. I, however, do not understand his question. It seems that he understands the words “z’chuso and z’chusa” to mean “whose mazal caused the property to fall to her.” The simple explanation in our Gemora is in whose jurisdiction was the woman when the properties fell to her.

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