Why Does The Owner Of The Ox Have To Pay And What To Discuss On A Date

לזכות אברהם מרדכי בן נעכא גיטל שיהיה אחד מן הגדולים אשר בארץ

The most famous question in Bava Kamma is - What obligates a person whose animal causes damage. Is it ממונו שהזיק - the fact that his property caused damage [and if he guarded the animal and it was nevertheless מזיק then he is אנוס and פטור] or is it שלא שמר - that he didn't properly guard his animal [and the reason he has an obligation to guard the animal is because it is ממונו]. It would be hard to get a date with a top of the line bas yisrael if you don't know this chakirah which is the primary reason I am sharing it with you. Girls - read and test the boy. If he knows - order two bands, one musical and the other jewelery:-).


Rashi [ט. ד"ה הכשרתי את נזקו]  writes שלא שמרתיו יפה making it clear that the מחייב of payment is the fact that he didn't properly guard the animal [side 2].

The Rambam [I'll bet you knew I was going to mention him...] in the very first halacha of Nikei Mamon opts for the first side of the chakirah as is evident by the fact that he explains the obligation to pay שהרי ממונם הזיק and doesn't mention the fact that the person was derelict in his duty of watching the animal.

HaRav Shimon HaKohen Shkop, that titan of talmud, in the very first simman of his sefer marshals a proof that the obligation is ממונו שהזיק [like the Rambam] from the gemara on ד עמוד ב. There the gemara says that when the 4 shomrim are negligent it is considered היזקא דממילא and the 4 avos nezikin are considered היזקא בידים. This shows that when someones possessions cause damage we consider it as if the damage was done directly by his money [bi-yadayim] while in the case of the 4 shomrim the damage was done by an outside source. So the obligation is ממונו הזיק and not שלא שמר. Also, the gemara calls the 4 shomrim נזקי גופו because it is as if they directly caused the damage by not guarding the object but the 4 avos nezikin [which are the subject of our chakirah] are called נזקי ממונו, indicating that it is not the damage that he caused by not watching that obligates him [שלא שמר] but rather the damage that his money caused ממונו שהזיק is what obligates.

However, there was a great Rav who lived in Yerushalayim named Rav Abba Berman. He has a set of sfarim called שיעורי עיון התלמוד which are worthwhile learning. Deep, concise, sharp and penetrating. He claimed that there is no proof from the gemara we mentioned to either side of the chakira. EVERYBODY agrees that the primary obligation stems from the fact that the ox gored. The only question is, what now obligates the owner to pay - the fact that he was negligent in watching or the fact that it is his money that caused damage. Since the primary obligation stems from the fact that the ox gored it makes sense that the gemara called it היזיקא בידים - the ox directly caused damage and נזקי ממונו. But that just defines the damage itself but not the source of the owner's obligation to pay. If you look in Rav Shimon's sefer you can use Rav Abba's understanding to deflect his other proofs as well.

There is so much more to say but we will close for now and hope for more.

Somehow, I find this so much more interesting than all the talk about the elections:-).