QUESTION: The Gemara records a dispute between Rebbi Yehudah and Rebbi Shimon with regard to whether the owner of a Shor pays for damages his Shor causes without intent ("she'Lo b'Kavanah"). Both Rebbi Yehudah and Rebbi Shimon agree that when a Shor kills a person without intent, the Shor is not put to death ("k'Misas Adam Kach Misas ha'Shor"), and the owner must pay Kofer, since the payment of Kofer is not related to the death of the Shor (as Shmuel rules). Rebbi Yehudah maintains that when the Shor causes damage, and not death, unintentionally, the owner is liable for damages. Rebbi Yehudah compares the payment for damage to the payment of Kofer. Rebbi Shimon maintains that when a Shor causes damage without intent, the owner is exempt. He compares the payment for damage to the Chiyuv Misah of the Shor.

The logic of the Gemara is easy to understand with regard to damages of Keren. However, what is the Halachah with regard to damages of Shen v'Regel? If an animal kills a person through Shen v'Regel, it is not put to death; any time an animal kills a person through Regel, such as by trampling on him or by walking through Reshus ha'Rabim, it is done inadvertently, without intent. Similarly, if an animal eats food and inadvertently bites a person and kills him, the animal is not Chayav Misah. The only time a Shor is Chayav Misah is when it intends to kill, and that, by definition, is Keren. According to Rebbi Shimon's logic with regard to Shen v'Regel, one should never be liable for damages caused by Shen v'Regel; since the Shor is never Chayav Misah in cases of Shen v'Regel, one should not be liable to pay for damages! This is particularly problematic in the case of Regel, because damages caused by an animal through Regel are always inadvertent. (RISHONIM)

(a) The BA'AL HA'ME'OR explains that Rebbi Shimon indeed exempts one from paying for damages caused by Shen v'Regel. However, the damages he is discussing are Nizkei Adam, when the animal damages a person. If the animal damages other animals or objects, Rebbi Shimon certainly does not exempt the owner from payment, and he does not compare the liability for damages to the Chiyuv Misah of a Shor that kills a person.

This also seems to be the opinion of RASHI (DH veha'Nezakin), the RAMBAM, and the ME'IRI.

(b) The RAMBAN (in Milchamos) explains that Rebbi Shimon's ruling indeed applies to Shen v'Regel as well as to Keren. However, what determines whether the owner pays for damages of Shen v'Regel according to Rebbi Shimon is not whether the animal would be Chayav Misah for killing a person through Shen v'Regel, but whether the animal would be Chayav Misah for killing in such a way through Keren. This means that since, with regard to Keren, a Shor that causes damage is compared to a Shor that kills a person (in order to teach that when the Shor damages inadvertently the owner is exempt), this rule is extended to Shen v'Regel to teach that if a Shor causes damage through an entirely inadvertent act, the owner is exempt. If, however, it causes damage through an intentional act, even though the damage was inadvertent the owner must pay since the act itself was intentional. For example, if a Shor rubs itself against a wall and the wall falls down, it is considered as though it damaged inadvertently since the Shor was not trying to push down the wall. If the animal steps on a person while walking and causes damage, the owner is liable because the animal did intend to walk in that place even though it did not intend to cause damage by walking there.

This also seems to be the intention of RABEINU TAM in Tosfos (44a, DH Hacha Nami; see TOSFOS RABEINU PERETZ) and as cited by the SHITAH MEKUBETZES. (Tosfos himself seems to maintain -- due to the question posed above -- that the Shor indeed is Chayav Misah if it kills a person through Shen v'Regel.)

(c) RABEINU CHANANEL writes that Rebbi Shimon is consistent with his opinion as expressed elsewhere. Rebbi Shimon rules that one is exempt for a "Davar she'Ein Miskaven," and that is why he exempts the owner of the animal in this case. Accordingly, Rabeinu Chananel will make the same distinction as the Ramban makes between damage caused by a Shor that walks where it intends to walk, and damage caused by a Shor that inadvertently walks in a different place from where it intended.

It is not clear how the words of Rabeinu Chananel can be reconciled with the Gemara that says that Rebbi Shimon exempts the owner from paying for damages because he compares the Chiyuv for damages to the punishment of a Shor that is put to death. Perhaps his text did not include the four words, "v'Shor la'Afukei Kofer d'Chiyuvei," and thus the Gemara says that Rebbi Shimon compares the Chiyuv of the Shor to the Chiyuv of its owner: just as the owner is not responsible for what he does through a "Davar she'Eino Miskaven," so, too, he is not responsible for the damage that his Shor does in such a manner. (See EVEN HA'AZEL, Hilchos Nizkei Mamon 2:10:5, 5:6; Kehilos Yakov, Taharos end of #49; YAM HA'TALMUD, He'oros #5.)

(d) The TOSFOS RID explains as follows. He asks, what does the Gemara mean when it says that according to Rebbi Shimon the Shor's Chiyuv for damages is derived from the Shor's Chiyuv when it kills a person? When the Shor kills a person, it certainly can be said that the Shor itself is "Chayav," because the Shor itself is put to death. When the Shor causes damage, however, in what way is the Shor itself obligated to pay? How can the Shor have any obligation? (See KOVETZ BI'URIM.)

The Tosfos Rid answers that when a Shor damages without intent, even if it is a Mu'ad it pays only Chatzi Nezek mi'Gufo, like a Tam, because it cannot be a Mu'ad to do something inadvertently. Mu'ad means that we expect it to do damage; we cannot expect something to do damage without intent. Since it pays mi'Gufo, it can be called an obligation of the Shor.

According to the Tosfos Rid, it is clear that for Shen v'Regel -- the obligation for which is a Chiyuv of Nezek Shalem -- there is no reason to compare the Chiyuv Nezikin of Shen v'Regel to Misah of a Shor which kills a person. However, in his footnotes to his additions to the Tosfos Rid, RAV NISAN ZAKS points out that the opinion of the Tosfos Rid is very difficult to reconcile with the words of the Gemara. The Gemara says that had the unintentional damages been compared to the Chiyuv of Kofer which is paid when the Shor kills unintentionally, the owner would have had to pay for the damages. According to the Tosfos Rid who says that every Shor is considered a Tam with regard to Nezek done inadvertently, the Shor should never be Chayav Kofer for killing inadvertently, since a Tam is not Chayav Kofer!

Apparently, the Tosfos Rid learns that the phrase "Im Kofer" (Shemos 21:30; 43b) is a Gezeiras ha'Kasuv which teaches that one pays Kofer when a Shor kills without intent, even though it is considered a Tam with regard to all other matters.

QUESTION: The Gemara records a dispute between Rebbi Yehudah and Rebbi Shimon with regard to whether the owner of a Shor pays for damages his Shor causes without intent ("she'Lo b'Kavanah"). (See previous Insight.) Rebbi Shimon maintains that when a Shor causes damage without intent, the owner is exempt. He compares the payment for damage to the Chiyuv Misah of the Shor. Since the Shor is not put to death when it kills unintentionally, the owner does not have to pay when the Shor does damage unintentionally.

RAV ELCHANAN WASSERMAN Hy'd (Kovetz Bi'urim #27) asks that according to Rebbi Shimon, when is a person liable for damages caused by his fire (Esh) if Esh is "Mamono"? The Gemara (23a) concludes that both Reish Lakish and Rebbi Yochanan agree that the verse which exempts the owner of the Esh from paying for damage caused to "Tamun" implies that the Chiyuv of Esh is "Mishum Mamono" and not "Mishum Chitzav"; that is, it is not because of Adam ha'Mazik but rather it is like one's animal that causes damage. How can one be liable for damages caused by a fire if the fire is considered "Mamono"? Since Esh is an inanimate object, it cannot damage with intent, and thus according to Rebbi Shimon one should not be liable for the damages that it does. It should be like a Shor that damages without intent. Conversely, if the Torah teaches that one is liable for Esh because it is considered "Mamono" even though it damages "unintentionally," we should learn from there that one is always liable for unintentional damage caused by a person's property (even by one's Shor)!

Similarly, according to Rav, the Gemara (28b and elsewhere) teaches that when a person is not Mafkir an object of his and leaves it in Reshus ha'Rabim, he is liable for damages that it causes to Kelim because it is considered like Shor ha'Mazik. Why is one liable for such damage according to Rebbi Shimon? Since the object is inanimate, it should be like a Shor that damages without intent! (See Insights to 28:2:c, in the name of the RA'AVAD. The Ra'avad's approach might answer this question according to Rav.)

ANSWER: According to Rebbi Shimon, what is the reason for a Shor's exemption from Misah or from paying for damages when it acts without intent? Is it exempt because intent is required in order to create a Chiyuv, or is it exempt because the Shor is not acting in the way a Shor normally acts, and a Shor is Chayav Misah (or its owner is Chayav to pay for damages) only when the Shor acts in the way in which it normally acts when it causes damage or death?

If the second approach is correct -- that it is only the fact that the Shor did not cause damage in its normal manner that exempts its owner from payment, it is clear that for damage caused by one's Esh or by one's object left in Reshus ha'Rabim, one would be liable to pay. His Esh, or object in Reshus ha'Rabim, causes damage in the way that an Esh, or an obstacle left in Reshus ha'Rabim, normally causes damage. Since there is no change from the way that damage is normally caused, Rebbi Shimon would not exempt the owner. (See also AVI EZRI, Hilchos Rotze'ach 5:4.)