1) CAN THERE BE DISAGREEMENT ABOUT A "HALACHAH L'MOSHE MI'SINAI"?
QUESTION: Rav Ashi asks whether Sumchus considers "Ko'ach Kocho" the same as "Kocho" or not. Did he receive the tradition that a Halachah l'Moshe mi'Sinai obligates one to pay Chatzi Nezek for damages of Tzeroros in a case of "Ko'ach Kocho," or did he receive no such tradition? The Gemara leaves this question unresolved.
How can the Gemara suggest that Sumchus argues with a known Halachah l'Moshe mi'Sinai? Does this imply that a Halachah l'Moshe mi'Sinai is subject to dispute, and that there can be different traditions about Halachos l'Moshe mi'Sinai?
(a) The RAMBAM writes (in introduction to Perush ha'Mishnayos, and in Hilchos Mamrim 1:3) that whatever was received through tradition as a Halachah l'Moshe mi'Sinai will never be the subject of dispute. This is also the implication of Tosfos in Yevamos (77b, DH Halachah; see also Tosfos Yom Tov to Temurah 3:3, DH Temuras Asham).
However, the Rambam himself (in his introduction there) composes a list of "most and perhaps all" of the Halachos l'Moshe mi'Sinai mentioned in Shas. His list includes only 22 Halachos, and the Halachah of Tzeroros is not one of them.
The CHAVOS YA'IR (Teshuvah #192) discusses at length whether a Halachah l'Moshe mi'Sinai can be subject to dispute. He lists 75 Halachos l'Moshe mi'Sinai (including the Halachah of Tzeroros), and he questions why the Rambam does not mention the other Halachos l'Moshe mi'Sinai. In fact, most of the Halachos l'Moshe mi'Sinai which the Chavos Ya'ir cites indeed are subject to dispute in the Gemara. The Chavos Ya'ir concludes that the Rambam maintains that not every Halachah for which the Gemara uses the term "Gamra Gemiri Lah" is actually a Halachah l'Moshe mi'Sinai. (He proves this at length from a number of Sugyos.)
He also infers this from the words of the Rambam in Mishneh Torah, who mentions the words "Halachah l'Moshe mi'Sinai" explicitly only with regard to the 22 Halachos which he lists in his introduction. For the other Halachos (including the Halachah of Tzeroros), he writes either "Halachah mi'Pi ha'Kabalah" (such as for Tzeroros, in Hilchos Nizkei Mamon 2:1), "mi'Pi ha'Shemu'ah," "Nitan Lahem mi'Sinai," or "mi'Pi Moshe Rabeinu Nishme'u." (See Chavos Ya'ir there, 192:6, 24, 25.) Accordingly, no question may be asked on the Rambam's assertion from the argument of the Tana'im with regard to the Halachah of Tzeroros.
The Chavos Ya'ir there (#6) proves from many sources that even according to the Rambam the details of a Halachah l'Moshe mi'Sinai can be subject to dispute. It is only the general Halachah which is not subject to Machlokes. Hence, according to the opinion that Sumchus agrees with regard to "Ko'ach Kocho," there is no question. Sumchus certainly agrees with Halachah l'Moshe mi'Sinai; he disagrees merely with the details.
(b) However, the Chavos Ya'ir there points out that, apparently, not everyone agrees with the words of the Rambam. Tosfos in Eruvin (21b, DH Mipnei) clearly implies that it is possible for a Halachah l'Moshe mi'Sinai to be forgotten, and thus it is possible for it to be subject to Machlokes (in contrast to what the Rambam writes, that it is not possible for a Halachah l'Moshe mi'Sinai to be forgotten). This is also the Chavos Ya'ir's own conclusion, which he bases on numerous sources in the Gemara and on logical arguments. (One of his proofs is from the Halachah of Tzeroros -- the 27th Halachah l'Moshe mi'Sinai in his list.)
2) "TZEROROS" IN RESHUS HA'RABIM
QUESTION: The Gemara presents the question of Rebbi Yirmeyah: If an animal was walking in Reshus ha'Rabim and it kicked up Tzeroros and caused damage, is the owner liable or exempt? Is it like Keren, for which one is liable in Reshus ha'Rabim, or is it a Toldah of Regel for which one is exempt in Reshus ha'Rabim? Rebbi Zeira replies that it makes sense that it is a Toldah of Regel and one is exempt for damage done by Tzeroros in Reshus ha'Rabim.
The word "u'Va'atah" ("and it kicked") in Rebbi Yirmeyah's question is printed in parentheses in our texts of the Gemara (Vilna edition), with a marginal note stating that the MAHARAM deletes this word from the text. In fact, most older manuscripts and most Rishonim do not include this word in the text. Nevertheless, it is possible to explain that the Gemara's question is when the animal kicked the Tzeroros (kicking being an unusual manner for the animal to act), whether it states so explicitly or not, and many Rishonim indeed explain the Gemara in this way. It is also possible to explain that the question is when the animal causes Tzeroros to fly out without kicking but rather in the normal manner of Regel.
The problem is that the Gemara's question seems difficult to understand either way. If the Gemara's question is specifically when the animal kicks the Tzeroros, then the question is whether Tzeroros of Keren is considered like Keren or like a Toldah of Regel. However, the Gemara asks whether Tzeroros of Keren can become a Mu'ad ("Yesh Ha'ada'ah l'Tzeroros") after three times (according to the first Lashon of Rashi), which implies that the Gemara does consider the possibility that Tzeroros of Keren is considered like Keren, but the Gemara here concludes unequivocally that it is a Toldah of Regel and one is exempt for Tzeroros in Reshus ha'Rabim. Why, then, should there be a question of "Yesh Ha'ada'ah l'Tzeroros"?
Also, why should Rav Ashi have a question (at the beginning of 19a) whether "Yesh Shinuy" for Tzeroros of Keren, such that the owner would pay only Revi'a (quarter) Nezek? If it is like a Toldah of Regel, why should the owner pay only Revi'a Nezek?
On the other hand, if the question of the Gemara refers to an ordinary case of Tzeroros (where the animal was walking in its normal manner, and not where it kicked up the Tzeroros), then why is there any a question altogether whether one is exempt for Tzeroros in Reshus ha'Rabim? In the Gemara earlier (3b), all of the Amora'im agree that one is exempt for Tzeroros in Reshus ha'Rabim, and that is why it is a Toldah of Regel. Why should the Gemara here raise the question again?
This question becomes even more complicated because RASHI seems to alternate back and forth between the two explanations. He writes first (DH l'Keren Medaminan Lah) that the question is whether this case is comparable to Keren "since the animal kicked," but then he writes, "and one is Chayav to pay Chatzi Nezek as for Keren," implying that it is compared to Keren because one pays Chatzi Nezek, referring to all cases of Tzeroros and not just to a case where the animal kicked. Similarly, in his next comment (DH O Dilma) Rashi begins by saying that the question is whether "all Tzeroros are a Toldah of Regel," meaning even Tzeroros of Keren, but then he continues and says that "Tzeroros done in a normal manner (k'Orchaihu) is a Toldah of Regel"! Throughout his following comments as well, Rashi seems to alternate back and forth between the two explanations of the question. How are we to understand the Gemara and Rashi?
(a) The Rishonim present two distinct ways of explaining the Gemara. These two ways apparently depend on the first Lashon and second Lashon in RASHI earlier (18b, DH Ela), as is evident from Rashi's words on the Rif, where he seems to follow the original explanation of Rashi on the Gemara (that is, the second Lashon of Rashi on 18b; see end of Insights to 18:1). Hence, there are a number of important differences in the words of Rashi on the Rif and in his words on the Gemara.
Rashi on the Rif omits the words, "v'Chayeves Chatzi Nezek k'Keren" ("and it is liable for Chatzi Nezek like Keren"). In the next comment, he omits the word, "k'Orchaihu." These changes clearly indicate that he understands that the question of the Gemara concerns specifically a case where the animal kicked; the Gemara is asking whether Tzeroros of Keren is like normal Tzeroros of Regel or whether its Halachos are different.
In fact, in the previous comment of Rashi on the Rif (which corresponds to Rashi's words on the Gemara, DH O Dilma), he adds a number of words which makes this even more evident. Rashi there refers to the question of the Gemara concerning an animal that walked in a place where it could not help but cause Tzeroros to fly up even when it walked in its normal manner, but it kicked (an unusual act) and caused Tzeroros to fly up. The Gemara asks whether such a case has the law of Keren or the law of Regel. Rashi asks what is the difference -- Tzeroros of Keren and Tzeroros of Regel have the same Halachah! In his first answer, Rashi writes that for Tzeroros of Keren one might have to pay Revi'a Nezek (according to one side of the question of Rav Ashi). In his second answer ("Lishna Acharina mi'Pi ha'Moreh" -- "another version in the name of the teacher"), Rashi writes that the difference is that if it kicks up Tzeroros three times, it will become a Mu'ad and obligate the owner to pay Nezek Shalem (according to the side of the question of whether "Yesh Ha'ada'ah l'Tzeroros"), if the act is considered Tzeroros of Keren. Rashi then writes that the first answer is the correct one and not the second answer. Rashi on the Rif adds why the second answer is incorrect. The second answer is incorrect because Tzeroros of Keren is not considered any different from Tzeroros of Regel, since the Gemara itself -- in its next question -- concludes that for Tzeroros of Keren one is exempt in Reshus ha'Rabim because it is considered a Toldah of Regel. If Tzeroros is a Toldah of Regel, the Halachos of Tzeroros of Keren and Tzeroros of Regel cannot be different!
With this explanation, Rashi on the Rif effectively rejects absolutely the first Lashon of Rashi on the Gemara (18b) where he writes that the question of "Yesh Ha'ada'ah l'Tzeroros" is whether one must pay Nezek Shalem for Tzeroros of Keren after the animal does damage in that manner three times, and it is different from Tzeroros of Regel!
It is clear that Rashi on the Rif follows the second Lashon of Rashi on the Gemara, and that is why he explains the question of Rebbi Yirmeyah (at the end of 19a) as a question of whether Tzeroros of Keren is different from Tzeroros of Regel. The question applies in a case where the animal kicks (making it Tzeroros of Keren, an unusual act), and the question is whether it can become a Mu'ad after three times (or is liable in Reshus ha'Rabim). The Gemara concludes that it actually is a Toldah of Regel. (The logic for this is, as explained in Insights to 18b, that an act is considered a Toldah of Keren only when the animal actually comes in direct contact with the object that it damages, but not when it pushes something else that then damages the object, similar to what Rashi writes with regard to Tzeroros of Shen.)
One might ask that according to this explanation, what is the question of Rav Ashi when he asks does one pays Revi'a Nezek for Tzeroros of Keren? The answer is that even if Tzeroros of Keren has the Kulos (leniencies) of Tzeroros of Regel and one is therefore exempt in Reshus ha'Rabim, since the Halachah l'Moshe mi'Sinai of Tzeroros is lenient in a case of Tzeroros perhaps it also has the Kula of Keren, and therefore it also pays half of the Chatzi Nezek of Tzeroros (i.e. a Revi'a Nezek), until it does the act three times. It can have the Kulos of both Regel and Keren: it is exempt in Reshus ha'Rabim, and it pays only a quarter of the Nezek. However, it cannot have the Chumros of Keren and obligate the owner to pay Nezek Shalem after three times.
This approach is consistent with Rashi's second Lashon, the original way in which Rashi learned the Gemara.
This is also the way the RAMBAM (Hilchos Nizkei Mamon 2:5) explains the Gemara: the question of the Gemara applies to a case where the animal kicked, and the Gemara is asking whether one is exempt in Reshus ha'Rabim for Tzeroros of Keren.
However, as mentioned earlier, Rashi retracted his original explanation and added a new Lashon to his commentary. The first Lashon (the new one) does
conform with the explanation of the "Moreh" which he cites here (19a, DH O Dilma). This is why Rashi also omits the question he asked on that explanation in his original commentary, which is included in the words of Rashi on the Rif. Since he sides with that explanation, he no longer questions it (see Insights to 18:1
, where we show that the explanation of Rashi's teacher in DH d'Dachik Lah is in agreement with the first Lashon).
Since Rashi in the first Lashon explains that the Gemara does consider the possibility that the Halachah of Tzeroros of Keren is more stringent than the Halachah of Tzeroros of Regel, he cannot explain that the Gemara here concludes that Tzeroros of Keren has no unique Chumros (such as being liable in Reshus ha'Rabim). Therefore, Rashi explains that the question of the Gemara applies where the animal did not kick. Rather, the question is simply whether for Tzeroros "k'Orchaihu" -- Tzeroros of Regel -- one is exempt in Reshus ha'Rabim like normal Regel, or whether one is liable in Reshus ha'Rabim because the Halachah l'Moshe mi'Sinai, which teaches that one pays Chatzi Nezek for Tzeroros, attempts to make Tzeroros similar to Keren, and therefore it might also make it similar to Keren with regard to the Chumra of Keren as well (i.e. the obligation to pay for damage done in Reshus ha'Rabim).
How does Rashi understand the Gemara earlier (3b) which concludes that one is exempt for Tzeroros in Reshus ha'Rabim? TALMIDEI RABEINU PERETZ explain that the Gemara there was written after the Gemara here reached its conclusion that Tzeroros of Regel is a Toldah of Regel and one is therefore exempt for Tzeroros of Regel in Reshus ha'Rabim. This is also the explanation of RABEINU YESHAYAH, the RASHBA, and the TALMID HA'RASHBA V'HA'ROSH here.
It is according to this explanation that Rashi adds what he writes in the Sugya here about the obligation to pay Chatzi Nezek for Tzeroros like the obligation to pay Chatzi Nezek for Keren, and about "k'Orchaihu," since the question of the Gemara concerns a case of normal Tzeroros, Tzeroros of Regel.
3) "KISHKESHAH B'AMASAH"
QUESTION: Rav Ina asks what the Halachah is in a case in which the animal caused damage by an act of "Kishkeshah b'Amasah." Is this act like Keren, because Keren is damage done when the animal is overtaken by its urges, and the animal in this case is also overtaken by its urges, or is it not like Keren, because the urge of Keren is to do damage, but here the animal's urge is not to do damage? The Gemara leaves this question unanswered ("Teiku").
What is Rav Ina's question in the first place? The Chachamim should simply ascertain whether or not this act is a normal thing for an animal to do! The rule is that damage caused by any act which is unusual is considered Keren, and damage caused by any act which is the normal way for an animal to behave is not considered Keren. Although the Gemara here (and on 2b) mentions that Keren is defined by "Kavanaso l'Hazik" (it has intention to damage), it is clear from many Gemaras that even if the animal has other intentions (such as hunger) that drive it to do what it does, even if it is clear that the animal does not intend to do damage the damage done in an unusual way is still considered Keren. This is evident from the Gemara earlier (15b) which says that a dog that eats a sheep is considered a Shinuy (and an act of Keren), because dogs usually do not attack animals larger than themselves. The Gemara says that it is considered Keren even though the dog ate the sheep and was clearly interested in eating and not just in causing damage. Similarly, the Gemara (16b) teaches that a lion which is "Toref v'Ochel" (it first kills its prey and then immediately eats it) is considered a Shinuy, and even though the lion was eating what it killed its damage is considered Keren. Also, the Gemara (18b) teaches that if a chicken inserts its head into a glass vessel, crows, and thereby causes the vessel to break, it is a Shinuy and is considered Keren, even though the animal certainly did not intend to break the glass by making a loud noise. Clearly, the defining characteristic of Keren is that it is an act that is unusual for the animal to do.
Conversely, an act that is normal for the animal to do is not considered Keren even when the animal has intention to do damage. For example, Tosfos (16a, DH veha'Nachash) explains that although a snake does not benefit from killing what it bites and it bites only to kill and cause damage, nevertheless since it is the normal manner of a snake to bite it is considered Regel and not Keren (and the owner is exempt from paying for such damage in Reshus ha'Rabim).
Therefore, when an animal is "Kishkeshah b'Amasah," the Chachamim should simply ascertain whether it is the normal manner of an animal to act in that way or not. Why should there be a question of whether it has intention to do damage? Why should that make a difference? (RISHONIM)
(a) The ROSH explains that the question of the Gemara is whether such an act is the normal manner ("Orchei") or not. This means that it is not a frequent occurrence for the animal's urges to overtake it in such a way, and in that sense it is an unusual act. On the other hand, when an act is infrequent, the infrequency should demonstrate that the act is not something that the animal does as part of its normal mode of conduct (such as walking), and it is not something the animal does for its own benefit and pleasure (such as eating). Therefore, if it does something infrequently, it shows that it does it in order to cause damage. In the case of the Gemara's question, the infrequency of the act cannot show that the animal intends to do damage because the animal's urges have overtaken it; the infrequency does not demonstrate that the animal's intent in doing the act is to do damage. Since the animal does not want to do damage, the fact that the animal is sometimes overtaken by its urge should give it the status of "Orchei," its normal manner and a common occurrence, even though the frequency at which it performs such acts is low. Anything that an animal does by a natural process should be considered "Orchei," the normal manner of an animal to act, despite its infrequency. Hence, the Gemara is asking: Is the act considered infrequent (and unusual) because of the amount of times that it occurs, or is it considered frequent (and normal) because a natural process causes the animal to act in such a way?
In the case of the snake, the snake damages frequently and it is clear that it is a natural process that causes it to act in such a way (bite), and therefore it certainly is considered Regel. In the case of the dog that eats a larger animal, even though the dog benefits from the act it is an unusual occurrence and perhaps not a natural process. In such a case there are grounds to say that the dog acts in such a way because it wants to cause damage more than it wants to eat. In the case of "Kishkeshah b'Amasah," however, where the animal cannot be doing the act because it wants to do damage, the Gemara asks whether it is considered Keren or not.
(b) The SHITAH MEKUBETZES cites RABEINU YESHAYAH and TALMIDEI RABEINU PERETZ who explain that it is "Orchei," the normal manner, for an animal to be "Mekashkeshes b'Amasah," and nevertheless it could be considered Keren and be liable in Reshus ha'Rabim, based on the precedent of Keren Mu'ad which is "Orchei" and nevertheless is liable in Reshus ha'Rabim, unlike Shen and Regel. The reason this act would not be considered Regel is that the animal does it only when its urges overtake it, and it does not do the act on its own accord.
According to this approach, it is unclear why the Gemara does not apply to this case its earlier teaching that a person is not obligated to guard his animal from doing anything that an animal normally does ("is the owner of the ox obligated to hold on to its tail [so that it does not wag it while walking]?"), and he is permitted to walk his animal through the public marketplace. In other words, the other people in the marketplace are expected to be careful and keep away from his animal in such a way that it not cause damage through the way it normally acts (such as through walking and eating). This is the reason why one is exempt for Shen and Regel in Reshus ha'Rabim -- the people are all "Mevater" to each other; people allow each other to walk their animals there and will take care by themselves not to let the other's animal do damage to them, since they expect and are cautious of the animal's normal way of acting.
Why, then, should "Kishkeshah b'Amasah" be different? If it is something normal and expected, the other people should be careful and be "Mevater" to each other, and one should be able to walk his animal through Reshus ha'Rabim without having to worry about his animal doing damage through this act.
Perhaps these Rishonim mean that not every animal has such a strong Yetzer ha'Ra that it is prone to be "Mekashkeshes b'Amasah." Only certain animals have such strong urges. In this sense, the animal is like a Keren Mu'ad -- people do not protect themselves from a Keren Mu'ad that is walking in the marketplace because they do not know -- and cannot be expected to know -- that this animal is a Mu'ad. If the owner, however, knows that his animal is a Mu'ad, the owner must watch his animal and keep it from doing damage.
In this case, too, people are not supposed to expect that someone's animal will be "Mekashkeshes b'Amasah," and that is why it is like an animal that is a Keren which the owner must watch. On the other hand, although the owner has seen that his animal has a strong Yetzer, that is no reason to suspect that the animal will do damage in this way, since it is such an unusual type of damage. Although the owner knows that the animal has a strong Yetzer ha'Ra and is prone to be "Mekashkeshes b'Amasah," nevertheless perhaps he is exempt in Reshus ha'Rabim since no one expects an animal to do damage in such a way. Therefore, the owner does not have to be responsible for this act any more than the other people in Reshus ha'Rabim have to be responsible for this act. It is considered the type of normal act that is similar to Shen and Regel, where each person in the marketplace watches out for himself, and the owner of the animal is not required to keep his animal from doing damage.
(c) The NETZIV suggests as follows. The uncommon act of a normal case of Keren is uncommon in two ways. First, it is uncommon that an animal should have an urge to do damage. Second, even if it does have an urge to do damage, it is uncommon that it actually does damage. In the case of "Kishkeshah b'Amasah," although it is not common for an animal to have such a strong urge to be "Mekashkeshes b'Amasah" in the first place, nevertheless when it does have such an urge it is overtaken entirely by its Yetzer and therefore it becomes common that it will do damage, as it does not pay attention at all to what it is doing.
That is the question of the Gemara. Is the owner's liability based on the thing that caused the animal to do damage, which is the Yetzer ha'Ra which is not common and not "Orchei" (and thus the owner is not liable), or is the owner's liability based on the destructive act itself, the act of "Kishkush," and once the animal is already being "Mekashkeshes" it is common and "Orchei" for the animal to do damage?