The Ins & Outs Of Nezek
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February 9, 2009 2:44 pm at 2:44 pm #589351
After learning Bava Kamma in depth, I have come up with a few yesodos about nezek.
When two people are poshea and damage someone, they are both chayav. Neither one can claim that the other’s pshia is his o’nes. Tosphos, however, says that an adam bikavanah absolves another’s pshia.
This idea that two posh’im are both responsible does not always hold up. Things get tricky when the two posh’im are the nizeck and the mazik.
If the nizik is poshea and the mazik is poshea and is mazik him, the mazik is still fully chayav. This is the case of hamayniach as hakad in reshus harabim. He is poshea to leave his kad in a place that it may get damaged. Yet the poshea that breaks the kad is chayav unless he is an o’nes in regard to not watching out for it (as we say, ain darkam shel bnei adam lhisbonen badirachim). The pshia of the kad man is not relevant because his is only a grama to his loss, while the other person does the maysah.
Yet, the mazik may be totally patur for a different reason. This is when we say the heter of kol hamishaneh uba achar vshina bah patur. There is a machlokes on this matter, and tosphos say it does not apply to adam hamazik.
There are also other kulos to fully absolve the mazik even though both he and the nizik are poshea. Before we dealt with the nizik being poshea first (in regard to kol hamishaneh). Now we will deal with the nizik being poshea second.
When a person is poshea and builds a bor, and a person or animal stupidly falls into it, the mazik is totally patur. Here the heter is ihu diazik anafshay. According to some rishonim this only applies to the mazik of bor because the nizik is the one doing the action of going into it. According to Rashba”m, however, the heter applies even when the other does the action. This is a case where a person started a fire and an animal stupidly did not run away from it. According to rashba”m the mazik is patur, but other rishonim do not agree. Actually, one gemarah states like rashba”m, but the question is whether or not the gemarah falls away for this heter.
There is one last heter for the mazik haposhea when the nizik is also poshea. Tosphos holds that when the nizik is poshea in placing his stuff in a way that causes its loss (in his reshus) this makes his reshus like a reshus harabim that shen and regel are patur. Tosphos thus state that when a person leaves his food open in his field and an animal eats it, the mazik is chayav because the nizik is not considred poshea for not watching it. Had he been poshea, the mazik would have been patur. In the above case, kol hamishaneh uba achar veshina bah does not apply, because it does not apply in the reshus of the nizik. If it did apply, the mazik would be patur in tosphos’s case regardless, because the nizik was poshea with his hot chararah in regard to its damaging others. It is also clear from another tosphos that kol hamishaneh does not apply in the reshus hanizik.
Lastly, we must keep in mind that the nizik is not always a nizik. When a person is poshea with another and both, with a maysah hezek, damage one of them, the nizik is considered a mazik to himself, and both are responsible. By bor, though, even though the nizik does the action, he is still considered a nizik. The nizik is a mazik when he does something that would make him a mazik in regard to someone else, just that it happned to be that he did it to himself. This applies to any mayseh hezek that just happen to damage yourself and not someone else.
If anyone undertands this I will continue next time about the concept of bor b’reshus and shneyham b’reshus.February 10, 2009 2:02 am at 2:02 am #637252JosephParticipant
Yasher koach Reb Nosson! Please keep these types of posts coming.
This is surely one of the best, if not best, topic and post in the cr.February 10, 2009 3:32 am at 3:32 am #637253moish01Member
i think it’s the only current one i didn’t readFebruary 10, 2009 5:25 am at 5:25 am #637254
Reb Nossond that was great!!! shkoyach Rebbe!!!
moish01: i read them both even!!! i like Reb Nossond’s shiurim!!! very chachmadik!!!February 10, 2009 5:39 am at 5:39 am #637255JotharMember
It probably is one of the best threads here, Joseph, but I’m not ligt in the sugya enough to give an honest appraisal.
For some “light” torah, nossond, what pshat are you using to explain the issur of mazik?February 10, 2009 5:42 am at 5:42 am #637256moish01Member
what happened to your ADD? miraculously disappeared? mind you, how do you start at the top of a page of gemara if you can’t even read a paragraph in english without shutting down?February 10, 2009 5:49 am at 5:49 am #637257
moish01: ha!!! i learn gemara every morning in yeshiva!!! i donno this appeals to me more than the other long posts out there!!!February 10, 2009 6:00 am at 6:00 am #637258syriansephardiMember
I did not understand a wordFebruary 10, 2009 6:08 am at 6:08 am #637259JosephParticipant
Girls aren’t supposed to learn Gemorah.February 10, 2009 6:13 am at 6:13 am #637260beaconParticipant
syrian- I would be concerned if you didFebruary 10, 2009 6:14 am at 6:14 am #637261
syriansephardi: skip to the next thread!!!February 10, 2009 1:44 pm at 1:44 pm #637262
One last point about why the person going into the bor is a mayse nizik, while the the owner of the chararah was mazik himself. In both cases there is another person who was also poshea. By bor, the person who built the bor is poshea, and by the chararah the person who didn’t watch his dog is poshea.
But the person who owns the chararah is responsible for an object that is mazik, namely, the chararah. When you are responsible for such an object, you are mazik yourself. By the bor, the object that is mazik is the bor, and the person who falls in is not responsible for it. He may be doing the mayse that causes the bor to be mazik him, but he is not the responsible party for the thing that causes the hezek. As such, he can only be nizik himself and not mazik himself.
Short summary of two posh’im
1) two posh’im (owners of dog and chararah) cause hezek, both chayav. If the damage is to the gdish of one of them, the other guy pays his half.
2) nizik is poshea first causing the mazik to smash his thing, the mazik is fully chayav, because the nizik is gramah. However, the inyan of kol hamishaneh etc. may sometimes apply.
3)nizik is poshea second and stupidly causes the mazik’s peshia to be mazik him. According to rashba’m the mazik is always patur. According to others this is only true for bor, because you (or the animal) are doing the action of going into it.
The machlokes is when a person was poshea with a fire and an animal did not run away. But if a person did not remove a coal placed on him by another, all agree that the mazik is patur, because adam bikavanah paters the mazik. However, the gemarah says that a person is only poshea for not removing a hurt to himself, but he is not poshea by not removing a coal placed on his clothes, because he just wants the other guy to pay for it.February 10, 2009 2:37 pm at 2:37 pm #637263
The concept of bor breshus is as follows.
Sometimes society allows people to have boros and they need not watch it, but they are still chayav when they are mazik. The reason for this is as follows. The reason why you need not watch the bor is because people are not usual to watch such boros (that are usual to make). Your not a complete o’nes, because you are capable of watching it. What you have, though, is a half baked o’nes (similar to when your kid tells you “but everyone does it!”). This half o’nes allows you not to watch it, because people generally do not do so, but it is not enough of an o’nes to patur you if it is mazik.
Sometimes, however, you are patur with such an o’nes. The gemarah says if it is not usual for people to watch were they are going on the road, they need not pay for damaging the things they step on. We will shortly see why this is different.
Lets first go to the concept of shneyhem brshus, which is also chayav. It is considered shneyhem breshus if two people bump head on into each other, because people generally don’t always look out so much for such things. The basic idea is that the mazik is chayav, but there is a seperate ptur for the mazik which sometimes applies which I won’t go into now.
According to the RI’s pshat in Tosphos, if someone is ahead of you walking in the same direction, you only are careful about him in the begining, to better choose a not direct path behind him, but if this is not possible, you don’t watch him all the time, and if he stops and you bump into him, you are not poshea and are patur from being mazik him. Tosphos asks why is this different from shneyhem bershus that is chayav?
Tosphos answers, because the guy who stopped was poshea. We now have the answer for before as well. The person who placed the kad was also poshea. Even though, as explained before, the pshea of the nizik does not at all patur the mazik (because the nizik is gramah), here the heter for the mazik is because he is o’nes. We only don’t consider his o’nes an o’nes when nobody else was poshea, but when someone else is poshea, we do consider his o’nes an o’nes. The other party does not need to be completely free from responsibility for the other to be chayav. Even when both are b’rhus, both have a half o’nes, and the mazik is chayav. Since both have a half o’nes, we say that both are considered poshea, and when both are poshea, the mazik is chayav.
However, the mishnah says that if the guy in front stops and the second guy gets damaged he is chayav, and the same tosphos says because the first was poshea. Why does the first have to be poshea in this case? Didn’t we just say that both can be b’rshus and the mazik is chayav? Both can have the half o’nes and still the mazik is chayav!
If you go back to the rules of two posh’im you should be able to figure out the answer.
By shneyhem b’rshus they both have a half o’nes. Such an o’nes is considered poshea, unless we can pin another who is poshea; then we consider the half o’nes an o’nes. When both are b’rshus, we can’t pin anyone more than the other, so we consider both to be posh’im.
When the guy in back is mazik the guy in front (who stopped), if both are posh’im the mazik is chayav. Thats why tosphos had to say that the guy who stopped is poshea, so the back guy gets the heter of b’rshus.
But when the second guy gets damaged, the first guy who stopped damaged him in a bor type of way. Everyone agrees here that two posh’im make the mazik patur. As such, shneyhem b’rshus is not enough here, because they will be like two posh’im and the mazik is patur. As such, tosphos had to say that the first is poshea in this case too. Since he is poshea, now the second guy is not considered poshea, because he gets the o’nes of his half o’nes since the other was poshea. Now the bor guy in front is chayav.February 10, 2009 3:23 pm at 3:23 pm #637264
b’rshus is chayav unless someone else is poshea; then b’rshus is o’nes.
When both the mazik and nizik are b’rshus its like both are poshea and the mazik is chayav if he is mazik him with a mayseh.
But if he is mazik him in a bor way, then by both b’rshus the mazik is patur, since if both were poshea the ba’al habor is patur.
So it turns out that bor b’rshus is chayav only if the other is o’nes gamur. If the nizik is poshea every bor is patur, but if the nizik is b’rshus then a regular bor is chayav but a bor b’rshus is patur.
A different tosphos argues on this. This approach holds that two b’rshus shows favor to the nizik, allowing him the o’nes, and the mazik is always chayav by shneyhem b’rshus. This tosphos holds that the reason the guy in front stopping needs to be poshea (to be michayev him as a bor) is only because if he wasn’t poshea, then the guy in back would have been poshea and then the first guy b’rshus would have been patur. The R”I can’t hold this, however, because he holds that the second guy is b’rshus about not watching where he is going regardless of what the first guy does.February 10, 2009 5:39 pm at 5:39 pm #637265gavra_at_workParticipant
Nothing against you, but why do you say that the dog or pit/bor is due to Poshya vs. Mammono Hamazik?
MAmmono Hamazik is that you are responsible for your object that damages, except whan you are an Ones (such as the gate falling down in a hurricane (First Mishna in HaKonyes)). Bor is due to either you owning the Bor but not the surrounding area or it being Halachicly owned by you, just like Chametz on Pesach (R’ Elazar Besham R’ Yishmael (29b)).February 11, 2009 12:53 am at 12:53 am #637266
gavra: to be mazik you need both. The object that is mazik has to be yourself or something you are responsible for, like your mamaon (your cow). The second factor is that you have to be poshea in regard to them. If you are o’nes your patur. I was discussing the various things we say when both the mazik and nizik were poshea. Secondly, I discussed the concept of b’rshus which is in between an o’nes and a pshia, and sometimes is considered one, and other times it is considered the other.
Tosphos holds that meshuneh gamur is considered o’nes. If your cow did something really strange you would be patur.
Adam hamazik is chayav even by some onsim. But a full o’nes paturs him too.February 12, 2009 2:33 am at 2:33 am #637267qwertyuiopMember
i think i learnt this already, but chazarah can’t hurt, and maybe i’ll learn something new.$
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