The Definition of Regel

  • Rav Yair Kahn
Translated by David Silverberg
            In previous shiurim, we dealt with the unique characteristics of keren and shen.  In this shiur, we will address the third "av" (category of nezikin) involving animals – regel, and discuss its unique properties and distinctiveness from the other avot. 
            The Gemara on 2b raises the possibility of classifying be'ita (kicking) under the category of regel, but then quickly rejects such a notion: "No; regel – its damage is common; these – the damage is not common."  It emerges, then, that the prevalence of damage constitutes the unique characteristic of regel.  Similarly, the Gemara comments on 3a, "How is regel unique?  In that its damage is common, it is your property and you are responsible to guard it.  These [the toledot of regel], too – their damage is common, they are your property and you are responsible to guard them." 
            This definition, however, requires clarification.  After all, an animal commonly damages by eating food suitable for its species.  Seemingly, then, this characteristic of prevalence is not unique to regel; it is shared by shen, as well.  Indeed, if an animal eats food that its species does not normally eat, the owner bears no liability.  Is it possible that in every instance of shen, the owner is liable also because of regel?  Rava explicitly remarks in the Gemara, "The nature of regel – where the damage is common – differs from the nature of shen – where the damage is not common."  What, then, does "hezeiko matzui" ("its damage is common") actually mean, and why is this feature unique to regel?
            Secondly, we should consider why the Gemara entertained the possibility that regel damages yield liability only when the owner sent the animal walking, and not when the animal went walking of its own accord.  Did the Gemara raise this prospect only because of the verse's terminology in describing regel ("ve-shilach et be'iro" – Shemot 22:4), or was there some logical basis for exempting the owner for regel damages when the animal walked independently?
I. More Prevalent, or Less Prevalent
              The simplest approach to resolve this difficulty would be to distinguish between different levels of prevalence.  Shen is indeed considered normal conduct, insofar as the animal in these cases does not act in an unusual manner.  Nevertheless, these damages do not occur regularly enough for us to describe it as "hezeiko matzui," like regel.  Meaning, regel damages are prevalent in the positive sense, whereas shen is considered common only in the negative sense, namely, it does not result from abnormal behavior.
            We might draw support for this theory from a sugya in the second perek (19b), where the Gemara discusses the halakha limiting the liability for shen damages to cases where the animal eats food suitable for its kind:
"An animal that entered the victim's yard and ate foods suitable for it or drank liquids suitable for it – he [the owner] pays nezek shalem [full compensation].  Similarly, a beast of prey that entered the victim's yard and killed an animal and ate its meat – he pays nezek shalem.  And a cow that ate barley, a donkey that ate horse-beans, a dog that licked oil or a pig that ate a piece of meat – they [the owners] pay nezek shalem.  Rav Papa said: Once you have said that anything which is not its usual practice [to eat] but it can eat it under extenuating circumstances, constitutes 'eating' [with respect to shen liability], a cat that ate dates or a donkey that ate fish – he pays nezek shalem."
The Gemara explicitly extends the liability for shen to cases where the animal ate food that it does not normally eat, but would nevertheless eat under extenuating circumstances.  Eating of this sort does not qualify as an unusual occurrence, since this food is, after all, suitable for this animal.  Clearly, however, such an action cannot be considered "prevalent" in the positive sense.
            Herein, perhaps, lies the basic difference between regel and shen.  Shen yields liability even if the given damage is not common, whereas regel requires prevalence. 
            However, according to this explanation, the majority of instances of shen – where the animal eats food suitable for it even under normal circumstances – would also fall under the category of regel.  But the straightforward reading of the sugya clearly suggests that categorically speaking, shen damages are not considered "hezeiko matzui."  What, then, is the difference between shen and regel?
II. The Opinion of the Rashba
            Before proceeding to suggest an additional explanation, let us introduce the puzzling comments of the Rashba regarding the classification of a snake's bite.  The mishna (15b) establishes that "nachash mu'ad le-olam" – a snake's bite is something one must anticipate, and thus the owner must pay full compensation for damages incurred as a result of his snake's biting.  The Rishonim disagree, however, as to the classification of this type of damage.  As we saw in an earlier shiur (#2), Tosefot (16a, s.v. ha-nachash) place a snake's bite under the category of regel, since this is standard conduct for a snake.  We noted that the Riva held that liability for a snake's bite stems from the category of keren, since the snake performs this act with the specific intention to kill.  Since an owner must anticipate this conduct, a snake is considered with respect to biting like a shor mu'ad – an ox that has gored three times and is thus deemed prone to such conduct.  The Rashba (2b, s.v. u-farik) suggests a third possibility:
"I believe that even when a snake bites, it is a toleda of shen – even though it does not eat [when it bites] – because it derives benefit from its biting.  And although they [Chazal] said in the first perek of Ta'anit (8a) that all the animals gather round the snake and say to it, 'What benefit do you derive [from biting]?' nevertheless, since this is its normal conduct, it is not disqualified from being a toleda of shen, or, alternatively, from being a toleda of regel."
The Rashba claims that a snake in fact derives physical benefit from biting, and on this basis he suggests that the snake's owner bears liability because of shen.  His final comments in this passage, however, suggesting that a snake's bite falls under the category of regel, seem very difficult to understand.  If, indeed, as the Rashba maintains, a snake derives enjoyment from biting, then why shouldn't we classify its bite under shen?  The fact that that the snake does not derive this benefit through eating is immaterial.  After all, the Gemara states that shen includes a case where an animal caused damaged by brushing against a wall for enjoyment.  Why, then, shouldn't a snake's bite – according to the Rashba's assumption, that the snake derives enjoyment from biting – also fall under the category of shen?  Why does he allow for the possibility of classifying it under regel?
            The Rashba draws support for his approach from a passage later in the Gemara (16a).  The mishna (15b) had mentioned that we consider crouching on utensils (thereby breaking them) abnormal conduct for animals, and thus the owner in such a case would pay only chatzi nezek (for half the damages).  The Gemara cites Rabbi Elazar as restricting this halakha in the mishna to large utensils.  According to Rabbi Elazar, it is normal for animals to crouch on and destroy small utensils, thus rendering the owner liable for nezek shalem.  The Gemara attempts to draw proof to Rabbi Elazar's halakha from the following berayta: "An animal is prone to walk normally and [thereby] break and crush people, animals and utensils."  The Gemara here appears to classify crouching on small utensils under the category of regel.  The Rashba makes this inference amidst his discussion of the categorization of a snake's bite: "Similarly, crouching for its own enjoyment constitutes a toleda of regel, as we say towards the end of our perek (16a), 'An animal is not prone to crouch: Rabbi Elazar says, this applies only to large utensils; regarding small utensils, however, this is its standard conduct."  The Rashba here draws a comparison between an animal's crouching for enjoyment and a snake's bite, which, as he claims, also involves enjoyment.  Just as crouching for enjoyment yields liability for regel, so does a snake's bite qualify as regel, despite the fact that it derives benefit, which would, at first glance, render this case a situation of shen.  This comparison, however, seems very difficult to accept.  Nowhere does the Gemara give any indication that it deals with a case where the animal crouches for its enjoyment.  And if, indeed, we do speak of crouching for pleasure, then why, in fact, does the Gemara consider this case a situation of regel, rather than shen?
III. Constant Presence
            In order to explain the Rashba's position, we must formulate a different definition of "hezeiko matzui."  Perhaps "hezeiko matzui" means that the factor causing the damage is constantly present, and does not surface only occasionally.  When it comes to keren damages, the ox gores only at moments of anger and rage.  Once this emotion subsides, the ox no longer causes this type of damage.  Similarly, shen damages result from a temporary sensation of hunger, rather than a constantly present condition.  The category of regel, by contrast, consists of phenomena resulting from the animal's routine and constant state of being.  "The leg is prone to break [items on the ground] as it walks; an animal is prone to walk normally and break" (17a).  Rashi (2b s.v. regel), in explaining the term "hezeiko matzui," writes, "For it always walks, and if there are utensils underneath it feet, it tramples [on them]."  Likewise, a snake's bite does not result from any sudden impulse or hunger – despite the fact that according to the Rashba a snake derives benefit from biting – but rather from the snake's constant state of being.  The Rashba therefore suggests classifying a snake's bite under the category of regel, despite the enjoyment involved, due to the constant presence of the factor causing this type of damage.  We might explain his comments concerning crouching along similar lines.  An animal that crouches on small utensils for enjoyment does so not due to a sudden drive, but rather because this is standard conduct for animals.  Therefore, we may hold the owner liable for regel, given that this type of damage meets the criterion of "hezeiko matzui."  By contrast, the case of an animal brushing against a wall for enjoyment constitutes a toleda of shen, since it is the temporary situation of an itch that causes it to brush against the wall.
            Clearly, this new definition of "hezeiko matzui" helps us explain these two otherwise difficult passages of the Rashba.  But in addition, by way of this definition we have determined the singular quality of regel and the point of distinction between this category of damage and the other avot nezikin.
IV. "Mit'asek"
            A careful reading of Rashi's comments to the sugya on 3a perhaps adds a further dimension to this understanding of the "hezeiko matzui" criterion.  Rashi there writes, "Any damage [caused] over the course of walking without specific intention [to cause damage] is a toleda of regel – regarding which the damage is prevalent and it does not have specific intent to cause damage."  Rashi here emphasizes that regel damages occur without the animal's specific intent to cause harm.  Why does Rashi find it necessary to emphasize this point?  Is it not obvious that when the animal damages with specific intent, the incident falls under the category of keren?  Does Rashi here simply emphasize that regel damages do not also belong under keren, or, does Rashi perhaps point to the lack of malicious intent as part of the definition of "hezeiko matzui"?
            To explain this possibility, let us draw a comparison between regel damages and another area of Halakha.  When a person walks innocently on Shabbat and without any intention steps on and kills an insect, we do not consider this incident an inadvertent violation of Shabbat that would warrant bringing a chatat (sin-offering).  Rather, Halakha defines such an act as "mit'asek," which does not yield an obligation to bring a chatat.  The Gemara in Masekhet Keritut (19a) deduces this exemption from a seemingly superfluous phrase in the verse concerning the obligation to offer a chatat for inadvertent violations ("asher chata ba" – Vayikra 4:23).  The Acharonim debate the issue of what precisely this exemption means.  Rabbi Akiva Eiger understood that in a case of mit'asek, the individual has indeed committed a transgression, but he is nevertheless exempt from bringing a korban since the violation did not stem from any carelessness on his part.  Rav Chayim of Brisk, by contrast, claimed that in such a situation, we do not ascribe the given transgression to the person at all.  Although his body was, indeed, involved in killing the insect, the "individual" in the existential sense, as a creature with a conscious awareness of his actions, has not performed an action.  Therefore, Rav Chayim argued that we deal here not with a technical exemption from a korban, but rather with the complete absence of personal accountability.
            Needless to say, Rav Chayim developed this approach with respect to actions committed by human beings, and its application to the realm of animals is less than obvious.  Nevertheless, we might invoke this theory in assessing a case of an animal walking about normally and unintentionally trampling on anything in its way.  Do we hold the owner responsible because his animal performed an act of damage, and he, as its owner, must bear liability for the loss incurred?  Or, perhaps we cannot consider the animal as having performed an act of damage in such a case, since this resembles a situation of mit'asek, and the act of damage therefore cannot be ascribed to the animal.  According to this second possibility, liability for the damage must stem from the owner's personal involvement in the damage, rather than his responsibility for his animal's actions.
            Viewing regel from this angle, we can easily understand why the Gemara considered the possibility of limiting regel liability to a case where the owner specifically sent the animal into his neighbor's field.  Halakha holds the owner liable for regel because of his involvement in the damage, and this involvement is particularly manifest in a case when he himself sent the animal into someone else's property.  According to this possibility raised by the Gemara, if the animal wandered independently, such that the owner had no involvement whatsoever in the damage, we cannot hold him responsible for the act committed by the animal, because we deal here with mit'asek, and we thus cannot ascribe the act to the animal.  In cases of keren and shen, the animal causes damage with willful intent – be it with malicious intent to cause harm or with the intent to derive benefit and enjoyment – and we can therefore hold the owner liable for the act committed by the animal.  Although he was not directly involved in the damage, he bears responsibility for his animal's actions.  When it comes to regel, however, we cannot ascribe the act of damage to the animal, and we can therefore hold the owner liable only if he has direct involvement in the damage – meaning, when he sends the animal into the victim's property.
            The Gemara concludes, of course, that regel yields liability regardless of the owner's involvement in the animal's intrusion.  We can explain this conclusion in one of two ways.  Perhaps we do not accept the application of the "mit'asek" category to animals.  We thus can ascribe the act of damage to the animal and consequently hold the owner responsible even without his direct involvement.  Alternatively, we consider the owner "involved" in the damage even when he did not actually send the animal, if he did not properly guard against its straying onto the property of another.  According to this second possibility, we may still adopt our approach viewing the owner's personal involvement in the damage as the unique property of regel.  Whereas in shen and keren the owner must pays by virtue of his responsibility for his animal's actions, in regel, the owner pays because of his personal involvement in the damage.  Since regel damages are deemed "hezeiko matzui," we consider a negligent owner involved in the damages caused by his animal's walking – which is a regular occurrence.  On the other hand, because the animal causes damage as it walks without any intent at all, we do not hold the owner responsible for the animal's action, for we cannot ascribe to the animal any act of damage.
            In this shiur we discussed the category of regel – damages caused over the course of an animal's walking, which the Gemara defines by the characteristic of "hezeiko matzui."  One could explain this definition as based on the particularly high level of frequency of this sort of damage.  We suggested, though, that the singularity of regel stems not from the quantitative difference in prevalence between it and other avot, but rather from the qualitative difference, in that the underlying cause of regel damage exists constantly.  This factor of constancy raises the owner's level of involvement in the damage caused by his animal's walking.
            This level of involvement is unique to regel.  In cases of shen and keren, where the cause of the damage is not constantly present, we do not consider the owner involved to the same degree.  One might therefore claim that in shen and keren, the owner's liability stems from his responsibility for his animal's actions.  In cases of regel damages, by contrast, where the animal does not perform any willful act of damage, the incident does not qualify as a formal "act of damage" for which we can hold the owner responsible.  Instead, he is responsible by virtue of his personal involvement in the damage.
            Due to the singular quality of regel, the Torah could not speak of only regel damages, and found it necessary to introduce the other types of nezikin, as well.  Once the Torah did establish liability for the other categories of nezikin, there is room to question whether the singular nature of regel retains its significance.  Perhaps now that the Torah specified all the various categories and included regel among them, its fundamentally distinct nature no longer bears any relevance.  We will iy"H address this issue in one of the forthcoming shiurim in this series.
Sources and Questions for next week's shiur: The role of legal ownership in establishing liability for nizkei mammon.
1) Mishna, see the Rif's version and the Nimukei Yosef's comments 1a "U-shmiratan alekha
Tosafot 3b s.v. U-mammonkha; Tosafot 4a s.v. Adam, Rashba 2a s.v. shedarkan
How does the omission, or insertion of the word mammonkha affect the nature of this obligation?
2) BK 22a "Itmar … mammono"; Rashi s.v. Mi-shum; Tosafot s.v. Isho mi-shum mammono.
How might Rashi and Tosafot differ about the owner's responsibility in cases of eish?
3) BK 55b Mishna, Gemara 56a "Hotzi'uha listim … bi-reshuteihu"; Tosafot s.v. Peshita.
How do the 2 answers in Tosafot differ as to the nature of a ganav's responsibility for nizkei mammon?
4) BK 44b Mishna - why is a shomer responsible for nizkei mammon?  Relate back to Tosafot 56b.
5) BK 55b "Tanu rabanan … ke-ein ve-shilach.
How might the level of watching required, be a reflection of the nature of an owner's liability for nizkei mammon?