Mai Sh'na Shein, De-ye'ish Hana'a Le-hezeika

  • Rav Reuven Taragin

Based on shiurim by Rav Reuven Taragin

I) Introduction - "Three Avot of Shor"
Following Rav Papa's interpretation of the relationship between avot and toladot, the gemara quotes a beraita which subdivides shor (ox) into three avot - keren, regel, and shein (1).  One wonders whether the three avot differ merely in form or also in nature.  Do the three body parts share a common basis for culpability or do they reflect inherently different grounds for obligation (2)?  What could these different bases be?
A previous shiur discussed the unique characteristics of keren.  This week's shiur will address the characteristic of shein - hana'a le-hezeika, to determine whether it is merely grounds for classification (and there really is no difference between shein and regel), or a distinct basis for culpability (which would allow for an inherent distinction between these two types of damage).
II) Shein - Hana'a Le-hezeika
A) Scope/Nature
The significance of the hana'a le-hezeika characteristic can be determined by its scope.  A limitation of its scope would signify a particular understanding of its significance.
1) Rashba/Rabbeinu Chananel:
   Broad Scope / Grounds for Classification
The Rashba (2b "U-parik") includes in the category of shein even cases where the intended benefit is not actually achieved, such as fruits that fall from the animal's mouth.  The Rashba's basis lies in an intent-based understanding of the classification.  While keren implies intent to damage and regel includes cases devoid of intent, shein connotes damage motivated by the pursuit of pleasure.  Since classification is based on intent, actual attainment of gratification is irrelevant.
Most Rishonim, though, include only cases where gratification is actually attained (3).  Shein's categorization hinges on actual hana'a, not mere intent.  The main dispute relates to what type of pleasure qualifies as hana'a.  Rabbeinu Chananel quotes the case of "tinfa peirot," which he understands as fruit sullied by animal's excrement.  In this case, the animal derives pleasure by relieving itself and not directly from the fruit, nor its damage.  Nevertheless, the Bavli (Babylonian Talmud) classifies "tinfa peirot" as a tolada of shein.  Therefore, although Rabbeinu Chananel requires actual hana'a, the fact that he includes this case, shows that he considers any type of hana'a to be shein.  For Rabbeinu Chananel too, hana'a may be a mere classifying factor.  Hana'a is required, but any sort suffices. 
Thus, according to both Rashba and Rabbeinu Chananel hana'a le-hezeika may very well be a mere classifying criterion; it does not necessarily reflect a unique type of chiyuv (obligation).  Despite its being an independent av, shein may be inherently like other avot nezikin.
2) Tosafot Shantz: Limited Scope / Distinct Culpability Base
Most Rishonim, though, reject Rabbeinu Chananel's inclusive definition.  The Tosafot Shantz (Shita Mekubetzet 3a) assumes that shein requires a scenario in which the damaged object is essential to the hana'a gained.  Thus, since the animal could have relieved itself without damaging the fruit, the case where it did so, is not shein (in fact, it would be defined as tzerorot).  According to Tosafot Shantz, tinfa peirot refers to a case where the animal cools, or comforts, itself by rolling on the fruits.  This case qualifies as shein, since the fruits are central to the hana'a achieved.
Despite the sensibility of Tosafot Shantz's limitation, one wonders what right he has to assume its veracity.  If hana'a le-hezeika functions merely as grounds for classification, shouldn't the presence of any type of pleasure be enough for inclusion?  The basis for Tosafot Shantz may lie in a different understanding of hana'a le-hezeika - one which sees it as the basis for culpability.
As opposed to payment for other avot nezikin, which is rooted in the intent to damage (keren) or damage caused (regel), payment for shein reflects the benefit derived.  The inconceivability of benefit at another's expense, requires the owner of an animal which has derived such pleasure to compensate for damage incurred in the process.  Although the payment functions technically as compensation, its basis is hana'a.
If hana'a is the basis of obligation in the case of shein, we can easily understand why Tosafot Shantz limits shein to situations where the object's damage was central to the hana'a gained.  In compensating for benefit gained, shein relates only to damage inextricably linked to that benefit.
B) Relation to Other Avot of Shor
1) Regel
Such an understanding of shein can be inferred from Tosafot (6b "Shor") who deal with the scope of the petur (exemption from payment) for one who damages hekdesh (sanctified property).  This petur is based on the word "rei'eihu" (his friend - Shemot 21:35), which excludes property belonging to one who cannot be classified as a friend - hekdesh.  At first, Tosafot suggest that the petur apply only to shor, based on the context of the verse.  However, they find grounds for expanding the petur beyond the specific case mentioned by the Torah, via a "ma ha-tzad" (inference from the common denominator of numerous precedents).  Subsequently, Tosafot suggest a logical distinction between shein, which has the characteristic of hana'a le-hezeika, and the other avot.  [Read the Tosafot itself for the full extrapolation.]
The Maharsha (7a "Shor") wonders why Tosafot's logic- based distinction drops regel.  Regel also has a logical base for stringency - "hezeka matzui."  The answer can be found in the Shita Mekubetzet (6b "Od") who bases Tosafot's distinction not on logical grounds for stringency, but rather, on shein's unique nature.  Hana'a le-hezeika signifies shein's culpability as nehene (one who gains pleasure), as opposed to mazik.  In fact, Tosafot's suggestion is to classify it with me'ila (one who benefits from hekdesh), as opposed to mazik.  This, of course, is not applicable to regel, which, like keren, creates responsibility to repair damage (4). 
2) Keren 
If understood such, we can easily understand how the gemara uses hana'a le-hezeika (along with kavanato le-hazik) to reject the possible derivation of shein and keren from each other (3b-4a).  An understanding of hana'a le-hezeika which signifies more than just a classification base, highlights shein's status as a distinct chiyuv (obligation) and thus, not derivable from (or to) keren.
We can now summarize the conceptual distinction between the three avot of shor: regel creates responsibility for damage caused; keren creates responsibility not only by having caused the damage, but for intent to damage; shein forces payment for pleasure derived. 
C) Me-chalya Karna
This understanding of shein accounts for the gemara's suggestion to limit shein to situations of "me-chalya karna" (the damaged article is disposed of in the process).  Most Rishonim (5) explain the term as denoting akhila (consumption) as opposed to other forms of hana'a.  Rashi (3a) explains the gemara's suggested limitation to shein based on the Torah's usage of "u-vi'er" (literally, to consume).  The Rashba ("Shein") explains logically that the suggestion could not be made by regel which generally implies trampling, without a total disposal of the remains.
Our understanding of the nature of shein makes the gemara's suggestion of a limitation even more logical.  Shein's unique linkage to the pleasure gained by the animal, allows us to entertain the thought of limiting its culpability to only the most intense pleasure - akhila.
Interestingly, traces of this original suggestion (hava amina) remain in the maskana (conclusion) as well.  Although all agree that shein applies also to pleasures other than akhila, the Yerushalmi (Jerusalem Talmud) seems to limit the expansion to sicha - a situation in which oil is absorbed by the animal's body.  According to the Yerushalmi (6) even the maskana demands a particularly intense hana'a.  Although it expands shein beyond actual akhila, it limits it to pleasures similar to akhila, in that a substance is absorbed into the body.
Although the Bavli, which includes tinfa peirot as a tolada of shein, clearly expands shein beyond the Yerushalmi's parameters, Rashi seems to apply the logic of the Yerushalmi to it as well.  Rashi (18b "De-dachik"), like Tosafot Shantz, disagrees with Rabbeinu Chananel's inclusion of excrement within shein.  His justification of its exclusion is that shein includes only situations where the animal derives hana'a through direct contact with the damaged object (7).  Rashi's limitation, like that of the Yerushalmi, can be understood in light of our explanation.  Since hana'a for shein is more than just its classification base, but also its grounds for culpability, only intensive/direct hana'ot qualify.
Thus, we have seen a spectrum of opinions regarding what type of hana'a qualifies as shein.  On the one hand, the expansive opinions of the Rashba (even hana'a not realised) and Rabbeinu Chananel (any type of actual hana'a) can be understood even if hana'a functions merely as a means of classification.  Conversely, the limiting opinions of Tosafot Shantz (hana'a for which a damaged object was essential), the Yerushalmi (hana'a where the body absorbs an object), and Rashi (hana'a through direct contact) reflect an understanding of hana'a as the basis of the obligation.
D) Source
The contrary understandings of hana'a's role within shein may be rooted in divergent interpretations of the source for shein in the Torah.  The gemara proves that "u-vi'er" implies shein, from the verse "ka'asher yeva'er ha-galal ad tumo" (" 'galal' is totally swept away." - Melakhim I 14:10).  The proof's weakness lies in the absence of the word shein from the verse. 
Both Rashi and Rabbeinu Chananel concur that the word "galal" implies shein, but disagree over the nature of the implication.  Rabbeinu Chananel (3a - also quoted by Tosafot 2b "Ka'asher") translates galal as a whitish stone and equates a tooth's physical resemblance to that of a galal.  Rabbeinu Chananel's understanding of the source relates only to the tooth's physical makeup, but implies nothing of its mode of function.  Rashi's (3a "Ha-galal") first explanation links the word galal to the root "galah" (to reveal).  This description applies to a tooth, which is sometimes revealed (when the mouth is opened).  This explanation, like that of Rabbeinu Chananel, relates only to physical circumstances and not to the nature of the damage incurred.
Rashi's second explanation, though, reinterprets the word galal as feces.  Based on this translation, Rashi explains that shein creates feces by devouring, which allows for the digestion of food.  According to Rashi the comparison lies in shein's product.
The argument between Rashi and Rabbeinu Chananel regarding shein's source would account for their argument regarding its scope.  Since according to Rabbeinu Chananel the source in no way implies a certain result, any type of hana'a can be classified as shein.  According to Rashi, though, the source assumes shein to be the consumption of an object.  The limitations of shein, both by the original proposal, to akhila, and the Yerushalmi's maskana to akhila and sicha, could be rooted in this understanding of the source (8).  Rashi's understanding of the Bavli's maskana does not require much of a stretch.  Although the maskana no longer demands actual consumption, it requires at least physical contact.
III) Two Tracks
We have seen therefore that there are two possible approaches to the relationship between shein and other mazikin, especially regel.  The Rashba and Rabbeinu Chananel may view shein as inherently similar to other mazikim (the difference lying in classification only); while Tosafot Shantz, the Yerushalmi, and Rashi view it as intrinsically distinct - rooted in hana'a, not nezek.
Obviously, the two possibilities are not mutually exclusive.  In fact, one opinion quoted by the Me'iri feels that they both co-exist.  As opposed to our sugya's maskana, which seems to reject the hava amina's limitation of shein to me-chalya karna, the gemara on 23b seems to accept it (9).  The Me'iri (3a "Ve-yeish") quotes another opinion which utilizes the context of our sugya - "shalach sheluchei" (an animal sent by its owner to damage) - to resolve the two sources.  It asserts that shein applies in situations of either me-chalya karna (23b) or shalach sheluchei (3a).  Accordingly, if the animal was not sent by its owner, it is only responsible for actual akhila (me-chalya karna).
These two tracks reflect distinct chiyuvim.  While the chiyuv for shalach sheluchei, derived from the Torah's formulation of regel, clearly falls under the principle of mazik, the chiyuv for me-chalya karna could be rooted in hana'a.  According to this approach, the maskana maintains the exact position of the hava amina concerning the chiyuv of hana'a.  Indeed, hana'a applies only when the animal consumes the object.  There do exist other cases of shein for which one is culpable, but these are not based on hana'a.
(1) Tosafot ("Tenu") justify the insertion of the beraita as supplying background information for the analysis of Rav Papa's statement.  The fact that the gemara feels no need to quote beraitot to introduce the second part of its analysis (which relates to bor, eish, and adam), highlights the mention of this beraita as intending to contribute more than just raw data. 
(2) Our mishna's stance regarding the relationship hinges on the machloket between Rav and Shmuel regarding "mav'eh" (3b).
(3) See Maggid Mishneh (Nizkei Mamon 1:10) and note 85 on the Rashba.
(4) See Kuntresei Shiurim (Rav Gustman) 4:7.
(5) Tosafot (3a "Ha"), Rabbeinu Chananel.  Rashi (3a "Idi") distinguishes within akhila itself.  See Kuntresei Shiurim 4:5 for explanation.
(6) Ad loc.
(7) See Yisa Berakha (3a) who explains Rashi this way.  See also Rav Akiva Eiger's commentary on the mishna (1:1), who explains Rashi a bit differently.
(8) A similar application of the source le-maskana can be seen in the rejection of the Rashba by Talmidei Ha-rashba Ve-harosh (quoted in note 85 on the Rashba 2b).  They use shein's source, "u-vi'er," as the basis for limiting shein to cases of actual hana'a.
(9) The Me'iri quotes an opinion which, based on the gemara on 23b, actually rejected the maskana of our sugya.  See also Rashba (23b "Ha") who explains that gemara otherwise.
Next week's shiur will attempt to define the unique characteristic of regel.
Sources and Questions for next week's shiur:
1. 3a until "toleda de-regel ke-regel."
2. Rashi 2b s.v. regel, 3a s.v. kol hezek.
3. 16a "ve-lo lirbotz…ha-ze'ev."
4. Rashba 2b s.v. u-farik hani mil, "Ve-savur ani she-af nachash…."
1. What is the unique characteristic of regel?
2. Why does this characteristic not apply to shein in which an animal is behaving in a normal fashion?
3. Why does the Rashba suggest that a snake bite fall under the category of regel, even though the snake derives certain pleasure from biting?
4. Is there logic behind the gemara's initial assumption that liability for regel (as opposed to shein and keren) is only when the animal was actually sent by the owner?