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Tzerorot (part 2) Are Tzerorot Payments Capped by the Mi-Gufo Limitation

  • Rav Moshe Taragin



By Rav Moshe Taragin




In loving memory of Channa Schreiber (Channa Rivka bat Yosef v' Yocheved, z"l),
with wishes for consolation and comfort to her dear children
Yossi and Mona, Yitzchak and Carmit, and their families,
along with all who mourn for Tzion and Yerushalayim.



Shiur #05: Tzerorot (part 2)

Are Tzerorot Payments Capped by the Mi-Gufo Limitation



Rava Bava Kama (18a) poses an interesting question about the payment process of tzerorot. This question may be a limited question about payment, but it may possibly open a new vista toward understanding the nature of tzerorot.


Generally, mazik payments constitute full restitution for damage. Implementation of chatzi nezek – half damage restitution – is almost entirely limited to cases of “keren. In a situation of keren tam in which half damages are required, payments are limited by the VALUE of the mazik (“mi-gufo”). The payments, chatzi nezek to begin with, cannot exceed the value of the mazik. For example, if a animal of low value were to damage highly valuable items as a tam, performing the nezek of keren, the assessed half damages would be capped by the animal's value and may not reach half the value of the actual loss. Rava asks whether the half payment in cases of tzerorot would be similarly capped by the value of the tzerorot performing animal. 


On first glance, Rava's question seems to yield an obvious answer. Mi-gufo is a limitation or leniency specifically designed for KEREN TAM and should not apply to tzerorot, whose identity as a tolada of regel is a given. The gemara (3b) already firmly established that tzerorot is a tolada of regel. Aside from the limited payment in cases of tzerorot, we would not anticipate any differences between tzerorot and its parent regel.


Perhaps Rava was not questioning the identity of tzerorot (keren vs. regel), but rather the applicability of the mi-gufo exemption to broader cases. Perhaps Rava's question was whether mi-gufo was stated for keren cases alone or if it serves as a paradigm for multiple applications of chatzi nezek. Is mi-gufo a parochial “kerenhalakha, or can it be exported to non-keren chatzi nezek payments, such as tzerorot?


In truth, there are very few non-keren chatzi nezek payments other than tzerorot to probe this question. However, an inverse situation may provide some insight. Would the mi-gufo clause apply to keren tam payments of nezek shalem? There are several unique instances where even keren tam may pay full restitution. Would mi-gufo still limit these payments, or would mi-gufo not apply since full payments are rendered? If keren tam nezek shalem IS LIMITED by m-igufo, it may indicate that mi-gufo is a KEREN TAM issue independent of chatzi nezek. Therefore, as a PURELY KEREN TAM issue, it cannot be extended to non-keren payments, such as tzerorot. However, if mi-gufo WOULD NOT APPLY to keren tam nezek shalem cases, it may indicate that mi-gufo is linked to chatzi nezek in general, and NOT KEREN TAM in particular, and therefore may be applied to NON-KEREN chatzi nezek payments. 


This question arises on 5a, where the gemara cites R. Akiva, who requires nezek shalem if a keren tam damages a person. The gemara originally assumes that the nezek shalem payments should be unlimited by the mi-gufo clause, but it ultimately cites R. Akiva himself, who dramatically asserts that these payments WOULD BE LIMITED by mi-gufo, even though full payments are made. R. Akiva, at least, viewed mi-gufo as a KEREN phenomenon and not a leniency applicable in all cases of chatzi nezek. He would probably have a more difficult time considering its application to tzerorot.


Similarly, R. Tarfon requires nezek shalem if the keren tam damages occur in a reshut ha-yachid. He never specifically addresses the issue of mi-gufo, but from the gemara's deliberations about his position (18b), it is clear that R. Tarfon would also apply the mi-gufo restriction to his form of keren tam. Again, R. Tarfon probably viewed mi-gufo as connected to keren and un-exportable to tzerorot. Rava, on the other hand, may have been more uncertain regarding this connection and wiling to extend mi-gufo to tzerorot as well, since it pays chatzi nezek even though it is not identified as keren. 


Alternatively, Rava may have been exploring mi-gufo for tzerorot from a different angle. Perhaps the CLASSIC mi-gufo clause as stated in the context of keren is indeed LIMITED to keren. However, perhaps the halakha le-Moshe mi-Sinai that reduces payments to chatzi nezek ALSO CAPS payments through mi-gufo. Mi-gufo of keren is not a template and cannot extend to other case, but perhaps there is an independent mi-gufo exemption INTERNAL TO tzerorot as well, generated by the same lenient tendencies that establish chatzi nezek to begin with. If so, then it may similarly apply a mi-gufo ceiling. 


This is how the Rashba explains Rava's question (see the Rashba's comments to 3b), and it is the approach adopted by several other commentators in explaining the possibility of mi-gufo capping chatzi nezek payments. Of course, this assumes that the Halakha le-Moshe mi-Sinai of tzerorot was a source of kula, leniency, and not the opposite; the tzerorot situation should really require full restitution, and the Halakha le-Moshe mi-Sinai reduces payments to chatzi nezek. Indeed, many Rishonim (see Tosafot 3b) viewed the Halakha le-Moshe mi-Sinai concept as a payment reducer, lending credibility to this reading of Rava. In fact, Rava himself (Bava Kama 17b) had already summarized his view of tzerorot by claiming that cases of kocho (indirect actions) are fundamentally considered gufo (as if the animal itself performed the action), and therefore should, in reality, require full restitution. However, the Halakha le-Moshe mi-Sinai reduced payments to half. Based on this, it is possible that Rava further speculated that the Halakha Le-Moshe mi-Sinai would impose mi-gufo limits as well. 


We have presented thus far two different options of explaining the possibility of applying mi-gufo limits to tzerorot. According to both of these explanations, the mi-gufo clause does not reflect any keren-like tendencies in tzerorot; the tzerorot phenomenon is based purely on its being indirect, not UNUSUAL  or IRREGULAR as keren. Mi-gufo may be applied to tzerorot DESPITE its differences from keren. According to the first explanation, mi-gufo is applied to ANY  reduced payment and is not a sub-clause of keren specifically. Alternatively, the Halakha le-Moshe mi-Sinai of tzerorot applied the mi-gufo cap as part of the general clemency applied to tzerorot. 


There is, however, a third option which may dramatically alter our view of tzerorot. Perhaps Rava was actually questioning whether tzerorot and keren are truly dissimilar. Tzerorot, like keren, may be considered "unusual;" the difference between tzerorot and conventional regel damage is not only the level of indirectness. Indirect damage is also irregular, and that DEVIANCE generates chatzi nezek. Without the Halakha le-Moshe mi-Sinai, we would not have assumed that such a slight irregularity would be meaningful. Once the Halakha le-Moshe mi-Sinai was asserted, tzerorot becomes a hybrid of regel and keren, and it is its keren tendencies that lead to its chatzi nezek reduction. If this is true and the payments reflect qualities of keren, perhaps additional halakhot of keren would apply – such as mi-gufo. 


This possibility of viewing tzerorot as not only indirect but irregular seriously challenges the conception of tzerorot as a pure tolada of regel. From this viewpoint, tzerorot would be considered a blend of keren and regel, absorbing halakhot of each. The (seemingly) unanimous exemption from payment in a reshut ha-rabbim (see Bava Kama 3b) would reflect the regel qualities, while the chatzi nezek payments would reflect its keren roots. Based on this dichotomy, Rava wonders whether the additional keren halakha of mi-gufo should apply to tzerorot as well.


This approach would force a reconsideration of Bava Kama 3b, which cited Rava's doubt about mi-gufo and contrasted it with R. Pappa's certainly that mi-gufo DOES NOT apply. That gemara seems to indicate that everyone accepts that tzerorot stems from regel; even Rava, who questioned the mi-gufo issue, would agree that one is exempt from damages in a reshut ha-rabbim in the case of tzerorot, as in regel. It would thus seem that tzerorot is firmly aligned solely with regel and has no keren roots.


In truth, a more careful reading of that gemara may demonstrate the ambivalence regarding tzerorot's status. The gemara wonders why tzerorot is affiliated with regel, and responds by identifying halakhot that tzerorot shares with regel. R. Pappa accepts two examples (exemption in reshut ha-rabbim and the inability to apply the mi-gufo cap), while Rava accepts only one regel-like halakha (since he may, in fact, require the non-regel mi-gufo cap in tzerorot cases). The gemara NEVER claims that tzerorot is INHERENTLY similar to REGEL because it exhibits no IRREGULARITY like keren. The gemara identifies halakhot that tzerorot shares with regel, not basic similarities. The gemara may be asserting that structurally, tzerorot is NOT PURELY regel, but rather a blend of keren and regel. The Halakha le-Moshe mi-Sinai clearly associates the HALAKHOT of tzerorot with those of regel, and the gemara therefore searches for those overlaps, but it is clear that tzerorot can not be INHERENTLY identified with regel, as it possesses strains of keren based on the IRREGULARITY of indirect damages.