Dear Kollel Daf Hayomi,
I have been researching the issue of Grama B'Nezikin.
The Gemara (Bava Basra 22b) says that Grama B'Nezikin is Assur.
The Gemara also says (e.g. Bava Kamma 60a) that Grama B'Nezikin is Patur.
We also have the concept of Patur M'Dinei Adam V'Chayav B'Dinei Shamayim (see Bava Kamma 55b and Rashi D"H Patur M'Dinei Adam).
These Halachos seem to be taken as a davar pashut. The Gemara never asks, M'Na Hani Mili.
So, You could you please tell me how the Gemara knows these halachos?
Thank you.
Barry Robinson, Cong. Or Torah, Skokie, Illinois
(1) Yad Ramah Bava Basra 26a (#107) writes that the source that Grama b'Nezikin is forbidden is:
(a) From the verse (Vayikra 19:14) that one must not place a stumbling block in front of the blind. Reb Elchonon Wasserman zt'l in Kovetz Shiurim Bava Basra #77, points out that Minchas Chinuch Mitzvah 232:5 discusses whether the above verse can be taken literally. However one sees from the Yad Ramah's words that he does take this verse literally since he writes that the Torah commands us not to place an obstacle in front of the blind because this causes him to slip up. Even though this does not directly damage him, nevertheless it is forbidden mid'Oraisa because it causes him damage - Grama b'Nezikin.
(b) From the verse (Vayikra 19:18) "You shall love your fellow man as yourself". Since a person does not want that he himself should be damaged, therefore he is prohibited even to cause indirectly that his friend should be damaged, because the result of his negligent actions is undesirable.
Kovetz Shiurim ibid. #74 provides additional sources:
(c) Even if one fellow's property is being damaged on its own, one is obligated to save it because of the Mitzvah of returning someone's lost object to him. Therefore one is certainly not allowed to cause damage to a fellow's belongings. (This source is also mentioned by Rashash Kesuvos 18b).
(d) The Gemara Shabbos 31a states that the entire Torah is included in the teaching "Whatever is hated by yourself- do not do to your fellow".
(2) The fact that Grama b'Nezikin is exempt can be derived from Vayikra 24:21 "Someone who strikes an animal must pay the damage". This teaches that Beis Din can only make him pay if he actively damaged, while indirect damage is Patur. The Torah only obligated payment for a person's direct actions.
(3) The fact that a person is liable in the Heavenly Beis Din for the indirect damage he caused follows since he did something forbidden. Since the Earthly Court does not possess the power to punish him, the Beis Din in Shamayim will punish him instead for the damage he caused to a fellow through his transgression of the Torah.
Kesivah u'Chasimah Tovah
D.Bloom
Dear Rabbi D. Bloom
Thank you so much for your answer to my previous questions regarding Grama B'Nezikin.
My follow-up question is as follows:
It would appear that digging a Bor Birshus Harabim is only a Grama. You do not directly strike the animal nor does your Koach send the Bor to the Nizak because that would be Aish.
Furthermore, it is not Garmi because
a) you didn't touch the Nizak's animal directly
b) and it is not Bori Hezaka - the animal might not fall into the Bor
c) and the Nezek does not necessarily happen immediately after your action of opening the Bor.
Despite all of this, we know that Bor is one of the Avos Nezikin and you are Chayav B'Dinei Adam.
Why, then, doesn't the Gemara use Bor as a Binyan Av for all other cases of Gerama B'Nezikin and say that Gerama should be Chayav B'Dinei Adam too.
Thank you again for all the wonderful work that you and the Kollel do for Klal Yisrael.
Ksiva V'Chasima Tovah.
Barry Robinson
There is an obvious distinction - the Petur of Grama b'Nezikin is only applicable for "Adam ha'Mazik" - if a person damages - whilst Grama is not a reason to be exempt if one's possessions damage ("Mamon ha'Mazik").
See Nimukei Yosef (1a in Rif Pages DH Arba'a) who writes that Bor is considered "Mamon" - it is a person's property. Even if he was "Mafkir" the area where the pit is situated, the person who opened or dug the Bor is still referred to by the Torah (Shmos 21:34) as the "owner of the Bor".
The Gemara 29b states that a Bor in the public domain is not in the owner's possession but the Torah put it in his possession. Rashba (end 2a) writes that since the Torah put the Bor into his possession it also made it into his Mamon.
Therefore according to Rashba and Nimukei Yosef, Bor is considered Mamon ha'Mazik. There is no Petur of Grama for Mamon ha'Mazik because for the latter one is not liable because of the action one did, but rather because of the damage that one's property did, which is always similar to Grama because the human never does the damage directly.
Even according to Tosfos (3b DH u'Mamonecha) that the Bor is not considered the owner's Mamon, nevertheless it is in his possession, as Gemara 29b says, and he is considered the "Ba'al Ha'Takalah" (the owner of the obstruction) - see Sukas David 3b,#47. Therefore it is not similar to Adam ha'Mazik, and Grama is also liable in Beis Din.
Yeyasher Koach
D. Bloom