If the shor on top was not a goring shoring, and you removed your shor from the bottom and killed the top shor. Would that be a garmi or a considered an actual maisa?
Could the Rav please elaborate?
Menachem Zaman, Jerusalem, Israel
1) My initial reaction to this question was that this cannot possibly be an actual Ma'aseh because the person who removed the bottom Shor did not actually touch the top Shor.
2) However, I then saw in the Rema (Shulchan Aruch, Choshen Mishpat 383:2) that he cites in the name of the Rosh the following Halachah, which is similar to that of our Gemara: Reuven owned a barrel which was about to fall, so Reuven took a Kli belonging to Shimon and used it to support his barrel. Shimon came along and took away his Kli, and as a result the barrel fell and broke. The Rosh ruled that Shimon is liable for what he did because he should have supported the barrel with some other object rather than taking his own Kli without providing a substitute means of support.
3) The Sm'a (Sefer Me'iras Einayim), Choshen Mishpat 410:44, explains why, according to the Rosh, Shimon must pay. It is because -- when he took away the support -- the barrel broke immediately. The Sm'a adds that this means that "Havei Lei k'Hiziko b'Yadayim" -- "it is as if he damaged him with his own hands." The words used by the Sm'a, "Hiziko b'Yadayim," suggest that it is a direct action, so the Sm'a does seem to be saying that it is an actual Ma'aseh.
4) It is possible that one could suggest that there is a distinction between the scenario of the Rosh and that of the Gemara because the Kli of Shimon was actually touching the barrel of Reuven, so this is considered as direct damage, while the bottom Shor never actually touched the top Shor. However, it seems more likely to me that the Sm'a is telling us that damage which happened instantly is even worse than Garmi and is considered an actual Ma'aseh. According to this, even though the bottom Shor did not touch the top Shor, since the top Shor fell to its death instantly this is considered Hiziko b'Yadayim.
5) This matter requires further study.
Kol Tuv,
Dovid Bloom
Shalom Rav Bloom,
Thank you for such a beautiful answer!
I asked a question previously to you regarding garmi and based on the answer you gave me then: you loosely defined garmi as any damage that is done directly or immediately by the person. (This is also how the Artscroll in Bava Kama 62a note 18 describes garmi as well).
Accordingly, what I see from your answer is that the gever never touched the top ox, but because the damage was done directly and immediately, it's considered a maisa.
So that means putting your two answers together this is the rule we have on what is considered a maisa, garmi, grama.
Maisa: 1) A damage that was physically done by you (e.g. kicking an animal) 2) A damage that was not a result of your physical force, but was caused by you directly and immediately (e.g. moving the bottom ox from the top ox Bava Kamma 28.).
Garmi: A damage that was caused by you either directly or immediately (locking someone in their house which does not let them work Bava Kama 85a).
Grama: A damage that was caused indirectly or delayed.
Would the Rav agree with this analysis?
This is an interesting analysis, and we are moving in the right direction, but the only problem is that there is no real difference between your rule #2 of Ma'aseh and Garmi. I suggest that the difference between the two categories is the time-delay between the cause and effect; or instance, in Bava Kama (100a) we learn that if the fence between the wheat field and the vineyard fell down, if one does not mend it this is considered Garmi because the wheat and the grapes will inevitably mix together and become forbidden because of Kil'ayim. However, this is only Garmi because it takes a while before this happens. We learn that Garmi does not have to happen immediately. In contrast, moving the bottom ox is called a Ma'aseh because the damage happens instantaneously.
Kol Tuv,
Dovid Bloom