I have a kasha on the pshat (which I think this is what T is saying), and is the main pshat of the sugya on why you would be chayav, if you push the top animal instead of pulling the bottom animal out. The implication is that the reason is a greater chance of killing the animal if you push the top one than if you pull the bottom one away. But certainly there is a chance that it can die if you pull the animal from the bottom. The reisha gives that as an example.
So accordingly, in the seifa, when the Gemara says you are chayav if you push the animal on top - how can the Gemara mechayev you? You killing the animal is an act that is mutar. You are allowed to take the law into your hands. The question is did you kill the animal when you didn't have to? So the person who took the din into his own hands, is the muchzak, he can just taina hamotzi mechvero alav haraya. Prove to me if I used the other way of pulling the animal from the bottom, it wouldn't kill you animal? You have to prove it to me. You cannot mechayve me to pay because I chose a riskier method. I am not a vadai mazik. I am a safeik mazik. Maybe it would have died the other way as well. The burden of proof is on you.
For example, if someone is a rodef, and instead of using a small gun I use a bigger gun that has a higher chance to kill him, and I do kill him. Would that be considered murder? I don't think so. At minimum, I wouldn't be chayav misa.
So too here the animal is a rodef.
Maybe you want to say that when once you killed the animal in a risky way, the burden of proof is on you to demonstrate that you would have killed it even using the non-risker way. But look at the Mishna in Bava Kama 35a it says:
If the injured animals were two oxen, one large and the other one small, and the ones that caused the damage were also two oxen, one large and one small, and the injured party says: The large one injured the large one and the small one injured the small one, and the one liable for damage says: No; rather, the small one injured the large one, in which case, if half the value of the belligerent ox does not cover half the damage, he is not required to pay more, and the large one injured the small one; or, similarly, if one of the belligerent oxen was innocuous and one forewarned, and the injured party says: The forewarned ox injured the large one, and the innocuous ox injured the small one, and the one liable for damage says: No; rather, the innocuous ox injured the large one and the forewarned ox injured the small one; here too, the burden of proof rests upon the claimant.
Thus, we see in the case where the person was a vadai mazik on the smaller value, but a safeik mazik on the higher value, the Gemara still says that he is the muchzak and the burden of proof is on the one who is trying to get money from him. Kal v'chomer if in our case where he doesn't even have the status of a vadai mazik at all, just a safeik mazik, he would not forfeit his status as a muchzak.
Menachem Zaman, Sherman Oaks
1) I will just make a quick comment about a side point, which is connected to Masechet Sanhedrin, not to Masechet Bava Kama. This is about using the small gun against the rodef, not the big gun. This reminds me of the Gemara Sanhedrin top 74a where Rabbi Yonatan ben Shaul said that if the pursued person could have been saved by maiming the rodef in one of his limbs; but instead the savior killed the rodef, the savior is killed for doing so. The Rambam Hilchot Rotzeach 1:13 writes that anyone who could have saved the rodef by maiming him, but did not go to this bother, and instead killed the rodef, has spilt blood and is chayav mitah but the Beit Din do not kill him.
Therefore it seems that if the small gun could have done the job without killing him, but instead he used the big gun, he is chayav mitah.
2) The Meiri writes that if he would have pulled out his own ox from underneath it is not "metzuyah"; likely; that the ox on top would have been killed. According to the Meiri the likelihood that the upper ox will die if he is pushed is considerably higher than the likelihood that he will die if the bottom ox is removed. He cannot argue Hamotzi mechevero alav haraya when he possessed a way of acting without causing damage to others, and instead chose a different way.
3) The SM'A, on Choshen Mishpat 383:6, writes that it is not the bottom ox that he should have removed, but rather he should have removed the top ox gently. He should not have pushed it forcefully and caused its death. Again one sees from the SM'A that if it is possible to act in such a way that does not damage anyone, one is not allowed to take the law into your own hands.
4) I will bring, bs'd, another proof that killing the top ox is not an act which is mutar. This is from Tosfos 28a DH Meshaber who writes that the reason that he must remove the ox is because there is no extra trouble involved in removing the ox rather than pushing the ox. One learns an important rule from Tosfos:- one is not allowed to take the law into one's hands when one can act in a different, and less damaging, way without having to go to a tircha by adopting the alternative way.
5) There is still a point which should be understood even according to the above rule concerning the limits of "Avid Inash Dina leNafshei". Even though he should not have pushed the ox but bedieved, if he did, why can he not argue that even if I would have done it the correct way, the ox might have still died, so you have no proof that I caused any damage? This of course is your argument, Menachem.
6) According to the Meiri I cited above, it seems that we also have a limitation on the rule of Hamotzi MiChavero Alav Haraya. The Meiri writes that if he would have pulled out the bottom ox, the death of the top ox would not have been "Metzuyah". For the sake of example I will make up some percentages. Let us say that there is a 80% chance that the top ox will die if pushed, and a 20% chance that it will die if the bottom ox is removed. Since there is a very significant difference between these percentages, we longer apply the rule of Hamotzi Mechavero Alav Haraya. Or we can express this slightly differently and say that a difference of 60% is a sufficient proof with which to be able to take out money from the pocket of someone who pushed the ox, in contradiction to the rule stated by Tosfos that one may not take the law into one's own hands when one has an easy alternative way. The Beit Din does not always require a 100% proof in order to make a person pay up.
There is still a lot to discuss on this sugya but I will close here for the moment.
Shabbat Shalom
Dovid Bloom
A different approach:
1) Menachem, I posed your question to a Talmid Chacham, and he had a different way of looking at the sugya. I started off with the assumption that one is not allowed lecatchilah to push the top ox. This is based on the Tosfos 28a DH Meshaber that I cited in my last reply, that since there is no more trouble involved in removing the ox rather than pushing it, it follows that one may not push it. My question started by admitting that I was not allowed to push the ox, but now that I did so, why can I not argue that the ox would have died even if I would not have pushed it, but rather removed the bottom ox (which is the explanation of most Mefarshim, unlike the SM'A)?
2) The Talmid Chacham answered that when somebody damages, we look at the damage he did at the present moment and do not say that if he would not have damaged then something else would have happened to commit the loss that he incurred. For instance, if a thief stole items from a house and then an hour later a terrible fire burnt down the house, we do not say that if he would not have stolen it, anyway they would have been lost so he is exempt from paying. Instead we look at what happened at the present moment, and when he stole them they were valuable, so he must pay. [and it transpires that the owner of the house is actually happy that they were stolen, because now he is repaid by the thief].
3) The proof for this is from Bava Kama 17b where Rava said that if someone threw a kli off the roof and someone else came and broke the kli on its way down with a stick, the second person is exempt because he broke "a broken vessel", since it was doomed already. However Tosfos DH Zarak writes that if A threw a stone on a kli and B broke the kli before the stone reached it, it is obvious that B must pay. Tosfos writes that there is an obvious difference between throwing a kli off the roof, and throwing a stone on the kli.
4) If we apply the above Tosfos to the scenario where the top ox jumped on the bottom ox, it seems clear that the top ox is not similar to a kli thrown off the roof. The top ox is far from doomed if one removes the bottom ox. Therefore the person who pushed the top ox, is similar to the person who broke the kli on which a stone had been thrown, before the stone arrived; where according to Tosfos the person whio broke the kli is chayav to pay.
KOL TUV
Dovid Bloom
Shalom Rav,
As always, thank you for taking the time to help me. I share everything you write to me with my Rebbe for shiur and it helps spawn additional discussions and insights. And I read over your answers many times. And I file it away so that when with the help of G-d one day I will give shiur, I will share your answers with with them as well. And finally, I take your answers as seriously as when my Rebbe gives shiur. It's been a critical part of my learning. So thank you again Rav.
Here is my response to the points you made in your first answers:
1) - This is not analogous to my case. Because in this case if you use the big gun, you will vadai kill the rodef. In contradistinction to the Braisa, if you pull your animal from the bottom, it's a safek that you will kill the animal.
2) - Why is it in this case we lower the standard to matsuya to extract money? I'm not sure how the Meiri explains this . . .
3) - I appreciate the Sm'a seemingly asserts the logic above that matsuya is sufficient, but I still don't understand why?
4) - But why should that mechayev me to pay when I merely took the riskier approach? It's a chiddush which doesn't fit into the conventional svara of hamotzi lechaveyro . . .
Menachem, thank you for your very kind words. The main learning is the shiur with your Rebbe, and I try and make a useful comment here and there.
1)
(a) Let us try and compare a scenario about Rodef which is parallel to the case in our Gemara.
(b) Ox A which jumped on Ox B would be parallel to a human A who chased a human B with the intention of murdering him. If one directly attacks A there is a 80% chance that this will kill him (in the same way that we might claim that if one pushes Ox A there is a 80% chance that this will kill the ox). There may be a scenario where there is a possibilty of removing person B from the collision course that person A has planned for him. If one succesfully removes B then A might fall into a pit instead of hitting B and there is a 20% chance that A will be killed by the fall into the pit.
(c) What I have tried to do is to set up a scenario where striking Rodef A has a 80% chance of killing him directly whilst following an indirect course has a 20% chance of killing him.
(d) I now go to the Gemara Sanhedrin 74a that I cited in my first reply, and I will look at how it is paskened in Shulchan Aruch Choshen Mishpat 425:1. Shulchan Aruch writes
"If A is pursuing B in order to kill him, the whole of Yisrael are commanded to save B by maiming A in one of his limbs. If they cannot aim so accurately, and are unable to save B without killing A, then they should kill A".
(e) We learn from the Shulchan Aruch that the proper way of fulfilling the Mitzvah of saving the pursued is to incapacitate the pursuer. It is only if one cannot do this, that one is allowed to kill A.
(f) We see therefore that one has to try not to kill the Rodef if there is another option. I therefore argue that in the scenario where a direct strike would have a 80% chance of killing the rodef, it follows that one is obliged to follow the indirect couse of action which has a 20% chance of killing him. In addtion I assert that if one followed the 80% option this would be considered as murder since in the majority of cases it will kill.
(g) To return to our Gemara, if pushing Ox A has a 80% chance of killing it, this would be considered direct damage.
Shavua Tov
Dovid Bloom
Follow-up reply:
2) I must concede that up to now I was not thinking at all that the pshat in the Meiri is that we follow a rov, even to extract money, if the rov is ita kaman (which Terumat Hadeshen #314 discusses. This Terumat Hadeshen is cited by Rabbi Akiva Eiger in several places; see Teshuvot R. Akiva Eiger first edition #106 DH Gam Hineni and second edition 103:5), but it now seems a very good pshat.
The Meiri explains that it is not Metzuya that the top ox will die if one removes the bottom ox. However it is Metzuya that the top ox will die if one pushes it. This means that if one pushed the top ox this makes a rov that it will kill it and one can make a person pay up on the basis of a ruba d'ita kaman.
Behatzlachah Rabah
Dovid Bloom
Shalom Rav Bloom,
I appreciate this new perspective. Two points:
My Rebbe commented that this perspective only works according to T's pshat of basar m'ikara. But according to the Ketsos's understanding of the Rosh, he would say that you can hold basar m'ikara on something that will be damaged in the future and is not in the process of being damaged.
And also, this answer would not explain our question in zeh neheneh zeh lo cheser on why can't the squatter taina "prove to me your place can be rented out."
1) The Nimukei Yosef (7a in the pages of the Rif, DH GM' Ukaf) cites the Rosh as agreeing with Tosfos.
2) The houseowner will reply to the squatter that the Rema in Shulchan Aruch (Choshen Mishpat 363:6) writes that nowadays most houses can be rented out. If you argue that we do not follow the majority in monetary matters, I will answer you that the Terumas ha'Deshen (#314, in the amendment there) cites a Gilyon Tosfos in Bava Basra 93 that Shmuel agrees that for a Ruba d'Isa Kaman we do follow the majority in monetary matters. The fact that most houses here can be rented out is Isa Kaman because we know how many houses for rent there are in this city.
Yeyasher Kochacha,
Dovid Bloom