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@YisroelKatz posted on Wed Dec 16, 181 days ago

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בס"ד
WHERE HE HEARD THE ROAR OF A LION AND ENTERED THE TOWN TO SAVE HIMSELF. IF SO, WE ASSESS HIM, WHAT COULD HE HAVE DONE DIFFERENTLY, HE SHOULD HAVE CONFRONTED THE LION WITH OTHER SHEPHERDS AND STICKS!

דשמע קל אריה ועל אי הכי אומדין אותו מאי הוה ליה למעבד היה לו לקדם ברועים ובמקלות

THUS, HIS RUNNING TO TOWN IS CONSIDERED TO BE AN UNAVOIDABLE MISHAP
רש"י RASHI
AND IN HIS PANIC, HE COULD NOT HAVE BEEN EXPECTED TO TAKE THE FLOCK WITH HIM TO TOWN
(RITVA).
CERTAINLY, THE SHEPHERD HAS A RIGHT TO ESCAPE THE DANGER TO HIS PERSON POSED BY THE אריה LION (ליון) THEREFORE, EVEN IF WE DETERMINE THAT HE WOULD HAVE BEEN ABLE TO FEND OFF THIS PARTICULAR שחל LION (ליון) HE SHOULD NOT BE HELD LIABLE.
[FOR AT THE TIME HE HEARD THE ארי LION (ליון) ROAR, HE HAD NO WAY OF KNOWING HOW LARGE A כפיר LION (ליון) IT WAS, AND HE WAS PERFECTLY JUSTIFIED IN ESCAPING TO SAFETY (RAAVAD, CITED IN SHITAH MEKUBETZES).]
HE SHOULD HAVE SUMMONED NEIGHBORING SHEPHERDS TO HIS AID, FOR BY PRESENTING A UNITED AND ARMED FRONT, THEY WOULD HAVE BEEN ABLE TO FEND OFF THE לביא LION (ליון) AND THIS IS WHAT THE BARAISA MEANS BY, "WE ASSESS HIM - IF HE WOULD HAVE BEEN ABLE . . . ," I.E. IF HE COULD HAVE SUMMONED HELP BUT FAILED TO DO SO, HE IS LIABLE FOR HIS NEGLIGENCE, AND IF NOT, I.E. HE COULD NOT SUMMON HELP, HE IS NOT LIABLE (TORAS CHAIM). CF. RAAVAD LOC. CIT., WHO PROPOSES A DIFFERENT EXPLANATION OF THE GEMARA, CITED BELOW IN NOTE 21.
THIS BARAISA APPEARED IN THE BARAISA COMPENDIUM TOGETHER WITH THE TWO BARAISOS CITED ABOVE, WHICH DEAL SPECIFICALLY WITH A PAID SHOMER. THEREFORE, THE ASSUMPTION IS THAT THIS BARAISA, TOO, REFERS SPECIFICALLY TO A PAID SHEPHERD (RASHBA IN THE NAME OF RAAVAD; SEE NEXT NOTE FOR AN ALTERNATIVE EXPLANATION)
21. [THEREFORE, THE BARAISA SPOKE SPECIFICALLY OF A PAID SHOMER (SEE PRECEDING NOTE) IN ORDER TO TEACH US THAT THERE IS A FORM OF SUMMONING AID INCUMBENT UPON THE PAID SHOMER THAT IS NOT INCUMBENT ON THE UNPAID SHOMER; NAMELY, LAYING OUT ONE'S OWN FUNDS TO OBTAIN THE NECESSARY AID.] WE HAVE EXPLAINED THE GEMARA IN ACCORDANCE WITH THE COMMENTS OF TORAS CHAIM, SINCE THAT EXPLANATION IS THE ONE THAT EMERGES FROM A SIMPLE READING OF THE GEMARA, AND - IF IT WAS THE EXPLANATION ADOPTED BY רש"י RASHI - WOULD ACCOUNT FOR HIS LACK OF COMMENT ON THIS DISCUSSION OF THE GEMARA. ONE DRAWBACK OF THIS EXPLANATION, HOWEVER, IS THE GEMARA'S ASSUMPTION THAT THE BARAISA DEALS EXCLUSIVELY WITH A PAID SHEPHERD, WHICH DOES NOT SEEM TO BE INDICATED ANYWHERE IN THE WORDING OF THE BARAISA. [THE COMMENTS OF RASHBA, CITED IN NOTE 20, ARE DIRECTED AT PRECISELY THIS PROBLEM.] TO RESOLVE THIS PROBLEM, RAAVAD (CITED IN SHITAH MEKUBETZES) PROPOSES AN ENTIRELY NEW INTERPRETATION OF THE GEMARA. ACCORDING TO RAAVAD, THE ISSUE IS NOT WHAT TYPE OF SHOMER THE BARAISA IS REFERRING TO, BUT RATHER WHAT LEVEL OF LIABILITY IS CAUSED BY HIS OBLIGATION TO HAVE CONFRONTED THE ATTACKER WITH SHEPHERDS AND STICKS. AND THE GEMARA IS TO BE EXPLAINED AS FOLLOWS - RABBAH רבה EXPLAINED THAT THE BARAISA REFERS TO A SHEPHERD WHO ENTERED THE TOWN AT AN UNUSUAL TIME BUT DID SO FOR FEAR OF A LION ליון WHOSE ROAR HE HAD HEARD. ABAYE אביי RETORTED THAT IN SUCH A CASE, THE SHEPHERD COULD NOT BE FAULTED AT ALL, TO WHICH RABBAH רבה REPLIED THAT "HE SHOULD HAVE CONFRONTED THE סארו LION (ליון) WITH OTHER SHEPHERDS AND STICKS." THE MEANING OF RABBAH'S RESPONSE IS THAT THE SHEPHERD SHOULD NOT HAVE FLED TO TOWN, BUT SHOULD HAVE MADE A STAND AGAINST THE LION WITH HIS REINFORCEMENTS AND ARMS. AND THOUGH SUCH A STAND WOULD NOT HAVE NECESSARILY INSURED THE DEFEAT OF THE LION AND THE SAFETY OF THE ANIMALS, IT WOULD CERTAINLY HAVE GUARANTEED THE SAFETY OF THE PEOPLE WHO STOOD THERE TO MEET THE LION'S ATTACK. THUS, THE SHEPHERD SHOULD NOT HAVE FLED THE SCENE; BUT IF HE DID FLEE, THEN HIS BEHAVIOR IS NOT ADJUDGED TO BE GROSS NEGLIGENCE BUT RATHER THE LACK OF RESPONSIBLE BEHAVIOR AS OF THE TYPE THAT IS THE CAUSE OF MISHAPS SUCH AS THEFT AND LOSS. ACCORDINGLY, THE GEMARA'S ANSWER IS THAT THE SHEPHERD'S FLEEING OF THE SCENE CANNOT BE DEEMED "A SITUATION THAT BEGINS WITH NEGLIGENCE," WHICH WOULD HAVE MADE HIM LIABLE REGARDLESS OF THE THEORETICAL OUTCOME. RATHER, HIS FLEEING IS SIMPLY A LACK OF RESPONSIBLE BEHAVIOR, IN WHICH CASE HIS LIABILITY DEPENDS ONLY ON WHAT THE OUTCOME WOULD HAVE BEEN HAD HE STAYED. THUS, THE BARAISA STATES THAT IF WE ASSESS THAT HAD HE REMAINED ON THE SCENE (ARMED AND IN THE COMPANY OF REINFORCEMENTS) HE WOULD HAVE BEEN ABLE TO FEND OFF THE LION'S ATTACK, THEN HE IS HELD LIABLE FOR THE LOSS OF THE ANIMAL, WHICH HIS IRRESPONSIBLE BEHAVIOR CAUSED. BUT IF WE ASSESS THAT HE WOULD NOT HAVE BEEN ABLE TO FEND OFF THE ATTACK EVEN IF HE HAD REMAINED ON THE SCENE (ARMED AND IN THE COMPANY OF REINFORCEMENTS), THEN HE IS NOT LIABLE (SINCE, IN THE FINAL ANALYSIS, IT WAS NOT GROSS NEGLIGENCE FOR HIM TO HAVE LEFT THE SCENE). TO THIS ABAYE אביי COUNTERS "IF SO, THEN NOT ONLY IF HE IS A PAID SHOMER BUT EVEN IF HE IS AN UNPAID SHOMER," WHICH MEANS - AND THIS IS THE CRITICAL INNOVATION OF RAAVAD'S INTERPRETATION - EVEN IN THE CASE OF AN UNPAID SHOMER, FAILING TO SUMMON AVAILABLE HELP IS DEEMED TO BE GROSS NEGLIGENCE, FOR RABBAH רבה HIMSELF RULED THAT "AN UNPAID CUSTODIAN WHO WAS ABLE TO CONFRONT THE ATTACKER WITH OTHER SHEPHERDS AND STICKS BUT DID NOT CONFRONT IT IS LIABLE" (AND AND UNPAID SHOMER IS LIABLE ONLY IF HIS BEHAVIOR WAS ONE OF NEGLIGENCE); ALL THE MORE SO SHOULD IT BE DEEMED NEGLIGENCE IN THE CASE OF A PAID SHOMER. ACCORDINGLY, HOW CAN THE BARAISA RULE THAT THE SHOMER'S LIABILITY DEPENDS ON HOW WE ASSESS THE THEORETICAL OUTCOME OF HIS STAND! SINCE HE WAS NEGLIGENT IN LEAVING THE SCENE, HE SHOULD BE LIABLE FOR THE EVENTUAL ATTACK EVEN IF HIS PRESENCE WOULD NOT HAVE PREVENTED THE LOSS OF THE ANIMALS!
[TO THIS RABBAH רבה ANSWERS THAT THERE IS A DIFFERENCE BETWEEN AN UNPAID SHOMER WHO NEGLECTS TO SUMMON AVAILABLE VOLUNTEERS AND A PAID SHOMER WHO NEGLECTS TO SUMMON PAID ASSISTANCE. AN UNPAID SHOMER WHO NEGLECTS TO SUMMON AVAILABLE VOLUNTEERS IS INDEED DEEMED TO BE NEGLIGENT. BUT A PAID SHOMER WHO NEGLECTS TO SUMMON PAID ASSISTANCE CANNOT BE DEEMED NEGLIGENT, EVEN THOUGH HE WOULD HAVE BEEN ENTITLED TO REIMBURSEMENT FROM THE OWNER; FOR IT IS UNDERSTANDABLE THAT THE PAID SHOMER SHOULD BE RELUCTANT TO LAY OUT MONEY, SINCE HE MIGHT BE UNSURE ABOUT HIS ABILITY TO EVENTUALLY RECOUP THAT MONEY FROM THE OWNER. RATHER, HIS FAILURE TO SUMMON PAID HELP IS DEEMED TO BE NO MORE THAN A LACK OF RESPONSIBLE BEHAVIOR. THUS, IT IS ONLY IN THE CASE OF A PAID SHOMER THAT THE BARAISA COULD RULE THAT HIS LIABILITY DEPENDS ON THE THEORETICAL OUTCOME OF THE STAND HE SHOULD HAVE MADE. BUT IN THE CASE OF AN UNPAID SHOMER, WHO IS DEEMED TO BE GROSSLY NEGLIGENT FOR FAILING TO SUMMON THE TYPE OF AID HE IS REQUIRED TO SUMMON, HE WOULD BE LIABLE FOR THE LOSS OF THE ANIMAL REGARDLESS OF THE THEORETICAL OUTCOME OF HIS PROPER BEHAVIOR, SINCE HE WAS NEGLIGENT INITIALLY.]
ACCORDING TO RAAVAD, THEN, THE HALACHAH IS THAT AN UNPAID SHOMER WHO FAILS TO SUMMON AVAILABLE VOLUNTEERS IS LIABLE FOR THIS NEGLIGENCE (AS ABAYE אביי HAS STATED IN THE NAME OF רבה RABBAH), BUT A PAID SHOMER WHO FAILS TO SUMMON PAID ASSISTANCE IS LIABLE AS FOR THEFT AND LOSS, BUT HE IS NOT DEEMED TO HAVE BEEN GROSSLY NEGLIGENT. RABBEINU CHANANEL (CITED BY SHITAH MEKUBETZES BELOW ד"ה גברי דפרמוסקא), HOWEVER, STATES THAT BOTH IN THE CASE OF A PAID SHOMER WHO FAILS TO SUMMON PAID HELP OR AN UNPAID SHOMER WHO FAILS TO SUMMON AVAILABLE VOLUNTEERS, THE SHOMER IS DEEMED TO BE GROSSLY NEGLIGENT. IT IS EVIDENT, THEN, THAT RABBEINU CHANANEL DID NOT EXPLAIN THE GEMARA HERE AS DID RAAVAD.

בבא מציעא צג
דף יומי
BAVA METZIA 93
DAF YOMI

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