תם חצי נזק
Bava Kamma 15 a and b.
One is liable for the damage done by one’s animal to the animals or property of others. Damage can be caused in a variety of ways. The owner of an animal that enters the field of another and eats or tramples crops, causing damage known as שן, shen and רגל, regel is liable to pay the owner their full value. It is totally predictable that an animal will behave in this way and the owner who failed to prevent it is held fully accountable.
To what extent is the owner of an animal accountable for damage of a less predictable nature? A tame animal, referred in the Talmud as a תם, tam, does not usually attack unless provoked. Should the owner of a tam be held liable for a sudden, unprecedented and unprovoked attack?
The Torah tells us that the owner is indeed liable. However, the Torah caps the damages that the owner of the attacking tam pays to the damaged party at חצי נזק, chetzi nezek, an amount equal to half the value of the ox that did the damage. Clearly, this payment bears little relationship to the amount of damage caused.
What is the nature of chetzi nezek? Is it compensation or is it a fine?
Rav Pappa rules that chetzi nezek is נזק compensation.
In truth, explains Rav Pappa, a tam should not be left unguarded because you never know how an animal will behave. Nevertheless, the Torah did not want to make life too hard on the owner of a tam. Accordingly, the Torah rules that the first three times a tam attacks, the owner pays chetzi nezek. Thereafter, if the tam attacks a fourth time, it becomes a predator, a מועד, mu’ad, and the owner must pay the full value of the damage caused.
Rav Huna however, maintains that chetzi nezek is in the nature of a קנס, kenas, a fine. In truth, explains Rav Hunah, a tam may be left unguarded because it is simply not in its nature to attack. If the unexpected occurred and the tam did attack, this is an act of God and the owner should not be held accountable at all. Nevertheless, in order to urge one to exercise an abundance of caution, the Torah imposes a fine on the owner of the attacking tam in the form of chetzi nezek.
What is the difference between Rav Pappa’s classification of chetzi nezek as compensation and Rav Hunah’s classification of chetzi nezek as a fine?
There are a number of important, practical differences.
First, a fine, unlike compensation, bears little relationship to the damage caused. It can be less or more than, but never equal to, the actual damage caused. If you park your car in front of a hydrant, you pay a $150 dollar fine whether or not blocking the hydrant caused a house to burn down. If you steal $100, the Torah obliges you to pay a fine of $200 called כפל, kefel, which is more than the damage caused and bears little relation to it.
Second, a person can only be held liable to pay a fine if witnesses testified against him in a court of law. In the absence of witnesses however, a court of law may not impose a fine, even if the person admits to having perpetrated the violation.
Third, Jewish courts of law today have no authority to impose fines.That authority was given only to the courts of Israel through סמיכה, semichah, a unique form of ordination given by God to Moses and passed down by Moses from teacher to disciple. When the Roman persecution of the fourth century CE made it impossible to maintain the Israel academies of higher learning, this form of semichah disappeared.
The semichah of today, which is a mere diploma attesting that its holder has mastered certain areas of Halacha, does not bestow upon its holder the authority to impose kenas. The result is that today, the owner of property damaged by a tam, cannot sue for chetzi nezek and will be left uncompensated for the damage.
Although the courts have no authority to award chetzi nezek, if the damaged party seized assets from the owner of the tam, the courts will allow him to retain the seized assets as compensation for the damage. According to the Rosh, the right of the damaged party to take the law into its own hands and seize assets of the damaging party is a Torah given right. Accordingly, the Rosh maintains that where the Torah entitles the damaged party to a fine, which exceeds the value of the damage, such as kefel in the case of stolen goods, the victim may seize assets equal to twice the value of the stolen goods.
The Haram Halevi disagrees. The right of the victim to seize assets of the damaging party is not a Torah given right. Rather, it is a תקנה, takanah, a legislative right instituted by the rabbis who did not want to see the victim out of pocket just because a contemporary court of law lacks the authority to adjudicate kenas. However, the purpose of the rabbinical legislation was to compensate the victim for the damage but not to allow him to profit from it.
The concept of self-help is known in other spheres of Halacha. Thus, notwithstanding the rule of kam lei bederabah minei, which exempts a murderer who is liable to capital punishment from payment of damages, the survivors of the victim may seize assets of the murderer, to compensate them for the murder of the family breadwinner.
Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].
