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Bava Kama, 99

1) "UMAN KONEH B'SHEVACH KLI"

QUESTION: The Gemara states that when a person gives wool and dyes to a professional dyer, the dyer is not "Koneh b'Shevach Kli" -- he does not acquire the wool and dyes by doing work to it that increases its value, since he is being paid as a hired laborer, and he is not being paid on the basis of the completed job (like a "Kablan").

Why, then, does the Gemara say that when a person gives wood to a carpenter to build a closet with it, the craftsman is Koneh the wood by increasing its value (by making it into a closet)? The carpenter simply worked on the wood and did not add his own material, and thus he should be no different than the dyer who is given wool and dyes in order to the dye the wool! (RASHBA, TOSFOS RABEINU PERETZ)

ANSWER: The RA'AVAD cited by the Rashba writes that whenever no material is added to the original product in order to increase its value, and the only input is one of energy and skill, then the skill is considered to be a tangible contribution to the item, and the craftsman is able to acquire the Kli through the skill that he put into it. However, when the increase in the value of the original product is accomplished with other materials (such as dye put into wool), then we view those other materials as the contribution to the item, and we do not view the skill of the craftsman as the contribution to the item.

It is not clear why we should ignore the skill of the craftsman just because there is some other input involved. Perhaps he means to explain like TOSFOS RABEINU PERETZ. Tosfos Rabeinu Peretz explains that the craftsman's skill is always considered to be a contribution. Nevertheless, when there is another input as well, such as the dye that is coloring the wool, then the input of the craftsman is not able to acquire the Kli for him, since some other input was involved as well. (This might be related to the Sugya of "Zeh v'Zeh Gorem.")

Alternatively, perhaps we assume that building a closet from wood requires a greater input of skill, since no other input is required. Dyeing wool requires less skill since part of the dyeing is accomplishing with the dyes. A craftsman can only acquire the item that he improves when a great amount of skill is required, for otherwise we view him simply as a hired laborer.

This might explain the comments of RASHI (in DH li'Vetushi). Rashi writes that when a person is hired to step on a woolen garment in order to soften it, and he is paid for each time he steps on it, he is considered to be a hired laborer and not a craftsman who is making an item. TOSFOS (DH d'Agrei) asks that he should still be considered a craftsman who is hired to complete a job, since each time he steps on the garment, he is performing his craft. Therefore, Tosfos explains (like Rashi explains in Bava Metzia) that the person is paid to step on the clothing whether or not it becomes softer as a result of his stepping on it.

Rashi here might have learned, as we wrote above, that a person who performs a craft that does not require a great input of skill is considered like a hired laborer and he cannot be Koneh the item b'Shevach Kli, by making an improvement to it.

Tosfos, on the other hand, might be learning like Rabeinu Peretz, that any time there is no other input aside from that of the craftsman, the craftsman can be Koneh the item b'Shevach Kli.

99b

QUESTION: Shmuel teaches that if an expert butcher is given an animal to slaughter and he makes it a Tereifah, he is obligated to pay for it because "he is a Mazik and a Poshe'a" (according to Rebbi Meir). The Gemara explains that Shmuel did not merely say that he is a Mazik, for that would imply that the butcher is Chayav only when he is *paid* to slaughter the animal, while in truth Rebbi Meir rules that the butcher is Chayav even when he is not paid to slaughter the animal.

RASHI explains that the reason the word "Mazik" implies that he is Chayav only when he is paid is because a Mazik is Chayav for Onsin, for damages caused by uncontrollable circumstances (an "Ones"). This is because of the principle that "Adam Mu'ad l'Olam." If Shmuel obligates a butcher even if it an Ones happens, then he must be discussing a butcher who is being paid to slaughter the animal.

Rashi's explanation is not clear. If a butcher is considered to be like an Adam ha'Mazik, then why would we think that he is exempt from paying when he is slaughtering for free, without receiving any pay? He should be Chayav as an Adam ha'Mazik, whether or not he is being paid! (KOVETZ SHI'URIM)

If, on the other hand, a butcher is not considered to be an Adam ha'Mazik, then why should he be Chayav if the animal becomes a Tereifah due to an Ones, even when he is being paid for his services? Being paid should make him only a Shomer Sachar, who is Chayav for Geneivah and Aveidah (when the item is stolen or lost), but not for Ones! (TOSFOS HA'ROSH, cited by the Shitah Mekubetzes)

ANSWER: Rashi does not mean to explain that a butcher is considered an Adam ha'Mazik. Rather, Rashi is explaining that the butcher's obligation is like that of a Shomer. However, if Shmuel would call him just a Mazik, it would imply that just as an Adam ha'Mazik is responsible for damages that he causes b'Ones, so, too, the butcher is liable for damages that he causes b'Ones. Hence, he must be a Shomer Sachar and that is why he is Chayav for damages that are not caused by a Peshi'ah (negligence on the part of the Shomer) but even by an Ones (since a Shomer Chinam is certainly exempt from damages that are not caused by a Peshi'ah). That is why Shmuel adds that the butcher is considered a Poshe'a -- even if he would be a Shomer Chinam he would also be Chayav.

Regarding why the butcher is Chayav for damages caused by an Ones if he is like a Shomer Sachar, the Rishonim write that Rashi is not using the word "Ones" to refer to damage that was totally out of the control of the butcher. Rather, the damage that the butcher caused is at most a mild Ones which is equal to Geneivah (when an object that was stolen from the domain of the Shomer). Therefore, the Shomer Sachar who is Chayav for Geneivah is also Chayav for an Ones such as when an expert butcher ruins the Shechitah and causes the animal to become a Tereifah. (See RASHBA, TOSFOS HA'ROSH, TOSFOS to 27b, end of DH u'Shmuel; see also RASHI in Bava Metzia 82b, DH Yishava.)

Why does the principle of "Adam ha'Mazik" not make the butcher obligated to pay even for an Ones? Why is his obligation to pay only that of a Shomer and not that of an Adam ha'Mazik?

1. TOSFOS (27b, DH u'Shmuel, and in Bava Metzia 82b, DH v'Savar) explains that Adam ha'Mazik is not Chayav for all types of Ones. In fact, he has even *fewer* obligations than a Shomer Sachar. He is Chayav for an Ones only when it borders on Peshi'ah (such as Aveidah, losing the item), but not for an Ones that is further removed from Peshi'ah, such as Geneivah. A Shomer Sachar, on the other hand, is Chayav for both Aveidah and Geneivah. When a professional slaughterer makes an animal into a Tereifah, it is an Ones that is further removed from Peshi'ah, and it is in the same category as Geneivah. Therefore, the principle of "Adam ha'Mazik" cannot obligate him to pay; his obligation to pay can only stem from his obligation as a Shomer Sachar.

2. The RAMBAN (Bava Metzia 82b) writes that since the butcher is slaughtering the animal at the behest of the owner, he cannot be called an Adam ha'Mazik. Any time that a person works at the owner's request, he is not a Mazik but a Shomer.

QUESTIONS: The Gemara relates an incident in which a butcher slaughtered an animal and made it a Tereifah. Rebbi Yochanan told him that since he was not paid to slaughter it, he will be exempt from paying for the animal if he can bring a proof that he was an expert at slaughtering chickens. This follows the ruling mentioned earlier in the Gemara that a person who is not an expert is responsible even if he took no money for slaughtering the animal, since he should not have accepted to slaughter the animal in the first place, knowing that he was not an expert and not properly trained to slaughter.

There are a number of questions on this Gemara.

(a) Why does the butcher need to bring a proof that he is an expert in order to exempt himself from payment? We should apply the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," and, consequently, he should not have to pay unless the owner of the animal can prove that he was not an expert! (RA'AVAD; see also KOVETZ SHI'URIM, and BEIS HA'LEVI 2:4:4 and 3:20:2.)

(b) Why must the butcher prove that he is an expert? We should rely on the rule (Chulin 3b) that if we find an animal that has been slaughtered, we may assume that the slaughterer was an expert, because "Rov Metzuyin Etzel Shechitah Mumchin Hen" -- most people who are involved in Shechitah are experts! (SHACH, YD 1:4)

ANSWERS:

(a) As we explained above (see previous Insight), the butcher is considered to be like a Shomer Chinam when he receives no payment for his services. The reason he is exempt (according to the Rabanan who argue with Rebbi Meir) when he makes the animal a Tereifah is because it is considered damage caused by an Ones, rather than by a Peshi'ah, since it is unusual for an expert to ruin the Shechitah (see RASHI DH Uman Patur). Every Shomer Chinam is required to prove that he was not Poshe'a, negligent, when watching the item, before he is exempt from payment, either by making an oath or by bringing testimony of witnesses. (Similarly, if a Shomer Sachar wants to exempt himself from payment by claiming that the Pikadon, the object he was watching, was damaged b'Ones, he must either make an oath or bring witnesses to prove that it was damaged b'Ones.) Since the butcher, who is a Shomer, is trying to exempt himself by claiming that the animal was killed b'Ones and not through Peshi'ah, he must prove that there was indeed an Ones by making an oath or by bringing testimony that he is a Mumcheh.

This rule that a Shomer is exempt only after proving that an Ones occurred by making an oath or by providing testimony does not contradict the rule of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," since this was part of the understood agreement of a Shomer who is responsible for the object of another person.

The question that remains, then, is why must the butcher, in the case of our Gemara, bring testimony to prove that he is a Mumcheh? Why can he not exempt himself from paying by making an oath that he was not Poshe'a, like any Shomer Chinam? The RA'AVAD answers this question by citing the Gemara in Bava Metzia (83a). The Gemara there teaches that if the object that the Shomer was watching was damaged in a way that we can expect there to be witnesses to testify whether it was done through an Ones or not, the Shevu'ah of a Shomer does not exempt him; he must bring witnesses to prove that he was not Poshe'a. Similarly, it is usually common knowledge whether the butcher is an expert or not. Since it is possible for him to bring testimony to prove that he is an expert, it does not suffice for him to make an oath.

(b) The Shach's answer regarding why we do not rely on the Rov of "Rov Metzuyin Etzel Shechitah Mumchin Hen" is not clear. According to the PRI MEGADIM, the Shach means to say that when a person ruins the Shechitah, we can no longer rely on the Rov to say that he is a Mumcheh. REBBI AKIVA EIGER (in the Shuchan Aruch) asks that according to this, if we know that a Shochet once made an animal a Tereifah, we can no longer trust that he is a capable Shochet based on the Rov!

The BEIS HA'LEVI (2:4:4) answers that "Rov Metzuyin" is no more than an assumption that if we would ask the Shochet (who slaughtered the animal) whether he is a trustworthy, capable Shochet, he would say that he is. It simply shows that *he* considers himself a good Shochet. (He bases this on the words of the Rambam and the Re'ah in Bedek ha'Bayis.) Hence, that Rov certainly cannot be used to exempt the Shochet from paying since his own testimony about himself cannot exempt him.

Based on what we wrote above, that the butcher must bring proof that he is a Mumcheh because of the Halachos of Shomrim, it could be that the Rov is not a sufficient proof because of the principle that "Ein Holchin b'Mamon Achar ha'Rov." Therefore, the butcher must bring testimony of witnesses to prove that he is a Mumcheh and that he is exempt.

Another possible answer may be derived from the words of the NIMUKEI YOSEF. He explains that when the Gemara says, "If you are a Mumcheh for [slaughtering] chickens," the word Mumcheh means an "Uman Mumcheh," an expert professional. "Rov Metzuyin" might prove that the butcher is a *regular* Mumcheh, but not a particularly expert Mumcheh, and thus a Hedyot -- an amateur -- also falls into that category of a regular Mumcheh, and therefore it is not sufficient to exempt him from paying unless he proves that he is an *Uman* Mumcheh.