On the Obligation to Pay for Damage Caused by One’s Property

A. Introduction

There are two laws that pertain to a person whose property causes damage: the Torah obligates every person to guard his property so that it not cause damage. Likewise, the Torah obligates every person to pay when his property causes damage. Regarding the duty to guard his property so that it not cause damage, one may discuss whether this is only a halakhic duty, even if it is a commandment between one person and another, or whether it is also a financial-legal duty toward the other party. In any event, it is clear that this duty also has a prohibitory dimension, and it seems that this dimension is connected to the very prohibition against causing damage. As for the source and basis of the prohibition against causing damage, or the prohibition on the owner that his property not cause damage, the inquiries of the later authorities are well known (see the novellae of Rabbi Shimon Shkop, Kehillot Yaakov, and Minchat Asher at the beginning of Bava Kamma, and the book Pitchei Choshen on the laws of damages at its opening), and this is not the place to elaborate.
Now, regarding the law of the owner’s obligation to pay when his property caused damage, the later authorities investigated (see, for example, Even HaEzel, chapter 1 of Laws of Damage to Property, law 1, sec. 14, and Rabbi Shimon Shkop’s novellae to Bava Kamma sec. 1, and many others) whether this is because he did not guard his property, or whether the liability is derived from the very fact that his property caused damage. It should be noted that both conditions for payment liability are accepted by all commentators and halakhic decisors: in order to incur liability, the damaging property must be his, and there must also be negligence on his part in guarding it. The question that arises in the later authorities just mentioned concerns the relation between these two conditions: is the factor that generates liability the failure to guard, while the fact that it is his property serves only to obligate him to guard it, since a person is not obligated to guard property that is not his unless he accepted responsibility for guarding it? Or perhaps what generates liability is the very fact that his property caused damage, except that if he guarded it as required he is exempt from payment, analogous to an unavoidable accident. A simple practical implication of this is the question upon whom lies the burden of proving that the owner did not guard properly (see Rabbi Shmuel Rozovsky’s novellae to Bava Kamma sec. 1, who notes that the Penei Yehoshua on Bava Kamma 56 disagrees with the Hazon Ish, Bava Kamma 7:7, on this matter). If what generates liability is the very fact that his property caused damage, and negligence in guarding is only a ground for exemption, then the owner must bring proof that he guarded properly in order to be exempt. But if negligence in guarding is itself what generates liability, then the injured party must bring proof that the owner was negligent in guarding it in order to obligate him to pay. See the later authorities who cited many practical implications of this inquiry.

All this is well-trodden ground, and the discussion is old and familiar. Yet it still seems that the second side of this inquiry requires much clarification: what basis is there for obligating the owner to pay merely because his property caused damage? Granted, if we say that negligence in guarding is what generates the obligation to pay, it is reasonable to obligate one who was negligent because of his negligence. But if the absence of proper guarding is only a condition of liability, while what generates liability is the very fact that his property caused damage, then it requires explanation why that fact alone suffices to obligate the owner to pay damages.
Someone pointed out to me that in the book Divrei Yatziv, by the previous Sanzer Rebbe, Hoshen Mishpat secs. 71-72, he wrote, because of this difficulty, that in truth there is no room for this side of the inquiry at all, and he rejected the words of the later authorities just mentioned. Yet many of our later authorities adopted this approach, and some of their proofs seem compelling even regarding the medieval authorities, or at least some of them. Therefore we must hazard ourselves and attempt to explain this approach as well in understanding the law of payments for damaging property.

It seems that on the purely legal plane it is very difficult to ground such a position, and therefore we must examine it on meta-halakhic, and perhaps even metaphysical, planes. Below we will propose two directions for explaining this side of the understanding of the law of tort payments:
In practice there is a 'payment liability' on the damaging ox itself. When the ox has an owner, the liability is imposed on the owner.
There is a metaphysical, and not merely legal, relation between the person and his property: the property is a part of the person, or a peripheral circle of the person himself, and does not merely 'belong to him' on the legal plane. For this reason a person becomes liable for damages caused by his property, analogous to the liability imposed on a person for damages caused by his own body.
These are two different directions, and at first glance there is also a halakhic practical difference between them with respect to an ownerless ox that caused damage: according to the first explanation, an ownerless ox that caused damage is itself 'liable' to the injured party. By contrast, according to the second explanation, it may be that an ownerless ox is exempt, and only when the damaging ox has an owner do we impose the payment obligations on the owner.
However, this does not seem necessary, and it may be that these two understandings address two planes of the liability, and in practice they complement one another: when the ox is ownerless, there is 'liability' on the ox itself, and when it has an owner the liability is imposed on its owner. We will now briefly explain this possible dependence between these two directions.
If we examine the first explanation, it says that when the ox is not ownerless but belongs to someone, the liability passes from the ox to the owner. At first glance this too is not clear: why should the owner pay the 'liabilities' of his ox? This is in fact a reflection of the basic question with which we are dealing: how does a person become liable for damages caused by his property? That is, this very question has not yet been answered. It appears that the explanation lies in the principle underlying the second understanding: the ox is a periphery of its owner, and therefore its owner becomes liable for obligations imposed on it.
If so, it seems that the first explanation also needs the principle that underlies the second, and therefore it is not an independent conception. By contrast, the second understanding can also stand on its own, since in itself it does not need the first, and then it would indeed follow that an ownerless ox that caused damage is exempt, meaning that no 'payment liability' rests upon it toward the injured party. Therefore, the main thrust of our remarks in this article will follow the second direction.

The structure of the article is as follows. In the next chapter we will discuss the first explanation, namely the conception that there is 'liability' on the ox itself. In the chapter after that we will expand more on the second explanation, namely the metaphysical relation between a person and his property. We will then bring proofs, halakhic and otherwise, for this metaphysical principle. We will conclude the discussion by adding an explanation of the exemption from payment for one who guarded properly according to our explanation, that is, according to the second side of this inquiry, and finally we will close with several remarks.

B. First explanation: 'Liability' on the ox itself

In the Mishnah, Bava Kamma 44b, the Tannaim dispute whether an ownerless ox that killed a person is liable to death, and the practical law follows the Sages that even an ox of the wilderness, that is, an ownerless ox, is liable to death.
Nachmanides on Parashat Noah, Genesis 9:5, wrote to prove from here that the death of an animal that killed a person is a punishment upon the ox itself and not upon the person, and his words there are as follows:
Perhaps this applies only with regard to human blood: any beast that devours him shall itself be destroyed, for 'from every beast I will demand it.' I wonder whether this demanding is to be understood literally—from the beast, just as from man—as a punishment in the matter, even though an animal has no mind to be punished or to receive reward. It is a royal decree. This is the meaning of 'the ox shall surely be stoned and its flesh shall not be eaten' (Exodus 21:28), and it is not in order to punish its owner monetarily, for even an ownerless wild ox is liable to death…
From Nachmanides’ words it appears that the Torah contains a metaphysical principle that any property that killed is itself liable, it and not its owner, to punishment. Nachmanides’ proof from the verse in Parashat Mishpatim is apparently that in the case of an innocuous ox that killed, the law is the ox shall surely be stoned and its flesh shall not be eaten, but the owner of the ox is innocent, which shows that there is a legal judgment upon the ox even though the owner of the ox is innocent.
However, from the beginning of Nachmanides’ wording it is clear that he intends only an ox that killed, where the Torah decreed punishment upon it. Perhaps this is akin to what we find, that murder pollutes the land, or brings impurity upon the land, and therefore the Torah wrote do not defile the land (Numbers 35). That is, murder is a transgression that damages the world itself, and therefore it requires atonement not only for the murderer but also for the land, and here we see this also regarding the killing animal.
However, regarding violence too we find in the generation of the Flood that this transgression defiles the land, and therefore all flesh was destroyed there. If so, perhaps the principle established here by Nachmanides can be extended to the law of damages as well, and one can say that liability to pay for damage caused by an ox is a 'punishment' upon the ox and not upon the owner.
But according to this, one must consider why, if the ox has an owner, we obligate the owner to pay and not the ox, only in the case of an innocuous ox does the injured party collect from its body. One may say that if it has an owner, its owner becomes obligated to pay, and not the ox itself, since he is viewed as the entity that becomes obligated in place of the ox. The relation between a person and his property is like the relation between a person and his body, where it is clear that the person himself is liable to pay for damages caused by his body.

According to our approach, it would seem that an ox of the wilderness should also be liable for damages it causes, and not only for killing a person. Yet this is apparently not so, for in the case of an ownerless ox that caused damage it does not make sense to impose liability upon it to pay, since such liability has no point: the injured party can go and acquire this ownerless ox even if it did not damage his property. At first glance, only with respect to death does the Torah’s decree to impose punishment on the ox itself have meaning, that is, to put to death by a religious court the ownerless ox that gored.
Nevertheless, a state of obligation on the ox itself could also have significance in damages, in one of two cases: 1. If, after the ox gored, another person wants to acquire it, then according to our view the injured party can prevent him, since the ox 'owes' him money, that is, its body already belongs to the injured party. 2. An ox that gored while under its owner, and afterward the owner rendered it ownerless, 'it gored and then was rendered ownerless', and perhaps likewise if he sold it or consecrated it. In such a case, at first glance there is no point in punishing the ox, since the punishment no longer affects the owner, unless the goal of the punishment is the ox itself and not the owner.

These topics are discussed in the Talmudic passages Bava Kamma 13b and 44b, and we will briefly present the points relevant to our issue.
In the Mishnah, Bava Kamma 44b, Rabbi Judah and the Rabbis disagree whether an ox of the wilderness that killed is liable to death, according to the Rabbis, or not, according to Rabbi Judah. At the end of the Talmudic discussion there it is brought that Rabbi Judah would also exempt in the case of an ox that gored and was afterward rendered ownerless or consecrated, from the verse and warning was given to its owner—meaning, until the killing, the standing trial, and the verdict must all coincide under one and the same ownership, and see the commentators there that this is an accepted rule even according to the Rabbis, not only according to Rabbi Judah’s view.
However, in its plain meaning the discussion on 44b addresses only an ox that killed a person, but on 13b it appears that the Talmud extends this also to an ox that damaged property. The Talmud there says that an ownerless ox that gored another man’s ox is exempt. It asks: let the injured party come and acquire it; and it answers: this is where another had already come first and acquired it. The Talmud then discusses an ox that gored and was afterward rendered ownerless, or consecrated, and rules that there too it is exempt.
These laws were codified by Maimonides and the Shulchan Arukh, Hoshen Mishpat sec. 406, and the Shulchan Arukh states there:
Paragraph 2: An ownerless ox that gored, and before the injured party seized it another came first and acquired it, is exempt.
Paragraph 3: If his ox gored and he rendered it ownerless before it stood trial, and another acquired it, it is exempt. But if he himself acquired it, he is liable.
At first glance, this proves that an ownerless ox that caused damage is exempt from punishment, contrary to our proposal to extend Nachmanides’ words to an ownerless ox that caused damage and not only to one that killed.

However, Tosafot at the beginning of the chapter, Bava Kamma 13b, explained the exemption of an ownerless ox that gored from the verse a man's ox, implying that without the verse the ox would have been 'liable', and another would not have been able to seize it. Maimonides too, in chapter 8 of Laws of Damage to Property, wrote that this is because it says the ox of his fellow. Thus we again see that a verse is needed to exempt an ownerless ox that gored. From these two derivations it is clear that the medieval authorities understood them as applying also to an ox that gored another ox, and not only to an ox that killed a person. It thus emerges from their words that an ox that gored bears liability, and when it is ownerless it is itself liable. Only when it gores while under its owner’s authority and is thereafter rendered ownerless is it exempt by a scriptural decree.

This is also proven from what we find regarding an ox that killed a person. As we saw above, an ox of the wilderness, which was ownerless when it gored, is itself liable to death, and nevertheless if it killed while under its owner and was afterward rendered ownerless, it is exempt from the verse and warning was given to its owner (see the Talmud on 44b). This implies that without the verse we would sentence it to death. Here one must say that there is liability upon the ox itself, which the verse comes to exclude, for if the ox was ownerless at the time of the goring and remains ownerless, it is liable to death even in the practical law. If so, it is clear that here there is liability upon the ox itself, as Nachmanides wrote, except that it is exempt if the ownership of it changes over the course of the process of standing trial and verdict.
If so, it seems that this is likewise how one should understand the derivations that exempt an ox that caused damage and was afterward rendered ownerless: in reality there is liability upon the ox itself, but when its ownership is not identical at the time of the goring and at the time of trial, it is exempt by a scriptural decree.

In both Talmudic passages it is clear that the exemption when it gored and was afterward consecrated or rendered ownerless, both with respect to death and with respect to damages, is derived from a verse. Of course, after the scriptural derivation, one may ask whether it teaches that this is not the correct understanding—namely, that there is no punishment on the ox itself but only upon the owner—or whether the verse teaches that there is punishment on the ox, but if it was under its owner then the obligation passed to the owner, and if the latter later rendered it ownerless it is again exempt.
We have seen that regarding death it is very plausible that the liability is on the ox, and the exemption when it gored and was afterward rendered ownerless stems from a scriptural decree, since an ownerless ox that gored, the ox of the wilderness, is in fact liable to death as a matter of law, as explained above. Above we also saw that it is plausible to understand the derivations regarding an ox that caused damage in the same way.

I later found in Rabbi Chaim Soloveitchik, in the stencil edition, new edition sec. 220-222, that he wrote that this understanding remains even in the final conclusion, except that he does not explain that there is punishment upon the ox, but rather that there is punishment upon the owner whose form is a lien upon the body of the ox, and this is the law of an innocuous ox, which pays from its body. According to Rabbi Chaim, there is no proof that there is punishment on the goring ox itself; rather, the punishment on the owner is realized immediately, and therefore it takes effect upon the body of the ox. For this reason there was an initial assumption that the liability would remain even after it was rendered ownerless or consecrated, and the verses came to teach that it is exempt.
According to our discussion above, however, as we expanded Nachmanides’ words, there is substantial room to say that there is punishment upon the ox itself; otherwise, why impose a lien on the body of the ox rather than a lien on the owner? In fact, the law of the innocuous ox itself is some evidence for this principle.
See also Minchat Chinukh, commandment 55, and Giddulei Shmuel on the aforementioned Bava Kamma passage, who incline to the view that the above laws, in the Talmud and Shulchan Arukh, apply to every damaging act of a forewarned ox, and even to damage by eating and trampling, and not only to an innocuous ox, which always pays from its body.
If so, there certainly arises here the possibility of holding that even monetary penalties for an ox that caused damage are imposed on the ox, and therefore perhaps Nachmanides’ words above can be extended also to an ox that caused damage.

As for the fact that, by force of the verses, we rule that if another came first and seized the ox then it is exempt from payment—this is indeed a scriptural decree, but it still seems possible to understand it according to our proposal. If the ox remains under the owner who failed to guard it, then the ox is liable to punishment, and the owner has no claim on whose behalf we should exempt the ox, for he was negligent in guarding it, and were it not for that he would indeed be exempt. But if the ox is ownerless and it itself 'owes' the injured party, and now another comes and seizes it, then the injured party cannot keep it for himself, because the 'liability' of the ox cannot override the property rights of its new owner, for he was not negligent at all and therefore does not deserve punishment. This is analogous to an owner who guarded properly: in that situation the ox does not become liable to the injured party, for although there is liability on the ox itself, there is ultimately no justification for harming an owner who was not negligent.
It may be that this is the reason why, according to some medieval authorities, we require the same owner at the time of the verdict as at the time of the goring, and it does not help that the ox has a different owner. There are, however, disputes among the medieval authorities on this matter: whether ownership by another at the time of the verdict indeed exempts from payment, or only consecration and ownerlessness. See Rashi on 13b, as against most of the medieval authorities, for example Rashba there and on 44b near the end, Tosafot at the beginning of the chapter on 13b, and Lehem Mishneh on Maimonides, chapter 8 law 4, and this is not the place to elaborate.

If so, even if one accepts the understanding that emerges from the scriptural decree, after the innovations of the verses, that an ox that gored and was afterward rendered ownerless is exempt, one may still say that the conception is that there is 'punishment' upon the ownerless ox itself when it caused damage. According to Rabbi Chaim’s understanding, that this is a mode of punishing the owner analogous to an innocuous ox, it still requires explanation why the verses ultimately innovate that when another acquired it the ox is exempt; at first glance the conclusion is well explained only according to what we have proposed here. Yet see the wording of Maimonides in chapter 8 of Laws of Damage to Property law 4, from which it seems that if another acquired it, that person must bring it to court; see also the emendatory notes on the Tur.

What emerges from all of the above is that although Nachmanides spoke explicitly only about an ox that killed, his words can be extended, and one may say that there is 'payment liability' upon the damaging ox itself even in a case of monetary damage, and not only in the case of an ox that killed a person. This can be seen chiefly in the case of an ownerless ox that caused damage. According to our view, an ownerless ox that caused damage 'owes' the injured party, except that there is no point in stating this in the law because the injured party can seize it in any event, since it is ownerless. But if another came first and seized it before the injured party, then in principle there is liability of the ox toward the injured party, yet we are not prepared to harm the ox’s new owner, who was not negligent in guarding it, and therefore the Torah teaches that it is exempt from payment.
According to this, it is also explained why, when the owner guarded properly, he is exempt from payment—for at first glance we should have had to obligate him with the liabilities of his ox in any event. According to what we have said here this is understandable, because if the owner was not negligent, the Torah does not impose upon him the liability of his ox, since he himself does not deserve punishment. Only when he himself is negligent in guarding the ox does the Torah impose upon him the 'liability' of his ox, because in that case he has no rights for whose sake we should exempt his ox.

Furthermore, in the Talmud on 44b we find that it explicitly compares the payment liability of an ox that caused damage to the death liability of an ox, as follows:
We derive the liability of the ox [for paying for the damages caused by the ox] from the liability of the ox [from its execution when it killed a person], excluding ransom, which is the liability of the owners.
In Hazon Yechezkel on the Tosefta, Bava Kamma chapter 1 law 1, and in the lectures of Rabbi Naftali Trop on Bava Kamma sec. 1, and in Birkat Shmuel, Bava Kamma sec. 2 in the name of Rabbi Chaim, see also Maimonides, Laws of Damage to Property 10:3, they proved from here that the liability on the owner derives from the fact that his property caused damage, though see Rashi there, from whom this does not appear.
It seems that these later authorities assumed that it is impossible to understand the Talmud in its plain sense, namely, that the liability to pay damages is on the ox itself, even though the Talmud itself indeed seems to compare the payment liabilities for the ox’s damages to the liabilities that apply to the ox when it killed, liabilities which, as we saw, apply to the ox itself. Therefore these later authorities explain that the basis of the comparison is that payment liabilities for the ox’s damages are liabilities on the owner because of the ox, and not that they apply to the ox itself; this corresponds to that side of the above inquiry.
However, in light of what we have said above, it may be that the Talmud can indeed be understood according to its plain sense. The liability to pay for an ox that caused damage is indeed on the ox itself. It is just that when it has an owner, the owner pays it, as explained above. In the case of an ownerless ox, the liability stems from the ox itself even though it has no owner, and that very same liability applies to the owner when the ox is not ownerless.
As stated above, this is precisely the understanding of payment liability as arising from the very fact that one’s property caused damage. The reason is that the liability is on the ox itself, and from the ox it passes to the owner.

One should note that these arguments not only show the side of the above inquiry according to which the owner’s liability to pay is because his property caused damage; they also explain the conception that underlies this understanding. This understanding is based on the conception that there is liability upon the ox itself. This is the first direction we proposed in explaining the possibility of obligating the owner to pay solely because his property caused damage: the liability to pay when an ox caused damage is a 'liability' on the ox. Such liability is imposed on the owner by virtue of the fact that his property caused damage. To be sure, this is only when the owner was negligent in guarding it; if he was not negligent, we exempt the ox from its 'liabilities' so as not to harm its blameless owner. Even if the ox was ownerless when it gored and another came first and seized it, we exempt the ox from its 'liabilities' because we do not wish to punish an owner who is not at fault.

Yet all this, at first glance, does not really resolve the conceptual difficulty; it only brings proofs that this understanding is indeed possible and present in the Talmud and the medieval authorities. In fact, the problem now becomes even more acute: if we are not willing to accept that liability on the owner is by virtue of the fact that his property caused damage, how shall we accept that the ox itself can become liable to pay when it causes damage? At first glance, we have explained an unintelligible law by invoking a principle that is even less intelligible.
Still, one may say that there is at least some explanation here, because we find a metaphysical, not merely legal, principle that every living creature bears 'responsibility' for its actions. True, responsibility in its full sense exists only for a human being, who possesses free choice, but there is a concept of responsibility even with respect to animals and even inanimate things, in the spirit of from every beast I will demand it.
It should further be noted that even according to our view, there seem to be several positions among the medieval authorities for whom one cannot say that the payment penalty is on the ox, certainly not in the case of eating and trampling, and perhaps not even in the case of a forewarned ox. If so, according to those positions it seems impossible to extend Nachmanides’ words from an ox that killed to an ox that caused damage, as we saw, Nachmanides himself says this only about an ox that killed.
Especially since Nachmanides’ own statement is not accepted by all, even regarding the ox that killed, and even he himself seems only to raise such a possibility, not to state it categorically. Above we saw that there is room to understand the punishment of the ox as the eradication of evil, or as punishment of the owner, as in Rabbi Chaim, and as the plain reading we suggested in the verses of Parashat Mishpatim.
In general one can say that even according to those medieval authorities whom we saw could be interpreted as saying that the punishment applies to the ox, it is still possible to interpret them as Rabbi Chaim did in the stencil edition: this is merely a form of punishment, but the punishment is imposed on the person. According to this, there is clearly no explanation here of the side of the above inquiry that obligates a person to pay for damages caused by his property by virtue of the very fact that his property caused damage.
Moreover, the very fact that we transfer the liability that falls upon the ox to its owner itself requires explanation. Again, it is not clear why the owner should pay the liabilities of his ox. Above, at the end of section A, we pointed out that this law depends on the second understanding, namely the metaphysical relation between a person and his property; see below. Here, however, we have proposed an additional explanation: it stems from the fact that he was negligent in guarding it, and therefore we do not exempt the ox from payment on behalf of the owner, unlike the case where he was not negligent, or where it is under a different ownership, when we exempt the ox from payment so as not to obligate an owner who is not to blame. In any event, this understanding itself is somewhat difficult, because the payment is not collected from the body of the ox but from the owner’s property, and therefore it appears to be liability on the owner and not on the ox.

Beyond all this, I found in Maimonides’ Guide of the Perplexed, part III chapter 40, as follows:
As for the fact that an animal is killed if it killed a person, this is not a punishment for it, as the sectarians mock us, but a punishment for its owners…

For all these reasons, we will now propose a second direction for explaining this side of the inquiry regarding liability to pay for damage caused by property.

C. Second explanation: the metaphysical relation between the person and his property

As stated, there is another direction for explaining the understanding of liability to pay damages because one’s property caused damage, and it proceeds from understanding the relation that exists between a person and his property. Our proposal is that liability to pay for damage caused by damaging property can be interpreted like liability to pay for damage caused by a damaging person. In the case of a person who causes damage, we obligate him to pay because his body caused damage, even though the person himself is not the body but the spirit, the soul. This stands out most clearly in the case of damage caused under compulsion, where we rule that a person is always forewarned, and therefore he is liable even under compulsion. The medieval authorities dispute whether a person is liable even in a totally unavoidable accident, see Tosafot Bava Kamma 26a, and the Shakh sec. 378 subsecs. 1-2 and Machaneh Ephraim, Laws of Damages to Property secs. 5-6, and others, but he is certainly liable even in cases of compulsion such that if his property caused damage he would be exempt, in the language of Tosafot there: 'compulsion akin to theft and loss'. If we indeed regard the person himself as the spirit within him, and the person’s body as a periphery of himself, it is not clear why he should be liable for damage, especially damage caused under compulsion. What, then, distinguishes damage caused by his body from damage caused by his property?
It seems from here that, in liabilities to pay for damage caused by a person, the basis of the liability is not a duty to guard his body but the very fact that his body caused damage. That is why, according to some medieval authorities, he is liable even in a totally unavoidable accident, for the payment liability contains no dimension of negligence in guarding: the liability is for the simple fact that he caused damage. A person is responsible for every damage that his close surroundings, which are considered part of him, do to another. The nearest circle around the person himself, his spirit, is his body, and therefore he is liable even in cases of compulsion. The next circle around the person is his property, and therefore property of his that caused damage obligates him to pay, except that here there is no liability in unavoidable accident: if he guarded properly he is exempt from payment, because this is a wider circle, a more distant periphery of the person himself.
In both cases the basis of liability is similar: just as a person is liable to pay for damage caused by his body by virtue of the very fact that his body caused damage, and not necessarily because of his fault, so too a person is liable to pay for damage caused by his property, by virtue of the very fact that his property caused damage. Here too there is an element of fault, and therefore if he guarded properly and was not negligent in guarding it, he is exempt from payment. But the basis of liability is not the negligence in guarding; it is the very fact that some periphery of his caused damage.
I later found that in Beit Yishai, by Rabbi Shlomo Fisher, vol. 1 sec. 76, he discusses the topic of a person who causes damage and argues at length that when a person causes damage unintentionally, it is considered as though his body caused damage, and the person, the spirit, the soul, is responsible for the damages of his body just as for the damages of his property. But when a person causes damage intentionally, deliberately, he becomes liable because he himself, his spirit, caused the damage, and not under the law of responsibility for damage caused by his body. See his discussion there and its relevance here.

If so, the explanation of the view that the very fact that his damaging property obligates him to pay is parallel to the understanding that his body, when it causes damage, obligates him to pay. A person is responsible for everything that his periphery does: his body and his property. The payment liability in both cases is not due to negligence but to the very fact that his periphery caused damage, though there is a difference with respect to the degree of compulsion for which one is liable, and this is not the place to elaborate.
It is clear that this understanding differs from the previous one in that here there is no imposition of punishment or payment duty on the damaging property itself, so an ownerless ox will be exempt. That is, even if we accept Nachmanides’ words above in Parashat Noah, we do not extend them beyond property that killed to property that merely caused damage. Our present explanation assumes that the obligation is on the owner and not on the ox, except that the owner becomes liable to pay by virtue of the very fact that his property caused damage, and not because of his negligence in guarding it.
I later found in Tzafnat Paneach, Laws of Terumot p. 32a col. 1, that he says this explicitly regarding liability for ransom payment when his ox killed, and some of the examples he brings there parallel what we will bring below. His words are:
Indeed, it appears that this is what our Talmud in Bava Kamma 44b disputes, for it holds that with pebbles splashed by an animal there is no ransom according to everyone, whereas the Jerusalem Talmud holds in chapter 2 law 1 that one is liable for ransom for pebbles; see there. They disagree on this point: we rule that a person's force is like his body in Bava Kamma 17 and elsewhere. But this depends on the following: whether the obligation is on the person because he did not guard his ox and it killed, or whether the obligation is on him because of the ox. See Sanhedrin 15b: 'He is a murderer'—for his own act of murder you hold him liable [read: 'for his own act of murder you put him to death, but you do not put him to death for the murder committed by his ox']; this implies that the liability is for the act of his ox. Similarly Rashi explains at the beginning of tractate Nazir regarding the Sabbath-rest of his animal: whether the liability is his own or his ox's. See also the Jerusalem Talmud, Sabbath chapter 5: 'An animal has no burden on the Sabbath,' and likewise in chapter 5 of Beitzah. A practical implication is what Rashi wrote on Sabbath 94 and Pesahim 66: that with a person riding the animal there is no violation on account of driving it, but there is on account of the Sabbath-rest of his animal. So too is proven by the Jerusalem Talmud in chapter 5 of Beitzah just mentioned.
Tzafnat Paneach is dealing with ransom liability, which is an atonement-obligation on the person, and there he discusses whether this is an obligation because of the act of his ox. From this one can learn all the more so with respect to liability to pay damages, for there there is no dimension of atonement and transgression, only a monetary obligation toward the injured party; hence it is easier to say that this is because of the act of his ox. The principal example he brings is the Sabbath-rest of his animal, and we will briefly discuss it in the next chapter. See there at length for further examples Tzafnat Paneach brings for this principle.
It should be noted that if one can indeed say that a person incurs a transgression by force of the act of his ox, then the liability to pay damages because of the act of his ox apparently derives from a prohibition defined in the same way. That is, according to this direction one may say that not only the liability to pay is because of the act of his ox, but also the prohibition he transgresses is because of the act of his ox, analogous to murder in the Sanhedrin passage mentioned and to the Sabbath-rest of his animal as we will see below, and the liability to pay is a liability derived from the prohibition.

According to our present explanation, it still requires clarification why a person is exempt from paying damages when he guarded his ox properly. One must say that in such a situation he is considered under compulsion, and therefore just as he would be exempt from punishment for transgressions of his body in such a case, so too he is exempt regarding transgressions of his property. But with respect to a person who causes damage in a totally unavoidable accident, according to the medieval authorities who hold that he is nevertheless liable to pay, it seems obvious that there is no dimension of punishment here, only payment liability. Therefore one might say that in the case of damages caused by his property the law is likewise: the monetary liability is because of the act of his ox, but there is no actual prohibition here because of the act of the ox; perhaps there is a prohibition in the negligence of guarding. If this is the correct understanding, then the proofs from the Sabbath-rest of his animal are only illustrative, for here there is no prohibition, only a monetary obligation because of the act of his ox.

To summarize this direction: the main novelty is that a person’s property is not a separate object standing in a legal relation of ownership to him; rather, there is also a metaphysical relation between them. The property is a relatively external part of the owner himself, analogous to his body. Most plausibly, the legal relation between them—ownership—is derived from the metaphysical relation.
Below we will try to show ways in which a person’s property is treated as his periphery, that is, that there is a metaphysical and not merely legal relation between them. Such treatments can be seen through various examples in halakhic literature, which we will now discuss, and afterward we will bring similar treatments from outside the world of Jewish law.

D. The law of the Sabbath-rest of his animal

In this chapter we will bring several halakhic examples of the metaphysical relation between a person and his property, including the example of the Sabbath-rest of his animal, also brought by Tzafnat Paneach above, which points to his responsibility for the acts of his property exactly as we described regarding payment for damage caused by damaging property.

Tzafnat Paneach cites Rashi at the beginning of tractate Nazir, 2a; see there, for his language is somewhat awkward, and compare the version of Rabbi Yehudah bar Natan and the Bach’s emendation in Rashi. However, in the Ritva at the beginning of the chapter 'One Who Becomes Overtaken by Darkness' the matter is clearer, and obviously this needs lengthy discussion regarding the various positions of the medieval authorities. Our concern here is only to bring an example of such an approach, and therefore this is not the place to discuss in detail all the medieval positions on the matter.
The Ritva on Sabbath 153b, s.v. 'Rava said', writes:
But Rabbi Isaiah of blessed memory wrote that this is why we do not raise an objection from the law of the Sabbath-rest of his animal: the prohibition of the Sabbath-rest of his animal applies only when one loads it on the Sabbath, or sets it to plow, thresh, or grind and the like on the Sabbath, and the gentile performs labor with it on the Sabbath. But any labor begun while it is still day with the intention that it continue on the Sabbath is permitted by Torah law, for labor done on its own on the Sabbath is permitted by Torah law, and the act of his animal is like labor done on its own on the Sabbath, which is permitted by Torah law, as stated in the first chapter. And this matter is astonishing to me—how could such holy lips say this? For surely anything that counts as labor with respect to one’s own body also counts as labor with respect to one’s animal, for otherwise there would not even be a prohibition of driving an animal, since we require labor done by your animal and there is none. Moreover, the Sabbath-rest of utensils according to Beit Shammai proves the point, for it is forbidden by Torah law even though it was begun while it was still day and is done on the Sabbath on its own. And the Sabbath-rest of utensils according to Beit Shammai is certainly no more stringent than the Sabbath-rest of his animal according to our law. Rather, these statements are certainly incorrect, and what we wrote is the truth in this matter.
There is here a dispute between the Ritva and Rabbi Isaiah concerning the law of the Sabbath-rest of his animal. When one placed things on it on Friday for it to carry on the Sabbath, Rabbi Isaiah holds that there is no prohibition here at all, whereas the Ritva holds that there is a prohibition of the Sabbath-rest of his animal even in such a case, analogous to the Sabbath-rest of utensils according to Beit Shammai.
At first glance, the dispute is precisely about our issue. Rabbi Isaiah holds that the law of the Sabbath-rest of his animal is a prohibition on the person to perform labor with his animal, and this is not the place to explain how that differs from the prohibition of driving an animal, whereas the Ritva holds that the law of the Sabbath-rest of his animal is a prohibition on the person because of the act of his animal. The very fact that the animal performs labor, and not that the person performs labor with it, is what generates his violation of the law of the Sabbath-rest of his animal.
However, even the Ritva’s understanding can be presented in two ways: 1. A 'prohibition' on the animal itself, which the person is commanded to prevent. 2. A prohibition on the person because of the act of his animal. It is clear that according to both formulations, if the person makes efforts to prevent the prohibition by his animal, he is exempt. These two explanations are precisely analogous to the two explanations we brought above concerning liability to pay damages. According to the first explanation, we explained that the 'liability' is on the animal itself, except that proper guarding exempts the owner, and this parallels explanation 1 here regarding the Sabbath-rest of his animal. According to the second direction, the liability is on the person because of the act of his animal, and this parallels explanation 2 of the Ritva’s view on the law of the Sabbath-rest of his animal.
In any event, what emerges from the Ritva is that there is a rule applying to the person that his animal must rest, and not that there is merely a prohibition on him to work with it, which is apparently the law of driving an animal; see the whole passage there and the rest of the Ritva’s remarks, and this is not the place to elaborate. According to this, in the law of damages too there is a rule upon the person that his animal must not cause damage. The liability to pay is because his animal caused damage, and not because of some negligence on his part, as explained above.
This understanding of the law of the Sabbath-rest of his animal requires study of additional passages, such as one who rents an animal to a gentile; see, for example, the Talmudic passage in Avodah Zarah 15a-b, though this is not the place to elaborate.

The basis of this phenomenon, projecting legal consequences from the animal to its owner, is the understanding that ownership is not a merely legal relation. At the foundation of ownership there is a metaphysical relation between the person and his property: the property is part of the person himself, and therefore the acts of the property are relevant for determining a transgression of the owner, on the Sabbath, and his liability to pay, in damages. In the next chapter we will see an example that clarifies the existence of such a relation between a person and his ox.

E. Splitting testimony

The Talmudic issue of splitting a statement is vast as the sea, and this is not the place to discuss it in detail. For our purposes we will discuss one point from the Talmudic passage in Sanhedrin 9b, as it emerges in light of some medieval authorities.
The Talmud in Sanhedrin 9b states:
And Rabbi Yosef said: If one says, 'So-and-so sexually violated me against my will,' he and another witness combine to put him to death. If he says, 'willingly,' he is a wicked person, and the Torah says, 'Do not place a wicked person as a witness.' Rava said: A person is considered related to himself, and a person does not render himself wicked.
We see that the Amoraim disagree whether one may convict a man who sexually violated someone on the basis of the victim’s testimony. If the testimony is that he was violated unwillingly, there is no problem, since the victim is not wicked, for he was under compulsion, and is therefore a valid witness. But if the victim testifies that so-and-so violated him willingly, thereby rendering himself wicked, the Amoraim disagree.
Practically, the law follows Rava, who holds that we divide the statement. That is, we divide the statement of the violated witness: he is not believed regarding himself, that he was violated willingly, since a person is not believed to render himself wicked. But we do accept his words regarding the fact that so-and-so committed the act. See also Sanhedrin 25a regarding Bar Binitos who lent on interest; that is an identical case.
Now in Makkot 7a we find:
Ila'a and Tuvia were relatives of the guarantor. Rabbi Pappa thought to say that, with respect to borrower and lender, they are unrelated. Rabbi Huna son of Rabbi Yehoshua said to Rabbi Pappa: If the borrower has nothing, does not the lender go after the guarantor?!
The Talmud there discusses a loan concerning which the two witnesses are relatives of the guarantor and unrelated to the borrower and lender. The conclusion of the Talmud is that these are invalid witnesses, for if the borrower has nothing to pay, the lender will go after the guarantor, and therefore they have an interest in the matter.
The medieval authorities there, see the Rosh ad loc. and the Kovetz Shiurim of Rabbi Elchanan Wasserman there at length, discuss why we do not divide the statement—namely, why we do not accept their testimony with respect to the borrower, that he indeed borrowed from the lender, while rejecting their testimony with respect to the guarantor.
The Rosh there cites the Ra'avad, whose words are:
The Ra'avad of blessed memory wrote in his responsa that any testimony part of which is invalidated because of the disqualification of kinship is entirely invalid, and we do not split the statement… But where it says, 'A person is related to himself and does not render himself wicked,' this is specifically when he testifies about himself, for that is not testimony at all; it is as though he were not there. A person is not called an invalid witness with respect to himself, such that we should say that testimony part of which is void is entirely void… And just as the murderer does not invalidate the other witnesses to the murder by the rule that testimony part of which is void is entirely void, so too when he testifies about himself and about another together, I do not call it testimony part of which is void and therefore entirely void, because with respect to himself he does not bear the status of a witness at all…
The Ra'avad rules that in the case of Ila'a and Tuvia we are dealing with testimony of relatives about their relative. In such a situation there is no possibility of dividing the statement, because a relative-witness is an invalid witness, and therefore once he is invalid regarding part of the testimony he is invalid for the whole of it. By contrast, when a person testifies about himself, he does not bear the status of a witness at all, and therefore the part of the statement that concerns himself is not testimony at all. In such a case we accept the remaining part of the testimony, and the other part does not invalidate it, because it is not invalid testimony. Thus the Ra'avad proved from the fact that the murderer himself does not invalidate the other witnesses to the murder by the rule that one of them was found to be a relative or otherwise invalid, since he does not bear the status of a witness at all. See his discussion there in full.
Thus, according to the Ra'avad, the rule of dividing a statement applies only to testimony of a litigant himself. Testimony of a relative cannot be divided; rather we say of it that once part of it is void, all of it is void.
Accordingly, the continuation of the passage in Sanhedrin there poses an apparent difficulty. It states:
Rava said: If one says, 'So-and-so had relations with my wife,' he and another witness combine to put him to death, but not to put her to death. What is this teaching us? That we split the statement? That is the same case! You might have said: we say a person is related to himself, but with respect to his wife we do not say so. Therefore it teaches us… For Rava asked: If one says, 'So-and-so sexually violated my ox,' what is the law? Do we say that a person is related to himself but not to his property, or perhaps we say that a person is related also to his property? After raising the question, he then resolved it: a person is related to himself, but a person is not related to his property.
The Talmud first hesitates regarding his wife, and afterward regarding his ox. The Ra'avad, as cited by the Rosh in the Makkot passage above, explains the Talmud’s hesitation as turning on whether his wife is a relative, in which case we do not divide the statement, or whether she is literally like his own body and not like a mere relative, in which case we do divide the statement even regarding his wife. The conclusion is that his wife is like his own body, and therefore we divide the statement in a person’s testimony about his wife.
The Talmud then hesitates regarding testimony about his ox. At first glance this proves that the Talmud entertained the possibility that his ox is not merely his property, but that testimony about his ox is like testimony about himself or about his wife. This would seem to accord explicitly with what we are saying here, that the ox is part of the owner and not merely his property in the purely legal sense.
However, the conclusion of the Talmud is that we do not divide testimony regarding his ox, and see the Ra'avad there, but this too can be interpreted in two ways: either his ox is actually like a relative of his, presumably not more distant, since regarding a relative the Talmud never even entertained the possibility that we would divide the statement, unlike the case of his ox; or indeed his ox is part of him, but a more distant part than he himself, and more distant even than his wife. This is analogous to what we saw regarding liability to pay: for damage caused by his body, a person is liable even under compulsion, whereas with his property, even on the side that holds that the very act of damage by the property generates liability, there is no payment liability in unavoidable accident. That is, the property is a periphery, but a more distant periphery than the body, or than a person’s wife.
From the very fact that the Talmud raises the hesitation regarding his ox, and not regarding his relative, it appears that the Talmud took his ox to be his periphery. According to what we are saying here, there is no need to decide that in the conclusion the Talmud retracted this; rather, it merely decided that this is not a sufficiently close periphery for us to divide the statement.
One should note that if the Talmud’s conclusion were indeed that his ox is merely his property and not a peripheral part of him, it would follow that his property is more remote from him than his relatives are. Yet relatives certainly stand in a relation of metaphysical connectedness to him, and not only a legal one, as in ownership of property. It is implausible that, in the final conclusion, property is more remote than relatives, for regarding testimony about relatives the Talmud never even entertained the possibility of dividing the statement.
It follows that there is a hierarchy of peripheral circles around the person: his body, his wife, his property, his ox, and his relatives. Regarding his body, it is obvious that we divide the statement. Regarding his wife, this is Rava’s innovation, but in practical law we do divide it. Regarding his ox, there is a possibility that we would divide it, but in practical law we do not. Relatives belong to a more distant peripheral circle, regarding which the Talmud does not even raise the possibility of dividing the statement. Thus far we have seen that there is a metaphysical relation between a person and his property, that the property is a peripheral circle of the person himself beyond his body. We saw that various obligations in prohibition and permission, such as the Sabbath-rest of his animal, are derived from this metaphysical relation. We also saw ramifications of this relation of nearness for the possibility of dividing testimony concerning his ox according to the Ra'avad. According to the Ra'avad, testimony about his ox is akin to testimony about himself; once again we see that his ox is his periphery, or part of himself. In the next chapter we will try to show that this metaphysical relation also underlies the relation of ownership between the person and his property, a relation legal in nature. F. Ownership: a metaphysical or a legal relation The relation of ownership that exists between a person and his property is, at first glance, a legal relation. According to this conception, the essence of a person’s ownership of his property is the bundle of rights he has in it, from which is also derived the prohibition on others using his property without permission. One can discern pecuniary aspects that exist between a person and his property that are not exhausted by the legal rights he has in it. This fact hints that the relation between a person and his property is not merely legal, and the legal-financial consequences are only practical implications of the metaphysical relation. We will illustrate this claim with a brief discussion of one example. A slave awaiting a bill of emancipation is a slave in whom his master has no 'monetary ownership' but only 'prohibitory ownership'. The Talmud in Gittin 42b discusses whether there is a law of fine—'the owner of an ox that killed a slave pays a fine of thirty for the slave'—for killing a slave awaiting a bill of emancipation. In the course of the discussion the Talmud says that if he receives the fine, the fine goes to his master, and concludes from this that if such a slave is injured, the payment likewise goes to his master. In Tosafot there, s.v. 'if he injured', they ask why the damage payment goes to his master, for his master has no rights in him, since in monetary terms he belongs to himself. Tosafot answer that since the fine goes to his master, the payment does as well: what difference is there between killing him entirely and killing half of him. The Penei Yehoshua there asks how one can compare payments for killing the slave, which are a fine innovated by the Torah, so that there is room to say that the Torah’s innovation is that they go to his master, to payments for bodily injury, which according to all medieval authorities are compensatory money and therefore should go to the one who lost from the injury, namely the slave himself. The Penei Yehoshua’s words in his answer are not entirely clear to me, but it seems possible to explain his intention as follows. First one must ask why 'prohibitory ownership' is called 'ownership'. What has the slave’s prohibitory status—he is forbidden to marry a Jewish woman and the like—to do with the concept of ownership, which is apparently a purely legal concept? It seems that the concept of ownership is not exhausted by the financial rights a person has in an object. Ownership is a metaphysical relation between him and his property, a relation from which the monetary rights of use and the monetary obligations, the duty to guard it so that it not cause damage, and payment for damages it causes, are derived. The Penei Yehoshua’s claim is that even in the case of a slave awaiting a bill of emancipation there remains a metaphysical relation of the master toward him, and this is what is called 'prohibitory ownership'. True, the master’s monetary-legal rights in the slave no longer exist, but the metaphysical relation that underlay them still exists. After the slave was rendered ownerless and became one awaiting a bill of emancipation, that relation has still not been dissolved, since no bill of emancipation has been given, even though the monetary rights of the master in the slave have already been relinquished and transferred to the slave himself. It seems that the Penei Yehoshua means to say that payments for damages are not compensation in the accepted sense, but a payment whose amount is assessed by the damage caused, whereas its destination is toward the owner of the property, namely the master, and not necessarily toward the direct victim. For this reason, even in the case of one awaiting a bill of emancipation, payments for bodily injury to him go to his master, because his master is still his owner, despite the fact that his master suffers no direct damage or monetary loss from the injury. As stated, it emerges from here that ownership is not a merely legal relation. It is not the bundle of a person’s monetary rights in his property. Ownership is a metaphysical relation between a person and his property, and the owner’s monetary rights are only a practical implication of it. The conclusion is that liability to pay damages for damage caused by one’s property is not derived from the person’s legal ownership of his property. The rights of ownership, like the liability to pay, are both derived from the metaphysical relation that exists between the person and his property. In the previous chapters we saw implications of this relation with respect to the Sabbath-rest of his animal and with respect to dividing testimony. In this chapter we saw that even the monetary rights themselves are derived from this relation. We concluded that payment liabilities for damages caused by one’s property, according to this side of the inquiry, are likewise derived from this metaphysical relation. In the next chapter we will see non-halakhic treatments of this relation that exists between property and its owner. G. Treatments of property as the periphery of the person in non-halakhic literature Several treatments may shed additional light on what we are saying here, and by their nature they are found more explicitly in non-halakhic literature. In Esther 3:13 it says: letters were sent by couriers to all the king’s provinces, to destroy, kill, and annihilate all the Jews, from young to old, children and women, in one day, on the thirteenth day of the twelfth month, which is the month of Adar, and to plunder their spoil. The Vilna Gaon explains there: 'to destroy, kill, and annihilate… and to plunder their spoil.' That is, a person has four elements: nefesh, spirit, soul, and body. The nefesh and the body are one, as explained in the Zohar, that the nefesh is the body’s partner. The fourth is property. It is known that the higher soul is primary with respect to its commandments. Haman wanted to uproot everything: 'to destroy' refers to the commandments corresponding to the soul; 'to kill' refers to the spiritual spirit; 'to annihilate' means even the physical body from the world, so that the name of Israel would not remain; 'and to plunder their spoil' refers to property, that it should be for plunder and not remain gathered in one place, so that their name would not remain in the world. Corresponding to this, on Purim we were given four things: the reading of the Megillah, an additional commandment, corresponding to what he sought to destroy in the soul; corresponding to the spirit, which is in the heart, as in 'my heart rejoices,' we were given joy; corresponding to the body, feasting, so that the body should enjoy from it; and corresponding to 'to plunder their spoil,' gifts to the poor, so that now there should be money even for the poor…' We see in the Vilna Gaon’s words that property is another part of the person surrounding the person’s soul-levels. The nefesh is one with the body, and that is the outer periphery among the elements that are the person himself. Within it lies the spirit, which, as is known from the teachings of the Ari, is the person himself. Within that is the higher soul, which is a divine element from above, the innermost core of the person. The Vilna Gaon adds that around the outer circle, nefesh and body, there is yet another peripheral circle, namely property. This also seems to be the basis of the rabbinic exposition on the verse and you shall love the Lord your God with all your heart, with all your soul, and with all your might; the Sages expounded that with all your might refers to one’s property. Here too we see a structure in which property is a peripheral circle around the heart, with all your heart, that is the spirit that dwells in the heart, and the nefesh, with all your soul, that is the nefesh whose primary seat is in the liver. We find something similar in Tzidkat HaTzaddik by Rabbi Tzadok HaKohen of Lublin, sec. 86: everything that belongs to a person—his wife and his children, his male and female slave, his ox and his donkey, his tent, his silver and his gold, and all that is his—all of it is rooted in his soul. For even the inanimate, the vegetative, and the animate all have roots in the human soul, and the source of their life is from it, as is known. What is acquired by him is that the root of their life is from him; what is ownerless, and every beast of the forest, is because he has not yet repaired all the roots of his life… And as the person is, so are his acquisitions. As they said in Hullin 7: 'The animals of the righteous are not caused to stumble'—from the donkey of Rabbi Pinhas ben Yair. So too with Noah: all the species that were in the ark, which he sustained, presumably were from his own root as mentioned above; therefore they said in Sanhedrin 108 that they had not corrupted their way. He further writes there in sec. 91: all a person’s acquisitions are parts of his life-force spread through created beings… Every part of the world belongs to a particular Jewish soul, meaning that the light of its life-force sustains those creatures. From good deeds the good and pure creatures are sustained; from evil deeds the evil creatures come into being, harmful beings, and likewise murderous idolaters; and so too among inanimate things, the stone by which one was stoned and the wood on which one was hanged [and this is the secret of what the Sages said in Tanna Devei Eliyahu, Seder Eliyahu Rabbah ch. 24, that the Holy One will exact retribution from everything, even from a stone, etc.]… According to the degree of distance of the spreading of his light and life-force into them, so are their nature and relation to him. Some are his acquisitions; some were in his possession for a period and he sold them; some are only on loan or rent for a short time; some he merely saw in the possession of others or looked at in passing somewhere; and some he never saw in his life but merely desired in thought, and so on—there are endless gradations… In these two passages it is quite clear that there are various circles around the person—his wife and his children—and afterward his property, which itself is subdivided into several circles, as stated in the second passage: what is his permanently, what was in his possession for a fixed time, what he has on loan or rent, property he merely saw, that he desired in thought, and so forth. According to the degree of distance and connectedness of these circles to him, so is the relation between him and them. This is exactly what we saw in the previous chapters concerning the relation of the person himself to the body, to property, to his wife, and to relatives. It seems that an explicit source for this appears in the writings of the Ari, in Sha'ar HaMitzvot by Rabbi Chaim Vital on Parashat Mishpatim: we will also explain what the Sages said in Bava Kamma 119: one who robs his fellow of a perutah is as though he robbed his soul, etc. The matter is that every soul is composed of 248 limbs, and every limb is composed of many sparks of light. According to the abundance of lights in that soul, so is the measure of the flow bestowed upon it from above; and according to the flow bestowed upon it is the matter of the wealth it has in this world. Thus, when someone steals his money, he steals from him that upper flow descending to his soul from above. Even if it is only worth a perutah, he robs his soul of a perutah’s worth of the flow bestowed upon him, as mentioned. By this you will understand what the Sages said in Hullin 91 on the verse 'and Jacob was left alone'—from here we learn that the righteous cherish their money, for Jacob returned for small jars… Rabbi Yaakov Moshe Charlap, in Mi Marom, talks on the book of Exodus sec. 61, also addresses this matter, and we will cite a small portion of his words: sometimes we find significance in a person’s property that is not apparently found in the owners themselves. Thus impure terumah may be given to a priest’s animal even though the priest himself is forbidden to eat it. Likewise, with all communal offerings taken from the Temple treasury, a person’s property is offered upon the altar even though the owners themselves are forbidden to approach the sanctuary and offer… Why is this so? Because a person’s property is drawn from the inner conscience; see Sha'ar HaMitzvot of the Ari on Parashat Mishpatim, fol. 16a, where it is explained that a person’s wealth is drawn from the lights of the soul. It has no connection to the external things that accompany a person, destroy him, and conceal the inner conscience… See there, where he further explains on this basis the matter of the shekels weighed out by Haman and the verse and afterward they shall go out with great wealth, but this is not the place to elaborate. H. A conclusion regarding the basis of the prohibition against causing damage Against the background of all the above, let us now return to the laws of damages. In damages caused by property we deal with a situation in which Reuven’s property harms Shimon’s property. On both sides, the injurer and the injured, there is a relation between the person and his property, and as we saw it is not merely a legal relation. The Hatam Sofer wrote in Yoreh De'ah responsum 241 as follows: however, in the law of damages the matter is different. The essence of the matter of damages is a fence for the verse 'and you shall greatly guard your souls,' and 'do not stand idly by your fellow’s blood,' and it is written, 'and bloodguilt shall be upon you.' See tractate Moed Katan 5a. At first glance it would seem from this that the meaning of the prohibition against causing damage and the liability to pay is because one harms his fellow himself, that is, that the property is a periphery of the other person, and harming it is like harming the body of the other person, though later in the Hatam Sofer’s words this does not seem to be his intention, and one can analyze this, but this is not the place. One can also infer this from Maimonides, from the fact that he included the laws of a person who damages another’s property within the laws of a person who injures another person, both in Sefer HaMitzvot and in the Laws of One Who Injures and Damages, separately from the other primary categories of damage, each of which is counted as a separate commandment. Once again we see that the injured party’s property is like the injured party himself, and therefore one who damages it is like one who damages his fellow himself. These are precisely the words of the Talmud, Bava Kamma 119a, cited in Rabbi Chaim Vital above: whoever robs his fellow of a perutah is as if he robbed his soul from him. What emerges from these two sources—and in truth this is the required conclusion from our entire discussion thus far—is that a person’s property is like his extended hand, both with respect to the injurer and with respect to the injured party. Just as the injurer’s property is his extended hand, so that when his ox causes damage it obligates him to pay, so too the injured party’s property is the injured party’s extended hand. As noted above, in damages caused by property we have a situation involving two persons and both of their properties. The conclusion is that the combination of these two relations creates the prohibition against causing damage. Accordingly, perhaps this is itself the basis of the prohibition against damaging another’s property, whether directly or through one’s property: it is tantamount to injuring the other person himself, because his property is part of him, as explained above. Perhaps this provides a possible answer to the perplexity of medieval and later authorities who sought a source for the prohibition against damaging another’s property. The basis of the prohibition, like the basis of the liability to pay, may lie in the fact that the injured party’s property is his periphery, and harming it is tantamount to harming the injured party’s body. In other words, the prohibition against damaging another’s property is an extension, a periphery, of the prohibition against injuring another person’s body. It seems that this is explicitly proven by the Talmud in Bava Kamma 119a just mentioned. In general one can say that the above inquiry regarding what generates payment liability in damages can also be applied to the question of the source of the prohibition against causing damage, or allowing one’s property to cause damage. Here too one may ask whether it is because his property causes damage, or because of negligence in guarding it, though this is not the place to elaborate. I. Additional clarification regarding the role of negligence in guarding Above we assumed that, according to all views, negligence in guarding is required in order to incur liability; the only question is whether negligence is what generates the liability, or whether the very fact that his property caused damage generates payment liability and proper guarding is only an exemption. Throughout our discussion we explained the side according to which the fact that his property caused damage is what obligates him to pay, and proper guarding is merely a claim of exemption. But according to that side of the inquiry, it still requires clarification why, when he guarded properly, he is exempt from payment. At first glance one could understand the exemption as the law of unavoidable accident. Yet that is not so, for it is obvious that a person need not guard his property with maximal care so that it not cause damage, but only with ordinary minimal care, like an unpaid bailee, as people generally guard. In such a case, even if he guarded and the animal nevertheless caused damage, it is hard to understand this as an unavoidable accident. With difficulty one might say that this is the level of unavoidable accident relevant to payment liability for damages, just as we find 'an accident akin to theft and loss'. That is, a person is obligated to guard his property from causing damage with minimal care. If he guarded in that way and his property nevertheless caused damage, this is an exemption of accident even though it is not truly an accident. But this leads us back to the understanding that negligence in guarding is what generates liability, rather than that he merely has a claim of exemption. For in order to have a claim of exemption he must really be under compulsion, as explained above. Therefore it seems, in light of what we said above, that what generates payment liability for damaging property is that the property is like the owner’s extended hand. Just as a courtyard is like the owner’s agent, so too every piece of his property has something of this character. According to this, when a person guards his property, he explicitly demonstrates that he does not want the property to go and cause damage; therefore when the property goes and causes damage, this is not considered his extended hand. To show that the property is not his extended hand when it goes and causes damage, even minimal care suffices. According to what we are saying here, so long as he guards his property in the ordinary way so that it not cause damage, his actions adequately show that he does not want his property to cause damage. In such a state he disconnects the metaphysical bond between himself and his property, and therefore the damaging act of his property does not obligate him to pay, because for this purpose the ox is not his property. For this purpose, the metaphysical bond between him and the ox has been severed, and therefore he is exempt from paying for the acts of his ox. In other words, the exemption when he guarded properly is not a kind of accident-exemption. Rather, when he guards his ox, he disconnects the bond between himself and the acts of his ox. Therefore, if the ox nevertheless goes and gores, this does not suffice to obligate him to pay. This also explains what we find about the degree of accident 'akin to theft and loss'. At first glance it is difficult: in what sense can this be called an accident? In the end, he is not really under compulsion, since it was in his power to prevent the damage. One might have said that maximal guarding is not imposed upon him, and therefore even when he did not guard in that way he is still considered under compulsion, because in the end, in this situation, when he failed to guard fully, he was indeed under compulsion. But according to our view this is very well explained without all that. There are not really various degrees of compulsion. If he is not under compulsion, then indeed he has no accident-exemption. A lower 'degree of accident' is only a weaker severance of the bond between him and his property. The question is what degree of severance is required in order to exempt him from payment for damages. Practically, minimal guarding suffices for that purpose. According to this, it seems that if the property were guarded on its own, not through the acts of the owner or his agent—for example if someone else guarded it—then if the ox went and caused damage, the owner would still be liable to pay. According to the other side of this inquiry, by contrast, it is obvious that there is no basis for liability here, for in the end the ox was guarded. This also explains very well the practical implication cited by Even HaEzel for this inquiry. Even HaEzel mentioned a case in which one left the door open before his animal, and another person came and shut it properly, but the animal dug its way out under unavoidable circumstances and caused damage. Even HaEzel writes that according to the side that what generates liability is negligence in guarding, here he will be exempt from payment, since the negligence did not cause the damage. But according to the other side, that what generates liability is the fact that his property causes damage and the guarding is only a claim of exemption, here he will be liable to pay, since in the end he himself did not guard properly. At first glance his words are very puzzling, as he himself seems to have felt there. Even if what generates liability is the fact that his ox caused damage and the guarding is only a claim of exemption, why should he not be exempt by claiming that the animal was in fact properly guarded? Indeed, if the exemption were by the law of accident—that if he guarded properly it is considered unavoidable—then here too it is in the end an unavoidable event, and Even HaEzel’s claim is unclear. But if, as we have argued, the exemption is not by the law of accident but because the bond between the animal and the owner is severed, then when the owner did not guard properly, even if the animal was in fact properly guarded by someone else, in the end he himself did not reveal through his conduct that he wishes to sever the bond to the acts of his animal, and therefore the acts of his ox still obligate him. Only guarding by the owner himself, or by his agent, can sever the bond between him and the ox and thereby exempt him from payment. Let us explain further. If the exemption were only by the law of accident, it is somewhat difficult why accident would exempt with respect to damage caused by his property but not with respect to damage caused by his body. True, his ox is a more distant periphery than his body, but why should that matter as to whether a claim of accident can exempt him? After all, if accident is an exemption in damages caused by a person, it should exempt both in damage caused by his body and in damage caused by his property. And if accident is not an exempting claim, he should be liable in both cases. In light of what we have said here, however, we can say that the reason for exemption when he guarded properly is that he thereby severs the metaphysical bond between himself and his ox. In other words, the reason for exemption is the severance of the bond between the person, his spirit, and his periphery. If so, it is obvious that this depends on how close and connected that periphery is to him. In a close circle it is harder to sever the bond between him and the surrounding circle. Therefore, when his body causes damage he is liable even under compulsion, and even there the medieval authorities dispute whether this includes complete unavoidable accident or only accident 'akin to theft and loss'. But when it is his property that causes damage, the bond can be severed even by minimal care, like an unpaid bailee, in the ordinary way people guard. In light of this explanation it seems obvious that in Even HaEzel’s case, although it was his property that caused damage, this is exactly like a person who caused damage, since the bond between him and his property was not severed. If so, the rule that a person who causes damage is liable even under compulsion applies here as well, and therefore he is liable even though it was an unavoidable occurrence. According to our view, even regarding his property that caused damage the rule is that the owner is liable even in unavoidable accident, but only so long as the bond between him and his property has not been severed. If the bond was severed, then for this purpose the ox is no longer his property, and therefore he is not liable to pay for its damages. As stated, the exemption is not because it is an unavoidable accident, but because for this purpose it is no longer his ox. Therefore, when another person guards his animal without his knowledge, so that the bond between him and his property is not severed, he is liable for damages even though it was a completely unavoidable accident. Thus the practical implication cited by Even HaEzel is well explained. J. Three concluding remarks 1. The ethicists wrote that the basis of desire is a person’s wish to enlarge himself, whose root is the impulse called pride. Sexual desire is the wish to expand his domain through children and women, and the desire for honor is the wish to magnify himself in terms of society’s regard for him. In these senses, the desire to accumulate money and possessions is likewise an enlargement of the self, for property too is his periphery. 2. In our discussion above we saw that the relation between a person and his property is metaphysical and not merely legal. Property is a broader periphery of the person himself, analogous to his body. Yet generally these ideas arise with respect to a person’s ox, that is, to living property, and not to inanimate objects. It is implausible that anyone would say that we should destroy a person’s inanimate property because it caused damage. That is, the relation discussed here is created by the relation of ownership, but also by the fact that the property in question is living and not inanimate. From Rabbi Tzadok’s words quoted above it appears that the metaphysical relation between a person and his property exists also between him and his inanimate possessions, and not only between him and animals he owns. Every legal relation of ownership is derived from a metaphysical relation. Even so, it nevertheless seems that there is a difference between the relation to the inanimate and the animate. It is highly implausible that punishment would be imposed on the inanimate itself, according to the first direction we proposed. But it is likewise implausible that punishment would be imposed on the person because of the acts of his inanimate property. The reason for the legal difference between animate and inanimate probably lies in the nature of the property itself and not in the relation of the property to the owner. The relation to the owner is similar in both cases, but the liability to pay for damages is derived from a liability imposed on the act of the ox, and according to the first direction we proposed this is a liability on the ox itself, and such a liability does not apply to inanimate objects. Hence there is nothing to transfer to the owner either. 3. In our discussion we saw that the concept of ownership, which is a legal-halakhic concept, is derived from or reflects a metaphysical reality. The laws and legal rules are practical implications of the reality that underlies them. It seems to me that on this point one may generalize and say that at the foundation of all of Jewish law stands a metaphysical system, unlike civil legal systems, which are based on norms or principles of justice and social order. In analyzing liability to pay damages we were forced to reach the metaphysical plane and could not make do with the purely legal plane, but this detail probably testifies to the rule as a whole: all parts of Jewish law, including its 'legal' part, Hoshen Mishpat, are based on reality and not only on norms. Further examples could be given, but this is not the place to elaborate.