Q&A: The Relationship Between the Two Characteristics of Keren
The Relationship Between the Two Characteristics of Keren
Question
Hello Rabbi, I saw an interesting idea in the book Levona Zaka by Rabbi Yaakov Abuchatzira, and I wanted to ask whether the Rabbi agrees with this analysis.
He writes that Tosafot on the phrase “and the teeth of beasts I will send against them” says that a snake’s bite is a subcategory of keren, whereas Tosafot on page 16 on the Mishnah, on the words “and the snake—these are forewarned,” writes that it is a subcategory of regel. At first glance these contradict one another, so he explains that indeed a snake is defined as regel because this is its normal way, but it is also keren because its intent is to cause damage. Therefore it is exempt from payment in the public domain because this is its normal way, but it would seem that on the injured party’s property it functions as keren with respect to liability. In that way the difficulty in Tosafot is resolved.
If so, one can apparently see from his words that the definition of keren is intent to cause damage, even though it is not necessarily abnormal behavior. And perhaps as long as it is still innocuous it would pay half-damages and in the public domain be completely exempt, but if it became forewarned it would pay full damages on the injured party’s property.
Answer
Building a whole tower on the basis of a contradiction between two Tosafot passages is not reasonable. There were many Tosafists, and there certainly are differing opinions among them. True, it is generally assumed that within a single tractate there is one editor, so one would expect coherence, but where there is a direct contradiction with no hint of a resolution, it is not reasonable to build a whole edifice in order to reconcile it. Most likely these are simply two differing opinions, and that is all.
There are also several difficulties with his thesis, because I would have expected this to be mentioned in the discussion at the beginning of the tractate about “their subcategories are not like them,” since here we would have a subcategory that is not like its primary category. Though this can be pushed aside, because here it is a subcategory of two primary categories, somewhat like what we find in the sugya on 6a–b, and that apparently is not considered a subcategory unlike its primary category. Otherwise, why didn’t they bring there all the cases discussed in the sugya on page 6?
As for the claim itself, people have already dealt with the question of what the relationship is between the two characteristics of keren: intent to cause damage and abnormal behavior. He assumes they are not overlapping and that both are required. Usually people assume that these are two aspects of the same characteristic, because if there is damage that is not its normal way (that is, abnormal), then apparently there is intent to cause damage. The reverse, however, is not necessary: damage done intentionally is not necessarily abnormal. That is the case, for example, with a snake, for which this is its normal way. So in principle there is room for this reasoning.
But it still sounds strained to me, because the exemption in the public domain is not based only on its being normal behavior. As the Rif, Maimonides, and the Rosh explained, the exemption in the public domain is because a person has permission to lead his animal there, and therefore as long as the damage is done in its normal way, he is exempt. Does a person have permission to walk a snake through the public domain when its normal way is to cause damage, just because that is its normal way? On the contrary, such a snake is forbidden even to keep in one’s home—“you shall not bring bloodguilt into your house.” So there would be reason to hold him liable for damage everywhere, even in the damager’s own house itself, unlike other damagers, including keren, where if the injured party brought his animal onto the property owner’s premises, the property owner is exempt—and certainly in the public domain.
As for the end of your remarks: if it is a snake’s normal way to cause damage, then it would not have the status of an innocuous animal, and it would be considered forewarned from the outset, as stated on 15b. So there is no such thing as an innocuous snake.