‫הלכות נזקי ממון‬

‫פרק רביעי‬
Siman: ‫פשיעה‬

Context:

In the fourth Perek, the Rambam introduces the concept of ‫שמירה‬. All of the principles
and cases regarding an owner’s responsibility to pay for his animal’s damages only apply
when the owner was negligent in guarding his animal.

‫פסוקים‬: None

Concepts:

1. ‫א‬:‫(שמירה פחותה (ג‬

‫ שמירה פחותה‬is defined as a fence that can withstand a common wind. The owner
of a ‫ מועד‬animal is considered negligent and obligated to pay for his animal’s
damages, if he does not provide ‫ שמירה פחותה‬for his ‫ מועד‬animal.

2. ‫שמירה מעולה‬
‫ שמירה מעולה‬is defined as a fence that can withstand an uncommon, strong wind.
The owner of a ‫ תם‬is considered negligent and obligated to pay for his animal’s
damages if he did not provide ‫ שמירה מעולה‬for his ‫ תם‬animal. Perhaps a ‫תם‬
requires ‫ שמירה מעולה‬in order to protect the ‫ניזק‬, since he is compensated only ‫חצי‬
‫ נזק‬up to the value of the ‫’מזיק‬s body.

3. ‫ג‬:‫(גרמא (ד‬
‫ גרמא‬is defined as indirectly causing damages. A person is not responsible to pay
for damages caused through ‫גרמא‬. Standing another animal over poison is
considered ‫גרמא‬, and therefore, he is not ‫ חייב‬to pay for the animal if it eats the
poison and dies.

4. ‫ג‬:‫(גרמי (ד‬
‫ גרמי‬is defined as damages that the perpetrator is obligated to pay, even though it
was not directly caused by either him or his animal. ‫ גרמי‬is different than ‫גרמא‬,
because it is immediate and certain. Standing another’s animal over a third party’s
stalk of wheat, is considered ‫גרמי‬, since it is certain that the animal will eat the
wheat immediately.

5. The ‫ שמירה‬that ‫ שומרים‬must provide animals (‫ד‬:‫(ד‬

The person guarding a ‫ מועד‬needs to provide ‫ שמירה פחותה‬to be exempt, and the
person guarding a ‫ תם‬usually needs to provide ‫ שמירה מעולה‬to be exempt. The
only exception is for a ‫ שומר חינם‬watching a ‫תם‬. The ‫ שומר חינם‬is ‫ פטור‬through
‫שמירה פחותה‬, although a ‫ תם‬usually needs ‫ שמירה מעולה‬to exempt the one
watching it. Although the ‫ שומר חינם‬is exempt with ‫שמירה פחותה‬, the animal’s
owner is ‫חייב‬.
6. ‫יא‬:‫(מסר השומר לשומר אחר (ד‬
If a ‫ שומר‬gave the animal to another ‫ שומר‬to guard in his place, the first ‫ שומר‬is ‫חייב‬
to pay the owner, even if the second ‫ שומר‬has a greater degree of liability than the
first ‫שומר‬. For example, a ‫ שומר חינם‬gave it to a ‫ שומר שכר‬to watch. The first ‫שומר‬
is ‫חייב‬, because the ‫ מפקיד‬does not necessarily trust the second ‫ שומר‬to take a
‫ שבועה‬regarding what happened to his animal. ‫שבועת השומרים‬. If the second ‫שומר‬
does not have to swear to prove it was ‫אונס‬, e.g. he had two ‫עדים‬, then the first and
second ‫ שומר‬would be ‫פטור‬. The only exception is if the first ‫ שומר‬gave the object
to his wife or child, and an employer who gave the object to his employee to watch.
In these cases, it’s understood that the first ‫ שומר‬may give it to these people to
watch in his stead. Therefore, if the ‫ פקדון‬is damaged, the second ‫ שומר‬is
obligated to pay.

7. ‫יג‬:‫(שחזיקה פרות מחוברים (ד‬

If the animal damages fruits that are still being nurtured by the field, we have a
problem in evaluating what the animal did. If we look at the fruits as a separate
item, and charge the ‫ מזיק‬their market value, that is exorbitant for the ‫מזיק‬. If we
look at the fruits as a portion of this entire field, and then evaluate what
depreciation the loss of these fruits causes to the field, the difference is minimal,
which is to the ‫’ניזק‬s detriment. Therefore, to balance out the calculation, we
multiply the area of fruits eaten by 60, and then calculate the depreciation of this
piece of land when subtracting the amount of fruits the animal ate.