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Is intent to damage (kavana l'hazik) a reason to exempt or obligate in tort law? The Gemara (גמרא)'s proof from eved v'amah—that a master is exempt when his servant damages because of kavana l'hazik—appears to assume the servant is the master's property (mamon hamazik). Yet shor shor m'Shabbos (שבת) excludes human servants from this gezeira shava. Rabbi Zweig argues the entire sugya has been misunderstood: the master's liability is based on adam hamazik (agency), not mamon hamazik, resolving centuries of difficulty.
This shiur tackles one of the most challenging sugyos in Bava Kamma, focusing on the Gemara (גמרא)'s discussion on daf 3b-4a regarding kavana l'hazik (intent to damage) and the status of eved v'amah (servant and maidservant) in tort law. Rabbi Zweig begins by noting that this sugya has occupied gedolei ha'acharonim for over a century, yet the Rishonim did not address the questions that later authorities found compelling. This observation suggests an alternative understanding may be correct. The Gemara opens with a Sevara: if the Torah (תורה) obligates for shen (tooth—damage done for the animal's benefit), it would not obligate for keren (horn—damage done with destructive intent), because kavana l'hazik would be a reason to exempt. Tosafos (תוספות) explains this as kal v'chomer. The Gemara then reverses, suggesting perhaps kavana l'hazik obligates rather than exempts. To resolve this, the Gemara brings a proof from eved v'amah: even though a servant acts with kavana l'hazik, the master is exempt, showing that kavana l'hazik exempts rather than obligates. The Gemara ultimately concludes this is a takanas chachamim (rabbinic enactment).
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Bava Kamma 3b-4a
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