THOUGHTS ON THE DAILY DAF
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Bava Basra, 20
BAVA BASRA 20-25 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of
love for the Torah and for those who study it.
1) AN ANIMAL'S DANGLING LIMB IN THE WINDOW
QUESTION: The Gemara cites a Beraisa which states that semi-severed limbs
and flesh hanging from an animal in the opening (such as a window) in a wall
between two rooms *does* serve as part of the dividing wall. Thus, if --
with the limb in the opening -- the size of the opening is less than a
Tefach, the Tum'ah of a Mes in one room will not pass through the opening to
the other room. The Gemara asks that in order to be a valid dividing wall,
the wall must be such that it will not be taken away; an animal, though,
with a dangling limb, will be taken away (such as to slaughter it). The
Gemara answers that the Beraisa is discussing a non-Kosher animal, and thus
the owner has no use for it and will not take it away. The Gemara asks that
still, though, the owner will cut off the limb and feed it to his dogs. The
Gemara answers that he will not cut it off in order to feed it to his dogs
because of "Tza'ar Ba'alei Chaim" -- it is prohibited to cause pain to
Why, though, is the Gemara not concerned that the owner will take the
*entire animal* and feed it to his dogs? The limb, consequently, should not
be considered part of the dividing wall, since it will be taken away with
the rest of the animal to be fed to the dogs!
(a) TOSFOS answers that the Gemara is referring to a type of animal which is
used as a pet (such as a monkey), and thus the owner will not give it to the
dogs and he will leave it in the window.
(b) The RASHBA answers that it is unusual to slaughter an animal merely for
the purpose of feeding it to dogs. Thus, we can assume that the owner will
leave it in his window.
(c) The RI MI'GASH answers that slaughtering a non-Kosher animal is
considered to be a form of "Tza'ar Ba'alei Chaim" and is prohibited, and
thus the owner will not slaughter the animal in order to give it to dogs.
Apparently, the Rashba argues and holds that although cutting off a limb of
an animal constitutes "Tza'ar Ba'alei Chaim," killing a non-Kosher animal is
permitted and does not constitute "Tza'ar Ba'alei Chaim."
The PNEI SHLOMO questions the opinion of the Ri mi'Gash. He quotes the NODA
B'YEHUDAH (YD II:10) who says that it is clear from the Gemara in Chulin
(7b) that killing an animal is not considered "Tza'ar Ba'alei Chaim." The
Gemara there relates that Rebbi Pinchas ben Yair refused to enter Rebbi's
home because he owned dangerous mules. Rebbi begged him to enter his home,
promising to cut off the hooves of the mules so that they would no longer be
dangerous. When Rebbi Pinchas said that cutting off the hooves would be
"Tza'ar Ba'alei Chaim," Rebbi instead offered to kill them. Rebbi Pinchas
responded that killing them would constitute "Bal Tashchis." The Gemara
there clearly implies that killing a non-Kosher animal does *not* constitute
"ýTza'ar Ba'alei Chaim."
How does the Ri mi'Gash understand that Gemara, which apparently contradicts
his opinion? Perhaps we may answer that there is a difference between
killing an animal for the benefit of another animal (such as to feed it to a
dog), and killing an animal for the benefit of a person (such as to protect
a person from the danger that the animal poses). (RAV MOSHE FEINSTEIN zt'l
in IGROS MOSHE (CM II:47:1) rules that it is permitted to kill creatures
that are harmful or disturbing to people. He adds that it is preferable,
where possible, not to use one's own hands to kill the creature, in order to
avoid instilling in oneself the negative trait of cruelty.) (Y. Marcus)
2) DAMAGE CAUSED BY ONE'S OVEN
QUESTION: The Mishnah states that one may not construct an oven in his house
when he has a neighbor above him, unless there are at least four Amos
between the oven and the ceiling. If he has a neighbor below him, then he
may construct an oven only if he builds a base of plaster beneath the oven
at least three Tefachim high. The Tana Kama says that even if he took all of
the required precautions, if his oven causes damage to his neighbor's
property, he is obligated to pay.
The Gemara in Bava Kama (61b) teaches that a person may light a fire in his
own property when he distances the fire from his neighbor's property by a
certain distance. The Gemara rules that if his fire then damages his
neighbor's property, he is *exempt* from paying for the damages. Our Mishnah
clearly seems to contradict that Gemara. How are we to reconcile our Mishnah
with that Gemara?
(a) The RIF in Bava Kama (25b) differentiates between the case in the Bava
Kama and the case of our Mishnah. The Gemara in Bava Kama is referring to a
case in which one lights a fire on one, isolated occasion. As long as he
distances the fire the required amount from his neighbor's property, he is
exempt from any damages, because if the fire does go into his neighbor's
property, it is considered an Ones for which he is exempt. Our Mishnah,
though, is referring to an oven which is consistently used. The owner of the
oven, therefore, must be extra cautious to ensure that the oven does not
cause damage to his neighbor's property. If the fire of the oven causes
damage, it is not considered an Ones, but rather it is considered to be a
failure on the part of the owner to guard his oven properly, and thus he is
obligated to pay for the damages.
(b) The KETZOS HA'CHOSHEN (155:1) answers that our Mishnah is discussing a
case in which the oven was placed at the minimum distance required. At that
distance, the heat of the oven normally would not cause damage to the
neighboring property, but it *could* cause damage. Since it is possible that
it could cause damage, the owner is required to be especially vigilant.
Therefore, if damage does occur, the owner is obligated to pay. In contrast,
the Gemara in Bava Kama is referring to a case in which the fire was lit at
such a distance that under normal circumstances it could *not* damage the
neighbor's property, and the owner is not required to give the fire any
extra attention. Therefore, if it does do damage, it is an Ones and the
owner is exempt.
The NESIVOS HA'MISHPAT (155:1) explains the reasoning of the Rif based on
the words of the Ketzos ha'Choshen. In the case of the oven, since the oven
is used regularly, on a daily basis, the Chachamim were lenient on the owner
and required that he move his oven only the minimal distance away from his
neighbor's property. However, the owner must also guard it so that it not
cause damage. In the case in Bava Kama, though, a person does not light a
fire on a regular basis in his field, and therefore the Chachamim were
stringent and required him to move his fire a maximum distance away from his
neighbor's property to avoid doing damage, and thus if it does do damage,
the owner is exempt.
The CHASON ISH (Bava Basra 14:14) explains the reasoning of the Rif as
follows. In the case of the oven, each time he lights the oven, he can
assess the effect that the heat of the oven will have, such as by measuring
the amount of air and the intensity of the heat. When the fire does damage
in the case of an oven, it does not do so by burning out of control, but
rather by the manner in which it was lit and intended to burn in the oven.
Thus, the owner could have foreseen that his oven would cause damage. In
contrast, in the case in Bava Kama, where the person is lighting a fire in
an open area, the factors that might spread the fire and make it cause
damage are not foreseeable, and therefore the damage that the fire causes is
an Ones and he is exempt. (Y. Marcus)