THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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Bava Kama, 10
1) A "BOR" WHICH DAMAGES FOOD ITEMS
QUESTION: The Gemara says that the owner of a Bor is obligated for damages
caused to items that are covered ("Nizkei Tamun"). RASHI (DH Shiyer)
explains that this refers to a case where a donkey falls into a Bor while
carrying a sack full of grain. If the grain becomes ruined, then the owner
of the Bor is obligated to pay for it, even though it was inside of a sack.
It seems from the words of Rashi that, normally, the owner of a Bor is
*obligated* for damage done to food by his Bor. Even though we derive from
the verse that one is obligated for "'Chamor' (Shemos 21:33) v'Lo Kelim"
(Bava Kama 28b) -- one is not obligated to pay for damage done to Kelim that
fall into one's Bor -- this does not apply to food items, but only to Kelim.
TOSFOS (DH Shiyer) asks that it seems from the Gemara later (48b) that food
*is* in the same category as Kelim, and the owner of a Bor is *exempt* from
damage done to food! The Gemara there says that if a Bor spoils a person's
water, the owner of the Bor is exempt, because "water is like Kelim" (see
also Rashi there, DH u'Mayim Kelim). The Gemara must be referring to an
*animal* that is inside of a sack that falls into a Bor, as Rashi explains
later (26a, DH she'Ken Yeshno b'Bor). How will Rashi explain that Gemara?
(a) According to the MESHECH CHOCHMAH cited earlier (see Insights to 4b),
Rashi exempts the owner of a Bor that is ten or more Tefachim deep from
damages done to a person (Nizkei Adam), because a person is not expected to
fall into a Bor, since he avoids potentially fatal obstacles. Therefore, the
owner of the Bor did not have to protect it from people falling into it. The
Meshech Chochmah adds that the same logic might apply to the reason why the
Torah exempts a Bor from Nizkei Kelim, damages done to Kelim. A person does
not normally load his Kelim upon a donkey, lest the donkey stumble and the
Kelim fall and break.
If this logic is true, then perhaps the Torah only exempts a person from
damage caused to fragile or breakable Kelim, because people do not load them
onto animals lest they break. However, people *do* load food upon animals,
since food is not likely to become ruined if the animal stumbles. Even if
the sack containing the food tears, the food itself can be washed and used.
However, this applies only to solid food. Liquid food -- which requires a
container when being transported -- will become lost entirely if its
container breaks, and therefore it is not usually loaded upon an animal.
That is why the Gemara later (48b) writes with regard to damage caused by a
Bor to water that it has the same Halachah as damaged caused by a Bor to
Kelim. (M. Kornfeld)
(b) RASHI (3a) writes that the verse in the Torah is discussing only a Bor
that is ten Tefachim deep. As we explained (Insights to 4b), the verse
excludes damages caused to a person by a Bor only when the Bor is ten
Tefachim deep. However, we know that one is exempt for damages caused by his
Bor to Kelim even if the Bor is less than ten Tefachim deep (see Gemara
53b). How can such damages be excluded from the verse, which is discussing a
Bor that is ten Tefachim deep?
It could be that a nine-Tefach Bor is exempt from Nizkei Kelim for a second
reason. It is exempt not because of the Mi'ut of the verse in the Torah
("'Chamor' v'Lo Kelim"), but because we find that a nine-Tefach Bor can be
Chayav only for damages, and any damage that happens to a Kli is not
considered damage but is considered Misah, the "death" of the Kli (see RASHI
28b, DH v'Chelim Peturin).
Hence, there might be a difference between a ten-Tefach Bor and a
nine-Tefach Bor with regard to damage done to food. The Torah excludes a
ten-Tefach Bor only from damage done to Kelim ("'Chamor' v'Lo Kelim"). That
is why Rashi in our Sugya, who is discussing a ten-Tefach Bor like the Bor
of our Mishnah, writes that the owner of the Bor is Chayav for damages done
to Tevu'ah (produce). However, a nine-Tefach Bor, which can only cause
damage and not death, incurs no liability for damage done to Kelim or to
food, since any damage done to such items is considered to be the "death" of
the item. That is why the Gemara (48b) states that the owner of a Bor is
exempt for damage caused to water; it is discussing a Bor that cannot cause
death (i.e. a nine-Tefach Bor).
2) A HEAVY PERSON WHO BREAKS A BENCH
QUESTION: The Beraisa teaches that if five people sat on bench and it did
not break, and then one person came and sat on it and it broke, the last
person is Chayav to pay for the damages. Rav Papa says that this refers to a
person, "Like Papa ben Aba." Rashi says that Papa ben Aba was heavy.
What is the significance of the fact that the person who broke the bench was
heavy? Would the Halachah differ if the person was not heavy?
(a) TOSFOS (DH Kegon) in the name of the RASHBAM explains that when a person
is invited into the home of someone else, the invitation includes permission
to sit on any of the seats or benches in the house, but only if the person
is not extremely overweight. If the person is extremely overweight, then the
invitation does not include permission to sit on the benches in the house.
Therefore, if the person who broke the bench was not very heavy, he would
not be obligated to pay for the damages, since he was permitted to sit down
on them. He was thus considered a "Sho'el" (borrower) who is exempt from
paying for an item that breaks in its normal course of usage ("Meisah Machma
s Melachah"). A person like Papa bar Aba, though, would not have permission
to sit on the bench, and thus he would be Chayav for damaging it.
The Rishonim ask a number of questions on this approach.
First, according to the Rashbam, even if the heavy person was not the last
person to sit on the bench, but he was the first person to sit down, he
should be Chayav if the bench breaks, since the others (who are of normal
weight) are using the bench with permission, while he is using it without
permission. (RABEINU YESHAYAH cited by the Shitah Mekubetzes.)
Second, when the Gemara suggests that the bench eventually would have broken
without the last person sitting on it, but since he sat there it broke
sooner, the Gemara finds it necessary to explain why the other people
sitting on the bench are exempt. The Gemara says that they could claim, "Had
you not sat down, we would have been able to sit longer, and therefore we
should not be liable." The Gemara rejects this excuse by asserting that they
should have arisen immediately when they saw the heavy person sit down next
to them on the bench.
Why, though, do they need to excuse themselves? The reason they are exempt
is because they are sitting there with permission because they are of normal
RABEINU YESHAYAH answers that one question answers the other. It can be
inferred from the fact that the Beraisa obligates the heavy person only
because he is the last one who sat there that the other people sitting on
the bench are also overweight. That is why the last person to sit down is
only Chayav if he is the *last* one to sit there. Otherwise, he would be
exempt and the heavy person who *did* sit there last would be obligated
instead, since he is sitting there without permission. (Even though the
other heavy people are also sitting there without permission, "the bench
would not have broken if he (the last one) had not sat there.")
This answers the second question that we asked. The Gemara needed to find an
excuse to exempt the first people who were sitting on the bench, because
they, too, were heavy (and were sitting there without permission), which is
clear from the fact that the person who broke the bench is Chayav only
because he was *last*. (See TALMID RABEINU PERETZ cited by the Shitah
Mekubetzes who offers a different answer to these two questions.)
(b) TOSFOS cites RABEINU TAM who answers that Rav Papa explains that the
person who broke the bench was heavy, because the Gemara concludes that that
person is Chayav since he leaned on the people who were sitting on the
bench, putting his weight on the bench and, at the same time, preventing the
others from standing up. If he was not very heavy, he would not have been
able to prevent the others from standing up.
According to this approach, Rav Papa is actually answering his own question.
Rav Papa asked why do we not explain that the Mishnah's case is the case of
the Beraisa, in which the last person broke the bench? Rav Papa himself
immediately answers that the Beraisa's case is when the last person pushes
down on the bench and on the people on it, thereby causing the entire damage
and not just the final blow. (According to Rabeinu Tam, the proper Girsa is
"Amar Rav Papa" and not "v'Amar Rav Papa" as it appears in our texts.) The
Gemara then articulates why Rav Papa finds it necessary to explain the
Beraisa in this way. (RASHBA)
According to Rabeinu Tam, it cannot be proven from this Gemara that a person
is permitted to sit on a bench in any house into which he is invited to
(c) The ME'IRI writes that Rav Papa made his comment in a light-hearted
manner. He was commenting that it must have been a very heavy person who
broke the bench. (Rav Papa himself was known to be heavy (Bava Metzia 84a),
and perhaps he was giving himself as an example when he said this, saying
that he would have broken the bench had he sat there.)