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Bava Kama, 47


QUESTION: The Mishnah (47a) teaches that if a potter places his pots in someone else's courtyard without permission and they are broken there, the owner of the courtyard (the "Ba'al ha'Bayis") is not obligated to compensate the potter for his pots. If the animal of the Ba'al ha'Bayis is damaged by the pots, then the potter must compensate the Ba'al ha'Bayis.

If the potter brought his pots into the Chatzer with permission, and the animal of the Ba'al ha'Bayis breaks them, then the Ba'al ha'Bayis is Chayav. Rebbi argues and says that the Ba'al ha'Bayis is never Chayav, even when the potter places his pots in the courtyard with the owner's permission, unless the Ba'al ha'Bayis specifies that he will watch the pots while they are in his courtyard.

The Gemara asks that the words of the Chachamim in the first part of the Mishnah seem self-contradictory. Do we assume that a person automatically accepts to guard the property of another person, or not? The Mishnah first teaches that if the potter brings in his pots without permission, then he is responsible for damages done to the Ba'al ha'Bayis' animal. This implies that if he brings his pots in *with* permission, he is *not* responsible for damages done to the animal. We do not assume that a person (in this case, the potter) normally takes responsibility for animals or objects of others that can be damaged by his property (if his property is in a place where it has permission to be), for if a person does watch the property of someone else and protect from being damaged by one's own property, then the potter should take responsibility for the animal even when he brings in his pots with permission! However, the Mishnah then rules that when a person brings his pots into a courtyard with permission of the owner, the owner is obligated to pay for damages that his animal does to the pots -- implying that we *do* assume that a person takes responsibility to protect the property of others!

Rava answers that when a potter brings in his pots with permission, the owner of the courtyard accepts responsibility for anything that happens to them, even if they are broken by the wind. RASHI explains that Rava means to say that when the Ba'al ha'Bayis *invites* a potter into his courtyard, his invitation ("Enter!") implies, "Enter, and I will take care of what you bring in." However, the potter never accepted responsibility for the objects of the Ba'al ha'Bayis (since, obviously, he never had to tell the Ba'al ha'Bayis to bring his items into the courtyard).

It seems that the Gemara's answer is that one only accepts responsibility for the other person's objects if he tells the other person to bring the objects into his domain, but not simply because the objects belong in his vicinity. Why, then, does the Gemara emphasize that when the Ba'al ha'Bayis tells the potter to enter, he accepts responsibility "even if the wind breaks the pots." This point seems totally irrelevant to the answer of Rava; Rava's main point is that the potter who does not say anything does *not* accept responsibility! The Gemara should have emphasized that point, instead of emphasizing the positive aspect (that according to Rava the Ba'al ha'Bayis does accept responsibility even for that which the wind breaks)! (TOSFOS RABEINU PERETZ)


(a) TOSFOS RABEINU PERETZ explains the Gemara's answer as follows. Rava means that since the Ba'al ha'Bayis -- by inviting the potter to come in -- accepts responsibility not only for damages that *his* animal causes to the pots, but even for damages that come from external sources (such as the wind). Accordingly, we can conclude that he intends to exempt the potter from *all* responsibility of watching the pots. Therefore, we can assume that the potter does not have to prevent his pots from damaging the property of the Ba'al ha'Bayis, since the Ba'al ha'Bayis relieved him from the responsibility of watching the pots entirely. The main point of the Gemara is, indeed, that the Ba'al ha'Bayis accepted to protect the pots even from external forces that might harm them. The PNEI YEHOSHUA and RASHASH offer a similar explanation.

However, this does not seem to be the way that RASHI (DH Afilu Nishbarin) and the ROSH (5:3) explain the Gemara.

(b) According to Rashi, perhaps the Gemara means as follows. Originally, the Gemara thought that the logic of the Tana of the Mishnah was that a person naturally accepts to prevent his object from damaging other objects in its proximity when both objects have permission to be there. Since this is assumed to be a universally accepted practice, the potter should also accept responsibility to protect his pots from damaging the animals of the Ba'al ha'Bayis. Rava answers that this is not the logic of the Mishnah at all, since the Tana of the Mishnah means to obligate the owner of the Chatzer even for *external* forces that damage the pots. This is what the Tana means when he says that when the pots are brought in with permission, the Ba'al ha'Bayis is Chayav. Accordingly, it is obvious that this is not based on an unspoken assumption, since there is no reason to assume that a person takes full responsibility for the items of others just because they are in the vicinity of his items. It must be that the owner of the courtyard assumed responsibility verbally, by way of his explicit invitation that includes his acceptance to guard the objects that are brought in. Hence, there is no reason to assume that the owner of the pots took any responsibility at all for the animal of the Ba'al ha'Bayis, since he never made any verbal acceptance to do so.

According to this, the Gemara's words are clear. The Gemara means that the Mishnah holds the Ba'al ha'Bayis responsible not only for what *his* animals do to the pots, but for what *anything* does to the pots, because he verbally accepted to take care of the pots. On the other hand, there is no reason for the owner of the pots, who made no verbal statement, to be responsible for the possessions of the Ba'al ha'Bayis. (M. Kornfeld; the TORAS CHAIM writes a similar approach.)

For what reason does Rashi not explain the Gemara in the manner that Tosfos Rabeinu Peretz suggests? Perhaps Rashi based his explanation on the Gemara later (48b) that teaches that if the two owners of two animals had permission to bring their animals into a certain place (for example, they jointly owned the property (Rashi)), then when one damaged the other without actively causing the damage (for example, both animals tripped on each other), both are exempt from paying for damages. According to Tosfos Rabeinu Peretz, the only reason that the owner of the pots is exempt from damage caused to the animal of the Ba'al ha'Bayis is because the Ba'al ha'Bayis told him to enter, thus absolving the potter from any responsibility. This would not apply in a jointly-owned field, because neither owner needs to give permission to the other and tell him to bring in his ox; each one brings in his ox because he is a partner in the property. Rather, each owner should remain responsible for damages that his ox causes to the other!

According to Rashi's explanation, the Gemara's ruling is clear. Since neither one accepted responsibility verbally for the other one's animal, each is exempt for damages that he caused to the other.

Tosfos Rabeinu Peretz might be following his own opinion when he explains the Sugya there (48b) differently from Rashi. Tosfos Rabeinu Peretz, and Tosfos there (DH Sheneihem), explain that the Gemara there is referring to two people who both had permission to bring their animals into a third person's field. It is not referring to two partners who jointly owned a field. The reason why the owners are both exempt from payment if their animals tripped over each other is because even if a person accepts -- without stating so explicitly -- to guard any object in the proximity of his own object, he only guards the object if he expects it to be there. If two people have permission to enter a third person's courtyard, neither of them has to assume responsibility for the other because they have no reason to be wary of which other people were permitted to enter the courtyard.

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