(a) The Halachos of all the Arba'ah Avos Nezikin, and not just Bor, apply to
damages done to any animal. However, it was not necessary for the Mishnah to
mention that one must pay for damage done by Esh and Adam to any animal,
since the Torah does not specify "Shor" with regard to such damages.
However, the Torah does specify Shor with regard to damages of Keren; it
describes both the one that caused that damage and the victim of the damage
as a Shor. Why, then, does the Mishnah not add that all animals are similar
with regard to paying damages of Keren, or receiving damages of Keren? (PNEI
Moreover, with regard, to Shen and Regel, the Torah does not write Shor, but
it does write "Be'iroh," which would imply a domesticated animal. The only
way we know that one is Chayav for damages done by his Chayah or Of (a wild
animal or bird, which are non-domesticated animals) is from the comparison
to Shabbos, which our Gemara discusses (TOSFOS 17b, DH Ka Mashma Lan). Why,
then, does our Mishnah not also include Shen v'Regel, just like it includes
the Halachah of Hafrashas Har Sinai, in which the Torah writes the word
Behemah and the Mishnah teaches that it includes Chayos and Ofos as well?
(b) Why does the Mishnah write that all animals are equal with regard to
Kefel and Hashavas Aveidah? These Halachos apply not only to animals, but
even to inanimate objects! Hence, these categories should not be included in
the list of items in which the Torah compares a Chayah and Of to a Shor!
(The Mishnah must teach that all animals are the same with regard to falling
into a Bor, since one is Chayav only for animals that fall into a Bor, but
not for Kelim. Kefel and Hashavas Aveidah, though, apply to all items,
animals and Kelim alike.)
In fact, the Mishnah does not compare *fish* to animals and birds with
regard to the Halachos that it mentions. According to one answer in Tosfos
(55a, DH ha'Manhig), fish are indeed *not* included in these Halachos,
except for the Halachah of Kil'ayim, where the Torah explicitly includes
them (see Gemara there, 55a). (The reason for this exclusion seems to be
because it is unusual for a fish to do any of the acts in the Mishnah, for
those acts are acts that are normally done only on land.) With regard to
Geneivah and Hashavas Aveidah, it is obvious that one must return fish just
like any other object that is stolen or lost. Why, then, should the Mishnah
have to include those Halachos in the Mishnah? They have nothing to do with
animals! (SHITAH MEKUBETES)
(a) The PNEI YEHOSHUA answers that all animals are not similar with regard
to damages of Keren. The Mishnah (15b) teaches that certain animals are
Mu'adin m'Techilasan, they are Mu'ad from the start and have no stage of
being Tam. Therefore, the Mishnah here does not want to equate all animals
with regard to Keren.
Similarly, with regard to being damaged, all animals are not equal. If an
animal is Mu'ad for goring one particular type of animal, if it gores a
different type of animal, its owner will pay only as though it were a Tam.
That is why the Mishnah does not list Keren.
However, this answer is questionable. TOSFOS (16a, DH v'ha'Nachash) writes
that even wild animals, like a lion, can indeed be a Tam, in a case where
they cause damage in an unusual way (as the Gemara says (16b)). Also, with
regard to the animal that becomes damaged, all animals are indeed equal,
since the Shor ha'Mazik must be a Mu'ad for any particular animal in order
for the owner to be obligated to pay in full. If the animal is not a Mu'ad
for that particular animal, then the owner pays only Chatzi Nezek. Perhaps
the Mishnah should include these cases as well!
This also does not answer why our Mishnah fails to mention that Shen v'Regel
apply to all animals.
Perhaps the reason why the Mishnah does not mention that all animals are the
same with regard to Keren and with regard to Shen v'Regel is because the
Mishnah (15b, 17b, and 21b) already teaches that one is Chayav for damages
done by one's Chayah or Of (wild animal or bird). Even though the Mishnah
later (62b) teaches that one pays Kefel for any stolen object, since the
Mishnah did not list it before the present Mishnah, this law of Kefel was
included in the list of our Mishnah.
With regard to the animal that sustained damage through Keren, there would
seem to be another reason why our Mishnah does not need to specify that all
animals are equal. It seems that no source is necessary to teach that one is
Chayav no matter what type of animal is damaged, for this Halachah indeed
seems to have no source. The source cannot be from Shabbos, because that
would teach us only that one is Chayav for damages done to an animal, but
not for damages done to inanimate objects, while we know from many places
that one is Chayav for damages of a Shor (Keren) done to any object.
It must be that the source of the Chiyuv for damages done to any object is
based in logic, since there is no logical distinction between requiring that
a person be reimbursed for damages done to his animal and requiring that he
be reimbursed for damages done to any other property of his.
With regard to the animal that *caused* the damage, on the other hand, or
any of the Halachos in our Mishnah, it *would* have been possible to suggest
that one is Chayav only for a Shor, or other common Behemah, since these
types of animals are more common. The Torah would not obligate a person for
damage caused by animals that are less common, since it does not have to
address that unusual situation in order to prevent unwarranted damage from
occurring on a daily basis.
(This applies even to Kefel, since it is a Kenas and not just a
reimbursement, and to Aveidah, since a person is obligated to return even
though he had no involvement in taking the item away from the owner in the
first place. Nezikin, though, which involves a simple *reimbursement*, would
logically apply equally to all objects, since the Torah did address damages
caused in such a manner, and the reimbursement that it calls for therefore
applies to any object at all that is damaged in such a manner -- i.e.
(b) The RA'AVAD (also cited by the Shitah Mekubetzes) writes that the
Mishnah mentions Kefel and Hashavas Aveidah only to teach that there, too,
when the Torah uses the word Shor it does not mean to limit the Halachah to
a Shor. The verse that teaches that these Halachos do apply to all other
animals indeed teaches that these Halachos apply to inanimate objects as
well (and certainly to fish). The words at the end of the Mishnah, "this
applies to Chayos and birds as well," were not addressing Kefel and Hashavas
Aveidah, since these Halachos indeed apply to inanimate objects too.
(This is in agreement with what we mentioned above, since if the verse had
not included all animals, we might have thought that the Halachos of Kefel
and Hashavas Aveidah only to animals that are commonly lost or stolen. That
is why the Mishnah had to include Kefel and Hashavas Aveidah in its list of
Halachos that apply to all animals.)