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Bava Kama, 54

BAVA KAMA 54 (Rosh Hashanah) - dedicated by Rabbi Eli Turkel and his wife. May they be blessed with much Nachas from their children and grandchildren and may all of their prayers be answered l'Tovah!


QUESTIONS: The Mishnah teaches that all animals are the same with regard to various Halachos that are taught in the Torah with regard to a Shor. One must pay for damages done to any animal that falls into one's Bor; every animal was prohibited from approaching Har Sinai at the time of Kabalas ha'Torah; one must pay Kefel for stealing any animal; one must return any animal that was lost; one must unload any animal when it is overburdened; it is prohibited to muzzle any animal while it works; one may not interbreed any type of animal; and the Isur of Mechamer on Shabbos applies to all animals.
(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 YEHOSHUA)

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. through Keren.)

(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.)

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