THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Kama, 58
1) UNKNOWINGLY SAVING AN ANIMAL FROM HARM
QUESTION: Rav teaches that when one's animal falls into someone else's
field, not only does the owner have to pay the value of the benefit that the
animal received from what it ate, but he also has to pay for the benefit it
received from the fruit breaking its fall. The Gemara explains that we might
have thought that the owner is exempt from paying for the benefit that the
animal received by breaking its fall, because the owner of the field is
considered to be "Mavri'ach Ari mi'Nichsei Chaveiro" -- saving his friend's
property from a loss, for which his friend does not have to compensate him.
2) AN ANIMAL THAT DAMAGES WITH ITS AMNIOTIC FLUID
RASHI (DH Aval Nechbetah) explains that Rav is teaching that one must pay
even for the damage of the fruit that was crushed by the fall of the animal,
even thought the animal caused that damage unwillingly, and not with a
Why does Rashi give a different explanation than the Gemara gives for what
Rav is teaching? The Gemara explains that Rav is teaching that we do not
consider the owner to be exempt because of the principle of "Mavri'ach Ari,"
as Rashi himself quotes in his following comment. Why, then, does Rashi need
to add another reason to exempt the owner from paying for the crushed fruit,
by saying that the damage was done through an involuntary act? (DEVAR YAKOV)
ANSWER: RASHI is trying to answer how the Gemara could have suggested that
the owner of the animal should be exempt because of "Mavri'ach Ari" even
thought he owner of the fruit sustains a loss, and even though he had no
intention to do so in order to save the animal. (The Gemara eventually
explains that the owner of the field is not considered to be "Mavri'ach Ari"
for exactly these reasons. Rashi wants to explain why the Gemara initially
thought that he should be considered "Mavri'ach Ari.") The Mishnah (21b)
clearly teaches that when an animal jumps from the owner's roof voluntarily
and breaks Kelim in the yard below, the owner must pay for the damage.
Rashi explains that the Gemara only considered calling this an act of
"Mavri'ach Ari" since the animal did not voluntarily cause damage to the
property of the owner of the field, but rather it involuntarily crushed
fruit with its fall. In such a case, the Gemara considered the possibility
that the owner of the field is "Mavri'ach Ari," since it is his Mitzvah to
prevent a loss to his friend's animal. However, if the animal would have
jumped down into the field due to the negligence of the animal's owner, or
if it would have jumped, after it fell, to a lower level of the field and
the fruit on that level cushioned its fall, it is obvious that the owner
would be obligated to pay, because the owner of the field has no obligation
to lose money in order to protect someone else's animal, when the animal's
fall is not b'Ones but is done willingly. It is the owner's responsibility
to cushion the fall of his animal when the animal jumps voluntarily (as the
Mishnah writes clearly on 2!
QUESTIONS: Rebbi Yirmeyah asks what the Halachah would be if an animal
enters another person's field and causes damage with its amniotic fluid
("Mei Leidah"). Is the owner Chayav, because the owner entered the other
person's field due to his negligence, or is the owner Patur, because he had
no reason to suspect that the animal would lose its fluid? On the other
hand, since the animal was due to give birth soon, perhaps the owner should
have expected that such a mishap would occur.
(a) The Gemara earlier (18b) teaches that when an animal damages food by
defecating on it ("Tinfah Peros b'Gelalim"), it is considered a strange way
of causing damage and the owner should be Chayav to pay only Chatzi Nezek
(unless the animal is in a tight place where it has no other choice but to
release its wastes there). Why, then, in our case should it not be
considered Keren when the animal damages with Mei Leidah, since it is an
unusual way to cause damage? (M. Kornfeld)
(b) The Gemara there (18b) concludes that even when the animal is in a
narrow place and therefore its act is considered an act of Regel and not
Keren, the owner still has to pay only Chatzi Nezek, because such an act of
damage is considered Tzeroros, for the animal is causing damage with
something that its body releases, and not directly with its body. Why, then,
should damage caused by Mei Leidah not be considered Tzeroros to obligate
the owner to pay only Chatzi Nezek? (MITZPEH EISAN)
If the Mei Leidah caused damage after it fell by causing someone to slip and
fall, it should be considered Bor, and the owner should be Patur if it
damages Kelim or fruit according to Shmuel. The RAMBAM (Hilchos Nizkei Mamon
3:11) writes that the question of Rebbi Yirmeyah is referring to when an
animal damages fruit with its Mei Leidah. Why, then, is the owner Chayav,
according to Shmuel?
(a) We could suggest that the damage caused by Mei Leidah is indeed
considered Keren and the owner pays only Chatzi Nezek, or that one only pays
Nezek Shalem if the animal has no other place to stand. However, the RAMBAM
(Hilchos Nizkei Mamon 3:11) does not make any of these distinctions and
implies that one pays Nezek Shalem any time his animal damages with Mei
Leidah, because it is considered Regel.
Perhaps we can explain the difference between the case of Mei Leidah and the
case of Tinfah Peros b'Gelalim as follows. Although the Mishnah (2a)
describes Keren as "Kavanaso l'Hazik" ("it has intention to do damage"), we
have seen in many places (such as the case on 18b) that it is not necessary
for the animal to intend to do damage in order to be considered Keren.
Rather, any time the animal causes damage in an unusual manner, it is
considered Keren, even if the damage is done for its own benefit (for
example, if a dog eats a large sheep, 15b; see Insights to 19b).
However, even though the animal does not have to intend to do *damage* in
order for it to be considered Keren, the animal does have to intend to
voluntarily do the unusual act that was done. When the animal damages with
Mei Leidah, which normally does not exit the body through a voluntary act,
it can only be considered Regel and not Keren. (M. Kornfeld)
(b) The CHAZON ISH (6:2) writes that Rebbi Yirmeyah indeed only wanted to be
Mechayev the owner of the animal to pay Chatzi Nezek, because Mei Leidah
*is* considered Tzeroros. However, as we wrote above, the Rambam implies
that one pays Nezek Shalem for damage caused by Mei Leidah.
The DARCHEI DAVID (cited by the DEVAR YAKOV) points out that the Rambam
might be following the opinion of the RI MI'GASH (cited by the Shitah
Mekubetzes on 19a). The Ri Mi'Gash explains that if the animal was ill and
its waste was a continuous flow that came directly from the animal to the
fruit that it damaged, it is not similar to a pebble that shoots out from
the animals foot, since the waste is still touching the animal at the time
that it damages the object. Therefore, if the Mei Leidah reached and damaged
the fruit in a continuous flow while part of it was still touching the
animal, the owner will be Chayav to pay Nezek Shalem, since in such a
situation it is not considered Tzeroros.
Alternatively, perhaps amniotic fluid is considered like part of the animal
itself, an extension of the animal's body. This would be true not only
according to Rava (47a) who maintains that "Ubar Yerech Imo" ("a fetus is
part of the mother's body"), but even according to those who maintain that
the fetus is not considered part of the mother, the fluid around it and the
sack which contains it -- which are not a separate living entity -- *are*
considered part of the mother's body.
In fact, the Gemara earlier (18b) points out that there is even room to
consider Gelalim to be part of the body of the animal, and therefore damage
that it causes might not be considered Tzeroros. (It can be compared to an
animal that kicks and a piece of its hoof breaks off and causes damage. Such
a damage is not considered Tzeroros, since the animal is not damaging by
means of an external object.) Even though the Gemara there concludes that
Gelalim is not considered to be a part of the animal, the amniotic fluid is
identified with the animal more than the Gelalim and therefore it is not
considered Tzeroros. (M. Kornfeld)
2) ASSESSING THE VALUE OF DAMAGED FRUITS
OPINIONS: The Mishnah teaches that when an animal eats fruit from a person's
field, we assess the value of the damage based on the devaluation of the
field. We do not simply make the owner pay the value of the fruit that was
eaten. The Gemara derives this from the verse, "bi'Sdeh Acher" (Shemos
22:4). The Gemara then asks how exactly do we assess the damage. Rebbi Yosi
bar Chanina says that we assess the value of "one Se'ah from sixty Se'ah."
Rebbi Yanai says that we assess one half-Se'ah from sixty half-Se'ah.
Chizkiyah says that we assess one plant from sixty plants.
What does it mean to assess "one Se'ah out of sixty Se'ah?" The damage was
not necessarily done to a Se'ah; it might have been more than a Se'ah or
less than a Se'ah!
(a) RASHI explains that according to Rebbi Yosi bar Chanina, there are two
assessments that are made. First, we assess the devaluation of the Beis
Se'ah in which the fruit was eaten. We do not make the owner pay for the
market value of the fruit. For example, if the fruit that was eaten was
worth 10 Zuz on the market, its value would be only 5 Zuz if we assess the
difference in value of the entire Beis Se'ah in which the fruit grew, since
before the damage the Beis Se'ah was worth 100 Zuz, and after the damage it
is worth 95 Zuz. In this example, the damage to the Beis Se'ah was five per
cent of the value of the Beis Se'ah.
HALACHAH: According to all three opinions, Chizkiyah is saying the same
thing. We make a single evaluation in which we assess how much the entire
area that was damaged would cause a field sixty times as large to depreciate
Second, we assess how much a single Beis Se'ah would be worth had it been
sold together with another 59 Beis Se'ah, at the wholesale price. For
example, instead of paying 6000 Zuz for 60 Beis Se'ah (at 100 Zuz each), a
wholesaler charges only 5400 Zuz for 60 Beis Se'ah, meaning that each Beis
Se'ah is worth 90 Zuz at the wholesale price.
We now apply the formula derived from the first assessment to a 90-Zuz Beis
Se'ah and say that if five per cent of a 90-Zuz Beis Se'ah was damaged, the
value of the damage would be only 4.5 Zuz. The Mazik therefore pays only 4.5
When Rebbi Yosi bar Chanina says "Se'ah," he is referring to the first
assessment, and when he says "b'Shishim Se'in," he is referring to the
second assessment which gives a Se'ah the wholesale price.
TOSFOS asks what Rashi's source is for making two assessments. The verse of
"bi'Sdeh Acher" implies only a single assessment. It appears that according
to Rashi the verse only teaches us to make the second assessment and to use
the wholesale value in order to be more lenient on the Mazik. The first
assessment, according to Rebbi Yosi bar Chanina, is based on logic. Since
the fruit is not yet ready to be sold on the market, its true value can only
be determined as part of the whole field's value (see Rashi 59b, DH
(b) TOSFOS (DH Shamin) writes that whether the damage is more or less than a
Se'ah, according to Rebbi Yosi bar Chanina we always evaluate the damage by
looking at a sixty-Se'ah field in which one Se'ah of the field was damaged
in such a manner. We then take the value of the damage and we multiply it by
the number of Se'in that were damaged in this case. Why do we not simply
look at the total amount that was damaged as though it were part of a field
sixty times larger? Why must we first evaluate one Se'ah of damage and then
multiply it? Tosfos explains that when the damage is greater, it devaluates
a field that is sixty times larger to a greater extent than when the damage
is less (as Rashi mentions, DH Mipnei she'Pogem).
According to Tosfos, what is the source for evaluating the damage of a Se'ah
in a field sixty times larger, rather than the entire damage that was done
in a field sixty times larger? The verse teaches only to assess the damage
according to the evaluation of a field sixty times greater. It does not tell
us to look only at a portion of the damage.
Apparently, according to Tosfos as well, this part of the evaluation is
based on logic, since such an assessment will prevent over-charging or
under-charging the Mazik.
(c) The RA'AVAD cited by the RASHBA writes that even according to Chizkiyah,
we evaluate the entire area of the damage by determining how much it
devaluates a field sixty times larger. When Chizkiyah mentions a Se'ah, he
means that if the entire damage was less than a Se'ah, we do not bother to
evaluate the damage by how much it causes a field sixty times larger to
depreciate. Rather, we make the Mazik pay the market price for whatever was
damaged (since the damage was not very large in any case and the Mazik will
not have to pay a large sum).
According to the Ra'avad, Rebbi Yosi bar Chanina is simply limiting the
Gezeiras ha'Kasuv that teaches to evaluate with Shishim to large damages
rather than small damages.
The ROSH (6:8) writes that this is the Halachic opinion, since all the
Sugyos which follow discuss merely evaluating whatever damage that was done
b'Shishim without giving any additional assessments or limitations to the
size of the damage.