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Bava Basra, 20

1) AN ANIMAL'S DANGLING LIMB IN THE WINDOW

QUESTION: The Gemara cites a Beraisa which states that semi-severed limbs and flesh hanging from an animal in the opening (such as a window) in a wall between two rooms *does* serve as part of the dividing wall. Thus, if -- with the limb in the opening -- the size of the opening is less than a Tefach, the Tum'ah of a Mes in one room will not pass through the opening to the other room. The Gemara asks that in order to be a valid dividing wall, the wall must be such that it will not be taken away; an animal, though, with a dangling limb, will be taken away (such as to slaughter it). The Gemara answers that the Beraisa is discussing a non-Kosher animal, and thus the owner has no use for it and will not take it away. The Gemara asks that still, though, the owner will cut off the limb and feed it to his dogs. The Gemara answers that he will not cut it off in order to feed it to his dogs because of "Tza'ar Ba'alei Chaim" -- it is prohibited to cause pain to living creatures.

Why, though, is the Gemara not concerned that the owner will take the *entire animal* and feed it to his dogs? The limb, consequently, should not be considered part of the dividing wall, since it will be taken away with the rest of the animal to be fed to the dogs!

ANSWERS:

(a) TOSFOS answers that the Gemara is referring to a type of animal which is used as a pet (such as a monkey), and thus the owner will not give it to the dogs and he will leave it in the window.

(b) The RASHBA answers that it is unusual to slaughter an animal merely for the purpose of feeding it to dogs. Thus, we can assume that the owner will leave it in his window.

(c) The RI MI'GASH answers that slaughtering a non-Kosher animal is considered to be a form of "Tza'ar Ba'alei Chaim" and is prohibited, and thus the owner will not slaughter the animal in order to give it to dogs.

Apparently, the Rashba argues and holds that although cutting off a limb of an animal constitutes "Tza'ar Ba'alei Chaim," killing a non-Kosher animal is permitted and does not constitute "Tza'ar Ba'alei Chaim."

The PNEI SHLOMO questions the opinion of the Ri mi'Gash. He quotes the NODA B'YEHUDAH (YD II:10) who says that it is clear from the Gemara in Chulin (7b) that killing an animal is not considered "Tza'ar Ba'alei Chaim." The Gemara there relates that Rebbi Pinchas ben Yair refused to enter Rebbi's home because he owned dangerous mules. Rebbi begged him to enter his home, promising to cut off the hooves of the mules so that they would no longer be dangerous. When Rebbi Pinchas said that cutting off the hooves would be "Tza'ar Ba'alei Chaim," Rebbi instead offered to kill them. Rebbi Pinchas responded that killing them would constitute "Bal Tashchis." The Gemara there clearly implies that killing a non-Kosher animal does *not* constitute "ýTza'ar Ba'alei Chaim."

How does the Ri mi'Gash understand that Gemara, which apparently contradicts his opinion? Perhaps we may answer that there is a difference between killing an animal for the benefit of another animal (such as to feed it to a dog), and killing an animal for the benefit of a person (such as to protect a person from the danger that the animal poses). (RAV MOSHE FEINSTEIN zt'l in IGROS MOSHE (CM II:47:1) rules that it is permitted to kill creatures that are harmful or disturbing to people. He adds that it is preferable, where possible, not to use one's own hands to kill the creature, in order to avoid instilling in oneself the negative trait of cruelty.) (Y. Marcus)

20b

QUESTION: The Mishnah states that one may not construct an oven in his house when he has a neighbor above him, unless there are at least four Amos between the oven and the ceiling. If he has a neighbor below him, then he may construct an oven only if he builds a base of plaster beneath the oven at least three Tefachim high. The Tana Kama says that even if he took all of the required precautions, if his oven causes damage to his neighbor's property, he is obligated to pay.

The Gemara in Bava Kama (61b) teaches that a person may light a fire in his own property when he distances the fire from his neighbor's property by a certain distance. The Gemara rules that if his fire then damages his neighbor's property, he is *exempt* from paying for the damages. Our Mishnah clearly seems to contradict that Gemara. How are we to reconcile our Mishnah with that Gemara?

ANSWERS:

(a) The RIF in Bava Kama (25b) differentiates between the case in the Bava Kama and the case of our Mishnah. The Gemara in Bava Kama is referring to a case in which one lights a fire on one, isolated occasion. As long as he distances the fire the required amount from his neighbor's property, he is exempt from any damages, because if the fire does go into his neighbor's property, it is considered an Ones for which he is exempt. Our Mishnah, though, is referring to an oven which is consistently used. The owner of the oven, therefore, must be extra cautious to ensure that the oven does not cause damage to his neighbor's property. If the fire of the oven causes damage, it is not considered an Ones, but rather it is considered to be a failure on the part of the owner to guard his oven properly, and thus he is obligated to pay for the damages.

(b) The KETZOS HA'CHOSHEN (155:1) answers that our Mishnah is discussing a case in which the oven was placed at the minimum distance required. At that distance, the heat of the oven normally would not cause damage to the neighboring property, but it *could* cause damage. Since it is possible that it could cause damage, the owner is required to be especially vigilant. Therefore, if damage does occur, the owner is obligated to pay. In contrast, the Gemara in Bava Kama is referring to a case in which the fire was lit at such a distance that under normal circumstances it could *not* damage the neighbor's property, and the owner is not required to give the fire any extra attention. Therefore, if it does do damage, it is an Ones and the owner is exempt.

The NESIVOS HA'MISHPAT (155:1) explains the reasoning of the Rif based on the words of the Ketzos ha'Choshen. In the case of the oven, since the oven is used regularly, on a daily basis, the Chachamim were lenient on the owner and required that he move his oven only the minimal distance away from his neighbor's property. However, the owner must also guard it so that it not cause damage. In the case in Bava Kama, though, a person does not light a fire on a regular basis in his field, and therefore the Chachamim were stringent and required him to move his fire a maximum distance away from his neighbor's property to avoid doing damage, and thus if it does do damage, the owner is exempt.

The CHASON ISH (Bava Basra 14:14) explains the reasoning of the Rif as follows. In the case of the oven, each time he lights the oven, he can assess the effect that the heat of the oven will have, such as by measuring the amount of air and the intensity of the heat. When the fire does damage in the case of an oven, it does not do so by burning out of control, but rather by the manner in which it was lit and intended to burn in the oven. Thus, the owner could have foreseen that his oven would cause damage. In contrast, in the case in Bava Kama, where the person is lighting a fire in an open area, the factors that might spread the fire and make it cause damage are not foreseeable, and therefore the damage that the fire causes is an Ones and he is exempt. (Y. Marcus)