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Bava Kama, 10

1) A "BOR" WHICH DAMAGES FOOD ITEMS

QUESTION: The Gemara says that the owner of a Bor is obligated for damages caused to items that are covered ("Nizkei Tamun"). RASHI (DH Shiyer) explains that this refers to a case where a donkey falls into a Bor while carrying a sack full of grain. If the grain becomes ruined, then the owner of the Bor is obligated to pay for it, even though it was inside of a sack.

It seems from the words of Rashi that, normally, the owner of a Bor is *obligated* for damage done to food by his Bor. Even though we derive from the verse that one is obligated for "'Chamor' (Shemos 21:33) v'Lo Kelim" (Bava Kama 28b) -- one is not obligated to pay for damage done to Kelim that fall into one's Bor -- this does not apply to food items, but only to Kelim.

TOSFOS (DH Shiyer) asks that it seems from the Gemara later (48b) that food *is* in the same category as Kelim, and the owner of a Bor is *exempt* from damage done to food! The Gemara there says that if a Bor spoils a person's water, the owner of the Bor is exempt, because "water is like Kelim" (see also Rashi there, DH u'Mayim Kelim). The Gemara must be referring to an *animal* that is inside of a sack that falls into a Bor, as Rashi explains later (26a, DH she'Ken Yeshno b'Bor). How will Rashi explain that Gemara?

ANSWERS:

(a) According to the MESHECH CHOCHMAH cited earlier (see Insights to 4b), Rashi exempts the owner of a Bor that is ten or more Tefachim deep from damages done to a person (Nizkei Adam), because a person is not expected to fall into a Bor, since he avoids potentially fatal obstacles. Therefore, the owner of the Bor did not have to protect it from people falling into it. The Meshech Chochmah adds that the same logic might apply to the reason why the Torah exempts a Bor from Nizkei Kelim, damages done to Kelim. A person does not normally load his Kelim upon a donkey, lest the donkey stumble and the Kelim fall and break.

If this logic is true, then perhaps the Torah only exempts a person from damage caused to fragile or breakable Kelim, because people do not load them onto animals lest they break. However, people *do* load food upon animals, since food is not likely to become ruined if the animal stumbles. Even if the sack containing the food tears, the food itself can be washed and used. However, this applies only to solid food. Liquid food -- which requires a container when being transported -- will become lost entirely if its container breaks, and therefore it is not usually loaded upon an animal. That is why the Gemara later (48b) writes with regard to damage caused by a Bor to water that it has the same Halachah as damaged caused by a Bor to Kelim. (M. Kornfeld)

(b) RASHI (3a) writes that the verse in the Torah is discussing only a Bor that is ten Tefachim deep. As we explained (Insights to 4b), the verse excludes damages caused to a person by a Bor only when the Bor is ten Tefachim deep. However, we know that one is exempt for damages caused by his Bor to Kelim even if the Bor is less than ten Tefachim deep (see Gemara 53b). How can such damages be excluded from the verse, which is discussing a Bor that is ten Tefachim deep?

It could be that a nine-Tefach Bor is exempt from Nizkei Kelim for a second reason. It is exempt not because of the Mi'ut of the verse in the Torah ("'Chamor' v'Lo Kelim"), but because we find that a nine-Tefach Bor can be Chayav only for damages, and any damage that happens to a Kli is not considered damage but is considered Misah, the "death" of the Kli (see RASHI 28b, DH v'Chelim Peturin).

Hence, there might be a difference between a ten-Tefach Bor and a nine-Tefach Bor with regard to damage done to food. The Torah excludes a ten-Tefach Bor only from damage done to Kelim ("'Chamor' v'Lo Kelim"). That is why Rashi in our Sugya, who is discussing a ten-Tefach Bor like the Bor of our Mishnah, writes that the owner of the Bor is Chayav for damages done to Tevu'ah (produce). However, a nine-Tefach Bor, which can only cause damage and not death, incurs no liability for damage done to Kelim or to food, since any damage done to such items is considered to be the "death" of the item. That is why the Gemara (48b) states that the owner of a Bor is exempt for damage caused to water; it is discussing a Bor that cannot cause death (i.e. a nine-Tefach Bor).

10b

QUESTION: The Beraisa teaches that if five people sat on bench and it did not break, and then one person came and sat on it and it broke, the last person is Chayav to pay for the damages. Rav Papa says that this refers to a person, "Like Papa ben Aba." Rashi says that Papa ben Aba was heavy.

What is the significance of the fact that the person who broke the bench was heavy? Would the Halachah differ if the person was not heavy?

ANSWERS:

(a) TOSFOS (DH Kegon) in the name of the RASHBAM explains that when a person is invited into the home of someone else, the invitation includes permission to sit on any of the seats or benches in the house, but only if the person is not extremely overweight. If the person is extremely overweight, then the invitation does not include permission to sit on the benches in the house. Therefore, if the person who broke the bench was not very heavy, he would not be obligated to pay for the damages, since he was permitted to sit down on them. He was thus considered a "Sho'el" (borrower) who is exempt from paying for an item that breaks in its normal course of usage ("Meisah Machma s Melachah"). A person like Papa bar Aba, though, would not have permission to sit on the bench, and thus he would be Chayav for damaging it.

The Rishonim ask a number of questions on this approach.

First, according to the Rashbam, even if the heavy person was not the last person to sit on the bench, but he was the first person to sit down, he should be Chayav if the bench breaks, since the others (who are of normal weight) are using the bench with permission, while he is using it without permission. (RABEINU YESHAYAH cited by the Shitah Mekubetzes.)

Second, when the Gemara suggests that the bench eventually would have broken without the last person sitting on it, but since he sat there it broke sooner, the Gemara finds it necessary to explain why the other people sitting on the bench are exempt. The Gemara says that they could claim, "Had you not sat down, we would have been able to sit longer, and therefore we should not be liable." The Gemara rejects this excuse by asserting that they should have arisen immediately when they saw the heavy person sit down next to them on the bench.

Why, though, do they need to excuse themselves? The reason they are exempt is because they are sitting there with permission because they are of normal weight! (Ibid.)

RABEINU YESHAYAH answers that one question answers the other. It can be inferred from the fact that the Beraisa obligates the heavy person only because he is the last one who sat there that the other people sitting on the bench are also overweight. That is why the last person to sit down is only Chayav if he is the *last* one to sit there. Otherwise, he would be exempt and the heavy person who *did* sit there last would be obligated instead, since he is sitting there without permission. (Even though the other heavy people are also sitting there without permission, "the bench would not have broken if he (the last one) had not sat there.")

This answers the second question that we asked. The Gemara needed to find an excuse to exempt the first people who were sitting on the bench, because they, too, were heavy (and were sitting there without permission), which is clear from the fact that the person who broke the bench is Chayav only because he was *last*. (See TALMID RABEINU PERETZ cited by the Shitah Mekubetzes who offers a different answer to these two questions.)

(b) TOSFOS cites RABEINU TAM who answers that Rav Papa explains that the person who broke the bench was heavy, because the Gemara concludes that that person is Chayav since he leaned on the people who were sitting on the bench, putting his weight on the bench and, at the same time, preventing the others from standing up. If he was not very heavy, he would not have been able to prevent the others from standing up.

According to this approach, Rav Papa is actually answering his own question. Rav Papa asked why do we not explain that the Mishnah's case is the case of the Beraisa, in which the last person broke the bench? Rav Papa himself immediately answers that the Beraisa's case is when the last person pushes down on the bench and on the people on it, thereby causing the entire damage and not just the final blow. (According to Rabeinu Tam, the proper Girsa is "Amar Rav Papa" and not "v'Amar Rav Papa" as it appears in our texts.) The Gemara then articulates why Rav Papa finds it necessary to explain the Beraisa in this way. (RASHBA)

According to Rabeinu Tam, it cannot be proven from this Gemara that a person is permitted to sit on a bench in any house into which he is invited to enter.

(c) The ME'IRI writes that Rav Papa made his comment in a light-hearted manner. He was commenting that it must have been a very heavy person who broke the bench. (Rav Papa himself was known to be heavy (Bava Metzia 84a), and perhaps he was giving himself as an example when he said this, saying that he would have broken the bench had he sat there.)