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Bava Kama, 21

1) THE CASE OF "MECHAZERES"

QUESTION: The Gemara discusses the Halachah of "Mechazeres," an animal that turns its head while walking in Reshus ha'Rabim and eats from food that is resting in Tzidei Reshus ha'Rabim or in someone's private field adjacent to Reshus ha'Rabim. According to the Gemara's first version, Rav and Shmuel argue over this Halachah. Rav maintains that the owner is Chayav, even though the animal is standing in Reshus ha'Rabim. Shmuel maintains that the owner is Patur, since the animal is in Reshus ha'Rabim. Rav and Shmuel both agree that one is Chayav for damages that the animal causes if the animal leaves the center of the street in Reshus ha'Rabim and entirely enters the Tzidei Reshus ha'Rabim.

According to the Gemara's second explanation, Rav and Shmuel both agree that the owner is Chayav for "Mechazeres." The case about which they argue is where the animal ate food that was resting in a part of someone's property which he designated for public use.

What is the reason why one should be Chayav for damages caused by his animal that turns its head and eats food in the Tzidei Reshus ha'Rabim? We know that one is Chayav for Shen only when it is done in the Reshus of the Nizak, the private property of the victim. Tzidei Reshus ha'Rabim is not the private property of the Nizak!

RASHI in the Mishnah (19b, DH mi'Tzidei) explains that the owner is obligated because of Keren. However, why should this Halachah be included in our Mishnah, which is discussing Shen, and why should the Mishnah rule that the owner pays "Mah she'Hizikah," which implies that he pays Nezek Shalem? Also, why should Rav and Shmuel agree that if the entire animal is standing in Tzidei Reshus ha'Rabim, the owner is Chayav? Why should this be considered Keren?

On the other hand, if the damage of "Mechazeres" is considered Shen, then why should the owner be Chayav if the damage is not done in the Reshus ha'Nizak, as we asked above? In addition, why should "Mechazeres" be any different from the case of an animal that eats food from atop another animal in Reshus ha'Rabim, for which Ilfa (20a) teaches that one is Chayav? Why does Shmuel here say that one is Patur? (The Gemara on 21b says that Shmuel can agree with Ilfa's ruling.)

Third, what is the difference between the case of "Mechazeres" and the case of "Misgalgel" (20a)? Rebbi Zeira asks there what the Halachah is in a case of an animal standing in Reshus ha'Rabim that rolls a bundle of grain from a Reshus ha'Yachid into Reshus ha'Rabim. Is the owner Chayav because the animal rolled the food from Reshus ha'Yachid, or is he Patur because it ate the food in Reshus ha'Rabim? According to Shmuel who says that "Mechazeres" is Patur, even if we take into account where the animal was standing (i.e. Reshus ha'Rabim) at the time that it removed the food from Reshus ha'Yachid, the owner should still be Patur, since only the animal's head was in Reshus ha'Yachid, and that is a case of "Mechazeres," according to Shmuel! (GILYON in Shitah Mekubetzes)

ANSWERS: Rashi seems to contradict himself with regard to which Av Mazik is involved in the act of "Mechazeres." In the Mishnah (19b), Rashi explains that when the animal eats from Tzidei Reshus ha'Rabim, it is an act of Keren. This implies that he understands "Mechazeres" to be a form of Keren, and that it is not the normal way that an animal acts. However, Rashi (21a, DH Kuli Alma Lo Pligi) explains that those who rule that one is Chayav for "Mechazeres" explain that the animal should not have turned its head to the side (because the area to the side is not a public area). Since Rashi writes that the animal "should not" have turned its head, rather than "it is unusual" for the animal to turn its head, he implies that "Mechazeres" is not Chayav because of Keren, but because of Shen.

In TOSFOS and TOSFOS RABEINU PERETZ we can find the answer to the apparent contradiction. They explain that Rashi wrote two different explanations for this Sugya. In his first explanation (Mahadura Kama), Rashi explained (both in the Mishnah, and on 21a) that one is Chayav for "Mechazeres" because it is a form of Keren. This initial explanation of Rashi is preserved in the words of Rashi on the Rif, and in the words of RABEINU YEHONASAN MI'LUNIL (21a). Rashi later changed his mind and decided that "Mechazeres" is a case of *Shen*, and he modified his commentary (on 21a) accordingly. (There are a number of instances in Bava Kama where parts of Rashi's Mahadura Kama and Mahadura Basra appear together in our text of Rashi; see Insights to 18:1.)

We thus have two ways of learning the Sugya of Mechazeres, as follows.

(a) According to Rashi's first Lashon, "Mechazeres" is a form of Keren, because it is unusual for an animal walking through Reshus ha'Rabim to put its head into an adjacent Reshus ha'Yachid. It seems from Tosfos (DH uv'Mechazeres) and other Rishonim that according to this explanation of Rashi, even when the entire animal enters Tzidei Reshus ha'Rabim, the owner is still Chayav because of Keren, and not because of Shen. Just as it is unusual for an animal to put its head into an area adjacent to Reshus ha'Rabim, it is even more unusual for an animal to leave Reshus ha'Rabim entirely. Therefore, Shmuel agrees that when the animal stands entirely in Reshus ha'Rabim and eats there, the owner is Chayav because of Keren. (The ROSH, however, as cited by the Shitah Mekubetzes, explains Rashi's words, with regard to an animal that enters Tzidei Reshus ha'Rabim, differently.)

Similarly, according to the Gemara's second version of the Machlokes between Rav and Shmuel, that says that they argue about a person who designates part of his property for the use of the public, the argument revolves around whether it is considered unusual for an animal to enter such an area that is adjacent to Reshus ha'Rabim (and is, therefore, Keren), or whether it is not unusual (and is, therefore, Shen).

According to this approach, it is clear why one is Chayav for "Mechazeres" in Tzidei Reshus ha'Rabim, even though the damage was not done in the personal property of the Nizak (because one is Chayav for Keren and not Shen). It is also clear that our Gemara has nothing to do with the question of Ilfa (regarding an animal that stretched its neck and ate off of the back of another animal) nor with the question of "Misgalgel," since the Gemara is discussing obligations of Keren and not of Shen.

Why, though, does the Mishnah discuss obligations of Keren in the midst of the Halachos of Shen? The answer is that it discusses Keren for the same reason that it discusses the Halachah of an animal that eats Kesus or Kelim; the Mishnah limits the applications of the Chiyuv of Shen. When the Mishnah says that one must pay "Mah she'Hizikah" with regard to an animal that eats from Tzidei Reshus ha'Rabim, it does not mean that the owner pays in full, but that he pays *in proportion* to the full damage (i.e. either Chatzi Nezek, or Nezek Shalem), and not just what it benefited (see Insights to 20:1).

(b) The other Rishonim, as well as Rashi himself in his Mahadura Basra, chose to explain that one is Chayav for "Mechazeres" because of Shen and pays Nezek Shalem. Why, though, should one be Chayav for "Mechazeres" if the animal eats an object in Tzidei Reshus ha'Rabim? The animal is standing in Reshus ha'Rabim!

They explain that Rav and Shmuel argue whether the exemption from paying for damages of Shen in Reshus ha'Rabim depends on where the animal is standing, or where the food that it eats is resting. Rav maintains that as long as the food is in a Reshus ha'Yachid, the owner of the animal is Chayav. Shmuel maintains that since the owner of land adjacent to Reshus ha'Rabim realizes that animals will be walking near his property and can easily reach over and eat food that is on the edge of his field, he should not keep his food there. Since people do not want to limit the use of Reshus ha'Rabim, they forego claims for any damages to objects that are either in Reshus ha'Rabim or that are in parts of Reshus ha'Yachid that are adjacent to Reshus ha'Rabim (see Rosh 1:1). (Rav does not accept this reasoning, because he holds that people who walk their animals in Reshus ha'Rabim *are* responsible for preventing their animals from even putting their heads into fields that are adjacent to Reshus ha'Rabim.) Even Shmuel agrees that the owner is Chayav if the animal entirely enters the Reshus of the Nizak, or Tzidei Reshus ha'Rabim, because that is the normal case of Shen in Reshus ha'Nizak.

If the Chiyuv of "Mechazeres" is because of Shen, then why is the owner of the animal Chayav when his animal eats from Tzidei Reshus ha'Rabim? At most, it should be like when an animal eats from Chatzer ha'Shutafin, in which case some Amora'im maintain that he is Patur (see 14a)!

Tosfos here explains that the Tzidei Reshus ha'Rabim in front of every house that borders Reshus ha'Rabim is used exclusively by the owner of that particular house.

Tosfos Rabeinu Peretz explains that when one person places fruit in a particular part of Tzidei Reshus ha'Rabim, it becomes prohibited for any other person to bring his animal or food there. Therefore, that area is like the Reshus ha'Yachid of the Nizak as long as his food is there. (See Insights to 14a, in the name of the NIMUKEI YOSEF.)

Why is this case different than Ilfa's case of an animal that reaches up and eats from the back of another animal in Reshus ha'Rabim? The reason it is different is because, in the case of "Mechazeres," the animal was eating food that was on the same level as the food in Reshus ha'Rabim. Therefore, people expect such damages to occur more frequently. Therefore, a case of "M echazeres" might be more lenient than an animal that eats from the back of another animal. On the other hand, the case of "Mechazeres" might be more stringent than the case of an animal that eats from atop another animal in Reshus ha'Rabim, because in the case of "Mechazeres," the animal is leaving the main walkway of Reshus ha'Rabim and eating from the side.

How is the argument between Rav and Shmuel, according to the Gemara's first version, different from the question of "Misgalgel" (20a)? There, Rashi explains that the question of "Misgalgel" is if an animal standing in Reshus ha'Rabim takes an item from Reshus ha'Nizak and eats it in Reshus ha'Rabim, do we look at the Reshus from which the item was taken, or do we look at where the animal ate the item? It seems clear from the Gemara's question that even if the animal is standing in Reshus ha'Rabim and puts its head into Reshus ha'Yachid to take an object from there, we consider it as though the animal took the object from Reshus ha'Nizak, since its head was in Reshus ha'Nizak when it removed the object. We do not consider the animal to be taking an object from Reshus ha'Rabim because its feet are in Reshus ha'Rabim at the time. This seems to contradict Shmuel, who says that one is Patur for "Mechazeres" because we look at the place where the animal's head is!

The GILYON cited by the Shitah Mekubetzes answers that Rebbi Zeira, who questioned what the Halachah would be in a case of "Misgalgel," holds like the second version of our Gemara regarding the Machlokes between Rav and Shmuel. According to that version, even Shmuel agrees that we look at where the head of the animal is, and not where the feet are.

Alternatively, the question of "Misgalgel" does not involve an animal that puts its head into Reshus ha'Yachid and removes an object from there, but rather it involves an animal that entirely enters Reshus ha'Yachid and takes an item out to eat in Reshus ha'Rabim.


21b

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