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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.

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 voluntary action.

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! 1b).

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?

ANSWERS:

(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)

58b

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.

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 Zuz.

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'Shishim).

(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.

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 in value.

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.