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Week 92 - Monday - 27 August 2001

BAVA KAMMA: CHAPTER 2: MISHNAH 1

In what way is the foot mu'ad with respect to breaking while walking? An animal is mu'ad when walking naturally and breaking; if it kicked, or if chips flew out from under its feet and it broke the vessels, he pays half-damages. If it trampled the vessel and broke it, and it fell on another vessel and broke it, he pays full damages for the first and half-damages for the second. Chickens are mu'ad when walking naturally and breaking; if a cord was tied to its legs, or if it was hopping and broke the vessels, he pays half-damages.

Kehati

This chapter teaches the details of the laws concerning the instances of mu'ad taught in the previous Mishnah (1:4). Just as Chapter 1 begins with the foot, as we explained there that "ox" refers to the foot, this chapter also begins with the foot (Hameiri).

In what way is the foot mu'ad with respect to breaking while walking - as we learned in the previous Mishnah? An animal is mu'ad when walking naturally and breaking - vessels, while walking, with its foot or its body, etc. (Tosafot; Melekh Shelomo, citing Rabbi Yehosef). Most commentators, however, interpret this as follows: "For what is the foot mu'ad? For breaking while walking - since it breaks vessels while walking (Rashi, Bartenura); and not only is the foot itself mu'ad, but the derivatives of the foot are also mu'ad for this, since an animal is mu'ad when walking naturally and breaking" - with its body or its hair, or with the load upon it (Gemara); the owner must accordingly pay full damages. This is the law when the animal caused the breakage in the domain of the injured party. If, however, the breakage occurred in the public domain, then the owner of the animal is exempt, since one is required to look after his own vessels.

If it kicked - with its foot and caused damage, or if chips - splinters and small stones - flew out from under its feet - as it walked - and - fell on and - broke the vessels, he - the owner of the animal - pays half-damages -since a kicking animal is not walking normally, and since it changed its normal behavior in order to cause damage, this is not a derivative of "foot," but rather of "horn." The owner is accordingly obligated only to pay half-damages. As for the chips which were thrown out from under its feet, even though, since the animal was walking normally, the instance is a derivative of "foot," the owner of the animal pays only half-damages, because the animal did not cause the damage with its feet or its body, but rather by indirect action. The Gemara notes that this law is a special halakhah received by tradition. For this case he is liable only if it occurs in the domain of the injured party as for the damages of foot. The owner of the kicking animal must pay, however, even if the damage took place in the public domain, since this latter action is a derivative of "horn." The case of an animal kicking and throwing out chips while kicking poses a problem for the Gemara which asks, during a discussion of the interpretation of our mishnah, whether the owner of the animal in such a case pays half- or quarter-damages (see B. K. 19a; Rambam, Hil. Nizekei Mamon 2:5-6).

If it trampled the vessel - while walking, in the domain of the injured party - and broke it - the vessel - and it - the broken vessel - fell on another vessel and broke it - so that the first vessel was broken by being trampled by its foot, and the second vessel was broken by the indirect action of its foot, i.e. by the chips of the first vessel; he pays full damages for the first - according to the law of foot damages - and half-damages for the second - according to the law for chips. Our Mishnah teaches that even though the animal trampled with such force that the broken vessel was thrown off onto a second vessel and broke it, we do not say that the animal changed its normal behavior and intended to cause damage. This does not constitute a change, and remains damage caused by the foot (Tosafot). According to other commentators, the mishnah teaches that there are instances in which a simple action incurs payment for full damages and for half-damages (Nimukei Yosef).

Even Chickens - and all fowl - are mu'ad - ab initio - when walking naturally and breaking - i.e., mu'ad for foot damages; this is also the law for tooth damages (Nimukei Yosef). If a cord - a rope or string - were tied to its legs - of the chicken (anything tied to the legs of a chicken is called a "cord" [Heb. delil] - Rashi) - or if it was hopping - or scratching the earth with its feet (Rambam) - and broke the vessels - by throwing the cord on them, or with the chips which were thrown out by its hopping, he - the owner of the chicken - pays half-damages - according to the law regarding chips. If, however, the chicken caused damage with its cord while walking, then he pays full damages, since something connected to the body is regarded as part of the body (Rabbeinu Asher, Nimukei Yosef).

The commentators explain (according to the Gemara) that our mishnah refers to an ownerless (hefker) cord, which became entangled around the leg of the chicken, or a cord owned by the owner of the chicken, which the owner had concealed in his house, and which the chicken had found and in which it had become entangled. This is a case of a circumstance beyond the control of the owner, and in such a case if the chicken broke vessels by throwing the cord; the owner pays only half-damages, according to the law regarding chips. If, however, the chicken was entangled by a cord which the owner had not properly concealed, then the owner is obligated to pay full damages even if the chicken broke the vessels by throwing the cord, this in keeping with the law regarding the stone, the knife, and the load which he placed on his roof and which fell in a normal wind and caused damage (Tosafot, Rabbeinu Asher, Yam shel Shlomo).

BAVA KAMMA: CHAPTER 2: MISHNAH 2

In what way is the tooth mu'ad with respect to eating what is fit for it? The animal is mu'ad when eating fruits and vegetables; if it ate a garment or vessels, he pays half-damages. When does this apply? In the domain of the injured party; but in the public domain, he is exempt; if it benefited, he pays what it benefited. When does he pay what it benefited? If it ate from within the open place, he pays what it benefited; from the sides of the open place, he pays what it damaged. From the entrance of a shop, he pays what it benefited; from within the shop, he pays what it damaged.

Kehati

In what way is the tooth mu'ad with respect to eating what is fit for it - as was taught above (1:4)? The animal is mu'ad when eating fruits and vegetables - this is also the law for a beast and fowl as well (Melekhet Shelomo). Most commentators, however, interpret this as follows: "For what is the tooth mu'ad? For eating what is fit for it e.g. the animal is mu'ad when it eats fruits and vegetables," and its owner must therefore pay full damages; the mishnah stated "for eating what is fit for it" in order to include beasts (Rashi, Bartenura, Tosefot Yom Tov). According to a baraita cited in the Gemara, even foods which the animal can barely eat are included in the category of "what is fit for it," and the owner is obligated to pay full damages for such. The Gemara also states that if the animal broke the basket containing the fruits in order to eat the fruits, its owner pays full damages, not only for the fruits, but also for the basket, since this is natural for it (B.K. 19b; see Rambam, Hil. Nizekei Mamon 3:6-8). If it ate a garment or vessels - which it does not normally eat - he pays half-damages - since it changed its normal behavior, the relevant legal category is that of "horn."

When - if it eats fruits and vegetables - does this - the law of paying full damages - apply? If it ate - in the domain of the injured party - as the Torah states concerning damages caused by the tooth, "and it consumed in another's field" (Ex. 22:4); this is also the law for damages caused by the foot, and the injurer is liable for them only if committed in the domain of the injured party, as was explained in the previous mishnah. But - if it ate - in the public domain, he is exempt - from paying. If, however, it ate clothing or vessels, even in the public domain, he is obligated to pay half-damages. Although it might be claimed that since the injured party instituted a change, by leaving his clothing and vessels in the public domain, and the rule is that in every case where A makes a change and B makes another change (i.e., his animal caused damage in a changed manner) B is exempt, we nevertheless do not accept this claim, since it is normal for people to leave their clothing and vessels in the public domain while resting. The law is therefore in accordance with that of "horn."

If it - the animal - benefited - from the fruits and vegetables that it ate in the public domain, so that its owner was not required to provide it with additional food - he pays what it benefited - and not what it damaged. If it ate expensive fruits, we regard them as if they were barley. E.g., if it ate ten liters of dates, the owner of the animal pays the value of ten liters of barley (Rambam), and he pays only a low price for the barley, i.e., one-third less than the market price of barley. If the animal ate something which is worth less than barley, then the owner pays the lesser value of what the animal actually ate. If, however, the animal ate something which injured it, the owner is exempt, since the animal did not benefit from it (Rambam, Bartenura). Others interpret "pays what it benefited" to mean that the owner pays the equivalent of what he would have had to spend on barley for feed (Rashi), e.g., if he was accustomed to feed the animal a kav of barley each night, and it ate a se'ah of his fellow's barley, he nevertheless pays the price of a kav of barley (Hameiri). Another opinion (in the Gemara) holds that payment is not based on barley, but rather on cut grain, i.e., stubble and straw (Rashi); according to this opinion, even if the animal ate barley, the owner pays only the price of cut grain.

When does he pay what it benefited - When does the owner pay only for what the animal benefited in the public domain? If it ate from - the fruits which were standing - within the open place - a place where animals normally walk, he pays what it benefited - as explained above; but if it ate - from - the fruits standing along - the sides of the open place - which is an area where animals do not normally walk, and whose legal status is not that of a public domain, he pays what it damaged - full damages, as in the domain of the injured party. This is the case only if the animal stood at the side of the plaza; if, however, it stood in the plaza and turned its head back and ate from the sides of the plaza, then the owner pays only what it benefited (the opinion of Shmuel in the Gemara; Rambam, Hil. Nizekei Mamon 3:9).

If the animal ate - From - the fruits standing at - the entrance of a shop, he pays what it benefited - since this location has the status of the public domain; But if it ate - from - the fruits which were standing - within the shop - which is the domain of the injured party, he pays what it damaged - full damages.

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