Torah Community Connections

Week 94 - Thursday - 13 September 2001

BAVA KAMMA: CHAPTER 6: MISHNAH 2

If a person left it in the sun, or gave it over to a deaf-mute, a mental deficient, or a minor, and it went out and caused damage, he is liable. If he gave it over to a shepherd, the shepherd enters in his stead. If it fell into the garden and derived benefit, he pays what it benefited. If it went down in its usual manner and caused damage, he pays for the damage it caused. How does it pay for the damage it caused? We assess the worth of a se'ah in that field, how much it was worth, and how much it is now worth? Rabbi Shimon says, If it ate finished produce, it pays finished produce; if a se'ah, a se'ah, if two se'ahs, two se'ahs.

Kehati

Our mishnah is a continuation of the previous mishnah, and elaborates about sheep which caused damage with its tooth or foot.

If a person left it - the sheep - in - a place where - the sun - would distress it, and even though he locked it in properly, it broke through the door because of its suffering from the sun, or gave it over to a deaf-mute, or - a mentally deficient, or a minor, and it went out and caused damage - with its tooth or foot, he is liable - for the damages it caused, since he was negligent in guarding it.

If he gave it over to a shepherd, the shepherd enters in his stead - to be liable for the damages it caused. The Gemara explains that this does not refer to a case in which the owner of sheep gives them over to a shepherd, since we have already learned "if he delivered it [his ox] to an unpaid custodian, or to a borrower, or to a paid guardian, or to a hirer, then these enter in place of the owner" (4:9, above), but rather it refers to a case in which one shepherd gave the sheep over to another shepherd who was under him (Heb. tahtav, which may mean either "in place of him" or, lit. "under him"), since it is usual procedure for a master shepherd to receive animals from many owners; this shepherd has many apprentice shepherds, to whom he gives over the animals, and they go out to graze the animals in the forests. Our mishnah teaches that even though the general rule is that if a custodian gives something over to another custodian, the first custodian is liable, in this case the second custodian replaces the first, senior, shepherd as regards liability for the sheep, since it is common knowledge that anyone who gives over sheep to a senior shepherd does so in the understanding that he will give the sheep over to the shepherd under him.

If it fell into the garden - under circumstances beyond his control, e.g., it slipped in the public domain, which was higher than the garden into which it fell - and derived benefit - by afterwards eating from the garden bed which was there, he pays what it benefited - from what it ate, and not the damage it caused, i.e., we view this as if it ate barley, and he pays the low price of barley, as was explained above (2:2).

If it went down - to the garden - in its usual manner and caused damage - by eating or by trampling he pays for the damage it caused - as the mishnah proceeds to explain: How does it pay for the damage it caused? We assess the worth of a se'ah in that field - i.e., we do not assess the value of the garden-bed which it ate, since this would entail a large loss for the damager, rather we assess the value of the area in which a se'ah would be planted in that field (50 amot by 50 amot, i.e., 2500 square amot), how much it was - this area – worth - before the animal eats this bed, and how much it is - this area – worth - now, and he pays the difference.

It follows from this that the damager does not pay the entire value of the garden-bed, since if someone buys the area of an entire se'ah, he detracts only a small amount from the price for the single bed which is missing. (Rashi, Bartenura). This is learned from the passage in the Torah, "and it consumed another's field" (Ex. 22:4), which the Sages interpreted as meaning, they assess the damage against another field.

According to another explanation, our mishnah does not explicitly state how the assessment is conducted; the intention of the mishnah is, in a case where the animal ate a se'ah of produce, the se'ah is not assessed by itself, but only along with the entire field. This is the source of the disagreement among the Amoraim in the Gemara concerning the method of assessment. The law is in accordance with Hezekiah, who holds that the damage is always estimated against an area 60 times as large as that damaged, e.g., if it ate an entire se'ah, we assess how much a field of 60 se'ahs would depreciate by the loss of this one se'ah; similarly, if the animal ate one garden-bed, we assess how much a field of 60 garden-beds would depreciate in value by the loss of this garden-bed (Gemara and Tosafot, B. K. 58b).

Rabbi Shimon says, if it ate finished - fully ripe - produce, it pays finished produce - the value of the garden-bed which it ate; if - it ate - a se'ah, then it pays - a se'ah, if two se'ahs, two se'ahs - Rabbi Shimon holds that only produce which still requires the earth, i.e., which has not yet completely ripened, is assessed against an area of land. Ripe produce, however, which no longer needs the earth, even if it has not yet been gathered, is assessed independently. The law is according to Rabbi Shimon.

BAVA KAMMA: CHAPTER 6: MISHNAH 3

If a person stacks sheaves within his fellow's field without permission, and the animal of the owner of the field ate them, he is exempt; and if it was injured by them, the owner of the stacked sheaves is liable; and if he stacked the sheaves with permission, the owner of the field is liable.

Kehati

If a person stacks sheaves - from his produce - within his fellow's field without permission, and the animal of the owner of the field ate them, he - the owner of the field - is exempt - since he could say to the owner of the sheaves, What are your sheaves doing on my property? And if it - the animal of the owner of the field - was injured by them - e.g., if it slipped, the owner of the stacked sheaves is liable - even in a field not surrounded by a fence, since he should have asked permission (Tiferet Yisrael).

And if he stacked the sheaves - within his fellow's field - with permission - and the animal of his fellow ate them, the owner of the field is liable - to pay him for the damage it caused. The Gemara explains that this refers to a valley, with all of the owners of fields within it stacking their sheaves in one field and appointing a custodian there. Since the custodian permitted him to stack his sheaves there, it is as if the custodian told him, Stack your sheaves here and I will guard them for you. Accordingly, even Rabbi who holds that the householder is not liable until he explicitly undertook to guard (5:3, above), would admit in this case that this custodian is liable if the animal of the owner of the field ate of his stacked sheaves. The phrase "the owner of the field is liable" is to the custodian of the threshing floors in this field, or to the owner of the field if he himself undertook to guard the threshing floors.

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