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Week 94 - Wednesday - 12 September 2001

BAVA KAMMA: CHAPTER 5: MISHNAH 7

Both for an ox as well as for any animal for falling into a pit, and for keeping away from Mount Sinai, and for two-fold restitution (kefel), and for returning a lost article, for unloading, for muzzling, for diverse kinds (kila'im), and for the Sabbath. Similarly, a wild animal and a bird and the like. If so, why did the Torah write ox or ass? Because the Torah speaks of what is usual.

Kehati

Our mishnah teaches that although the Torah speaks of "an ox or an ass concerning pit damages, the law applies to all animals, as well as to wild animals and birds; this is also the case for other matters as well.

Both - i.e. the law is the same - for an ox or for any animal falling into a pit - even though the Torah writes, in the section on pit damages, "and an ox or an ass fell there" (Ex. 21:34), the same law applies to all animals, as it is written, "he shall give money to their owner" (ibid.), which is explained as for everything that has an owner,

and for keeping away from Mount Sinai - at the time of the Giving of the Torah, as it is written, "whether it be animal or man, it shall not live" (Ex. 19:13); although the Torah mentioned only animal, wild beasts and birds were also included,

and for two-fold restitution - for theft, as it is written, "If the theft be found in his hand alive, whether it be ox, or ass, or sheep, he shall pay double" (Ex. 22:3) and "For every matter of trespass, whether it be for ox, for ass, for sheep ... the cause of both parties shall come before the court, he whom the court shall condemn shall pay double to his neighbor" (Ex. 22:8); this law applies for every animal, wild beast, or bird, for the Torah included them by stating "For every matter of trespass";

and for returning a lost article - as it is written, "If you meet your enemy's ox or his ass going astray, you shall surely bring it back to him again" (Ex. 23:4), and "You shall not see your brother's ox or his sheep driven away, and hide yourself from them; you shall surely bring them back to your brother.... And so shall you do with his ass" (Deut. 22:1, 3); this is the law for every animal, wild beast, and bird, since it is written, "And so shall you do with every lost thing of your brother's" (Deut. 22:3),

for unloading - as it is written, "If you see the ass of him that hates you, lying under its burden, you shall forbear to pass by him; you shall surely release it with him" (Ex. 23:5); this is also the law for every animal, wild beast, and bird, which we learn from the analogous use of "ass, ass" in the Torah regarding the Sabbath, where it is written, "nor your ass, nor any of your beasts" (Deut. 5:14);

for muzzling - as it is written, "You shall not muzzle the ox when he treads out the corn" (Deut. 25:4), and we learn from the analogous use of “ox, ox” in the Torah regarding the Sabbath that all animals, beasts, and birds are included in the general rule;

for diverse kinds - as it is written, "You shall not let your animal gender with a diverse kind" (Lev. 19:19), which is also the law for wild beasts and birds, and "You shall not plow with an ox and an ass together" (Deut. 22:10), and this is the law for any two different kinds of animal and beast. Rambam rules, however, that the Torah law is that a person is not liable for the transgression of plowing with kila'im unless he plows and leads two kinds, one of which is ritually clean and the other of which is unclean, such as an ox and an ass; the Rabbis, however, forbade any combination of two kinds, whether the two are unclean or whether the two are clean. On the other hand, Rabbeinu Asher, rules that any combination of two kinds is forbidden by the Torah;

and for the - cessation of work by an animal on the – Sabbath - as it is written, "You shall not do any manner of work, you, nor your son, nor your daughter ...nor your cattle (Ex. 22:10), and "You shall not do any manner of work, you, nor your son, nor your daughter... nor your ox, nor your ass, nor any of your animals" (Deut. 5:14),

Similarly, a wild animal and a bird and the like - as was explained concerning each of the matters listed in the mishnah, above; similarly, regarding the Sabbath, the mention of "any of your beasts" teaches that beasts and birds are included in the general rule;

If so, why did the Torah write ox or ass - in all the matters listed above? Because the Torah speaks of what is usual - something that is prevalent and common, since it is usual for a person to make more use of an ox and an ass for his needs than he does other animals, an ox for work in the field, and an ass for transporting loads.

BAVA KAMMA: CHAPTER 6: MISHNAH 1

If a person takes a sheep into a fold and locked it in properly, and it went out and caused damage, he is exempt. If he did not lock it in properly, and it went out and caused damage, he is liable. If it was broken into at night, or if robbers broke into it, and it went out and caused damage, he is exempt. If the robbers let it out, the robbers are liable.

Kehati

The first three mishnayot of our chapter teach the laws of tooth and foot damages. For this reason our mishnah speaks of "sheep" instead of "ox," and it teaches what type of guarding exempts the owner from liability for these damages.

If a person takes a sheep into a fold - a fenced-off place for sheep - and locked it in properly - the Gemara explains, with a door capable of withstanding an ordinary wind, and it went out and caused damage - with the tooth or foot, he - the owner of the sheep - is exempt - even though he guarded the flock only in an inferior manner, for he locked it in with a door not capable of withstanding an extraordinary wind. Since, however, tooth and foot are mu'ad ab initio, even inferior guarding such as this exempts, as was explained concerning horn which is mu'ad (4:9, above).

If he did not lock it in properly - i.e. but with a door incapable of withstanding even an ordinary wind, and it went out and caused damage - with the tooth or foot, he is liable - to pay full damages, since he was negligent in guarding the flock.

If - he locked the flock in properly, and - it - the door or the partition (according to another interpretation, the sheep) - was broken into at night, or if robbers broke into it, and it went out and caused damage, he is exempt - our mishnah teaches that he is exempt only if it were broken into at night. If, however, it were broken into during the day, and sufficient time passed for him to learn of this and to come and guard the flock, then he is liable (Tosafot).

If the robbers let it out, the robbers are liable - since they acquired it, with respect to liability for its damages (Hameiri). The Gemara explains that even if they did not actually take the flock out, but only stood in front of it until it went out, this is regarded as if they had taken it out with their own hands, and they are liable for the damage it causes (Rambam, Bartenura). When the robbers broke in, however, they are not liable for the damages of the flock, for this is only grama, indirectly caused damage.

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