In this lesson, we will study the first Mishnah in the sixth chapter of Tractate Bava Kamma. The main topic of the chapter is the primary category of damage of Fire, but before we reach that, the Mishnah first deals with the guarding of sheep and the damages of Shen and Regel.
"Hokones tzon ladir" - One who brings sheep into a pen:
The Mishnah begins with a person who brings his sheep into a pen. The pen is a corral or enclosure where the animals are kept during the night. In the time of the Mishnah, the pen served as a temporary enclosure: the animals produced manure that fertilized the field, and from time to time the pen would be moved to other parts of the field so that all of it would be fertilized. The animals remain there all night, and the owner is responsible for ensuring that they cannot get out and cause damage.
The required level of guarding:
We have already noted the discussion regarding a forewarned ox concerning the primary category of Keren: is a lesser level of guarding sufficient - the basic and lenient level of guarding - or is an excellent level of guarding required, which is a much higher standard? However, with regard to Shen and Regel, which are the subject of our Mishnah, everyone agrees that a lesser level of guarding is sufficient, the more lenient of the two: a locked gate that will not open in a normal wind, or tying the animal with a strap or a rope. Although this guarding is of a lesser degree, it is sufficient.
The details of the Mishnah:
"Vena'al bepaneha kara'ui veyatza'ah vehizikah - patur" - If he locked it properly and it went out and caused damage, he is exempt. When he brought the animals into the pen and locked the gate properly, in a way that they were expected to stay inside with a lesser level of guarding, and they nevertheless managed to get out - he is exempt. The entire matter hinges on one question: did the owner act irresponsibly? Since he acted responsibly, he is exempt.
"Lo na'al bepaneha kara'ui" - If he did not lock it properly. If he did not lock it properly, such as if the wind could have blown the gate down and indeed did so, he is a negligent watchman and is liable to pay for the damages caused by the animals.
"Nifretzah balaylah" - If it was breached at night. If in the middle of the night, while he was sleeping, the gate fell or broke. Even though he had locked it properly and did not expect this, he is obligated to fix it as soon as he finds out; but at night he does not know about it, and therefore he is exempt. By day, on the other hand, the news reaches him quickly - that his gate is broken and his animals are getting out - and from that moment he bears the responsibility to fix it immediately, and if he fails to do so, he is liable.
"O shepratzuha listim veyatza'ah vehizikah - patur" - Or robbers breached it, and it went out and caused damage, he is exempt. Robbers who came to steal and in the process broke the gate, and through the breach the animals got out and caused damage. The owner of the animals is exempt, as he acted responsibly and locked the gate before them.
"Hotzi'uha listim - halistim hayavim" - If the robbers took it out, the robbers are liable.
Even the robbers themselves are exempt in the case where they breached the gate. While it is true that as a result of their actions the animals got out and caused damage, this is only a gerama - an indirect causation of damage. They did not do anything to the animals themselves, but rather the animals went out on their own, and therefore they do not bear responsibility for them.
The law is different when the robbers took the animals out. This is self-evident: once they came to steal the sheep, took them, and brought them out, they cannot be less liable than an unpaid watchman. They are thieves, and they are the ones who took the animals, and therefore they are liable.
The Gemara explains that the novel ruling here is that the liability applies even when they did not perform an official act of acquisition - the action through which a thief acquires the object regarding his liability, as an acquisition of robbery. They neither pulled the animal nor lifted it, but only chased it outside, until it became startled and ran out the gate. Even though this is not technically an act of acquisition, and under normal circumstances the animals would not be considered theirs, there is a Rabbinic penalty here: the responsibility is placed on the burglars, and any damage the animals cause from this point on - they bear it in full.
In summary: In this Mishnah we learned that for damages of Shen and Regel, a lesser level of guarding is sufficient. One who locks the pen properly but his animals go out and cause damage is exempt, whereas one who does not lock it properly is a negligent watchman and is liable. If the pen is breached at night, he is exempt, and by day he is obligated to fix it immediately. If robbers breached it, the owner is exempt, and even the robbers are exempt because this is only a gerama; but if the robbers took the animals out, they are liable, and even though they did not perform an act of acquisition, the Sages penalized them and imposed the full responsibility upon them.