We continue in Bava Kamma, Chapter Six, Mishnah 2, and we are still dealing with the matter of the animals that their owner must leave in the pen, and the parameters of the responsibility placed upon him.
"Hini'achah bechamah" - if he left it in the sun:
The owner brought his animals into the pen and locked it before them "kara'uy" - properly, but he left them in the sun. The animals are unable to sit in the heat and bake, and therefore they are restless and do everything in their power to get out of the pen and reach the shade. Thus, the owner left an external factor pushing the animals to leave, and therefore he is liable if they got out and caused damage.
"O shemesarah lecheresh shoteh vekatan veyatztah vehizikah, chayav" - or if he handed it over to a deaf-mute, a deranged person, or a minor, and it got out and caused damage, he is liable:
The owner locked his animals in properly, but handed over responsibility for them to someone who lacks understanding. According to the Rambam, the halachah, and the Shulchan Aruch, by doing so he made the situation worse than if he had said nothing at all. As long as the animals are locked up, the owner can sleep soundly at night knowing that they are remaining in their place; but once he introduces a person of deficient understanding into the picture, this becomes an unpredictable factor:
The deranged person: Thinking he is doing good, he might forget to lock the door, open it, or chase after the animals and frighten them.
The minor: An eleven-year-old boy who was asked to watch the sheep might play with them, open the door, and forget to lock it.
The deaf-mute: He too is included among those lacking understanding, and there is no knowing how he will act.
Because of this, the owner is liable.
"Mesarah laro'eh, nichnas haro'eh tachtav" - if he handed it over to a shepherd, the shepherd takes his place:
The shepherd takes the place of the owner, meaning the responsibility for guarding the animals passes from the owner to the watchman. Because of this, if something happened to the animals or the animals caused damage, the shepherd is responsible and not the owner.
And what is the novelty in this? We already learned in the fourth chapter that the watchman assumes the responsibility from the owner.
The Gemara explains that this refers to a case where the shepherd handed the flock over to another, to an apprentice shepherd. The standard rule is "a watchman who handed over to a watchman": if a person handed his bicycle or his flock over to Reuven to watch them, and afterwards Reuven grew tired of it, or was needed for another matter, and asked Shimon to look after things in his place - this is not permitted. For the depositor chose Reuven because he relied on him, whereas he did not rely on Shimon. Thus, Reuven acted irresponsibly, and he bears the responsibility. The first watchman remains liable even if he was only an unpaid watchman.
The novelty of our Mishnah is that everyone knows that shepherds have apprentices, since they teach others the trade and do not do it alone, and there are other people with them. Therefore, it is taken for granted that this shepherd is permitted to hand the flock over to another shepherd as an apprentice to watch over it, and the original owner agrees to this from the outset. Because of this, it is the second shepherd who assumes the responsibility in place of the first, even if they did not discuss this explicitly.
In practical Halachah, this concept is more relevant to our times than handing over an animal to a shepherd, which is uncommon nowadays. When someone entrusts an object to a friend to watch over, it goes without saying that not only the friend is permitted to watch it, but also his spouse and household members, such as children over the age of bar mitzvah and bas mitzvah. This is a package deal, and there is no need to state it explicitly to understand that the depositor allows this and relies on all household members to perform the safeguarding.
"Nafelah leginah" - if it fell into a garden:
Here we have a new case, featuring two similar scenarios:
A person is keeping sheep on his roof for some reason, and one of them falls from the roof into his fellow's courtyard.
His sheep are crossing a bridge, and one of them falls from the bridge into his fellow's courtyard.
In both cases, there is no blame on the owner. This was not supposed to happen, and therefore it is considered an unavoidable accident, making him exempt from paying for the damage, since he did not act irresponsibly. Nevertheless, as we learned in the previous Mishnah, someone who benefits from his fellow's property must compensate him at least for the benefit.
"Nafelah leginah veneheneis - meshalemes mah sheneheneis" - if it fell into a garden and benefited, it pays for what it benefited:
The animal fell from the roof into the garden, where green tomatoes are growing, and it benefited. This benefit can occur in one of two ways:
The animal landed on the tomatoes, and they cushioned the blow so that its leg did not break.
The animal landed in the garden, and instead of its owner feeding it lunch, it feasted on the tomatoes.
In both cases, although the owner does not pay for the damage caused to the tomatoes, he must compensate the owner of the garden for the benefit he derived. If the animal ate them - the owner saved his regular food expense, and he must pay this amount. And if it ruined the tomatoes upon landing - he must pay how much he would have been willing to pay to place tomatoes there to save his animal from a broken leg. This is not related to the value of the tomatoes themselves, but rather to the value of saving the falling animal.
What is the law if the owner created overcrowding on the roof, and one animal pushed the other down? Is this also considered an unavoidable accident beyond his control, since the animal fell, or is it perhaps negligence, for why did he overload his roof, making it obvious that the animals would fight and one would be pushed off the edge - after all, "accidents don't just happen, they are caused"?
The Rishonim, and subsequently the poskim, debate this matter:
The Shulchan Aruch: In such a situation, the owner is considered negligent and is liable. Therefore, one who creates overcrowding on a bridge or a roof, and an animal is pushed down - he must pay.
The Rema, as noted by the poskim: The matter is considered an unavoidable accident, and he is exempt.
"Yaredah kedarkah vehizikah, meshalemes mah shehizikah" - If it went down in its normal manner and caused damage, he pays for what it damaged:
If the animal entered in its normal manner - the classic case of Shen and Regel - and caused damage, the owner must pay for any damage caused to his fellow's courtyard. Seemingly, there is no novelty here, since this is the ABCs of Shen and Regel. Rather, the Mishnah comes to teach us something new: how we calculate this payment.
"Keitzad meshalem mah shehizik" - How does he pay for what it damaged:
The starting point is that the verse speaks of "another man's field", meaning that the damage was done to the field, and we relate to it as a large field and not as individual squashed green tomatoes or trampled petunia flowers. Therefore, the Mishnah states: "Shamin beis se'ah be'osah sadeh, kamah haysah yafah vechamah hi yafah" - we appraise a beis se'ah of that field, how much it was worth and how much it is worth now. We envision an entire field of those flowers or tomatoes that were eaten or squashed, and we ask how much the field was worth beforehand and how much it is worth afterward.
What is a "beis se'ah"? A se'ah is a measure of volume, which can be compared to a six-pack of two-liter bottles, about twelve liters. A "beis se'ah" is the area in which one plants a se'ah's volume of seeds, such as wheat kernels, and its size according to the Sages is fifty by fifty amos - about six to eight hundred square meters. In other words, twice the area of a doubles tennis court within the lines, or about half the size of a fairly large swimming pool.
We therefore look at a field of this size in its entirety, and we ask how much it was worth before the animal damaged it and how much it is worth afterward, and the difference is paid - and it is clear that this results in a very small sum. In practice, instead of arbitrarily taking a base of a beis se'ah, we calculate sixty times what was damaged: if the animal fell on ten green tomatoes, we ask what the difference is between a field of six hundred green tomatoes and a field of five hundred and ninety - sixty times the ten, which is six hundred.
Rabbi Shimon's approach: "Achlah peiros gemurim, meshalemes peiros gemurim" - If it ate fully ripe produce, he pays for fully ripe produce:
Rabbi Shimon argues: This is understandable when the animal damages a crop, a flower, or anything that has not yet ripened, since their definition depends on the ground and they are part of it, part of the field, and therefore we examine the damage caused to the field and not to the individual tomatoes or petunias. But if we are dealing with a fully ripened tomato, red and tasty, why should we view this as damage caused to the field? It is simply damage caused to individual tomatoes. Therefore, if the animal ate ripe tomatoes, the compensation is calculated according to the full value of the tomatoes, because they are not considered secondary to the ground - they are tomatoes, they just have not been detached yet. As the Mishnah states: "Im se'ah se'ah, im sasayim sasayim" - whatever the amount may be, twelve liters or twenty-four liters, there is no difference: he pays for what it ate.
Halachah: The halachah follows Rabbi Shimon. For damage caused to ripe produce, which no longer needs its attachment to the ground, we calculate the value of the produce itself. However, for things that are still attached to the ground and have not fully ripened, we calculate based on sixty: what would be the selling price of sixty times that amount compared to fifty-nine times that amount, and he pays this difference.