Bava Kamma, Chapter 2, Mishnah 2. In the first chapter we learned that there are five ways in which an animal is defined as a Mu'edet, meaning that someone who did not guard his animal and it caused damage is obligated to pay for full damages. We are now going through the five ways: in the previous mishnah we dealt with Regel, and now we will deal with Shen.
"Keitzad hashen mu'edet leechol et hara'ui lah?" - Under what conditions does the case fall into the category of Shen, which concerns an animal deriving pleasure for itself and causing damage in the process, for example by actually eating with its teeth? The answer is: the animal is a Mu'edet to cause damage with Shen when eating things that are suitable for it to eat.
"Habehemah mu'edet leechol peirot viyerakot" - Seemingly there is a redundancy here, but the point is that not all animals are behemos. There is another category - chayah, animals that are not domesticated. A person who keeps a deer farm, a pet deer or even a pet cat, is not measured by the same standard, since cats eat things other than fruits and vegetables. The rule therefore depends on what is suitable for that specific animal, whereas the example before us deals with cows, goats and sheep, which are expected to eat fruits and vegetables.
Eating things that it does not normally eat:
If a person's cow eats his friend's belongings - his shoes or his violin - the ruling is "meshaleim chatzi nezek": the owner is indeed liable for damage, but is obligated to pay only half the damage. Cows are not supposed to eat shoes or violins, and such an act is not considered Shen at all, but rather Keren. Keren, as mentioned, is when the animal supposedly intends to cause damage. We do not pretend to delve into the psyche of the cow and know why it chewed the violin; but since this is unusual and extraordinary behavior, the damage falls into the category of Keren.
The foundation of the matter - the question of responsibility:
This is a foundational concept that we will return to again and again: the entire premise here is the question of responsibility. A person who brings his cow into his friend's courtyard, where it stands near fruits and vegetables, should expect the cow to take some for itself, and it is incumbent upon him to be careful. But if the cow happened to be near a violin or shoes, there is no reason to fear that it would eat them; and if it did eat them, the owner is only obligated to pay half the damage, since this unusual act is not Shen at all, because it is not suitable for a cow and it is not its normal way to eat things of this sort, and therefore the matter is considered Keren.
Where does the liability apply?
"Birshut hanizak" - When the animal is in the private domain of the injured party, a place where the cow had no right to be, the burden of guarding falls on the owner of the animal, and he is liable for the damages it caused by eating what is suitable for it.
"Birshut harabim - patur" - In a society where cows walking in the street is an accepted and regular thing, a person walking with his cow in the street, and on his way a wagon full of oats happened to be there, and his cow ate from it - he is exempt.
The reason: the burden of responsibility to ensure the cow does not eat does not accompany the owner in the public domain. In the street, the cow walks in its normal way, and the owner of the merchandise must know that cows walk in the street and are liable to take for themselves, and therefore he must guard his property. The foundation of this matter is in the verse itself, and there is no need to look far: the verse speaks of a person who sends his animal into another field, into the field of another person - and from here we see that in the public domain the concept of Shen does not apply.
"Meshalemet mah sheneheneit":
If the owner derived benefit from his animal eating his fellow's food in the public domain - since he was spared the need to provide his cow with its meal - he is obligated to pay, but not under the laws of damages. This obligation has no connection to the concept of damages dealt with in Tractate Bava Kamma; it is based on simple justice: one who received a free meal for his animal at his fellow's expense must compensate him for feeding his animal.
However, the amount of restitution is determined by the benefit. If feeding the cow usually costs one dollar, he pays one dollar. Even if the oats that were eaten were organic and gourmet, and the amount eaten was worth ten dollars, he still pays only one dollar, because this is not a discussion about damages and it does not matter how much the injured party lost. The cow committed no wrong, and its owner committed no wrong by not preventing it from eating, since they are in the public domain. But since he had to feed his cow anyway, he must transfer the money he saved to the injured party, so that he does not profit from a free meal.
A Dispute Regarding the Amount of Benefit:
A subtle point arises here. Let us assume that the cow's regular food is hay, as that is what people usually feed cows, and a portion of hay costs one dollar. The cow helped itself to his fellow's barley, which costs three dollars. Barley is also a suitable food for a cow, and even more nutritious, but people do not usually feed it to cows because of its high price - it makes no economic sense, and it is better to feed it hay and save the money.
One opinion in the Gemara: He pays only the cost of the hay - one dollar, and that is it.
A second opinion: If the barley had been available at a significant discount, he certainly would have fed it to his cow, since it is better and more nutritious. A significant discount, according to the Gemara, is a discount of one third; meaning, he certainly would not have paid three dollars for a barley meal, but he would have paid two. And since in practice his cow ate barley, he must pay two dollars and not one dollar.
Thus, the dispute in the Gemara, and subsequently among the poskim, is this: Does the owner of the cow who received a free meal pay the value of the cheapest meal he would usually pay for, or the amount he would have paid had he purchased a nutritious meal at a discount - two dollars for the barley.
Examples in the Mishnah - "Keitzad meshalemes mah sheneheneis?" - how does it pay for what it benefited?:
How is a case possible where the owner pays only for his benefit and not for the actual damage? The matter depends on the place where the mishap occurred: Was it in the public domain, a place where the cow is permitted to be, or in a place where it had no business being - in which case its owner is liable for full damages.
"Achlah mitoch harechavah, meshalemes mah sheneheneis" - if it ate from the plaza, it pays for what it benefited - the literal translation of 'rechavah' is the town square, but conceptually this is not a successful translation and it may present an inaccurate picture; one should rather picture this as the middle of the road. Since the cow is permitted to be there, there is no negligence here in letting his animal walk on its way, and on its way it found his fellow's food and ate it. Therefore, he does not pay for damages at all, but only the amount that the cow's meal would have cost him, since his cow is satiated and in better condition at his fellow's expense.
"Mitzidei harechavah, meshalemes mah shehizikah" - if it ate from the sides of the plaza, it pays for what it damaged - 'tzidei harechavah' are the sides of the town square, and for our purposes this can be translated as the sidewalk. The sidewalk is not a place where cows are supposed to walk; it is meant to serve as a safe place for merchants to sell their wares on the side, without expecting cows to come and march there. Cows belong in the middle of the road and not on the sidewalks. Therefore, if a cow ate fruit displayed for sale on the sidewalk - its owner is liable for full damages, since he is responsible for watching his animal, and it had no business being there.
First Qualification - Food That is Unfit for an Animal:
What is the law when the food in question is not animal food at all, but caviar? If on the sidewalk, a place where the cow had no business being, the cow ate caviar worth one hundred dollars - this is not the category of Shen, since it is not the way of cows to eat caviar, and this act is unusual. And since it is unusual, it enters the category of Keren, and the owner is liable for only half damages: instead of one hundred he will pay fifty.
That exact same principle will apply even in the public domain: Even though Shen does not apply in the public domain at all, a cow that eats caviar enters - ironically - the category of Keren, and therefore the owner is liable for half damages even in the public domain (limited to the value of the cow), since the obligation to watch his animal is placed upon him.
A second caveat - food from which there is no benefit:
Conversely, let us assume that the premium organic spelt sold at the stall is harmful to cows for some reason. The cow thinks it has a delicious pile of grain before it, but in reality, the organic produce causes it to have diarrhea, and the owner gains nothing from this other than a vet bill and the need to provide it with a new meal after its stomach ache. Since there was no benefit here, not only does he not pay for the consumption of the grain - because this occurred in the public domain and his cow is allowed to be there - but he does not even pay the value of the meal, since he did not gain a free meal. The cow derived no benefit at all, and is even going to suffer from the spelt; and where there is no benefit, there is no payment.
"Mipetach hachanut" and "mitoch hachanut":
One final example. This is familiar from the look of a marketplace - such as the Arab market in the Old City of Jerusalem and the like, and any open market of this type: the stores themselves are inside, but their owners open the store doors and place merchandise in the doorways, in the traffic area of the passersby, so that they will see the merchandise, bump into it, smell it, become interested, and buy.
"Mipetach hachanut, meshalemet mah sheneheneit" - "From the doorway of the store, he pays for what it benefited" - when the merchandise is brought outside the door, into the public domain, a place where the cow is allowed to be, the owner is not liable for damages. At most, he will pay the value of the benefit he derived from being spared the need to feed his cow.
"Mitoch hachanut, meshalemet mah shehizikah" - "From inside the store, he pays for what it damaged" - but if he brought his cow into the store, it is obvious that a person does not have the right to let his animal graze inside his fellow's produce store. Therefore, he pays for all the damage that the cow caused, with unlimited liability, because he brought the cow - as the well-known saying goes - into a china shop, to eat to its heart's content and damage as much as it damages, and therefore he is liable for full payment.
In summary: In this Mishnah we learned that the primary category of damage known as Shen involves an animal eating what is fit for it and deriving benefit from doing so, whereas eating something that is not its usual food is considered Keren and obligates the owner for half damages. The obligation for full damages applies in the domain of the injured party, while in the public domain he is exempt from damages and is liable at most for what he benefited, only according to the measure of the benefit - and regarding its measure, opinions are divided between the value of hay and the discounted value of barley. This rule was demonstrated in four cases: from the middle of the plaza and from the doorway of the store, he pays for what it benefited; from the sides of the plaza and from inside the store, he pays for what it damaged.