Bava Kamma Chapter 5, Mishnah 3. We are continuing from the previous Mishnah, and this time we will deal with an animal that entered another's courtyard - without permission and with permission - and the division of responsibility between the animal's owner and the courtyard's owner.
"Hichnis shoro lachatzer ba'al habayit shelo virshut" - If one brought his ox into the courtyard of the homeowner without permission:
Reuven and Shimon are neighbors, and Reuven brought his animal into Shimon's courtyard without permission. The Mishnah says: "Venagcho shoro shel ba'al habayit o sheneshacho kalbo shel ba'al habayit, patur" - and the ox of the homeowner gored it, or the dog of the homeowner bit it, he is exempt. If Shimon's ox gored Reuven's animal, or his dog bit it, Shimon is exempt from paying for the damage his animals caused, because what business did Reuven's animal have in his courtyard?
What is the difference between the ox goring and the dog biting? Dogs are aggressive by nature, and when an animal enters their territory they will almost certainly bite it. Therefore, one might have said that once Shimon knows Reuven's animal is in his courtyard, it is his responsibility to restrain his dog. The Mishnah teaches that this is not so, and it is not his responsibility at all. Reuven has no business being there with his animal, and he must bear the consequences if it is attacked by Shimon's animals.
"Nagach hu shoro shel ba'al habayit, chayav" - If it gored the ox of the homeowner, he is liable:
Conversely, if Reuven's animal gored Shimon's ox, Reuven is liable to pay, since his animal had no permission to be there. For an innocuous ox (a tam), the law is that he pays half damages. However, as we learned at the beginning of the tractate, according to the view of Rabbi Tarfon - though the halachah does not follow him - an innocuous ox that caused damage in the domain of the injured party, in a place that is not its own, pays full damages.
"Nafal lavor vehiv'ish meimav" - If it fell into a pit and fouled its water:
If Reuven's animal fell into Shimon's pit and ruined its water, he is liable. Under which primary category of damage? The poskim disagree on this:
The Taz: This is a case of regel (foot) - the animal is acting in its normal manner, walking and causing damage as it walks, as it is dirty and dirties things while walking. Therefore, he pays full damages.
The Sema: This is a case of keren (horn), since it is not the normal behavior of animals to swim in water reservoirs and pits and cause damage in this way - it is an unusual act, and therefore he pays half damages and not full damages.
It is worth clarifying: the damage mentioned occurs at the time of entry into the water. However, if the animal remains in the pit, and by the very fact of its lying in the water for three days it pollutes it, this is not regel, nor is it keren, but rather bor (pit). The animal lies motionless and functions as an inanimate object, and the water is ruined because of the hazard. While a bor is generally a hazard that an animal comes into contact with, and here the water comes into contact with the hazard placed inside it, nevertheless, this is considered bor.
This leads to an important practical difference. As we mentioned, and as we will see explicitly later in the chapter, an exegesis is taught: "Shor velo adam, chamor velo kelim" - an ox and not a person, a donkey and not vessels - one who creates a hazard under the category of bor does not pay for damages his bor caused to things that are not animals. And although the exegesis specifies "vessels," the same law applies to water. Therefore, if the damage to the water supply was caused by the animal lying there and functioning as a bor hazard, Reuven is exempt from paying Shimon for the damage to his water, because one who damages water with a bor is exempt.
"Hayah aviv o beno letocho, meshalem et hakofer" - If his father or his son was inside it, he pays the kofer:
What is the halachah if, at the time the animal jumped into the pit, Shimon's father or son was inside it? This does not depend specifically on a father and son, and it would apply even to a good friend, but it is just the way of things that the one present in a water cistern to bathe or draw water is a member of the household. If the animal jumped on the person and killed him, the owner - Reuven, who allowed his animal to enter Shimon's courtyard - pays kofer (ransom).
We have already learned the view of the Amora Rav, that there is no obligation to pay kofer unless it is a mu'ad animal, meaning it has already done so three times: an animal that jumped on people in water pits and became established as such three times, and therefore the obligation of kofer takes effect. And if you ask: If it already killed people, how is it still alive in the world, as it should have been stoned? The answer is that it ran away from judgment, or that the manner of killing was exempt, all depending on whom it killed. In any case, according to Rav's view, a mu'ad status is required here: the animal jumped on people three times in the past, and the owner knows about it, and therefore Reuven bears full responsibility to pay the kofer.
If the animal jumped into the pit to get food floating in it, like water lily leaves and the like, and did not pay attention to the people inside it - it is not liable to death for this, but there is an obligation to pay kofer. It is worth noting that according to the view of the Mahara Shmuel, whose ruling is not the accepted halachah, kofer is paid even for a tam (an animal without a history of doing damage) and not only for a mu'ad.
"Im hichnis birshus - ba'al hechatzer chayav" - if he brought it in with permission, the owner of the courtyard is liable:
Reuven brought his animal into Shimon's courtyard with permission, and Shimon's ox gored or his dog bit Reuven's animal - Shimon must pay. The reason: The Tanna before us is the same Tanna of the previous two Mishnayos, who holds that one who gives permission to his friend to use his property implicitly agrees to ensure that no harm will come to him, at least as an unpaid watchman (shomer chinam), and takes upon himself the responsibility to protect his friend's property from damage. Once Shimon allowed Reuven to bring in his animal, if this animal is damaged by his dog - he must pay for the damage.
"Rebbi omer: bekulan eino chayav ad sheyekabel alav lishmor" - Rebbi says: in all of them he is not liable until he accepts upon himself to watch:
Rebbi - who is Rabbi Yehudah HaNasi - disagrees, and the halachah follows his view. In all the cases listed, regarding pots, produce, and animals, there is no difference: the mere granting of permission to use a courtyard, storehouse, or property does not include an agreement to guard the user's items and protect them from damage. Unless the homeowner explicitly accepted upon himself to watch, he is not responsible. Therefore, according to Rebbi, Reuven must be careful when bringing his animal into Shimon's courtyard and ensure that it is not damaged; and if it is damaged - it is not Shimon's fault, and he does not have to pay.
And the same is true in reverse: If Reuven's animal gored Shimon's ox, or stepped on his dog's foot and caused any damage, Shimon has no claim against Reuven. Since it was Shimon who gave Reuven permission to bring the animal in, and even though according to Rebbi, and the halachah, he does not accept responsibility to watch Reuven's items, he still permitted him to use the area. Therefore, if damage occurred to Shimon's items, it is not the fault of Reuven who acted there with permission, and there are no grounds for a claim to obligate him in payments.
In summary: In this Mishnah we learned that if one brings his animal into his friend's courtyard without permission - the courtyard owner is exempt for damages caused by his ox and dog to the animal, while the animal's owner is liable for its damages. We noted the dispute between the Taz and the Sema regarding an animal that fell into a pit and fouled its waters, whether it is judged under the category of regel (foot) or keren (horn), and the way in which the animal itself becomes a bor (pit) hazard, where there is an exemption derived from the verse "an ox, and not a person; a donkey, and not vessels." We learned about the obligation of kofer for an animal that killed someone in a pit, and Rav's requirement that it must be a mu'ad. And finally: if he brought it in with permission - according to the first Tanna, the courtyard owner is liable as a shomer chinam (unpaid watchman), whereas according to Rebbi, and the halachah follows his view, he is not liable until he explicitly accepts upon himself to watch it.