Bava Kamma 20

ההוא ברחא דחזא ליפתא אפומא דדנא סריך סליק אכלה לליפתא ותבריה לדנא חייביה רבא אליפתא ואדנא נזק שלם מאי טעמא כיון דאורחיה למיכל ליפתא אורחיה נמי לסרוכי ולמסלק

The Gemara relates: There was a certain goat that saw a turnip on top of a clay barrel [dedanna]. It climbed and went up and ate the turnip, and in doing so it broke the barrel. Rava obligated the owner of the goat to pay the full cost of the damage, both for the turnip and for the barrel. The Gemara explains: What is the reason that he held the owner fully liable for the clay barrel as well as for the turnip? After all, breaking barrels is not the typical behavior of a goat. The Gemara answers: Since it is typical for the goat to eat the turnip, it is also typical for it to climb and go up in order to get it. Consequently, breaking the vessel is categorized as Eating.

אמר אילפא בהמה ברשות הרבים ופשטה צוארה ואכלה מעל גבי חברתה חייבת מאי טעמא גבי חברתה כחצר הניזק דמי

§ Ilfa says: If a domesticated animal was in the public domain, and it stretched out its neck and ate from a sack of produce that was loaded on the back of another animal, its owner is liable to pay the full cost of the damage. The Gemara asks: What is the reason for this? The Gemara explains: The back of the other animal is considered like the courtyard of the injured party, and for this reason the owner of the animal is liable for damage classified as Eating there.

לימא מסייע ליה היתה קופתו מופשלת לאחוריו ופשטה צוארה ואכלה ממנו חייבת כדאמר רבא בקופצת הכא נמי בקופצת

The Gemara suggests: Let us say that the following baraita supports his opinion (Tosefta 1:7): If a person was standing in the public domain, and his basket containing food was slung behind his back, and an animal stretched out its neck and ate from it, its owner is liable. The Gemara rejects this: This baraita does not support Ilfa’s opinion, because one could explain that the case in that baraita is as Rava says in a different situation: The ruling is stated with regard to a jumping animal; here also it can be suggested that the ruling of the baraita is stated with regard to a jumping animal, and since the animal engaged in atypical behavior it is classified as a case of Goring as opposed to a case of Eating. For damage classified as Goring, the owner of the animal is liable for his animal’s actions in the public domain, although he pays only half the cost of the damage.

והיכא איתמר דרבא אהא דאמר רבי אושעיא בהמה ברשות הרבים הלכה ואכלה פטורה עמדה ואכלה חייבת מאי שנא הלכה דאורחיה הוא עמדה נמי אורחיה הוא אמר רבא בקופצת

The Gemara asks: And where, i.e., in what context, was Rava’s interpretation initially stated? The Gemara answers: It was stated with regard to that which Rabbi Oshaya says: If a domesticated animal was walking along and eating in the public domain its owner is exempt, but if it was standing and eating he is liable. The Gemara questions this ruling: What is different if it was walking? Is it because eating while walking is the typical behavior of an animal? But standing and eating is also typical behavior. Rava says: Rabbi Oshaya’s ruling is stated with regard to a jumping animal, which is not typical behavior for the animal.

בעי רבי זירא מתגלגל מהו היכי דמי כגון דקיימא עמיר ברשות היחיד וקא מתגלגל ואתי מרשות היחיד לרשות הרבים מאי

§ Rabbi Zeira raises a dilemma: If an animal was rolling, what is the halakha? The Gemara asks: What are the circumstances of the case about which Rabbi Zeira inquires? The Gemara answers: For example, if there was a sheaf of grain on private property, and it was rolled along by the animal and the sheaf went from the private property into the public domain, and the animal ate it there, what is the halakha? Should this be treated as a case of Eating on private property, rendering the owner of the animal liable, or should it be treated as a case of Eating in the public domain, thereby exempting him from liability?

תא שמע דתני רבי חייא משוי מקצתו בפנים ומקצתו בחוץ אכלה בפנים חייבת אכלה בחוץ פטורה מאי לאו מתגלגל ואתי לא אימא אכלה על מה שבפנים חייבת על מה שבחוץ פטורה

The Gemara suggests: Come and hear a solution from a baraita, as Rabbi Ḥiyya taught: If a load of food was located partly inside the property of its owner and partly outside of his property, i.e., in the public domain, and an animal ate inside the private property, its owner is liable, as this is a case of damage classified as Eating on the property of the injured party. But if the animal ate outside, its owner is exempt, in accordance with the halakhot of Eating in the public domain. What, is it not that the case is one where the food was rolling along, and the halakha follows the location where it was actually eaten? The Gemara explains: No, say instead: It ate, and for that which was initially inside the private property, its owner is liable even if the food rolled out of the private property, and for that which was initially outside, its owner is exempt.

איבעית אימא כי קאמר רבי חייא בפתילה דאספסתא

If you wish, say instead that there is a different resolution: When Rabbi Ḥiyya stated his ruling it was with regard to a long stalk of fodder [de’aspasta] that was partly inside and partly outside at the time it was consumed, and as the animal ate it the entire stalk was pulled to where the animal was standing.

אכלה כסות וכו׳

§ The mishna teaches: If the animal ate garments or vessels, the owner must pay for half the cost of the damage. In what case is this statement said? It is said when the animal ate them while located on the property of the injured party, but if he ate them in the public domain the owner of the animal is exempt from liability.

אהייא אמר רב אכולהו מאי טעמא כל המשנה ובא אחר ושינה בו פטור

The Gemara asks: To which case is this referring? In which case is one exempt from liability if the damage occurred in the public domain? Rav said: It is referring to all of the cases. One is exempt from liability in the public domain even if his animal ate garments or vessels, despite the fact that this is an unusual thing for the animal to do and therefore eating garments or vessels should be classified as a case of Goring, which would normally result in liability when it occurs in the public domain. What is the reason for this? Rav answers his own question by stating a principle: With regard to anyone who deviates from normative behavior in his actions, if another came along afterward and deviates from the norm with regard to the action the first has done and thereby causes damage to him, the one who causes the damage is exempt from liability. In this case, the injured party left his garments or vessels in the public domain and thereby deviated from normative behavior, and therefore the owner of the animal that acted atypically and ate them is exempt from liability.

ושמואל אמר לא שנו אלא פירות וירקות אבל כסות וכלים חייבת

And Shmuel said: They taught in the mishna that one is exempt from liability for damage caused in the public domain only in a case where his animal ate fruit or vegetables, in accordance with the halakhot of Eating in the public domain, but if the animal ate garments or vessels in the public domain, the owner is liable to pay for half the cost of the damage. Since this is atypical animal behavior, it is classified as a case of Goring, for which the owner of the animal is liable even if it occurs in the public domain.

וכן אמר ריש לקיש אכולהו ואזדא ריש לקיש לטעמיה דאמר ריש לקיש שתי פרות ברשות הרבים אחת רבוצה ואחת מהלכת בעטה מהלכת ברבוצה פטורה רבוצה במהלכת חייבת

And similarly, Reish Lakish said, in accordance with the opinion of Rav: The exemption discussed in the mishna was said in reference to all of the cases. And Reish Lakish follows his own line of reasoning, as Reish Lakish says: If there were two cows in the public domain, one prone and one walking, and the walking cow kicked the prone cow, its owner is exempt from liability; but if the prone cow kicked the walking cow, its owner is liable. This indicates that Reish Lakish accepts the principle: Anyone who deviates from normative behavior, if another came along afterward and deviates from the norm with regard to the action the first has done and thereby causes damage to him, the one who causes the damage is exempt. Since it is atypical behavior for a cow to lie down in the public domain, even if the walking cow also behaved atypically and kicked the prone cow, its owner is exempt from liability.

ורבי יוחנן אמר לא שנו אלא פירות וירקות אבל כסות וכלים חייבת

And Rabbi Yoḥanan says, in accordance with the opinion of Shmuel: They taught in the mishna that one is exempt from liability in the public domain only if his animal ate fruit or vegetables, but if the animal ate garments or vessels, the owner is liable to pay for half the cost of the damage.

לימא רבי יוחנן לית ליה דריש לקיש אפילו בשתי פרות לא לעולם אית ליה כסות עבדי אינשי דמנחי גלימי ומתפחי אבל בהמה לאו אורחה

The Gemara asks: Shall we say that Rabbi Yoḥanan does not accept Reish Lakish’s opinion even in the case of the two cows? The Gemara rejects this suggestion: No, actually it is possible that Rabbi Yoḥanan accepts the opinion of Reish Lakish, but he distinguishes between the cases. In the case of garments, it is common for people to put their cloaks down in the public domain in order to rest [umitpeḥi], and this is not considered atypical behavior. But it is not common for an animal to lie down in the public domain, and since this animal behaved in an atypical manner, no liability is borne by the owner of the walking cow for engaging in atypical behavior and kicking the prone cow.

ואם נהנית משלמת וכו׳ וכמה רבה אמר דמי עמיר רבא אמר דמי שעורים בזול

§ The mishna teaches: And if the animal derives benefit from eating another’s produce in the public domain, although the owner is exempt from paying for the damage it caused, nevertheless the owner of the animal pays for the benefit that it derives. The Gemara asks: And how much is this payment, i.e., how is it calculated? Rabba says: It is the value of, i.e., the amount one would pay, for an equal quantity of stalks of hay or straw. This is because the owner can claim that had his animal not eaten the produce, he would have fed it inexpensive straw, so the animal’s benefit is limited to the cost of the straw that it would have eaten. Rava says: If the animal ate barley, his owner must pay the value of the barley, i.e., as that is typical animal food, but based on the cheapest price available in the market.

תניא כוותיה דרבה תניא כוותיה דרבא תניא כוותיה דרבה רבי שמעון בן יוחי אמר אין משלמת אלא דמי עמיר בלבד

The Gemara notes: It is taught in a baraita in accordance with the opinion of Rabba and it is taught in a different baraita in accordance with the opinion of Rava. It is taught in a baraita in accordance with the opinion of Rabba: Rabbi Shimon ben Yoḥai said: The animal’s owner pays only the value of stalks of straw.

תניא כוותיה דרבא אם נהנית משלמת מה שנהנית כיצד אכלה קב או קביים אין אומרים תשלם דמיהן אלא אומדין כמה אדם רוצה להאכיל לבהמתו דבר הראוי לה אף על פי שאינו רגיל לפיכך אכלה חטין או דבר הרע לה פטורה

It is taught in a baraita in accordance with the opinion of Rava (Tosefta 1:7): If the animal derived benefit from eating another’s produce, the owner of the animal pays for the benefit that it derived. How so? If the animal ate one kav or two kav of grain, we do not say that he should pay their value. Rather, the court estimates how much a person would pay in order to feed his animal typical food fit for it to eat, even if this particular animal does not usually eat that food, as its owner gives it cheaper food. Therefore, if the animal ate barley, which is typical animal fare, even though it does not usually do so, its owner must pay compensation for the barley that was eaten, at its cheapest market price. Therefore, if the animal ate wheat or another item that is detrimental to it, so that it did not derive any benefit, if this occurred in the public domain the owner is exempt from all liability.

אמר ליה רב חסדא לרמי בר חמא לא הוית גבן באורתא בתחומא דאיבעיא לן מילי מעלייתא אמר מאי מילי מעלייתא אמר ליה הדר בחצר חבירו שלא מדעתו צריך להעלות לו שכר או אין צריך

§ In connection to the principle stated in the mishna, that if the animal derives benefit the owner of the animal pays for the benefit that it derived, the Gemara relates: Rav Ḥisda said to Rami bar Ḥama: You were not with us at night within our boundary when we raised dilemmas concerning exceptional matters. Rami bar Ḥama said to him: What are the exceptional matters you discussed? Rav Ḥisda said to him: With regard to one who resides in another’s courtyard without his knowledge or permission, must he pay him rent for living there or does he not need to pay him rent?

היכי דמי אילימא בחצר דלא קיימא לאגרא וגברא דלא עביד למיגר זה לא נהנה וזה לא חסר אלא בחצר דקיימא לאגרא וגברא דעביד למיגר זה נהנה וזה חסר

The Gemara asks: What are the circumstances of this question? If we say that the case concerns a courtyard that does not stand to be rented out, i.e., if the squatter would not have lived there the owner would have kept it vacant, and the man squatting there is someone who would not have rented other living quarters because he has other lodgings available to him for free, then it is a case where this one, the squatter, does not derive benefit, and that one, the owner, does not suffer a loss; in that case certainly no payment is necessary. Rather, say that the discussion concerns a case of a courtyard that stands to be rented out, and the man squatting there would have rented other living quarters. If so, then this is a case where this one derives benefit and that one suffers a loss, and in that case he certainly must make payment. The dilemma was not with regard to either of these circumstances.

לא צריכא בחצר דלא קיימא לאגרא וגברא דעביד למיגר מאי מצי אמר ליה מאי חסרתיך או דלמא מצי אמר

The Gemara explains: No, it is necessary to raise the dilemma in the case of a courtyard that does not stand to be rented out, but the man squatting there would have rented other living quarters had he not squatted in this property. What is the halakha in this case? Is the squatter legally able to say to the owner of the courtyard: What loss have I caused you, as you would not have rented it out anyway? Or perhaps the owner of the courtyard is legally able to say to the squatter:

הא איתהנית

You have derived benefit from my property, as by living there you saved the money you otherwise would have had to pay in order to rent out a different courtyard, and therefore you must pay me for the benefit you derived.

אמר ליה מתניתין היא הי מתניתין אמר ליה לכי תשמש לי שקל סודריה כרך ליה אמר ליה אם נהנית משלמת מה שנהנית

Rami bar Ḥama said to him: This dilemma is not new; rather, it is discussed in the mishna, and the mishna already provided a solution. Rav Ḥisda asked him: To which mishna are you referring? Rami bar Ḥama said to him: After you serve me, I will tell you. Rav Ḥisda took hold of Rami bar Ḥama’s scarf [suderei] and folded it, as an act of service. Rami bar Ḥama then said to him: This is the mishna: If the animal derives benefit, the owner of the animal pays for the benefit that the animal derived. This demonstrates that one who derives benefit must pay for the benefit he derives, even if the injured party is not entitled to payment for his loss.

אמר רבא כמה לא חלי ולא מרגיש גברא דמריה סייעיה דאף על גב דלא דמי למתניתין קבלה מיניה האי זה נהנה וזה חסר והאי זה נהנה וזה לא חסר הוא

Rava said: How little does a man who has the assistance of his Lord have to worry or be concerned about the possibility that his opinion may not be accepted, as even though the dilemma that was raised is in fact not similar to the case in the mishna quoted by Rami bar Ḥama, Rav Ḥisda nevertheless accepted it from him. This case in the mishna, about the animal eating produce in the public domain, is where this one derives benefit and that one suffers a loss, and that case of the squatter living in the courtyard, is where this one derives benefit and that one does not suffer a loss.

ורמי בר חמא סתם פירות ברשות הרבים אפקורי מפקר להו

The Gemara asks: And what does Rami bar Ḥama think? Why does he equate the two cases? The Gemara explains: He holds that if produce is left in the public domain without specification with regard to its ownership, it is assumed that the owner has rendered it ownerless. The owner does not expect to derive benefit from the produce, and therefore when the animal ate it he suffered no loss. Consequently, it is a case where this one derives benefit and that one does not suffer a loss, and it is comparable to the case of the squatter in the courtyard.

תנן המקיף חבירו משלש רוחותיו וגדר את הראשונה ואת השניה ואת השלישית אין מחייבין אותו הא רביעית מחייבין אותו

The Gemara attempts to cite conclusive evidence from another case: We learned in a mishna (Bava Batra 4b): If one’s fields surround the fields of another on three sides, and he fenced in the first, the second, and the third field, thereby providing protection also to the other man’s field, the court does not obligate the owner of the inner field to share in the costs of the fence, as he can claim that he does not derive benefit from it, since his field remains exposed on the fourth side. The Gemara infers: But this indicates that if his fields surrounded the inner field on all four sides, and the owner of the outer fields fenced the field on the fourth side as well, the court does obligate the owner of the inner field to share in the expenses.

שמע מינה זה נהנה וזה לא חסר חייב שאני התם דאמר ליה את גרמת לי הקיפא יתירא

The Gemara suggests: Conclude from the mishna that where this one derives benefit and that one does not suffer a loss, the one who derives benefit is obligated to pay for that benefit. In this case, the owner of the inner field benefits from the fence while the owner of the outer field does not suffer a loss, because in any event he would have needed to build those fences, and the owner of the inner field is obligated to share in the expense. The Gemara rejects this: It is different there because the owner of the outer field can say to the owner of the inner field: Your field caused me to have to build the fence with a larger circumference than I would have otherwise needed to had your field not been there, and therefore your field caused me an additional expense. This case is therefore similar to those where this one derives benefit and that one suffers a loss.

תא שמע אמר רבי יוסי אם עמד ניקף וגדר את הרביעית מגלגלין עליו את הכל טעמא דגדר ניקף הא מקיף פטור

The Gemara attempts another resolution: Come and hear a proof from the continuation of that mishna. Rabbi Yosei said: If the owner of the surrounded, i.e., inner, field arose and enclosed the fourth side on his own, the court imposes upon him the obligation to pay his share of all of it, as through his actions he demonstrated that he was interested in having the fence installed. The Gemara infers from this: The reason the court imposes upon him the obligation to pay his share of all of it is because the owner of the surrounded field arose and enclosed the fourth side himself. By inference, had the owner of the surrounding field built the fourth fence, the owner of the inner field would be exempt.

שמע מינה זה נהנה וזה לא חסר פטור שאני התם דאמר ליה לדידי סגי לי בנטירא בר זוזא

The Gemara suggests: Conclude from the mishna that where this one derives benefit and that one does not suffer a loss, the one who derives benefit is exempt. The Gemara rejects this: It is different there because the owner of the inner field can say to the owner of the surrounding fields: For me, the protection of a fence worth a dinar would have been sufficient; I did not wish to pay for such an expensive fence.

תא שמע הבית והעלייה של שנים שנפלו אמר בעל העלייה לבעל הבית לבנות והוא אינו רוצה הרי בעל העלייה בונה בית ויושב בה עד שיתן לו יציאותיו

The Gemara attempts another resolution: Come and hear a proof from a mishna (Bava Metzia 117a): If a house and its upper story, which belonged to two separate people, collapsed, necessitating that the entire structure be rebuilt, and the owner of the upper story told the owner of the lower story of the house to build the lower story again so that he could rebuild the upper story, but the owner of the lower story does not want to do so, the owner of the upper story may build the lower story of the house and live in it until the owner of the lower story will pay him for his expenses, and only then will he be required to vacate the lower story of the house and build the upper story.

יציאותיו הוא דמחייב ליה בעל הבית הא שכרו לא שמע מינה זה נהנה וזה לא חסר פטור שאני התם דביתא לעלייה משתעבד

The Gemara infers: It is all of his expenses that the owner of the lower story of the house is obligated to pay him, and he does not subtract from the amount compensation for rent for the time that the owner of the upper story lived in the lower story of the house. Conclude from the mishna that where this one derives benefit and that one does not suffer a loss, the one who derives benefit is exempt, as the owner of the upper story derived benefit from living in the lower story, while the owner of the lower story did not suffer a loss, since he said he did not need it. The Gemara rejects this proof: It is different there because the lower story of the house is subjugated to the upper story, because it also serves as the foundation of the upper story, and therefore the owner of the lower story of the house is obligated to provide lodging to the owner of the upper story in the interim.

תא שמע רבי יהודה אומר אף זה הדר בחצר חבירו שלא מדעתו צריך להעלות לו שכר שמע מינה זה נהנה וזה לא חסר חייב שאני התם משום שחרוריתא דאשייתא

The Gemara attempts another resolution. Come and hear a proof from the continuation of the mishna, in which Rabbi Yehuda disagrees with the first tanna and holds that the owner of the upper story may not reside in the lower story of the house without payment. Rabbi Yehuda says: A proof that the owner of the upper story must pay rent is from the halakha that even this one who resides in another’s courtyard without his knowledge must pay him rent. Conclude from the mishna that when this one derives benefit and that one does not suffer a loss, the one who derives benefit is obligated to pay. The Gemara rejects this: It is different there, as there it is possible to claim that the owner of the lower story suffers a loss due to the blackening of the walls, as when a person lives in a home, the value of the house depreciates due to the use.

שלחוה בי רבי אמי אמר וכי מה עשה לו ומה חסרו ומה הזיקו רבי חייא בר אבא אמר נתיישב בדבר הדר שלחוה קמיה דרבי חייא בר אבא אמר כוליה האי שלחו לי ואזלי אילו אשכחי בה טעמא לא שלחנא להו

This dilemma was not successfully resolved so they sent it to the academy of Rabbi Ami to ask his opinion. Rabbi Ami said: And what did this squatter do to the owner? What loss did he cause him? How did he damage him? Rav Ami holds that if this one derives benefit and that one does not suffer a loss, no payment is necessary. When asked about this dilemma, Rabbi Ḥiyya bar Abba said: Let us consider the matter. After waiting and not receiving a response they sent the question to Rabbi Ḥiyya bar Abba again. He said: They keep sending me this dilemma; had I found a response to their question, would I not have sent them a reply? They should have realized that Rabbi Ḥiyya bar Abba did not have an answer for them.

אתמר רב כהנא אמר רבי יוחנן אינו צריך להעלות לו שכר רבי אבהו אמר רבי יוחנן צריך להעלות לו שכר

It was stated that the amora’im discussed this matter: Rav Kahana says that Rabbi Yoḥanan says: He need not pay him rent, and Rabbi Abbahu says that Rabbi Yoḥanan says: He must pay him rent.

אמר רב פפא הא דרבי אבהו לאו בפירוש אתמר אלא מכללא אתמר דתנן נטל אבן או קורה של הקדש הרי זה לא מעל

Rav Pappa said: This statement of Rabbi Abbahu, citing Rabbi Yoḥanan, was not stated explicitly; rather, it was stated from an inference that Rabbi Abbahu drew from something that Rabbi Yoḥanan said in a different context. As we learned in a mishna (Me’ila 5:4): If the treasurer of consecrated property took for himself a stone or a cross beam that had been consecrated, he has not violated the prohibition of misuse of consecrated property. This is because his act of taking the stone or the beam has not effectively removed it from within the jurisdiction of Temple property, as any item under his control is in the possession of the Temple treasury.

נתנה לחבירו הוא מעל וחבירו לא מעל בנאה לתוך ביתו הרי זה לא מעל עד שידור תחתיה שוה פרוטה

If the treasurer gave it to another as a gift, he has then misused consecrated property, as he removed it from the possession of the Temple and conveyed it into the possession of another. But the other man, who received the item, has not misused a consecrated item until he actually uses the item. If the treasurer himself built it into his house, he has not violated the prohibition of misuse of consecrated property until he has lived beneath it for an amount of time worth one peruta.

ואמר שמואל והוא שהניחה על פי ארובה

And Shmuel said: And this is the halakha provided that he placed it over the skylight, as were he to have built it into the actual structure of the house, he would have violated the prohibition of misuse with the very act of construction, as by doing so he effects a change in the stone itself. By contrast, when he places the stone in a place from which it is easy to remove it and give it back, then as long as he has not lived beneath it, he has not, as yet, misused consecrated property.

ויתיב רבי אבהו קמיה דרבי יוחנן וקאמר משמיה דשמואל זאת אומרת הדר בחצר חבירו שלא מדעתו צריך להעלות לו שכר ושתק ליה

And Rabbi Abbahu sat before Rabbi Yoḥanan and was saying in the name of Shmuel: That is to say, one who resides in another’s courtyard without his knowledge must pay him rent, similar to the treasurer who resides beneath the consecrated beam without detracting from the value of the beam in any way but has nevertheless violated the prohibition of misuse since he has derived personal benefit from it. And Rabbi Yoḥanan remained silent and offered him no reply.

איהו סבר מדשתיק מודה ליה ולא היא אשגוחי לא אשגח ביה

Rabbi Abbahu thought that since he was silent, this must mean he concedes to his conclusion, and therefore, from then on he would cite this opinion in the name of Rabbi Yoḥanan. But that is not so. The reason Rabbi Yoḥanan was silent was because he did not pay attention to Rabbi Abbahu and did not bother to contradict his opinion on the issue. In truth Rabbi Yoḥanan’s opinion is as was reported in his name by Rav Kahana, that a squatter living on someone else’s premises without his permission and without causing him any loss does not need to pay the owner any rent.

כדרבה דאמר רבה הקדש שלא מדעת

The Gemara explains the distinction between that case and the case of the consecrated stone or beam. The reason the treasurer of consecrated property is considered to have misused consecrated property by deriving benefit from it is in accordance with the statement of Rabba, as Rabba says: Consecrated property from which one derived benefit without the Temple treasury’s knowledge