Bava Kamma 55
נֶאֱמַר בָּהֶם ״טוֹב״? אָמַר לוֹ: עַד שֶׁאַתָּה שׁוֹאֲלֵנִי לָמָּה נֶאֱמַר בָּהֶם ״טוֹב״, שְׁאָלֵנִי אִם נֶאֱמַר בָּהֶן ״טוֹב״ אִם לָאו – שֶׁאֵינִי יוֹדֵעַ אִם נֶאֱמַר בָּהֶן ״טוֹב״ אִם לָאו; כְּלָךְ אֵצֶל רַבִּי תַּנְחוּם בַּר חֲנִילַאי, שֶׁהָיָה רָגִיל אֵצֶל רַבִּי יְהוֹשֻׁעַ בֶּן לֵוִי – שֶׁהָיָה בָּקִי בְּאַגָּדָה.
in the context of the mitzva to honor one’s parents, the word good is stated there: “In order that it shall be good for you” (Deuteronomy 5:16)? Rabbi Ḥiyya bar Abba said to him: Before you ask me why the word good is stated, ask me if the word good is actually stated there or not, since I am not sufficiently proficient in my knowledge of the biblical verses to remember the precise wording, and I do not know if the word good is stated there or not. Go to Rabbi Tanḥum bar Ḥanilai, who was commonly found at the academy of Rabbi Yehoshua ben Levi, who was an expert in aggada. Perhaps he heard something from him on this matter and can answer your question.
אֲזַל לְגַבֵּיהּ. אֲמַר לֵיהּ: מִמֶּנּוּ לֹא שָׁמַעְתִּי, אֶלָּא כָּךְ אָמַר לִי שְׁמוּאֵל בַּר נַחוּם אֲחִי אִמּוֹ שֶׁל רַב אַחָא בְּרַבִּי חֲנִינָא, וְאָמְרִי לַהּ אֲבִי אִמּוֹ שֶׁל רַב אַחַי בְּרַבִּי חֲנִינָא: הוֹאִיל וְסוֹפָן לְהִשְׁתַּבֵּר.
Rabbi Ḥanina ben Agil went to him and asked him. Rabbi Tanḥum said to him: I did not hear anything on this matter from Rabbi Yehoshua ben Levi himself. But this is what Shmuel bar Naḥum, the brother of the mother of Rav Aḥa, son of Rabbi Ḥanina, said to me, and some say it was the father of the mother of Rav Aḥai, son of Rabbi Ḥanina: It does not mention the word good in the first tablets, since they were ultimately destined to be broken after the Jews made the Golden Calf.
וְכִי סוֹפָן לְהִשְׁתַּבֵּר מַאי הָוֵי? אָמַר רַב אָשֵׁי: חַס וְשָׁלוֹם, פָּסְקָה טוֹבָה מִיִּשְׂרָאֵל.
The Gemara asks: And even if it had mentioned the term good, and they were ultimately destined to break, what of it? Rav Ashi said: If this term had been mentioned in the first tablets, all good would have, God forbid, ceased from Israel once they were broken. Therefore, only the second version, which was written after the breaking of the tablets, contains the word good, so that there would always be good for the Jewish people.
אָמַר רַבִּי יְהוֹשֻׁעַ: הָרוֹאֶה טֵית בַּחֲלוֹמוֹ – סִימָן יָפֶה לוֹ. מַאי טַעְמָא? אִילֵּימָא מִשּׁוּם דִּכְתִיב ״טוֹב״, אֵימָא: ״וְטֵאטֵאתִיהָ בְּמַטְאֲטֵא הַשְׁמֵד״! חַד טֵית קָאָמְרִינַן.
Rabbi Yehoshua says: If one sees the letter tet in his dream, it is a good sign for him. The Gemara asks: What is the reason? If we say that it is because the word good [tov] is written in the Torah and begins with the letter tet, then one could say instead that it is an allusion to the verse: “And I will sweep it with the broom [vetetetiha bemate’ateh] of destruction” (Isaiah 14:23), which also contains the letter tet several times but is referring to punishment. The Gemara answers: We mean that when someone sees one tet in his dream, it is a good sign, but this latter verse contains several.
אֵימָא: ״טֻמְאָתָהּ בְּשׁוּלֶיהָ״! טֵית בֵּית קָאָמְרִינַן. אֵימָא: ״טָבְעוּ בָּאָרֶץ שְׁעָרֶיהָ״!
The Gemara asks: This latter statement is problematic, as even according to this explanation, one can say that a single letter tet alludes to the verse: “Her filthiness [tumatah] is in her skirts” (Lamentations 1:9), which begins with the letter tet. The Gemara answers: We mean that when one sees the letter tet together with the letter bet in his dream, it is a good sign for him, as the word tov is written with both. The Gemara asks further: According to this, say that it alludes to the verse: “Her gates are sunk [tave’u] into the ground” (Lamentations 2:9), which begins with the letter tet followed by the letter bet.
אֶלָּא הוֹאִיל וּפָתַח בּוֹ הַכָּתוּב לְטוֹבָה תְּחִילָּה – שֶׁמִּ״בְּרֵאשִׁית״ עַד ״וַיַּרְא אֱלֹהִים אֶת הָאוֹר״, לָא כְּתִיב טֵית.
Rather, it is not merely because it is the first letter of the word good [tov] that it is considered a good omen. Since the Torah initially introduces the letter tet in a context of good, with the word good [tov] itself, it is a good omen. As from the word bereshit, the first word in the Torah, until the verse: “And God saw that the light was good [tov]” (Genesis 1:4), the letter tet is not written anywhere.
וְאָמַר רַבִּי יְהוֹשֻׁעַ בֶּן לֵוִי: הָרוֹאֶה הֶסְפֵּד בַּחֲלוֹמוֹ – חָסוּ עָלָיו מִן הַשָּׁמַיִם, וּפְדָאוּהוּ. הָנֵי מִילֵּי בִּכְתָבָא.
And Rabbi Yehoshua ben Levi says: If one sees a eulogy [hesped] in his dream, it is an allusion that in Heaven they had pity [ḥasu] on him and saved him [peda’uhu] from actually being eulogized. The Gemara notes: This statement applies specifically when he actually saw the word: Eulogy [hesped], in writing.
וְכֵן חַיָּה וָעוֹף כַּיּוֹצֵא בָּהֶן וְכוּ׳. אָמַר רֵישׁ לָקִישׁ, כָּאן שָׁנָה רַבִּי: תַּרְנְגוֹל, טַוּוֹס וּפַסְיוֹנִי – כִּלְאַיִם זֶה בָּזֶה.
§ The mishna teaches: And similarly, undomesticated animals and birds are subject to the same halakhot as domesticated animals. Reish Lakish says: Here Rabbi Yehuda HaNasi taught a ruling from the Tosefta that illustrates the statement that birds and undomesticated animals are also subject to the prohibition of diverse kinds: A cock, a peacock [tavvas], and a pheasant [ufasyonei] are diverse kinds with respect to each other, since this halakha applies to birds as well.
פְּשִׁיטָא! אָמַר רַב חֲבִיבָא: מִשּׁוּם דְּרָבוּ בַּהֲדֵי הֲדָדֵי – מַהוּ דְּתֵימָא: מִין חַד הוּא; קָא מַשְׁמַע לַן.
The Gemara asks: Isn’t this obvious; what novelty is stated here? Rav Ḥaviva said: The novelty here is because they are reared together. Lest you say: Since they are reared together, they are essentially one species, and not considered diverse kinds. Therefore, it teaches us that they are actually separate species, and the halakhot of diverse kinds do apply to them.
אָמַר שְׁמוּאֵל: אַוּוֹז וְאַוּוֹז הַבָּר – כִּלְאַיִם זֶה בָּזֶה. מַתְקֵיף לַהּ רָבָא בַּר רַב חָנָן: מַאי טַעְמָא? אִילֵּימָא מִשּׁוּם דְּהַאי אֲרִיךְ קוֹעֵיהּ וְהַאי זוּטַר קוֹעֵיהּ; אֶלָּא מֵעַתָּה, גַּמְלָא פָּרְסָא וְגַמְלָא טַיָּיעָא, דְּהַאי אַלִּים קוֹעֵיהּ וְהַאי קַטִּין קוֹעֵיהּ, הָכִי נָמֵי דְּהָווּ כִּלְאַיִם זֶה בָּזֶה?!
Following the discussion of the prohibition of diverse kinds as it relates to birds, Shmuel says: The domestic goose and the wild goose are diverse kinds with respect to each other and are not one species. Rava bar Rav Ḥanan objects to this: What is the reason? If we say it is because the beak of this one is long and the beak of that one is short, if that is so, then with regard to a Persian camel and an Arabian camel, where the neck of this one is thick and the neck of that one is thin, they should indeed be considered diverse kinds with respect to one another. Clearly, though, the camels are in fact two variants of a single species.
אֶלָּא אָמַר אַבָּיֵי: זֶה בֵּיצָיו מִבַּחוּץ, וְזֶה בֵּיצָיו מִבִּפְנִים. רַב פָּפָּא אָמַר: הָא טְעוּנָה חֲדָא בֵּיעֲתָא בְּשִׁיחְלָא, וְהָא טְעוּנָה כַּמָּה בֵּיעָתָא בְּשִׁיחְלָא.
Rather, Abaye says: That is not the reason, but rather another difference exists between the domestic goose and the wild goose, concerning the male: With regard to this type, i.e., the wild goose, its testicles are visible from the outside, and with regard to that one, i.e., the domestic goose, its testicles are inside. Rav Pappa said that another difference exists between them, concerning the female: This one, i.e., the wild goose, releases only one egg in its ovary and later releases another, and that one, i.e., the domestic goose, releases several eggs at once in its ovary. Consequently, they are not considered to be the same species.
אָמַר רַבִּי יִרְמְיָה אָמַר רֵישׁ לָקִישׁ: הַמַּרְבִּיעַ שְׁנֵי מִינִים שֶׁבַּיָּם – לוֹקֶה. מַאי טַעְמָא? אָמַר רַב אַדָּא בַּר אַהֲבָה מִשְּׁמֵיהּ דְּעוּלָּא: אָתְיָא ״לְמִינֵהוּ״–״לְמִינֵהוּ״ מִיַּבָּשָׁה.
In connection with the prohibition of diverse kinds, Rabbi Yirmeya says that Reish Lakish says: One who crossbreeds two species of creatures that live in the sea is flogged for transgressing the prohibition of crossbreeding diverse kinds. The Gemara asks: What is the reason, i.e., where is there an allusion to this in the Torah? Rav Adda bar Ahava said in the name of Ulla: It is derived from a verbal analogy between the term: “According to its species [leminehu]” (Genesis 1:21), referring to animals living on dry land, and the same term: “According to its species [leminehu]” (Genesis 1:25), referring to sea creatures. In the same way that the former may not be crossbred, similarly, the latter may not be crossbred.
בָּעֵי רַחֲבָה: הַמַּנְהִיג בְּעִיזָּא וְשִׁיבּוּטָא, מַהוּ? מִי אָמְרִינַן: כֵּיוָן דְּעִיזָּא לָא נָחֵית בַּיָּם, וְשִׁיבּוּטָא לָא סָלֵיק לַיַּבָּשָׁה – לֹא כְּלוּם עָבֵיד; אוֹ דִלְמָא, הַשְׁתָּא מִיהַת קָא מַנְהֵיג?
The Sage Raḥava raises a dilemma: With regard to one who drives a wagon on the seashore with a goat and a shibbuta, a certain species of fish, together, pulled by the goat on land and the fish at sea, what is the halakha? Has he violated the prohibition against performing labor with diverse kinds, in the same way that one does when plowing with an ox and a donkey together, or not? The two sides of the question are as follows: Do we say that since the goat does not descend into the sea and the shibbuta does not ascend onto the land, they are not working together at all, and so he has not done anything forbidden? Or perhaps, since in any event, he is now driving the wagon with both of them, he thereby transgresses the prohibition?
מַתְקֵיף לַהּ רָבִינָא: אֶלָּא מֵעַתָּה, חִיבֵּר חִטָּה וּשְׂעוֹרָה בְּיָדוֹ, וְזָרַע חִטָּה בָּאָרֶץ וּשְׂעוֹרָה בְּחוּצָה לָאָרֶץ, הָכִי נָמֵי דְּמִחַיַּיב?
Ravina objects to this: But if that is so that one is liable, then if a person joined wheat and barley together in his hand and sowed the wheat in Eretz Yisrael and the barley outside of Eretz Yisrael, where the prohibition of diverse kinds does not apply to seeds, so too he should be liable. Clearly, however, they are two distinct regions, and the seeds are not considered to be mixed together.
אָמְרִי: הָכִי הַשְׁתָּא?! הָתָם – אֶרֶץ מְקוֹם חִיּוּבָא, חוּצָה לָאָרֶץ לָא מְקוֹם חִיּוּבָא; הָכָא – אִידֵּי וְאִידֵּי חִיּוּבָא הוּא.
The Sages said in response to this objection: How can these cases be compared? There, in the case of planting diverse kinds of seeds, it is specifically Eretz Yisrael that is the location subject to this obligation, whereas outside of Eretz Yisrael is not a location subject to this obligation. Here, by contrast, in the case of the person driving a wagon, both this location, i.e., the land, and that location, i.e., the sea, are locations subject to this obligation. Consequently, if one works together two different species either on the land or in the sea, he is liable. Therefore, the question is a valid one.
הֲדַרַן עֲלָךְ שׁוֹר שֶׁנָּגַח אֶת הַפָּרָה
MISHNA: In the case of one who brought his flock of sheep into the pen and locked the door before it in a manner that is appropriate, and despite this sheep went out and caused damage in another person’s field by eating produce or trampling it, the owner is exempt, since he safeguarded the animals appropriately. If he did not lock the door before the sheep in a manner that is appropriate, and sheep went out and caused damage, the owner is liable, since his negligence led to the damage.
מַתְנִי׳ הַכּוֹנֵס צֹאן לַדִּיר, וְנָעַל בְּפָנֶיהָ כָּרָאוּי, וְיָצְאָה וְהִזִּיקָה – פָּטוּר. לֹא נָעַל בְּפָנֶיהָ כָּרָאוּי, וְיָצְאָה וְהִזִּיקָה – חַיָּיב.
If the owner locked the door appropriately but the wall of the pen was breached at night, or bandits breached it, and sheep subsequently went out and caused damage by eating or trampling, the owner of the sheep is exempt from liability. If the bandits themselves took the sheep out of the pen and the animals subsequently caused damage, the bandits are liable.
נִפְרְצָה בַּלַּיְלָה אוֹ שֶׁפְּרָצוּהָ לִסְטִים, וְיָצְאָה וְהִזִּיקָה – פָּטוּר. הוֹצִיאוּהָ לִסְטִים – לִסְטִים חַיָּיבִין.
If the owner left the animal in the sun, causing it to suffer, or if he conveyed it to a deaf-mute, an imbecile, or a minor, who are not able to safeguard it, and the animal went out and caused damage, the owner is liable because he was negligent.
הִנִּיחָה בַּחַמָּה, אוֹ שֶׁמְּסָרָהּ לְחֵרֵשׁ שׁוֹטֶה וְקָטָן, וְיָצְאָה וְהִזִּיקָה – חַיָּיב.
If the owner conveyed the animal to a shepherd to care for it, the shepherd enters in his place and is responsible for the damage.
מְסָרָהּ לְרוֹעֶה – נִכְנַס הָרוֹעֶה תַּחְתָּיו.
If the animal fell into a garden and derives benefit from produce there, its owner pays for the benefit that it derives and not for other damage caused. If the animal descended into the garden in its usual manner and caused damage there, its owner pays for what it damaged. How does the court appraise the value of the damage when the owner pays for what it damaged? The court appraises a large piece of land with an area required for sowing one se’a of seed [beit se’a] in that field, including the garden bed in which the damage took place. This appraisal includes how much it was worth before the animal damaged it and how much is it worth now, and the owner must pay the difference. The court appraises not only the garden bed that was eaten or trampled, rather the depreciation in value of the bed as part of the surrounding area. This results in a smaller payment, as the damage appears less significant in the context of a larger area.
נָפְלָה לְגִינָּה וְנֶהֱנֵית – מְשַׁלֶּמֶת מַה שֶּׁנֶּהֱנֵית. יָרְדָה כְּדַרְכָּהּ וְהִזִּיקָה – מְשַׁלֶּמֶת מַה שֶּׁהִזִּיקָה. כֵּיצַד מְשַׁלֶּמֶת מַה שֶּׁהִזִּיקָה? שָׁמִין בֵּית סְאָה בְּאוֹתָהּ שָׂדֶה – כַּמָּה הָיְתָה יָפָה, וְכַמָּה הִיא יָפָה.
Rabbi Shimon says: This principle of appraisal applies only in a case where the animal ate unripe produce; but if it ate ripe produce, the owner pays the value of the ripe produce. Therefore, if it ate one se’a of produce, he pays for one se’a, and if it ate two se’a, he pays for two se’a.
רַבִּי שִׁמְעוֹן אוֹמֵר: אָכְלָה פֵּירוֹת גְּמוּרִים – מְשַׁלֶּמֶת פֵּירוֹת גְּמוּרִים. אִם סְאָה – סְאָה, אִם סָאתַיִם – סָאתַיִם.
GEMARA: The Gemara clarifies the definition of locking the door in a manner that is appropriate. The Sages taught: What is considered locking in a manner that is appropriate, and what is considered locking in a manner that is not appropriate? If one locked the door such that it is able to withstand a typical wind without collapsing or opening, this is considered a manner that is appropriate, whereas if he locked the door such that it is unable to withstand a typical wind, this is considered a manner that is not appropriate.
גְּמָ׳ תָּנוּ רַבָּנַן: אֵיזֶהוּ ״כָּרָאוּי״, וְאֵיזֶהוּ ״שֶׁלֹּא כָּרָאוּי״? דֶּלֶת שֶׁיְּכוֹלָה לַעֲמוֹד בְּרוּחַ מְצוּיָה – זֶהוּ כָּרָאוּי. שֶׁאֵינָהּ יְכוֹלָה לַעֲמוֹד בְּרוּחַ מְצוּיָה – זֶהוּ שֶׁלֹּא כָּרָאוּי.
Rabbi Mani bar Patish said: Who is the tanna who taught with regard to animals that are forewarned that it is sufficient for the owner to provide only reduced safeguarding? Since the mishna deals with damage categorized as Eating or Trampling, for which all animals are considered forewarned, it must be in accordance with the opinion of Rabbi Yehuda, as we learned in a mishna (45b): If the owner of an ox tied it with reins to a fence or locked the gate before it in a manner that is appropriate, but nevertheless the ox went out and caused damage, whether the animal is innocuous or forewarned the owner is liable because this is not considered sufficient precaution to prevent damage; this is the statement of Rabbi Meir.
אָמַר רַבִּי מָנִי בַּר פַּטִּישׁ: מַאן תַּנָּא מוּעָד דְּסַגִּי לֵיהּ בִּשְׁמִירָה פְּחוּתָה – רַבִּי יְהוּדָה הִיא, דִּתְנַן: קְשָׁרוֹ בְּעָלָיו בְּמוֹסֵירָה, וְנָעַל לְפָנָיו כָּרָאוּי, וְיָצָא וְהִזִּיק – אֶחָד תָּם וְאֶחָד מוּעָד, חַיָּיב; דִּבְרֵי רַבִּי מֵאִיר.
The mishna continues: Rabbi Yehuda says that if the ox is innocuous the owner is liable even if he safeguarded it appropriately, since the Torah does not limit the required safeguarding for an innocuous animal. But if the ox is forewarned, the owner is exempt from payment of damages, as it is stated in the verse describing the liability for damage caused by a forewarned animal: “And the owner has not secured it” (Exodus 21:36), and this ox that was tied with reins or behind a locked gate was secured. Rabbi Eliezer says: A forewarned ox has no sufficient safeguarding at all other than slaughtering it with a knife. According to this mishna, only Rabbi Yehuda maintains that reduced safeguarding is sufficient to render exempt from liability the owner of an ox that is forewarned.
רַבִּי יְהוּדָה אוֹמֵר: תָּם – חַיָּיב, מוּעָד – פָּטוּר; שֶׁנֶּאֱמַר: ״וְלֹא יִשְׁמְרֶנּוּ בְּעָלָיו״ – וְשָׁמוּר הוּא זֶה. רַבִּי אֱלִיעֶזֶר אוֹמֵר: אֵין לוֹ שְׁמִירָה אֶלָּא סַכִּין.
The Gemara answers: You can even say that the mishna is in accordance with the opinion of Rabbi Meir, who holds that the owner of a forewarned ox is liable even if he provides only reduced safeguarding. Although animals are considered forewarned with regard to Eating and Trampling, one cannot apply to them a halakha stated with regard to an animal that is forewarned with regard to Goring. The halakha is different with regard to Eating and Trampling since the Torah limited the required standard of safeguarding for them. As the amora Rabbi Elazar says, and some say it was taught in a baraita: There are four matters for which the Torah limited their required standard of safeguarding, and these are: Pit, and Fire, Eating, and Trampling.
אֲפִילּוּ תֵּימָא רַבִּי מֵאִיר, שָׁאנֵי שֵׁן וָרֶגֶל – דְּהַתּוֹרָה מִיעֲטָה בִּשְׁמִירָתָן. דְּאָמַר רַבִּי אֶלְעָזָר, וְאָמְרִי לַהּ בְּמַתְנִיתָא תָּנָא: אַרְבָּעָה דְּבָרִים הַתּוֹרָה מִיעֲטָה בִּשְׁמִירָתָן, וְאֵלּוּ הֵן: בּוֹר, וָאֵשׁ, שֵׁן, וָרֶגֶל.
Where does the Torah limit the required standard of safeguarding with regard to the category of Pit? As it is written: “If a man shall open a pit, or if a man shall dig a pit and not cover it, and an ox or a donkey fall therein, the owner of the pit shall pay” (Exodus 21:33). One can infer: But if he covered it, he is exempt from liability, even though it is possible that the pit would become uncovered in the future.
בּוֹר – דִּכְתִיב: ״כִּי יִפְתַּח אִישׁ בּוֹר אוֹ כִּי יִכְרֶה אִישׁ בֹּר, וְלֹא יְכַסֶּנּוּ״, הָא כִּסָּהוּ – פָּטוּר.
Where does the Torah limit the required standard of safeguarding with regard to the category of Fire? As it is written: “The one who kindled the fire shall pay compensation” (Exodus 22:5), which is interpreted to mean that one is exempt from liability unless he acts in a manner that is similar to actively kindling the fire in another’s property by being negligent.
אֵשׁ – דִּכְתִיב: ״שַׁלֵּם יְשַׁלֵּם הַמַּבְעִר אֶת הַבְּעֵרָה״ – עַד דְּעָבֵיד כְּעֵין מַבְעִיר.
Where does the Torah limit the required standard of safeguarding with regard to the category of Eating? As it is written: “If a man causes a field or vineyard to be eaten, and he set his animal loose, and it feed [uvi’er] in the field of another” (Exodus 22:4). This indicates that the owner does not bear liability unless he acts in a manner that is similar to causing his animal to feed there, by being negligent.
שֵׁן – דִּכְתִיב: ״וּבִעֵר בִּשְׂדֵה אַחֵר״ – עַד דְּעָבֵיד כְּעֵין ״וּבִעֵר״.
Where does the Torah limit the required standard of safeguarding with regard to the category of Trampling? As it is written: “If a man causes a field or vineyard to be eaten, and he set his animal loose [veshilaḥ], and it feed in the field of another” (Exodus 22:4). This indicates that the owner is not liable unless he acts in a manner that is similar to setting his animal loose.
רֶגֶל – דִּכְתִיב: ״וְשִׁלַּח״ – עַד דְּעָבֵיד כְּעֵין וְשִׁלַּח.
And it is taught in a baraita: With regard to the term veshilaḥ: This is referring to damage by Trampling, and similarly, the verse states: “That send forth [meshaleḥei] the feet of the ox and the donkey” (Isaiah 32:20). With regard to the term uvi’er: This is referring to damage by Eating, and similarly, the verse states: “As one consumes with the tooth, until it be all gone” (I Kings 14:10).
וְתַנְיָא: ״וְשִׁלַּח״ – זֶה הָרֶגֶל, וְכֵן הוּא אוֹמֵר: ״מְשַׁלְּחֵי רֶגֶל הַשּׁוֹר וְהַחֲמוֹר״. ״וּבִעֵר״ – זֶה הַשֵּׁן, וְכֵן הוּא אוֹמֵר: ״כַּאֲשֶׁר יְבַעֵר הַגָּלָל עַד תֻּמּוֹ״.
Evidently, the reason for the owner’s liability is specifically that he acted in a manner that is similar to setting the animal loose or causing it to feed. One can infer: But if he did not act in such a manner, even if he provided only reduced safeguarding, he is not liable.
טַעְמָא דְּעָבֵיד כְּעֵין ״וְשִׁלַּח״ ״וּבִעֵר״, הָא לָא עָבֵיד – לָא.
Rabba said: The wording of the mishna is also precise, as it taught the halakha specifically with regard to sheep. This raises the question: Since we have been dealing with cases involving an ox in all the previous mishnayot, then let this mishna also teach the halakha with regard to an ox. What is different in this mishna that it teaches the case of sheep? Is it not because the Torah limited its requirements specifically with regard to the safeguarding against damage that is more likely to be caused by sheep, i.e., caused by Eating and Trampling, since sheep are unlikely to gore? If so, the wording of the mishna is in accordance with the opinion of Rabbi Meir, who holds that a reduced level of supervision is sufficient only with regard to Eating and Trampling, but not Goring.
אָמַר רַבָּה: מַתְנִיתִין נָמֵי דַּיְקָא, דְּקָתָנֵי ״צֹאן״ – מִכְּדֵי בְּשׁוֹר קָא עָסְקִינַן וְאָתֵי, נִיתְנֵי ״שׁוֹר״! מַאי שְׁנָא דְּקָתָנֵי ״צֹאן״? לָאו מִשּׁוּם דְּהַתּוֹרָה מִיעֲטָה בִּשְׁמִירָתָן?
The Gemara rejects this: One can not necessarily derive from the wording of the mishna that it is in accordance with the opinion of Rabbi Meir. Perhaps the mishna specifically uses the case of sheep to teach the opinion of Rabbi Yehuda, because if it would have used an example of an ox here, one might have thought that it also includes damage caused by Goring, about which it is not written in the Torah that reduced supervision is sufficient. Therefore, the mishna specifically uses the example of sheep, to indicate damage caused by Eating and Trampling, about which it is written that reduced supervision is sufficient. And it teaches us that only with regard to Eating and Trampling, for which animals are considered forewarned from the outset, is reduced supervision sufficient according to the opinion of Rabbi Yehuda. The Gemara concludes that this is a valid reading of the mishna and one may learn from it that the mishna may even be in accordance with the opinion of Rabbi Yehuda.
לָאו; מִשּׁוּם דְכָאן קֶרֶן לָא כְּתִיבָא בַּהּ, שֵׁן וָרֶגֶל הוּא דִּכְתִיב בֵּיהּ; וְקָא מַשְׁמַע לַן דְּשֵׁן וָרֶגֶל – דְּמוּעָדִין הוּא. שְׁמַע מִינַּהּ.
§ It is taught in a baraita that Rabbi Yehoshua said: There are four matters in which one who commits an offense concerning them is exempt from liability according to human laws but liable according to the laws of Heaven and it would be proper for him to pay compensation, and the cases are as follows: One who breaches a fence that stood before another’s animal, thereby allowing the animal to escape; and one who bends another’s standing grain before a fire so that it catches fire; and one who hires false witnesses to testify; and one who knows testimony in support of another but does not testify on his behalf.
תַּנְיָא, אָמַר רַבִּי יְהוֹשֻׁעַ: אַרְבָּעָה דְּבָרִים הָעוֹשֶׂה אוֹתָן פָּטוּר מִדִּינֵי אָדָם, וְחַיָּיב בְּדִינֵי שָׁמַיִם. וְאֵלּוּ הֵן: הַפּוֹרֵץ גָּדֵר בִּפְנֵי בֶּהֱמַת חֲבֵירוֹ, וְהַכּוֹפֵף קָמָתוֹ שֶׁל חֲבֵירוֹ בִּפְנֵי הַדְּלֵיקָה, וְהַשּׂוֹכֵר עֵדֵי שֶׁקֶר לְהָעִיד, וְהַיּוֹדֵעַ עֵדוּת לַחֲבֵירוֹ וְאֵינוֹ מֵעִיד לוֹ.
The Gemara clarifies each of the cases listed in the baraita. The Master says: With regard to the case of one who breaches a fence that stood before another’s animal, what are the circumstances? If we say it is speaking of a stable wall that would not have fallen by itself, the one who breached it should also be liable according to human laws, at least for the damage caused to the wall. Rather, here
אָמַר מָר: הַפּוֹרֵץ גָּדֵר בִּפְנֵי בֶּהֱמַת חֲבֵירוֹ. הֵיכִי דָמֵי? אִילֵּימָא בְּכוֹתֶל בָּרִיא – בְּדִינֵי אָדָם נָמֵי נִיחַיַּיב! אֶלָּא
