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Today's Daf Yomi

July 26, 2016 | ื›ืณ ื‘ืชืžื•ื– ืชืฉืขืดื•

  • This month's learning is sponsored by Joanna Rom and Steven Goldberg in loving memory of Steve's mother Shirley "Nana" Goldberg (Sura Tema bat Chaim v'Hanka)

Bava Kamma 56

A braita is brought that lists damages that one causes to someone else and yet is not obligated by the hands of men but is obligated by the hands of God. ย The gemara then questions why the list is limited to these four and doesn’t mention others that have the same law. ย A distinction is made between the cases listed here as they are cases where one may have thought one wouldn’t even be obligated by God and therefore they are different than the other cases brought. ย The next cases in the mishna are analyzed: ย if the gate opens at night – what is the case? ย What type of wall? ย How did it break? ย IF the robber takes the animal, he is responsible? ย Isn’t this obvious? ย The gemara gives 2 explanations what the case is and why it needed to be stated.

ื‘ื›ื•ืชืœ ืจืขื•ืข

the baraita is speaking of an unstable wall that was about to fall and break in any event, and so his action did not actually cause any loss to the owner.

ืืžืจ ืžืจ ื”ื›ื•ืคืฃ ืงืžืชื• ืฉืœ ื—ื‘ื™ืจื• ื‘ืคื ื™ ื”ื“ืœื™ืงื” ื”ื™ื›ื™ ื“ืžื™ ืื™ืœื™ืžื ื“ืžื˜ื™ื ืœื™ื” ื‘ืจื•ื— ืžืฆื•ื™ื” ื‘ื“ื™ื ื™ ืื“ื ื ืžื™ ื ื—ื™ื™ื‘ ืืœื ื“ืžื˜ื™ื ื‘ืจื•ื— ืฉืื™ื ื” ืžืฆื•ื™ื”

The Master says: With regard to the case mentioned in the baraita of one who bends anotherโ€™s standing grain before a fire, what are the circumstances? If we say that the baraita is referring to a case where the fire would reach the bent grain in a typical wind, let him also be liable for the damage according to human laws. Rather, it must be a case where the fire could reach the bent grain only in an atypical wind. Therefore, he is exempt according to human laws, and, since the grain was destroyed due to his action, he is liable according to the laws of Heaven.

ื•ืจื‘ ืืฉื™ ืืžืจ ื˜ืžื•ืŸ ืืชืžืจ ืžืฉื•ื ื“ืฉื•ื™ื” ื˜ืžื•ืŸ ื‘ืืฉ

And Rav Ashi offered an alternative explanation and said: The baraita was stated in the case of a concealed item; in other words, this person did not bend the grain toward the fire but bent it over another item in order to conceal it. One is not liable to pay restitution for concealed items damaged by fire. Therefore, when this person bent the grain over an item, he caused indirect damage to the owner of that item because he made it into a concealed item that was subsequently damaged by fire, and the owner cannot reclaim his loss.

ืืžืจ ืžืจ ื”ืฉื•ื›ืจ ืขื“ื™ ืฉืงืจ ื”ื™ื›ื™ ื“ืžื™ ืื™ืœื™ืžื ืœื ืคืฉื™ื” ืžืžื•ื ื ื‘ืขื™ ืฉืœื•ืžื™ ื•ื‘ื“ื™ื ื™ ืื“ื ื ืžื™ ื ื™ื—ื™ื™ื‘ ืืœื ืœื—ื‘ืจื™ื”

The Master says: With regard to the case mentioned in the baraita of one who hires false witnesses, what are the circumstances? If we say that he hired them for his own benefit, in order to extract payment from another, he is required to reimburse that person with money, and he is liable according to human laws for receiving money under false circumstances. Rather, the case is one where he hired false witnesses for the benefit of another. In such a case the injured party cannot sue the other litigant, since the latter did not hire the witnesses, nor can he sue the person who hired them, since that person received no personal benefit.

ื•ื”ื™ื•ื“ืข ืขื“ื•ืช ืœื—ื‘ื™ืจื• ื•ืื™ื ื• ืžืขื™ื“ ืœื• ื‘ืžืื™ ืขืกืงื™ื ืŸ ืื™ืœื™ืžื ื‘ื‘ื™ ืชืจื™ ืคืฉื™ื˜ื ื“ืื•ืจื™ื™ืชื ื”ื•ื ืื ืœื•ื ื™ื’ื™ื“ ื•ื ืฉื ืขื•ื ื•

The baraita teaches: And one who knows testimony in support of another but does not testify on his behalf is exempt from liability according to human laws but liable according to the laws of Heaven. With what circumstances are we dealing? If we say that the case involves two people who could testify, and their evidence would render the other party liable to pay, it is obvious that each of them is liable according to the laws of Heaven; he has committed a transgression by Torah law: โ€œIf he does not utter it, then he shall bear his iniquityโ€ (Leviticus 5:1). Therefore, it is unnecessary for the baraita to mention this case.

ืืœื ื‘ื—ื“

Rather, the case of the baraita concerns a single witness, whose testimony is not sufficient to render another liable, and to which the transgression of Torah law consequently does not apply. Nevertheless, a litigant can be forced to take an oath based on the testimony of a single witness, and refusal to take this oath would obligate the litigant to pay. Therefore, the witness has caused an indirect loss and is liable according to the laws of Heaven.

ื•ืชื• ืœื™ื›ื ื•ื”ืื™ื›ื (ืกื™ืžืŸ ื”ืขื•ืฉื” ื‘ืกื ื•ืฉืœื™ื— ื—ื‘ื™ืจื• ื ืฉื‘ืจ) ื”ืขื•ืฉื” ืžืœืื›ื” ื‘ืžื™ ื—ื˜ืืช ื•ื‘ืคืจืช ื—ื˜ืืช ืคื˜ื•ืจ ืžื“ื™ื ื™ ืื“ื ื•ื—ื™ื™ื‘ ื‘ื“ื™ื ื™ ืฉืžื™ื

The Gemara asks: And is there nothing else, i.e., is there no other case in which one is exempt according to human laws but liable according to the laws of Heaven? But there is such a case. And before citing several cases that are not written in the baraita the Gemara presents a mnemonic device: One who performs; with poison; and an agent; another; is broken. The Gemara returns to the first case: One who performs labor with water of purification, which was meant to be used to purify one rendered ritually impure by a corpse, thereby rendering the water unfit for use, or who performs labor with the red heifer of purification, invalidating the animal for use as an element of the purification ritual, is exempt according to human laws, since the damage he caused is not evident, but liable according to the laws of Heaven, as he caused a financial loss.

ื•ื”ืื™ื›ื ื”ื ื•ืชืŸ ืกื ื”ืžื•ืช ื‘ืคื ื™ ื‘ื”ืžืช ื—ื‘ื™ืจื• ืคื˜ื•ืจ ืžื“ื™ื ื™ ืื“ื ื•ื—ื™ื™ื‘ ื‘ื“ื™ื ื™ ืฉืžื™ื

The Gemara adds: But there is the following halakha: With regard to one who places poison before anotherโ€™s animal, and the animal eats it and dies, he is exempt according to human laws, since the animal caused its own death, but liable according to the laws of Heaven.

ื•ื”ืื™ื›ื ื”ืฉื•ืœื— ืืช ื”ื‘ืขืจื” ื‘ื™ื“ ื—ืจืฉ ืฉื•ื˜ื” ื•ืงื˜ืŸ ืคื˜ื•ืจ ืžื“ื™ื ื™ ืื“ื ื•ื—ื™ื™ื‘ ื‘ื“ื™ื ื™ ืฉืžื™ื

The Gemara adds: But there is the case of one who sends an exposed flame in the hand of a deaf-mute, an imbecile, or a minor, and the fire spreads, causing damage; he is exempt according to human laws but liable according to the laws of Heaven.

ื•ื”ืื™ื›ื ื”ืžื‘ืขื™ืช ืืช ื—ื‘ื™ืจื• ืคื˜ื•ืจ ืžื“ื™ื ื™ ืื“ื ื•ื—ื™ื™ื‘ ื‘ื“ื™ื ื™ ืฉืžื™ื

The Gemara adds: But there is the case of one who frightens another without touching him, but causes him injury; he is exempt according to human laws but liable according to the laws of Heaven.

ื•ื”ืื™ื›ื ื ืฉื‘ืจื” ื›ื“ื• ื‘ืจืฉื•ืช ื”ืจื‘ื™ื ื•ืœื ืกื™ืœืงื” ื ืคืœื” ื’ืžืœื• ื•ืœื ื”ืขืžื™ื“ื” ืจื‘ื™ ืžืื™ืจ ืžื—ื™ื™ื‘ ื‘ื”ื–ื™ืงืŸ ื•ื—ื›ืžื™ื ืื•ืžืจื™ื ืคื˜ื•ืจ ื‘ื“ื™ื ื™ ืื“ื ื•ื—ื™ื™ื‘ ื‘ื“ื™ื ื™ ืฉืžื™ื

The Gemara adds: But there is the case of one whose jug broke in the public domain and he did not remove the broken pieces, or one whose camel fell and he did not stand it up again. Rabbi Meir deems the owner of jug or of the camel liable for the damage thereby caused to others, and the Rabbis say that he is exempt according to human laws but liable according to the laws of Heaven. Since there are so many other cases, why did Rabbi Yehoshua claim in the baraita that there are only four cases when one is exempt according to human laws but liable according to the laws of Heaven?

ืื™ืŸ ืžื™ื”ื ืื™ื›ื ื˜ื•ื‘ื ื•ื”ื ื™ ืืฆื˜ืจื™ื›ื ืœื™ื” ืžื”ื• ื“ืชื™ืžื ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

The Gemara answers: Yes, there are, in any event, many other cases, but Rabbi Yehoshua held that it was necessary for him to state the halakha of these four cases. The reason he stated them is lest you say that in these cases one should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in these cases one is liable according to the laws of Heaven.

ื”ืคื•ืจืฅ ื’ื“ืจ ื‘ืคื ื™ ื‘ื”ืžืช ื—ื‘ื™ืจื• ืžื”ื• ื“ืชื™ืžื ื›ื™ื•ืŸ ื“ืœืžืกืชืจื™ื” ืงืื™ ืžื” ืขื‘ื™ื“ ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

The Gemara explains why one might have thought that there is no liability at all for each case in the baraita: Rabbi Yehoshua taught that one who breaches a fence that stood before anotherโ€™s animal, thereby allowing the animal to escape, is liable according to the laws of Heaven, lest you say: Since the fence is about to collapse even without this personโ€™s intervention, what did he really do? Based on that logic, one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.

ื”ื›ื•ืคืฃ ืงืžืชื• ืฉืœ ื—ื‘ื™ืจื• ื ืžื™ ืžื”ื• ื“ืชื™ืžื ืœื™ืžื ืžื™ ื”ื•ื” ื™ื“ืขื ื ื“ืืชื™ื ืจื•ื— ืฉืื™ื ื” ืžืฆื•ื™ื” ื•ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

Rabbi Yehoshua taught that one who bends anotherโ€™s standing grain is liable according to the laws of Heaven, lest you say: Let the one who bent the grain say to the owner: Did I know that an atypical wind would come and cause the fire to spread? Based on that logic, one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.

ื•ืœืจื‘ ืืฉื™ ื“ืืžืจ ื ืžื™ ื˜ืžื•ืŸ ืื™ืชืžืจ ืžื”ื• ื“ืชื™ืžื ืื ื ื›ืกื•ื™ื™ ื›ืกื™ืชื™ื” ื ื™ื”ืœืš ื•ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

And according to Rav Ashi, who said that Rabbi Yehoshuaโ€™s ruling was stated with regard to the case of a concealed item, Rabbi Yehoshua mentioned liability according to the laws of Heaven lest you say that the one who concealed the item could say: I covered it for you in order to protect it from the fire. Based on that logic, one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.

ื•ื”ืฉื•ื›ืจ ืขื“ื™ ืฉืงืจ ื ืžื™ ืžื”ื• ื“ืชื™ืžื ืœื™ืžื ื“ื‘ืจื™ ื”ืจื‘ ื•ื“ื‘ืจื™ ื”ืชืœืžื™ื“ ื“ื‘ืจื™ ืžื™ ืฉื•ืžืขื™ืŸ ื•ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

And Rabbi Yehoshua taught that there is liability also in the case of one who hires false witnesses, lest you say: Let the one who hired them say: If the witnesses hear the statement of the teacher, i.e., God, Who prohibited giving false testimony, and the statement of the student, i.e., the one who hired them, to whose statement should they listen? Although the one who hired them encouraged these witnesses to sin, ultimately it was they who transgressed by not adhering to the instructions of God. And based on this logic one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.

ื•ื”ื™ื•ื“ืข ืขื“ื•ืช ืœื—ื‘ื™ืจื• ื•ืื™ื ื• ืžืขื™ื“ ืœื• ื ืžื™ ืžื”ื• ื“ืชื™ืžื ืžื™ ื™ื™ืžืจ ื“ื›ื™ ื”ื•ื” ืืชื™ื ื ืžืกื”ื“ื™ื ื ืœื™ื” ื”ื•ื” ืžื•ื“ื” ื“ืœืžื ื”ื•ื” ืžืฉืชื‘ืข ืœืฉืงืจื ื•ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

Finally, Rabbi Yehoshua taught that one who knows testimony in support of another but does not testify on his behalf is liable according to the laws of Heaven, lest you say that the witness could claim: Who says that had I come forward and testified on behalf of one litigant, the other litigant would admit liability? Perhaps he would have chosen to take a false oath and absolve himself. Based on that logic one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.

ื ืคืจืฆื” ื‘ืœื™ืœื” ืื• ืฉืคืจืฆื•ื” ืœืกื˜ื™ื ื›ื•ืณ ืืžืจ ืจื‘ื” ื•ื”ื•ื ืฉื—ืชืจื”

ยง The mishna teaches: If the pen was breached at night, or bandits breached it, and sheep subsequently went out and caused damage, the owner of the sheep is exempt. Rabba says: And this first instance of a pen that was breached is referring specifically to a case where the animal tunneled under the wall of the pen and by doing so caused the wall to collapse. In that case, the owner is completely blameless and therefore exempt from liability for any damage that ensues.

ืื‘ืœ ืœื ื—ืชืจื” ืžืื™ ื—ื™ื™ื‘ ื”ื™ื›ื™ ื“ืžื™ ืื™ืœื™ืžื ื‘ื›ื•ืชืœ ื‘ืจื™ื ื›ื™ ืœื ื—ืชืจื” ืืžืื™ ื—ื™ื™ื‘ ืžืื™ ื”ื•ื” ืœื™ื” ืœืžืขื‘ื“ ืืœื ื‘ื›ื•ืชืœ ืจืขื•ืข ื›ื™ ื—ืชืจื” ืืžืื™ ืคื˜ื•ืจ ืชื—ืœืชื• ื‘ืคืฉื™ืขื” ื•ืกื•ืคื• ื‘ืื•ื ืก ื”ื•ื

The Gemara asks: But if the animal did not tunnel under the wall, what is the halakha? Would the owner be liable? What are the circumstances? If we say that the pen had a stable wall, then even if the animal did not tunnel, why is the owner liable? What should he have done? Clearly, he cannot be held liable for the damage. Rather, the pen had an unstable wall. The Gemara asks: Even if the animal tunneled under the wall and knocked it down, why is he exempt? The damage in this case is initially through negligence and ultimately by accident.

ื”ื ื™ื—ื ืœืžืืŸ ื“ืืžืจ ืชื—ื™ืœืชื• ื‘ืคืฉื™ืขื” ื•ืกื•ืคื• ื‘ืื•ื ืก ืคื˜ื•ืจ ืืœื ืœืžืืŸ ื“ืืžืจ ืชื—ื™ืœืชื• ื‘ืคืฉื™ืขื” ื•ืกื•ืคื• ื‘ืื•ื ืก ื—ื™ื™ื‘ ืžืื™ ืื™ื›ื ืœืžื™ืžืจ

This works out well according to the one who said that in any case of damage that is initially through negligence and ultimately by accident, he is exempt from liability, since the ultimate cause of the damage was not his fault. But according to the one who says that in any case of damage that is initially through negligence and ultimately by accident he is liable, as even without the accident his negligence could have caused damage, what is there to say?

ืืœื ืžืชื ื™ืชื™ืŸ ื‘ื›ื•ืชืœ ื‘ืจื™ื ื•ืืคื™ืœื• ืœื ื—ืชืจื” ื•ื›ื™ ืื™ืชืžืจ ื“ืจื‘ื” ืืกื™ืคื ืื™ืชืžืจ ื”ื ื™ื—ื” ื‘ื—ืžื” ืื• ืฉืžืกืจื” ืœื—ืจืฉ ืฉื•ื˜ื” ื•ืงื˜ืŸ ื•ื™ืฆืชื” ื•ื”ื–ื™ืงื” ื—ื™ื™ื‘ ืืžืจ ืจื‘ื” ื•ืืคื™ืœื• ื—ืชืจื”

Rather, the case of the mishna concerns a stable wall, and even if the animal did not tunnel under the wall the owner is exempt. And when the statement of Rabba was stated, it was stated with regard to the latter clause of the mishna that says: If the owner left the animal in the sun or conveyed it to a deaf-mute, an imbecile, or a minor, and the animal went out and caused damage, the owner is liable. Concerning this Rabba stated: And the owner is liable even if the animal tunneled its way out under the wall of the pen.

ืœื ืžื‘ืขื™ื ื”ื™ื›ื ื“ืœื ื—ืชืจื” ื“ื›ื•ืœื” ื‘ืคืฉื™ืขื” ื”ื•ื ืืœื ืืคื™ืœื• ื—ืชืจื” ื ืžื™ ืžื”ื• ื“ืชื™ืžื ื”ื•ื™ื ืœื” ืชื—ื™ืœืชื• ื‘ืคืฉื™ืขื” ื•ืกื•ืคื• ื‘ืื•ื ืก ืงื ืžืฉืžืข ืœืŸ ื“ื›ื•ืœื” ืคืฉื™ืขื” ื”ื™ื

The Gemara explains: It is not necessary for the mishna to mention the case where the animal did not tunnel its way out. In that case the owner is clearly liable, since the entire incident occurred due to his negligence of leaving the animal in the sun, thereby causing it distress and leading it to attempt escape by any possible means. But even if the animal tunneled its way out, the owner is liable, and this is the novelty in this ruling: Lest you say that this is a case of damage that is initially through negligence and ultimately by accident, because animals do not typically tunnel their way out of a pen, the mishna teaches us that it is considered as though the entire damage resulted from the ownerโ€™s negligence.

ืžืื™ ื˜ืขืžื ื“ืืžืจ ืœื™ื” ืžื™ื“ืข ื™ื“ืขืช ื“ื›ื™ื•ืŸ ื“ืฉื‘ืงืชื” ื‘ื—ืžื” ื›ืœ ื˜ืฆื“ืงื ื“ืื™ืช ืœื” ืœืžื™ืขื‘ื“ ืขื‘ื“ื ื•ื ืคืงื

What is the reason that the owner is liable? It is that the one who suffered the damage can say to the owner of the sheep: You should have known that since you left it in the sun, it would utilize any means [tatzdeka] available for it to use and it would escape, so you are ultimately responsible for the damage.

ื”ื•ืฆื™ืื•ื” ืœืกื˜ื™ื ืœืกื˜ื™ื ื—ื™ื™ื‘ื™ืŸ

ยง The mishna teaches: If the bandits themselves took the sheep out, the bandits are liable.

ืคืฉื™ื˜ื ื›ื™ื•ืŸ ื“ืืคืงื•ื” ืงื™ื™ืžื ืœื” ื‘ืจืฉื•ืชื™ื™ื”ื• ืœื›ืœ ืžื™ืœื™

The Gemara questions the need for this ruling: It is obvious that this is the halakha, as once they removed the animal, it is now in their custody for all purposes, including responsibility for any ensuing damage.

ืœื ืฆืจื™ื›ื ื“ืงืžื• ืœื” ื‘ืืคื” ื›ื™ ื”ื ื“ืืžืจ ืจื‘ื” ืืžืจ ืจื‘ ืžืชื ื” ืืžืจ ืจื‘ ื”ืžืขืžื™ื“ ื‘ื”ืžืช ื—ื‘ืจื• ืขืœ ืงืžืช ื—ื‘ื™ืจื• ื—ื™ื™ื‘ ืžืขืžื™ื“ ืคืฉื™ื˜ื ืœื ืฆืจื™ื›ื ื“ืงื ืœื” ื‘ืืคื”

The Gemara answers: No, this statement is necessary in a case where they stood before the animal and encouraged it to leave the enclosure but did not lead it out directly. This case is like the case in this statement that Rabba says that Rav Mattana says that Rav says: With regard to one who stands anotherโ€™s animal near a third personโ€™s standing grain, and the animal eats the grain, he is liable. The Gemara asks: If he stands the animal there, isnโ€™t it obvious that he is liable? The Gemara answers: No, this ruling is necessary in a case where one stood before the animal and encouraged it to go toward the grain without leading it, and he is nevertheless liable.

ืืžืจ ืœื™ื” ืื‘ื™ื™ ืœืจื‘ ื™ื•ืกืฃ ื”ื›ื™ืฉื” ืืžืจืช ืœืŸ ื•ืœืกื˜ื™ื ื ืžื™ ื“ื”ื›ื™ืฉื•ื”

Abaye said to Rav Yosef: You told us when explaining the statement of Rav Mattana in the name of Rav that it is referring to a case where he hit the animal with a stick, and similarly, the mishna can also be explained as referring to a case where the bandits hit it with a stick and did not lead it.

ืžืกืจื” ืœืจื•ืขื” ื ื›ื ืก ื”ืจื•ืขื” ื›ื•ืณ ืืžืจื™ ืชื—ืชื™ื• ื“ืžืืŸ ืื™ืœื™ืžื ืชื—ืชื™ื• ื“ื‘ืขืœ ื‘ื”ืžื” ืชื ื™ื ื ื—ื“ื ื–ืžื ื ืžืกืจื• ืœืฉื•ืžืจ ื—ื ื ื•ืœืฉื•ืืœ ืœื ื•ืฉื ืฉื›ืจ ื•ืœืฉื•ื›ืจ ื›ื•ืœืŸ ื ื›ื ืกื• ืชื—ืช ื”ื‘ืขืœื™ื ืืœื ืชื—ืชื™ื• ื“ืฉื•ืžืจ

ยง The mishna teaches that if the owner conveyed the animal to a shepherd to care for it, the shepherd enters in his place and is responsible for all damage. The Sages say in clarification: The shepherd enters in place of whom? If we say that the shepherd is in place of the owner of the animal, didnโ€™t we already learn on one occasion in a mishna (44b): If the owner conveyed his animal to an unpaid bailee, or to a borrower, to a paid bailee, or to a renter, they all enter into the responsibilities and liabilities in place of the owner. What novelty is there in stating that the responsibility now lies with the shepherd to whom the owner conveyed the animal? Rather, it means that the shepherd enters in place of a bailee to whom the owner conveyed the animal, who is no longer liable once he conveys the animal to a shepherd.

ื•ืฉื•ืžืจ ืงืžื ืืคื˜ืจ ืœื™ื” ืœื’ืžืจื™ ืœื™ืžื ืชื™ื”ื•ื™ ืชื™ื•ื‘ืชื ื“ืจื‘ื ื“ืืžืจ ืจื‘ื ืฉื•ืžืจ ืฉืžืกืจ ืœืฉื•ืžืจ ื—ื™ื™ื‘

The Gemara asks: If so, this mishna indicates that the first bailee exempts himself completely by conveying the sheep to a shepherd, the second bailee, and he bears no further responsibility. Shall we say that mishna is a conclusive refutation of the ruling of Rava, as Rava says: A bailee who conveyed the deposit to another bailee nevertheless remains liable?

ืืžืจ ืœืš ืจื‘ื ืžืื™ ืžืกืจื• ืœืจื•ืขื” ืœื‘ืจื–ื™ืœื™ื” ื“ืื•ืจื—ื™ื” ื“ืจื•ืขื” ืœืžื™ืžืกืจ ืœื‘ืจื–ื™ืœื™ื”

The Gemara answers: Rava could say to you in response: What does the mishna mean when it states: He conveyed it to a shepherd? It is referring to a shepherd who conveyed the animal to the shepherdโ€™s assistant, as it is the typical manner of a shepherd to convey animals in his charge to his assistant. Therefore, anyone who gives his animal to a shepherd understands that the shepherdโ€™s assistant may also care for the animal, and it is not a violation of the terms of his assignment for the shepherd to convey it to his assistant. Consequently, this mishna does not refute Ravaโ€™s opinion.

ืื™ื›ื ื“ืืžืจื™ ืžื“ืงืชื ื™ ืžืกืจื” ืœืจื•ืขื” ื•ืœื ืงืชื ื™ ืžืกืจื” ืœืื—ืจ ืฉืžืข ืžื™ื ื” ืžืื™ ืžืกืจื” ืœืจื•ืขื” ืžืกืจ ืจื•ืขื” ืœื‘ืจื–ื™ืœื™ื” ื“ืื•ืจื—ื™ื” ื“ืจื•ืขื” ืœืžื™ืžืกืจ ืœื‘ืจื–ื™ืœื™ื” ืื‘ืœ ืœืื—ืจ ืœื

There are those who say the same answer in a similar manner: From the fact that the mishna teaches the case using the expression: He conveyed it to a shepherd, and does not teach it using the less specific expression: He conveyed it to another, conclude from it that what it means by: He conveyed it to a shepherd, is that the shepherd conveyed it to his assistant, as it is the typical manner of a shepherd to convey an animal to his assistant. But if the shepherd conveyed it to another to care for it in his place, the mishna does not rule that the other person enters in his place.

ืœื™ืžื ืžืกื™ื™ืข ืœื™ื” ืœืจื‘ื ื“ืืžืจ ืจื‘ื ืฉื•ืžืจ ืฉืžืกืจ ืœืฉื•ืžืจ ื—ื™ื™ื‘ ืืžืจื™ ืœื ื“ืœืžื ืื•ืจื—ื ื“ืžื™ืœืชื ืงืชื ื™ ื•ื”ื•ื ื”ื“ื™ืŸ ืœืื—ืจ

The Gemara suggests: Let us say that the wording of the mishna therefore supports Ravaโ€™s opinion, as Rava says: A bailee who conveyed the deposit to another bailee remains liable. The Sages say in rejection of that suggestion: No, one cannot infer from the wording of the mishna that it is referring specifically to a shepherd conveying the animal to his assistant, since perhaps it teaches the matter in the manner in which it typically occurs, but the same is true even if the shepherd conveyed the animal to another. Therefore, no support can be brought from here for Ravaโ€™s opinion.

ืื™ืชืžืจ ืฉื•ืžืจ ืื‘ื™ื“ื” ืจื‘ื” ืืžืจ ื›ืฉื•ืžืจ ื—ื ื ื“ืžื™ ืจื‘ ื™ื•ืกืฃ ืืžืจ ื›ืฉื•ืžืจ ืฉื›ืจ ื“ืžื™

ยง It was stated that there is a dispute between amoraโ€™im concerning the following issue: With regard to one who is safeguarding a lost item that he has not yet returned, what level of responsibility does he bear? Rabba said: He is considered to be like an unpaid bailee, whereas Rav Yosef said: He is considered to be like a paid bailee.

ืจื‘ื” ืืžืจ ื›ืฉื•ืžืจ ื—ื ื ื“ืžื™ ืžืื™ ื”ื ืื” ืงื ืžื˜ื™ ืœื™ื” ืจื‘ ื™ื•ืกืฃ ืืžืจ ื›ืฉื•ืžืจ ืฉื›ืจ ื“ืžื™ ื‘ื”ื”ื™ื ื”ื ืื” ื“ืœื ื‘ืขื™ื ืœืžื™ืชื‘ื™ ืœื™ื” ืจื™ืคืชื ืœืขื ื™ื ื”ื•ื™ ื›ืฉื•ืžืจ ืฉื›ืจ

Their respective opinions are explained: Rabba said that he is considered to be like an unpaid bailee because what benefit comes to him through safeguarding it? Therefore, he is just like any unpaid bailee. Rav Yosef said that he is considered to be like a paid bailee on account of the benefit that he is not required to give bread to a poor person while looking after the lost item, since one who is engaged in one mitzva is exempt from performing another. Consequently, since there is some benefit involved in looking after the lost item, he is considered to be like a paid bailee.

ืื™ื›ื ื“ืžืคืจืฉื™ ื”ื›ื™ ืจื‘ ื™ื•ืกืฃ ืืžืจ ื›ืฉื•ืžืจ ืฉื›ืจ ื“ืžื™ ื›ื™ื•ืŸ ื“ืจื—ืžื ื ืฉืขื‘ื“ื™ื” ื‘ืขืœ ื›ื•ืจื—ื™ื” ื”ืœื›ืš ื›ืฉื•ืžืจ ืฉื›ืจ ื“ืžื™

This is one interpretation, whereas there are those who explain like this: Rav Yosef said that he is considered to be like a paid bailee. Once the Merciful One obligates him against his will to look after lost items, the Torah presumably imposes the high standard of safeguarding on him. Therefore, he is considered to be like a paid bailee.

(ืกื™ืžืŸ ื”ื—ื–ื™ืจื” ืœืขื•ืœื ื”ืฉื‘ ื—ื™ื™ื ืืžืจืช ื ืฉื‘ืจ ืฉื›ืจ)

The Gemara presents a mnemonic device for the halakhot and difficulties to be discussed: He returned it, always, returned, แธคiyya, you say, breaks, payment.

ืื™ืชื™ื‘ื™ื” ืจื‘ ื™ื•ืกืฃ ืœืจื‘ื”

Rav Yosef raised an objection to the opinion of Rabba from that which is taught in a baraita:

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Bava Kamma 56

The William Davidson Talmud | Powered by Sefaria

Bava Kamma 56

ื‘ื›ื•ืชืœ ืจืขื•ืข

the baraita is speaking of an unstable wall that was about to fall and break in any event, and so his action did not actually cause any loss to the owner.

ืืžืจ ืžืจ ื”ื›ื•ืคืฃ ืงืžืชื• ืฉืœ ื—ื‘ื™ืจื• ื‘ืคื ื™ ื”ื“ืœื™ืงื” ื”ื™ื›ื™ ื“ืžื™ ืื™ืœื™ืžื ื“ืžื˜ื™ื ืœื™ื” ื‘ืจื•ื— ืžืฆื•ื™ื” ื‘ื“ื™ื ื™ ืื“ื ื ืžื™ ื ื—ื™ื™ื‘ ืืœื ื“ืžื˜ื™ื ื‘ืจื•ื— ืฉืื™ื ื” ืžืฆื•ื™ื”

The Master says: With regard to the case mentioned in the baraita of one who bends anotherโ€™s standing grain before a fire, what are the circumstances? If we say that the baraita is referring to a case where the fire would reach the bent grain in a typical wind, let him also be liable for the damage according to human laws. Rather, it must be a case where the fire could reach the bent grain only in an atypical wind. Therefore, he is exempt according to human laws, and, since the grain was destroyed due to his action, he is liable according to the laws of Heaven.

ื•ืจื‘ ืืฉื™ ืืžืจ ื˜ืžื•ืŸ ืืชืžืจ ืžืฉื•ื ื“ืฉื•ื™ื” ื˜ืžื•ืŸ ื‘ืืฉ

And Rav Ashi offered an alternative explanation and said: The baraita was stated in the case of a concealed item; in other words, this person did not bend the grain toward the fire but bent it over another item in order to conceal it. One is not liable to pay restitution for concealed items damaged by fire. Therefore, when this person bent the grain over an item, he caused indirect damage to the owner of that item because he made it into a concealed item that was subsequently damaged by fire, and the owner cannot reclaim his loss.

ืืžืจ ืžืจ ื”ืฉื•ื›ืจ ืขื“ื™ ืฉืงืจ ื”ื™ื›ื™ ื“ืžื™ ืื™ืœื™ืžื ืœื ืคืฉื™ื” ืžืžื•ื ื ื‘ืขื™ ืฉืœื•ืžื™ ื•ื‘ื“ื™ื ื™ ืื“ื ื ืžื™ ื ื™ื—ื™ื™ื‘ ืืœื ืœื—ื‘ืจื™ื”

The Master says: With regard to the case mentioned in the baraita of one who hires false witnesses, what are the circumstances? If we say that he hired them for his own benefit, in order to extract payment from another, he is required to reimburse that person with money, and he is liable according to human laws for receiving money under false circumstances. Rather, the case is one where he hired false witnesses for the benefit of another. In such a case the injured party cannot sue the other litigant, since the latter did not hire the witnesses, nor can he sue the person who hired them, since that person received no personal benefit.

ื•ื”ื™ื•ื“ืข ืขื“ื•ืช ืœื—ื‘ื™ืจื• ื•ืื™ื ื• ืžืขื™ื“ ืœื• ื‘ืžืื™ ืขืกืงื™ื ืŸ ืื™ืœื™ืžื ื‘ื‘ื™ ืชืจื™ ืคืฉื™ื˜ื ื“ืื•ืจื™ื™ืชื ื”ื•ื ืื ืœื•ื ื™ื’ื™ื“ ื•ื ืฉื ืขื•ื ื•

The baraita teaches: And one who knows testimony in support of another but does not testify on his behalf is exempt from liability according to human laws but liable according to the laws of Heaven. With what circumstances are we dealing? If we say that the case involves two people who could testify, and their evidence would render the other party liable to pay, it is obvious that each of them is liable according to the laws of Heaven; he has committed a transgression by Torah law: โ€œIf he does not utter it, then he shall bear his iniquityโ€ (Leviticus 5:1). Therefore, it is unnecessary for the baraita to mention this case.

ืืœื ื‘ื—ื“

Rather, the case of the baraita concerns a single witness, whose testimony is not sufficient to render another liable, and to which the transgression of Torah law consequently does not apply. Nevertheless, a litigant can be forced to take an oath based on the testimony of a single witness, and refusal to take this oath would obligate the litigant to pay. Therefore, the witness has caused an indirect loss and is liable according to the laws of Heaven.

ื•ืชื• ืœื™ื›ื ื•ื”ืื™ื›ื (ืกื™ืžืŸ ื”ืขื•ืฉื” ื‘ืกื ื•ืฉืœื™ื— ื—ื‘ื™ืจื• ื ืฉื‘ืจ) ื”ืขื•ืฉื” ืžืœืื›ื” ื‘ืžื™ ื—ื˜ืืช ื•ื‘ืคืจืช ื—ื˜ืืช ืคื˜ื•ืจ ืžื“ื™ื ื™ ืื“ื ื•ื—ื™ื™ื‘ ื‘ื“ื™ื ื™ ืฉืžื™ื

The Gemara asks: And is there nothing else, i.e., is there no other case in which one is exempt according to human laws but liable according to the laws of Heaven? But there is such a case. And before citing several cases that are not written in the baraita the Gemara presents a mnemonic device: One who performs; with poison; and an agent; another; is broken. The Gemara returns to the first case: One who performs labor with water of purification, which was meant to be used to purify one rendered ritually impure by a corpse, thereby rendering the water unfit for use, or who performs labor with the red heifer of purification, invalidating the animal for use as an element of the purification ritual, is exempt according to human laws, since the damage he caused is not evident, but liable according to the laws of Heaven, as he caused a financial loss.

ื•ื”ืื™ื›ื ื”ื ื•ืชืŸ ืกื ื”ืžื•ืช ื‘ืคื ื™ ื‘ื”ืžืช ื—ื‘ื™ืจื• ืคื˜ื•ืจ ืžื“ื™ื ื™ ืื“ื ื•ื—ื™ื™ื‘ ื‘ื“ื™ื ื™ ืฉืžื™ื

The Gemara adds: But there is the following halakha: With regard to one who places poison before anotherโ€™s animal, and the animal eats it and dies, he is exempt according to human laws, since the animal caused its own death, but liable according to the laws of Heaven.

ื•ื”ืื™ื›ื ื”ืฉื•ืœื— ืืช ื”ื‘ืขืจื” ื‘ื™ื“ ื—ืจืฉ ืฉื•ื˜ื” ื•ืงื˜ืŸ ืคื˜ื•ืจ ืžื“ื™ื ื™ ืื“ื ื•ื—ื™ื™ื‘ ื‘ื“ื™ื ื™ ืฉืžื™ื

The Gemara adds: But there is the case of one who sends an exposed flame in the hand of a deaf-mute, an imbecile, or a minor, and the fire spreads, causing damage; he is exempt according to human laws but liable according to the laws of Heaven.

ื•ื”ืื™ื›ื ื”ืžื‘ืขื™ืช ืืช ื—ื‘ื™ืจื• ืคื˜ื•ืจ ืžื“ื™ื ื™ ืื“ื ื•ื—ื™ื™ื‘ ื‘ื“ื™ื ื™ ืฉืžื™ื

The Gemara adds: But there is the case of one who frightens another without touching him, but causes him injury; he is exempt according to human laws but liable according to the laws of Heaven.

ื•ื”ืื™ื›ื ื ืฉื‘ืจื” ื›ื“ื• ื‘ืจืฉื•ืช ื”ืจื‘ื™ื ื•ืœื ืกื™ืœืงื” ื ืคืœื” ื’ืžืœื• ื•ืœื ื”ืขืžื™ื“ื” ืจื‘ื™ ืžืื™ืจ ืžื—ื™ื™ื‘ ื‘ื”ื–ื™ืงืŸ ื•ื—ื›ืžื™ื ืื•ืžืจื™ื ืคื˜ื•ืจ ื‘ื“ื™ื ื™ ืื“ื ื•ื—ื™ื™ื‘ ื‘ื“ื™ื ื™ ืฉืžื™ื

The Gemara adds: But there is the case of one whose jug broke in the public domain and he did not remove the broken pieces, or one whose camel fell and he did not stand it up again. Rabbi Meir deems the owner of jug or of the camel liable for the damage thereby caused to others, and the Rabbis say that he is exempt according to human laws but liable according to the laws of Heaven. Since there are so many other cases, why did Rabbi Yehoshua claim in the baraita that there are only four cases when one is exempt according to human laws but liable according to the laws of Heaven?

ืื™ืŸ ืžื™ื”ื ืื™ื›ื ื˜ื•ื‘ื ื•ื”ื ื™ ืืฆื˜ืจื™ื›ื ืœื™ื” ืžื”ื• ื“ืชื™ืžื ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

The Gemara answers: Yes, there are, in any event, many other cases, but Rabbi Yehoshua held that it was necessary for him to state the halakha of these four cases. The reason he stated them is lest you say that in these cases one should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in these cases one is liable according to the laws of Heaven.

ื”ืคื•ืจืฅ ื’ื“ืจ ื‘ืคื ื™ ื‘ื”ืžืช ื—ื‘ื™ืจื• ืžื”ื• ื“ืชื™ืžื ื›ื™ื•ืŸ ื“ืœืžืกืชืจื™ื” ืงืื™ ืžื” ืขื‘ื™ื“ ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

The Gemara explains why one might have thought that there is no liability at all for each case in the baraita: Rabbi Yehoshua taught that one who breaches a fence that stood before anotherโ€™s animal, thereby allowing the animal to escape, is liable according to the laws of Heaven, lest you say: Since the fence is about to collapse even without this personโ€™s intervention, what did he really do? Based on that logic, one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.

ื”ื›ื•ืคืฃ ืงืžืชื• ืฉืœ ื—ื‘ื™ืจื• ื ืžื™ ืžื”ื• ื“ืชื™ืžื ืœื™ืžื ืžื™ ื”ื•ื” ื™ื“ืขื ื ื“ืืชื™ื ืจื•ื— ืฉืื™ื ื” ืžืฆื•ื™ื” ื•ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

Rabbi Yehoshua taught that one who bends anotherโ€™s standing grain is liable according to the laws of Heaven, lest you say: Let the one who bent the grain say to the owner: Did I know that an atypical wind would come and cause the fire to spread? Based on that logic, one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.

ื•ืœืจื‘ ืืฉื™ ื“ืืžืจ ื ืžื™ ื˜ืžื•ืŸ ืื™ืชืžืจ ืžื”ื• ื“ืชื™ืžื ืื ื ื›ืกื•ื™ื™ ื›ืกื™ืชื™ื” ื ื™ื”ืœืš ื•ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

And according to Rav Ashi, who said that Rabbi Yehoshuaโ€™s ruling was stated with regard to the case of a concealed item, Rabbi Yehoshua mentioned liability according to the laws of Heaven lest you say that the one who concealed the item could say: I covered it for you in order to protect it from the fire. Based on that logic, one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.

ื•ื”ืฉื•ื›ืจ ืขื“ื™ ืฉืงืจ ื ืžื™ ืžื”ื• ื“ืชื™ืžื ืœื™ืžื ื“ื‘ืจื™ ื”ืจื‘ ื•ื“ื‘ืจื™ ื”ืชืœืžื™ื“ ื“ื‘ืจื™ ืžื™ ืฉื•ืžืขื™ืŸ ื•ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

And Rabbi Yehoshua taught that there is liability also in the case of one who hires false witnesses, lest you say: Let the one who hired them say: If the witnesses hear the statement of the teacher, i.e., God, Who prohibited giving false testimony, and the statement of the student, i.e., the one who hired them, to whose statement should they listen? Although the one who hired them encouraged these witnesses to sin, ultimately it was they who transgressed by not adhering to the instructions of God. And based on this logic one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.

ื•ื”ื™ื•ื“ืข ืขื“ื•ืช ืœื—ื‘ื™ืจื• ื•ืื™ื ื• ืžืขื™ื“ ืœื• ื ืžื™ ืžื”ื• ื“ืชื™ืžื ืžื™ ื™ื™ืžืจ ื“ื›ื™ ื”ื•ื” ืืชื™ื ื ืžืกื”ื“ื™ื ื ืœื™ื” ื”ื•ื” ืžื•ื“ื” ื“ืœืžื ื”ื•ื” ืžืฉืชื‘ืข ืœืฉืงืจื ื•ื‘ื“ื™ื ื™ ืฉืžื™ื ื ืžื™ ืœื ืœื™ื—ื™ื™ื‘ ืงื ืžืฉืžืข ืœืŸ

Finally, Rabbi Yehoshua taught that one who knows testimony in support of another but does not testify on his behalf is liable according to the laws of Heaven, lest you say that the witness could claim: Who says that had I come forward and testified on behalf of one litigant, the other litigant would admit liability? Perhaps he would have chosen to take a false oath and absolve himself. Based on that logic one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.

ื ืคืจืฆื” ื‘ืœื™ืœื” ืื• ืฉืคืจืฆื•ื” ืœืกื˜ื™ื ื›ื•ืณ ืืžืจ ืจื‘ื” ื•ื”ื•ื ืฉื—ืชืจื”

ยง The mishna teaches: If the pen was breached at night, or bandits breached it, and sheep subsequently went out and caused damage, the owner of the sheep is exempt. Rabba says: And this first instance of a pen that was breached is referring specifically to a case where the animal tunneled under the wall of the pen and by doing so caused the wall to collapse. In that case, the owner is completely blameless and therefore exempt from liability for any damage that ensues.

ืื‘ืœ ืœื ื—ืชืจื” ืžืื™ ื—ื™ื™ื‘ ื”ื™ื›ื™ ื“ืžื™ ืื™ืœื™ืžื ื‘ื›ื•ืชืœ ื‘ืจื™ื ื›ื™ ืœื ื—ืชืจื” ืืžืื™ ื—ื™ื™ื‘ ืžืื™ ื”ื•ื” ืœื™ื” ืœืžืขื‘ื“ ืืœื ื‘ื›ื•ืชืœ ืจืขื•ืข ื›ื™ ื—ืชืจื” ืืžืื™ ืคื˜ื•ืจ ืชื—ืœืชื• ื‘ืคืฉื™ืขื” ื•ืกื•ืคื• ื‘ืื•ื ืก ื”ื•ื

The Gemara asks: But if the animal did not tunnel under the wall, what is the halakha? Would the owner be liable? What are the circumstances? If we say that the pen had a stable wall, then even if the animal did not tunnel, why is the owner liable? What should he have done? Clearly, he cannot be held liable for the damage. Rather, the pen had an unstable wall. The Gemara asks: Even if the animal tunneled under the wall and knocked it down, why is he exempt? The damage in this case is initially through negligence and ultimately by accident.

ื”ื ื™ื—ื ืœืžืืŸ ื“ืืžืจ ืชื—ื™ืœืชื• ื‘ืคืฉื™ืขื” ื•ืกื•ืคื• ื‘ืื•ื ืก ืคื˜ื•ืจ ืืœื ืœืžืืŸ ื“ืืžืจ ืชื—ื™ืœืชื• ื‘ืคืฉื™ืขื” ื•ืกื•ืคื• ื‘ืื•ื ืก ื—ื™ื™ื‘ ืžืื™ ืื™ื›ื ืœืžื™ืžืจ

This works out well according to the one who said that in any case of damage that is initially through negligence and ultimately by accident, he is exempt from liability, since the ultimate cause of the damage was not his fault. But according to the one who says that in any case of damage that is initially through negligence and ultimately by accident he is liable, as even without the accident his negligence could have caused damage, what is there to say?

ืืœื ืžืชื ื™ืชื™ืŸ ื‘ื›ื•ืชืœ ื‘ืจื™ื ื•ืืคื™ืœื• ืœื ื—ืชืจื” ื•ื›ื™ ืื™ืชืžืจ ื“ืจื‘ื” ืืกื™ืคื ืื™ืชืžืจ ื”ื ื™ื—ื” ื‘ื—ืžื” ืื• ืฉืžืกืจื” ืœื—ืจืฉ ืฉื•ื˜ื” ื•ืงื˜ืŸ ื•ื™ืฆืชื” ื•ื”ื–ื™ืงื” ื—ื™ื™ื‘ ืืžืจ ืจื‘ื” ื•ืืคื™ืœื• ื—ืชืจื”

Rather, the case of the mishna concerns a stable wall, and even if the animal did not tunnel under the wall the owner is exempt. And when the statement of Rabba was stated, it was stated with regard to the latter clause of the mishna that says: If the owner left the animal in the sun or conveyed it to a deaf-mute, an imbecile, or a minor, and the animal went out and caused damage, the owner is liable. Concerning this Rabba stated: And the owner is liable even if the animal tunneled its way out under the wall of the pen.

ืœื ืžื‘ืขื™ื ื”ื™ื›ื ื“ืœื ื—ืชืจื” ื“ื›ื•ืœื” ื‘ืคืฉื™ืขื” ื”ื•ื ืืœื ืืคื™ืœื• ื—ืชืจื” ื ืžื™ ืžื”ื• ื“ืชื™ืžื ื”ื•ื™ื ืœื” ืชื—ื™ืœืชื• ื‘ืคืฉื™ืขื” ื•ืกื•ืคื• ื‘ืื•ื ืก ืงื ืžืฉืžืข ืœืŸ ื“ื›ื•ืœื” ืคืฉื™ืขื” ื”ื™ื

The Gemara explains: It is not necessary for the mishna to mention the case where the animal did not tunnel its way out. In that case the owner is clearly liable, since the entire incident occurred due to his negligence of leaving the animal in the sun, thereby causing it distress and leading it to attempt escape by any possible means. But even if the animal tunneled its way out, the owner is liable, and this is the novelty in this ruling: Lest you say that this is a case of damage that is initially through negligence and ultimately by accident, because animals do not typically tunnel their way out of a pen, the mishna teaches us that it is considered as though the entire damage resulted from the ownerโ€™s negligence.

ืžืื™ ื˜ืขืžื ื“ืืžืจ ืœื™ื” ืžื™ื“ืข ื™ื“ืขืช ื“ื›ื™ื•ืŸ ื“ืฉื‘ืงืชื” ื‘ื—ืžื” ื›ืœ ื˜ืฆื“ืงื ื“ืื™ืช ืœื” ืœืžื™ืขื‘ื“ ืขื‘ื“ื ื•ื ืคืงื

What is the reason that the owner is liable? It is that the one who suffered the damage can say to the owner of the sheep: You should have known that since you left it in the sun, it would utilize any means [tatzdeka] available for it to use and it would escape, so you are ultimately responsible for the damage.

ื”ื•ืฆื™ืื•ื” ืœืกื˜ื™ื ืœืกื˜ื™ื ื—ื™ื™ื‘ื™ืŸ

ยง The mishna teaches: If the bandits themselves took the sheep out, the bandits are liable.

ืคืฉื™ื˜ื ื›ื™ื•ืŸ ื“ืืคืงื•ื” ืงื™ื™ืžื ืœื” ื‘ืจืฉื•ืชื™ื™ื”ื• ืœื›ืœ ืžื™ืœื™

The Gemara questions the need for this ruling: It is obvious that this is the halakha, as once they removed the animal, it is now in their custody for all purposes, including responsibility for any ensuing damage.

ืœื ืฆืจื™ื›ื ื“ืงืžื• ืœื” ื‘ืืคื” ื›ื™ ื”ื ื“ืืžืจ ืจื‘ื” ืืžืจ ืจื‘ ืžืชื ื” ืืžืจ ืจื‘ ื”ืžืขืžื™ื“ ื‘ื”ืžืช ื—ื‘ืจื• ืขืœ ืงืžืช ื—ื‘ื™ืจื• ื—ื™ื™ื‘ ืžืขืžื™ื“ ืคืฉื™ื˜ื ืœื ืฆืจื™ื›ื ื“ืงื ืœื” ื‘ืืคื”

The Gemara answers: No, this statement is necessary in a case where they stood before the animal and encouraged it to leave the enclosure but did not lead it out directly. This case is like the case in this statement that Rabba says that Rav Mattana says that Rav says: With regard to one who stands anotherโ€™s animal near a third personโ€™s standing grain, and the animal eats the grain, he is liable. The Gemara asks: If he stands the animal there, isnโ€™t it obvious that he is liable? The Gemara answers: No, this ruling is necessary in a case where one stood before the animal and encouraged it to go toward the grain without leading it, and he is nevertheless liable.

ืืžืจ ืœื™ื” ืื‘ื™ื™ ืœืจื‘ ื™ื•ืกืฃ ื”ื›ื™ืฉื” ืืžืจืช ืœืŸ ื•ืœืกื˜ื™ื ื ืžื™ ื“ื”ื›ื™ืฉื•ื”

Abaye said to Rav Yosef: You told us when explaining the statement of Rav Mattana in the name of Rav that it is referring to a case where he hit the animal with a stick, and similarly, the mishna can also be explained as referring to a case where the bandits hit it with a stick and did not lead it.

ืžืกืจื” ืœืจื•ืขื” ื ื›ื ืก ื”ืจื•ืขื” ื›ื•ืณ ืืžืจื™ ืชื—ืชื™ื• ื“ืžืืŸ ืื™ืœื™ืžื ืชื—ืชื™ื• ื“ื‘ืขืœ ื‘ื”ืžื” ืชื ื™ื ื ื—ื“ื ื–ืžื ื ืžืกืจื• ืœืฉื•ืžืจ ื—ื ื ื•ืœืฉื•ืืœ ืœื ื•ืฉื ืฉื›ืจ ื•ืœืฉื•ื›ืจ ื›ื•ืœืŸ ื ื›ื ืกื• ืชื—ืช ื”ื‘ืขืœื™ื ืืœื ืชื—ืชื™ื• ื“ืฉื•ืžืจ

ยง The mishna teaches that if the owner conveyed the animal to a shepherd to care for it, the shepherd enters in his place and is responsible for all damage. The Sages say in clarification: The shepherd enters in place of whom? If we say that the shepherd is in place of the owner of the animal, didnโ€™t we already learn on one occasion in a mishna (44b): If the owner conveyed his animal to an unpaid bailee, or to a borrower, to a paid bailee, or to a renter, they all enter into the responsibilities and liabilities in place of the owner. What novelty is there in stating that the responsibility now lies with the shepherd to whom the owner conveyed the animal? Rather, it means that the shepherd enters in place of a bailee to whom the owner conveyed the animal, who is no longer liable once he conveys the animal to a shepherd.

ื•ืฉื•ืžืจ ืงืžื ืืคื˜ืจ ืœื™ื” ืœื’ืžืจื™ ืœื™ืžื ืชื™ื”ื•ื™ ืชื™ื•ื‘ืชื ื“ืจื‘ื ื“ืืžืจ ืจื‘ื ืฉื•ืžืจ ืฉืžืกืจ ืœืฉื•ืžืจ ื—ื™ื™ื‘

The Gemara asks: If so, this mishna indicates that the first bailee exempts himself completely by conveying the sheep to a shepherd, the second bailee, and he bears no further responsibility. Shall we say that mishna is a conclusive refutation of the ruling of Rava, as Rava says: A bailee who conveyed the deposit to another bailee nevertheless remains liable?

ืืžืจ ืœืš ืจื‘ื ืžืื™ ืžืกืจื• ืœืจื•ืขื” ืœื‘ืจื–ื™ืœื™ื” ื“ืื•ืจื—ื™ื” ื“ืจื•ืขื” ืœืžื™ืžืกืจ ืœื‘ืจื–ื™ืœื™ื”

The Gemara answers: Rava could say to you in response: What does the mishna mean when it states: He conveyed it to a shepherd? It is referring to a shepherd who conveyed the animal to the shepherdโ€™s assistant, as it is the typical manner of a shepherd to convey animals in his charge to his assistant. Therefore, anyone who gives his animal to a shepherd understands that the shepherdโ€™s assistant may also care for the animal, and it is not a violation of the terms of his assignment for the shepherd to convey it to his assistant. Consequently, this mishna does not refute Ravaโ€™s opinion.

ืื™ื›ื ื“ืืžืจื™ ืžื“ืงืชื ื™ ืžืกืจื” ืœืจื•ืขื” ื•ืœื ืงืชื ื™ ืžืกืจื” ืœืื—ืจ ืฉืžืข ืžื™ื ื” ืžืื™ ืžืกืจื” ืœืจื•ืขื” ืžืกืจ ืจื•ืขื” ืœื‘ืจื–ื™ืœื™ื” ื“ืื•ืจื—ื™ื” ื“ืจื•ืขื” ืœืžื™ืžืกืจ ืœื‘ืจื–ื™ืœื™ื” ืื‘ืœ ืœืื—ืจ ืœื

There are those who say the same answer in a similar manner: From the fact that the mishna teaches the case using the expression: He conveyed it to a shepherd, and does not teach it using the less specific expression: He conveyed it to another, conclude from it that what it means by: He conveyed it to a shepherd, is that the shepherd conveyed it to his assistant, as it is the typical manner of a shepherd to convey an animal to his assistant. But if the shepherd conveyed it to another to care for it in his place, the mishna does not rule that the other person enters in his place.

ืœื™ืžื ืžืกื™ื™ืข ืœื™ื” ืœืจื‘ื ื“ืืžืจ ืจื‘ื ืฉื•ืžืจ ืฉืžืกืจ ืœืฉื•ืžืจ ื—ื™ื™ื‘ ืืžืจื™ ืœื ื“ืœืžื ืื•ืจื—ื ื“ืžื™ืœืชื ืงืชื ื™ ื•ื”ื•ื ื”ื“ื™ืŸ ืœืื—ืจ

The Gemara suggests: Let us say that the wording of the mishna therefore supports Ravaโ€™s opinion, as Rava says: A bailee who conveyed the deposit to another bailee remains liable. The Sages say in rejection of that suggestion: No, one cannot infer from the wording of the mishna that it is referring specifically to a shepherd conveying the animal to his assistant, since perhaps it teaches the matter in the manner in which it typically occurs, but the same is true even if the shepherd conveyed the animal to another. Therefore, no support can be brought from here for Ravaโ€™s opinion.

ืื™ืชืžืจ ืฉื•ืžืจ ืื‘ื™ื“ื” ืจื‘ื” ืืžืจ ื›ืฉื•ืžืจ ื—ื ื ื“ืžื™ ืจื‘ ื™ื•ืกืฃ ืืžืจ ื›ืฉื•ืžืจ ืฉื›ืจ ื“ืžื™

ยง It was stated that there is a dispute between amoraโ€™im concerning the following issue: With regard to one who is safeguarding a lost item that he has not yet returned, what level of responsibility does he bear? Rabba said: He is considered to be like an unpaid bailee, whereas Rav Yosef said: He is considered to be like a paid bailee.

ืจื‘ื” ืืžืจ ื›ืฉื•ืžืจ ื—ื ื ื“ืžื™ ืžืื™ ื”ื ืื” ืงื ืžื˜ื™ ืœื™ื” ืจื‘ ื™ื•ืกืฃ ืืžืจ ื›ืฉื•ืžืจ ืฉื›ืจ ื“ืžื™ ื‘ื”ื”ื™ื ื”ื ืื” ื“ืœื ื‘ืขื™ื ืœืžื™ืชื‘ื™ ืœื™ื” ืจื™ืคืชื ืœืขื ื™ื ื”ื•ื™ ื›ืฉื•ืžืจ ืฉื›ืจ

Their respective opinions are explained: Rabba said that he is considered to be like an unpaid bailee because what benefit comes to him through safeguarding it? Therefore, he is just like any unpaid bailee. Rav Yosef said that he is considered to be like a paid bailee on account of the benefit that he is not required to give bread to a poor person while looking after the lost item, since one who is engaged in one mitzva is exempt from performing another. Consequently, since there is some benefit involved in looking after the lost item, he is considered to be like a paid bailee.

ืื™ื›ื ื“ืžืคืจืฉื™ ื”ื›ื™ ืจื‘ ื™ื•ืกืฃ ืืžืจ ื›ืฉื•ืžืจ ืฉื›ืจ ื“ืžื™ ื›ื™ื•ืŸ ื“ืจื—ืžื ื ืฉืขื‘ื“ื™ื” ื‘ืขืœ ื›ื•ืจื—ื™ื” ื”ืœื›ืš ื›ืฉื•ืžืจ ืฉื›ืจ ื“ืžื™

This is one interpretation, whereas there are those who explain like this: Rav Yosef said that he is considered to be like a paid bailee. Once the Merciful One obligates him against his will to look after lost items, the Torah presumably imposes the high standard of safeguarding on him. Therefore, he is considered to be like a paid bailee.

(ืกื™ืžืŸ ื”ื—ื–ื™ืจื” ืœืขื•ืœื ื”ืฉื‘ ื—ื™ื™ื ืืžืจืช ื ืฉื‘ืจ ืฉื›ืจ)

The Gemara presents a mnemonic device for the halakhot and difficulties to be discussed: He returned it, always, returned, แธคiyya, you say, breaks, payment.

ืื™ืชื™ื‘ื™ื” ืจื‘ ื™ื•ืกืฃ ืœืจื‘ื”

Rav Yosef raised an objection to the opinion of Rabba from that which is taught in a baraita:

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