Bava Kamma 042

1:
Our mishnah continues the issues that were first broached in the previous mishnah. Once again someone introduces his ox into a private courtyard. (We explained the nature of these courtyards in the previous shiur.) If he does this without the specific permission of one of the residents of the courtyard he is a trespasser.

2:
As I explained in the previous shiur, the residents of the courtyard used it in common for many – indeed most – of their daily activities and household needs. So several of them may keep their livestock in the courtyard when they are not roaming free to graze. Our mishnah presents a situation in which the ox of one of the residents is roused by the presence of another ox in 'his' courtyard, or possibly by the presence of a stranger in the courtyard, and as a result this ox goes on a rampage.

3:
David is our resident in the courtyard and his ox Goliath is wandering about the courtyard enjoying the sun. Joel the Pedlar and his ox were passing down the street and Joel noticed that there was no guard at the entrance to the courtyard in which David lives. Perhaps the guard had taken a necessary break. Joel sees an opportunity to make a sale or two and he brings his ox into the courtyard. Joel is now a trespasser.

4:
Goliath is upset by this sudden intrusion and he gores Joel's ox. Sara is another resident in the courtyard and her dog, Caleb, was gnawing on a bone quietly in the courtyard. But he now joins in the sudden commotion and bites Joel on the leg. If Joel were to sue David and/or Sara in court for the damage done to him and his ox he would lose the case: he is a trespasser and therefore he must accept the consequences of his trespass.

5:
Let's now assume that the fracas was different. Joel's ox gores Goliath and in the ensuing fight between the two animals Joel's ox falls into the communal water cistern in the courtyard. The water is muddied and its contents are rendered useless for the residents of the courtyard. David can successfully sue Joel not only for the injury sustained by Goliath but also for the monetary loss incurred from the damage to the cistern.

6:
The Gemara [BK 48b] says that the damage need not be caused as the result of a fight or commotion. These cisterns did not hold running water: they were holes dug into the ground; the hole was then cemented in order to prevent as much leakage as possible. These cisterns served all the residents of the courtyard. They were not used for fresh water: for that there was a water-channel which brought in water. The cisterns were used for cleaning purposes and even for ablutions. Since the water was standing water inevitably moss and lichen would grow on the walls of the cistern. According to the Gemara it could well be that Joel's ox leaned over the cistern in order to help himself to some of the vegetation and thus fell in. It makes no difference: the residents can successfully sue the trespasser for the damage thus caused.

7:
But the situation could have been much worse. Let's imagine that David's father was bathing in the cistern when the ox fell in and David's father is killed. (Actually, it could be anybody: our mishnah just gives the father or the son as everyday examples.) Now it is not only a question of damage. As we have learned in the previous chapter, Joel will have to pay restitution money to David (for the death of the father) and he might well lose his ox as well: we also learned that an ox that kills a human being must be slaughtered at the instigation of the Bet Din. However, the Gemara points out that in this case the ox would not be killed because it did not kill deliberately but only as the result of an accident.

8:
Our mishnah says that in no way would Joel be liable for any damage if he and his ox had been invited into the courtyard by one of the residents: on the contrary: David would be held responsible for the injuries Goliath and Caleb inflict on Joel and his ox!

9:
Rabbi, who disagrees with Tanna Kamma on this last point, is, of course, Rabbi Yehudah the president of the Sanhedrin and the compiler of the Mishnah. In the previous shiur I wrote:

…Sara cannot be expected to foresee that Athaliah will slip on the vegetables (which possibly should not have been there in any case); but she can be expected to know that Athaliah will eat any produce that comes her way, so Sara should muzzle her animal when it is not grazing…

Amnon Ronel immediately saw the problem:

Sara puts Athaliah in a private and enclosed area where there is no feed except for the cow's manger. How can she be held responsible if Mr Yarkan sets his vegetable goodies in front of the animal? Just because of the possibility that a trespasser's merchandise will be damaged she must muzzle her cow in its manger?

This is exactly the question that Rabbi asks in our present mishnah – and answers! "In no such cases is the resident liable unless he has agreed to guarding." A resident is not responsible for what his animal does in his own private property to the person and property of others unless he makes a specific undertaking to guard his animal.

In this matter Halakhah does not follow Tanna Kamma but follows the opinion of Rabbi. Thus we have a situation in which neither David nor Sara would be responsible for the injuries Goliath and Caleb inflicted on Joel, whether he is a trespasser or whether his has been invited into the courtyard. The only difference would be that it Joel was invited into the courtyard he would not be responsible for injuries inflicted by himself or his ox.