Bava Kamma 051

נושא: BK

BET MIDRASH VIRTUALI

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If he left [the flock] in the sun or gave them into the charge of a deaf-mute, imbecile or minor and they got out and caused damage he is liable. If he give them into the charge of a shepherd the shepherd takes his place. If [an animal] falls upon a garden and benefits it pays what it benefited; if it went in of its own accord and caused damage it pays for what it damaged. How does it pay for what it damaged? – We estimate [the value of] a Bet Se'ah in that field: how much was it worth and how much is it [now] worth? Rabbi Shim'on says [that] if it ate ripe fruits it pays [the value of] ripe fruits: if it was one se'ah [it pays] one se'ah, if two se'ahs, two.

1:
Our mishnah is not as simple as it seems to be at first glance, as will become clear as we progress through its clauses. The main points, however, are clear. Our mishnah is concerned with responsibility for damage caused by one's flock or by one of the animals in the flock.

2:
It should be obvious that if an animal is left penned in a place with no shade that it will do its best to break out to find a shady spot to graze. In such circumstances a gate that will remain standing 'in a usual breeze', as stipulated in the previous mishnah, is not likely to suffice. It is enough for one sheep to break through the gate in order for them all to follow in the search for shade. So the responsibility for recompense for damage caused would take effect despite the fact that in the previous mishnah we learned that the owner is not liable if the sheep or goats were penned.

3:
What if the flock was in charge of someone who is not legally competent? In response to a query, in BK 017 I wrote:

Deaf-mutes, someone suffering from severe mental retardation and children (under the age of 12 for girls and 13 for boys) are not legal personalities at all.

Therefore, if someone leaves the flock in charge of such a person they must assume the responsibility for any damage caused by the animals.

4:
Our mishnah now states that "if he give them into the charge of a shepherd the shepherd takes his place." It seems logical to assume that what our mishnah is saying is that if the owner of the flock hires a shepherd to look after them the shepherd assumes responsibility for any damage that the animals may cause. But in the Gemara [BK 56b] a surprising question is asked:

"… the shepherd takes his place" – whose place?

In other words, the Gemara is asking who the "he" is in the phrase "if he gave them into the charge of a shepherd". The Gemara now continues:

You can't say instead of the owner because we have learned elsewhere: "If an owner hands over his cattle to an unpaid bailee or to a borrower, to a paid bailee or to a hirer, each of them would enter into the responsibilities of the owner".

We have met these 'bailees' before [BK028]. You will recall my explanation then that the term refers to someone who has someone else's property in his legal possession. Furthermore, in BK036 I wrote:

So the bailee must assume full responsibility for the behaviour of the animal that is in his or her charge. If, during the period that the animal is in the custody of the bailee it causes damage the bailee must pay just as if he were the original owner.

To be continued.

In the previous shiur I responded to a query about mules that was posed by Juan-Carlos Kiel, who now writes:

Being horses (and mares) so scarce and expensive in antiquity (e.g.: note that only noblemen were entitled to ride horses in the Middle age and many times the sole capital a nobleman would have was his horse, his armor and his soul, and as well the reduced numbers cavalry forces had vs. infantry), I doubt they would be left unattended to permit the free mating with donkeys. I think mules must have been produced only by human intervention. May be Jews would buy their mules from gentiles? Mules are mostly infertile. From Wikipedia: "All male mules and most female mules are infertile". Therefore, the Rambam's proposal of mating a he-mule with a she-mule would not bring descendents at all. It is strange he has such an error, as in his days the facts about mules were more readily known by the general population than it is nowadays.

I respond:

I am quite at a loss to relate to the first point raised by Juan-Carlos. I just do not have the requisite knowledge. I am reminded of the admonition of our sages in the Talmud [Berakhot 4a]: "Teach your tongue to say 'I do not know'. In this case I must obey their command.

Regarding Juan-Carlos' second point. This is echoed by Ze'ev Orzech with truly Maimonidean brevity:

I thought mules were infertile… ?

I have checked and double-checked the Rambam passage in question. He was not offering a personal opinion: he was quoting almost verbatim a mishnah [Kilayim 8:4]. The two main commentators on this halakhah of Rambam do not even relate to the problem of the infertility of mules. I agree that this is very strange. One of the fondest hopes of a student of halakhah is to catch Rambam out in an error. Very, very few have managed to do it in all the 805 years since the great man died, so I am very wary of suggestion that Juan-Carlos and Ze'ev may have succeeded where greater minds have failed. But it might just be so…

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