Bava Kamma 052

5:
Our mishnah stipulates that "if he gave them into the charge of a shepherd the shepherd takes his place." We have also seen that the Gemara [BK56b] raises the problem of who is "he". The argument is that we already know from a different source that "if an owner hands over his cattle to … bailees … they enter into the responsibilities of the owner". Since the Mishnah is not prone to making superfluous judgements our present mishnah cannot be referring to an owner hiring a shepherd to watch his flock. The Gemara now continues:

In other words, the owner had previously hired a shepherd to guard his flock and now our present mishnah is referring to a situation in which the hired shepherd transfers his task to another shepherd, perhaps a subordinate. In such a case the full responsibility now devolves on the replacement shepherd.

6:
Perhaps it would be useful to clarify that if the shepherd (and the shepherd's replacements down the line) received payment for his task he has the legal status of "a paid bailee". But even if he was only doing the owner (or the previous shepherd) a favour he is still a bailee – an "unpaid bailee".

7:
The Gemara now subjects the mishnah to textual analysis in order to prove the point:

So, according to the Gemara, our mishnah is describing a situation in which a hired shepherd appoints a deputy: the deputy now assumes all the responsibilities of the original owner regarding compensation for any damage caused by the flock in his charge.

8:
Rambam explains the situation clearly and succinctly in his commentary on our mishnah:

9:
We have previously described what "benefitting" means in the context of our mishnah. In BK 010 I wrote:

If what his donkey ate saves David some money – because now he doesn't have to feed Dobbin one meal – he does not indemnify Sara the extent of the damage suffered but the extent of his saving: if Dobbin's lunch would have cost David 2 dinars that is the extent of his indemnification, even if the loss of the carrots to Sara is 3 dinars.

So, in the context of our present mishnah, if an animal accidentally falls from the pathway into a garden and takes the opportunity to do some nifty grazing the owner (or his replacement) need only recompense the owner of the garden to the amount saved, not the actual amount eaten. (Rambam explains that 'accidentally' here means that the animal stumbled on a stone or a log and fell into the garden.) On the other hand, if the animal enters the garden 'deliberately' (Rambam says that the other animals pushed it in because the shepherd was not herding them properly) then the recompense is to the extent of the lass sustained.

10:
Our mishnah now explains how the latter evaluation is made. A bet se'ah means an area in which a se'ah of seed can be sown. This is defined as an area of 50 cubits by 50 cubits. (Allow approximately 50 centimetres per cubit. Thus we are speaking of an area of approximately 625 square metres.) Tanna Kamma says that rather than estimate the exact value of the produce eaten by the animals we compare the value of the whole field (bet se'ah) as it was with its present value now that it has been depleted. This is because it is known that a prospective buyer would not be so concerned about the loss of just one garden bed.

11:
However, Rabbi Shim'on [ben-Yoḯai] holds that exact compensation must be paid: if the animals ate ripe produce then compensation must be paid at the current value of the ripe produce; if one se'ah was damaged that is the amount of compensation to be paid, if two se'ahs were eaten up (presumably by the whole flock!) then the compensation must be at the current value of two se'ahs. One se'ah of seed would be something in the region of 35 litres. Rabbi Shim'on's view is accepted halakhah.

Here is a reasoned response to the issue of horses and mules that has concerned us in the last couple of shiurim. It was sent to me by Michal Roth:

I am no expert in this matter but as I understand it the example offered by Juan-Carlos is from medieval Europe; if my memory does not deceive me there were periods in the ancient world when empires were built by using horses. The Khan dynasty and the Mongols are an example of a people that lived on its horses. Since Eretz-Israel is at a crossroads between the continents of Europe, Asia and Africa it could be that horses and mules reached here from those continents.

Furthermore, horses must have shared grazing with donkeys and if, as has been said, they were rare and there were not many around it is certainly possible that there were matings between a few stallions or mares and a donkey or a she-ass that were in the area, especially if their own kind were not available when they were in heat.

As far as what Rambam has to say about mules is concerned: it could be that the fact that Rambam and his commentators do not relate to the infertility of mules is because the mishnah uses the mule as an example for all hybrids, just as the ox serves as an example for all animals that are in the care of humans. For them the main point is not whether a hybrid is infertile or not but how, if at all, it is permitted to mate hybrids. That is to say that the Mishnah and its commentators are actually concerned with human actions and not with the possible consequences of that action. If the deed is forbidden it is forbidden even if no offspring comes from it, and if it is permitted it is permitted.

This topic is now closed.