Welcome. Today we are learning Baba Kamma, daf 20. We are a little ways back, on the Mishnah on daf 19b. Please indulge me for a few minutes while we review. This tractate is being learned for the complete recovery of Esther bat Sara, and for the recovery of all those who need one, for the return of the captives, the recovery of the wounded, and general peace among the Jewish people.
We begin the Gemara on 19b, starting with the Mishnah. One of the primary categories of damages is grazing damage. We learned about this on the previous page. Grazing damage refers to an animal eating something. The question is: how does that damage occur?
The Mishnah says that when an animal eats something that is appropriate for it to eat—fruit and vegetables, for example—the owner pays full damages. But if it eats something unusual, such as a garment or utensils, the owner pays half damages. The rule is that whenever an animal causes damage in an abnormal manner, that damage is classified as abnormal damage, and the owner pays half damages. It is obviously not normal for an animal to eat clothing or utensils, so the payment is half damages.
There is another important rule concerning grazing damage. We learned that grazing and trampling are exempt when they occur in the public domain, and that the owner is liable only when the animal eats in the domain of the injured party. However, if the animal eats in the public domain, the owner is exempt from full payment, but not necessarily exempt from all payment. If the animal benefited, the owner pays what the animal benefited.
We do not yet know exactly what “what the animal benefited” means. We will wait for the Gemara to explain it. For the moment, we understand that when the Mishnah says that grazing damage in the public domain is exempt, it does not necessarily mean that the owner is completely exempt. The owner may still have to pay the value of the benefit.
What is an example? If the animal ate in the middle of the street, in the public domain, the owner pays what the animal benefited. But if it ate at the side of the street, the owner pays full damages. We will have to see exactly what that means.
Another example is an animal that ate from a storefront. In those days, a store would be closed with a gate or shutter. The shopkeeper would remove the shutter and place it in front of the store, and then put merchandise on it. If an animal came and ate from the merchandise on that shutter, the owner would pay what the animal benefited. But if the animal entered the store itself and ate there, that is considered the domain of the injured party, and the owner pays full damages.
The Rabbis taught: an animal is presumed to be accustomed to eating things that are normally appropriate for it. Therefore, if an animal entered the courtyard of the injured party and ate food that was appropriate for it, the owner pays full damages. The same applies if it drank an appropriate beverage. If the animal entered the courtyard of the injured party and damaged an animal or ate something that was not normally appropriate for it, the owner also pays full damages in the cases described by the Mishnah.
The Mishnah gives examples. A cow ate barley, which is generally considered food for a donkey. A donkey ate carobs, which cows normally eat. A dog licked oil, which a pig normally eats. In all these cases, the owner pays full damages, even though the food was not ordinarily eaten by that particular animal.
The Rabbis explain that these foods are nevertheless appropriate for the animals in unusual circumstances. They are not the animal’s first choice, but if there is nothing else available—if everything else is sold out—the animal will eat them. Therefore, it is still considered a normal manner of eating, at least in unusual circumstances.
The Gemara adds that even if we determine that an item is not normally eaten, once the animal actually ate it, we must examine whether it was capable of eating it in that manner. If it ate the item in a way that is still considered possible for that animal, the owner may nevertheless have to pay full damages. The Gemara gives examples such as a cat that ate dates or a donkey that ate fish. These are not normally eaten by those animals, but they can eat them, and the owner pays full damages.
The Gemara then tells a story about a donkey that ate bread. While eating the bread, it also chewed through the basket containing the bread. Rabbi Yehudah made the owner pay full damages for the bread, even though a donkey does not ordinarily eat bread, but only half damages for the basket, because an animal certainly does not normally eat baskets. Eating the basket was an abnormal act.
The Gemara challenges this ruling. Once we say that it is an ordinary manner for a donkey to eat bread, perhaps it is also an ordinary manner for it to eat the basket that contains the bread. If the donkey had eaten the bread and basket at the same time, perhaps that would be true. But in this case, it ate the bread first and then separately chewed on the basket. The Gemara therefore asks whether eating the basket can still be considered part of the ordinary act of eating.
The Gemara attempts to bring a proof from the teaching that if an animal ate bread, meat, or cooked food, the owner pays half damages. The Gemara asks: are we speaking about an animal that does not ordinarily eat these things? Perhaps we are speaking about a donkey eating meat, or a deer eating meat and bread. Alternatively, perhaps we are speaking about an animal that ordinarily eats bread, but the bread was on a table, and it is not normal for an animal to eat bread directly from a table. In that case, the owner pays half damages because the act was abnormal.
The Gemara discusses another case. A goat saw a turnip on top of a barrel. It climbed onto the barrel to reach the turnip, ate the turnip, and broke the barrel in the process. The owner was made to pay full damages for both the turnip and the barrel. The Gemara asks why the barrel should not be classified as abnormal damage, since it is not ordinarily the way of a goat to jump onto a barrel.
The answer is that since a goat ordinarily eats turnips, when the turnip is on top of a barrel, it is normal for the goat to climb or jump onto the barrel to reach it. The act of breaking the barrel is therefore considered part of the ordinary manner in which the goat reaches the turnip, and the owner pays full damages.
Rabbi Ilfa raises another question. The rule we have been discussing applies when the animal eats in the domain of the injured party. What happens when the animal is walking in the public domain and eats food that is lying on the back of another animal? The food is on an animal that belongs to the injured party, but the animal that is eating is in the public domain.
The Gemara says that the back of the other animal is treated as the courtyard of the injured party, while the animal that is eating is regarded as being in that courtyard. Therefore, the owner pays full damages. The Gemara seeks to bring a proof from a teaching about an animal that reached its head into a basket belonging to a person and ate from it. The basket is on the person’s back, so even though the person is standing in the public domain, the basket is considered the injured party’s domain.
The Gemara rejects the proof. Perhaps the case is one in which the animal jumped in order to reach the food in the basket. Since jumping is not the ordinary way to obtain food, the act is classified as abnormal damage, and abnormal damage is liable even in the public domain. The fact that the teaching says the owner is liable does not prove that the basket is treated as the injured party’s domain. It may simply be a case of abnormal damage, for which the owner pays half damages.
We then return to a case in which an animal was walking in the public domain and ate. When the animal eats while walking, the owner is exempt, because that is the ordinary manner of grazing, and grazing in the public domain is exempt. But if the animal stopped and ate, the Mishnah says that the owner is liable. Why should stopping make a difference? Even when the animal stops, eating is still the ordinary manner of grazing.
The Gemara answers that “stopped” means that the animal jumped. Since it jumped, this is not classified as grazing but as abnormal damage. Abnormal damage is liable even in the public domain. Thus, when you hear the term “horn,” do not think only of an actual horn. It is a category of damage that occurs in an abnormal manner. When an animal jumps in the public domain to obtain food, that is classified as abnormal damage, and the owner pays half damages.
Rabbi Zeira asks about an animal that is pulling food toward itself while eating. For example, a bundle of straw is in a private domain, while the animal is in the public domain and pulls the bundle toward itself as it eats. The item began in one domain, but the animal is eating it in another. Which location determines the law? Do we follow the place where the animal is eating, or the place from which the animal took the food?
Rashi presents both sides of the question. Perhaps we follow the place of eating, in which case the owner would be exempt when the animal eats in the public domain. Alternatively, perhaps we follow the place from which the food was taken, in which case the owner would be liable when the food came from the injured party’s domain. The reverse case is also possible: the animal may be eating in the injured party’s domain while pulling the food from the public domain.
The Gemara attempts to answer from a teaching about a sack of barley that is partly in a private domain and partly in the public domain. If the animal eats the part inside the private domain, the owner is liable, because the animal is eating in the injured party’s domain. If it eats the part outside, the owner is exempt, because it is eating in the public domain.
The Gemara asks whether this is a case in which the animal is pulling the food toward itself. If so, the teaching would indicate that we follow the place where the animal eats, regardless of where the food began. If the animal pulls food from the injured party’s domain into the public domain and eats it there, the owner is exempt. If it pulls food from the public domain into the injured party’s domain and eats it there, the owner is liable.
The Gemara rejects this proof. Perhaps the sack was stationary, with part of it inside and part outside. The teaching may simply mean that anything eaten inside is subject to liability, while anything eaten outside is exempt. It may not be discussing a case in which the animal moved the food from one domain to another.
Alternatively, perhaps the teaching follows the place where the food originated. If the grain originally began in the public domain, the owner is exempt even if the animal later eats it inside. If it began in the private domain, the owner is liable even if the animal later eats it outside. Therefore, the teaching does not resolve the question of an animal pulling food from one domain into another.
The Gemara then discusses a long piece of fodder that extends between the two domains. It is not a small bundle that the animal pulls entirely from one place to another. Rather, one end is inside and the other end is outside. Since the entire piece is connected, when the animal pulls one end, the other end is drawn along with it. We can therefore regard the entire piece as being in the place where the animal is eating.
That case does not resolve the original question either. The question concerns separate kernels of barley, each of which is either inside or outside. When the animal eats one kernel, the other kernels do not move with it. Unless the animal physically pulls the entire collection inward, the location of the kernels it has not yet eaten does not change. Thus, the case of the long, connected piece of fodder is different, and the question remains unresolved.
We now return to the Mishnah’s statement about an animal eating a garment. Why does the Mishnah say that the owner pays half damages when the animal eats a garment in the public domain? A garment is not food, so this is not grazing damage. It is abnormal damage, and abnormal damage is liable even in the public domain.
The Gemara answers that the statement “in what case are these matters said?” refers only to the earlier examples involving fruit and vegetables. Those examples apply when the animal eats in the injured party’s domain, or when it eats in the public domain in a manner for which the owner is exempt. But the case of a garment is different. Eating a garment is an abnormal act, and abnormal damage is liable even in the public domain.
Abaye explains the Mishnah differently. Even when the Mishnah says that an animal which ate a garment in the public domain is exempt, that does not necessarily mean that eating a garment is grazing damage. The reason may be the principle that when one person creates the abnormal situation and another animal adds to it, the second animal is exempt for the additional abnormality.
For example, imagine that a person deliberately leaves his garment in the middle of the street. In a place such as Collins Avenue, if you saw someone place a jacket in the middle of the road and leave it there, you would certainly say that he created the problem. If an animal then came and ate the garment, the owner of the animal could argue: you put the garment there. You cannot claim that my animal acted abnormally when you began the abnormal situation yourself.
The rule is therefore that when the first person creates the abnormal condition and a second animal adds another abnormal act, the second party is exempt for the additional damage. The Mishnah’s statement about eating a garment in the public domain can be understood in this way.
Resh Lakish teaches a similar principle. The Mishnah discusses two cows in the public domain. One cow was crouching or sitting, while the other was walking. The walking cow kicked the sitting cow. The owner of the walking cow is exempt, because the sitting cow created the abnormal situation by sitting in the public domain. Although the kick was an abnormal act, the first cow had already acted abnormally.
In the ordinary circumstances of the earlier days, cows walked through the streets, and it was normal for them to do so. But there was no reason for a cow to sit in the middle of the street. Since the sitting cow was the one that acted abnormally first, the walking cow’s subsequent act does not create liability in the same way.
However, the opposite case is different. If the sitting cow kicked the walking cow, the sitting cow would be liable. The walking cow was behaving normally by walking in the street, while the sitting cow was the one that created the abnormal circumstance. This demonstrates the principle that the one who begins the abnormal situation is treated differently from the one who merely adds to it.
Rabbi Yochanan disagrees with Resh Lakish regarding the extent of this principle. He says that the exemption applies only to fruit and vegetables, because it is normal for people to place such items in the public domain. But with regard to garments and utensils, the owner of the animal is liable even in the public domain.
The Gemara asks how far Rabbi Yochanan’s position extends. Would he also say that it is normal for a cow to sit in the public domain? The Gemara answers that people sometimes remove a garment or another item and leave it in the street, so the garment can be considered something that a person may place there. But regarding an animal, Rabbi Yochanan would agree that a cow sitting in the public domain is acting abnormally.
We then return to the question of what “the animal benefited” means when an animal eats in the public domain. The owner does not necessarily pay the full amount of the damage. The Mishnah says that the owner pays the value of the benefit, not the full value of what was damaged.
Rabbah explains that the calculation is based on the benefit to the animal’s stomach. It does not matter what food the animal ate. Even if it ate caviar worth seven thousand dollars, the basic benefit is that the animal’s stomach was filled. The owner could have filled the animal with ordinary food, so the owner pays only the value of that benefit, not the market value of the expensive food.
Rabbah teaches that if an animal ate barley to the point of satiety, the owner does not pay the market price of the barley at that moment. Rather, the owner pays the amount that the owner would have spent to feed the animal with cheaper food or fodder. The calculation is based on what the owner would ordinarily have fed the animal, not on the expensive food the animal happened to eat.
The Gemara discusses two teachings attributed to Rabbah. One says that the owner pays the value of ordinary fodder, while another says that the owner pays the value of barley. A teaching of Rabbi Shimon bar Yochai supports the opinion that the owner pays the value of the ordinary fodder. The teaching says that the owner pays the value of what the animal benefited from.
The teaching explains that if an animal ate first-grade produce, the owner does not pay for first-grade produce. Instead, we calculate how much a person would pay for food that would satisfy the animal. Even if the animal does not ordinarily eat barley and is usually fed cheaper fodder, the owner pays according to the cheaper food that would have satisfied it.
According to the second opinion, the calculation is based on what the animal would normally eat. If the animal ate something that is not beneficial to it—something that is bad for it—the owner may be exempt entirely, because the animal did not benefit. The payment is only for the benefit received, and there is no benefit from food that harms the animal.
We now reach a major discussion concerning a person who occupies someone else’s property without permission. We had discussed this previously, and someone who was absent asks to be brought up to date. The discussion concerns a person who moves into an empty house—a squatter—and whether he must pay rent.
The Gemara’s case is not simply a house that is normally rented, occupied by someone who would ordinarily have to pay rent. In that case, the person clearly benefited, and the owner may also have lost rental income. The case is more complicated: the owner does not normally rent out the property, while the person who moved in would normally have had to pay rent elsewhere.
In such a case, the person occupying the property benefited because he saved the rent that he would ordinarily have paid. The owner, however, did not necessarily lose rent, because the owner does not rent out the property. This creates the question of whether a person must pay when he benefited but the owner did not suffer a loss.
The person occupying the property might argue to the owner: you were not renting it out anyway, so you did not lose anything. Why should I have to pay you? The owner can respond: you normally pay rent, and by living here for free you saved that expense. You benefited, even if I did not lose rental income. That is the question being examined.
The discussion includes a sharp exchange. One person asks for the source of the principle, and the response is that he was absent when the matter was discussed previously. He asks to be taught the point. The answer is given in a humorous way: “What do you want for free? Serve me a little.” He is asked to provide some service, such as removing the speaker’s shoes, before hearing the proof.
The explanation is that in order to accept the argument, one must be willing to submit to the process of learning. A person naturally resists an idea if he was not the one who thought of it. The request to provide service is therefore presented humorously as a way of showing that one is prepared to accept the answer.
After he takes the shoes and folds them, the proof is presented. If the animal benefited, the owner must pay, regardless of whether the injured party suffered a loss. The proof seems straightforward: the focus is on whether there was a benefit, not whether there was a loss.
The response is that this is not a proof. The Mishnah under discussion involves a case in which one person benefited and the other person also suffered a loss. The food was lying in the public domain and was likely to be trampled or destroyed, so the owner had already given up on it. That is a case of benefit to one person and loss to the other, not a case in which one person benefited while the other suffered no loss.
The Gemara therefore looks for another proof. It discusses the case of a person who surrounds his property with a fence on three sides. The fence protects the surrounding property, and another person’s field lies within the enclosed area. The question is whether that other person must participate in the cost of building the fence.
At first, the person whose field is enclosed can argue that he received no benefit from the first three sides, because his property remains open on the fourth side. As long as there is no fourth wall, the fence does not fully protect him. But if the owner builds the fourth side, the other person must participate in the cost of all four sides, because he now benefits from the enclosure.
The Gemara asks whether this proves that a person who benefits must pay even when the other person did not suffer a loss. The answer is that the case is different. The presence of the other person’s field caused the owner to build the inner fence. Had the field not been there, the owner would have built only the outer fence. Since the other person’s property caused an additional expense, he must participate in that expense.
The Gemara discusses whether the quality of the fence affects the payment. If one person builds a very expensive, high-quality fence, the other person may argue that he would have built a cheaper fence. He therefore may not have to pay for the entire expensive construction. He pays only according to the level of construction that is necessary or appropriate for the benefit he received.
If the second person himself builds the fourth side, that demonstrates that he accepts and benefits from the enclosure. In that case, he must participate in the cost of the other sides as well. The Gemara continues to examine whether the case proves the general principle of payment for benefit without loss, but it concludes that the circumstances may still be different because the second person caused or completed the construction.
Another case concerns a two-story building. The lower floor belongs to one person and the upper floor belongs to another. An earthquake caused the building to collapse. The person who owns the upper floor cannot rebuild until he resolves matters with the insurance company, but he needs a place to live. He therefore rebuilds or occupies the lower level first.
The question is whether he must pay rent to the owner of the lower floor. The owner might say: you are using my property, so you must pay rent. The person using it may respond: you were not rebuilding yet, and you were not receiving rent from it. I am not taking away rental income from you.
The discussion again returns to the distinction between benefit and loss. The person living in the property clearly saved the rent he would otherwise have paid. But the owner may not have lost money, because the property was not being rented or rebuilt at that time. The question is whether the savings of the occupant are sufficient to create an obligation to pay.
The Gemara also discusses the condition of the rebuilt property. If someone builds a new house for another person, the owner may complain that the walls have already become black from cooking and use. The builder may answer that he built a new structure, but the owner received a house with wear and tear. This discussion illustrates that the parties may disagree not only about the payment itself, but also about the level of benefit and the quality of what was provided.
The central question remains: why should a person have to compensate someone who did not lose anything? The answer may be that the person who used the property saved money. But the opposing argument is that the owner is asking to be paid for a loss, and if no loss occurred, perhaps there is no basis for payment. The Gemara continues to examine this tension between the benefit of the user and the absence of a loss to the owner.
The Gemara brings another disagreement. One opinion says that the occupant is not required to pay because the owner did not lose anything. Rabbi Yochanan says that the occupant is required to pay. The matter remains a dispute, and each side has arguments in support of its position.
We will stop here and continue the subject tomorrow.