Bava Kamma 21b (כא:) — the Talmud in English

Rather,

in general, a pit in its owner's domain renders him exempt

in accordance with the opinion of Rabbi Yishmael, and the produce does not have the status of a damaging agent,

but here it is different:

if the animal ate from it, she is not liable, because

the owner of the animal said

to the owner of the produce:

You have no authority to bring your produce close to the public domain.

Although the place is your domain, you have no right to place your produce adjacent to the public domain,

and thereby make my ox liable,

since this caused me to incur liability for damages.

And

Shmuel said: In general, one is liable for a pit in his own domain

in accordance with the opinion of Rabbi Akiva. Nevertheless, the produce does not have the status of a pit, and the reason is:

Granted, with regard to a pit

in its owner's domain,

it can be said

that he is liable, because an ox walking in the public domain

is not capable of taking heed;

it has no awareness with which to take precautions, and the Torah imposed liability on the owner of the pit for damage caused to the ox, which has no awareness with which to take precautions.

But with regard to produce

by which the ox was harmed,

is it possible to say, “It is not capable of taking heed”!?

Can one say that it did not pay attention and take care?

It can see it!

It is plainly visible. And since he placed the produce in his own domain, he is not liable for such an obstacle. The Gemara analyzes:

Let us say: The case of an animal that turns its head is the subject of a dispute between tanna’im.

For it appears from the beraita before us that the law of an animal that turns its head depends on a dispute between tanna’im:

As it was taught in a beraita: If it ate from the roadway, it pays the amount from which it benefited,

but if it ate

from the sides of the roadway, it pays the full amount of the damage, the words of Rabbi Meir and Rabbi Yehuda.

Rabbi Yosei and Rabbi Eliezer say: It is not the manner

of an animal that is walking

to eat, but rather to walk,

and therefore, if it ate from the sides of the roadway, it is liable.

And we challenge this: If so,

Rabbi Yosei is identical to the first tanna,

as both hold that it is liable for eating from the sides of the roadway.

Rather,

by necessity,

the case of an animal that turns its head is the difference between them.

They disagree in a case where it ate the produce while it was on the roadway, turning its head and eating from the sides of the roadway.

The first tanna holds that even when it turns its head, it pays

only

the amount from which it benefited.

And what the first tanna said—that if it ate from the sides of the roadway it pays the full amount of the damage—is referring to a case where the animal itself is standing at the side of the roadway.

And Rabbi Yosei holds

that even when it turns its head, it

pays the full amount of the damage,

since this is not its usual manner.

And we reject this:

No.

It is possible to say that they do not disagree about this. Rather,

everyone

holds that an animal

that turns its head

and eats has the law

either according to Rav,

who says that it is liable,

or according to Shmuel,

who says that it is exempt.

And here,

Rabbi Meir and Rabbi Yosei,

they disagree with regard to “and it consumed in another's field”

over the matter of the derivation,

namely, regarding what exclusion is required from the verse “and it consumed in another's field,” and whether it comes to exclude eating by Shen in the public domain.

One master holds

that Rabbi Meir and Rabbi Yosei maintain that

“and it consumed in another's field”

excludes the following:

but not in the public domain!

Therefore, if it ate from the roadway, it pays only the amount from which it benefited.

And one master holds

that Rabbi Yosei and Rabbi Eliezer maintain that

“and it consumed in another's field”

excludes the following:

but not in the domain of the injured party!

If he brought his produce into a courtyard without the owner's permission, and it was damaged by the owner's animal, the owner is exempt.

And we challenge this:

In the domain of the injured party,

what need is there for an exclusion?

Let the one who caused the damage say

to the owner of the produce:

“What is your produce doing in my domain?!”

Since you had no permission to bring your produce into my domain, responsibility for the damage to it is yours.

And we conclude:

Rather,

their dispute is only concerning the matter

of Ilfa,

who said above [20a] that if an animal extended its neck and ate from atop another animal, it is liable.

And

likewise

with regard to

the matter

of Rabbi Oshaya,

who said that if an animal jumped and ate from a basket, it is liable;

that is the difference between them.

And they disagreed about this: Rabbi Meir holds that if it ate from the roadway it is always exempt, even if it ate from atop another animal or by jumping; whereas Rabbi Yosei holds that it is not the animal's usual manner to eat from atop another animal or by jumping, and therefore it is liable.

Mishna:

The following Mishna explains the laws of Shen and Regel in several circumstances, as well as the laws of fragments produced by an object set in motion by fire.

1.

A dog and a kid that jumped from the roof

into the courtyard of the injured party

and broke

there

the vessels pay full damages,

by the law of Regel,

because they are accustomed

to jumping in this manner, and this is not an unusual act. Since it is their usual manner to do so, they are liable for the damage they cause under the law of Regel, as it too normally walks and breaks vessels while walking.

2.

A dog that took a cake,

a cake lying on top of coals and stuck to them,

and walked

with the coal attached to the cake

to a stack.

If the dog ate

the

cake and ignited

the

stack [in the Gemara they disagree about how it ignited the stack].

For the cake it pays full damages,

as the law of Shen.

And for the stack it pays

only

half-damages.

The Gemara disputes the explanation of the reason.

Gemara:

The Gemara infers:

The reason

that the dog and the kid are liable for breaking the vessels is

that they jumped,

as jumping is their usual manner.

But

if they

fell

from the roof, they are

exempt.

Apparently, he holds

that the tanna of our Mishna maintains that damage whose

beginning was negligence

—he allowed them to wander on the roof and did not guard them so that they would not jump into another person's courtyard, despite knowing that jumping was their usual manner [and then they would not have fallen]—

and whose end was due to unavoidable circumstance,

as he was prevented from avoiding their fall, since it is not their usual manner to fall, is

exempt.

It was taught likewise in a beraita: A dog and a kid that jumped from the roof and broke the vessels pay full damages.

If they fell, they are exempt.

And since the amora’im disagree about this question, the Gemara analyzes:

This works well according to the one who says: “If its beginning was negligence and its end was due to unavoidable circumstance, he is exempt.”

But according to the one who says that he is liable, what can be said?

How can he interpret the Mishna? After all, he does not dispute an anonymous Mishna, in which no dissenting tanna is identified. The Gemara establishes our Mishna in accordance with that opinion:

For example, the vessels were close to the wall.

The vessels were very close to the wall and could not be damaged by the jump, which carries the animal away from the wall. It follows that he was not negligent at all in guarding them, and therefore he is exempt when they fell and caused damage.

For when they jumped in their usual jump, they would not have fallen upon them, and there is not even a case of “its beginning was negligence.”

Rav Zevid said in the name of Rava: There are times when even if they fell, he is liable.

You can find this case

where this liability applies

with a wall

that formed the roof's parapet and was

unstable.

The unstable wall could not prevent them from falling, and it follows that he was negligent in guarding them against falling. Therefore, he is liable even according to the one who says that if its beginning was negligence and its end was due to unavoidable circumstance he is exempt, and even if they fell on their own, without the wall falling.

And we inquire about this:

What is it?

What is the reason for his liability? Is it because

he should have taken into consideration

that there was a concern that it was possible

that the roof tiles would fall,

that the tiles of the unstable wall might fall?

And if so, since

ultimately the tiles did not fall, but they fell

on their own, and there is no negligence with regard to such a fall, then even in this case

its beginning was negligence and its end was due to unavoidable circumstance!

And the one who exempts should exempt him here as well!?

And we answer:

It is necessary

to establish the case

with a narrow wall.

The roof's parapet was narrow, in a manner that caused them to jump or slip from it, and placing them at the edge of the roof constitutes negligence with regard to their falling.

The Sages taught: A dog and a kid that leaped from below upward

and broke vessels above acted in an unusual manner, and

are exempt

from full damages, but are liable for half-damages under the law of Keren..

And only if they jumped

from above downward are they liable,

as this is their usual manner.

A person and a rooster that leaped, whether from above downward or from below upward, are liable.

The rooster is liable since this is its usual manner, and it is considered forewarned with regard to jumping rather than an innocuous animal. A person, however, is liable even if this is not his usual manner, because a person who causes damage is always liable for damages as one who is forewarned, and there is no possibility of an innocuous status with regard to a person. The Gemara raises a difficulty from a beraita in which the law stated with regard to a kid and a dog is different: