Bava Kamma 23b:16בבא קמא כ״ג ב:טז
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23bכ״ג ב

כחצר הניזק דמי דאי כחצר המזיק דמי לימא ליה מאי בעי רפתך בפומא דכלבאי

is like the courtyard of the injured party, i.e., it is not a separate domain from the place in which the animal is eating. As if the mouth of the animal were to be considered like the courtyard of the one responsible for the damage, let the owner of the dog say to the injured party: What is your bread doing in my dog’s mouth? The dog’s mouth is my domain, and I am not liable for damage classified as Eating done to your property in my domain.

דאיבעיא להו פי פרה כחצר הניזק דמי או כחצר המזיק דמי

The Gemara notes: The need for this type of inference arises from the fact that a dilemma was raised before the Sages: Is the mouth of a cow like the courtyard of the injured party, or is it like the courtyard of the one responsible for the damage, i.e., the owner of the cow?

ואי אמרת כחצר המזיק דמי שן דחייב רחמנא היכי משכחת לה

The Gemara asks: But if you say that the mouth of the cow is like the courtyard of the one responsible for the damage, how can you find a case of damage classified as Eating for which the Merciful One holds the owner of the animal liable? The halakha is that one must pay for damage classified as Eating only if it occurred on the property of the injured party. If the mouth of an animal is deemed the domain of the animal’s owner, damage caused by an animal eating would always take place in the domain of the animal’s owner and he would therefore be exempt from liability in every case.

אמר רב מרי בריה דרב כהנא כגון שנתחככה בכותל להנאתה וטנפה פירות להנאתה

Rav Mari, son of Rav Kahana, said: It is possible to describe a case of Eating that would render the animal’s owner liable according to the one who holds that the mouth of a cow is like the domain of its owner, for example, if the cow rubbed up against a wall for its pleasure and broke it, or if the cow soiled produce for its own pleasure. Any action in which an animal engages for its own pleasure is classified as Eating, and if the animal causes damage thereby within the domain belonging to the injured party, its owner will be held liable since nothing has entered the mouth of the animal.

מתקיף לה מר זוטרא והא בעינא כאשר יבער הגלל עד תומו וליכא רבינא אמר דשף צלמי רב אשי אמר דפסעי פסועי

Mar Zutra objects to these examples of Eating: But in order to create liability under the halakhot of Eating, I require fulfillment of the verse: “As consumes the tooth until it be all gone” (I Kings 14:10), meaning that the damaged item must be completely destroyed or consumed, and here that is not the case, as the stones of the broken wall and the soiled produce have not been destroyed. To answer Mar Zutra’s question, Ravina said: It is possible for a cow to cause complete destruction by rubbing against a wall, e.g., a cow that completely erases any decorative images that were adorning the wall. Rav Ashi said: It is possible for cow to cause complete destruction by soiling produce, e.g., a cow that trods on the produce and crushes it, thereby totally eradicating it. Consequently, the initial question about the status of the cow’s mouth remains.

ת"ש שיסה בו את הכלב שיסה בו את הנחש פטור מאן פטור משסה פטור וחייב בעל כלב ואי אמרת כחצר המזיק דמי לימא ליה מאי בעי ידך בפומיה דכלבאי

The Gemara suggests: Come and hear a resolution from a baraita: If he incited a dog against another person, or if he incited a snake against another person, he is exempt (Sanhedrin 66b). The Gemara clarifies: Who is exempt? The one who incited the dog is exempt, but the owner of the dog is liable. And if you say that the mouth of the animal is like the courtyard of the one liable for the damage, let the owner of the dog say to the injured party: What does your hand want, i.e., what is it doing, in my dog’s mouth, which is my domain?

אימא פטור אף משסה ואיבעית אימא דאפקיה לניביה וסרטיה

The Gemara answers: The mishna could be understood a different way. Say that even the one who incited the dog is exempt, as the dog is not his property, but the dog owner is also exempt because his dog’s mouth has a legal status similar to that of the dog owner’s courtyard. And if you wish, say instead that the case under discussion is one where the dog extended his canine teeth and scratched the victim, but the victim’s hand was not inside his mouth, and therefore this incident cannot be treated as if it took place in the domain of the owner of the dog.

ת"ש השיך בו את הנחש רבי יהודה מחייב וחכמים פוטרים

The Gemara suggests: Come and hear a solution based on the continuation of the above mishna: If one caused the snake to bite a person by bringing the fangs of the snake to the victim’s body, and the snake killed him, Rabbi Yehuda deems the one who instigated the attack liable to receive the death penalty and the Rabbis exempt him.

ואמר רב אחא בר יעקב כשתימצי לומר לדברי ר' יהודה ארס נחש בין שיניו הוא עומד לפיכך מכיש בסייף ונחש פטור לדברי חכמים ארס נחש מעצמו מקיא לפיכך נחש בסקילה ומכיש פטור

And Rav Aḥa bar Ya’akov says in explanation of the dispute: When you analyze the matter you will find that according to the statement of Rabbi Yehuda, the venom of a snake is deemed to be constantly present between its fangs, and therefore when the snake is made to strike the victim it is not actively engaged in any action. Consequently, the person handling the snake is liable, similar to one who strikes a victim with a sword, while the snake itself is exempt as it has not done anything. And according to according to the statement of the Rabbis, the venom of a snake is not present between its fangs but rather the snake must secrete it of its own volition. Consequently, the snake receives the penalty of stoning like any animal that kills a person, while the one who instigated the attack and striking with it is exempt.

ואי אמרת פי פרה כחצר המזיק דמי לימא ליה מאי בעי ידך בפומא דחיוואי לענין קטלא לא אמרינן

And if you say that the mouth of the cow is like the courtyard of the one responsible for the damage, let the owner of the snake metaphorically say to the injured party: What is your hand doing in my snake’s mouth? The Gemara answers: We do not say this principle with regard to matters relating to the death penalty; therefore, one who kills another is always liable, regardless of whether it occurred within the domain of the killer or within the domain of the victim.

ומנא תימרא דתניא הנכנס לחצר בעל הבית שלא ברשות ונגחו שורו של בעל הבית ומת השור בסקילה ובעלים פטורים מן הכופר

And from where do you say this? As it is taught in a baraita (Tosefta 5:13): With regard to one who enters the courtyard of a property owner without his permission, and the property owner’s ox gores the intruder and he dies, the ox receives the penalty of stoning while the owner is exempt from having to pay ransom.

בעלים פטורין מן הכופר מ"ט דאמר ליה ברשותי מאי בעית שורו נמי לימא ליה מאי בעית ברשותי אלא לענין קטלא לא אמרינן

The Gemara clarifies: What is the reason that the owner is exempt from paying ransom? He is exempt because he can metaphorically say to the victim: What do you want in my domain, i.e., why were you there without permission? Since he entered the premises without authorization, he bears responsibility for his own fate. But if that is so, the same applies to his ox as well, and let the owner of the ox say to the victim: What do you want in my domain? Rather, it must be that we do not say that this principle applies with regard to matters relating to the death penalty. Consequently, these cases do not prove that the mouth of the cow is like the courtyard of the victim within the scope of the halakhot of damages.

הנהו עיזי דבי תרבו דהוו מפסדי ליה לרב יוסף א"ל לאביי זיל אימא להו למרייהו דליצנעינהו אמר ליה אמאי איזיל דאי אזילנא אמרי לי לגדור מר גדירא בארעיה

§ The Gemara relates: There were these goats, belonging to the Tarbu family, that would frequently damage Rav Yosef’s property. Rav Yosef said to Abaye: Go and tell their owners that they must keep their goats enclosed within their own property. Abaye said to Rav Yosef in response: Why should I go? If I go and deliver this message, they will say to me: Let the Master put a fence up around his property so that the goats will not be able to get in there.

ואי גדר שן דחייב רחמנא היכי משכחת לה כשחתרה אי נמי דנפיל גודא בליליא

The Gemara questions this claim: And if an individual did put up a fence to safeguard his property from the Eating of other animals because he was required to do so, and had he not done so the owners of those animals would not be liable to pay for the damage caused by their animals, how can you find damage classified as Eating for which the Merciful One holds the owner of the animal liable? As, if it is the responsibility of the injured party to fence in his property, animals will not be able to get inside. The Gemara answers: A case in which the Torah holds the owner of the animal liable can be explained as one where the animal burrowed under the fence. Alternatively, it could be explained as a case where the separating fence collapsed in middle of the night and the owner of the fence did not have the opportunity to repair it before the animals caused damage.

מכריז רב יוסף ואיתימא רבה דסלקין לעילא ודנחתין לתחתאה הני עיזי דשוקא דמפסדי מתרינן במרייהו תרי ותלתא זמנין אי ציית ציית ואי לא אמרין ליה תיב אמסחתא וקבל זוזך:

The Gemara comments: Rav Yosef, and some say it was Rabba, would announce: Those that ascend to Eretz Yisrael from Babylonia, bringing with them the rulings of the Babylonian Sages, as well as those that descend to Babylonia from Eretz Yisrael, bringing the rulings of the sages of Eretz Yisrael with them, all agree to the following halakha: With regard to these goats that loiter in the market until they are slaughtered and in the meantime cause damage to others, we warn their owner two or three times. If the owner of the goats heeds the warning and safeguards his animals from damaging others, then he heeds it and no further action is necessary. But if not, we say to him: Go, sit next to the butcher shop and take your money, meaning we instruct him to slaughter his goats immediately. Since he in any event intends to slaughter them, the court can force him to do so immediately. Otherwise, he cannot be forced to slaughter them as preventive measure.

מתני׳ איזהו תם ואיזו מועד מועד כל שהעידו בו שלשה ימים ותם משיחזור בו שלשה ימים דברי ר' יהודה רבי מאיר אומר מועד שהעידו בו שלשה פעמים ותם כל שיהו התינוקות ממשמשין בו ואינו נוגח:

MISHNA: Which type of ox is deemed innocuous and which is deemed forewarned? An ox is deemed forewarned in any case where witnesses testified about it that it gored on three different days. And it reverts back to its previous innocuous status from when it reverses its behavior and refrains from goring for three consecutive days; this is the statement of Rabbi Yehuda. Rabbi Meir says: It is deemed forewarned in any case where witnesses testified that it gored three times, regardless of the number of days on which this behavior occurred. And it reverts back to its previous innocuous status in any case where children pet it and play with it and it does not gore them.

גמ׳ מאי טעמא דר' יהודה אמר אביי (שמות כא, לו) תמול חד מתמול תרי שלשום תלתא ולא ישמרנו בעליו אתאן לנגיחה רביעית

GEMARA: The Gemara asks: What is the reason for the opinion of Rabbi Yehuda that an ox is deemed forewarned only if it gored on three separate days? Abaye said: It states in the verse: “Or if it is known that the ox was a goring ox from yesterday and the day before yesterday, and its owner has not secured it” (Exodus 21:36). This leads to the following inference: “Yesterday” indicates one day, “from yesterday” indicates two days, “the day before yesterday” indicates three days, “and its owner has not secured it”; here we arrive at a fourth incident of goring, for which the owner pays the full amount of damages.

רבא אמר תמול מתמול חד שלשום תרי ולא ישמרנו האידנא חייב

Rava said: “Yesterday” and “from yesterday” are not to be expounded separately. Rather, the inference from this phrase is that “from yesterday” indicates one day, “the day before yesterday” indicates two days, “and its owner has not secured it” indicates now, the third incident of goring, as it is liable as a forewarned animal for the third goring.

ור"מ מ"ט דתניא א"ר מאיר

The Gemara asks: And what is the reason for the opinion of Rabbi Meir, who does not determine the forewarned status of an ox by the number of days on which the animal gored but simply by the number of times? As it is taught in a baraita that Rabbi Meir said: