Rambam - 3 Chapters a Day

The proof-text stated above explicitly states that the owner is liable when his animals pasture “in another’s field.” This is understood as excluding the public domain.
In Chapter l, Halachah 8, the Rambam explains the rationale for this exclusion: “It is the habit of an animal to go and eat as it proceeds” - i.e., if a person leaves produce in the public domain, he should take it for granted that it will be eaten by the animals passing through.

Our translation is loose. The Hebrew b’zol literally means “as they are cheap.” Rashi (Bava Kama 20a) states that he should pay 2/3 of the market price of the fodder. The reason for this reduction is that the owner is being forced to pay against his will.
Based on his interpretation of the Rambam’s Commentary on the Mishnah (Bava Kama 2:2), the Shiltei Gibborim interpret b’zol as meaning “when they are cheap” - i.e., if they cost less than the substance eaten by the animal.

Here also we have used a loose translation, because as mentioned in the Maggid Mishnel1, the Kessef Mishneh and the Lechem Mishneh, there are several different interpretations of the Hebrew term emir.

I.e., although the chestnuts or the sesame seeds are more valuable than the simple fodder, the owner is required to pay only the market price for the fodder, for that is what he would have fed his animal.

The commentaries explain that this damage is considered a derivative of goring.

There are two dimensions to the damage: the place from which the produce was taken, and the place where it was destroyed. One is not liable for produce taken from the public domain, but one is liable for produce eaten in a private domain. Hence the doubt mentioned by the Rambam. See Shulchan Aruch (Choshen Mishpat 391 :12.

Because of the doubt, money cannot be exacted from its owner.

Since the money is now in possession of the person whose property was damaged, it can also not be exacted from him. See the notes to Chapter 1, Halachah 11.

Belonging to another person.

I.e., he does not pay the full price of the food. The rationale is, as in the previous halachah, that the food was eaten in the public domain.

The fact that it was taken away from the place from which it was originally taken is not significant, provided that it is eaten in a domain belonging to that owner.

A type of bean usually eaten by cows.

Despite the fact that this is not the animal’s ordinary food, since it ate it, the owner is liable for the damages. If, however, an animal eats food that it would never eat - e.g., a cow ate meat - the owner must pay only half the damages [Shulchan Aruch (Choshen Mishpat 391:3)].

The Tur and the Shulchan Aruch (Choshen Mishpat 391:6) interpret this as referring to raw meat alone.

I.e., even small sheep; certainly this applies with regard to large sheep.

Eating small cocks, however, is not considered a deviation. See Ketubot 41b.

The Shulchan Aruch (loc. cit.) clarifies that this refers only to living animals. Once an animal has died, however, it is natural for a dog or cat to eat from its corpse regardless of its size.

This is considered a derivative of goring. Hence the payment must be exacted from the body of the animal that caused the damage [Shulchan Aruch (Choshen Mishpat 391:4)].

For the marketplace is considered to be part of the public domain.

For this is also the ordinary practice of an animal in the public domain.

The area on the side of the marketplace is considered to be a private domain, and considered like the private property of the person whose property was damaged (Tosafot, Bava Kama 21a).

Therefore, it is considered to be an ordinary instance of an animal’s eating produce in the public domain.

And placed its forelegs on the other animal. By doing so, it is considered to have left the public domain and entered the domain of the person whose produce was damaged.

The Tur and the Ramah (Choshen Mishpat 391:11) differ and maintain that this ruling applies only when it is impossible for the animal to eat the produce without jumping on the other animal.

Since the animal entered the private domain by accident, its owner is not held responsible for the damage it caused.

Even if the owner did not know that the animal was about to give birth, and thus the damage can be considered to have come about by forces beyond his control. Since the animal’s entry into the private domain came as a result of negligence, the owner is held liable. See Chapter 2, Halachah 15.

I.e., this is also considered negligence on the owner’s part. The Tur and the Ramah (Choshen Mishpat 394:1) consider this to be accidental, and free the owner of responsibility.

The Tur and the Ramah (Choshen Mishpat 394:2) state that this law applies when the owner is aware that the animal entered the garden and departed.

The Maggid Mishneh, the Tur and the Ramah (ibid.) state that if the owner locked the animal in a stall in an ordinary manner, and the animal managed to escape and return to the garden, the owner is not liable, because he did everything necessary to prevent this from happening.

His animal has free rein within his own courtyard; it can be assumed that it will walk freely and trod on anything placed there. The potter brought his wares there at his own risk.

The pottery is considered to be a pit dug in someone’s private property, because the potter should have taken the necessary precautions to ensure that the owner’s animal would not be damaged.

For the owner knew of the pottery and should have taken care that his animal not be damaged.

For it can be assumed that his animal will eat any produce left in his courtyard.

For he created an obstacle in another person’s domain.

Since the’ owner gave the person permission to place his produce there, he must take responsibility for his animal.

Note the Tur and the Ramah (Choshen Mishpat 393:1, 398:5), who maintain that if the owner of the courtyard gave the person permission to bring his wares in, he becomes liable for them. He does not have to make an explicit statement accepting responsibility.

I.e., the owner of the courtyard should take responsibility for making sure that his animal does not overeat (Sefer Me’irat Einayim 393:4).

Sefer Me’irat Einayim 393:5 explains that this incident teaches that even when the owner of the produce does not know that the owner of the courtyard has left, under certain circumstances, he should take responsibility for the animal belonging to the owner of the courtyard.

It is common for a woman to roll up her sleeves and bare her arms when she is kneading dough. Out of concern for modesty, the owners of the house left the room (Bava Kama 48a).

These laws are basically a restatement of those of the previous halachah. The new insight stated by the Rambam comes in the following paragraph.

Note the Lechem Mishneh [and the Rambam’s Commentary on the Mishnah (Bava Kama 6:3)], which indicate that the watchman is liable and not the owner of the field.
See, however, Sefer Me’irat Einayim 393:7, which states that this is speaking about an instance in which the owner himself guards his fields.

For he has done all that could be expected of him to watch his sheep.

For he is considered to be negligent.

If, ‘however, they dug under another part of the corral, the owner is not liable, for their exit has nothing to do with his negligence (Shulchan Aruch, Choshen Mishpat 396:1).

If the walls were broken during the day, and the owner did not fix them, he is considered to be negligent.

Although the damage is considered to have been caused by forces beyond the owner’s control, since this damage was preceded by acts of negligence on the part of the owner, he is liable. See Chapter 2, Halachah 15.

The damage is considered to have been caused by forces beyond the owner’s control. Even if the owner is informed that the gate to his corral was broken at night, he is not obligated to fix it until the following day (Shulchan Aruch, loc. cit.:2).

The Ra’avad and the Tur maintain that the person who broke the fence is not liable unless he leads the animal out. The Rambam’s ruling is quoted by the Shulchan Aruch (Choshen Mishpat 396:3), while the Ramah cites the other views.
See the Maggid Mishneh, who questions the difference between this law and the previous one, which states that thieves are not liable unless they actually take the animal out of the corral.

Since the owner is considered negligent in leaving the fence shaky, he is held liable for the damage the animal caused. Needless to say, the person who broke the wall down is liable for the damage to the wall, even though it was shaky.

He is considered to have been merely an indirect cause (grama).

See Chapter 2, Halachah 19.

He is considered to be a direct cause of the damage.

I.e., enclosing it behind a gate capable of withstanding winds of unusual force.

The wording of this halachah has raised questions for there is an obvious difficulty: If the watchmen guarded the animal in an excellent manner, why is the owner liable? The Maggid Mishneh explains that the liability refers only to damage caused by the animal by goring. (See Chapter 7, Halachah 1.) The Kessef Mishneh refers to a responsum purported to have been sent by the Rambam to the Sages of Lunil, which states that there was a printing error and the text should read: “If, however, they guarded the animal in an excellent manner, as they should, and it got loose and caused damage, the watchman is not liable. If the watchman guarded the animal in an inferior manner, he is not held liable if he is an unpaid watchman. Instead, the owners are liable, even if the animal kills a human being. [The watchman] is held liable if he is a paid watchman, a renter or a borrower.”
In his Shulchan Aruch (Choshen Mishpat 396:8), Rav Yosef Karo quotes the interpretation of the Maggid Mishneh. The Sefer Me’irat Einayim 396:18 questions this, referring to Karo’s Kessef Mishneh.

Enclosing it behind a gate capable of withstanding ordinary winds.

For an unpaid watchman is not expected to take as thorough care of an animal as a paid watchman. See, however, note 13.

Such watchmen are expected to watch the animal in a thorough manner.

The Tur and the Ramah (Choshen Mishpat 396:5) state that even if the person tied the animal with a strong rope, he is liable if it breaks loose in these circumstances.

All of these three types of people are considered mentally incompetent. They are not responsible for their actions, and the owner is considered negligent for charging them with watching his animal.

The owner is considered negligent because these individuals will frequently play with the rope, and by doing so loosen the knot, enabling the animal to break free.

Although escaping in this manner is considered to be a factor beyond the owner’ s control, since he was originally negligent in entrusting the animal to a mentally incompetent person, he must bear the consequences.
The Ra’avad objects to the Rambam’s ruling. It is, however, accepted by the Shulchan Aruch (Choshen Mishpat 396:6).

For the damage is due to his negligence.

For had they not been negligent as well, the ox would not have escaped. Although the Shulchan Aruch (Choshen Mishpat 396:7) appears to favor the Rambam’s ruling, it also quotes the opinion of the Tur, which states that the person who is negligent shares the liability only when the others tell him that because of his negligence, they are withdrawing their responsibility. Otherwise, it is they who are liable, and not he.

But did not know that it had been placed in the category of a goring ox.

I.e., when an animal is sold, its status is changed with the change in ownership. (See Chapter 6, Halachah 6.) This, however, does not apply when it is merely borrowed (Kessef Mishneh).

The Ra’avad objects to the Rambam’s ruling, explaining that it applies only when the court takes possession of the ox.

For it is more difficult to guard an ox that has a tendency to gore, and the borrower did not accept this responsibility.

The Rambam’s statements imply that if the watchman makes no specific statement· with regard to whether or not he is responsible for the damages the animal causes, he is liable for the damage it causes (Maggid Mishneh). The Ra’avad understands the Rambam as making such an implication, and he objects, maintaining that the watchman should not be held liable. The Shulchan Aruch (Choshen Mishpat 396:8) follows the Maggid Mishneh’s conception. They maintain that the principle followed by the Rambam should be accepted with the exception of a goring ox.

The first watchman is considered negligent in entrusting it to a second watchman (even if an unpaid watchman entrusts it to a paid watchman). Therefore, the first watchman is liable, even in an instance when the object was destroyed by forces beyond the second watchman’s control.

The rationale is that a watchman will frequently delegate an entrusted article to these individuals. The owner should have taken this into account when he entrusted the article to the watchman at the outset.

If the animal was already classified as prone to cause damages, this law would not apply, because the obligation would rest solely on the watchman’s person. When, however, the animal is not placed in that category, since its own body is on lien for the damages, as stated in Chapter 1, Halachah 7, it is expropriated in lieu of payment.

Since the produce was growing, it would be unfair for the person whose animal caused the damages to be required to pay for it as if it were harvested fruit that was damaged. Instead, one considers the damaged crops as a part in a larger whole, thus reducing the amount of the damages. A compromise is accepted that takes in consideration the positions of both the owner of the land and the owner of the animal.
The produce is not evaluated individually, for this would inflate the amount of damages paid. Nor is its share evaluated, in comparison with the entire field, for then the amount of damages would be unfairly low. Instead, it is evaluated when compared with an area sixty times its size as explained.
A se’ah is six kabbin. A kab is 1.376 kilograms according to Shiurei Torah. Thus a se’ah is 8.256 kilograms. The area where a se’ah of seeds would be sown is 50·cubits by 50 cubits.

The Ra’avad and Rabbenu Asher take issue with the Rambam on this point, explaining that the owner of the field generally does not have the right to slaughter an animal belonging to another person. Bava Kama 23b does speak of the owner of a field slaughtering goats belonging to someone else, but this was a special instance. He knew that the goats were being taken to the market to be slaughtered.
The Maggid Mishneh explains that the Rambam had a different interpretation of that passage. The Shulchan Aruch (Choshen Mishpat 397:1-2) follows the Ra’avad’s interpretation.

The Tur and the Shulchan Aruch (op. cit.) interpret this to be implying that if the owner of the animal says, “Why come to me with a complaint? Let the owner of the field build a strong fence around his field to prevent animals from entering,” his claim is not accepted. He is required to take responsibility for his animal.

This minimizes to the greatest degree possible the loss that the owner of the animal would suffer.

E. g., sheep and goats.

E. g., deer.

For they will harm the produce. The Maggid Mishneh explains that this law (and those that follow) were instituted as part of the provisions of yishuv Eretz Yisrael, the settlement of our Holy Land. (See also Hilchot Edut 10:4, which states that a shepherd of sheep or goats is not acceptable as a witness, because it is likely that he will pasture his flocks in fields belonging to others. See also Hilchot Bechorot 3:6.)
It is, however, permissible to raise large animals like cows in Eretz Yisrael.

Where the damage is not significant.

See Hilchot Terumot 1 :4,9, which defines the status of Syria as less than that of Eretz Yisrael, but greater than that of the diaspora as a whole.

I.e., the owner of the forest has no right to protest.

For it could damage the forest.

If they are dry and severed from the ground, they are fit to serve as firewood for the owners of the field.

Significantly, the Tur (Choshen Mishpat 274) does not mention this dimension.

This is beneficial for the owner of the field, because the grass detracts from the field’s growth potential.

For grass and fenugrec make excellent fodder. For that reason, if the fenugrec is being grown for human consumption, one may pick the grass. Bava Kama 81a states that if the fenugrec is growing in rows, one may assume that it has been planted for human consumption.

This is allowed to enhance the settlement of Eretz Yisrael, for it will enable more trees to be grown there.

When an olive tree has become old, and it no longer produces a significant amount of fruit, all of its branches are cut off except two, so that its growth potential will become concentrated. Cutting off one of these remaining branches would damage the future of the tree.

One that is less than a year old.

For it is the branches that are exposed to the sun that provide a tree with its nurture.

Without payment.

I.e., the tribe of Naftali.

The Tur (loc. cit.) and others differ with the Rambam and maintain that even the owner of a lake may not fish with nets large enough to prevent the passage of a boat.
Others interpret large nets as referring to nets that will catch large quantities of fish. Fishing privileges of that nature are not granted to another tribe.

A type of spice that will be damaged by the unpleasant odor of feces.

We have used a loose translation. The Hebrew term meit mitzvah, literally “a corpse that we are commanded [to bury],” refers to “a Jewish corpse lying on the road, that has on one-to bury it” (Hilchot Eivel 3:8).

Our translation is taken from Rashi’s commentary on Bava Kama 81b. In these instances, the presence of a grave will be likely to impart impurity to a large number of people.

The commentaries question why the Rambam requires a corpse found in the road to be taken to the cemetery. In Hilchot Tum’at Meit 8:7, he states that in such an instance, a corpse may be buried in a nearby field. This indeed is the ruling of the Shulchan Aruch (Yoreh De’ah 364:3).

I.e., from the seventeenth of Cheshvan on. Until then, passersby will not do any damage to the fields. Once the rains descend, however, the seeds begin to take root, and treading on them would damage them.

The Tur (Choshen Mishpat 274) quotes this ruling. The Shulchan Aruch, however, does not mention these laws. The Ramah (Choshen Mishpat 274:1) quotes the Tur’s view and questions why the Shulchan Aruch ignored these laws. He explains that it is possible that the Shulchan Aruch also maintains that these laws are applicable in the diaspora, but failed to mention them because it was uncommon for Jews to own land at that time.
The concept that these laws apply in the diaspora is somewhat difficult according to the Maggid Mishneh (and Rashi), who explain that the motivating rationale for these laws is the concern for yishuv Eretz Yisrael, the settlement of our Holy Land. Others explain that these provisions are intended to avoid strife and friction.

For this will cause damage to the land there.

In the time of the Temple, these animals were offered as sacrifices. Even after the Temple’s destruction, it is still a mitzvah to celebrate on the festivals by eating meat (Hilchot Sh’vitat Yom Tov 6:18).

For these feasts are also considered to be se’udot mitzvah (feasts associated with the performance of a mitzvah).

From this, we can assume that these laws would apply in any community where most of the lands are owned by Jews.

In his Commentary on the Mishnah (Bava Kama 7:7), the Rambam states that this law applies to all animals that are forbidden to be eaten. (See also The Guide for the Perplexed, Volume III, Chapter 48, which speaks of the unfavorable tendencies brought about by eating pork.)
From the conclusion of this halachah, however, it appears that the Rambam is focusing on a different rationale: the material and not the spiritual damage that pigs can cause.

For they will serve as watchdogs and raise a clamor in the event of attack.

Bava Kama 82b, 83a.

If he were required to sell his entire herd immediately, it is possible that he would have to reduce the price of the animals. Our Sages feared that the possibility of this loss would intimidate the shepherd and prevent him from repenting.