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Rambam - 1 Chapter a Day

Hilchot Nizkei Mamon - Chapter Two

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Hilchot Nizkei Mamon - Chapter Two

1

[The following laws apply with regard to] the major categories of damages and their derivatives. [If a person's property is considered] mu'ad with regard to the major category, it is considered mu'ad with regard to its derivatives. [If it is considered] tam with regard to the major category, the same law applies with regard to its derivatives. From the outset, [a person's property is considered] to be mu'ad with regard to all the major categories of damage and their derivatives, with the exception of goring and its derivatives. In that instance, [an animal is considered] tam until it has been deemed prone [to goring],1 as explained.2

א

אֶחָד אֲבוֹת נְזִיקִין וְאֶחָד הַתּוֹלָדוֹת אִם הָיָה הָאָב מוּעָד תּוֹלְדוֹתָיו מוּעָדוֹת וְאִם הָיָה תָּם תּוֹלְדוֹתָיו כָּמוֹהוּ. וְכָל אֲבוֹת נְזִיקִין וְכָל תּוֹלְדוֹתֵיהֶן מוּעָדִין הֵן מִתְּחִלָּתָן חוּץ מִקֶּרֶן וְתוֹלְדוֹתָיו שֶׁהֵן תָּמִים בַּתְּחִלָּה עַד שֶׁיּוּעֲדוּ כְּמוֹ שֶׁבֵּאַרְנוּ:

2

All the derivatives of a category of damages are governed by the same laws as the major category, with the exception of stones that are propelled by an animal while walking. This activity is considered a derivative of the category of treading,3 and one is therefore not liable for damage caused in the public domain. Nevertheless, if such stones cause damage in a person's private domain, [the owner of the animal] must pay [for the damages] from his most choice property,4 as he must pay for damages caused by treading, the major category. And yet, he is required to pay only half the amount of the damages.5

ב

כָּל תּוֹלָדָה כְּאָב שֶׁלָּהּ חוּץ מִצְּרוֹרוֹת הַמְנַתְּזִין מִתַּחַת רַגְלֵי הַבְּהֵמָה בִּשְׁעַת הִלּוּכָהּ. שֶׁאַף עַל פִּי שֶׁתּוֹלֶדֶת הָרֶגֶל הֵם וּפָטוּר עֲלֵיהֶן בִּרְשׁוּת הָרַבִּים כְּרֶגֶל וְאִם הִזִּיקוּ בִּרְשׁוּת הַנִּזָּק מְשַׁלֵּם מִן הַיָּפֶה שֶׁבִּנְכָסָיו כְּרֶגֶל שֶׁהוּא אָב אַף עַל פִּי כֵן אֵינוֹ מְשַׁלֵּם אֶלָּא חֲצִי נֵזֶק:

3

What is implied? When an animal enters a courtyard belonging to another person and proceeds to walk, and in doing so propels stones from under its feet that break utensils, [the owner of the animal] must pay half the amount of the damage from his most choice property. This matter is a law communicated by the Oral Tradition.6

ג

כֵּיצַד. בְּהֵמָה שֶׁנִּכְנְסָה לַחֲצַר הַנִּזָּק וְהָלְכָה וְהָיוּ צְרוֹרוֹת מְנַתְּזִין מִתַּחַת רַגְלֶיהָ וְשָׁבְרוּ אֶת הַכֵּלִים מְשַׁלֵּם חֲצִי נֵזֶק מִן הַיָּפֶה שֶׁבִּנְכָסָיו. וְדָבָר זֶה הֲלָכָה מִפִּי הַקַּבָּלָה הִיא:

4

Similarly, if [an animal] was proceeding in the public domain7 and stones were propelled from under its feet into a domain belonging to someone else, and they broke utensils there, [the owner of the animal] must pay half the damages. If [an animal] treads on a utensil in a domain belonging to someone else and breaks it, and shards from the broken utensil fall on another utensil and break it, [the owner of the animal] must pay the entire [damages for the destruction of] the first utensil, and half [the damages for the destruction of] the second utensil.8

ד

וְכֵן אִם הָיְתָה מְהַלֶּכֶת בִּרְשׁוּת הָרַבִּים וְנִתְּזוּ צְרוֹרוֹת מִתַּחַת רַגְלֶיהָ לִרְשׁוּת הַנִּזָּק וְשָׁבְרוּ אֶת הַכֵּלִים מְשַׁלֵּם חֲצִי נֵזֶק. דָּרְסָה עַל הַכְּלִי בִּרְשׁוּת הַנִּזָּק וּשְׁבָרַתּוּ וְנָפַל עַל כְּלִי אַחֵר וּשְׁבָרוֹ. עַל הָרִאשׁוֹן מְשַׁלֵּם נֵזֶק שָׁלֵם וְעַל הָאַחֲרוֹן מְשַׁלֵּם חֲצִי נֵזֶק:

5

If an animal was walking in the public domain and it kicked9 [the ground] and propelled stones that caused damage in the public domain, [the owner] is not liable. If the person whose property was damaged seized a fourth [of the cost] of the damages, it should not be expropriated from him.10 [The rationale is that] there is a doubt regarding the matter: perhaps this is considered a deviation from the ordinary pattern and it is not a derivative of treading, for [the animal] kicked.11

ה

הָיְתָה מְהַלֶּכֶת בִּרְשׁוּת הָרַבִּים וּבָעֲטָה וְהִתִּיזָה צְרוֹרוֹת וְהִזִּיקוּ בִּרְשׁוּת הָרַבִּים פָּטוּר. וְאִם תָּפַשׂ הַנִּזָּק רְבִיעַ נֵזֶק אֵין מוֹצִיאִין מִיָּדוֹ. שֶׁהַדָּבָר סָפֵק הוּא שֶׁמָּא שִׁנּוּי הוּא וְאֵינוֹ תּוֹלֶדֶת רֶגֶל שֶׁהֲרֵי בָּעֲטָה:

6

If the animal kicked the earth in the domain belonging to another person and stones were propelled because of its kick and caused damages, [the owner] is liable to pay a fourth of the damages, for this is a deviation from the ordinary manner of propelling stones. If the person whose property was damaged seized half [of the cost] of the damages, it should not be expropriated from him.12 Even if an animal was walking in a place where it would be impossible for it not to propel stones, and it kicked [the earth] and propelled stones, [the owner] is liable to pay a fourth of the damages.13 If the person whose property was damaged seized half [of the cost] of the damages, it should not be expropriated from him.

ו

בָּעֲטָה בָּאָרֶץ בִּרְשׁוּת הַנִּזָּק וְהִתִּיזָה צְרוֹרוֹת מֵחֲמַת הַבְּעִיטָה וְהִזִּיקוּ שָׁם חַיָּב לְשַׁלֵּם רְבִיעַ נֵזֶק שֶׁזֶּה שִׁנּוּי הוּא בְּהַתָּזַת הַצְּרוֹרוֹת. וְאִם תָּפַשׂ הַנִּזָּק חֲצִי נֵזֶק אֵין מוֹצִיאִין מִיָּדוֹ. וַאֲפִלּוּ הָיְתָה מְהַלֶּכֶת בְּמָקוֹם שֶׁאִי אֶפְשָׁר לָהּ שֶׁלֹּא תַּתִּיז וּבָעֲטָה וְהִתִּיזָה מְשַׁלֵּם רְבִיעַ נֵזֶק. וְאִם תָּפַשׂ הַנִּזָּק חֲצִי נֵזֶק אֵין מוֹצִיאִין מִיָּדוֹ:

7

Whenever a person must pay full damages, the payment is considered to be a monetary obligation that he is liable to pay, as if he had borrowed [money] from his colleague. When, by contrast, a person must pay half the damages, the monetary obligation is considered a fine, with the exception of the half damages liable from stones,14 which is a halachah [transmitted by the Oral Tradition], as we have explained.15

ז

כָּל הַמְשַׁלֵּם נֵזֶק שָׁלֵם הֲרֵי הַתַּשְׁלוּמִין מָמוֹן שֶׁהוּא חַיָּב לְשַׁלְּמוֹ כְּמִי שֶׁלָּוָה מֵחֲבֵרוֹ שֶׁהוּא חַיָּב לְשַׁלֵּם. וְכָל הַמְשַׁלֵּם חֲצִי נֵזֶק הֲרֵי הַתַּשְׁלוּמִין קְנָס חוּץ מֵחֲצִי נֵזֶק שֶׁל צְרוֹרוֹת שֶׁהוּא הֲלָכָה כְּמוֹ שֶׁבֵּאַרְנוּ:

8

This is the operating principle: Whenever a person pays for the damage that he caused, it is considered a monetary obligation. Whenever he pays more or less - e.g., the double payment (for theft) or half the amount of damages - the amount that is greater or less than the principal is considered to be a fine. A fine is required only when one is obligated through the testimony of witnesses. When a person admits that he is liable for a fine, he is absolved of the obligation.16

ח

זֶה הַכְּלָל כָּל הַמְשַׁלֵּם מַה שֶּׁהִזִּיק הֲרֵי זֶה מָמוֹן וְכָל הַמְשַׁלֵּם יֶתֶר אוֹ פָּחוֹת כְּגוֹן תַּשְׁלוּמֵי כֶּפֶל אוֹ חֲצִי נֵזֶק הֲרֵי הַיָּתֵר עַל הַקֶּרֶן אוֹ הַפָּחוֹת קְנָס. וְאֵין חַיָּבִין קְנָס אֶלָּא עַל פִּי עֵדִים. אֲבָל הַמּוֹדֶה בְּכָל קְנָס מִן הַקְּנָסוֹת פָּטוּר:

9

[The following rules apply when] a rooster sticks its head inside a glass container, crows while doing so and breaks it [as a result of the sound]. If there were spices or the like inside [the container, and the rooster] stuck its head in to eat them, [the owner] must pay full damages for the spices17 and half the damages for the container, as one pays half damages for stones [that are propelled].18 [The rationale is that this is the animal's] ordinary pattern.19 If, however, the container is empty, this is a deviation from the norm, and [the owner] is liable to pay half the damages, as in the case with other fines.20

ט

תַּרְנְגוֹל שֶׁהוֹשִׁיט רֹאשׁוֹ לַאֲוִיר כְּלִי זְכוּכִית וְתָקַע בּוֹ וּשְׁבָרוֹ. אִם הָיוּ בְּתוֹכוֹ תַּבְלִין וְכַיּוֹצֵא בָּהֶן שֶׁהוֹשִׁיט רֹאשׁוֹ כְּדֵי לְאָכְלָן. עַל הַתַּבְלִין מְשַׁלֵּם נֵזֶק שָׁלֵם וְעַל הַכְּלִי מְשַׁלֵּם חֲצִי נֵזֶק כַּחֲצִי נֵזֶק צְרוֹרוֹת שֶׁכָּךְ הוּא דַּרְכּוֹ. וְאִם הָיָה הַכְּלִי רֵיקָן הֲרֵי זֶה מְשֻׁנֶּה וּמְשַׁלֵּם חֲצִי נֵזֶק כְּכָל הַקְּנָסוֹת:

10

Similarly, if a horse yelped or a donkey bellowed and utensils were broken as a result, the owner is obligated to pay only half the damages.21 Roosters are considered prone to break utensils as they proceed in their ordinary pattern. If there was a string or a strap tied to [a rooster's] legs22 and a utensil became entangled with the string and rolled and broke, [the owner] is required to pay half the damages.23When does the above apply? When the string was tied to the rooster by a person.24 If, however, the string became ensnarled around the rooster's foot, its owner is not liable.25 If that string was owned by a given person,26 rather than being ownerless, the owner of the string is liable to pay half the damages, because the string is like a moving pit.27

י

וְכֵן סוּס שֶׁצָּנַף וַחֲמוֹר שֶׁנָּעַר וְשָׁבַר אֶת הַכֵּלִים מְשַׁלֵּם חֲצִי נֵזֶק. הַתַּרְנְגוֹלִין מוּעָדִין לְהַלֵּךְ כְּדַרְכָּן וּלְשַׁבֵּר. הָיָה חוּט אוֹ רְצוּעָה קָשׁוּר בְּרַגְלֵיהֶן וְנִסְתַּבֵּךְ כְּלִי בְּאוֹתוֹ הַחוּט וְנִתְגַּלְגֵּל וְנִשְׁבַּר מְשַׁלֵּם חֲצִי נֵזֶק. בַּמֶּה דְּבָרִים אֲמוּרִים כְּשֶׁקְּשָׁרוֹ אָדָם. אֲבָל אִם נִקְשַׁר עַל רַגְלֵיהֶם מֵאֵלָיו בַּעַל הַתַּרְנְגוֹלִין פָּטוּר. וְאִם הָיוּ לַחוּט בְּעָלִים וְלֹא הָיָה הַחוּט הֶפְקֵר בַּעַל הַחוּט חַיָּב חֲצִי נֵזֶק שֶׁהֲרֵי הוּא כְּבוֹר הַמִּתְגַּלְגֵּל:

11

If the owner of the string hid the string, and the roosters trod on it and took it out, and then it became ensnarled around their feet, and as a result utensils were broken, the owner of the string is also freed of liability,28 for [the damage] was beyond his control.29

יא

הִצְנִיעַ בַּעַל הַחוּט אֶת הַחוּט וְהַתַּרְנְגוֹלִים דָּרְסוּ עָלָיו וְהוֹצִיאוּהוּ וְנִקְשַׁר בְּרַגְלֵיהֶן וְשָׁבְרוּ בּוֹ אֶת הַכֵּלִים אַף בַּעַל הַחוּט פָּטוּר שֶׁהֲרֵי אָנוּס הוּא:

12

[The following rules apply when] roosters flew from place to place and broke utensils. If they broke the utensils with their wings, [the owner] is liable for the entire damage.30 If the utensils were broken by the wind generated by [the roosters'] wings, [the owner] is liable for half the damages.31

יב

תַּרְנְגוֹלִין שֶׁהָיוּ מַפְרִיחִין מִמָּקוֹם לְמָקוֹם וְשָׁבְרוּ אֶת הַכֵּלִים. אִם בְּכַנְפֵיהֶם שָׁבְרוּ מְשַׁלֵּם נֵזֶק שָׁלֵם וְאִם בָּרוּחַ שֶׁבְּכַנְפֵיהֶם מְשַׁלֵּם חֲצִי נֵזֶק:

13

[If roosters] were digging32 at dough or at produce and soiled it or pecked at it, [the owner] is liable for the entire damage.33 If they caused damages with the dust or stones that they raised with their feet or with their wings, [the owner] is liable for half the damages.34

יג

הָיוּ מְהַדְּסִין עַל גַּבֵּי עִסָּה אוֹ עַל גַּבֵּי פֵּרוֹת וְטִנְּפוּ אוֹ נִקְּרוּ מְשַׁלְּמִין נֵזֶק שָׁלֵם. הִזִּיקוּ בְּעָפָר אוֹ בִּצְרוֹרוֹת שֶׁהֶעֱלוּ בְּכַנְפֵיהֶן אוֹ בְּרַגְלֵיהֶן מְשַׁלְּמִין חֲצִי נֵזֶק:

14

If [roosters] were pecking at a rope [that held a bucket], the rope tore, and the bucket broke, [the owner] is liable for the entire damage. [This applies when] the bucket rolled until it fell and broke because of them.35 If there was food on the rope, and the rope tore while they were eating, they are liable to pay the entire amount of the damage to the rope as well.36

יד

הָיוּ מְחַטְּטִין בְּחֶבֶל וְנִפְסַק הַחֶבֶל וְנִשְׁבַּר הַדְּלִי מְשַׁלְּמִין נֵזֶק שָׁלֵם. וְהוּא שֶׁנִּתְגַּלְגֵּל הַדְּלִי מֵחֲמָתָן עַד שֶׁנָּפַל וְנִשְׁבַּר. וְאִם הָיָה עַל הַחֶבֶל אֹכֶל וּבָעֵת אֲכִילָתָן פְּסָקוּהוּ מְשַׁלֵּם גַּם עַל הַחֶבֶל נֵזֶק שָׁלֵם:

15

When a dog or a goat jumps from a roof downward and breaks utensils, [the owner] is liable for the entire damages, because they are prone to this.37 Similarly, if they fell and caused damages, [their owner is liable], because the fact that they climbed to the roof is considered negligence.38 [Therefore,] even if they fell because of forces beyond [the owner's] control, [he is liable], because whenever a person is negligent at the outset, and damage subsequently occurs because of forces beyond his control, he is liable.39

טו

הַכֶּלֶב וְהַגְּדִי שֶׁקָּפְצוּ מֵרֹאשׁ הַגַּג מִלְּמַעְלָה לְמַטָּה וְשָׁבְרוּ אֶת הַכֵּלִים מְשַׁלְּמִין נֵזֶק שָׁלֵם מִפְּנֵי שֶׁמּוּעָדִים הֵן לְדָבָר זֶה. וְכֵן אִם נָפְלוּ וְהִזִּיקוּ. שֶׁעֲלִיָּתָן לְרֹאשׁ הַגַּג פְּשִׁיעָה. וְאַף עַל פִּי שֶׁנְּפִילָתָן אֹנֶס כָּל שֶׁתְּחִלָּתוֹ בִּפְשִׁיעָה וְסוֹפוֹ בְּאֹנֶס חַיָּב:

16

If [the animals] jump upward [and cause damage], [the owner] is liable for half.40 This applies when a goat climbs upward or a dog jumps. If, however, a dog climbed upward and a goat leaps, whether upward or downward, [the owner] is liable for the entire damage.41 Similarly, if a rooster jumps either upward or downward, [the owner] is liable to pay for the entire amount of the damage.

טז

קָפְצוּ מִמַּטָּה לְמַעְלָה מְשַׁלְּמִין חֲצִי נֵזֶק. וְהוּא שֶׁנִּתְלַשׁ הַגְּדִי וְנִסְרַךְ וְקָפַץ הַכֶּלֶב. אֲבָל נִסְרַךְ הַכֶּלֶב וְדִלֵּג הַגְּדִי בֵּין מִלְּמַעְלָה לְמַטָּה בֵּין מִמַּטָּה לְמַעְלָה חַיָּבִין נֵזֶק שָׁלֵם. וְכֵן תַּרְנְגוֹל שֶׁדִּלֵּג בֵּין מִלְּמַעְלָה לְמַטָּה בֵּין מִלְּמַטָּה לְמַעְלָה מְשַׁלֵּם נֵזֶק שָׁלֵם:

17

[The following laws apply when] a dog takes a cake [from a fire where it is cooking, a coal is stuck to the cake], and [the dog] takes [the cake] to a grain heap. If it places [the cake] down on the grain heap, eats the cake and kindles the grain heap, [the owner] is liable to pay the full damages for the cake and the place where it placed the cake [in the grain heap].42 For the remainder of the grain heap, he is required to pay only half the damages.43 If [the dog] dragged the cake all over the grain heap, burning it as it proceeded, [the owner] is liable to pay the entire damages for the cake. For the place of the coals,44 [the owner] is liable to pay half the damages,45 and for the remainder of the grain heap he is not liable at all.46

יז

כֶּלֶב שֶׁנָּטַל אֶת הַחֲרָרָה וְהָלַךְ לוֹ לַגָּדִישׁ. אִם הִנִּיחָהּ בַּגָּדִישׁ וְאָכַל אֶת הַחֲרָרָה וְהִדְלִיק אֶת הַגָּדִישׁ עַל הַחֲרָרָה וְעַל מְקוֹם הַחֲרָרָה מְשַׁלֵּם נֵזֶק שָׁלֵם וְעַל שְׁאָר הַגָּדִישׁ חֲצִי נֵזֶק. וְאִם הָיָה מְגָרֵר אֶת הַחֲרָרָה עַל הַגָּדִישׁ וְהוֹלֵךְ וְשׂוֹרֵף מְשַׁלֵּם עַל הַחֲרָרָה נֵזֶק שָׁלֵם וְעַל מְקוֹם הַגֶּחָלִים חֲצִי נֵזֶק וְעַל שְׁאָר הַגָּדִישׁ פָּטוּר:

18

When does the above apply? When the owner of the coal guarded his fire and closed the door, and yet the dog dug underneath [until it could enter and] take the cake from the fire.47 If, however, he did not guard his fire, the owner of the fire is liable for the burning of the grain heap,48 and the owner of the dog is liable for the cake and the place where it was placed.49

יח

בַּמֶּה דְּבָרִים אֲמוּרִים בְּשֶׁשָּׁמַר בַּעַל הַגַּחֶלֶת אֶת אִשּׁוֹ וְסָתַם הַדֶּלֶת וּבָא הַכֶּלֶב וְחָתַר וְנָטַל אֶת הַחֲרָרָה מֵעַל הָאֵשׁ. אֲבָל אִם לֹא שָׁמַר אִשּׁוֹ בַּעַל הָאֵשׁ חַיָּב עַל שְׂרֵפַת הַגָּדִישׁ וּבַעַל הַכֶּלֶב חַיָּב עַל אֲכִילַת הַחֲרָרָה וְעַל מְקוֹמָהּ:

19

When a person sets a dog belonging to a colleague on a [third] individual, he is not held liable by mortal courts;50 the laws of heaven, however, obligate him to pay.51 The owner of the dog is liable to pay half the damages.52 Since he knows that if his dog is set upon [a person] maliciously he will bite him, he should not have allowed [his dog to be left to do this]. If [a person] set a dog [belonging to a colleague] to bite the person himself, the owner of the dog is not liable. For when there is already a deviation from the norm,53 and a person brings about a further deviation,54 [the owner] is not liable.

יט

הַמְשַׁסֶּה כַּלְבּוֹ שֶׁל חֲבֵרוֹ בַּחֲבֵרוֹ פָּטוּר מִדִּינֵי אָדָם וְחַיָּב בְּדִינֵי שָׁמַיִם וּבַעַל הַכֶּלֶב חַיָּב חֲצִי נֵזֶק שֶׁכֵּיוָן שֶׁהוּא יוֹדֵעַ שֶׁאִם שִׁסָּה אֶת כַּלְבּוֹ לְהַזִּיק נוֹשֵׁךְ לֹא הָיָה לוֹ לְהַנִּיחוֹ. וְאִם שִׁסָּהוּ בְּעַצְמוֹ בַּעַל הַכֶּלֶב פָּטוּר שֶׁכָּל הַמְשַׁנֶּה וּבָא אַחֵר וְשִׁנָּה בּוֹ פָּטוּר:

20

When there are two cows in the public domain, one lying down and one walking, if the one walking kicks the one lying down, [the owner] is liable for half the damages.55 Even though it would be the ordinary practice for [the cow] to tread on the cow that is lying down, it is not its ordinary practice to kick it.56

כ

שְׁתֵּי פָּרוֹת בִּרְשׁוּת הָרַבִּים אַחַת רְבוּצָה וְאַחַת מְהַלֶּכֶת וּבָעֲטָה מְהַלֶּכֶת. בִּרְבוּצָה חַיָּב חֲצִי נֵזֶק שֶׁאַף עַל פִּי שֶׁדַּרְכָּהּ לְהַלֵּךְ עָלֶיהָ אֵין דַּרְכָּהּ לִבְעֹט בָּהּ:

Test Yourself on This Chapter

Footnotes
1.

The Ra'avad emphasizes that when an animal has been deemed prone to cause damage through goring or one of its derivatives, it is deemed mu'ad only with regard to the particular activity that it performed repeatedly, but not with regard to any of the other derivatives of goring.

2.

See Chapter 1, Halachah 4-5.

3.

For like damages caused by treading, it involves damages caused accidentally by an animal when walking in its ordinary manner.

4.

The Lechem Mishneh raises questions regarding this point, but the Rambam's ruling is justified by the later commentaries.

5.

See Halachah 7, which clarifies the distinction between this and other instances where half payment is required.

6.

I.e., it is a law that was communicated orally to Moses on Mount Sinai and then transmitted orally from generation to generation. Although such laws are usually not even alluded to in the Written Law, their authority is the same as that of a law stated in Scripture. See the Rambam's Commentary on the Mishnah (Sanhedrin, Chapter 6).

7.

Despite the fact that the animal was walking in the public domain, since the damage took place in a private domain, the owner is liable.

8.

The damage to the first utensil is an ordinary instance of treading, while the damage to the second utensil is a case of the law illustrated in the previous two halachot.

9.

Intentionally.

10.

See Chapter 1, Halachah 11 and notes.

11.

This law is the subject of an unresolved question in Bava Kama 19a. The question is whether kicking the stone is considered like goring - for the kicking was done intentionally - in which case the owner would be liable for damage caused in the public domain, or it is considered to be an ordinary instance of stones that were propelled, and since the damage took place in the public domain, the owner is not held liable.Even according to the logic that maintains that the owner is liable, he is liable for only a fourth of the damage. This figure is arrived at as follows: When damage is caused by propelling stones, the owner is required to pay only half. Since the animal is considered to be a tam - i.e., it is not prone to cause such damages - the owner is required to pay only half of the amount for which he would be liable. Thus, one half of a half is a quarter.Since the question was not resolved by the Sages, the owner should not be held liable. Conversely, if the person whose property was damaged seized the money involved, it should not be expropriated from him.The Ra'avad raises objections to the Rambam's ruling, based on a different understanding of the Talmudic passage. The later authorities, however, follow the Rambam.

12.

This law is an extension of the unresolved question mentioned in the previous halachah. Since the damage took place in a private domain, the owner is definitely held liable. The question is whether he is liable for half the damages or for only a quarter of the damages. According to the opinion that maintains that kicking is considered a deviation, he should be held liable for only a fourth. According to the opinion that maintains that a deviation is not significant with regard to this category of damages, he is liable to pay half the damages.Since the matter was left unresolved, the owner may be required to pay only one fourth. If, however, the person whose property was damaged seized the owner's property, he need not relinquish half the value of the damages.

13.

The principles operating in this instance are the same as those operating in the first clause. The only reason for mentioning this law is that since it is impossible that the animal would not propel stones, one might not think that the deviation is significant, and the owner should be held liable for half the damages, as in an ordinary case of this nature. This premise is, nevertheless, not accepted.

14.

In this instance, although the owner does not pay for the full extent of the damages, none of the leniencies stated below apply.With regard to the payment of half-damages, according to ordinary logic - and indeed, this was the practice of the secular laws at that time - since the animal was not mu'ad, prone to cause damage, one would not think to hold the owner liable. Nevertheless, to insure higher standards of respect for property, Torah law fined the owner of the animal for half the damages.

15.

See Halachah 3.

16.

This applies even if after a person admits that he is liable for a fine, witnesses testify to that effect (Hilchot Geneivah 3:8-9 and the Maggid Mishneh). There are also other distinctions between fines and monetary obligations; for example, cases involving fines were arbitrated only by judges who were given semichah. Thus, they are not arbitrated in the present era.

17.

As is the case when one's animal eats produce belonging to someone else.

18.

The parallel between this instance and stones that are propelled can be explained as follows: When an animal propels a stone and the stone causes damage, the damage is not caused directly by the animal's body, but indirectly by the power it generated. Similarly, when the rooster breaks the container by crowing, the damage is caused indirectly, as a result of the animal's energy.

19.

I.e., a rooster is likely to stick its head into a container in order to eat food, and it is likely to crow while eating.

20.

Since this is a deviation from the animal's ordinary pattern, one is liable only for half the damages. The Ra'avad raises the question: Since the first clause of the halachah draws an analogy between the rooster's crowing and an animal's propelling stones, how is this instance different from the law stated in Halachah 6, where the owner is held liable for only a quarter of the damages his animal caused?The Maggid Mishneh states that the Rambam's rationale is difficult to understand, but offers the following explanation. When there are no spices in the container, crowing and breaking the container is considered to be a derivative of goring, not of propelling stones.The Shulchan Aruch (Choshen Mishpat 390:9) does not resolve the issue, explaining that since a deviation from the ordinary pattern is involved, the case is considered a fine and is not arbitrated in the present era.

21.

These are not considered departures from the norm. Instead, they are considered derivatives of the category of propelling stones. Therefore, payment is required for only half the damages.

22.

The Ra'avad raises many questions concerning the Rambam's decision, and similarly, Rabbenu Asher interprets the passage in Bava Kama 17a differently from the Rambam. The Shulchan Aruch (Choshen Mishpat 390:10) quotes the Rambam's interpretation, while the Ramah refers to the Rambam's rulings as satum, closed to us, and follows the approach of Rabbenu Asher.

23.

It appears that the Rambam considers the string to be like stones propelled by an animal's feet (tz'rurot). They are not considered as a pit, an inanimate object that causes damage, for as the Ra'avad notes, one is liable for the full damages caused by a pit and not half the damages.

24.

I.e., by the rooster's owner. If it was tied by another person, the owner is not held liable, and the others are required to pay half the damages.

25.

As mentioned, the string is considered to be a pit. With regard to that category of damages, Bava Kama 19b states that the pit must be brought into being by a person. If it is brought into being by an animal, the owner of the animal is not liable. In this case, since the owner did not tie the string to the rooster, he is not liable.

26.

Other than the owner of the rooster.

27.

As stated by the Shulchan Aruch (Choshen Mishpat 411:4), when an object belonging to a person is left in the public domain, moved by an animal and then causes damage, the owner of the animal and the owner of the article must share the cost of the damages equally.

28.

I.e., the owner of the rooster is freed of liability, because as above, he did not tie the string to the rooster.

29.

I.e., he did everything he could to prevent the damage from occurring.

30.

I.e., this is comparable to an animal's breaking a utensil by treading upon it.

31.

The wind produced by the roosters' wings is comparable to an an animal's propelling stones.

32.

Our translation is based on the Rambam's Commentary on the Mishnah (Bava Kama 2:1).

33.

I.e., since the roosters caused the damage in an ordinary fashion with their bodies, the owner is liable for the entire amount.

34.

This is also comparable to an animal's propelling stones.

35.

I.e., the roosters pushed the bucket until it fell and broke. They were thus the direct cause of its breaking, and this is considered as treading.If the bucket broke as a result of the rope's tearing, the ruling depends on whether the rope is new or worn. We assume that a rooster will peck at a rope slightly to sip its moisture. Thus, if the rope is worn, it is normal for it to snap. Hence, the owner is liable for the entire damages. If the rope is new, for the rope to tear from such pecking is not ordinary, and the owner is liable for only half the damages (Shulchan Aruch, Choshen Mishpat 390:11).

36.

Since there is food on the rope, we assume that the roosters will peck on it exceedingly, and it will tear even if it is new.

37.

This is considered to be a derivative of treading.

38.

I.e., the animals' owner should have known that his animals are prone to climb to the roof, and he should have taken precautions against that happening.

39.

Bava Metzia 42a explains that the logic is that, if not for the negligence, the damage would never have been caused by forces beyond their control.

40.

For this is a departure from the norm.

41.

For this is their ordinary pattern. The Rambam's ruling follows the version of Bava Kama 22a cited by Rabbenu Chanan'el and Rabbenu Yitzchak Alfasi. The standard version of the Talmud we possess today differs.Our translation differs from that of Rashi and the Nimukei Yosef who translate as lowered itself while hanging.

42.

This is the ordinary pattern of a dog, who will grab food from a fire in order to eat it. And since it is likely that a coal will remain attached to the cake, the owner of the dog is liable for the place where the cake is placed down as well.

43.

The standard printed texts of the Rambam's Commentary on the Mishnah (Bava Kama 2:3) offer the following rationale: This is a deviation from the ordinary pattern. This does not follow any of the explanations given in the Talmud. Rav Kapach's text of the Rambam's Commentary on the Mishnah explains that the burning of the rest of the grain heap is compared to stones that are kicked, for in both cases the damage is caused indirectly. This follows Rabbi Yochanan's position, Bava Kama 22a.

44.

According to the Radbaz (Volume V, Responsum 1662), this refers to all the places over which the dog dragged the coals.

45.

For this is considered comparable to stones that are kicked.

46.

The Ra'avad objects to the Rambam's ruling, maintaining that the owner is forced to pay one fourth of the damages, because he considers this case comparable to propelling stones, except that a deviation from the normal pattern is involved. The Tur also follows this approach. The Shulchan Aruch (Choshen Mishpat 392:1) follows the opinion of the Rambam, while the Ramah mentions that of the Tur.The Rambam's opinion can be substantiated based on Hilchot Rotze'ach 6:15, which states that a person is not liable for ko'ach kocho, an activity that comes about as an indirect result of his exertion of energy. It appears that the Rambam considers the damage caused by propelling stones to be kocho, a direct result of the person's energy, and not ko'ach kocho (Kessef Mishneh, Radbaz). The Ra'avad, by contrast, considers propelling stones to be ko'ach kocho.

47.

In which case, the owner of the dog is responsible for all the damages, for the fire took place because of his negligence.

48.

For it is his negligence that made the fire possible.

49.

For the dog caused this damage directly.The Ra'avad and the Tur, who in the previous law maintain that the owner of the dog must pay one fourth of the damages to the grain heap, maintain that he is liable for that amount in this instance as well. Hence, the owner of the fire is liable for only three fourths of the damages. In this instance as well, the Shulchan Aruch (loc. cit.) follows the opinion of the Rambam, while the Ramah mentions that of the Tur.

50.

This reflects a fundamental principle in the laws of damages. Grama, being an indirect cause, does not generate liability.

51.

I.e., he has a moral and ethical obligation to pay for the damages. See Bava Kama 55b, which gives several instances of grama and states that the person who indirectly caused the damage has a moral obligation to compensate for it.

52.

Dogs do not usually bite. Therefore, the fact that the person who set the dog on the third person provoked it to do so is considered a departure from the norm, and the owner is liable for only half the damages.The Ra'avad adds that if the dog is known to be prone to bite, the owner is liable for the entire amount of the damages. The Maggid Mishneh differs, maintaining that since the dog was provoked by the person who set it, this is considered a departure from the norm. (See also Chapter 6, Halachah 5.) Sefer Me'irat Einayim 395:2 quotes the Maggid Mishneh's view.

53.

Causing the dog to bite.

54.

Causing the dog to bite his own master.

55.

This is considered a derivative of goring. Since the cow is not known to be prone to kick other animals, the owner is liable for only half the damages.

56.

The owner would not have been liable if the cow had caused the damage by treading on the other cow. Since he did cause the damage by kicking, the owner is liable.

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The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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