Hilchot Nizkei Mamon - Chapter One

In the name of the Lord, the God of the world.
Extend my heart to Your testimonies and not to monetary gain.

The eleventh book which is The Book of Injuries

It contains five sets of Halachot and this is their order:

The Laws of Nizkei Mamon
The Laws of Genevah
The Laws of Gezelah va'Avedah
The Laws of Chovel uMazzik
The Laws of Rotzeach uShmirat Nefesh

Introduction to Hilchos Nizkei Mamon

[This text] contains four positive commandments; they are:

1) The laws regarding damage caused by [the goring of] an ox,
2) The laws regarding damage caused by the grazing [of an animal],
3) The laws regarding damage caused by a pit,
4) The laws regarding damage caused by fire.

These mitzvot are explained in the chapters [that follow].

Whenever a living animal owned by a person causes damages, the owner is required to pay, for the damage was caused by his property. [This is implied by Exodus 21:35:] "When a person's ox will gore an ox belonging to a colleague...."1 These laws apply equally to an ox and to any other animal, beast or fowl. The verse mentions an ox only because that is a common instance.

How much must [the owner] pay? If [the animal] caused damage through the performance of an act that it performs frequently and that is its natural habit - e.g., an animal ate straw or fodder, or it caused damage by [treading on an object] with its feet while walking - [the owner] is obligated to pay the full amount of the damage, [giving up, if necessary,]2 his most choice property, as stated in [Exodus 22:4]: "Payment should be exacted from his choice field and his choice vineyard."3 If [the animal] deviated from its ordinary habit and performed acts that it does not usually perform and caused damage in this manner - e.g., a ox gored or bit [another animal] - the owner is obligated to pay half the damages caused. [The payment must be exacted] from the animal that caused the damage, as [Exodus 21:35] states: "And they shall sell the ox that is alive and divide the money."

What is implied? When an ox that is worth a maneh4 gores an ox that is worth 20 zuz and kills it, [leaving] a corpse that is worth four zuz, the owner of the ox [that caused the damage] is liable to pay eight zuz, half of the loss [suffered by the owner of the ox that was killed]. The payment must be exacted from the body of the animal that caused the damage,5 as it is written: "And they shall sell the ox that is alive."6 Therefore, if an ox that was worth 20 zuz killed an ox that was worth 200 zuz and its carcass was worth [only] a maneh, the owner of the dead ox cannot compel the owner of the living ox to give him 50 [zuz]. Instead, he should tell him: "Here is the ox that caused the damage. Take it and depart."7 [This applies] even if the [ox that gored] is worth only a dinar. Similar principles apply in all analogous situations.

[An animal] that performs a deed it is accustomed to performing by nature is called a mu'ad.8 [When an animal] deviates from its ordinary pattern and performs an act that its species does not usually perform - e.g., an ox gores or bites - it is called a tam.9 If the animal continues to follow the deviant pattern on several occasions, it is considered to be mu'ad with regard to the deviation to which it has become habituated, as [implied by Exodus 21:36]: "Or it is known that it is a goring ox."

Five types of activities are considered to be abnormal for an animal. If it repeatedly performs any of them, it is considered to be mu'ad with regard to that activity.10 An animal is not considered to be prone to gore, to butt,11 to bite, to lie down on large utensils or to kick. If it becomes accustomed to such an activity, its owner should be forewarned. At the outset, [an animal] is, however, considered prone to eat foods that are appropriate for it and to break utensils [on which it treads] as it walks. Similarly, an animal is considered prone to lie down on small utensils and crush them.

Five species of animals are considered prone to cause damage from the beginning of their existence. [This applies] even if they have become domesticated.12 Therefore, if they cause damage or death by goring, biting, treading, lying down upon, or the like, [the owner] is liable for the entire amount of the damages. They are a wolf, a lion, a bear, a tiger and a leopard. Similarly, a snake that bites is considered to be mu'ad, even if it has been domesticated.

Whenever [an animal] is mu'ad, [the owner] must pay the entire amount of the damage, [even if this requires expropriating] his most choice property. Whenever, by contrast, an animal is considered a tam, [the owner] is required to pay [only] half the amount of the damages. [Moreover,] that half is taken only from the animal itself. When does the above apply? When the animal entered into the domain belonging to the person to whom damage was caused, and caused damage. When, however, the person to whom damage was caused entered into the domain of the person [whose animal] caused the damage, [the owner] is not liable for anything. For he can tell [the party who suffered the damages]: "If you had not entered my domain, you would not have suffered any damages." Indeed, this is explicitly stated in the Torah, as [Exodus 22:4] states: "And if he shall send forth his animals, and they pasture in another's field."13

[The following rules apply when a person's] animal causes damage in the public domain or in a courtyard that belongs neither to the owner of [the animal that] caused the damage nor to the party who suffered the damages,14 or in a courtyard owned jointly by both parties that is set aside to leave produce there and/or to harbor an animal - e.g., a valley. If [the animal] caused damage by eating or treading in its ordinary manner, the owner is not liable. For [the animal] has permission to go from here to there, and it is the habit of an animal to go and eat as it proceeds and to break [anything lying in its way] as it proceeds.15 [Different rules apply if] it [caused damage by] goring, butting, kicking or biting.16 If its status is tam, [the owner] must pay for half the damages. If its status is mu'ad, [the owner] must pay the entire amount of the damages.17

When a courtyard owned jointly by both parties18 is designated for produce and not for harboring an animal, and one of the parties lets his animal in and it causes damage, [the owner] is liable even for damage caused by eating or treading.19 Similarly, if both of them had the right to harbor an animal there, but only one had the right to keep produce there, if [an animal belonging to the other] damaged [that person's] produce, [its owner] is liable even for damage caused by eating or treading.20

There are three categories of damages [caused by] an ox: a) goring, b) eating and c) treading. The derivatives of goring are butting, biting,21 lying upon and kicking.22 The derivatives of eating are23 causing damage when scratching itself on a wall for its benefit, and soiling produce24 for its benefit. The derivatives of treading are25 causing damage with its body while walking; causing damage with its hair while walking or by swishing its tail, or with its saddle, the bit in its mouth or the bell around its neck. Similarly, a donkey that causes damage with its burden while walking or a calf that is pulling a cart that causes damage while pulling it. All of these are derivatives of treading. In a public domain [the owner] is not liable, and in a domain belonging to the party who suffered the damages, he must pay for the entire amount of the damages.

When [an animal] swishes its tail repeatedly in an abnormal manner and causes damage in the public domain, or when it swishes its sexual organ and causes damage in the public domain, [the owner] is not held liable. If the person whose property was damaged seizes possession [of property belonging to the owner], he may take payment for half of the damages.26 [The rationale for that ruling is that] there is an unresolved question whether these acts are derivatives of goring, in which case [the owner] is liable [for damage caused] in the public domain, or whether they are derivatives of treading, in which case [the owner] is not liable [for damage caused] in the public domain, as has been explained.27