Talmud - Bava Kamma 20a בבא קמא כ׳ א׳

The Gemara relates: There was a certain goat that saw a turnip on top of a clay barrel [dedanna]. It climbed and went up and ate the turnip, and in doing so it broke the barrel. Rava obligated the owner of the goat to pay the full cost of the damage, both for the turnip and for the barrel. The Gemara explains: What is the reason that he held the owner fully liable for the clay barrel as well as for the turnip? After all, breaking barrels is not the typical behavior of a goat. The Gemara answers: Since it is typical for the goat to eat the turnip, it is also typical for it to climb and go up in order to get it. Consequently, breaking the vessel is categorized as Eating.

§ Ilfa says: If a domesticated animal was in the public domain, and it stretched out its neck and ate from a sack of produce that was loaded on the back of another animal, its owner is liable to pay the full cost of the damage. The Gemara asks: What is the reason for this? The Gemara explains: The back of the other animal is considered like the courtyard of the injured party, and for this reason the owner of the animal is liable for damage classified as Eating there.

The Gemara suggests: Let us say that the following baraita supports his opinion (Tosefta 1:7): If a person was standing in the public domain, and his basket containing food was slung behind his back, and an animal stretched out its neck and ate from it, its owner is liable. The Gemara rejects this: This baraita does not support Ilfa’s opinion, because one could explain that the case in that baraita is as Rava says in a different situation: The ruling is stated with regard to a jumping animal; here also it can be suggested that the ruling of the baraita is stated with regard to a jumping animal, and since the animal engaged in atypical behavior it is classified as a case of Goring as opposed to a case of Eating. For damage classified as Goring, the owner of the animal is liable for his animal’s actions in the public domain, although he pays only half the cost of the damage.

The Gemara asks: And where, i.e., in what context, was Rava’s interpretation initially stated? The Gemara answers: It was stated with regard to that which Rabbi Oshaya says: If a domesticated animal was walking along and eating in the public domain its owner is exempt, but if it was standing and eating he is liable. The Gemara questions this ruling: What is different if it was walking? Is it because eating while walking is the typical behavior of an animal? But standing and eating is also typical behavior. Rava says: Rabbi Oshaya’s ruling is stated with regard to a jumping animal, which is not typical behavior for the animal.

§ Rabbi Zeira raises a dilemma: If an animal was rolling, what is the halakha? The Gemara asks: What are the circumstances of the case about which Rabbi Zeira inquires? The Gemara answers: For example, if there was a sheaf of grain on private property, and it was rolled along by the animal and the sheaf went from the private property into the public domain, and the animal ate it there, what is the halakha? Should this be treated as a case of Eating on private property, rendering the owner of the animal liable, or should it be treated as a case of Eating in the public domain, thereby exempting him from liability?

The Gemara suggests: Come and hear a solution from a baraita, as Rabbi Ḥiyya taught: If a load of food was located partly inside the property of its owner and partly outside of his property, i.e., in the public domain, and an animal ate inside the private property, its owner is liable, as this is a case of damage classified as Eating on the property of the injured party. But if the animal ate outside, its owner is exempt, in accordance with the halakhot of Eating in the public domain. What, is it not that the case is one where the food was rolling along, and the halakha follows the location where it was actually eaten? The Gemara explains: No, say instead: It ate, and for that which was initially inside the private property, its owner is liable even if the food rolled out of the private property, and for that which was initially outside, its owner is exempt.

If you wish, say instead that there is a different resolution: When Rabbi Ḥiyya stated his ruling it was with regard to a long stalk of fodder [de’aspasta] that was partly inside and partly outside at the time it was consumed, and as the animal ate it the entire stalk was pulled to where the animal was standing.

§ The mishna teaches: If the animal ate garments or vessels, the owner must pay for half the cost of the damage. In what case is this statement said? It is said when the animal ate them while located on the property of the injured party, but if he ate them in the public domain the owner of the animal is exempt from liability.

The Gemara asks: To which case is this referring? In which case is one exempt from liability if the damage occurred in the public domain? Rav said: It is referring to all of the cases. One is exempt from liability in the public domain even if his animal ate garments or vessels, despite the fact that this is an unusual thing for the animal to do and therefore eating garments or vessels should be classified as a case of Goring, which would normally result in liability when it occurs in the public domain. What is the reason for this? Rav answers his own question by stating a principle: With regard to anyone who deviates from normative behavior in his actions, if another came along afterward and deviates from the norm with regard to the action the first has done and thereby causes damage to him, the one who causes the damage is exempt from liability. In this case, the injured party left his garments or vessels in the public domain and thereby deviated from normative behavior, and therefore the owner of the animal that acted atypically and ate them is exempt from liability.

And Shmuel said: They taught in the mishna that one is exempt from liability for damage caused in the public domain only in a case where his animal ate fruit or vegetables, in accordance with the halakhot of Eating in the public domain, but if the animal ate garments or vessels in the public domain, the owner is liable to pay for half the cost of the damage. Since this is atypical animal behavior, it is classified as a case of Goring, for which the owner of the animal is liable even if it occurs in the public domain.

And similarly, Reish Lakish said, in accordance with the opinion of Rav: The exemption discussed in the mishna was said in reference to all of the cases. And Reish Lakish follows his own line of reasoning, as Reish Lakish says: If there were two cows in the public domain, one prone and one walking, and the walking cow kicked the prone cow, its owner is exempt from liability; but if the prone cow kicked the walking cow, its owner is liable. This indicates that Reish Lakish accepts the principle: Anyone who deviates from normative behavior, if another came along afterward and deviates from the norm with regard to the action the first has done and thereby causes damage to him, the one who causes the damage is exempt. Since it is atypical behavior for a cow to lie down in the public domain, even if the walking cow also behaved atypically and kicked the prone cow, its owner is exempt from liability.

And Rabbi Yoḥanan says, in accordance with the opinion of Shmuel: They taught in the mishna that one is exempt from liability in the public domain only if his animal ate fruit or vegetables, but if the animal ate garments or vessels, the owner is liable to pay for half the cost of the damage.

The Gemara asks: Shall we say that Rabbi Yoḥanan does not accept Reish Lakish’s opinion even in the case of the two cows? The Gemara rejects this suggestion: No, actually it is possible that Rabbi Yoḥanan accepts the opinion of Reish Lakish, but he distinguishes between the cases. In the case of garments, it is common for people to put their cloaks down in the public domain in order to rest [umitpeḥi], and this is not considered atypical behavior. But it is not common for an animal to lie down in the public domain, and since this animal behaved in an atypical manner, no liability is borne by the owner of the walking cow for engaging in atypical behavior and kicking the prone cow.

§ The mishna teaches: And if the animal derives benefit from eating another’s produce in the public domain, although the owner is exempt from paying for the damage it caused, nevertheless the owner of the animal pays for the benefit that it derives. The Gemara asks: And how much is this payment, i.e., how is it calculated? Rabba says: It is the value of, i.e., the amount one would pay, for an equal quantity of stalks of hay or straw. This is because the owner can claim that had his animal not eaten the produce, he would have fed it inexpensive straw, so the animal’s benefit is limited to the cost of the straw that it would have eaten. Rava says: If the animal ate barley, his owner must pay the value of the barley, i.e., as that is typical animal food, but based on the cheapest price available in the market.

The Gemara notes: It is taught in a baraita in accordance with the opinion of Rabba and it is taught in a different baraita in accordance with the opinion of Rava. It is taught in a baraita in accordance with the opinion of Rabba: Rabbi Shimon ben Yoḥai said: The animal’s owner pays only the value of stalks of straw.

It is taught in a baraita in accordance with the opinion of Rava (Tosefta 1:7): If the animal derived benefit from eating another’s produce, the owner of the animal pays for the benefit that it derived. How so? If the animal ate one kav or two kav of grain, we do not say that he should pay their value. Rather, the court estimates how much a person would pay in order to feed his animal typical food fit for it to eat, even if this particular animal does not usually eat that food, as its owner gives it cheaper food. Therefore, if the animal ate barley, which is typical animal fare, even though it does not usually do so, its owner must pay compensation for the barley that was eaten, at its cheapest market price. Therefore, if the animal ate wheat or another item that is detrimental to it, so that it did not derive any benefit, if this occurred in the public domain the owner is exempt from all liability.

§ In connection to the principle stated in the mishna, that if the animal derives benefit the owner of the animal pays for the benefit that it derived, the Gemara relates: Rav Ḥisda said to Rami bar Ḥama: You were not with us at night within our boundary when we raised dilemmas concerning exceptional matters. Rami bar Ḥama said to him: What are the exceptional matters you discussed? Rav Ḥisda said to him: With regard to one who resides in another’s courtyard without his knowledge or permission, must he pay him rent for living there or does he not need to pay him rent?

The Gemara asks: What are the circumstances of this question? If we say that the case concerns a courtyard that does not stand to be rented out, i.e., if the squatter would not have lived there the owner would have kept it vacant, and the man squatting there is someone who would not have rented other living quarters because he has other lodgings available to him for free, then it is a case where this one, the squatter, does not derive benefit, and that one, the owner, does not suffer a loss; in that case certainly no payment is necessary. Rather, say that the discussion concerns a case of a courtyard that stands to be rented out, and the man squatting there would have rented other living quarters. If so, then this is a case where this one derives benefit and that one suffers a loss, and in that case he certainly must make payment. The dilemma was not with regard to either of these circumstances.

The Gemara explains: No, it is necessary to raise the dilemma in the case of a courtyard that does not stand to be rented out, but the man squatting there would have rented other living quarters had he not squatted in this property. What is the halakha in this case? Is the squatter legally able to say to the owner of the courtyard: What loss have I caused you, as you would not have rented it out anyway? Or perhaps the owner of the courtyard is legally able to say to the squatter:

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Bava Kamma 20a examines a goat damaging a barrel while eating a turnip and liability for animals eating from another's load in public spaces.