Talmud - Bava Kamma 21a בבא קמא כ״א א׳

is similar to an action involving non-sacred property belonging to an ordinary person, which was performed with the owner’s knowledge and against his wishes. This is because consecrated property belongs to the Almighty, and it is therefore meaningless to speak of a situation where the owner is unaware of what is being done. Consequently, anyone who derives benefit from consecrated property is in violation of the prohibition of misuse, but it cannot be inferred from this that one who resides in another’s courtyard without his knowledge must pay him rent.

Rabbi Abba bar Zavda sent a message to Mari bar Mar saying: Raise the following dilemma before Rav Huna: Does one who resides in another’s courtyard without his knowledge need to pay him rent or not? In the meantime, before he was able to respond to the question, Rav Huna died.

Rabba, son of Rav Huna, said to him in response to the question that was asked of his father: So did my father, my Master, say in the name of Rav: He does not need to pay him rent. And he also stated another halakha: One who rents a house from Reuven must pay rent to Shimon. The Gemara is puzzled: Shimon? What does he have to do with this? The Gemara explains: This is what he is saying, i.e., what he means: If it is discovered that the house he rented did not actually belong to Reuven but rather it was Shimon’s, he must pay rent to Shimon.

The Gemara questions this statement: Did Rav Huna state two contradictory halakhot? On the one hand he says that one who resides in a courtyard without the owner’s knowledge does not need to pay rent, but on the other hand he says that if it is discovered that the true owner of a rented house was someone else, and therefore the tenant was living in another’s courtyard without the owner’s knowledge, he is obligated to pay him rent. The Gemara resolves the difficulty: This second halakha, which stated that he is obligated to pay rent, is referring to a courtyard that stands to be rented out, while that halakha, which stated that he is not obligated to pay rent, is referring to a courtyard that does not stand to be rented out.

It was also stated: Rabbi Ḥiyya bar Avin says that Rav says, and some say that Rabbi Ḥiyya bar Avin says that Rav Huna says: One who resides in another’s courtyard without his knowledge does not need to pay him rent, and one who rents a house from the residents of the city must pay rent to the owners. The Gemara is puzzled: Owners? What do they have to do with this? The case concerns one who rents a property from the residents of the city, i.e., the house is public property. The Gemara explains: This is what he said: If it is discovered that the house did have owners and was not public property, the renters must pay rent to those owners.

The Gemara wonders about this: Did he state two contradictory halakhot? The Gemara answers: This second halakha, which stated that he is obligated to pay rent, is referring to a courtyard that stands to be rented out, while that halakha, which stated that he does not need to pay rent, is referring to a courtyard that does not stand to be rented out.

Rav Seḥora says that Rav Huna says that Rav says: One who resides in another’s courtyard without his knowledge does not need to pay him rent because it is stated: “Desolation remains in the city, and the gate is stricken unto ruin” (Isaiah 24:12), i.e., a house that is not lived in will collapse at some point due to neglect. Consequently, one who lives inside an otherwise uninhabited house is providing a service to the homeowner, as he maintains the house and prevents it from falling apart. Mar bar Rav Ashi said: I saw this ruin and it gores like an ox, i.e., it is devastating. Rav Yosef stated a similar idea: A home that is lived in is settled and safeguarded, while a home that is not lived in has no one to look after it and maintain it.

The Gemara asks: What is the difference between what Rav said and what Rav Yosef said? The Gemara answers: The difference between them is with regard to a house that the homeowner uses to store wood and straw. The house is not empty and desolate but there is nobody living in it. According to Rav Yosef’s reasoning, a squatter there would not have to pay rent to the homeowner.

The Gemara relates: There was a certain man who built a mansion [apadna] on a garbage heap [akilkalta] belonging to orphans, and Rav Naḥman confiscated his mansion from him as he did not pay the owners of the property. The Gemara asks: Shall we say that Rav Naḥman holds that one who resides in another’s courtyard without his knowledge must pay him rent? The Gemara rejects this: No, there is no proof taken from this case, because it was a unique situation. In that case Carmanians, nomadic tribes, were initially living on the property, and they would pay the orphans a small amount for the use of the land, and when this man built his mansion he removed the Carmanians from there. Rav Naḥman had said to the man who built the mansion: Go and appease the orphans with regard to their lost income, but he did not pay attention to the ruling. Therefore, Rav Naḥman confiscated his mansion from him.

§ The mishna teaches: Under what circumstances does the owner of the animal pay for the benefit that his animal derived? If the animal ate produce in the public square in the area before the storefronts, the owner of the animal pays for the food from which it benefits. If the animal ate from food placed at the side of the public square, which is not a public thoroughfare, the owner of the animal pays for what it damaged, as the legal status of that area is like that of the property of the injured party. Rav said: When the mishna says that the owner of the animal pays for what it damaged, it is referring to a case where the animal turns its head to reach the food but the animal itself is standing completely inside the public domain and it eats while standing there. And Shmuel said: Even if it is standing in the public domain and it turns its head to eat from food placed at the side of the public square, its owner is also exempt, as the animal itself is in the public domain.

The Gemara asks: But according to the opinion of Shmuel, how can you find a case in which the owner is liable to pay for all of the damage caused when his animal ate from food placed at the side of the public square, as indicated by the mishna? The Gemara answers: For example, when an animal leaves the public square and goes and stands at the side of the public square, and eats the food stored there. In that case its owner certainly pays for what it damaged, as this area is comparable to the property of the injured party.

And there are those who teach this halakha as an independent dispute and not as an explanation of the mishna: If an animal is standing in the public domain and turns its head to eat from food placed at the side of the public square, Rav says: Its owner is liable, and Shmuel says: Its owner is exempt. The Sages asked: But according to the opinion of Shmuel, with regard to that which was said in the mishna, that its owner pays for what it damaged, how can you find a case in which its owner will be liable? The Gemara answers: For example, when an animal leaves the public square and goes and stands at the side of the public square, and eats the food stored there.

Rav Naḥman bar Yitzḥak raises an objection to this explanation of Rav’s opinion: The mishna says that if the animal ate produce from the entrance of the store, its owner pays for the benefit that the animal derived, as the status of a store entrance is like that of the public domain. How can you find these circumstances? It is obvious that the discussion in this case concerns an animal that turns its head from the public domain to the entrance of the store, and the Master says that the owner of the animal pays for the benefit that the animal derived. Evidently, for the benefit that the animal derived, yes, this is what the owner pays, but he does not pay for that which it damaged.

Rav Naḥman bar Yitzḥak raised the objection, and he resolved it by explaining that the case in the mishna is one where a store is located on a corner and it is situated in a way that some of the produce there would be in an animal’s path as it turns the corner, and therefore the animal would not need to turn its head away from the public domain in order to eat the produce.

There are those who state a different explanation of the dispute between Rav and Shmuel. In a case where it turns its head to eat from the sides of the public square, everyone agrees that its owner is liable to pay the full cost of the damage. When they disagree it is with regard to a case where one allocates space from his property, as he does not have a use for it, and he adds this space to the public domain by leaving it accessible for the public to use, and the damage took place in that area. The dispute is about whether the area is categorized as private property or the public domain.

And this is what was stated, meaning this was their dispute: Rav says that in the mishna, they taught that one is liable only in a case where his animal turns its head to the sides of the public square, as this area is categorized as private property, but if one allocated some space from his property and added it to the public domain and the damage happened there, the owner is exempt, as that area is treated as part of the public domain. And Shmuel says: Even if he allocates space from his property and adds it to the public domain, the owner of the animal is liable as the damage took place in an area with the legal status of private property.

The Gemara suggests: Shall we say they disagree with regard to the question of damage classified as Pit that one dug inside one’s own domain and then declared the area ownerless? Rav, who says that the owner of the animal is exempt for eating the produce placed in an area that the owner added to the public domain, holds that if one digs a pit or creates an obstacle that can cause damage within his own property and he then declares his property to be ownerless, he is liable for any damage that is caused by the pit, as now that it is in the public domain, he bears the responsibility for it. Similarly, the produce is viewed as if it is in the public domain, and the animal’s owner is exempt.

And Shmuel, who says that the owner of an animal is liable for eating the produce placed in an area that the owner added to the public domain, holds that if one digs a pit within his own property and he then declares his property to be ownerless, he is exempt, as he dug the pit when the property was his. Similarly, the produce is viewed as if it is in the property of the injured party, and the animal’s owner is liable.

The Gemara rejects this: Rav could have said to you: Actually, I will say to you

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

Bava Kamma 21a examines whether occupying another's courtyard without knowledge requires paying rent, debated through Rav Huna's rulings.