Hakoness – Shiur #07: An Animal That Fell Into A Garden Bava Kama 58A

  • Rav Shmuel Shimoni

            We shall deal today with two different topics discussed in the Gemara on p. 58a. The second topic firmly relates to the laws of damage and the precautions that must be taken to prevent it. The first topic removes us slightly from the usual topics of this chapter to a discussion regarding a liability factor mentioned occasionally in our tractate – payment "to the extent of the benefit" [ma she-nehenet]. Even when, for one reason or another, there is no liability in the context of the laws of damage, a person is still obligated to pay a person from whom he derived benefit the amount of that benefit, this being similar to the argument that "mamoni gabakh" ("my property is in your possession").

I. Payment to the extent of the benefit and the law of Driving a lion away from a neighbor's property

Regarding, however, [a case where an animal tripped and had the blow cushioned by landing on produce that did not belong to his owner, and the owner of the damaged produce, even if, for whatever reason, he will not get paid the full value of the damaged fruit, would still like to at least be paid for the benefit derived by the animal from the lessening of] the impact, I might have said that this is a case of "driving away a lion away from a neighbor's property" [mavri'ach ari], so that no payment should be made even to the extent of the benefit. It is therefore indicated to us [here that even this benefit has to be paid for]. But why not say that this is so? [No payment could be claimed] in the case of driving away a lion from a neighbor's property as [the act of driving away the lion] is voluntary, but in this case the act was not voluntary. Alternatively [iy nami], in the case of driving away the lion from a neighbor's property, no [financial] loss was incurred [by the act of driving away the lion], but in this case here there was [financial] loss involved.

            The Gemara assumes the existence of the term "mavri'ach ari" ("driving away a lion from a neighbor's property") as an expression used to describe situations in which a person who derived a certain benefit from another person is not obligated to pay the person from whom he derived that benefit, because the latter is “merely” regarded as having driven away a lion and prevented it from damaging the former's property (and there was no "real" benefit that would be deserving of compensation). But of course the exemption of mavri'ach ari is by no means self-evident.

            According to the plain sense of the Gemara, there seem to be two reasons ("iy nami") as to why in our case we do not apply the exemption of mavri'ach ari: 1) the benefit was not bestowed voluntarily; 2) a financial loss was incurred. That is to say, the exemption of mavri'ach ari is conditioned on two factors: that the benefit be bestowed of the free volition of the benefactor and that it not involve a financial loss on his part.

            The Tosafot (s.v. iy nami), however, explain that it is not the exemption that is conditioned on two factors, but rather the liability: "If it was voluntary, even if he suffered a financial loss, or if it was not voluntary, but he did not suffer a financial loss, it is considered mavri'ach ari." The liability in our passage is based on the fact that the animal's falling on the fruit was not of the fruit owner's volition and that it also caused him damage. That is to say, there are two possibilities for exemption. When there is no loss, the beneficiary does not derive monetary benefit at the expense of the benefactor (which brings to mind the fundamental discussion on p. 20a regarding the laws of "this one derived benefit, while the other one suffered no loss"). When there is a loss, but the act was performed of the free will of the benefactor, this may be seen as a waiver on his part. That is to say, one exemption is based on the absence of any cause for liability, while the second exemption is based on our assessment of the benefactor's thinking.

            The difficulty raised by Tosafot against this understanding, which does not follow from the plain sense of the passage, is a most surprising law recorded in Ketubot 107b-108. The mishna there cites a disagreement regarding one who went abroad and someone came forward and maintained (provided food and basic needs for) his wife, thus paying the maintenance that a husband owes to his wife. According to "the sons of the High Priests," the person who maintained the woman can recover what he laid out, a seemingly reasonable position. The halakha, however, was decided in favor of the opinion of Chanan; he cannot collect, because "he put his money on a stag's horn." From the Gemara there it seems that we are dealing with a general principle, that a porei’a chovo shel chaveiro (one who repays another person's debt) cannot recover the money from him. This halakha is, of course, very difficult, for it seems to be a clear case of one person making money at another person's expense.

            It stands to reason that it was this difficulty that drove Rabbeinu Tam and Rabbeinu Chananel[1] to a forced interpretation of that passage, which limits the scope of the law to the special circumstances of the matter of maintenance: "It is dealing specifically with maintenance owed to one's wife, and for this reason he is exempt, for it is not clear that that the husband was liable for maintenance, for perhaps he could have exempted himself, as the woman herself might have lived more frugally had she not found someone who provided her with money… But regarding porei’a chovo shel chaveiro, even Chanan would agree that he has not lost his money, for this is absolute benefit, as he could not have exempted himself in any way."

Rabbeinu Chananel and Rabbeinu Tam maintain that Chanan's exemption from liability applies only in the case of maintenance, where there is no clear debt, since the woman could – and there are reasons for her to do so – have been frugal in her outlay of money and not need the additional money. In the case of an ordinary debt, there is an obligation to compensate the porei’a chovo, because he enriched the debtor.

This approach is exceedingly reasonable. Imagine a case where a bank clerk deposits in one person's account money taken from some other person's account, thus increasing the former's balance. Is it thinkable that the first person is not obligated to return the money to its proper owner? And if we are dealing not with a positive balance but rather with a negative balance, i.e., where the deposit erased the negative balance, does that change anything? It would seem that we are dealing with a clear case of "mamoni gabakh."

As stated, however, the plain sense of the Gemara in Ketubot does not indicate this, and other Rishonim, such as our Tosafot, did not accept the position of Rabbeinu Chananel and Rabbeinu Tam. Tosafot were therefore forced – owing to the exemption granted in the case of porei’a chovo shel chaveiro, a case where the payment was made voluntarily and he suffered a loss – to explain as was cited above, that the obligation to make payment is only created when two conditions are met: when the benefit was not bestowed voluntarily and a loss was suffered. From here it follows that if it was the bank clerk who transferred someone's money to another person's account, the latter would be liable to return the money to its rightful owner; but if a person voluntarily covered another person's negative balance, this would be interpreted as a gift or a waiver, and the beneficiary would not be obligated to make compensation.[2]

After the Tosafot expanded the scope of the exemption of mavri'ach ari, asserting that the exemption applies even when the benefactor suffers a loss, provided that it was of his own free will, they were forced to limit it in other ways. This is because many sources indicate that someone who assists another person is entitled to compensation for his expenses, as in the case of a shomer aveida (person minding a lost article), who is paid like an "idle worker" for his loss of earnings. The Tosafot suggest that the exemption be limited as follows:

It seems to the Ri that the law that a mavri'ach ari cannot collect a fee only applies when it is not clear that he would have come to financial loss, e.g., where the lion is far off, and he doesn't know whether the lion will come here, and he only saves him from the worry and fear that perhaps the lion will come. But if it is clear that it (his property) will come to be damaged or be trampled by the lion, or if he saves the property from the lion's mouth itself, then he can certainly collect his fee, e.g., where a river carried off another person's donkey. And our case is where the produce only saved [the animal] from pain, for the animal's owner does not want his animal to hit the ground and suffer pain, even though the value [of the animal] would not decrease as a result.[3] And therefore it would have been considered a case of mavri'ach ari [even] had it been of his own free will.

            The lion might possibly have come, but money cannot be collected based on an uncertainty.[4] The sole certainty is the worry, but for saving a person from worry there is no financial compensation.

            Attention should be paid to the fact that the limitation of the exemption is twofold. First of all, when the damage from the lion is definite, it does not fall into the category of mavri'ach ari [for which there is no payment for derived benefit]. And second, even when we are dealing with saving an animal from pain, in accordance with the novel understanding of the Tosafot regarding our passage, in the exceptional case – when it was not of his own free will and he suffered a financial loss – there is financial liability. Even though the beneficiary did not want to enter into a deal, when he derives benefit – even at the level of saving his animal from pain – at the expense of the benefactor and without his agreement, he is obligated to compensate him.

            And what about a porei’a chovo shel chaveiro? Here the Tosafot offer two answers, neither of which is easy to understand. I will start with the second answer, the easier of the two from a theoretical perspective:

One who is porei’a chovo shel chaveiro does not save him from loss… as the Yerushalmi in Ketubot and Nedarim explain the reason: "I could have appeased him and he would have waived the debt to me"… This is even where the creditor is pressing him, as the Yerushalmi concludes. It seems to me that the reason is that he can say to him: "I could have found many other people who would repay the debt for me," for it is the way of friends to show compassion to their friends and save them from this distress.

            Thus writes the Rambam (Hilkhot Malveh ve-Loveh 26:6), and so too rules the Shulchan Arukh (128:1): "If a person is porei’a chovo shel chaveiro without that other person's knowledge… the borrower is not obligated to pay him anything… even if the creditor was pressing him to pay, for perhaps the borrower would have been able to appease the lender and he would have waived the debt to him."

According to this approach, the benefactor's repayment of the debt did not save the debtor from certain expense, for it is possible that the creditor would have waived the debt to him or else he might have found someone else to pay the debt for him. The answer to the theoretical case discussed above of a person who deposited money into another person's bank account, is that we should not see the situation of a negative balance as something that is built into the account, for it is possible that the account holder will free himself of the debt by various means.

As stated, theoretically this is understandable – there is no obligation for me to compensate another person for making a payment that brought me no financial benefit. In effect, there is an adoption here of the fundamental position of Rabbeinu Tam, only that what Rabbeinu Tam saw in the obligation to provide maintenance – a lack of certainty, since the woman might limit her expenses – only that this approach applies to all debts.

            This view of reality is, however, exceedingly strange. Isn't it reasonable to assume that ordinarily a person will be forced to repay his debts?[5] The wording of the Tosafot (regarding a creditor who is pressing the debtor for payment), "for it is the way of friends to show compassion to their friends and save them from this distress," might incline us to think that we are not dealing here with a sweeping principle regarding all debts, but with the unfortunate situation of a debtor who has difficulty paying his debt and suffers from the pressing measures taken by his creditor. In such a case, it may be argued that there is no clear economic gain, for given the circumstances he is not likely to pay, as he does not have the means to do so. He hopes that a relative will come to his rescue, and it is very possible that he will not be expected later to repay, but rather he will be given an opportunity to start fresh from a financial perspective. Therefore, the person repaying the debt at most saves the debtor from the distress of a pressing creditor. And therefore the debtor is not obligated to compensate him. Indeed, the Arukh ha-Shulchan suggests a similar understanding of the aforementioned ruling in the Shulchan Arukh:

It seems to me that this only applies in a case where the debtor is found in pressing circumstances, for in such a case he might have pleaded before the creditor and he might have waived the debt to him. Or else he might have extended the due date, or the like. But when the debtor is in good circumstances, we are witnesses that the creditor would not have waived the debt to him, and the loss is clear. Proof for this may be brought from the wording of the Rosh who writes the he merely saves him from distress, as he is distressed that he cannot repay his debt. This is what is found in the Yerushalmi: "I could have appeased him and he would have waived the debt to me," for why would he have waived the debt of a rich person.

            It should be noted that there is no hint to this qualification of the ruling in the words of the Rambam and the Shulchan Arukh. There is also the difficulty that the law would vary in accordance with the circumstances. It is therefore possible that this position should be understood differently. Thus writes the Ritva in Ketubot 108a:

The reason is that one who enters another person's field [and cultivates it],[6] his improvement is manifest, which is not the case when one is porei’a chovo shel chaveiro, where his improvement is not manifest, as the borrower stands in his property as before, and the fact that the other person freed him from obligation is improvement that is not manifest. And it is possible that even without him, he would not have suffered any harm. This is why he is called in Nedarim: mavri'ach ari. And this is what they said in the Yerushalmi: He can say: I could have appeased him and he would have waived the debt to me. And it answers… This reason alone is not enough, as this is not common, and all the more so that this law applies even when the creditor is pressing, as it says in the Yerushalmi. Rather the main reason is what we wrote, that his improvement is not clear and manifest, and when he derives benefit from his property, he derives benefit from that which is his.

            The Ritva writes that the reason offered in the Yerushalmi is merely an addendum to the primary reason, which is the fact that the porei’a chovo shel chaveiro did not cause any improvement to the debtor's property, and when the debtor derives benefit from his property, he derives benefit from his own property that he acquired on his own. If the payment would have saved him from a certain debt, it would have been possible to say that in any case there is monetary improvement, but in order not to say this it suffices to find some possibility, as far-fetched as it may be – that indicates that there is no saving from a certain debt. The matter is still not entirely clear.

            I wish to cite here the words of the Sefer ha-Terumot (67, 2, 7) in the name of the Ramban: "That which is stated in the Yerushalmi regarding a porei’a chovo shel chaveiro, they found a reason not to obligate [the debtor], because the other person acted without permission." The Ramban writes that there is an attempt here to rely on the far-fetched possibility of waiver, because they did not want to obligate compensation to the porei’a chovo shel chaveiro, since he acted without permission. With this the Rambam provides us with a good explanation of the difference between a porei’a chovo shel chaveiro and a shomer aveida who fulfills a mitzva, and there is no reason not to compensate him for his expenses.[7] It stands to reason that there is a certain type of hostility towards a person who intervenes in someone else's business and repays his debts (for we are not dealing here with charity, in which case he would not be demanding compensation). I will add a few words in this direction below.

            Now we can return to the Tosafot's first answer:

A porei’a chovo shel chaveiro does not rescue him from loss, for the fact that the debtor had to repay his debt is not a loss, for surely he was obligated to him. All he does is save him from distress, and this is considered like mavri'ach ari.

            This answer is based on the fact that had the borrower repaid the loan on his own, it would not have been considered a loss, but rather an actualization of an obligation built in to his economic situation. But it is difficult to understand this answer. Surely the entire exemption of mavri'ach ari, which in itself is difficult to understand, is based on the fact that it is more difficult to obligate compensation when the benefactor does not bring the person gain, but merely removes from him the potential for harm. How then does the Tosafot say that the fact that we are not dealing here with a loss makes it easier for us to exempt him? Surely when he was porei’a chovo shel chaveiro he gave the borrower a real monetary gift, which literally made him richer?

            I find this very difficult. I saw that R. Shimon Shkop (Sha'arei Yosher, sha'ar 3, chapter 25) proposes to compare this to the following case: a person planned to eat a meal and to spend money for that purpose, when another person came and locked him in his room, thus saving him money. Can that other person present the person whom he locked up with a claim that he made him richer by saving him the expense of the meal? Of course, he can't, because when the expense is not regarded as damage, but rather something that is desired and done for a good and beneficial purpose, preventing it is not considered a profit that obligates compensation. The Sha'arei Yosher argues that according to the Tosafot paying back a loan falls into the category of such expenditures, for a person is required to pay his debts, and therefore it is not considered a profit when he is freed from doing so. I do not understand this at all. In the case of the meal, had the person who was locked in the room spent the money, he would have received with that expenditure a contribution to his personal welfare, which in his eyes was worth at least as much as he spent, and therefore the money saved is not a gain from his perspective. But can we say that someone who was saved from paying back a debt did not gain by this? Surely payment of the debt would have contributed nothing to his welfare other than the fact that he is cleared of debt, and now he reaches that objective through the payment made by the other person. The bottom line is that I do not fully understand the Tosafot's reasoning.

            Let us now examine an approach that in a certain sense is the opposite of that of the Tosafot. This is the approach adopted by the Ramban in his novellae to Bava Metzia 30b, in his second explanation of the fact that a shomer aveida is entitled to compensation for his efforts, whereas a porei’a chovo shel chaveiro is not entitled to similar compensation:

For compensation for his efforts is money that reached the hands of the owner of the lost article, and it is similar to a worker who did work for another person without his knowledge, whom we say collects from that other person what he benefited him. But as for a porei’a chovo shel chaveiro and the like, where nothing reaches that other person's hand other than a waiver of his debt and the removal of pressure upon him, he is like a mavri'ach ari. Even though he suffers a loss, the other person is exempt [from compensating him].

            Whereas the Tosafot based the exemption on the fact that repayment of the debt is not a loss but rather the actualization of a built-in fact in the debtor's financial situation, the Ramban bases it on the opposite understanding of a monetary debt and its repayment. We are accustomed to think that a person who borrowed money does not turn thereby into a richer person, for even if he now has 1000 shekel in his hands, the fact that he carries a debt of 200 shekel means that in essence he has only 800 shekel. According to the Ramban, however, this person's wealth is now 1000 shekel, only that he is threatened with loss by his creditor who is pressuring him to repay his debt. Therefore, in a case of porei’a chovo shel chaveiro, the latter has not increased his wealth, but only removed from him a source of damage. This stands in contrast to a shomer aveida, who provided a service to the owner of the property, and is therefore entitled to compensation. This understanding is reflected in other places in the Ramban's writings,[8] but at least in the present context, from the perspective of our economic understanding, it is a little difficult to understand.

            So far we have been following in the steps of the Tosafot in the explanation of our passage, and this has led us to various explanations as to why the porei’a chovo shel chaveiro is not entitled to compensation, as opposed, for example, to the produce owner in our passage. I have not concealed the difficulty that I have with this law according to the various positions that we have examined. Therefore, and without minimizing the theoretical difficulty that remains in place, it is possible that a certain contribution is made by the words of the Ramban that I cited earlier, according to which the Sages searched for reasons not to impose compensation in the case of a porei’a chovo shel chaveiro without having been asked to do so.

It should be noted that were we to obligate the debtor to make compensation, the result from the perspective of the debtor would be a change of creditors: When Reuven repays Shimon's debt to Levi, Reuven replaces Levi in his role as Shimon's creditor. This takes place despite the fact that Shimon borrowed money from Levi, and never agreed to have Reuven as his creditor. This is somewhat problematic – it is very possible that Shimon saw Levi as a fitting creditor, who would fulfill the Torah's command, "You shall not be to him as a creditor" (Shemot 22:24), and does not want Reuven as his creditor. Reuven, for his own reasons, forced himself upon Shimon, and there is something flawed about this.[9]

Rashi and the Ra'avad's understanding of the passage

            As was stated at the beginning of the shiur, the Tosafot veered from the plain sense of the passage, which seems to present two different explanations of the difference between the case of the animal that fell and the case of mavri’ach ari. Other Rishonim disagreed with the Tosafot on this point (see, for example, Talmid Rabbeinu Tam, ad loc.). Since we have already expanded on the whole issue, I will limit myself to a brief consideration of the words of Rashi and the Ra'avad.

            Rashi, in his explanation of the possibility of exempting the beneficiary from the obligation to offer compensation in the case of an animal that fell on another person's produce based on the law of mavri’ach ari, writes that the produce-owner "performed a mitzva" and so he is not entitled to compensation. That is to say, when a person fulfills a mitzva, this is reason not to entitle him to compensation, because he did what he did in order to fulfill an obligation that the Torah cast upon him. A shomer aveida is entitled to compensation for his expenses, but it stands to reason – and so explains the Ra'avad, ad. loc. – that this itself gives rise to the second answer in the passage, that when there is a loss, then even someone who is fulfilling a mitzva is entitled to compensation, because there is no justification that the monetary expenses should fall upon him. He is not entitled to compensation by virtue of the fact that he bestowed benefit, but when this benefit comes at his own expense, there is an obligation to compensate him.

            As for the first answer in the passage, that in the case where the animal falls, it is not with the will of the owner of the crushed produce, the Ra'avad explains that this answer essentially says that we are not dealing here with a mitzva: "Though he is obligated to save it when he is there, his property is not obligated to do so when he is not there." The point is not his knowledge in the sense of waiver, but rather the fulfillment of a mitzva as opposed to an accident that was forced upon him.

            As for the very rationale of a mitzva, we find the opposite approach in the Rishonim, according to which the greater the halakhic basis – whether because of an agreement or because of a mitzva – for the benefactor's action, the greater is his right to collect from the person deriving the benefit. See, for example, the Ritva, Bava Metzia 31b, s.v. matni.

II. You should have made them go past one by one.

How did the animal fall? Rav Kahana said: It slipped in its own water. Rava said: [The rule would apply even] when another animal pushed it down. The one who explains the ruling to apply when another animal pushed it down, would certainly apply it where it slipped in its own water. But the one who explains the ruling to apply where it slipped in its own water [might maintain that] where another animal pushed it down there was negligence, and the payment should be for the amount of damage done by it, as the plaintiff would be entitled to say: You should have made them go past one by one.

            According to Rav Kahana, if a person leads animals in such a way that one can push the other and cause it to fall, he is liable for negligence, and therefore he is liable for shein and regel damage, despite the fact that with respect to them the Torah requires only shemira pechuta (precautions of a lesser degree). The Rishonim raise the objection that the Gemara in Bava Metzia 93b implies that if a shomer chinam leads animals in such a manner, and one fell and died, he is exempt, because he watched over the animal "in the way that people watch over them" – this is the accepted practice and also the way that people conduct themselves with respect to their own animals.

            The Tosafot in Bava Metzia explain that indeed there is a contradiction, and that Rav Pappa – the speaker in Bava Metzia – agrees with Rava in our passage, and not with Rav Kahana.

            The Rif, however, and most of the Rishonim follow him, accepted as law both Rav Pappa and Rav Kahana, and so the Rishonim tended to distinguish between the cases. This distinction, which is found already in the Ramban on Bava Metzia, is offered in various versions by other Rishonim, though it is unclear whether there is any real difference between them. It is interesting that Roshei Yeshiva from the previous century, based on their reading of the answer as it is offered in the Nemukei Yosef on our passage, reached opposite conclusions regarding a question that greatly occupied the Yeshiva world as to the foundation of liability for the damage caused by one's property.

            As we have already had the opportunity to mention, the Acharonim investigated the foundation of liability for the damage caused by one's property, whether it is based on the obligation cast upon a person to watch over his property so that it not cause damage, and the negligence of one who does not properly watch over his property; or perhaps the Torah assigns liability to anyone whose property caused damage, unless he watched over it as is expected, in which case his watching exempts him, based on the law that the Torah bestows exemption in a case of ones (unavoidable accident) or something similar. As stated, the Acharonim disagree about the following words of the Nimukei Yosef (p. 24b in Alfasi):

The Re'ah answered in the name of his teacher the Ramban, that even though a shomer chinam is exempt when he fails to watch over the animal, where people commonly act in that manner with respect to their own property…, nevertheless regarding damage, even when a person watches over his animal in the way that people watch over their property, since at that time he failed to watch over the animal, he is liable for the damage that it caused, for whenever it causes damage without being watched over he is liable, even at those times that people ordinarily do not watch over their own property.

            The answer cited here in the name of the Ramban states that a distinction must be made between the shomer chinam's liability toward the owner and a person's liability for damage caused by his property. Regarding a shomer chinam, it suffices that he did not act with negligence, because he watched the animal in the way that people watch over their own property, and was only not careful with it in a context in which people are not careful with respect to their own animals. On the other hand, a person is always liable for the damage caused by his animal unless he actually watched over it and the damage was caused despite his watching over the animal. The watching in question is watching at the level of a shomer chinam (shemira pechuta), but there are situations in which a shomer chinam is exempt even though he did not even perform shemira pechuta, because in such situations people do not ordinarily watch over their own property.

            Rav M.M. Epstein, author of the Levush Mordekhai (no. 25), proves from the words of the Nimukei Yosef that liability for the damage caused by one's property is not based on the person's negligence with respect to the obligation to watch over his property. This is because in this case there is no negligence, and nonetheless there is liability for damage caused by one's property. According to him, the liability is based on the very ownership of the property that caused the damage, and the only way to exempt oneself is to actually watch over it, in such a way that the owner can be defined as having suffered an ones. In our case, it cannot be said that the owner actually watched over the property, and therefore he did not suffer ones, and liability can be cast upon him even though he was not guilty of negligence.

            However, Rav I.Z. Meltzer[10] (Even ha-Ezel, Hilkhot Nizkei Mamon 1:1, no. 14) strongly rejects this proof. Liability for shein and regel damage is in fact based on negligence with respect to the requisite level of precaution, i.e., precaution of a lesser degree. The Torah casts this level of watching on a person at all times, and when he does not live up to it, he is liable to make payment. In contrast, a shomer chinam's obligation to watch over the entrusted property is created in the wake of the agreement into which he entered with the owner, and a shomer chinam's usual agreement with the owner is that he will only watch over the property at times when people ordinarily watch over their own property. At those times that they do not watch over their own property, there is no obligation to watch over the property. This is the reason that he is not defined as negligent. (R. Meltzer's understanding is based on the way the argument is presented in the novellae of the Ramban and the Ritva on the passage in Bava Metzia.)

Sources for the Next Shiur (no. 8)

            In next week's shiur we shall deal with the law that in the case of shein damage, the valuation of the damage is made in conjunction with the field. Learn the Gemara, from the top of p. 58b to the Mishna on p. 59b (or at least until 59a, "hakhi nami be-shishim"). See also Bava Kama 47a, "ve-amar Rava: Ein shamin… sheimana lakh," and Tosafot, s.v. iy. Think about the words of Talmid Rabbeinu Tam, there:

Rava said: [When an ox gores a cow and causes miscarriage] the valuation will not be made for the cow separately and for the calf separately. My teacher was in doubt whether we only say this about a cow and a calf belonging to one person, or whether the same law applies when the cow belongs to one person and the calf belongs to another person. Similarly you find in a case when one causes damage to another person's field, if he damaged a bed belonging to Reuven in a field belonging to Shimon, do we valuate the bed separately as if there were nothing around it, or do we valuate it in conjunction with the field?

(Translated by David Strauss)

 

 


[1] Cited in Tosafot, Ketubot 108a, s.v. ha, and in Talmid Rabbeinu Tam, on our passage.

[2] I am not sure how to understand the component of "mi-da'ato" according to the approach of the Tosafot. Tosafot Talmid Rabbeinu Tam (ad loc.) emphasizes (not in the approach of Rabbeinu Tam, but in that of the Tosafot) that even when the person repaying the debt clearly states that he does not waive compensation, but rather he expects to collect the sum from the debtor, there is no obligation to compensate him, since he did not improve the debtor's property, but merely prevented a lion from causing him damage. That is to say, the exemption is valid even in a situation where there is a loss and it was "mi-da'ato" in the sense of his consent. We must still explain our passage, and if so there is significance to the fact that the payment was made "mi-da'ato" even though it is clear that there was no waiver.

[3] Compare with Ra'avad, ad loc., who writes: "Were it not for the produce, it would have died."

[4] It would have been possible to assess the value of the danger from which the owner of the flock was saved according to various factors, but Halakha does not do this.

[5] Exploiting the possibility that other people might have repaid the debt is strange: The argument is that they would have been prepared to repay the debt, but without demanding compensation. For if so, they can save the debtor from the new creditor – the person who repaid his debt without his knowledge.

[6] We learned in Bava Metzia 101a that one who enters into another person's field and improves it without permission is generally entitled to compensation for his expenses that do not exceed the improvement. The Ritva wishes to explain why one who is porei’a chovo shel chaveiro is not entitled to compensation for having improved, as it were, his property – turning it from mortgaged property to property whose mortgage is paid up.

[7] So writes the Ramban in his first answer in his novellae to Bava Metzia 30b: "Wherever he is not bound to drive away the lion, even though he suffers a loss, the other person (whose property was saved when the lion was chased away) is exempt; since he (the person who chased away the lion) acted on his own, he waived [the loss]. Alternatively, we incline towards leniency, as they said in the Yerushalmi (Ketubot 13:2): 'I could have appeased him and he would have waived the debt to me.' But where he is bound to drive away the lion, even though he acted on his own, since he suffered a loss, the other person is liable to pay. For the Rabbis did not cast upon him an obligation to drive away the lion in such a way that he himself will suffer a loss."

[8] See, for example, Milchamot HaShem, beginning of the fourth chapter of Bava Kama and Chidushei ha-Ramban, Kiddushin 8b, s.v. maneh, and s.v. u-be-mashkon.

[9] It is interesting to note that the commentators on the Shulchan Arukh, 128 (see Sema no. 2, and Shakh no. 2) compare the law governing porei’a chovo shel chaveiro to the law governing one who sells a bill of debt. In an abstract sense we are dealing with two different phenomena: in once case we are dealing with repayment of the debt, while in the other with its sale. In practice, however, there is a great similarity between the two cases – the lender gets his money back from another person, and the person who made that payment wishes to become the debtor's new creditor. The Halakha allows for the sale of bills of debt, but the validity of that sale is exceedingly limited in light of Shmuel's ruling (Ketubot 86a) that allows the original lender to waive the debt to the borrower even after the sale. It is possible that some of the considerations that were raised here also apply to the laws governing the sale of bills of debt.

[10] In addition to being the grandfather of Rebbetzin Amital, R. I.Z. Meltzer was also the brother-in-law of R. M.M. Epstein.