QUESTION: The Gemara discusses the Halachah of "Mechazeres," an animal that
turns its head while walking in Reshus ha'Rabim and eats from food that is
resting in Tzidei Reshus ha'Rabim or in someone's private field adjacent to
Reshus ha'Rabim. According to the Gemara's first version, Rav and Shmuel
argue over this Halachah. Rav maintains that the owner is Chayav, even
though the animal is standing in Reshus ha'Rabim. Shmuel maintains that the
owner is Patur, since the animal is in Reshus ha'Rabim. Rav and Shmuel both
agree that one is Chayav for damages that the animal causes if the animal
leaves the center of the street in Reshus ha'Rabim and entirely enters the
Tzidei Reshus ha'Rabim.
According to the Gemara's second explanation, Rav and Shmuel both agree that
the owner is Chayav for "Mechazeres." The case about which they argue is
where the animal ate food that was resting in a part of someone's property
which he designated for public use.
What is the reason why one should be Chayav for damages caused by his animal
that turns its head and eats food in the Tzidei Reshus ha'Rabim? We know
that one is Chayav for Shen only when it is done in the Reshus of the Nizak,
the private property of the victim. Tzidei Reshus ha'Rabim is not the
private property of the Nizak!
RASHI in the Mishnah (19b, DH mi'Tzidei) explains that the owner is
obligated because of Keren. However, why should this Halachah be included in
our Mishnah, which is discussing Shen, and why should the Mishnah rule that
the owner pays "Mah she'Hizikah," which implies that he pays Nezek Shalem?
Also, why should Rav and Shmuel agree that if the entire animal is standing
in Tzidei Reshus ha'Rabim, the owner is Chayav? Why should this be
considered Keren?
On the other hand, if the damage of "Mechazeres" is considered Shen, then
why should the owner be Chayav if the damage is not done in the Reshus
ha'Nizak, as we asked above? In addition, why should "Mechazeres" be any
different from the case of an animal that eats food from atop another animal
in Reshus ha'Rabim, for which Ilfa (20a) teaches that one is Chayav? Why
does Shmuel here say that one is Patur? (The Gemara on 21b says that Shmuel
can agree with Ilfa's ruling.)
Third, what is the difference between the case of "Mechazeres" and the case
of "Misgalgel" (20a)? Rebbi Zeira asks there what the Halachah is in a case
of an animal standing in Reshus ha'Rabim that rolls a bundle of grain from a
Reshus ha'Yachid into Reshus ha'Rabim. Is the owner Chayav because the
animal rolled the food from Reshus ha'Yachid, or is he Patur because it ate
the food in Reshus ha'Rabim? According to Shmuel who says that "Mechazeres"
is Patur, even if we take into account where the animal was standing (i.e.
Reshus ha'Rabim) at the time that it removed the food from Reshus ha'Yachid,
the owner should still be Patur, since only the animal's head was in Reshus
ha'Yachid, and that is a case of "Mechazeres," according to Shmuel! (GILYON
in Shitah Mekubetzes)
ANSWERS: Rashi seems to contradict himself with regard to which Av Mazik is
involved in the act of "Mechazeres." In the Mishnah (19b), Rashi explains
that when the animal eats from Tzidei Reshus ha'Rabim, it is an act of
Keren. This implies that he understands "Mechazeres" to be a form of Keren,
and that it is not the normal way that an animal acts. However, Rashi (21a,
DH Kuli Alma Lo Pligi) explains that those who rule that one is Chayav for
"Mechazeres" explain that the animal should not have turned its head to the
side (because the area to the side is not a public area). Since Rashi writes
that the animal "should not" have turned its head, rather than "it is
unusual" for the animal to turn its head, he implies that "Mechazeres" is
not Chayav because of Keren, but because of Shen.
In TOSFOS and TOSFOS RABEINU PERETZ we can find the answer to the apparent
contradiction. They explain that Rashi wrote two different explanations for
this Sugya. In his first explanation (Mahadura Kama), Rashi explained (both
in the Mishnah, and on 21a) that one is Chayav for "Mechazeres" because it
is a form of Keren. This initial explanation of Rashi is preserved in the
words of Rashi on the Rif, and in the words of RABEINU YEHONASAN MI'LUNIL
(21a). Rashi later changed his mind and decided that "Mechazeres" is a case
of *Shen*, and he modified his commentary (on 21a) accordingly. (There are a
number of instances in Bava Kama where parts of Rashi's Mahadura Kama and
Mahadura Basra appear together in our text of Rashi; see Insights to 18:1.)
We thus have two ways of learning the Sugya of Mechazeres, as follows.
(a) According to Rashi's first Lashon, "Mechazeres" is a form of Keren,
because it is unusual for an animal walking through Reshus ha'Rabim to put
its head into an adjacent Reshus ha'Yachid. It seems from Tosfos (DH
uv'Mechazeres) and other Rishonim that according to this explanation of
Rashi, even when the entire animal enters Tzidei Reshus ha'Rabim, the owner
is still Chayav because of Keren, and not because of Shen. Just as it is
unusual for an animal to put its head into an area adjacent to Reshus
ha'Rabim, it is even more unusual for an animal to leave Reshus ha'Rabim
entirely. Therefore, Shmuel agrees that when the animal stands entirely in
Reshus ha'Rabim and eats there, the owner is Chayav because of Keren. (The
ROSH, however, as cited by the Shitah Mekubetzes, explains Rashi's words,
with regard to an animal that enters Tzidei Reshus ha'Rabim, differently.)
Similarly, according to the Gemara's second version of the Machlokes between
Rav and Shmuel, that says that they argue about a person who designates part
of his property for the use of the public, the argument revolves around
whether it is considered unusual for an animal to enter such an area that is
adjacent to Reshus ha'Rabim (and is, therefore, Keren), or whether it is not
unusual (and is, therefore, Shen).
According to this approach, it is clear why one is Chayav for "Mechazeres"
in Tzidei Reshus ha'Rabim, even though the damage was not done in the
personal property of the Nizak (because one is Chayav for Keren and not
Shen). It is also clear that our Gemara has nothing to do with the question
of Ilfa (regarding an animal that stretched its neck and ate off of the back
of another animal) nor with the question of "Misgalgel," since the Gemara is
discussing obligations of Keren and not of Shen.
Why, though, does the Mishnah discuss obligations of Keren in the midst of
the Halachos of Shen? The answer is that it discusses Keren for the same
reason that it discusses the Halachah of an animal that eats Kesus or Kelim;
the Mishnah limits the applications of the Chiyuv of Shen. When the Mishnah
says that one must pay "Mah she'Hizikah" with regard to an animal that eats
from Tzidei Reshus ha'Rabim, it does not mean that the owner pays in full,
but that he pays *in proportion* to the full damage (i.e. either Chatzi
Nezek, or Nezek Shalem), and not just what it benefited (see Insights to
20:1).
(b) The other Rishonim, as well as Rashi himself in his Mahadura Basra,
chose to explain that one is Chayav for "Mechazeres" because of Shen and
pays Nezek Shalem. Why, though, should one be Chayav for "Mechazeres" if the
animal eats an object in Tzidei Reshus ha'Rabim? The animal is standing in
Reshus ha'Rabim!
They explain that Rav and Shmuel argue whether the exemption from paying for
damages of Shen in Reshus ha'Rabim depends on where the animal is standing,
or where the food that it eats is resting. Rav maintains that as long as the
food is in a Reshus ha'Yachid, the owner of the animal is Chayav. Shmuel
maintains that since the owner of land adjacent to Reshus ha'Rabim realizes
that animals will be walking near his property and can easily reach over and
eat food that is on the edge of his field, he should not keep his food
there. Since people do not want to limit the use of Reshus ha'Rabim, they
forego claims for any damages to objects that are either in Reshus ha'Rabim
or that are in parts of Reshus ha'Yachid that are adjacent to Reshus
ha'Rabim (see Rosh 1:1). (Rav does not accept this reasoning, because he
holds that people who walk their animals in Reshus ha'Rabim *are*
responsible for preventing their animals from even putting their heads into
fields that are adjacent to Reshus ha'Rabim.) Even Shmuel agrees that the
owner is Chayav if the animal entirely enters the Reshus of the Nizak, or
Tzidei Reshus ha'Rabim, because that is the normal case of Shen in Reshus
ha'Nizak.
If the Chiyuv of "Mechazeres" is because of Shen, then why is the owner of
the animal Chayav when his animal eats from Tzidei Reshus ha'Rabim? At most,
it should be like when an animal eats from Chatzer ha'Shutafin, in which
case some Amora'im maintain that he is Patur (see 14a)!
Tosfos here explains that the Tzidei Reshus ha'Rabim in front of every house
that borders Reshus ha'Rabim is used exclusively by the owner of that
particular house.
Tosfos Rabeinu Peretz explains that when one person places fruit in a
particular part of Tzidei Reshus ha'Rabim, it becomes prohibited for any
other person to bring his animal or food there. Therefore, that area is like
the Reshus ha'Yachid of the Nizak as long as his food is there. (See
Insights to 14a, in the name of the NIMUKEI YOSEF.)
Why is this case different than Ilfa's case of an animal that reaches up and
eats from the back of another animal in Reshus ha'Rabim? The reason it is
different is because, in the case of "Mechazeres," the animal was eating
food that was on the same level as the food in Reshus ha'Rabim. Therefore,
people expect such damages to occur more frequently. Therefore, a case of "M
echazeres" might be more lenient than an animal that eats from the back of
another animal. On the other hand, the case of "Mechazeres" might be more
stringent than the case of an animal that eats from atop another animal in
Reshus ha'Rabim, because in the case of "Mechazeres," the animal is leaving
the main walkway of Reshus ha'Rabim and eating from the side.
How is the argument between Rav and Shmuel, according to the Gemara's first
version, different from the question of "Misgalgel" (20a)? There, Rashi
explains that the question of "Misgalgel" is if an animal standing in Reshus
ha'Rabim takes an item from Reshus ha'Nizak and eats it in Reshus ha'Rabim,
do we look at the Reshus from which the item was taken, or do we look at
where the animal ate the item? It seems clear from the Gemara's question
that even if the animal is standing in Reshus ha'Rabim and puts its head
into Reshus ha'Yachid to take an object from there, we consider it as though
the animal took the object from Reshus ha'Nizak, since its head was in
Reshus ha'Nizak when it removed the object. We do not consider the animal to
be taking an object from Reshus ha'Rabim because its feet are in Reshus
ha'Rabim at the time. This seems to contradict Shmuel, who says that one is
Patur for "Mechazeres" because we look at the place where the animal's head
is!
The GILYON cited by the Shitah Mekubetzes answers that Rebbi Zeira, who
questioned what the Halachah would be in a case of "Misgalgel," holds like
the second version of our Gemara regarding the Machlokes between Rav and
Shmuel. According to that version, even Shmuel agrees that we look at where
the head of the animal is, and not where the feet are.
Alternatively, the question of "Misgalgel" does not involve an animal that
puts its head into Reshus ha'Yachid and removes an object from there, but
rather it involves an animal that entirely enters Reshus ha'Yachid and takes
an item out to eat in Reshus ha'Rabim.