May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel Ben Harav Yoel David Balk a”h.
This week we learned Bava Kamma 39. Here are some highlights.
He trained a pigeon to steal, the pigeon damaged in the act, is the trainer liable for full damage?
Rav Zilberstein dealt with the following question. He was told about a bad man who trained a pigeon to steal diamonds. The man had taught the pigeon to fly to the shop where diamonds were polished and cut, and then to swoop down and swipe envelopes filled with diamonds and bring them back to him. What would the law be if the pigeon snagged an envelope of diamonds but then tore open the paper and caused some of the diamonds to be lost. Would the trainer have to pay the full cost for the diamonds his trained pigeon ruined?
Rav Zilberstein suggested that this case would be subject to a dispute between Rambam and Ra’avad. The Mishnah on Bava Kamma 39 teaches that a stadium ox would not be put to death. If someone trained an ox to gore and fight with a gladiator in a stadium, if the ox killed the sportsmen, the ox would not be put to death.
Rambam (Hilchos Nizkei Mamon 6:5) writes: “Oxen that entertain people and are trained to gore each other are not considered mu’adim to each other. Even if they kill a person they are not put to death for the verse stated, “Ki yigach—When (an ox) will gore,” “v’lo sheyagichuhu—and not when others make it gore.” Ra’avad noticed that Rambam went further than the Mishnah. The Mishnah discussed the law of putting a killing ox to death. Rambam extended it to the law of mu’ad. Ra’avad challenges the ruling of Rambam. He points out that the Gemara taught that an ox can become a mu’ad to gore in response to hearing the shofar sound. If Rambam is right, such an animal should not be a mu’ad for it is others who are making him gore. Secondly, the Gemara taught that if someone incites a dog to bite, the owner of the dog is responsible for he should have watched his dog from getting incited. Why is there an obligation in such a case? According to Rambam, let it be exempt for others made the animal act and the animal did not act on its own!
Ohr Sameach and Griz defend the views of Rambam. They teach that Rambam feels a mu’ad is an ox that gores from its own habits. If the deeds of a trainer are needed to make it damage, Rambam feels it is others making it gore, it has not become habituated, and it would have the status of tam with a liability merely of chatzi nezek.
It emerges from Ohr Sameach and Griz that a trained animal is different from an animal who reacts negatively to certain stimuli. An animal that responds to loud noises or incitement with goring might become a mu’ad. It has developed a nature to damage in certain settings. There is full payment for the damage it causes by its natural acts. However, a trained animal is always dependent on the trainer and his reinforcement of the behavior. Remove the trainer and the nature of the animal will not continue with performing the tricks. Rambam feels a trained animal is never a mu’ad. Ra’avad disagrees with Rambam. He feels that a trained animal is a mu’ad.
Rav Zilberstein felt that in the case of the pigeon trained to seize envelopes with diamonds, according to Rambam the owner of the pigeon who is also its trainer would have to pay half damages for the damage. It is never the nature of a pigeon to seize envelopes. His trainer is making him do it. As a result, he is a tam with half-damage liability. However, according to Ra’avad, he would have to pay full damages. (Chashukei Chemed)
An orphan is very wild, may the community spend his assets to hire a tutor to guide him?
There was an orphan who was very wild. He misbehaved all the time. He would even damage property. The State put him into an institution that tried to reform his behavior. This child had assets that he had inherited from his deceased father. A question was brought to Rav Zilberstein. Could the religious court take some of the assets of the orphan and use them to hire a tutor? The tutor would teach the child Torah. Hopefully, he would guide the young man to the ways of Torah observance and good character.
Rav Zilberstein initially suggested that a comment of the Nimukei Yosef on our Gemara might lead us to think that the court may not spend his funds for such an expense. Our Gemara teaches that if an orphan’s ox gores three times, beit din would hire an apotropis, executor, to watch the ox to prevent it from damaging. If it would damage, even with his watching, then as a mu’ad there would be full liability. Nimukei Yosef asks a powerful question. Elsewhere in Bava Kamma we have learned that if a child damages with his hands or with a fire, he need not pay. Why wouldn’t the court appoint an executor to watch the child to prevent him from damaging? If they would appoint an apotropis there could be liability if there was damage.
Nimukei Yosef answered that it is not doable for the executor to watch the child constantly. If the court would appoint an apotropis to watch the actions of the orphan, the orphan might end up losing huge amounts of money.
Ultimately, Rav Zilberstein was of the opinion that the court should use his funds to hire the tutor for the orphan. The tutor is not going to watch the child from damaging. Watching an orphan from damage may not be a benefit for the child since it will end up costing large amounts of money. A tutor is different. The tutor will help the orphan by teaching him Torah. The tutor will give him life. The Gemara in Gittin (52a) teaches that a court-appointed apotropis may spend the wealth of the orphans to buy for them an object of mitzvah such as a lulav on Sukkot. Therefore, it is certainly a mitzvah for the community to spend the orphan’s money for a teacher who will teach him Torah, which is the key to many, many blessings throughout life. (Chashukei Chemed)
By Rabbi Zev Reichman
Rabbi Zev Reichman teaches Daf Yomi in his shul, East Hill Synagogue, 255 Walnut Street in Englewood, NJ.
