May the learning of these words of Torah serve as a merit le’iluy nishmat Menachem Mendel ben Harav Yoel David Balk a”h.
Bava Kamma 9
An Elephant as the Wall of a Sukkah?
Our Gemara teaches that one who gave an ox to a child or imbecile to watch would be liable for the damage the ox causes. The Gemara explains that this ruling is true even when the owner gave the child a tied ox to watch. The owner cannot claim, “I handed a watched animal to the child.” It is the way of the animal to get out. Rashi explains that animals, such as oxen, resist being bound. It is normal for them to seek to escape and extricate themselves from being tied. Therefore, the owner should have realized that the ox would get out of the knots he tied it in, and as a result, he was negligent in hoping that a child or imbecile would restrain or prevent the animal from damaging. Tosafot disagree with the explanation of Rashi. Tosafot explain the Gemara to mean that a child would untie the ox if he was given the ox to watch. An ox would not get out on its own from the knots that restrain it. However, a child watchman would likely release the ox. As a result, the owner who gave the ox to the child was negligent for he should have expected the animal to be released, and he is responsible to pay for the damage. This has a ramification to the laws of sukkah.
The Tur rules that one may not make a sukkah with walls made of tied sheets. The knots might come undone. The owner of the sukkah may not realize that his walls are no longer taut and tight. As a result, he will end up sitting in a booth that would not be a kosher sukkah. However, the Tur writes that one may tie up an elephant and use the bound animal as one of the walls of the sukkah.
Taz, following the view of Rashi, found this law difficult. If Tur worried that a tied sheet might come undone, he should certainly have worried that an elephant would escape his shackles. Did not Rashi teach in Bava Kamma 9 that it is the way of an animal to try and escape his bounds? That is why when an owner of an ox gives a tied bull to the child to watch he is responsible for the damage, for he should have expected the animal to escape and cause harm. If the elephant will likely get out of his ropes, the elephant wall should be treated the same as a wall of tied sheets. Therefore, Taz suggests a novel thought. Perhaps the Tur only enjoined tied sheets as sukkah walls when one intended to use such sheets for all four walls. Then, there is a fear that some of the knots might come undone over the course of the festival and the sukkah owner would not notice. The same would hold true for a bound elephant. One could not tie elephants and use them on all four sides of the sukkah as walls. Tur only permitted a bound elephant if one was using the elephant on one side as a wall and the other sides have proper walls. Taz feels that the Tur would allow one to use tied sheets as one wall for the sukkah so long as the other sides had proper and correct walls. Elya Rabbah, however, agreed with Tosafot. He explained that the Tur ruled not to use tied sheets, for the knots on tied sheets do get undone. However, he permitted using a tied elephant, for the elephant would not escape on his own. In Bava Kamma 9 we were worried that the child would untie the animal. In the case of the sukkah, there was no child standing unattended with the tied animal. As a result, the animal will not get out of its ropes on its own. According to Elya Rabbah, a bound beast can serve as a sukkah wall, while tied sheets might unravel, and as a result they should not be used as a sukkah wall. (Me’oros Daf Hayomi)
Bava Kamma 10
Our Gemara discussed a case of five people sitting on a bench, then a sixth person, who was heavily overweight, came and sat down as well and the bench broke. The Gemara taught that only the last person was responsible to pay for the broken bench. The Gemara asked: without the first five, the bench would not have broken; therefore, everyone should have been held responsible? The Gemara answered that the case of this ruling was when the last man held the others down. He did not allow them to get up. As a result, he was the one solely responsible for the bench cracking. It thus emerges that if the last man would not have held the others down, all would be responsible. We would tell the first five: you should have gotten up once you saw the big man trying to join you on the seat. Since you did not get up, you contributed to the breaking of the bench and are equally liable.
By Rabbi Zev Reichman