המגדל כלב רע בביתו

Bava Kamma 15b, 16b, 23b,78b and 83a.

Nitzan Shimoni, an 8-year-old boy, was attacked and maimed by a pet Dalmatian while playing at his friend’s house in Ashkelon, Israel. In the subsequent court case, the magistrate acquitted the dog owner of criminal negligence. The dog owner was not at fault for failing to leash and muzzle the dog, ruled the magistrate, because a Dalmatian, by its nature, is a docile dog, not a vicious dog. There is no legal requirement, ruled the magistrate, to leash and muzzle a small, docile and playful dog.

The Be’er Sheva District Court, on appeal, disagreed and convicted the dog owner of criminal negligence. Irrespective of whether the dog had a tendency to attack or not, the dog owner ought to have anticipated the danger and taken the precautionary measures of leashing and muzzling the dog before allowing children into the house.

The debate between the two courts is an old one, discussed thousands of years before by the Talmud in Bava Kamma.

Are all dogs inherently vicious?  Is there such a thing as a tame dog? Is one allowed to keep a vicious dog in one’s home? What is the standard of care to be exercised by a dog owner?

For purposes of liability, the Talmud distinguishes between a מועד, a muad, an animal that by its nature habitually attacks, and a תם, tam, an animal known to have attacked on not more than three occasions, even though it is not a predator by nature.

According to the Talmud, the owner of a tam animal has no obligation to guard it and, accordingly, should not be held liable to pay compensation for any damage it caused if left unguarded. Nevertheless, the Torah, in an effort to encourage people to prevent possible harm, obliges the owner of a tam animal that attacked, to pay קנס, kenas, a fine, equal to half the amount of damages it caused. The owner of a muad, however, does have an obligation to guard it and is liable to pay full compensation to the victim of the attack.

How does the Talmud classify a dog, as a tam or as a muad? Does the Talmud distinguish between dogs that are vicious by nature and those that are tame by nature?

An examination of the Talmudic sources leaves one with no clear answer.

“From where do we learn that a person should not raise a vicious dog in his house?” asks Rabbi Natan. “From the verse, “You shall not place blood in your house.” This statement implies that there is a strict standard of liability with respect to a vicious dog, but it says nothing about a tame dog.

“The wolf, the lion, the bear, the leopard, the cheetah and the snake are by their nature considered muad,” rules the Mishna. Conspicuously absent from this list, is the dog, even the vicious dog. “A person may not raise a dog,” rules another Mishna “unless it is bound with a chain.” The Talmud, as explained by Rashi, qualifies the above statement and rules as follows, “A person may raise a dog in his home to protect against potential assailants but should leash the dog during the day and may unleash it at night when protection is required.” Here too, the Mishna makes no differentiation between a tame dog and a vicious dog.

The confusion is equally apparent in the poskim. The Rambam, following the above cited passage in the Talmud, rules, rather like the District Court of Be’er Sheva, that all dogs must be leashed during the day, irrespective of whether they are of a vicious or tame nature. The Shulchan Aruch, and the Tur, however, rule that only vicious dogs must be leashed during the day. All agree however, that even a vicious dog may be kept unleashed for protection at night.

In another case of a tame dog that attacked and injured a person in the street, Rabbi Avraham Dov Levine, president of the Jerusalem Rabbinical Court, reached the same conclusion as the Ashkelon Magistrate court above. A tame dog, he ruled, is not a muad and therefore, the owner is not liable to pay compensation. However, based on the dictum of Rabbi Natan, quoted above, the court ruled that the dog should be removed from its owner.

It should be noted that the Israel secular civil law of torts holds a dog owner strictly liable to compensate the victim for all damages caused, irrespective of the nature of the dog. The rabbinical courts however, following the law of the Talmud and poskim, differentiate between a tam and a muad.

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].