Sunday, 19 June 2016

Bava Kamma 19: Typical and Atypical Behaviours and Related Damages

Are damages done by pebbles, tzrorot, unavoidable?  Or do they require a forewarning, ada'ah?  The answer to this question requires philosophical inquiry.  Sumachos argued that the action or the motion created by the pebble is simply an extension of the animal's own action.  It is the same thing to damage a vessel with ones foot or with a pebble kicked by one's foot.  This argument suggests that the rabbis understood the Newton's much later laws of thermodynamics, whereby energy cannot be created or destroyed; instead, it simply changes form.  If so, only half-damages are paid.  But if we understand this same action as a similar to Trampling, full damages would be paid.

Is damage caused by the force of a force of an animal the same thing as damage cased by the force of an animal?  Sumachos argues that damages caused by the force of a force of an animal are paid half of the damages incurred.  What about walking on a road where it is impossible to walk without forcing pebbles off of that road?  If those pebble do damage, does the animal's owner pay half-damages?  We are reminded that whether or not one pays half damages has nothing to do with whether or not damages are done in the public or private settings.  

A great set of questions:

  • what if an animal causes damages by wagging its tail?  This is a typical behaviour and thus the owner would half damages for damage done
  • does that mean that an owner should hold the tail - or for that matter, the horn - of his animal to prevent damage?  Goring is different; it is an atypical behaviour
  • what if an animal causes damage by its erect penis knocking something over?  This is similar to goring rather than trampling or eating.  Trampling must be a typical behaviour, and this behaviour is only done when the animal is in heat. Eating is a pleasurable behaviour, and the animal derives no pleasure from this act; it is biological arousal.   This act is similar to goring.
Before beginning a new Mishna, we learn a bit more about yesterday's chicken: when a string is tied to the leg of a chicken and that string causes damage to another's property, what is paid in damages?  the rabbis teach that if the chicken became entangled in the string, the owner should pay half-damages in the category of Pit.  If the owner tied the string to the chicken, the owner pays full damages in the category of Pit.  Why pit? Because the owner failed to safeguard the 'pit'.  This sort of neglect leads to the payment of full damages.

A new Mishna teaches us about 'tooth' in the category of Eating.  An animal that eats food need not be forewarned; this is its nature.  But an animal that eats clothing or vessels - or eats in the public domain, the rules are different.  If the animal is deriving pleasure from eating, its owner pays both for the cost of the food eaten and for the benefit (pleasure) that that food gave to the animal.

The Gemara discusses when an owner should pay full damages and when he should pay half damages for what his animal eats.  We are told that when an animal is on the edge of the public sphere, half damages are paid.  When an animal eats at the entrance of a store, full damages are paid.  And when an animal eats from inside of a store, payment is made for the benefit that the animal derived.  The rabbis question what is typical and what is atypical behaviour for an animal and how that might affect payment.  Is it typical for a dog to eat oil?  For a donkey to eat bread and then break the bread basket?  Finally, is it typical for a domesticated animal to eat meat?  Roasted meat?  While sitting at the dinner table?

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