Bava Kamma - Daf 20
- Machlokes how to assess מה שנהנית
The Mishnah taught that for shein damages in רשות הרבים, one pays the benefit the animal derived. Amoraim dispute the amount paid. Rabbah says: דמי עמיר – he only pays the value of straw for the amount eaten, even if the animal ate (relatively expensive) barley, because the owner can say he would have fed the animal straw (and only benefited that amount). Rava says: דמי שעורים בזול – he pays the value of barley when it is inexpensive. Rashi defines this at two-thirds the normal market price for barley. Meforshim explain that we assume anyone would be willing to feed his animal barley at such a discount. A Baraisa is brought in support of each opinion, and the second Baraisa adds that since we evaluate payment based on what is appropriate for the animal, לפיכך אכלה חטין או דבר הרע לה פטורה – therefore, if it ate wheat, or anything bad for it, it is exempt.
- הדר בחצר חבירו שלא מדעתו, זה נהנה וזה לא חסר
Rav Chisda related to Rami bar Chama a discussion which he had missed: הדר בחצר חבירו שלא מדעתו – If one lives in his friend’s yard without his knowledge, צריך להעלות לו שכר או אין צריך – does he have to pay him rent or not? The Gemara clarifies the case: בחצר דלא קיימא לאגרא – with a yard which is not for rent, וגברא דעביד למיגר – but a person who usually rents. It is thus a case of זה נהנה וזה לא חסר – this one benefits and this other one does not lose. Can the one living there say: מאי חסרתיך – “What loss have I caused you by staying there,” since he does not rent it out anyway? Or can the owner say to him: הא איתהנית – “You have benefited by staying in my yard,” since he would have had to rent another residence. Rami bar Chama suggested a proof from our Mishnah, which obligates paying for the benefit that the animal derived from the produce it ate. Rava marveled at the Divine assistance Rami bar Chama enjoyed, that Rav Chisda accepted a proof which is not analogous, since in the Mishnah’s case the owner of the produce sustains a loss. Rami bar Chama held that one who leaves produce in רשות הרבים is essentially abandoning it and is not sustaining a loss.
- One who builds a stone of hekdesh into his house commits me’ilah after dwelling under it
Rav Kahana quoted Rebbe Yochanan as saying one does not pay rent for זה נהנה וזה לא חסר. Rebbe Abahu quoted Rebbe Yochanan as saying he does pay rent, but Rav Pappa explained it was based on an inference: a Mishnah teaches that if one takes a stone or beam from hekdesh and builds it into his house, הרי זה לא מעל עד שידור תחתיה שוה פרוטה – he does not commit me’ilah until he dwells under it a perutah’s worth of dwelling. Rebbe Abahu, sitting before Rebbe Yochahan, quoted Shmuel saying that this Mishnah proves that one must pay rent for living in his friend’s house without his knowledge. The benefit was derived with hekdesh’s “knowledge,” and does not cause it a loss, yet he commits me’ilah. This proves it is considered a monetary benefit received. Rebbe Abahu interpreted Rebbe Yochanan’s silence as agreement, but the Gemara explains that he ignored it because the proof is flawed, based on Rabbah’s statement: הקדש שלא מדעת כהדיוט מדעת דמי – benefiting from hekdesh without its knowledge is like benefiting from an ordinary person with his knowledge. Tosafos explains this to mean that the law of me’ilah is akin to one who protests in advance not to allow using his property without payment.
