Bava Kamma - Daf 21
- ושאיה יוכת שער, ביתא מיתבא יתיב
Rav Sechorah said in the name of Rav Huna, quoting Rav, that one who lives in his friend’s yard without his knowledge does not have to pay rent, because of the passuk which says: ושאיה יוכת שער – and through desolation the gate is broken, meaning an uninhabited house is destroyed by demons. The one residing there thus benefited the owner by inhabiting it, keeping away these demons. Mar bar Rav Ashi reported seeing this demon in a house, ומנגח כי תורא – and it was battering it like a bull!
Rav Yosef gave a different reason not to pay rent: ביתא מיתבא יתיב – an inhabited house remains habitable, because those residing there see and tend to its needs. A practical difference between the two reasons is: דקא משתמש ביה בציבי ותיבנא – where [the owner] was using it to store wood and straw. This is sufficient to keep away demons, and the one residing there does not benefit the owner according to the first reason, but does according to Rav Yosef’s reason.
- מחזרת
The Mishnah on Daf 19b taught that if an animal ate from the sides of the street, it is liable (and not considered damage in רשות הרבים). Rav says: ובמחזרת – This is even where it turns its head to reach the food on the side of the street (for although an animal may be brought to רשות הרבים, the damage took place where people commonly leave produce, since animals do not usually turn their heads there). Shmuel says: אפילו מחזרת נמי פטור – Even where it turns its head to reach the produce, he is exempt from paying, because it is considered ordinary shein in רשות הרבים. Shmuel must explain the Mishnah, which holds the owner liable for produce eaten in the side of the street, to refer to where the animal left the street and went to the side of the street and ate there. In another version, all agree that one is liable for the animal’s turning its head and eating from the side of the street. Their dispute is: במקצה מקום מרשותו לרשות הרבים – where one set aside part of his domain to the public domain, and left his produce in that area. Rav says the owner is exempt, and Shmuel says he is liable. The Gemara explains their dispute.
- הכלב והגדי שקפצו מראש הגג
The next Mishnah states: הכלב והגדי שקפצו מראש הגג – If a dog or kid jumped from the top of a roof, ושברו את הכלים – and broke utensils when landing, משלם נזק שלם – [the owner] pays full damages, מפני שהן מועדין – because they are mu’ad to jump, and it is a toladah of regel. The Gemara infers that he only pays if they jumped from the roof, הא נפלו פטור – but if they had fallen from the roof and broken the utensils, he would be exempt, because this was not expected. אלמא קסבר תחלתו בפשיעה וסופו באונס פטור – We see that [the Tanna] holds that a circumstance which begins with negligence and ends with an unexpected mishap, he is exempt. Meaning, although the owner was negligent for leaving his animal where it is likely to jump and cause damage, he is still exempt from damage which occurred through an unexpected event (i.e., falling). Since this is the subject of a machlokes Amoraim, the Gemara explains the Mishnah according to the other opinion: כגון דמקרבי כלים לגבי כותל – the case is where utensils are so close to the wall that the animal would not have damaged them through jumping, and only damaged them through falling. Thus, the owner was not negligent towards the damage of these utensils.
