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Showing posts with label Bava Kama. Show all posts
Showing posts with label Bava Kama. Show all posts

17.7.14

Property Damages

I wanted to mention a few of the problems that exist between the Rambam (Maimonides) and the Talmud on the issue that is brought in Bava Kama page 19.
 However since it occurs to me that some people might read this blog that would like a bit of introduction let me begin with the basic ideas.

We know from the holy Torah [Exodus 22 and 23] that there are several kinds of damages that one is responsible for. Many of them are stated explicitly in the verse from the holy Torah itself. One explicit kind of damage is when ones animal damages another persons animal or vessels or person.This is an open verse.
Besides this there are other many other types. But here I want to concentrate on this one type.
What happens I ask if ones animal kicks stones up while walking and by that damages someones property?

If in a public domain the owner has no responsibility. If in the domain of the nizak [the person that received damage to his property] then he pays half damage.


So far so good.

Now what happens if ones animal has a string attached to it? This is not exactly a case of kicking stones. But it is also not the usual type of damage.


Let's take the case the string has an owner; and the owner did not hide the string or bury it. The Rambam says  the owner of the string pays half damage.

This sounds simple, does it not? But it is not. It seems to be in direct contradiction to the Talmud in  many ways.
How can I even begin to count the ways?

Maybe for the sake of everyone reading this I ought just to say over the actual statement of the Talmud so you can see for yourselves the problems.

The Mishna gives a case of a chicken that has string attached to its foot is kicking up a fuss. And it says the obligation for damage is 1/2.

Rav Huna said that is when the string got tied to the chicken by itself. [the chicken was in someones yards and the string was lying on the ground and it got attached to the chicken.] But if someone tied the string to it then the obligation is full damages. The Talmud here asks on Rav Huna. Who is obligated to pay?It cant be the owner of the string  because if he hide it it is not his fault. If he left it out then he should pay full damages.

So it must be it is the owner of the chicken and it is a case when the chicken was flying around--so it is is a case of kicking stones. And Rav Huna was talking about completely different case. He was referring to a string that has no owner.

At this point i think you can see how different this is from the Rambam. If you want to see a way of looking at the Talmud here that follows the logic of the Talmud you can take a look at the Rosh [Rabbainu Asher]. But that is not going to rescue us.
So let me see if I can at least try to enunciate some of the problems. First the obligation of the owner of the string the Rambam says is because of the type of damage called  "Hole" which means digging  a hole in public domain or in the domain of the Nizak [person that received damage]. But hole is obligated for damage persons if  and animals not vessels. And why is the owner of the chicken not obligated here? Just because the string has an owner why does that take away responsibility from the owner of the chicken? What about the person that tied the string? Why is he not obligated? Is he not the principle source of damage? [Actually that last statement might not be true, for when the string has an owner it looks like the Gemara itself is considering the owner to be responsible. Not the one who tied the string.]