QUESTION: The Gemara cites a Beraisa which discusses various objects that can serve as part of a dividing wall between two rooms. An opening in a wall between two rooms must be less than a Tefach in order to prevent the Tum'ah of a Mes on one side of the wall from passing through the opening to the other side. These items, when placed in a window in a dividing all, diminish the size of the window to less than a Tefach.

The Beraisa states that semi-severed limbs and flesh hanging from an animal do serve as part of a dividing wall. The Gemara asks that a valid dividing wall must consist of items that will not be taken away. An animal with a dangling limb, however, certainly will be taken away to be slaughtered. The Gemara answers that the animal discussed in the Beraisa is a non-kosher one, and thus the owner has no use for it and will not take it away. The Gemara then asks that the owner will cut off the limb and feed it to his dogs. The Gemara answers that he will not cut it off in order to feed it to his dogs because of "Tza'ar Ba'alei Chayim," the prohibition against causing pain to living creatures.

Why, though, is the Gemara not concerned that the owner will take the entire animal and slaughter it to feed it to his dogs? The limb should not be considered part of the dividing wall since it will be taken away with the rest of the animal.

(a) TOSFOS answers that the Beraisa refers to a type of animal, such as a monkey, which is used as a pet. The owner will not give such an animal to the dogs, and it may be assumed that he will leave it in the window.

(b) The RASHBA answers that it is unusual to slaughter an animal merely for the purpose of feeding it to dogs. Thus, it may be assumed that the owner will leave it in the window.

(c) The RI MI'GASH answers that slaughtering a non-kosher animal is considered a form of "Tza'ar Ba'alei Chayim" and is prohibited, and thus the owner will not slaughter the animal in order to give it to dogs.

Apparently, the Rashba disagrees and maintains that although cutting off a limb of an animal constitutes "Tza'ar Ba'alei Chayim," killing a non-kosher animal does not constitute "Tza'ar Ba'alei Chayim" and is permissible.

The PNEI SHLOMO questions the opinion of the Ri mi'Gash. He quotes the NODA B'YEHUDAH (YD 2:10) who points out that it is clear from the Gemara in Chulin (7b) that killing an animal is not considered "Tza'ar Ba'alei Chayim." The Gemara there relates that Rebbi Pinchas ben Yair refused to enter Rebbi's home because he owned dangerous mules. Rebbi begged him to enter his home and promised to cut off the hooves of the mules so that they would not be dangerous. When Rebbi Pinchas said that cutting off the hooves would be "Tza'ar Ba'alei Chayim," Rebbi offered to kill them instead. Rebbi Pinchas responded that killing them would constitute "Bal Tashchis." The Gemara there clearly implies that killing a non-kosher animal does not constitute "Tza'ar Ba'alei Chayim," because if it did, Rebbi Pinchas would have rejected Rebbi's second suggestion on that basis as well. Since Rebbi Pinchas cited "Bal Tashchis" as the reason not to kill the mules, it is clear that the Isur of "Tza'ar Ba'alei Chayim" would not have prohibited killing the mules.

How does the Ri mi'Gash understand that Gemara, which apparently contradicts his opinion? Perhaps there is a difference between killing an animal for the benefit of another animal (such as to feed it to a dog) and killing an animal for the benefit of a person (such as to protect a person from the danger that the animal poses). (RAV MOSHE FEINSTEIN zt'l in IGROS MOSHE (CM 2:47:1) rules that one is permitted to kill creatures that are harmful or disturbing to people. He adds that it is preferable, where possible, not to use one's own hands to kill the creature, in order to avoid instilling in oneself the trait of cruelty.) (Y. MARCUS)

QUESTION: The Mishnah states that one may not construct an oven in his house when he has a neighbor above him, unless there are at least four Amos between the oven and the ceiling. If he has a neighbor below him, then he may construct an oven only if he builds a base of plaster beneath the oven at least three Tefachim high. The Tana Kama says that even if he has taken all of the required precautions, if his oven causes damage to his neighbor's property, he is obligated to pay.

The Gemara in Bava Kama (61b) teaches that a person may light a fire in his own property when he places a certain distance between the fire and his neighbor's property. The Gemara rules that if the fire then damages his neighbor's property, he is not obligated to pay for the damages. The Mishnah here, which obligates the owner of an oven to pay even if he took the necessary precautions, seems to contradict that Gemara. How can the two be reconciled?

(a) The RIF in Bava Kama (25b) explains the difference between the two cases. The Gemara in Bava Kama refers to a case in which a person lights a fire on a single, isolated occasion. As long as he places the requisite distance between the fire and his neighbor's property, he is not obligated to pay for any damages, because if the fire does enter his neighbor's property, it is considered an Ones for which he is exempt. In contrast, the Mishnah here refers to an oven which is constantly used. The owner of such an oven must be extra cautious to ensure that the oven does not cause damage to his neighbor's property. If the fire of the oven causes damage, it is not considered an Ones, but rather it is considered a failure of the owner to guard his oven properly, and thus he is obligated to pay for the damages.

(b) The KETZOS HA'CHOSHEN (155:1) answers that the case of the Mishnah here is a case in which the oven was placed at the minimum distance required. At that distance, the heat of the oven normally would not cause damage to the neighboring property, but it is possible that it will cause damage. Since it is possible that it will cause damage, the owner is required to be especially vigilant. Therefore, if damage does occur, the owner is obligated to pay. In contrast, the Gemara in Bava Kama refers to a case in which the fire was lit at such a distance that under normal circumstances it could not damage the neighbor's property, and the owner is not required to give the fire any extra attention. Therefore, if it does cause damage, it is an Ones and the owner is not required to pay.

The NESIVOS HA'MISHPAT (155:1) explains the reasoning of the Rif as well based on the words of the Ketzos ha'Choshen. In the case of an oven that is used regularly, on a daily basis, the Chachamim instituted a lenient rule and allowed the owner to move his oven only a minimal distance away from his neighbor's property. However, the owner must also guard the oven so that it will not cause damage. In the case in Bava Kama, since people do not regularly light fires in their fields, the Chachamim were stringent and required a person to move his fire a maximum distance away from his neighbor's property to avoid causing damage. Thus, if the fire does cause damage, the owner is not required to pay.

The CHASON ISH (Bava Basra 14:14) explains the reasoning of the Rif as follows. When a person lights a fire in an oven, he can assess the effect of the oven's heat by measuring the amount of air and the intensity of the heat. When the fire in an oven causes damage, it is not because the fire burned out of control, but because it was lit improperly in the oven. Thus, the owner could have foreseen that his oven would cause damage. In contrast, in the case in Bava Kama in which a person lights a fire in an open area, the factors that might spread the fire and make it cause damage are not foreseeable, and therefore the damage that the fire causes is an Ones and he is exempt. (Y. MARCUS)