OUTLINES OF HALACHOS FROM THE DAF
prepared by Rabbi Pesach Feldman of Kollel Iyun Hadaf
Rosh Kollel: Rabbi Mordecai Kornfeld
CHULIN 66 (1 Elul) - Dedicated l'Iluy Nishmas Esther Chaya Rayzel (Friedman) bas Gershon Eliezer (Yahrzeit: 30 Av, Yom Kevurah: 1 Elul) by her daughter and son-in-law, Jeri and Eli Turkel of Raanana, Israel. Esther Friedman was a woman of valor who was devoted to her family and gave of herself unstintingly, inspiring all those around her.
1) LIABILITY FOR AN UNCOVERED PIT [damages: Bor: uncovered]
1. Question (Rav Acha brei d'Rava): If we will say that "Lo Yavdil" means that he need not separate, we should also say (regarding a pit) "v'Lo Yechasenu" means that he need not cover it!
2. Answer (Rav Ashi): No. Since it says "Ba'al ha'Bor Yeshalem", clearly, it is incumbent on him to cover it.
3. Bava Kama 24b (Reish Lakish): If a cow was crouching in a Reshus ha'Rabim, and another cow was walking, and the latter kicked the crouching cow, it is exempt;
4. (Rava): It is liable. The walking cow may walk over the crouching cow, but it may not kick it.
5. 32a - Support (for Reish Lakish - Mishnah): If Shimon was in front carrying a beam, and Reuven was in back carrying a jug, if Shimon stopped and the jug broke on the beam, he must pay.
6. 27b (Mishnah): If Reuven left his jug on the road, and Shimon tripped on it and it broke, Shimon is exempt.
7. Question: Why is he exempt? He should pay attention to where he walks!
8. Answer #1 (Rav, Shmuel and R. Yochanan): The case is, Reuven filled the Reshus ha'Rabim with jugs, or it was dark, or the jug was around a corner, out of his sight.
9. Answer #2 (R. Aba): He is exempt because normally, people do not pay attention to where they walk.
10. Cases occurred, and Shmuel and Rava obligated one who tripped to pay.
11. Inference: Rava holds like Shmuel.
12. Rejection (Rav Papa): Perhaps he holds like R. Aba. The case was, Kelim were left near the corner of the olive-press. It is the custom to leave Kelim there, so one who walks there must watch his step.
13. 28b (Shmuel): A pit is liable for "an ox" that fell in, but not for a man. This applies only to death. It is liable for damage to a person.
14. 52a (Mishnah): If an ox that is (owned by someone) deaf, insane, or young fell in a pit, the owner is paid.
15. 54a (R. Yochanan): It means that the ox is deaf, insane or (very) young.
16. Question: If the ox was healthy, would the pit's owner be exempt?!
17. Answer #1 (R. Yirmiyah): The Mishnah teaches a bigger Chidush. One is liable not only for a healthy ox. Rather, he is liable even for a deaf, insane or young ox. One might have thought that its deficiency caused it to fall, and one is exempt for it. The Mishnah teaches that this is not so.
18. Question (R. Acha - Beraisa): If one with Da'as (understanding) fell in, he is exempt.
i. Suggestion: This refers to a sane ox.
19. Answer #1 (Ravina): No, it refers to a sane person.
20. Question (R. Acha): This connotes that one is liable if an insane person falls in. The verse says "an ox", but not a person!
21. Answer #2 (Ravina): Rather, the Beraisa means that if one of the species of those with Da'as (i.e. a person) fell in, he is exempt.
22. Objection (R. Acha - Beraisa): If an ox with Da'as fell in, he is exempt.
23. Answer #2 (to the initial question - Rava): Indeed, one is liable only for an ox that is deaf, insane or young. If the ox was healthy, the pit's owner is exempt.
24. This is because the ox should have watched where it is walking.
25. Support (Beraisa): If an ox was deaf, insane, young, blind or walking at night (and fell in), the pit owner is liable. If a healthy ox fell in during the day, he is exempt.
26. 52b: We do not say that since he is liable for a deaf ox, he is liable also for a healthy ox.
1. Rif (Bava Kama 12a): I hold that people do not normally pay attention to where they walk. I saw some Rabanan explain this in ways that I think are unreasonable, so I did not write them.
i. Ran (DH Ein): People think, therefore they are distracted and they do not pay attention to where they walk.
2. Rambam (Hilchos Nizkei Mamon 12:16): One is liable for an animal that died in his pit or collided with his mound only if the animal was young, deaf, insane, blind, or fell at night. If a healthy animal fell during the day and died he is exempt, for this is like Ohnes, for an animal normally sees and avoids obstacles. Similarly, if a person fell in and died, even if he was blind or fell at night, whether he is free or a slave, the pit's owner is exempt. If a person or healthy animal was injured, the pit's owner pays full damage.
i. Rebuttal (Ra'avad): Why should one pay for a healthy animal during the day? Regarding this, what is the difference between death and injury?!
ii. Magid Mishneh: The Gemara did not explicitly discuss damage to a healthy animal. I say that the Rambam learned from Bava Kama 27b, which says that normally people do not pay attention to where they walk. The Rambam brought this (13:5). He holds that all the more so, an animal, which has no understanding, does not pay attention to where it walks. The Gemara exempted a healthy animal during the day only regarding death, for healthy person animals normally avoid great obstacles with mortal danger. They do not guard themselves from damage, so this is not Ohnes. Perhaps the Ra'avad holds that people think, therefore they do not pay attention to the road, but animals pay attention, so it is like Ohnes. The Rashba explains like this.
3. Question (Tosfos 27b DH Amai): Why did Rava say that the walking cow may walk over the crouching cow? An animal should watch where it walks, like we say about a healthy animal that fell in a pit! This is difficult.
4. Answer (Rashba 27b DH Amai): There is no payment for a healthy ox that falls in a pit during the day. This shows that even an animal should pay attention to where it walks! It is the nature of animals to see that they not fall into pits, like people, but they lack intellect to guard themselves from trampling on Kelim and other things in front of them in Reshus ha'Rabim. If you will not say so, why is Regel Mu'ad to trample and break things?!
i. Yam Shel Shlomo (Bava Kama 5:44): A Gezeras ha'Kasuv exempts a pit for people even if they are small and we cannot say that they should have watched where they walk. The Magid Mishneh gave a good reason for the Rambam, but the Ra'avad is primary. The Gemara concludes that people do not pay attention to where they walk. This implies that animals pay attention. The Mishnah is Stam, both for death and damage. We exempt only an ox that is blind... Also the Rashba and Tur in the name of the Ramah argue with the Rambam. The same applies to other obstacles. If an animal tripped on a jug and was hurt, the jug's owner is exempt. If it broke the jug, this is Regel and it is exempt. This is difficult. If it is careful even from minor mishaps, we should say that it intended to break the jug. We exempt Regek because it is normal for the animal! It seems that we distinguish like Tosfos (27b DH Amai), that one should be more careful not to damage others than not to be damaged. This is because man has intrellect to beware of obstacles. We can say oppositely about animals. It looks to avoid being hurt, but it does not look to avoid damaging. Regel is exempt, for an animal will not circle around to avoid breaking Kelim. This answers Tosfos' question.
ii. Minchas Chinuch (53, p. 79:4, or  in new edition): Based on the Magid Mishneh's reason, if a healthy ox fell in a pit 10 Tefachim deep and it was damaged, there should be no payment. However, the Rambam connotes that he is liable also in this case.
iii. Aruch ha'Shulchan (CM 410:24): According to the Magid Mishneh, if a healthy ox fell in a deep pit that can kill, and it was damaged, the Rambam agrees that there is no payment.
iv. Even ha"Ezel (Hilchos Nizkei Mamon 3:11 DH Al Ken): Even though the Rambam holds that a person who trips is considered Ohnes, regarding an animal it is negligence, for animals pay attention to where they walk. This is unlike the Magid Mishneh, who says that an animal guards itself from mortal damage. The Magid Mishneh is difficult. If it does not pay attention to where it walks, how will it know if the obstacle is dangerous?! Rather, an animal pays attention to where it walks. The Rambam obligates a pit for damage to an animal because even though it sees the pit, it does not guard itself from minor mishaps. In Chulin (51a), we say that an animal would not jump unless it estimated that it can survive the fall.
v. Merumei Sadeh (Bava Kama 32a DH Aval): The Rambam holds that since a pit is prone to damage from its beginning, it is liable even though the victim should have looked where he or it walks. This is why it is liable for an animal that was damaged; it is exempt only regarding death.
vi. Nachalas David (32a DH v'Od): Our Gemara supported Reish Lakish, who discussed animals, from a Mishnah about people. This shows that we do not distinguish them regarding paying attention to where they walk. The only difference is between small and big damage, like the Rambam says.
5. Rosh (Bava Kama 3:1): R. Ila'i explained that people do not normally pay attention to where they walk, because a person's eyes are above and he does not always look near his feet. (Note: in our text, R. Aba told Rav Ashi that R. Ila'i said so. The Rosh's text says that Ravina told Rav Ashi that R. Ila'i said so.) There is no payment for a healthy ox that falls in a pit during the day, for an animal should pay attention to where it walks more than a person does. The Rif rules like R. Ila'i because Ravina and Rav Ashi discuss his teaching. Also, the Gemara suggested that Rava holds like Shmuel, and rejected this.
6. Tosfos (27b DH Lefi): One is exempt if a healthy ox fell in a pit during the day, because an animal's eyes are below, so it should pay attention (to the road) more than people do.
7. Rashba (ibid.): One must watch where he walks, but one riding need not watch where his animal walks.
1. Shulchan Aruch (CM 410:19): One is liable for an animal that died in a pit or collided with a mound only if the animal was young, deaf, insane, blind, or fell at night. If a healthy animal fell during the day and died he is exempt, for this is like Ohnes, since an animal normally sees and avoids obstacles.
2. Shulchan Aruch (20): Similarly, if a person fell in and died, even if he was blind or fell at night, whether he was free or a slave, the pit's owner is exempt. If a person or healthy animal was injured, the pit's owner pays full damage.
i. Gra (27): Perhaps he learns from Bava Kama 24b (Rava exempts a cow that walks over a crouching cow).
3. Rema: Some say that if a healthy animal fell during the day, he is exempt even for damage.
i. Bach (23): The Ramah obligates even for a healthy person who fell, even during the day. It seems that he exempts for an animal, for it normally pays attention to the road. This is unlike the Rambam, who obligates full damage. It is like the Ra'avad and Rashba. We hold like them.
ii. SMA (33): An animal's eyes are below, so it normally pays attention to the road and guards itself from damage. A person's eyes see above and further along the road.
iii. Aruch ha'Shulchan (23): A young animal does not yet have a nature to avoid obstacles. If a healthy ox fell during the day, this is like Ohnes. It was decreed from Shamayim.
4. Shulchan Aruch (412:3): Only a person does not pay attention to the road, but an animal's eyes are below, so it normally pays attention to where it walks. Therefore, if it tripped on a jug in Reshus ha'Rabim and it was hurt, the owner is exempt.
i. Aruch ha'Shulchan (6): The Rambam disagrees with this. He obligates the owner of the jug to pay for the damage to the ox.