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1) EQUALITY OF ANIMALS
QUESTIONS: The Mishnah teaches that all animals are the same with regard to various laws even though the Torah mentions only "Shor" with regard to those laws: One must pay for damages done to any animal that falls into one's Bor; every animal was prohibited from approaching Har Sinai at the time of Kabalas ha'Torah; one must pay Kefel for stealing any animal; one must return any animal that was lost; one must unload any animal when it is overburdened; one is prohibited from muzzling any animal while it works; one may not interbreed any type of animal; and the prohibition of Mechamer on Shabbos applies to all animals.
(a) The laws of all four of the Avos Nezikin (and not only Bor) apply to damages done to any animal. However, the Mishnah does not need to mention that one must pay for damage done by Esh and Adam to any animal since the Torah does not specify "Shor" with regard to such damages. However, the Torah does specify "Shor" with regard to damages of Keren; it describes both the animal that caused the damage -- and the victim of the damage -- as a Shor. Why, then, does the Mishnah not also mention that all animals are similar with regard to liability for damages of Keren, and for receiving damages of Keren? (PNEI YEHOSHUA)
Moreover, with regard to Shen v'Regel the Torah does not write Shor but it does write "Be'iroh," which implies a domesticated animal. The source that one is liable for damages done by his Chayah or Of (wild animal or bird, which are non-domesticated animals) is a comparison to the laws of Shabbos, which the Gemara here discusses (see TOSFOS to 17b, DH Ka Mashma Lan). Why, then, does the Mishnah not also mention Shen v'Regel, just as it mentions the law of Hafrashas Har Sinai, for which the Torah writes the word "Behemah" and the Mishnah teaches that it includes Chayos and Ofos as well?
(b) Why does the Mishnah write that all animals are equal with regard to Kefel and Hashavas Aveidah? These laws apply not only to animals but even to inanimate objects, and thus these laws should not be included in the list of laws for which the Torah compares a Chayah and Of to a Shor. (The Mishnah must teach that all animals are the same with regard to falling into a Bor, since one is liable only for animals that fall into a Bor but not for Kelim. Kefel and Hashavas Aveidah, in contrast, apply to all items, animals and Kelim alike.)
In fact, the Mishnah does not compare fish to animals and birds with regard to the laws that it mentions. According to one answer in Tosfos (55a, DH ha'Manhig), fish are indeed not included in these laws (except for the law of Kil'ayim, for which the Torah explicitly includes them; see Gemara there, 55a). (The reason for this exclusion seems to be that it is unusual for a fish to do any of the acts in the Mishnah, for those acts are normally done only on land.) With regard to Geneivah and Hashavas Aveidah, it is obvious that one must return fish just as he must return any object that he steals or finds. Why does the Mishnah include those laws in the Mishnah if they have nothing to do with animals? (SHITAH MEKUBETZES)
ANSWERS:
(a) The PNEI YEHOSHUA answers that all animals are not similar with regard to damages of Keren. The Mishnah (15b) teaches that certain animals are "Mu'adin mi'Techilasan," they are Mu'ad from the start and have no stage at which they are a Tam. Therefore, the Mishnah does not want to equate all animals with regard to Keren.
Similarly, with regard to being damaged, all animals are not equal. If an animal is Mu'ad for goring one particular type of animal, when it gores a different type of animal its owner pays only as though it were a Tam. That is why the Mishnah does not list Keren.
However, this answer is problematic. TOSFOS (16a, DH veha'Nachash) writes that even a wild animal, like a lion, indeed can be a Tam, such as in a case in which it causes damage in an unusual way (as the Gemara on 16b teaches). Also, with regard to the animal that is damaged, all animals are equal since the Shor ha'Mazik must be a Mu'ad for that particular animal in order for the owner to be obligated to pay in full. If the Shor is not a Mu'ad for that particular animal, the owner pays only Chatzi Nezek. For this reason, the Mishnah should include these cases as well!
This approach also does not answer why the Mishnah does not mention that Shen v'Regel apply to all animals.
Perhaps the reason why the Mishnah does not mention that all animals are the same with regard to Keren and Shen v'Regel is that the Mishnah earlier (15b, 17b, and 21b) already teaches that one is liable for damages done by one's Chayah or Of. Although the Mishnah later (62b) teaches that one pays Kefel for any stolen object, since no earlier Mishnah mentions it before the present Mishnah, the present Mishnah includes law of Kefel in its list.
With regard to the animal that sustained damage through Keren, there seems to be another reason why the Mishnah does not need to specify that all animals are equal. It seems that no source is necessary to teach that one is liable for the damage caused by his Shor, regardless of what type of animal is damaged. The source cannot be from the laws of Shabbos, because the laws of Shabbos would teach only that one is liable for damages done to an animal but not for damages done to inanimate objects, while one is liable for damages of Shor (Keren) done to any object.
It must be that the source for the obligation to pay for damages done to any object is based in logic, since there is no logical distinction between requiring that a person be reimbursed for damages done to his animal and requiring that he be reimbursed for damages done to any other property of his.
In contrast, with regard to the animal that caused the damage, or any of the mentioned in the Mishnah, it would have been possible to suggest that one is liable only for a Shor (or other common Behemah), since such an animal is more common. The Torah would not obligate a person for damage caused by animals that are less common, since the Torah does not need to address that unusual situation in order to prevent unwarranted damage from occurring on a daily basis.
(This applies even to Kefel, since it is a Kenas and not just a reimbursement, and to Aveidah, since a person is obligated to return the item even though he had no involvement in taking the item away from the owner in the first place. Nezikin, in contrast, which involve a simple reimbursement, logically should apply equally to all objects; since the Torah does address damages caused in such a manner, the reimbursement that it calls for therefore applies to any object at all that is damaged in such a manner -- i.e. through Keren.)
(b) The RA'AVAD (also cited by the Shitah Mekubetzes) writes that the Mishnah mentions Kefel and Hashavas Aveidah only to teach that in those cases as well, when the Torah uses the word Shor it does not mean to limit the Halachah to a Shor. The verse which teaches that these laws apply to all other animals indeed teaches that these laws apply to inanimate objects as well (and certainly to fish). The words at the end of the Mishnah, "this applies to Chayos and Ofos as well," are not addressing Kefel and Hashavas Aveidah, since these laws indeed apply to inanimate objects as well.
(This is in agreement with the approach mentioned above, since if the verse had not included all animals, one might have thought that the laws of Kefel and Hashavas Aveidah apply only to animals that are commonly lost or stolen. That is why the Mishnah needs to include Kefel and Hashavas Aveidah in its list of laws that apply to all animals.)

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