Translation:Shulchan Aruch/Choshen Mishpat/391

Paragraph 1- Tooth-damage is the primary category of “and he sends his animals.” The term “and it grazes” that is stated in the verse has been established to also include an animal that eats another’s fruits that are appropriate for eating, and the animal benefited from its eating. The owner would be required to pay full damage, regardless of whether the animal ate the fruits or did not eat them and just caused them loss, but did not destroy them completely. Thus, in any comparable case where the animal damages with something that it benefits from, it is a subcategory of tooth-damage. Examples include rubbing against a wall for its benefit and the animal damages or the animal soiled fruits or vessels for its benefit, such as by rolling on them.

Paragraph 2- When is this true? Where the animal ate something appropriate for the animal. If it ate something inappropriate for the animal, however, such as clothing or vessels, that is a deviation and the owner would only pay for half the damage, regardless of whether it is in the victim’s courtyard or in the public domain.

Paragraph 3- If the animal ate something that it does not typically eat other than in pressing situations, such as a cow eating barley, a donkey eating vetches, a dog licking oil, a pig eating a piece of meat or a cat eating dates, that is considered eating. If a domesticated animal ate meat or a cooked dish that it does typically eat, however, the owner would pay half the damage. If it ate bread, that is typical. With respect to an undomesticated animal, however, it does not typically eat bread or a cooked dish.

Paragraph 4- If an animal saw bread in a basket and broke it and ate the bread, the owner would even pay for the full damage for the basket because it is typical to break the basket and eat the bread. If the animal first ate the bread and then broke the basket, however, the owner would only pay for half the damage of the basket because it is horn-damage, and would only pay from the actual animal.

Paragraph 5- If the animal saw food on top of the barrel, and took hold of the barrel so it could climb up and eat it and it broke the barrel, the owner would even pay for the full damage for the barrel because it is typical for the animal to climb on it in order to eat the food.

Paragraph 6- If an undomesticated animal tore up an animal and ate it or ate raw meat, that is typical and the owner would pay for the full damage. If a dog killed a sheep or a cat killed large chickens and ate them, however, that is a deviation and the owner would only pay for half the damage. This is only with respect to the decrease in value caused by the death. With respect to the value of the carcass, however, the owner would pay full damage if it occurred in the victim’s property, and if it occurred in the public domain, he would pay for the benefit received, because eating is not a deviation given that it is the practice for them to eat carcasses, even of large animals.

Paragraph 7- The owner is not liable for full damage for tooth-damage unless the animal eats in the victim’s property. If the animal took from the victim’s courtyard and left and ate in the public domain or in another’ courtyard, however, the owner would be exempt from paying more than the animal benefited. If the animal took from the public domain and went and ate in the victim’s domain, there are those who say the owner would be liable to pay the full damage because the cow’s mouth has the status of the victim’s courtyard. The practical difference would be that even in a place where the owner is not liable for the animal taking, such as where the fruits were placed in a location where it would be impossible for the animal to reach them, and Reuven comes sticks out Shimon’s fruits that were in Shimon’s courtyard into the mouth of Levi’s cow, Levi would be liable if the person that stuck it out was deaf-mute, fool or minor or had nothing to pay with, because if he had something to pay with he would be liable and the owner of the cow would be exempt.

Paragraph 8- If the animal ate in the public domain, the owner would pay for the entire amount the animal benefited, which means for everything the animal ate the owner would pay as if it ate straw. There are those who say he would pay for the value of cheap barley. If the animal ate foods that are bad for it, such as where it ate wheat, because the animal did not benefit, the owner would be exempt.

Paragraph 9- If the fruits were placed on the side of the public square and the animal was in middle of the public square and it turned its head to the side of the public square and ate them, the owner would only pay what the animal benefited, because the animal’s body was in the public domain so it is tooth-damage in the public domain. If the animal left the public square to the side of the public square and ate there, however, the owner would pay for the damage the animal caused. If the animal ate from the entrance of the store, the owner would only pay what the animal benefited. If it ate from within the store, the owner would pay for the damage caused.

Paragraph 10- If one set aside an area of his domain for the public domain and placed his fruits there and the animal ate it from there, it is considered like the public domain.

Paragraph 11- If the animal was walking in the public domain and it stretched out its neck and ate from another animal, the owner would only pay what the animal benefited, even if the animal stopped, because it is typical for animals to eat off each other. If the animal jumped and ate off another animal, the owner would pay for the damage because it is considered the victim’s courtyard. There are those who say this is only in a case where it would have been impossible for the animal to eat without jumping. If the animal could have eaten without jumping, however, it is considered the public domain. The same is true where one’s box was thrown behind him and the animal ate from the fruits in the box.

Paragraph 12- If an animal was standing in the victim’s property and detached fruits from the public domain and ate them in the victim’s property, the law is uncertain. The same is true where the animal is standing in the public domain, and it took food from the victim’s property and ate it in the public domain, and the law is uncertain. This is only in such a case where the food is in one domain and the animal rolls the food to a second domain. If the food is something long and some of it is inside and some is outside, however, and when the animal pulls one side the other side comes along with it, the food is considered to have been eaten wherever the animal begins to pull it, whether it is the private domain or public domain. Thus, the owner would only pay for what the animal benefited. If the victim seized that which was damaged, we would not remove it from him. We already discussed in Siman 390 that there are those who disagree and hold that seizure is not effective in a case of uncertain law.