Q&A: Bava Kamma 48
Bava Kamma 48
Question
The Mishnah in Bava Kamma 47a says: "If someone brought his produce into the homeowner's courtyard without permission, and the homeowner's animal ate it, he is exempt. But if the animal was harmed by it, the owner of the produce is liable. And if he brought it in with permission, the owner of the courtyard is liable."
In the continuation (47b–48a), the Talmud states that if the owner of the produce brought it into the courtyard with permission, and then another person's ox came and ate the produce, the owner of the ox is liable under the law of damage by eating in the injured party's courtyard: "Come and hear, for Rav Yehudah bar Simon taught in the damages teachings of the academy of Karna: If one brought his produce into the homeowner's courtyard without permission, and an ox from elsewhere came and ate it, he is exempt. But if he brought it in with permission, he is liable. Who is exempt, and who is liable? Is it not that the courtyard owner is exempt and the courtyard owner is liable? They said: No! The ox owner is exempt, and the ox owner is liable. But if it is the ox owner, what difference is there between with permission and without permission? They said: With permission, it is damage by eating in the injured party's courtyard, and damage by eating in the injured party's courtyard is liable. Without permission, it is damage by eating in the public domain, and damage by eating in the public domain is exempt."
Rashi there explains: "It is damage by eating in the injured party's courtyard—for since the courtyard owner gave him permission to enter, he granted him a place within it, and it becomes the injured party's courtyard for him. And as for a shared courtyard, where one is exempt there for damage by eating and by trampling, that applies only between partners, where the courtyard belongs to both of them; but if an outside ox comes and damages one of them, we read concerning it: 'and it consumed in another's field.'"
Rashi writes that when the produce owner brings his produce into the courtyard with permission, the courtyard is defined as a shared courtyard, belonging to him and to the courtyard owner. If so, I don't understand how Rashi would explain the law of the Mishnah: after all, the Mishnah states explicitly that if the produce was brought in with permission, and the courtyard owner's animal ate it, the courtyard owner is liable. According to Rashi's words, we should have exempted him under the law of damage by eating in a shared courtyard, since here the courtyard belongs to both of them.
Answer
When we say that they are considered like partners, that doesn't mean there is actual partnership here. With regard to a third party damager, they are considered like partners. But if the owner of the cow damages the produce owner, that is not like damage by eating of one partner in a jointly owned courtyard. Especially since the partnership here is not really in the body of the courtyard itself. From the standpoint of property law, it is obvious that the produce owner has no ownership in the courtyard, only at most a right of use. Therefore, the fact that the courtyard is considered his is only in the sense that the produce is regarded as though it is in his courtyard, because he has permission to bring it in. But not that he is considered the owner of the courtyard so as to be exempt from damages to the actual courtyard owner.
As an illustration of this idea, see Bava Kamma 20b, where they prove from the Mishnah regarding damage by eating in the public domain—which pays only what it benefited—that one who benefits while the other does not lose is liable. But this is difficult, because the other party does lose the produce. So Rambach explains that he does not lose, because ordinarily when someone leaves produce in the public domain, he treats it as ownerless. But if he made the produce ownerless, why should the owner of the cow have to pay him for benefiting from it? Necessarily, the produce is considered ownerless only with respect to the fact that there is no loss here, because the produce owner harmed himself by placing it there; he bears contributory fault. But clearly it is not truly ownerless, and therefore one who benefits from it must pay. Leaving produce in the public domain is considered like making it ownerless to the owner of the domain—that is, to the public—only with respect to the owner's loss, but it is still considered to belong to its owner with respect to payment for the benefit received from it. Exactly along the lines of what I wrote to you.
Discussion on Answer
Accepting responsibility means that granting permission to bring in produce is like transferring the courtyard to the produce owner for this purpose. Now the actual courtyard owner damages the produce owner and is liable to pay him. So it still can be from the regular laws of damages. The responsibility is only the basis on which he can be defined as a damager.
I didn't understand. Rava (on 47b) obligates the courtyard owner to pay even for damage that he did not cause at all: "…Rava said: the whole Mishnah follows the Rabbis, and it is a case of permission. The courtyard owner accepted responsibility for guarding the pots, even if they were broken by the wind." How can we understand that accepting responsibility merely makes it possible to define him as a damager in this case?
I was talking about the law where the courtyard owner's ox damaged the vessels. If the owner of the ox and courtyard gave him permission to place vessels there, he can be seen as a damager. Never mind.
I think Rashi's wording implies something a bit different, because he explicitly writes regarding this case that the liability of the ox owner comes from the fact that this is "another's field," unlike a case where one of the partners damages the other.
Be that as it may, it still doesn't solve the problem, because the Mishnah obligates the courtyard owner to pay the produce owner if they were brought in with permission. Even if we say this is not a shared courtyard, it is at the very least the courtyard of the courtyard owner, and if so he still should have been exempt under the law of damage by eating in the damager's own courtyard.
Now I notice that in fact the Talmud implies that what obligates the courtyard owner is not the ordinary law of damages, but rather an acceptance of responsibility for any damage caused to the produce in his courtyard, so the question doesn't really begin at all…
Thank you very much