Paying Is Not Permission

About This Talk

Chapter 3 is the law of the tooth, and it turns almost entirely on where the mouth closed: because eating produce is an animal's ordinary behavior, damage in another man's property is paid in full from the owner's choice field, while the identical mouthful in the public domain costs only the benefit, priced as cheap barley or fodder since fodder is what the owner would have bought anyway; wheat that sickens the animal costs nothing because nothing was gained, a chewed garment or utensil is half damages in either domain as a deviation, a beast that seizes meat pays in full while a dog eating small sheep or a cat eating large cocks pays half, and the geography is drawn to the inch, with the marketplace and the storefront costing benefit only, the corner off the market and the inside of the store costing full damages, and a load on another animal's back costing benefit when the neck is stretched to it but full damages when the animal jumps up, because that load counts as the damaged party's private domain; an animal that slipped in on a stone owes benefit only even if it grazes row to row all day, while one that walked in, was pushed in, or slipped in and returned pays everything because the first stage was negligence, and the chapter closes by reversing the parties, so that wares or produce brought into a courtyard uninvited are smashed or eaten at their owner's risk and he pays if the animal is hurt on them, as the woman left alone to bake was made to pay for the goat her dough killed. Chapter 4 moves from the mouth to the gate and sets the standard at an enclosure that would withstand an ordinary wind, below which every later misfortune counts as negligence, so the owner pays when they dig out or thieves break in, while a strong gate broken at night exempts him and thieves who lead the animals away bear it themselves; a man who breaks a sturdy fence is liable where one who breaks a shaky fence or sets poison carries only a moral obligation, watchmen and renters and borrowers assume the owner's duty but handing the animal to a minor or one not competent, or leaving it in the sun, keeps the liability on the owner, a watchman who delegates to another watchman stays answerable to the injured party unless he delegated to his own son, household or helpers, a borrowed ox carries its owner's classification home again because the domain changed, and the assessment is deliberately moderated: growing crops are valued against an area sixty times the size of what was eaten, even one stalk, while ripened fruit is paid in full and a high-quality date palm is appraised individually rather than sixty-fold. Chapter 5 stops pricing altogether, warning an owner on three occasions and then letting the field's owner slaughter the animal ritually and tell him to come and sell the meat, on the principle that it is forbidden to cause damage and then pay for it and even indirect causation is forbidden, a right the Ra'avad disputes and the Shulchan Aruch declines; from there the Sages close whole trades, barring small animals from settled parts of Eretz Yisrael and later Babylonia, pigs everywhere and unchained dogs except in border towns, and then the chapter swings the other way with Joshua's ten conditions written into every deed, the pasturing of small animals in thick forest, the gathering of brambles and wild grass, the cutting of a young shaded branch, the new spring, the small net on the Kinneret, the fence to turn aside behind, the vines a lost man may break through, the detour across private land in mud, and the place a corpse with nobody to bury it acquires, before Solomon's ruling that field paths stay open until the second fall rain and the closing mercy that a shepherd who repents sells his herd a little at a time, so that quitting the trade does not ruin him.