The Eternal Relevance of Torah Law by Eitan Leff


In Parashat Mishpatim, Hashem presents us with civil laws that deal with damages and loans. One such law is “Ki Yichreh Ish Bor VeLo Yechassenu, VeNafal Shammah Shor O Chamor, Ba’al HaBor Yeshalleim; Kesef Yashiv LiV’alav, VeHamet Yihyeh Lo,” “If a person digs a pit and does not cover it, and an ox or a donkey falls into it, the owner of the pit shall pay; he shall return money to its owner, and the dead body shall be his” (Shemot 21:33-34). If a person makes a pit and does not cover it and an animal falls in, the pit-maker has to pay for the animal. The Gemara (Bava Kama 48b) extends from the Pesukim to rule that if a person lets his ox fall into someone else’s water pit, thereby ruining the water, the owner of the animal has to pay for the damages. It falls under the category of Keren, deliberate damages, and the owner has to pay for either half the damages or the full amount depending on whether the animal is a repeat offender or not. However, there is an exception to this law: if the water is ruined only after the animal is sitting in the water for a while, the damage falls under the category of Bor, immobile and passive damages, as the damage can only be construed as deliberate when the animal immediately ruins the water. The Shitah Mekubetzet (ibid., citing Ra’ah) notes that if the ox-owner pushed the ox into the pit and the water became damaged, it would be considered Keren, deliberate and direct damage, in both cases, and the owner would then need to pay.

The Gemara (Bava Kama 28b) additionally derives from these Pesukim that if a person or inanimate object was damaged by falling in a person’s pit, the pit-maker would not need to pay, because the Pasuk only states “Shor O Chamor,” “ox or donkey.” Using these sources, we can analyze a case with broad implications. Let us imagine that someone is driving on Friday afternoon and passes his friend, who is carrying grocery bags and walking home. The driver tells his friend to come in the car to be driven home. After Shabbat, the driver enters his car and finds that the car smells like rotten chicken. Looking in the back, he finds a bag with rotten chicken that was left in the car by his friend on Erev Shabbat. The driver tries to get rid of the stench, but is unable to, so he needs to get the car reupholstered. Naturally, the driver wants his friend to pay for the car’s reupholstery.

According to the guidelines of Bava Kama 28b, it would appear that the chicken falls under the category of Bor, because it was only over a longer period of time that the chicken began to rot. If so, then the friend who left the chicken in his friend’s car is not obligated to pay. On the other hand, the opinion cited by the Shitah Mekubetzet would argue that the friend “pushed” the damaging chicken into the driver’s car, and thus he would indeed be obligated to pay. However, one major difference to note between the case of the ox and the case of the rotting chicken is that by the ox, the owner of the pit did not want the ox in the pit, while by the case of the rotting chicken, the driver told his friend to come into the car.

In his book, VeHa’arev Na Volume II, Rav Zilberstein relates that he posed this question to his father-in-law, RavYosef Shalom Elyashiv zt”l. Rav Elyashiv answered that the driver let his friend in on the presumption that he would not leave anything damaging, and therefore the owner of the chicken has to pay for the reupholstering of the car.

Cases such as these leave an important message for us as Jews in the modern world. The rules outlined in Parashat Mishpatim may seem obsolete at first glance, but just because donkeys and oxen do not constitute the main means of transport in the modern era does not mean that these concepts may not be applied to everyday life. In an ideal world, these guidelines for punishments would not come into play, but damages do occur, and we are lucky enough to know how to adjudicate such cases in today’s day and age.

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