Commentaire sur Bava Kamma 6:7

One who brings sheep into a pen and locked (a gate) in front of it appropriately etc...

הכונס. פטור – for he guarded it and what could he have done?

If a man brought his flock into a pen and shut it in properly and it went out and caused damage, he is exempt. If he had not shut it in properly and it went out and caused damage, he is liable.
If the pen was broken through at night, or bandits broke through it, and the flock came out and caused damage, he is not liable. If the bandits brought out the flock, the bandits are liable.  Section one teaches that if a person were to properly enclose his flock and nevertheless the flock were to escape, the person is exempt. Since he fulfilled his responsibility he is not liable for damages. However, if he didn’t enclose the flock properly he will be liable.  Section two can be explained as an exception to the rule in section one that if he didn’t enclose the flock properly he is liable. Section two teaches that if the flock broke out at night (i.e. they broke the enclosed part of the or bandits broke the fence, the owner is exempt, even though he did not properly lock the fence. The owner is not liable since the animals broke out against his control, even though they could have gone out through the main gate, thereby making him liable. If, on the other hand, they were to have broken the fence during the day, and he didn’t lock it properly, he is liable. (There are other explanations to this. The final clause of the mishnah says that if the bandits physically let out the flock, they are liable if it causes damage.
At the end of chapter five we learned the laws of damages done by a pit, the second archetypal cause of damage listed in the first mishnah of the tractate. The first three mishnayoth of chapter six will deal with the third archetypal cause of damage, the crop-destroying beast.

Appropriately, this is that he will put in the place that he brought (them) in there a door that will not cause to fall because of a common wind. And what that it says 'the bandits brought it out' is not to say they took out the animals with their hands, because this is clear. Rather it implies when they were the cause for their exit. For example they stood before them until they backed off from them to another side and they try to lose them and it is as if they took them out with their hands.

הוציאוה לסטים – even though he did not actually take it out, but rather that they stood before it until she left – it is as if they removed it with their hands and they are liable.

if he left it in the sun (typo in sefaria ... be chama not behema) or if he gave it to a deaf mute, an imbecile, or a child ....

הניחה בחמה – the sun hurts her and it is not sufficient for her closing properly for it is in a door where she is able to stand only in an ordinary wind.

Two
If he left the flock in the sun, or he delivered it to the care of a deaf-mute, an idiot or a minor, and it came out and caused damage, he is liable. If he delivered it to a shepherd, the shepherd takes the place of the owner.
If the flock fell into a garden and derived any benefit, he pays for the benefit. If the flock went down [into the garden] in its usual way and caused damage, he must pay for the damage it caused.
How does he pay for the damage it caused? They assess what a seah’s space of ground in that field was worth before and what it is worth now. Rabbi Shimon says: “If they consumed fully grown produce he must repay with fully grown produce; if they destroyed on seah he must repay one seah, if two seah, two seahs.
 Section one deals mostly with the owner of the flock turning his flock over to another person. If he should turn it over to someone who cannot take proper responsibility for the flock, he will still be liable for damages. However, if he turns it over to a shepherd, the shepherd now becomes liable for any subsequent damages. In the beginning of the mishnah we additionally learn that if he leaves the flock in the hot sun and they break out, he is liable, even if he properly enclosed them. Leaving animals in the sun, where they will overheat, will drive them to go crazy and break out. Since he should have anticipated the consequences, he is liable.
 Section two deals with a flock that entered a garden and ate the produce. If the flock fell into the garden, the owner is not liable for damages because it was an unavoidable accident. (Note, that in Israel crops are often grown on the sides of hills. Falling into a garden is not, therefore, an unlikely circumstance.) In this case he will be liable to pay only for what the animal benefited. (See Bava Kamma 2:2 for a definition of this assessment). If, however, the flock entered the garden in a normal fashion, he is obligated to pay for actual damages, which will be a higher payment. Section three contains a dispute on how to assess payment for crop damages. According to the first opinion one estimates how much an area of the field that could grow a seah was worth before the flock ate the row of crops and how much it was worth after. The difference is the damage payment. Rabbi Shimon holds that we assess damages based on the crops actually eaten. His assessment will certainly be higher than the assessment based on the previous opinion.

It is the way of shepards that there is to them helpers under their hand, they will give over to them flocks of sheep to guard them. And it says also that when the main shepard gives over to the other shepards who are under his hand, they enter in his place and when it damages, he will be obligated in the damage- the second shepard which is under the main shepard, and not the first shepard that is the main shepard. And we do not say in this case a guardian who gives over to a guardian is obligated, because the customs of shepards is as such.

And the topic of it falling, for example, he trips on a stone or a tree and falls, but that when it pushed some of the sheep to some others and they fall and damage, he pays what they damaged, that this was the cause of the damage... that when he passed them all at one time and their way is that some push others, and it would have been appropriate to pass them one by one.

נפלה לגינה – as in the case when she slipped and fell in by accident. But if her “friends” pushed her and caused her to abort [her fetus] he (i.e., the owner) pays what she damaged for she was negligent in it and he should have passed through one at a time.

We have already explained in the second chapter how it is the law of what we said that it pays what it benefited from. And the idea of the evaluation for that which it damaged in this way. And it is that we will know the amount of the field, we say how much is the value of the plantings of a 60 cubits field from these vegetables or these fruits. And once we know that value, after this we will say how much is the value () of this portion from the field that has in it 60 cubits of this type of seed, and this cubit that the animil ate which sprouted from the group of 60 cubits and we know what is the difference between the two evaluations and he will pay the damages. And similarly whatever amount the animal eats will be evaluated in 60 parts like that (ie if he ate 1 pound we evaluate as a field with 60 pounds), and this is the principle which we said 'in that field' (in the mishnah) means to say if he ate a Seah it will be evaluated with 60 Seahs in that (type of) field. And there is an allusion to what is said by God (in the torah) "and it will eat in the field of another" and we learn based on a tradition that it teaches we evaluate as a portion of a different field. And this law is in order to make a compromise between the damagee and the damager, because if we were to say, "how much is the value of a an amah that he ate of sprouted fruit" He would obligagted in a lot of money, and if we said also how much this field is worth with this seed as such and such Seahs(ie the actual field- which is generally much larger than 60 Seahs). And we'll say afterwards how much is it worth after it was eaten from it 1 cubit it comes out that it will be the difference between the 2 amounts- a very small amount- because there is not an amount to the purchaser that is 1 cubit in a thousand is not comparable to the amount of 1 in 60 cubits. And thus they calculated this as a 60th, just like most amounts by us are a 60th as is explained in tractate Chulin.

מה שנהנית – according to her pleasure and not according to her damage.

And Rebbe Shimon says that this law is concerning fruits that needs the field to complete ripening. And this is why we evaluate as part of the filed as we have explained. However complete fruit their law is as if they are detached, and they will not be evaluated except for the amount what it ate alone. And the law is like Rebbe Shimon.

שמין בית סאה באותה שדה – we do not estimate the garden bed alone because the damage causes loss when we estimate it according to its value, and the All-Merciful stated (Exodus 22:4): “[When a man lets his livestock loose] to graze in another’s land,” and we expound that it teaches that we estimate it on top of another field, but we estimate a Bet-Seah ( 2500 square cubits or 50 cubits square) in that field how much it was worth before the garden bed was eaten from how much it is worth now. But now, he does not pay all of its monetary value, for whomever purchases a Bet Seah when it is with its grain does not despise it for the loss of one garden bed for it is a small amount.

ר' שמעון אומר אכלה פירות גמורים – for already they ripened fully – she (i.e., the owner of the animal) pays all the damages. But where we estimate on account of a field where it had not yet fully where it had not fully ripened. And the Halakha is according to Rabbi Shimon.

One who stacks in the midst of a field of his friend without permission etc....

ואם הדגיש ברשות בעל השדה חייב – In the Gemara (Tractate Bava Kamma 59b), it establishes it in a valley, for everyone together are accustomed to make it in one garden bed. This is his heap of sheaves and that is the other’s heap of sheaves and they appoint a guard. And since the guard state that he will go up and make a heap of sheaves, it is as if he said: “I will go up and guard yours.” But with the rest of the people, even if he made a heap of sheaves with permission, the owner of the field is not liable until he accepts upon himself protection/guardianship.

Three
If a man stacked his sheaves in his fellow’s field without his permission, and the owner of the field’s beast ate the sheaves, he is exempt. If [the beast] was injured by them, the owner of the stack is liable. If he made the stack with his permission, the owner of the field is liable. This mishnah contains laws that were all learned previously in chapter five mishnah three. We will just summarize. If someone brings his belongings onto another’s property without permission and his belongings are damaged there, the property owner is not liable. If the belongings damage the other person’s property he will be liable. However, the reverse will be true if he brings the belongings with the other person’s permission.

Since we have said the guardian of the field in a valley and to any person they can stack in the midst of the field, and he gives him permission... Behold it is as if he has accepted upon himself to guard it. And therefore the guard will be obligated. And even though he did not tell him 'I will guard it'... However the owner of a house we have explained that he is not obligated until he accepts upon himself to guard it.

One who sends a fire in the hand deaf mute, an deranged person, or a child etc... One who sends a fire and it consumes trees or stones etc.... a fire passes a fence higher than 4 cubits etc... One who kindles in the midst of his own domain, until how much the fire burns etc....

בא אחר וליבה – he blew on the fire and it rose into a large flame like (Exodus 3:2): “[An angel of the LORD appeared to him] in a blazing fire” and there are those who have the reading "נבה" – from the decree (Isaiah 57:19): “heartening comforting words: [ it shall be well, Well with the far and the near – said the LORD-and I will heal them].” When a person speaks and moves his lips, and wind escapes.

If a person sends forth fire in the hands of a deaf-mute, an idiot or a minor he is not liable by the laws of man, but he is liable by the laws of Heaven. If he sent it forth in the hands of a person of sound senses, the one of sound senses is liable.
If one brought the fire, and then another brought the wood, he that brought the wood is liable. If one brought the wood and then another brought fire, he that brought the fire is liable. If another came and fanned the flames, the one who fanned the flame is liable. If the wind fanned the flame, they are all exempt.
If a man sent forth fire, and it consumed wood or stones or dust, he is liable, for it says: “When a fire breaks out and spreads to thorns so that the stacked corn is consumed, or the standing corn, or the field, he that kindled the fire shall surely make restitution.”
If it passed over a fence four cubits high, or over a public way, or over a river, he is exempt.
If a man kindled fire within his own domain, how far may it spread [and he will still be liable]? Rabbi Eleazar ben Azariah says: “It is looked at as if it was in the middle of a kor’s space.” [ Rabbi Eliezer says: “Sixteen cubits [in every direction] like a public highway.” Rabbi Akiva says: “Fifty cubits.” Rabbi Shimon says: “[It is said] ‘He that kindled the fire shall surely make restitution’, all is in accordance with the nature of the fire.”
The final three mishnayoth of chapter six deal with the fourth archetypal cause of damage, fire. The mishnah that we will learn today contains several details concerning a person who directly or indirectly causes damage by fire.
 Section one deals with the liability of a person who sent forth fire in another’s hand and that fire caused damage. According to the first clause if he sends it forth in the hands of a person who cannot properly take responsibility over the fire he is exempt in a human court but liable in heavenly court. This is the way the Mishnah will often state that an action is a wrong action but nevertheless not prosecutable. It is wrong because the person should know that it is likely that the fire will cause damage. It is not prosecutable because it was not he who directly allowed the fire to cause damage.
 Section two deals with a case where two or more factors contributed to the fire. According to the first two clauses whoever is the last person to contribute is liable for all of the damage, whether or not this person brought the fire or the wood. According to the third clause, if a third person came and fanned the flames, he is the one liable. However, according to the fourth clause if the wind fanned the flames, they are all exempt.
 Section three emphasizes that one is obligated not just for the damages done to the crops but for the damages done to the field as well. This is learned from the word “or the field” in the Biblical verse.
 Sections four and five set limits on the distance and obstacles a fire will overcome and the owner will still be liable for damages. According to section four if the fire goes over a fence or jumps over a river or a public thoroughfare, the owner is not liable for damages done on the other side of the fence or river or thoroughfare. Since this is an unexpected action for the fire, the kindler is exempt.
 In section five four sages argue about how far a fire may travel and the person who set the fire will still be obligated. The first three set absolute amounts while the fourth sage, Rabbi Shimon says that the distance depends on the nature of the fire. According to Rabbi Shimon if a person sets a large fire he will be responsible for damages caused at further distances.

What that it says, Rebbe Shimon says "Its all according to the kindling" means to imply we observe the size of the fire that he burned and we estimate how much is the end what it is able to go out. And we say in the way of a example, if it was possible in the majority of cases that it will kindle from it's flame until a distance of 20 cubits, and all that it consumes within the 20 cubits, he is obligated, if it consumes outside his domain. And if it continued outside the 20 cubits of the kindling at a greater distance, he is exempt, because it's a thing outside the known measurement (that a fire can travel), as if it passed a river or a fence higher than 4 cubits. And the halakah is like Rebbe Shimon.

או דרך הרבים – sixteen cubits like the banners [of the tribes] in the wilderness.

ר"ש אומר הכל לפי הדליקה – according to the height of the fire and the size of the barley when the large fire jumps from afar. And the Halakha is according to Rabbi Shimon.

One who lights a stack of grain and there were vessels and they burned etc...

המדליק את הגדיש – he kindled it within his own [property] and it went and consumed that of his fellow.

If a man set fire to a stack and in it there were utensils and these caught fire: Rabbi Judah says: “He must make restitution for what was therein.” But the Sages say: “He need only pay for a stack of wheat or barley.”
If a kid was fastened to it [to the stack] and a slave stood near by, and they were burnt with it, he is liable. If there was a slave fastened to it [to the stack] and a kid stood near by and they were burnt with it, he is not liable.
The Sages agree with Rabbi Judah that if a man set fire to a large building, he must make restitution for everything therein; for such is the custom among men to leave [their goods] in their houses.
The final two mishnayoth of chapter six continue to deal with damages caused by fire. We learned in the previous mishnah that a person who sets a fire is liable not just for the destruction of crops but also for the damage done to the field itself. Mishnah five deals with damages done to various things that may be on a field. Mishnah six deals with fires that may have been set accidentally.
Section one of mishnah five contains a dispute between Rabbi Judah and the sages with regards to fire damage done to utensils that were placed inside a stack of wheat. According to Rabbi Judah one is liable for the damage done to the utensils as well as the wheat (or barley) itself. According to the Sages the kindler’s liability is limited to the wheat. For the damage done to the utensils he is exempt. Section three can help us understand the basis for this dispute. There we learn that the Sages agree with Rabbi Judah that if one burns a building he is obligated also for the things left inside, because it is customary for people to leave things in buildings. In comparison, we can see that the Sages think it is not customary for people to leave things in stacks of hay. Therefore a person who burns a stack of hay is exempt if someone left in there an item that is not usually left in a stack of hay. Rabbi Judah probably assumes that it does not make a difference if people normally leave things in the place that was burnt. Since the person caused the damage he is liable in any case.
Section two deals with a case where a kid (small goat) and/or slave were found near or tied to the stack of hay and were burnt and killed in the fire. We will discuss the second clause first. Here the slave is tied to the stack of hay when he was burnt and killed. When the mishnah says that the person is not liable, the meaning is that he is not liable for monetary remuneration. The reason is that he will receive a more severe penalty for killing the slave. In Jewish law there is a principle that one cannot receive two punishments for one crime. In this case the person killed another person and caused damage to property at the same time. For killing, the person is obligated for the death penalty and therefore he cannot also receive a monetary fine. (For a different example see Bava Kamma 3:10). In the first clause the slave was only near the stack but not tied to it. Since the slave could have run away the kindler is not liable for the death penalty and therefore he will be liable for damages.

That he lights in his own domain and it went, and it consumed in the domain of his friend; in this example the sages say he only pays for the tack but not the vessels. However we evaluate the place (displacement) of those vessels as if they were full of grain. But if he kindled a stack of his friend he pays for vessels that are inside of it. And only vessels that are normal to place in the stack, for example a plow or a winnower[look up]. But aside from these types of vessels he is not obligated except for the amount of the body from the grain as we mentioned. And if he lit the tower, the owner of the house swears on what was inside of it a Torah oath and the one who lights it will pay all the owner of the house swears on it. And only the evaluation that there is to him the amount he says he lost inside the fire. And the halakah is not like Rav Yehudah.

ר' יהודה אומר ישלם כל מה שבתוכו – that Rabbi Yehuda obligates on hidden damage in the fire, for he does not have (i.e., hold) the expounded teaching on "או הקמה"/or the standing grain (see Exodus 22:5). Just as the standing grain is uncovered, even all that is uncovered.

וחכ"א אינו משלם אלא גדיש וכו' - they have (i.e., “hold by” this expounded teaching of "או הקמה" and exempt on all damages that are hidden in the fire, but they estimate the place of the utensils as if it is a heap of grain. And he pays the heap of grain like the measure of the body of the utensils and when we stated the end [of our Mishnah]: “And the Sages agree with Rabbi Yehuda” – when he sets fire to a large building, that he pays for all that is inside it. And it is proven in the Gemara (Tractate Bava Kamma 61b) that Rabbi Yehuda and the Rabbis disagreed also with one who kindles a fire in [the property] of his fellow, as Rabbi Yehuda holds that if he lights a fire in that of his fellow, he pays for everything that is within it, and even for a money-bag (or a purse hanging from the neck). But the Rabbis hold that utensils that one ordinarily hides in a heap of sheaves such as threshing sledges (i.e., an implement with grooves and indentations) and the utensils of cattle he pays for; utensils that one customarily does not hid in a heap of sheaves, he does not pay. And the Halakha is according to the Sages.

היה גדי כפות לו חייב – for living creatures are also included in "או הקמה"/or standing grain. And because of the case that he who has committed two offenses simultaneously, must be held answerable for the severer only, he cannot be exempted. That he is not liable for death on the slave, for since he was not tied up, he could have fled and would exempt about him from the death penalty and from payments. But if he was a slave tied up, he would be exempt even on the kid and on the heap of sheaves, but he would liable for the death penalty on the slave – for he who has committed two offenses simultaneously, must be held answerable for the severer only. But concerning the kid, it makes ono difference whether it was tied up or not tied up, for since it (i.e. the Mishnah) took the language of the slave, it took the language of the kid as well.

במדליק את הבירה – when he kindles within that of his fellow and it is as if he destroys with his hands, and even so, the reason because it is the manner of people to leave their utensils in their houses, but a heap of sheaves, where it is not the manner of people to leave it other than like a threshing sledge (i.e., an implement with grooves or indentations) or the instruments for cattle. Even though I will kindle with that of my fellow, he doesn’t pay, according to the Sages other than things that it is customary to hide in a heap of sheaves.

A spark that emerges from under the hammer and damages, is liable, etc...

גץ – a spark of fire.

If a spark flew out from under the hammer and caused damage, he is liable.
If a camel laden with flax passed by in the public domain and its load of flax entered into a shop and caught fire, the owner of the camel is liable. But if the shopkeeper left his light outside, the shopkeeper is liable. Rabbi Judah says: “If it was a Hannukah light, he is he is not liable.”
The first section of mishnah six states that if a person, for instance a blacksmith, were to strike metal with a hammer and a spark were to fly out and burn another person’s property he would be liable.
The second section deals with a scenario that is more likely than it may at first sound. In the ancient world roads inside cities served as shopping areas, just as does the modern day “shuk” in middle eastern countries, including Israel. The roads were generally quite narrow and the fronts of the stores were open to the roads. A heavily laden camel walking down the road could easily fill the entire road. According to our mishnah if the camel’s load of flax were to enter into a shop, catch fire and spread the fire to another person’s property the camel owner would be liable. He should not have allowed his property to trespass into the other person’s shop. If, however, the camel owner placed the fire on the outside, he would be liable. The outside of the store is already semi-public property and he should not have put his candle out there. The one exception to this rule is the Hannukah candle, which is supposed to be placed outside of the home. According to Rabbi Judah, if the candle that caused the fire was in celebration of Hannukah, the storekeeper is exempt.

And the halakah is not like Rebbe Yehudah

רבי יהודה אומר בנר חנוכה פטור – since he is engage in the performance of a Mitzvah. But the Halakha is not according to Rabbi Yehuda.