Pet Peeve: Your Animal Damaged Hezek on the Safari

Rav Yonoson Hool

Let us begin with a story. Mr. Cohen is taking his family on
a trip to the local safari park. He rides, uneventfully, with his family
through the park. At one point Mr. Cohen gets out of his car to wash Netilas Yodaim so that he can eat his lunch. Mr. Cohen
leaves the car door open and while he is out of the car a monkey enters, grabs
Mr. Cohen’s lunch and eats it in the car. Discovering this, Mr. Cohen goes to
the owner of the safari park and asks him to pay for the damage his monkey has
caused. The question is whether the owner is obligated to pay?

At first glance, it would appear that the safari owner would
have to pay. It would seem that this is a classic case of the damage of shein where the owner of an animal who ate another’s
produce is liable to pay for his animal’s damages. This is learned from the posuk of U’bier b’sedei acheir. While
we learn from the word achier that the owner is only
obligated to pay if his animal ate in the reshus hanizak i.e. in the
other person’s property and not for example in the public domain, it would
appear that by eating Mr. Cohen’s lunch in his car that is exactly what the
safari owner’s monkey did. The safari owner should therefore be obligated to
pay Mr. Cohen for his monkey’s damages.

However, from the Gemora in Bava
Kama Daf 23b: one might see that it is not so simple. The Gemora
there relates that the goats of a certain family were causing damage to Reb
Yosef’s property. Reb Yosef told Abaye to tell the family to guard their goats
from doing more damage. Abaye responded that if he tells that to the family
they will say to Abaye that Reb Yosef should build a fence around his property
preventing the goats from causing damage. According to Abaye the responsibility
is on the owner of the field to protect his field from outside damage. Asks the
Gemora according to Abaye how is there ever an obligation to pay for shein? If there is no fence the owner of the animal is
not obligated to pay and if there is a fence how did the animal get into the
field to cause damage? The Gemora answers that either the owner had properly
erected a fence but the animal knocked down the fence which is unusual or in
the middle of the night the fence collapsed unknown to the owner of the field.
The Chazon Ish Bava Kama 11:20 and the Teshuras Shai Simon 122 both say that the owner of the
animal was aware that the fence was down and therefore he is obligated to pay
for shein.

Do we pasken like Abaye that the
obligation is on the owner of the field to protect his field and when he does
not build a fence the owner of the animal would not be responsible for his
animal’s damages? Concerning this question, we find a machlokes rishonim. The Rif says
that Abaye’s ruling is not the Halacha. The Rosh, however, quotes the Rabbeinu Chananel that the Halacha
is like Abaye. Although the Shulchan Aruch rules like the Rif, the Shach quotes the Rosh in the name of Rabbeinu Chananel and rules like him.

When an animal wanders into a neighbor’s unfenced field and
begins eating according to the Rif the animal owner will be chayiv and according to the Shach
who paskens according to the Rabbeinu Chananel the animal owner is patur.

Therefore, if we are to answer our question concerning the
monkey eating Mr. Cohen’s food inside his car we can say that this would depend
on the machlokes between the Rif and the Rabbeinu Chananel. According to the Rif,
to which the Shulchan Aruch and the Rambam agree, the safari owner must pay for
shein damages even though the door to the car was left
ajar. Even according to the Shach who paskens like the Rabbeinu Chananel that there is no shein
damages when the reshus of the nizak is left unprotected there is still an obligation
for the safari owner to pay the cost of mah shenehenis i.e. the cost of cheaper monkey food as the Chazon Ish and the Teshuras Shai point out.

Possibly, we can add another reason why the safari owner
would be patur from damages. Since the car
is given permission by the safari owner to ride through the park it is a case
of where the reshus of the nizak i.e. the car is found within the reshus of the mazik i.e. the safari park
owner. The safari owner can say to the car owner, “I only gave you permission
to drive through my park if you would take care of yourself in a responsible
was and not by leaving your car and leaving the door open.” Possibly for this
reason as well the safari owner would be patur from damages.