The Right of Return June 23, 2022 Q: As a retailer, am I obligated…
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.