Wednesday, February 25, 2009

Chasing Away a Lion

By: Rabbi Avrohom Adler

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The Mishna had stated: If it fell into a garden and benefitted from it, he must pay for what it benefitted.

Rav said (Bava Kamma 58a) that the Mishna’s ruling does not only apply if the animal eats, and therefore pays what it benefited. One might think that if it fell and was struck by the produce (reducing the impact of the fall) that the produce which was damaged should be akin to a case of chasing away a lion from his friend’s possessions (for the owner of the produce is doing a mitzvah by saving his fellow’s animal from injury), and therefore he should not even have to pay what he benefited. This is why the Mishna says that even in a case where the animal fell, the owner must pay for its benefit.

The Gemora asks: Indeed, why don’t we say that this is akin to a case of chasing away a lion from his friend’s possessions (where the friend does not have to pay for the chasing)?

The Gemora answers: The case of chasing away the lion was done (knowingly and) willingly, unlike the produce acting as a cushion that was not done with the consent of the owner of the produce.

Alternatively, the Gemora answers: When one chases away a lion, he does not incur a loss, as opposed to this case where he did incur a loss (as his produce was crushed by the animal’s fall).

Tosfos rules that the lion chaser is not entitled for compensation only in cases where it is not definite that the lion will cause a loss, for instance, where the lion is far away from the sheep, but he is concerned that it might come closer. However, if he would chase away the lion when the damage is imminent, for instance, where the sheep is already in the mouth of the lion, he is entitled for compensation.

Tosfos cites several proofs for this. One of the proofs is from a Gemora in Bava Metzia (31b) which rules that one who is returning a lost article is entitled to be compensated for his time. This, explains Tosfos, is because of the fact that if the finder will not get involved with the lost article, it will cause a definite loss to the owner.

The Rashba disagrees with the proof: He says that the only time he is not entitled to be compensated is if he gets involved willingly. By the case of returning a lost article, he has no choice, for the Torah commands him to pick it up and return it. The Torah does not instruct people to lose their own money in order to return someone else’s.