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Shabbat Parashat Beshalach | 5769
Hemdat HaDaf HayomiRabbi Ofer Livnat
We learned this week in the Daf Hayomi (Mishnah 39a) that usually a bull that butted a person, and killed him, is killed. However, a stadium bull, which is a bull that was trained to participate in a bull fight in a stadium, that killed a person during the fight, is not killed. The reason for this Halacha is that the bull did not kill the person out of his own initiative, but only after he was instigated purposely to attack.
The Rishonim were troubled by this halacha as it appears to contradict a previous Gemarah (24b), which states that if a person instigated a dog to bite, the owner is liable for the damages. From this Gemarah, it appears that one is liable for damages even though the animal did not initiate the attack but was instigated to do so.
The Tosafot (24b "Hamesashe") distinguish between the two cases, claiming that the instigation of the dog is not similar to that of the stadium bull, since there "the person is fighting with him for the purpose of killing him." According to the Tosafot, the instigation of the stadium bull is much more violent and there is thus no liability for the actions of the bull, whereas the dog was instigated in a lighter fashion and the owner is therefore held liable. The Nimukei Yosef (11a in the pages of the
However, from the Rambam, it is clear that he made a different distinction, as the Rambam on the one hand ruled (Nizkei Mamon 2, 18) that if a dog was instigated to attack, and caused damage, then the owner must pay for the damages, and on the other hand, he ruled (Nizkei Mamon 10, 8) that a dog that was incited to attack and killed a person, is not killed.
The Nachlat David (Baba Kama 24b) explains that according to the Rambam, there is a fundamental distinction between the rule that an animal that killed must be killed, and the obligation to pay for the damages that one's animal did. The killing of the animal is a sanction against the animal, whereas the obligation to pay is a sanction against the owner for not preventing his animal from doing damage. Thus a stadium bull or a dog that was provoked and killed a person is not killed, since it didn't kill on its own initiative but rather was incited to do so. On the other hand, since the owner of the animal knows that it is possible that his animal might be instigated, causing it to attack, he is required to guard his animal from such instigation. Therefore, if he did not guard against this situation, he is liable for the damages.
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This edition of Hemdat Yamim is dedicated to the memory of
Reuben M. Rudman ob”m
as well as
R ' Meir ben Yechezkel Shraga Brachfeld
Hemdat Yamim is endowed by Les & Ethel Sutker of
and Louis and Lillian Klein, z”l.