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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 Netilat Yadaim 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 reshut 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 Gemara in Baba Kama Daf 23b: one might see that it is not so simple. The Gemara there relates that the goats of a certain family were causing damage to Rav Yosef’s property. Rav 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 Rav 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 Gemara 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 Gemara 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 Baba Kama 11:20 and the Teshurat 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. Maran the Shulchan Aruch rules like the Rif, while 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.
Since we pasken like Maran the Shulchan Aruch, even where the Shach disagrees, and do not accept a claim of “kim li” against his rulings; therefore, the safari owner must pay for shein damages even though the door to the car was left ajar.
However, even according to the Shach who paskens like the Rabbeinu Chananel that there is no shein damages when the reshut of the nizak is left unprotected there is still an obligation for the safari owner to pay the cost of mah shenehne i.e. the cost of cheaper monkey food as the Chazon Ish and the Teshurat Shai point out.
However, it is very likely that there was a notice warning all car owners not to open doors and windows, and certainly not to leave there cars unattended with the doors open, and for this reason, no claim could be made even according to Maran, as it is a general rule that any conditions made in monetary matters are binding, even when they contradict the halacha.