Portfolio #4

The Case:

  • Avi’s Dog, Harvey, is chilling in the neighborhood. Harvery sees some nice looking tulips surrounding a neighbor’s mailbox, he jumps over a fence to eat them and in the process breaks a sprinkler. Does Avi have to pay? If so, how much?


  • This case seems a lot like שן: When an animal eats something for personal benefit in private property

  • The dog is eating flowers, something abnormal for it to consume, so is it really שן?

    • The dog, a domesticated animal, would be obligated in שן if it ate something that is normal for it to eat, such as fruits and vegetables. Something abnormal for it to eat though, it would be obligated in קרן- paying half damages

    • Even though the flowers were abnormal for the dog to eat, Avi is obligated to pay because it did benefit him- the dog would eat flowers if it were starving (it substitutes a meal that Avi no longer has to pay for)

    • He would only pay what he benefited if it were in public property. This is a lesser punishment compared to paying full damages in private property

  • Since the lawn of the house is considered public property normally (like the opening of a store) Avi would normally be obligated in what the dog benefited, but since he jumped over the fence (designed to keep animals out), it is like the case of an animal stretching out its neck to eat, making it as if it were private property because one would not expect an animal to do that unnatural act of jumping/קופצת. Therefore, because we consider the flowers to be in private property, Avi must pay for full damages, Shen.

    • This is just like the case in the Gemara where an animal eats off of animals back- if it were easy for the animal to eat it then it is like public property, if it were difficult for it to eat it, like if it were on a pillow or raised, it would be like private property.

    • What about רבה’s case of jumping how does that apply?

      • Rosh: for food in public property to be considered as if it were in private property, animals can't easily get to it (Must jump)- explaining Ilphas case of stretching out neck: would be exempt when eats off back (public) and obligated in Shen when jumps to eat off friends back (private)

      • Rashi: Rava is arguing on Ilpha! Rava says it's in public property and you have to pay Keren just because it's an abnormal activity. Obligated in Shen when eats off back (Private), obligated in Keren when jumps (Abnormal activity in public)

    • This Machloket is directly related to Rashi and Rashbah’s machloket earlier because it depends on how we define an abnormal act and whether one is either obligated in Shen or Keren according to the way in which the animal gets to the food.

  • What about the damage to the sprinkler? Was it a part of the act of eating?

    • The Gemara brings up a similar case where a donkey eats bread and chews a basket in the process, Rav Yehudah said he has to pay in full for the bread and half for the basket which the Gemara explains is because the donkey ate the bread and returned to chew on the basket- if it were in the same act in normal eating, both would have to be paid in full.

    • The Gemara then questions if the bread is actually normal for even a wild animal to eat- the answer is it's not natural for it to eat something roasted, for deer to eat meat and a פתורא.

    • Rashi explains פתורא to mean off a table (in an unnatural way)

    • Rashba says it means a crouton, פתותא

    • This directly relates to our issue with the sprinkler because according to Rashi, it is not normal for an animal to jump to get something and Avi would have to pay for half damages (קרן). We hold like Rashba though and hold that it is normal for a wild animal to jump to get food and therefore Avi has to pay full damages for the sprinkler (שן)

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