The Mishnah (5:2-3) discusses a number of cases where one leaves his items in another's property. They include the potter leaving his wares, a person leaving his produce and another that leaves his ox. In each of the cases the Mishnah rules that if the ba'al habayit (the owner of the property) did not allow the items to be left there, then the owner of the items is responsible for any damage these items caused, while the ba'al habayit is exempt from any damage caused to those item. If however they are left with the permission of the ba'al habayit then he takes responsibility for any damage caused to these items, while the owner of the items is exempt if they caused any damage. In the second Mishnah however, Rebbi argues that even if the ba'al habayit allowed the items to be placed there, he is not liable for any damage caused to these items unless he explicitly accepts responsibility for guarding them.
What would Rebbi maintain if the ba'al habayit allowed the ox to be in his property, did not accept responsibility for watching the animal and the animal caused damage? The Tosfot Yom Tov explains that since he was given permission for the animal to be in the premises, the owner would be exempt for paying damages. He continues citing the Magid Mishnah, that once the ba'al habayit granted permission for the ox to enter, but did not take responsibility for any damage caused to the animal, it is as if they stipulated that neither the ba'al habayit or the owner would be responsible for any damage. The Magid Mishnah cites the Tosfot (47b, eima) as the source of the logic.
The Tosfot R' Akiva Eiger however notes that the Tosfot concludes that in this case the owner of the ox would be liable to pay for any damage caused. The Tosfot R' Akiva Eiger explains that if this ox gored another he would still be liable to half the damages. This is because once given permission to bring his ox inside, the area would be considered like a chatzer ha'shutafim – a courtyard owned by both parties – in which the owner would still be required to pay half the damage caused. Considering the earlier cases where the item left there was either pottery or produce, if those items where the cause of damage (e.g. the ba'al habayit's animal tripped on them), then Rebbi would maintain the owner would be exempt. This is because the owner was given permission to place his items there, the damage was passive and the owner did not take responsibility to look after the ba'al habayit's property.
The Chazon Ish (Bava Kama 4:1) explains in a similar manner, that once permission is granted it is considered like a shared domain. Consequently, if the ba'al habayit's ox stumbled and injured itself on the foreign ox, then the owner would be exempt (much like if it stumbled on the pottery). Nevertheless, if the ba'al habayit's ox gored and injured the foreign ox, then the ba'al habayit would not be liable. It is not considered a shared domain in this respect, because since the ba'al habayit did not agree to look after the ox, his granting of permission of entry does not include granting the owner of the ox the right to claim any damage done to his ox.
The Tosfot R' Akiva Eiger however cites the Rosh that disagrees. The Rosh explains that in this case where the ba'al habayit only granted permission for the items to be placed there, Rebbi would maintain that the owner is responsible for all damage caused, whether dealing with the case of the ox or pottery. The reason is that when granting permission and agreeing to watch the items, it is considered as if the ba'al habayit stipulating that "you can place the items there, but you must look after them, and you are responsible for any damaged they cause or bear. The Tosfot R' Akiva Eiger explains that according to this understanding it is considered as if the owner is stating that the owner's placing his items there is considered as if he is placing them there without permission.1
1 The Tosfot R' Akiva notes that this is indeed how the Maharsha explains the Tosfot. He nevertheless maintains his explanation of the Tosfot.
Receive our publication with an in depth article and revision questions.
Listen to the new Mishnah Shiurim by Yisrael Bankier