Kilei Kerem – Recognisable Damage

Kilayim (7:4) | Yisrael Bankier | 5 years ago

The Mishnah records a debate regarding a case where one takes the branches of his vines and covers the produce of another’s field. According to the first opinion, the produce becomes assur and the owner of the vineyard must compensate the owner of the produce for the loss. R’ Yossi and R’ Shimon however argue that in the context of kilei ha’kerem, one cannot make the another’s produce assur. Previously (Vol 1, Iss 18) we looked at the opinion of R’ Yossi and R’ Shimon. In this article we will try to understand part of the opinion of the Tana Kama.

The Gemara (Bava Batra 2b) discusses a similar case, in which a fence dividing a vineyard and field falls. The Gemara explains that the owner of the field can instruct the owner of the vineyard to rebuild the fence. Rashi explains that ordinarily without a fence, one is not allowed to plant any trees within four amot of another’s field. Rashi (26a) also explains that this is so the owner of the orchard will not stray into the field when ploughing the soil of the orchard. Since this law applies to the vineyard owner, he is responsible for repairing the fence. The Gemara continues that if he neglects to do so, then much like in our Mishnah, the produce becomes assur and vineyard owner must compensate the field owner for the loss incurred.

The Tosfot explains that ordinarily we rule, hezeik she’eino nikar lo shemei hezek – damage that is not recognizable is not considered damage. One example of this is where one makes another’s taharot tameh (Gittin 53a). The Tosfot argues that this case is different because one can see the vines are too close to the field. One might argue, that one can also see a sheretz (a source of tumah) being placed on the food, so that damage there should also be considered recognizable. The Tosfot answer however that even if a sheretz was placed on the food, it does not mean that it is tameh as the food may not yet have undergone hechsher. Consequently, the damage is not recognizable.1

The Tosfot reject the following alternate solution. One might suggest that in this case, the damage is really not considered recognizable. Nevertheless, we find that in the case of metameh the Chachamim instituted a knas (fine) in order to deter such malicious practices. Similarly, in this case, perhaps the obligation to compensates is simply a knas. The Tosfot rejects this suggestion since in our case, the vines too must be destroyed. Since the vineyard owner will be losing out as well, there would be no need for an additional deterrent. Furthermore, if it were a knas it should only be applied where case was meizid – deliberate.

The Ramban (Kuntrus Dinei DeGarmi 26) provides a different reason to differentiate between our case and the case of metameh. He explains that once the vineyard owner gives up on repairing the fence, the mixture is assur since the violation is recognizable. He continues that it is different to the “damage” done by the sheretz since the mixture of the vineyard and field is one that persists until it is returned to its original state.

Rav Lichtenstein (Shiurei HaRal, Dinei DeGarmi, p. 67) explains that much like the Tosfot, the Ramban’s position is based on outside observation. However, there is still a fundamental difference. According to the Tosfot it appears that distinction is based on whether an observer can recognize whether the violation and resulting damage has occurred. According to the Ramban however, the consideration is whether a change has occurred in the identity of the object in question. In the case of metameh there has been no change in identity of the food, the change is purely legal – it was tahor and now it is tameh. In the case of kilei hakerem however on a physical level there is a new identity. Previously there was a vineyard and field – both separate and distinct. After the fence falls there a new mixed entity that did not exist before. In other words, for the damage to be recognizable, according to Ramban, there must be a recognizable physical change as well as a legal one.

1 Rav Lichtenstein asks that the same rationale can be applied to kilei hakerem in order to define the damage as not recognisable. Recall that if the owner is not happy with the presence of kilayim (and makes efforts to remedy the situation) then it does not become assur. Since it not apparent to an observer whether the presence of the kilayim is pleasing or not then it should be considered hezek sheino nikar.


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