Halakhah for Bava Kamma 115:10

מי אמרינן כיון דתחלתו בפשיעה וסופו באונס פטור או דלמא הכא כולה בפשיעה הוא דכיון דקא חזי דקריבה לה למילד איבעי ליה לנטורה

If, however, it went from one bed to another bed, the payment8 would be for the amount of damage done by it. R. Johanan, however, said that even where it went from one bed to another bed and did so even all day long, [the payment would be made only to the extent of the benefit], unless it left the garden and returned there again with the knowledge [of the owner]. R. Papa thereupon said: Do not imagine this to mean 'unless it left the garden to the knowledge of the owner and returned there again with the knowledge of the owner', for as soon as it left the garden to the knowledge of the owner, even though it returned again without his knowledge [there would already be liability],9 the reason being that the plaintiff might [rightly] say: Since it had once become known [to it where it can find fruit, you should have realised that] whenever it broke loose it would run to that place. IF IT WENT DOWN THERE IN THE USUAL WAY AND DID DAMAGE, THE PAYMENT WOULD HAVE TO BE FOR THE AMOUNT OF DAMAGE DONE BY IT. R. Jeremiah raised the question: Where it had gone down there in the usual way but did damage by water resulting from giving birth,10 what would be the legal position? If we accept the view that where there is negligence at the beginning but [damage actually results] in the end from sheer accident there is liability,11 no question arises.12 Where we have to ask is if we accept the view11 that where there is negligence at the beginning, but [damage actually results] in the end from sheer accident there is exemption. What [in that case is the law]? Should we say that this is a case where there was negligence at first but the final result was due to accident, and therefore there should be exemption, or should we say [on the contrary that] this case is one of negligence throughout, for since the owner could see that the animal was approaching the time to give birth, he should have watched

Contemporary Halakhic Problems, Vol V

The Mishnah, Bava Kamma 115b, describes a situation in which two donkeys belonging to separate masters are in danger of drowning. The Mishnah declares that if the owner of the less valuable donkey offers to rescue the more valuable donkey on the condition that the latter's owner compensate him by the loss of his own less valuable donkey, the rescuer's claim for such compensation is valid. The Gemara, Bava Kamma 116a, reports that Rav Kahana asked Rav whether that is so only if the rescuer's own donkey actually perishes or whether he is entitled to such compensation even if the rescuer's donkey manages to escape drowning on its own accord. The Gemara reports that Rav replied, "Heaven acted favorably toward him," i.e., the contract is enforceable. Or Sameaḥ that the ruling is obviously predicated upon rejection of the claim that the obligation was assumed by the donkey owner only because he believed that the rescuer would suffer a loss as a result of neglecting his own animal but that he had no intention of compensating the rescuer for a loss that did not actually occur.¹³Harei Besamim cites this talmudic discussion but maintains that the rescuer did indeed suffer a loss in abandoning his donkey in turbulent water as a result of which it became res nullius. Reclaiming his donkey afterwards, contends Harei Besamim, is, in fact, tantamount to acquisition of new title to abandoned property. Or Sameaḥ, citing the dialectic of that discussion, argues that the Gemara did not regard the donkey as res nullius. See also the discussion of this issue by R. Moshe Yonah Zweig, Ohel Mosheh, III, no. 33. That claim is impliedly dismissed on the grounds that a fortuitous "act of God" is of no relevance to the express terms of the contract. A fortiori, argues Or Sameaḥ, the lessor's own foresight in seeking insurance is of no relevance to the contract between himself and the lessee.

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