Yerushalmi Bava Kamma 6:1 ירושלמי בבא קמא ו׳:א׳

MISHNAH: ¹In the Babli and the independent Mishnah mss., the text reads:
He who brings a flock into a corral and locks it as he should, but they managed to get out and caused damage, is not liable. If he did not lock them in as he should, they managed to get out and caused damage, he is liable.
It seems that this text also underlies the Yerushalmi Halakhah; the shortened version may be a scribal error. He who brings a flock²Sheep and goats are notorious for eating everything edible in their way; in this respect they can be compared to a bull known to be goring. into a corral and locks them in as he should³The Babli, 55b, defines “locking in as one should” as a minimal standard: fencing, including the doors, which can withstand a normal wind but not necessarily a storm. There is no reason to assume that the same minimal standard is accepted in the Yerushalmi., but they managed to get out and caused damage, is liable. If they broke out in the night⁴When it could not have been noticed by the rancher. or robbers broke in and they managed to get out and caused damage, he is not liable. If robbers let them out⁵As the Halakhah explains, the robbers are liable only if they led the flock out for their own purpose. The case that they broke into the corral and the flock left through the breach is covered by the preceding sentence., the robbers are liable.

HALAKHAH: “He who brings a flock into a corral,” etc. Rebbi La in the name of Rebbi Yannai: In disagreement⁶The Babli refers the Mishnah to a disagreement in Mishnah 4:10 about a bull which was tied down with a rope and locked in, where R. Meïr does not absolve the owner from liability but R. Jehudah does. It is asserted that the Mishnah in the version of the Babli and the independent Mishnah mss. is R. Jehudah’s, but the Mishnah in the version of the Yerushalmi is R. Meïr’s.. Rebbi Eleazar said, it⁷The long version of the Mishnah. is everybody’s opinion. Rebbi La said, Rebbi Eleazar’s statement is convincing since watching the animal itself is written only for “horn”⁸Only for a notoriously goring bull does Ex. 21:36 require that the animal be under the control of a human 24 hours a day; Babli 55b. It follows that for damages classified as “tooth” or “foot”, even R. Meïr may agree to the long version of the Mishnah.. What about it? Rebbi Simeon ben Laqish said, in disagreement. Rebbi Eleazar said, it is everybody’s opinion. Some say, it follows Rebbi Eliezer ben Jacob who said⁹In the case of Mishnah 4:10; the text is Tosephta 5:7; cf. Chapter 4 Note 127., in no case is he liable¹⁰R. Jehudah would agree with the short version of the Mishnah..

¹¹In case the animals escaped in the night. So far if [the corral] was fenced in on four sides. If it was fenced in on three sides and breached on one side¹²As the text stands, it seems to make no sense. Nobody can claim that animals are “locked in as they should be” if they are brought to an area open on one side. E reads “[the robbers] breached”; it has to be rejected since the Genizah text supports L. One has to explain that the corral is fenced in on all four sides but while three sides are strong enough to withstand a concerted push by the flock, the fourth side is not. In that case, was the escape of the flock to be foreseen and should the rancher be liable?, and [an animal] left through the breach, what is the rule? Let us hear from the following¹³Tosephta Bava Meṣi‘a 11:7.: “If his wall fell in from the noise of earthquakes¹⁴In the Genizah text and the Tosephta: “because of an earthquake”. or thunder and he rebuilt it as required, he is not liable¹⁵If he followed the local building code, but the wall collapsed again and somebody was hurt in the collapse, the builder is not liable., otherwise he is liable.¹⁶Therefore, the rancher is liable for damages by animals escaping through a substandard fence.” The only problem is if three better built walls fell together with it¹⁷The question remains whether a builder is responsible for damages from the collapse of a substandard wall (or fence) when the same incident also destroyed walls built to local standards..

It was stated¹⁸Tosephta Šebuot 3:1–3, Babli 55b.: Rebbi Joshua said, four persons are not required to pay¹⁹He holds that damages caused indirectly cannot be recovered in court. but Heaven will not forgive them until they pay up: A person who knows testimony beneficial to another but does not testify^19aHe refuses to appear as a witness in another person’s civil case who as a consequence loses his suit. The person refusing to be a witness has the moral obligation to idemnify the other. is not required to pay but Heaven will not forgive him until he pays up. A person who hires false witnesses²⁰In money matters. This is indirect causation since “there is no agency in criminal matters”; the responsibility of a person knowingly committing a criminal act is not diminished by his performing the act for the benefit of another person. against another and collects is not required to pay but Heaven will not forgive him until he pays up. A person who bends standing grain towards a fire²¹He causes a wildfire to burn agricultural produce which but for his intervention might have been spared. or who makes a breach in a fence for animals²²He lets the animals find the breach later on their own. This case explains why robbers who break into a corral and thereby create a possibility for the animals in the corral to escape cannot be sued for the damage caused later by the animals. is not required to pay but Heaven will not forgive him until he pays up.

“If robbers let it out, the robbers are liable.” Rav Hoshaia said, if they let it out as part of their robbery²³Since they took the animals as their property, they take the liability with them.. But if they let it out to get lost, the robbers are not liable²²He lets the animals find the breach later on their own. This case explains why robbers who break into a corral and thereby create a possibility for the animals in the corral to escape cannot be sued for the damage caused later by the animals..