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פרק שלישי
Siman: אינו שן
Context:
In the third Perek, the Rambam continues with his explanations of irregular cases. In the first
Perk the Rambam explained the general principles of שן. In this Perek, the Rambam
discusses irregular cases of שן.
פסוקים:
Concepts:
1. ב-א:(שן (ג
The animal’s destructive behavior is only considered שןif the animal’s action fulfills the
following 3 criteria.
a. The food was eaten ברשות הניזק, as the Possuk, Exodus 22:4, teaches us ושילח את
בעירה ובער בשדה אחר.
b. The animal must have purposely entered the ’ניזקs property. This too is derived
from the Possuk, Exodus 22:4, specifically from the word ""ושילח.
c. The food that the animal ate must be food that the animal regularly eats. Food that
the animal will eat under duress is considered within the category of regular food.
a. If the animal’s action does not fulfill the 3 criteria of שן, then the ניזקcan still seek
an alternative form of compensation called הנאה. By eating the ’ניזקs food, the מזיק
saved himself the expenses of having to provide his animal a meal. The ניזקcan
charge the מזיקfor the meal that he provided the animal.
b. The הנאהpayment is not for the food that the animal ate, but rather, it is the
volume of food he ate in animal food. Since the ניזקis charging the מזיקfor the
meal he saved him from feeding his animal, the determination of הנאהis on animal
food and not the actual food the animal ate.
c. The ניזקcan only charge for the הנאהthat he provided the ’מזיקs animal, if the food
that the animal ate was not damaging. However, if it was unhealthy, e.g. a cow
that ate חיטין, then the ניזקcannot charge for הנאה, since by definition damaging
food cannot provide הנאה.
In order for the animal’s action to be defined as שן, the אכילהmust take place in the
רשות הניזק. However, there is a question regarding an animal that took food from the
רשות הרביםwhile standing in the רשות הניזקand ate it in the רשות הניזק. Since we are
מסופקas to whether this deficiency in the לקיחהconstitutes שן, the מזיקonly pays הנאה
and not שן.