1) AN ANIMAL SUSPECTED OF KILLING
QUESTION: The Gemara records a dispute between Rebbi Acha and the Tana Kama in the case of an animal suspected of killing another animal. The Tana Kama discusses a case in which two oxen were grazing together, and then one is found dead. The Tana Kama states that even if the surviving ox is known to be a Mu'ad to bite other oxen, and the victim was bitten, it cannot be assumed unequivocally that the Mu'ad ox was the perpetrator.
Rebbi Acha discusses a case in which a camel was "Ocher Bein ha'Gemalim" (see RASHBAM, DH Gamal ha'Ocher, RABEINU CHANANEL, and RASHBA), and a dead camel was found next to it. Rebbi Acha says that it is clear that this camel is considered the one who killed the victim.
TOSFOS (DH Rebbi Acha) asks that the Gemara in Bava Kama (24b) seems to follow the view of Rebbi Acha. The Gemara there discusses a case in which a person was informed that among his herd of oxen was an ox with a tendency to gore, and that he therefore should watch his entire flock. When the fourth case of goring occurs, it is assumed that it was the ox who had the tendency to gore. The Gemara there seems to describe a case in which the ox is never actually caught goring, but nevertheless is blamed for all of the goring which was done. This seems to follow the view of Rebbi Acha, because the Rabanan would rule that an ox is not deemed to be the killer simply because of its proximity to the victim. Does the Gemara in Bava Kama indeed follow the opinion of Rebbi Acha?
ANSWERS:
(a) TOSFOS answers that the Gemara there indeed follows the view of Rebbi Acha.
The AYELES HA'SHACHAR questions why Tosfos assumes that the Gemara there follows the view of Rebbi Acha. Rebbi Acha said his Halachah only in the case of a camel which was acting up ("Ocher Bein ha'Gemalim") and was then found next to a dead camel. He never said that if an animal gored once (and is not a Mu'ad) that Beis Din may assume that the animal is responsible for all gorings.
(b) In his second answer, Tosfos suggests that the Gemara in Bava Kama follows even the view of the Rabanan. It is possible that the Gemara there refers to a case of an animal that gored in front of witnesses, and then other witnesses came forward and testified that they saw the same animal gore on the three previous occasions as well. (Y. Montrose)
93b----------------------------------------93b
2) HALACHAH: IS A "SOFER" OBLIGATED TO PAY FOR HIS FAILURE TO PRODUCE THE DESIRED RESULT?
OPINIONS: The Gemara lists various examples of workers who fail to do the job they are supposed to do. One example is a baker who is given dough to bake bread, and his finished product turns out to be crumbs. Another example is a Shochet who is given an animal to slaughter, and he performs an invalid Shechitah and renders the animal a Neveilah. In these cases, the worker is obligated to pay for the goods that were given to him, since he has the status of a Shomer Sachar. Raban Gamliel adds that the worker is also obligated to pay compensation for any embarrassment experienced by the owner as a result of the worker's failure to do his job (such as where the bread or meat was needed for a dinner party).
Does this Halachah apply to a Sofer who was commissioned to write a Sefer Torah, but the Sefer Torah he produced contained irremediable mistakes?
(a) The SHULCHAN ARUCH (YD 281:5) rules that a Sofer who says that he did not write the name of Hash-m with the proper intentions (Lishmah) is believed with regard to losing his wages, but he is not believed to invalidate the Sefer Torah. What is the reason for this distinction? The Shulchan Aruch writes that a vengeful Sofer might think that he can cause great financial damage to the one who commissioned him to write the Sefer Torah if he says that he did not write the name of Hash-m properly, while he causes himself only the loss of the money which he earned for writing the name of Hash-m. This Sofer ends up accomplishing just the opposite; the Sefer Torah itself is deemed valid, while he loses all of his wages.
(b) The REMA (ibid.) writes that although the Sofer loses his wages for writing the Sefer Torah, he must be paid the value of an invalid Sefer Torah, which is the value of an ordinary Chumash. However, the PISCHEI CHOSHEN (chapter 13, note 39) writes that the Rema's ruling applies only in places where an invalid Sefer Torah is used as a Chumash. Nowadays, when an invalid Sefer Torah is not used as a Chumash, the Rema agrees that the Sofer indeed receives nothing.
However, the MAHARAM SHIK (YD 284) writes that the Shulchan Aruch's ruling applies only in a case where the Sofer was supposed to provide a finished product to the person who commissioned the writing of the Sefer Torah. In such a case, the person does not have to pay anything for the Sefer Torah. However, if the parchment was supplied by the person commissioning the Sefer Torah, the Sofer does not have to pay for the fact that he technically damaged the parchment, even though it is no longer usable. This is because of the Halachah that "Hezek she'Eino Nikar Lo Shmei Hezek" -- unnoticeable damage is not considered damage for which one is liable. Since the only problem with the Sefer Torah is that the name of Hash-m was not written Lishmah, this form of damage is included in the category of "Hezek she'Eino Nikar." (Y. Montrose)