Translation:
The proper management of domestic animals takes up an inordinate amount of space in mishnaic texts. Since many people owned sheep and cattle, and these animals posed dangers of allowed to wander and graze at will, there had to be constraints placed upon their owners for the public welfare. The owner of the animals bore a significant degree of liability, but that liability was itself kept within a reasonable limit.
The Text :
A man brings a flock into a pen and secures the pen properly. The flock manages to escape the pen and causes damage. The man is not held liable for that damage. He is liable if he did not secure the pen properly.
If (the wall? the gate?) was (somehow) breached during the night (despite the proper securing of the pen), or if robbers broke into the pen (and in either case) the animals got out and caused damage, the man is not liable (for that damage.)
If the robbers (in any fashion) caused the animals to leave the pen—and the animals caused damage, the robbers are held liable for such damage (as well as for the robbery itself.)
Comment :
The Gemara sets the standard for “proper security” as strong enough to withstand the force of a normal wind—but not necessarily an abnormal, powerful wind storm. One can imagine the wrangling in court over what was and what was not adequate security or a violent wind.
In the matter of the robbers, the likelihood is that the thieves wanted one or two animals and the others simply wandered into the fields through the broken gate. Presumably the pens for sheep and cattle were far enough away from houses so that the noise of the break-in or the noises made by the disturbed animals because of it would not awaken the owner at night. This consideration suggests some details of the configuration of farmsteads in the mishnaic period.
Questions :
1. What factors might be important in determining the amount of any restitution?
2. In cases where robbers are involved, what do you suppose the chances were of their actually being caught and put on trial for the theft of the animals and the damage caused by the animals they let loose? If they were convicted, what might happen to the liability of the animals’ owner?
3.Does this Mishnah strike you as more theoretical or more practical?
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