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By: Reb Avi Lebowitz
The Gemora quotes from a braisa that if one fails to fence his vineyard, thereby causing the adjacent produce owned by someone else to become forbidden as kilayim, the owner of the vineyard is responsible to pay for the damage.
Tosfos asks: Why is the owner of the vineyard liable to pay? It should qualify as a hezek sh’eino nikar – an unrecognizable damage, which is not considered a damage?
Tosfos answers that even if the damage isn’t recognizable in the object, so long as the context of the situation looks like a damage, i.e. the vines growing near the produce without a fence separating, it is considered a damage that is recognizable and the owner is liable.
Tosfos asks: If this is considered “recognizable,” why do we considered it to be an unrecognizable damage when one takes a sheretz (creepy insect) and places it on his friends taharos? There too, the context of the situation should qualify as a damage recognizable?
Tosfos answers that since tumah requires not only contact between the sheretz and the taharos, but also requires hechsher (the food must become moist willingly to be susceptible to tumah), that aspect is still not recognizable and therefore qualifies as a damage which is not recognizable.
The question is, however, that Tosfos just got finished saying that kilayim is not merely a situational prohibition of mixing produce and grape vines. Kilayim is only created if the owner “wants it.” Based on this, Tosfos explains that so long as the owner is doing whatever possible to build a fence, even though the kilayim grew .5% prior to the fence being erected, it is not considered a kilayim violation. Since kilayim also has its own set of prerequisites to become forbidden – only if the owner fails to put in the effort of building the fence, which is not necessarily recognizable, we should consider kilayim a damage which is not recognizable, just as we consider tumah a damage which is not recognizable (due to the lack of recognition that it became huchshar l’kabel tumah)?
Tosfos apparently holds that by kilayim the prohibition is a metzius of growth. We don’t require the consent of the owner to create the prohibition; just that if the owner makes an effort to build a fence and demonstrates that he doesn’t want the kilayim, the prohibition can be avoided. Tumah requires a positive act of hecsher to create the status of tumah, therefore it is considered “not recognizable,” but kilayim doesn’t require a positive act to become forbidden (rather, a positive act to repair the fence will prevent the prohibition).