The Gemora discusses the opinions in the Mishna regarding wild animals, citing three opinions:
1. The Sages say that all animals, wild or not, are killed only if they kill, and then only in a court of twenty-three.
2. Rabbi Eliezer says that wild animals should be killed by anyone, without waiting for a court.
3. Rabbi Akiva says that only a snake should be killed by anyone, without waiting for a court, but all other animals must be killed only by a court of twenty-three.
Rish Lakish and Rabbi Yochanan differ on the terms of Rabbi Eliezer’s and Rabbi Akiva’s exceptions. Rish Lakish says these animals are only killed when they kill, while Rabbi Yochanan says that these animals are killed under any circumstances, since they are inherently dangerous.
Tosfos (15b v’Rabbi Yochanan) compares our Mishna to the Mishna in Bava Kamma (15b), which discusses which animals are presumed to be accustomed to damage, and therefore must pay full damages in all cases. The Mishna says that the Sages consider all wild animals to be accustomed to damage, while Rabbi Elozar says that they can be domesticated. However, all agree that a snake is considered accustomed to damaging. [Tosfos points out that Rabbi Elozar in the Mishna in Baba Kama is not identical to Rabbi Eliezer in our Mishna.] Tosfos asks how we can reconcile the Mishna in Bava Kamma, in which all agree that a snake cannot be domesticated and is assumed, a priori, to be dangerous, with Rish Lakish’s position in Sanhedrin, that all agree that a snake which has not killed may not be killed. Tosfos offers two answers:
1. In order to actually kill the snake, it must have proven its danger by killing someone. However, we assume any snake is potentially dangerous, and we therefore require the owner to guard the snake well, obligating him in full payment in the case of actual damage.
2. Rabbeinu Tam says that the Mishna in Sanhedrin refers to animals that were simply domesticated by training. All agree that a snake cannot be trained, and is still dangerous. However, the Mishna in Sanhedrin is referring to animals that have been restrained (e.g., by chains). Such protection is the subject of the dispute in the Mishna, and Rish Lakish’s limitation.
The Rambam (Sanhedrin 5:2) rules like Rabbi Akiva, according to Rish Lakish’s explanation.
The Rishonim point out that we rule like Rish Lakish since the Gemora brought a braisa which supports him.
The Ra’avad, however, challenges the Rambam’s ruling like Rabbi Akiva, since we generally rule like the Sages against Rabbi Akiva.
The Radvaz says that the Rambam accepted Rabbi Akiva’s special treatment of a snake, since the Mishna in Bava Kamma (15b) explicitly states that a snake is always considered in the habit of damaging.
The Rashash explains that although Tosfos distinguished between the Mishnayos, we still see in the Mishna in Bava Kamma that a snake is treated differently than other wild animals. From that case, we extrapolate to the case of our Mishna.
The Kesef Mishnah says that the Rambam ruled like the majority of opinions in each case. In the case of all wild animals except for a snake, both Rabbi Akiva and the Sages rule that a court of twenty-three is needed, while in the case of a snake, both Rabbi Akiva and Rabbi Eliezer rule that anyone should kill it. [See the Rashash for a discussion of the status of the Sages in such an analysis.]
The Noda beYehudah (Mahadura Tinyana Y”D 10) discusses whether someone may hunt for sport. He first analyzes the potential formal prohibitions, including tza’ar ba’alei chayim – causing pain to creatures, and bal tashchis – not wantonly destroying, and says that they are not applicable to such a case. However, he states that hunting for no gain (e.g., meat or hides, or for employment) is not a Torah value, with the only examples in the Torah of such behavior being Nimrod and Esav. He raises the possibility that one may hunt and kill wild animals, in accordance with Rabbi Eliezer, who says that anyone should kill wild animals, due to their danger. He rejects this on two counts:
1. This does not fit with our ruling. We rule like Rish Lakish, who limits the Mishna to a case where the animal already killed. Even under those circumstance, we rule like Rabbi Akiva, and not like Rabbi Eliezer.
2. The Mishna is only discussing wild animals who are among people, and allows one to kill them to protect the people. However, wild animals that are in their natural habitat, not threatening people, are not considered a danger to be eliminated.
Finally, he prohibits such hunting, since the sport itself is inherently dangerous, as expressed by Esav, who told Yaakov that he is going to die young, due to his sport. Although the Torah allowed one to put oneself in danger for employment, the Torah did not allow this simply for sport.
HALACHAH ON THE DAF
The Gemora explains that the difference between the Tanna Kamma and Rabbi Akiva (which at first glance both Tannaim seem to be saying the same thing; a wolf, lion etc. that killed a person must be killed by a Beis Din of twenty three), is if a snake killed a person. According to Rabbi Akiva, it is not in the same category as the wolf, lion etc. while the Tanna Kamma is of the opinion that it is.
Rashi explains Rabbi Akiva according to the Mishna in Bava Kamma (15b), where there is a dispute between the Tanna Kamma and Rabbi Eliezer whether a wolf, lion etc. automatically have a status of a mu’ad (an animal which is established after three times that it damages) or not, but they both agree that a snake is always considered a mu’ad.
The Shulchan Aruch (Choshen Mishpat 389) explains the concept, possible scenarios, and their various halachic outcomes.
Any creature which is owned by a person that damages, the owner is liable to pay. This does not apply to a slave (Tur). Not all damages are paid in full, rather, only damages that can occur when the creature does an action that comes naturally to it. For example, an animal that caused damage by eating someone else’s hay, or if it stepped on items while walking, these types of cases would require the owner to pay in full, since the owner should have thought of that natural scenario and stopped his animal from damaging. In instances where the animal damaged in an unnatural way, for example, a cow that bit someone, then he only pays half of the damages.
Therefore if an animal damages three times in the same unnatural manner, then we say that this particular thing (for example biting) became natural to this animal, so the owner would have to pay for the damages in full. This is the logic behind tam and mu’ad.
However, there are six creatures (wolf, lion etc. and snake) which the Chachamim determined are naturally inclined to cause damage, even if they are domesticated, so it will make no difference as to what specific action caused the damage, for any action it does, it will have the status of a mu’ad, and therefore the owner is liable to pay in full.
However, the Rema disagrees and is of the opinion that only a snake has an automatic status as a creature that will damage through any action, but the other five are only a mu’ad for specific actions that are natural to them, for example, a lion to be doires and a wolf to be toref, but not vice versa.