Pinny had two pet budgies in a cage. He decided to release
them. He took the cage to the window and removed the first. The bird flew
happily away. When it came to the turn of the second bird, it was not so
fortunate. It seems it had forgotten how to fly. When it was released, it
fell straight into a huge pot of chicken soup which was cooling on the porch
below! The neighbour now claims the cost of the soup from Pinny, since he
negligently dropped the bird into his soup and rendered it inedible. Since
the non-kosher budgie made the pot treif (unfit for use), he also
claims the cost of kashering the pot. Pinny counters that he had already
relinquished ownership of the bird before it fell in the pot and is therefore
not liable for the damage. Who is right?
The Torah makes a person liable for any damage he directly
causes. He is not only responsible for damage caused by his body, but also
for that which is caused by his property. This responsibility ceases the
moment he relinquishes ownership of the property (with the exception of
bor – creating an obstacle in the public domain). Thus, if a person
declared his ox hefker (ownerless), he would not be liable for any
subsequent damage caused by this animal (Tractate Bovo Kamo 13b).
Reuven stood up. A stone which had been resting in the
folds of his clothes fell from his fifth floor porch and broke the Ming vase
the ground floor neighbour had standing in his garden. Although Reuven had no
idea that the stone was there, he is liable for the damage it caused. Even if
he is not the owner of the stone, he remains responsible. If someone had
placed it on his lap without his knowledge, this would not change the law.
Our Sages inform us (Ibid. 26b) that a person is held responsible for all
damage he directly caused, albeit inadvertently. This ruling is brought down
by the Shulchan Oruch (Choshen Mishpot 421:10), who mentions
that a person is even liable for damage he caused in his sleep.
In our case, the last thought that entered Pinny’s head
when he released the second budgie was to throw it into the neighbour’s soup.
And yet it is possible that he would be liable for the damage he thereby
caused. It all depends on the precise course of events after he released the
bird. If it flapped its wings and flew a short distance before plunging into
the soup, Pinny is not liable for the damage. The moment he let go of the
bird, he declared it hefker. It was therefore an ownerless bird which
ruined the neighbour’s soup. On the other hand, if the bird fell directly
into the soup, we view this as Pinny inadvertently throwing the bird into
the soup. This case would then be similar to that of Reuven inadvertently
throwing a stone which was hiding in his clothes by standing up. The fact
that he is unaware of the stone’s presence does not exempt him from
As regards kashering the pot, Pinny will always be exempt.
Rendering the pot non-kosher is not a visible type of damage. When it comes
to damage which is not visible (hezek she’aino nikar), our Sages only
make a person liable if he intentionally inflicted such damage. If, as in our
case, the invisible damage was caused unintentionally, there is no liability
(Tractate Gittin 53a).
The need for kashering only arises if the soup was still
hot when the bird fell in. If it was cold, one could theoretically still
consume the soup after extracting the budgie. Could Pinny then argue that his
neighbour needlessly threw out the soup and thereby claim exemption from
payment? Rav Spitz (Mishptei HaTorah, Bovo Kamo No.14) asserts
that this argument is invalid. Edibility is not just dependent on kashrus.
When a live creature falls into food, it makes it unhygienic and