Q. Before Purim, a seminary hired someone to bring animals to the school, including a caged snake and a lizard. The animal owner left the seminary for a few minutes, and in his absence, a girl opened the snake’s cage. Before anyone could react, it jumped out and swallowed the lizard alive.
When the owner returned and saw what had happened, he demanded that the student pay 800 shekel for the lizard.
After receiving payment, he turned to us and posed a she’eilah, asking whether he was truly entitled to payment.
A. There are two parties who we might think could be liable in this case: The seminary administration might be liable, because when they rented the animals, they might have assumed the status of a shomer sachar (paid guardian); and the student, who was certainly not a shomer, but she might be liable as a mazik (a person who causes damage).
According to Halachah, the seminary administration is not liable, because they never accepted personal responsibility to guard the animals, which were in the possession of their owner the entire time.
The student’s potential liability is more complex.
If a person stole an animal, he is liable for any damage it inflicts from the moment of the theft, assuming that he intended to acquire the animal for himself (see Choshen Mishpat 389:7 with Sma 7 regarding damage caused by a snake). If he stole it intending to release it, however, he is not liable for the damages; since he had no interest in taking ownership of it, he is not obligated to guard it (ibid. 396:3 with Sma 6 and Shach 1).
In our case, it is obvious that the student had no intention of acquiring the snake. Moreover, she did not make any kinyan (acquisitional act) on the snake by opening the door and allowing it to escape; enabling an animal to go free is not an act of theft.
There is a dispute between the Beis Yosef and the Rema (ibid. 396:4) regarding a case in which a person destroys a gate that prevented another person’s animal from escaping, and the animal then causes damage. The Beis Yosef rules, based on the approach of the Rambam (Hilchos Nizkei Mammon 4:2) that the person who destroyed the gate is liable for the damages caused by the animal. But other Rishonim express surprise about the Rambam’s ruling, since this was only a grama (causational damage, not direct damage). The Rema rules that since no action was done to the animal itself, destroying the gate was a grama, and the person is not liable for the damages caused by the animal. (See ibid. regarding liability for the animal that escaped, and see BHI issue #522.)
Some poskim write that even the Beis Yosef rules this way only if the person who destroyed the gate specifically intended to have that animal cause damage; otherwise, he would agree that it is a grama and the person is not liable (see Migdal Oz ibid.; Bei’ur HaGra 396:8; Chazon Ish, Bava Kamma 1:6, among others).
In Halachah, we follow the ruling of the Rema, who rules that the person who destroyed the gate is not obligated to pay for damages caused by the animal (Shu”t Maharashdam, Choshen Mishpat 365, cited by Shach 396:2; Chavos Yair 204).
In the case of the girl who released the snake, even the Beis Yosef would agree, according to some poskim, that she is not obligated to pay, because her intention when she opened the cage was not to have the snake cause damage.
Like any other grama, however, the girl is required to pay latzeis yedei Shomayim (to avoid Divine justice).
The poskim debate what the halachah is if someone paid for damages because he thought he was obligated to do so according to the letter of the law, but in reality, his obligation was only latzeis yedei Shomayim. Some poskim require the victim of the damage to return the money, because had the mazik known that his obligation was only latzeis yedei Shomayim, he might have decided not to pay (Shu”t Beis Yaakov 60, cited in Pis’chei Teshuvah, Yoreh Dei’ah 161:3). Others argue that the victim is not required to return the money (Ketzos HaChoshen 75:4; see Imrei Binah, To’ein Venitan 7).
In our case, it is possible that all poskim agree that the animal owner is not obligated to return the money, because the girl paid out of mentchlichkeit, not because she thought she had a halachic obligation to do so, as evidenced by the fact that she never asked whether she was obligated by Halachah or by law to pay for the lizard. Only if the animal owner had told her that she was halachically obligated to pay, and she had paid based on his statement, would he be obligated to return the money.
