1. If the animal fell in and was Nehenes only by eating food, it seems clear that the owner of the animal would not have to pay. Since he would not have to pay even if he deliberately led the animal into the Ya'ar to graze there, he also should not have to pay if the animal fell in.

2. However, there is another kind of "Hana'ah" involved here. It may be that when the animal fell in, it benefited from the garden because its fall was softened by the vegetation there, but in the process the animal also damaged the produce. This possibility is mentioned in the Gemara (58a) which states that in such a case the owner also must pay for the Hana'ah it received. It would seem logical that even though the property owner might be accustomed to letting animals come in to graze, he does not want animals falling into his garden and therefore wants the owner to pay if such a thing happens. Even though the animal is "Ones," nevertheless one still must pay for the benefit received.

(Your question is a very interesting one, and this is a complicated Sugya which needs additional Iyun. However, I am afraid that the above will have to suffice for the moment.)

Kol Tuv,

Dovid Bloom

Raymond, this is a very interesting question. I have discussed it with a few Roshei Yeshivos and Talmidei Chachamim, and they all find it very challenging. I will try to explain what the issues involved are on this subject, and why the answer does not appear to be so clearcut.

1. Of course, the first thing that one immediately must point out in response to this question is that since the only payment that must be made is for the Hana'ah that the animal received, it must follow that since the animal always grazes in Hefker this means that its owner received no Hana'ah, because he would not have had to pay anything for its food had it not eaten the food of a private field, and therefore the owner is totally exempt.

2. However, if we look at the Gemara earlier in Bava Kama (20a), we see that this is not so simple. The Gemara there discusses the case of a person who lived in his friend's Chatzer or house without his knowledge. Must he pay rent to the owner? The Gemara distinguishes beteween two types of Chatzeros (or houses) and two types of tenants. There is a Chatzer which is generally rented out ("Chatzer d'Kaima l'Agra"), and another type of Chatzer which is not usually rented out ("Chatzer d'Lo Kaima l'Agra"). In turn, there are some people who frequently have to rent houses ("Gavra d'Avida l'Meigar"), and others who generally do not have to rent because plenty of accomodation is available to them without needing to pay ("Gavra d'Lo Avida l'Meigar"). What is the Halachah in the case of a Gavra d'Lo Avida l'Meigar who occupies (without the owner's consent) a Chatzer d'Kaima l'Agra? Tosfos there writes that the tenant does not have to pay the rent, because even though he caused a loss to the owner, it is an indirect loss. In addition, the tenant received no Hana'ah, because he never has to pay for his housing anyway.

3. Therefore, it seems that according to Tosfos, the answer to your question is that the owners of the animal do not have to pay because they received no benefit even though the owner of the garden lost out when his fruit was eaten. However, the Vilna Ga'on (in Hagahos ha'Gra to Tosfos there) writes that the Rif and other Rishonim disagree with Tosfos and maintain that one must pay for living in a house which is usually rented out, even if the tenant does not actually need the house. The Rif (page 9a of his pages) writes that the reason is that he made the owner lose money even though he did not gain himself. According to the Rif, it appears that the owner of the animal in your question would have to pay, because even though he did not gain, he made somebody else lose. The Rambam also rules like the Rif, and the Shulchan Aruch (CM 363:6) rules like the Rif and Rambam.

4. However, we must explore more deeply the logic behind the Rif's opinion. The Nimukei Yosef (end of 8b of the pages of the Rif) writes that this case is similar to a case of a perosn who ate his friend's fruit. He must pay even though he received no Hana'ah. Chidushei Rebbi Shmuel Rozovsky (Bava Kama #18) explains that the Nimukei Yosef's reasoning is that the person who ate the fruit is a "Mazik" -- he damaged the fruit. Since one is liable for damage even though he received no Hana'ah from the damage, one is liable for living in a house which otherwise would have been rented out, even if he received no Hana'ah from the dwelling. According to this reasoning, it seems that in your question the owner of the animal would be exempt, because the Mishnah says that he is not liable for damages since the animal was an "Ones" in its fall, and the owner of the animal is liable only for Hana'ah, but in this case he received no Hana'ah.

5. However, there is another way to understand the Rif's Shitah. Rav Baruch Ber Lebowitz zt'l in Birkas Shmuel (Bava Kama #14) writes that "eating up someone else's loss" -- which is how the Rif describes someone who lives in a house which is generally rented out -- is also considered a form of Hana'ah which can be claimed back by the property owner, and the tenant is not merely a Mazik. The Birkas Shmuel describes this claim as "Mamoni Gabach" -- "you have my money." (See Birkas Shmuel, Bava Basra #7, who cites Rav Chaim Soloveitchik zt'l who explained that the concept of "Mamoni Gabach" can be compared to "a loan that is written in the Torah." The owner of the animal must pay in order that he not be considered a thief for the benefit his animal received. It is logical that one must pay back money or food that one borrowed.) The tenant did benefit from the house: even though he did not save himself money by living in the house, he still gained by living there, and this enjoyment is something for which people usually charge money. Rav Shmuel Rozovsky writes that one of the Rishonim, the Rashba, also understands the Rif in this way. According to this logic, it appears that the owner of the animal in your question also must pay, because even though he did not save any money, his animal enjoyed the food, and whenever one enjoys somebody else's property, he must pay for it.

6. Rav Shimon Shkop (Chidushei Rebbi Shimon, Bava Basra 4:5) explains this further and writes that since the food caused an improvement in the state of the animal that ate it, the owner of the animal must pay for this improvement.

In summary, I do not think that this subject is by any means closed, but at least we have seen some of the relevant Mefarshim on the Sugya. According to some, the owner would not have to pay for the food eaten by the animal, but according to the understanding of the Rashba and Birkas Shmuel in the Rif's Shitah, one can argue that he would have to pay.

b'Virchas Kesivah v'Chasimah Tovah,

Dovid Bloom

I asked your question to one of the Gedolim and he answered, "Mikol Makom Nehentah Meihem": the owner of the animal must pay because, after all, the animal did receive Hana'ah from eating the fruit, even though this did not save the owner any money on the animal's food bills.

I have found an additional source for the concept that I mentioned in my first reply in the name of some commentaries, that it is considered Hana'ah even if one did not save any money as a result. The commentaries to the Shulchan Aruch, in the laws of Ribis (YD 162:2), cite the Rishonim who cite a Halachah in the name of the Rif (who was if the opinion mentioned in the previous reply that even one who owns plenty of houses and saves no money by living in the house which is normally rented out nevertheless must pay) that if Reuven says to Shimon, "Lend me a thousand dollars and in return I will let you live in my apartment which I usually rent out," and Shimon agrees to this condition, it is considered "Ribis Ketzutzah d'Oraisa" -- a transgression of the Torah prohibition against lending money with interest. The Vilna Ga'on on the Shulchan Aruch there (#5) writes that this applies even if Shimon has his own place to live and does not need Reuven's apartment. This seems to be a big Chidush; what is Shimon gaining by living in Reuven's house? In fact, this appears to prove that the Shulchan Aruch does not agree with the way the Nimukei Yosef and the Ramah, that I mentioned in my previous reply, understood the Rif's view, that if a person lives in the house against the wishes of the owner he is considered a Mazik because he prevented the owner from earning money from renting out his property. If he would be considered a Mazik when he lives there without permission, then if he was asked to come in by the owner he clearly would not be called a Mazik. The fact that the Shulchan Aruch calls it Ribis when he lived there with the owner's permission in return for the loan seems to prove that the reasoning of the Rif is that one has to pay when one lives there without permission because one receives Hana'ah. (This is the view of the Rashba and Rav Baruch Ber, as I explained in the previous answer.) Accordingly, we can understand why it is considered Ribis: it is Ribis because Shimon received Hana'ah from Reuven's house. Even though Shimon has plenty of other accomodations available, nevertheless he certainly did enjoy living in Reuven's apartment and had a comfortable time there. We now have proof from the Shulchan Aruch that if one enjoyed something, it is considered Hana'ah even though one possessed an alternative which would not have cost him anything. Therefore, when the animal ate food from the private garden, the owner must pay even though the animal would have otherwise eaten from Hefker.

Dovid Bloom