Benefit vs Damages
Question
If an animal is walking in the reshus harabim and eats from items there, it is classified as shein, the owner is patur from damages, but has to pay the benefit he received from not feeding his animal. If the animal turns his head to the side of the reshus harabim and eats items there, it is classified as keren, and if the animal is a tam, the owner pays half damages (chatzi nezek).
My question is: What happens if the chatzi nezek amount is less than the value the owner would pay for benefit in the case of shein? Do we say that the benefit amount is an overall minimum payment in all cases, or paying any amount of damages absolves the owner of paying for benefit?
Answers
Not being quite sure, I asked one of my sons, who, despite his relatively young age, is an up-and-coming Talmid Chacham. He said that it is wonderful question and one that is asked by Rav Moshe Yehoshua Heshel Orenstein in his sefer called Yam HaTalmud. If you have the opportunity, I would suggest try going through the piece. But, in any event, after going through various possibilities, Rav Orenstein comes to the conclusion that the person would be obligated to pay whichever is the higher amount. If the Chetzi Nezek is more, to pay the Chetzi Nezek. And if the Shein is more, to pay the Shein.
Best wishes from the AskTheRabbi.org Team