- Question: [Monday, 16th Elul 5781]
Our neighbor owns a goat which often enters into our yard and for the past few months has begun eating from our garden. We have spent much time and money investing in our garden which boasts beautiful plants, flowers, and vegetation. The goat is causing us much stress and monetary damage destroying all of our work and beautiful scenery. We have spoken to the owners on numerous occasions, and although he at first apologized, he refused to do anything about it and told us that we should build a fence. We did just that and discovered that the goat jumps over the fence and still eats from the garden. Our neighbors are stonewalling us and refusing to do anything about it. My husband and I decided, with the advice of a lawyer, that the only way to get rid of the damage is to get rid of the goat next time he comes into our yard, through killing it. Putting the secular legal aspect aside, is there any Halachic impediment in doing so, due to Tzaar Baalei Chaim, or due to damaging our neighbor’s animal?
If your neighbor is Jewish, whether Torah observant or not, then it is Halachically forbidden for you to kill your neighbor’s pet even though it is trespassing into your property and causing you monetary damage. You may, however, sue your neighbor in court to compensate you for the damage [by a Beis Din, or in a small claims secular court if you know the neighbor will not go to a Beis Din, such as if he is a nonreligious Jew]. If your neighbor is a Gentile, then seemingly, you may follow the secular law of your state in this regard, and if you are granted permission by law to kill the trespassing animal, then you may do so.
Explanation: The killing of an animal, even an animal which one owns, is subject to the question of the prohibition of Tzaar Baalei Chaim. Furthermore, the killing of an animal which is owned by another person, and without their consent, is subject to the additional question of stealing and damaging another person’s property. Now, regarding the first issue of Tzaar Baalei Chaim, the ruling is that it is permitted for one to kill an animal for some human benefit, including in order to remove a nuisance that the animal is causing. Thus, if a goat is causing damage to one’s property, it is certainly permitted to kill it in order to prevent the damage. This, however, only applies to a goat that one personally owns, or that is ownerless, in which case the only subject at hand is the subject of Tzaar Baalei Chaim. However, it is forbidden for one to kill the animal if it is owned by a neighbor, due to the prohibition of damaging or stealing another person’s property. Now, although this neighbor’s animal is causing one monetary loss and nuisance, and one has unsuccessfully tried to settle the issue with civil discourse with the neighbor, nonetheless, one still does not have permission to kill the animal, and rather only retains the right to sue them in court for the damages. In this regard, Torah law differs from secular law, which in many states permits the killing of the neighbors animal if it is trespassing and causing one monetary loss. So is the final ruling in the Shulchan Aruch and Poskim, based on the ruling of the Raavad, in his understanding of the Talmud, then it is only permitted to kill a neighbor’s animal which is damaging one’s property if the animal is in any event designated for slaughter and for its meat to be sold and eaten. However, a neighbors’ animals which are not designated for this purpose, may not be killed even if they cause one monetary damage. Even according to the opinion of the Rambam which can be understood to permit the killing of this animal [through slaughtering it in a valid Kosher method if it is owned by a Jew], this may only be done after warning the owner three times in front of a Beis Din. Now, seemingly all this only applies to the animal of a Jew, as in relation to another Jew we must abide by the Torah law over secular civil law. However, if the animal is owned by a Gentile, then seemingly one may abide by the secular civil law, and hence if the secular civil law permits one to kill the trespassing animal in the above scenario, then seemingly one may do so, as it is a general rule that we do not apply Torah civil law between Jew and Gentile, and that one may follow the secular civil law between a Jew and a gentile for the benefit of the Jew.
Sources: See regarding the allowance to kill a nuisance animal and its negation of Tzaar Baaeli Chaim: Admur Shemiras Haguf Vihanefesh Halacha 8; Taz Y.D. 116:6; Rashal in Yam Shel Shlomo Bava Kama 10:37; Bach 116; Kneses Hagedola 116:32; Peri Chadash 116:9; Lechem Hapanim 116:3; Beis Lechem Yehuda 116:4; Aruch Hashulchan 116:13; Kaf Hachaim 116:111; See regarding killing a neighbors animal that causes one damage: Michaber C.M. 397:1-2; Rama C.M. 416:2; Rambam Hilchos Nizkeiy Mamon 5:1; Raavad ibid; Bava Kama 23b; Smeh C.M. 397:1 and 4; Chavos Yair 165; Pischeiy Teshuvah C.M. 397:1; See regarding how to arbitrate civil law between a Jew and gentile, and whether one is to follow Torah law or secular civil law: Admur 441:13; Kuntrus Achron 441:5 Michaber C.M. 406:1; Rambam Hilchos Nizkeiy Mamon 8:5; Melachim 10:12; Bava Kama 113a; Smeh 406:1; 408:1; M”A 441:3; 448:4; Gilyon Maharsha 406:1; Tzemach Tzedek 45-5; Minchas Pitim C.M. 408; Lechem Shlomo 73-74; Tehila Ledavid 3:34-7; See regarding secular civil law: https://www.lawinfo.com