tzaar baalei chaim

The Rambam in Moreh Nevuchim learns from the fact that the malach admoninished Bilaam for striking his donley that there is an issur d'oraysa of causing tzaar baalei chaim.  Achronim ask why the Rambam quotes this as the source for tzaar baalei chaim instead of the mitzvah of perikah, of unloading a donkey, which seems to be the gemara's source.  Furthermore, the Rambam (hil rotzeiach ch 13) paskens that there is no chiyuv to help a nochri unload his donkey.  If we are concerned about the suffering of the animal, what difference does it make if the owner of the animal is a jew or a nochri?  It seems that the Rambam does not hold that tzaar baalei chaim is a d'oraysa.

The Ohr Sameiach (hil shabbos ch 25) answers that when the gemara speaks about tzaar baalei chaim it is a case where the animal's suffering happens m'meila; it is a result of something else the animal is doing, like carrying a burden.  In that circumstance the sugya debates whether tzaar baalei chaim is d'oraysa or not, and whether/when a person has to do something about it.  The Rambam in Moreh is talking about something else entirely.  The Rambam is speaking about a person directly, deliberately causing pain to an animal, like Bilam did when he hit the donkey.  That, says the Rambam, is for sure an issur d'oraysa. 

 

The meforshei Rashi bring up the topic of tzaar baalei chaim in last week's parsha.  When Bn"Y complained about the lack of water, Hashem promised  וְהוֹצֵאתָ֨ לָהֶ֥ם מַ֙יִם֙ מִן־הַסֶּ֔לַע וְהִשְׁקִיתָ֥ אֶת־הָעֵדָ֖ה וְאֶת־בְּעִירָֽם׃ (20:8)   Rashi there comments: ואת בעירם – מכאן שחס הכתוב על ממון ישראל.  The Taz in his Divrei David asks what the proof is from here that שחס הכתוב על ממון ישראל.  Maybe the reason Hashem promised water to the animals is because of tzaar baalei chaim?  Why doesn't Rashi say that Hashem promised water because of tzaar baalei chaim?

 

The question is really a double problem.  First there is the textual question: what in the text motivated Rashi to ascribe the motive for giving water to חס הכתוב על ממון ישראל and not to tzaar baalei chaim?  Taz answers by noting that the pasuk uses the word בְּעִירָֽם -- THEIR animals.  If tzaar baalei chaim was the issue, then the ownership of the animal is irrelevant.  The stress on it being THEIR animal at risk puts the emphasis on the loss incurred by the owner.  (One could argue that Hashem's response is simply a reflection back of the complaint וְלָמָה הֲבֵאתֶם אֶת קְהַל יְהֹוָה אֶל הַמִּדְבָּר הַזֶּה לָמוּת שָׁם אֲנַחְנוּ וּבְעִירֵנוּ where the people spoke about the suffering of THEIR animals, which in context makes perfect sense.)  But there is second question lurking behind the scenes.  Granted that the words of the pasuk suggest the concern here was חס הכתוב על ממון ישראל, but why was the pasuk not concerned with the issue of tzaar baalei chaim?  Shouldn't the animal's pain be at least as much a cause for concern as what its loss might mean to the owner? 

 

This is not just hypothetical quibbling, but perhaps makes a nafka mina l'halacha.  Is one obligated to try to alleviate an animal's pain that one did not cause?  If the source for tzaar baalei chaim stems from the Torah's obligation to assist in unloading an animal, then perhaps the chiyuv only applies in similar such cases where a person was the cause of the suffering in the first place, e.g. by burdening the animal.  However, if our pasuk can serve as a source for tzaar baalei chaim, the concern extends even to cases where the suffering, in this case the thirst, was not caused by human intervention (see Shabbos 128b בְּהֵמָה שֶׁנָּפְלָה לְאַמַּת הַמַּיִם)

 

R' Moshe in Derash Moshe suggests that the reason tzaar baalei chaim is not an issue here is because the parsha is speaking about the miracle of producing  water from a rock.  It is only humans that merit the level of hashgacha pratis that gives rise to Hashem performing miracles on their behalf.  Animals do not warrant the same.