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Week 91 - Shabbat - 25 August 2001

BAVA KAMMA: CHAPTER 1: MISHNAH 1

The four principal types of damage are the ox, the pit, the crop-destroying animal (mav'eh), and fire. The ox is not like the crop destroying anima!, nor is the crop destroying animal like the ox; nor are these, which are living things, like fire, which has no life; nor are these, whose nature is to go forth and cause damage, like the pit, whose nature is not to go forth and cause damage, The common feature is that it is their nature to do damage and you must guard and when one did damage, the injurer must pay for the damage with the best of the land,

Kehati

The Introduction above notes that the principal types of damage listed in the Torah - horn, tooth, food, pit, fire and one who himself does damage - are called the "principal types of damage." This mishnah, however, lists "four principal types of damage, the ox, the pit, the crop destroying animal, and fire." Two of the four types, the pit and fire, are clear, and there is no disagreement concerning them. The other two, however - the ox and mav'eh, which we have translated as the crop-destroying animal - are unclear. The Gemara records the disagreement of Rav and Shmuel concerning the meaning of our mishnah. Rav holds that the mishnah includes all the types of damage listed in the Torah (as cited in the Introduction above): the "ox" mentioned in our mishnah includes all types of damage caused by the animal, i.e., horn, tooth, and foot, and mav'eh refers, according to Rav, to a man who himself causes monetary damage to his fellow. Shmuel, however, holds that the mishnah lists only four types of monetary damage, all of which are ab initio injurers (mu'adim), so that "ox" refers only to damage caused by the foot, and "mav'eh" to that caused by the tooth. This translation of mav'eh he deduces from the Biblical phrase, "How are his hidden places uncovered [niv 'u]" (Ob. 1:6). mav'eh is derived from this word and hence refers to that which may be covered or uncovered, i.e. the teeth, which are covered at times and revealed at other times. According to Shmuel's opinion, therefore, our mishnah lists only four principal types of damages: foot, tooth, pit, and fire. The Jerusalem Talmud interprets "ox" as horn, while the term mav'eh includes both tooth and foot; according to this interpretation, therefore, our mishnah includes all the damages caused by one's property. We, however, interpret the mishnah in accordance with Shmuel's opinion in the Gemara, as the mishnah was interpreted by Rambam, Bartenura, and others.

The four principal types - of monetary damage - (called either mazikim damaging agents or nizakim those injured) listed in the Torah - are the ox - which causes damage with its feet while walking, as it is written, "and lets his animal loose" (Ex. 22:4); a baraita in the Gemara explains that "lets loose" refers to the foot, i.e., the animal caused damage in his fellow's field by trampling, as it is written, "let loose the feet of cattle and asses" (Isa. 32:20); the pit - which a person opened in the public domain, and into which an ox or ass fell, as the Torah explains (Ex. 21:33); our tractate, below, discusses the laws pertaining to the pit (5:5); the crop-destroying animal (mav'eh) - this term refers to the tooth, i.e. his animal ate in another's field, as it is written, "and it consumed another's field" (Ex. 22:4); and fire - which he ignited within his domain and which spread and caused damage, as it is written, "If fire breaks out and spreads to thorns, and consumes ..." (Ex. 22:5).

The ox is not like the crop-destroying animal - our mishnah teaches that the Torah had to list all these types of damage, since they are different from one another in nature and feature, and one type of damage cannot be inferred from another. Accordingly, "the ox is not like the mav'eh," i.e., the obligation to pay for damages caused by one's animal's foot cannot teach us of the obligation to pay for damages caused by the animal's tooth, since the foot has a feature not possessed by the tooth, namely, damage caused by the foot is routinely to be expected, while damage caused by the tooth is not to be routinely expected, nor is the crop destroying animal like the ox - nor can the laws pertaining to damage caused by the tooth teach us concerning damages caused by the foot, since the tooth has a feature not possessed by the foot, namely, the damaging animal benefits from damage caused by its teeth, while it does not benefit from damage caused by its foot; nor are these - foot and tooth - which are - whose damages are caused by their being - living things - and one might think that this feature is the reason the Torah requires their owners to pay for damages - like fire, which has no life - and if it had not been explicitly mentioned in the Torah, we would not have learned the law concerning it from that of tooth and foot; nor are these - foot, tooth, and fire - whose nature is to go forth and cause damage - i.e. these causes of damage move, and must therefore be well guarded; if they are not guarded and they cause damage, then their owners must pay for the damage they caused - like the pit, whose nature is not to go forth and cause damage - since it is fixed in its place; if the Torah had not explicitly mentioned the pit, we would not infer the laws pertaining to damage caused by the pit from the other types of damages. Since they possess different features, the Torah listed all the four principal types of damages, to teach that in each case the owner is responsible for their damages. We learn about other kinds of damage by analogy with the common feature.

The common feature - shared by all four principal types of damage - is that it is their nature to do damage - they commonly cause damage - and you the owner, must guard - i.e. are obligated to guard them so that they will not cause damage. And when one - of these agents whose nature is to cause damage, actually - did damage - the owner of the injurer must - is obligated to - pay for the damage with the best of the land - If a person wishes to pay the injured party with land, then he must give him from the best of his lands, as the Torah writes concerning damages caused by tooth or foot: "He shall make restitution from the best of his own field and the best of his own vineyard" (Ex. 22:4). The law of paying with the best with regard to other types of damage is also deduced from this passage. If, however, he pays the injured party in movable goods, he may give him whatever he wants, since every item of movable goods is considered to be the best; if people in one place do not want to buy it, he takes it elsewhere.

The Gemara concludes that it would have sufficed for the Torah to have explicitly listed only the pit and one of the other principal types of damage, since it would have been possible to derive the laws of the other types of damage (excluding that caused by the horn) from these. The other principal types were listed in the Torah only because of their different detailed laws: the owner is not liable for damages caused by tooth or foot in the public domain, which is not the case for damages caused by a pit or fire. Concerning the pit, the Torah writes, "and an ox or an ass fall into it" (Ex. 21:33); and it was explained that the explicit mention of "ox" excludes man, and "ass" excludes vessels, which is not the case concerning the other principal types of damage. The owner is exempt for damage caused by fire to a concealed object, e.g. if clothes were concealed in stacked corn, the kindler of the fire is not liable for their damage, since the Torah writes, "and consumes stacked corn, and standing corn" (Ex. 22:5), from which it was learned that as standing corn is visible, so the law concerning fire applies to everything which is visible, while the owner in the other principal types of damage is liable for concealed items.

BAVA KAMMA: CHAPTER 1: MISHNAH 2

Everything which I am obligated to guard, I caused its damage. If I partially caused its damage, I am responsible for payment as one who caused all its damage. Property not subject to the law of sacrilege, property belonging to Jews, property which is assigned, and in any place, except the domain particular to the injurer, and the domain of the injured party and the injurer. And when he did damage, the injurer must pay for the damage with the best of the land.

Kehati

After the previous mishnah listed the principal types of damage, this mishnah teaches the general rules concerning damages: when is a person liable for damages caused by his possessions; for which damaged property is the injurer obligated to pay compensation, and for which property is he exempt; and in which locations where the damage occurred is he liable.

Everything which I am obligated to guard - so that it does not cause damage, I caused its damage - If I did not guard it properly and it did damage, I am the one who caused the damage, and I am responsible for it. A baraita in the Gemara explains by giving the example of a person entrusting his ox or pit to a deaf-mute, a mental incompetent, or a minor and it caused damage; in such a case the owner of the ox or the pit is obligated to pay damages. The Gemara explains (according to Resh Lakish, citing Hezekiah) that this baraita refers to an ox which was properly tied and a pit which was properly covered; the owner is nevertheless responsible, since a deaf-mute, a mental incompetent, or a minor is liable to ruin his charge by untying the ox or removing the covering from the pit (Tosafot; see Rashi, who interprets this differently). According to a second opinion in the Gemara, that of Rabbi Yohanan, a deaf-mute, a mental incompetent, or a minor do not ruin the charge, and their guarding is somewhat effective; the baraita, according to this opinion, refers to an ox which was not tied and a pit which was not covered, and the owner is responsible since he relied on the guardianship of a deaf-mute, mental incompetent, or minor, which is insufficient.

If I - only - partially caused its damage - e.g., there was an open pit in the public domain, but it was only nine tefahim deep (i.e., not sufficiently deep to kill anyone who fell into it), and I deepened it to a total depth of ten tefahim (a sufficient depth to be fatal), and an ox or an ass fell into it and died; even though I only dug one tefah within it, I am responsible for payment - of damages - as one who - as if I had - caused all its damage - by digging the entire pit.

The remainder of the mishnah teaches for which type of damaged property the injurer is responsible, and the laws applicable to different categories of location: The injurer is only responsible to pay damages when he damaged Property not subject to the law of sacrilege - i.e., non-sacred property. If, however, he damaged sacred property (for the improper use of which a guilt-offering [korban me'ilah] must be brought see Lev. 5:15ff), he is exempt from paying, as it is written concerning damage caused by the horn, "And if one man's ox hurts another's" (Ex. 21:35), the word "other's [ox]" (lit. that of his fellow,) excludes an ox belonging to the Temple; this is also the law for the other types of damages. Some opinions in the Gemara hold that our mishnah teaches that if he caused damage to those sacrifices which enjoy a lesser degree of sanctity, he is liable, since the law of sacrilege does not apply to these while the animal is alive, and that our mishnah is in accordance with the opinion of Rabbi Yose HaGelili, who holds that such sacrifices are considered to be the property of their owners,

property belonging to Jews - and not to non-Jews, since if he damaged the property of non-Jews, he is exempt from paying (see below, 4:3); property which is assigned - to owners, this excludes ownerless property (Tosefta). The Gemara explains that it is not logical to interpret this to mean that he is exempt if he damaged ownerless property, for then the difficulty would arise as to why the mishnah needs to state such a law, since there is no claimant. Rather, the intent of the mishnah is that the property which damaged had owners; if, however, it was ownerless, and someone else gained possession of it after it had caused damage, then he is exempt from paying. E.g., an ownerless ox gored A's ox; before A could seize the ox which caused the damage, B gained possession of it; B is exempt from paying. Similarly, if an ox with an owner caused damage and its owner later abandoned it, then he is exempt, for the ox has to have an owner at the time of causing the damage and at the time of litigation;

And - in any place - where his property damaged the property of his fellow the injurer must pay for it, - except the domain particular to the injurer - e.g., if A's ox entered B's domain and was injured there by B's ox, B is exempt from paying, for B could say to A, What was your ox doing in my domain? If, however, B himself inflicted the damage, then he is responsible, since he was indeed permitted to remove the ox from his domain, but he was not permitted to harm it (Rambam); and - except for - the - shared - domain of the injured party and the injurer - such as a courtyard shared by A and B; if the ox of one of them caused damage with its teeth or feet, the owner of the ox is exempt from paying, since the Torah states concerning damages caused by teeth or feet, "and sent the animal and it consumed in another's field" (Ex. 22:4); this field, since it is shared by both of them, is not considered to be "another's field." This is so only if the field were allocated for nearby oxen; if, however, it were allocated only for produce and not for oxen, and the ox belonging to one of them entered and caused damage with its teeth or feet, then the owner is responsible. If the ox caused damage with its horn, even in a shared courtyard allocated for use by oxen, then the injurer is obligated to pay;

And when he did damage, the injurer must pay for the damage with the best of the land - The Gemara explains that this phrase, which has already been stated in the previous mishnah, is repeated here in order to include damage caused by the horn, which was not included there among the principal types of damage (according to the opinion of Shmuel, who holds that the ox mentioned in the previous mishnah refers only to damage caused by the foot, and that mishnah 1 lists only the principal types of damage which are ab initio habitual, as was explained there); the current mishnah teaches that damage caused by the horn is also included among the principal types of damage, and if the ox is mu'ad, then the injurer must pay compensation from the best of the land.

Another version of the mishnah reads "when he caused damage," without the conjunction "and"; according to this version, this section simply concludes the previous statement of the mishnah, i.e., the injurer is obligated to pay damages from the best of the land for property not subject to the law of me'ilah, property belonging to Jews, etc. There is an opinion in the Gemara that the phrase "and the domain of the injured party and the injurer" is connected to the succeeding phrase, i.e., after teaching that "except the domain assigned to the injurer," where the injurer is exempt from paving, the mishnah teaches, "but in the common domain of the injured party and the damager, the injurer is obligated to pay when he caused damage. ..."

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