Torah Community Connections

Week 93 - Sunday - 2 September 2001

BAVA KAMMA: CHAPTER 3: MISHNAH 7

Whoever splits in the private domain and caused damage in the public domain, in the public domain and caused damage in the private domain, in the private domain and caused damage in another private domain, is liable.

Kehati

Our mishnah teaches that a person who splits logs and who caused damage, whether he was splitting the logs in his domain or not in his domain, and whether he caused the damage in a place where many people are normally found (the public domain) or in a place where many people are not to be found (the private domain), he is liable, since a man is always mu’ad.

Whoever splits - logs - in the - his - private domain - such as his courtyard, even though he is allowed to split wood there, and a chip flew into the public domain - and caused damage in the public domain - or he split logs - in the public domain and caused damage in the private domain - of others, or split logs - in the - his - private domain and caused damage in another's private domain - even though in such a case he was splitting with permission, and although many people are not to be found in the place of the damage, and he did not conceive that he would cause damage with this act, in all these cases - he is liable - to pay for the damage, since a man is always mu’ad, he should have decided that he might cause damage by the flying chips, and he ought to have done his work with extreme caution.

BAVA KAMMA: CHAPTER 3: MISHNAH 8

If two oxen, which are tam, injured each other, they pay of the excess half-damages. If both are mu’ad, they pay of the excess full damages. If one is a tam and one is a mu’ad: the mu’ad to the tam - pays of the excess full damages; the tam to the mu’ad - pays of the excess half-damages. And similarly if two people injured one another - they pay of the excess full damages. A man to a mu’ad and a mu’ad to a man - pays of the excess full damages. A man to a tam and a tam to a man: a man to a tam - pays of the excess full damages; a tam to a man - pays of the excess half-damages. Rabbi Akiva says, Even a tam that injured a man pays of the excess full damages.

Kehati

Our mishnah discusses: (1) oxen which injured each other; (2) men who injured each other; (3) a man and an ox which injured each other.

If two oxen - belonging to A and B - which are – each - tam injured each other, they pay of the excess - i.e. the amount that one injured the second more than the second injured the first - half-damages - half of the difference between the value of their respective damages. E.g., if A's ox caused damage to B's ox in the amount of 100 zuz, and B's ox caused damage to A's ox in the amount of 40 zuz, A pays to B 30 zuz, which is half of the excess, since the owner of the tam pays only half-damages, as was taught at the end of chapter 1, above. If both - of the oxen, which injured each other - are mu’ad, they pay of the excess full damages - the entire difference between their respective damages. E.g., in the instance quoted above A pays B 60 zuz, which is the entire excess, since the owner of a mu’ad pays full damages.

If one - ox - is a tam and one - ox - is a mu’ad: - if - the mu’ad - injured - the tam - more than the tam injured it, e.g., A's ox was a mu’ad, and B's ox was a tam; and the mu’ad injured the tam in the amount of 100 zuz, and the tam injured the mu’ad in the amount of 40 zuz, he pays of the excess full damages - A must pay the entire difference between the respective damages, i.e., 60 zuz (100 minus 40); and if - the tam - caused more damage - to the mu’ad - e.g., A's ox was a tam, and B's ox was a mu’ad - he pays of the excess half-damages - A must pay B half of the difference, i.e., 30 zuz.

This is how Rabbeinu Asher interprets our mishnah. According to this interpretation, "excess" means the excess of the injury, and the mishnah teaches that although the owner of the tam is obligated to pay only half-damages for the damage it itself caused, in the case of a tam and a mu’ad injuring each other at the same time, the owner pays (full or half-damages) from the difference between the values of the respective injuries caused by the tam and the mu’ad, and not the difference between the respective obligations of their owners to pay (see Tosefot Yom Tov).

Rambam, however, interprets this to mean of the excess of the obligation to pay; according to him, if A's ox were a mu’ad, and B's ox a tam, and the mu’ad caused 100 zuz of damage to the tam and the tam caused 40 zuz of damage to the mu’ad (as in the above example), A pays B 80 zuz. The statement in our mishnah, "mu’ad to tam, pays full damages" therefore means that A (the owner of the mu’ad) pays B full damages, minus the half-damages due to him from B, i.e., 100 minus 20. If A's ox were the tam and B's ox the mu’ad, i.e., the tam caused 100 zuz of damage to the mu’ad, and the mu’ad caused 40 zuz of damage to the tam, A pays B only 10 zuz: this is the meaning of the statement in the mishnah, "tam to mu’ad, pays of the excess half-damages," i.e., A (the owner of the tam) pays B half of the damages caused by his ox, minus the damages owed him by B, i.e., 50 minus 40 (Rambam, Hil Nizekei Mamon 9:14).

And similarly if two people injured one another, they pay of the excess full damages - as was explained above concerning two oxen which are mu’ad and which caused damage to each other, since man is always considered to be mu’ad.

If - A man - damaged - an ox which is - a mu’ad and - an ox which is - mu’ad - injured - a man, he pays of the excess full damages - as the law is when two oxen which are mu’ad injure one another. If a man – damaged - an ox which is a - tam and - an ox which is a – tam – injured - a man: If - the man - caused more damage - to the tam - than the tam did to him - he pays of the excess full damages - as was explained above, in the case of “a mu’ad to a tam," since a man is always mu’ad; if a - tam - caused more damage - to a man - than the man caused to it – he - the owner of the tam - pays of the excess half-damages - as was explained above, in the law of "tam to mu’ad."

Rabbi Akiva says, Even a tam which injured a man pays of the excess full damages - since Rabbi Akiva holds, if a tam gores a man, the owner of the tam pays full damage. The Gemara explains the reason for the disagreement between the first opinion cited in our mishnah and that of Rabbi Akiva. The Torah states, "Whether it has gored a son, or has gored a daughter, according to this judgment shall it be done to it" (Ex. 21:31). According to the First Tanna in our mishnah, the meaning of "according to this judgment" is that the law concerning an ox goring a human is the same as that concerning an ox goring an ox: just as the law governing an ox that gores another ox states that the owner of a ram pays half-damages, and of a mu’ad full damages, so the law governing an ox that gores a human is that the owner of a tam pays half-damages, and of a mu’ad full damages. Rabbi Akiva, however, interprets this verse as follows: "according to this judgment" - like the law of shor mu’ad which was stated at the conclusion of the preceding topic, for the two preceding verses (Ex. 21:29-30) deal with the shor mu’ad, and the Torah teaches further in our verse that if an ox caused damage to a human, "according to this judgment" of the shor mu’ad, whose owner pays full damages, "shall it be done to it" - to every ox which gores a human, even if it is a tam, so that its owner must pay full damages. In any event, even Rabbi Akiva holds that the owner of the tam pays only from its body, since he interprets "shall it be done to it" as meaning, from its body. The law is in accordance with the first opinion in our mishnah: if a tam causes damage to a human, its owner is obligated to pay only half-damages.

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