Torah Community Connections

Week 92 - Sunday - 26 August 2001

BAVA KAMMA: CHAPTER 1: MISHNAH 3

Assessment of money and monetary value, before a court, and on the basis of witnesses, freemen, Jews. Women are included in damages. And the injured party and the injurer in payments.

Kehati

This mishnah continues to teach principles of the laws of damages, how payments for damages are determined, and on the basis of what testimony the injurer is obligated to pay.

Assessment of money - The Gemara explains that the assessment of damages must be in money, i.e., the court assesses the value of the damage in money, and this is what the damager pays, as a baraita teaches: If a cow caused damage to a garment, and the garment caused damage to the cow, we do not rule that the damage caused by the cow is offset by that caused by the garment or that the damage caused by the garment is offset by that caused by the cow, but rather that they are assessed in money." This means that, if A's cow caused damage to B's garment (e.g., the cow entered B's courtyard and there it tore B's garment by trampling on it) and it later happened that B's garment caused damage to A's cow (e.g., B left his garment in the public domain and the cow stumbled on it and broke its leg), we do not say that since they caused damage to each other, the respective damages offset each other; rather, we assess each of the two damages in money, and the one who caused greater damage to his fellow shall pay the difference (Rashi, Bartenura). According to another interpretation of the baraita, if a cow caused damage to a garment, or a garment caused damage to a cow, "We do not rule that the cow is offset (lit. "goes") for the garment," i.e., that if a cow caused damage to a garment, the injured party shall take the cow as recompense for the damage to his garment, without assessment of the damage, "or the garment for the cow," or that the person whose cow was injured by his fellow's garment shall take the garment as recompense without assessment, "but rather that they are assessed in money" the court assesses each damage in money, and the damager must pay according to the value of the damage (see Tosafot; Hazon Yehezkel);

And monetary value - The Gemara explains that our mishnah teaches that if the injurer died, and the injured party claims compensation for his damages from the dead man's children, the children are only obligated to pay from the lands which they inherited, which are considered to be "monetary value," and they are not obligated to pay from movable property, which has the status of money, since it may easily be sold. The reason for this is that the movable property of orphans may not be mortgaged to a creditor or to an injured party;

Before a court of experts but not of laymen (see Sanhedrin 1:1). And on the basis of witnesses - who testify before the court about the damage, excluding the person who admits to a fine and is therefore exempt, even if witnesses came later (Gemara); the witnesses are not fit unless they are freemen, Jews - and not Canaanite bondmen or non-Jews, since these are unfit to give testimony. Rambam writes: "Damages are paid...only on the basis of clear proof and witnesses fit to give testimony, so that you may not say, Since only bondsmen, shepherds, etc. are to be found in horses' stables, cattle sheds, and sheep pens, we accept their testimony if they testified that this animal caused damage to a second animal ... (i.e., that we should ease the requirements for testimony concerning damages because of their frequency and because except for the minority of cases there would be no fit witnesses - Rambam, Commentary on the Mishnah). This is not the case. Rather we never impose monetary obligations except on the basis of witnesses who are fit to give testimony in other cases; they testify, and the court obligates the damager to pay" (Hil. Nizekei Mamon 8:13).

And women are included in damages - The same law applies to a woman as to a man concerning damages, whether she caused damage to others or whether others caused damage to her, as it is written, "And these are the ordinances which you shall set before them" (Ex. 21:1), meaning before everyone who stood at Mt. Sinai, which includes women. This is the Rabbinical source for granting women legal status equal to that of men with regard to all the laws in the Torah.

And the injured party and the injurer in payments - There are instances in which both participate in the payment of damages, e.g., if a shor tam gores, the damager pays only half of the damage (as will be explained in the following mishnah); the injured party therefore loses half of the damage. This is how this phrase is interpreted in the Gemara, according to the opinion that the payment of half the damage caused by a shor tam is monetary compensation. R. Papa and R. Huna ben Yehoshua disagree on this issue. R. Papa holds that the payment of half the damage in the case of a shor tam is not a fine, but rather monetary compensation, which the law obligates him to pay. This is based on his holding that ordinarily oxen gore, and require guarding; according to strict law the damager would have to pay full damages, but the Torah took pity on him, since his ox was not yet forewarned [mu'ad]. R. Huna holds that half the damages paid in the case of a shor tam is a fine, since in his opinion ordinarily oxen do not require guarding, and according to strict law such a damager shall not be required to pay at all; the Torah, however, imposed a fine on him to pay half of the damage, so that he would guard his ox. According to R. Papa, our mishnah is to be interpreted literally: the injured party also participates in the payment of damages, by losing half of the damage caused by a shor tam, as was explained above. According to R. Huna, however, we cannot say in this case that the injured party participates in the payment for damages, since, according to R. Huna, the payment of half of the damage is only a fine, and ab initia, the injured party was entitled to nothing.

The Gemara explains that, even according to R. Huna, it may happen that the injured party loses because of depreciation of the value of the carcass which belongs to the injured party. If the value of the carcass depreciated between the time of the animal's death and the time of the litigation, this loss is incurred by the injured party. I.e., the damager pays him only according to the value of the damage at the time the ox died, which is the difference between the value of the live ox and the value of the carcass, regardless whether the damage was caused by a shor tam or a shor mu'ad. This then is the meaning of the mishnah: the injured party participates in the damages even with respect to the half-damages awarded him by the Torah in the case of a shor tam, his loss due to the devaluation of the carcass. This is also the case with respect the full damages which he receives for damage caused by a shor mu'ad.

BAVA KAMMA: CHAPTER 1: MISHNAH 4

Five are tam and five are mu'ad. An animal is not mu'ad, not for goring, and not for pushing, and not for biting, and not for lying, and not for kicking. The tooth is mu'ad for eating what is fit for it; the foot is mu'ad for breaking as it walks along; and the shor mu'ad; and the ox causing damage in the domain of the injured party; and the man. The wolf, the lion, the bear, the panther, the leopard, and the snake are mu'ad. Rabbi Eliezer says, When they are domesticated, they are not mu'ad, but the snake is always mu'ad. What is the difference between tam and mu'ad? The tam pays half-damages from its body, and the mu'ad pays full damages from the choicest.

Kehati

The Torah states, "And if one man's ox hurt another's, so that it dies, then they shall sell the live ox, and divide its price, and the dead also they shall divide. Or if it is known that the ox was accustomed to gore in the past, but his owner did not guard it, he shall surely pay ox for ox, and the dead animal shall be his" (Ex. 21:35-36). We learn from this, (as was mentioned at the end of the previous mishnah,) that if the ox which gored is a shor tam (an ox which is not known as one which customarily gores), its owner pays only half-damages (as is explained at the end of our mishnah). If, however, the ox which gores is a shor mu'ad ("But if the ox had been accustomed to gore in the past, and warning had been given to its owner"- i.e., it had already gored three times, and its owner had been warned after each time to guard it), the owner is obligated to pay full damages.

Rambam, in his commentary on this mishnah, defines tam and mu'ad as follows: "Tam is the name given to that which does not obviously cause damage, and it is not normal for it to cause this type of damage; rather it happened by chance. Mu'ad is the name given to that which it is accustomed to doing always, or most of the time." There are damages which are considered ab initio to be mu'ad, i.e., it is in their nature normally to perform the act which causes damage, such as that caused by tooth or foot, for it is the nature of every animal to cause damage by eating for its enjoyment, or by trampling while walking. As Rambam writes, "The one who performs an act which is natural for it in accordance with the way it was created is called mu'ad; the one who changes and performed an act which all of its kind do not always do, such as an ox which gored or bit, is called tam. The one which acted differently, if it becomes accustomed to acting so by doing it many times, becomes mu'ad with respect to the act to which it has become accustomed, as it is written, "Or if it is known that the ox was accustomed to gore" (Hil. Nizekei Mamon 1:4). Our mishnah teaches the rule concerning tam and mu'ad.

Five are tam - i.e., do not ordinarily to cause damage, and if they did cause damage, their owners pay only ha1f~amages, and five are mu'ad - i.e., ordinarily cause damage, and when they cause damage, their owners pay full damages: A beast is not mu'ad - ab initio, not for goring - with its horns, and not for pushing - with its body, and not for biting, and not for lying - on something and causing it damage, and not for kicking - with its foot. We have already explained (in the introduction to the tractate), that pushing, biting, etc., are derivatives of the principal type "horn," since in each of these actions, as in goring, the animal intends to cause damage. These actions - goring, pushing, biting, lying, and kicking, are considered to be tam, while the following five are considered to be mu'ad:

(1) The tooth is mu'ad - ab initio - for eating what is fit for it - such as fruit and vegetables (as will be explained below, 2:2);

2) The foot is mu'ad - ab initio - for breaking - vessels - as it walks along - without intending this;

3) and the shor mu'ad - after it had already gored, pushed, bitten, lain, or kicked three times, and its owner had been warned to guard it (to be explained below, 4); although there are five types of damages here, as were listed in the first part the mishnah, with respect to the tam, the mishnah nevertheless lists them as one with respect to mu'ad, since they share a common element: they become mu'ad only after the owner was warned, i.e., he was warned by witnesses to guard his animal, which become accustomed to cause damage in one of these ways (Rashi);

(4) and the ox - entering and - causing damage in the domain of the injured party - by goring, pushing, or similar action, even if it is a shor tam, has the law of the shor mu'ad, whose owner pays full damages. This is in accordance with the opinion of Rabbi Tarfon, who holds (below, 2:5) that the injurer must make full payment for damages caused by the animal's horn in the domain of the injured party, even if the animal is a tam. The law, however, is not in accordance with Rabbi Tarfon, but rather with the Sages, who hold (ibid.) that the owner of a shor tam pays only half-damages, even when the damage was done in the domain of the injured party;

(5) and the man - who is always considered to be mu'ad.

These five, however, are considered to be mu'ad: The wolf, the lion, the bear, the panther, the leopard, and the snake are mu'ad - ab initio, even if they caused damage by biting, lying, etc., and their owners pay full damages, even the first time they cause damage (Rashi, Rambam); the Tanna did not include them with the previous five which are mu'ad because they are not common in inhabited regions (Bartenura, Hameiri).

Rabbi Eliezer - according to another version, Rabbi Eleazar (see Tosefot B. K. 1 6b) - says, When they are domesticated - raised by humans, who accustomed them not to cause damage, they are not mu'ad - ab initio - but the snake is always mu'ad - even if it is domesticated. The law is not in accordance with Rabbi Eliezer.

What is the difference between tam and mu'ad? The tam pays half-damages from its body - i.e. from the body of the damaging ox. The damaging ox is sold: if the money received for it equals half-damages, he pays; if not, its owner does not add from his possessions, as the Torah writes concerning shor tam, "then they shall sell the live ox, and divide its price" (Ex. 21:35). We learn from this that damage caused by a tam is paid only from the value of the tam itself. E.g., if an ox worth 20 zuz gored one worth 200 zuz, and the carcass is worth 100 zuz: half of the damage comes to 50 zuz. The injured party does not receive 50 zuz, because the owner of the ox which caused the damage can say, take my ox which caused the damage and go! Similarly, if the ox which caused the damage died or was lost, the owner pays nothing; and the mu'ad pays full damages from the choicest - of his property (Gemara), i.e., from the best of his lands, even if the ox which caused the damage is worth as much as the amount of the damage, since the Torah states concerning a shor mu'ad, "he shall surely pay ox for ox" (Ex. 21:36), and does not state that he shall pay from the body of the goring ox (Rashi). There are other differences between a tam and a mu'ad, but the Tanna did not intend to list them all ("This mishnah stated some points and omitted others" - see B. K. 15a).

We have interpreted the first section of our mishnah in accordance with Shmuel's opinion in the Gemara, which is also followed by Bartenura and other commentators. The Gemara, however, questions this interpretation since this entire mishnah is in accordance with the opinion of the Sages, while the clause "and the ox causing damage in the domain of the injured party" is the opinion of Rabbi Tarfon alone. The Gemara also questions the statement "and five are mu'ad", since our mishnah lists additional cases of mu'ad: the wolf, the lion, etc. Ravina concludes from this (a baraita in the Gemara offers this same explanation) that our mishnah is deficient. According to Ravina, the sense of the mishnah is: "Five are tam, and if they have been warned, the five of them are mu'ad [i.e., the five which have the status of mu'ad refers to those which had the status of tam and have been warned], and the tooth and foot are mu'ad ab initio. And this is the shor mu'ad [i.e., the clause "and if they have been warned, the five of them are mu'ad," refers to the shor mu'ad mentioned with reference to damages caused by the horn], and Rabbi Tarfon and the Sages disagree concerning an ox which causes damage in the domain of the injured party [below, 2:5], and there are other similar cases of mu'ad: the wolf, the lion, the bear, the panther, etc."

Return to Mishna Yomit Index

Visit the Mishna Yomit Archives