Torah Community Connections

Week 92 - Thursday - 30 August 2001

BAVA KAMMA: CHAPTER 3: MISHNAH 1

If one set down a jar in the public domain and another person came and stumbled over it and broke it, he is exempt. And if he were injured by it, the owner of the cask is liable for his injury. If his jar was broken in the public domain, and someone slipped in the water, or was hurt by its shards, he is liable. Rabbi Yehudah says, With intent, he is liable; without intent, he is exempt.

Kehati

This chapter elaborates the subject of the previous mishnah (2:6) that man is always mu'ad. This mishnah deals with someone who placed or made an obstacle in the public domain, but it was one which people normally make.

If one set down a jar (kad) in the public domain - e.g., if he were tired and set down his jar there in order to rest (Hameiri), and another person came - passed by - and stumbled over it - the jar - and broke it, he - the person who stumbled on the jar - is exempt - from paying, since because of thoughts and preoccupation with their affairs people do not normally concentrate on the road when they are walking, (Gemara; Nimukei Yosef; Hameiri); the owner of the jar should have taken care that no one would stumble over it.

And if he - the person who stumbled on the jar - were injured by it - e.g., as a result of stumbling over it he fell and injured himself, or was injured by the shards of the jar, the owner of the cask (havit) - i.e., the owner of the jar, since in Mishnaic usage, both kad (jar), and havit (cask), may denote one and the same receptacle (Gemara) - is liable for his injury - even if he waived ownership over the jar, for someone who waives ownership over objects causing damage in a place where he has no right to put them in the first place is liable, as if he had not waived ownership over them. Even though the obligation derives from the law regarding the pit, and concerning damages caused by the pit the Torah writes, "and the ox fell into it" (Ex. 21:33), from which we learn, only "ox" and not man, this is so only with respect to death, i.e., if a person fell into the pit and died, the owner of the pit is exempt from the fine; but if one was injured therein, then he is liable (Gemara, 28b).

If his jar was broken in the public domain - e.g., if the owner of the jar stumbled, and he dropped the jar when it was full of water and it broke, and someone slipped in the water - which spilled from the jar and fell and was injured, or was hurt by its shards - from the broken jar, he - the owner of the jar - is liable - for the injury. Although the owner of the jar stumbled, the Tanna holds that one who stumbles is negligent, i.e., since the owner of the jar stumbled due to carelessness (and not because of some obstacle), this was an act of negligence, and not an instance of circumstances beyond his control; he therefore is liable.

Rabbi Yehudah says, With intent - i.e. if the owner of the jar intended to attain the shards and the water after his jar was broken, he is liable -for damage caused by them in keeping with the law regarding a pit in the public domain; without intent - i.e. if he did not intend to attain them, since this was a case of circumstances beyond his control, for, according to Rabbi Yehudah, one who stumbles is not considered negligent, the shards and the water have the law of that which became ownerless after a fall which was beyond one's control, and it is as if they never were his; he therefore, is - exempt - from paying for the damage they cause (Bartenura). However, according to the first opinion cited in our mishnah, which holds that the person who stumbles is considered negligent, even though he renounced ownership of the shards and the water, he is liable, since one renouncing ownership of possessions which cause damage after a negligent stumbling is liable.

We have explained our mishnah, in accordance with Bartenura and Tosefot Yom Tov, as referring to a case in which a person was injured by the water or the shards after the jar fell, i.e., the owner of the jar had sufficient time to remove the shards or to dry up the water. Rabbi Yehudah holds in such a case that if the owner of the jar renounced possession of the shards and the water then he is exempt, since stumbling is a circumstance beyond control, and whoever renounces possession of property which causes damage after a fall due to a circumstance beyond control is exempt. The first opinion in our mishnah, holds that the owner is liable, since it considers stumbling to be an act of negligence, and whoever renounces ownership of his possessions after negligent fall is liable. The Gemara explains that the First Tanna and Rabbi Yehudah also disagree in the case where a person was injured at the time the jar fell, and the owner did not have sufficient time to remove the obstacle. Thus, according to the First Tanna he is liable, since his stumbling was negligent, while Rabbi Yehudah holds that with intent i.e. if the owner of the jar intentionally broke it, e.g., if he let it drop so that he would not be injured by' it (Nimukei Yosef), even though he stumbled, he nevertheless is liable. But without intent, i.e. if he did not intend to break the jar, but only to lower it from his shoulder, and he stumbled and it broke, since this was beyond the control of the owner, in accord with the opinion of Rabbi Yehudah that stumbling is not an act of negligence, he is exempt.

In any event, according to Rabbi Yohanan, our mishnah deals mainly with the time after the fall, and it teaches that Rabbi Yehudah holds that he is exempt only if he renounced ownership after a fall which was beyond his control, but if he renounced ownership without extenuating circumstances then he is liable. According to another opinion in the Gemara, that of Abbaye, our mishnah deals with the two cases: both the time the jar fell and after it fell. He learns this from the fact that the mishnah cites two examples of damages: "and someone slipped in the water, or was hurt by its shards." The intent of the mishnah in the first example is to damage at the time the jar fell, and in the second example to damage after the jar fell. The commentators disagree as to whether Abbaye nevertheless interprets the case of damage after the fall in accordance with Rabbi Yohanan, or whether he interprets it differently, disagreeing with Rabbi Yohanan even concerning the actual law according to Rabbi Yehudah (see Tosafot; Alfasi; Rabbeinu Asher; see also Tosefot Rabbi Akiva Eiger).

BAVA KAMMA: CHAPTER 3: MISHNAH 2

One who pours water into the public domain, and another was injured by it, is liable for his injury. One who conceals a thorn, and glass, and makes his fence out of thorns, or his fence fell into the public domain, and others were injured by them, is liable for their injury.

Kehati

One who pours water into the public domain - even during the season when it is permitted to do so, such as during the rainy season, when one is allowed to pour water into the public domain, and another person was injured by it - e.g., be slipped in the water and fell - one is liable for his injury - by reason of the law concerning damages caused by the pit.

One who conceals a thorn, and glass - in the public domain, and did not properly conceal them so that they would not cause damage, and makes his fence out of thorns - which protruded into the public domain, or his fence fell into the public domain - and he did not waive ownership of it, and he had the time to remove it but did not (Nimukei Yosef), and others were injured by them - by the thorn, the glass, the thorns, or the fallen fence, one is liable for their injury - if, however, he made his fence out of thorns but he kept them inside his own domain, and another person was injured by them, he is exempt, since it is not usual for people to rub against walls.

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