Bava Kamma

June 7, 2006

The “First Gate” is the first “masechet” (volume) of “Seder Nezikin,” the fourth of the six “Sedarim” of the “Mishnah” and the “Gemara,” the two primary components of the Torah she-B’al Peh, the Oral Law. The meaning of “Nezikin” is Damages, and all of the ten volumes in the Seder and the ten chapters of “Bava Kamma” deal in some way with Damages. Actually, “Bava Kamma” was originally combined with “Bava Metzia,” the “Middle Gate” and “Bava Batra,” the “Last Gate,” in a miniature “Seder Nezikin.” However, the three “Gates” were separated because their contents were enormous, and “Seder Nezikin” was expanded to ten volumes because, large as they were, the three “Bavos” did not encompass all that Jewish Law had to say about the subject of Damages.

A capsule description of the contents of the ten chapters of “Bava Kamma” follows, plus some remarks at the end of this entry on a specific type of damage.

1. The Four Major Categories of Damages
2. Details concerning types of Damage where no initial period of innocence is assumed
3. Laws concerning one who has left a jug or other object in the public square
4. Laws concerning an ox that has gored four or five times
5. Laws concerning an ox that has gored a neighbor’s cow
6. Laws concerning one who has secured his dangerous animals properly, but they escaped and caused damage
7. Laws concerning the relationship between different types of judicial fines
8. Laws one who injures his neighbor
9. Laws concerning one who steals wood
10. Laws concerning one who steals and transfers stolen property to his sons, regarding the degree of their obligation to repay original owner

With regard to the major topic of Chapter 8 of “Bava Kamma,” viz. injuring one’s neighbor, the Torah states in Shemot (21:23-25), But if there shall be a fatality, then you should award a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot; a burn for a burn, a wound for a wound, a bruise for a bruise.”

However, the “Mishnah” in “Bava Kamma” (83b) says, “One who injures his fellow man must make five payments:

1. Compensation for the financial consequences of the injury
2. Compensation for the physical pain
3. Compensation for medical expenses
4. Compensation for emotional suffering
5. Unemployment Compensation

And the “Gemara” states, “ ‘An Eye for an Eye’ means monetary payment.”

Here we have a wonderful example of the relationship between the Written Torah and the Oral Torah. The Written Torah seems to call explicitly for the literal payment of an “eye for an eye.” But the Rabbis of the Talmud say that this means monetary payments, which are detailed, as per the Mishnah cited above. The point is “What is the purpose of punishment?” From the Jewish point of view, the purpose of punishment is atonement for the sinner. The only injury for which there is no atonement except for the literal carrying out upon the perpetrator of the criminal act that he visited upon the injured party, is murder. As the Torah writes in BaMidbar (35:31), “You shall not accept a ransom for the life of a murderer who is worthy of death, for he shall surely be put to death.” Murder is the only “injury” for which there is no possibility of ransom. For everything short of that, there is the possibility of ransom, as detailed in the first “Mishnah” of the eighth chapter of “Bava Kamma,” as cited above.

The question remains, however, if “An eye for an eye” means monetary payments and if, likewise, “A hand for a hand” and “a foot for a foot” mean monetary payments, why didn’t the Torah say so? The answer is that from the point of view of Strict Justice, one who causes his fellow man to lose an eye or his hand or his foot, deserves to lose that organ or limb, but out of the Mercy of the Author of the Torah, a monetary ransom is accepted, and literal payment is not required, but for one who takes the life of another, the only atonement is for him to pay with his own life.