Masechet Bava Kamma 12a-18b

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Lions and Tigers and Bears
08 Jan 2009
Torah

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.

Bava Kamma 12a-b

According to the Torah, among other things, the Sabbatical year annulled most private loans (see Devarim 15:1-3). Recognizing that lenders were reluctant to offer loans as the Sabbatical year approached – which was, itself forbidden by the Torah (see Devarim 15:9-11), Hillel ha-Zaken established a method that would allow the lenders to collect the debts that were owed to them, even after the Sabbatical year. His suggestion was to write a document – called a pruzbol – that effectively turned the loan over to the courts, which were not constrained by the laws of shemitta, since they do not apply to public debts. Thus, when the Sabbatical year was over, the court would be collecting the debt, rather than the individual. This legal fiction was viewed as a benefit for both the rich – who would now be able to recover their loans – and the poor – who would now be able to borrow money when they needed to. The mechanics of the enactment are subject to some disagreement. According to the Sifrei it appears that the law annulling debts during shemitta applies only to the creditor, but not when the loan was turned over to the court. Hillel’s legal document allowed the debt to be taken over by the court without the promissory notes actually changing hands. Another approach is that the law of shemitat kesafim (monetary sabbatical) applies even if the loan is turned over to the court. What the pruzbol accomplishes is effectively adding a condition to the loan allowing it to be collected though the medium of tenai she-ba-mammon kayyam – that in money matters any agreed upon condition applies, even if it negates the standard rules as presented by the Torah.

Our Gemara quotes a baraita that teaches that a pruzbol will only be effective if the borrower owns land that can secure the loan – owning slaves would not be a sufficient guarantee. Rashi explains the need for land as the basis for a pruzbol as stemming from the fact that this law only applied to “normal” loans. In order to be considered a “normal” loan, land had to be made available as a guarantee that the loan would be repaid.

The source for the term pruzbol is Greek, although it is not entirely clear what the word refers to. One suggestion is that it means simply “an announcement delivered to the courts.” Another suggestion is that it means “finalizing the sale.” Other suggestions have been raised, as well.


Bava Kamma 13a-b

We have learned that the owner of an animal is responsible to pay for damage done by an animal that he owns. What if the owner has declared that the animal will be brought as a sacrifice? Is he still responsible for damage done by an animal that is consecrated to the Temple?

Rabbi Abba appears to rule that in the case of a korban shelamim – where the meat of the animal will be eaten by the owner – the owner is responsible, but that payment will be made only from the meat, and not from the innards that will be sacrificed on the altar. In response to the Gemara‘s objection that it is obvious that the parts of the animal that are sacrificed cannot be used to pay a debt, the Gemara explains that Rabbi Abba’s ruling means that the value of the innards cannot be considered when figuring the value of the animal for payment.

The Gemara’s example of this would be a situation where the animal was a shor tam – an ox that had no history of violence – whose owner is obligated to pay half of the damage caused by the animal, but no more than the value of the animal itself. According to the Rambam‘s ruling in this case (see Hilkhot Nizkei Mammon 10:2-3) the owner of the animal that was damaged will be given an amount of meat from the sacrifice to eat (in holiness, following all of the rules and regulations of the korban) equal to half of the amount of the damage – but if the full animal was worth less than that amount, he will only get the value of the meat, and the fact that the innards have additional value will not be considered.

Although the Gemara only discusses the question with regard to a shor tam, the same question must be considered with regard to a shor mu’ad – an animal with a history of violence whose owner must pay full damages. Is the owner responsible for damage done by an animal that has been consecrated as a Temple sacrifice?  The Me’iri rules that the owner remains responsible, and will have to pay full damages. The Yam Shel Shlomo argues that even in this case we will have to subtract the relative value of the innards from the damages, since that part cannot be considered the responsibility of the owner.


Bava Kamma 14a-b

Our Gemara quotes a baraita that presents the following situation:

A cow that damages a tallit (clothing) and the tallit damaged the cow, we do not say that the two damages cancel each other out, rather we must evaluate each damage separately and clarify how much one party owes to the other.

The simple reading of this case appears to be that in one single event the cow damaged the tallit and at the same time, was injured by it. This explanation is difficult because the cow damaging the tallit is a case of regel – where the animal damaged an object accidentally (e.g. by stepping on it) – which only applies if the animal entered the domain of the owner of the object, while the tallit damaging the cow is a case of bor – literally a ditch, but applied to any obstacle left in the public thoroughfare – which only applies in the public domain. This problem leads Tosafot to suggest that the baraita is talking about two separate incidents. The Me’iri prefers to accept the simple reading of the baraita and explain that the damage done by the cow was not an accidental case of regel, but a situation where the cow damaged the talit on purpose, which would fall under the category of keren (goring) which applies in the public domain.

The Nimukei Yosef explains the ruling that we cannot simply say that the two damages cancel out one another as a concern that two simultaneous damages may lead us to say that the damage that was done was roughly equivalent, and we would be inclined to assume that the value was close enough. The halacha demands that care must be taken to establish the true value of damage done by each side. The Rosh simply says that the bet din – the Jewish court – may have chosen to ignore the incident entirely, since both sides played a role in the damage. The baraita teaches that even in such cases the court must take the case seriously and become involved.


Bava Kamma 15a-b

When a person’s property causes damage, obviously there is a need to pay restitution. Nevertheless, the Torah teaches that we distinguish between a shor mu’ad – an ox that has gored in the past – for which one pays full damages (nezek shalem), and a shor tam – an ox with no violent history – for which one pays for only half of the damage (chatzi nezek) that he caused.

Our Gemara explains that Rav Papa and Rav Huna brei d’Rav Yehoshua offer different approaches to the law of chatzi nezek. According to Rav Papa, every ox is potentially dangerous and the owner really should pay full damages. Since this is a “first offense,” however, the Torah is lenient with him, and only obligates him to pay half of what he owes. Rav Huna believes that an ox that never showed any indication of violence does not need to be watched carefully, and because its behavior was unusual, its owner should not be obligated to pay any damages at all. Nevertheless, the Torah imposed a penalty – a kenas – on the individual so that he should make sure to be more careful in the future.

The Gemara concludes that we follow Rav Huna’s opinion, and rule that chatzi nezek is a kenas. This leads to an interesting ruling. Unlike standard monetary rulings which are entrusted to all Jewish courts, penalties can only be applied by properly ordained judges. Since ordination was only given in the Land of Israel, cases involving kenas were not heard in Babylon. Thus the Gemara concludes that unusual cases of damage – like a dog eating a lamb or a cat eating a large chicken – would not be tried in Bavel.

From stories that appear in the Talmud it would seem that during those times cats were not fully domesticated. Although people did keep cats in their homes to protect the inhabitants from rats and snakes, it was fairly common to hear of a cat that attacked domesticated birds and even babies in the house. Similarly, dogs were not kept as pets, rather they were guard dogs or used for shepherding. The cases mentioned in our Gemara are unusual specifically because the animals that were attacked were larger than normal.


Bava Kamma 16a-b

When we discuss whether an animal is mu’ad (has a violent history) or tam (has no history of violence) we usually are talking about domesticated animals. The Mishnah (15b) teaches that wild animals, e.g. lions, and tigers and bears, are intrinsically mu’adim and their owners will always be responsible for them.

With regard to this halacha, our Gemara introduces Shmuel‘s opinion that even wild animals will only be considered mu’adim if they behave in a manner that is normal for them. Thus, if a lion in is the public domain and kills in its normal manner, the owner is responsible, but if the lion kills in an abnormal way, the owner will not be fully responsible.

The Maharshal in his Yam Shel Shlomo objects to Shmuel’s teaching – is it possible that the halacha would permit someone to place a wild animal in the public domain and would not even hold him responsible!? How could someone be permitted to endanger the community in that way? The Maharshal suggests that although this is not the ideal, nevertheless once we recognize the overarching rule that the owner of an animal that behaves abnormally in the public domain is not responsible, it will be applied in all cases – even this one – since such a case is most unusual, and therefore there is no need to develop separate legislation for it. The Nachalat David rules that Shmuel’s ruling notwithstanding, no one would be permitted to bring a wild animal into the public domain. This can be proven by the fact that the sages even obligated the owner of a kelev ra – a bad tempered dog – to remove it as a danger, certainly a case like this one.

As far as the halacha is concerned, the Rambam rejects Shmuel’s distinction and rules that the owner of any wild animal that attacks another animal in the public domain will be held responsible; any method of attack is considered “normal” for a wild animal (see Hilkhot Nizkei Mammon 3:7).  The R”i and others accept Shmuel’s ruling and argue that in a case where a wild animal injures another animal in a manner that is not normal for it, the owner will only be obligated to pay half damages, since we treat the animal as a tam (an animal with no previous history of violence) since it behaved in an unexpected manner.


Bava Kamma 17a-b

The first perek (chapter) of Bava Kamma closes with a series of stories, including descriptions of the honor given to King Chizkiyahu when he died. According to the Gemara, the passage (II Divrei HaYamim, or Chronicles, 32:33) describing the great honor shown to the king at his death refers to the establishment of a yeshivaTorah study – at his burial place. Three opinions are presented with regard to the length of time that the learning sessions continued – three days, seven days or thirty days. These different views represent different periods of mourning. According to the halacha the first three days of mourning are days devoted to crying, followed by seven days of shiva, which are the most serious period of mourning, while the first thirty days are the time of minhagei aveilut – mourning traditions – and eulogies.

The honor given to King Chizkiyahu stems from his efforts to follow halacha and to spread Torah throughout the Land of Israel. With regard to establishing a yeshiva in his place of burial, Tosafot ask how such a thing could have been done, since it is forbidden to speak words of Torah in the immediate vicinity of a dead person. Tosafot suggest that the yeshiva may have been established a short distance from the burial plot. The R”i MiGash discusses this question at length and concludes that Torah study in the vicinity of the dead is only forbidden if it is done for the living – if its purpose is to honor the dead, however, it would not be prohibited. Given that the yeshiva was established to honor King Chizkiyahu, it would certainly be permitted. Rashi (Yevamot 122a) quotes Geonim who described that the tradition in Bavel was to visit the tombs of the Amoraim on the anniversary of their deaths and study there in their honor.


Bava Kamma 18a-b

The Gemara on our daf (page) discusses the case of tzrorot – pebbles that are kicked by an animal that is walking in the public domain, which damage some other object. On the previous daf, Rava ruled that hilchitah gemirah lei – that it is a long-standing tradition (perhaps even an oral tradition handed down from Moses on Mount Sinai) that in a case of tzrorot the owner of the animal will pay half of the damage that was caused. Rava asks whether the half damage that is paid will come from the animal itself (i.e. that the amount that will be paid will never be more than the value of the animal that caused the damage) since that is the normal payment in cases where the owner is responsible for only half of the damage that was caused (e.g. a shor tam) or if there will be no such limitation on the payment, since we do not find any such limitation when damage was done by the animal in a normal fashion.

The Shitah Mekubetzet explains Rava’s quandary as follows. Rava believes that the law regarding tzrorot is a long-standing oral tradition. He is not sure, however, whether the intention of that tradition was to give tzrorot the same status as a shor tam that does damage, or if the case of tzrorot remains an ordinary case of nizkei regel (damage done by an animal while walking normally), and the oral tradition simply limited the level of responsibility of the owner.

Some achronim explain Rava differently, looking at it as a question of how to define the payment. Do we see payment from the animal itself as being inherently connected with payment of chatzi nezek – half damages – and whenever the owner is required to pay half damages, it will be limited to the value of the animal that did the damage, or perhaps it is a unique law connected with keren – damage done by a goring ox – that would not apply to other types of damage?


In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.