Masechet Bava Kamma 26a-32b

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22 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 26a-b

Up until this point, the discussion in Masechet Bava Kamma has focused on the level of responsibility that a person has when damage is caused by his property. The Mishnah on our daf discusses what someone’s responsibilities are when he does the damage himself. It is not all that surprising to find that a person will be held liable to an even higher degree when he is the one who blinded another or broke his things. The Mishnah teaches that unlike an ox where we distinguish between a shor tam – one that has shown no violent tendencies – whose owner must pay for just half of the damages and a shor mu’ad – a violent animal – whose owner must make full restitution, adam mu’ad le-olam – a person is always fully responsible for the consequences of his actions. This is true whether the damage was done on purpose or by accident; whether the man was awake or asleep when he did the destructive action.

According to the Talmud Yerushalmi (and echoed in the rulings of the poskim), a person will only be held responsible for injury or damage that he did while asleep if he placed himself in a position where he might break things when he lay down to sleep (e.g. he lay down right next to another person or next to a breakable object). If, however, when he went to sleep nothing else was near him, he cannot be held responsible for damage done to someone who came and lay down next to him while he was already asleep.

Given the fact that a person is ordinarily held responsible even for things that took place against his will (ones), this ruling demands some explanation.
Tosafot believe that this proves that there are some cases of ones that a person will not be held responsible for. If it was totally out of his control we cannot put the responsibility on him.
The Ramban argues that in cases like this one, the person who put himself in a position to be injured would be considered a poshe’ah – a negligent person – and the responsibility would, therefore, be entirely his own.

The Meiri adds that it follows according to the Mishnah that a person will be held responsible whether drunk or sober.


Bava Kamma 27a-b

The third perek of Masechet Bava Kamma deals with cases of a person who causes damage to another, focusing on two main issues –

  1. A person who creates an obstacle in a public place
  2. Two people who cause injury to one another.

The first issue is connected with the idea of a bor – a hole dug in the public thoroughfare – that causes damage. It leads to clarification of the level of responsibility that a person has when he creates such an obstacle, whether all such cases will be considered a bor and whether someone who suffered an accident will be held responsible for damage that it causes to others.

The first Mishnah in the perek discusses a case where a person places a kad (a type of vessel) in the public thoroughfare. According to the Mishnah, if someone trips on it and breaks it he will not be held liable for the damage, but if he was injured then the owner of the vessel (now referred to as a havit) will be responsible.

Aside from the legal issues that appear in this Mishnah, the Gemara is disturbed by the terminology that is used, specifically, why did the Mishnah open discussing a case of a kad and conclude by talking about the owner of a havit? Rav Papa concludes that a kad and a havit are used interchangeably by the Mishnah, as they mean the same thing.

Both a kad and a havit were large earthen vessels that were used to store liquids like wine and oil (although occasionally other things were stored in them). While our Mishnah uses the words interchangeably, in places where distinctions were made a kad referred to a smaller vessel and a havit referred to a larger one.


Bava Kamma 28a-b

Our Gemara quotes a baraita that teaches that if a person makes his vineyard hefker – he declares it ownerless – and the next morning he goes and harvests it, he will be obligated to leave the tithes that go to the poor (peret, olalot, shik’hah and pe’ah) but is free from the obligation of ma’aser (tithes to the Levi).

Generally speaking, only a farmer who harvests his own field is obligated in all of the tithes that are commanded in the Torah. A field that is truly hefker – it has no owner – will not need to have tithes taken from it by the person who comes to harvest it. In our case, however, it is clear that this vineyard was not truly hefker, which is why the Sages distinguished between some of the tithes – those distributed to the poor – that  still need to be brought and others that are no longer obligatory.

Most of the commentaries explain the difference between tithes based on the Gemara (Bava Kamma 94a) that points to the repeated use of the word ta’azov – “leave behind” – specifically in those tithes that are to be left for the poor. The Gemara concludes from here that whenever there is some possibility that these tithes should be distributed, we are obligated to do so. The Rambam offers a different source for this ruling. According to him, we find the word sadchah – “your field” – only in reference to tithes for the poor. From this he concludes that whenever someone is harvesting his field – even if it was taken from hefker – he is still obligated in these tithes. With regard to the tithes for the priests and the Levites, since the term sadchah does not appear, the exemption of hefker will apply.

The various tithes to the poor discussed here are:


Bava Kamma 29a-b

According to the Mishnah (28a), if a person’s vessel drops in the public thoroughfare and someone becomes injured by slipping on the water or through contact with the broken shards, the owner of the vessel is responsible for the damage that was done.

Discussing this case leads the Gemara on today’s daf (page) to debate the question of mafkir nezakav – whether someone can divest himself of something that he owns that will cause damage by declaring it ownerless. On this point the Gemara presents a disagreement between Rabbi Yochanan and Rabbi Elazar, one of whom says that the owner will remain responsible and the other saying that he will not. The Gemara tries to identify Rabbi Elazar as the author of the statement ruling that the owner remains responsible, based on another statement on the subject that is brought in his name – that there are two things that do not belong to a person, yet the Torah treats them as if they remained in his possession. These two things are a bor (a hole or ditch) that is dug in a public domain and chametz (leaven) on the eve of the Passover holiday from noon onwards.

The case of bor is straightforward – no one individual owns the public, yet if a person digs a hole and creates an obstacle, he will be viewed as responsible for the hole and the damage that it causes. With regard to chametz, the Gemara in Pesachim rules that beginning at noon on the day before Passover, all leavened products become forbidden – not only to eat, but also to derive any benefit from. Such a situation will render the chametz to be considered ownerless, since it effectively has no value. Nevertheless, the Torah will hold the original owner to be responsible for having chametz in his possession on Passover, which is forbidden.

The Talmud Yerushalmi points out that the argument between Rabbi Yochanan and Rabbi Elazar applies only to inanimate objects left as obstacles in the public domain. No one would say that if a person places a wild animal there and declares it ownerless that he would not be responsible.


Bava Kamma 30a-b

The first Mishnah on our daf teaches that a person must take great care in leaving sharp objects in places where they can cause damage or injury. For example, if a person builds his fence out of thorns or places shards of glass in a fence, he will be responsible for any injuries that take place.

This teaching leads our Gemara to bring a baraita that teaches about Hasidim ha-rishonim – early groups of particularly pious people – who would make sure to bury their thorns or broken glass three tefachim (handbreadths) deep in their fields so that they would not cause damage even to plows. The Gemara relates further that Rav Sheshet made sure to burn his, while Rava threw his into the Euphrates. Rav Yehuda concludes this discussion by saying that someone who wants to become pious should take great care regarding the laws of nezikin (damages). Rava says that he should keep the rules enumerated in Masechet Avot, and some say he should keep the laws of Brachot (blessings).

The Rashba and Rabbeinu Yehonatan suggest that these three sets of rules are quoted because we find in each one of them specific references to how pious Jews are supposed to act. The Maharsha explains this Gemara by describing three levels of human perfection, each of which can be attained by the study and application of different sets of religious texts. These levels are:


Bava Kamma 31a-b

A baraita is brought in our Gemara that describes a Talmudic-age traffic accident – if people carrying clay or glass vessels were walking one after another, and the one walking in front trips and falls, the one who is second in line falls over the first person and the third person trips over the second, the one who is first will be responsible for damages incurred by the second, the second one will be responsible for the damages incurred by the third, and so forth. If, however the first person caused them all to fall, then he will be responsible for all damage.

In what case might the first person cause all of those following him to fall? Two answers are given in the Gemara:
Rav Papa says de-psaka le-orhei ke-shilda – that he blocks the road like a corpse.
Rav Zevid says ke-hutra de-samyuta – that he blocks the road like a blind man’s stick.

Rav Papa’s explanation appears to be that the man who fell is lying across the entire width of the street and those that followed him trip over different parts of his body. The source of the word shilda is Assyrian, where it meant a corpse. Generally speaking it appears in the Talmud to mean a skeleton, which is its meaning in modern Hebrew.

According to Rashi‘s explanation, Rav Zevid offers a similar approach; he is simply offering an alternative example – that of a blind man who stretches out his stick in different directions while walking in order to find his way. This case, too, is where the body covers the entire area of the street. Tosafot argue that there is a difference between Rav Papa, who describes someone who is blocking the road in such a way that the people behind him should have been able to see – and avoid – him, and Rav Zevid, who describes someone who is lying in the road at an angle (the way a blind person holds his stick) where it would not be clear to the people behind that he remains an obstacle.


Bava Kamma 32a-b

According to the halacha, the public domain is available to all people for normal use. Thus a person can walk freely in the public thoroughfare, and if he and another pedestrian bump into one another, neither will have to pay the other for any damage or injury, since they were both walking in an accepted manner. This is true with regard to walking – will it be true if the person was running, as well?

According to Issi ben Yehuda running is not considered a normal activity, which is why someone who runs and causes damage or injury will be considered to be at fault and will be responsible to pay damages. One exception is on Friday afternoon before Shabbat, when running in public is considered normal behavior.

The Tosafot Yom Tov brings two approaches to explaining Issi ben Yehuda’s position. One approach is to permit running on erev Shabbat only if the person is involved in the mitzvah of Shabbat preparation. If, however, the person was running to deal with some personal issue, then he would still be held responsible for any damage that he causes. Another approach is to say that since it is commonplace for people to be running on Friday afternoon, that is considered normal behavior, and therefore someone who does damage while running will not be held responsible.

What might be the purpose of running on erev Shabbat in the late afternoon?  The Gemara points to the practice of some of the Sages who would go out into the fields to welcome the Sabbath – a tradition that has played a role in the development of the Kabbalat Shabbat service that is customary in synagogues to this day:

The Maharsha points out a difference between the behavior of these two sages. Rabbi Chanina treated the Shabbat like a queen, and as a subject of the monarch he went out to greet her, while Rabbi Yannai acted in the role of the bridegroom who stood in place welcoming his bride. It should be noted that there is a striking difference between the awe and seriousness that is involved with welcoming the king as opposed to the joy and celebration that takes place at a wedding feast.


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.