Masechet Bava Kamma 2a- 4b

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24 Dec 2008
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 2a-b

The introductory Mishnah to Masechet Bava Kamma offers the four avot nezikin (literally “fathers,” the term avot in this context refers to the primary types of damages according to the Torah) – Shor (an ox), Bor (a pit), Mav’eh and Hev’er (fire)­ – each with its own set of rules.

Of these four archetypes of damage, two are clear. A Bor is a pit that is dug in a place where someone or someone’s property can fall in and become injured or damaged. Hev’er is fire that destroys property. The other two cases – Shor and Mav’eh – need explanation, and Rav and Shmu’el in the Gemara argue about how to define them. Shor clearly means damage done by an ox, but an ox can do damage in a number of different ways and it is not clear what types of damage the term Shor refers to.

According to Rav, the Mishnah has listed the four types of damages that appear in the Torah, and Shor is a broad term that encompasses keren (damage done with the animal’s horns), shen (damage done with the animal’s teeth, i.e. eating) and regel (damage done by the animal’s hooves while walking). Mav’eh refers to a different type of damage mentioned in the Torah – a person who does damage. Shmuel believes that the Mishnah is listing only those avot nezikin that are damage done by property that the owner should have expected. Thus Shor refers specifically to damage done by the animal while walking (regel) while Mav’eh refers to damage done by the animal when it eats (shen). According to Shmuel, the Mishnah does not deal with a person who does damage, as it is a different category of damage.

The Talmud Yerushalmi explains that Shor means keren and Mav’eh includes both shen and regel. Thus, according to the Yerushalmi, the Mishnah includes all cases of damage done by someone’s property.


Bava Kamma 3a-b

As we learned on yesterday’s daf (page), the Mishnah (2a) taught that there are four types of avot nezikin (literally “fathers,” the term avot in this context refers to the primary types of damages according to the Torah) – Shor (an ox), Bor (a pit), Mav’eh and Hev’er (fire)­. Generally speaking, if there is a list of avot we anticipate that there will be toldot (“offspring” i.e. types of damage that are similar – but not identical – to that of the avot) for which the owner will be responsible, as well.

Our Gemara offers some examples of damages that are the toldot of shen (damage done by the animal when it eats). Shen is defined as a situation where the animal derives benefit or pleasure from its action, and where the animal belongs to a person who is responsible to guard it and make sure that it does not do damage to other people’s property. Included in the toldot are situations where an animal rubs against a wall to scratch itself and does damage to the wall (nit’hakekhah ba-kotel la-hana’atah) or dirties fruit, getting pleasure by doing so (tinfah perot la-hana’atah).

Rashi explains this last case of tinfah perot la-hana’atah as being a situation where the animal rolls on the fruit, dirtying it and ruining it. Rabbeinu Chananel offers a different explanation of the case, suggesting that the animal relieved itself on the fruit, which dirtied and ruined it; had the animal refrained from relieving itself on the fruit, it would have been uncomfortable. This difference of opinion is indicative of a basic disagreement about the definition of shen. According to Rashi’s approach, the animal must get pleasure from the object that it is damaging. According to Rabbeinu Chananel, any case where the animal derives pleasure while doing the damage would be considered a toldah of shen.


Bava Kamma 4a-b

As we have seen on the previous pages in Masechet Bava Kamma, a person is held responsible for damages done by his property. One unique exception to this rule is when damage is done by a person’s eved or shifchah – non-Jewish male or female slave.

According to Torah law, a person can own a non-Jewish slave, who is considered property to the extent that he or she can be bought and sold (the halacha of an eved ivri – a Jewish slave – is different. Such a slave is effectively a long-term employee, who, with minor exceptions, still remains obligated in all commandments as a Jewish person). The Gemara on our daf teaches that if a non-Jewish slave does damage, even though he is the property of a Jewish person no less than his ox is his property, nevertheless, the owner will not be held responsible to pay restitution for damages done by the slave. Rav Ashi explains that there is an important reason to make this distinction – in the event that the slave owner upsets him, the slave, who is unhappy with his working conditions, may choose to set a neighbor’s field ablaze, which would force the owner to pay large damages. In order to keep such power from the hands of the slave, the halacha frees the owner from responsibility for the slave’s actions.

Many accept Rav Ashi’s explanation as the basis for this law, and claim that this is a situation of tikun olam (rabbinic enactments done to encourage the proper working of society – see Masechet Gittin pages 35-36) created by the sages to protect slave owners. According to this approach, the Torah law would obligate the owner to pay for the damages. There is, however, an alternative approach that suggests that the underlying reason to free the owner from paying is because the slave is an independent thinker who is personally responsible for his actions, so the owner cannot truly be held responsible for any damages that the slave does. This stands in contrast with an animal, which does not have the intelligence to be personally responsible for anything that it does. In fact, according to the Rambam (Hilkhot Geneiva 1:9 and Hilkhot Hovel U’Mazik 4:21), should the slave gain his freedom and has money, he will have to pay for damages that he did while he was a slave.


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.