Masechet Bava Kamma 40a-46b

hero image
04 Feb 2009

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 40a-b

Ordinarily, an animal that kills a person will be put to death. According to the Mishnah (39a) shor ha-itztadin – a “stadium ox” (i.e. a bull that was trained to fight) will not be killed if it killed a person, since the passage that teaches that law indicates that the animal will be killed if it gores, not if it was instigated by others to gore (see Shemot 21:28).

The Gemara on our daf asks about such an animal’s status with regard to other laws. For example, ordinarily an animal that has killed cannot be brought as a sacrifice. Would an animal like this be appropriate to bring as a korban (sacrifice)? In response to this question we find that Rav believes that the animal was anoos – what happened was beyond its control, so it would not be held responsible and could be used as a korban. Shmuel disagrees arguing that the animal had committed a grievous sin, even if it could not technically be held responsible, it still would not be appropriate for the altar.

In his Nachalat Moshe, Rav Azriel Moshe Rothstein suggests that the argument between Rav and Shmuel is part of a larger question of how we must view situations of ones – of a forbidden act that one is forced to commit against his will. According to Rav’s approach, Jewish law separates such an act from the individual who did it, so we view the anoos not only as being free from punishment, but as if he did not do the act at all. Shmuel believes that the individual may be free from punishment, but we still view him as being the one who performed this act.

In the time of the Mishnah, Roman stadia included performances of barbarism, including animals that were raised specifically for fights. Additionally (as is the case with bullfighting today), the animals were prodded and even stabbed in order to encourage them to gore and to attack.

Bava Kamma 41a-b

One of the most common words in the Hebrew language cannot be translated into English. The word et introduces many words in the Torah, and according to many Sages, we can use it as a source to learn new laws.

One such case is shor ha-niskal where someone’s ox gores and kills another person. As we saw on yesterday’s daf, in that case the Torah teaches that the ox is stoned and its meat cannot be eaten. The passage that says that its meat cannot be eaten – v’lo ye’akhel et besaro – is understood by the Gemara to teach us prohibitions against eating its meat, as well as deriving benefit from its meat. According to some opinions in the Gemara, the word et is understood to teach that the animal’s skin also cannot be used; according to others we must learn this from elsewhere in the passage, since they do not believe that the word et can be used to teach halakhot.

These positions are found in a baraita that brings the teachings of Shimon (some say Nechemia) ha-Amasoni, who was known to learn halakhot from every et that appeared in the Torah.  When he reached the passage of et ha-Shem Elokekha tira (Devarim 10:20), which teaches that you should be in awe of God, he could not think of an appropriate thing to learn from the word et, and he stopped making such derashot. In reply to his students’ question of “What will happen to our earlier teachings?” he responded that he would now receive reward for distancing himself from this methodology, just as he did when he made use of it. Finally Rabbi Akiva made use of that et to teach that Torah scholars should be included in the list of those whom the students should hold in awe.

One of the popular questions asked by the rishonim about this baraita is, why did Shimon ha-Amasoni encounter difficulties only when he reached this passage? Shouldn’t the passage in Devarim 6:5v’ahavta et ha-Shem Elokekha, that you should love Hashem your God – have presented the same type of problem? The Maharsha suggests that Shimon ha-Amasoni had no doubt that there was an obligation to love Torah scholars which could be derived from that pasuk. His only question was whether the same rule could apply to awe, as well, a question that Rabbi Akiva eventually related to.

Bava Kamma 42a-b

Is there any reason to distinguish between payments made for damages done to a man and those made for damages done to a woman?

The Torah is emphatic that injuries done to men and women will be punished the same way (see, for example Shemot 21:28 and 21:29). In discussing this point, the Gemara brings a baraita that teaches that if a pregnant woman is injured, leading her to miscarry, the woman will receive payments of nezek and tza’ar (damage to her as well as pain and suffering) while her husband will receive the penalty meted out for the loss of the unborn child – known as demei veladot – as stipulated in the Torah (see Shemot 21:22).

Tosafot explain that the reason the baraita mentions only nezek and tza’ar, with no discussion of the other payments that are ordinarily made in situations of damage, is because the pain and damage to her from an incident like this are greater than they would have been in a normal delivery. We can assume, however, that medical costs and loss of time at work (ripuy and shevet) will be no greater in this case than had she given birth naturally, so she will not receive any such payments from the individual who caused the miscarriage. Boshet (embarrassment) will not be paid for a technical reason. As the case is presented in the Torah, the woman was hit accidentally; the person who hurt her had meant to strike someone else. Since nitkaven le-vayesh et zeh u’biyyesh et zeh, patur – when someone intended to embarrass one person and mistakenly embarrassed another, he is not obligated to pay – there is no payment of boshet in our case.

The Me’iri argues that ripui and shevet payments will be made to the husband. Based on agreements made in the ketubah and by Rabbinic ordinance a man is obligated to pay his wife’s medical bills, and receives her income in exchange for keeping her fed. Therefore it is only reasonable that he will receive payments related to those two areas of expense or loss. According to the Me’iri, the value of boshet and who receives it will depend on the nature and extent of the embarrassment that she suffers.

Bava Kamma 43a-b

As we learned at the beginning of Masechet Bava Kamma, there are 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.

Our Gemara quotes a baraita that compares and contrasts damage done by a bor and by esh (fire). According to the baraita, there is an element of severity to each of these two avot nezikin. On the one hand, the very creation of a bor in a public place is meant to injure or damage; on the other hand, by its very nature esh travels and does damage when it moves, furthermore it destroys not only things that ordinarily burn, but also things that do not ordinarily burn.

Although fire can only burn flammable objects and not stones or dirt, nevertheless fire does damage them, as well. After a fire, various organic elements that add nutrients to the soil – e.g. straw, excrement and rotting vegetation – are destroyed. In addition to this, moisture is drawn out of the ground, leading it to break up, which makes it difficult to plow and farm.

This is also true regarding rocks. In the land of Israel, most rocks are made up of different types of chalk, and a large fire can crack them and break them apart. Even smaller fires may have an effect on the chemical composition of the rock – at least its outer surface – leading it to become brittle, so that it may disintegrate in rain.

Aside from these types of damages, the heat from fire can also potentially affect other non-flammable objects like metal objects, pottery and stoneware as well as other things.

Bava Kamma 44a-b

Is there any reason to think that a woman should have less responsibility when it comes to damages than a man?

The Mishnah on our daf lists seven cases of people who own an ox that will be killed because it killed a person. The first case on the list is that of an ox owned by a woman. In bringing a source for this law, the Gemara quotes a baraita that points to the Torah‘s repetition of the word shor (ox) seven times in the passages that deal with a goring ox (see Shemot 21:28-32), which includes all of the “unusual” cases.

The rishonim question the need for a special source to teach that a woman will be responsible for the damage done by her ox, given the general rule that men and women are equally responsible for all punishments in the Torah. The general approach is that the language used in the Torah for these rules and regulations is uniquely masculine, so there is a need for a pasuk that will include women (Rashi suggests that the masculine expression is ba’al ha-shor – the owner of the ox – where ba’al is written in the masculine. Tosafot argues that it is the use of the words shor ish – the ox of a man – where ish is very clearly masculine.)

The Me’iri offers a different approach, raising one suggestion that the Mishnah is talking about a case where a married woman owns the ox. While it is obvious to the Mishnah that a single woman would be held responsible for her ox’s damage, just like a man, we may have thought that a married woman’s husband has some level of ownership of the ox leading to a different ruling. The Me’iri himself suggests that we might have thought that a woman is free of such obligations because she is seen as unable to fully control a large animal.

Bava Kamma 45a-b

What level of care does the owner of an animal need to provide in order to be perceived as having done what is required of him?

The Mishnah presents situations where basic precautions were in place – the animal was tied up or was in an enclosed area – situations where the animal would ordinarily be kept from getting loose, but can get loose if it tries. In those kinds of situations we find three opinions on this matter if the animal escapes and causes damage:

In explanation of these positions, Rabbi Meir is understood to demand a high level of shemirah – guarding the animal – and the standard precautions taken in the situation presented by the Mishnah are not adequate to be considered a full shemirah. Thus, the owner is held fully responsible. Rabbi Eliezer appears to be even more demanding, although one explanation of his opinion suggests that he would agree that a high level shemirah would be sufficient to free the owner of a monetary obligation; he is concerned with heavenly issues – beyond simple issues of payment and restitution – when he suggests that the animal must be killed.

Rabbi Yehuda’s position is the most challenging to explain since he rules that the owner of a non-violent animal will be held responsible even more than a violent one. The Gemara explains that this ruling is based on the passage that states that the owner of a shor mu’ad will be held responsible if the animal was not guarded (see Shemot 21:29), implying that even minimal shemirah will suffice. In way of explanation, the Meiri suggests that since people recognize the shor mu’ad as a dangerous animal they know that they must stay away from it, which lowers the owner’s responsibility as far as shemirah is concerned.

Bava Kamma 46a-b

As we have learned previously, in a business transaction, it is essential that both parties make their intentions clear. What mechanisms does Jewish law have to clarify the intent of the buyer and the seller in the event that they disagree about the terms of sale?

Our Gemara brings a case where an ox was sold, and the purchaser discovers that he was sold a shor mu’ad. When he complains, the seller tells him that he sold him the animal for slaughter, so it should make no difference whether or not the animal is dangerous; the buyer claims that he bought it to work his fields and cannot use this animal.

In this case, Rav rules that the buyer can claim mekeh ta’ut – the entire transaction was made under a mistaken impression – and the sale can be cancelled. He bases this ruling on the fact that rov – the majority – of purchasers buy animals for field work, so the sale can be assumed to have been made with that in mind. Shemu’el argues that following rov is only appropriate in cases of issur – discussions of what is ritually permitted or forbidden. In cases of mammon – money matters – we follow the principle of hamotzi me-chavero alav ha-ra’ayah – the party that is making a claim on the other one must prove his claim. Thus the purchaser would need to bring proof that he only bought the animal with the intention of using it in the field.

The Rashash asks why Rav cares about what most people do, given that our concern is the intention of this particular purchaser, and the Gemara has already established that he buys animals for both meat and for work. He explains that the case in the Gemara must be talking about a wholesaler who purchases both types of animals, but since most of his customers will want to buy animals for work, he prefers to buy those types of animals.

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 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.