Masechet Bava Kamma 47a-53b

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12 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 47a-b

According to the Mishnah, if someone places his fruit in someone else’s yard without his permission, the owner of the yard will not be responsible if his animal eats the fruit; if the animal is injured by the fruit then the owner of the fruit will be liable for damage done to the animal.

In the Gemara, Rav argues that the owner of the fruit will only be held liable if the animal tripped on the fruit or slipped on them. If he was injured by eating them, however, the owner of the fruit will not be held liable since the animal should not have eaten them (i.e. the animal itself caused the damage by eating). The Gemara quotes a baraita that teaches a similar rule with regard to someone who places poison somewhere that his friend’s animal eats it – he will not be held liable to pay, even though he will be held responsible in the heavenly court (chayav be-dinei shamayim). The Gemara explains that with regard to fruit that an animal normally eats this is true, but that even in the case of poison – something that an animal does not normally eat – the person who placed it there will be chayav be-dinei shamayim.

Most animal are sensitive to poisons and avoid eating them, both because they are not their normal food and because they succeed in recognizing them, probably by means of their sense of smell. Similarly, animals ordinarily do not eat poisonous plants. Nevertheless there are times when an animal will eat a plant that it does not recognize as poisonous, either because the poison comes from germs on the plant rather than the plant itself, or because it does not have an offensive smell. This sometimes leads to an animal eating plants that can cause them illness or even death.

Bava Kamma 48a-b

Our Gemara quotes Rava (some say it was Rav Papa) as ruling that in cases where two people interact and both end up injured, the liability of each one will depend on what happens. If both parties had permission to be there or if neither one had permission to be there then hiziku zeh et zeh chayavim, huzku zeh ba-zeh peturim – if they did damage to each other they are both held liable; if they were damaged by one another then neither one is held liable.

The difference between the two cases as presented by the Gemara is not entirely clear. This is particularly true according to Rashi who suggests that the case of hiziku is one where people tripped on each other, and would be responsible for damages done to the other since a person is considered mu’ad le-olam – always responsible for his actions and their ramifications. Thus it is not clear what would be a case of huzku as opposed to hiziku.

The Ra’avad explains that the cases cannot be talking about situations where the two people tripped on each other simultaneously, rather where one person injured the other directly (hizik) or indirectly (huzak). For example, if a person was lying on the ground and a second person stepped on him and injured him, the person who directly caused the injury would be held liable. If the second person had tripped over him and become injured, the person lying on the floor would not be held liable, since his involvement in the injury was indirect. The Rambam appears to distinguish differently, explaining that hizik means a person who intended to perform the act that injured his friend while huzak refers to a situation where the act was done without intent.

The Gemara concludes that these rules only apply because both parties had the right to be where they were. If one of them had the right to be there and the other did not, the one who was not allowed to be there would always be responsible for the damage that was done.

Bava Kamma 49a-b

When a person holds a contract that represents something of value, who owns the piece of paper upon which the contract is written?

That is the point of a question posed by Rav Yeiva Sava to Rav Nachman in reference to ha-machazik shetarotav shel ger – someone who has legal documents of a convert in his possession (should a convert die with no children, since there are no heirs his possessions become hefker – ownerless – and can be claimed by anyone). When presented with this question, Rav Nahman asked (with a tone of incredulity) ve-khi la-tzut al pi tzlohito hu tzarikh?! “What would he use it for? To stop up a bottle?!” In response Rav Yeiva Sava replies la-tzur ve-la-tzur – that people really do have this in mind, as well, when they take possession of a legal document.

In the ancient world, which was, generally speaking, poorer in terms of physical resources than the modern world, any object, no matter how small or insignificant, was used to its fullest extent. The tzlohit – the bottle – discussed here was a utensil, usually made of clay, with a narrow neck and small opening used for storing liquids like wine or oil. Most clay vessels were made with matching covers from the same material that would be used to protect the integrity of whatever was stored inside. Tzlohiyot were an exception, and covers were not always made for them, so when they needed to be closed any available material suitable for that purpose was used.

In this context it is worth noting that the “paper” of those days – which was actually a type of papyrus – was much stronger than what we use today, which is why is could have been used to stop up a bottle and protect its contents. Nevertheless, this was certainly a minor use of the material and its value – even in those days – was minimal.

Bava Kamma 50a-b

Although digging a hole, ditch or cistern in the public thoroughfare ordinarily will make the person who dug responsible for any damage that befalls someone who trips or falls in it, the baraita in our Gemara teaches that if it is given to the public for their use, he will not be held liable.  In fact, this was the practice of Nechunia Hofer Borot, Shihin u’Me’orot, who dug cisterns and handed them over for public use, for which he received the approbation of the Sages. The reason for this ruling is fairly straightforward – if the cistern was dug for the community, he was never the ba’al ha-bor – the owner of the cistern – to be held responsible for it.

According to the Mishnah in Shekalim (5:1) Nechunia Hofer Shichin – whose name literally means “Nechunia the ditch digger” was one of the appointed workers in the Temple, whose official position was to be responsible for water for Jerusalem generally, and specifically for the pilgrims coming to the Temple during the holidays. The Gemara tells that Nechunia was an expert in choosing the correct place to dig wells, thus he was able to fill cisterns not only from the collection of rainwater, but from underground reservoirs, as well.

The Gemara brings a baraita that tells the story of Nechunia Hofer Shichin’s daughter who fell into a cistern (some manuscripts have “the great cistern,” which would be a reference to a particular cistern that was in the Temple precincts).  When the report reached Rabbi Chanina ben Dosa, he reported that all was well, and after a time that she had been saved. When questioned about it, Rabbi Chanina ben Dosa said that throughout the ordeal he was certain that Nechunia Hofer Shichin’s daughter was safe because she would not be punished with the very object that her father devoted his life to.

Bava Kamma 51a-b

Our Mishnah discusses a case of partners in a bor (a hole or ditch). If the first one makes use of it without covering it and then the second one does the same, the second one will bear responsibility for any damage caused by the open pit, since he was the last one to use it.

The Gemara searches for a situation where two people could be considered partners in a bor in the public domain, eventually concluding that the case could be where the two people together pry out the last clod of earth that makes the hole deep enough to cause damage. The Gemara rejects the possibility that two people may have instructed a shaliach – an agent – to dig the pit, because ein shaliach le-davar aveira – no one can appoint a messenger to commit a sinful act.

According to the Gemara in Kiddushin (42b) the underlying principle of ein shaliach le-davar aveira is based on the fact that the messenger’s true obligation is to follow the directions of God, not of another person – divrei ha-rav ve-divrei ha-talmid, divrei me shom’im!

The Talmud Yerushalmi presents a discussion on this point as to whether the concept of shelichut is true is all cases, and certain situations – like this one – are exceptions, or if we would ordinarily assume that a person cannot pass on responsibilities to another, and we need special teachings in order to permit shelichut to work. This discussion impacts on the question of a shaliach le-davar aveira since according to the first approach we need to explain why shelichut will not work regarding a forbidden activity; according to the second approach it is obvious that we will not allow the creation of shelichut to do something forbidden.

Tosafot Ri”d argues that the Gemara does not mean to suggest that we would have thought that the messenger could have freed himself from responsibility for performing a forbidden act with the argument that he was only following orders. It is clear to us that an intelligent person must take responsibility for what he does. The discussion on this matter was solely to clarify whether the person who instructed the messenger should also be held accountable, since he was the one who instigated the action.

Bava Kamma 52a-b

When the Torah warns that someone who digs a bor – a hole in the public domain – will be held responsible for any damage that takes place if an animal falls in, it includes a caveat. This rule is true only if the person did not cover the bor (see Shemot 21:33-34). Our Mishnah rules that if the person did, in fact, cover the bor properly then he will not be held liable for such damages.

The question raised by the Gemara is how could an animal fall into a bor if it was properly covered up? Rabbi Yitzhak bar bar Hanna suggests that it could be talking about a case where the cover became rotten from the inside where it could not be seen, so the person who covered the bor had no way of knowing that the cover would not support the weight of an animal that walked on it.

The approach of most of the commentaries in explaining this case is that the wooden cover was attacked by insects whose entrance holes in the wood are almost imperceptible and the cover may look fine but turn out to be hollow. In his commentary to the Mishnah, Rav Ovadia me-Bartenura suggests that the water and moisture of the pit may lead the wooden cover to become rotten on its bottom side that cannot be seen from the top.

The Gemara also raises questions about what sort of animals must the cover be able to support – camels or oxen? At the time of the Mishnah, local oxen were relatively small with adult weights ranging from 400 – 500 kilograms. Full grown camels were much larger, and they often carried loads of up to 250 kilo – for a gross weight of over 1000 kilo. Thus, the standard cover that would support an ox may not have been strong enough for a camel.

Bava Kamma 53a-b

According to the Mishnah (52a) if the noise from digging frightens an animal into falling into a bor (a pit or hole in the public domain) the person who is responsible for the bor will be held liable for damage to the animal. Sudden, surprising noises can affect people and cause them to lose their balance and fall. This is certainly true of an animal which likely will react to an unexpected noise that emanates from a place that it cannot see, causing it to fall into the bor. While most of the commentaries suggest that the digger is inside the bor and the noise emanates from the hole that the animal fell into, Rabbeinu Chananel says that it can be someone who is doing work in a nearby area, whose actions disturb the animal.

The Gemara questions this ruling, suggesting that the individual who made the noise while digging is at fault, so the person who is responsible for the bor should not be held liable. It should be noted that the Gemara is not suggesting that the person who made the noise should be obligated to pay damages, since he is only involved on the level of grama – he did not come into contact with the animal and is only indirectly involved.

In the Gemara, Rav Shimi bar Ashi identifies this ruling with Rabbi Natan who believes that in the event that restitution cannot be made from another source, the individual who is responsible for the bor will always be held liable, given his negligence in placing this stumbling block in the public thoroughfare.

The source for Rabbi Natan is a baraita that discusses a case where an ox pushed another ox into a bor, where the Tanna Kamma believes that only the ox will have to pay – according to most commentaries he will pay only half damages, since from his perspective he had a partner in the damage – and the owner of the bor will be free of any payment since the ox did not “fall;” it was pushed. Rabbi Natan rules that the owner of the bor must pay his half, since he was irresponsible in creating the bor and not covering it properly.

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.