Masechet Bava Kamma 5a-11b

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31 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 5a-b

As we have seen, the Mishnah (2a) lists four basic types of nezek (damage) for which a person will be required to pay restitution. The Gemara on daf (page) 4b quotes baraitot that expand the number of types of nezek by including examples that fit into the broader categories presented by the Mishnah. Rabbi Oshiya enumerates 13 types of avot nezikin (including, for example, people who borrow objects or are given things to watch and then do not return them or allow them to get lost or stolen); Rabbi Chiya finds 24 avot nezikin (including, for example, robbers and thieves).

Another category included by Rabbi Chiya is examples of hezek she-eno nikkar – damage that was done that cannot be seen. The examples are cases where someone made someone else’s tithes tameh (ritually defiled) or mixes tithes in with regular produce, or libates his wine to an idol. In all of these situations, although there is no apparent change in the object itself, it no longer can be used and therefore has no value. In such cases, if the person did the damage on purpose he will be held responsible, but if it was accidental he will not have to pay.

In fact, the Gemara in Gittin (daf 53) brings a disagreement as to whether hezek she-eno nikkar is considered damage. Chizkiya believes that hezek she-eno nikkar shemah hezek – that invisible damage is considered to be damage and the person who does such damage should always be held responsible. It is the sages who freed the person doing the damage by accident from paying, since they wanted to encourage him to admit what he did. Rabbi Yochanan disagrees, arguing that hezek she-eno nikkar lo shemei hezek – invisible damage really cannot be considered to be damage, yet the sages obligated someone who did the damage on purpose to pay in order to keep people from doing damage to one another.

Reacting to Rabbi Yochanan’s position, the Chatam Sofer asks how the Torah could possibly ignore significant financial damage done by one person to another. While admitting that the cases of damages discussed in the Torah are always situations of physical damage, he suggests that cases like these were left by the Torah to the Sages for them to rule according to societal needs. In the Shitah Mekubetzet the point is made that it is clearly forbidden to do hezek she-eno nikkar for reasons of v’ahavtah le-rei’achah kamochah (Vayikra 19:18) or ve-chai achicah imach (Vayikra 25:36); the discussion in our Gemara deals solely with monetary restitution and the possibility that cases where there is no physical damage with require no compensation.


Bava Kamma 6a-b

The Mishnah (2a) taught that a person who did damage will be obligated to pay restitution with meitav – from the best land.

There were three different types of land of different qualities that were recognized in the time of the Mishnah, and different monetary obligations had to be paid with different quality land –

According to the Gemara‘s conclusion, the actual value of the land in each of the above cases will be the same, nevertheless idit – the best land – is preferred by all, even though the size of the land will be larger if payment was made in ziburit. The preference for idit stems from the fact that its quality will make it easier to tend and its harvest will be larger even though the cost and effort put into the land is smaller. This reality leads to the fact that there will be more potential buyers and it will be easier to sell, even though the ziburit has the same value.

These distinctions are only made with regard to the quality of land. If payment is to be made with moveable objects then we consider them meitav – the best – no matter what they are, so long as they are truly worth the amount of the debt. This is true even though the ideal is to pay with money, particularly in the case of a loan where the basic obligation is to return the money that was borrowed.


Bava Kamma 7a-b

As we learned on yesterday’s daf (page), nizakin – debts that stem from damage done to someone – will be paid in idit, the best land. This halacha is based on the passage in Sefer Shemot (22:4) where the Torah says regarding someone who does damage to another meitav sadehu u’meitav karmo yeshalem – that he will pay from his best field and his best vineyard. At first glance this appears to be a requirement for payment. Based on this, Abayye asks Rava how this works with a teaching that appears in a baraita that understands the passage (Shemot 21:34) requiring someone who dug a pit in the public thoroughfare to make restitution by means of kesef yashiv be-be’alav – “money he will return to the owner” – to mean that anything with value can be used to pay the debt, even bran.

Rava responds that the different pesukim (verses) refer to two different cases. When a person willingly pays, he can use any means of payment, as long as he pays the value of his debt. If a person must be forced to pay, then it is his idit – his best land – that will be taken.

Rashi explains the case where the person who did the damage is forced to pay as being a situation where the individual does not willingly pay restitution and he is brought before the Jewish court. The Shitah Mekubetzet argues that taking someone to court in order to ascertain his responsibility to pay is not considered, in itself, a “lack of willingness,” since we will always need to turn to the courts in order to clarify the level of responsibility and the amount that will need to be paid. The Shitah argues that we are talking about a case where the person who did the damage has already been found guilty, yet refuses to pay. When we come to collect forcibly, we will confiscate the best land. The Sukkat David points out that when a person pays his obligation readily, it is “the best” method of paying. Should he refuse to pay, the courts will try to make sure that he gets something that he will be able to sell easily – and idit is the best way to accomplish that.


Bava Kamma 8a-b

Jewish law recognizes that formal loans that are recorded in signed contracts create liens of the property of the borrower that effectively guarantee payment of the loan. Therefore, if a borrower cannot pay back his loan, the lender has the right to take possession of real estate that was owned by the borrower at the time of the loan – even if it has subsequently been sold to a third party. Clearly the borrower will have to make amends with the purchaser, given that the sale has effectively been nullified.

In our Gemara, Abayye teaches that in a case where “Reuven” sold property to “Shimon” – and guaranteed the sale – and Reuven’s creditor came and collected the property from Shimon as payment of Reuven’s outstanding loan, it would be appropriate for Reuven to enter negotiations with the creditor. The creditor cannot claim that his interaction with Reuven has ended, and it is now up to Reuven to compensate Shimon, but Reuven has no right to engage him further. The Gemara concludes that this is even true if Reuven did not guarantee the sale to Shimon, because Reuven can argue that he does not want Shimon to have complaints against him.

The question raised by the rishonim is why this ruling is significant. What difference does it make whether it is Reuven or Shimon who argues with the creditor?

Rashi suggests that, given his previous interactions with the creditor, Reuven has a larger array of arguments that he can make. He can claim, for example, that the loan was already paid, or that there are other outstanding loans that are owed to him that would cancel the debt that is owed. Other suggestions are that Reuven can argue that there is still time before the loan comes due, or that the contract that was brought to court was forged. The Rosh brings an explanation that the Ramban says is the simplest approach to this story. According to the Rosh there is no real difference between Reuven and Shimon – either one could make the same arguments. Nevertheless, we know that some people are more talented at presenting arguments in court. If Reuven is particularly adept at presenting his case, he can take the initiative to do so, and the creditor cannot insist that only Shimon – a less talented adversary – has the right to argue in court.


Bava Kamma 9a-b

As we have seen before, the Mishnah (2a) taught that a person who did damage will be obligated to pay restitution with meitav – from the best land. Rav Huna teaches that the individual who pays has a choice – either money or meitav. In response, Rav Nachman asks how Rav Huna can square his ruling with the baraita that understands the passage (Shemot 21:34) requiring someone who dug a pit in the public thoroughfare to make restitution by means of kesef yashiv be-be’alav – “money he will return to the owner” – to mean that anything with value can be used to pay the debt, even bran? Rav Huna responds that the baraita only permits payment in shaveh kesef (something of value that is not actual money) in cases where he does not have cash. Rather than saying that he is obligated to sell the object in order to raise cash with which to pay his debt, the baraita teaches that the object can be used to pay the debt directly.

According to Rabbeinu Tam, there are a number of different rules and regulations that apply –


Bava Kamma 10a-b

The Mishnah (9b) discusses under what circumstances a man will be held responsible for damage that he causes. One of the rulings is that a person who is responsible for only part of an obstacle that causes damage (e.g. someone who completes a hole in the public thoroughfare that otherwise would not have caused significant damage) will nevertheless be held liable for the entire damage that took place.

In discussing this case, the Gemara brings a baraita that presents the following situation – five people were sitting on a bench without causing it any damage, but when an additional person joined them, the bench broke. According to the baraita, the last person is seen as having caused the damage, and he will be held liable to pay restitution. Rav Papa explains that this ruling will be true only in situations where it is someone like Papa bar Aba – who was known as a particularly heavy person – who will be seen as being responsible for the damage.

Many of the commentaries ask why the Gemara needs to introduce a heavy set person into this story – shouldn’t anyone whose weight ultimately breaks the bench be held responsible?

The Rashbam explains that a bench is made available for use under normal circumstances. Since an average bench is not made for someone like Papa bar Aba, by sitting on it he is misusing the bench and will be held responsible for its having broken.

The Maharshal in his Yam shel Shlomo suggests that ordinarily a bench does not break in an instant – there are first creaking noises and other indications that it is about to break, and the people sitting on it usually have the opportunity to get off of it in time to keep it from breaking. Once Papa bar Aba sat down, his weight broke the bench immediately, which is why he was held responsible.

According to the Sefer ha-Eshkol the Gemara was simply bringing a case where is would be clear to everyone that it was the additional weight of the last person that made the bench break. The Meiri suggests that Papa bar Aba was invoked mainly to draw a vivid picture of the incident.


Bava Kamma 11a-b

When someone gives an object to his friend to watch for him, there are two different types of shemirah (guarding) with different levels of responsibility.

A shomer chinam agrees to watch the object with receiving any payment. Although he is responsible for the object and will have to pay for it if he does not take care of it properly, if it is lost or stolen he can simply take an oath that he watched the object in a reasonable fashion and he is free of any further obligation.

A shomer sachar gets paid for his efforts. If the object is lost or stolen he will have to pay for it, although if an ones – something beyond his control – takes place, he will not be held responsible.

Can someone charged with watching an object pass it on to a third party who agrees to watch it?

According to Ulla in the name of Rabbi Elazar, shomer she-masar le-shomer – when one person who was watching an object passes it on to another person – he will not be responsible for anything beyond his original obligation. Since he gave it to another responsible individual, he has not done anything wrong. According to this opinion, this is true not only in a case where a shomer chinam raised the level of shemirah by giving it to a shomer sachar, but also if a shomer sachar lowered the level of shemirah by transferring it to a shomer chinam.

Rava disagrees, ruling that a shomer she-masar le-shomer will be responsible for everything that takes place – even if a shomer chinam raised the level of the shemirah by transferring it to a shomer sachar. This is because the owner can say to the guard – “I trust you when you take an oath; I do not trust the man who you gave it to.”

Tosafot point out that when this discussion appears in Masechet Bava Metzia (36b), an additional reason is offered for Rava’s ruling. There the Gemara says that the owner can simply say “I didn’t want my object in someone else’s hands.” These two reasons can lead to different conclusions in certain cases – e.g. if the second man is known to be more reliable than the first or if there are witnesses who tell us what happened, so there is no need for anyone to take an oath.


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.