Masechet Bava Kamma 61a-67b

BY
hero image
Burning Building
26 Feb 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 61a-b

Were there municipal building codes in the time of the Mishnah?

In the context of discussions about damage done by fire (aish), our Gemara brings a Mishnah from Bava Batra (20b) that teaches that a person cannot place a tanur – an oven – in his house unless there are at least four tefachim (cubits) of space above it, lest the ceiling catch on fire and it would cause damage to others; and if he wants to place it on an upper floor, he can only do so if there is a ma’azivah – if there is mud, clay and plaster of at least three tefachim between floors. For a kirah – a smaller type of oven – just one tefach would suffice. Even so, if any damage is done, the owner of the oven will have to pay.

According to Rashi, based on this Mishnah, members of the community have the right and the responsibility to stop someone from bringing such an oven into the house, unless he takes the proper precautions, since there is a concern for community welfare to ensure that fires will not start. Tosafot suggest that the Mishnah is simply offering neighbors who live above or below the planned oven the right to complain and stop him from introducing it, but overall, even Tosafot accept Rashi’s ruling on the matter.

The tanur that was used in people’s homes at the time of the Mishnah was a large, earthen utensil that looked like a very large jug, and was used primarily for baking bread. In order to bake the bread properly, the heat had to be brought to a very high temperature, requiring a large fire (see this article for a description of bread baking in such oven). Kirayim were also made of clay, but they were much smaller and had two holes upon which pots or pans could be placed, which cooked over a much smaller fire.


Bava Kamma 62a-b

The seventh perek of Masechet Bava Kamma – Perek Merubah – focuses on kenasot – the punishments that a robber or thief will have to pay over and above returning the stolen object or its value. According to the Torah in Parshat Mishpatim (Shemot chapters 21-22) someone who steals an animal or an object will pay back twice the value of the object he stole (see Shemot 22: 6-8). If he stole an ox (shor) or a sheep (seh) and killed them or sold them he will pay back five times the value of an ox and four times the value of a sheep (see Shemot 21:37).

The Mishnah teaches that the payment of four or five times the amount stolen applies only to an ox or a sheep, while the double payment applies to any object that is stolen.
Our Gemara quotes a baraita that teaches that there are certain exceptions to this rule. For example, if someone steals land, there is no requirement to pay over and above returning the land. This rule seems unnecessary, given the general principle of Jewish law that karka ena nigzelet – land cannot be stolen. Tosafot explain that there are cases that are considered stealing in this context, e.g. adding part of a neighbor’s field to your own or stealing something that is growing, like grape vines.

Rabbeinu Yehonatan explains the placement of these laws by pointing out that the Mishnah has completed its discussion of damage done by a person’s property – a goring ox, or an animal that did damage when it walked or ate, as well as fire and damage done by leaving an open pit in the public domain (shor, esh and bor). Now the Mishnah turns its attention to damage done by one person to another.


Bava Kamma 63a-b

Although many of the laws of nezikin (damages) are presented in the Torah, there are others that do not appear in the Torah at all and must be derived by the sages using methods of hermeneutics like the 13 rules of interpretation presented by Rabbi Yishmael. One method is that of a kal va-chomer, the first principle taught by Rabbi Yishmael. The method of kal va-chomer – usually translated as an A fortiori argument – allows us to learn one law from another by arguing that if the less stringent law included a stringency, we can conclude that the stricter law includes that stringency, as well.

Although the method of kal va-homer is considered to be a powerful one, it is limited in cases where there is an attempt to derive more than the original law included, as the Gemara tries to do on our daf by suggesting that we can learn that an ordinary thief is punished by paying back double by means of a kal va-homer from the case of a shomer (a guard) who claimed that the object he was watching was stolen from him.  Limiting the conclusions that can be reached by means of a kal va-homer in this manner is called dayyo – “enough.” It is enough to learn a parallel halacha from a kal va-homer, but not more than the original law itself.

The Gemara (earlier in Bava Kamma, on daf 25) explained that the concept of kal va-chomer – and dayyo – stem from the story of Miriam who spoke inappropriately about her brother Moshe (see Bamidbar 12). As punishment, she was struck with tzara’at (biblical leprosy), and was forced to leave the encampment for seven days. The Torah explains that had her father banished her, surely she would have been embarrassed for seven days – now that she was banished by God, she will have to be removed for that length of time. Although logically banishment because of God’s anger should have lasted twice as long, dayyo limits the punishment to the same amount of time that she would have been embarrassed by her father.


Bava Kamma 64a-b

As we have seen, this perek focuses on kenas – the penalties of two, four or five times the value of the stolen object that is paid by a thief over and above returning the object or its value to his victim. There is an exception to this rule. If the thief steps forward and admits his guilt, then he will only need to return the object (or pay back its value); he will not have to pay the penalty.

One explanation for this law is that the obligation to pay the kenas is not an inherent obligation, rather it is one that is imposed on him by the Jewish court. Once the thief admits his guilt, the court is never called upon to rule on the case, so there is no opportunity for them to impose the penalty.

While this ruling is accepted by all, there is a difference of opinion whether this will be true even if other witnesses testify against him. Rav believes that even if witnesses are found who can testify about this situation, once the thief has admitted his guilt he is free from any obligations to pay the penalty. Others disagree, arguing that his admission is not sufficient to free him, since there were others who testified against him.

The explanation for this disagreement flows from what was presented above. Once witnesses come forward, one could argue that the court must reopen the case to clarify what occurred, and the ultimate ruling is based on their testimony, rather than on the thief’s admission. Thus the court will impose the kenas together with its decision. Rav argues that the penalty is ordinarily imposed because of the decision of the court that is based on the testimony of witnesses – based on his interpretation of the passage in Shemot 22:3) – and if the thief has already admitted his guilt, he is not obligated to pay the penalty.


Bava Kamma 65a-b

As we have learned, according to the Torah in Parshat Mishpatim (Shemot chapters 21-22) someone who steals an animal or an object will pay back twice the value of the object he stole (kefel – see Shemot 22: 6-8). If he stole a shor (a bull) or a seh (a sheep) and killed them or sold them, he will pay back five times the value of a bull and four times the value of a sheep (arba ve’chamishah – see Shemot 21:37).

What if the status of the animal changes?

On our daf Rabbi El’a teaches that if someone stole a lamb and it grew to become a ram, or a calf that grew to become a bull, the thief would be obligated to repay the value of the lamb or the calf, as well as the penalty of kefel. If, however, he killed or sold the animal after its status had changed, he would not be obligated to pay arba ve’chamishah since he took possession of the animal when it became a ram or a bull. From the perspective of Jewish law, since we now see the animal as having become his property, although there is still a monetary obligation to repay the theft, he has killed or sold his own animal.

In the ensuing discussion in the Gemara, an objection is raised as to whether we should really consider an animal’s physical development as a change in its status. Rabbi Zeira argues that simply the change of terminology should be enough to change the status – and the ownership – of the animal. To this suggestion Rava responds that names like shor are not only the name of the mature animal, but are also the general term by which the animal is referred.

Tosafot point out that with regard to certain laws, the terminology is significant. Specifically with regard to sacrifices, animals must be a certain age, and the term “lamb” means something different than the term “ram.” Nevertheless, it is clear that this is limited to the laws of korbanot where those requirements are clearly spelled out.


Bava Kamma 66a-b

Rabbah taught that when something is stolen and then it is changed in such a manner that it will not revert to its original state, the person who stole it takes possession of it and he no longer is obligated to return the stolen object, rather he will have to pay its value (at the time it was stolen) to the original owner. While this is true for an object that undergoes a shinui ma’aseh – a change in its physical form – will it also be true when there is only a shinui ha-shem – only its name changes?

Rava says that this was a question that both Rabbah and Rav Yosef could not answer until Rav Yosef was appointed to head the academy, and he taught that a change in name is significant, just as a change in the actual object is significant. Just as we recognize that wood changes to be a utensil, similarly we recognize that a piece of leather can become a chair covering (even though there was no physical change in the object).

Rav Yosef’s appointment to head the yeshiva in Pumbedita is described in Masechet Horayot and Masechet Brachot. When Rav Yehudah passed away, the two obvious candidates to replace him were Rabbah and Rav Yosef. Rabbah, who was the younger of the two, was known for his sharp, insightful analysis, while Rav Yosef was known for his wide ranging knowledge. In an attempt to decide who should be chosen, the following question was sent to the Sages of the Land of Israel: “which is better? Sinai (i.e. knowledge) or oker harim (literally ‘one who uproots mountains,’ i.e. sharp insight)?”

Although the response from Israel was that “Sinai” was more essential, still Rav Yosef declined the position, and for the 22 years that Rabbah was in the position of Rosh Yeshiva, Rav Yosef declined all honors. Only after Rabbah’s passing did Rav Yosef accept the position.


Bava Kamma 67a-b

The recent dapim (pages) of our Gemara have been discussing how changes in the name or status of a given object may affect the ownership of that object. Our Gemara raises the question of yei’ush – when an owner despairs of ever receiving an object that was lost or stolen.

Ulla teaches that yei’ush by itself does not create a change of ownership, quoting the passage (Malachi 1:13) in which the prophet pointedly states that God rejects the offering of a stolen sacrifice, just as He rejects offerings that are physically blemished. Ulla concludes that just as a sacrifice with a physical blemish cannot be fixed in any way, similarly a stolen sacrifice cannot be fixed, indicating that even after the owner’s yei’ush, the animal will still not become the property of the thief.

The rishonim point to Ulla’s own statement earlier in Masechet Bava Kamma that yei’ush does allow for a change of ownership. Several different answers are offered –

Tosafot suggest that Ulla’s statement on our page refers specifically to yei’ush on its own, while the other ruling is in a case where yei’ush is accompanied by a change in status.
Rabbeinu Chananel argues that the statement on our page is limited to cases where the thief wants to fulfill a mitzvah with the object or bring a sacrifice. In those cases the operating principle that keeps the transfer of ownership from taking place is that it would allow for a mitzvah ha-ba’ah ba-aveirah – a commandment that is fulfilled by means of a sinful act.

The commentaries discuss the concept of mitzvah ha-ba’ah ba-aveirah at great length. The general conclusion is that not every sinful act connected to a commandment negates the mitzvah. When the aveira is what allows the mitzvah to be performed – as in the case where the animal is to be brought as a sacrifice – then it cannot be used for performance of a mitzvah.


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.