Bava Kamma

Mishna

The Mishnah of Bava Kamma addresses two categories of damages: those caused by agents in their normal condition and those caused by agents in an abnormal condition. An example of the first is an ox treading on or eating things in its path; an example of the second is a goring ox, since oxen do not normally gore. Mishnah 1:1 lists four primary agents of damage, called 'avot nezikin' (fathers of damages): the Ox (shor), the Pit (bor), Mav'eh (which may refer to damages caused by man or by an animal's feeding), and Burning (hev'er).

These four agents share the characteristics that they usually cause damage, the owner must prevent it, and if he fails, he pays full compensation with the best of his property. Before detailing these four, the Mishnah discusses the second class of damages, where the key distinction is between a harmless animal (tam) and a warned one (mu'ad). For a tam, the owner pays half the damage, unless that half exceeds the animal's full value; for a mu'ad, full compensation is required regardless of the animal's value.

The law of mu'ad applies to the four normal-condition agents. Mishnah 1:4 adds man and owned wild beasts (wolf, lion, bear, leopard, and serpent) to the list. Man is always fully responsible (mu'ad), whether the damage is intentional or unintentional, awake or asleep, as illustrated in chapter 3. The remaining part of chapter 3, chapter 4, and part of chapter 5 (1–4) contain regulations concerning compensation for damage by a goring ox.

For example, chapter 4 asserts that injuries one ox inflicts upon another are not assessed on equal terms depending on whether the owner of the attacking or attacked bull is a Jew or a gentile. Damage by pit is discussed in the second part of chapter 5, and chapter 6 covers grazing (1–3) and burning (4–6). A noteworthy law: if a camel laden with flax passes through a street, and the flax catches fire from a candle inside a shop so that the whole shop is set on fire, the owner of the camel is held responsible; if the candle is outside the shop, the shop owner is responsible, except in the case of Hanukkah lights, per Rabbi Yehuda's opinion.

Damage caused by criminal acts

Damage caused by criminal acts includes theft (chapter 7), violence (chapter 8), and robbery (chapters 9–10). For theft, if a man steals an ox or a lamb and slaughters or sells it, he pays five cattle for the ox and four sheep for the lamb. For violence, compensation includes five items: permanent loss (nezek), loss of time (shevet), pain (tza'ar), cost of cure (rippuy), and insult (boshet). The scale for insult depends on the injured man's station in life, though Rabbi Akiva opposed this and desired one measure for all.

The offender must also beg the injured man's pardon. For robbery, restitution pays full value plus a fine of one-fifth. If the stolen things have changed, payment is based on value at the time of robbery. The last chapter concludes with a warning not to buy things suspected to be stolen.

With the exception of chapter 7:7 (on restrictions regarding rearing cattle or poultry in the Land of Israel), there are no halakhic or aggadic digressions in this tractate.

Jerusalem and Babylonian Talmuds

Two versions of Bava Kamma exist: one in the Jerusalem Talmud and one in the Babylonian Talmud. Among the principles in the Gemara, Symmachus ben Joseph holds that property of doubtful ownership is divided between the claimants without requiring an oath, whereas the sages (hakhamim) maintain that the claimant must prove his claim. A person attacked on his own property may act without court delay if great loss would result. When full value is paid, it is considered compensation (mamona); when half or a fixed amount is paid, it is a fine (kenasa).

Babylonian judges could not impose fines; such cases required qualified judges in Judea. An incident illustrates this: a man struck another with a spade over a water-rights dispute. Rav Nachman ruled that no fine could be imposed in Babylonia, but the striker could have hit the other repeatedly without penalty because delay would cause great loss. Two codes are noted: the legal code (dinei adam) and the moral code (dinei shamayim), where the former may absolve an obligation that the latter does not.

The Babylonian Talmud comments that the four avot nezikin actually encompass at least 26 heads of damages. Noteworthy aggadic elements include a story of a hasid (pious man) who noticed a man throwing stones and rubbish from his own garden into the public thoroughfare. The hasid rebuked him, saying, 'Why do you throw these things from a place that is not yours into a place that is yours?'