Introduction to Bava Kamma by Gitta Jaroslawicz-Neufeld

לזכות לרפואה שלמה לדוד בו איידל נ“י וכל הנפצעים בתוך שאר חולי ישראל, לשיחרור החטופים ולהצלחת חיילנו בכל מקום שהם.

וּפְדוּיֵי ה‘ יְשֻׁבוּן וּבָאוּ צִיּוֹן בְּרִנָּה וְשִׂמְחַת עוֹלָם עַל־רֹאשָׁם שָׂשׂוֹן וְשִׂמְחָה יַשִּׂיגוּ וְנָסוּ יָגוֹן וַאֲנָחָה׃

Seder Nezikin

Seder Nezikin (literally, “damages”) is the fourth of the six sedarim (orders) of the Mishna, and, as its name implies, deals primarily with laws of torts and damages – in other words, with civil law and property rights.

There are ten masechtot in the seder:

Bava Kamma (the first gate) discusses damages, personal injury, theft and robbery.

Bava Metzia (the middle gate) deals with financial litigation and claims, lost and found issues, laws of guarding an object, sales, loans and the prohibition of interest, hiring and rentals.

Bava Batra (the last gate) discusses property rights, transactional law and laws of inheritance, as well as legal documents.

Sanhedrin discusses the Jewish judiciary system. Included are its courts, jurisdictions and procedures, the qualifications of judges and witnesses, and capital offenses.

Makkot (lashes) deals with more laws of testimony, the punishment of exile and which offenses render one liable for malkut (lashes) or karet (death by the hand of Heaven).

Shevuot (oaths) discusses different types of oaths.

Eduyot (testimonies) only appears as a Mishna, and lists traditions that were testified to by reliable authorities In front of the Sanhedrin.

Avoda Zara (idolatry) discusses the multiple issues relating to idolatry, as well as association with idol-worshippers, their food and the idols and their accoutrements.

Avot (fathers) also only appears as a Mishna, and traces the transmission of tradition from Moshe to the time of the Mishna. It also includes ethical teachings, which while appropriate for all, are particularly important in the judicial process.

Horayot (decisions) discusses sacrifices for inadvertent sins. While this should make it part of Seder Kodshim, which deals with sacrifices, it is included here because it also discusses the consequences of erroneous rulings by the Sanhedrin.

The first three masechtot, Bava Kamma, Bava Metzia and Bava Batra, comprise a subgroup of the seder which is also known as Nezikin. Apparently these were subdivided because of the great amount of material which they covered (similar to Shabbat and Eiruvin being separated into two masechtot).

Bava Kamma

As noted above, this masechet deals with damages, personal injury, and the consequences of theft and robbery. A person is liable by Torah law for damage he or she does personally and for damage done by his or her property to others or their property. A mazik (“damager”) mentioned specifically in the Torah is known as an av (“father”), while a mazik that is essentially the same as an av but not specifically named in the text is known as a tolada (“descendent”). There is no practical difference between the two categories in terms of Halacha.

There are four main categories of damage:

• The person

• His animal

• His pit

• His fire

The Person

There are multiple passages in the Torah which deal with damage inflicted by a person:

Shemot 21:18-19:

וְכִי־יְרִיבֻן אֲנָשִׁים וְהִכָּה־אִישׁ אֶת־רֵעֵהוּ בְּאֶבֶן אוֹ בְאֶגְרֹף וְלֹא יָמוּת וְנָפַל לְמִשְׁכָּב׃ אִם־יָקוּם וְהִתְהַלֵּךְ בַּחוּץ עַל־מִשְׁעַנְתּוֹ וְנִקָּה הַמַּכֶּה רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא׃ {ס}        

And if men strive together, and one smite another with a stone, or with his fist, and he die not, but keeps his bed: if he rise again, and walk abroad upon his staff, then shall he that struck him be acquitted: only he shall pay for the loss of his time, and shall cause him to be thoroughly healed.

Shemot 21:22-25:

וְכִי־יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים׃ וְאִם־אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ׃ עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל׃ כְּוִיָּה תַּחַת כְּוִיָּה פֶּצַע תַּחַת פָּצַע חַבּוּרָה תַּחַת חַבּוּרָה׃ {ס} 

If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no further harm ensue: he shall be surely punished, according as the woman’s husband will lay upon him; and he shall pay as the judges determine. But if any harm ensue, then thou shalt give life for life. Eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, bruise for bruise.

Vayikra 24:18-21:

וְאִישׁ כִּי יַכֶּה כׇּל־נֶפֶשׁ אָדָם מוֹת יוּמָת׃ וּמַכֵּה נֶפֶשׁ־בְּהֵמָה יְשַׁלְּמֶנָּה נֶפֶשׁ תַּחַת נָפֶשׁ׃ וְאִישׁ כִּי־יִתֵּן מוּם בַּעֲמִיתוֹ כַּאֲשֶׁר עָשָׂה כֵּן יֵעָשֶׂה לּוֹ׃ שֶׁבֶר תַּחַת שֶׁבֶר עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן כַּאֲשֶׁר יִתֵּן מוּם בָּאָדָם כֵּן יִנָּתֶן בּוֹ׃ וּמַכֵּה בְהֵמָה יְשַׁלְּמֶנָּה וּמַכֵּה אָדָם יוּמָת׃

And he that kills a beast shall make it good; beast for beast. And if a man maim his neighbor; as he has done, so shall it be done to him; breach for breach, eye for eye, tooth for tooth: as he has maimed a man, so shall it be done to him. And he that kills a beast, he shall restore it: and he that kills a man, he shall be put to death.

Based on these verses, we derive that when one causes a personal injury, the victim is paid for five things:

1. Nezek (irreversible damage to the body) – calculated as the difference in his value on the slave market before and after the injury

2. Tzaar (pain) – the physical pain the injury caused

3. Ripuy (healing) – medical costs to the victim

4. Shevet (loss of wages) – missed work and the wages that the victim lost while healing (calculated as work he could have done even in his damaged state)

5. Boshet (humiliation) – the embarrassment the victim suffered during the injury

These five types of compensation are only paid when a person injures another person. If his property caused the damage, or if he damaged someone else’s animal, only nezek is paid. Additionally, the court assesses each case separately to determine the applicability of each type of fine. Generally, if the damage was unintentional or due to neglect, only nezek is paid.

Animal (Shor – literally, “ox”)

The texts which deal with the damage caused by one’s animal are:

Shemot 22:4:

כִּי יַבְעֶר־אִישׁ שָׂדֶה אוֹ־כֶרֶם וְשִׁלַּח אֶת־בְּעִירֹה וּבִעֵר בִּשְׂדֵה אַחֵר מֵיטַב שָׂדֵהוּ וּמֵיטַב כַּרְמוֹ יְשַׁלֵּם׃ {ס} 

If a man shall cause a field or vineyard to be eaten, and shall put in his beast, and shall feed in another man’s field; of the best of his field, and of the best of his vineyard, shall he make restitution

Shemot 21:35-36:

וְכִי־יִגֹּף שׁוֹר־אִישׁ אֶת־שׁוֹר רֵעֵהוּ וָמֵת וּמָכְרוּ אֶת־הַשּׁוֹר הַחַי וְחָצוּ אֶת־כַּסְפּוֹ וְגַם אֶת־הַמֵּת יֶחֱצוּן׃ אוֹ נוֹדַע כִּי שׁוֹר נַגָּח הוּא מִתְּמוֹל שִׁלְשֹׁם וְלֹא יִשְׁמְרֶנּוּ בְּעָלָיו שַׁלֵּם יְשַׁלֵּם שׁוֹר תַּחַת הַשּׁוֹר וְהַמֵּת יִהְיֶה־לּוֹ׃ {ס}  

And if one man’s ox hurt another’s, that he die; then they shall sell the live ox, and divide the money of it; and the dead ox also they shall divide. Or if it be known that the ox has long been in the habit of goring, and his owner has not kept him in; he shall surely pay ox for ox; and the dead shall be his own.

A person is liable for the damage done by any of his animals; the Torah refers to the “ox” because that is the typical cause of damage. The damage caused by an animal has three subcategories:

• Shein (“tooth”) – what the animal damages in the course of normal eating. Full damages are paid for this type of loss when it is incurred on private property (chatzar hanizok –the courtyard of the one who was harmed). If the damage occurred in the public domain (reshut harabim), damages are not paid, but the owner must be reimbursed for the benefit derived from the food. The criteria for a damage to be considered shein are:

  • The behavior is normal for that type of animal

  • The animal engaged in that behavior for self-gratification (for example, rubbing its body against something to relive an itch)

• Regel (‘foot”) – the damage caused by an animal in the course of walking. As with shein, full damages are paid for this type of loss when it is incurred on private property (chatzar hanizok –the courtyard of the one who was harmed). If the damage occurred in the public domain (reshut harabim), damages are not paid. However, the damaged party is not reimbursed for “benefit,” since neither the owner nor his animal derive benefit from this type of damage. The criteria for regel are:

  • The behavior is normal for that type of animal

  • The animal did not intend to inflict damage (for example, brushing by an object when passing it)

• Keren (“horn”) – the damage intentionally caused by an animal by goring. Unlike the other two types of damage, damages are paid regardless of where the damage occurred. However, the liability is limited to half damage (actually a matter of dispute between Rabbi Tarfon, who holds that half-damages are only if the event occurred in the public domain, and the Sages, who hold that only half is paid in every case. The liability of the animal’s owner is limited to the value of the animal itself; this is known as migufo (“from its body”). The characteristics of keren are:

  • The behavior is abnormal for that type of animal

  • The animal intended to inflict damage (for example, kicking a person to avoid being roped)

These keren rules apply when the animal is considered tam (“innocent”), i.e., it is not a habitually aggressive creature. However, if the animal has done the same act three times (and its owner was warned about each event), it is considered a muad (“warned”), and the owner is “put on notice.” Should the animal cause damage again, the owner must use all of his assets to pay the full cost of that damage.

Pit (Bor)

Shemot 21:33-34:

וְכִי־יִפְתַּח אִישׁ בּוֹר אוֹ כִּי־יִכְרֶה אִישׁ בֹּר וְלֹא יְכַסֶּנּוּ וְנָפַל־שָׁמָּה שּׁוֹר אוֹ חֲמוֹר׃ בַּעַל הַבּוֹר יְשַׁלֵּם כֶּסֶף יָשִׁיב לִבְעָלָיו וְהַמֵּת יִהְיֶה־לּוֹ׃ {ס} 

And if a man shall open a pit, or if a man shall dig a pit, and not cover it, and an ox or an ass fall into it; the owner of the pit shall make it good, and give money to the owner of them; and the dead beast shall be his.

A person may not create a public hazard. If he does, he is liable for the damage incurred by people or animals. If an animal is injured or is killed, the owner of the pit must pay for the animal, but does not pay for anything the animal was carrying. If a person falls in and is injured, the owner pays; he is not liable for bor if the person dies. The essential characteristics of bor are:

• It is an immediate danger

• It is stationary (meaning that the injured party had to get to it – for example, a large stone on a path)

Fire (Esh)

Shemot 22:5:

כִּי־תֵצֵא אֵשׁ וּמָצְאָה קֹצִים וְנֶאֱכַל גָּדִישׁ אוֹ הַקָּמָה אוֹ הַשָּׂדֶה שַׁלֵּם יְשַׁלֵּם הַמַּבְעִר אֶת־הַבְּעֵרָה׃ {ס} 

If fire break out, and catch in thorns, so that the sheaves, or the standing corn, or the field, be consumed; he that kindled the fire shall surely make restitution.

If a person sets or even just owns a fire, he is liable for the damage caused if he fails to ensure that the fire does not spread. The essential characteristic of this type of hazard is:

• It tends to travel to what is destroyed through natural forces (such as wind). For example, if a stone is left at the edge of the roof and is blown down by normal winds.

The Gemara on 22a-23a engages in an extensive discussion of the nature of this type of hazard – is it the owner’s property (like an animal) or is it his “arrow”- i.e., his own force.

It should be noted that there are multiple baraitot which compile lists of other types of damagers, which can be found on 4b-5a.

Content of the Masechet

1	2a-17a	אַרְבָּעָה אָבוֹת	Essential characteristics of each of the four types of damagers The liability for each category
2	17a-27a	כיצד רגל	Damage caused by animals: shen, regel and keren
3	27a-36a	המניח	Damage caused by bor Cases when damage is caused by two parties to each other Cases of uncertainty as to who caused the damage or who was damaged
4	36a-46a	שור שנגח ד‘ וה’	The ox that gores – tam and muad If the ox kills a person Restitution payments
5	46a-55a	שור שנגח את הפרה	The ox that gores More discussion of bor
6	55b-62b	הכונס	Shen Regel Fire and its subclassifications
7	62b-83a	מרובה	Obligations of a thief (double penalty, four or five times payments) Ordinances that were enacted in the Land of Israel and Jerusalem
8	83b-93a	החובל	One who causes bodily injury to another The five payments (nezek, tzaar, ripuy, shevet and boshet)
9	93b-111a	הגוזל עצים	The obligation to return stolen property The obligation to repay the theft When something is stolen from a convert (gezel hager)
10	111a-119b	הגוזל בתרא	Laws of theft When is an act considered theft Restitution