In this lesson, we begin Tractate Bava Kamma, chapter 1, Mishnah 1. In the introduction, we presented a general overview of the Order and the structure of the tractate, and now we will provide an introduction to the first six chapters of the tractate, which deal with property damage - cases in which a person's property causes damage to another, whether to their property or to their body.
An examination of the verses in Parashas Mishpatim reveals six different categories of causing damage to another's property, and we will go through them one by one.
The Six Categories in Parashas Mishpatim:
Adam - a person who causes damage. The rule is that "a person is always considered forewarned", and therefore he is always liable for full damage, even if he damaged by mistake. This damage can be caused in three ways:
With his body - direct damage, such as one who takes his hand and knocks over his friend's potted plant and breaks it.
Through his force - "his arrow" - not literally with his body but through the extension of his force: one who shoots an arrow, or throws a ball that went through his friend's window and broke it - he is liable to pay for the window.
Grama - indirect causation. The exact parameters of this indirectness require clarification, but once the damage is considered indirect, rather than a direct continuation of his force or action, there is no obligation of compensation in an earthly court. It may be appropriate to compensate beyond the letter of the law.
Keren - when an animal intends to cause damage. Although the name is "horn", the damage can also be done with its foot by kicking or with its teeth by biting. For an animal that is a "tam", a quiet animal that is not expected to gore - its owner pays "half damage", half of the damage amount. For an animal that is a "mu'ad", which has been established as dangerous - such as a cow that gored three times, or a lion which is established as dangerous from birth and therefore even the first time - he pays full damage immediately.
Shen - damage in which the animal derives pleasure for itself, mostly by eating: sheep grazing in a neighbor's field and eating what is his, and their owner compensates for the damage. And this does not depend exclusively on eating: a cow scratching itself against a neighbor's wall and knocking it down - this too is shen, since the act was done for its pleasure and not with intent to cause damage.
Regel - the regular activities of an animal while it walks in its normal manner, and the incidental damage created by them. The common case: one who allows his animals to pass through his friend's courtyard, and even if their mouths are muzzled, they trample the plants. And this does not specifically mean with the soles of their feet: one who brings a bull into a china shop, even if it is an exemplary behaved bull, it will knock over the vessels with other parts of its body - and this is considered regel. The liability is for full damage.
Eish - fire. Simply put: one who lights a fire in his courtyard, and the wind carries it to his neighbor's courtyard and it causes damage there - he is liable. Conceptually, fire is anything of a person's property that causes damage with the help of a mediating factor: the fire itself, had it remained in his courtyard, would not have caused damage, and the wind that carried it is what caused the damage. This does not depend specifically on fire or on wind: one who places a knife at the edge of a balcony, and the wind knocks it down onto his friend's pet - the damage is called fire, since his knife was carried by a mediating force and caused damage.
Bor - digging a pit in the ground, meaning creating a hazard in the public domain. Reuven digs a pit, or leaves a thumbtack or screw in a parking lot, and Shimon is damaged from it - his animal falls into the pit or his car runs over the thumbtack - the person who left the hazard bears liability.
A Halachah given to Moses at Sinai teaches a special law: an animal that caused damage during its regular activity, while behaving normally, but not directly with its body but rather through its force - parallel to a person damaging with "his arrow" - such as kicking up a stone with its foot and the stone causing damage, this is the law of "tzeroros" (pebbles), and its owner pays only half damage.
The three categories of keren, shen, and regel are included in the general term "shor" (ox), the damage caused by a person's animals. Together with adam (a person causing damage), we have four, and joined by eish and bor - six categories in total.
The rule that runs like a golden thread through all the laws of damages is taking responsibility: if the owner acted responsibly - he is exempt; if he acted irresponsibly, meaning there was reason to expect that a normal wind would blow and knock the knife off the balcony or spread the fire - he is liable.
"Arba'ah avos nezikin" - Four primary categories of damage:
The Mishnah begins: "Arba'ah avos nezikin" - Four primary categories of damage. The term "nezikin" is a unique grammatical structure. The Rosh explains that the Tanna of our Mishnah is a Jerusalemite, and his language differs slightly from the rest of the nation: just as one who does kindness is called a "chasid", so too one who causes damage is called a "nazik".
The term "avos" implicitly hints that we are not speaking only of the general categories, but also of toldos - subcategories where the exact same principle operates in a different guise. Just as there are avos and toldos in tumah and taharah, and avos and toldos in the laws of Shabbos, so too there are avos and toldos in damages. In the laws of Shabbos, one of the thirty-nine melachos is zore'a - sowing seeds is the av, and watering seeds to aid growth is a toldah. So too here: keren is an av, and its toldah is when the animal damages intentionally with its foot or its teeth.
And what defines a category as an "av"? Its being explicitly stated in the verses.
And if you will ask: We counted six cases explicitly stated in the verses, so why does the Mishnah list only four? The Gemara enters into a complex discussion here, based on two approaches to reading the next four words in the Mishnah. According to Rav, all six cases are included in the four avos. According to Shmuel, only four of the six were enumerated in the Mishnah, and two are not mentioned in it for various reasons.
The Bartenura follows Shmuel, and we will follow his path, but nevertheless, we will give a brief taste of Rav's approach.
The language of the Mishnah: "Arba'ah avos nezikin: hashor, vehabor, vehamaveh, vehahever" - four primary categories of damage: the ox, and the pit, and the maveh, and the hever.
"Hashor" - the ox:
According to Rav, "shor" includes all three of the categories we called ox - keren, shen, and regel. This one word covers three of the six, and the remaining three words cover the other three. According to Shmuel, "shor" refers to the subcategory of regel alone: an animal walking in its normal manner and causing damage while doing so, trampling and knocking things over.
And why was "regel" not written explicitly? Shmuel explains: Had "regel" been written, one might have thought it meant any damage the animal does with its foot, including a kick. However, a kick is not regel but a subcategory of keren, since keren is when the animal intends to cause damage, and a kick is included in this. Therefore, the Mishnah used "shor," to speak of animals behaving in their normal manner, and the intention is the damage of regel caused while walking.
When is the owner liable for shor, meaning for regel? When his animal is in a place it is not supposed to be, in his fellow's domain, and not in his own domain or in the public domain. In the public domain, an animal is allowed to walk, and if it knocks something over there - all those walking in the street must be careful, as the animal has a right to be there.
The source for shor, meaning for regel, is the very same source as shen, which is the verse in Shemos 22:4, in Parashas Mishpatim. To understand the verse, one must know that the noun "be'ir" means an animal, livestock in general, and the verse features a word from the same root in verb form - as if the animal is doing its animalistic action.
The verse states: "Ki yave'er ish sadeh o cherem veshilach es be'iro uvi'er bisdeh acher, meitav sadehu umeitav karmo yeshalem" - if a man lets his livestock graze in a field or vineyard, and then either "veshilach es be'iro," he sends his animal and it damages while walking, which is regel; or "uvi'er bisdeh acher," meaning the animal grazes in another person's field ("acher" - of another person, not an additional field), and this is shen, since it derives pleasure for itself by grazing and eating. And the halachah is: The owner is obligated to pay, and if he pays from his property - from the best of his property, whether a field or a vineyard. These are the verses brought for all the primary categories, both regarding shen and regarding regel.
"Vehabor" - and the pit:
The source is in Shemos 21:33-34: "Vechi yiftach ish bor o ki yichreh ish bor velo yechasennu" - one who opens an existing pit or one who digs a new pit. And seemingly, if one is liable for opening, all the more so is one liable for digging. The Gemara explains that the novelty is in the last one to dig: The one who deepened the pit from nine tefachim to ten, thereby turning it into a lethal pit, is the one who bears the responsibility.
"Velo yechasennu" - the guiding principle is that a person must act responsibly. Once he has covered the pit with a proper cover, he is exempt, since this is the proper course of action. If he did not cover it - "venafal shamah shor o chamor, ba'al habor yeshalem": If an ox or donkey fell into it, the owner of the pit pays the owner of the animal that fell.
Interestingly, the verse uses the term "ba'al habor" (the owner of the pit), whereas in practice, when the pit is located in a public thoroughfare - it is a public domain and has no owner, and even the pit dug within it has no owner. Rather, the Torah attributes ownership, meaning responsibility, to the digger, and thus the pit becomes his, so to speak, even though it is in the public domain.
The Torah gives two examples, "an ox or a donkey", and seemingly one would have been enough. In the laws of Shabbos, regarding an animal resting, the Torah mentions in one place an ox and a donkey resting, and in another place an animal resting in general, from which we learn that what is stated regarding an ox and a donkey applies to any animal. So too here: any animal is included in this, and even if a camel falls into a pit - the one who dug it is responsible.
Why, then, are there two examples? The Gemara derives two exclusions from them:
"Shor velo adam" - an ox and not a person. If a person's cow falls into a pit deeper than ten handbreadths and dies, the one who dug it pays for the cow. If a person falls in, Heaven forbid, and dies - the digger is exempt, at least in an earthly court, because the general principle is that he should have looked where he was going. However, for injury he is liable: if the cow or the person falls in and sprains an ankle, the digger is liable for both the cow's sprained ankle and the person's ankle.
"Chamor velo kelim" - a donkey and not vessels. He is liable for the donkey that is damaged, and not for vessels that fall into the pit. If there was a flowerpot on the donkey's back, and the donkey fell and broke its ankle and the flowerpot smashed - the digger pays for the donkey and not for the flowerpot.
And the verse concludes: "Ba'al habor yeshalem, kesef yashiv live'alav vehamet yihyeh lo" - the owner of the pit shall make restitution, he shall return money to its owner and the dead animal shall be his. "Money" - he pays with money; and the additional word "yashiv", an expression of returning, teaches that it does not necessarily have to be actual money, and can be something of equal value - any other movable item, such as bottles of wine.
"And the dead animal shall be his" - the carcass remains with the original owners, and from here comes the calculation for the halachah: if a donkey that was worth one hundred fell into a pit, and now it is unfit for work and is worth only forty - the digger pays sixty. And if the injured party did not hurry to take his donkey out of the pit until it rotted and lost all its value, even then the digger pays only sixty, and the rest of the loss falls on the owner, since it is his responsibility to collect his animal that fell and was damaged.
"Vehamaveh":
"Maveh" is a vague term. Shmuel, and the Bartenura explains it this way as well, learns that maveh refers to the tooth (shen) - to the way the tooth is exposed. Its source is in the verse in Ovadiah 1:6: "Niv'u matzpunav" - "matzpunav" are hidden things (like the "tzafun" of the Seder night, which is hidden), and "niv'u" means they were exposed and revealed. According to Shmuel, the intention is to the teeth of the grazing animal, which are usually hidden behind the lips and are exposed when it eats. This is indeed an indirect reference to the tooth, but that is how he learns.
And according to Rav, who already included the tooth in "shor", maveh refers to a person who causes damage. He learns this from a verse in Yeshayah, that a person can be called "maveh" from the root "bei" - asking, requesting, needing, and wanting, as in the Gemara's expression "ba'i Rabbi Yirmiyah" and "ibaya lehu". The essential nature of a person is that he asks, investigates, and wants things.
And according to Shmuel's approach, maveh is the tooth: the animal benefits, and the halachos are the same halachos as for the foot (regel) - when it grazes in another person's field.
"Vehahev'er":
Hev'er refers to fire (esh). Even though the word "be'ir" in the previous verse refers to animals, here "hev'er" is from the expression of burning, like the burning bush that Moshe Rabbeinu saw, and like the melachah of "mav'ir" (kindling a fire) on Shabbos. And as the wording of the verse says: "Ki seitzei esh umatze'ah kotzim vene'echal gadish o hakamah o hasadeh, shalem yeshalem hamav'ir et habe'erah" - if a fire goes out and catches in thorns, and a stack of grain or standing grain or the field is consumed, the one who kindled the fire shall surely pay. "If a fire goes out" - it goes out on its own, the person does not take it out, but rather another factor, such as the wind, spreads it; and it causes damage - it consumes his friend's stack of grain, or his standing crop that has not been harvested, or the field itself, so that it has to be plowed again. And the halachah is: the one who kindled the fire pays compensation.
These are the four primary categories, and according to Shmuel they are only four out of six. What the four have in common is that they all involve the property of the person causing damage, as opposed to his body, and that the liability is for full damage, full payment. Therefore, there is no mention in the Mishnah of a person who causes damage, where the person himself causes damage, and there is no mention of the horn (keren), where the liability is usually for half damages, since it is not the nature of a domesticated animal to intend to cause damage.
Why are four separate categories needed?
The next section of the Mishnah answers an implicit question: Why are four different categories necessary, and why can we not derive one from another, for example, through a kal vachomer (a fortiori inference)? To this, the Mishnah says that this is not possible:
"Lo harei hashor keharei hamab'eh, velo harei hamab'eh keharei hashor" - the ox, meaning regel, cannot be compared to the mab'eh, meaning shen, and vice versa. Two different reasons obligate the owner to guard his animals: Had only regel been stated, there would be room to say that the liability stems from its frequency - every animal walks and causes damage, and the owner must guard it at all times, since it tramples and knocks things over - whereas for eating, which is not frequent, he would be exempt. Had only shen been stated, there would be room to say that the liability stems from the benefit the animal derives, and therefore the owner must guard it well, since animals want to eat - whereas for an animal walking normally and tramping, he would be exempt. Therefore, both verses were needed.
"Velo zeh vazeh sheyeish bahen ruach chayim keharei haeish she'ein bo ruach chayim" - even if we only had shen and regel, it would not be possible to derive further categories from them, since they are living creatures: they have a will of their own, they run around and do as they please, and therefore the responsibility for them is greater. They cannot be compared to fire, which does not spread except with the help of an intermediary agent like the wind, and has no life or will of its own.
"Velo zeh vazeh shedarkan leilach ulehazik keharei habor she'ein darko leilach ulehazik" - even all three together - shen, regel, and fire - do not teach us about a pit, since all three are in motion, and naturally a person is careful with his running animals and his fire that is liable to spread. They are not similar to a pit, which is a stationary hazard in the ground and does not move from place to place.
"Hatzad hashaveh shebahen":
The common denominator that defines all of these is "shedarkan lehazik" - it is the nature of these things to cause damage. If a person is not careful, his animal, his fire, and his pit will damage his fellow's property. And here is an important message for all civil laws: these are not arbitrary laws from which one cannot draw comparisons, but rather principles that must be applied. And from here, "ushmiratan aleicha" - the responsibility to guard them rests upon you. This is the basic principle guiding a just society: a person takes responsibility for himself and his property and ensures that he does not cause damage.
"Ucheshehizik chav hamazik leshalem tashlumei nezek bemeitav ha'aretz" - if it indeed damaged his fellow's property, the damager is obligated, meaning the owner who did not guard his property properly. The term "chav" is unusual compared to the standard "chayav", and this too reflects the version of Hebrew spoken in Jerusalem, and its meaning is the same as "chayav" (obligated).
"Leshalem tashlumei nezek" - seemingly, the phrase "leshalem nezek" would have been sufficient, but the term "tashlumin" hints at the concept of completion, filling the lack and offsetting the difference. Like the example brought earlier: a person dug a pit and his fellow's donkey fell into it, and the donkey that was worth one hundred is now worth forty - the payment is only the completion, the missing sixty needed to restore it to one hundred, the difference between its value before the fall and its value immediately after. And so too with damages of shen, regel, and fire: the damager does not take the donkey and buy the victim a new donkey, but rather compensates for the decrease in value between the state before the damage and the state after it.
"Bemeitav ha'aretz" - as in the wording of the verse brought earlier, that one who pays with land and not with money must pay from the best of his lands. "Meitav" refers to the land that is most easily sold, the most fertile of them, which the Sages call "idit". If a person has two plots of land each worth one hundred, and caused damage of one hundred, he cannot pay with the less desirable plot even if its value is one hundred due to its size, but rather must give the plot that sells easily. However, when paying with money, and even with other movable property, all types of money are equal in this regard to idit, since it is easy to transfer money and sell it, and therefore there is no obligation to pay from the best of his movable property - and he may pay with any flour that is worth the amount of the damage.
In summary: In this Mishnah we covered the six categories of causing damage specified in Parashat Mishpatim - man, keren, shen, regel, fire, and pit - and the law of tzrorot (pebbles) which was given as a Halachah LeMoshe MiSinai. We learned the text of the Mishnah, "Arba'ah avot nezikin: hashor, vahabor, vehamab'eh, vehahev'er", and the two approaches to understanding it: according to Rav, all six are included in it, and according to Shmuel, whose path the Bartenura followed, only four were listed in it - regel, pit, shen, and fire - all of which are a person's property and their liability is for full damages. We discussed the sources of each primary category in the verses and their exegesis, the necessity of listing four separate categories, and finally the common denominator between them: "shedarkan lehazik ushmiratan aleicha", and the method of payment - completing the difference in value, with the best of the land.
In the next lesson, we will continue with the next Mishnah in the chapter.