Bava Kamma 39: נִתְפַּקֵּחַ הַחֵרֵשׁ

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In certain situations where a person cannot fend for himself, Jewish law appoints an apotropus – a legal guardian – who accepts the responsibility of looking out for the person’s interests. The Mishna on our daf discusses the case of an ox that belonged to a heresh, shotah ve-katan – a deaf-mute, an imbecile, or a child – all of whom are perceived as unable to take care of their own affairs.

Owners like those will not be held responsible for damage done by the ox, but if the ox is found to be violent, then an apotropus will be appointed by the courts so that witnesses can come forward and testify about the ox

However, until it becomes clear that there is a problem with the animal, the court will not appoint an apotropus.

We continue our review of the place of animals in antiquity especially Beth Brkowitz's study of animals in ancient Judaism.

Bava Kamma 38: דִּקְדַּקְנוּ בְּכׇל תּוֹרַתְכֶם

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Somewhat surprisingly, the Mishna (37b) rules that if the ox of a Jew gored the ox of a non-Jew, he will not have to pay, but if the ox of a non-Jew gored the ox of a Jew, we will make him pay full damages, whether the ox was a tam or a mu’ad (i.e. whether or not the ox had a history of violence).

The Gemara concludes that when the Roman government sent scholars to the Sages and demanded that they be taught the Torah, upon completing their course of study those representatives stated that the entire Torah is true, aside from this halakha that forces the non-Jew to pay in full but frees the Jew entirely.

We examine the attitude to gentiles in the Talmud as well as the use of this by the Church and the Nazis.

Bava Kamma 37: חֲזָרָה דִבְהֵמָה לָאו חֲזָרָה הִיא

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An ox that is a mu’ad to damage other oxen but no other animals, or if it is a mu’ad to gore people but not animals, or if it is a mu’ad for children but not for adults, for whatever it is a mu’ad, he (its owner) pays full damages, and for whatever it is a tam, he pays half damages.

They asked Rabbi Yehudah: What happens if an animal is a mu’ad for Shabbos and not for the weekdays? Rabbi Yehudah told them: For damages done on Shabbos, he pays full damages, and for damages done during the week, he pays half of the damages.

Rashi explains the rationale as follows: Since the animal does not work on Shabbos, we may assume that it becomes arrogant and therefore it acts upon its destructive urges and begins to gore or it is the only day on which the animal is not tethered to something, and the freedom that it has may lead it to out-of-the ordinary acts of violence.

Tosfos cites a Yerushalmi which explains differently: The animal’s Jewish owners tend to wear different clothing on Shabbos. The ox, unable to recognize its owner, becomes confused and decides to gore.

We compare ox vs cow and buffalo.

Bava Kamma 36: אַחֲרוֹן אַחֲרוֹן נִשְׂכָּר

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Following the discussion in the previous chapter concerning the calculation of compensation for damage caused by an innocuous ox, this chapter opens with a discussion of a case where the ox injured or killed several other animals. Since compensation is paid exclusively from proceeds of the sale of the belligerent ox, in a case where several animals were injured or killed, the proceeds must be divided among their owners.

We continue our comparison between jewish and Roman law with the scholarship of Boaz Cohen.

Bava Kamma 35: גָּדוֹל הִזִּיק אֶת הַגָּדוֹל

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A new Mishnah states that if an ox was pursuing another ox and the ox being chased was found injured, and this one (the owner of the damaged ox) says, “Your ox caused the injury,” and this one (the chaser) says, “Not so; but it injured itself (while scratching itself) due to a rock,” the halachah is that whoever is attempting to take money from his fellow, he is the one who must bring the proof. 

“Ha-motzi me-havero, alav ha-ra’ayah” – or, in more colloquial English, “Possession is nine-tenths of the law.” According to the halakha, if you want to make a claim on someone else, you will have to prove that you are right. This is the underlying message of our Mishna.

We continue our exploration of commonalities between Roman and Jewish law…

Bava Kamma 34: חובל ומקלקל חייב

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Rabbi Avahu taught before Rabbi Yochanan: For all acts of destruction on Shabbos, one is exempt, except for one who injures a person or burns something on Shabbos.

The Mishna is referring to a case where the ox needs the ashes. Rav Avya explained it as follows: We are dealing with an intelligent animal which, owing to a bite in the back, was anxious to burn the grain, so that it might roll in the ashes in order to be healed.

The Gemora asks: But how could we know that it had such an intention? The Gemora answers: We saw that after the grain had been burnt, the animal actually rolled in the ashes.

The Gemora asks: Did that ever happen? The Gemora answers: Ye sit did! For there was the ox which had been in the house of Rav Pappa, and which, having a severe toothache, went and removed the lid that covered a barrel of beer and drank from the beer until it was healed.

This very clever ox implies self awareness of pain which allows us to explore animal pain and its physiological and philosophical implications from Descartes to neurobiology.

Bava Kamma 33: מְכָרוֹ מַזִּיק

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The Mishna on our daf teaches that if the shor tam was worth a maneh (100 dinar) and it killed an ox that was worth 200 dinar, the owner of the dead animal will simply take the shor tam as his own (since its value is half of the damage that it caused).

The Gemara identifies the author of this Mishna as Rabbi Akiva, who believes that in a case where both sides agree to the details of what took place, there is no need to involve the courts in the matter, since the law is clear and the two parties can work it out between them. Rabbi Yishmael disagrees, arguing that only the beit din can decide the value of the two animals and declare how much must be paid. The Gemara explains that while Rabbi Yishmael believes that the accident creates a monetary obligation for the owner of the damaging ox to pay, Rabbi Akiva believes that the accident automatically gives the owner of the ox that was injured a part ownership (or in this case, full ownership) in the shor tam that gored.

We explore the notion of protecting one’s property with the use of force if necessary.

Bava Kamma 32: בּוֹאוּ וְנֵצֵא לִקְרַאת כַּלָּה מַלְכְּתָא

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According to Isi ben Yehuda running is not considered a normal activity, which is why someone who runs and causes damage or injury will be considered to be at fault and will be responsible to pay damages. One exception is on Friday afternoon before Shabbat, when running in public is considered normal behavior.

What might be the purpose of running on erev Shabbat in the late afternoon? The Gemara points to the practice of some of the Sages who would go out into the fields to welcome the Sabbath – a tradition that has played a role in the development of the Kabbalat Shabbat service that is customary in synagogues to this day –

Rabbi Hanina would say, “Come, let us go out to greet Shabbat Kallah Malketa – the Sabbath Queen.”

Rabbi Yannai would say, “Bo’ee kallah, bo’ee kallah – welcome the Sabbath as a bride.”

We explore the wonder mystical liturgical prayer Lecha Dodi.

Bava Kamma 31: הַקַּדָּרִין וְהַזַּגָּגִין

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A baraita is brought in our Gemara that describes a Talmudic-age traffic accident: if people carrying clay or glass vessels were walking one after another and the one walking in front trips and falls, and if the one who is second in line falls over the first person and the third person trips over the second, then the one who is first will be responsible for damages incurred by the second, the second one will be responsible for the damages incurred by the third, and so forth. If, however, the first person caused them all to fall, then he will be responsible for all damage.

With regard to potters and glaziers who were walking one after the other, and the first stumbled and fell, and the second stumbled over the first, sustaining damage, and the third stumbled over the second, also falling and sustaining damage, in this case, the firstperson is liable to pay for the damage of the second, and the second is liable to pay for the damage of the third.

We explore the archeology of glass making in Palestine in the late Antique period.

Bava Kamma 30: מַאן דְּבָעֵי לְמֶהֱוֵי חֲסִידָא

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Rav Yehuda concludes this discussion by saying that someone who wants to become pious should take great care regarding the laws of nezikin. Rava says that he should keep the rules enumerated in Massekhet Avot, and some say he should keep the laws of Berakhot.

The Rashba and Rabbeinu Yehonatan suggest that these three sets of rules are quoted because we find in each one of them specific references to how pious Jews are supposed to act.

We explore the ethical dimensions of civil law.

Bava Kamma 29: נִתְקָל פּוֹשֵׁעַ הוּא

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It was stated: Regarding one who abandons his hazardous objects, Rabbi Yochanan, and Rabbi Elozar dispute this. One of them says that he is liable, and the other disagrees.

The Gemora comments: Shall we say that one of them is saying like Rabbi Meir, and the other like the Rabbis!? The Gemora suggests that they do not argue according to Rabbi Meir (they would agree that the owner is liable). Their dispute is only according to the Rabbis. The one who holds that he is not liable is in complete agreement with the Rabbis. The one who holds that he is liable maintains that when the Rabbis exempted the person who abandoned his hazardous objects from liability, they did so only in a case where its inception was done by accident; however, in an ordinary case, where one abandons his hazardous objects into a public domain, he will be liable.

We explore the legal aspects of hazardous materials in Halacha and modern law.

Bava Kamma 28: פָּטוּר מִדִּינֵי אָדָם, וְחַיָּיב בְּדִינֵי שָׁמַיִם

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Our daf ends with a discussion about who is liable and for how much when a rock, a knife or a load is left on a road. If an animal or a person should be damaged by these things, the owner of the objects is liable according to the laws of pit. Further, if those things are damaged in the accident, the one who does damage is liable according to the rules of pit as well.

We explore divine vs human justice in different traditions.

Bava Kamma 27: לָא עָבֵיד אִינִישׁ דִּינָא לְנַפְשֵׁיהּ

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Rav Nachman says: A person can take the law into his own hands. If someone is making him lose money which he will not recover if he does not act, everyone agrees he may take the law into his own hands. They argue regarding a case where there is no immediate loss (that cannot be recovered if he waits to go to Beis Din).

Rav Yehudah says: A person cannot take the law into his own hands. Being that there is no immediate loss, let him take the person to Beis Din. Rav Nachman says: A person can take the law into his own hands. Being that he is doing the right thing, he does not have to bother to go to Beis Din.

We explore the notion of taking the law int one’s own hands.

Bava Kamma 26: אָדָם מוּעָד לְעוֹלָם

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Our daf deals with situations when we cause the damage ourselves? The rabbis teach that we are always mu'ad: we are liable for the damage that we do to others. What about what we do when we are drunk? well, say the rabbis, we put ourselves in the situation that allowed us to become drunk, and so we are responsible for the damages that we have done in that state.

But what about when we are asleep? This seems to be an exception. Unless of course we fall asleep within the range of things that we could damage. In that case, we are fully responsible for damages that we cause when we are asleep.

We return to the literary devices used in the geological strata of the Gemara using the work of Shama Friedman, Jeffrey Rubinstein and, of course, Prof Louis Jacobs.

Bava Kamma 25: דַּיּוֹ לַבָּא מִן הַדִּין

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One case of Nezikin that does not appear in the Torah is a case of keren be-reshut hanizak: an ox that enters a private domain and causes damage by goring or similar actions.

While the Tanna Kamma accepts the kal va-homer to the extent that we must conclude that the owner is responsible for damage done by his animal in a private place, but he rejects Rabbi Tarfon’s conclusion, arguing that we cannot hold him more responsible that he was in the primary case. Thus the Tanna Kamma rules that the owner will pay half damage, just like he does in the public domain.

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 halakha from a kal va-homer, but not more than the original law itself.

The Gemara explains that the concept of kal va-homer – and dayyo – stem from the story of Miriam who spoke inappropriately about her brother Moshe (see Bamidbar 12).

We explore the evolution of the character of Miriam in Bible, Midrash Philo and Dead Sea Scrolls.

Bava Kamma 24: לֹא אָדוּן קֶרֶן מִקֶּרֶן

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Our new Mishnah discusses the case of the ox that causes damage while on the property of the injured party, mentioned in an earlier mishna (15b) that listed animals that are forewarned? If the animal gored, pushed, bit, squatted upon, or kicked another animal in the public domain, the owner is liable to pay half the cost of the damage if the ox was innocuous, but if it acted while on the property of the injured party, Rabbi Tarfon says: He must pay the full cost of the damage, and the Rabbis say: He must pay half the cost of the damage, as in any other case classified as Goring.

We explore damage of one animal by another from a halachic and modern liability perspective.

Bava Kamma 23: אֵיזֶהוּ תָּם וְאֵיזֶהוּ מוּעָד

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What is a tam and what is a mu’ad? A mu’ad is an animal that was testified about three days in a row, and (it reverts to being) a tam when it stopped goring for three days. This is the opinion of Rabbi Yehudah. Rabbi Meir says: A mu’ad is an animal that was testified about three times (even on the same day), and (it reverts to being) a tam when the children play with it and it does not gore them.

We explore th law regarding animal plaintiffs in case law for damages.

Bava Kamma 22: כִּֽי־תֵצ֨אֵ אֵ֜שׁ

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Rabbi Yochanan said: One is liable for the damage caused by his fire on account of it being “his arrows” (it is as if he shot out an arrow which caused damage). Rish Lakish, however, maintained that fire is regarded as “his property” (just as he is liable when he is negligent and his ox damages, so too, he is liable for the negligence regarding his fire).

The Gemora explains: Rish Lakish differed from Rabbi Yochanan, for he contends that one’s arrows emerge directly from human force, whereas fire does not emerge from human force (it spreads by itself). Rabbi Yochanan differs with Rish Lakish, for he may say that his property contains tangible substance, whereas fire has no tangible substance.

We explore the history of flaming arrows and the halachic implications of forest fires.

Bava Kamma 21: כֶּלֶב וְהַגְּדִי שֶׁקָּפְצוּ מֵרֹאשׁ הַגָּג

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If a dog or a goat jumped from a rooftop and broke vessels while doing so, their owners must pay the full cost of the damage. Thus saith the Mishnah and an exact Braitah.

This indicates that if they fell off the roof, they would be exempt from all liability despite his obligation to keep them from climbing onto the roof and jumping down from there.

The Gemora infers from the Mishna that the reason for liability is because the dog or goat jumped from the roof but were it to have fallen down from the roof (and then broke utensils), the owner would be exempt. It can thus be inferred that the Tanna of our Mishna accepts the view that when a situation begins with a negligence (for the owner was not guarding his animal on the roof) and results in a mere accident, the owner is not liable to pay.

We explore the curious history of punishing animals in the medieval period for crime committed against humans.

Bava Kamma 20: הַמַּקִּיף חֲבֵירוֹ מִשָּׁלֹשׁ רוּחוֹתָיו

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Our daf states if produce is left in the public domain without specification with regard to its ownership, it is assumed that the owner has rendered it ownerless. The owner does not expect to derive benefit from the produce, and therefore when the animal ate it he suffered no loss. Consequently, it is a case where this one derives benefit and that one does not suffer a loss, and it is comparable to the case of the squatter in the courtyard.

In order to prove whether or not one must pay for the benefits he gains in a case of "Zeh Neheneh v'Zeh Lo Chaser,"our Daf brings a proof from a mishna (Bava Metzia 117a): If a house and its upper story, which belonged to two separate people, collapsed, necessitating that the entire structure be rebuilt, and the owner of the upper story told the owner of the lower story of the house to build the lower story again so that he could rebuild the upper story, but the owner of the lower story does not want to do so, the owner of the upper story may build the lower story of the house and live in it until the owner of the lower story will pay him for his expenses, and only then will he be required to vacate the lower story of the house and build the upper story.

We explore Alex Ozar’s essay on Towards a Jewish Theology of Democratic Citizenship.