Bava Kamma 44: לְגוֹי – וְהָרַג בֶּן יִשְׂרָאֵל

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The Mishna on our daf lists seven cases of people who own an ox that will be killed because it killed a person. The first case on the list is that of an ox owned by a woman. In bringing a source for this law, the Gemara quotes a baraita that points to the Torah’s repetition of the word shor (ox) seven times in the passages that deal with a goring ox (see Shemot 21:28-32), which includes all of the “unusual” cases.

We compare the code of Hammurabi with the laws of tort in Mishpatim.

Bava Kamma 43: וְנָגְפוּ אִשָּׁה

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Rebbi Akiva teaches that a husband inherits his wife's property mid'Oraisa. The Gemara questions this from a Beraisa which teaches that when a pregnant woman is hit and the fetus is lost, the money of the "Demei Vlados" is given to the husband, and the Nezek and Tza'ar that the woman suffered is paid to her. If the husband dies, the Demei Vlados is given to his heirs. If the woman dies, the Nezek and Tza'ar is given to her heirs and not to her husband. If a husband inherits his wife, why should the husband not receive his wife's Nezek and Tza’ar?

We explore the source for Abortion in Halacha based on tort law.

Bava Kamma 42: בַּעַל הַשּׁוֹר נָקִי

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We have learned earlier that if a man injures a woman and causes her to miscarry, whether or not he intended to harm her or the fetus, he is liable to pay damages as the woman's husband sees fit. The potential life that was lost might have been anyone, might have done anything - there is no way to determine the true value of that potential person. But what if an ox causes a woman to miscarry? Does it make a difference whether or not the ox intended to harm the woman? Does it matter whether the ox was tam or mu'ad? Is the ox's owner liable to pay for damages that might be incurred?

The Torah is emphatic that injuries done to men and women will be punished the same way (see, for example Shemot 21:28 and 21:29). In discussing this point, the Gemara brings a baraita that teaches that if a pregnant woman is injured, leading her to miscarry, the woman will receive payments of nezek and tza’ar (damage to her as well as pain and suffering) while her husband will receive the penalty meted out for the loss of the unborn child – known as demei veladot – as stipulated in the Torah (see Shemot 21:22).

We continue to explore the philosophical notions of animal consciousness.

Bava Kamma 41: כָּךְ אֲנִי בְּעֵינֶיךָ

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One of the most common words in the Hebrew language cannot be translated into English. The word et introduces many words in the Torah, and according to many of the Sages, we can use it as a source to learn new laws.

One such case is shor ha-niskal where someone’s ox gores and kills another person. As we saw on yesterday’s daf , in that case the Torah teaches that the ox is stoned and its meat cannot be eaten. The passage that says that its meat cannot be eaten – v’lo ye’akhel et besaro – is understood by the Gemara to teach us prohibitions against eating its meat, as well as deriving benefit from its meat. According to some opinions in the Gemara, the word et is understood to teach that the animal’s skin also cannot be used; according to others we must learn this from elsewhere in the passage, since they do not believe that the word et can be used to teach halakhot.

These positions are found in a baraita that brings the teachings of Shimon (some say Nehemia) ha-Amasoni, who was known to learn halakhot from every et that appeared in the Torah. When he reached the passage of et ha-Shem Elokekha tira (Devarim 10:20), which teaches that you should be in awe of God, he could not think of an appropriate thing to learn from the word et, and he stopped making such derashot.

We look at the notion of rabbinic authority and tradition.

Bava Kama 40: שׁוֹר הָאִצְטָדִין

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Ordinarily, an animal that kills a person will be put to death. According to the Mishna (39a) shor ha-itztadin – a “stadium ox” (i.e. a bull that was trained to fight) will not be killed if it killed a person, since the passage that teaches that law indicates that the animal will be killed if it gores, not if it was instigated by others to gore (see Shemot 21:28).

We explore the history and mythology, the antiquity and politics of the "ox in the stadium” or bullfighting!

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.