Bava Kamma 51: אַחַר אַחֲרוֹן לְמִיתָה

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Our mishnah deals with the duty to cover a pit.

We learn here that if the pit was owned by two people, the last one to be at the pit is the one responsible for damages done if he left the pit uncovered.

Even though the first person also left the pit uncovered, since the second person was the last to be at the pit, he is the one held accountable.

Later (51a), the Gemara cites another Beraisa that states that if one digs a Bor ten Tefachim deep, a second person extends it to twenty Tefachim, and a third person deepens it to thirty Tefachim, they are all liable.

We explore the liability and risk from fatality falling from heights.

Bava Kamma 50: זָכָר שֶׁל רְחֵלִים נִזְדַּמֵּן לִי

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The Gemara brings a baraita that tells the story of Nehunia Hofer Shihin‘s daughter who fell into a cistern (some manuscripts have “the great cistern,” which would be a reference to a particular cistern that was in the Temple precincts).

When the report reached Rabbi Ḥanina ben Dosa, he reported that all was well, and after a time that she had been saved. When questioned about it, Rabbi Ḥanina ben Dosa said that throughout the ordeal he was certain that Nehunia Hofer Shihin‘s daughter was safe because she would not be punished with the very object that her father devoted his life to.

The daughter said that a ram with a Zaken leading it pulled her out of the Bor and Rashi explains that it was the ram of Yitzchak Avinu that was led by Avraham Avinu.

The Pnei Yehoshua explains that it was already decreed from Heaven that she will die and therefore it was no longer possible for her to be saved without someone else dying in her place.

Therefore when R. Chanina Ben Dosa prayed that she would live it was decreed that someone else must die in her place. This concept is hinted to with the ram of Akeidas Yitzchak: the ram was brought in place of Yitzchak on the Mizbe'ach. Yitzchak's life could not have been spared if the lamb would not have been brought instead of him.

We analyze this wonderful story.

Bava Kamma 49: לְמִי שֶׁיּוֹלֶדֶת מַשְׁבַּחַת

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MISHNA: In the case of an ox that was intending to gore another ox but struck a pregnant woman, and her offspring, i.e., the fetuses, emerged due to miscarriage, the owner of the ox is exempt from paying compensation for miscarried offspring. But in the case of a person who was intending to injure another but struck a pregnant woman instead, and her offspring emerged due to miscarriage, he pays compensation for miscarried offspring.

The court appraises the value of the woman by calculating how much she would be worth if sold as a maidservant before giving birth, and how much she would be worth after giving birth. He then pays the difference in value to the woman’s husband.

We explore the legal parameters of valuation of the worth of fetus following miscarriage and traumatic injury.

Bava Kamma 48: נָפַל לְבוֹר וְהִבְאִישׁ מֵימָיו

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If someone brings his Shor into the courtyard of his friend without permission and it was gored by the Shor of the Ba'al ha'Bayis he is Patur. If his Shor gores the Shor of the Ba'al ha'Bayis if it is a Tam, he pays Chatzi Nezek and if it is a Mu'ad he pays Nezek Shalem which is the Din of a Shor that gores in the Reshus ha'Rabim. If the Shor falls into a Bor and ruins the water if the water was ruined immediately when the Shor fell in, he is Chayav, but if it was ruined after a while, he is Patur because the Shor is considered a Bor and the water is the same as utensils and a Bor is Patur for utensils. If he brought in his Shor with permission, he is Patur.

Our daf also quotes Rava (some say it was Rav Pappa) as ruling that in cases where two people interact and both end up injured, the liability of each one will depend on what happens.

This leads us to explore the world of personal injury as applied to motor vehicle accidents, liability and fraud on both the passenger as well as the insurance companies side.

Bava Kamma 47: חַיָּיב בְּדִינֵי שָׁמַיִם

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According to the Mishna, if someone places his fruit in someone else’s yard without his permission, the owner of the yard will not be responsible if his animal eats the fruit; if the animal is injured by the fruit, then the owner of the fruit will be liable for damage done to the animal.

In the Gemara, Rav argues that the owner of the fruit will only be held liable if the animal tripped on the fruit or slipped on them.

The Sages said: The same is true, that even if the animal was injured by eating the produce, he would also be exempt according to human laws, and this baraita teaches us this, that even in the case of poison, which is not suitable for eating, the one who placed the poison before the animal is liable according to the laws of Heaven.

This idea of heavenly justice vs court imposed justice is explored with the work of Haim Shapira.

Bava Kamma 46: הַמּוֹצִיא מֵחֲבֵירוֹ – עָלָיו הָרְאָיָה

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We begin Perek IV with a new Mishna. It addresses what should be done when an ox is killed alongside its infant. When it is not known whether or not the baby was born before or after the ox gored. Who pays, and how much? IS this a case of half damages, where that money is paid by whom? Or is this a case where full damages what be paid by an owner of the ox?

We explore the dimensions of “justice” as defined by rabbinic Judaism, particularly as it pertains to the challenges posed by allegations of sexual harassment and abuse.

The recent #MeToo and #TimesUp movements have been instrumental in lowering society’s tolerance for sexual harassment, abuse, and assault. What might have been “socially acceptable” a few years ago may now result in public excoriations.

Yet the events following the Hamas attack on OCT 7 which included brutal raping of women was met with delays, obfuscations and silence on the part of women’s movements, UN and NGO agencies.

Bava Kamma 45: וְלֹא יִשְׁמְרֶנּוּ בְּעָלָיו

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What level of care does the owner of an animal need to provide in order to be perceived as having done what is required of him?

The Mishna presents situations where basic precautions were in place – the animal was tied up or was in an enclosed area – situations where the animal would ordinarily be kept from getting loose but can get loose if it tries. In those kinds of situations we find three opinions on this matter if the animal escapes and causes damage:

R’ Meir says: If an ox owner tied it with its reins, or locked the gate in front of it properly, yet it escaped and damaged, whether it was a tam or muad, the owner is liable. R’ Yehuda says: If it was a tam, the owner would be liable, but if it was a muad, he is not.

This is derived from the verse that says in the context of the liability for a muad in Shemos 21:36 “Its owner did not guard it” and this ox was guarded. R’ Eliezer says: There is no level of guarding that is sufficient for a muad, short of putting it to death.

We review the magisterial monograph by J J Finkelstein who died tragically at age 52.

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.