Bava Kamma 64: מוֹדֶה בִּקְנָס

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Our perek focuses on kenas – the penalties of two, four or five times the value of the stolen object that is paid by a thief over and above returning the object or its value to his victim. There is an exception to this rule. If the thief steps forward and admits his guilt, then he will only need to return the object (or pay back its value); he will not have to pay the penalty.

One explanation for this law is that the obligation to pay the kenas is not an inherent obligation, rather it is one that is imposed on him by the Jewish court. Once the thief admits his guilt, the court is never called upon to rule on the case, so there is no opportunity for them to impose the penalty.

We explore the penalties with and without confession and the differences between Geneiva and gezeilah.

Bava Kamma 63: בְּכֹל אֲשֶׁר תְּאַוֶּה נַפְשְׁךָ

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The Gemara asks: anywhere that the Torah wrote the word kol isn’t it an amplification? But with regard to second tithe, the word kol is written in the verse:

“And you shall bestow the money for whatever [bekhol] your soul desires, for oxen, or for sheep, or for wine, or for strong drink, or for whatever your soul asks of you”(Deuteronomy 14:26)?

And yet we expound that verse as a generalization, and a detail,and a generalization.

We explore the “soul desires” in a broader from a sociological, psychological sense and from chassidic and Jungian perspectives.

Bava Kamma 62: נֵר חֲנוּכָּה – מִצְוָה לְהַנִּיחָהּ בְּתוֹךְ עֲשָׂרָה

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Our Mishnah states:

In the case of a camel that was laden with flax and was passing through the public domain, and its flax extended into a store and the flax caught fire from a lamp in the store belonging to the storekeeper, and as a result of the burning flax the camel set fire to the building together with all its contents, the owner of the camel is liable.

Ravina said in the name of Rava: Conclude from Rabbi Yehuda’s statement that the mitzva is to place the Hanukkah lamp within a height of ten handbreadths from the ground

The Sages say in response: No, there is no proof from here. Actually, I could say to you that one may place a Hanukkah lamp even above a height of ten handbreadths..

We explore the height of the Chanukiah…and the placing of menorahs in public spaces.

Bava Kamma 61: טָמוּן בָּאֵשׁ

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If one sends forth a fire, i.e., allows it to escape, and it consumes wood, or stones, or earth, he is liable, as it is stated: “If a fire breaks out, and catches in thorns, so that a stack of grain, or standing grain, or the field, is consumed, the one who kindled the fire shall pay compensation” (Exodus 22:5), which teaches that he is liable also for destroying the field itself.

We explore the history and art of haystacks.

Bava Kamma 60: כֵּיוָן שֶׁנִּיתַּן רְשׁוּת לַמַּשְׁחִית

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“And none of you shall go out of the opening of his house until the morning” (Exodus 12:22)? If the plague was not decreed upon the Jewish people, why were they not permitted to leave their homes? Once permission is granted to the destroyer to kill, it does not distinguish between the righteous and the wicked. And not only that, but it begins with the righteous first.

We explore how modern plagues such as Corona virus impact faith and the seemingly arbitrary afflictions of even babies using the tools of theodicy and tradition.

Bava Kamma 59: שִׁלַּח בְּיַד פִּקֵּחַ

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Our daf discusses a number of options regarding one who fans a flame which causes damage to another's property. Is one's breath the same as the wind? What if the wind was fanning the flame while a person was using his breath on the flame? What if the wind was stronger than the person's breath? What if the wind was typical? Or atypical?

We explore the use of fire in antiquity and the science behind the interaction between wind and fire in natural disasters and their legal implications for liability.

Bava Kamma 58: מַבְרִיחַ אֲרִי

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The Gemora asks: Indeed, why don’t we say that the case in the Mishnah is akin to a case of chasing away a lion from his friend’s possessions (where the friend does not have to pay for the chasing)? The Gemora answers: The case of chasing away the lion was done (knowingly and) willingly, unlike the produce acting as a cushion that was not done with the consent of the owner of the produce.

Alternatively, the Gemora answers: When one chases away a lion, he does not incur a loss, as opposed to this case where he did incur a loss (as his produce was crushed by the animal’s fall).

Tosfos rules that the lion chaser is not entitled for compensation only in cases where it is not definite that the lion will cause a loss, for instance, where the lion is far away from the sheep, but he is concerned that it might come closer. However, if he would chase away the lion when the damage is imminent, for instance, where the sheep is already in the mouth of the lion, he is entitled for compensation.

We continue our exploration of the lion in antiquity including Herodotus' description of the Greek allies setting loose the lions against the Persian army, led by Xerxes.

Bava Kamma 57: שֶׁהוּחְלְקָה בְּמֵימֵי רַגְלֶיהָ

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Our masechta continues its discussion of payment "to the extent of the benefit" [ma she-nehenet]. Even when, for one reason or another, there is no liability in the context of the laws of damage, a person is still obligated to pay a person from whom he derived benefit the amount of that benefit, this being similar to the argument that "mamoni gabakh" ("my property is in your possession").

Regarding, [a case where an animal tripped and had the blow cushioned by landing on produce that did not belong to his owner, and the owner of the damaged produce, even if, for whatever reason, he will not get paid the full value of the damaged fruit, would still like to at least be paid for the benefit derived by the animal from the lessening of] the impact, we might have said that this is a case of "driving away a lion away from a neighbor's property" [mavri'ach ari], so that no payment should be made even to the extent of the benefit.

It is therefore indicated to us [here that even this benefit has to be paid for].

We look at the history the lion in rabbinic Literature and its use as metaphor for the divine.

Bava Kamma 56: וְהוּא שֶׁחָתְרָה

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The mishna teaches: If the pen was breached at night, or bandits breached it, and sheep subsequently went out and caused damage, the owner of the sheep is exempt. Rabba says: And this first instance of a pen that was breached is referring specifically to a case where the animal tunneled under the wall of the pen and by doing so caused the wall to collapse. In that case, the owner is completely blameless and therefore exempt from liability for any damage that ensues.

The Gemara asks: But if the animal did not tunnel under the wall, what is the halakha? Would the owner be liable? What are the circumstances?

We explore the zoology and evolutionary advantage of tunneling in animals.

Bava Kamma 55: הַפּוֹרֵץ גָּדֵר

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We begin Perek VI with a new Mishna. It shares a number of cases that suggest a general rule: the owner of animals is liable for any damage that those animals do if their behaviour is beyond the owner's control. If thieves let the sheep out at night and they do damage, the thieves are liable, not the owner of the sheep. If a field is damaged by stray animals, it is assessed based on its value before and after the damage was done. Rabbi Shimon suggests that if a ripe fruit is eaten by an animal, the value of a ripe fruit is paid for by the animal's owner. If one se'a is eaten, the payment is for one se’a.

Bava Kamma 54: שׁוֹרְךָ וַחֲמֹרְךָ

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When describing an animal that falls into a bor (a ditch or hole in the ground) the Torah talks about an ox or a donkey (see Shemot 21:33).

The Gemara asks: And from where do we derive concerning Shabbat itself that the words “ox” and “donkey” are referring to all types of animals? As it is taught in a baraita: Rabbi Yosei says in the name of Rabbi Yishmael: In the first version of the Ten Commandmentsit is stated:

“Your manservant, your maidservant, nor your cattle” (Exodus 20:10), whereas in the second version of the Ten Commandments it is stated:

“Nor your ox, nor your donkey, nor any of your cattle” (Deuteronomy 5:14). Now, aren’t an ox and a donkey already included in the category of: All animals, which are included in the term “cattle”?

We explore the different versions of the Decalogue for different scholarly perspectives.

Bava Kamma 53: מִקּוֹל הַכְּרִיָּיה

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According to the Mishna (52a) if the noise from digging frightens an animal into falling into a bor (a pit or hole in the public domain) the person who is responsible for the bor will be held liable for damage to the animal. Sudden, surprising noises can affect people and cause them to lose their balance and fall. This is certainly true of an animal which likely will react to an unexpected noise that emanates from a place that it cannot see, causing it to fall into the bor.

We explore the notion of acoustic trauma and its effect on the brain and falling.

Bava Kamma 52: קַרְקַשְׁתָּא

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Reish Lakish says in the name of Rabbi Yannai: With regard to one who sells a flock of sheep to another, once he conveys the mashkukhit to the buyer, he has acquired the flock.

The Gemara asks: What are the circumstances of this case? If the transaction occurred by pulling the flock into his possession, then let the buyer acquire it by pulling. If it was by conveying it, let the buyer acquire it by the seller conveying it. The Gemara answers: Actually, it was a transaction by pulling, and in that case, the seller usually must say to him: Go, pull it, and acquire it for yourself. And in this case, once he conveys the mashkukhit to him, he is like one who says to him: Go, pull it, and acquire it.

We explore the legal acquisition of an animal by pulling then discuss the use of the nose ring and its symbolism as jewelry.

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.