Sunday, 31 July 2016

Bava Kamma 61: Three Types of Damages by Fire

Today's daf includes three Mishnayot.  Each of these concerns damages paid when one sets fire to another's property.  

Our first Mishna teaches that if a person sets a fire and it jumps across four cubits, he is exempt from liability.  The Gemara debates how this could be so when a baraita suggests that one is liable in this case. Why should we believe that there are limits on one's liability when s/he lights a fire, regardless of how high a fire jumps?  The rabbis suggest that perhaps the fire jumped four cubits after burning at a certain height.  They wonder whether we are discussing a fire that leaped across a field, or a thoroughfare, or a river, or a different body of water.  How might they understand which jump is significant, regardless of the number of cubits jumped?

Our second Mishna teaches that one who kindles a fire is exempt from damage done beyond a sixteen cubit radius. The Gemara wonders what distances are significant when it comes to damages.  They speak about the halachot regarding standing inside of ovens within the home.  One has to be careful about ceiling height - but also about building materials in different parts of the home.  The rabbis wonder whether or not the height of the fire might make a difference in determining liability.

Our third Mishna shares an argument regarding liability for vessels that are hidden inside a stack of produce set ablaze.  Should the rabbis agree with Rabbi Yehuda, who asserts that the person who kindles the fire liable because his action causes the damage?  Or is he exempt, because he could not have predicted that unusual occurrence of vessels within the stack?  The rabbis all agree with Rabbi Yehuda regarding the contents of a home that is set on fire.  The person who set the fire is liable for all contents within the home.

The Gemara wonders: is this a case where the fire was set within a person's own property and it spread, causing a stack to ignite?  The rabbis question whether the vessels held grain or another substance; they wonder whether a person's threshing tools might have been hidden and destroyed by the fire.

These rulings represent clear categories of cases rather than actual cases.  The rabbis seem to be teaching us which questions to ask; how to think.

Bava Kamma 60: Fanning the Flames; G-d's Liability

Before introducing a new Mishna, the rabbis walk through 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?

The new Mishna teaches us that if a person allows a fire to spread so that it damages wood or stones or earth, that person is liable.  The proof text for this is in Exodus 25:5, where it is written that "If a fire breaks out and it catches in thorns, so that a stack of grain, or standing grain, or a field is consumed, the person who set the fire is liable to pay compensation".  This indicates that one is liable for paying for the entire field.

The Gemara argues that the words thorns, stack of grain, standing grain, and field could be understood as redundant.  As there are no redundancies in the Torah, they decide to analyze each of these words to better understand their true meanings.  For example, thorns represent something that is often present when a fire is set, and thus a person is liable even when something common and expected catches fire.  This is in contrast with a stack of grain, which is not often present when a person kindles a fire.  We can take from this that a person who sets a fire is responsible also for things that are costly to replace and thus unusual to neglect.

We then digress to learn about the rabbis beliefs about how to avoid the angel of death, the plague, famine, and other calamities.  Some of these are based on Exodus (12:22) and also Isaiah (26:20) where people are told to remain in their homes until morning for their own safety.  This is interpreted in many ways, including avoiding walking in the centre of the street or toward a group of dogs howling and nothing to avoid the angel of death.  It also includes avoiding entering a synagogue alone unless children are learning there or there is a minyan of men present.  It is thought that the angel of death's tools are left in a synagogue.  A note teaches us that synagogues often were built far from cities, and uninhabited places were considered to be dangerous.

Rav Yitzchak Nappacha is asked to speak of halacha and of aggada.  He tells the story of a man with two wives, one young and one old.  The young wife pulls out his grey hairs so that he will appear younger.  The old wife pulls out his black hairs so that he will appear older.  In the end, he is bald.  Rav Yitzchak Nappacha goes on to speak of liability for a fire that is set and then spreads and causes damages.  He states that a person is responsible fully - but only - for damages that he has caused directly.  He then uses this as an allegory:  G-d is responsible His actions that caused the fire to be kindled in Jerusalem ending in the destruction of the Temple.  G-d built that fire and G-d will build the fire that reignites Zion.  Verses from Lamentations are used as prooftexts.

Our daf ends with further allegories based on King David and his desire to save himself by destroying the property of another.  While this would be against halacha in other circumstances, Kings are permitted to ensure that their kingdom continues without asking permission. They should reimburse people for their damages, but kings need not get the consent of others before making his decision.

Thursday, 28 July 2016

Bava Kamma 58: Chasing Away a Lion; Valuing Damaged Property

The rabbis continue their conversation about damages paid when an animal falls into another person's garden.  Generally speaking, damages are paid for the benefit that the animal gains - the actual produce that is consumed by the animal.

To examine this further, the rabbis question why the animal fell, and whether or not that should influence the damages paid.  Examples refer to the case of "chasing away a lion".  In this scenario, a person distracts a lion from attacking another person's flock of sheep.  That person is not offered a reward because s/he has performed a mitzvah which is rewarded in the world to come.  Similarly, if an animal falls into a garden, are the vegetables that cushion its fall just like the person who chases away the lion?  Why should damages be paid for that 'mitzvah'?  

The rabbis also consider the example of an animal that falls into another person's garden and then gives birth.  If its amniotic fluid causes damage to the field, will those damages be covered?

The rabbis also consider animals who enter and damage a larger field.  How do we know that they are assessed based on the difference in value of the land before and after the damage has been caused?  The rabbis find proof texts that teach that one part is valued as sixty parts.  Thus if an animal damages one stalk of produce, that stalk is valued at the cost of sixty stalks of produce.  We see the example of a man who cuts down a date palm where that tree was one of three stalks growing from the same stalk.

Wednesday, 27 July 2016

Bava Kamma 57: Thieves and Robbers and Oaths

Today's daf focuses on liability regarding returning or losing/not returning lost objects.  We are told that a person is not liable if s/he returns an item to an obvious place in the morning, for example - a time and place when the owner would be expected to find it.  And what if the item is lost before it is returned?  The rabbis move forward with this conversation, wondering if a person who has lost an item is like a paid bailee, who pays a single payment (rather than an unpaid bailee who pays a double payment).  They note that the Torah includes many ways to return items using hashev teshivem, returning items without the knowledge of the owner.

The rabbis discuss the difference between an armed bandit and a thief.  An armed bandit is in the category of a robber and not a thief because he is someone who transgresses in hiding. The rabbis also discuss differences between armed and unarmed bandits.

How serious is taking an oath?  When we compare that action to other actions?  We are offered cases where people do some actions in lieu of taking oaths.  It seems that at times people would pay fines for theft without admitting guilt or making oaths.  They would then be able to be reimbursed when the true thief stepped forward.

Our daf ends with the next section of our Mishna: if an animal falls into a garden, the animal's owner pays for any benefits.  Rav says that this is the case because the animal must have fallen on vegetables, not because the animal ate from the garden.  Why? Because it is the owner's fault that the animal fell, but not that the animal ate.

Tuesday, 26 July 2016

Bava Kamma 56: Intentionality of Animals, Theives, Others

The Gemara continues to discuss our Mishna.  What does it mean that a person is liable if he bends another's standing grain?  Wouldn't we need to know the direction of the wind to determine whether or not this is a malicious crime?  And would we not need witnesses?  Perhaps this crime refers to one that requires only a single witness.  Even if this action does not meet the standard of liability, would it not be a crime according to the laws of Heaven?  

The rabbis continue to delve into the possible circumstances and meanings of this particular verse of our Mishna.  Their focus is incredibly particular, but it is simple to extrapolate.  How frequently would one be tried for his attempt to spread fire to his neighbour in this manner?  Very rarely.  But how frequently would a person do something that might seem innocuous to another person's property when that action might actually be intended to cause damage? Far, far more frequently.  And so the rabbis offer not only their specific halachot regarding this case, but their process of thought and determination.

The rabbis turn their attention to the verse regarding animals that escape their pen and cause damage, either on their own or via a bandit.  Did the animals do this themselves; tunnelling out of their pen?  Was the owner locking them in an inappropriate pen?  Who is truly responsible for damages caused by this kind of negligence or animal nature?  

The rabbis then discuss the liability of a person who is a bailee or who is otherwise compromised in his official liability.  They are always considering typical and atypical behaviours of both people and animals.  They end on the topic of lost items and when people are obligated against their wills.  A note reminds us that people are not obligated to do mitzvot when they are actively engaged in the practice of another positive mitzvah.

Bava Kamma 55: On Animal Behaviour and Exceptions to Liability

The first part of our daf finishes Perek V.   The rabbis discuss the word too, and then the letter tet, and other words that might represent different ideas.  Coming out of this is a discussion of the word hesped, eulogy.  If one sees that word written in their dreams, or even dreams about a eulogy, that person's eulogy will be delayed.  Further, the rabbis discuss the undomesticated and domesticated animals that were mentioned in our last Mishna.  The rabbis spend some time defining different species.  They also remind us that species cannot be interbred, and yet different species are permitted to travel together. 

We begin Perek VI with a new Mishna.  It share a number of cases that suggest a general rule: the owner of animals are 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.

The Gemara begins with what it means to lock the sheep into their pen appropriately.  What does it mean to safeguard or secure an animal? How should reins be tied up?   We learn that there are four matters where the Torah limits the required standard of safeguarding: Pit, Fire, Eating and Trampling.  

For Pit, a person is liable if he digs a pit and does not cover it (Exodus 21:33).  The rabbis decide that he is exempt if he covers the pit even though it will become uncovered int he future.  For Fire, one who starts the fire is liable (Exodus 22:5), which is taken to mean that one is exempt if unless he acts in a manner similar to one who kindles a fire in his neighbour's home.  For Eating, we learn that one is liable if his animal feeds in someone else's field, but the owner is exempt unless he behaves negligently so as to allow this to happen.  Finally, for Trampling, the same verse is used to suggest that a person must set his animal loose to be liable for damages caused by damages done to another's field (Exodus 22:4).

Is this about reduced supervision?  About how the animals behave?  The rabbis discuss implications of these matters.

We are told that Rabbi Yahoshua taught that there are four matters where a person who transgresses is exempt based on our laws but is liable according to the laws of heaven.  These are:
1) one who breaks a fine allowing another's animal to escape
2) one who bends another person's grain so that it catches fire
3) one who hires false witnesses to testify
4) one who refrains from testifying though he knows testimony supporting another person

We learn that these people should be fined.

Our Mishna mentioned one point that I found particularly poignant.  It is the case of a person who leaves his animal out in the sun, causing the animal to suffer.  This transgression of animal cruelty is mentioned in our Mishna; it is a significant error in judgement. How wonderful to know that our Sages considered animals to be worthy of consistent compassion and care.

Sunday, 24 July 2016

Bava Kamma 54: The Competency of an Ox; Animals and Halachot

In their attempt to understand their past example, where a donkey and an ox fall into a pit at the same time, the rabbis look to hermeneutics   Perhaps we are meant to understand their statement as a generalization followed by a detail followed by a generalization.  Or perhaps this is a different pattern of speech that could be better understood through other principles or guidelines.  Perhaps the ox was deaf and mute, or a minor, or an 'imbecile'.  Our notes share that the rabbis admit that they would not know how to measure competency in oxen.  

A new Mishna teaches us that the halacha is the same for an ox as for any other animal that falls into a pit.  Similarly, other halachot are the same for all animals:

  • keeping distance (away from the mountain) from Mount Sinai
  • paying double the principal by a thief
  • returning a lost item
  • unloading its burden
  • the prohibition of muzzling an animal while it is threshing
  • the prohibition of diverse kinds
  • the prohibition of working on Shabbat
Finally, this Mishna tells us that this rules apply to all animals whether or not they are domesticated.  Why are all of the halachot in the Torah referring to an ox and a donkey, domesticated animals?  The rabbis answer their own question: the Torah used those animals as examples; we were to extrapolate from these halachot to the laws for all animals.

The Gemara uses Torah verses Exodus (21:24) and (19:13) as well as verses from Deuteronomy as proof texts. We learn that in different circumstances, the owner of a pit shall give money back to the owner of an animal that falls.  We learn that people and animals will not live if they climb Mount Sinai at the giving of the Torah.  Even birds are implicated by the word "whether" (as in, "Whether they are people or animals they shall not live").  

Proof texts are found for muzzling, as well.  The rabbis connect halachot for muzzling, which speak of oxen in the fields, with the halachot for Shabbat.  Shabbat's prohibition on work clearly applies to oxen, as well.  The rabbis share a detailed analysis of how to understand the halachot regarding animals for the remainder of today's daf.  The use of the words "ox" and "donkey" are also analyzed for what they might represent.  

Saturday, 23 July 2016

Bava Kamma 53: daf 52 and Being Pushed into a Pit

A quick review of Bava Kamma 52: the rabbis speak about acquisition a home through the transfer of the house key.  A wonderful analogy is shared with us.  When a shepherd works with his flock, he puts a bell on one goat and it will lead the others.  When he is mad at his flock he puts the bell on a blind goat - leading the flock to their despair or their deaths.  Similarly, when G-d is mad at the Jewish people, he appoints inappropriate leaders.  

The remainder of the daf discuss what should be done if a pit's cover has been protected for oxen but not for camels.  Most importantly, we learn about one of the basic considerations in Bava Kamma: should the owner expect camels to walk in that area, or is it unusual to find camels there?  Owners are expected to have a reasoned understanding of their circumstances and their resulting liabilities.

Today's daf focuses on how a person or an animal might fall into the pit and the effect that could have on the owner's liability.  Does it make a difference if one falls face first or back first? What if there are fumes in the pit - might that make a difference in how one falls.  But what if an animal was pushed into the pit by an ox?  Who is liable, and for how much of the damages?   How does it change things if one ox is tam and the other is mu'ad?  How does it change things if one ox is consecrated?

Thursday, 21 July 2016

Bava Kamma 51: Two Owners?

The rabbis consider some of the limitations to the ten handbreadth requirement for liability when an animal falls into a pit and is injured or dies.  What if the pit is altered in some way?  What if there rare reasons that it is dug within a home?  What if an animal falls from higher up than the ground?  And so on.

A new Mishna teaches about a pit that is co-owned by two people.  If the pit is uncovered and the first owner just walks by and then the second owner passes by, neither of them covering the pit, the second owner is liable if a person falls into the pit.

The Gemara has difficulty with the notion of a pit having two owners.  The original verse (Exodus 21:33) refers to a man who opens or digs a pit, not two men who dig a pit.  How can liability be assigned to anyone but the person who digs the pit?  The rabbis consider different situations.  For example, if one man digs the pit and another man plasters and cements the pit.  Or if one man digs the pit but another man adds whichever characteristics create the fumes in the pit that cause the pit to be lethal for animals that fall into it.  Or if a pit is eight handbreadths deep but two handbreadths of water are added to it.  

Our daf ends with a discussion about designation and taking ownership or acquiring something through the action of using that thing.  If one person hands his bucket to another person, he might be stating through this action that he is finished constructing the pit.  By acquiring the bucket, the second person might be taking responsibility both for finishing the pit and for ownership of the bit.  The transfer of the bucket might represent a transfer of ownership - and thus liability.

Bava Kamma 50: Public and Private Pits; Liability When There Are Changes After the Fact

The Gemara considers whether or not a person is liable for damages incurred because s/he uncovered a pit if s/he did not actually create the pit.  Is the action of 'uncovering' enough to warrant damages?  Or is the action of digging the pit a requirement?  What about an ownerless pit?  And what about a pit that is on private property but its entrance is in the public domain?  What about when a pit is created to lay foundation?  And what about when a pit is widened?  Who is responsible for damages that are incurred in this larger pit?

The rabbis then speak about people who transferred wells to the public domain to be used as a well for water.  Stories are told of people falling into those cisterns.  This is a wonderful lead-in to a discussion about ways in which we are told of G-d's compassion and care for us.

Before we begin a new Mishna, the rabbis tell us about a man throwing stones into the public domain.  A rabbi chastises him for this behaviour, but in an an unusual manner - this story focuses on the ridiculousness of throwing stones into the public domain.

A new Mishna teaches us that if an ox and a donkey fall into a pit, the owner of the pit is liable.  This is the case if the pit takes the form of a ditch, a cave, a trench, or a channel.  The pit must be at least 10 handbreadths deep; enough to kill an animal.  We are reminded that if an animal is killed, the owner of the pit is exempt.  However, if the animal is injured, the owner is liable.

The Gemara discusses how the pit might injure or kill an animal. Were there lethal fumes held in the pit?  Was the ground hard enough to kill the animal(s) upon impact?  Does the size and shape and depth and length of a pit determine its lethality?  How might these factors affect the liability of the pit's owner?  And what if the animal were compromised - for example, what if the animal becomes a treifa because of its fall and thus it must be killed within twelve months?  Should that affect the liability of the pit's owner?

It is difficult to imagine such cases happening frequently.  It is simple to imagine other cases, though, where responsibility, liability and ownership are key factors.  These more bizarre and unusual cases allow the rabbis to understand protocol in much more complicated and ubiquitous cases.

Tuesday, 19 July 2016

Bava Kamma 49: Compensation for Damages When A Pregnant Woman is Gored and Miscarries

The Gemara discusses what is done when someone unintentionally causes the miscarriage of a pregnant woman.  What if this is a maidservant?  What if the situation were an ox and a pregnant goat? And does a woman increase in value or decrease in value after she gives birth?  Or is her value the same?  What if the child is her first born?  One of our notes teaches us the halacha regarding payment of damages:

  • miscarriage: husband is paid for the value of the fetus, woman is paid for the assessment of difference in damages to her body/pain between this situation and a normal delivery
  • medical costs, loss of livelihood are paid to the husband
  • humiliation: one third to woman, two thirds to husband if the miscarriage happens in public.
  • humiliation: one third to husband, two thirds to woman if the miscarriage happens in private
The rabbis discuss how to distribute compensation for damages if the woman is a maidservant, the husband is a convert, the husband has died, etc. etc.  Compensation is sometimes paid directly to the woman, particularly when there are no heirs in line for the payment.  The Gemara then shifts its focus to questions of acquisition that may be dependent on location, like within a person's courtyard.  Converts and other "others" are discussed here as well.

A new Mishna speaks about the category of Pit.  It states that a person who digs a pit in the private domain and opens its entrance in the public domain, and vice versa, and one who digs a pit in the private domain that opens in another person's private domain is liable for all damages.  The Gemara begins its analysis of this Mishna with questions about Torah sources.  Is this actually what was said in Exodus?

Monday, 18 July 2016

Bava Kamma 48: Visitors, Damage, and Categories

The rabbis discuss the different categories of damages that are incurred when a person brings an animal who does damage in another person's home.  A couple of examples offer more comic relief than information.  A woman enters another woman's home to bake bread.  The homeowner's goat dies from overheating after eating the hot dough.  The rabbis wonder whether the woman is responsible or not for the death of the goat - was she given permission to enter?  Was she safeguarding the goat?

Another example is a person who brings his ox into another's courtyard where the ox defecates, soiling the clothing of the courtyard's owner.  The ox's owner is not responsible for the damages incurred because feces fall under the category of Pit, and the owner is exempt according to the rules of that category.

Other examples are used to understand when damage is caused to utensils, when damage is caused directly and indirectly, and when damage is caused by an ox falling on a person or defecating into water.  

A new Mishna begins at the end of today's daf.  It tells of a case where an ox intending to gore another ox instead gores a pregnant woman.  The ox's owner pays for the value of the fetus.  But how is that value assessed?  First, the mother's value is assessed if sold as a maidservant before giving birth and then after giving birth.  The difference in that value is paid to the woman's husband.  But this doesn't make sense - a woman gains in value after going birth!  Perhaps the fetus is valued based on its worth.  The amount would be given to her husband or his heirs.

Again we are presented with an example of damages paid to a person who does not suffer a physical loss.  Yesterday we looked at a slave whose hand was cut off.  Compensation went to his master.  Yes, the master has lost an asset, but he has not lost his hand!  He has not lost his baby!  These are poignant examples of the differences between ancient sensibilities and modern understandings.

Sunday, 17 July 2016

Bava Kamma 47: I've Asked You To Visit - Am I Responsible for You?

A pregnant cow that is damaged by another person's ox - how do we determine its value?  The rabbis create a complex but reasoned explanation of how much this cow is worth.  Is is particularly disturbing, though, to read about the comparisons between determining this cow's worth and determining the worth of a slave who has lost his hand, or a field that has been damaged.  It is not the slave who receives that amount of money, which is the difference between a slave who has a hand and a slave who has no hand.  It is the owner of that slave who receives the money.  How can this be considered to be 'fair' in a society where slaves will be freed within seven years at the most (unless the person enslaved chooses otherwise)?

A new Mishna teaches us that when a potter brings pots, or someone brings their produce, or a person brings their ox into another's courtyard without permission, liability for any damages rests with the visitor.  But if permission is granted, the homeowner is liable to pay for any damages incurred by being gored by the ox, or a dog biting the ox, or someone slipping and falling on the produce, or an animal being hurt while breaking the pots.  Rabbi Yehuda HaNasi disagrees, however.  He believes that the homeowner is always liable, even if permission to enter has been granted.  The only time he is not liable is when he agrees to safeguard the visitor's animal or property and he cannot do so.

The Gemara focuses on how to determine responsibility for specific, difficult actions.  For example, if the visiting animal eats poison, who is responsible?  what if it eats from a poisonous plant?  Should it have know better? What if someone induces the animal to eat this poison?  What if someone is supposed to be safeguarding the animal?  How do we determine whether an animal is responsible for its own actions or whether a person must be assigned responsibility - and which person should be held responsible, anyway?  

It is continual interesting to notice that the rabbis consider some of their considerations to be completely assumed, obvious knowledge.  Most of the time, the 'common knowledge' of our Sages has nothing to do with my 'common knowledge' today.  However, sometimes the rabbis explain things that seem simple and obvious to me.  It is fascinating to note where our cultural contexts cross over each other and were we live in absolutely opposite understandings of 'truth' or how the world works. 

Saturday, 16 July 2016

Bava Kamma 46: Responsibility within the Home

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?

The Gemara reminds us that the burden of proof rests on the claimant.  Thus the accused does not have to defend the action of his his ox.  They speak of the nature of oxen; that risk-taking is part of working with oxen at all.  They consider some of the reasons that might influence a tragedy - perhaps a cow gores an ox, and the cow's baby is killed in the process.  This is an asset that has been depreciated. Should a quarter of damages be paid out?

We end our daf with another new Mishna: If a potter brings his pots into a homeowner's home and a pot breaks and hurts the homeowner's animal, damages are paid by the potter.  If the animal breaks a pot, however, the owner of the home is liable to care for the damages.  Similarly, if a seller of produce entered someone's home and the own'er's animal ate the produce, the owner is liable.  However, if the produce caused illness in the animal, the owner is responsible.  And if the seller was invited in but the owner, the owner is responsible for all that might go wrong while the seller his there.

Thursday, 14 July 2016

Bava Kamma 44: Owners and Consequences for an Ox Killing a Person

Before beginning a new Mishna, the rabbis finish their conversation regarding the punishment for an ox that gores an adult verses one that gores a child.  Whether it is a man, woman, girl or boy, an ox is stoned if it kills a person.  This is true whether or not the ox is mu'ad.  And it is true even though children are not obligated to keep mitzvot and women are only obligated to keep a smaller number of mitzvot.  

Our new Mishna teaches that an ox that kills accidentally is not liable.  To illuminate this, the Mishna tells us of an ox that rubs its back on a wall and the wall falls on a person, killing them.  It also describes an ox that intends to kill a Gentile who kills a Jew and an ox that intends to kill a non-viable fetus but kills a viable person.

The rabbis go straight to the questions that I asked myself: Is this like 'pit' where damages are caused because of the owner's negligence? Or is this like 'pebbles' where the damage is caused by an animal's indirect, unintentional action?  One of the conversations that the rabbis share with us describes the guidelines for punishment if one throws a stone into a crowd that is made up of people who will create different consequences if killed.  

For example, what if the crowd is half Jewish and half Gentile?  What if the crowd is all Jewish except for one man who is Gentile and considered to be "fixed in his place".  The legal status of anything that is fixed is like that of an uncertainty that is equally balanced.  Even if there is one Gentile in a group of nine Jews, the Gentile is considered to be fixed.  Uncertainty with capital law results in leniency.  Again, we are reminded that these sorts of punishments were very unwanted and very rare.  

Two more Mishnayot.  The first teaches that an ox belonging to a woman, an orphan, a steward, a convert who died without heirs, a desert ox and an ox that was consecrated are all subject to death for killing a person.  Rabbi Yehuda says that they are exempt since they have no owners.

The Gemara tells us that "ox" is said seven times in this Mishna - the first is meaningful and the others are superfluous.  Rabbi Huna suggests that Rabbi Yehudi would have been even more lenient that what was mentioned in the Mishna.  The Gemara teaches us that what is important is that the status of the ox at the time that the victim died is the same as the status of the ox when the owner of the ox stands on trial.

A final new Mishna before our daf ends:  When an ox is leaving court to be stoned and its owner then concerts it, it is not considered to be consecrated.  If the owner slaughters his ox at that time, the flesh cannot be eaten nor can anyone derive benefit from it.  If the ox was mu'ad, the bailee pays the full costs of the damages.  If the ox was tam, the bailee pays half of the cost of the damages.

Wednesday, 13 July 2016

Bava Kamma 43: Determining Punishment Based on Comparisons

The Gemara continues to work through possible meanings of our last baraita - who inherits what when a pregnant woman is assaulted and miscarries.  The rabbis consider whether the woman might have been a Canaanite maidservant who was emancipated (along with her emancipated-Canaanite-slave-husband, and both died without heirs.  They consider whether she might have been a divorcee who was subsequently impregnated by her ex-husband (illegally).   They discuss which scenarios would require damages to be paid - for damage, for pain.  And they discuss whether land or money should be used as payment.  If money is used, they consider the payment of a double portion.

If a slave was killed unintentionally, is the payment of thirty shekels still required?  Does this depend on whether or not one has admitted to the killing?  My question - if one admits to killing a slave unintentionally, does that count as a migo?  Why not deny the entire incident?  The rabbis move forward - is a ransom paid for a slave?  What if a fire was caused unintentionally? The rabbis remember to mention situations where the larger of two crimes would be punished, nullifying the less serious consequence.  

Some very disturbing situations, including a slave who catches fire, are used as examples.  And then the rabbis discuss what might be meant by the phrases "a slave" and "if a slave"; "a ransom" and "if a ransom".  Our daf ends with the beginning of a conversation about whether there are different consequences when an ox kills a minor and when it kills an adult.  Although minors are not punished as if they are adults if they kill, killing a minor is punished as if one has killed an adult.

Sometimes learning Bava Kamma feels like a long list of crimes and punishments.

Tuesday, 12 July 2016

Bava Kamma 42: When An Ox Causes A Miscarriage

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 rabbis spend as much time on these damages as they do on the damages that are incurred when an ox kills a slave.  The rabbis discuss how these issues might be connected: the owner of the ox should pay damages of thirty sela to the slave's owner, even if that slave is worth only one sela.  Does this suggest that the 'owner' of the fetus - and we are speaking of the woman's husband if the woman herself has not been killed as well - should be paid for his potential loss, regardless of the worth of the fetus?

The rabbis also argue about who should inherit the damages owed to a woman if that woman has died.  Her husband?  Her children? What if they are still married?  What if they are divorced?  What if both of them have died?

Clearly the rabbis debate about the valuation of people - and potential people - as we still duo today.  In antiquity, normative understandings of value included one's sex, age, physical and mental ability, and so on. These are listed in other dapim.  But the fetus... that is an interesting one.  Generally speaking, a fetus and an infant under one month old hold no monetary value (according to the ancient Jewish understanding of monetizing life to assess damages, not just for slavery accounting).  But here we see that the husband might be paid money for the fetus alone - not for other damages.  Likely I'm missing a piece of the puzzle here.  And/or the puzzle is quite complicated.

Monday, 11 July 2016

Bava Kamma 41: Every Life Has Value

First, the rabbis finish their conversation about a woman who has intercourse with an ox.  If the ox kills her through goring, it has killed her based on its nature.  But if it killed her through the act of beastiality, it has killed her while seeking pleasure.  Should the ransom be paid depending on whether or not the killing was done intentionally?  Bottom line, Rava's rule holds: an animal that is induced to kill is not punished for its behaviour.  Again, this raises questions about people who are induced to commit horrific crimes.

A new Mishna teaches us that an ox who kills a person is killed whether or not it was induced to kill. If the ox was forewarned, the owner pays ransom.  If the ox was tam, no ransom is paid.  If the ox kills a boy or if it kills a girl*, the same consequences apply.  If it kills a Canaanite slave or maidservant, that person's 'owner' is paid thirty sela whether that slave is worth one hundred silver coins or just one sell.  

The Gemara questions the specifics of how three people might have been killed.  The rabbis also discuss conspiring witnesses and owners who might lie about the behaviour of their animals.  Further, there is a question about whether or not the flesh of an ox that has gored and killed should be eaten.  When exactly are we prohibited from eating an animal?  The rabbis connect this with their earlier discussion of the animal's intention.  Did it intend to kill a 'non viable' infant but instead killed a viable person?  How might this change what is permitted/prohibited?

* Interesting that a girl is specifically mentioned here.  Often we hear about "a minor", which means a boy... unless the rabbis deem otherwise.  In this circumstance, girls are specified.  This occurs immediately before the rabbis discuss Canaanite slaves and maidservants - a specific payment regardless of their individual valuations.  This Mishna focuses on the importance of valuing anyone who is gored by an ox - not just the men, but even those who are valued the least.  Even the lives of girls and slaves and maidservants have worth.

Sunday, 10 July 2016

Bava Kamma 40: A Transgression That Is Beyond One's Control

The Gemara continues its discussion of an ox that is induced to gore.  The consequences that accompany an ox that has gored are only enacted when the ox intends to gore of its own will.  Today the rabbis consider what would happen in other related situations.  For example, can an ox that has been induced to gore and then kills a person subsequently be used as a sacrifice?  Do the rabbis wish to assert that such an animal is in fact tainted by its actions or not?

I can't help but think of cases that involve people, partially because of the end of today's daf.  In cases like that of Bernardo and Hamolka, where women were raped and murdered by Bernardo and his girlfriend Hamolka, it was established that Hamolka was not a fully willing partner in their heinous acts.  She was violently abused by Bernardo, too.  She may have been induced to kill.  Her sentence, in the end, was much lighter than that of Bernardo.  Now in our daf's discussion, the assumption is that there is either full responsibility or possibly half-responsibility.  In fact, the rabbis wonder about half-damages and full-damages if two people are equal owners of an ox that has gored and killed.  I wonder what the rabbis would say about a case where two people actually participated in killing a person when one induced the other to kill?

At the end of today's daf, we watch the rabbis engage in a conversation about beastiality.  The Gemara wonders about the responsibility of the owner of an ox that engages in beastiality with a woman.  They discuss what will happen to the woman - capital punishment, of course, for this transgression - but are more thoughtful when considering the consequence faced by the ox's owner. And whether or not that ox could be used as a sacrifice.  And so on.

The juxtapositioning of the responsibility of the ox and the responsibility of the woman is quite jarring.  In this particular situation, a woman is held responsible for her actions.  An ox is not, as it has been induced - seemingly by the woman - to engage in this illegal act.  However, I cannot imagine a situation where a woman would engage in intercourse with an ox unless she was forced to do so.  How did the rabbis even imagine that the physical and sexual prowess of women was powerful enough to engage oxen in intercourse?  What we know from modern pornography is that men are exclusively the directors of sexual activity that involves animals.  And that they are the ones who induce women - and animals - to engage in beastiality.  So how is it that a woman would be killed for those actions?

Of course we are responsible for our own actions - and yet the rabbis recognized two thousand years ago that we must address situations when guilt is more complicated.  Again we find an example of women as fully responsible adults while they are also under the almost complete ownership of their husbands or fathers. If only this example had included the complexity of women's independent actions... perhaps tomorrow's daf will help to illuminate this difficult conversation.

Saturday, 9 July 2016

Bava Kamma 39: Stewards and Safeguarding

Before beginning, a quick note about daf 38, which I did not blog about because I don't blog on Friday evenings.  Part of the Gemara explains blood stains and whether or not they are impure based on whether Gentile or Jewish women created those stains.  Something as unthinkable as blood stains must have been somewhat ubiquitous in ancient societies.  First of all, women menstruate.  Next, people did not have lots of extra clothing if something was stained.  Third, bleach and other highly effective stain removers were not available.  And so we are permitted to see a part of nicety that is ordinarily hidden from historical records.

On to daf 39, today's daf.  A new Mishna teaches that if an ox that gores belongs to a minor, a deaf-mute or an orphan, they are exempt from payment.  However if someone's ox hurts them or their property, they are to be paid damages.  We then learn that if the ox that belongs to a minor, a deaf-mute or an imbecile gores, a steward is provided with a warning.  Finally, we are told that a tam ox could become mo'ed, and a mo'ed ox could become tam, in which cases the warnings are changed, too.  Finally, we are reminded that this only applies to those oxen which are goring based on an innate desire to gore.  Those animals who are induced to gore are not held liable.

Where do the damages come from in these cases: from the superior property of the orphans, for example, or from the superior property of the stewards?  The rabbis are concerned that no one will wish to become stewards if they are forced to give up their own land.  Generally speaking, we are told, payment does not come from orphans, deaf-mutes or imbeciles.  Only in cases where a ketubah must be paid immediately  or in cases where the orphans are paying one of their parents' debts from that land are the damages taken from orphans.  This is to ensure that the orphans are not incurring greater debt over time.  Otherwise, stewards are paid and they are paid back when their charge is able.

Even if the minor grows up, the deaf-mute person is healed, or the imbecile becomes competent, it is not necessary to change the classification of his/her animal as either tam or mo'ed.  

The Gemara wonders about how much should be paid.  Half-damages is the standard payment.  Related to this is a conversation about how the animal may have been safeguarded.  Did the animal receive superior safeguarding or reduced safeguarding?  What would be the circumstances where an animal receives reduced safeguarding?  What would that look like?

Thursday, 7 July 2016

Bava Kamma 37: Species-Specific and Religion-Specific

A little story before a new Mishna: Chanan the Wicked slapped someone and was ordered to pay one half-dinar.  He only had a full, damaged dinar, which noone would break for him.  Eventually he slapped the man again and gave him the full damaged dinar to be in compliance with his expected punishment and pay off his fine.

The new Mishna discusses how to deal with forewarning.  Do we forewarn an ox only about one species at a time if it gores only one species?  Are people and animals forewarned together if an ox gores only one, or the other, or both?  Similarly, can an ox be forewarned only for Shabbatot if that is when it gores?  If so, we would know that the ox is tam again after it goes for three consecutive days or three consecutive Shabbatot without goring (the species about which the ox is forewarned).

The Gemara debates the notion of species.  They wonder about large animals versus small animals of the same species.  Could forewarning be transferred from one animal to another?  Or from one species to another? They also wonder whether a switch from forewarning of a man to an animal or vice versa could be considered to be a "reversal".  

The Gemara also compares forewarning regarding an animal that gores on Shabbatot to a woman's menstrual cycle.  If a woman shows a consistent cycle over three (or possibly four) 'months', that is considered to be her cycle.  For example, If her first day of menstruation is on the 15th, then the 16th, and then the 17th of consecutive months, her cycle is established as one month plus one day.

We are introduced to a second Mishna.  It tells us that we treat different victims differently.  An animal has to have an owner for that owner to receive damages.  That means that an ox that is consecrated and then gored does not result in half-damages - or any damages - for its 'temporary owner'.  Similarly, if a Jew's ox damages a Gentile's ox, damages are very different that if a Gentile's ox damages a Jew's ox.  Namely, the Gentile has to pay full damages while the Jew is exempt from payment.

We learn in our notes that generations of scholars have found this disturbing.  It was posited that the Gentiles in question must have been antagonistic, proselytizing Gentiles who were only present to harm Jews.  Otherwise it makes no sense to penalize Gentiles differently from Jews in this type of case.

Wednesday, 6 July 2016

Bava Kamma 36: Surplus Value and the Meaning of Money

Today's daf begins in Perek III and ends in Perek IV.  The Gemara ends its conversation about oxen that are suspected of injuring another person's property.  We are reminded again of the importance of credibility: if there are no witnesses to the goring, there must be a strong case against one of the oxen - or both of the oxen - in question.  Without a credible statement of fact, the court is not lenient.

Perek IV begins with a new Mishna about particularly wild oxen.  If an ox gores other oxen one ofter the other, its owner is liable to pay damages from the sale of the carcass of that ox.  From that, half of the damages incurred are paid to the owner of the last ox gored.  If money is left over, half of that amount is paid to the second last ox gored.  And so on.  We also learn that one gold dinar is worth fifty silver dinars.

The Gemara wonders whose opinion is described in this Mishna.  Perhaps the entire thing is the opinion of one Sage, but that doesn't seem to be possible.  Perhaps one Sage wrote the first half and another Sage wrote the second half.  Based on those considerations, the Gemara asks what is being taught in this Mishna.  Some options:

  • Ravina: if there is a surplus value (the last ox was injured less than the second last ox), it should be returned to the previously injured party
  • Ravin says that Rabbi Yehoshua in Jerusalem said: this Mishna tells us about the negligence of bailees, for each owner was in possession of the ox and allowed it to move along and injure other oxen
The rabbis consider that gold dinar, worth fifty silver dinars. They teach us that in daf 90, we learn that one who slaps* another owes that person either 100 dinars or a sela.  This may cover the cost of humiliation alone.  On the other hand, it may include costs for pain, medical expenses, loss of wages, and humiliation as well.  Which sela are we speaking of, the rabbis wonder, a Tyrian sela worth four dinars or a provincial sela worth a half of one dinar (or one eighth of a Tyrian)?  If a gold dinar has to be split in half, this means that people would need the physical coins to make twelve and one half dinars.  A provincial dinar could not be used in this context, for it cannot be split into equal coins.

Our daf ends with the rabbis discussing the value of one half dinar.  Is it worth collecting?  For oneself? For the poor?  I am trying to imagine how this might translate today.  Was it a quarter? A dime?  A nickle?  Most people would agree that one dollar is certainly worth collecting, so it must have been worth less that one dollar.  The notion of coins, ascribing value to a physical symbol of 'worth' is a such a bizarre, abstract concept.  Especially when that object we call a coin is representing the acknowledgement of pain in another person.

*usually interpreted as a slap in the face, but could be one who yells in his ear, or claps his hands to humiliate another person as if threatening to slap 

Tuesday, 5 July 2016

Bava Kamma 35: Animals, People, Humiliation, Intention, and Certainty

How smart is an ox?  Could an ox set fire to a haystack on purpose?  The rabbis wonder whether or not an ox might rub its back on a haystack to manage an injury.  In fact, we are told about one ox who had a dental problem and found a cure.  It walked into the family home and opened the lid of a container, drinking the alcohol inside.  The alcohol relieved the ox’s pain and acted as an anti-bacterial.

But can an ox intend to humiliate?   The rabbis agree that an ox cannot intentionally humiliate a person nor can it humiliate another ox.  A person who causes injury, however, can be held responsible for damaging another person even if his/her intention was only to injure that person.  We learn more about the comparison between punishments for animals and for people who do injury to others according to Rabbi Chizkiyya.  He uses Leviticus (21:24) to prove that one who kills an animal and one who kills a man are comparable.  That one verse states that animals that kill are fined (well, their owners are fined) while people who kill are put to death.    

Even though they are punished differently, Rabbi Chizkiyya suggests that in both cases there is no mention of intention, advertence, ascent (whether the injury was done from below or from above), or the importance of monetary restitution.  
In fact, we are reminded that when a person is put to death, s/he is not liable to pay other fines – the more serious consequence, death in this case, cancels out the less serious consequence, monetary payment in this case.  Rava argues that this case does not offer a perfect analogy. 

A new Mishna teaches us about the importance of certainty in cases where injury is blamed on an ox.  We are told about a number of cases where one ox or two oxen chase another ox and one or another are injured.  Perhaps one ox was tam and the other mo’ed.  Perhaps one ox was large and the other small.  Perhaps there were witnesses to some but not all of the interaction between oxen.  If there is noe learn that there is an assumption that the large would cause injury; the mo’ed would cause injury.  If the owner of the accused ox made a counter-claim, the burden of proof would rest upon him/her.

The Gemara begins with “what would Sumachos say?”  Sumachos  believed that property of uncertain ownership should be divided without one owner having to prove his/her claim.  Rabba bar Natan agrees:  in a case where a person says that he is owed wheat and the accused says that it is true – except that he owes barley, the accused is exempt from any payment at all.  Is this because of the principal of migo?  We learn in a note that such a claim would have to be made in a court setting, for otherwise the accusation of “you owe me wheat” might have been said in jest.  Or the accuser could say that it was said in jest.  Apparently a litigant who admits to wrongdoing is worth one hundred witnesses, and so an admission is taken very seriously.  However, a number of geonim suggest that if barley AND wheat were owed, the accused is not excuses from payment.  Rashi explains our Gemara: if a person accuses someone in a court of law that he is owed wheat, that statement is binding and exclusive.  The admission of owing barley is meaningless, for the claim of barley owed was not brought into the court.

The rabbis discuss this case at length.  A note teaches us that the person who claims that s/he only owes barley must take an oath of inducement .  This oath creates a certainty.  Certain and uncertain claims are treated very differently.

An amazing notion, the idea that an oath might prove certainty.  In our day, an oath proves that a person is willing to take an oath – no more, no less.  The idea of authority, whether that might be G-d or judges or a legal system or even teachers or parents, has been diluted to such an extreme that it is difficult to ever claim that we have grasped the “truth” of another person.  That change has come with many positive and many negative consequences, of course.  But our society is so very different from the one described by the rabbis when it comes to faith in G-d’s ability to see us, know us, praise us, and most notably to punish us.  Without that deterrent, what is an oath?

Bava Kamma 34: Manipulating the Value of an Ox Waiting to be Sold

What if an ox rises in value before damages are paid?  What if it diminishes?  The rabbis discuss how damages should be paid if there is a change in the value of the ox - which is how we determine the value of damages - between the time of injury and the time of payment.

A new Mishna discusses what should be done when damages are done by one ox who gores another and the live ox is sold for the money that is divided in half (Exodus 25:35).  Perhaps the carcass of a dead ox should be treated similarly.  The Gemara discusses the implications of this Mishna.  Could the change in value of an ox have something to do with the injury incurred?  

Another Mishna tells us about cases where we are liable for acts done by our oxen but not by ourselves and where we are liable for acts done by ourselves but not by our oxen.  Some examples of liability include:

  • if he knocks out the eye or tooth of a slave
  • if he humiliates another person
  • if his ox injures one's father or mother
  • if his ox sets fire to a haystack on Shabbat
Conversely, he is exempt if:
  • his ox knocks out the eye or tooth of a slave
  • his ox humiliates another person
  • he himself injures his father or mother
  • he himself sets fire to a haystack on Shabbat
The Gemara begins with a reminder about halachot of Shabbat.  Those exemptions are based on the teaching that only destructive labour is liable on Shabbat - including setting a fire or injuring a person. However, one is exempt for injuring someone only if they require the blood for their dog,  Similarly, one is permitted to set a fire only if one requires the ashes.

Sunday, 3 July 2016

Bava Kamma 33: Appraisal of Worth

Today’s daf is another list of cases to help the rabbis explain who pays for which damages in different circumstances. 

Asking about the welder who kills a person accidentally with a flying chip when that person enters his workshop, the rabbis wonder if the person was his apprentice.  We learn from this conversation that apprentices generally thought very highly of their mentors.   They would never be expected to enter a workshop if their mentor said to stay out. 

A particularly familiar example is that of a person who throws a stone and another person steps into the stone’s path, killing him/her.  Is the thrower of the stone liable?  The rabbis ask some questions in this case, but their answer is quite clear: the thrower of the stone is exempt, regardless of other details, if another person unexpectedly stands in the way of his/her stone.  This brings to mind the laws in place when a driver hits a person or a cyclist who suddenly run/ride in front of the car – which is like a thrown weapon, really.  Our legal system also takes into account the intentionality of the person at fault.

We also learn about salaried labourers who enter the domain of their employer to retrieve their earnings.  If they are gored by the owner’s ox or bitten by the owner’s dog, and they weren’t invited in, is the owner liable?  If so, for which damages?

A new Mishna teaches us about who pays whom when two oxen gore each other – when both are tam, when both are mo’ed, and when one is tam and the other is mo’ed.  Of course this is dependent on which ox does more damage to the other. Half-damages are generally paid when there is no forewarning while full damages – through one’s best land – are paid when the owner has been forewarned about his/her ox.

This is also discussed regarding a person who injures an ox while the ox injures a person.  People can never be tam, we have learned; we are always forewarned.  Does that mean that we must pay full damages if we injure an ox mare than it has injured us?  Rabbi Akiva teaches that it does not matter whether or not the ox was tam.  If an ox gores a person, the owner is considered to have been forewarned.

The Gemara determines that in the case of an ox goring another ox, only the cost of damages must be paid.  Unlike in the case of a person, where the four types of indemnity must be paid (loss of wages, pain, humiliation, medical costs), only damages for the injury itself are paid.

One last Mishna finishes off our daf through amud (b).  We are taught that when an ox worth one hundred dinars kills an ox worth two hundred dinars, and the carcass is worthless, the owner of the smaller ox should give that ox to the owner of the dead ox as payment of damages.

The Gemara asks a host of questions.  Some of those include:
  • ·      how one should appraise the exact value of each ox
  • ·      what to do if the ox were already consecrated to the Temple
  • ·      whether or not a consecrated item can be sold in difficult circumstances
  • ·      whether or not the meat of the ox could be sold to pay damages
  • ·      whether or not damages must be paid through one’s superior-quality land
  • ·      whether or not one can sell his/her liened property to pay damages (when we do not actually own our liened property)
  • ·      circumstances where people are not liable for what they do to another person’s property