Mishnah Bava Kamma, chapter 1

1. There are four primary causes of injury: the ox and the pit and the crop-destroying beast and fire. 2. [The distinctive feature of] the ox is not like [that of] the crop-destroying beast, nor is [the distinctive feature of] either of these, which are alive, like [that of] fire, which is not alive; nor is [the distinctive feature of] any of these, whose way it is to go forth and do injury, like [that of] the pit, whose way it is not to go forth and do injury. 3. What they have in common is that it is their way to do injury and that you are responsible for caring over them; and if one of them did injury whoever [is responsible] for the injury must make restitution [to the damaged party] with the best of his land. The four causes of injury mentioned in the first clause mishnah are all derived from the Torah: the ox (Exodus 21:35-36), the pit (Exodus 21:33-34), the crop-destroying beast (Exodus 22:4) and fire (Exodus 22:5). The mishnah then raises a question generally asked in midrashic texts (texts that explain the Torah): why does the Torah need to mention all four types of injury? In other words, why couldn’t the Torah have mentioned one, two or three primary causes of injury, from which we would have learned the rest? The Rabbis believed that no law in the Torah was superfluous and therefore each must come to teach us something that we could not have learned from the other laws. The mishnah therefore explains that each “cause of injury” has its unique characteristic and therefore we would not have been able to derive the laws of the other causes of damages without all four examples in the Torah. Note how the mishnah is both dependent on, yet independent from the Torah. This is typical of Jewish oral Torah; it explains the Torah yet it can usually be understood on its own. Questions for further thought:  What type of injury does an ox cause? What therefore is the difference between an ox and a crop-destroying beast?  The Mishnah tells you things that you are obligated to watch and that if they are yours and they injure you will have to pay the damaged party. Is there anything you can already imagine for which a person will not be obligated if it causes damage? (We will learn the answers to these questions as we go on, but it is worthwhile to start thinking of them now).

1. Anything that I am responsible to guard, I have rendered it possible to do injury [for which I will become obligated]. 2. If I have partially rendered it possible to do injury, I must make restitution for that injury as if I totally rendered it possible to do injury. 3. When one damages [property that fits all of the following categories]: property that does not have “sacrilege” [i.e. sacrificial animals or property that belongs to the Temple in Jerusalem], property that belongs to other members of the covenant [Jews], property that is owned, and the injury is done in any place other than the private domain of the injurer and the common domain of the injured and injurer, in these cases the injurer must make restitution for the injury with the best of his land. This mishnah teaches several laws, albeit in language that is difficult to render into coherent English: 1) In order to be obligated to pay damages, the damage must be caused by an object over which I have an obligation to watch. For instance, I am not responsible for full damages the first time my ox gores another ox, since I had no way of knowing that my ox gores. However, the third time my ox gores, I am obligated because my ox is now known as a “goring ox” which I am obligated to guard carefully. 2) If I partially enable damage to happen I am obligated for full damages. For instance if there was a pit that was already 4 feet deep, and a six foot deep pit will kill an animal which falls into it, and I came along and deepened the pit by two feet, thereby making a four foot pit into a six foot pit, I am obligated as if I dug the whole pit. 3) A person is obligated for damages caused only to certain types of property, namely property that belongs to Jewish individuals when the damages are done either on the injured person’s property or in the public domain. In all other cases the owner of the damaging object is exempt. Questions for further thought:  If a person only created part of the object that caused the damage, why is he obligated? Should the person who dug the first four feet of the pit also be obligated to join in paying the damages?  If a person enters my property and my animal injures his belongings, for instance my animal eats his expensive leather shoes, why am I not obligated? Could there be a way that I might become obligated for this type of damage?

1. Assessment [of injury] in money or things worth money must be made before a court of law and by witnesses that are free and Children of the Covenant (Jews). 2. Women may be parties in [suits concerning] injury. 3. The injured and the injurer [in certain cases may share] in the compensation. 1. The first clause of the mishnah deals with assessing both the monetary amount of the damages and the monetary evaluation of the payment that the injurer will give to the injured party. For instance, if my ox gores your ox and your ox dies, we need to go to the court to assess two things: 1) how much your ox was worth, 2) how big of a piece of land must I give you in order to compensate you for your loss. These assessments must be done in front of a court, which according to Jewish law must have three judges. The witnesses who testify in cases involving the laws of damages must be free and Jewish. 2. The second clause of the mishnah states that with regards to damage law, men and women are equal. This means that if a man or his property damages a woman or her property, or a woman or her property damages a man or his property, in all cases we judge according to the same law. Perhaps the reason why the mishnah feels the necessity to state this law is that the Torah uses the word “ish”, man, in many of the verses concerning damage law (Exodus 21:33, 35, 37, Exodus 22:4, 6, 9, 13). One may have explained that according to the Torah only men’s damages are considered to be important. The mishnah states the opposite, that women are also a part of damage law (see also Exodus 21:28). 3. The final clause of the mishnah refers to the case of “half damages”. When an ox that is not known to gore gores another ox, the owner of the goring ox is only obligated for half damages, since his ox was not known to be a “goring ox”. In this case it is as if the injurer pays half for the dead ox and the injured also pays half.

Questions for Further Thought: • Why must property evaluation be done in front of the court? Why can’t people just come to an agreement? • We have seen now in several mishnahs that damage laws as described in the Torah and in the mishnah apply only to free Jews? Why do you think this is so?