Bava Kamma 2a — the Talmud in English

Mishna:

The first Mishna opens with an enumeration of the principal categories of damage-doers mentioned in the Torah, and explains the necessity of specifying all of them in the Torah:

Four principal categories of damage-doers –

There are four principal types of damage-doers, explicitly set forth in the Torah, and these are:

a.

The ox

that causes damage

In the introduction to this chapter it is explained that there are three types of damage included in “the ox that causes damage”:

The foot – an animal that tramples with its feet and damages an object in the course of its walking.

The tooth – an animal that eats produce in another person’s field, for its pleasure.

And the horn – an ox that gores with its horns with the intention of causing damage, and has no pleasure from its damage, and did this in an unusual manner, for this is not its customary behavior.

And the amoraim disputed in the Gemara whether “the ox” mentioned by the Mishna means only damage of “the foot,” or also damage of “the tooth” and “the horn.”

b.

And the pit –

If a person dug a pit, or opened a pit that had been covered, and an ox or a donkey fell there.

c.

And the maveh –

The amoraim disputed in the Gemara in the explanation of “the maveh”: whether it is an ox that damages the property of his fellow by eating, and it is the principal category of damage called “the tooth”; or whether it is “a person who causes damage,” who damages the property of his fellow with his body.

d.

And the fire –

If a person kindled a fire in his domain, and the fire spread, went out, and damaged the property of his fellow.

The Mishna now explains the necessity for writing all four principal categories of damage in the Torah, since they differ in their essence and in their characteristics, and therefore it was impossible to derive one from the other.

For had the Torah written only the principal category of damage of “the ox,” “the maveh” would not have been learned from it, since:

The ox is not like the maveh,

the degree of leniency of the ox is not like the degree of leniency of the maveh, for the maveh is more lenient. That is to say, the ox that causes damage possesses a severe characteristic unique to it that the maveh does not possess. And this characteristic is sufficient to make one liable. Therefore, had the Torah written only “ox,” the “maveh,” which is more lenient than it, would not have been learned from it.

And conversely, had the Torah written only “maveh,” “the ox” would not have been learned from it, because:

And the maveh is not like the ox.

The degree of leniency of the maveh is not like the degree of leniency of the ox, for the ox is more lenient. That is to say, the maveh possesses a severe characteristic unique to it that the ox does not possess. And this characteristic is sufficient to make one liable. Therefore, had the Torah written only “maveh,” “the ox,” which is more lenient, would not have been learned from it.

Now, after the necessity of writing the ox and the maveh has been explained, the Mishna explains that there is also a need to write the principal category of damage of fire in the Torah, because its law cannot be learned from the ox and the maveh, since there is room to say that the ox and the maveh possess a common characteristic that is the cause of their liability for damages, and this characteristic does not exist in fire; therefore, the liability for fire cannot be learned from them, namely:

And neither this nor that,

the ox and the maveh, which have a reason for liability because of their special characteristic,

because they possess the breath of life,

and are able to go and cause damage by their choice,

are like fire, which does not possess the breath of life,

and it has no ability to go and cause damage by itself, אלא if the wind carries it. Therefore, had the Torah written only “ox” and “maveh,” fire, which is more lenient than they, would not have been learned from them.

The Mishna continues to explain why the Torah wrote “the pit,” rather than relying on the possibility of learning this from the other damage-doers:

And neither this nor that,

the ox, the maveh, and the fire, which have a reason for liability because of a special characteristic that all three possess,

are accustomed to go and cause damage

that is, these damage-doers go to the one who is damaged,

are like the pit, which is not accustomed to go and cause damage,

for the pit is fixed in its place, and it is the one who is damaged who comes to it. Therefore, had the Torah written only the other damage-doers, we would not have learned from them to make the owner of the pit liable even for damages that occurred because of falling into the pit, since the pit is more lenient than they. The Mishna concludes and says: Indeed, each damage-doer has a different characteristic, but all of them together have a common factor, which makes them all liable for payment of damages:

The common aspect among them,

in all the damage-doers, is that

their way is to cause damage,

and their guarding is upon you,

since they are your property, you have become liable to guard them so that they will not cause damage.

Expansion of the investigation of the later authorities: what makes one liable for payments a. In the Torah we find that a person is liable to pay for damages caused by his property, but we do not find explicitly that he has an obligation to guard his property so that it will not cause damage. However, from the wording of the Mishna, “and their guarding is upon you,” it follows that there is an obligation of guarding upon him, as was explained in the name of the Nimukei Yosef. And so the Tur wrote, section 389: “So too, he must guard his property so that it will not cause damage, and if it caused damage he is liable to pay, and so forth.” Thus there is an obligation of guarding. And in the Birkat Shmuel [section 2, letter 1] he brought in the name of Rabbi Hayyim that there is a category of prohibition and an obligation of guarding in addition to the payment obligation, from the fact that we find a death liability at the hands of Heaven and kofer for his ox that killed a person. Necessarily, there is an obligation of guarding, and the kofer obligation is for his negligence, on account of which a person was killed. And we learn this from what is written, “and he did not guard it,” which implies that he was required to guard it. And since it has been explained that there is an obligation of guarding apart from the payment obligation, and we find [in chapter “Ha-Kones”] that if he guarded properly he is exempt, the later authorities were uncertain concerning the reason for the obligation of damage payments when he did not guard properly: whether it is because his property caused damage, except that if he guarded properly and the animal caused damage despite his guarding, he is exempt because of circumstances beyond his control; or perhaps his liability is because the Torah obligated a person to guard his property from causing damage, and if he was negligent and did not guard properly, the Torah obligated him to make payments. The reason that makes him liable is that he was negligent in guarding. And in Even HaAzel [beginning of “Damages of Property,” subsection 16] he wrote that there is a practical difference in a case where the owners did not guard their animal properly, but afterward another person guarded it [not on behalf of the owners], and it dug its way out and caused damage. If the liability is for failure to guard, here there was guarding by another, and although the owners did not guard properly, nevertheless the damage-doer was guarded, and he will be exempt. But if the liability is because his property caused damage, then here, since he did not guard it, he cannot exempt himself on the grounds of circumstances beyond his control, for he did not guard it. b. And in the Hiddushei Rabbi Shmuel there it is brought that the Chazon Ish was uncertain: if the owners of the damaging property say that they guarded it properly, and therefore they should be exempt from payment, upon whom does the burden of proof rest? Must the owners establish it through witnesses, or must the injured party establish that the owners were negligent in guarding? And he concludes: it seems that the owners must establish it, because since the damage is before us, the damage-doer who claims that he guarded properly is considered one making a novel claim, and the obligation to establish it rests upon him. However, the Penei Yehoshua wrote below [56b] that the injured party must bring proof. Apparently, this law depends upon the investigation of the later authorities. For if his liability is because of the damaging property, and the guarding is merely a reason for exemption, then the damage-doer must bring proof, since there is here a definite reason creating liability and a doubtful matter creating exemption; and in every such case, the damage-doer must bring proof to exempt himself. However, according to the first side, that negligence in guarding is what creates the liability for payment, then certainly the injured party must bring proof that the damage-doer was negligent in guarding his property, and that there was here a reason creating liability, as the Penei Yehoshua holds. c. Even HaAzel and Rabbi Naftali Tzvi Berlin wrote that according to the first side, that one is liable because his property caused damage, the guarding is a matter that creates exemption: if he guarded, it is a case of circumstances beyond his control. And we brought that according to this Eilat HaShachar raised the question: what is the meaning of “and their guarding is upon you”? It is not a reason for liability, but only establishes that it was not a case of circumstances beyond his control; what relevance is there to saying this? And in the Hiddushei Rabbi Shmuel he raised a difficulty from the Mishna below [9b]: “With regard to anything for which I became obligated in its guarding, I prepared its damage.” And Rashi explained there that through not guarding it, I prepared and made that damage possible. It is explained by this that “I became obligated in its guarding” is needed in order to make him liable for damages caused by his property. But according to Even HaAzel and Rabbi Naftali Tzvi Berlin, negligence is not at all what prepares and makes one liable for payments; rather, the opposite: where he guarded properly, the guarding exempts him from paying. The wording of the Mishna does not appear to mean this. Therefore the Hiddushei Rabbi Shmuel explains that even according to this side—that the liability is because his property caused damage—negligence in guarding is what causes the liability, and it makes him responsible and liable for the damages caused by his property; without this, he has no connection to the act of his property, unless he prepared its damage. And so he wrote in the Hiddushei Ha-Rav Shimon Shkop [section 1], that it is a condition creating liability; the meaning is as explained, that it is a factor and preparation in the liability, since the act of his property alone does not create liability without the addition of preparation for damages. And according to the second side, we hold that only the fact that he did not guard it makes him liable, even if it is not his property. The difference between the two sides is whether it is necessary that it be his property in order that he be obligated to guard it. [Tosafot already wrote Tosafot [56b] that it need not be his according to the laws of acquisition; rather, anything under his control and in his domain to guard is called “his property” with regard to damages. But in any event, the designation “his property” is required for the essential liability.] According to this, what the Penei Yehoshua wrote—that the injured party must bring proof that the damage-doer did not guard—can be explained according to both sides, for even according to the side that his liability is for the act of his property, nevertheless “I became obligated in its guarding” is also required, for this is what causes him to be liable for the acts of his property. If so, it is properly for the injured party to bring proof that the cause of the liability was completed. d. However, in Rashi at the beginning of chapter “Ha-Kones” he wrote: “He is exempt, for he guarded it; what could he have done?” It follows from his wording that if he guarded it, he is exempt because of circumstances beyond his control, as Even HaAzel and Rabbi Naftali Tzvi Berlin said. e. Concerning the essential investigation, Rabbi Shimon Shkop proved that his liability is for the act of his property, from the fact that if he was negligent in guarding it, and the ox went out, and the owners declared it ownerless before it gored, he is exempt [so it appears below, 13b]. And if negligence in guarding were the factor creating liability, he was negligent; what difference does it make to us that at the time of the damage it was no longer his ox? He likewise proved it from the Gemara below [4b], which distinguishes between four guardians who were negligent in guarding—that these are damages of the body—and the four principal categories, which are damages caused by property. That is to say, they are not liable on account of themselves, but only for what others [their property] did. And so they said in the Gemara that the four principal categories are “damage by means of an act,” meaning what his property does actively, while in the case of guardians it is “damage that occurs by itself”: they are liable for what was entrusted to them that was lost from the world, and not for what others actively did. It is proven that liability for damages is for the fact that his property caused damage. And similarly Rabbi Naftali Tzvi Berlin proved it from below [44b], where kofer is called the liability of the owners, whereas the damaging ox is called the liability of the ox. And if we say that negligence in guarding is the factor creating liability, then in the case of the ox too it is the liability of the owners, like kofer. And in “ Even HaAzel” he deduced this from the wording of Maimonides: “the owners are liable to pay, for their property caused damage,” and see further there.

And when it caused damage

each one of them,

he is liable [

liable]

the one causing the damage [

the owner of the damaging thing]

to pay payments for the damage,

and the payment is

from the best of the land.

For if the one causing the damage does not pay with money but with land, he must pay from the superior [the finest] land among the lands. However, if he pays with movable property, he may pay with whatever he wishes, because with movable property everything is included within “the best.”

And from this general rule one can learn concerning every other type of damaging agent whose manner is to cause damage and whose safeguarding is upon you: if it caused damage, its owner becomes liable to pay payments for the damage from the best of the land. And in the Mishna below [15a], and in the Gemara [below 6a], it will be explained which damaging agents the Mishna intends to include by this.

Gemara:

The Gemara deduces from the wording of the Mishna:

from the fact that it teaches,

from the fact that the tannai taught in our Mishna “four

fathers

of damages,”

by implication

you learn from this

that there are

also “

derivatives

of damages” [types of damaging agents resembling the fathers, and therefore considered their derivatives], for if the “derivatives” do not exist for the “fathers,” why are they called “fathers of damages” by this name?

And now the Gemara discusses the law of the derivatives: whether

their derivatives

of the fathers of damages are

like them,

that is, whether the law of the derivatives is equal to the law of the father,

or

perhaps their derivatives are

not like them,

for their law is not equal to the laws of the father?

And the Gemara gives the reason for the uncertainty: since we find the concept of “fathers and derivatives” in other matters as well, and in some of them it is explained in the Mishna that the law of the derivatives is equal to the law of the father, while in some of them the law of the derivatives differs from the law of the father, as the Gemara brings below, it is therefore necessary to be uncertain what the law of the derivatives is with regard to damages.

And first the Gemara brings the law of the derivatives with regard to the labors of Shabbat:

Concerning Shabbat, we learned [

Shabbat 73a]:

the fathers of labors—

forty minus one.

There are thirty-nine types of principal labors, which render those who perform them liable on Shabbat: if he performed them unwittingly, he is liable for a chatat; and if deliberately, he is liable to stoning.

And there too the Mishna used the expression

“fathers,”

which implies

by implication

from

this that there are “derivatives.”

And concerning the labors of Shabbat,

their derivatives are like them,

for one who performs them on Shabbat, whether unwittingly or deliberately,

it makes no difference [

the law does not differ]

a father

of labor, for if he performed the labor unwittingly, he is required to bring for it a

chatat, and

it makes no difference [

the law does not differ] whether it is a

derivative, for if he performed it unwittingly, he is required to bring for it a

chatat.

That is, the law of the father and the derivative is equal in this: one is liable for a chatat for performing them unwittingly.

And likewise their law is equal with regard to liability for deliberate performance: if he performed the labor deliberately and after warning,

it makes no difference [

the law does not differ] whether the law of performing a

father

of labor is that the one who performs it is liable for

stoning, and it makes no difference [

and the law does not differ] whether it is a

derivative,

whose law is

stoning.

That is, whether for the father or for the derivative, one is liable to stoning for performing them deliberately.

Thus, the derivatives of the fathers of labors on Shabbat are like them.

And the Gemara continues and explains: since the derivatives of the labors of Shabbat are like them, then

what difference is there between a father and a derivative?

What is the difference if the labor is called a “father of labor,” or is called by the name “derivative”?

A practical difference:

there is a difference between them in this matter:

if he performed two fathers together,

if a person performed unwittingly two labors, each one of which is considered a father of labor, even if he performed them during one period of unawareness [during which he did not know between performing the two labors that there was a prohibition in performing these labors on Shabbat],

or alternatively, two derivatives together,

and likewise if he performed unwittingly two labors, each one of which is considered a derivative of a different father, and he performed them during one period of unawareness,

he is liable

for a chatat

for each one and each one,

he is liable for a chatat for each labor separately.

But

however,

if he performed a father and its derivative,

if he performed unwittingly, during one period of unawareness, two labors, one of which is considered a “father” of labor and the other of which is considered a “derivative” of that same “father” of labor,

he is liable for only one.

He is liable for only one chatat for both of them.

And this is the difference between whether the labor was considered a “father” in its own right, in which case he would be liable for two chatat offerings, or whether it is a derivative of the father of the labor, in which case he is not rendered liable for the derivative in its own right when it is performed together with its father; rather, he brings one chatat offering to atone for the father and its derivative.

But the Gemara raises a difficulty: this answer is only according to the view of the Rabbis, who hold this way [Shabbat 75b]. Yet it still presents a difficulty according to the view of Rabbi Eliezer, who disputes them:

and according to Rabbi Eliezer, who renders one liable for a derivative [

for a derivative] in its own right also

in the place of the father [

Keritot 16a], even if the derivative was performed during one period of unawareness together with its father of labor, and he becomes liable for two chatat offerings, both for the derivative and for the father, then the question still remains in its place:

why does he call it “father,” and why does he call it “derivative”?

For what purpose is this labor called by the name “father,” and that labor by the name “derivative”? That is, what is the difference between whether the labor is called “father” or “derivative,” seeing that in either case he is liable for two chatat offerings for performing them?

And the Gemara answers: indeed, according to Rabbi Eliezer there is no difference in the law whether the labor is called a father or a derivative; and the fact that one labor is called a father and the other a derivative is only because

this one that was

important in the Tabernacle,

a labor that was in the Tabernacle and was important,

he calls it a father,

it is the one called a father, whereas

this one that was not important in the Tabernacle,

a labor that was not in the Tabernacle and is not important,

he calls it a derivative,

it is the one called a derivative.

And now the Gemara continues and brings another matter in which there are fathers and derivatives, and there we find that their derivatives are not like them: concerning

ritual impurities,

concerning the levels of impurity,

we learned,

we learned in the Mishna [the beginning of Tractate Kelim]: “

The fathers of impurities”: the level of impurity that has the power to impart impurity to a person and to vessels is called “a father of impurity.” And these are the things considered “fathers of impurity”:

A creeping creature—

each of the eight creeping creatures specified in the Torah [Leviticus 11:29–30], which impart impurity in their death to a person and to vessels.

And a seminal emission [

to include one who touches it, as explained in the Gemara in Tractate Niddah 43b].