Bava Kamma () is the first of a series of three
Talmud
The Talmud (; ) is the central text of Rabbinic Judaism and the primary source of Jewish religious law (''halakha'') and Jewish theology. Until the advent of Haskalah#Effects, modernity, in nearly all Jewish communities, the Talmud was the cen ...
ic tractates in the order
Nezikin
''Nezikin'' ( ''Neziqin'', "Damages") or ''Seder Nezikin'' (, "The Order of Damages") is the fourth Order of the Mishna (also the Tosefta and Talmud). It deals largely with Jewish criminal and civil law and the Jewish court system.
Nezikin co ...
("Damages") that deal with civil matters such as damages and
tort
A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with cri ...
s. The other two of these tractates are
Bava Metzia
Bava Metzia (, "The Middle Gate") is the second of the first three Talmudic tractates in the order of Nezikin ("Damages"), the other two being Bava Kamma and Bava Batra. Originally all three formed a single tractate called ''Nezikin'' (torts or ...
('The Middle Gate') and
Bava Batra
Bava Batra (also Baba Batra; ) is the third of the three Talmudic tractates in the Talmud in the order Nezikin; it deals with a person's responsibilities and rights as the owner of property. It is part of Judaism's oral law. Originally it, to ...
('The Last Gate'): originally all three formed a single tractate called ''Nezikin'', each "Bava" meaning "part" or "subdivision." Bava Kamma discusses various forms of damage and the compensation owed for them.
Biblical laws dealing with the cases discussed in Bava Kamma are contained in the following passages: , and . The principle that underlies the legislation in this respect is expressed by the sentence, "He that kindled the fire shall surely make restitution".
Bava Kamma consists of ten chapters which may be grouped as follows: damage caused without criminality (chaps. 1-6); damage caused by a criminal act (chaps. 7-10).
Mishna
Damage caused without criminality
Two types of damages are dealt with: (1) damage caused by agents in their normal condition; (2) damage caused by agents in their abnormal condition. An instance of the first class of agents is an ox treading upon things that are in his way and thus damaging them, or eating things that are in his path. An instance of the second class is the case of a Goring Ox, as under normal circumstances an ox does not gore.
Agents in their normal condition
The Mishnah (1:1) identifies four of the heads or agents of damage ("", literally, fathers of damages): Ox (''shor''), Pit (''bor''), Mav'eh (meaning either damages caused by man, or those caused by an animal's feeding), Burning (''hev'er''). These four agents correspond to those mentioned in
. V. 5 ,
. V. 5–6
The law concerning the compensation in these cases is expressed in the Mishnah (1:1) thus: "These four agents have in common the circumstance that they usually cause damage; that the owner has the duty to prevent the damage; and that if he fails to do so, on damage being done he must pay full compensation, with the best of his property" (compare
. V. 5. Before, however, giving the detailed regulations for these four kinds of damage, the Mishnah proceeds to the discussion of the second class of damages, those caused by agents in an abnormal condition.
Agents in their abnormal condition
The principal distinction in the second class is between harmless ("") and warned (""). The law of compensation in these two cases is as follows: In the case of an animal previously reputed harmless (''tam''), the owner has to compensate for half the damage, unless half the damage exceeds the whole value of the animal causing the damage. In a case where the owner has been warned (''mu'ad''), he must give full compensation for the damage, without regard to the value of the damaging animal (compare ).
The law of applies to the four kinds of damage done by animals or agents in their normal condition. In addition to these the Mishnah (1:4) enumerates the following: man, and wild beasts owned by a man—such as the wolf, the lion, the bear, and the leopard; also the serpent. Of man it is said, "Man is always fully responsible (), whether he cause damage intentionally or unintentionally, whether awake or asleep" (2:6). This rule is illustrated by various instances given in the third chapter (1–7).
The remaining part of the third chapter, the fourth, and part of the fifth (1–4), contain regulations concerning the compensation for damage caused by a goring ox.
Damage by pit, grazing, or burning
Following the order of the given in the beginning of the tractate, the damage caused by a pit is discussed in the second part of the fifth chapter; and the sixth chapter is devoted to the remaining two causes of damage, grazing (1–3) and burning (4–6). Of the last section the following law is noteworthy:
:"If a
camel
A camel (from and () from Ancient Semitic: ''gāmāl'') is an even-toed ungulate in the genus ''Camelus'' that bears distinctive fatty deposits known as "humps" on its back. Camels have long been domesticated and, as livestock, they provid ...
laden with
flax
Flax, also known as common flax or linseed, is a flowering plant, ''Linum usitatissimum'', in the family Linaceae. It is cultivated as a food and fiber crop in regions of the world with temperate climates. In 2022, France produced 75% of t ...
passes through a street, and the flax catches fire from a candle that is inside a shop so that the whole shop is thereby set on fire, the owner of the camel is held responsible for the damage; if, however, the candle is outside the shop, the owner of the shop is responsible. The exemption to this liability is in the case of
Hanukkah
Hanukkah (, ; ''Ḥănukkā'' ) is a Jewish holidays, Jewish festival commemorating the recovery of Jerusalem and subsequent rededication of the Second Temple at the beginning of the Maccabean Revolt against the Seleucid Empire in the 2nd ce ...
lights, as per Rabbi Yehuda's opinion".
Damage caused by criminal acts
There are three types of damages caused by a criminal act: (1) by theft (chapter 7); (2) by violence (chapter 8); (3) by robbery (chapters 9-10).
(1) "If a man steal an ox or a lamb and slaughter the same or sell it, five cattle shall he pay for the ox and four sheep for the lamb" (). The regulations as to how to apply this law under various circumstances are contained in 7:1–6.
(2) The compensation for injuries as the result of violence is discussed in chapter viii. Such compensation includes five items: for the permanent loss (""), if any, in earning capacity; loss of time (""); pain (""); cost of the cure (""); and insult (""). The scale of compensation for an insult, as given in the Mishnah, seems to indicate the maximum compensation, for the Mishnah adds, "The principle is that the amount depends on the injured man's station in life."
Rabbi Akiva
Akiva ben Joseph (Mishnaic Hebrew: ; – 28 September 135 CE), also known as Rabbi Akiva (), was a leading Jewish scholar and sage, a '' tanna'' of the latter part of the first century and the beginning of the second. Rabbi Akiva was a leadin ...
, however, opposed this principle, and desired to have one measure for all. A practical case decided by Rabbi Akiva is then cited (8:7). In addition to all the compensation paid, the offender must beg the injured man's pardon.
(3) He who has robbed his neighbor, and desires to make restitution, pays the full value of the thing taken and a fine of one-fifth of its value. (
. V. 6:2–5. If the things taken by robbery have undergone a change, he pays according to the value the things had at the time of the robbery (chapter 9). The last chapter considers cases in which the things taken are no longer in the hands of the robber, and concludes with the warning not to buy things suspected to be stolen. With the exception of chapter 7:7 (on certain restrictions with regard to the rearing of cattle or poultry in the Land of Israel), there are neither ''halakhic'' nor ''aggadic'' digressions in this tractate.
Jerusalem and Babylonian Talmuds
There are two versions of Bava Kamma: One is in the
Jerusalem Talmud
The Jerusalem Talmud (, often for short) or Palestinian Talmud, also known as the Talmud of the Land of Israel, is a collection of rabbinic notes on the second-century Jewish oral tradition known as the Mishnah. Naming this version of the Talm ...
while the other is in the Babylonian. The two Gemaras, as usual, discuss the laws of the Mishnah; the Jerusalem Talmud rather briefly, the Babylonian Talmud more fully.
The following are a few of the principles enunciated in the Gemara: According to
Symmachus ben Joseph: Property concerning which there is a doubt whether it belongs to A or to B, is divided between A and B without either being compelled to confirm his claim by oath. The sages () hold that he who claims what is in the possession of another, must prove his claim (). A person attacked on his own grounds may take the law into his own hands, when the delay caused by going to a proper court of law would involve great loss. Whenever the whole value of the damaged object is paid, the payment is considered as compensation ("mamona"); when only half the value or a certain fixed amount is paid, the payment is considered a fine ("kenasa"). The judges in Babylonia had no right to impose a fine for any offense; the case had to be tried by qualified judges in Palestine.
The following incident will illustrate the last two rules: A man was charged before
Rav Chisda in Babylonia with having struck a fellow man with his spade. Chisda asked
Rav Nachman how much the offender had to pay. The latter replied that no fine could be imposed in the Babylonian courts, but that he desired to know the facts of the case. He ascertained that A and B had together a well, each of them with the right of drawing water on certain fixed days alone. Contrary to the agreement A drew water on a day that was not his. B noticed it and drove him away with his spade. Nachman's verdict was that B might with impunity have hit A a hundred times with the spade, as any delay would have involved a great loss to B. It is noteworthy that two codes of law are mentioned: the legal one (, literally, "judgments of man") and the moral one (, literally, "judgments of heaven"). In some cases the former absolves man of an obligation, and the latter does not.
Commenting on the four heads of damage (''avot nezikin'') listed in the Mishnah, the Babylonian Talmud asserts that in fact there are at least 26 heads of damages.
Aggadic elements
Noteworthy elements of ''aggadah'' include:
* A (pious man) noticed a man throwing stones and rubbish from his own garden into the public thoroughfare. The rebuked him, saying, "Why do you throw these things from a place that is not yours into a place that is yours?" The man laughed; but he soon learned the true meaning of the question. For he had to sell his property, and one day, walking in the street, he met with an accident through these very stones (50b).
*
Joshua
Joshua ( ), also known as Yehoshua ( ''Yəhōšuaʿ'', Tiberian Hebrew, Tiberian: ''Yŏhōšuaʿ,'' Literal translation, lit. 'Yahweh is salvation'), Jehoshua, or Josue, functioned as Moses' assistant in the books of Book of Exodus, Exodus and ...
, on dividing the land of
Canaan
CanaanThe current scholarly edition of the Septuagint, Greek Old Testament spells the word without any accents, cf. Septuaginta : id est Vetus Testamentum graece iuxta LXX interprets. 2. ed. / recogn. et emendavit Robert Hanhart. Stuttgart : D ...
amongst the
tribes of Israel, made the tribes agree to ten conditions, the most important of which are the common use of the forests as pasture for cattle, and the common right of fishing in the
Sea of Tiberias
The Sea of Galilee (, Judeo-Aramaic: יַמּא דטבריא, גִּנֵּיסַר, ), also called Lake Tiberias, Genezareth Lake or Kinneret, is a freshwater lake in Israel. It is the lowest freshwater lake on Earth and the second-lowest la ...
(80b—81a). Natural springs were to be used for drinking and laundry by all tribes, although the tribe to which the water course fell had the first rights. Prickly burnet (''
Sarcopoterium spinosum'') and the camelthorn (''
Alhagi maurorum'') could be freely collected as firewood by any member of any tribe, in any tribal territory.
*
Ezra
Ezra ( fl. fifth or fourth century BCE) is the main character of the Book of Ezra. According to the Hebrew Bible, he was an important Jewish scribe (''sofer'') and priest (''kohen'') in the early Second Temple period. In the Greek Septuagint, t ...
introduced ten rules (), among them the
Torah reading
Torah reading (; ') is a Jewish religious tradition that involves the public reading of a set of passages from a Torah scroll. The term often refers to the entire ceremony of removing the scroll (or scrolls) from the Torah ark, chanting the ap ...
on Shabbat afternoon (), on Monday and on Thursday, and the holding of court (
beth din) sittings on Mondays and Thursdays (82a).
* Two officers were once sent by the Roman governor to
Gamaliel to be instructed in the Jewish law. When they had finished the study they declared to Gamaliel that the laws (referring probably to the civil code of laws) were all just and praiseworthy, with the exception of two that make a distinction between Jew and heathen. The rabbi thereupon ordered the inequality to be removed (Bavli 38a, and Yerushalmi 4 4b).
*
Johanan bar Nappaha used to give to his servant part of everything he was eating or drinking, saying, "Is not his Creator also my Creator?" (Job 31:15; Yerushalmi 8 6c).
* At the funeral of King
Hezekiah
Hezekiah (; ), or Ezekias (born , sole ruler ), was the son of Ahaz and the thirteenth king of Kingdom of Judah, Judah according to the Hebrew Bible.Stephen L Harris, Harris, Stephen L., ''Understanding the Bible''. Palo Alto: Mayfield. 1985. "G ...
, a
sefer Torah
file:SeferTorah.jpg, A Sephardic Torah scroll rolled to the first paragraph of the Shema
file:Köln-Tora-und-Innenansicht-Synagoge-Glockengasse-040.JPG, An Ashkenazi Torah scroll rolled to the Decalogue
file:Keneseth Eliyahoo Synagogue, Inte ...
was laid on the bier, with the words, "This
anfulfilled what is written in this
croll (Bavli 17a).
Noteworthy explanations of Biblical texts include:
* The words () are quoted as meaning "as the tooth destroyeth" (A. V. "as a man sweepeth the dung").
* ("slow to anger," Exodus 34:6) is interpreted "long-suffering to both the righteous and the wicked", on account of the dual form.
* A Biblical verse is quoted according to its sense and not literally, as, for example, (when thou art kind, thou shalt not be called bad); then the question is raised, "Is it written so?" and the verse is cited.
[Bavli, 81b; compare Bava Metzia 76a]
References
{{mishnah
Tractates of the Talmud
Jewish courts and civil law