The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
Bava Kamma 19a-b
As we learned at the beginning of Masechet Bava Kamma (2a), there are four avot nezikin (literally “fathers,” the term avot in this context refers to the primary types of damages according to the Torah) – Shor (an ox), Bor (a pit), Mav’eh and Hev’er (fire) – each with its own set of rules. While Rav and Shmuel disagree about how to define the parameters of some of these cases, both agree that one type of damage is shen – when an animal eats someone else’s property in a normal way (according to Rav, shen is part of shor; according to Shmuel it is the case of mav’eh). The Mishnah on today’s daf (page) offers a definition of shen.
According to our Mishnah, as long as an animal is in the public domain, its owner will not be responsible for damage done when it eats normally (e.g. if it eats fruits or vegetables that were placed in front of a store for sale). If the animal enters a private area, however, the owner of the animal will be held fully responsible for damage done by his animal when it eats in a normal manner. If it acted abnormally (e.g. it ate clothing), the owner will pay only half damages, since it was an unexpected action. The Mishnah continues, however, and explains that even in the public domain the owner will be obligated to pay for fruits or vegetables that his animal ate, if the animal benefits from the food.
From the Mishnah itself, as well as from the Teshuvot ha-Rashba, it is clear that the obligation to pay in this last case is not restitution of damages, since the owner has no responsibility for shen in the public domain, rather the owner pays for the food because he has benefited from another person’s property (he will not need to feed his animal), and a person is not allowed to derive benefit at someone else’s expense without paying him.
Bava Kamma 20a-b
As we learned on yesterday’s daf, as long as an animal is in the public domain, its owner will not be responsible for damage done when it eats normally. Nevertheless, even in the public domain the owner will be obligated to pay for fruits or vegetables that his animal ate, if the animal benefits from the food. In essence, this payment is not for damages, rather it is payment for the benefit derived by the animal who ate the food.
Our Gemara discusses how this payment will be determined. Rabbah rules that the owner will only have to pay for the amount of straw that the animal ordinarily eats. The owner has benefited inasmuch as he will not need to feed his animal, but he can argue that his benefit was limited to what he would have chosen to feed the animal, which could be the cheapest food. Rava argues that he will have to pay for what the animal ate – if it ate barley, the owner must pay for barley – although he would pay for the barley be-zol – at the cheapest rate. Since he may not ordinarily feed his animal barley, we arrange for him to pay a cheaper rate, which, according to Rashi, is two- thirds the normal price. The Me’iri suggests that according to Rava the owner should pay full price for barley if that is what he ordinarily feeds his animal, since that is the benefit that he has received. The discussion of offering a cheaper rate to someone who does not ordinarily offer such high quality feed to his animals is based on the recognition that he is truly benefiting from the better quality, and presumably healthier, food.
The conclusion of the Gemara is that it is clear that if the animal had eaten wheat or something that was bad for it – things that the owner would never have given to his animal – the owner will not be obligated to pay anything, since he does not benefit and he is not responsible for damages of shen in the public domain.
Bava Kamma 21a-b
Our Gemara discusses whether a person who lives on someone else’s property without their knowledge must pay for the privilege of doing so or not. After some discussion, the general attitude of the Gemara is that if the place where he was living was ordinarily rented, he would have to pay for it, otherwise he would not, based on the Talmudic axiom zeh neheneh ve-zeh lo chaser – one person is benefiting while the other is not losing anything.
Rav Sehorah quotes Rav Huna quoting Rav that someone who lives in someone else’s courtyard will not have to pay him, based on the passage in Yeshayahu (24:12) u’she’iyah yukat sha’ar – abandonment destroys the gate – meaning that a place that remains uninhabited becomes destroyed. Rav Ashi claimed that he had actually seen it (the she’iyah), and that it gored like an ox.
According to Rashi, she’iyah is the name of a destructive demon that wreaks havoc on uninhabited places. Rav Hai Ga’on suggests that she’iyah refers to a type of insect that destroys wood, and when a house is left unattended the insect could destroy it entirely. This approach would help explain why the destruction begins at the gate – at the door of the house which is made of wood and is the first to be affected. After the beams that support the wood are destroyed, the roof will fall in and the house will be demolished. Rav Ashi’s statement that the she’iyah was like a goring ox may refer to the noise made by the insect as it eats and digests the wood.
The Rosh argues that this reason notwithstanding, the real reason that the uninvited tenant will not be obligated to pay is because zeh neheneh ve-zeh lo haser. The Rashba, Nimukei Yosef and others explain that there is always some minor damage done to the house by its tenants, so Rav Sehorah’s explanation is important because it clarifies that we see the tenant as contributing more to the upkeep of the place than the damage that he is invariably causing to it.
Bava Kamma 22a-b
As we learned at the beginning of Masechet Bava Kamma (2a), there are four avot nezikin (literally “fathers,” the term avot in this context refers to the primary types of damages according to the Torah) – Shor (an ox), Bor (a pit), Mav’eh and Hev’er (fire) – each with its own set of rules. Although the Gemara does not discuss the underlying reason for responsibility in most of these cases – apparently the reason that a person is responsible for the damage his property has caused is fairly intuitive – our Gemara does discuss why a person is responsible for damage caused by a fire that he set. Tosafot Rabbeinu Peretz explains that there is a need to explain aish (fire), since it is qualitatively different than the others. In aish there is no direct link between the damage and the person who is responsible for it; someone set the fire and then it was blown about by the wind, and only then did it cause damage.
Rabbi Yochanan teaches that isho mishum chitzav – a person is responsible for his fire, in the same way that he is responsible for arrows that he shot. Although the damage was not done by a direct encounter, nevertheless it is clear that the owner has set the flame on its course, just like someone who shoots an arrow from afar will be held accountable for its results. According to Resh Lakish, isho mishum mamono – a person is responsible for his fire, in the same way that he is responsible for damage done by any of his possessions.
Rashi explains Reish Lakish’s position as positing that the fire belongs to him, and he is responsible in a similar fashion to damage done by anything else that he owns. According to this approach, a practical difference between Rabbi Yochanan and Reish Lakish would be a case where the fire did not belong to the man who set the fire, where Reish Lakish would, apparently, free him from responsibility.
Tosafot and other rishonim object to this conclusion and they explain isho mishum mamono as meaning that the damage was done by something that the man owned or was created by his actions – similar to his responsibility for a bor (a pit), and there is no real difference whether he actually owned it or not.
Bava Kamma 23a-b
In the past we have referred to two different kinds of animals that cause damage:
a shor mu’ad – an ox that has gored in the past – for which one pays full damages (nezek shalem), and a shor tam – an ox with no violent history – for which one pays for only half of the damage (chatzi nezek) that he caused. The Mishnah on today’s daf (page) asks for definitions for these two types of animals. (The Nimukei Yosef points out that the Mishnah’s real question is how to establish that an animal is mu’ad and when will it be removed from that category and returned to its status as a tam. Clearly, any ordinary animal with no history of violence will be considered tam.)
Rabbi Yehuda says that a shor becomes mu’ad if it gores three days in a row; it reverts to being a tam if it goes three days without goring. Rabbi Meir teaches that a shor becomes mu’ad after three consecutive acts of goring (according to this opinion, the number of days is not relevant), and it will be considered tam when a child can pet it without it reacting violently.
In explaining Rabbi Meir’s position, Tosafot point out that even though we ordinarily distinguish between the status of an animal regarding people and animals (i.e. an ox may be considered tam with regard to people, but mu’ad with regard to animals), if it is so calm and domesticated that children can play with it, it is an indication of a full return to its status as a tam. Tosafot and many of the rishonim believe that Rabbi Meir is not arguing with Rabbi Yehuda, he is simply offering another test to ascertain that the animal is not dangerous, a test that would work even without the three day wait. Rabbeinu Yehonatan disagrees and argues that Rabbi Meir is in disagreement with Rabbi Yehuda, and according to Rabbi Meir three days of calm would not be enough to declare the ox to be a tam – we need a clear proof that the animal is no longer dangerous.
Bava Kamma 24a-b
On yesterday’s daf we learned the Mishnah that discusses how we establish an animal as being mu’ad, and under what circumstances it reverts to being tam. (A shor mu’ad – an ox that has gored in the past – is one whose owner will pay full damages, while the owner of a shor tam – an ox with no violent history – will pay for only half of the damage that it caused.) Rabbi Yehuda ruled that a shor becomes mu’ad if it gores three days in a row; it reverts to being a tam if it goes three days without goring. Rabbi Me’ir taught that a shor becomes mu’ad after three consecutive acts of goring, and it will be considered tam when a child can pet it without it reacting violently.
Our Gemara brings the opinion of Rabbi Yossi who combines the two opinions. According to Rabbi Yossi a shor becomes mu’ad if it gores three days in a row; it becomes a tam when a child can pet it without it reacting violently.
In conclusion, the Gemara quotes Rav Nachman as saying that he rules like Rabbi Yehuda with regard to mu’ad, since Rabbi Yossi agrees with that position, and like Rabbi Meir with regard to tam, since Rabbi Yossi agrees with that position. Rav Nachman explains that he follows Rabbi Yossi’s opinion she-nimuko imo. The expression nimuko imo is unclear. Rashi explains that it means that Rabbi Yossi’s proofs and reasoning are with him, while Rabbeinu Chananel explains that he has solid Torah traditions that could be relied upon. Some suggest that the root of the word nimuko is the Hebrew omek (with the loss of the letter ayin) meaning that his reasoning is deep and well-founded, but most believe that its source is Greek, meaning that he is a well-versed sage (some Greek writings use the word as a title for the Sages).
Bava Kamma 25a-b
Although many of the laws of nezikin (damages) are presented in the Torah, there are others that do not appear in the Torah at all and must be derived by the sages using methods of hermeneutics like the 13 rules of interpretation presented by Rabbi Yishmael. One case that does not appear in the Torah is a case of keren be-reshut hanizak – an ox that enters a private domain and causes damage by goring or similar actions. It is clear that the owner will be held responsible to pay for the damage, a rule that is supported by the application of the first rule – kal va-homer (usually translated as an A fortiori argument). The Tanna Kamma (first) rules that in this case the owner will pay half-damages; Rabbi Tarfon rules that he will have to pay full damages.
Rabbi Tarfon explains his position by presenting a kal va-homer that works as follows:
In cases of shen and regel (damage caused by an animal that is eating or walking normally) in the public domain, the owner does not have to pay at all, although if the damage took place in a private place, the owner will have to make full restitution.
In cases of keren (damage done by an animal that gores) there is a greater level of responsibility in the public domain – the owner will have to pay half-damages. We can therefore conclude that in a private place there will also be a greater level of responsibility, and the owner will have to pay full damages.
While the Tanna Kamma accepts the kal va-homer to the extent that we must conclude that the owner is responsible for damage done by his animal in a private place, but he rejects Rabbi Tarfon’s conclusion, arguing that we cannot hold him more responsible that he was in the primary case. Thus the Tanna Kamma rules that the owner will pay half damage, just like he does in the public domain.
Limiting the conclusions that can be reached by means of a kal v’chomer in this manner is called dayyo – “enough.” It is enough to learn a parallel halacha from a kal v’chomer, but not more than the original law itself.
The Gemara explains that the concept of kal va-homer – and dayyo – stem from the story of Miriam who spoke inappropriately about her brother Moshe (see Bamidbar 12). As punishment, she was struck with tzara’at (biblical leprosy), and was forced to leave the encampment for seven days. The Torah explains that had her father banished her, surely she would have been embarrassed for seven days – now that she was banished by God, she will have to be removed for that length of time. Although logically banishment because of God’s anger should have lasted twice as long, dayyo limits the punishment to the same amount of time that she would have been embarrassed by her father.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.