Tractate Bava Kama: Daf 26, Amudim A-B
Mishna
A human being is considered to be cognizant of damage. This is the case:
• whether or not the damage caused was accidental or purposeful
• whether or not the damage was done while the damager was conscious or asleep Any type of damage requires the payment of nezeq in full.
The Gemara's Questions on the Mishna
Question: From where do we know that when a human causes damage to another's object that he is required to always pay nezeq?
Answer: Because it says “[W]ound for a wound1”, we can assume that we are to associate
unintentional (ones) damage with purposeful (mezid), and accidental (shogeg) damage with willful (ratzon). Because it says “[W]ound for a wound” and not “[W]ound in a wound,” we can learn two separate things from it, one of which the Gemera just did.
Case #1β
What happened?
Someone placed a large stone or a boulder on the damager's lap, the and the damager was unaware of this. The damager stood up, and the stone / boulder fell down.
Is the damager obligated for nezeq? Yes* Is the damager obligated for the Four Payments? No
Did he violate Shabbat? Purposeful Labor is forbidden from the Torah** If the damager killed someone, is he required to
flee to an ir miqlat? No***
Is the damager required to be sold as a slave? This is a disagreement between Rabbi Shimon Ben Gamiliel (abbreviated RSBG in the Gemara) and Chazal2
*Rashi: This is because if a human damages someone or something, we consider unitentional (ones) to be willful (ratzon), and the accidental (shogeg) to be purposeful (mezid).
**Rashi: Rashi interprets this to mean that he intended to perform one of the thirty-nine forbidden labors of Shabbat, was did not remember that is was Shabbat or that this type of labor was permitted on Shabbat. Because of this, we can assume that he is exempt from having to receive capital punishment. ***Rashi: This would be the case if the stone / boulder accidentally killed someone.
Case #2
What happened?
A large stone or boulder was placed on a person's lap. The human was fully cognizant of this, but forgot. When the person stood up, the stone / boulder fell.
1 Transliterated: petzah takhat patzhah
β All of the cases presented in the sugiyah are brought by Rabah.
Is the damager obligated for nezeq? Yes Is the damager obligated for the Four Payments? No*
Did he violate Shabbat? No** If the damager killed someone, is he required to
flee to an ir miqlat?
YES: Since he was aware of the boulder and forgot that is was there, we assume that he must go to an ir miqlat, because it says in the Torah, “[A]ccidental.”
Is the damager required to be sold as a slave? This is also an argument (see case #1). *Rashi: Even though the persis and forgot, we still hold that he is exempt from paying the Four Payments (arba'ah devarim), which would be paid if the damage to another person was caused
intentionally (ratzon or mezid). Thus, we can conclude that this case is also considered accidental, since the damager did not have the intention of causing damage when he stood up.
**Rashi: Even though the damager was aware of the stone, the fact that it fell was completely unintentional. He would only be punished if the stone falling was on purpose. If the damager thought that it was actually a weekday, then he is not punsished.
Case #3
What happened? The damager is throwing an object. He intends to throw it only two cubits (amot), but the damager instead threw the object for cubits.* Ω
Is the damager obligated for nezeq? Yes Is the damager obligated for the Four Payments? No
Did he violate Shabbat? No*; we are discussing here whether or not this is purposeful labor that would require punishment. If the damager killed someone, is he required to
flee to an ir miqlat?
YES**, because it says in the Torah, “If a man cannot lie and wait...” (Exodus 21:13). This verse applies to this specific case.
Is the damager required to be sold as a slave? Argument (see above)
*Rashi: (on the words “[T]wo cubits”) Because the fact that the object was thrown four cubits and not two was unintentional, we assume that he is not punished for violating Shabbat.
**Rashi: The killer is required to flee to an ir miqlat because of the verse mentioned in the Gemara. Ω Tosefot: According to the Tosefot, the damager is not punished for violating Shabbat. Even Abayei, who would disagree in a sugiyah in Tractate Shabbat 73a.
Case #4
What happened?
The damager is throwing an object. He intends to throw the object four cubits, but instead throws it eight cubits.
Did he violate Shabbat?
He did not violate Shabbat only if he expressly said before throwing the object that he is throwing it with the intention that it can land wherever it lands, be it four cubits or eight cubits.*
If the damager killed someone, is he required to
flee to an ir miqlat? Yes; for the same reason as Case #3 (see above) Is the damager required to be sold as a slave? Arguement
*Rashi: Rashi believes that he is violating Shabbat and that this is an act of purposeful action
(me'lekhet makhshevet). In comparison, if the thrower aimed to throw an object four cubits, but instead only threw it two cubits, then he is not violating Shabbat.
Case #5
What happened?
Someone* threw an object off of the roof of a building. Someone else, below, hit the object with a stick while it was in the air.
What do we want to know from this case? Who, if anyone, is responsible for the damage? The object that was thrown in this case is considered to be broken from the time that it was thrown (mana te'virah tavar). In this case, the person who hit the falling object with a stick is considered exempt from paying**. We can also view this case as a case of hefker; when the owner (according to Rashi*) throws the object off the roof, he is effectively disowning the object.
*Rashi: The person that threw the object off the roof is the owner of the thrown object.
**Rashi: Even if the object was not yet broken when it was hit by a stick, its destiny was to break, ie, even if it hit the ground, it would break.
Case #6
What happened?
Someone* threw an object off of the roof of a building. Below, there were pillows or blankets which could have broke the fall of the object, but they were removed.
What do we want to know from this case?
• Who, if anyone, is responsible for the damage?
• When the Gemara says “[He is] exempt,” to whom is this referring to, the damager or the damagee?
The Gemara simply says “[He is] exempt3”, because “[A]t the time that he cast [the object], his arrows were stopped4**”.
*Rashi: The thrower (the damager) in this case did not own the object. Someone else is throwing the object.
**Rashi: Had the pillows been there, the thrown object was not destined to break. However, since the pillows were removed, then the object is destined to break. Thus, we can assume that both the thrower and the remover of the pillows are both exempt. This is a case of gerama. There is a controversy over what the difference between gerama and gerami, which are two very similar words:
3 Transliterated: patur
• The RiF says that gerama is a case where you do something that has the potential to cause damage, but do not actually do the damage yourself. The case the he brings is placing a bowl of poison in front of an animal — although you are not actually feeding the animal the poison, this did not necessarily have to happen.
• The Ri defines gerama as not physically doing the damage to the object or animal itself. The Ri brings the same example that the RiF does, for the same reason. The fact that the animal drinks the poison has nothing to do with your putting it there; the animal can decide whehter or not to drink it.
• The RiF defines gerami as indirectly causing damage that will inevitably happen as a result of the damager's actions. The example that he brings is one burning a contract for a loan. When the contract is burned, then the deal is considered void and the contract, and the person who loaned the money cannot ask the money back, as he did not have proof that he was owed money. (This is the reason that, after the money is paid back, it is the borrower's responsibility to destroy the contract, that way, the lender cannot ask for the money over and over again.) Although burning the contract is not direct causing damage to anyone, the lender will ultimately lose money.
• The Ri describes gerami to mean that the damager's actions and the damage are directly connected; although the damager's actions did not directly cause damage, the action is directly connected with the damage caused. Although the Ri brings the same example as the RiF, the Ri believes that by burning the contract, the lender is losing money, and a result, the lender is going to lose money. It is specifically because the damager burned the contract that the lender lost money.
Gerama is accepted by all to be exempt
Gerami is an argument, and Rabah, who presents the cases in this sugiyah, believes that the damager is liable in a case that is considered gerami.
Case #7
What happened? A baby was throne off a roof, and was caught by a sword and impaled. What do we want to know from this case? Who is considered responsible for killing the baby: the thrower or the impaler? The answer to this case involves an argument between Rabbi Yehudah ben-Betheirah and Chazal (Sanhedrin 78a). In the case in Sanhedrin, a person was being beaten by ten people in two different ways:
• In the first case, the ten people are beating the victim simultaneously; everyone agrees that no one is guilty
• In the second case, each person hits the victim one after the other; after the tenth person, the victim dies. Here, there is a disagreement:
▪ Chazal say that no one is consdered guilty
▪ Rabbi Yehudah ben-Betheirah says that the last person is guilty of murder, since he brought the death of the victim quicker.
Interestingly, both of these opinions stem from the same verse in the Torah (Leviticus 24:17), “And he that smites any man mortally shall surely be put to death.5” They way that these are interpreted, however, are different:
• Chazal believed that because it says “kol nefesh,” it means that you are only charged with murder if you claim the entire person's soul, ie, you are the only muderer.
• Rabbi Yehudah ben-Betheirah believes that the words “kol nefesh” refers to the final part of the soul; thus, the last blow that kills the victim is the one that is considered to be murder.
Thus, the Gemara does not give us a straight answer and leaves the argument for another case. Case #8
What happened?
A baby was thrown off a roof, and was caught by an ox's horn* (or an animal), and was killed by it**. In the case of the ox, the Gemara says that it is impaled by its horns.
What do we want to know from this case?
• Who is considered responsible for killing the baby: the thrower or the owner of the animal?
• Is there a difference if the animal is mu'ad, or accustomed to hurting, or if it's tam, or not accustomed to injuring people, other animals, or objects*?
This case is analogous to an argument between Chazal and Rabbi Yishmael, son of Rabbi Yokhanan ben-Beruqah (henceforth to be known solely as “Rabbi Yishmael”) over the words “[T]hen he shall give for the redemption of his life6” (Exodus 21:30). The disagree over the word “his life;” is the life in question that of the damager's (the owner of the ox), or the damagee's (the baby)?
• Chazal interpret these words to mean that the owner of the ox (or whatever animal kills the baby) needs to pay the value of the nizaq, or the damagee. We can compare this to collecting life insurance.
• Rabbi Yishmael interprets these words to mean that the damager (the maziq) must pay the value of his own life. We can look at this as if he was buying himself out of the sin of killing a person. *Rashi: The animal in this case is mu'ad, or accustomed to causing damage. Rashi answers the second question in this case.
**Rashi: The fact that the baby died is made clear by Rashi, although we can see from this case that the baby did die.
