Insights for Bava Kamma 83

By: Reb Yechezkel Khayyat

Dovecotes of Non Jews

The Gemora lists the dovecote of a non-Jew as not meriting a trap free zone around it. The Rishonim discuss the reason for this. The Meiri states that the Gemora was only referring to non Jews who are barbaric and have no religion at all. These people’s property is not afforded any protection, due to their barbaric behavior. All other dovecotes are protected, even if not owned by Jews. Rashi, on the other hand, understands the restriction of traps to be a special protection accorded to fellow Jews, as a kindness. This kindness is not extended to non-Jews.

Slave Value

The Mishna states that to estimate nezek, we evaluate the value of a slave with and without the damage. The Shitah quotes Rav Yehonasan who says that we do not estimate how much the victim feels he lost due to the permanent damage done to his body, since that would be so extreme as to be unfair to the damager. One would never put a reasonable price on his own physical body parts, and the resulting estimation would be exorbitant.

Rashi states that the slave market we are referring to is the market for an eved ivri – a Jewish slave. The Ketzos explains that a Jew cannot be estimated as a non Jewish slave, since he would never be one. The Rosh, however, says the market is for non Jewish slaves. Rashi’s opinion is difficult, as Jewish slaves are only sold for six years, and therefore the difference in value will not accurately reflect the damage done. Rabbi Akiva Eiger says that even if we were to continually reevaluate the damages every six years (to reflect the ongoing loss), this would be unfair to the damager, since the ultimate sum will be much larger than the one time loss to a permanent non Jewish slave. The Maharshal suggests that Rashi agrees that the slave market used for estimation is that for non Jewish slaves, but that Rashi here is simply giving a rationale for applying such an estimation to a free man. Since a free man can sell himself as a slave, this indicates a monetary loss ascribable to the damage done to his body. See Ketzos 420:1 for more detail on Rashi’s opinion.

Ayin Tachas Ayin

The Gemora explains how we know this verse is not literal. The Rambam (Chovel umazik 1:6) states that even though the straight reading of the verse is at odds with the halachah, the halachah comes from Moshe Rabbeinu himself, and has been always accepted. The commentators discuss why the Torah used this phrase, if the real meaning is not literal. The Ibn Ezra states that the Torah is telling us that if the damager would not pay money, it would be fitting for him to lose his eye. The Seforno similarly states that in a pure legal sense, the appropriate punishment would be physical, but the Torah was kind to allow monetary punishment instead. See the Ibn Ezra (Shmos 21:24) for a discussion of logical proofs to the monetary punishment.

The Gr”a states that the verse itself hints to the monetary punishment. The word Ayin is three letters – ayin, yud, nun. If we take the letters after each of those letters, we have the letters pei, kaf, samech. Rearranging those letters spells kesef – money. The verse tells us that for the eye, the damager pays tachas ayin – the letters below (after) ayin.

Read more!

Like "his Arrows"

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Rabbi Yochanan said: One is liable on the damage caused by his fire on account of it being “his arrows” (it is as if he shot out an arrow which caused damage).

The Nimukei Yosef explains that this is why one is permitted to light candles Friday afternoon even though they will be burning on Shabbos; since the candles were lit from before Shabbos, which is when he shot the arrow.

The Minchas Chinuch explains further: According to Rabbi Yochanan, he is liable for the moment that he set the fire ablaze. Just as one who shoots an arrow is liable for the shooting of the arrow even though the damage which occurs afterwards is now unavoidable; so too it is with respect to one who lights a fire. Accordingly, a halachah would emerge as follows: If one lit a fire and before it had a chance to do damage he died, the inheritors would be obligated to pay (from the properties of the deceased), since the reason for liability was already completed while the lighter was still alive. This is only true if “his arrows” did not cease (when there was a fence preventing the fire from spreading, and the fence fell down after he died). However, if “his arrows” ceased before he died, they will be exempt from liability. As long as the heirs did not know about the fire, they would not be liable, for if they did know about it, and they could have prevented the fire from damaging, they will be liable, for it is their property that is damaging.

Read more!

Actions or Results

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Rabbi Yochanan (Tannis 29a) said as follows: Were I living in those days, I would have ordained the fast for the tenth of Av; for on that day the greater part of the Beis Hamikdosh was burned. The Chachamim maintained that the day when the calamity began should be observed as a fast-day.

The Kotzker Rebbe asked from that famous Nimukei Yosef in Bava Kamma. Rabbi Yochanan said: One is liable on the damage caused by his fire on account of it being “his arrows” (it is as if he shot out an arrow which caused damage). The Nimukei Yosef explains that this is why one is permitted to light candles Friday afternoon even though they will be burning on Shabbos; since the candles were lit from before Shabbos, which is when he shot the arrow. According to this, why is Rabbi Yochanan stating here that he would have declared the fast on the tenth of Av if the fire started on the ninth?

The answer is that regarding Shabbos and damages, we are concerned with the action; when it occurred and how it happened. Regarding the Beis Hamikdosh being destroyed; we are not concerned with the action, rather with the result and it was burned on the tenth of Av. This is why Rabbi Yochanan said that if he were living in those days, he would have ordained the tenth of Av as the fast day.

The Avnei Neizer answers that the fire of the Beis Hamikdosh was a Heaven-sent fire and that is constantly being lit - that is why Rabbi Yochanan thought the fast should be on the tenth - we don’t look at the beginning.

Read more!

Haman and his Daughter

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Rava inquired (Bava Kamma 17) : If an animal pounced upon a utensil but it didn’t break, and it rolled to another place and broke there, what is the halachah? Do we consider the beginning of the process, and it is regarded as if the animal itself broke the utensil (in which case the owner will be liable to pay in full), or do we look at when the utensil actual broke, and then it would be regarded as a case of “pebbles” (in which case the owner will only be liable to pay for half the damages)?

The Gemora attempts to resolve this from that which Rabbah said: If one threw a utensil from the top of a roof and someone else comes and breaks it with a stick, the second person is exempt from liability, for we can say to him (the owner of the utensil), “He broke a broken utensil.” [Evidently, Rabbah considers the beginning of the process, and that is why the utensil is regarded as broken even before it actually hits the ground and breaks!]

The Gemora rejects the proof, by saying that although it was clear to Rabbah (that we consider the beginning of the process), it was still a matter of inquiry to Rava.

Tosfos writes that if one throws a stone or shoots an arrow onto a utensil, and someone else comes and breaks the utensil first, the second person is definitely liable to pay for the damages. We cannot say in this case that “he broke a broken utensil,” for if the utensil would be considered broken immediately, there would never apply the halachah of “pebbles,” for we would always consider the utensil to be broken as soon as the pebbles shoot out from the animal. Tosfos concludes that the logical distinction between throwing a stone at a utensil and throwing the utensil itself is a simple matter.

The Rogatchover Gaon uses this Tosfos to explain a Gemora in Megillah (16a). As Haman was leading Mordechai through the streets, they passed by Haman’s house. Haman’s daughter witnessed the scene and thought that Mordechai was leading her father. She took the bowl from the bathroom and threw it on her father’s head. When she realized that it was her father, she fell off the roof and died. This explains that which is written: And Haman hurried to his house, mourning and with his head covered. He was in “mourning” on account of his daughter, and “his head was covered” because of what occurred to him.

The question is asked that the sequence is reversed!? The verse should have stated that “his head was covered” and then he was in “mourning” Why was he mourning before his head was covered?

The Rogatchover Gaon suggests the following: Immediately after Haman’s daughter threw the bowl down, she realized her mistake, and she threw herself off the roof before the bowl landed on her father’s head. According to Tosfos, who distinguishes between when the utensil was set into motion, and when the stone was set into motion, we can explain as follows: She (like the utensil) was considered dead at the beginning of her descent; however, Haman’s head was not covered until the bowl actually landed on his head. This explains why the verse mentions that he was in mourning even before his head was covered.

Read more!

U'bi'er

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

The Gemora (Bava Kamma 14) explains that one braisa speaks of a case where a yard was set aside for both of them for the purposes of both keeping produce and their oxen (it is therefore not regarded as “the field of another,” and he would not be liable for shein and regel), whereas Rav Yosef’s braisa deals with a yard set aside for keeping produce in but not cattle, in which case, as far as shein is concerned, the yard is regarded as the yard of the damaged party (because the damager has no permission to bring his ox in).

Rabbi Zeira challenged this explanation: In the case where the yard was set aside for keeping produce in (for both of them), how can the there be liability for shein and regel when the field does not fulfill the condition of being “the field of another” (since the damager has the right to keep his produce there as well)?

Abaye said to him: Since the yard is not set aside for keeping cattle in, it may well be termed “the field of another.”

Reb Elchonon Wasserman explains the dispute as follows: It is written regarding shein: ubi’er b’sadeh acher – and it consumes in the field of another. The argument is regarding the word ubi’er. Is it in reference to the act of damaging, or is it in reference to that which is damaged?

Rabbi Zeira holds that it is in reference to that which is damaged. The produce is what is getting damaged. And since with respect to the produce, they both had permission to keep their produce in the yard, it is regarded as a jointly owned courtyard – and with respect to the damage of shein, it is considered a public domain, and the damager is exempt from liability.

Abaye, however, holds that the word ubi’er is in reference to the act of damaging. The ox is the one who committed this damage. And since the damager has no right to bring his ox into the yard, it is regarded as the “field of another,” and therefore, he would be liable.

Read more!