The Themes of Seder Nezikin
Seder Nezikin (damages) forms the basis for Jewish civil and criminal law. Included in Seder Nezikin are laws of property damage, employer-employee relationships, negligence, and business partnerships, as well as laws relating to courts and punishments. Within the Mishnah, Nezikin stands out as the seder (or order) most concerned with universal interpersonal and societal issues, rather than with issues of Jewish ritual law. For this reason, perhaps, the discussions in this seder refer to lived experience at least as often as they refer to biblical law.
The first three masekhtot (tractates) of Seder Nezikin, Bava Kamma, Bava Metzia and Bava Batra–literally, the “First Gate,” “Middle Gate,” and “Final Gate”–focus on business transactions, lending and borrowing, joint ownership of property, renting and leasing and labor laws. Like any body of civil law, the Mishnah is primarily concerned with creating a legal system that protects both parties, reduces or eliminates fraud, and establishes clear procedures for various types of transactions and agreements.
Laws regarding buying and selling, for instance, require that the terms of sale be clear and fair to both the buyer and seller. Thus, Bava Batra 6:3 mandates that the seller reveal any known defects in the product for sale, but does not hold the seller responsible for defects that develop after the sale is complete:
“If one sells wine to another and it sours, the seller is not liable [and is therefore not required to refund the buyer’s money], but if the seller knew that the wine would soon sour, this is considered a purchase made in error [and the seller is required to pay the buyer back].”
Enforcing the Law
Every society must, of course, not only establish civil and criminal laws, but must also create a system of punishment for those who violate these laws. Sanhedrin (the supreme Jewish legislative body and high court in Roman times) and Makkot (“lashes”), originally a single unit, define court procedures, the types of punishments for various crimes, and the methods of carrying out these punishments. Among the concerns of these masekhtot is the reliability of the witnesses upon whose testimony the defendant will be convicted or acquitted. There is, within the Mishnah, a fear of convicting an innocent person, and therefore a willingness to disqualify eyewitnesses if their testimonies differ, even in regard to details not immediately relevant to the crime. According to Sanhedrin 5:1-2:
“They used to test witnesses by asking seven questions: in what week of the year [did you observe the crime]? In what year? In what month? On what day of the month? On what day? In what hour? In what place? Furthermore, they would ask, Do you recognize [the defendant]? Did you warn [the defendant of the consequences of the crime before s/he committed it]?. . .The more one tests the witnesses, the more one is to be praised. Ben Zakkai once even tested witnesses by asking them to describe the stalks of figs [in the vicinity of the crime]” (Sanhedrin 5:1-2).
While mishnaic criminal law depends on the testimony of eyewitnesses, civil law relies more heavily on oaths made by the parties themselves. The rabbis assume that the divine repercussions of swearing falsely will dissuade any party in a civil suit from lying under oath. Many of the cases considered in Seder Nezikin discuss the necessity of swearing, the types of oaths required in various situations, and the ways in which one utters an oath. While these questions arise throughout the Seder, one masekhet—Shevuot (“oaths”)—is dedicated entirely to oaths, both those taken in civil disputes and those taken for other reasons.
Seder Nezikin and the Bible
The Bible, by means of a few individual cases and legal precepts, offers the beginnings of a civil law. This rudimentary law does not, however, provide sufficient basis for the structuring of a functional society. Furthermore, biblical civil law responds to the reality of the biblical world and does not necessarily transfer directly to a new context. In order to create a legal system that reflects the needs of the time, Seder Nezikin expands upon biblical law, explores situations not described by the Bible, combines biblical law with real life experience, and sometimes ignores biblical law in favor of laws based on real-world experience.
One biblical section, which seemingly applies only to a very specific situation, becomes the basis for an entire mishnaic category of damages. Exodus 21:28-36 describes the damages to be paid by one whose ox gores a human being or another ox. The Mishnah expands on these verses, applying the biblical text to other types of damages caused by one’s animal. According to Bava Kamma 5:2:
“If a potter brings his vessels into another’s property without the permission of the property owner and the property owner’s animal breaks the vessels, the owner [of the animal] is not liable for damages; if the animal is hurt, the potter is liable. But, if the potter brings the vessels into the property with the permission of the property owner and an animal breaks the vessels, the owner [of the animal] is liable.”
A literal reading of the biblical verses might suggest that the owner of an ox is responsible for the damage this ox does to a person or to another ox. Instead of reading the verse literally, the mishnaic expansion extracts from the biblical verse a number of principles of negligence and applies these to cases not addressed by the biblical text. With this interpretive move, the Mishnah implicitly understands biblical law as a set of legal principles and values rather than as a set of rules governing specific situations.
The Authority of Real Life Experience
At times, the Mishnah accords real life experience an authority equal to or even greater than that of biblical law. A number of times throughout Seder Nezikin, the Mishnah concludes the discussion of an issue with the comment, “hakol k’minhag hamedinah“–“everything goes according to the custom of the place.” For example:
“One who hires workers and instructs them to begin work early and to stay late–in a place in which it is not the custom to begin work early and to stay late, the employer may not force them to do so. In a place in which it is the custom to feed the workers, he must do so. In a place in which it is the custom to distribute sweets, he must do so. Everything goes according to the custom of the land.” (Bava Metzia 7:1)
On Living among “Idol Worshipers”
Most of Seder Nezikin concerns civil and criminal law designed for an entirely Jewish community. Such a community does not exist now, and did not exist at the time of the Mishnah. Jews have always lived among non-Jews and therefore have constantly negotiated boundaries that allow for business and personal relationships with others, while still enabling one to maintain a clear Jewish identity. Masekhet Avodah Zarah (“foreign worship”, i.e. idol worship) explores issues of living in a community of non-Jews—specifically idol worshipers, whose religious practice is in conflict with the fundamental Jewish injunction against worshiping objects or animals.
A Few Strange Masekhtot
Seder Nezikin also contains some of the strangest and most difficult to classify masekhtot of the Mishnah. These masekhtot may be late additions to the Mishnah, tacked on at the end of Nezikin which some believe was, at one time, the final seder. Masekhet Eduyot (literally: “testimonies”) seems, by virtue of its title, to fit easily into a seder concerned with civil law and court proceedings. However, the content of Masekhet Eduyot has very little to do with law or courts. Rather, this masekhet consists of sayings passed down from student to teacher. Contained within this masekhet are synopses of some of the famous disagreements between Hillel and Shammai as well as teachings of other early rabbis.
Masekhet Horayot (“instruction”) considers the problem of a kohen gadol (High Priest) or a beit din (court of law) ruling improperly on issues of Jewish law and also includes some discussion of the succession to the priesthood. While on the surface irrelevant now that the office of the kohen gadol does not exists, this masekhet offers a basis for understanding our responsibilities vis-à-vis a government or other authoritative body that rules incorrectly or unjustly.
The final masekhet of Seder Nezikin is perhaps the best-known part of the Mishnah—Avot, also known as Pirkei Avot (most often translated as “Sayings of the Fathers”). This masekhet appears at the back of many prayerbooks and is the source for a number of well-known Jewish sayings, including Rabbi Akiva’s dictum, “If I am not for myself, who will be for me; if I am only for myself, who am I; if not now, when?” and Shammai’s statement, “Say little and do much.”
Pronounced: ah-VOTE, Origin: Hebrew, fathers or parents, usually refering to the biblical Patriarchs.
Pronounced: MISH-nuh, Origin: Hebrew, code of Jewish law compiled in the first centuries of the Common Era. Together with the Gemara, it makes up the Talmud.
Pronounced: SAY-der, Origin: Hebrew, literally “order”; usually used to describe the ceremonial meal and telling of the Passover story on the first two nights of Passover. (In Israel, Jews have a seder only on the first night of Passover.)