One of the exciting aspects of studying Seder Nezikin is reading what appear to be real accounts of legal cases that come before the rabbis. Some tractates deal with more exceptional circumstances in life (for example, Yevamot dealt entirely with levirate marriage, which is rare). But civil cases come up all the time, and we will read many accounts that do not feel like scenarios invented to test a halakhic boundary, but plausibly like real life cases. Today we read of one such case — and of its aftermath.
A certain man borrowed an axe from another and he broke it. He came before Rav.
The question at hand is whether the borrower must pay the axe’s owner only the difference in value between the axe’s original condition (not broken) and its current condition (broken), or whether he needs to repay the owner the full replacement value of the axe.
As we saw on yesterday’s daf, one who steals something and then breaks it is required to pay the full replacement value as a penalty — a sum that is larger than than the total cost of the damage. But is a borrower the same as a thief with respect to repaying damages, or is he different? Perhaps a borrower should only have to pay the cost of the accidental damage — that is, the cost to repair the axe?
Rav said to him: Go and pay him with a full-fledged axe.
Rav rules that the borrower is liable for the replacement of the axe. On the one hand, this ruling makes some sense. If someone knows that lending their axe to someone who might break it comes with the risk that they will not get enough money to actually buy a new axe, then why would anyone lend out their axe? Or their lawnmower? Or sewing machine? Or any other tool that is useful but expensive?
On the other hand, is requiring the replacement value and not just the cost of the damage penalizing someone who broke something by accident? And in any case, the borrower took something to use briefly with permission, as opposed to a thief who stole it. So why would the court treat the two in the same way? Yet Rav’s ruling implies that the court assesses the borrower for the replacement value, just as it would for a thief.
The discussion of the legal case does not end there. In the Talmud’s account, we get to learn what happened once the borrower left Rav’s court.
Rav Kahana and Rav Asi said to Rav: Is this the halakhah?
Rav Kahana and Rav Asi were students of Rav, so we can imagine them sitting in his court, observing and learning from his rulings. When they see something that doesn’t make sense to them, they ask him to explain: Is this really the correct ruling?
Rav remained silent.
Notably, Rav does not justify requiring the borrower to pay the full replacement value of the axe. Perhaps he realizes that he does not actually have a well-grounded justification. Instead his silence speaks volumes.
Ultimately, the Gemara concludes:
And the halakhah is that the court … appraises for a borrower in accordance with Rav Kahana and Rav Asi.
The Gemara settles the issue for future borrowers that we rule like the students and not the teacher. But we’re left without a resolution for the original borrower of the axe who was forced to pay the entire replacement value because of an accident.
I’d like to imagine that Rav’s silence was not because he had nothing to say, but because the moment his students made him realize that his ruling was incorrect, he got up and ran out of the room. Perhaps Rav is silent because he is not there; he has followed the borrower in order to offer a personal correction. He is silent in the court because he is actually outside it, working to promote justice in the face of judicial error.
Read all of Bava Kamma 11 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on November 13th, 2023. If you are interested in receiving the newsletter, sign up here.
