Bava Kamma 32

Entering the passageway.

A mishnah that began on the bottom of yesterday’s daf poses the following question: Two people are walking in a public thoroughfare, one person carrying a beam, the other a barrel. If the beam hits the barrel and breaks it, who is liable? 

In most cases, according to the mishnah, the owner of the beam is exempt, because if the two parties are walking toward each other, the owner of the barrel should have seen him coming and made way. Only if they are walking single file and the beam owner stops short, causing the barrel owner to crash into him, or if the barrel owner yells “stop” and his cry is unheeded, is the beam owner liable for damages. Once again, reasonable expectations are the measure for assigning liability.

Then the Gemara swerves:

Rabba bar Natan asked Rav Huna: With regard to one who causes injury to his wife during sexual intercourse, what is the halakhah? Is it reasoned that since he is acting in a permitted manner he is exempt (from paying damages), or perhaps he should pay attention and be more careful?

Suddenly the “beam” and “barrel” take on new meanings. I don’t know about you, but my talmudic bingo card did not have rough sex as the next halakhic dilemma. Let’s keep reading:

Rav Huna said to Rabba bar Natan: You learned this halakhah in the mishnah (that the beam holder is exempt) because this one had permission to walk and that one also had permission to walk. 

According to Rav Huna, any injury that befalls the woman during sex is the result of a permitted act and therefore cannot render the husband responsible for damages. But Rava disagrees, citing the Torah’s ruling on manslaughter, found in Deuteronomy 19:5, which provides the example of two men chopping wood in a forest when one’s axe head flies off the handle and kills the other person. Here’s how Rava compares that to a conjugal injury:

And just as in the forest, where this person entered his domain and that person entered his domain, and nevertheless the one who kills unintentionally is considered like one who entered another’s domain and is therefore liable to be exiled to a city of refuge (where those who cause accidental death are protected from revenge killings), then with regard to this husband, who actually enters another’s domain, all the more so is it not clear that he should be liable for the injury he causes her?

According to Rava, in the Torah’s example of two men chopping wood in the forest, even though it’s a public domain, the one who accidentally kills the other is considered to have entered the victim’s domain. All the more so, Rava reasons, a man having sexual intercourse with his wife has entered her domain — and therefore is responsible for her injuries.

To Rav Huna’s opinion that the husband isn’t liable for his wife’s injury because he had “permission to enter,” the Gemara notes: 

There, in the case in the mishnah, both sides were similarly walking, but here he (the husband) is the one performing an action, and so he is liable even though he is acting with permission.

This suggests the husband is the only active participant in intercourse. But is that really the Gemara’s view?  

And is she not considered an active participant? But isn’t it written with regard to forbidden sexual intercourse: “Even the souls that do them shall be cut off from among their people” (Leviticus 18:29) (indicating that both the man and woman are considered to be performing an action)?

The verse is referring to the fact that they both have pleasure from the act. But with regard to a wife’s injury, he is the one who is considered to be performing an action, and he is therefore liable.

Since the Torah holds women responsible for sexual transgression, the Gemara recognizes women capable of active participation in sex, and also that they experience pleasure from sex. When both parties are taking pleasure from the intercourse, the rabbis reason, they are both considered active participants. But if he is injuring her, the nature of the sex changes, and he is now liable for entering her domain and causing harm. 

Read all of Bava Kamma 32 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 4th, 2023. If you are interested in receiving the newsletter, sign up here.

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