Talmud pages

Bava Kamma 47

No trespassing.

Liability, as we have frequently seen, can depend on the location where the harm takes place. There is, for instance, an important distinction between public and private domains. However “private” itself is not a domain with a single status — whose private domain matters as well. 

On Bava Kamma 47, we find a mishnah which engages with the question of someone storing their items on someone else’s private property:

A potter who brought his pots into a homeowner’s courtyard without permission, and the homeowner’s animal broke them, the homeowner is exempt. If the owner’s animal was injured by the pots, the owner of the pots is liable. But if the potter brought them inside with permission, the owner of the courtyard is liable.

If a potter, whose wares are delicate, places their pots in someone else’s courtyard without permission, they have no one to blame but themselves for any harm. And, indeed, if the homeowner’s animal breaks the pots, the homeowner is not liable. It is the potter who is liable if the animal is injured. However, if the homeowner gave the potter permission to store their pots in the courtyard, then the homeowner assumes responsibility for damage to the wares done by their own animal. 

The mishnah then gives us a similar case, this time about edible property rather than breakable property:

If someone brought his produce into the homeowner’s courtyard without permission, and the homeowner’s animal ate them, the homeowner is exempt. If his animal was injured by them, the owner of the produce is liable. But if he brought his produce inside with permission, the owner of the courtyard is liable.

This case is essentially identical to that of the pots stored in the courtyard without the homeowner’s permission. Like pots that can be broken and slipped on, produce is something that the homeowner’s animal can damage by eating, but it is also something that can cause damage to the animal as a slippery substance to trip on. If the homeowner’s animal is injured, then, by produce she did not give permission to have stored in her space, the person who illicitly put their goods there is responsible for the injury to the homeowner’s animal.

The mishnah considers a third parallel scenario, this one involving an ox that is brought into the private courtyard without permission, and the damage it can do or sustain. The conclusion is similar: Lacking permission to keep the ox in someone else’s courtyard, the ox’s owner is liable for all damages.

However, the mishnah ends with an opinion contradicting what has seemed until this point to be consensus:

Rabbi Yehuda HaNasi says: The homeowner is not liable in any of the cases in the mishnah, unless he explicitly accepts responsibility upon himself to safeguard them.

While the previous anonymous voice of the mishnah equated permission to store items in one’s space with responsibility to care for the items, Rabbi Yehuda HaNasi disagrees. He says that even if he gives the potter or farmer permission to store their goods in his home, the owner is not liable unless he takes an additional step of explicitly assuming responsibility for keeping them safe, and keeping his animals safe from them. Simply granting permission to leave an item in your courtyard does not make you responsible for it.

This debate, between Rabbi Yehuda HaNasi and the anonymous majority voice of the mishnah, is ultimately a disagreement over the nature of our responsibility toward one another. Is accepting someone’s property — or, we might extrapolate, their opinion, their teaching, or their emotions — into our domain something that inherently and instantaneously confers responsibility on us for its well being? Or must we explicitly embrace that responsibility before we are implicated in it?

This is a question about pottery and courtyards, yes, but it is also a rabbinic inquiry into the nature of our responsibilities toward one another. This sugya can inspire us to consider what level of accountability we have for the teachers we cite, the articles we share, and the ideas we endorse — or don’t endorse — by sharing them. Our private spaces, after all, are still spaces where we interact with others.

Read all of Bava Kamma 47 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 19th, 2023. If you are interested in receiving the newsletter, sign up here.

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