Bava Kamma 5

A taxonomy of harm.

The mishnah that begins this tractate opens by outlining various categories of damage that are recoupable by an aggrieved party. There are four categories listed in the mishnah: ox, pit, maveh (damage caused by either a human or tooth, as was recently discussed) and fire. The Gemara breaks these primary categories into subcategories and attempts to define their scope.

On today’s daf, there’s a discussion of why we even need four categories. Couldn’t we use analogies and logic to derive all damage from only one or two categories, as Rava asserts? In short, the Gemara’s answer is yes, we need all of them. Each category has characteristics that overlap with others, but also has aspects that are unique. Today’s daf explains how, without each of these individual categories, damages might be miscalculated.

Let’s start with ox, a category that is broken down into three subcategories that are explicitly mentioned in the Torah: goring, eating and trampling.

Goring is written explicitly in order to distinguish between the halakhot of damage caused by an innocuous animal and damage caused by a forewarned animal. Eating and trampling are written explicitly in order to exempt from liability those whose animals perform the actions in these categories in a public domain. 

Goring, as a category, helps us distinguish between damage by a forewarned animal (one that has previously caused damage) and by an innocuous animal (one that hasn’t). Similarly, eating and trampling are subcategories that help us distinguish between damage to private property, which requires compensation, and damage to public property, which doesn’t.

Next the rabbis discuss the category of pit.

Pit is written explicitly in order to exempt one from liability for damage to vessels caused when they fall into a pit.

According to the opinion of Rabbi Yehuda, who deems one liable even for damage to vessels caused when they fall into a pit, pit was written in order to exempt one from liability for the death of a person who was killed by falling into a pit.

Here, there is a difference of opinion between the rabbis and Rabbi Yehuda, though they agree that we need the category of pit. The rabbis think that when it comes to the category of pit, damage to vessels is not compensated. Rabbi Yehuda, however, thinks that damage to vessels is compensated, but the owner is not liable for someone’s accidental death. This difference of opinion isn’t resolved here (for a more robust, yet still inconclusive discussion, see Bava Kamma 54a), but whether pit excludes vessels or a person’s death, it’s clear that this category of damages is qualitatively different from others.

Regarding mavehthe third category of damages, we see that most rabbis understand it to be damage caused by a person:

Person is written explicitly in order to render him liable for four additional types of indemnity, beyond the payment of damages for the diminution in value caused when one injures a person. 

Specifically for damages that fall into the category of maveh, four types of damages attributable to a person — pain and suffering, medical expenses, loss of wages and embarrassment — might be assessed.

Finally, fire:

Fire is written explicitly in order to exempt one from liability for damage caused to a concealed object that was consumed by fire. 

There are some subtleties to this, including whether the object was something typically kept concealed, for example, but the basic idea is that damages under the category of fire do not include repayment for the destruction of a concealed object. That is, a person who lit a fire that accidentally destroyed someone else’s property isn’t liable for damage to hidden items they couldn’t have expected were there.

So there you have it. The rabbis find each of these four categories essential for developing tort law and manage to hang entire principles on each. In the rabbis’ view, collapsing these categories would cause us to miss important concepts necessary to mete out justice.

Read all of Bava Kamma 5 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on November 7th, 2023. If you are interested in receiving the newsletter, sign up here.

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