Bava Kamma 62.b

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Bava Kamma

Daf 62b

מתני׳ גֵּץ שֶׁיָּצָא מִתַּחַת הַפַּטִּישׁ וְהִזִּיק – חַיָּיב.

In the case of a spark that emerged from under the hammer of a blacksmith and started a fire, causing damage, the blacksmith is liable for the damage caused.

גָּמָל שֶׁהָיָה טָעוּן פִּשְׁתָּן וְעָבַר בִּרְשׁוּת הָרַבִּים, וְנִכְנַס פִּשְׁתָּנוֹ לְתוֹךְ הֶחָנוּת, וְדָלְקוּ בְּנֵרוֹ שֶׁל חֶנְוָנִי וְהִדְלִיק אֶת הַבִּירָה – בַּעַל גָּמָל חַיָּיב, הִנִּיחַ חֶנְוָנִי נֵרוֹ מִבַּחוּץ – הַחֶנְוָנִי חַיָּיב; רַבִּי יְהוּדָה אוֹמֵר: בְּנֵר חֲנוּכָּה – פָּטוּר.

In the case of a camel that was laden with flax and was passing through the public domain, and its flax extended into a store and the flax caught fire from a lamp in the store belonging to the storekeeper, and as a result of the burning flax the camel set fire to the building together with all its contents, the owner of the camel is liable. But if the storekeeper placed his lamp outside, thereby causing the flax on the camel to catch fire, and consequently the building was set on fire, the storekeeper is liable. Rabbi Yehuda says: In a case where the lamp placed outside was a Hanukkah lamp, the storekeeper is exempt, since it is a mitzva for a Hanukkah lamp to be placed outside.

גמ׳ אֲמַר רָבִינָא מִשְּׁמֵיהּ דְּרָבָא, שְׁמַע מִינָּהּ מִדְּרַבִּי יְהוּדָה: נֵר חֲנוּכָּה מִצְוָה לְהַנִּיחָהּ בְּתוֹךְ עֲשָׂרָה, דְּאִי סָלְקָא דַּעְתָּךְ לְמַעְלָה מֵעֲשָׂרָה, אַמַּאי אָמַר רַבִּי יְהוּדָה: נֵר חֲנוּכָּה – פָּטוּר? לֵימָא לֵיהּ: הֲוָה לֵיהּ לְאַנּוּחָהּ לְמַעְלָה מִגָּמָל וְרוֹכְבוֹ! אֶלָּא לָאו שְׁמַע מִינָּהּ: מִצְוָה לְהַנִּיחָהּ בְּתוֹךְ עֲשָׂרָה.

Ravina said in the name of Rava: Conclude from Rabbi Yehuda’s statement that the mitzva is to place the Hanukkah lamp within a height of ten handbreadths from the ground as, if it enters your mind to say that the mitzva can also be fulfilled by placing it above ten handbreadths, why did Rabbi Yehuda say that in the case of a Hanukkah lamp placed outside, the storekeeper is exempt? Let the owner of the camel say to the storekeeper: You should have placed the lamp above the height of a camel and its rider so that the flax would not catch fire. Rather, must one not conclude from here that Rabbi Yehuda’s opinion is that the mitzva is to place it within ten handbreadths of the ground and not higher?

אָמְרִי: לָא, לְעוֹלָם אֵימָא לָךְ אֲפִילּוּ לְמַעְלָה מֵעֲשָׂרָה; מַאי אָמְרַתְּ, אִבָּעֵי לָךְ לְאַנּוּחָהּ לְמַעְלָה מִגָּמָל וְרוֹכְבוֹ? כֵּיוָן דִּבְמִצְוָה קָא עָסֵיק, כּוּלֵּי הַאי לָא אַטְרַחוּהּ רַבָּנַן.

The Sages say in response: No, there is no proof from here. Actually, I could say to you that one may place a Hanukkah lamp even above a height of ten handbreadths, and as for what you said, that the owner of the camel can claim: You should have placed the lamp above the height of a camel and its rider, in response to this one can say: Since the store owner is performing a mitzva by placing his Hanukkah lamp outside, the Sages did not trouble him to such an extent to have him place his lamp at a height that would be inconvenient for him to reach.

אָמַר רַב כָּהֲנָא, דָּרַשׁ רַב נָתָן בַּר מִנְיוּמִי מִשְּׁמֵיהּ דְּרַבִּי תַּנְחוּם: נֵר חֲנוּכָּה שֶׁהִנִּיחָהּ לְמַעְלָה מֵעֶשְׂרִים אַמָּה – פְּסוּלָה, כְּסוּכָּה וּכְמָבוֹי. הדרן עלך הכונס

Further on the subject of the height of a Hanukkah lamp, Rav Kahana says that Rav Natan bar Minyumi taught in the name of Rabbi Tanḥum: A Hanukkah lamp that is placed higher than twenty cubits from the ground is unfit to be used for the mitzva, since people do not generally look up to such a height, and the main purpose of the Hanukkah lamp is for it to be seen by others. In this regard, the halakha of the height of a Hanukkah lamp is like the halakha of the height of a sukka and the halakha of the height of a cross beam at the entrance to an alleyway, which are unfit for their respective purposes if they are higher than twenty cubits.

SUMMARY

This chapter addressed two primary topics. The first section completed the halakhot of acts of damage classified as Eating or Trampling. The second section dealt with acts of damage classified as Fire. The Sages said that the Torah is not as stringent with the requirements for safeguarding with regard to Eating and Trampling as it is with regard to Goring. For this reason, if one puts his animal in a safe enclosure that is locked properly, and yet the animal emerges and causes damage, he is exempt from liability. In such cases the owner pays only for the value of his own benefit from the damage, e.g., the money he saved by not having to feed the animal. He is not required to pay compensation for the damage caused. In terms of the amount of compensation paid for damage, if the animal ate unripe produce, the damage is assessed relative to an area sixty times larger than the area that was damaged. The amount for which one is liable is the prior value of the larger area less the current value of that larger area. This is the assessment whether the animal damaged a part of a field, a tree, a bush, or any produce that has not fully ripened. If the animal damaged ripe produce, the compensation is simply the value of the produce that was damaged. In general, one is liable for acts of damage classified as Eating only if that damage occurred in private property belonging to another. Nevertheless, if one gave permission to another to store produce in his field, the owner of the field is liable if his animal damages that produce. Tangential to the discussion of damages, the Gemara cited several instances in which one is exempt according to human laws but liable according to the laws of Heaven. Although, for technical reasons, the court does not obligate one to pay compensation for these kinds of damage, there is nevertheless a moral imperative to pay for the damage. One who does not pay for causing damage in instances such as these is considered evil both in the eyes of Heaven and in the eyes of others. The main topic of this chapter is acts of damage classified as Fire. One who kindles a fire and does not adequately safeguard it is liable to pay for the damage caused. This is the halakha whether an item is destroyed completely, singed, or damaged in any other way due to the fire. An act of damage classified as Fire has a unique exemption: One is not liable for damage caused to items that are hidden from view. This exemption applies to items concealed within a stack of grain in a field and to similar cases. Despite this, if one’s fire destroys the home of another, he must pay full compensation for everything contained within it that is common to keep there. This latter principle applies not only to an act of damage classified as Fire, but to any damage caused to items that it is common to keep in that location. The Torah is lenient with the halakhot of an act of damage classified as Fire, and provided one safeguards his fire adequately, he is not liable for damage caused. Therefore, one who kindles a fire within his own property and exercises all due caution, distancing it appropriately from the borders of his property or ensuring that a fence, body of water, or empty space separates the fire from anything that it could potentially damage, is not liable to pay compensation for damage caused. In a case where there is liability for damage caused by a fire, the one who caused the fire to spread is liable for the damage. If there were several partners involved in kindling the fire, the one who is the proximate cause is liable. For example, if an animal caused a previously controlled fire to blaze beyond control and cause damage, the owner of the animal is liable. If one appoints a halakhically competent agent to kindle a fire on his behalf, the agent is liable for any damage subsequently caused. If the agent is not halakhically competent, the one who designated him is exempt according to human laws but liable according to the laws of Heaven. If he gave combustible materials to the agent that would definitely cause a fire, the court can also obligate him to pay compensation.

INTRO

Tractate Bava Kamma contains ten chapters, the last four of which appear in the present volume. Some chapters deal with a single subject, while others address several. Chapter Seven begins the tractate’s discussion of the laws of theft. It focuses primarily on the liability incurred by a thief, both with regard to the double payment and with regard to the fourfold and fivefold payments. At its conclusion, the chapter lists the enactments that were promulgated concerning Eretz Yisrael and Jerusalem. Chapter Eight addresses cases of bodily injury and the methods of payment for the five types of indemnity. Chapter Nine delineates when a stolen item must be returned and when the thief or robber pays restitution only. It also explores the methods of achieving atonement for the sin of robbery as it examines the case of one who steals from a convert. Chapter Ten discusses the details of the laws of robbery, defining when an action is deemed to be a robbery as opposed to theft, and examining the methods of returning the stolen item. 1 In the Tosefta, Tractate Kelim, owing to its great length, is similarly divided into three gates: Bava Kamma, Bava Metzia, and Bava Batra. 2 Not included in Tractate Nezikin are those monetary cases directly related to matters of matrimony that are expounded in the Order of Nashim, principally in Tractate Ketubot. 3 And as the Sages put it: What holds true for the ox holds true for any domesticated animal, as well as for wild animals and birds. If that is the case, why did the verse specifically mention ox or ass? Rather, the verse presents the common example (Bava Kamma 54b). 4 Rambam retains this division in his Mishne Torah. The section addressing these issues is divided as follows: Hilkhot Nizkei Mamon, addressing damage to property; Hilkhot Geneiva, addressing the laws of theft; Hilkhot Gezeila VaAveda, addressing robbery and lost articles; Hilkhot Ḥovel UMazik, addressing injury and damages; and finally Hilkhot Rotze’aḥ UShmirat HaNefesh, addressing capital crimes and other life-or-death matters. 5 With regard to damage caused by an individual’s person, there exists an even stricter measure – at times one may be obligated to pay compensation even when an action was caused without one’s knowledge and by accident. The early authorities discuss whether there are any circumstances under which an unavoidable accident would exempt the person from having to pay any form of compensation for the damage caused. 6 One exception to this is when the injured party entered the property of the owner of the belligerent animal without first gaining permission to do so. 7 According to the opinion of Rav, cited at the beginning of the tractate, this is one of the four primary categories of damage, the one known as Maveh.

מתני׳ מְרוּבָּה מִדַּת תַּשְׁלוּמֵי כֶפֶל מִמִּדַּת תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה, שֶׁמִּדַּת תַּשְׁלוּמֵי כֶפֶל נוֹהֶגֶת בֵּין בְּדָבָר שֶׁיֵּשׁ בּוֹ רוּחַ חַיִּים וּבֵין בְּדָבָר שֶׁאֵין בּוֹ רוּחַ חַיִּים, וּמִדַּת תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה אֵינָהּ נוֹהֶגֶת אֶלָּא בְּשׁוֹר וָשֶׂה בִּלְבַד, שֶׁנֶּאֱמַר: ״כִּי יִגְנֹב אִישׁ שׁוֹר אוֹ שֶׂה וּטְבָחוֹ אוֹ מְכָרוֹ״ וגו׳.

The principle of double payment applies more broadly than the principle of fourfold or fivefold payment, as the principle of double payment applies both to the theft of something that is alive and to the theft of something that is not alive, but the principle of fourfold or fivefold payment applies only to the theft of an ox or a sheep, as it is stated: “If a man steal an ox or a sheep, and slaughter it or sell it, he shall pay five oxen for an ox and four sheep for a sheep” (Exodus 21:37).

אֵין הַגּוֹנֵב אַחַר הַגַּנָּב מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, וְלֹא הַטּוֹבֵחַ וְלֹא הַמּוֹכֵר אַחַר הַגַּנָּב מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.

Having stated a limitation to the halakha of fourfold and fivefold payment, the mishna mentions a further limitation, which applies to all three types of payments. One who steals an item after a thief has already stolen it, i.e., one who steals a stolen item, does not pay the double payment to the thief or to the prior owner, nor does one who slaughters or sells an ox or a sheep after a thief has already stolen it pay the fourfold or fivefold payment. Rather, he pays only the principal, i.e., the value of the item he stole.

גמ׳ וְאִילּוּ מִדַּת תַּשְׁלוּמֵי כֶפֶל נוֹהֶגֶת בֵּין בְּגַנָּב בֵּין בְּטוֹעֵן טַעֲנַת גַּנָּב, וּמִדַּת תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה אֵינָהּ נוֹהֶגֶת אֶלָּא בְּגַנָּב בִּלְבַד – לָא קָתָנֵי.

The mishna teaches one particular difference between double payment and fourfold or fivefold payment, while it does not teach this difference between them: The principle of double payment applies both in the case of a thief and in the case of a bailee who falsely states the claim that a thief stole But the principle of fourfold or fivefold payment applies only in the case of a thief, not in the case of one who falsely claims that a deposit was stolen.

מְסַיַּיע לֵיהּ לְרַבִּי חִיָּיא בַּר אַבָּא, דְּאָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת גַּנָּב בְּפִקָּדוֹן – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, טָבַח וּמָכַר – מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.

The fact that the mishna does not teach the latter distinction supports the opinion of Rabbi Ḥiyya bar Abba, as Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: In the case of one who falsely states the claim that a thief stole a deposit from him, and it is discovered that he himself is the thief, he pays double payment. And if the stolen item is an ox or sheep and he slaughtered or sold it, he pays the fourfold or fivefold payment. According to Rabbi Ḥiyya bar Abba, there is no difference between the applications of double payment and fourfold or fivefold payment in this case.

אִיכָּא דְּאָמְרִי: לֵימָא מְסַיַּיע לֵיהּ לְרַבִּי חִיָּיא בַּר אַבָּא, דְּאָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת גַּנָּב בְּפִקָּדוֹן – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, טָבַח וּמָכַר – מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה?

There are those who say a different version of this discussion: Let us say that the mishna supports the opinion of Rabbi Ḥiyya bar Abba, as Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: In the case of one who falsely states the claim that a thief stole a deposit from him, and it is discovered that he himself is the thief, he pays double payment. And if the stolen item is an ox or sheep, and he slaughtered or sold it, he pays the fourfold or fivefold payment.

מִי קָתָנֵי ״אֵין בֵּין״? ״מְרוּבָּה״ קָתָנֵי, תְּנָא וְשִׁיֵּיר.

The Gemara rejects the inference: Does the mishna teach that there is no difference between double payment and fourfold or fivefold payment except for the one mentioned in the mishna? It teaches merely that the principle of double payment applies more broadly than the principle of fourfold or fivefold payment, and it provides an example of this statement. This does not mean that this is the only difference, and it is possible that the tanna taught this one case and omitted others.

״שֶׁמִּדַּת תַּשְׁלוּמֵי כֶפֶל נוֹהֶגֶת״ כו׳. מְנָא הָנֵי מִילֵּי? דְּתָנוּ רַבָּנַן: ״עַל כָּל דְּבַר פֶּשַׁע״ – כְּלָל, ״עַל שׁוֹר עַל חֲמוֹר עַל שֶׂה וְעַל שַׂלְמָה״ – פְּרָט, ״עַל כָּל אֲבֵדָה״ – חָזַר וְכָלַל,

§ The mishna teaches that the principle of double payment applies both to the theft of something that is alive and to the theft of something that is not alive. The Gemara asks: From where are these matters derived? It is as the Sages taught in a baraita with regard to the verse that discusses double payment: “For any matter of trespass, whether it be for an ox, for a donkey, for a sheep, for a garment, or for any manner of lost thing about which one shall say: This is it, the claims of both of them shall come before the judges, the one whom the judges convict shall pay double to his neighbor” (Exodus 22:8). “For any matter of trespass” is a generalization; “whether it be for an ox, for a donkey, for a sheep, for a garment” is a detail. And when the verse states: “Or for any manner of lost thing,” it then generalizes again.

כְּלָל וּפְרָט וּכְלָל אִי אַתָּה דָּן אֶלָּא כְּעֵין הַפְּרָט, מַה הַפְּרָט מְפוֹרָשׁ דָּבָר הַמִּטַּלְטֵל וְגוּפוֹ מָמוֹן, אַף כָּל דָּבָר הַמִּטַּלְטֵל וְגוּפוֹ מָמוֹן,

Consequently, this verse contains a generalization, and a detail, and a generalization, and one of the thirteen rules of exegesis states that in such a case you may deduce that the verse is referring only to items similar to the detail. Therefore, just as each of the items mentioned in the detail is clearly defined as an item that is movable property and has intrinsic monetary value, so too double payment is practiced with regard to any item that is movable property and has intrinsic monetary value.

יָצְאוּ קַרְקָעוֹת – שֶׁאֵינָן מִטַּלְטְלִין, יָצְאוּ עֲבָדִים – שֶׁהוּקְּשׁוּ לְקַרְקָעוֹת, יָצְאוּ שְׁטָרוֹת – שֶׁאַף עַל פִּי שֶׁמִּטַּלְטְלִין אֵין גּוּפָן מָמוֹן, יָצָא הֶקְדֵּשׁ – ״רֵעֵהוּ״ כְּתִיב.

Land is excluded, as it is not movable property. Canaanite slaves are excluded, as they are compared to land in many areas of halakha. Financial documents are excluded, as, although they are movable property, they do not have intrinsic monetary value. The value of the material on which the document is written is negligible; documents are valuable only because they serve as proof for monetary claims. Finally, consecrated property is excluded because it is written in the verse that the one found liable shall pay double to “his neighbor,” i.e., to another person, rather than to the Temple treasury.

אִי מַה הַפְּרָט מְפוֹרָשׁ דָּבָר שֶׁנִּבְלָתוֹ מְטַמֵּא בְּמַגָּע וּבְמַשָּׂא, אַף כָּל דָּבָר שֶׁנִּבְלָתוֹ מְטַמֵּא בְּמַגָּע וּבְמַשָּׂא, אֲבָל עוֹפוֹת לָא!

The Gemara asks: If the halakha of double payment is limited to cases similar to the details mentioned in the verse, it should also be derived that just as each of the items mentioned in the detail is clearly defined as an item whose carcass transmits impurity through contact and carrying, so too any item whose carcass transmits impurity through contact and carrying it is subject to double payment. But birds, whose carcasses do not transmit impurity through contact or carrying, should not be subject to double payment.

וּמִי מָצֵית אָמְרַתְּ הָכִי? וְהָא ״שַׂלְמָה״ כְּתִיב! אָמְרִי: אֲנַן בְּבַעֲלֵי חַיִּים קָאָמְרִינַן, אֵימָא: בְּבַעֲלֵי חַיִּים, דָּבָר שֶׁנִּבְלָתוֹ מְטַמֵּא בְּמַגָּע וּבְמַשָּׂא – אִין, דָּבָר שֶׁאֵין נִבְלָתוֹ מְטַמֵּא בְּמַגָּע וּבְמַשָּׂא – לָא,

The Gemara objects to the question: But how can you say this? But isn’t “garment” written in the list of specified items (Exodus 22:8)? It is impossible to speak of the impurity of carcasses with regard to clothing. The Gemara responds: Say, in response to this objection: We are speaking specifically of animals, and this is the question that was asked: Why not say that with regard to animals, an animal whose carcass transmits impurity through contact and carrying, yes, it is subject to double payment, whereas an animal whose carcass does not transmit impurity through contact and carrying, such as a bird, no, a thief would not pay double payment for stealing it?