Bava Kamma 005

1:
The two previous mishnahs having established some basics in the halakhic concept of torts our present mishnah lays down some basic rules of procedure.

2:
All procedures in matters of torts must be heard in court. If David seeks to receive compensation from Sara for damage sustained by himself or his property from her or her property it is possible (and, indeed, preferable!) that they reach an amicable agreement in this matter outside of court. Indeed, the presiding judge will even encourage them to do so! But if amicable agreement does not prove to be possible then the claims of the plaintiff and the pleadings of the defendant must be heard before the judges of a Bet Din.

3:
In much of the western world people are eager to take matters to court, much to the glee of lawyers. So my claim that judges would prefer that monetary claims be settled out of court will come as a surprise. The prophet [Zechariah 8:16] exhorts:

The Gemara [Sanhedrin 6b] comments:

When a judge has to rule in favour of one party over another there is not peace and harmony because one side is disappointed to say the very least. But when the contesting parties reach an amicable agreement out of court they are both equally content.

4:
When we studied Tractate Sanhedrin we learned that claims that A owes B money can be heard by a court of arbitration in which the "judges" can be lay people selected by the contesting parties. In the case of torts this is not so. The claims and counter-claims must be heard before a court of qualified judges.

5:
Apart from having to decide which of the parties is the aggrieved party the judges will also have to assess the damage. That is to say that they are required to decide to what monetary extent damage has been sustained. When the Tosefta [BK 1:2] relates to this matter it rules:

Let's suggest a modern scenario. Sam backs his automobile and in doing so causes damage to the Rivka's bicycle, which she had left in a place where it should not be. Of course, the bicycle also damaged Sam's automobile. We do not say that both parties are at fault and therefore the damaged sustained by Sam is cancelled out by the damage sustained by Rivka. The court must assess in monetary terms how much damage was sustained by Sam and how much by Rivka.

6:
Once judgement has been given payment must be made. We have already noted that the Torah [Exodus 22:4] rules that the offending party must make restitution

In other words, the Torah assumes that repayment will be made in land or from land. However, restitution does not have to be made in land but may also be made in money. In such a case the judges must evaluate the value of the land in question so that payment can be made according to their assessment.

7:
The judges do not necessarily have to inspect the damage themselves. But the contesting parties must produce reliable witnesses as to the nature and extent of the damage. In order to qualify the witnesses must be Jewish and free. As the Gemara [BK 15a] notes that excludes slaves and pagans.

8:
Women are included in torts. Before shackles rise let's explain in the simplest of terms: in matters of torts (damages) there is no difference between the sexes. While women may have had a different status from men in many religious aspects of Jewish law, regarding torts there is no difference at all: women, like men, can sue and be sued. The Gemara asks

Three answers are given.

These three quotations are seen as establishing the equality of the sexes in all matters of Torah law that we would call civil rather than religious.

9:
Both the plaintiff and the defendant may have to share in the payment. We shall go into this in detail in Chapters 3 and 4, so let's not deal with this ruling at this early stage.