Bava Kamma 002

11:
As we have mentioned, our mishnah speaks of four major categories of damages. In his commentary on our mishnah Rabbi Ovadya of Bertinoro points out why these four are mentioned as 'major' categories: it is because each of them can have other categories which derive from it. The Gemara [BK 2a] calls these derived categories Toladot:

The main damage an ox can cause is with its feet or its horns. The major category designates what is most usual; but one derivative could be any damage that the ox causes with any part of its body.

12:
If, as we have explained, the "grazer" is an animal whose owner has let it loose (without permission) to graze in someone else's field we may well ask what the difference may be between the ox, which is an animal, and the grazer, which is an animal.

13:
This question may be amplified: why did the Torah have to give four examples of the way a person's property may cause damage to someone else's property – or to someone else's person? It is axiomatic among the sages that however verbose the Torah may seem to be to modern eyes it must be assumed that there is never pointless repetition. If the Torah gives four examples of torts (malfeasance which causes damage) there must be something to be derived from each of the examples which could not necessarily be derived from the others.

14:
An animal can cause damage in more than one way. The main damage that can be expected from an ox, for example, is that it will injure someone with its horns. It may knock things over in the public domain as it lumbers along its way. It may even trample things underfoot. When it does these things it is not acting maliciously: it is just doing what comes naturally to it. The owner of the ox is responsible for its behaviour and for any damage it may cause. However, the owner will only be fined if the animal's behaviour could be foreseen. Most oxen will not injure someone with their horns if unprovoked.

15:
The Torah recognises this fact. It distinguishes between an ox that "has no previous record" and an ox whose owner has been warned more than once that it must be restrained.

Such a distinction is not made regarding an animal let loose to graze. Therefore "the ox is unlike the grazer and the grazer is unlike the ox" as our mishnah says.

16:
But there are further differences between the examples given in the mishnah. The ox and the grazer are both sentient animals; but fire is not sentient. Yet, like the ox and like the grazer it is mobile: it moves, encroaches and then engulfs. The pit is neither sentient nor mobile.

17:
Thus we have four criteria:

1. is it sentient and has it or has it not been warned?
2. is it sentient and need it not be warned to be culpable?
3. is it mobile even if it is not sentient?
4. is it stationary and incapable of movement?

By application of the rules of hermeneutic explication originally proposed by the great sage Hillel it should be possible to determine what the Torah would have said regarding any situation that may arise. We learned about Hillel's seven rules in Avot 054 and Avot 055.

18:
What all four (and their derivatives) have in common is described most succinctly by our mishnah:

(Please note here and throughout that the Torah does not legislate fines. That is to say that the Torah does not require the malfeasant to pay a sum of money into the civic treasury: restitution is paid directly to the person who suffered the damage.)

19:
In the case of the grazer the Torah [Exodus 22:4] stipulates the quality of the restitution to be made:

The sages explain that the application of the Torah's ruling is not that the malfeasant must yield up to the injured party some of his real estate. The judges who are adjudicating the case must assess how much damage has been caused to the injured party: that will ascertain the sum that the malfeasant must pay. The sages in Tractate Gittin 5:1 give a list of such calculations and how they are to be made. The very first one reads:

In other words, it is not sufficient that monetary restitution be made. It is also required that the payment shall cause the malfeasant distress. Thus the ruling in the case of the grazer is made applicable in all cases of torts.