Bava Kamma 003

1:
Our mishnah consists of three clauses, which traditionally we refer to as reisha [first clause], emtz'ita [middle clause] and seifa [last clause].

2:
The first clause of our mishnah states the general rule in torts from which all else stems. The manner of wording in this clause in our mishnah is unusual, nor is it easy to give a rendition that slavishly reflects the Hebrew. But the intention is clear:

If I am legally responsible for something (or someone) then automatically I am liable to make restitution for any damages that derive from that responsibility.

The Torah makes the issue of responsibility quite clear. In the case of the ox, for example, the Torah [Exodus 21:36] states:

And in the case of the pit too [Exodus 21:33]:

3:
But our mishnah goes further. In 'real life' things can be more complicated than a simple rule. What if I am partially responsible for the damage caused? Should I not then be liable to make restitution proportionately? Let's take an example. As we shall see, the sages determined that in order for a pit to be considered a hazard to life and limb it must be at least ten handbreadths deep. (Let's not translate that into modern measurements: it is irrelevant to our present discussion.) Now, let's assume that the pit was originally dug by one David who took great care that it should only be eight handbreadths deep, and therefore could be left uncovered without incurring legal responsibility. Subsequently Sara comes along and adds three handbreadths to the depth of the pit, which is now eleven handbreadths deep. Our mishnah states:

In other words, Sara cannot claim that she is only partially responsible for any accident that occurs because she only partially dug the pit. It was Sara whose action turned the pit legally into a hazard and therefore she is held to be fully responsible for any accident that may occur.

4:
We now turn our attention to the second clause of our mishnah. This clause lists certain characteristics that must be fulfilled in the case of property that was damaged or that caused damage in order for the legal responsibility of the malfeasant to have been established.

1. Damaged property must be lay property, not property which belongs to God, as it were.
2. Damaged property must belong to a Jew.
3. Property that causes damage must have a definite owner.

5:
What does our mishnah mean when it rules that damaged property must be lay property? In Halakhah, the moment one makes a promise to donate something to the Bet Mikdash – money, goods, a sacrifice – that "something" technically becomes the possession of God, in the keeping of the Temple Treasurer. The article is termed in Hebrew hekdesh. From the moment that the donor so decided in his or her mind to make the donation the commodities become the property of the Bet Mikdash and anyone deriving benefit from that property is guilty of sacrilegious embezzlement [me'ilah]. Hekdesh is therefore the status of material goods or monies declared by their owner to be dedicated (i.e. donated) to the Bet Mikdash. From that moment they cease to be the property of their erstwhile owner and become, in picturesque language, the property of Heaven. It follows from the rule of our mishnah that the Temple authorities cannot sue a person for damage caused to any item that is hekdesh because that item does not belong to them: it belongs to God who does not need recourse to the deliberations of a human court. (A further reason will become apparent below.)

6:
Our mishnah also rules that the damaged property must belong to a Jew. At first glance this would seem to be very discriminatory (and in a certain sense it is). The sages [BK 4:3] explained the reasoning for exempting hekdesh as deriving from the fact that the Torah [Exodus 21:35] specifically rules:

And God is not anyone's neighbour! It may be that the sages applied the same kind of reasoning in the case of the non-Jew: he does not come under the category of 'neighbour'. ('Neighbour', not in the sense of proximity of domicile but in the sense of belonging to the same society.) However, this reasoning may simply be a way of 'justifying' the exclusion of the non-Jew for more practical reasons. It is highly unlikely that in Talmudic times any non-Jew would recognise the authority of a Jewish court. If a Jew damaged the property of a non-Jew the latter would sue the Jew in a non-Jewish court.

To be continued.