Bava Kamma 006

1:
Damages could be claimed in two forms: full damages or half damages. Half damages will be awarded when there was no reason that the defendant should have expected that the damage could be caused, and therefore was not required to take precautions. Full damages would be awarded when the defendant had not taken necessary precautions to prevent the damage.

2:
The difference between the two possibilities is, as usual, defined in terms of "the ox". An owner is not required to take precautions to prevent damage by his ox if there was no reason to foresee the possibility of such damage. Such an ox is termed tam in Hebrew; I have rendered this term as 'harmless', but it refers to presumed innocence. However, once an ox has "been taken to court" for damage inflicted it is called mu'ad. This means literally that evidenced has been offered against him, and therefore his owner was warned by the court that from now on he must take precautions to prevent this animal from doing damage. I have rendered this term 'vicious'.

3:
So that the courts need not waste their time determining whether an animal's behaviour comes within the category of tam or mu'ad certain behaviours are standardised. Thus our mishnah rules that five behaviours are automatically determined to be tam, harmless:

1. goring: there is no reason to assume that an animal might do so until it has actually done so;
2. butting: this refers to an animal pushing with its horns without inflicting the physical damage caused by goring;
3. biting: technically referred to as damage caused by 'the tooth';
4. lying down: herd animals do lie down and this action might cause damage if performed outside its usual habitat;
5. kicking: technically referred to as damage caused by 'the foot'.

4:
However, there are five instances where the behaviours must be foreseen and therefore must be determined as being mu'ad, vicious, even if the matter has never yet been taken to court:

1. The owner must always take precautions against his animal eating any suitable food that comes its way;
2. He must also take precautions against his animal breaking things as he ambles along;
3. There is also 'the vicious ox' which refers to an animal which has previously been 'taken to court';
4. The owner must always be held responsible for damaged caused by his animal in the private property of the person who has sustained the damage: he cannot claim that the animal's behaviour was unexpected. He must take precautions to prevent his animal from intruding into the private domain of other people;
5. Human beings, perhaps the most 'vicious' of all animals: the defendant cannot claim that 'this is my first time in court'.

To be continued.

In the mishnah [BK003] we read:

And I brought an illustration in which Sara deepened a hole which had originally been dug by David.

Jim Feldman writes:

I am struck in Bava Kamma 003 with "the other side" of your argument in your David-Sara tale. In American law, the lawyer representing the plaintiff in the tort inevitably would sue both David and Sara for the simple reason that David's pockets might be deeper. The apportionment of responsibility in the US differs state from state. Some states permit full collection of damages from anyone who has some responsibility; other states demand proportional assessment. If I read the clause in Torah correctly, the rule there is that both David and Sara are responsible. I do not see how Sara could be solely responsible. I could argue that David owned the hole. If he left it open, then he is at least partially responsible for Sara's access to it. If David has some responsibility, then the Torah says that he can be held liable for some or all of the damage. It has not yet said how that apportionment shall be made, but rabbinical judges need employment too.

I respond:

In my illustration David dug a hole to a depth less than ten handbreadths. According to Torah law that hole was not deep enough to permit anyone to claim damages from David. Sara extended the hole for her own purposes and in doing so made it more than ten handbreadths deep. If Sam stumbles into the hole and breaks his leg he may sue Sara for damages. Sara will not be able to claim that she is only partially liable since David was also involved in digging the hole: no claim could be made on David's action. Therefore, although from the practical point of view Sara was only partially responsible for creating the hazard she must make restitution as if she were the only party responsible for the damage.

Jim also quips that "rabbinical judges need employment too". That may be true, but they would not be permitted to get that remuneration from their task as a judge. In the "good old days" rabbis were expected to earn their living, and to administer Torah gratis. In the Gemara [Ketubot 105a] we learn of a mishnah which rules that "the verdicts of one who takes payment for sitting in judgement are invalid." In the discussion which follows we learn from the Gemara that the most that a judge was permitted to receive was payment in equal amounts from the plaintiff and the defendant that would allow him to recoup earnings that were lost as a result of his sitting in judgement. And before Jim quips further let me add that the judge had to prove that the sum demanded was his actual loss. Où sont les neiges d'antan? [Where are the snows of yesteryear?]