Bava Kamma 011

1:
Our present mishnah continues to give examples of incidents that would justify full damages and incidents that would justify half-damages. In mishnaic times there were several creatures that "nice" people did not keep in their homes. When we reach Chapter 7 we shall find the following mishnah:

The 'small herd animals' referred to in this mishnah are mainly goats and reading between the lines we can guess that the dogs were wild dogs.

2:
In mishnaic times the ruling against keeping goats was strictly enforced – at least among the sages. In the Gemara [Temurah 15b] we find the following story:

Goats are notorious scavengers, and they were liable to eat all the crops and grass in the local fields: thus they were "an armed robber" and forbidden in "polite society".

3:
Dogs and goats are considered to be animals that must be kept under close guard. Therefore, if they cause any damage their owner will be required to make full indemnity.

4:
The other example given in our mishnah is that of a dog whose behaviour creates a chain of disasters, as it were. Fido steals a cake from off the range of the local baker. Some of the embers from the range still stick to the cake. Fido finds a nice, quiet hiding place behind a haystack to eat the stolen cake and the embers cause the hay to ignite and the stack is burned down. Regarding the stolen cake Fido's owner must make full restitution: if he had kept Fido on a chain as he was supposed to the dog would not have been able to steal the cake. However, regarding Farmer Giles' haystack it is a different matter: such an eventuality could not have been foreseen even if Fido were not on a leash, so Farmer Giles will only get half-damages.

In response to a couple of queries: before we begin today's discussion I feel that I must explain my method in presenting your messages. I present them in the order that they reach me. I do this because there are many regular participants who are not able to read a shiur on the day that it arrives in their inbox but read it some time later. Their questions are just as valid as those sent to me on the same day as I published a shiur. Another possibility is that a certain issue resulted in many messages and I present them before I can continue with later material. It thus can happen that in the discussion section I deal with an issue which was the subject of our studies quite some time 'after the fact'. That is why I include a link to the original shiur for the convenience of those who wish to refresh their memories.

In BK003 I wrote:

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.

Reuven Boxman writes:

So why is this only partial responsibility, if it was Sara whose action turned the pit legally into a hazard? If she is then totally responsible, this provision is not relevant. If she was only partially responsible, than someone else is also partially responsible, i.e. David. So that question is whether David is then totally responsible for the damages as well? The above example does not seem the most appropriate to explore the implications of "If I am partially to blame for damage caused I may be liable to make restitution as if I had caused all the damage." Let me give an alternative example. Let us say a building collapses because of several faults:

1. the steel reinforcing rods supplied by a steel company were 10% below specifications,
2. the cement supplied by the cement company was 10% weaker than it should have been, and
3. the building contractor built the 3rd story was 10% higher than specified.

If there had been only 1 or even two faults, the building would have survived. Thus the steel company, the cement company, and the building contractor are all partially responsible (quite possibly together with others such as the engineer, the architect, the municipal inspectors, the standards institute, etc., who should have been checking and supervising, but lets not complicate the issue). Under these circumstances of true partial responsibility, is every one of the above three liable for all of the damages?

I respond:

I have already answered Reuven's first point. [See BK006.] Reuven's excellent examples illustrate a different point, one which was not the subject of our mishnah. It is quite possible that two or more people will be joint malfeasants. But their joint responsibility must be ab initio. That is to say that both or all of them were responsible for the whole of the tort. It would be nearer to the subject of the mishnah if Reuven had offered an example where contractor number 1 had fulfilled his task admirably but contractor number 2, who had to add to the task, was negligent. But in such a case only contractor number 2 would be held guilty of negligence for all the damage caused by his malfeasance.