Bava Kamma 015

I am studying Mishnah in memory of Yitzḥak Rabin, son of Rosa and Neḥemya.

1:
Before we begin our study of our present mishnah we should take note of the date. Today is the fourteenth Yahrzeit of Yitzḥak Rabin z"l, and at the top of our shiur today appears the banner that appeared at the start of every shiur in the Rabin Mishnah Study Group during that first year. Which reminds us, of course, that the Yahrzeit is not only the anniversary of the Prime Minister's death but it is also the fourteenth anniversary of the Rabin Mishnah Study Group, which has developed into the Virtual Bet Midrash. (If you would like to learn more about the origins of the Virtual Bet Midrash you will find information here in an article I wrote four years ago in celebration of our tenth anniversary.) After this introduction we can turn our attention to the first mishnah of chapter 3.

2:
We must always bear in mind that the public domain is there for the use of everybody and all who use it have equal rights. The term 'public domain' usually serves to indicate a road, a market place, a public garden and so forth. The 'public domain' belongs to everybody; the 'private domain' belongs to someone in particular.

3:
Depending on how we view the inter-relationship between its various sections our present mishnah consists of two or four clauses.

4:
In the first clause we can imagine our hapless David walking through the market place carrying a pitcher of water. The pitcher is heavy and so he sets it down so that he can take a rest. Meanwhile, Sara comes along, carry a heavy load of shopping. She trips on David's pitcher which is smashed to pieces. Poor David can expect no restitution, neither for the smashed pitcher nor for the water that was spilled from it.

5:
The reason why David loses out is because, as we have stated repeatedly, Sara has the same right to use the public domain as has David. If David sets something down in the market place or in the road he must keep a careful eye on it – because no one else will!

6:
Of course, you might claim that Sara has a duty to pay due care and attention. The Gemara [BK 27b] asks this very question of our mishnah:

In the discussion that follows this opening question the Gemara suggests several scenarios that might explain this ruling of the mishnah: perhaps the whole 'public domain' was blocked by pitchers, so there was no way round; perhaps it was in the hours of darkness when one cannot see clearly; perhaps the pitcher or pitchers were set down after a blind corner so that anyone coming round the corner would not be able to see them in time. Such eventualities might explain why Sara, in our scenario, would not be held liable.

7:
But our mishnah is not referring to special circumstances: it is referring to every-day occurrences. After the sages of the Babylonian Talmud have exhausted their ingenuity in suggesting ways to understand this ruling which seems to have been puzzling for them, the Gemara [still BK 27b] points out that in Eretz-Israel they explain the mishnah in a much more simple way:

In other words, people using the public domain do not expect that they must constantly be on the look out for things that other people have left lying around. And if David has left his pitcher in Sara's way Sara is not liable for any damage that may occur.

To be continued.

David Morris writes:

I'm confused about the rules governing an ox that eats k'darcho [in an ordinary manner] in r'shut harabim [the public domain]. If my ox eats its usual food while in r'shut ha rabim [the public domain], what do I have to pay? In 2:2, [it] says that in r'shut harabim [the public domain], "patur." [excused liability]. Does that mean the owner pays nothing? Pays the amount his ox benefited? When I went back to our lesson on that mishnah, I read [BK 010, paragraph 5]:

The rules that we have outlined in the two previous paragraphs only apply when the damage is done in the public area. The reason for this is because the public area belongs to everyone equally. So David is just as entitled to lead his animals through the public area as Sara is to leave her personal belongings lying around there. Where both have equal rights Sara can only claim damages from David for the destructive actions of his animals that could be reasonably foreseen. If the damage was caused in Sara's private domain the rules outlined above apply.

I respond:

At the heart of David's misunderstanding is what the ox is eating. If, in the public domain, David's ox was eating food that David himself had provided, of course David does not have to pay anything at all! The question arises only if David's ox eats something that does not belong to David. The issue is then whether what the ox ate was the kind of food that one can expect an ox to eat or whether it was something extraordinary. If his ox eats food belonging to someone else (say from a stall in the market) and it is something that is good for the ox to eat David will be expected to make restitution in the amount of his saving: how much would the animal's lunch have cost him? (We have discussed the minutiae of this aspect before.)

David also asks where "above" did we outline the rules governing intrusion into a private domain. In BK006 I wrote in explanation #4 as follows:

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 and he must take precautions to prevent his animal from intruding into private domains.

I hope this helps.