Bava Kamma 016

8:
We continue our study of the present mishnah from the point where we left it at the end of the previous shiur. We have established that if a person leaves a pitcher in the public domain and someone else trips over it and breaks it the person who broke the pitcher is not liable for damages, because people are not required to "look where they are going".

9:
Let us return to our scenario: David left his pitcher on the ground in the public thoroughfare and Sara tripped over it. Not only is Sara not liable for the damage she caused but if she is injured by the broken pieces of the pitcher David can be sued by her for damages. It is perhaps useful to note that our mishnah begins with a pitcher and then continues with a cask. We learn from this that these are only examples and that anything left in the public domain, attended or otherwise, is an obstacle to the right of the public to pass through the public domain unhindered.

10:
The next scenario offered by our mishnah: Miriam is carrying a pitcher of water and somehow the water spills out. Sam come along – not looking where he is going as is his right – and slips on the spilled water: Miriam will have to pay Sam damages.

11:
The same would apply if Miriam had dropped the pitcher and Sam was injured by the fragments rather than slipping in the puddle of water. This is the view of Tanna Kamma. However, Rabbi Yehudah bar-Ilai makes a distinction between two possible scenarios. He says that if Miriam dropped her pitcher deliberately she will have to pay Sam damages for any injury he suffers; but if she dropped the pitcher accidentally she will not be held liable.

12:
You will notice that Rabbi Yehudah disagrees with the unidentified sage whom we designated Tanna Kamma. However, in the Gemara [BK 28b] the sages are of the opinion that in this case Tanna Kamma can be identified and that he is the colleague of Rabbi Yehudah, Rabbi Me'ir. From the discussion in the Gemara it appears that Rabbi Me'ir is of the opinion that even when something happens accidentally the person who caused the obstruction is liable. Rabbi Yehudah does not accept this: when I cause an obstruction in the public domain quite unintentionally I cannot be held responsible for possible damage that might ensue.

13:
The Gemara now continues its discussion:

Rabbi Me'ir holds that if Miriam's pitcher was broken as a result of Sam stumbling against her then Sam is liable even if he stumbled quite accidentally. Rabbi Yehudah disagrees. Halakhah follows the opinion of Rabbi Yehudah.

Amnon Ron'el writes:

The definition of 'viciousness' because of three consecutive days could be wrong insofar as that is a period of pain, illness or some temporary and one-time factor that lasts for three days: it should be considered as one time. Three separate times, distant from each other, would be more fair. The definition of 'docility' according to this mishnah, reminds me of the system of filling in the soccer 'toto' by the "Pale Scout": throw the children into the sea. If one comes back mark '1', if two come out mark '2', and if neither returns mark 'x'.

I respond:

Firstly let us clarify what Amnon has to say. In BK 012 we learned that according to the opinion of Rabbi Yehudah if an animal was brought to court for having inflicted harm three days in a row it is considered to be 'vicious'; Rabbi Me'ir only required three court appearances in the animal's lifetime. On the other hand, Rabbi Me'ir holds that and animal reverts back to the presumption of docility "when children can touch it and it does not butt".

Amnon is right in his assumptions; but I would imagine that the consideration that was uppermost in the mind of Rabbi Yehudah was that if an animal was indeed dangerous it should be restrained as soon as possible – even if the 'viciousness' was a passing phase caused by some temporary factor. By accepting the opinion of Rabbi Me'ir regarding a return to a 'docile' status the sages created a mechanism whereby an animal was restored to its former presumption of docility as soon as the change could be reasonably assumed.

Amnon also refers to two icons of Israeli 'culture'. One is his reference to a very popular entertainment trio (which has since ceased to perform) some of whose sketches became part and parcel of Israeli consciousness. This trio was known as the "Pale Scout" (ha-Gashash ha-Ḥivver). The other icon is 'toto', which refers to betting slips in which people bet on the outcome of soccer matches.

A very dear friend is coming to visit me from abroad and I shall be devoting all my time to him. Therefore, God willing, the next shiur in this series will be on Tuesday, November 17th.