Bava Kamma Chapter Eight Mishnayoth Four and Five

 

Introduction

Mishnah four deals with two sets of exceptional categories to personal injury law:  the first set includes deaf-mutes, idiots and minors; the second set includes married women and slaves.  People who fit into these categories receive payment if someone else injures them and yet do not pay if they injure someone else.

Mishnah five teaches opposite scenarios from those we learned in mishnah three.  The law mentioned here reiterates the principle that a person cannot be obligated for the death penalty and a financial penalty for the same crime. 

 

Mishnah Four

1)                     It is losing proposition to meet up with a deaf-mute, an idiot or a minor:

a)                                           he that injures them is obligated;

b)                                          and they that injure others are exempt. 

2)                     It is a losing proposition to meet up with a slave or [married] woman;

a)                                           he that injures them is obligated;

b)                                          and they that injure others are exempt.

i)                                                       However, they pay after some time;

ii)                                                      if the woman was divorced or the slave freed they are liable for restitution.

 

Explanation—Mishnah Four

According to our mishnah there are several categories of people who receive payment for injuries done to them but do not pay if they injure others.  Section one lists people who according to Jewish law are not capable of taking responsibility for their actions.  Therefore if they injure others they are not legally obligated.  However, the mishnah points out that this is not a reciprocal law.  If one injures them he is still obligated for remuneration.  These people, while not halachically capable of being responsible for their own actions, are still human beings and deserve both the protection that the law affords through the right to compensation if injured.  One who injures them is obligated, therefore, on all five counts mentioned in mishnah one.

The second category of people who receive payment for injuries done to them but do not pay if they injure others are slaves and women.  Slaves and women cannot pay others because their money is linked to their master or to their husband.  There is, however, significant difference in this matter between slaves and women.  Non-Jewish slaves own no property; everything they acquire belongs to their master.  They therefore have no money with which to make financial compensation.  In contrast, married women can own property.  However, a woman’s husband has a lien on her property and he also has the right to the benefits of the property.  For instance if she owns a piece of land, she cannot sell it without her husband’s consent and he gets the benefit of what is grown on the land, as long as they are married.  Therefore she doesn’t own any property that is totally available for which to make compensation if she should injure someone else.  However, the mishnah teaches that once the slave is freed or the woman divorced or widowed, they now have the obligation to compensate the person they injured. 

 

Mishnah Five

1)                     If a man struck his father or mother and left a wound, or if he wounded his fellow on the Sabbath, he is not liable for any of the [five] counts because he is liable for his life.

2)                     If a man wounded his Canaanite (non-Jewish) slave he is not liable on any of the five counts.

 

Explanation—Mishnah Five

Striking one’s father or mother and causing a wound or wounding another person on the Sabbath are all capital crimes.  Since the person is sentenced to death, he is not obligated for the death penalty.  (For more on this clause see the explanation to Mishnah three).

A non-Jewish slave is considered the property of his owner and cannot own any money.  Therefore one who injures his own non-Jewish slave does not make any payment, since he would pay the money to himself in any case.

Note that this is not a license to injure non-Jewish slaves.  According to Exodus 21:26-27 if a man should strike his slave and cause him to lose his eye or tooth the slave must be set free. The Rabbis expanded this law to include losses of other body parts.

 

Questions for Further Thought:

·                      Will a minor who has injured another person while still a minor become obligated to make the financial compensation when he achieves maturity?  Why or why not?

·                      If a married woman or slave injures why shouldn’t her husband or his master make the payment? 

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