Bava Kamma Chapter Five Mishnayot Two and Three

 

Introduction

The two mishnayoth which we will learn today are concerned with damages that occur on the property of the damaged party.  In mishnah two we will learn about a pottery maker or a produce seller who brings his ware onto another person’s property and it either causes damage or is damaged.  In mishnah three we will learn about a person who brings his ox onto another person’s property and again it either causes injury or is injured.  In both of these cases we will learn the following general rules:

1.                     If a person’s belongings are damaged after he brought them onto another person’s property without permission the owner of the property is not liable.

2.                     In such a case if a person’s belongings cause damage on another person’s property he is liable.

 

Mishnah Two

1)                     If a potter brought his pots into the courtyard of a householder without permission, and the householder’s cattle broke them, the householder is not liable.

a)                                           And if the cattle were injured by them (by the pots) the owner of the pots is liable.

b)                                          But if he brought them in by permission the owner of the courtyard is liable. 

2)                     If a man brought his produce into the courtyard of a householder without permission, and the householder’s cattle ate it, the householder is not liable.

a)                                           And if the cattle were injured by it (by the produce) the owner of the produce is liable.  

b)                                          But if he brought it in by permission the owner of the courtyard is liable. 

 

Mishnah Three

1)                     If a man brought his ox into the courtyard of a householder without permission and the householder’s ox gored it or the householder’s dog bit it, the householder is not liable.

a)                                           If [the first man’s ox] fell into [the householder’s] cistern and polluted its water, he is liable.

b)                                          If [the householder’s] father or son was in [the cistern and it killed them] the ox’s owner must pay the ransom price. 

c)                                           But if he had brought his ox in by permission the owner of the courtyard is liable.

2)                     Rabbi says:  “In no case is [the householder] liable unless he had agreed to watch over it. 

 

Explanation

Sections one and two of mishnah two are very similar and can be explained simultaneously.   If a person brings his belongings onto another’s household without permission he is obligated for any damage his belongings will cause.  In addition he will not receive compensation if his belongings are damaged by the belongings of the owner of the household.  After all, the householder can say I never gave you permission to come onto my property.  In modern terms this would be called trespassing.  However, if he received permission to come onto the property the laws are reversed.  The mishnah explicitly states that if the person’s belongings were damaged the owner of the household, whose belongings caused the damage, is liable.  It can be assumed, although it is not stated explicitly, that in such a case if the person’s belongings caused damage to the belongings of the household owner he would not be liable.

The first two clauses of mishnah three are similar to what we learned in the previous mishnah.  We again learn that if a person brings his belongings onto another person’s property without permission and they are damaged he will not receive compensation and if they cause damages he is liable. In clause b we learn an additional law.  If when falling into the cistern the ox kills a person, the owner of the ox is obligated to pay the ransom price mentioned in Exodus 21:30.  As we learned in chapter four mishnah 5 when an ox kills a person, the owner of the ox is obligated to pay a ransom price to the family of the deceased.  In our mishnah we learn that falling into a cistern is similar enough to goring that the ox’s owner is obligated.

At the end of this mishnah we learn that Rabbi (Rabbi Judah Hanasi) holds an opinion different from that held in the anonymous previous portions of the mishnah.  According to Rabbi, allowing a person to enter one’s property is not tantamount to accepting upon oneself the obligation to watch over that person’s belongings.  When I allow you to bring your belongings onto my property, I may still assume that you will watch over your things.  Therefore, if they cause damage you are still obligated and if they are damaged I am exempt.  According to Rabbi, a person does not accept the responsibility for watching the belongings until he states so explicitly.  The other opinion in the mishnah held that by allowing a person to enter one’s property on is implicitly accepting upon himself the responsibility for that person’s belongings.

 

Questions for Further Thought:

·                      Why do these two mishnayoth need to teach three examples, pottery owner, produce owner and ox owner, of people who bring their belongings onto another’s property?  If we only had one example would we necessarily have been able to learn the other two examples?

·                      In chapter four mishnah six we learned that if an ox rubs up against a wall and knocks over the wall and it kills a person, the owner of the ox is not liable to pay the ransom price.  What is different about this case that distinguishes it from the case in our mishnah (5:3)?  In other words, in light of what we learned in chapter four mishnah six, when the ox falls into a cistern and kills a person why should the owner be liable? 

 

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