Bava Kamma Chapter One Mishnah Four
This mishnah introduces us to an extremely important concept in Mishnaic damage law, that is the difference between agents of damage which are likely to damage and those that are not likely to damage. The first are called muad, warned or attested danger and the second are called tam, innocent, or usually harmless. We will continue to talk about these concepts as we proceed to learn Bava Kamma. The major difference between these two types of agents of damage is that a person is obligated for full restitution on the first type and only half restitution for damages done by the second type. The idea lying behind this concept is that a person who owns, for instance, an animal that is likely to cause a certain type of damage should be aware of this and therefore guard the animal more carefully. The Torah already speaks of this concept in Exodus 21:29 with regards to the ox that is known to gore.
1) Five [agents of damage] rank as harmless and five as an attested danger.
a) Cattle are not an attested danger to butt, push, bite, lie down, or kick.
b) The tooth [of an animal] is an attested danger to eat that which is for it;
c) The leg [of an animal] is an attested danger to break [things] as it walks along;
d) So also is a warned ox [an ox that has gored before];
e) And an ox that damages in the domain of the damaged party,
f) and human beings.
2) The wolf, the lion, the bear, the leopard, the panther and the snake all rank as attested danger. Rabbi Eliezer says: When they are tame they are not attested danger, but the snake is always an attested danger.
3) What is the difference between that which is harmless and that which is an attested danger? The harmless pays half-damages from its own body and the attested danger pays full damages from the best property (of its owner and guardian).
The mishnah lists various types of damaging agents and categorizes them all into things which are likely to cause damage and things that are unlikely to do so. Furthermore, the beginning mishnah distinguishes between different activities of a domesticated animal, some of which the animal is likely to do and some that it is unlikely to do. For instance, a normal cow is unlikely to kick and therefore if it causes damage by doing so, the owner is only obligated half damages (section 1a). However, the cow is likely to trample on things over which it walks(section 1c), and therefore if it damages in this manner, the owner is obligated for full restitution. Wild animals are always likely to damage (section 2) and therefore if one owns a wild animal he will be obligated for full restitution for any damage the animal might cause. Human beings (section 1f) who cause damage are always obligated full restitution.
Section 3 explains the two differences between harmless and attested agents of damage. The first I already explained in the introduction. The second difference is that if the owner of a harmless agent of damage becomes obligated to pay damages, he must only make restitution up to the value of the animal that caused the injury. For instance if my cow that is worth 1000 dollars should kick you, thereby breaking your 5000 dollar Rolex diamond and gold watch, I am only obligated to pay 1000 dollars. Even though half damages are 2500 dollars I cannot be obligated more than the total value of the cow that caused the injury. Kicking is not an attested form of damage, at least for a cow. However, if my cow were to do the same action, however this time on your property, I would have to pay the full 5000 dollars (see section 1e).
For further explanation of the concepts of tam and muad see the Steinsaltz Reference Guide, pages 212 and 272. One can also find entries there for shen (tooth), page 268, shor (ox), page 264), regel (leg), page 257, and adam muad laolam a person is always an attested danger), page 158. The concepts of hezi nezek (half damages), page 193 and nezek shalem (full damages), page 228, are explained there as well,. Again, we will continue to learn these concepts as we proceed.
Questions for Further Thought:
· Why is a human being (section 1f) always considered an attested damager (muad)?
· This is the first mishnah in the tractate in which we see a dispute between the sages, here between Rabbi Eliezer and the previous opinion (section 2). What are they arguing about?