Bava Kamma Chapter Six Mishnayoth

One through Three

 

Introduction

At the end of chapter five we learned the laws of damages done by a pit, the second archetypal cause of damage listed in the first mishnah of the tractate.  The first three mishnayoth of chapter six will deal with the third archetypal cause of damage, the crop-destroying beast.

 

Mishnah One

1)                     If a man brought his flock into a pen and shut it in properly and it went out and caused damage, he is exempt.

a)                                           If he had not shut it in properly and it went out and caused damage, he is liable.

2)                     If the pen was broken through at night, or bandits broke through it, and the flock came out and caused damage, he is not liable.

a)                                           If the bandits brought out the flock, the bandits are liable.

 

Mishnah Two

1)                     If he left the flock in the sun, or he delivered it to the care of a deaf-mute, an idiot or a minor, and it came out and caused damage, he is liable.

a)                                           If he delivered it to a shepherd, the shepherd takes the place of the owner.

2)                     If the flock fell into a garden and derived any benefit, he pays for the benefit. 

a)                                           If the flock went down [into the garden] in its usual way and caused damage, he must pay for the damage it caused.

3)                     How does he pay for the damage it caused?

a)                                           They assess what a seah’s space of ground in that field was worth before and what it is worth now.

b)                                          Rabbi Shimon says:  “If they consumed fully grown produce he must repay with fully grown produce; if they destroyed on seah he must repay one seah, if two seah, two seahs

 

Mishnah Three

1)                     If a man stacked his sheaves in his fellow’s field without his permission, and the owner of the field’s beast ate the sheaves, he is exempt.

a)                                           If [the beast] was injured by them, the owner of the stack is liable.

b)                                          If he made the stack with his permission, the owner of the field is liable.

 

Explanation

Mishnah One

·                      Section one teaches that if a person were to properly enclose his flock and nevertheless the flock were to escape, the person is exempt.  Since he fulfilled his responsibility he is not liable for damages.  However, if he didn’t enclose the flock properly he will be liable.

·                      Section two can be explained as an exception to the rule in section one that if he didn’t enclose the flock properly he is liable.  Section two teaches that if the flock broke out at night (i.e. they broke the enclosed part of the fence) or bandits broke the fence, the owner is exempt, even though he did not properly lock the fence.  The owner is not liable since the animals broke out against his control, even though they could have gone out through the main gate, thereby making him liable.  If, on the other hand, they were to have broken the fence during the day, and he didn’t lock it properly, he is liable.  (There are other explanations to this section).  The final clause of the mishnah says that if the bandits physically let out the flock, they are liable if it causes damage.

 

Mishnah Two

·                      Section one deals mostly with the owner of the flock turning his flock over to another person.  If he should turn it over to someone who cannot take proper responsibility for the flock, he will still be liable for damages.  However, if he turns it over to a shepherd, the shepherd now becomes liable for any subsequent damages.  In the beginning of the mishnah we additionally learn that if he leaves the flock in the hot sun and they break out, he is liable, even if he properly enclosed them.  Leaving animals in the sun, where they will overheat, will drive them to go crazy and break out.  Since he should have anticipated the consequences, he is liable.

·                      Section two deals with a flock that entered a garden and ate the produce.  If the flock fell into the garden, the owner is not liable for damages because it was an unavoidable accident.  (Note, that in Israel crops are often grown on the sides of hills.  Falling into a garden is not, therefore, an unlikely circumstance.)  In this case he will be liable to pay only for what the animal benefited.  (See Bava Kamma 2:2 for a definition of this assessment).  If, however, the flock entered the garden in a normal fashion, he is obligated to pay for actual damages, which will be a higher payment.  Section three contains a dispute on how to assess payment for crop damages.  According to the first opinion one estimates how much an area of the field that could grow a seah was worth before the flock ate the row of crops and how much it was worth after.  The difference is the damage payment.  Rabbi Shimon holds that we assess damages based on the crops actually eaten.  His assessment will certainly be higher than the assessment based on the previous opinion.

 

Mishnah Three

This mishnah contains laws that were all learned previously in chapter five mishnah three.  We will just summarize.  If someone brings his belongings onto another’s property without permission and his belongings are damaged there, the property owner is not liable.  If the belongings damage the other person’s property he will be liable.   However, the reverse will be true if he brings the belongings with the other person’s permission.

 

Questions for Further Thought:

·                      What might be another way of explaining mishnah one section two?  What are the advantages and disadvantages of the different explanations?

·                      In mishnah two why is Rabbi Shimon’s assessment of damages a higher assessment?

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