Bava Kamma Chapter Three Mishnayot 1-2

 

Introduction

The following two mishnayot (plural of mishnah) deal with damages that a person’s possessions might cause in the public domain.  In general if a person leaves something in the public domain and someone else comes along and breaks it the person who broke it is not obligated to pay for the broken item.  Furthermore, if the person who breaks the object is also injured while doing so, the owner of the object will be liable for his injuries. 

 

Mishnah One

1)                     If a man left a jug in the public domain and another came and stumbled over it and broke it, he is exempt. 

a)                                           And if he was injured by it, the owner of the jug is liable for his injury.

2)                     If a man’s jug broke in the public domain, and another slipped on the water, or was hurt by the potsherds, he is liable.

a)                                           Rabbi Judah says:  “If he [broke the jug] with intention, he is liable,

b)                                          But if he broke it without intention he is not liable.”

 

Mishnah Two

1.                     If a man poured out water in the public domain, and another was injured thereby, he is liable for his injury. 

2.                     If a man hid thorns or glass [in the public domain] or made his fence out of thorns, or if his fence fell into the public domain and others were thereby injured, he is obligated for their injury.

 

Explanation

In the first section of mishnah one we learn that a person does not have the right to leave his objects in the public domain.  Therefore if he should do so and another should come along and break the object, the person who broke it is exempt and if he should be injured the owner is liable.

In section 2 Rabbi Judah teaches us a new principle, that of intention.  If a person accidentally put a damaging object into the public domain he is not liable for subsequent damages.  One is only liable if he put the damaging object into the public domain on purpose.

The second mishnah lists some common ways in which a person might put a damaging object into the public domain.  In section 2 we learn that even though he may have tried to keep them out of people’s way, if they are harmful materials he is responsible for subsequent damages.

One might want to consider the implications these mishnayot have on modern ecological problems.  The sages considered the public domain to belong to everyone and as such no one was allowed to place there potentially dangerous material. 

 

Questions for Further Thought:

·                      What is the difference between the cases in clause 2 of the first mishnah and clause 1 of the second mishnah?

·                      Rabbi Judah distinguishes between deliberate and inadvertent breaking of the jug.  Evidently the sage(s) who taught the clause preceding Rabbi Judah did not make such a distinction.  According to them one would be obligated even if the jug broke accidentally.  What is the logic behind this opinion?

·                      The first clause of mishnah one says that when one stumbles on a jug left in the public domain he is not obligated.  What might the law be if he broke it with intent?  Would he still be exempt or would he be obligated?

 

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