Bava Kamma Chapter Three Mishnayoth Three-Four

 

Introduction

The first mishnah we deal with today continues to discuss the topic of damages caused by a person’s property in the public domain.  We learned in the previous two mishnayoth that if a person brings his belongings out to the public domain and someone damages them, the damager is not liable.  Furthermore if someone is injured by these belongings, their owner is liable.  This mishnah will add in a third principle:  if a person brings an item out to the public domain, an item which is potentially damaging to others, any person who finds that item can take it.  In other words, the owner of the item is punished for endangering other people’s safety.

Today’s second mishnah deals with the liability of a person who trips in the public domain and thereby causes damage to another.

 

Mishnah Three

1)                     If a man put out his chopped straw and stubble into the public domain to make them into fertilizer, and another was injured thereby, he is liable for his injury, and whoever comes first may take possession of them.

a)                                           Rabban Shimon ben Gamaliel says:  “Whoever leaves things that are disruptive in the public domain, and these cause damage, must make restitution, and whoever comes first may take possession of them. 

2)                     If a man turned over a piece of cattle dung in the public domain and another was injured thereby, he is liable for injury.

 

Mishnah Four

1)                     Two pot-sellers were walking one behind the other and the first stumbled and fell, and the second fell on the first, the first one is liable for the injury caused to the second.

 

Explanation

In mishnah three a person put out straw and stubble in order to make fertilizer for his field.  The mishnah states that this is an illegal action, the consequences of which are liability for damages done to others and loss of property.  Note the double punishment:  1)  anyone can claim the straw and stubble, meaning they are not really his anymore;  2)  nevertheless if someone is injured by them, we make the owner, who is not really the owner anymore, pay for the injuries.  Evidently the mishnah sees bringing the straw and stubble out to the public domain as a grave offense.

Section two deals with a situation where a person saw an ownerless piece of dung in the public domain.  (Believe it or not, people wanted to own this dung for fertilizing.)  By turning it over, he has taken possession of the dung.  Therefore if someone else is injured by it, he is obligated.  The mishnah teaches that once you technically own something, you now have to make sure it doesn’t injure someone else.

 

Mishnah four teaches us the principle that accidentally stumbling is not an excuse for causing damages.  Although the person who tripped certainly did not intend to do so, and probably caused damage to the things he himself was carrying (pots), he is still liable. He should have walked more carefully.

 

Questions for Further Thought:

·                      What is the difference between Rabbi Shimon ben Gamaliel’s opinion and the statement that immediately preceded him?   Is there even a disagreement in this mishnah?

·                      Mishnah four uses the example of pot-sellers.  Why use this example?  What piece of information might the mishnah be teaching by using this example and not, for instance regular pedestrians?

·                      What are some modern day situations that are similar to these mentioned in the mishnah?  How does modern law differ?  How is it the same?

 

 

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