Bava Kamma Chapter Two Mishnah Five

 

Introduction

This mishnah deals with one of the clauses from mishnah four of chapter one, which stated that the owner of an ox that damages on the property of the damaged party is obligated for full damages.  If the same ox had committed this type of damage in the public domain the owner would only be obligated half damages.  However, since a person should be extra careful when they bring their animal onto another person’s property the owner is more liable.  Being a father of two little children, the following, albeit imperfect analogy, comes to mind.  If I bring an expensive toy over to my son’s friend’s house, and one of the children breaks it, I believe I am at fault.  However, if someone brings their child over to my house, and breaks something I believe that they should be at fault.  There are many more analogies that one could make; this was just an example.

One important note with regards to learning the mishnah.  We will see a dispute between the sages and Rabbi Tarfon, and as part of this dispute the sages will state that, “It is enough if the inferred law is as strict as that from which it is inferred.”  This principle means that when you learn a law regarding one situation from a law regarding a similar situation, the inferred law does not need to be stricter than the original law from which it was inferred.  This principle is learned from Numbers 12:14 where God punishes Miriam for speaking against Moses.  God says, “If her father spat in her face, would she not bear her shame for seven days?  Let her be shut out of camp for seven days.”  God says that had her father rebuked her, Miriam would have been punished for seven days.  One might have thought that God’s rebuke would carry an even more serious consequence.  The Torah teaches us the aforementioned principle that the inferred law, the length of Miriam’s punishment when God rebukes her, is not stricter than the law from which it was inferred, the length of Miriam’s punishment had her father rebuked her.

 

Mishnah

1)                     “An ox which causes damage in the private domain of him that is injured”—how is this so?

a)                                           If it gored, pushed, bit, lay down, or kicked in the public domain its owner pays only half damages.

2)                     But if in the private domain of him that is injured,

a)                                           Rabbi Tarfon says, “He pays full damages.” 

b)                                          The Sages says, “Half damages.”

3)                     Rabbi Tarfon said to them: “Now, in a case in which the law dealt leniently with regards to damages caused by the foot and tooth in the public domain, in which case he is exempt, and stringently in the private domain of him that is injured to pay full damages, then since they have dealt stringently with damage caused by the horn in the public domain, ought we not deal more stringently with damage cause by the horn in the private domain of him that was injured, so that full damages be imposed.”

a)                                           They (the sages) said to him:  “It is enough if the inferred law is as strict as that from which it is inferred:  if [for damages caused by the horn] in the public domain half damages [are imposed], so also [for like damages] in the private domain of him that was injured, half damages [are imposed]. 

4)                     He said to them:  “I shall not derive the law in one case of damage caused by the horn from the law in another case of damage caused by the horn.  Rather I will derive the law of damage caused by the horn from the law of damage caused by the foot.  Now in a case in which the law dealt leniently with regards to damages caused by the foot or tooth in the public domain, they have dealt strictly with damage caused by the horn, ought we not deal more stringently with damage cause by the horn in the private domain.

a)                                           They (the sages) said to him:  “It is enough if the inferred law is as strict as that from which it is inferred:  if [for damages caused by the horn] in the public domain half damages [are imposed], so also [for like damages] in the private domain of him that was injured, half damages [are imposed]. 

 

Explanation

This is a long mishnah and is not a simple one, but we will try in any case to explain briefly.  The sages and Rabbi Tarfon argue at length whether an ox that gores or does some other unusual form of damage in the private domain of the one who is injured would be obligated full or half damages.  Rabbi Tarfon’s initial argument in section 3 is based on the following chart.

 

 

Public Domain

Private domain of him that is injured

Horn

Half damages

Acc. to Rabbi Tarfon full damages.

Foot and tooth

Exempt

Full damages

 

Rabbi Tarfon claims that since we are lenient on damages caused by the foot and tooth in the public domain and yet strict in the private domain, we should also be strict in the private domain on damages caused by the horn, since after all we were relatively strict in the public domain.  The other sages reply that by the means of this type of logical argument one cannot extend the liability for damages caused by the horn, beyond what we already know, that one is liable for half damages.

Rabbi Tarfon’s second argument in section 4 is a different variation on his first argument.  He claims that he is not learning liability for damages done by the horn in the private domain from damages done by the horn in the public domain.  Rather he emphasizes that he is learning from damages done by the foot and tooth in the private domain, in which case one should not say that one cannot extend the liability, as the sages argued with him.  Again the sages reply with the same reply they gave in section 3a.  In their opinion, no matter how you phrase it, Rabbi Tarfon’s argument is based on the relative strictness of damages done by the horn in the public domain.  Since this is so, the law cannot be extended further by an argument based on logic.

 

  

 

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