Massekhet Bava Kamma (“The First Gate”) was once part of a large tractate that was made up of the first three massekhtot in Seder Nezikin. These “three gates” together deal with monetary matters and they encompass almost all civil law in the Jewish law canon. Laws relating to criminal matters – and certainly those having to do with purely religious matters – appear in these tractates only as side issues.
Massekhet Bava Kamma deals with one specific area of law – the areas of responsibility and types of payments that someone is obligated in when damaging his fellow, both when causing him bodily harm and when damaging his property. This is true whether the damage was done by the individual himself or by his property.
The laws that appear in this tractate are based, largely, on clear statements in the Torah, in Parashat Mishpatim in Sefer Shemot (21:18-37; 22:1-14). Nevertheless, Torah laws in general, and specifically with regard to these rules and regulations, are not presented as a list of theoretical concepts and constructs, rather they appear as practical cases. In order to be able to apply the Torah’s rules to other cases, it is necessary to determine what the Torah means as being literal and specific to a given case, and when the Torah presents a case as a model or archetype whose principles are to be applied in similar cases, as well. By means of oral traditions and use of the interpretive methods of midrash, the overall picture of the laws of damages becomes clear and is presented in this tractate.
Massekhet Bava Kamma is divided into two sections. The first (chapters 1-6) focuses on damages done by a person’s property or by actions that he initiated or instigated, while the second (chapters 7-10) deals with damage that a person does directly on his own. The Rambam also keeps this division in his Mishneh Torah, where Seder Nezikin is divided between Hilkhot Nizkei Mamon (the laws of damage done by property) and the laws of damage done by the person which are categorized as Hilkhot Geneivah (Laws of Thievery), Hilkhot Gezeilah (Laws of Robbery) and Hilkhot Hovel U’Mazik (Laws of Torts). While some of these laws involve situations where the damage is done purposefully and there is an element of sin involved (e.g. stealing), there are also cases where the damage is done without intent, because of negligence, accident, or simply a lack of attention. One of the basic questions is that of personal responsibility. It is clear that a person must be responsible for things that he owns – the question is how to define the level of responsibility. Is a person responsible for all damages done by someone’s property? If a person took reasonable precautions to keep damage from taking place, will he still be held responsible? What is the relationship between restitution made for damage done on purpose and damage done by accident?
Regarding damage done by an animal, the Gemara distinguishes between damage that is done for the sake of damaging and that which takes places in the normal course of an animal’s activities. When an animal causes damage purposefully – by butting with its head, kicking or biting – we must ascertain whether the animal was a tam, who had not engaged in this behavior before in a significant way, or a mu’ad, who is known to have a history of this type of behavior. The difference between these categories affects both the level of attention that the owner must pay to guard them and the level and type of payment that must be made in the event that damage was done. In both situations, however, the owner has some level of personal responsibility, whether the damage took place in the public thoroughfare or in a private place. On the other hand, when an animal does damage as part of its everyday activities – by eating or walking, for example – the owner will be required to make full restitution, assuming that the damage happened in an area owned by the person who was damaged. Even there, if the owner had taken appropriate measures to ensure that the animal would not do damage, he will not be held responsible.
As we noted above, there are also situations where the damage stems from actions that a person does, like digging a pit or setting a fire. For a person to be held liable for damage done by a pit that he dug, it must be in a public place (or in an area owned by the person who was damaged) and he will only be responsible if a living creature fell in, and not for damage done to inanimate objects. In a case where a person sets a fire, and the fire spreads, he will be held responsible for damage done in any place. In both of these cases, however, if the person took appropriate precautions to keep the damage from happening, he will not be held responsible.
Another category of damages dealt with in the first half of our tractate is damage caused by a person himself in situations where he does not do damage on purpose in the hope of benefiting from it (e.g. stealing). According to Jewish law, such an adam ha-mazik has a very high level of responsibility, since a person is understood to be aware – and responsible for – all of his actions. Thus he will be held responsible under virtually all circumstances to pay the full value of his damages. The only exceptions are people who are judged to be mentally deficient and cannot be held responsible for their actions.
The second half of Massekhet Bava Kamma focuses on damages done by a person to his fellow – either by injuring him or by taking his money.
There are five categories of payments that may be applied to situations where a person injures his fellow:
- Nezek – permanent damage done to another person that lowers his intrinsic value
- Tza’ar – payment made for pain and suffering
- Ripuy – health costs related to his recovery
- Shevet – loss of wages during the time that the person recovers
- Boshet – payment made for embarrassment
These payments are not made in every case; sometimes all payments apply, in other cases only some of them do.
Aside from the restitution that must be made, injuring one’s fellow is forbidden by the Torah, so there also is an element of heavenly punishment. Thus aside from monetary payment, the person who did damage is obligated to apologize to the person that he injured.
Situations of robbery and stealing in general are not only damage, but are also an attempt to benefit from something that does not belong to the thief. There are two elements discussed by the Gemara – first of all restitution, that is repayment of the object itself (or its value), and secondly the penalties that may be applied – ordinarily double payment and occasionally even a payment of four or five times the value of the stolen object.