Talmud Tips

For the week ending 4 June 2016 / 27 Iyyar 5776

Bava Kama 2 - 8

by Rabbi Moshe Newman
The Color of Heaven Artscroll

Introduction to Bava Kama

We now begin learning Masechet Bava Kama, the first Tractate of Seder Nezikin (“The Order, i.e., category, of Damages), which is the third of the six orders of the Mishna and the Oral Law (“Shas”). I’d like to share an oft-discussed question regarding the subject of damages.

In the Torah we are taught that a person who causes damages (a “mazik”) is obligated to pay for the damages he causes. However, there does not appear to be a specific verse in the Torah that states that there is a prohibition against causing damage. The question, therefore, is whether it is in fact prohibited (and one may perhaps aver that it must be, based on logical thinking). But is causing damage in fact prohibited, and, if so, is it a Torah transgression or a Rabbinical one?

First of all, we see that it is certainly prohibited to damage another’s property, as we find in Shulchan Aruch (Choshen Mishpat 378): “Just as it is forbidden to steal from someone else, likewise it is forbidden to damage his property.” But what is the source and nature of this prohibition?

One answer to this question is that the prohibition against damaging has a Torah source, and can be learned from the commandment to return another person’s lost object. The obligation to return a lost object includes a positive command to return the property to the owner, and also a negative command not to ignore a potential loss to the owner, but rather to make an effort to save the property. For example, our Sages teach, based on a verse, that if one sees water about to flood another’s field, he is obligated — by the mitzvah of returning lost property — to help save the field from flooding, and prevent a financial loss to the owner. (Bava Metzia 31)

Based on this teaching, we can say that if one has a mitzvah to prevent damage to another’s property, despite him not being the reason for the damage, all the more so he has a mitzvah that he must not cause any damage. (See Kehillas Yaakov, Bava Kama 1, and the opinions cited there as to whether the prohibition is of Torah or rabbinical nature.)

“A person is always responsible for his actions (i.e., damages caused), whether he’s awake or asleep.”

We learn in this mishna that one needs to make a maximal effort not to cause damage with his body, not only when he is awake and is “in control”, but also when he is asleep and acting without any ill intent. From the straightforward reading of the mishna it seems that a person must pay for such damage under any circumstances.

Tosefot, however, citing the Jerusalem Talmud, states that a person is responsible for damage he causes to the property of another in his sleep only if the property was near him when he went to sleep. However, if another person placed property near the sleeper after he was already asleep, the sleeper who causes damage while asleep is not responsible. The reason, writes Tosefot, is that in this latter case the one who put the property there is considered as having caused the damage.

  • Bava Kama 3b, 4a

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