TALMUD. The 21th Massekhet – Bava Kamma

Massekhet Bava Kamma (“The first gate”) was once part of a large tractate that was made up of the first three massekhtot in Seder Nezikim (“The Order of Damages”). 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.

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119 Responses to TALMUD. The 21th Massekhet – Bava Kamma

  1. Bava Kamma 51a-b: There is no agency for transgression

    Our Mishna discusses a case of partners in a bor (a hole or ditch). If the first one makes use of it without covering it and then the second one does the same, the second one will bear responsibility for any damage caused by the open pit, since he was the last one to use it.

    The Gemara searches for a situation where two people could be considered partners in a bor in the public domain, eventually concluding that the case could be where the two people together pry out the last clod of earth that makes the hole deep enough to cause damage. The Gemara rejects the possibility that two people may have instructed a shali’ah – an agent – to dig the pit, because ein shali’ah le-dvar aveira – no one can appoint a messenger to commit a sinful act.

    According to the Gemara in Kiddushin (42b) the underlying principle of ein shali’ah le-dvar aveira is based on the fact that the messenger’s true obligation is to follow the directions of God, not of another person – divrei ha-rav ve-divrei ha-talmid, divrei me shom’im (the words of the teacher and the words of the student, which should you listen to?)!

    The Talmud Yerushalmi presents a discussion on this point as to whether the concept of shelihut (agency) is true is all cases, and certain situations – like this one – are exceptions, or if we would ordinarily assume that a person cannot pass on responsibilities to another, and we need special teachings in order to permit shelihut to work. This discussion impacts on the question of a shali’ah le-dvar aveira since according to the first approach we need to explain why shelihut will not work regarding a forbidden activity; according to the second approach it is obvious that we will not allow the creation of shelihut to do something forbidden.

    Tosafot Ri”D argues that the Gemara does not mean to suggest that we would have thought that the messenger could have freed himself from responsibility for performing a forbidden act with the argument that he was only following orders. It is clear to us that an intelligent person must take responsibility for what he does. The discussion on this matter was solely to clarify whether the person who instructed the messenger should also be held accountable, since he was the one who instigated the action.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  2. Bava Kamma 52a-b: An appropriately covered pit

    When the Torah warns that someone who digs a bor – a hole or pit in the public domain – will be held responsible for any damage that takes place if an animal falls in, it includes a caveat. This rule is true only if the person did not cover the bor (see Shemot 21:33-34). Our Mishna rules that if the person did, in fact, cover the bor properly then he will not be held liable for such damages.

    The question raised by the Gemara is how could an animal fall into a bor if it was properly covered up? Rabbi Yitzhak bar bar Hana suggests that it could be talking about a case where the cover became rotten from the inside where it could not be seen, so the person who covered the bor had no way of knowing that the cover would not support the weight of an animal that walked on it.

    The approach of most of the commentaries in explaining this case is that the wooden cover was attacked by insects whose entrance holes in the wood are almost imperceptible and the cover may look fine but turn out to be hollow. In his commentary to the Mishna, Rav Ovadia me-Bartenura suggests that the water and moisture of the pit may lead the wooden cover to become rotten on its bottom side that cannot be seen from the top.

    The Gemara also raises questions about what sort of animals must the cover be able to support – camels or oxen? At the time of the Mishna, local oxen were relatively small with adult weights ranging from 400 – 500 kilograms. Full grown camels were much larger, and they often carried loads of up to 250 kilo – for a gross weight of over 1000 kilo. Thus, the standard cover that would support an ox may not have been strong enough for a camel.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  3. Bava Kamma 53a-b: If he fell due to the sound of the digging

    According to the Mishna (52a) if the noise from digging frightens an animal into falling into a bor (a pit or hole in the public domain) the person who is responsible for the bor will be held liable for damage to the animal. Sudden, surprising noises can affect people and cause them to lose their balance and fall. This is certainly true of an animal which likely will react to an unexpected noise that emanates from a place that it cannot see, causing it to fall into the bor. While most of the commentaries suggest that the digger is inside the bor and the noise emanates from the hole that the animal fell into, Rabbeinu Hananel says that it can be someone who is doing work in a nearby area, whose actions disturb the animal.

    The Gemara questions this ruling, suggesting that the individual who made the noise while digging is at fault, so the person who is responsible for the bor should not be held liable. It should be noted that the Gemara is not suggesting that the person who made the noise should be obligated to pay damages, since he is only involved on the level of gerama – he did not come into contact with the animal and is only indirectly involved.

    In the Gemara, Rav Shimi bar Ashi identifies this ruling with Rabbi Natan who believes that in the event that restitution cannot be made from another source, the individual who is responsible for the bor will always be held liable, given his negligence in placing this stumbling block in the public thoroughfare.

    The source for Rabbi Natan is a baraita that discusses a case where an ox pushed another ox into a bor, where the Tanna Kamma (first) believes that only the owner of the first ox will have to pay – according to most commentaries he will pay only half damages, since from his perspective he had a partner in the damage – and the owner of the bor will be free of any payment since the ox did not “fall;” it was pushed. Rabbi Natan rules that the owner of the bor must pay his half, since he was irresponsible in creating the bor and not covering it properly.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  4. Bava Kamma 54a-b: A common scenario

    When describing an animal that falls into a bor (a ditch or hole in the ground) the Torah talks about an ox or a donkey (see Shemot 21:33). The Mishna on our daf (page) teaches that the same rule applies to all other animals, as well, and that the Torah simply used examples that are the most common domestic animal – an ox that was used for work in the fields and a donkey that was used for carrying loads – as examples that apply to all.

    The Mishna also presents a list of cases where the Torah mentions one type of animal but whose intent is that the law should be applied to other animals, as well.

    For example:

    •When the Torah says that the Torah forbade behemot – domestic animals – from approaching Mount Sinai when the Torah was to be given (see Shemot 19:13), the prohibition applied to all animals.
    •When the Torah rules that someone who steals an ox, a donkey or a sheep pays back double (see Shemot 22:3), it applies to someone who steals any animal (for that matter, it applies to someone who steals anything – see Shemot 22:8).
    •When the Torah requires a person to return a lost ox or a donkey that he finds wandering (see Shemot 23:4), it applies to all animals.

    …as well as cases of helping unload an animal (Shemot 23:5), refraining from muzzling an animal (Devarim 25:4), not working an animal on Shabbat (Shemot 20:10; Devarim 5:14), etc.

    While most of these are cases that refer to issues of Jewish law, the first example that discusses the case on Mount Sinai seems to be without purpose – whatever took place at the time has already happened – why is it necessary for the Mishna to teach this idea? In answer to this type of question, the Gemara in Yoma (5b) says that there is value in explaining the meaning of the biblical verse, even if there is no practical application in halakha.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  5. Bava Kamma 55a-b: The Sages and biblical text

    How well did the Sages know biblical text?

    Our Gemara relates that Rabbi Hanina ben Agil asked Rabbi Hiyya bar Abba about one of the differences between the Ten Commandments as they appear in Sefer Shemot (Chapter 20) and as they appear in Sefer Devarim (Chapter 5). Specifically, his question was why in Sefer Shemot the word tov – good – does not appear, and in Sefer Devarim it does: in connection with the commandment to honor one’s parents the Torah gives a reason – le-ma’an yitav lakh – so that it will be good for you (15:5).

    Rabbi Hiyya bar Abba responded that he could not comment on the reason for the appearance of the word tov, since he was not certain that the word appeared in the commandments in Sefer Devarim, and recommended that he ask Rabbi Tanhum bar Hanilai who was Rabbi Yehoshua ben Levi’s student, who was expert in aggada. Rabbi Tanhum bar Hanilai responded that since the first set of Tablets were ultimately going to be destroyed, the word tov was not included.

    Although every Jewish child studied the Torah and many knew it by heart, not all of the Sages continued to focus on text study. Rabbi Hiyya bar Abba was known as an individual whose focus was on Jewish law, as opposed to his colleague, Rabbi Abbahu, whose area of expertise was aggada.

    Many of the commentaries offer alternative explanations for the ignorance apparently shown by Rabbi Hiyya bar Abba. The Ria”f suggests that Rabbi Hiyya bar Abba’s statement that he did not know whether the word tov was written in the Ten Commandments actually referred to the question about which version contained the actual words that were handed down from God to Moses. Since he felt that we do not truly know what was in the version of the commandments that was broken, he could not respond to the question.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  6. Bava Kamma 56a-b: A bailee who conveyed to a bailee

    Can someone charged with watching an object pass it on to a third party who agrees to watch it?

    We learned above (Bava Kamma 11b) that there is a disagreement with regard to this question. According to Ulla in the name of Rabbi Elazar, shomer she-masar le-shomer – when a bailee (a person who was watching an object) passes it on to another person – he will not be responsible for anything beyond his original obligation. Since he gave it to another responsible individual, he has not done anything wrong. According to this opinion, this is true not only in a case where a shomer hinam (someone who volunteered to guard the object) raised the level of shemira (guarding) by giving it to a shomer sakhar (someone who was paid to watch the object), but also if a shomer sakhar lowered the level of shemira by transferring it to a shomer hinam. Rava disagrees, ruling that a shomer she-masar le-shomer will be responsible for everything that takes place – even if a shomer hinam raised the level of the shemira by transferring it to a shomer sakhar. This is because the owner can say to the guard – “I trust you when you take an oath; I do not trust the man who you gave it to.”

    As understood by the Gemara on our daf (page), our Mishna (55b) teaches that when a shomer transfers the animal to a ro’eh – a shepherd – the ro’eh becomes fully responsible for any damage that the animal does. This stands in apparent contradiction to Rava’s position that a shomer she-masar le-shomer will always be responsible.

    Rava explains that our Mishna is talking about a specific case, when the original shomer has given the animal to his assistant to watch. The Rashba explains that since it is understood that the primary shepherd cannot take care of all the animals all of the time, it is clearly understood that he will hire assistants to help him. Thus, this is not a typical case of shomer she-masar le-shomer.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  7. Bava Kamma 57a-b: If an animal fell into a garden

    According to the Mishna (55b) if someone was watching an animal which slipped and fell into private property, the person responsible for the animal will have to pay the owner of the property the equivalent of whatever the animal benefited. If, however, the animal walked normally into the private area, then the person responsible for it will have to pay for the damage that was done.

    The amount that the animal benefited is invariably less than the amount that was damaged. For example, if an animal ate a more valuable crop, still the amount of benefit that the animal derived is its normal feed, which is worth less.

    In our Gemara, Rav adds another type of benefit for which the person responsible for the animal would have to pay. If the fall into the private property would have injured the animal, but because the animal fell on the growing produce its fall was broken and it was not injured (or it was injured less severely), the person responsible for the animal will have to pay the amount of the benefit. The Meiri says that we gauge this based on what a person would be willing to pay to keep his animal from a more severe injury; Rabbeinu Yehonatan says that the payment will be the cost of straw that would have needed to be purchased to ensure a similarly soft landing for the animal.

    One of the questions that is raised regarding this case is why the person who was instructed to watch the animal should not be required to make full restitution, since he should have been guarding the animal more carefully. The Ra’avad explains that we cannot expect a person to keep hold of the animal in the public thoroughfare at all times, a position taken by the Talmud Yerushalmi, as well.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  8. Bava Kamma 58a-b: Damage, in a larger context

    As we saw on yesterday’s daf (page), if an animal walked normally into a private area, then the person responsible for it will have to pay for the damage that was done. The Mishna (55b) explains that in this case we will not require payment to be made according to the value of the produce that was destroyed, rather we look at the larger picture – at a full beit se’a (the value of an area required for sowing one se’a of seed, which was 2500 square amot) – and determine the loss of value that was incurred. This is a much smaller amount than the actual value of what was eaten or destroyed.

    Our Gemara tells the story of a man who cut down a date palm tree in his friend’s field. He was brought before the Reish Galuta (the Exilarch, the head of the Diaspora Jewish community) who stated that he was familiar with the field and he knew that there were three trees growing from a single spot that were, together, worth 100 zuz (dinars). Having destroyed one of them he should pay 33.3 zuzim as restitution. The individual stormed out of the courthouse proclaiming “why do I need to deal with the Reish Galuta who rules according to Persian law!” He entered Rav Nahman’s courthouse where he was told that he would only be required to pay for the loss of value of the tree within the larger context of the field.

    Rava rejected Rav Nahman’s ruling, pointing to the need to distinguish between payment made because of damage done by an animal as opposed to that done by a person. This can be understood by virtue of the fact that a person is responsible for damage done by his animal, but Jewish law feels a need to be lenient with him, since the damage that was done was unintentional and the owner played no direct role in it. This is very different from a situation where a person actively damaged his friend’s property, where the halakha will require full restitution.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  9. Bava Kamma 59a-b: Black shoes of mourning

    Our Gemara tells the story of a man named Eliezer Ze’eira who was wearing black shoes in the marketplace in Neharde’a. When members of the house of the Reish Galuta (Exilarch, or head of the Diaspora community) saw this, they asked him why he was wearing shoes that were not usually worn by members of the Jewish community. He responded that he was wearing black as an outward sign of his mourning over the destruction of the Temple. Hearing this they arrested him and jailed him for behaving inappropriately, since they did not believe that his status was high enough to be allowed to mourn the Temple publicly. Only when he entered into a discussion of Jewish law with them, proving that he was a scholar, did he secure his release.

    In the generation following the destruction of the second Temple, the Sages set certain limits regarding appropriate signs of mourning, mainly in the realms of celebrations and clothing. Nevertheless, in every generation there were people who, based on the passage in Yeshayahu 61:3, were known as Avelei Yerushalyim – mourners of Jerusalem – who accepted upon themselves other mourning customs, as well.

    The shoes that were described in the story looked like those of Roman Centurions but there were differences in the number and color of the laces that indicated different levels of society. Apparently the Jewish community traditionally wore white laces, which distinguished them from the non-Jews, and the Sages viewed wearing shoes that appeared similar to the Romans’ as an attempt to take on non-Jewish traditions. The Meiri writes that the term used in this story for the color black – ukamei – was a dull black color, while the shoes worn by Romans were a bright black color. Thus, Eliezer Ze’eira was accused of inappropriate mourning, but not of the more serious transgression of dressing like a non-Jew.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  10. Bava Kamma 60a-b: Destroying property to save oneself

    In the midst of the discussion of the responsibilities that a person who sets a fire will have for any damage that was caused, the Gemara shares a series of aggadic traditions that touch on this issue. One example is an examination of the passage in Sefer Shmuel (II:23:15-16) in which King David appears to be asking for water brought from Beit Lehem, leading three of his fighters to break in to the Philistine camp to get the water for him. The Gemara apparently rejects the simple meaning of this pasuk (verse), preferring to understand it as containing a deeper meaning. The “water” of Beit Lehem represents Torah, indicating that King David had a Torah issue that he needed to clarify.

    Several suggestions are put forward by the Sages. Rav Huna suggests that the Philistines were hiding amongst the Jewish barley fields and King David was unsure whether he was allowed to burn them down in order to save himself from his enemies. Is it permissible for a person to save himself with someone else’s money? In response his colleagues ruled that it was not permissible, but as monarch he had the right to take away – or destroy – property belonging to his subjects.

    Rashi understands the question as presented, that King David was unsure whether he could destroy the field to save himself. According to Tosafot, we take for granted that a person can do so; the question at hand is whether he is obligated to pay for what he destroyed, or, perhaps, since it was done to save a life, there is no obligation to pay. The Ra’avad discusses this question at length, concluding that a person can certainly save himself at the expense of destroying another person’s property. If, however, the issue was someone saving his fortune at the expense of destroying his friend’s property (that is worth less than his) it would be forbidden to do so without permission from that person.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  11. Bava Kamma 61a-b: Placing an oven inside a house

    Were there municipal building codes in the time of the Mishna?

    In the context of discussions about damage done by fire (esh), our Gemara brings a Mishna from Bava Batra (20b) that teaches that a person cannot place a tanur – an oven – in his house unless there are at least four cubits of space above it, lest the ceiling catch on fire and it would cause damage to others; and if he wants to place it on an upper floor, he can only do so if there is a ma’aziva – if there is mud, clay and plaster of at least three tefahim (handbreadths) between floors. For a kirah – a smaller type of oven, or stove – just one tefah would suffice. Even so, if any damage is done, the owner of the oven will have to pay.

    According to Rashi, based on this Mishna, members of the community have the right and the responsibility to stop someone from bringing such an oven into the house, unless he takes the proper precautions, since there is a concern for community welfare to ensure that fires will not start. Tosafot suggest that the Mishna is simply offering neighbors who live above or below the planned oven the right to complain and stop him from introducing it, but overall, even Tosafot accept Rashi’s ruling on the matter.

    The tanur that was used in people’s homes at the time of the Mishna was a large, earthen utensil that looked like a very large jug, and was used primarily for baking bread. In order to bake the bread properly, the heat had to be brought to a very high temperature, requiring a large fire (see this article for a description of bread baking in such oven). Kirayim (stoves) were also made of clay, but they were much smaller and had two holes upon which pots or pans could be placed, which cooked over a much smaller fire.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  12. Bava Kamma 62a-b: Payment for a stolen object

    The seventh perek (chapter) of Massekhet Bava Kamma – Perek Meruba – focuses on kenasot – the punishments that a robber or thief will have to pay over and above returning the stolen object or its value. According to the Torah in Parashat Mishpatim (Shemot chapters 21-22) someone who steals an animal or an object will pay back twice the value of the object he stole (see Shemot 22:6-8). If he stole an ox (shor) or a sheep (seh) and killed them or sold them he will pay back five times the value of an ox and four times the value of a sheep (see Shemot 21:37).

    The Mishna teaches that the payment of four or five times the amount stolen applies only to an ox or a sheep, while the double payment applies to any object that is stolen.

    Our Gemara quotes a baraita that teaches that there are certain exceptions to this rule. For example, if someone steals land, there is no requirement to pay over and above returning the land. This rule seems unnecessary, given the general principle of Jewish law that karka ena nigzelet – land cannot be stolen. Tosafot explain that there are cases that are considered stealing in this context, e.g. adding part of a neighbor’s field to your own or stealing something that is growing, like grape vines.

    Rabbeinu Yehonatan explains the placement of these laws by pointing out that the Mishna has completed its discussion of damage done by a person’s property – a goring ox, or an animal that did damage when it walked or ate, as well as fire and damage done by leaving an open pit in the public domain (shor, esh and bor). Now the Mishna turns its attention to damage done by one person to another.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  13. Bava Kamma 63a-b: A sufficient conclusion

    Although many of the laws of nezikin (damages) are presented in the Torah, there are others that do not appear in the Torah at all and must be derived by the Sages using methods of hermeneutics like the 13 rules of interpretation presented by Rabbi Yishmael. One method is that of a kal va-homer, the first principle taught by Rabbi Yishmael. The method of kal va-homer – usually translated as an A fortiori argument – allows us to learn one law from another by arguing that if the less stringent law included a stringency, we can conclude that the stricter law includes that stringency, as well.

    Although the method of kal va-homer is considered to be a powerful one, it is limited in cases where there is an attempt to derive more than the original law included, as the Gemara tries to do on our daf (page) by suggesting that we can learn that an ordinary thief is punished by paying back double by means of a kal va-homer from the case of a shomer (a guard) who claimed that the object he was watching was stolen from him. Limiting the conclusions that can be reached by means of a kal va-homer in this manner is called dayyo – “it is sufficient.” It is sufficient to learn a parallel halakha from a kal va-homer, but not more than the original law itself.

    The Gemara (earlier in Bava Kamma, on daf 25) explained that the concept of kal va-homer – and dayyo – stem from the story of Miriam who spoke inappropriately about her brother Moshe (see Bamidbar 12). As punishment, she was struck with tzara’at (biblical leprosy), and was forced to leave the encampment for seven days. The Torah explains that had her father banished her, surely she would have been embarrassed for seven days – now that she was banished by God, she will have to be removed for that length of time. Although logically banishment because of God’s anger should have lasted twice as long, dayyo limits the punishment to the same amount of time that she would have been embarrassed by her father.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  14. Bava Kamma 64a-b: Penalties and admissions

    As we have seen, this perek (chapter) focuses on kenas – the penalties of two, four or five times the value of the stolen object that is paid by a thief over and above returning the object or its value to his victim. There is an exception to this rule. If the thief steps forward and admits his guilt, then he will only need to return the object (or pay back its value); he will not have to pay the penalty.

    One explanation for this law is that the obligation to pay the kenas is not an inherent obligation, rather it is one that is imposed on him by the Jewish court. Once the thief admits his guilt, the court is never called upon to rule on the case, so there is no opportunity for them to impose the penalty.

    While this ruling is accepted by all, there is a difference of opinion whether this will be true even if other witnesses testify against him. Rav believes that even if witnesses are found who can testify about this situation, once the thief has admitted his guilt he is free from any obligations to pay the penalty. Others disagree, arguing that his admission is not sufficient to free him, since there were others who testified against him.

    The explanation for this disagreement flows from what was presented above. Once witnesses come forward, one could argue that the court must reopen the case to clarify what occurred, and the ultimate ruling is based on their testimony, rather than on the thief’s admission. Thus the court will impose the kenas together with its decision. Rav argues that the penalty is ordinarily imposed because of the decision of the court that is based on the testimony of witnesses – based on his interpretation of the passage in Shemot 22:3) – and if the thief has already admitted his guilt, he is not obligated to pay the penalty.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  15. Bava Kamma 65a-b: When the stolen object undergoes a change

    As we have learned, according to the Torah in Parashat Mishpatim (Shemot chapters 21-22) someone who steals an animal or an object will pay back twice the value of the object he stole (kefel – see Shemot 22: 6-8). If he stole a shor (a bull) or a seh (a sheep) and killed them or sold them, he will pay back five times the value of a bull and four times the value of a sheep (arba ve’hamisha – see Shemot 21:37).

    What if the status of the animal changes?

    On our daf (page) Rabbi Ile’a teaches that if someone stole a lamb and it grew to become a ram, or a calf that grew to become a bull, the stolen item has undergone a change while in his possession, and he has therefore acquired it as his own property. As a result, his obligation of restitution consists of monetary payment (repaying the value of the lamb or the calf, as well as the penalty of kefel) rather than giving back the stolen item itself. If he subsequently (after its status had changed) killed or sold the animal, he would not be obligated to pay arba ve’hamisha, as he has killed or sold his own animal.

    In the ensuing discussion in the Gemara, an objection is raised as to whether we should really consider an animal’s physical development as a change in its status. Rabbi Zeira argues that simply the change of terminology should be enough to change the status – and the ownership – of the animal. To this suggestion Rava responds that names like shor are not only the name of the mature animal, but are also the general term by which the animal is referred.

    Tosafot point out that with regard to certain laws, the terminology is significant. Specifically with regard to sacrifices, animals must be a certain age, and the term “lamb” means something different than the term “ram.” Nevertheless, it is clear that this is limited to the laws of korbanot where those requirements are clearly spelled out.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  16. Bava Kamma 66a-b: A change in name

    Rabba taught that when something is stolen and then it is changed in such a manner that it will not revert to its original state, the person who stole it takes possession of it and he no longer is obligated to return the stolen object, rather he will have to pay its value (at the time it was stolen) to the original owner. While this is true for an object that undergoes a shinui ma’aseh – a change in its physical form – will it also be true when there is only a shinui ha-shem – only its name changes?

    Rava says that this was a question that both Rabba and Rav Yosef could not answer until Rav Yosef was appointed to head the academy, and he taught that a change in name is significant, just as a change in the actual object is significant. Just as we recognize that wood changes to be a utensil, similarly we recognize that a piece of leather can become a chair covering (even though there was no physical change in the object).

    Rav Yosef’s appointment to head the yeshiva in Pumbedita is described in Massekhet Horayot and Massekhet Berakhot. When Rav Yehuda passed away, the two obvious candidates to replace him were Rabba and Rav Yosef. Rabba, who was the younger of the two, was known for his sharp, insightful analysis, while Rav Yosef was known for his wide ranging knowledge. In an attempt to decide who should be chosen, the following question was sent to the Sages of the Land of Israel: “which is better? Sinai (i.e. knowledge) or oker harim (literally ‘one who uproots mountains,’ i.e. sharp insight)?”

    Although the response from Israel was that “Sinai” was more essential, still Rav Yosef declined the position, and for the 22 years that Rabba was in the position of Rosh Yeshiva, Rav Yosef declined all honors. Only after Rabba’s passing did Rav Yosef accept the position.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  17. Bava Kamma 67a-b: Despair and ownership

    The recent dapim (pages) of our Gemara have been discussing how changes in the name or status of a given object may affect the ownership of that object. Our Gemara raises the question of ye’ush – when an owner despairs of ever receiving an object that was lost or stolen.

    Ulla teaches that ye’ush by itself does not create a change of ownership, quoting the passage (Malakhi 1:13) in which the prophet pointedly states that God rejects the offering of a stolen sacrifice, just as He rejects offerings that are physically blemished. Ulla concludes that just as a sacrifice with a physical blemish cannot be fixed in any way, similarly a stolen sacrifice cannot be fixed, indicating that even after the owner’s ye’ush, the animal will still not become the property of the thief.

    The rishonim point to Ulla’s own statement earlier in Massekhet Bava Kamma that ye’ush does allow for a change of ownership. Several different answers are offered –

    Tosafot suggest that Ulla’s statement on our page refers specifically to ye’ush on its own, while the other ruling is in a case where ye’ush is accompanied by a change in status.

    Rabbeinu Hananel argues that the statement on our page is limited to cases where the thief wants to fulfill a mitzva with the object or bring a sacrifice. In those cases the operating principle that keeps the transfer of ownership from taking place is that it would allow for a mitzva ha-ba’ah ba-aveira – a commandment that is fulfilled by means of a sinful act.

    The commentaries discuss the concept of mitzva ha-ba’ah ba-aveira at great length. The general conclusion is that not every sinful act connected to a commandment negates the mitzva. When the aveira (transgression) is what allows the mitzva to be performed – as in the case where the animal is to be brought as a sacrifice – then it cannot be used for performance of a mitzva.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  18. Bava Kamma 68a-b: The pious and the fruit

    Our Gemara introduces a teaching about the behavior of tzenuin – modest, or, in the context of our Gemara, uniquely pious, God-fearing individuals – who, when they had a vineyard of revai (fourth-year fruit) would set aside money, saying “anything that is harvested (by others) from this vineyard will be redeemed on this money.”

    The source for this law is the Mishna in Massekhet Ma’aser Sheni (5:1) that introduces the laws of kerem revai – a vineyard that is in its fourth year of growth.

    The Torah commands (see Vayikra 19:23-24) that the first three years after trees or vines are planted, the produce is orla – any fruit that is grows is forbidden. The produce of the fourth year will be neta (or kerem) revai – it has a unique status of holiness, similar to that of ma’aser sheni (second tithe), requiring the fruit to be taken to Jerusalem and eaten within the city walls. In the event that the fruit cannot be taken, it can be redeemed and the value of the fruit (plus one-fifth) must be taken to Jerusalem where it is used to purchase food.

    The Mishna in Massekhet Ma’aser Sheni teaches that the owner of a field whose trees are orla or whose fruit is neta revai must make various signs on his property so that the unsuspecting passer-by will not eat any of the fruit. The Mishna concludes that the tzenuin are even more careful and arrange for neta revai fruit to be redeemed, so that anyone who takes from the field will not fall victim to eating forbidden fruits.

    According to the Rambam, the behavior of the tzenuin was done only during the Sabbatical year, when the fruit may have been taken by anyone. Others suggest that this was done by tzenuin in other years, as well, out of concern even for those who took fruit without permission.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  19. Bava Kamma 69a-b: Tithing wine from the Samaritans

    Our Gemara brings a Mishna that discusses the case of purchasing wine from Kutim and how tithes might be taken from it on Shabbat.

    The term Kutim refers to the nations (not all of whom were truly Kutim, as there were people from other nations, as well) that were exiled to the Land of Israel by the kings of Assyria who were interested in populating the land after they had removed the Israelite people from it. According to Sefer Melakhim (see II Melakhim, chapter 17), these nations converted to Judaism because of their fear of lions that had begun attacking them (from which derives the term gerei arayot – “lion converts”), but they continued worshiping their gods at the same time.

    Upon the return of the Jews to Israel at the beginning of the Second Temple period, the Samaritans, descendents of the Kutim, were active in trying to keep the returnees from rebuilding the Temple and the walls of the city of Jerusalem. Even so, there were families – including members of the kohanim – who intermarried with the Samaritans.

    During the following years there were continued tensions between the two communities, and Yohanan Hyrcanus led his troops into battle against the Samaritans and destroyed the temple that they had built on Har Gerizim. Nevertheless, there were also periods of cooperation, such as the period of the Bar Kokhba rebellion. As is clear in our Gemara, the attitude of the Sages towards them differed, although after a period of time a final conclusion was reached and they were ruled to be treated as non-Jews, due to their continued involvement with different types of idol worship.

    It is important to note that the Gemara in Yevamot concludes that while a beit din should not accept potential converts whose reason for converting is anything other than a sincere desire to join the Jewish People, nevertheless, if such a person does undergo a full conversion process they are considered Jewish according to halakha. It is possible that the Kutim did not fall into that category because they continued with their idolatrous practices even at the moment of their conversion. Nevertheless, today the community of Samaritans living in Israel no longer worships idols, and there has been some level of acceptance of them into the larger Jewish community.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  20. Bava Kamma 70a-b: A fourfold or fivefold payment

    The Mishna on our daf (page) presents a number of cases where the penalties of kefel (double – see Shemot 22:3) or arba va-hamisha (four or five times the value of the stolen animal – see Shemot 21:37) will apply, even though there is reason to suspect that it would not. According to the Mishna if someone
    •stole an animal and sold it on Shabbat, or if he
    •stole an animal and sold it to avoda zara (idol worship), or if he
    •stole an animal and killed it on Yom Kippur

    in all of those cases he will still pay four or five times the value of the animal, for having stolen it and then killing it or selling it.

    The list that appears in the Mishna is carefully written. Based on the Gemara’s principle of kim lei be-d’raba mi-nei – that when faced with two punishments the more severe of the two punishments will be applied – if the person committed a crime for which he would be killed, then he would not be obligated to pay a fine. Therefore, even if the person who stole the animal sinned during the robbery or when he sold the animal, as long as he did not commit a capital offense, he will still be obligated to pay the penalty.

    Thus, when presenting the case of a robbery on Shabbat, the situation that we find is that the animal was sold – not killed – since killing an animal on Shabbat is one of the 39 forbidden activities for which the person would be sentenced to death. Similarly, when presenting the case where the animal was sold to avoda zara, we do not find that the animal was sacrificed to idols, since that would be considered a capital offense. With regard to Yom Kippur, however, since the punishment for killing an animal is karet (excision from the World-to-Come), a punishment meted out by heaven, and not by the Jewish court of law, the example presented by the Mishna is that of an animal that was stolen and killed.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  21. Bava Kamma 71a-b: Ritual slaughter on Shabbat

    In the context of discussing how halakha deals with actions that will lead to a person being responsible on two different levels – e.g. he will deserve both a death penalty and to pay as a consequence of what he did – our Gemara quotes a Mishna from Massekhet Hullin (14a). The mishna there teaches that a person who performs shehita (ritual slaughter) of an animal on Shabbat or on Yom Kippur will receive the death penalty; nonetheless his shehita will be considered good – the animal will be deemed kosher and can be eaten.

    Although this ruling is presented as a straightforward halakha, the rishonim are disturbed by the fact that we ordinarily deem a Shabbat transgressor as a meshumad – an apostate – whose shehita should be considered invalid!

    Tosafot in Hullin argue that not every violation of Shabbat will give a person the status of a meshumad. In fact, only someone who willfully violates the Sabbath in a public manner would be put into that category. Apparently in our case the shehita was done privately. Another suggestion raised by Tosafot is that hillul Shabbat (desecration of the Sabbath) would cause us to consider the transgressor a meshumad only after the act was done. Thus, the forbidden shehita on Shabbat would be considered valid, even as it would create a situation where any subsequent shehita done by this individual would not be accepted.

    In his commentary to the Mishna in Hullin, the Rambam takes a different approach, arguing that the person in this case performing the shehita on Shabbat must have done so be-shogeg – by accident, i.e. he was unaware that it was Shabbat, or was not knowledgeable in the rules of Shabbat to know that shehita was forbidden. It is clear that someone who accidentally transgresses the rules of Shabbat is not considered an apostate. Were he to have purposefully done shehita on Shabbat, however, the meat would not be considered kosher.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  22. Bava Kamma 72a-b: The power of protein

    The Gemara on the previous daf (page) presents a discussion between Rava and Rav Nahman regarding the case in the Mishna (70a) of the man who stole an animal from his father and killed it before his father died, who will have to pay four or five times the value of the animal to his siblings who are inheriting the estate together with him. Between their conversation in the evening and the next morning, Rav Nahman changed his mind – and his ruling on the case. In explaining why he rejected the previous evening’s reasoning he said that he had not eaten meat of an ox the day before.

    Rashi and the Ra’avad understand this statement as an expression indicating that he had not paid close enough attention to the details of the case. The Ra’avad suggests that the reference to “ox meat” was actually a hint to the case itself, which dealt with a question about paying back five times the value of an ox. Tosafot and others accept a simpler meaning – that since he had fasted that day he was weak, which affected his ability to learn. Similarly, Rav Avraham Neimark in his Eshel Avraham interprets the phrase in its clearest meaning – that he had not eaten meat or any other food of substance that day so he was not as mentally alert as usual.

    For proper brain function, the body needs to have certain elements present in the blood stream. Some of these elements are supplied by ingesting carbohydrates which are processed by the body and become readily available sugars; there is also a need for a certain level of proteins in the blood. When there is a lack of these elements – due to fasting or improper nutrition – brain function will be weakened. Thus, one approach to understanding Rav Nahman’s statement is that since he had not eaten properly on the previous day, his thought processes were not up to their usual level of clarity and intensity.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  23. Bava Kamma 73a-b: Conspiring witnesses

    Of all the amora’im, Abaye and Rava are presented as epitomizing the discussions that take place in the Gemara. In all of their arguments in the Gemara, the halakha always follows Rava’s opinion, with only six exceptions. Those six are referred to by the Gemara by the acronym – YAL KGM:

    Ye’ush shelo me-da’at (Bava Metzia 21b) – when a person does not realize that he has lost an object until after it is picked up by someone else, and he gives up ownership when he realizes it, can we apply it retroactively?

    Aid zomem lemafrei hu nifsal – (on our page) when witnesses are found to be conspiring, does their status change as of that time or from the time that their false testimony was made?

    Lehi ha-omed me-elav (Eiruvin 15a) – when a pole is standing on its own (it was not placed there by a person), can it be used as part of the structure that will create a legal private domain on Shabbat for the purpose of carrying?

    Kiddushin she-lo nimseru le-bi’ah (Kiddushin 51a) – if a couple gets married, but will be unable to consummate their marriage, does it have legal significance?

    Gilui da’at be-gittin (Gittin 34a) if a person makes a statement that can be understood as affecting the divorce that has been sent to his wife, must we take it into consideration when ruling on the validity of the divorce?

    Mumar la’avor aveira le-hakh’is (Sanhedrin 27a) – Can an apostate, a person who commits sins, be trusted to testify in court?

    The case that is discussed in our Gemara is when witnesses are found to be zomemim (conspiring) – a second set of witnesses comes to court and testifies that the first group could not be telling the truth, since they were with them in a location far removed from the incident at the time in question. Abaye believes that any testimony that they gave from the time of their original statement can no longer be trusted, since from that time it is clear that they were unreliable. Rava argues that the whole concept of zomemim is a hiddush – a new idea – established by the Torah, since logically there is no reason to trust the second group of witnesses more than the first. Therefore we implement the law only from the moment that it can be applied, i.e. from the time that the second testimony was given.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  24. Bava Kamma 74a-b: One who admits, is exempt

    Our Gemara relates that Rabban Gamliel accidentally injured his non-Jewish slave, Tavi, blinding him, and that Rabban Gamliel rejoiced – because finally Tavi would be set free – based on the passage in Sefer Shemot 21:26, which establishes that slaves go free if their master injures them by blinding them or knocking out a tooth. Upon sharing the happy news with Rabbi Yehoshua and explaining the circumstances leading to Tavi’s freedom, Rabbi Yehoshua informed him that Tavi would not go free. Since there were no witnesses to the event, and the slave’s freedom was based on Rabban Gamliel’s own admission, the penalty assessed on the master would not take effect, since modeh be-kenas patur – someone who admits his guilt is not assessed penalties – as we learned above on daf, or page, 64.

    Tavi is a character who appears throughout the Gemara, identified as the slave belonging to Rabban Gamliel d’Yavne. In all of these stories he is presented as someone who was well-known for his personal piety and learning. Not only Rabban Gamliel, but other Sages sang his praises. Rabbi Elazar ben Azarya, for example, was known to say that based on Tavi’s Torah knowledge it would have been appropriate for Tavi to be reclining and for Rabbi Elazar to be serving him. Rabban Gamliel tried on several occasions to find a way to set him free, but was stymied in his efforts because of the prohibition to set Canaanite slaves free. Nevertheless, when Tavi passed away, Rabban Gamliel accepted consolation as if he was a family member, explaining that Tavi was different than other slaves – he was a good and honest man.

    The Mishna in Sukka (20a) closes with Rabbi Shimon’s testimony about Rabban Gamliel’s slave, Tavi, who would sleep under the bed in the sukka. According to Rabban Gamliel he did so specifically because he knew that non-Jewish slaves were not commanded in the mitzva of sukka, from which we can derive that someone obligated in the mitzva would not be permitted to do so.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  25. Bava Kamma 75a-b: Testimony, witnesses and payments

    As we have seen above (daf – or page – 64b) in cases where a thief is obligated to pay kenas – the penalties of two, four or five times the value of the stolen object (over and above returning the object or its value to his victim) – if the thief steps forward and admits his guilt, then he will only need to return the object (or pay back its value); he will not have to pay the penalty; in the language of the Gemara, modeh b’knas patur.

    While this ruling is accepted by all, there is a difference of opinion whether this will be true even if other witnesses testify against him. Rav believes that even if witnesses are found who can testify about this situation, once the thief has admitted his guilt he is free from any obligations to pay the penalty. Others disagree, arguing that his admission is not sufficient to free him, since there were others who testified against him.

    In our Gemara, Rav Hamnuna limits Rav’s ruling only to cases where the accused person’s admission obligated him in payment. If, however, his admission had no effect on what he would have to pay, it will not free him from the kenas should witnesses appear. Thus, if someone denied stealing an ox, and witnesses came to testify that he had stolen the animal, he is obligated to return it and pay the kenas of kefel (double). If at this point he admits that he also killed or sold the animal – which would ordinarily obligate him to pay an additional kenas – should witnesses come and corroborate that fact, he would still pay the additional kenas, since his admission had no effect on his obligation to pay.

    Rashi explains that this is because we assume that the thief knew the law of modeh b’knas patur and was attempting to use it just to free himself from the obligation of the additional kenas. Others suggest that Rav’s ruling is based on the assumption that the thief’s admission is part of the process of teshuva – repentance – but in this case there may be ulterior motives, so we cannot rely on his admission.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  26. Bava Kamma 76a-b: An animal stolen then consecrated

    As we have learned, according to the Torah in Parashat Mishpatim (Shemot chapters 21-22) someone who steals an animal or an object will pay back twice the value of the object he stole (see Shemot 22:6-8) as a penalty – a kenas. If he stole an ox (shor) or a sheep (seh) and killed them or sold them he will pay back five times the value of an ox and four times the value of a sheep (see Shemot 21:37).

    According to our Mishna (74b) if a person stole an animal, consecrated it to the Temple (in a manner that actually takes effect, e.g. after the original owner had despaired of ever getting it back, effectively giving up ownership of it) and then killed it, he will not be obligated to pay four or five times the value of the animal. The Gemara suggests that it is obvious that he will not have to pay the kenas, since by that time the animal no longer belonged to the original owner, as it had been transferred to the Temple. The question raised by the Gemara, however, is why consecrating it to the Temple does not fall into the same category as selling the animal, and the thief should already be obligated to pay the kenas at that point.

    In answer to that question the Gemara distinguishes between transfer of ownership from one person to another, where all rights and responsibilities switch to the new owner, and consecrating an animal to the Temple, where some level of ownership is retained by the person who declares the animal to be hekdesh (holy to the Temple).

    Tosafot explain that this statement in the Gemara is true of animals that are consecrated for the purpose of sacrifice; they retain a connection to their owner who will bring them as a sacrifice. If, however, the animal was given to the Temple for bedek ha-bayit – as a monetary gift to be sold or used in the Temple – this would not be true. The Ri”d argues that even bedek habayit remains connected to the original owner in a unique way, as evidenced by the fact that the owner would need to pay a 20% premium if he decides to redeem the animal from the Temple, while anyone else purchasing it for the Temple treasury would pay its normal value.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  27. Bava Kamma 77a-b: Sheep and diverse kinds

    As we have learned, if someone steals an ox (shor) or a sheep (seh) and killed them or sold them he will pay back five times the value of an ox and four times the value of a sheep (see Shemot 21:37) as a kenas – a penalty.

    What exactly is a seh?

    According to Rava, the term seh refers specifically to a simple normal animal, but not one who was kilayim (diverse kinds) – a cross breed between a sheep and a goat. Rashi (in Hullin 78b) says that the source for Rava’s ruling is a passage in Sefer Devarim (14:4), which teaches that kosher animals include a seh from the family of sheep and a seh from the family of goats.

    Rava’s ruling notwithstanding, a baraita that appears in our Gemara teaches that the law requiring the thief pay a kenas of four time the value of a seh applies even if the animal is kilayim. The Gemara explains that the passage that teaches the laws of kenas says shor o seh – if either an ox or a sheep was stolen. Since it is impossible for an ox and a sheep to cross-breed, the Torah’s emphasis on the “either/or” aspect is understood to include any type of seh – even one that is kilayim. Admittedly, when the Torah uses the “either/or” terminology it is sometimes understood as excluding kilayim, but that is only if the two animals under discussion are animals that theoretically could produce offspring together (e.g. Vayikra 22:27).

    Despite certain similarities that we find among domesticated animals, sheep and goats belong to the family of caprinae, while larger animals like oxen, bulls and cows belong to the bovinae family. This genetic difference, as well as the sheer disparity in size, will not allow them to produce offspring together.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  28. Bava Kamma 78a-b: Firstborn redemption

    According to the Torah (Shemot 13:13) firstborn male children and kosher animals are consecrated to the Temple from birth, and must be redeemed. There is one non-kosher animal that also must be redeemed by exchanging it for a seh – a lamb. Our Gemara quotes a Mishna in Massekhet Bekhorot (1:5), which teaches that the exchange cannot take place with just any animal – it cannot be exchanged for a calf or a non-domesticated animal; it cannot be exchanged for a seh that had already been slaughtered, an animal that is clearly a tereifa (it has a physical condition that will cause it to die within a year) or with a koy.

    The koy is an animal that has the features of both a wild animal and a domesticated one.

    Identifying the koy is a difficult task. Even though it is mentioned many times in the Mishna and Talmudic literature, that is not because it is a common animal, rather because its status between a wild and domesticated animal allows it to be a test case for many halakhot. The disagreement as to its identification began in the time of the Mishna, when some of the Sages argued that it is the offspring of a deer or similar animal with a goat. Others claim that it is a unique type of animal – an Ayal ha-bar.

    The Ayal ha-bar can be identified with the ovis musimon, which, according to many, is the forerunner of domesticated cattle. It is distinguished by its short hair and grey color, and it lives in mountainous regions, where it is a nimble climber – today mainly in uninhabited areas in Europe. It is likely that the clear similarities between a koy and a sheep, together with its being a wild animal, led to the Sages’ confusion about its classification.

    Its name – koy – and even the pronunciation of the name, are themselves the subject of disagreement.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  29. Bava Kamma 79a-b: The robber, the thief and God

    Throughout this chapter – Perek Meruba – we have focused on kenasot – the punishments that a thief will have to pay over and above returning the stolen object or its value. It is important to note that these kenasot apply only to a ganav – a thief, who looks for an opportunity to steal when no one will see him. A gazlan – a robber, who brazenly steals in broad daylight – is not obligated to pay kenasot.

    This seeming anomaly is addressed in our Gemara, where we find the question of why the Torah was more strict with a ganav than with a gazlan presented to Rabban Yohanan ben Zakkai by his students. Rabban Yohanan ben Zakkai explained to them that the ganav appears to fear people, yet he has no fear of God. By making sure that no one will see him steal, he is effectively denying the all-seeing eye of God who knows what he is doing. The gazlan is not a God-fearing person, but at least he is not afraid of people, either.

    The Maharsha explains that although our intuition would usually encourage us to think that the individual who flaunts the law publicly should be punished more harshly, Rabban Yohanan ben Zakkai emphasizes the aspect of hillul ha-Shem – of the desecration of God’s Name – that is involved in these stories. While the ganav is clearly concerned with the consequences of his actions, he denies God’s omniscience and active participation in the world. The gazlan clearly recognizes that there is a judge in the world, and that he may be forced to pay for his crimes, but he acts in response to his personal drives for immediate gratification. Nevertheless, by his actions he shows no indication of a lack of faith in God.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  30. Bava Kamma 80a-b: No alarm would sound, but the people cried out

    Our Gemara discusses the types of cries and prayers that are appropriate – even on Shabbat.

    A baraita is brought on our daf (page) that teaches how regarding certain misfortunes (aside from drought), such as sores, locusts, flies, hornets, mosquitoes or a plague of serpents and scorpions, no “alarm” was sounded by the court, but a “cry” was raised by the people. The “alarm” is understood by Rashi as blowing the shofar, which was part of the fasting ritual; the “cry” is the recitation of additional prayers.

    What were these calamities enumerated in the baraita?

    A plague of the insects that are mentioned stems from specific weather conditions that encourage the growth and development of these pests. Zevuvim – flies – were considered so problematic that some ancient tribes had specific rituals and idols whose purpose was to protect them from flies. Yitushim – mosquitoes – are disturbing not only because they are pests, but also because they are carriers of malaria. The tzir’ah – vespa orientalis, or hornet – is mentioned in the Tanakh as one of the instigators of the emigration of the Canaanite nations from the land of Israel (see Shemot 23:28 and Yehoshua 24:12). There is historical evidence that entire cities were abandoned by their populations because of swarms of flies or hornets.

    Plagues of serpents and scorpions are also often weather-related. If conditions are right and there is an ample food supply, the sheer number of sustained, live births rises. Under such circumstances we find that these creatures are forced into closer proximity to the places where humans live, and there is more opportunity for interactions with them than we would have under normal circumstances, thus increasing the likelihood of attacks on humans. On occasion the simple fact that there is overcrowding in their natural habitat will lead these creatures to become more attack-prone, as well.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  31. Bava Kamma 81a-b: Joshua’s conditions

    As part of the Gemara’s discussion about rabbinic ordinances established in order to encourage the settlement of the land of Israel, our Gemara quotes a baraita that enumerates a number of conditions that Joshua established upon entering the land. Among them were the following:
    1.permission to graze cattle in wooded areas
    2.permission to gather wood from private fields
    3.permission to gather grass for feed in most fields
    4.permission to trim most trees and use the shoots for planting
    5.a newly dug well can be used by everyone in the community
    6.permission for all to fish in the Kinneret Sea with rods (but not nets)

    In discussing the details of these enactments, we find limitations on certain aspects of them. For example, Rav Pappa teaches that grazing cattle in wooded areas was limited only to smaller animals in a thicker forest, where they would do little damage. It would be forbidden, however, to take small animals to graze in a sparsely wooded area, or larger ones even in a thickly wooded area.

    Regarding the collection of wood, the Gemara limits it to very specific kinds of wood, arguing that Joshua only permitted the collection of Hizmei and Higi – thorn-bushes that no one really cares about. Even the collection of Hizmei and Higi was limited to taking those thorns that are still connected to the ground, so that by doing so a service is provided to the owner of the field, and previously cut thorn-bushes may have been prepared for use by the field’s owner.

    Hizmei can be identified with Ononis antiquorum L. of the Papolinaceae family. It is a thorny plant that grows to about 20-55 centimeters high, which is found growing wild in fields and alongside streams.

    The scientific name for Higi is Alhagi maurorum Medik. It, too, is a thorny plant with smooth, non-serrated leaves. Ordinarily it grows to a height of 30 centimeters (1 foot), although it occasionally grows as high as one meter (3 feet).

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  32. Bava Kamma 82a-b: One may not raise pigs

    According to the Mishna (79b) raising pigs is prohibited in all places.

    Our Gemara quotes a baraita that attributes the prohibition against raising pigs to the following story. After the death of Shlomzion HaMalka who bequeathed her kingdom to her son Hyrcanus, his brother Aristobulus contested the decision and succeeded in ousting his elder brother. With the encouragement of Herod’s father, Antipater, Hyrcanus gathered an army and attacked the city, forcing Aristobulus and his supporters to barricade themselves in Jerusalem. During this siege, which took place in 56 CE, the Jews inside the city sought to purchase animals for the daily sacrifices in the Temple by offering large sums of money to people outside the walls.

    The baraita relates that someone who was there who was knowledgeable in Greek wisdom hinted to the men outside the city that it was only the Temple service that kept Jerusalem from falling. The next day, in exchange for the coins that were sent down, instead of the promised sacrifice the soldiers sent back a pig, which reached out with its hooves halfway up the wall and caused the ground to shake. At that point the Sages established an enactment forbidding the raising of pigs in Israel and teaching Greek wisdom to children.

    This story appears in Josephus (Antiquities of the Jews 14:2), where it is related that the Jews inside the city offered 1,000 drachmas for every sheep for the Pesah sacrifice. The consequence for those who did not provide the promised animals, according to Josephus, was a storm that destroyed almost all of the harvest in the land of Israel. Perhaps this incident is what the baraita means when it says that “the earth shook.”

    Hokhma yevanit – Greek wisdom – does not appear to be secular knowledge generally, but rather refers to knowledge of Greek culture, music, literature, etc. Few people spoke classical Greek, and the story in our Gemara may indicate that the man “knowledgeable in Greek wisdom” was able to hint his intentions to others by presenting his message in a manner that only a select few could understand.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  33. Bava Kamma 83a-b: Calculating compensation

    The eighth perek (chapter) of Massekhet Bava Kamma – Perek HaHovel – focuses on damage done by a person to another person. The first Mishna teaches that 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.

    The Mishna explains how the value of each of these components is established. To determine the value of nezek, for example, the Mishna teaches that whatever permanent injury was done – the loss of a limb, of eyesight, etc. – we evaluate what the person’s value would be in the slave market with and without the injury, and pay the difference. Rashi explains that this is the true value of the injury, since if the individual ever needed to sell himself as a slave, this is the amount that he has lost due to the injury. The rishonim explain further, that this method takes into account all of the different variables in establishing the claim – the individual’s health, his age, his professional abilities, and so forth, since these are what make up the value of a slave in the marketplace.

    From Rashi it appears that the “sale” being discussed would be selling this person as an eved ivri – a Jewish slave – whose servitude is limited to a period of six years. According to the Rosh we must evaluate his worth for a lifetime, and so we place him in the imaginary marketplace as an eved kena’ani – a non-Jewish slave who is sold for life, which appears to be the simple understanding of the Gemara.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  34. Bava Kamma 84a-b: An eye for an eye

    As we learned on yesterday’s daf (page), our perek (chapter) focuses on damage done by a person to another person. The first category of damage and payment presented by the Mishna is the case of nezek – permanent damage done to another person that lowers his intrinsic value. The source brought for this by the Gemara is the famous passage ayin tahat ayin (Shemot 21:24) – “an eye for an eye.”

    The Torah’s statement that we punish “an eye for an eye” is understood by the Sages to refer to a monetary obligation rather than a physical punishment. In a lengthy discussion that appears in our Gemara, a number of Sages take turns responding to the Gemara’s suggestion that perhaps the pasuk (verse) should be understood according to its simple meaning.

    While all the Sages are in agreement that the passage is to be interpreted as payment, not losing an eye, Rabbi Eliezer says “ayin tahat ayin – mamash” – “an eye for an eye – literally.” Rav Ashi explains that he means to say that the person who blinded his friend will pay the value of his own eye, rather than the value of the eye that he blinded. This can be understood as based on the understanding that the payment is not restitution, rather it is in exchange for the punishment that the person really deserves – to lose his eye.

    In his Mishneh Torah (Hilkhot Hovel U’Mazik 1:3-6) the Rambam explains that the Torah chose to use this language, rather than simply state that personal injury will result in monetary compensation, in order to emphasize that someone who injures another really deserves to suffer the same injury that he inflicted on his fellow. This notwithstanding, the laws of the Torah only require restitution, and not corporeal punishment. In a clear attempt to dispel any doubts about this interpretation, the Rambam further states that this ruling was an oral tradition received by Moses on Mount Sinai, and that this was the practical ruling of the courts in the Land of Israel beginning with the time of Yehoshua and Shmuel HaRamati and continuing until contemporary times.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  35. Bava Kamma 85a-b: Payment for wages lost

    According to the Mishna (83b), payment for shevet – loss of wages during the time that the person recovers – is established by paying him the amount that he could have made as the watchman over a cucumber patch. The Gemara brings a baraita that explains that this is a fair wage, since the person who caused the injury has already paid nezek (permanent damage done to another person that lowers his intrinsic value) and has therefore already worked out what he owed him for the loss of his normal salary.

    Rava continues explaining that this is true for a person who lost his arm. If he lost a leg, the nezek would cover the value of the leg and the shevet would be evaluated based on his being someone who sits and guards an entrance. If he was blinded, he would receive the value of his eye as nezek and would be paid shevet as though he was grinding with a hand mill. If he was made deaf, he is seen as unable to work and the nezek would take that into account.

    The Ra’avad explains that even though a person with a permanent injury may be able to perform work that is more specialized – and more valuable – than the jobs described by Rava, nevertheless, once the injured person has been paid nezek on his permanent loss, the shevet that he receives is based on the normal job that someone with his disability can perform. According to Tosafot, Rava’s statement is true for a simple laborer, but if a person will be able to perform more specialized work even after his injury, then the nezek would have taken that into account and the shevet that he will receive would reflect the salary that he would be making at that time.

    In explaining the ruling that a heresh – someone who was deafened – has no value as a worker, the Ra’avad explains that no one will hire him since they cannot communicate with him to tell him what they need done.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  36. Bava Kamma 86a-b: Humiliating one who is naked

    We have learned that one of the five obligations that a person may have towards his friend is boshet – payment made for humiliation.

    According to the Mishna on our daf (page), the obligation of boshet only takes effect if it was done with the intention of humiliating, and it remains in force, even if the person who is humiliated is naked or sleeping.

    A baraita brought by the Gemara points out that although there is an obligation to pay boshet even if the person is naked, the amount that he will have to pay is based on the level of humiliation, and we can assume that the humiliation will be less for someone who was already naked than someone who was fully clothed.

    The Gemara asks –

    “Is a naked person someone who can be humiliated?”

    “Can someone in the bathhouse be humiliated?”

    Rashi explains these questions according to their simple meaning – if someone is not wearing clothing he shows that he is not concerned with even the most elementary issues of personal modesty, so he cannot be humiliated. Tosafot disagree, arguing that even someone without clothes will suffer humiliation if someone slaps him or spits on him. According to Tosafot, we are discussing only one type of humiliation – if someone unclothes his friend. Thus, according to Tosafot, the Gemara’s question is “if he already is unclothed, what further humiliation can he suffer in this realm?” Or, with regard to the bathhouse, “in a place where everyone takes off their clothing, what humiliation is there in having one’s clothing removed?”

    Rav Pappa explains that we are talking about a case where the person was not fully undressed, but that his clothing was lifted up by the wind and his friend removed his clothing completely. Furthermore, Rav Pappa argues, the case of the bathhouse must be talking about bathing by the river, where people do remove their clothing, but still are careful about issues of modesty, given that it is a public place.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  37. Bava Kamma 87a-b: One who is commanded and performs

    Who gets more credit – someone who does mitzvot because he is obligated or someone who does mitzvot as a volunteer?

    Although most people’s immediate reaction is to give more credit to the volunteer who has indicated a personal desire to perform mitzvot, Rabbi Hanina rules gadol ha-mitzuveh ve-oseh me-me she-aino metzuveh ve-oseh – that someone who is commanded to perform a mitzva and does so is greater than someone who performs the commandment without being obligated to do so. The Gemara reports that upon hearing this teaching, Rabbi Yosef who was blind said that he would throw a party for the Sages who ruled against Rabbi Yehuda who says that blind people are not obligated to perform mitzvot, since he wanted to receive appropriate reward for his actions.

    Why would this be true? Several approaches are offered by the rishonim.

    Tosafot explain that a person who is commanded to perform mitzvot has a harder time doing them because his evil inclination discourages him from doing what he needs to do. A volunteer, who knows that he is not really obligated in the mitzva and can choose not to do it, does not have to resist his evil inclination when performing the mitzva. Tosafot Tokh suggests simply that there is less reward for someone who performs an action that may not be God’s will, as evidenced by the fact that he was not commanded to do it.

    The Rambam concludes from this Gemara that we cannot discount the actions performed by someone who was not commanded to do a mitzva, since the Gemara states that such a person receives less of a reward, but clearly he does receive some level of reward for doing what he did. Rabbeinu Tam goes so far as to use this Gemara as a source for his ruling that women who are not obligated in mitzvot aseh she-hazman gerama – positive commandments that are time-related – should, nevertheless, recite a blessing upon performing them. This has become the accepted ruling on this matter, at least in the Ashkenazi community.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  38. Bava Kamma 88a-b: Ordinances of Usha

    Our Gemara discusses the story of a woman who wrote a will, giving her inheritance to her son. After her death, her husband contested the will, arguing that the inheritance belonged to him. Rabbi Yosei bar Hanina concludes that takkanot Usha allows the husband to take possession of his wife’s property after her death, even if she sold it while she was alive.

    What are takkanot Usha?

    According to the Gemara in Massekhet Rosh HaShana (31a), at the time of the destruction of the Temple, as the Jewish people were sent into exile, God joined them by removing His presence from the Temple in a series of stages. In a parallel move, the Sanhedrin gradually removed itself from its offices on the Temple Mount, as well, making its way to the Galilee, where most of the remaining Jews were to live under Roman rule.

    The Sanhedrin’s first stop after leaving Jerusalem was the city of Yavne, which was established as a center of Torah study by Rabban Yohanan ben Zakkai, and became most famous under the direction of Rabban Gamliel of Yavne. Throughout its continuing travels, the Sanhedrin was headed by descendants of the family of Hillel.

    It appears that the Sanhedrin was moved to Usha in the aftermath of the bar Kokheva revolt, where a series of Rabbinic enactments – called takkanot Usha – were established. Under the leadership of Rabbi Shimon ben Gamliel there was an unsuccessful attempt to return the Sanhedrin to Yavne, but due to the overwhelming devastation in the southern part of the country, they returned to the Galilee, first to Usha and then to Shefaram.
    Takkanot Usha deal mainly with establishing the norms of monetary relationships within families. While these enactments were not included in the Mishna, they were known to the amora’im based on oral traditions.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  39. Bava Kamma 89a-b: Financial advantage

    When a couple gets married, a ketuba – the agreement that is signed by witnesses delineating the obligations that the husband has towards his wife – is written. Oftentimes, when the Gemara refers to the ketuba, it means specifically the monetary responsibilities that the husband has accepted in this relationship, and, in particular, the amount of money that he guaranteed to her in the event of divorce or death.

    It was traditional for the wife to also bring financial assets into the marriage, which were divided into two –
    •Nikhsei melug, which are possessions that remain the property of the woman. While the couple is married, her husband is okhel peirot – literally, he “eats the fruit.” In other words, she owns the property, but as long as they are married the profits accrued by the property belong to the husband. When the marriage ends, they remain hers, in whatever condition they may be.

    •Nikhsei tzon barzel, which are possessions that become the property of the husband. Their value is written into the ketuba, and in the event that their marriage comes to an end – if the husband dies or if they become divorced – the wife will be reimbursed for the full amount, either from the estate if he died or from him if they divorced.

    Our Gemara introduces the idea of a woman selling her ketuba for tovat hana’a (financial advantage). In the case of selling a ketuba, the idea of tovat hana’a is the value of the ketuba on the open market while the marriage still exists. Like any commodity, the ketuba’s potential value may be of interest to an investor. Since in the event of divorce or of the husband’s death the woman will receive a lump sum payment, someone may be willing to pay some fraction of the potential value. Of course, should the wife die first, according to takkanat Usha (see daf, or page 88) the husband will inherit her, leaving nothing for the “investor,” something that will limit the amount that an investor might be willing to pay.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  40. Bava Kamma 90a-b: When one strikes another

    The Mishna on our daf (page) rules that ha-toke’a la-havero noten lo sela – that if someone strikes his friend, and he remains uninjured, he is obligated to pay him a sela because of the embarrassment that he caused. Rabbi Yehuda quotes Rabbi Yosei HaGelili as requiring payment of a maneh.

    The definition of toke’a is a matter of some dispute. While Rashi says that it means he hit him on his ear, others suggest that he hit him on his neck with his fist, that he shouted in his ear, or even that he did not touch him at all, rather he clapped his hands together in a derogatory manner towards his friend. The payment of a sela or a maneh is understood by Rashi (above on daf, or page, 36b) as a standard payment for embarrassment, but if any injury occurred, that would be evaluated and paid for separately. Others suggest that it covers pain and suffering – tza’ar – as well. The Rambam rules that the payment of a sela or a maneh includes all damages, since the Mishna is discussing a case where the main damage that was done was the embarrassment.

    The Gemara’s first concern is the type of maneh that is required for payment – is it kesef tzuri or kesef medinah?

    Generally speaking, during the time of the Talmud there were two types of coins. Matbe’ah tzuri was a silver-based coin that was viewed as being biblical money. Kesef medinah were coins that had the same names as the more valuable matbe’ah tzuri, but were made of cheaper metals and were worth one-eighth the value of kesef tzuri. Different values for coins with identical names were not uncommon in the ancient world and this phenomenon still exists in some places today, where paper money may have the same name as a gold coin, for example, but is worth significantly less. It is therefore essential to determine which coin is being discussed.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  41. Bava Kamma 91a-b: Humiliation with spit and with words

    As we have learned, one of the five types of damage that a person must pay if he injures his fellow is boshet – humiliation. The Mishna (90a) lists a number of cases where a person will pay a set figure for embarrassing another, e.g. slapping him, pulling his hair, removing his clothing, and so forth.

    One particular situation mentioned in the Mishna is someone who spits on his friend such that the spittle reaches him. In such a case, the Mishna rules that a penalty of 400 zuz will be assessed.

    Rav Pappa infers from the language of the Mishna that the penalty will be assessed only if the spittle lands on the person, but not if it lands on his clothing. In response to the Gemara’s question that this should be no worse than embarrassing a person by means of speech, the Gemara quotes a teaching of Rabbi Yosei bar Avin who taught in Israel that no penalties are assessed against someone who embarrasses his fellow by means of speech.

    The Rosh explains that limiting a payment of damages for embarrassment to cases of physical contact stems from the passage (Devarim 25:11) that describes a situation where a woman steps in to protect her husband and defends him by embarrassing his assailant. It should be noted that although there is no standard payment assessed by the courts, the ge’onim state clearly that even non-physical embarrassment is a serious matter, and, if done in a public setting, can cause someone to lose their share in the World-to-Come. According to the ge’onim, a verbal assault and embarrassment may be worse than a physical attack, and it is up to the beit din to establish the appropriate punishment in each case. The Talmud Yerushalmi describes a case where a large sum was assessed in a particular case of verbal assault. According to many, even though we ordinarily do not assess kenasot (judicial penalties) today, punishments for acts like these can be established by the courts even today.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  42. Bava Kamma 92a-b: Eat breakfast and stay healthy

    August 31, 2016

    Your mother always told you not to skip breakfast. What do the Rabbinic Sages have to say on the matter?

    Our Gemara quotes Rava as asking Rabba bar Mari for the source for the Rabbinic dictum that you should make sure to eat early in the morning – in the summer because of the heat and in the winter because of the cold. Furthermore the Rabbis taught that sixty men cannot catch the individual who made sure to eat in the morning.

    Rabbah bar Mari responded with a passage from Sefer Yeshayahu (49:10) which indicates that eating in the morning will protect a person from heat and cold. Rava suggested a pasuk (verse) from the Torah. The passage in Sefer Shemot (23:25) teaches:
    1.va-avadetem et ha-Shem Elokekhem – that first one must serve God – understood by Rava as morning prayers, then
    2.u-berakh et lahmekhah ve-et me-mekhah- your bread and water are blessed, and finally
    3.va-hasiroti mahala mi-kirbekhah – illnesses are removed from you.

    This approach matches current medical thinking that breakfast is the most important meal of the day. After hours of sleep, during which time a person does not eat or enjoy any sustenance, the body needs a certain amount of liquid and nutrition in order to meet the individual’s immediate needs. Although healthy people have stored energy reserves in their bodies that allow a person to function even without a morning meal, nevertheless, a regular breakfast allows for normal activity throughout the day.

    The passage quoted by Rava teaches that mahala is removed. The Gemara identifies mahala specifically with mara (bile) – diseases of the gall bladder. While this organ certainly can become diseased, it is odd to find an emphasis on these diseases specifically. While the Gemara may be referring to the gall bladder as representative of digestive diseases generally, some suggest that this is a reference to the basic belief of Greek medicine (one that was popular until recent times) that the body was composed of four humors – arba marot – and that a lack of balance between these humors could lead to both physical and spiritual diseases.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  43. Bava Kamma 93a-b: When one asks to be hurt

    We have been discussing cases where a person will be held responsible for injuring his fellow. What if the person who was injured requested that his attacker beat him? What if he assured him that he would not be held responsible for the injury?

    According to the Mishna (92a) we distinguish between personal injury and damage done to property. If a person asked to be blinded, have his arm cut off, or his leg broken, the person who causes the injury will still be held responsible – even if he assures him that he will forgo payment. If he asked his friend to tear his clothing or to break his vessel he will be responsible, although if he assured his friend that he would forgo payment, then he will not be held responsible.

    Several explanations are given by the Gemara to explain the difference between personal injury where the attacker will always be held responsible, and damage done to property where under certain circumstances he will not.

    Rav Sheshet says that it is an issue of pegam mishpaha – the entire family will be embarrassed if the person now is blind or missing an arm, so he does not have the ability to allow such an injury to be done to him.

    Rava says that we work with the assumption that no one will be willing to suffer such an injury to his body, even though he might be willing to allow such damage to be done to his property.

    Rabbi Yohanan says that we cannot always be certain of the intent of a person who says the word “yes” or “no” in circumstances like these.

    According to Rashi, Rabbi Yohanan’s statement should be understood to mean that we must take into account the tone of voice that is used. Perhaps when he said “sure” he meant it sarcastically. Based on this approach, there is no real difference between personal injury and property damage, since both of them will depend of the person’s intent, which is hard to gauge. Tosafot understand Rabbi Yohanan as ruling that we cannot accept a person’s willingness to be injured, and will always interpret his statement as refusing to be injured. With regard to property damage, even if he appears to change his mind we may interpret his statement to mean that he accepts all responsibility, since he did make the original request that his property be damaged.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  44. Bava Kamma 94a-b: When you renounce ownership of your vineyard

    Our Gemara quotes a baraita that teaches that if a person makes his vineyard hefker – he declares it ownerless – and the next morning he goes and harvests it, he will be obligated to leave the tithes that go to the poor (peret, olelot, shik’ha and pe’a) but is free from the obligation of ma’aser (tithes to the levi).

    Generally speaking, only a farmer who harvests his own field is obligated in all of the tithes that are commanded in the Torah. A field that is truly hefker – it has no owner – will not need to have tithes taken from it by the person who comes to harvest it. In our case, however, it is clear that this vineyard was not truly hefker, which is why the Sages distinguished between some of the tithes – those distributed to the poor – that still need to be brought and others that are no longer obligatory.

    Most of the commentaries explain the difference between tithes based on our Gemara, which points to the repeated use of the word ta’azov – “leave behind” – specifically in those tithes that are to be left for the poor. The Gemara concludes from here that whenever there is some possibility that these tithes should be distributed, we are obligated to do so. The Rambam offers a different source for this ruling. According to him, we find the word sadkhah – “your field” – only in reference to tithes for the poor. From this he concludes that whenever someone is harvesting his field – even if it was taken from hefker – he is still obligated in these tithes. With regard to the tithes for the priests and the Levites, since the term sadkhah does not appear, the exemption of hefker will apply.

    The various tithes to the poor discussed here are:

    Peret – grapes that fall during harvest are left for the poor

    Olelot – oddly shaped clusters of grapes must be left for the poor

    Shik’ha – what is forgotten after the harvest must be left for the poor
    Pe’a – leaving a corner of the field for the poor to harvest.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  45. Bava Kamma 95a-b: Freedom from returning what was stolen

    On the previous daf (page) the Gemara quotes a baraita that instructs the victim of a robber or of someone who paid forbidden interest on a loan to forgo repayment for his loss, even if the individual who stole his money wants to give it back to him. The reasoning behind this ruling is the desire to encourage a sinner to repent, and the fear that forcing him to repay all of his ill-gotten gains will discourage him from repenting. It should be noted that this is only if the individual steps forward and expresses a desire to repent. Someone who has been wronged can certainly approach the courts and demand justice.

    The Gemara on our daf suggests that we must distinguish between a situation where the stolen item still exists – where it can be accepted in return – and where it no longer exists – where we will discourage the victim from demanding its return.

    One case that appears to run counter to this argument is the case of a marish ha-gazul – a beam that has been built into a building. In that case, although the beam is still extant, we do not require that the beam be returned – only its value is paid. The Gemara explains that since the beam has been built into a structure, and removing it would cause a serious loss, we view the beam as if it had been destroyed, and only require payment.

    What is clear from this ruling is that takkanat marish (or takkanat ha-shavim) may free the robber of the obligation to return the original object, but it does not free him of his obligation to pay. The Ra’avad and the Rashba explain that there are two separate situations of takkanat ha-shavim. In one, if the object is still extant, but returning it would cause a significant loss, the robber will only have to return the value of the object. The second takkana applies in a case where the stolen object no longer exists. In that situation, if the robber wants to do teshuva, then the victim should not accept repayment at all.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  46. Bava Kamma 96a-b: Stolen oxen

    According to the Mishna at the beginning of the perek (chapter) – daf, or page, 93b – the general rule is that a robber will have to pay back the victim according to the value of the object at the time that it was stolen.

    Our Gemara presents a case where the ruling appears to be otherwise.

    Once someone stole a pair of oxen from his friend. He used them for a season of work, using them to plow his fields, to plant his crops, etc. At the end of the season, he returned the oxen to their true owner. When the case came before Rav Nahman, he ruled that the robber must return his profits from the harvest to the owner of the oxen, as well. In response to Rava’s objections that it was the field that increased in value, rather than the animals, Rav Nahman conceded that he would only have to share half of his profits. When Rava argues that the Mishna rules that the robber only has to return the stolen object in its original form, Rav Nahman became upset. He told Rava that he should not question his rulings, since Rav Huna has already compared him to Shevor Malka regarding these kinds of rulings. Furthermore, he explained, the robber in this case was a well-known criminal and he felt that he deserved to receive punishment for his actions.

    Shevor Malka – Shapur – was the name of a number of Persian kings. Our Gemara is referring to the first king Shapur, who continued his father’s success in wars against the Roman Empire, capturing the city of Netzivim and arriving at the border of Syria. In the course of a number of attacks, he not only defeated the Roman emperor Velrinus, but he captured him and held him until his death. With regard to internal matters, he was an open-minded leader, and allowed a good deal of freedom of religion. It appears that he showed an interest in Judaism and was on good terms with the amora Shmuel. The simplest understanding of our Gemara is that Rav Huna compared Rav Nahman’s rulings to those of the ruling monarch.

    According to Rashi, the comparison to Shevor Malka is not to be taken literally, and it is actually a reference to the amora Shmuel, whose rulings were accepted in monetary matters.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  47. Bava Kamma 97a-b: Legal tender

    The Gemara on our daf (page) discusses the return of money in cases where the value of the currency – and, in particular, the coinage – changes while a loan is taking place.

    To clarify the question about how to establish the value of coins that have gone out of circulation, Rava brings a baraita that discusses the case of pidyon ma’aser sheni. On certain years of the agricultural cycle, a farmer is obligated to bring ma’aser sheni – to tithe his crops and take them to Jerusalem where they must be eaten in holiness within the city. The Torah states clearly (Devarim 14:25) that if someone cannot bring those fruits to Jerusalem because of the distance or because of the sheer volume of fruit, he can exchange them for money – specifically for coins – that must be brought to Jerusalem and exchanged for food that will be eaten in the city. The baraita teaches that the coins used for this purpose must be useable coins, which excludes ma’ot kozeviyyot, ma’ot Yerushalmiyot and ma’ot shel melakhim ha-rishonim – none of which were used in Jerusalem as legal tender.

    While some suggest that ma’ot kozeviyyot are coins from a foreign country, most of the commentaries identify them as coins minted by bar Koziva, more popularly known as bar Kokheva, leader of the Great Revolt against Rome. During the short-lived independent Jewish rule in Jerusalem at that time, bar Kokheva minted coins. As can be imagined, these coins that celebrated independence were forbidden to be used by the Roman government. The ma’ot Yerushalmiyot were also coins minted by Jewish rulers in Israel that were removed from circulation by the Roman government for political reasons. Ma’ot melakhim ha-rishonim – money minted by the early kings – may simply refer to coins that became old and were replaced by new ones.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  48. Bava Kamma 98a-b: Damage caused by indirect action

    Rabba presents four different cases on our daf (page), all of which seem to have a common thread. The cases are:

    1.If someone causes his friend’s coin to land in the ocean in such a manner that it can be retrieved, he will not be held responsible, since he can say – “it is before you; go and retrieve it.”
    2.If a person took someone’s coin and flattened it so that the image on the coin could no longer be seen, he is not responsible to pay any damages, since the weight of the coin has not been changed by his actions.
    3.If someone scratches or cuts a cow’s ear, he will not pay any damages. Even though now the cow cannot be brought as a sacrifice, it still remains able to perform most other activities for which someone would buy a cow, so we do not view the damage as significant.
    4.If someone has a document that attests to money that is owed to him and someone else burns it, that person will not be held responsible since all he did was burn a worthless piece of paper that had no intrinsic value.

    In all of these cases, Rabba believes that since no real damage was done the person cannot be held responsible, even though his actions caused his friend to suffer a loss.

    Most commentaries understand that these rulings are based on Rabba’s belief that we do not hold a person responsible for situations of dina d’garmi (indirect action). Since the accepted halakha is that a person is responsible for dina d’garmi, Rabba’s rulings are rejected, and the person who caused a loss in cases like these will be held responsible. Rashi and the Ra’avad suggest that two of these cases are not garmi, rather they are cases of grama (causation), where the accepted ruling is that gerama be-nezikim, patur – that the person is not held liable for damage brought about by mere causation. Thus in the case of throwing a coin in the ocean and cutting the cow’s ear, we accept Rabba’s ruling freeing the man from responsibility.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  49. Bava Kamma 99a-b: An expert is exempt

    The Mishna (98b) teaches that a craftsman is responsible for damage that he does to an object that was given to him to fix or to build. This ruling leads to a general discussion of the level of responsibility that a person has with regard to professional advice or services that he performs.

    According to the Gemara, under ordinary circumstances, if someone pays an expert moneychanger for professional advice in establishing whether a coin is valid or not, and the moneychanger was mistaken in rendering his opinion, he will have to pay damages. An exception to this would be people who are complete experts and are recognized as knowing all that there is to know about the value of coins. If someone like that erred because of a change of currency (not because of a problem with the coin itself), he would not be responsible.

    The Gemara tells of a woman who approached Rabbi Hiyya and asked him to offer his opinion on the validity of a coin. Rabbi Hiyya ruled that the coin was a good one, but the woman returned the next day and told him that it was not accepted in the market. Rabbi Hiyya instructed that the woman be paid the value of the coin, and that it should be recorded in his pinkas – his record book – as a bad transaction. The Gemara explains that although Rabbi Hiyya was a high level expert, he chose to pay the woman lifnim mi-shurat ha-din – beyond the letter of the law.

    The word pinkas is Greek, and its original meaning – tablet – was a board on which one could write. Later on, the term came to mean a number of such boards that were bound together to make a small book. During the time of the Talmud, pinkasim came in a variety of shapes and sizes and were made of different materials. It appears that the most popular ones were made of wood covered with a layer of wax that could be written on and erased.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  50. Bava Kamma 100a-b: Dyeing wool

    The Mishna on today’s daf (page) discusses cases where someone gave wool to a dyer to color, and the wool was not dyed properly. According to the Mishna in the case of hikdiho yorah – if the wool was boiled at too high a temperature and was burned – the wool is considered entirely ruined, and full restitution will need to be made to the owner. If the dye came out unattractively, the owner will pay either the added value of the poorly dyed wool or the dyer’s expenses – whichever is less. If he dyed it the wrong color entirely, Rabbi Meir rules that full restitution must be made to the owner; Rabbi Yehuda rules that the owner will pay the lesser value of either the added value of the newly dyed wool or the dyer’s expenses.

    The Ra’avad explains the difference between Rabbi Meir and Rabbi Yehuda as being based on two different outlooks about the relationship between the owner and the dyer. According to Rabbi Meir, by going against the instructions of the wool’s owner, he gets the status of a thief, and takes possession of the “stolen” object, for which he must pay. Rabbi Yehuda believes that he remains a hired laborer, albeit one that does not deserve to be fully paid for his substandard work.

    Regarding Rabbi Yehuda’s position, the Maggid Mishna understands Rashi to rule – similar to the position of the Rambam in his commentary to the Mishna – that the owner has the option of demanding full restitution of the value of the wool. The Rambam in his Mishneh Torah (Hilkhot Sekhirut 10:4) does not accept this position, since he rules that a craftsman does not acquire ownership rights through the enhancement of a vessel – ein uman koneh be-shevah keli. Thus the owner will pay either the increased value of the wool or the worker’s expenses – whichever is less.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

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