Baba Ḳamma ("First Gate"):

By: Marcus Jastrow , Michael Friedländer

The first of a series of three Talmudic treatises of the order Neziḳin dealing with damages. Baba Ḳamma is on compensation for damages. The regulations discussed in this tractate have their source in the judgments that Moses was commanded to lay before the Israelites, and which were probably included in the "Sefer ha-Berit" (Book of the Covenant, Ex. xxiv. 7). Biblical laws dealing with the cases discussed in Baba Ḳamma are contained in the following passages: Ex. xxi. 18, 19, and xxi. 24-xxii. 5 [A. V. 6]. And the principle that underlies all the legislation in this respect is expressed by the sentence, "He that kindled the fire shall surely make restitution" (xxii. 5 [A. V. 6]).

Baba Ḳamma is divided into ten chapters, which may be grouped as follows: damage caused without criminality (chaps. i.-vi.); damage caused by a criminal act (chaps. vii.-x.).

Damage Caused Without Criminality:

(1) Damage caused by agents in their normal condition; (2) damage caused by agents in their abnormal condition. An instance of the first class of agents is an ox treading upon things that are in his way and thus damaging them, or eating things that are in his path. An instance of the second class is the case of a Goring Ox , as under normal circumstances an ox does not gore.

Damage by Normal Agents.

• (1) The Mishnah opens with the first class, and enumerates four heads of damages, "abot neziḳin" (literally, parents of damages), viz.: "Shor," "Bor," "Mab'eh," "Heb'er" (Ox, Pit, Feeding, Burning). These four agents of damages correspond to those mentioned in Ex. xxii. 4 [R. V. 5], xxi. 33, 34, xxii. 4 [A. V. 5], xxii. 5 [A. V. 6]. The law concerning the compensation in these cases is expressed in the Mishnah (i. 1) thus: "These four agents have in common the circumstance that they usually cause damage; that the owner has the duty to prevent the damage; and that if he fails to do so, on damage being done he must pay full compensation, with the best of his property" (compare Ex. xxii. 4 [A. V. 5]). Before, however, giving the detailed regulations for these four kinds of damage, the Mishnah proceeds to the discussion of the second class of damages, those caused by agents in an abnormal condition.

Damage by Abnormal Agents.

• (2) The principal point in the second class is the distinction made between "tam" (harmless) and "mu'ad" (warned) (see Accident). The law of compensation in these two cases is as follows: In the case of an animal previously reputed harmless (tam) the owner has to compensate for half the damage, unless half the damage exceeds the whole value of the animal causing the damage. In a case where the owner has been warned (mu'ad), he must give full compensation for the damage, without regard to the value of the damaging animal (compare Ex. xxi. 35, 36).The law of mu'ad applies to the four kinds of damage done by animals or agents in their normal condition. In addition to these the Mishnah (i. 4) enumerates the following: man, and wild beasts owned by a man—such as the wolf, the lion, the bear, and the leopard; also the serpent. Of man it is said, "Man is always fully responsible (mu'ad), whetherhe cause damage intentionally or unintentionally, whether awake or asleep" (ii. 6). This rule is illustrated by various instances given in the third chapter (1-7).

Damage by Pit, Burning, etc.

The remaining part of the third chapter, the fourth, and part of the fifth (1-4), contain regulations concerning the compensation for damage caused by a goring ox. Following the order of the abot neziḳin given in the beginning of the tractate, the damage caused by a pit is discussed in the second part of the fifth chapter; and the sixth chapter is devoted to the remaining two causes of damage, grazing (1-3) and burning (4-6). Of the last section the following law is noteworthy: "If a camel laden with flax passes through a street, and the flax catches fire from a candle that is inside a shop so that the whole shop is thereby set on fire, the owner of the camel is held responsible for the damage; if, however, the candle is outside the shop, the owner of the shop is responsible, except in case of Ḥanukkah lights" (see Accident).

Damage Caused by Criminal Acts:

(1) By theft (ch. vii.); (2) by violence (ch. viii.); (3) by robbery (ch. ix.-x.).

• (1) "If a man steal an ox or a lamb and slaughter the same or sell it, five cattle shall he pay for the ox and four sheep for the lamb" (Ex. xxi. 37). The regulations as to how to apply this law under various circumstances are contained in chapter vii. 1-6.
• (2) The compensation for injuries as the result of violence is discussed in chapter viii. Such compensation includes five items: "nezeḳ," for the permanent loss, if any, in the earning capacity; "shebet," loss of time; "ẓa'ar," pain; "rippuy," cost of the cure; and "boshet," insult. The scale of compensation for insult, as given in the Mishnah, seems to indicate the maximum compensation, for the Mishnah adds, "The principle is that the amount depends on the injured man's station in life." Rabbi Akiba, however, opposed this principle, and desired to have one measure for all. A practical case decided by Rabbi Akiba is then cited (viii. 7). In addition to all the compensation paid, the offender must beg the injured man's pardon.
• (3) He who has robbed his neighbor, and desires to make restitution, pays the full value of the thing taken and a fine of one-fifth of its value (Lev. v. 21-24 [A. V. vi. 2-5]). If the things taken by robbery have undergone a change, he pays according to the value the things had at the time of the robbery (ch. ix.). The last chapter treats of cases in which the things taken are no longer in the hands of the robber, and concludes with the warning not to buy things suspected to be stolen. With the exception of chap. vii. 7 (on certain restrictions with regard to the rearing of cattle or poultry in Palestine), there are neither halakic nor haggadic digressions in this tractate.

About the linguistic peculiarities in the beginning of the tractate, see Frankel, "Darke ha-Mishnah," p. 13; and compare Bab. B. Ḳ. 6 b .

The Tosefta and Mishnah.

The Tosefta has eleven chapters instead of the ten of the Mishnah; chaps. vii. and viii. corresponding to chap. vii. of the Mishnah, and chap. x. corresponding to chap. ix. and x. 1-8, while chap. xi. corresponds to x. 9-10 of the Mishnah. The enumeration of the abot neziḳin placed in the Mishnah at the head of the first chapter is reserved in the Tosefta for chap. ix.; and instead of 4 the Tosefta enumerates 13 (compare Bab. B. Ḳ. 4 b , where Osha'ya enumerates 13 and Ḥiyya 24, while in the Talmud Yer. B. Ḳ. i. 2 a , Ḥiyya has 13).

The Two Gemaras.

The two Gemaras, as usual, discuss the laws of the Mishnah; the Jerusalem Talmud rather briefly, the Babylonian Talmud more fully. The following are a few of the principles enunciated in the Gemara: —According to Symmachus (Sumkus): Property concerning which there is a doubt whether it belongs to A or to B , is divided between A and B without either being compelled to confirm his claim by oath. The sages ("ḥakamim") hold that he who claims what is in the possession of another, must prove his claim (B. Ḳ. 46 a ). A person attacked on his own grounds may take the law into his own hands, when the delay caused by going to a proper court of law would involve great loss. Whenever the whole value of the damaged object is paid, the payment is considered as compensation ("mamona"); when only half the value or a certain fixed amount is paid, the payment is considered a fine ("ḳenasa") (B. Ḳ. 15 b ). The judges in Babylonia had no right to impose a fine for any offense; the case had to be tried by qualified judges in Palestine. The following incident will illustrate the last two rules: A man was charged before Rab Ḥisdai (in Babylonia) with having struck a fellow man with his spade. Rab ḥisdai asked Rab Naḥman how much the offender had to pay. The latter replied that no fine could be imposed in the Babylonian courts, but that he desired to know the facts of the case. He ascertained that A and B had together a well, each of them with the right of drawing water on certain fixed days alone. Contrary to the agreement A drew water on a day that was not his. B noticed it and drove him away with his spade. Rab Naḥman's verdict was that B might with impunity have hit A a hundred times with the spade, as any delay would have involved a great loss to B (B. Ḳ. 27 b ). It is noteworthy that two codes of law are mentioned: the legal one ("dine adam," literally, judgments of man) and the moral one ("dine shamayim," literally, judgments of heaven). In some cases the former absolves man of an obligation, and the latter does not (Mish. vi. 4; Gem. 29 a , 56 a , and passim). There are comparatively few haggadic elements in Baba Ḳamma. Some of these may be given here:

Haggadic Elements.

• (a) A "ḥasid" (pious man) noticed a man throwing stones and rubbish from his own garden into the public thoroughfare. The ḥasid rebuked him, saying, "Why do you throw these things from a place that is not yours into a place that is yours?" The man laughed; but he soon learned the true meaning of the question. For he had to sell his property, and one day, walking in the street, he met with an accident through these very stones (50b).
• (b) Joshua, on dividing Palestine to the tribes of Israel, made the tribes agree to ten conditions, themost important of which are the common use of the forests as pasture for cattle, and the common right of fishing in the Sea of Tiberias (81a).
• (c) Ezra introduced ten rules ("teḳanot"), among them the reading of a section of the Pentateuch on Sabbath afternoon ("minḥah"), on Monday and on Thursday, and the holding of the sittings of the court (bet din) on Mondays and Thursdays (82a).
• (d) Two officers were once sent by the Roman governor to Rabban Gamaliel to be instructed in the Jewish law. When they had finished the study they declared to Rabban Gamaliel that the laws (referring probably to the civil code of laws) were all just and praiseworthy, with the exception of two that make a distinction between Jew and heathen. The rabbi thereupon ordered the inequality to be removed (Bab. 38a, and Yer. iv. 4b).
• (e) Rabbi Johanan used to give to his servant part of everything he was eating or drinking, saying, "Is not his Creator also my Creator?" (Job xxxi. 15; Yer. viii. 6c).
• (f) At the funeral of King Hezekiah a scroll of the Law was laid on the bier, with the words, "This [man] fulfilled what is written in this [scroll]" (Bab. 17a).Some noteworthy explanations of Biblical texts may be added. The words "ḳa'asher yeba'er hagalal" (I Kings xiv. 10) are quoted as meaning (Babli 3a; see Rashi, ad loc.) "as the tooth destroyeth" (A. V. "as a man sweepeth the dung"). "Erek appayim" ("slow to anger," Ex. xxxiv. 6) is interpreted "long-suffering to both the righteous and the wicked" (ib. 50b), on account of the dual form. A Biblical verse is quoted according to its sense and not literally, as, for example (ib. 81b; compare B. M. 76a), "mihyot ṭob al tiḳḳare ra'" (when thou art kind, thou shalt not be called bad); then the question is raised, "Is it written so?" and the verse Prov. iii. 27 is cited.

J. Sr. M. F.