There are four avoth (prototypes) of nezikin (damages) [Because each one of them has toldoth (derivatives), they (the prototypes) are called avoth.]: shor (lit., "ox") [This is regel ("foot"), i.e., what the beast damages with its feet as it walks, viz. (Exodus 22:4): "And he sends his beast," and (Isaiah 32:20): "senders of the foot of the ox and the ass." A toldah of regel is (the beast's) damaging with its body as it walks, or with its hair as it walks (vessels becoming attached to its hair and being dragged and broken), or with the shalif that is upon it (the load in its saddlebag or its pack-bags), or with the bell upon its neck.], bor (pit) [one's opening a pit in the public domain and an ox or an ass falling therein and dying, if the pit is ten tefachim (handbreadths) deep; or being injured, if it is less than ten tefachim, viz. (Exodus 21:33): "If a man open a pit, etc." A toldah of bor is one's phlegm or mucus causing damage after falling in the public domain.], maveh [This is shen ("tooth"), his beast's eating in his neighbor's field, viz. (Ibid. 22:4): "…and it eat in another's field." Shen is called "maveh" because it (the tooth is sometimes hidden, sometimes revealed, viz. (Ovadiah 1:6): "niv'u matzpunav," the targum of which is "itgalyan matmorohi" ("His hidden things are revealed.") And a toldah of shen is (the beast's rubbing itself against a wall for relief (of its itching), as is common with beasts, and breaking the wall in doing so, or sullying fruits in rubbing itself against them for relief.], hever [fire going forth and damaging, viz. (Exodus 22:5): "If fire go out … and there be consumed sheaves, or the standing corn, or the field, etc." A toldah of esh (fire) is one's stone, knife, or burden, which he placed on top of his roof falling in a normal wind and causing damage, like fire, which is driven by the wind. The reason that our tanna does not reckon keren ("horn") among the avoth nezikin is that only the nezikin that are muadim ab initio (i.e., which pay full damages from the beginning) are being discussed not those which are first tamin (paying half damages), and then muadim.] The instance of shor is not like that of maveh, and that of maveh is not like that of shor. And neither the one nor the other, which have a spirit of life, is like esh, which does not have a spirit of life. And neither the one nor the other, whose way it is to go and cause damage, is like bor, whose way it is not to go and cause damage. [That is, if the Torah had written (only) shor, maveh could not be derived from it. For I would say that regel, for which it is common to cause damage, was made liable by the Torah; shen, for which it is not common to cause damage, was not made liable by the Torah. And if the Torah had written (only) shen, I would say that shen, where there is enjoyment in damaging, is liable; regel, where there is no enjoyment in damaging, is not liable. And if the Torah had written shen and regel, and had not written esh, I would say that shen and regel, which have a spirit of life — that is, which come from the force of a living creature — are liable; but esh, which does not have a spirit of life, should not be liable. And if the Torah had written those three and not bor, I would say that those should be liable, for it is their way to go and cause damage; but bor, which does not go and cause damage, should not be liable — for which reason all must be written. The gemara concludes that if bor and one of the others were written, all the others could be derived (with the exception of keren), through their common factor, viz. it being their way to cause damage. All had to be written only because they are distinct in their halachoth, there obtaining with the one what does not obtain with the other: Shen and regel are exempt in the public domain, as opposed to bor and esh. Scripture exempted bor from (liability for) men and vessels, viz. (Exodus 21:33): "…and there fall into it an ox or an ass," which is expounded: "an ox," and not a man; "an ass," and not vessels, as opposed to the other avoth nezikin. Esh is exempt from (liability for) what is hidden; so that if clothing were hidden in a stack (of corn), the starter of the fire is exempt, it being written (Ibid. 22:5): "…or the standing corn" — Just as standing corn is in the open, so (there is liability for) all that is in the open (as opposed to what is hidden). And with the other avoth nezikin, there is no exemption for what is hidden.] What is common to all of them — it is their way to cause damage and it devolves upon you to guard them, [so I shall include all things whose way it is to cause damage and the guarding of which devolves upon you], and if it (one of those things) caused damage, the mazik (the causer of the damage) must pay for the damage with the best of his property, [from the highest quality, if he comes to give land in payment for the damage, it being written (Ibid. 4): "The best of his field and the best of his vineyard shall he pay." But if he wishes to pay metaltelin ("movables"), the ruling is that all things are 'best'"; for if it cannot be sold in this place, it can be sold in another, and he can give whatever he wishes, even bran. This, with damages. But with a debtor, if he has money, he is obliged to give money, and if not, he gives whatever metaltelin he wishes, and if land is claimed, he gives him beinonith (middle-quality). And, with a hired laborer, even if the hirer has no money (of his own), he must give him money as his wage, and he is obliged to sell his property so that he has enough to pay him.]
Rambam on Mishnah Bava Kamma
Four fathers of damages; the Ox and the Pit and the 'Maaveh'
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Bartenura on Mishnah Bava Kamma
ארבעה אבות נזיקין – because there are for every one of these (“chief actional damages”), derivatives, we call them "אבות"/chief, actionable [damages].
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English Explanation of Mishnah Bava Kamma
Introduction The first mishnah in Bava Kamma serves as an introduction to the first six chapters of the tractate. As such, if all of the details are unclear now, they will hopefully become clearer as we continue to learn. The mishnah discusses four primary causes of injury, literary “fathers of injuries”. These are archetypal causes of injury mentioned in the Torah, from which we will learn many other types of injury and subsets of laws in the following chapters.
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Rambam on Mishnah Bava Kamma
These 4 principles from damages, they are the damages that are to do with one's property.
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Bartenura on Mishnah Bava Kamma
השור – this is the foot, meaning, what the animal damages with her feet while she is walking, as it is written (Exodus 22:4): “When a man lets his livestock loose [to graze in another’s land, and so allows a field or a vineyard to be grazed bare],” and teaches "ושלח" /”lets loose” – this is the foot and similarly he states (Isaiah 32:20): “Who let loose the feet of cattle and asses,” and it is a derivative of the foot when it (i.e., the animal) causes damage with her body while walking or in the gates while walking when utensils that were attached to the gates and [the animal] dragged them and broke them or with the saddle bag that is upon her. And this is a burden that is in large sacks, and the packing bags that are upon her or in the bell that is on her neck.
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English Explanation of Mishnah Bava Kamma
1. There are four primary causes of injury: the ox and the pit and the crop-destroying beast and fire. 2. [The distinctive feature of] the ox is not like [that of] the crop-destroying beast, nor is [the distinctive feature of] either of these, which are alive, like [that of] fire, which is not alive; nor is [the distinctive feature of] any of these, whose way it is to go forth and do injury, like [that of] the pit, whose way it is not to go forth and do injury. 3. What they have in common is that it is their way to do injury and that you are responsible for caring over them; and if one of them did injury whoever [is responsible] for the injury must make restitution [to the damaged party] with the best of his land. The four causes of injury mentioned in the first clause mishnah are all derived from the Torah: the ox (Exodus 21:35-36), the pit (Exodus 21:33-34), the crop-destroying beast (Exodus 22:4) and fire (Exodus 22:5). The mishnah then raises a question generally asked in midrashic texts (texts that explain the Torah): why does the Torah need to mention all four types of injury? In other words, why couldn’t the Torah have mentioned one, two or three primary causes of injury, from which we would have learned the rest? The Rabbis believed that no law in the Torah was superfluous and therefore each must come to teach us something that we could not have learned from the other laws. The mishnah therefore explains that each “cause of injury” has its unique characteristic and therefore we would not have been able to derive the laws of the other causes of damages without all four examples in the Torah. Note how the mishnah is both dependent on, yet independent from the Torah. This is typical of Jewish oral Torah; it explains the Torah yet it can usually be understood on its own. Questions for further thought: What type of injury does an ox cause? What therefore is the difference between an ox and a crop-destroying beast? The Mishnah tells you things that you are obligated to watch and that if they are yours and they injure you will have to pay the damaged party. Is there anything you can already imagine for which a person will not be obligated if it causes damage? (We will learn the answers to these questions as we go on, but it is worthwhile to start thinking of them now).
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Rambam on Mishnah Bava Kamma
And the Ox implies the legs of the Ox, as it's said, it damages what it tramples and it breaks what it breaks and ruins in the way of his walking with his legs. And the 'Maaveh' implies the tooth (of the Ox), and its damage is the result of his eating what he eats from it. It's called with this name from its action since it uproots and seeks what it eats, as it says (Obadiah 1:6): How uprooted is Esau, how sought out (Maaveh) his hidden things.
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Bartenura on Mishnah Bava Kamma
והבור – whomever opens a pit in the public domain and an ox or an ass fell into it and died, if the pit was ten handbreadths deep or caused damage, if it was is less than ten handbreadths [deep], as it is written (Exodus 21:22): “When a man opens a pit [or digs a pit and does not cover it, and an ox or an ass falls into it],” and a derivative of a pit such as the phlegm brought out by coughing or hawking (see Talmud Bava Kamma 3b) after they were placed in the public domain and caused damage.
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Rambam on Mishnah Bava Kamma
The Ox is not like the Maaveh
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Bartenura on Mishnah Bava Kamma
והמבעה – this is the tooth, for the animal ate in the field of his fellow as it states (Exodus 22:4): “and so allows a field or vineyard to be grazed bare in another’s land,” and the tooth is called מבעה/damaging the crop because it sometimes is covered and sometimes uncovered/revealed, from the language (Obadiah 1:6): ”How ransacked his hoards!”/”Its hidden treasures were laid bare” (made empty, which refers to eating up – see the comment of Shmuel in Talmud Bava Kamma 3b), as we translate into Aramaic: the hidden object is revealed; and it is a derivative of the tooth, the animal scratching itself against a wall for her gratification (see Talmud Bava Kamma 3a) in the manner of animals scratching themselves, and when she broke the wall or soiled (with excrements, secretions) the fruits (by rolling in them) when she scratched herself on them for her gratification.
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Rambam on Mishnah Bava Kamma
Implying that it was necessary for the Torah to delineate each of these 4 damagers one by one because it is impossible to learn out one from the other through a 'kal ve chomer' (lesser to more severe exegesis), that since in each of them there is in it a principle which is not in the other, therefore comparison is not appropriate. The Legs whose damage is common is not comparable to the Tooth whose damage is not common. And it is not comparable, the Tooth, that there is in it benefit to the damage to compare to the Legs that there is not benefit in the damage. And it is not comparable, this and this, that there are in them spirit of life, to compare to the Fire that does not have in it spirit of life. And not, this and this, that on the road they go forth and damage to compare to the Pit that does not go forth on the road and damage. Thus in each and every one of them there is in it a principle which is not found in the others so it is necessary for scripture to explain each one from them that they are obligated in damages. And this is not to say that if God may his name be blessed wrote the law of pit and one from the remaining three, we wouldn't learn from them the remaining two in the way of tzaad ha shaveh (exegesis) as is alluded to, however scripture partitioned into 4 laws to establish all from them have a law apart from the other. Tooth and Legs are exempt in the public domain, Pit is exempt from vessels, Fire is exempt from concealed items and further this will all be explained. And it was not necessary to mention at all the 'father'- 'Horn' (of the ox) because there is in it a difference if it's 'Accustomed' and 'Simple' as is explained in scripture.
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Bartenura on Mishnah Bava Kamma
ההבער – this is the fire/conflagration, for it went out and caused damage, as it is written (Exodus 22:5): “When a fire is started [and spreads to thorns], so that stacked, standing or growing grain is consumed.” And the derivative of fire is his rock and his knife and his burden that he placed them on the upper portion of his roof, and they fell with an ordinary wind and it caused damage that resembles fire where the wind leads it. But surely, our Tanna/teacher [of the Mishnah] did not consider a horn [of an animal] under the category of the chief actionable damages, because we are not speaking about other than damages which are when an animal whose owner stands forewarned (on account of three successive injuries) from their outset, meaning to say, that they pay full indemnity from their outset. But when they (the animals) are innocuous (i.e., one that did injury for the first time, or before warning had been given) it doesn’t speak of this.
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Rambam on Mishnah Bava Kamma
And we say the common principle that is in them etc...
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Bartenura on Mishnah Bava Kamma
לא הרי השור כהרי המבעה – meaning to say, if the Merciful One had written [only] "שור"/the ox, we would not derive "מבעה"/the tooth from it. For I would have said that a foot that caused damage is an ordinary occurrence (and must be guarded against), and the Merciful One made it liable (see Talmud Bava Kamma 2b). But the tooth whose damage is not an ordinary occurrence, the Merciful One did not make it liable. But if the Merciful One [only] wrote "שן" /the tooth, I would have said that the damage done by a tooth is connected with a benefit (to the animal), is liable. But the "רגל"/foot which is not connected with a benefit (to the animal), it is not liable. But if the Merciful One had written “tooth” and “foot” and but did not write “tooth,” I would have said that “tooth” and “foot” which have in them a living spirit, meaning to say that that they come from the strength of living creatures, it is liable, but the fire which has no living spirit in it is not be made liable. But if three of them were written, but the Merciful One did not write "בור"/pit, I would have said that these (three) whose manner is to go and do damage, but the pit, whose manner is not to go and do damage, I would not be liable for it; because of this, it was necessary for [the Mishnah to state] all of them. And in the Gemara (Talmud Bava Kamma 5b) brings up, that if it wrote “pit” and one of these, all of the rest of them would come except for “horn,” through the points common to both, that their manner is to cause damage, and they didn’t need all of them other than because they are divided in their [specific] Halakhot, for this one has what the is not found in the other- that the “tooth” and the “foot” are exempt in the public domain, which is not the case with the “pit” and the “fire.” Scripture exempted the “pit” [from punishment] for humans and utensils, as it is written (Exodus 21:33): “[When a man opens a pit, or digs a pit and does not cover it], and an ox or an ass falls into it,” that we expound, “an ox” but not a human being; “an ass,” but not utensils, which is not the case with the other chief actional damages. “Fire,” exempts what is hidden, for if there were hidden clothes in a stack of grain, the person who sets fire is exempt, as it is written (Exodus 22:5): “[so that stacked], standing [or growing gain is consumed],” just as standing grain is revealed, so also all that is revealed, and the rest of the chief actional damages did not exempt that which is hidden.
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Rambam on Mishnah Bava Kamma
Implying everything whose way is to do damage, it is upon you to guard it, if it damages, the damager is obligated to fulfill the payment of damage with the best of the land as we have already explained, the best of the field and land he shall pay. And this has already been explained to us in the fifth section of gittin. And these fathers have offspring that are subcategories, the Legs, if it damages with its body or its hair as it's walking. The offspring of the Tooth that it rubs against a wall for its benefit or spoils fruits for its benefit. The offspring of Fire; a stone, a knife, or a load are placed on the top of a roof and fall because of a typical wind and damage. The offspring of Pit- spit and phlegm which come out from someone. And further these laws will be explained with their principles and sub-categories.
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Bartenura on Mishnah Bava Kamma
הצד השוה שבהן וכו' – even I will bring all that is normal to cause damage and its protection is upon you, that if he caused damage, the one who caused damage is liable make the payment for the damages that he committed.
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Bartenura on Mishnah Bava Kamma
במיטב הארץ – from the best of his possessions, from the most praiseworthy of them, if he comes to take for himself land as payment for his damage, as it is written (Exodus 22:4): “he must make restitution for the impairment (lit. “excellence”) of that field or vineyard.” But, if he comes to give him “movables,” we hold that every word "מיטב"/the best for if he doesn’t sell here, he will sell in another town, and he will give him all what he requires, even bran, and these words are for damages. But for someone who is a creditor, if he (i.e., the borrower) has money, we make him liable to give money, and if he lacks money, he will give movables, what ever he needs. And if he collects land, he will give him mid-range [land]. And a renter, even if the landlord lacks money, he is not able to give him his rent/wages, but rather [only] zuzim. And we obligate him to sell from his possessions until money is found and he gives it to him.
