La estimación [del daño debe hacerse solo en] dinero. [Beth-din estima la cantidad del daño, y eso es lo que le paga. Y si la vaca de Reuven dañó la capa de Shimon, pisándola en el dominio del nizak (Shimon) y pisoteándola, y más tarde el pie de esta vaca se rompió (quedando atrapado) en la capa de Shimon, que también es un bor en el público dominio, no decimos que dado que esta (vaca) se dañó y esta (capa) se dañó, los daños se cancelan entre sí, pero se evalúan los dos daños, y quien dañó a su vecino más (de lo que fue dañado) paga (la diferencia ).] [Y cuando llegan a pagar los daños de la propiedad de los huérfanos, solo pagan en tierra, que es] el equivalente de dinero [y no en metaltelin, que es el dinero mismo. Porque todas las cosas móviles se consideran dinero. Porque si no pueden venderse aquí, pueden venderse en otro lugar.] [Y la evaluación y el pago de los daños deben ser solo] antes de beth-din, [quienes son expertos y no antes de un beth-din laico], y por testigos quienes son hombres libres e "hijos del pacto" [para excluir a siervos e idólatras, que no son kasher (aceptables) para el testimonio sobre daños.] Y las mujeres están incluidas en (el halachoth de) daños. [Ya sea que ella haya dañado a otros o ellos la hayan dañado a ella, las leyes de daños son las mismas para hombres y mujeres.] Y el nizak y el mazik (participación) en el pago. [A veces, el nizak comparte con el mazik en el pago de daños. Como cuando el valor de la carcasa se deterioró desde el momento de la muerte hasta el momento del juicio, en cuyo caso el nizak incurre en la pérdida (a través del deterioro) de la carcasa, ya sea que el animal (dañino) sea un tam o un muad. Se descubre, entonces, que el mazik ni siquiera paga ese medio nezek que la Torá le otorgó si el animal era un tam o el nezek completo, si fuera un muad— para que el nizak pierda, "compartiendo" el pago con el mazik.]
Rambam on Mishnah Bava Kamma
"Evaluations are in money and things equal to money, before a court and witnesses etc.. "
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Bartenura on Mishnah Bava Kamma
שום כסף – this assessment of damages will not be other than with money, so that the Jewish court will assess how much the damage is worthy and he (i.e., the one who caused the damage) will pay him. But if the cow of Reuven damaged the tallit/garment of Shimon as it tread upon it in the domain of the who was damaged and broke it and afterwards it happened that the foot of Reuven’s cow was broken by the garment of Shimon in the public domain and it was also a pit in the public domain, we don’t say that since this one did damage and the other one did damage, this one’s damage was excluded by the damage of the other, but they assess the two damages monetarily – and the one who damaged his fellow more pays.
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English Explanation of Mishnah Bava Kamma
Introduction
The third mishnah of Bava Kamma continues to give us introductory information to the general laws of damages which will be learned throughout the tractate. The previous mishnahs dealt with the causes of injury (mishnah one) and the type of property for which one would be liable if damaged (mishnah two). Mishnah three basically deals with the judiciary procedure through with the damages will be assessed.
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Rambam on Mishnah Bava Kamma
That since we brought up these instances of damage with the conditions where a man is obligated to pay for all the damages caused by his possessions, and now (the Mishnah) begins to explain how to make payment and says that evaluation of damages should be made in money, and we don’t say take out from this thing (that damaged), for example, if an ox eats fruits we do not say to the owner of the fruits to take out from the ox the portion which he ate for yourself, rather, we assess what he ate for himself in money and we force the owner of the ox to pay.
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Bartenura on Mishnah Bava Kamma
שוה כסף – and when they come to pay the damages from the property of the orphans and they do not collect other than land that has monetary value and not from movables which are themselves money. And all movable things are considered as if it is money, for if he doesn’t sell it here, he will sell it in another town.
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English Explanation of Mishnah Bava Kamma
1. Assessment [of injury] in money or things worth money must be made before a court of law and by witnesses that are free and Children of the Covenant (Jews). 2. Women may be parties in [suits concerning] injury. 3. The injured and the injurer [in certain cases may share] in the compensation. 1. The first clause of the mishnah deals with assessing both the monetary amount of the damages and the monetary evaluation of the payment that the injurer will give to the injured party. For instance, if my ox gores your ox and your ox dies, we need to go to the court to assess two things: 1) how much your ox was worth, 2) how big of a piece of land must I give you in order to compensate you for your loss. These assessments must be done in front of a court, which according to Jewish law must have three judges. The witnesses who testify in cases involving the laws of damages must be free and Jewish. 2. The second clause of the mishnah states that with regards to damage law, men and women are equal. This means that if a man or his property damages a woman or her property, or a woman or her property damages a man or his property, in all cases we judge according to the same law. Perhaps the reason why the mishnah feels the necessity to state this law is that the Torah uses the word “ish”, man, in many of the verses concerning damage law (Exodus 21:33, 35, 37, Exodus 22:4, 6, 9, 13). One may have explained that according to the Torah only men’s damages are considered to be important. The mishnah states the opposite, that women are also a part of damage law (see also Exodus 21:28). 3. The final clause of the mishnah refers to the case of “half damages”. When an ox that is not known to gore gores another ox, the owner of the goring ox is only obligated for half damages, since his ox was not known to be a “goring ox”. In this case it is as if the injurer pays half for the dead ox and the injured also pays half.
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Rambam on Mishnah Bava Kamma
And that it says ‘an equivalence of money’ implies that since the court does not say to pay for damages for one who inherits (literally 'orphans') a liability except from land, not from that which is movable, since movable things are themselves money. And says that since they don’t confiscate except what is equivalent to money, which is land, and this law applies specifically to inheritors. However if the damager himself pays his portion that he damaged from moveable objects, the hand of the court will be removed from his land.
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Bartenura on Mishnah Bava Kamma
בפני ב"ד – for the assessment and the payment of damages do not take place other than in from of a Jewish court of experts, and not before a Jewish court of lay persons.
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English Explanation of Mishnah Bava Kamma
Questions for Further Thought: • Why must property evaluation be done in front of the court? Why can’t people just come to an agreement? • We have seen now in several mishnahs that damage laws as described in the Torah and in the mishnah apply only to free Jews? Why do you think this is so?
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Rambam on Mishnah Bava Kamma
And that evaluation and payment will not be made except in a court of experts and not laymen. And with witnesses that are free men and jewish but not the testimony of slaves or gentiles, that it was necessary to exclude them, because it may arise in your mind to give in and be lenient in testimony for damages, because it happens a lot, and it is rare that there happens to be upon them at the time kosher witnesses, that since collisions between people and between animals mostly happen in the presence of simple people and slaves and gentiles. Therefore it lets us know that we only accept in court kosher witnesses as we say with other testimony.
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Bartenura on Mishnah Bava Kamma
ועל פי עדים בני חורין ובני ברית – to exclude salves and idolaters who are not fit for serving as witnesses of damages.
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Rambam on Mishnah Bava Kamma
And there is no distinction between men and women in damages whether she damages or gets damaged.
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Bartenura on Mishnah Bava Kamma
והנשים בכלל הנזק – whether she caused damages to others or whether others caused damage to her, the claim of a man and the claim of a woman are equivalent in damages.
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Rambam on Mishnah Bava Kamma
And what we say that the damagee and the damager share in payment allude to matters where they are obligated in half damages as will be explained that the damager pays half the damage and the damagee will lose half, and this half also will not happen except when full damages apply, implying with witnesses and a court of experts and the possessions of jews and the rest of the conditions, apart from what we said with the best of the land because this is not fitting for half damages as will be explained.
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Bartenura on Mishnah Bava Kamma
הניזק והמזיק בתשלומין – sometimes that one who suffered damage belongs with the one who causes damages in payments of the one who suffered damage, such as if the worth of the carrion became less from the time that it died until the time that it was brought to justice, for the lessened [value] of the carrion belonged to the one who suffered damage whether it was an innocuous animal or one whose owner had been warned after it committed damage (see Tractate Bava Kamma, Chapter 2, Mishnah 4), and it is found that the one who did damage does not pay him even the one-half damages that the Torah made him worthy of if the animal was innocuous, or full damages if it was a warned animal, for the one who suffered damages loses money and is attached to these damages as is the one who causes the damage.
