BAVA KAMMA

BAVA KAMMA (Aram. בָּבָא קַמָּא), tractate of the Talmud, the first of the order Nezikin.

Name

Bava Kamma was originally not a separate tractate, but the first part of a larger tractate, whose name was identical with the name of the order. The title Bava Kamma is the abbreviated form for Bava Kamma de-Massekhet Nezikin ("the first gate (section) of the tractate Nezikin"). Tractate Nezikin ("torts") comprised 30 chapters, covering the entire range of pecuniary law (dinei mamonot). However, according to the Midrash, the size of Nezikin discouraged the student: "What does the fool say? 'Who can study the Torah? Nezikin has 30 chapters; Kelim has 30 chapters!'" (Lev. R. 19:2). For this reason Nezikin was divided into three sections, each consisting of ten chapters. The second and third parts are now called Bava Meẓia ("the middle gate") and Bava Batra ("the last gate"). The division seems to have taken place in Babylonia (bava as "gate" is unique to Babylonian Aramaic; see: Ned. 66b), where the size of Nezikin must have interfered with the regular practice of the academies to study one tractate each term. Palestinian sources indicate no division. (Genizah fragments of the Jerusalem Talmud treat it as one tractate.)

A similar division took place in the Tosefta, where the original tractate Nezikin, which contained 33 chapters, was divided into three sections of 11 chapters each. The mechanical nature of this division is evident from the fact that chapter 11 of Tosefta Bava Meẓia contains some material that parallels the last chapter of Mishnah Bava Meẓia and some that parallels the first chapter of Mishnah Bava Batra.

Contents

The first three mishnayot of Bava Kamma belong to one of the most ancient strata of mishnaic material, and contain, in succinct phrases, the underlying laws of *Torts (see *Avot Nezikin): "There are four avot (lit. 'fathers' or 'main categories') of torts – the shor ('ox'), the bor ('pit'), the maveh ('man' or 'tooth') and the hever ('fire')…. If I am responsible for the care of a thing, it is I who make possible the injury it may do…. Assessment of the monetary equivalent [of an injury] must be made before a court of law, based upon the testimony of witnesses…. The laws of torts apply equally to women…." The antiquity of this section is indicated by the use of numerical listing (four avot), first person constructions, biblical phrases, archaic forms, and terse rules. One of the earliest of the Babylonian amoraim, Rav, alluded to the character of this section when he stated: "The tanna of this Mishnah was a Jerusalemite, who taught in a terse style" (bk 6b).

The list of four avot in the Mishnah is a convenient summary of the various sources of damage mentioned in Exodus 21:28–22:5. In the beraitot, other lists of avot nezikin are found, one containing 13, and others 24, according to varying schemes of inclusion (see bk 4b; Tosef. to bk 9:1).

chapters 1:4–3:7

Chapter 1:4 is another ancient Mishnah, again in the form of a numbered list, dealing, now in greater detail, with the avot of "horn," "tooth," and "foot," and, finally, "man." In chapter 2 each entry on the list in 1:4 is defined and expanded. For example, if an animal, while walking, kicks some pebbles, which hit another object and cause damage, this is "foot," only half of the damage is to be paid. Thus, chapter 2 of the Mishnah is a sort of "Gemara" on 1:4.

The first laws in chapter 3 come under the category of "pit": "If a man left a pitcher in the 'public domain,' and another stumbled over it… the owner is liable for the injury." The middle part of chapter 3 deals with "man": "If two pot-vendors [carrying their wares] were walking, one behind the other, and the first one stumbled…." The end of chapter 3 again deals with "horn" and appears to be a new discussion of the same subject covered in chapter 2. It has therefore been suggested by A. Weiss that 1:4–3:7 was originally an independent Mishnah section, dealing with the avot of "ox" ("horn," "tooth," "foot"), "pit," and "man." It would thus appear to be an expansion of the list of avot at the beginning of chapter 1, until maveh, in consonance with the interpretation that maveh is "man."

chapter 3:8–6 end

This is another section, treating in detail the categories "horn," "pit," "tooth and foot," and "fire." It, too, is an expansion of 1:1, taking "ox" as "horn," and maveh as "tooth and foot." Thus the dispute between Rav and Samuel as to the meaning of maveh (bk 3b) did not originate with them; it had its origin in the underlying organizational scheme of early mishnayot which are independent expansions of the ancient Mishnah: "There are four avot …"

chapter 7

Chapter 7 is a comprehensive treatment of the laws of theft. It concentrates on the fines of "double," and "four or five" fold found in Exodus 22:3 and 21:37. Virtually each aspect of the theft and subsequent trial of the thief is scrutinized; each term of the pertinent scriptural verses is carefully defined and analyzed. In respect to the fine of "four or five" fold imposed by Scripture for the sale or slaughter of a stolen animal, the Mishnah determines that if the thief sold part of the animal but retained partial ownership, however minute, he is not liable to the fine of "four or five fold," but only to that of "double." Thus "sells it" in the scriptural verse is defined as the sale of the entire animal. Similarly, "if he slaughtered it and it became unfit under his hand [through a ritually improper slaughtering]" (7:5), he is exempt from the fine of "four or five" fold, such an act not being properly deemed "slaughter."

chapter 8

This chapter is a comprehensive unit devoted to the laws of assault and battery.

chapters 9–10

Chapters 9 and 10 deal with laws of robbery. It would appear that a more natural position for these chapters would be after chapter 7, which deals with the related subject of theft. Their position is perhaps determined by their concentration upon the regulations governing transference of ownership of the stolen object through physical alteration or the original owner's despair of recovery, which makes them more closely related to the laws of acquisition and ownership in the succeeding chapters (see *Bava Meẓia) than to the laws of torts in the preceding ones.

It has been suggested that the function of "monetary law" in rabbinic sources is to prevent offenses of law, and to instruct the common man in moral behavior, rather than merely to provide for redress after a wrong has been committed (i.e., that such law is duty-oriented, rather than right-oriented, as explained by Silberg). Along these lines, types of damages are described in Bava Kamma for which one is "not liable according to human law, but guilty according to the laws of heaven" (55b–56a). Since there are acts which, even though not rendering one liable to suit, are morally wrong, it becomes an act of piety to take extreme care in preventing harm to the person or property of others. R. Judah held that the study of the laws of damages in Bava Kamma is a prerequisite for achieving true piety (30a).

Jerusalem Talmud

S. Lieberman has shown that the tractate Nezikin in the Jerusalem Talmud is of a different nature from the rest of that Talmud. The differences are attributed to its having been edited in Caesarea, no later than 350 c.e., while the rest of the Jerusalem Talmud was edited in Tiberias, some 50 years later. Among its distinguishing features are the short, pithy nature of the discussions, indicating a minimum of editing; a more primitive talmudic terminology; archaic Hebrew words; a relatively wider use of Greek and Latin (Caesarea was the seat of the Roman government in Palestine); and a distinctive orthography (e.g., -לָ for לָא). Anonymous statements in Nezikin are quoted elsewhere in the Jerusalem Talmud in the name of "the sages of Caesarea," or in the name of specific amoraim who lived in Caesarea. When points of law relating to Nezikin are discussed elsewhere in the Jerusalem Talmud, the treatment differs from the parallels in Nezikin. Conversely, sections of Nezikin which discuss matters relating to other tractates do not correspond to the material found in the relevant section of those tractates, although it is reasonable to assume that they were present in the corresponding tractates of the Talmud collection used by the editor of Nezikin. All this leads to the conclusion that Nezikin differs from the other tractates of the Jerusalem Talmud and constitutes the only existing remnant of the "Talmud of Caesarea." This issue has recently been reexamined by Y. Sussman, who arrived at different conclusions.

Aside from the regular editions, commentaries and translations, Bava Kamma has received special scholarly attention with the publication of a new critical edition of the Jerusalem Talmud of Massekhet Nezikin, edited by E.S. Rosenthal with commentary by S. Lieberman, and a comparative study of the Mishnah and Tosefta by Abraham Goldberg.

bibliography:

A. Weiss, Diyyunim u-Verurim be-Vava Kamma (1966); S. Lieberman, in: Tarbiz, 2 (1931), Suppl. 4; L. Jacobs, Studies in Talmudic Logic and Methodology (1961), 132–5; M. Silberg, Harvard Law Review, 75 (1961), 307–31; Epstein, Amora'im, 279–87; S. Lieberman, Sifrei Zutta (1968); S. Friedman, (ed.), Jonathan ha-Kohen's Commentary to Bava Kamma (1969). add. bibliography: Y. Sussman, in: Talmudic Studies (1990), 55–133; Yerushalmi Neziqin, ed. E.S. Rosenthal (1983); A. Goldberg, Tosefta Bava Kamma: A Structural and Analytical Commentary (2001); A. Westreich, Sidra, 19 (2004), 77–100.

[Shamma Friedman]