JUDAICA - Wisdom In Torah

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 potvendors
[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.”
bava kamma
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 ed-
ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 3 225