Bava Kamma בבא קמא

Tractate Bava Kamma was originally the first section of a large tractate named Tractate Nezikin, which comprised what are now the first three tractates in the Order of Nezikin. From this placement it derived its name, Bava Kamma, the first gate. The remaining part of this super-tractate was divided into Bava Metzia, the middle gate, and Bava Batra, the last gate.

These three tractates generally address monetary cases and incorporate within their chapters almost the entire range of Jewish civil law, while punishments for criminal offenses and religious transgressions are addressed only tangentially.

Tractate Bava Kamma treats one specific area of law, the law of torts, in the narrowest meaning of the term. This means that it deals with the range of responsibility and compensation for which one is liable after causing damage to another's body or property, both when the damage was caused by an individual and when it was caused by his possessions, in a direct or indirect fashion.

The principles of these halakhot are founded on the passages of the Torah appearing in the portion of Mishpatim (Exodus 21:18–37, 22:1–14). The Torah does not present these halakhot in a dry exposition of abstract legal principles but in the form of lively examples drawn from everyday life. In order to be able to apply these examples to other cases, it is necessary to first determine which facets of the cases provided by the Torah are essential elements that define the halakha and which facets are just incidental details of the provided example. This is done with the help of the authoritative traditions of the Oral Law and with the tools of legal exegesis.

Tractate Bava Kamma is subdivided into two sections. The first section (chapters 1–6) covers the topic of damage caused by one's property or by actions that he initiated. The second section (chapters 7–10) concerns damage caused by a person with his own body.

The laws of torts also include a religious aspect. Many cases involve the transgression of the halakhic prohibitions against robbery, theft, and injury. Nevertheless, one's liability to pay damages is not limited to cases where there was a willful transgression of a prohibition. Rather, even when the damage was caused with no purposeful intent to harm or through neglect, one is liable to pay restitution to the injured party.

In the first section of Bava Kamma, which concerns damage caused by one's property, the key issue is that of the owner's responsibility. It is clear that an owner is responsible for the damage caused by his possessions; what requires clarification are the exact limitations of his responsibility. Does this responsibility extend to include any damage that results from his property or does it include only certain kinds of damage? Does taking the proper precautionary measures exempt one from liability for the damage that occurs despite one's efforts? Is there any difference between compensation payments made for actions performed with premeditation and purposeful intent and actions that were performed unintentionally, through neglect, or as a result of insufficient precautionary measures?

One's liability for damage depends on the nature and the form of the damage. For this reason, acts that cause damage are classified as being subcategories of various primary categories of damage.

From the verses in the Torah it is readily apparent that a distinction exists between damage to property caused by one's animals, since, in the words of the opening mishna, they have a living spirit, and damage caused by one's inanimate possessions. With regard to damage caused by one's animals, a difference exists between cases where the animal's objective was to cause damage and cases where the damage was a consequence of the animal's typical behavior. Damage of the former type is classified as being of the category of Goring. This includes damage caused by goring, kicking, or biting done for the purpose of damaging. Cases of such damage can be further subdivided into instances in which the belligerent animal was innocuous and cases where the animal had already repeatedly caused that form of damage, and the owner had been warned about it, in which case the animal is considered forewarned. Once an animal is forewarned, the level of the owner's responsibility for any damage caused by it is intensified in terms of the extent to which he is required to safeguard his animal to prevent it from causing damage, the amount of restitution he is liable to pay, and the form of payment. Furthermore, the owner incurs liability for such damage in almost every place, whether on private property or in the public domain.

By contrast, in cases where the damage was a consequence of the animal's typical behavior, the animal's owner is liable only if the damage took place on the property of the injured party and only if such behavior is considered typical for that animal. One category of damage of this type is Eating, in which an animal's actions are motivated by the pleasure it receives in the course of the damage that is causes. Another category is Trampling, where the damage is caused by the animal's typical movements, such as by trampling on items while walking. As liability is incurred only when such behavior is considered typical for that animal, if an animal eats something it does not normally eat, or moves in an atypical manner, the owner is not liable to pay for the damage. Furthermore, in these cases, if the owner took the standard precautionary measures to prevent damage from occurring, he is also exempt from liability.

In cases of damage caused by one's movable property, a distinction exists between damage caused by one's property when it remains stationary, classified as damage in the category of Pit, and damage caused when a person initiates a hazardous situation that then moves to a different location by itself or due to an additional force such as the wind, classified as damage in the category of Fire. In cases classified as Pit, liability is incurred only where one placed his property in a domain not his own, whether in the public domain or someone else's private property. Furthermore, liability is limited to damage caused to animals and people but does not extend to damage caused to vessels. In cases classified as Fire, one is liable wherever damage is caused, although in some cases one is not liable for the full extent of the damage. Also, with regard to these primary categories, one who took standard precautionary measures to prevent damage from occurring is exempt from liability.

An additional primary category of damage, Man, includes damage caused directly by a person. One is liable for any damage that is a direct result of his actions or his force. One bears an extensive level of responsibility for his actions and therefore is liable for the full cost of the damage even if it was caused unwittingly and without awareness. The only exceptions to this are damage caused by those of limited intellectual capacity, who in general are not responsible for their actions, and damage caused by one's Canaanite slaves. In the latter case, the exemption applies to the master and is the result of an enactment for the betterment of the world, as it prevents a slave from maliciously causing damage in order to cause his owner great loss. The slave himself, if he is emancipated, will then be liable to pay for the damage he caused.

The second section of Bava Kamma deals with damage caused by one person to another and by one person to the property of another. This topic is generally subdivided into the laws of bodily injury and the laws of robbery and theft.

As the Gemara derives from verses in the Torah, one that injures another is liable for one or more of five types of indemnity payments. These are the payments:

Cost of the damage: For all types of irreversible harm, such as severing an arm or a leg, which reduces the injured party's market value.

Pain: For pain inflicted.

Humiliation: For embarrassment caused by the injury that was inflicted, such as in the rape of a woman or by causing a blemish that humiliates the person.

Medical expenses: For all medical expenses incurred as a consequence of the injury.

Loss of livelihood: For missed work and loss of income due to the injury.

These indemnities are not automatically paid for every injury caused; rather, each case is judged individually. At times one may have to pay all five types of indemnity payments, and at other times one may have to pay only some of them. Here too, there is a distinction between one who injured another willfully and purposefully, who is liable to pay all five indemnity payments when they apply, and one who injured another unintentionally or because of neglect, who is liable to pay only for the cost of the damage but not the other four types.

Injuring another person is a violation of a Torah prohibition although one is rarely punished with lashes for doing so. Accordingly, one who injures another is required not only to compensate the injured party, but he must make amends by placating him as well.

Robbery and theft differ from cases of damage in that not only does the victim suffer a loss, but the perpetrator benefits from the property he took. The talmudic discussion about this concerns two central issues.

First, the fines imposed by the Torah on the thief, and to a lesser degree, on the robber, obligate him to make a double payment to the victim of his crime, and in cases where the crime of theft is followed by the slaughtering or sale of the stolen ox or sheep, he is required to pay four or five times the value of the stolen animal. Because these payments are fines leveled by the Torah, only a court of ordained judges, an institution that lapsed over the course of time, is authorized to collect them. Even then, the fine is imposed only in limited circumstances. For example, guilt must be confirmed on the basis of testimony from two witnesses and not based on a confession of the guilty party, and in some cases a fine is imposed only after the guilty party has taken a false oath that he is not guilty.

The second issue involves the requirement for the thief and the robber to return the item that they stole or to pay restitution for its value. Should they not do so willingly, the court is authorized to coerce them. The Gemara enters into a detailed discussion as it attempts to define this obligation. When are a robber and a thief obligated to return the very item they stole and when are they required only to pay restitution? How is the amount one has to pay determined in cases where the value of the item changed over time? Is there a difference in this regard if the change was due to fluctuations in the item's market value or due to a physical change in the item itself?

How the stolen item should be returned is also the subject of much discussion. Can he just return the item to its owner or must he inform him that he has done so? To what lengths does he need to go to find the owner? The Sages enacted that in order to facilitate a thief's full repentance he does not always need to return the item itself. It needs to be clarified when that enactment applies and when it does not apply. Furthermore, is the requirement to return the item an obligation on the thief alone, or does the victim retain rights of ownership to the item so that even if the thief dies he may continue to claim it back from the thief's heirs?

These are the principal discussions contained in this tractate, although Bava Kamma also includes discussions about other types of payments and fines as well as false claims made with regard to instances of theft and robbery. Very little aggadic material appears in this tractate, and what does appear is mainly related to the tractate's primary subject, the responsibility one bears for the damage he caused.

Tractate Bava Kamma contains ten chapters. Some chapters deal with a single subject, while others address several.

Chapter One focuses on defining the essential characteristics of each of the four primary categories of damage and the liability incurred for damage caused.

Chapter Two deals principally with details of the primary categories of damage caused by animals, namely Trampling, Eating, and Goring.

Chapter Three expands on damage in the category of Pit. It also addresses cases in which two people caused damage to each other, as well as cases where one cannot determine with certainty who is the one that caused the damage and who is the one that was damaged.

Chapter Four covers the subject of an ox that gored, including what defines whether an animal is considered to be innocuous or forewarned. It also contains a discussion of the forms of restitution payments and a case in which an ox kills a person.

Chapter Five concludes the discussion of a goring ox and in its latter half returns to a discussion of damage classified as Pit.

Chapter Six returns to a discussion of the categories of Trampling and Eating and presents a wide-ranging discussion of damage classified as Fire.

Chapter Seven begins the tractate's discussion of the laws of theft. It focuses primarily on the liability incurred by a thief, both with regard to the double payment and with regard to the fourfold and fivefold payments. At its conclusion, the chapter lists the enactments that were promulgated concerning Eretz Yisrael and Jerusalem.

Chapter Eight addresses cases of bodily injury and the methods of payment for the five types of indemnity.

Chapter Nine delineates when a stolen item must be returned and when the thief or robber pays restitution only. It also explores the methods of achieving atonement for the sin of robbery as it examines the case of one who steals from a convert.

Chapter Ten discusses the details of the laws of robbery, defining when an action is deemed to be a robbery as opposed to theft, and examining the methods of returning the stolen item.