Bava Kamma Daf 2-3
Nov. 5th, 2023 02:04 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
seekingferretI make no promises about consistency but with the start of Seder Nezikin I'm going to try to blog Daf Yomi again.
For the next year or so the Talmud will be largely covering Jewish civil law of torts and contracts and disputes between two legal parties, with of course the exception of almost incessant tangents on unrelated subjects.lannamichaels has been eagerly counting down the days to "The Bavas"- the books of Bava Kama, Bava Metzia, and Bava Basra that contain these laws. They are called "The First Gate", "The Second Gate", and "The Third Gate" for reasons that have been explained to me before multiple times, but which I never remember. Looking it up, it looks like it's basically a cutesey way of saying Part 1, Part 2, and Part 3, of a text that originally was considered a single text on a single topic.
These masechtas are kind of the paradigmatic Talmud, c.f. the amazing takedown of Alice Walker by Michael Pershan...
So let's get it on with, let's talk about balconies. (balconies won't actually come up for a while, sorry)
Why are balconies important to the Talmud? My sense has always been that it's for two reasons, and I think it's useful to keep both in mind. First, because the civil law is about living in a just society and that is the foundational basis of the idea of Torah law, that God is Just and to live in God's image means to live in a just society. So these texts we are about to encounter are, at a deep level, about the question of what it means to live in a society that is just in all aspects, that protects its citizens from harm and makes them whole when they have been wronged without wronging anyone else in the process. These texts are the Rabbis' response to Plato's Republic and all of the basic texts of Western civics.
But second, because just as Plato's Republic is a socratic dialogue that often gets tangled up in the snarls of its own intricate logical questions, sometimes the Talmud gets tangled up in its own logical games and gets invested in balconies as logical tokens to be manipulated. This is not a criticism of Gemara reasoning, though. This is a major point. As much as these texts of Nezikin are about teaching specific just laws, they are about developing a reasoning framework for thinking about applying just laws. The logic games are a training tool that can apply to things that are not balconies. That;'s why balconies are important, because we can use them to think in a very detailed and complicated way about how laws can be applied, and we can learn from that how to think about justice in any specific case, rather than trying to apply justice in a haphazard way by our intuitions about what is or isn't fair. Because very often those intuitions are biased.
A last thing I want to be thinking about throughout these masechtas is something from later on in Seder Nezikin, in Masechet Makkos.
Being too harsh in one's judgments is unjust; this may be self-evident. But Rabban Shimon ben Gamliel wants us to remember that being too lenient can also be unjust. This is especially true in the civil law, where there are two parties in opposition to each other and both of them are citizens with obligations as well as rights. If you injure a person, we could just seize all of a person's property and give it over as restitution, but that would not be any more fair than not offering any restitution at all. Proportionality and consistency are as important to justice as kindness is.
Anyway, on to the dafs.
Daf 2
I've mentioned many times that the Talmud, and particularly, the Mishna, is both a transcription of an oral tradition and an effort to make transmitting the oral tradition easier. Many mishnayos are structured in a way to make things easier to remember, and this is perhaps one of the best examples. There are four main categories of Nezikin, says the Mishna: Shor and Bor, and HaMaveh and HaHever. Rhymes and near anagrams designed to make the sounds of the categories trip off the tongue, even if they don't necessarily make the clearest category headers. Shor means Ox, but does that refer to damage To an ox, or damage Caused by an ox? Based on the other categories, probably the latter, but it's not clear, right? And there is huge disagreement about what the word Maveh even means.
It's not supposed to be clear. The intention of the Mishna is to be brief and contain multitudes, which are designed to be explicated by the teacher. The teacher recites this almost nursery rhyme for their students to memorize, and then students ask questions and the teacher clarifies. So that when the student then needs to remember, they can start with the nursery rhyme as a tool to kick off their memory of what the teacher taught them.
But anyway, to the content. The Mishnah tells us that each of these categories has different fundamental features, which mean that we will learn that laws of them differently and we cannot simply go by analogy from one to another. We are told by the Mishnah that Shor and Maveh involve living things as cause, and Hever doesn't. In addition to helping us narrow down in a 20 Questions sense what Maveh might mean, this also suggests some of the parameters by which analogical reasoning/ kal vachomers and other midrashic principles will fail. If we know that some rule applies in assessing the damages from a fire, a limitation on applying that rule to damages from other causes will be that when it no longer makes sense when it involves a living cause. Then it tells us that in contrast to Shor, Maveh, and Hever, which are mobile sources of damage, Bor involves a stationary hazard.
Then the Mishnah says what you might have expected first, if not for the ideas of mnemonics: A definition of Nezikin. What unifies all of these categories is that they involve things that can cause damage, and things where some person has a duty of care to protect others from that damage, and therefore if damage happens, they may be obligated to make restitution. As opposed to damage caused by what insurers, but not the Talmud, would call an act of God.
The Gemara starts off by being interested in the Mishna's identification of these four categories, which I called 'main categories', as 'Avot', which literally means Parent categories. It asks if that means there are Child categories, and demonstrates by comparison to Hilchot Shabbat and Hilchot Tumah that any time the Mishna mentions Avot it implies that there are Toldot.
Sefaria translates Avot as primary categories and Toldot as subcategories, but that doesn't seem to be quite right. You might think that that implied a taxonomic system like animal taxa, where a Cow and a Horse are both in the Parent category Class mammal but they are in different Child subcategories Family Bos and Family Equus. That's not clearly what's going on here. An alternative concept might be that the Av is the primary because it's what's mentioned in Torah explicitly, and the Toldot are cases that sufficiently resemble the main case that we are lumping them together, but we want to maintain an awareness that they are not explicitly d'oraysa, maybe because they can lead to useful kulos.
Under Shor, the Gemara teaches us there are three primary Av subcategories of damage an Ox can cause, each based on different Torah verses where the Torah contemplates an ox owner making good for the damage their ox causes. The ox can cause damage by Goring, by Eating, and by Trampling. All of these work in the same way as Family falls under Class, but then the Gemara brings a baraisa discussing Toldot subcategories of goring such as biting, kicking, and ramming which work under the other paradigm. They fall under Goring in the sense that Goring is the paradigmatic animal attacks a person case, but they are not mentioned explicitly in the Torah and one might think that the damage from one of them is not likely to be as severe as an actual goring with a horn, and the Gemara is reserving the possibility that they may be treated differently as a matter of law. So we're considering the possibility in general that Toldot may mean a case that is related to the primary category and has some overlap in legal treatment, but has its own specific different contours to consider separately.
The Gemara concludes that in the case of Goring, though, all of the subcategories still operate as basic nezikin so it moves on to Eating and Trampling.
Daf 3
The analysis of the Torah sources of Eating and Trampling, and their various toldot, is a little involved, but it works out to the same thing: Eating and Trampling have subcategories, but they operate under the same paradigm as their Avot. The subcategories of Eating reveal that Eating seems to involve anything that an animal does for its own pleasure that results in damage, and the subcategories of Trampling seem to involve anything an animal does just in the course of ordinary moving around that results in damage.
Rabbi Linzer offers some conceptual questions to structure these topics around. One major one is whether the Rabbis are conceptualizing Nezikin around fault or responsibility. Fault meaning that you were in some way negligent and this resulted in something you own or caused into being to cause direct damage, and therefore you are required to make up for the damage caused by your negligence, or responsibility meaning that whether or not you were egregiously negligent, your property caused damage and therefore it's part of your responsibility of ownership to make up for the damage. Different types of damage seem to work better under one or the other theory of nezikin. For example, he said, a pit in the road is something where as soon as you dig it, a reasonable person would say this is dangerous, you should make sure nobody can fall in, so a theory of negligence and fault makes sense, whereas with an ox nobody is going to say at birth that this ox is a risk to gore people, it's a danger that it may or may not develop over time as it grows, but nevertheless at some point it may hurt someone and that person is owed restitution, so a theory of general ownership responsibility makes more sense.
Overall, R' Linzer says that these first dapim are doing what the Gemara often does at the beginning of masechtot, using a pretextual question (in this case, the question of which way the Avot and Toldot category system operates with respect to Nezikin) in order to survey major concepts of different kinds of nezikin and prepare the student for more in depth analysis in later perakim.
We then start discussing Maveh, about which there is a machloket Rav v'Shmuel on its meaning. Shmuel says it means Shen, Eating, the category that the Gemara otherwise has been categorizing as subcategory of Shor, but apparently Shmuel thinks it's a separate main Av. Rav says it means Adam Miv'eh, damage caused by a person.
Both of these are not entirely satisfying. It's not clear why one would separate Shen from Shor, the conceptual category of damage caused by an animal is neat and tidy. On the other hand, a nice thing about Shen is that we know that Shen has subcategories of its own, but it's not clear that Adam Miv'eh has subcategories- all damage done by a person is considered the same, legally. And the (pretextual) question we are working from is that all of the Avot of the original Mishna must have Toldot. The Gemara decides that the toldot according to Rav are cases where a man spits or otherwise emits a fluid that then causes damages- maybe they spit in someone's eye while they were driving and this led to them driving off the road. In that case, it's not a direct act of a man's body that caused the damage, so it's not the Av, but it's still sufficiently direct to incur damages.
Edit Oh, one more thing. Anyone know how to that nifty thing with nested tags so all my different daf yomi posts can be sorted by masechet?
For the next year or so the Talmud will be largely covering Jewish civil law of torts and contracts and disputes between two legal parties, with of course the exception of almost incessant tangents on unrelated subjects.
lannamichaels has been eagerly counting down the days to "The Bavas"- the books of Bava Kama, Bava Metzia, and Bava Basra that contain these laws. They are called "The First Gate", "The Second Gate", and "The Third Gate" for reasons that have been explained to me before multiple times, but which I never remember. Looking it up, it looks like it's basically a cutesey way of saying Part 1, Part 2, and Part 3, of a text that originally was considered a single text on a single topic.These masechtas are kind of the paradigmatic Talmud, c.f. the amazing takedown of Alice Walker by Michael Pershan...
I HAVE BEEN VERY PATIENT BUT YOU KNOW WHAT I AM MOST PERPLEXED BY? BALCONIES. WE ABSOLUTELY NEED TO GET BACK TO TALKING ABOUT BALCONIES OR I AM JUST WARNING EVERYBODY I AM GOING TO SERIOUSLY LOSE MY COOL.
So let's get it on with, let's talk about balconies. (balconies won't actually come up for a while, sorry)
Why are balconies important to the Talmud? My sense has always been that it's for two reasons, and I think it's useful to keep both in mind. First, because the civil law is about living in a just society and that is the foundational basis of the idea of Torah law, that God is Just and to live in God's image means to live in a just society. So these texts we are about to encounter are, at a deep level, about the question of what it means to live in a society that is just in all aspects, that protects its citizens from harm and makes them whole when they have been wronged without wronging anyone else in the process. These texts are the Rabbis' response to Plato's Republic and all of the basic texts of Western civics.
But second, because just as Plato's Republic is a socratic dialogue that often gets tangled up in the snarls of its own intricate logical questions, sometimes the Talmud gets tangled up in its own logical games and gets invested in balconies as logical tokens to be manipulated. This is not a criticism of Gemara reasoning, though. This is a major point. As much as these texts of Nezikin are about teaching specific just laws, they are about developing a reasoning framework for thinking about applying just laws. The logic games are a training tool that can apply to things that are not balconies. That;'s why balconies are important, because we can use them to think in a very detailed and complicated way about how laws can be applied, and we can learn from that how to think about justice in any specific case, rather than trying to apply justice in a haphazard way by our intuitions about what is or isn't fair. Because very often those intuitions are biased.
A last thing I want to be thinking about throughout these masechtas is something from later on in Seder Nezikin, in Masechet Makkos.
A Sanhedrin that would execute somebody once in seven years would be considered destructive. Rabbi Elazar Ben Azariah says: "Once in seventy years." Rabbi Tarfon and Rabbi Akiva said: "If we were on the Sanhedrin, nobody would have ever been executed." Rabban Shimon Ben Gamliel said: "They too would have increased violence in Israel."
Being too harsh in one's judgments is unjust; this may be self-evident. But Rabban Shimon ben Gamliel wants us to remember that being too lenient can also be unjust. This is especially true in the civil law, where there are two parties in opposition to each other and both of them are citizens with obligations as well as rights. If you injure a person, we could just seize all of a person's property and give it over as restitution, but that would not be any more fair than not offering any restitution at all. Proportionality and consistency are as important to justice as kindness is.
Anyway, on to the dafs.
Daf 2
I've mentioned many times that the Talmud, and particularly, the Mishna, is both a transcription of an oral tradition and an effort to make transmitting the oral tradition easier. Many mishnayos are structured in a way to make things easier to remember, and this is perhaps one of the best examples. There are four main categories of Nezikin, says the Mishna: Shor and Bor, and HaMaveh and HaHever. Rhymes and near anagrams designed to make the sounds of the categories trip off the tongue, even if they don't necessarily make the clearest category headers. Shor means Ox, but does that refer to damage To an ox, or damage Caused by an ox? Based on the other categories, probably the latter, but it's not clear, right? And there is huge disagreement about what the word Maveh even means.
It's not supposed to be clear. The intention of the Mishna is to be brief and contain multitudes, which are designed to be explicated by the teacher. The teacher recites this almost nursery rhyme for their students to memorize, and then students ask questions and the teacher clarifies. So that when the student then needs to remember, they can start with the nursery rhyme as a tool to kick off their memory of what the teacher taught them.
But anyway, to the content. The Mishnah tells us that each of these categories has different fundamental features, which mean that we will learn that laws of them differently and we cannot simply go by analogy from one to another. We are told by the Mishnah that Shor and Maveh involve living things as cause, and Hever doesn't. In addition to helping us narrow down in a 20 Questions sense what Maveh might mean, this also suggests some of the parameters by which analogical reasoning/ kal vachomers and other midrashic principles will fail. If we know that some rule applies in assessing the damages from a fire, a limitation on applying that rule to damages from other causes will be that when it no longer makes sense when it involves a living cause. Then it tells us that in contrast to Shor, Maveh, and Hever, which are mobile sources of damage, Bor involves a stationary hazard.
Then the Mishnah says what you might have expected first, if not for the ideas of mnemonics: A definition of Nezikin. What unifies all of these categories is that they involve things that can cause damage, and things where some person has a duty of care to protect others from that damage, and therefore if damage happens, they may be obligated to make restitution. As opposed to damage caused by what insurers, but not the Talmud, would call an act of God.
The Gemara starts off by being interested in the Mishna's identification of these four categories, which I called 'main categories', as 'Avot', which literally means Parent categories. It asks if that means there are Child categories, and demonstrates by comparison to Hilchot Shabbat and Hilchot Tumah that any time the Mishna mentions Avot it implies that there are Toldot.
Sefaria translates Avot as primary categories and Toldot as subcategories, but that doesn't seem to be quite right. You might think that that implied a taxonomic system like animal taxa, where a Cow and a Horse are both in the Parent category Class mammal but they are in different Child subcategories Family Bos and Family Equus. That's not clearly what's going on here. An alternative concept might be that the Av is the primary because it's what's mentioned in Torah explicitly, and the Toldot are cases that sufficiently resemble the main case that we are lumping them together, but we want to maintain an awareness that they are not explicitly d'oraysa, maybe because they can lead to useful kulos.
Under Shor, the Gemara teaches us there are three primary Av subcategories of damage an Ox can cause, each based on different Torah verses where the Torah contemplates an ox owner making good for the damage their ox causes. The ox can cause damage by Goring, by Eating, and by Trampling. All of these work in the same way as Family falls under Class, but then the Gemara brings a baraisa discussing Toldot subcategories of goring such as biting, kicking, and ramming which work under the other paradigm. They fall under Goring in the sense that Goring is the paradigmatic animal attacks a person case, but they are not mentioned explicitly in the Torah and one might think that the damage from one of them is not likely to be as severe as an actual goring with a horn, and the Gemara is reserving the possibility that they may be treated differently as a matter of law. So we're considering the possibility in general that Toldot may mean a case that is related to the primary category and has some overlap in legal treatment, but has its own specific different contours to consider separately.
The Gemara concludes that in the case of Goring, though, all of the subcategories still operate as basic nezikin so it moves on to Eating and Trampling.
Daf 3
The analysis of the Torah sources of Eating and Trampling, and their various toldot, is a little involved, but it works out to the same thing: Eating and Trampling have subcategories, but they operate under the same paradigm as their Avot. The subcategories of Eating reveal that Eating seems to involve anything that an animal does for its own pleasure that results in damage, and the subcategories of Trampling seem to involve anything an animal does just in the course of ordinary moving around that results in damage.
Rabbi Linzer offers some conceptual questions to structure these topics around. One major one is whether the Rabbis are conceptualizing Nezikin around fault or responsibility. Fault meaning that you were in some way negligent and this resulted in something you own or caused into being to cause direct damage, and therefore you are required to make up for the damage caused by your negligence, or responsibility meaning that whether or not you were egregiously negligent, your property caused damage and therefore it's part of your responsibility of ownership to make up for the damage. Different types of damage seem to work better under one or the other theory of nezikin. For example, he said, a pit in the road is something where as soon as you dig it, a reasonable person would say this is dangerous, you should make sure nobody can fall in, so a theory of negligence and fault makes sense, whereas with an ox nobody is going to say at birth that this ox is a risk to gore people, it's a danger that it may or may not develop over time as it grows, but nevertheless at some point it may hurt someone and that person is owed restitution, so a theory of general ownership responsibility makes more sense.
Overall, R' Linzer says that these first dapim are doing what the Gemara often does at the beginning of masechtot, using a pretextual question (in this case, the question of which way the Avot and Toldot category system operates with respect to Nezikin) in order to survey major concepts of different kinds of nezikin and prepare the student for more in depth analysis in later perakim.
We then start discussing Maveh, about which there is a machloket Rav v'Shmuel on its meaning. Shmuel says it means Shen, Eating, the category that the Gemara otherwise has been categorizing as subcategory of Shor, but apparently Shmuel thinks it's a separate main Av. Rav says it means Adam Miv'eh, damage caused by a person.
Both of these are not entirely satisfying. It's not clear why one would separate Shen from Shor, the conceptual category of damage caused by an animal is neat and tidy. On the other hand, a nice thing about Shen is that we know that Shen has subcategories of its own, but it's not clear that Adam Miv'eh has subcategories- all damage done by a person is considered the same, legally. And the (pretextual) question we are working from is that all of the Avot of the original Mishna must have Toldot. The Gemara decides that the toldot according to Rav are cases where a man spits or otherwise emits a fluid that then causes damages- maybe they spit in someone's eye while they were driving and this led to them driving off the road. In that case, it's not a direct act of a man's body that caused the damage, so it's not the Av, but it's still sufficiently direct to incur damages.
Edit Oh, one more thing. Anyone know how to that nifty thing with nested tags so all my different daf yomi posts can be sorted by masechet?