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Prohibition Regarding Property Damage

Bava Kama (1:1) | Yisrael Bankier | 5 days ago

Masechet Bava Kama opens with listing the different categories of damage. The Bartenura explains inline with the opinion of Shmuel that the Mishnah is focused on the categories of damage cause by one's property. As we continue the masechet, we learn about where and when one is obligated to pay for damage caused by one's property, when they are exempt. The boundaries differ between the categories of damage. Aside from the monetary obligations, one must address the prohibition that is violated when if one's property causes damage and whether the boundaries of the prohibition are shared with the monetary obligation.

The Birkat Shmuel (Bava Kama 2:1) cites R' Chaim that when the Torah states "and he did not guard it" it is not simply teaching us about the monetary obligation that one has when their property causes damage. It also teaches that a prohibition has been violated and the Torah considers that individual a mazik (a damager) and a rasha (evil). For example, we find that if one's ox kills a person, the payment is considered a kapara (an atonement). It acts as an atonement for the punishment due to him from shamayim, since his ox killed someone.

The Birkat Shmuel uses this explanation to answer another question. The Gemara (55b) lists four cases where one is exempt in this world, but it is held against him in the next. One case listed is where one conceals his friend's property in the path of a spreading fire. The one who lit the fire is liable to pay compensation for the damage caused, but is exempt from paying for those items that were concealed. The person who concealed his friend's property, has caused him a loss since he will not be compensated by the one that lit the fire. One question asked is that Rashi could have explained that the case is where the person who concealed the items was the one that lit the fire; the ruling in that case would have been the same. The Birkat Shmuel answers, that Rashi did not explain the Gemara in that way since the Gemara would not have needed to teach that case. Even though one is exempt from paying for the damage caused to concealed items by his fire, it is clear has still violated the prohibition of "and he did not guard it". Even if the items were concealed from the outset, the one that lit the fire would be obligated min shamayim.

Consequently, we find that according to the Birkat Shmuel, the scope of the prohibition can be broader than the obligation for compensation. How broad then is the prohibition? Does it apply whenever one's property causes any damage?

The Birkat Shmuel addresses the case of Shen and Regel in the public domain. Recall, that in such cases the owner is also exempt from compensation. The Birkat Shmuel cites the Tosfot (20b) as proof that in those cases even a prohibition is not violated.1

The Birkat Shmuel therefore differentiates between the different exemptions for compensation. In the case of something hidden in the path of fire, or utensils that broke as a result of a pit2, in those cases the obligation of shmira (guarding) still rested on the owner, despite the exemption for payment. In the case of shen and regel in the public domain however, the exemption afforded by the Torah is that there is no obligation of shemira. Consequently, if one's animal damaged another's proper as it walked in the public domain, not only is he exempt from payment, but he free from an culpability even in the heavenly court.3


1 See the Birkat Shmuel inside for the full proof. Unfortunately, the space afforded by these articles does not allow for a fuller explanation.

2 The Birkat Shmuel learns this from the fact the Beit Din can force one to remove the stones from his collapsed wall that are lying in his friends field, ע"ש.

3 The Birkat Shmuel uses this distinction to explain why the Gemara treats the different sfeikot sometimes stringently and other times leniently. (This is the main subject of the above cite commentary.) He explains that if there is a question whether it qualifies as "lo yishmerno" – whether there is an issur – then we rule stringently like all issurim. If however, the doubt is regarding a petur, e.g in esh or bor, then it is a monetary question alone and we rule leniently. ע"ש.

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