May these Torah thoughts serve as a merit to elevate the Neshamah of Menachem Mendel Ben Harav Yoel David Balk a”h.

This week we learned Bava Kamma 3-9. Here are some highlights.

Bava Kamma 3

Prayer and Damage

Our Mishnah described one of the primary forms of damage as maveh. Rav explained the term to mean a man who damages. He proved it from a verse. The prophet described man as a praying being and used a word formed from the root בעה to characterize man as a supplicant.

The Rishonim ask a basic question. If the intent was to teach that a man is responsible for the damage that he performs, why did the Mishnah not simply use the term Adam instead of the more obscure Maveh? Nimukei Yosef explains that the term אדם might have referred to one’s slave and maidservant, thus suggesting that the master would be responsible for any damage his servants cause. To avoid this misunderstanding, the Mishnah uses the expression מבעה. In the verse it referred to a Yisroel, a free man. By describing a man who damages as Maveh, the Mishnah was teaching that only the damage caused by a free man must be paid for and not damage caused by a servant.

Shita Mikubetzes explains that the Mishnah did not use the term אדם because the first description in the Torah of man causing damage to his neighbor is in reference to a thief. The damage caused by a home intruder is done by his searching. מבעה is thus warranted. This term means man as one who seeks out. Using Maveh reminded the reader that the original source of a man who damages is the burglar seeking property in the home of his victim.

The Netziv explained that the Mishnah was not discussing man as a source of damage when he acted intentionally. Proof to this is the discussion of the Mishnah about an ox and Maveh. The Mishnah stated that had Hashem only explicitly obligated payment when an ox created damage we would not have known that Maveh would be liable. If Maveh is a man who deliberately damages there would be no reason to say that a person must pay for his ox’s damage, but that he would be exempt for his own deliberate damage.

Netziv taught that the Mishnah speaks of a man who causes damage unintentionally, and it is teaching that even though the damage was caused by a mistake, the damager must pay. It is difficult for a person to guard against accidents. In order to avoid even unintentional harm, man must daven constantly to Hashem for help. In this regard, man is referred to as a מבעה—one who must ask and seek assistance from Hashem regarding his daily interactions.

Rav Shlomo Zalman Auerbach added that the Halacha states that a man who damages must pay even if the damage occurred through an event that was not his fault, onnes. Why would man need to pay for that which was out of his control? The Mishnah answers this question by describing man as a Maveh. Maveh means the one who prays. A man who prays that Hashem should save him from causing damage will merit that no damage will occur through him. Even onnes will not happen to him as a result of his prayers. Since he must pray to avoid causing damage, if a damage occurred by his actions, even if the actions were unintentional or forced upon him, his prayers were insufficient. As a result, he deserves to have to pay for the damage. The real root of his liability is his insufficient prayer. That is why he is defined as Maveh and not Adam.

The masters of homiletics. such as Rav Eliyahu Feinstein of Pruzhan, added another answer. To damage someone else is subhuman. A human being who is a descendant of the first man and who deserves the appellation Adam would treat the property of others with respect and avoid causing damage. Only one who cannot be called Adam would damage property of others; that is why he is called Maveh. (Daf Digest, Chashukei Chemed)

If the Damage Added Value, Must the Damager Still Pay?

Mishpatei HaTorah records a classic question: Reuven owned two rare paintings from a deceased artist. Each painting was worth 100,000 shekel. There were very few works from this master, no further pieces would ever be produced, and as a result, each work was highly desirable. Shimon was also an art collector and he was jealous of Reuven. One day, when Shimon was in the home of Reuven, he tore up one of the paintings. As a result, there were now even fewer works of the master extant. Reuven’s surviving painting increased in value. It was now worth 250,000 shekel. Reuven wanted Shimon to pay him 100,000 shekel for having destroyed a painting worth 100,000 shekel. Shimon claimed that he did not owe Reuven any money since he had ultimately added to Reuven’s bottom line by increasing the value of his assets. Did Shimon have to pay?

Bava Kamma 3 teaches that based on the verses in Parshat Mishpatim we derive that an owner of an ox must pay for the damage his ox caused through eating, both in the case of michlaya karna, where the principal was destroyed, and in the case of lo michlaya karna, where the principal was not destroyed. Commentators struggle to try and define the two scenarios; michlaya karna and lo michlaya karna. Tosafot explains that the case of the principal being destroyed is when an animal enters the field of another and eats vegetation. The vegetation was lost, and as a result, the scenario should be described as the principal was destroyed. The case of when the principal was not destroyed was when the animal entered the field of another person and released excrement on the plants. The plants stayed extant. As a result, it could be said, that the principal was not destroyed. However, because they were soiled they were of less value.

By Rabbi Zev Reichman