Intro to Bava Kama
This choref zman (winter semester) we are learning masechet Bava Kama ( literally first gate),o ne of three tractates in the Talmud that deal with nezikin, damages. The tractate begins with an opening line describing 4 main categories of damage: Shor (ox goring), Bor (pit), Haver (fire) and Maveh (ox eating and stomping). Each category is a different type of damage. For example, Bor is a motionless entity that requires guarding. From each main category (av) there are toladot, or derivatives. For example, for Bor, the Talmud cites a derivative of “a knife or rocks placed in public.” Just like someone could fall into an unguarded pit, so too a knife left in public could cause harm to someone who steps on it.
We don’t follow the majority in monetary cases
The structure of tractate Bava Kama is divided into chapters that deal with each of the avot.
The third chapter of Bava Kama (המניח) deals with damages ofof bor (pit).
The first Mishna of chapter 3- on daf (page) 27a- goes as follows :
המניח את הכד ברה"ר ובא אחר ונתקל בה ושברה פטור ואם הוזק בה בעל החבית חייב בנזקו:
“In the case of one who places a kad, (jug), in the public domain and another person comes and stumbles on it and breaks it, the other person is exempt from paying for what he broke. And if the one who stumbled incurred damage by it, the owner of the ḥavit (a barrel), is liable to pay restitution for his damage.” (sefaria translation)
Notice anything off with this Mishna?....
In the first reading, the most glaring kashya (question) is that it switches terms in the middle of the case. It starts off with placing a kad, and then if someone is injured by a chavit. It’s as if the Mishna said “If you let out a cat, and the dog bites someone…” Why the mix up?
In our lesson, taught by Rabbi Dr. Rabin Shushtri, we first looked at modern Talmud researchers, Prof. Epstein and Prof. David Weiss Halivni). Rav Rabin and Yeshivat Maale Gilboa in general integrate both the method of study in the yeshiva world (lamdanut ) and the academic world (mechkar), known as shitat revadim- the layers method. The main point of shitat revadim is to show there are different layers to the Talmud and it is not one unified text. It is a text that developed over centuries. The the method shows how more ancient attitudes during the Tannaitic period were sometimes overturned during the Amoraic period, how Greco-Roman principles influenced the text, differences between the Babylonian and Jerusalem Talmud, and more. It looks to show the different thought process and creative innovations of the different generations of rabbis and editors of the gemara.
Epstein suggests these were two different mishnayot that were joined together by. Rebbi Yehuda Hanasi, the compiler of the Mishna. Prof. David Weiss Halivni says Rabbi Yehuda Hanasi changed the language for literary purposes.
The gemara asks the same question- פתח בכד וסיים בחבית? Why does the terminology switch?
Rava Papa answers they are interchangeable words when it comes to writing laws. The next question is in what case is there a practical difference between the two (mai nafka mina)?
A: Rav Papa says in a case of mekach umimkar/ buyers and sellers. What is the case? If a buyer wanted a chavit and a seller gave him a kad, this would cause conflict.
Q:How does this come about? If the buyer and seller agreed upon one term, that is what the transaction is for! Look what it says in the contract!
A: In case of safek - statistical doubt, the majority of people agree you follow what was agreed upon, but the minority of people use terms interchangeably, and the difference in language is brought to teach that in a case of monetary damages (mamon) we don’t follow the majority. In hebrew- דאין הולכים בממון אחר הרוב (d'ayn holchim bmammon achar harov) Meaning in a case of doubt, if a buyer claims “when we agreed upon kad, it also also mean chavit”, although a minority of people do this, since we don't follow the majority in monetary cases, his claim staneds.
What exactly is this principle of “we don’t follow the majority in monetary damages”?
In Bava Kama 46a, another section of the Talmud (sugiyah) discusses "we don’t follow the majority in monetary damages". What happens when a seller sells an ox and it is a nagchan - a wild animal.
Rav says its mekach taot- the transaction is canceled and the seller is responsible for the damage of the ox. The buyer didn’t expect a wild ox so he is not at fault. Shmuel says the seller could say he sold the ox for shechita (slaughter); it wasn't intended to be used for work, rather to be slaughtered- the local steakhouse doesn’t care whether or not meat they have was wild when it was alive. So the buyer is responsible.
The gemara then says the basis of the machloket is whether or not we follow the majority in monetary cases. Rav holds that we do follow the majority. Since most ox’s are sold for agricultural use the buyer should expect a tame ox and is not responsible. Shmuel says we don’t follow the majority, and the seller can claim he sold it for shechitah.
At first glance, this seems like a logical application of the principle "not following the majority in monetary cases"
However, as Rav Rabin suggested, this machloket of Rav and Shmuel stands perfectly on its own without applying the principle.
Rav’s opinion is based on the vulnerability of the buyer. The buyer should expect a safe product in any transaction. If he received a wild ox, he deserves a refund and is not liable. Shmuel on the other hand believes in the principle “devarim shebalev einam devarim”- intentions in your heart are not valid”. Meaning, if you wanted an agricultural ox, you must explicitly state it. It is the buyer’s fault he didn’t specify that
Originally this was the basis of their machloket; Onus on the company vs due diligence of the consumer. Only later, the stama (the title for the multiple editors of the gemara) added דאין הולכים בממון אחר הרוב (“we don’t follow the majority in monetary damages) to this machloket. Why? His goal is to eliminate the idea of using a statistical majority as evidence. He wants to strengthen “hamotzi mechavero alava hraaya” using hard evidence and witnesses, not statistical majority
This is an example of shitat revadim. First there was a dispute between Rav and Shmuel, and
generations later the stama added a new meaning to their dispute.
Conflict between Bava Kama 27a and 46a
Rabbeinu Tam, the first of the Baalei Tosofot, a collection of 13th century French commentators on the Talmud, asks: How can the Talmud on 27a say “we don’t follow the majority in monetary cases” is an accepted principle from a case in the Mishna, but on 46a this principle is disputed by Rav? (He doesn't use the revadim approach to say the principle was only applied to the machloket of rav/shmuel later on.)
As a reminder, in 46a, Shmuel said we don’t follow the majority but Rav said we do follow the majority in monetary cases. If so, why does Rav not speak out on daf 27a as well?
Rabbeinu Tam’s Answer: Rav is the Federal Trade Commission
Rabbeinu Tam looks at Rav’s position to explain why he doesn’t dispute the principle in Bava Kama 27a.
He says there are two possible cases of the buyer and seller regarding kad/chavit:
1) The buyer and seller agreed on kad before money was exchanged. The seller wants to give kad, but the buyer wants chavit (not the majority). Here since it is the favor of the buyer to say we don’t follow the majority, Rav would agree with the principle and require the seller to bring other evidence. Rabbeinu Tam claims this is our Mishna’s case and that is why Rav doesn’t dispute it, since not following the majority helps the consumer.
2) The second case is if a buyer and seller agreed on kad after the money was exchanged. The seller gave Chavit and the buyer wants to return it for Kad. Here it is in the favor of the buyer to follow the majority (as they agreed upon the Kad in the first place), and this would be the case Rav disputes not following the majority, being consistent with 46a.
According to Rabbeinu Tam, Rav applies the principle of not following the majority depending on if it is protecting the consumer.
This shows the beauty of learning Talmud. Discussions from 1,500 years reflect attitudes and debates that continue until today. How much to let the free market run itself as opposed to protecting the consumer? Now you know Rav's opinion on that :)
Thank you for reading and if you have any further comments or questions, feel free to reach out.
Niv
My Chavruta (study partner), Tomer, and I, take on a sugiyah in Bava Kama
