Bava Kamma 32: Injuries During Intercourse; Lecha Dodi

The rabbis wonder about our last Mishna, which first claims that when two people are walking in the public domain and one injures the other’s property, neither is liable because both have the right to be there.  As well, the Mishna claims that when a person walking ahead of another person stops, causing damage to the property of another, he is liable unless told to stop.  Our Gemara begins with a comparison between these damages and the damages potentially owed to a woman if her husband injures her during intercourse. 

We learn that the husband may be exempt from liability if:

• ·      Both have permission to engage in intercourse
• ·      Both the souls of a man and a woman engaging in forbidden intercourse are cut off from their people (Leviticus 18:29) 

These points are disputed

• ·      Rav Huna: He is liable because they are not in the public domain; rather, he has entered her domain (as in Deuteronomy 19:5 where one kills a neighbour accidentally with the head of an axe while in the forest)
• ·      Only the husband is active; the wife is not “walking” as well
• ·      Only the husband is active and certainly getting pleasure from the act

The rabbis move on to discussing another comparison. What if a cow is lying prone on the street and another cow kicks and damages that cow?  The Gemara wonders: was the cow able to walk around the prone cow?  What is considered to be normal behaviour in cows?

Another new Mishna tells us that when two people were walking in the public domain and one was running and the other was walking and they were both damaged each other, both of tehm were exempt. 

The Gemara wonders whether or not it was the eve of Shabbat when people have permission to run in the public domain.  And whether or not this makes a difference. And whether or not it makes a difference if they are running or walking in the first place.  We are told that the rabbis quote Rabbi Chanina, who said “come and let us go out to greet the bride, the queen”, or perhaps “Come and let us go out to greet Shabbat, the bride the queen”, and Rabbi Yannai would wrap himself in his tallit and state on Shabbat evening at twilights, saying “Come, bride; come, bride”.  Thus we should run to greet Shabbat.

We are told in our notes that this is the origin of our Friday night tradition of singing Lecha Dodi and turning back to face the Shabbat Queen.

Another new Mishna tells us that a person who was chopping wood in the public domain and a chip flew off and caused damage in the private property – or one who was chopping wood in his private property and a chip damages someone in another person’s private property, injuring someone – both are liable.

The Gemara speaks of the difference between the public domain, where it is normal for people to walk, and private domains, where it is uncommon for multitudes of people to be present.  The rabbis consider permission.  They consider an old case of a person who enters a carpenter’s workshop without permission.  If a chip flies and kills him but he entered without permission, the carpenter is not liable.  But if permission was granted for the person to enter the workshop, the carpenter is exempt. 

What would the carpenter be liable for if the person was injured?  Rabbi Yosei bar Chanina say that he must pay the four types of indemnity: damage, pain, medical costs, loss of livelihood.  But if the person was killed, the carpenter is exempt from exile.  Why?  The rabbis use the earlier example of Deuteronomy 19:5, where one person is killed by the head of an axe when both are in the forest.  Both had equal rights to the property.  In our case, because one entered the other’s property without consent, the carpenter is not exiled.

The rabbis move into a conversation about how punishment is meted out.  Through this we learn that people might die from one extra lash of punishment.  Who would have made that error in counting?  Or was it done intentionally?  And if so what is the punishment for that action?

Apparently the eldest of the judges recites the verses that are read to a person while he receives lashes, and the second judge counts the lashes, and the third says to the one who administers the lashes: “Strike him.”

Finally, the Gemara compares the damages in this Mishna to one who throws a stone into the public domain and kills someone.  In that case, he is exiled.   But this case is coming close to intentional manslaughter because he should have thought about the fact that people are usually in the public domain.   Shouldn’t there be a severe penalty for a person whose actions kill or injure someone when they should have known better?  The rabbis then consider the case of a person who throws the stone into a usually unpopulated area, like a garbage dump on the other side of one’s wall.  They also consider the sparks of a welder that fly into the face of a visitor and kill him.  He is exempt, even if the person was warned. 

Was it the welder’s apprentice who was present and should have known better?  Was the welder asking him to leave and the welder believed he had left?  Clearly the rabbis do not want us to believe that a carpenter or a welder or even a person throwing stones was intentionally trying to harm another person.  However they do have to assess damages.