Wednesday, 31 August 2016

Bava Kamma 92: Damages do not Assume Forgiveness: Sincere Apology and Acceptance is Required

While discussing permission to cut down palm trees to save grape vines, we learn about heart of palm.  I had no idea that the heart of palm actually originated as the core of the highest part of  a palm tree.  Now I see this food eaten on holidays as much more of a delicacy!

A new Mishna teaches that a person is not forgiven for causing injury to another until he asks and receives forgiveness for causing that injury.  Proof is found in the story of Abimelech (Genesis 20-7; 20:17) where the crime of taking Sarah into his home is forgiven when Avraham heals the family.

Further, if a person injures another (the examples are "Blind my eye, cut off my hand, break my leg", they are liable for all five indemnities.  This is true even if he is told to do so.  However, if one is instructed to "tear my garment, break my jug", ie. to damage one's own property, he is not liable for damages.  If he did these actions because he accepted the condition that he is exempt from punishment, then he is exempt.  However, if one is told to damage a third person's property, he is liable for damages even if he was told that he would be exempt.

The Gemara begins by considering Abimelech's role in this story about forgiveness. They wonder what Avraham was healing in them.  For some reason they decide that it could be bile, interpreted by the rabbis as digestive issues.  They name the different sphincters that might have been cured for women and men.  It is said that even the hens were not laying eggs at this time.  It serves the story well to have fertility become an issue in Abimelech's home.  If that were the case, Sarah did not consummate her marriage to the ruler.

The rabbis then speak of others who might be less than perfect.  Perhaps those who were called up by Joseph to meet Pharaoh were in fact those who were weaker.  Or perhaps not.  The rabbis also speak about Moses and the bones of Judah.  The connections didn't make sense to me, but I hope to piece this stream of consciousness together tomorrow.

Tuesday, 30 August 2016

Bava Kamma 91: Evaluating Damages for Humiliation; Status; Self-Injury

The Gemara describes how damages are evaluated.  For example, in the crime of killing, did a soul depart with this assault or was the victim about to die anyway when the assault happened?  Would a killer be held liable for damages regardless of what caused the damage?  Does it matter how many handbreadths deep was the excavation that the victim fell into?  The Gemara says that these damages are not evaluated; the killer is liable to the death penalty in any case.

In the case of a slave owner who blinds or deafens his slave, the slave is emancipated.  What if the slave is wounded by not directly blinded or deafened by the owner’s actions?  The slave must be reimbursed for medical costs.  The Gemara considers what might be considered a physical injury.  Frightening a person so that they startle and injure themselves?  Holding him and shouting into his ear, deafening him?  The latter involves a physical assault and so it results in damages.  The Gemara suggests that cases will be presented to the assembly of judges to both determine how weapons, actions, outcomes etc. can be evaluated.

If one spits on another, the spittle must reach the victim’s skin to claim damages for humiliation.  The rabbis argue about what to do when the spittle reaches only the victim’s clothing.  Perhaps this should be evaluated as similar to verbal assault? But in HaAretz, humiliation through words makes one exempt from monetary payment but liable by Heaven.

Each person is to be paid based on his status.  When considering whether this is a stringency or a leniency, the rabbis use logic:  a poor person does not need much payment for humiliation and so should receive less than the fixed sum discussed yesterday. This would be a leniency. A rich person would require more money for his humiliation and should receive the set sum - a stringency.  Rabbi Akiva argues that all people are children  of Abraham Isaac and Jacob, and should be treated as freemen who lost their property.  Thus they are actually rich and should be treated with the respect given to rich people.  

The rabbis discuss a case where a woman’s hair covering is removed in public - must she be reimbursed immediately for humiliation? Did he wait for her to reach her courtyard and then cause her to remove her own head covering, thus ‘injuring’ herself?  

The Gemara moves into a full blown discussion about self-injury.  This is particularly interesting to me as a therapist and as someone who works with many who self-harm.  The Gemara describes self-injury as an act of evil; planning to do evil and then changing one’s mind results in the sin of a broken oath!

Fasting and denying oneself are permitted in the context of nazirut, but can one compel another to sit and fast?  And some rabbis use proof texts (Genesis 9:5) to justify the idea that self-injury is a form of murder.  Rabbi Elazar disagrees.  He uses the argument of one who rends his garments excessively when in mourning, which is punishable under “do not destroy,” (Deuteronomy 20:19).  Thus one is sinning when self-harming, but in a less serious category of transgression.  The Gemara considers that flesh will heal but that garments will be ruined if injured.  

Is a person injuring oneself but ‘afflicting oneself’ and not drinking wine?  This is what a Nazarite might do.  Is a Nazarite a sinner?  Our tradition walks with trepidation on the line between ‘betterment of the self’ through discipline and ‘injuring oneself’ through discipline.

If one person tells another person to cause a necessary injury - to cut down a tree or to kill an ox (both of which are ready to be removed/killed), that person is liable.  Why?  Because he is denying his neighbour from performing a mitzvah.  There seems to be an understood fine of ten golden coins for this transgression.

Deuteronomy (20:19) teaches that palms trees are cut down only after they are producing less than a kav of fruit. An olive tree, however, must be producing less than a quarter of a kav of fruit.  This is because of the greater monetary value of the fruits.  Trees used for food and ‘barren trees’ are considered differently in these circumstances.  

Monday, 29 August 2016

Bava Kamma 90: Monetary Damages for Humiliation

When a woman owns a slave but her husband uses the slave's services, who is liable if the woman hits and injures that slave?  What if the husband owns that slave?  What if something is consecrated to the Temple but then damaged before it is delivered?  What if a slave is sold to another owner but the slave is injured by the first owner?  This abuse would happen while the slave is continuing to be owned by his first owner for thirty days after his sale, as was a condition of the sale.

The rabbis speak about possession and property.  A slave might be owned jointly by two parties.  How might that change the considerations around liability?  A slave is considered to be "one's money".  I think that this is misleading.  A slave will never be treated as money, for it is a living and breathing being.  Any argument that centres on the slave as money should be read extremely carefully.

A new Mishna teaches us about the actual payments that are owed to one who injures another:

  • one who strikes another pays him a sela (worth 4 dinars)
  • one who slaps another pays him 200 dinars
  • one who hits another with the back of his hand, more humiliating, pays him 400 dinars
  • one who uncovers a woman's head in the marketplace pays her 400 dinars
The Mishna says that we see all Jews, regardless of their circumstances, as free men who can be humiliated.  The pain of any person should be minimized.  A person who injures himself or who cuts down his own saplings is not liable (even though this breaks commandments).  However, one who injures another or cuts down another's saplings is liable.

The Gemara wonders this payment is made in Tyrian dollars, which are worth one eighth of state coinage.  The lesser value is accepted.

Can a witness become a judge?  The rabbis agree that a witness should not act as a judge in such cases.  They then ask questions about the nature of the assault.  Was a fist used, or another item, to strike the body?  Where on the body was the person struck?  Has the item used to strike another person been found?  Can a person be tried for assault and also for monetary damages?  

It is notable that the rabbis teach us about leniency both in cases of capital punishment and other cases.  They tell us that judges should rule leniently should there be any doubt about guilt.  This is a lovely passage that we should continue to remember today.

Bava Kamma 86: Injuring One’s Parents; Who Feels Humiliation?

The Gemara walks us though a number of examples of one who injures his father.  Does he just hit his father’s ear?  That would not incur karet, necessarily, but deafening his father through that violent act would certainly involve bleeding of some sort within the ear canal.  That act would be punishable by karet, for deafening a person is more serious that other crimes.  One must be liable for the full value of that person’s life.  Plus it was one’s father who was hurt…

A small note –balding one’s father through applying a depilatory cream would result in an additional payment for humiliation.  The rabbis argue that losing one’s hair is the greatest humiliation.  Tell that to the woman who was raped and left to marry the rapist.

The rabbis consider daily payment of loss of livelihood versus one payment for that income deficit. 

The Gemara then discusses slaves who are injured.  Who should receive the payments, the slave? Or his owner?  What if the injury affects his value in the future?  What if his injury is minor and does not affect his work (other than immediately), like losing the tip of his nose, cutting the edge or his nostril or his ear?

The rabbis consider who does not feel humiliation.  They seem to concur that humiliation is greatest for those in positions of honour - namely themselves.  After deciding that minors do not feel humiliation, the rabbis remember that Rav Pappa suggests the potential feeling of humiliation in a child.   They agree that a child who is developmentally able to feel humiliation should be compensated for that loss.  This exception is likely due to the fact that some rabbis could remember feeling humiliation as children.  And what about blind people? Or ‘imbeciles’? Or slaves?  Do they feel humiliation?

It becomes clear that the actual, lived experience of humiliation is important in order to accurately assess damages owed to the injured party.  If a person feels no humiliation because of the injury (because of age, status, place, etc.) then they should not receive compensation for damages in the category of humiliation. 
A new Mishna tells us that people are liable to pay damages for humiliation if they injure a naked person, a blind person, or a person who is sleeping.  A sleeping person is not responsible for his/her actions, and so s/he is not liable for damages for humiliation.  The Mishna uses the example of one who falls off of a roof and injures another person to explain that forewarning and intentionality are both required when assessing for humiliation.

First the Gemara discusses nakedness.  Why is one naked?  Where are these people?  Are we discussing a bathhouse or someone whose shirt is lifted further than the wind has taken it?  Context determines humiliation in these cases.

The Gemara continues with a discussion about the nature of humiliation.  Is humiliation a sub-category of embarrassment?  How might this inform us when considering a person who was asleep, humiliated, and then died?  How does one’s family’s embarrassment or humiliation play into this? What about those who are called ‘deaf-mutes”, “imbeciles” or “minors”?  The rabbis suggest that there is “no greater humiliation” than to be an imbecile.

I would take offence to that comment but for two factors.  First, it teaches us about these rabbis and their values.  Clearly the ability to present oneself as independent, competent, and intelligent was thought to be of utmost importance.  Second, yesterday’s daf taught us that being bald was the most profound humiliation.  Both cannot be the most humiliating experience.  Further, we can turn to our first point and remember that we can learn something about a society that shuns baldness.  Was it idealizing youth?  Was it critical of the male sex drive in older years?

Some rabbis argue that all people experience the feeling of humiliation.  However, there is a larger argument regarding people who are blind.  Many Torah proofs use the word “see” to mean to visually see, to know, to understand, etc.  As well, people must have seen the people that they murder to be liable for the death penalty.  Alternatively, if people who are blind are exempt from the death penalty, are they also exempt from all other forms of judgement?

Sunday, 28 August 2016

Bava Kamma 89: Selling the Get

A woman might want to sell her divorce certificate for money.  The get is the marriage contract that promises a woman that her husband will pay her a certain amount of money in the case of their divorce.  In order to remarry, a witnessed get must be in the wife's possession.  Damages are paid to a woman if conspiring witnesses testify against her marriage status.  

Today's daf focuses on the intricacies of money paid through a woman's get.  Usufruct money is that which a woman brings into the marriage that will become her husband's property. Land, for example, will benefit the husband who can sell the produce grown on his wife's land.  Regardless of whether the value of the land increases or decreases of their time as a married couple, she will inherit and will pass down that property to her children.

Another form of ownership is tzon barzel, an iron sheep. This property will not lose value over the course of the marriage and will always be in a woman's possession.  The Gemara teaches that a woman can sell her property but only within the confines of these rules regarding her possession.  

It is fascinating to watch the rabbis work hard to protect the women in their community while they simultaneously exclude and dehumanize women in other ways.

Bava Kamma 88: The Rights of Canaanite Slaves, Possession and Transfer or Property for Women

A very brief review of today's daf after a very long day:

The rabbis consider the specific differences between a Canaanite slave and others regarding payment of damages.  Women, minors, and others are compared with these slaves.   Some are permitted to be witnesses in certain circumstances and some are not, for example.  Within this discussion we learn much about power and status in antiquity, including the importance of lineage (both up, as in one's parents, and down, as in one's children).

The Gemara moves on to discuss how it might be disadvantageous to have an encounter with an "imbecile, a minor, or a deaf-mute".  To illustrate this, or perhaps for some other reason, the Gemara tells the story of a woman wanting to leave her property to her son before her husband has died.  The rabbis argue about how this might be desirable or even possible.  They consider the transfer of property and how circumstances might affect the right to possess or sell land.

While there is much to say about today's daf, it won't be said here today.

Thursday, 25 August 2016

Bava Kamma 85: Pain, Medical Costs, Loss of Livelihood

How can we judge the pain of another person?  The rabbis have already suggested that someone with similar pain tolerance should state what that injury would be worth to him/her.  What if both parties were injured? What if we cannot determine pain so simply?

The rabbis launch into a deeper conversation about monetary restitution for injury.  How much might a person pay to have his/her hand severed?  What about the use of sahm, anaesthetic?  the rabbis concur that no-one would take money to inflict that type of pain, regardless.  And humiliation would have to be paid as well, for a hand could be tossed to the dogs to be eaten.  These arguments are moot in a world where the poorest of the poor sell their organs for money and the opportunity to live a better life.

Are medical costs and the cost of the ‘loss of livelihood’ connected?  Are both required?  The Gemara examines the wording of our Mishna.  Medical costs include bandages.  But what about excessive bandages?  Loss of livelihood may or may not be required at all.  The rabbis even touch on the concept of G-d and healing.  If a person falls ill, perhaps that is G-d’s plan and only G-d will heal this person.  Or perhaps G-d has also created people with the knowledge of healing arts so that people can be treated medically.  We know that the Jewish tradition leans toward the latter argument.  Our notes teach that Rambam discusses this concept (Leviticus 26:11) at length in his Commentary on the Torah.

If a person develops growths at the site of the injury, one must determine if they were due to the injury or unrelated.  If unrelated to the injury, the person at fault for the injury is not liable for the cost of medical treatment, the cost of lost livelihood, etc.  A doctor might give the injured person advice on how to treat his/her wounds, including a growth that may or may not be related to the injury.  If the injured person does not follow the doctor’s advice (to stay away from sweets), the growth may become garguteni, meaning that it was necrosis and must be treated with crystallized ice plants*, wax and wine dregs.

The Gemara teaches that it is not permitted for the healing to be arranged or performed by the injured and the person at fault.  Neither is to be trusted with this transaction (ex. where either says, “I know a doctor…” or where either says, “Just give me the money and I’ll take care of the healing”).  The rabbis find prooftexts for this as well.

We learn that some injuries, like causing deafness, result in compensation for the full value of the person.  It is impossible to measure the worth of hearing, as all parts of one’s life would have been defined by that factor in antiquity.

Briefly, the rabbis note that those who work carrying buckets or as agents should be compensated for their specific loss of income.  Cucumber watchers should not be the only measure of loss of livelihood.  It does, however, teach us that even a simple job requires basic skills. 

Another question: what should be done about multiple injuries?  Should a leg be evaluated before an eye and a hand if each was injured sequentially?  Or should one wait and evaluate all three simultaneously?  The rabbis conclude that in these cases, the full value of the person might be awarded.

We end with an interesting set of questions.  What is done if a person injures another and the damages are not life-threatening?  For example if one’s hand is weakened but will return to full strength?  A comparison is made with one who injures his parents but leaves no bruise, such that the death penalty is not imposed.   Another comparison: one who injures another on Yom Kippur.  Their punishment will be karet, exclusion from the World-to-Come, and thus no other punishments are imposed.

*Our notes teach that these plants, aha, are native to Israel and contain small sacs.  They are high in sodium carbonate and is used to bathe, launder clothes, treat diuretics, and reduce inflammation.

Tuesday, 23 August 2016

Bava Kamma 84: An Eye for An Eye, pt. 2; Ordained Judges and Damages in Babylonia

We continue watching the rabbis prove that “an eye for an eye” refers to monetary payment and not any other sort of restitution.  They consider the meaning of the word yitten, and whether it refers to money, giving, or something else regarding a blemish given to another person.  

One important argument is that the monetary payment represents the value of the person who inflicted the injury as well as the person injured.  Thus a wealthy, older man’s leg would be worth more than a poor child’s damaged leg.  Any system of compensation must follow the directives of Leviticus (24:22), where we shall have only one manner of law.  This creates further difficulties for the rabbis.

Another more obvious argument asks what should be done if a blind person blinds another person.  Or if a person missing a leg severs the leg of another.  Clearly the “eye for an eye” command cannot be meant to be taken literally!

The rabbis also consider damages.  What should be done in Babylonia or in other places where the court is not made up of three ordained judges?  Only these judges are permitted to determine damages.  The rabbis conoider the differences between the rulings of judges when a person is killed by another person and when a person is injured or killed by an animal.  How much agency do our judges have, particularly in cases where both humiliation and degradation (rape) should be assessed?

Our daf ends with conversations about damages for pain.  Was a burn or a bruise or an injury with no bruise mentioned first in our Mishna?  What difference with this make?

Bava Kamma 83: Respecting Greek Culture, Dogs, Determining Payment; An Eye For An Eye pt. 1

Our daf ends Perek VII and begins Perek VIII.  In amud (a), the rabbis share stories that demonstrate respect for the Greek language and arts.  In questioning whether or not it is alright for Jews to speak in languages other than Hebrew, they suggest that the language of the land is acceptable.  Further, one may even go against Torah law and dress or wear his hair in the popular fashion if that is necessary to maintain positive relations with the ruling class.  Greek, however, was even said to be studied by half of Rabbi Gamaliel’s 1000 students.  Those students were killed by the Romans similarly to the students studying Talmud.  Thus Greek culture is understood as beautiful and important.

The rabbis discuss pigeons and where they can be housed in relation to a town.  Dogs are discussed with great seriousness, however.  Dogs must be leashed unless it is nighttime and the Jewish town borders a neighbouring town that might be hostile.  In such cases, barking dogs will save the Jews.  During the day, however, dogs are said to have caused miscarriages by their threatening barking.  If a woman says that a dog’s barking caused her miscarriage, the owner of the dog is liable for damages.   

A bizarre story is told by Rabbi Dostai about G-d’s presence requiring two thousand plus two myriads (10,000 more) of Jews based on Numbers (10:36).  If that is the case and the people are short by one person, and a woman is pregnant, dogs should not be present.  That woman could miscarry due to a barking dog, causing the Presence of G-d to recede.  The owner of the dog is responsible for this tragedy.

Perek VIII begins with a new Mishna.  We learn that the five types of damages are determined in specific ways:
  • blinding an eye, severing a and, breaking a leg
    • as if injured party were a slave
    • how much s/he worth before and how much after the injury
  • pain where one is burned with a skewer, nail, fingernail will no bruise
    • person with similar pain threshold suggests amount
  • medical costs
    • must heal him
    • growths, blisters or rashes are paid for only if they are due to the injury
    • if healing stops and starts, liability continues until fully healed
  • loss of livelihood
    • it is as if the person is a watchmen of cucumbers (an easy job)
  • humiliation
    • based on the stature of the one who humiliates and the one who was humiliated

The rabbis take this opportunity to argue that the Mishna and that all of our laws suggest that we are liable to make monetary payments for physical injuries.  They use numerous sources and proof texts, particularly those that teach about no ransom for the life of a murderer and those that compare striking human beings with striking animals.  Our law is supposed to be equal for all people, and ransom may or may not be applicable in other cases.  Further, taking one’s eye may or may not be different from taking one’s sight.  The rabbis continue with this conversation in tomorrow’s daf.  What is clear immediately is that the rabbis are arguing against physical punishment for causing injury to others.

Sunday, 21 August 2016

Bava Kamma 82: Ezra's Ordinances - or are they?

Joshua wasn't the only person with conditions for the Jews entering HaAretz.  We learn that Ezra the Scribe instituted ten ordinances.  These are:

  • People must read Torah on Shabbat afternoons, Mondays and Thursdays
    • The Gemara discusses reasons for this, including the difficulty of going three days without Torah
  • Judges must sit at court on Mondays and Thursdays
    • The days that people were in town, anyhow, to learn Torah
  • One does laundry on Thursdays
    • This must be aimed at the women, and the Gemara suggests that this encourages clean clothing on Shabbat.
  • One should eat garlic on Shabbat eve
    • Garlic was thought to cure intestinal worms, increase sexual potency, and generally enhance health.  This ordinance was intended for those who engaged in Sexual intercourse that evening - Torah scholars were expected to have intercourse with their wives once each week, preferably on Shabbat
  • Women should rise and bake bread early when they wish
    • Generally women baked on Friday mornings so that poor families could take from their bread on Shabbat and the week.
  • Women should wear a breechcloth
    • Thought to be referring to underwear and suggested due to reasons of modesty.  Could also refer to an apron that covers one's dress which would otherwise be pulled up in front to catch crumbs and avoid staining on the front of one's skirt.
  • Women must comb their hair and then immerse in a mikvah
  • Paddlers of cosmetics and perfumes should travel though each town
    • To help women continue to be attractive to their husbands
  • All should attend a mikvah after a seminal emission.
The Gemara shares the arguments above.  It also considers whether or not Ezra in fact created some of these ordinances.  Perhaps some of them originated in rabbinic literature or even in Torah text.

The Gemara then returns to our original Mishna.  First - are chickens permitted in the city?  What would cause a city to become idolatrous?  How is Jerusalem different from all other cities?  Next - pigs cannot be found anywhere in Jerusalem.  How does this operate in practice?  Who was in power when these rules were actually instituted - long before Ezra the Scribe?  

We end our daf with a phrase said by the Sages: Cursed is one who raises pigs and cursed is one who teaches his son Greek wisdom.  What do we know about Greek wisdom?  perhaps this referred to Greek culture and literature, because our notes teach us that Jews spoke Koine Greek to communicate freely with their Gentile neighbours.  Very few people knew other parts of Greek culture, but those who did were used to translate and communicate often.

Bava Kamma 81: Prayers on Shabbat; Joshua’s Ten Conditions

After discouraging people from keeping pets, including genets (usually to help to manage unwanted pests), Daf 81 also taught us about when it is appropriate to cry out to G-d on Shabbat and when an alarm (likely the shofar) should be sounded.

Today’s daf continues with a list of the ten conditions that Joshua gave to the Jewish people when giving them HaAretz.  The Jews entering Israel have the right to:
  • graze their animals in the forests
  • gather wood from each others’ fields 
  • gather vegetation to be used as food for their animals from anywhere except for a field of fenugreek (hay)
  • pluck off shoots to grow their own plants except for olive trees
  • take water from a spring on private property - even when it first appears
  • fish in the sea of Tiberius/Galilee as long as fishermen have not set up underwater traps which will damage boats
  • relieve themselves outdoors behind a fence, even near saffron
  • walk on permitted paths through private property until second rainfall
  • after second rainfall, to veer into private property from the road due protrusions in the road
  • cut back vines when lost in a vineyard 
  • bury a corpse where it was found if no-one is burying it (met mitzvah)

The Gemara discusses each of these points and the rabbis attempt to understand some of the intended details of each condition.  For example, the rabbis tell stories about people who veered off of the road into private property and considered one who remains on the road to be overdoing a mitzvah, thus nullifying its positive benefits.

Thursday, 18 August 2016

Bava Kamma 79: Theives who Don't Leave Home; Domesticated Animals

In cases of theft, the rabbis agree that a person is liable even if he has an agent slaughter or sell his stolen animal. It is a principle throughout the Talmud that there is no agency for transgression. This means that once a person assigns an agent to transgress a halacha, that person need not pay the four or fivefold payment.  The rabbis decide that even when an animal has been consecrated to the Temple, that person is liable.  The thief's agent does not have to be a person - and the agent does not have to accept responsibility.  The person is liable for the four or fivefold payment.

A new Mishna teaches that the domain of the owner is relevant.  Theft cannot occur within the owner's home - the thief must remove the stolen item from the home - sell it or slaughter it, etc. - to be liable for the four or fivefold payment.  If he was in process of leading the animal away from the owner's property and the animal died, he is liable.   Similarly, if the thief was using the animal as payment (to redeem a firstborn son, to pay a creditor or unpaid bailee, to lease something) and the animal died while being led out of the owner's domain, the thief is liable.  He is also liable if he instructed an agent to take these actions.

The Gemara discusses the different ways of claiming ownership beyond intention.  Pulling, regarding payment of a bailee, or signing a paper, regarding leasing property or land, for example.  Prooftexts for some of their arguments are found in Samuel and Judges.  

The rabbis debate the differences between robbers and thieves.  We have already learned that a thief is someone who takes another's property stealthily, without the owner knowing.  A robber is someone who takes another's property by force - grabbing what is theirs from their hands, for example.  The rabbis compare this to a person who tries to hide their actions from G-d. 

The rabbis open up a competition about what we have learned about work and about human dignity from this discussion.  Rabbi Meir notes that the labour done by an ox is worth fivefold payment while that of a sheep is worth only fourfold payment. Rabbi Yochanan ben Zakkai counters: an ox walks out on its own legs while a sheep must be carried out by its thief.  Fivefold is paid for the ox and fourfold for the sheep. How much more important is walking, as is done by humans?

We end today's daf with a new Mishna and Gemara. The Mishna teaches that we may not raise small domesticated animals in Eretz Yisrael -but in Syria and in the wilderness of Eretz Yisrael, this is fine.  Chickens cannot be raised in Jerusalem, and Priest cannot raise chickens anywhere in Eretz Israel.  Finally, it is forbidden to raise pigs anywhere.  Dogs must be leashed with chains.  Traps are permitted for pigeons but only at least 8000 cubits from a settled area.  

The Gemara notes that all of this is to protect people from eating animals that are not permitted to them, and to protect animals and people from harm.  The rabbis consider different areas that might be prepared to raise some domesticated animals.  Further then note that people may raise large, domesticated animals like cattle because the Sages issue a decree on the public "only if a majority of the public is able to abide by it".  People might be able to bring animals in and out of HaAretz for 30 days before a pilgrimage or a wedding, etc.  

This is another example of our tradition's ability to adapt to the needs of its communities over time.  When the majority of our community cannot abide by a tradition, that tradition cannot be appropriate any longer.  We can't punish the majority of the population!  I wonder how we might apply this principle to understandings of gender differences, sex differences, the roles of different people, and on and on.

Wednesday, 17 August 2016

Bava Kamma 78: Non-Kosher Animals Crossbreeding, Halacha and Stealing

The Gemara continues to question the meaning of "an ox or a sheep".  In their search to understand whether or not this refers to diverse kinds, the rabbis question which animals can mate with other animals.  They understand that oxen cannot mate with sheep, but which other animals might be indicated?  One of their more interesting conversations is about kosher and non-kosher animals cohabiting.  Could we benefit from such an animal?  The rabbis note that all kosher animals belong to one order - our notes teach us that these are known as artiodactyla.  There are some non-kosher animals (pigs, camels) that belong to this group as well, but generally crossbreeding kosher and non-kosher animals is impossible. 

There are many conversations in the Talmud about the koy, which is thought to be either the result of cross-breeding or its own species.  The key is mentioned here as well.

A new Mishna teaches us that if one sells a stolen animal but the animal was not slaughtered according to halacha, or if the thief kept even one one-hundredth of the sold animals for himself, he only has to pay the twofold payment.  The four or fivefold payments do not apply.

The Gemara suggests that thrives might sell most of a sheep, for example, but keep part of its fleece.  A person might steal and sell an animal that is damaged, though, and this would allow for the four or fivefold payments.  Further, a person might sell a stolen animal together with a partner.  This creates difficulties as well.  Perhaps the thief 'withholds' information about the slaughter from his partner, causing the partner to be exempt from liability.  

The rabbis end our daf using the example of a pregnant woman to better explain the concept of 'withholding'.  If a fetus is in fact considered to be part of the woman herself, like her thigh, then she is not withholding the fetus.   Or, because the fetus will eventually detach from her body, is she withholding?

Tuesday, 16 August 2016

Bava Kamma 77: The Parah Adumah, Red Heifer, and Kilayim, Animals of Diverse Kinds

Daf 77 amid (a) is extremely short.  It is only one sentence, which is extremely rare.  It continues Rabbi Shimon's argument that animals that are redeemed are as if they had always been redeemed. He argues that the Red Heifer can impart ritual impurity of food because there was a time before it was named as the Red Heifer when it was "fit for consumption".  We are prohibited from deriving benefit from its meat, but its original status was that of 'potential food'.

Was Rabbi Shimon referring to one redeeming the Parah Adumah through its sale after it was on the pyre?  Reish Lakish tries to defend Rabbi Shimon's opinion, but Rabbi Yochanan wonders about other similar situations, like unblemished sacrificial animals.  We learn that an animal that is treifa, forbidden to be eaten, but is slaughtered, changes the punishment given to the thief.  

The rabbis wonder about the expression "slaughters or sells" regarding a stolen animal.  What is meant by "or"?  Does our Mishna refer to a sheep or an ox?  Or a sheep or a goat, which are both known as "seh"?    Or are we supposed to understand this as kilayim, an animal that is a mix of two breeds (a goat and a lamb, for example).  The rabbis teach that even an animal that looks like another species/breed is prohibited from becoming an offering.  

The rabbis need to know the distinctions between 'this' and 'that' in order to create meaningful, observable halachot.  If we don't know the name of an animal, how can we know whether G-d intends for us to sacrifice it or not?  How can we understand its potential degree of sanctity? or whether or not it can contract ritual impurity?  

Today we are working toward blurring the lines between "this" and "that".  We are attempting to find ways to equalize the value of people, actions, animals, beliefs, genders, and much more.  In times of the Talmud - and for some people, still - it was critical to establish distinctions.  A modern interpretation suggests that all of these 'things' are "different but equal".  However, that was not the case in our history.  It is clear that an animal of 'pure breed' was more valuable that one of mixed breed.  In fact, people were assigned different monetary values simply based on our gender and societal roles.  It can be challenging to grapple with these overriding differences while learning the daily daf.

Monday, 15 August 2016

Bava Kamma 76: Consecrated Oxen

Speaking about the ox that is stolen and consecrated, the rabbis consider the serious implications of timing.  Timing determines ownership, and ownership determines liability.  The consecration could be decided before or after the animal was stolen.  When does ownership actually transfer?  And if the animal is consecrated, does it matter when the blood is sprinkled at the Altar?  

When is the ox replaced?  When is it replaced with four or fivefold payment?  How does consecration change the halachic mandates?

It is particularly challenging to read the rabbis' expended conversations about animals that are stolen and consecrated.  They suggest that their halachot only apply to the times of the Temple.  Consecrated animals were sacrificed only when the Temple was standing.  I understand that the rabbis need to establish what was done in the past to understand what to do should the Temple be rebuilt.  However, their conversations do not further our understanding of how to manage similar legal situations today.

Thinking about this, though, all of the rabbis arguments teach us how to think.  Whether or not the Temple is rebuilt, it is useful to understand the logical reasoning of this "what if".

Sunday, 14 August 2016

Bava Kamma 75: The Psychology Behind Testimony

Today's daf focuses on the intricacies of admitting one's theft.  Does it matter where a person is when he admits his guilt?  What if a person admits to part of a crime but witnesses later testify differently?  We learn different examples of different thefts in different combinations.  

Great emphasis is put onto the testimony of witnesses in these situations.  However, the rabbis also consider the social and psychological pressures that might influence testimony - both the testimony of the thief and that of the witnesses.  For example, perhaps the thief testified only because he saw that witnesses were about to testify and he assumed that they would testify against him.

The thief's penalty is influenced by when his admitted his crime, how much he admitted, and what the victims say that they saw.  The penalty of four or fivefold might apply -- or not.  Witnesses can void the testimony of other witnesses.  If one has not stolen and animal, he cannot have slaughtered the animal, and thus the four or fivefold payment cannot apply.  But in some circumstances, the thief may have to pay between three and fivefold the worth of the stolen animal.

If those witnesses cannot recall the date or time of the theft, their testimony would be nullified in ordinary circumstances.  However, if a thief who testifies that he did steal in the face of witnesses renders their testimony valid.

Saturday, 13 August 2016

Bava Kamma 74: Conspiring Witnesses

The Rabbis discuss the baraita which teaches that witnesses testifying that the master knocked out his slave's eye and then his slave's tooth and two other witnesses say that this happened in the other order, we believe the first two witnesses.  The slave's owner pays for damages done to the eye.  The rabbis consider the consequences of each assault.  After a slave's tooth is knocked out, the slave is emancipated.  If the eye is knocked out as well, the slave is paid damages for his lost eye.

Witnesses are believed regarding a stolen animal when that animal has been sold or slaughtered. The Gemara considered the importance of witness testimony regarding other crimes, including murder.  How should the rabbis balance the claims of conspiring witnesses?  And what should be done if the thief admits to his wrongdoing after witnesses have testified to his guilt?  How does the timing add to these questions - if this occurs on Shabbat, for example?  There are further suggestions about a son who steals from his father before his father dies but then sells or slaughters the animal after the father dies.

The masechet Bava Kamma is both simple and very complex.  It concerns itself with very limited circumstances.  The nuances and arguments regarding those circumstances, however, are detailed and almost limitless.  As an oft-quoted masechet, Bava Kamma's influence goes far beyond 'what to do when one steals an ox'.

Friday, 12 August 2016

Bava Kamma 72: Competing Halacha

The Gemara continues to piece apart what is known about a liability of a son who steals and slaughters his father's ox whether that is before or after his father dies.  If the slaughter takes place after his father has died, the father no longer owns the animal.  Who would receive the four or fivefold payment?  What if this act of slaughter was not completed at one time?  We know that slaughter is only called slaughter at its completion.  This gruesome example of a legal conundrum is quite disturbing to those of us who are tremendously removed from the act of animal slaughter.  And from what I have read, shechita is to be done quickly or else the animal cannot be used; it is not a halachically proper slaughter.

Wednesday, 10 August 2016

Bava Kamma 71: Transgressions on Shabbat; Theft Between Father and Son

We begin with a conversation about punishments for two transgressions committed together.  Flogging, karet, monetary payments - the more severe punishment is the only consequence enacted in these cases.
The rabbis speak about halachot regarding transgressions committed on Shabbat and the consequences that follow.  The example of shechita on Shabbat is shared: the person who slaughters an animal on Shabbat should receive the death penalty, but his slaughter is still considered to be kosher.  This is an unusual ruling but it is argued that the slaughter was performed privately and unintentionally.  Only public, intentional transgressions on Shabbat should be punishable by death.
At the end of our daf, the rabbis return to the question of our Mishna, where a son has stolen an ox from his father.  The rabbis consider his payment of four or fivefold the worth of the ox.  Is this always the case?  If the trial is held both before or after the father's death? 
This particular example involves the emotions accompanying a conflict between a father and son.  Would a son actually steal an ox from a father?  Based on the rabbis' reports about the observance of halacha, we would think not.  But based on what we know of life - and based on the stories of the Torah - such things should be expected.  

Tuesday, 9 August 2016

Bava Kamma 70: When Stealing Animals Results in Four or Fivefold Payment

Finally we are introduced to a new Mishna.  It teaches us about thefts that result in the four or fivefold payment even when that is not intuitive.  If a person steals an animal on Shabbat, if a person steals an animal and sells it for idol worship, or if a person steals an animal and slaughters it on Yom Kippur, he pays four or five times the animal's worth.  
Why doesn't a person who commits these crimes face the punishment of karet? In each of these cases, the Gemara teaches, one of the 39 actions forbidden on Shabbat has not been exactly broken.  Thus there is no need to cancel the four or fivefold payment (which would happen if the more serious punishment of karet were enacted).  
Today's Gemara uses two different examples of sexual relationships to better understand these cases.

Monday, 8 August 2016

Bava Kamma 69: How to Designate the Statuses of Orla, Produce, Cemeteries

In amud (a), the Gemara teaches us about how items are marked as off-limits.  Clumps of dirt are used to signify trees that are in their fourth season in the Sabbatical year so that people know to consecrate their fruit.  Orla, trees which have not yet reached their third year, are marked with pieces of clay/pottery to demonstrate that no-one can benefit from their fruit yet.  Graves and cemeteries are marked with lime which remains white, like bones.  

The Gemara discusses other ways that transgressions are avoided.  Tithes might be removed from fields so that do not get mixed with untitled produce.  Owners might declare all of their produce permitted to ensure that the poor who take from those fields do not eat prohibited produce.

The rabbis consider the timing of consecration. They disagree about using the principle of b'raita, retroactive designation. Can an item that was not consecrated be rejudged as having been consecrated all along if it is used for a holy purpose later?

The rabbis agree that items must be in one's possession to be consecrated.