Bava Kamma 5: Reasons That These are the Four Categories of Damage

The Gemara continues to question Rabbi Oshaya's suggestion that there are not four but thirteen  primary sources of damage.  One way that the rabbis determine whether an action is a primary or secondary source of damage is through a related example.  The rabbis share what they have learned (from later in our Mishna, daf 33) about an innocuous, tam, ox.  If an otherwise tame ox kills a person, its owner may a fine from the body of the ox and not via their best quality land.  The rabbis take this as proof that a tam ox who kills a person is not a primary source of damage.

The Gemara considers all of Rabbi Oshaya's other suggestions similarly.  Thus rapists, seducers and defamers* all pay for their crimes - pain, humiliation, degradation - through fines and not through land.   Those who mix teruma with non-teruma, those who pour wine for idolatrous libations, and those who damage property in a way that is invisible but cause a change in its status also pay for their transgressions through fines.  However, the Sages instituted payment through land but only when the damage was unintentional and when the person who caused the damage was alive.

Rabbi Chiyya had suggested twenty-four primary sources. The Gemara walks through some of his examples as well. The rabbis suggest that defamers are included in this list only because they are usually included when discussing rapists and seducers.  A husband who defames his wife pays the fixed sum of one hundred silver shekels.  This does not meet the definition of a 'fine'.  Defaming is simply speaking.  Speech would have to be accompanied by an action to warrant a more serious consequence.  The rabbis suggest that a man might have had intercourse with his wife just before he defamed her.

We are again introduced to the rabbis' questions about distinctions between the four primary sources of damage.  They compare one to another: are Ox and Maveh similar because they both involve living spirits?  And because both of them derive other subcategories?  Is Fire different from the others because it does not involve a living spirit?  Do they all involve forewarning?  Is Goring superior to the others because it demonstrates blunt evidence of damage?

The Gemara suggests some firm distinctions:

• Goring is present to distinguish between a tam animal and an animal that has been forewarned
• Eating and Trampling are present to exempt animals that cause damage in the public domain from any liability
• Pit is present to prove that there is no liability for the damage of vessels (or, for Rabbi Yehuda, for the death of a person) caused by an animal that falls into a pit
• Man is present specifically to demonstrate that there are four additional types of indemnity that reflect damage done to the value of a person who has been damaged
• Fire is present to teach that one is not liable for damages to a concealed object (except for Rabbi Yehuda's opinion)