Evaluating Damages by Comparing to another Field (Bava Kama 58b)

 

Mishna: How is payment made for the amount of damage done by it? By comparing the value of an area in that field requiring one se'a of seed as it was previously with what its worth is now. (Bava Kama 55b)

Gemara: From where is this derived? Rav Mattena said: The verse says: "And shall feed in another man's field" – to teach that the valuation should be made in conjunction with another field…. How is the valuation arrived at? Rabbi Yosi bar Chanina said: [The value of] an area requiring one se'a of seed [is determined] in proportion to the value of an area requiring sixty se'as of seed. Rabbi Yannai said: [The value of] an area requiring one tarkab of seed [is determined] in proportion to the value of an area requiring sixty tarkab of seed. Chizkiya said: [The value of] each stalk [consumed is determined] in proportion to the value of sixty such stalks…. The valuation is made neither of a kav by itself, as this would be too great an advantage to the person who suffered the damage, nor of a kav in conjunction with an area required for a kor of seed, as this would be too great a disadvantage for the person who suffered the damage. It must therefore be made only in conjunction with sixty [times as much]. (ibid. 58b)

            The Rambam in his commentary to our mishna explains the law of our mishna as follows:

This law is to find a middle point between the person who suffered the damage and the one who caused the damage. For had we said: what is the [retail] worth of this cubit where it ate the produce, he would be liable for a lot of money. And had we said: What is the [wholesale] worth of this field, which requires such-and-such se'as of seed, and afterwards we said: How much is it worth [wholesale] after a cubit of it was consumed – in that case the difference between the two valuations would be very small. Because, for the [wholesale] buyer, one cubit out of a thousand has no value. Therefore we valuate it in conjunction with sixty times [as much], as many measurements are with sixty times.[1]

            Attention should be paid to the fact that the leniency regarding valuation of the damage for the person who caused the damage is twofold. First, we do not assess the retail value of the produce that the animal ate, but rather the wholesale value of the field that is filled with produce. Second, we do not valuate separately the area where the damage was incurred, but rather sixty times as much.[2]

            Over the course of this shiur we will try to explain these leniencies.

I. The verse - consideration for the person who caused the damage or definition of the unit that suffered the damage?

            In explaining this leniency there is a built-in tension between the derivation that is cited in our passage and the rationale that is offered, not granting too great an advantage or too great a disadvantage to the person who suffered the damage (or as the Rambam formulated it: "To find the middle point between the person who suffered the damage and the one who caused the damage"). It would have been possible to suggest that the leniency of valuating the damage in terms of the depreciation of the value of the land is a Torah law derived from the verse, whereas the leniency of valuating a larger area is a rabbinic law designed to protect the person who caused the damage (so suggests the Torat Chayyim: "The measure of sixty is not written [in the Torah], but rather it is a rabbinic ordinance that comes to be lenient with the person who caused the damage").

The Rishonim, however, imply that the idea of protecting the person who caused the damage, which we will try to explain below, is the consideration that underlies the derivation. So writes the Rambam in his commentary to our mishna: "An allusion to this is found in what God said: 'And shall feed in another man's field.' And we learned by way of tradition that this teaches that we valuate the damage in conjunction with another field. This law comes to find the middle point between the person who suffered the damage and the one who caused the damage."

So too Rashi on our mishna writes: "We do not valuate the bed by itself, for this would cause a loss to the person who caused the damage for we would assess it according to its full value, and the Torah said: 'And shall feed in another man's field,' and this is expounded in the Gemara: This teaches that the valuation should be made in conjunction with another field" (The aforementioned Torat Chayyim continues to propose that both parts of the law are by rabbinic decree: "That which we have learned that the valuation should be made in conjunction with another field is by rabbinic law, for they said that we should be lenient with the person who caused the damage, and the verse is mere support).

            In another context, however, we find a different and sharper tension that underlies the leniency in our passage – not the tension between the rationale and the derivation, but the tension between the consideration shown to the interests of the parties and the fundamental law. This issue is discussed earlier on p. 47b:

Rava said: [In a case of an ox that has gored a cow and caused miscarriage] the valuation will not be made for the cow separately and for the calf separately, but the valuation will be made for the calf as at the time when it formed a part of the cow. For if you do not adopt this rule, you will be found to be making the person who caused the damage suffer unduly. The same method is followed in the case of the cutting off the hand of a neighbor's slave; and the same method is followed in the case of damage done to a neighbor's field (Rashi: If he cut his plantings or ate one bed, it is not valuated separately, but rather we valuate an area in that field requiring one se'a of seed as it was previously worth, and how much it depreciated because of this bed). Rav Acha the son of Rava said to Rav Ashi: If this is the law, let the person who caused the damage suffer. Because he (the one who caused damaged) can to say to him (the damaged party): Since it was a pregnant cow that I deprived you of, it is a pregnant cow that should be taken into valuation.

            Rava is combining three different laws regarding the valuation of damage. The first one is his novel ruling that he supports with the other two laws, which seem to be based on our mishna with respect to the field and on the mishna at the beginning of chapter 8 with respect to one who cuts off the hand of a neighbor's slave. According to these rulings, damage is valuated according to a larger unit than that which was actually damaged, and Rava explains these rulings saying that if we do not valuate the damage in this manner, we will cause the person who caused the damage to suffer unduly.

About this, Rav Acha the son of Rava asks: "If this is the law, let the person who caused the damage suffer." This question, at least according to the answer that is given, relates to the law that Rava introduced regarding one who caused damage to a calf in its mother's womb. The Gemara's answer to this question seems to be that Rava's ruling is valid regardless of consideration shown to the person who caused the damage – the unit that was damaged is in fact the cow and not the calf itself.

The Tosafot explain there (s.v. iy) that the Gemara already knew this argument regarding the field, which is one closed unit, and similarly regarding the slave, who of course comprises a single unit. The difficulty was with respect to the cow and its calf, which seem to be two separate bodies, and the answer is that there too we are dealing with damage caused to the pregnant calf. See Rosh (beginning of chapter Ha-Chovel) who writes that the source of these three rulings is the derivation in our passage: "And that we should be lenient regarding all valuations we learn from 'And shall feed in another man's field,' that the Torah said that a bed should be valuated in conjunction with the field." Indeed, we find in other passages that a general principle of leniency regarding the valuation of damage was learned from our passage.[3]

            It would seem that the question of Rav Acha the son of Rava challenges the idea that when we valuate the damage we should consider the suffering of the person who caused the damage. This challenge can exploit two weighty arguments in its favor. First, why should we show so much consideration to people who cause damage to other people's property? The second argument might appear even more decisive: damage should be valuated in objective manner, and no consideration should be shown in this context to the welfare of the person who caused the damage or to the welfare of the person who suffered the damage. These considerations make it impossible to arrive at an objective evaluation of the damage! As stated above, it might be argued that the Gemara's answer accepts this challenge, and explains that indeed the objective valuation of the damage is maintained, for the unit that suffered the damage is the field, and similarly the slave, and similarly the pregnant cow. See the Meiri, who writes:

All these rulings are a leniency for the person who caused the damage. It is not that we weaken the law for his benefit, but rather this is the law, that when a person damages part of a whole unit, we valuate how much the entire unit is worth with that unit, and how much it is worth without it.

            The "law" referred to by the Meiri is what I have called the "fundamental law" – a valuation of the damage in itself. As stated above, it is possible to understand the Gemara's answer as a rejection of the rationale "not to cause undue suffering" and replacing it with the idea of redefining the unit that was damaged.

            What can we do, however, when we see that our passage as well uses the rationale that we should not cause the person who suffered the damage too great an advantage or too great a disadvantage, and that the Rishonim emphasize this when they explain the basis of this law and also in the context of their detailed discussions of the matter, that one manner of valuation causes undue advantage to the person who suffered the damage and the other manner of valuation causes undue advantage to the person who caused the damage?

            Accordingly, we must explain the Gemara differently. According to this approach, the Gemara's conclusion on p. 47a does not replace the rationale of "not causing undue suffering," but rather it anchors it in what the Meiri calls the "law." Chazal did not want "to weaken the law" on behalf of the person who caused the damage or for the person who suffered the damage, i.e., to veer from the ordinary principles governing the laws of damage, that compensation must be offered in accordance with the value of the damage. But we should not think that defining the unit that suffered damage and evaluating the damage accordingly is an objective task, free of context, and inconsiderate of the parties.

There are many possible ways to define the unit that was damaged: the produce, the narrow piece of land, or the wider piece of land. None of these definitions are unreasonable. Selecting the definition is based on various considerations, including – and there is nothing wrong with this – the desire to balance the interests of the two parties, "to find a middle point between the person who suffered the damage and the one who caused the damage."[4] As the Tosafot explain, the Gemara already knew the conceptual possibility of defining the slave and the field as the units that suffered damage, but it had difficulty understanding the law in the case of the pregnant cow, where a similar possibility seemed "to weaken the law." Therefore the Gemara answers that there too the person who caused the damage can say: "It was a pregnant cow that I deprived you of."[5]

            This combination of finding a middle ground between the two parties and valuating the damaged property "in itself" stands at the heart of several discussions in our passage, and we shall touch upon this below. I first wish to explain why it is necessary to find a middle point.

II. Why is it important not to cause the person who caused the damage to suffer unduly?

            We rejected the second argument against the rationale of causing an advantage to the person who caused the damage, i.e., that the valuation must be made in an objective and impartial manner. But what about the first argument, that there is no reason to help the guilty party who is obligated to compensate the person who suffered the damage?

And we may ask further: isn’t one of the objectives of the laws of damage is to deter damage and encourage people to watch over their property more closely so that it not cause damage to others (as the Rambam writes in his Guide of the Perplexed III, 40: "Therefore we are held responsible for damage deriving from our animals, so that we should keep watch over them")? Does not a valuation that lightens the liability of the person who caused the damage interfere with this objective?

Another difficulty: aren’t we dealing with civil law, regarding which exercising leniency with respect to one party is thereby exercising stringency with respect to the other party? Refraining from causing undue suffering to the person who caused the damage automatically causes a certain suffering to the party who suffered the damage, in that he does not receive full compensation for his financial loss. Why is the Torah prepared to accept this suffering and find the middle point between the two parties?

            The simple and basic answer to these questions is that in the typical case of damage, the person who caused the damage is not a criminal, but rather the owner of an animal that he did not watch over as is required. We are often dealing with one level or another of negligence, which indeed justifies imposition of liability for the damage that was caused, but does not justify measures that will lead to financial ruin. Even in the most serious case, when a person cuts off his neighbor's hand,[6] we don't choose a manner of damage assessment that will impoverish him and keep him indebted to the person who suffered the damage for the rest of his life (this is connected to questions that will be clarified when we study chapter Ha-Chovel). Generally speaking, even the person who caused the damage is "one of us," and we must not let an isolated incident of damage prevent us from taking his interests into consideration.

            As for the question of deterrence, it may be argued – with certain reservations – that just as we must be on guard against insufficient deterrence that will lead to a situation that people do not watch over their animals, so must we be on guard against excessive deterrence. If the cost of relatively rare damage is too heavy to bear, it may be impossible for people to keep animals, or else they will be forced to invest unreasonable resources to watch over them. It is difficult to know when a certain level of precaution should be considered insufficient in light of the circumstances in question. What is more, there are those who maintain that the burden of proof regarding the quality of the precautions taken falls on the party who caused the damage.[7]

            And furthermore, just as we are interested in encouraging people to watch over their property so that it not cause damage, so too we want people to watch over their property so that it not suffer damage. The laws of damage do not obligate people to fence in their property so that animals cannot enter and cause damage,[8] but it is clear that such fencing would be effective.[9] Therefore, when people who could potentially suffer damage know that in a case of shein damage they are entitled to compensation, but this compensation will be determined at the minimum level, and in a certain sense will not restore them to the economic standing that they enjoyed prior to the damage, this can drive them as well to think about various ways to prevent damage, e.g., fencing in the field. Just like deterrence regarding those who might cause damage, this too has a certain benefit. This also provides somewhat of an answer to the third difficulty that I raised earlier, that the leniency for the person who caused the damage hurts the person who suffered the damage.

            Another answer to the third difficulty may be suggested, this too with certain reservations. In great measure, the laws of damage deal with the damage as a given, about which it must be decided who bears the liability. The non-imposition of liability means that the damage will be cast on the shoulders of the person who suffered the damage. Imposing liability means that we have decided that it is more just that the person who caused the damage should bear the liability for the damage.

In modern circumstances, where insurance is common, there are additional possibilities. This is the case, for example, in the State of Israel, which compels car owners to carry insurance for personal injury caused on the road. The economic burden of compensation for personal injury falls on the shoulders of the community of car owners who pay for the insurance.[10] This situation is one in which the cost of the damage is spread out among many people. There is a disadvantage with this, in that the principle of deterrence hardly exists at all, because the person causing the damage does not bear the economic price of that damage. On the other hand there is a certain advantage, in that the damage – at times too heavy to bear – does not fall on the shoulders of a single individual.

The Halakha does not make use of the institution of insurance, and so there is no real spreading of the cost of the damage (and the principle of deterrence is maintained). It is possible, however, that evaluating the damage in a manner that is lenient to the person who caused the damage leads to a certain division of the burden between the person who caused the damage and the person who suffered the damage. The person who suffered the damage receives basic compensation for the damage that was caused him, but the person who caused the damage does not face financial ruin.

            After having written this section, I found that the seeds of almost everything that I said are found in an article published in Daf Kesher almost eight years ago by our Rosh Yeshiva, Rav Yaakov Medan. It may be assumed that my thinking drew on his words, and so I bring them in their original formulation:[11]

Even though the Rishonim have said that a person must take greater precautions that he not cause damage to others than that he not suffer damage, this does not mean that a person is entirely exempt from taking precautions so that he not suffer damage. A person must not rely on the fact that he will be compensated by the person who caused the damage for the loss that he suffered. Damage is common and cannot always be controlled. If we always cast the full burden of responsibility on the party who caused the damage, and free the person suffering the damage from watching over his property, justice toward the party who caused the damage will suffer. Seven-fold will mercy suffer, if the person suffering the damage, indifferent to what is happening around him, comes out with all his money in his pocket, while payments that are difficult to meet are cast upon the party who caused the damage. For the party who caused the damage may have made efforts to watch over his property, but as it turned out those efforts did not suffice, even if this was his fault.

A certain division of the loss caused by the damage between the party who caused the damage and the person who suffered the damage, is liable at times, when there is no third-party insurance, to save the party who caused the damage from ruin and train the person who suffered the damage to watch over his property…

Let us briefly discuss the leniency stated regarding shein and regel damage, that the party who caused the damage does not pay for the bed [of produce] that he ate, but rather the difference [in value] between a field containing such a bed that was not damaged and the field as it is now after it has been damaged.

The assumption is that a significant portion of the value of the damage is swallowed up and erased in the comparison of whole fields. Here we are not dealing with an exemption from liability for damage, but with a leniency regarding the manner of calculating the payment. This leniency can only mean that our Sages clearly wished to be lenient with a person who caused damage.

We can understand this leniency based on what we said thus far. The Sages wished that the person who suffered the damage should share in the payment so that he watch over his property and to lighten the load on the person who caused the damage, who is not always fully responsible for what happened. Since we find certain leniencies granted to a person who caused damage regarding keren damage, bor damage and aish damage, the Sages searched for a way to be lenient also with a person who caused shein and regel damage…

The usual case of shein and regel damage that is discussed by Chazal involves damage that was not done intentionally, but rather as a result of negligence, which is not necessarily criminal negligence. The animal arrived on its own in the field of the person who suffered the damage and ate there without its owner's knowledge. It is possible that for this reason Chazal wished to be lenient with him, and expounded the verse, "the best of his field and the best of his vineyard," that the payment is calculated according to the entire field and the entire vineyard.

III. The owner of a single bed

            We learned from our passage that shein damage is valuated in the context of the entire field, according to the various viewpoints. We also saw that on p. 47a Rava likened this law to the law governing one who cuts off the hand of a slave and the law governing one who causes damage to a pregnant cow. The Tosafot there (s.v. iy) propose a novel idea regarding our passage: "The entire field, all of which belongs to the person who suffered the damage, is treated like a single unit." From this we learn that if the person who suffered the damage owns a single bed in a larger field, even though presumably the damage is evaluated with respect to the land (following Rashi), we consider only that single bed. However, Talmid Rabbeinu Tam (ad. loc.) was in doubt about this matter:

My teacher was in doubt whether we only say this about a cow and a calf belonging to one person, or whether the same laws applies where the cow belongs to one person and the calf belongs to another person. Similarly you find in a case where one causes damage to another person's field, if he damaged a bed belonging to Reuven in a field belonging to Shimon, do we valuate the bed separately as if there were nothing around it, or do we valuate it in conjunction with the field?

            From the wording of Chazal's derivation, "'And shall feed in another man's field' – to teach that the valuation should be made in conjunction with another field," it would be possible to conclude that this method of evaluation does not depend on the fact that the party who suffered the damage owns the entire field. It stands to reason, however, that the Tosafot rely on the two layers of the law in our passage that we saw above. As for the consideration of finding the middle point between the person who caused the damage and the person who suffered the damage, in this case the person who suffered the damage lost all of his produce and it cannot be said that part of the damage was swallowed up in the entirety of his fields. Therefore the Tosafot maintain that if we valuate the damage in conjunction with the field we will cause the party who suffered the damage to suffer unduly.

As for the definition of the unit that was damaged, which is the consideration upon which the Tosafot focus in the aforementioned passage, the Tosafot understand that ownership impacts on the definition of the unit, and in this case the unit that suffered the damage is the isolated bed.[12] Even if the animal damaged two beds of produce, one of which was independent and the other was part of a larger field, we are not dealing with a single incident of damage, but rather with two incidents of different natures – damage to a bed of produce and damage to a field of produce.

            What then is the rationale raised by Talmid Rabbeinu Tam not to say this? As for the consideration of finding the middle point, it may be argued that in such circumstances, where there exists the tension between not causing undue suffering to the party who caused the damage and causing slightly higher than usual suffering to the party who suffered the damage, priority should be given to not causing undue suffering to the party who caused the damage. Alternatively, it is possible that the consideration of finding the middle point merely fashioned a certain conceptual definition of the unit that suffered the damage, but in the end we cling to the definition of that unit even when it upsets the balance between the party who suffered the damage and the party who caused it.

What about the definition of the unit that suffered the damage in this context? Talmid Rabbeinu Tam might reject the idea of taking ownership into account as a component of the definition of the unit – the bed is part of the field and the party who caused the damage caused damage to the field, and it makes no difference who owns the particular piece of property. The matter might also be part of a broader issue.

            There is a question that arises in several contexts in the laws of damage: does the Torah obligate compensation for the damage done to the person or for the damage done to the article that was damaged. An interesting practical ramification of this is quoted in the name of Rav Chayyim Brisker. If a person owned the only two copies of a precious work, which owing to their rareness are each worth a million dollars, and someone caused damage to one of them, thus raising the value of the other one to two million dollars – an article worth a million dollars was ruined, but the owner's bank account suffered no loss.[13] There may be support found in various contexts to the understanding that the liability is for damage caused to the article.[14] If this is correct (and we must try to understand why this should be so), we can understand that the definition of the unit that suffered the damage is also not connected to ownership, for we are not dealing with damage to ownership, but rather with damage suffered by the property, which only at the stage of compensation is paid out to the owner.

IV. The law governing a person who caused damage

A certain person cut down a date-tree belonging to a neighbor. When he appeared before the Exilarch, the latter said to him: I myself saw the place; three date-trees stood close together and they were worth one hundred zuz. Go therefore and pay the other party thirty-three and a third [zuz]. The defendant said: What have I to do with an Exilarch who judges in accordance with Persian law? He therefore appeared before Rav Nahman, who said to him [that the valuation should be made] in conjunction with sixty [times as much]. Rava said to him: If the Sages ordained this valuation in the case of damage caused by one's property, would they do the same in the case of damage caused by a man with his own body? (58b)

            From the plain sense of the continuation of the Gemara, the implication is that the law is not in accordance with Rava, and that there is no difference between shein damage and damage caused by the person himself.[15] It is possible to understand that even Rava changed his mind and said that there is no difference, and this seems to follow from Rava's wording in the passage on p. 47a that we saw above.

            In any event, we must still try to understand Rava's original rationale to distinguish between the two. Based on the definition of the unit of damage, such a distinction seems to be difficult. Based on the tendency to be lenient with the party who caused the damage, on the other hand, there is no difficulty distinguishing. Thus, for example, writes Ri of Lunel in his novellae (ad loc., s.v. dekatz kashba) in his explanation of the Exilarch's ruling:

The Exilarch maintained that when the Torah said that the valuation is made in conjunction with the field so as not to cause the party who caused the damage to suffer unduly, this applies when his animal caused the damage. Since it has no intelligence, the Torah showed consideration to its owner. But regarding damage caused by his body, where he himself caused the damage, it is right to cause the party who caused the damage to suffer.

            We in fact we learned on p. 47a that there is room for leniency even when valuating damage caused by the person himself. However, at this stage Rava was of the opinion that the leniency is valid only with respect to the more indirect responsibility for damage caused by a person's property.

            As stated, on the face of it, there is no room for a distinction based on the definition of the unit of damage. What we have here then is priority given to concern for the party who caused the damage over the theoretical definition of the damage. It is possible that if in practice Rava's position has been rejected, this is precisely the reason.

            However, it is possible to suggest that even at the level of the definition of the unit of damage there is room for a distinction – not between damage caused by the person himself and damage caused by his property, but rather between shein and regel damage and the other primary categories of damage. On several occasions, our revered teacher, HaRav Lichtenstein, proposed an interesting explanation of the words "bi-sedei acher" ("in another man's field"). At first glance the Hebrew letter bet in the word "bi-sedei" serves as a bet of location – the site of the damage is another man's field. But HaRav Lichtenstein suggested that the bet denotes the object of the clause – the object of the damage is not the produce, but rather the field. The liability is for entering his property and causing damage to his field. According to this, it can certainly be understood that this is the definition of the unit of damage in shein and regel damage, while in the case of a person who caused damage, what suffered damage is the produce that he ruined. If in the end Rava's position was rejected, it may be argued that we learn from shein damage – the typical damage for a cultivated field – the general definition of damage to produce that is still connected to the ground.

            We have finished our passage, but our work is not done!  Our passage – the Gemara and the Rishonim – continues to develop the details of the laws governing the valuation of damage done to crops. In this context we cannot examine them all. Continue independently with the Gemara until the Mishna on p. 59b, and make use of the questions that we raised in this shiur.

I wish to add one point. Our passage deals with damage caused to produce, that is to say, property that stands to be sold and that cannot be fixed. When a person (or his animal) breaks a window in another person's house, he certainly does not pay the loss in value of the house.[16] The property can be fixed, and in such a situation the compensation paid is meant first and foremost to fix the damage, and therefore we valuate the cost of the window's repair, and not the negligible loss in value of the house (see Shakh, 95, no. 18).

Sources for the Next Shiur (no. 9)

            For next week's shiur please learn the Mishna "Ha-shole'ach et ha-be'eira" on p. 58b, and the Gemara until the next mishna.

1. The disagreement between Rabbi Yochanan and Resh Lakish regarding a flame – learn the Gemara with Rashi in the following places: Bava Kama 22a, "Itmar… leit beih mamasha"; 22b, "Ta shema ha-shole'ach et ha-be'eira" at least until "silta u-sheraga" (preferably until the colon on p. 23a); 9b, "Tanu rabbanan kol shechavti… de-cheresh ka garim." See also Tosafot 22b, s.v. chetzyo [9b, s.v. u-le-Rabbi].

2. In our passage, Tosafot, s.v. libta; Tosafot Rabbeinu Peretz, s.v. libto; Rashba, s.v. libto.

3. Regarding "liba ve-libta ha-ru'ach" see Tosafot 60a, s.v. liba; Rashba, s.v. Gemara tanu rabbanan [s.v. ve-amai].

4. Regarding "zoreh ve-ru'ach mesayato" see Rosh, no. 11; Rambam, Hilkhot Nizkei Mamon 14:7; Tosafot, s.v. ve-hakha.

, full_html, Attention should be paid to the fact that the leniency regarding valuation of the damage for the person who caused the damage is twofold.