Bava Kamma 26
Our Gemara and Mishna on Amud Aleph discuss the idea of “adam mu’ad Ll’olam,” meaning the legal status of a person is always that of one forewarned. Therefore, “whether the damage caused by a person was unintentional or intentional, whether he was awake while he caused the damage or asleep, whether he blinded another’s eye or broke vessels, he must pay the full cost of the damage.”
There is a three-way dispute amongst the Rishonim as to the extent of this liability. According to Tosafos (ibid 27b “U’Shmuel”) a person is liable for damage that results from lacking some degree of watchfulness, but not necessarily excessive caution. Tosafos compares this to the liability of a voluntary watchman, who is liable for accidental loss, but not for theft. The theory being that, although he could have been even more careful, the theft came about from the active plotting of a nefarious party in contradistinction to a situation where the object gets lost, which, while unintentional, still has some negligence mixed in with it.
On the other end of the spectrum we have Ramban’s opinion (Bava Metzia 82b) that a person is liable for all damages that result from his behavior, even if it was completely out of his control, and there was zero negligence. Finally, we have the middle opinion of the Nimukei Yosef in our Gemara, who holds that a person is not liable for damages that were utterly out of the person’s control, but if somehow it could have been prevented, he is still liable, even if there was no negligence.
In any case, we see a powerful, moral imperative that holds a person liable to a high standard. The Shelah (Shenei Luchos HaBeris, Torah Shebiksav, Balak, Derech Chayim) explains that a person is responsible to use his intellect to “connect the dots,” so as not to miss clues and warning signs. This is why Bilaam characterized himself as a sinner for not noticing the angel, even though he did not see him. Because he should have paid attention to the signs of distress that his donkey was showing. Furthermore, Shelah (Asara Maamaros, fourth maamar) explains that we therefore see that the degree of intellectual development incurs a proportionate greater liability for one’s actions. Just as a human is more liable than an animal, so too the more intellectually and spiritually developed, the more that person is liable. This is why we have the well-known principle that G-d is more exacting with the righteous (Yevamos 121b).
One might wonder, why is it all worth it? Why work to attain a higher intellectual or spiritual level if it incurs greater liability. The answer is that there is a universal principle of risk/reward ratio. It is fascinating to note that when one sees a pattern repeat itself throughout the material and spiritual world, it is probably indicative of a deep, G-dly truth. No matter whether you are investing in stocks, or making an effort to preserve and promote your health, or if you are trying to develop intimacy and love, or if you’re trying to become more religious, the more you risk, the more you stand to gain. The less you risk, the safer you might be, but there will be less opportunity for gain. I am unaware of any exception to this rule in any part of life.
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Bava Kamma 27:
The Optics of Retaliation and Rescue from Enemies
Our Gemara on Amud Beis discusses the principle of “avid inish dina lenafshe,” meaning to the extent that a person can take the law into his own hands to protect, or recover his possessions. There are times where it may be permitted to even resort to violence to protect one’s possessions (see Shulchan Aruch C”M 4). Of course, the potential for vigilantism and rationalization for out of control behavior is considerable, so one should be both well-versed in the laws, consult with competent poskim, and have sufficient self-control and judgment before doing so.
Our Gemara discusses a story where the person was technically justified in taking matters into his own hands to recover something that was rightfully his. However, the sage Ben Bag Bag ruled that if it has the appearance of theft – such as by stealthily entering into the person’s property – it would still be forbidden because of the optics. It is not good for people to see others behave in a manner that appears sinful and lawless.
Be’er Yosef (Kedoshim) finds scriptural support for this. There are verses in the Torah that the Sages say refer to theft of objects, but also verses that refer to human theft, i.e. kidnapping. Gemara Sanhedrin (86a) states that the verse in Shemos (20:13) “(You – singular), Do not steal” refers to kidnapping. And the verse in Vayikra (19:11) “(You – plural), Do not steal” refers to theft of objects. Unlike English, Hebrew has a plural verb form and singular verb form. Thus, the first verse regarding kidnapping is singular (“lo signov”), and the second verse referring to ordinary theft is plural (“lo signovu”). Be’er Yosef says this hints at Ben Bag Bag’s principle. The provision against ordinary theft is said in a plural form to remind even the victim to be careful not to retaliate by stealing back. However, since the first verse is referring to kidnapping, which is considered a capital offense, one would be permitted to retaliate and engage in any means necessary to rescue the victim. Therefore, it is stated in the singular form and is only addressing the thief not the victim.
I cannot help reflecting on the current situation regarding Israel, Hamas, and world opinion. Bizarrely, the world holds Israel to a twisted moral standard, that they should not defend and even retaliate to protect themselves from a sworn enemy, that has no interest other than our complete annihilation in the cruelest and inhumane manner. Lest we be tempted to worry about the optics, because it has the appearance of impropriety, let us remind ourselves of the words of the Be’er Yosef. When it comes to saving lives, we are not concerned about appearances.
