Bava Kamma: Between Strict Liability and Negligence

A working principle of many legal theorists is that systems of law tend to evolve in predictable, or at least coherent, ways, and that tort law typically develops from strict liability to a form of liability that considers negligence.

Strict Liability refers to systems that require compensation for all damages even when the loss is not intentional or negligently inflicted.^[1]

Systems of Negligence take into account various subjective features of the tort that reflect the moral quality of the defendants’ actions. In systems of negligence, liability is imposed only when behavior creates foreseeable risks to the person or property of others, without taking the standard precautions.^[2]

In the following discussion, I will try to illustrate how rabbinic tort law applied these two models of liability, and how it evolved over the various generations of talmudic sages in tractate Bava Kamma.

The Mishnah and Strict Liability: Where does it Stand?

The Mishnah is an apodictic legal compilation that does not normally explicate its underlying legal principles.  It is not fully consistent, even in its anonymous stratum.^[3] Regarding torts, m. Bava Kamma sometimes assumes a standard of strict liability, and elsewhere considers negligence as a factor.

M. Bava Kamma 2:6 clearly and categorically ascribes to strict liability:

אדם מועד לעולם בין שוגג בין מזיד ^[4] בין ער בין ישן סימא את עין חברו ושבר את הכלים משלם נזק שלם

A person is always forewarned whether for inadvertent or intentional [acts], whether awake or asleep. If he blinded his friend’s eye or broke vessels,  he pays full compensation.^[5]

According to this mishnah, people are always “forewarned” and liable, whether the action was accidental or intentional, even for non-volitional acts such as those performed while sleeping. In other words, liability is imposed even in the absence of fault.

Negligence as a Factor: m. Bava Kamma 1:1 and 3:1

Yet, most of m. Bava Kamma, as well as its Tosefta, consider different degrees of risk and negligence, indicating a system that indeed determines liability based on fault. Already in the first mishnah of Bava Kamma, fault and negligence seem to function as the source of liability for injury that occurs through one’s actions or property:

ארבעה אבות נזיקים השור והבור והמבעה וההבער … הצד השוה שבהן שדרכן להזיק ושמירתן עליך וכשהזיק חב המזיק לשלם תשלומי נזק במיטב הארץ:

There are four principal causes of tort (expressly mentioned in the Scripture): the ox; the (uncovered) pit; the mav‘eh;^[6]  and the fire… Common to all is that they are prone to doing damage, and they have to be under your watch, and if damage is done, the tortfeasor (i.e., someone who commits a tort) must pay from the best of his land.

The four primary categories of damages listed are divided between those that are caused by the legs and tooth of an ox, a pit, or a fire.^[7] These four types of damages characterize a system that favors negligence in torts by virtue of the fact that all “are prone to doing damage, and they have to be under your watch.” The primary categories thus refer to properties that carry a high likelihood of potential risk for causing injury and must therefore be guarded to ensure that they do not. As such, one is liable for damages that occur because of an obstacle (such as a pit) that he has created in the public thoroughfare or through the everyday activities of his animals.

The third chapter of m. Bava Kamma also discusses how to determine tort liability with the underlying assumption that an actor’s levels of fault and negligence are key. Did one adequately secure his property, engage in an inherently dangerous activity, or follow expected norms when operating in a public domain? M. Bava Kamma 3:1 (which is cited and discussed in detail in Part 2) rules that one who stumbles upon and subsequently breaks a jug that was left out in the public domain is absolved from legal responsibility, presumably because he did not purposely act to harm another’s property and is thus not at fault.

The Bavli and Yerushlami’s Diverging Harmonizations

As is often the case when tannaitic sources appear to conflict, the Talmudim harmonize them by reading one source in light of the other.^[8] Here, the Bavli reinterprets m. Bava Kamma 3:1 under the assumption that strict liability would apply; in other words, in accordance with 2:6. On the other hand, the Yerushalmi understands 2:6 in light of 3:1, so that fault and negligence serve as the basis for legal responsibility.

The Yerushlami’s Preference for Fault

As the first third of the thirty-chapter long “tractate Nezikin,”^[9] y. Bava Kamma is particularly terse, containing baraitot and amoraic statements with little anonymous discussion.^[10]

Characteristically, the Yerushalmi contains little extended discussion of m. Bava Kamma 2:6. Still, that which is included severely limits its strict stance:

אמ’ ר’ יצחק. מתנית’ בשהיו שניהם ישינין. אבל אם היה אחד מהן ישן ובא חבירו לישן אצלו זה שבא לישן אצלו הוא המועד ^[11]

R. Isaac said: Our Mishnah involves [a case] in which two were asleep (having gone to sleep at the same time). But if one of them was sleeping and his fellow came and lay down next to him, this [person] who came and slept next to him is the forewarned.

Against the plain sense of the mishnah, R. Isaac^[12] understands m. Bava Kamma 2:6 to impose liability for damages done while sleeping only in the presence of fault; namely, where a person is aware of either another person or object nearby at the time that he goes to sleep. Only in such an instance must one be attentive to the possible damages that can occur through the natural movements during sleep, and take precautions to prevent such an outcome.  Otherwise, one is exempt from any damages that may result.^[13]

The Layers in the Bavli: From Strict Liability to a Fault-based System

The First Two Generations of Amoraim: Strict Liability

In contrast to the dominant view in amoraic Palestine, the first two generations of Babylonian amoraim did not assess liability from the point of view of negligence.  Rather, these sages seem to have maintained a doctrine of strict liability, consistently basing legal responsibility on objective standards, and imposing liability for all damages based solely on outcome, irrespective of the actor’s intention.

For its part, b. Bava Kamma 26b records the view of the first-generation amora, Hezekiah, who advances the strict liability stance already present in m. Bava Kamma 2:6:

אמר קרא פצע תחת פצע לחייבו על השוגג כמזיד ועל האונס כרצון

The biblical verse states “a wound for a wound,” in order to make one liable for inadvertent [harm] as intentional [harm], and coerced as willing [acts].

In this statement, Hezekiah has reread the mishnah’s clause “whether awake or asleep,” as an explicit, strict stance deeming coerced acts as equivalent to willing acts.

Third Generation Amoraim: Continuity and Transition

Following Hezekiah’s statement and related discussion, a similarly strict ruling attributed to the third generation rabbi, Rabbah, is recorded:

אמ’ רבה היתה אבן מונחת לו בחיקו ולא הכיר בה מעולם ועמד ונפלה לענין נזקין חייב לענין ארבעה דברים פטור…

Rabbah said: if someone had a stone resting on his lap, of which he had never been aware,^[14] and he got up and [the stone] fell, with regard to damages, he is liable; with regard to the [other] four things^[15] he is exempt…

In this passage, Rabbah bases responsibility for the damages on the fact that the stone’s motion is caused by the person’s actions – irrespective of fault, intent, or even awareness.^[16]

On the other hand, during the period of the third-generation of amoraim, more subjective considerations begin to emerge as well. More specifically, we begin to see a number of principles relating to the intention and foresight of the agent as well as the foreseeability of harm.

פשעתי and שוגג קרוב למזיד: Terms for Negligence Among Third Generation Amoraim

For example, a technical term for basic negligence, פשעתי, first appears in the rulings of the third-generation amoraim, R. Nahman b. Yaakov and R. Sheshet, who require an unpaid custodian who makes a claim that the item deposited with him was stolen, to take three oaths, including, “an oath that I was not negligent with it” (שבועה שלא פשעתי בה; b. Bava Kamma 107b).^[17] They are also reported as evincing a greater concern in concepts relating to intention in various cases concerning religious law.^[18]

Even Rabbah, who above applies a strict ruling, introduces the notion of gross or willful negligence, such as reckless disregard of a legal duty and of the consequences to another party, under the term שוגג קרוב למזיד – “an inadvertent act that is close to a deliberate act.”^[19]

This new growing interest in intention and negligence – as well as the apparent inconsistency in Rabbah’s rulings,  who ruled strictly about the stone but took negligence into account in the term שוגג קרוב למזיד – suggests that the third generation represents a transitional point between two different legal paradigm for determining liability; one more objective and one seemingly more case-specific.

Later Babylonian Amoraim: A Return to Fault and Negligence

A full break from the strict early amoraic stance does not seem to have occurred until the fourth-generation of Babylonian amoraim, when intent was introduced as a major factor in determining liability. This can be seen in rulings attributed to the leading fourth generation amora, Rava, who seems to have been the first to apply intention as the determining factor in a broad range of areas. Rava consistently looks to an agent’s intention in determining liability for torts as well as religious violations.^[20] He also distinguishes between negligent and intentional harm, assigning a lesser degree of liability in cases of negligence.

• In b. Bava Metzia 83a, Rava exempts a custodian from liability by taking the oath: שבועה שלא בכוונה שברתיה, “An oath that I did not break it intentionally,”^[21] despite the appearance of negligence.

• In b. Bava Mezia 96b he rules that a borrower does not need to compensate the lender for damages that occur while the borrowed property is in his care, provided that it was utilized in its typical way. This contrasts with the first generation amora, Rav, who held the borrower accountable in all instances.

• In b. Bava Kamma 62a, Rava distinguishes between damages resulting from negligence and hence indirect contact versus damages which one directly and knowingly causes, mandating a greater degree of compensation in the latter.^[22]

In rulings of the last generations of amoraim and within the later anonymous material, the idea that intention was a key factor is taken as a given and elaborated upon extensively.^[23]

A Concluding Note about Context

The Babylonian sages initially adopted a system of strict liability even though it was discordant with a good deal of mishnaic dicta and at odds with their Palestinian contemporaries. Only over the course of a number of generations did it return to a system of negligence and fault.

A number of factors may help explain the difference between these positions. Daniel Sperber notes that it was the accepted practice in Roman-Palestine for venders to exhibit their wares outside the confines of their shops, making the narrow public thoroughfares so crowded with merchandise that it blocked the flow of traffic.^[24] The position espoused by the Palestinian rabbis thus conforms to the historical conditions of their time—the unreasonably crowded thoroughfares made the chances of collisions likely and, hence, pedestrians blameless.

The historical record of Sasanian Persia, where the rabbis of the Bavli resided, however, is far less clear. While we may point to the possible influence of Zoroastrian law, which developed in a similar trajectory, gradually incorporating negligence and intention into legal rulings, more internal considerations might be at play as well, such as the inconsistent rulings of the mishnayot described above.^[25] What this rabbinic discussion demonstrates is that different systems of liability can be explained as stemming from diverse interpretations of a single authoritative text, which may in turn be motivated by historical factors such as the dominant secular legal system, as well as societal needs.

This initial rupture with Palestinian rabbinic tradition was ultimately mended by the fourth and fifth-generations of Babylonian amoraim, perhaps as a result of the combination of a number of factors:  a natural progression in legal thinking, the increasing influence of Palestinian teachings in some of the Babylonian schools, and a refocused attention on the plain-sense readings of the Mishnah. In Babylonia, at least, intentional and purposeful behavior ultimately became the measuring stick for determining a person’s culpability.

Appendix

A Case Study B. Bava Kamma 27b

The development from strict liability to negligence can only be fully demonstrated by comparing numerous rulings scattered throughout the Bavli. Nevertheless, one particular sugya, b. Bava Kamma 27b, does capture the shift quite clearly.^[26] In its final form – that is following redaction – this sugya illustrates how succeeding generations of amoraim understood one mishnah (m. Bava Kamma 3:1) very differently from one another, based on the system of liability to which they subscribed.^[27] By paying careful attention to the various layers of opinions in the Talmud, I will attempt to uncover the intellectual history of one strand of rabbinic jurisprudence.

b. Bava Kamma 27b: A Chiastic Sugya

^{משנה מסכת בבא קמא ג:א} המניח את הכד ברשות הרבים ובא אחר וניתקל בה ושיברה פטור ואם הוזק בה בעל החבית חייב בניזקו

^{m. Bava Qamma 3:1:} One who leaves a jug in the public domain, and another comes, stumbles upon it and breaks it, he (the one who breaks it) is absolved [from paying for the broken jug]. If he is injured by it, the owner of the jug is obligated to pay for his injury.

^{בבלי בבא קמא כז א- ב:} (A) אמאי פטור לימא ליה איבעי לך עיוני ומיזל

^{b. Bava Qamma 27a-b} (A) Why is he (i.e. the pedestrian who stumbles, as described in m.B.Q. 3:1) exempt? Let him (the jug owner) say to him: You should have looked while you walked?!

(B) אמרי בי רב משמיה דרב בממלא רשות הרבים כולה חביות

(B) They said at the school of Rav in the name of Rav: [the Mishnah speaks of a case] where the whole public domain is filled with jugs.

ושמואל אמ’ באפלה שנו;

Shmuel said: they taught [this ruling in a case where the public domain is] in darkness.

ר’ יוחנן אמ’ בקרן זוית שנו

R. Yohanan said: they taught [that the pitcher was placed] at a corner.

C) אמ’ רב פפא לא דיקא מתני’ אלא או כשמואל או כר’ יוחנן

(C) R. Papa said: Our Mishnah is not precise unless [we interpret it] according to Shmuel or R. Yohanan,

דאי כרב מאי אריא נתקל אפלו שבר נמי

for if [we explain it] like Rav, why [does the Mishnah] specify ‘stumble’- even if he broke it, [he would] also be [exempt]?

(D) אמ’ רב זביד משמיה דרבא הוא הדין דאפלו שבר נמי.

(D) R. Zebid said in the name of Rava: “that is the law that even if [the pedestrian directly] broke [the jug], [he is] also [exempt].”

והאי דקתני נתקל משום דקא בעי למתנא סופא…

And [the reason] that the Mishnah teaches ‘stumbles’ is because it wanted to state the latter clause [of the Mishnah:] …

(E) אמ’ ליה ר’ אבא לרב אשי אמרי במערבא משמיה דר’ אלעאי לפי שאין דרכן של בני אדם להתבונן בדרכים

(E) R. Abba said to R. Ashi: They say in the West in the name of R. Ilai: because it is not the norm for people to pay attention on the roads.

(F) הוה עובדא בנהרדעא וחייב שמואל בפומבדיתא וחייב רבה

(F) There was an incident (like the simple case of the Mishnah) in Nehardea and Shmuel made [him] liable. In Pumbedita and Rabbah made [him] liable.

(G) בשלמא שמואל כשמעתיה אלא רבה לימא כשמואל סבירא ליה

(G) Shmuel’s [ruling] accords well with his own teaching. But as for Rabbah, should we say that he holds like Shmuel?

(H) אמ’ רב פפא התם קרנא דעצרא הוה כיון דברשות קא עבדי איבעי ליה עיוני ומיזל

(H) R. Papa said: There, it was on a corner of a press, since he did it (i.e. the owner of the jug left it out) with permission [the pedestrian] was required to look as he walked.

The shift that is presented in the sugya is underscored by its chiastic structure:^[28] A)=(H) both state that pedestrians are required to look as they walk; (B,C)=(F,G) discuss and question the early amoraic strict stance; and (C)=(D) report the later Babylonian amoraic and Palestinian rulings, which take fault into account. The placement of the late Babylonian and Palestinian positions in the center – which makes them the focal point of the sugya – highlights their importance to the Bavli’s redactors. This will become evident below.

A Step by Step of the Sugya: Progressing from Strict Liability (A-B)

בבלי בבא קמא כז : (A) אמאי פטור לימא ליה איבעי לך עיוני ומיזל

^{b. Bava Qamma 27a-b} (A) Why is he (i.e. the pedestrian who stumbles, as described in m.B.Q. 3:1) exempt? Let him (the jug owner) say to him: You should have looked while you walked?!

(B) אמרי בי רב משמיה דרב בממלא רשות הרבים כולה חביות

(B) They said at the school of Rav in the name of Rav: [the Mishnah speaks of a case] where the whole public domain is filled with jugs.

ושמואל אמ’ באפלה שנו;

Shmuel said: they taught [this ruling in a case where the public domain is] in darkness.

ר’ יוחנן אמ’ בקרן זוית שנו

R. Yohanan said: they taught [that the pitcher was placed] at a corner.

Consistent with what we described of the mishnah’s general approach, m. Bava Kamma 3:1 appears to straightforwardly exempt a pedestrian from damage he inadvertently causes to a jug left in the public thoroughfare. Fault is rather on the part of the jug-owner who is responsible for leaving his property out in harm’s way.

The first step in the Bavli (A), however, has the anonymous redactors express surprise at this ruling.^[29] The underlying assumption in this question is that the pedestrian should be liable for the damages his actions directly cause, irrespective of his lack of intent to cause damage. In such a case, an unintentional fall is not sufficient to absolve a tortfeasor from responsibility for the damage.^[30]

Furthermore, in the next section (B) the earlier amoraim Rav, Shmuel, and R. Yohanan, interpret the mishnah to conform to a doctrine of strict liability, such that in its unqualified form, the case as presented in the mishnah would find the pedestrian culpable.^[31]

(C) אמ’ רב פפא לא דיקא מתני’ אלא או כשמואל או כר’ יוחנן

(C) R. Papa said: Our Mishnah is not precise unless [we interpret it] according to Shmuel or R. Yohanan,

דאי כרב מאי אריא נתקל אפלו שבר נמי

for if [we explain it] like Rav, why [does the Mishnah] specify ‘stumble’- even if he broke it, [he would] also be [exempt]?

(D) אמ’ רב זביד משמיה דרבא הוא הדין דאפלו שבר נמי. 

(D) R. Zebid said in the name of Rava: “that is the law that even if [the pedestrian directly] broke [the jug], [he is] also [exempt].”

והאי דקתני נתקל משום דקא בעי למתנא סופא…

And [the reason] that the Mishnah teaches ‘stumbles’ is because it wanted to state the latter clause [of the Mishnah:] …

R. Papa (fifth-generation amora and student of Rava) subsequently challenges the interpretation of Rav (C). R. Papa argues that according to Rav’s explanation that a pedestrian is exempt from accidentally breaking a jug only in a public domain that is filled with jugs, he should be exempt even if he intentionally breaks a jug in order to walk there.^[32]

R. Zebid either responds to R. Papa’s objection—affirming that Rav’s case complies with the Mishnah—^[33] or offers an alternate, independent interpretation of the Mishnah, by reporting a ruling of Rava (D).^[34] If Rava’s statement is indeed independent, that indicates that Rava always exempts pedestrians for damages they cause; even if the domain is not filled with jugs, or in darkness, etc. This would mean that Rava’s position is a radical departure from the early amoraic one since the pedestrian is never deemed responsible.^[35]

R. Papa’s more apparent rejection of the earlier position is evidenced in his interpretation of a ruling reported in the name of the third-generation amora, Rabbah, in which the latter imposes liability on a pedestrian in a case comparable to the one presented in the mishnah (F, H):

(F) הוה עובדא בנהרדעא וחייב שמואל בפומבדיתא וחייב רבה 

 (F) There was an incident (like the simple case of the Mishnah) in Nehardea and Shmuel made [one] liable. In Pumbedita and Rabbah made one liable.

(G) בשלמא שמואל כשמעתיה אלא רבה לימא כשמואל סבירא ליה

(G) Shmuel’s [ruling] accords well, [for he is following] his [own] teaching. But as for Rabbah, should we say that he holds like Shmuel?

(H) אמ’ רב פפא התם קרנא דעצרא הוה כיון דברשות קא עבדי איבעי ליה עיוני ומיזל

(H) R. Papa said: There, it was on a corner of a press, since he did it (i.e. the owner of the jug left it out) with permission [the pedestrian] was required to look as he walked.

R. Papa interprets a ruling reported in the name of Rabbah, in which he imposed liability on a pedestrian in a case comparable to the one presented in the mishnah. While this decision of Rabbah is entirely consistent with his ruling we have noted above, which assigns liability in the absence of fault, R. Papa limited Rabbah’s ruling to a case in which the owner of the jug has permission to leave his jug out and the pedestrian is therefore expected to proceed with caution. In all other instances R. Papa understood Rabbah to exempt a pedestrian.

R. Zebid and R. Papa’s statements are followed by R. Abba’s report to R. Ashi (E),^[36] of another interpretation of the mishnah in the name of the third-generation Palestinian amora, R. Ilai “from the West,” which has a similar connotation.^[37]

(E) אמ’ ליה ר’ אבא לרב אשי אמרי במערבא משמיה דר’ אלעאי לפי שאין דרכן של בני אדם להתבונן בדרכים

(E) R. Abba said to R. Ashi: They say in the West in the name of R. Ilai: because it is not the norm for people to pay attention on the roads.

This Palestinian tradition of the mishnah, consistent with and corroborated by the Yerushalmi, conforms with its more natural reading and exempts the pedestrian, even though his actions directly cause the damage, because he is within his rights as a pedestrian when passing through and hence not accountable for its consequences.^[38]

Thus, this sugya is organized around a clear progression of the Babylonian amoraim’s system of liability that can be summed up as follows:

Generation 1-3:  Rav, Shmuel, R. Yohanan, Rabbah

Jug-owner	Pedestrian
Only liable when create an impossible situation- harm is in essence a result of the dangerous condition initially created by the first party, making the intervening act inconsequential	Liable under normal circumstances- directly causes damage

Generation 4: Rava

Jug-owner	Pedestrian
Liable- his negligence caused the damage.	Always exempt- even if he directly (and it would seem intentionally) breaks the jug.

Generation  5:  R. Pappa, R. Abba, R. Ilai

Jug-owner	Pedestrian
Normally liable unless he has permission to leave his jugs out.	Normally exempt- since not expected to pay attention (therefore not negligent), unless owner has permission- then he is expected to take precautions- it doesn’t matter who is the direct cause, what matters is who is at fault- who is expected to take precautions (i.e. negligence)