Bava Kamma - Daf 62
- Damages of negligence or בידים, where the מזיק was unaware of the contents
Although Rebbe Yehudah ordinarily obligates paying for hidden items damaged by fire, if someone receives permission to pile grain in his fellow’s field and hides items there, Rebbe Yehudah agrees the owner would be exempt if fire damaged those items, which were there without permission. Similarly, if permission was granted to pile wheat, but he stacked barley, or the reverse, or he covered over a wheat pile with barley, or the reverse, he only pays the value of barley. Rava says that if someone gives a gold dinar to a woman to guard, but tells her it is silver, and she then damages it with her hands, she must pay the full value of gold, because he can say to her: מאי הוה ליך גביה דאזקתיה – what did you have against [this coin] that you damaged it? However, if she was merely negligent in guarding it, she only pays the value of silver, because she can say: נטירותא דכספא קבילי עלי – I accepted on myself guarding of silver; נטירותא דדהבא לא קבילי עלי – I did not accept on myself a guarding of gold. [The above case of fire is also considered damage through negligence]
- Placing a ner Chanukah in harm’s way
The next Mishnah teaches that if a camel bearing flax walked near a store, and the flax entered the store and was ignited by the storeowner’s lamp, the camel’s owner pays for any damages. But if the storeowner left his lamp outside the store, he is liable for the damages. Rebbe Yehudah says: בנר חנוכה פטור – Regarding a ner Chanukah, he is exempt, since he has permission to place it there for the mitzvah.
Rava suggested that this ruling proves that נר חנוכה מצוה להניחה בתוך עשרה – it is a mitzvah to place the ner Chanukah within ten tefachim of the ground, because otherwise, the damaged party could say that he should have placed the ner above the height of the camel and its rider, out of harm’s way!? The Gemara rejects this proof, because even if he could put it above ten tefachim, כיון דבמצוה קא עסיק – since he is occupied in performing a mitzvah, כולי האי לא אטרחוה רבנן – the Rabbis did not trouble him so much to place the ner at such a height.
- If ד' וה' is paid in the case of טוען טענת גנב
The seventh Perek begins: מרובה מדת תשלומי כפל ממדת תשלומי ארבעה וחמשה – The rule of double payment for a thief is more inclusive than the rule of fourfold of fivefold payment made if the thief sold or shechted stolen ox or sheep. כפל applies both to living beings and inanimate items, where ד' וה' only apply to an ox or sheep. The Gemara notes that the Mishnah did not mention another way כפל is more inclusive: כפל is paid both by a thief, and by a טוען טענת גנב – a שומר who makes a claim and swears about a thief having stolen the item in his care, when in fact the שומר had retained it for himself, as opposed to ד' וה', which would not be paid by a טוען טענת גנב who subsequently shechted or sold the animal in his care. This omission supports Rebbe Chiya bar Abba’s ruling, that a טוען טענת גנב does pay ד' וה'. Others say this proof was deflected, because the Mishnah does not say "אין בין" – “There is no difference between them except…” The Mishnah taught one difference, but there may be others.
