On today’s daf, we encounter a mishnah that opens with the following:
Anything I became responsible for safeguarding, (if it causes damage, it is considered as if) I facilitated that damage. If I facilitated part of the damage, I am liable for payments for damage as if I were the one who facilitated the entire damage.
According to the mishnah, a person safeguarding something is responsible to pay for any damage it causes as if the guardian had caused the damage herself. This is not entirely new information. We have been learning about responsibility for damage caused by one’s property since the beginning of the tractate. What is new here is that responsibility belongs not only to the owner of the property but its guardian, which implies that one should not turn over responsibility for safekeeping potentially dangerous property to someone incompetent.
This point is further stressed in the following beraita (early rabbinic teaching) cited by the Gemara.
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Anything for which I became responsible for safeguarding it, (if it causes damage, it is as if) I actively facilitated that damage. How so? An ox or a pit that one transferred to a deaf-mute, an imbecile, or a minor, and it caused damage, the owner is liable to pay for the damage, which is not so by a fire.
The beraita is clear that if someone entrusts property to someone incapable of keeping it from causing harm, the owner is responsible for payment if it does in fact cause damage. But the beraita differentiates the categories of ox (or any animal) and pit (immovable property) from fire, ruling that the owner is not responsible even if he leaves the fire with a deaf-mute, a minor or an imbecile.
The Gemara wonders about this difference, citing this teaching from Reish Lakish:
Didn’t Reish Lakish say in the name of Hizkiyya: They taught (that one is exempt from damage caused by fire) only where he transferred an ember (to one of limited halakhic competence) who then fanned it. But a flame, he is liable. What is the reason? Because the damage is certain.
According to Hizkiyya, the fire exemption only applies when one transfers an ember to an incompetent person who then fans it into a flame that causes damage. If he transfers a flame, he is liable. But how can it be that a person who leaves a flame with an incompetent guardian such as a child or a mentally unfit person (a category that, in the time of the Talmud, included a deaf-mute) is responsible for the damage, but isn’t responsible for an ember which can turn into a fire if that incompetent guardian blows on it?
The Gemara next attempts to resolve the matter of who, if anyone, is responsible for damage if an ox, a pit, or a fire are put in the care of an incompetent guardian. The matter seems to hinge on whether the item, left to its own accord, is likely to cause damage, or if it needs to be helped along by an incompetent guardian. Further down the daf, the Gemara notes that the typical ox will try to free itself from its bounds and become untethered, and the typical pit may become uncovered if the cloth on top of it blows off in the wind. If either of those things happens, any subsequent damage is not the guardian’s fault, as the owner should have foreseen the possibility. With fire, however, the potential for danger depends on how it’s handled. In the case of an ember, its nature is to become progressively dimmer unless someone blows on it to keep it going.
At one time or another, most of us have been in a position to safeguard something for somebody else. While it’s unlikely we would be looking after an ox, we certainly could be asked to keep an eye on a construction project that involves an open pit or an unfilled swimming pool, or a fire in a barbecue.
On today’s daf, the Talmud cautions that if we’re tasked with keeping an eye on something potentially dangerous, and we need to step away and ask someone else to do it, we need to make absolutely sure that our substitute is able to guard it as capably as we would ourselves, or suffer the monetary consequences for our failure to do so.
Read all of Bava Kamma 9 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on November 11th, 2023. If you are interested in receiving the newsletter, sign up here.
