Parshat Mishpatim – An error in the first Mishnah of Baba Kama?

It is perhaps the most important Mishnah of all, and the opening salvo in the Order of Nezikin/Damages:

ארבע אבות נזיקין השור ןהבור ןהמבעה וההבער

There are four master categories of damages the שור (ox), the בור (pit) the מבעה (?) and the הבער (fire).

The first, third and fourth terms are absolutely clear, and in sequential lockstep with their appearance in Parshat Mishpatim. Damage related to oxen is described in Exodus 21:25-32 and 35-36. Damage caused by a pit is in 21:4. Damage by fire is in 22:5.

Yet NOWHERE in Mishpatim, NOWHERE in the entire Torah, NOWHERE in the Hebrew lexicon – ancient to modern – can the word מבעה (mav’eh) be found.

The scholars of the Talmud (amoraim) were at a loss to make sense of this unknown word. Indeed, they go through incredible contortions and flights of fancy in their attempts to find anything even remotely cognate in Scripture. Ever since, thousands of gallons of ink have been spilt and countless hours in the yeshivahs and kollels have been expended on decoding this mysterious word מבעה (mav’eh) — to no avail.

Now there are two things we can pretty much assume:

  1. That Rabbi Judah the Prince (Rabbi Yehudah HaNassi) who redacted the Mishnah would make sure to use terms which were absolutely clear. IN PARTICULAR when he is referencing something that is bedrock Torah and not a rabbinical novelty. IN PARTICULAR when he is unambiguously following the sequence of these references in the Torah itself.

So why would he arbitrarily use a term know one knows and no one understands with which to label a master category , i.e. a category of damages that is a universal commonplace? Why would he – intentionally or not – trigger a Talmudic wild goose chase which, to this day, has never been resolutely concluded? How did he expect courts of law to adjudicate cases for a damage they had no way of comprehending?

This makes absolutely no sense.

Can it be that there is indeed no such word as מבעה (mav’eh) and that this word is simply the result of a drop of spilt ink?  For look at the word מבעה (mav’eh). It ends in a heh ה. A heh ה is identical to a resh ר except for the extra drop of ink in its lower left corner. Remove this drop of ink from the word מבעה (mav’eh) and we’re left with the word מבער (mav’er) which means to consume vegetation (i.e. consumption by a ruminant animal such as goats or sheep.)

Now THIS would make perfect sense – four master categories of damage: ox, pit, grazing and fire. For, indeed, illegal grazing has always been a problem. So much so, that shepherds were not trusted to bear witness as it was assumed they would routinely allow the flocks under their control to trespass on private fields where they would consume crops belonging to others. (Not always is such grazing illegal. Indeed – before the advent of the tractor and the lawn mower – unleashing goats in a field in order to clear it was the way it was done.)

Hence it would stand to reason that wanton damage caused by unsupervised livestock would be a master category of damage in an agrarian society.

But please do not take my word for it. Let us look at the text itself in Parshat Mishpatim. For right there – in between the verses for בור (pit) – 21:30-34 and הבער (fire) 22:5 we have verse 22:4 which reads as follows:

כי יבער איש שדה או כרם ושלח את בערה ובער בשדה אחר מיטב שדהו ומיטב כרמו ישלם

If a man causes a field or vineyard to be eaten (יבער), and shall let his beast (בערה ) loose, and it feed (ובער) in another man’s field; of the best of his own field, and of the best of his own vineyard, shall he make restitution.

BINGO! The word is question is indeed not מבעה which has absolutely no meaning whatsoever. It is מבער which appears (in three variants) in Parshat Mishpatim in the precise sequential order of our opening mishnah of Baba Kama.

So the question is why can a layman like myself – hardly a Brisker or even a garden variety bench presser – see this while no one else can? My only explanation is that this a simple error compounded by the hubris of modesty (yes, I did say ‘the hubris of modesty’)

Both in writing and phonetically, it is quite easy to misread (and mishear) the word mav’er as mav’eh. A tiny drop of ink readily turns that ר resh into a ה heh. But then a new problem emerges, that of a mindset which believes it is absolutely unacceptable to even consider the possibility that any rabbi from an earlier generation can possibly be wrong. Hence, once the mistake is made, it can never be a mistake. The error becomes engraved in stone and subsequent generations are compelled to ruminate their way through the Prophets and Scriptures like a ruminant goat hoping to decode what was just a simple mistake – regardless of how much damage they may cause as a result.

And now I must go out an purchase armored clothing, for the slings and brickbats will surely be hurtling my way from Meah Shearim, Geulah and Shaarei Chessed for having dared to speak out like the child in The Emperor’s New Clothes.

About the Author
J.J Gross is a veteran creative director and copywriter, who made aliyah in 2007 from New York. He is a graduate of the Hebrew University in Jerusalem and a lifelong student of Bible and Talmud. He is also the son of Holocaust survivors from Hungary and Slovakia.
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