The Babylonian Talmud
Baba Kamma

Talmud - Mas. Baba Kama 2a
CHAPTER 1
MISHNAH. THE PRINCIPAL CATEGORIES OF DAMAGE1 ARE FOUR: THE OX,2 THE PIT,3 THE 'SPOLIATOR' [MAB'EH]4 AND THE FIRE.5 THE ASPECTS OF THE OX ARE [IN SOME RESPECTS] NOT [OF SUCH LOW ORDER OF GRAVITY] AS THOSE OF THE 'SPOLIATOR';6 NOR ARE [IN OTHER RESPECTS] THOSE OF THE 'SPOLIATOR' [OF SUCH LOW ORDER OF GRAVITY] AS THOSE OF THE OX;6 NOR ARE THE ASPECTS OF EITHER OF THEM, IN WHICH THERE IS LIFE, [OF SUCH LOW ORDER OF GRAVITY] AS THOSE OF THE FIRE WHICH IS NOT ENDOWED WITH LIFE;6 NOR ARE THE ASPECTS OF ANY OF THESE, THE HABIT OF WHICH IS TO BE MOBILE AND DO DAMAGE, [OF SUCH LOW ORDERS OF GRAVITY] AS THOSE OF THE PIT OF WHICH IT IS NOT THE HABIT TO MOVE ABOUT AND DO DAMAGE.6 THE FEATURE COMMON TO THEM ALL IS THAT THEY ARE IN THE HABIT OF DOING DAMAGE; AND THAT THEY HAVE TO BE UNDER YOUR CONTROL SO THAT WHENEVER ANY ONE [OF THEM] DOES DAMAGE THE OFFENDER IS LIABLE TO INDEMNIFY WITH THE BEST OF HIS ESTATE.7
GEMARA. Seeing that PRINCIPAL CATEGORIES are specified, it must be assumed that there are derivatives. Are the latter equal in law to the former or not?
Regarding Sabbath we learnt: The principal classes of prohibited acts are forty less one.8 'Principal classes' implies that there must be subordinate classes. Here the latter do in law equal the former; for there is no difference between a principal and a subordinate [prohibited act] with respect either to the law of sin-offering9 or to that of capital punishment by stoning.10 In what respect then do the two classes differ? - The difference is that if one simultaneously committed either two principal [prohibited] acts or two subordinate acts one is liable [to bring a sin-offering] for each act, whereas if one committed a principal act together with its respective Subordinate, one is liable for one [offering] only. But according to R. Eliezer who imposes the liability [of an offering] for a subordinate act committed along with its Principal,11 to begin with why is the one termed 'Principal' and the other 'Subordinate'? - Such acts as were essential in the construction of the Tabernacle are termed 'Principal',12 whereas such as were not essential in the construction of the Tabernacle are termed 'Subordinate.'
Regarding Defilements we have learnt:13 The Primary Defilements: The [Dead] Reptile,14 the Semen Virile15
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(1) Explicitly dealt with in Scripture.
(2) Ex. XXI, 35.
(3) Ibid. 33.
(4) Cf. p. 9.
(5) Ex. XXII. 5.
(6) Hence the latter, if not specifically dealt with, would not have been derived from the former.
(7) When money is not tendered; cf. infra p. 33.
(8) Shab. VII, 2.
(9) Cf. Lev. IV, 27-35.
(10) Num. XV, 32-36.
(11) Shab. 75a.
(12) On account of their being stated in juxtaposition in Scripture; v. Ex. XXXV, 2-XXXVI, 7.
(13) Kel. I, 1.
(14) Lev. XI, 29-32.
(15) Ibid. XV, 17.
Talmud - Mas. Baba Kama 2b
and the Person who has been in contact with a human corpse.1 [In this connection] their Resultants2 are not equal to them in law; for a primary defilement3 contaminates both human beings and utensils,4 while Resultants defile only foods and drinks,5 leaving human beings and utensils undefiled.
Here [in connection with damages] what is the [relationship in] law [between the principal and the secondary kinds]? - Said R. Papa: Some of the derivatives are on a par with their Principals whereas others are not.
Our Rabbis taught: Three principal categories [of damage] have been identified in Scripture with Ox: The Horn, The Tooth, and The Foot. Where is the authority for 'Horn'? For our Rabbis taught: If it will gore.6 There is no 'goring' but with a horn, as it is said: And Zedekiah the son of Chenaanah made him horns of iron, and said, Thus saith the Lord, With these shalt thou gore the Arameans;7 and it is further said, His glory is like the firstling of his bullock, and his horns are like the horns of a unicorn: with them he shall gore the people together etc.8
Why that 'further' citation? - Because you might perhaps say that Pentateuchal teachings cannot be deduced from post-Pentateuchal texts;9 come therefore and hear: His glory is like the firstling of his bullock, and his horns are like the horns of a unicorn etc.8 But is that a [matter of] deduction? Is it not rather merely an elucidation of the term 'goring'10 as being effected by a horn?11 - [Were it not for the 'further' citation] you might say that the distinction made by Scripture between [the goring of a] Tam12 and [that of a] Mu'ad13 is confined to goring effected by a severed horn,14 whereas in the case of a horn still naturally attached, all goring is [habitual and consequently treated as of a] Mu'ad; come therefore and hear: His glory is like the firstling of his bullock, and his horns are like the horns of a unicorn, etc.8
What are the derivatives of Horn? - Collision, Biting, [malicious] Falling and Kicking.
Why this differentiation? If Goring is termed Principal because it is expressly written, If it will gore,15 why should this not apply to Collision, as it is also written, If it will collide?16 - That collision denotes goring, as it was taught: The text opens with collision16 and concludes with goring17 for the purpose of indicating that 'collision' here denotes 'goring'.
Why the differentiation between injury to man, regarding which it is written If it will gore,18 and injury to animal regarding which it is written if it will collide?19 - Man who possesses foresight is, as a rule, injured [only] by means of [wilful] 'goring',20 but an animal, lacking foresight, is injured by mere 'collision'. A [new] point is incidentally made known to us, that [an animal] Mu'ad to injure man is considered Mu'ad in regard to animal,21 whereas Mu'ad to injure animal is not considered Mu'ad in regard to man.20
'Biting': is not this a derivative of Tooth? - No; Tooth affords the animal gratification from the damage while Biting affords it no gratification from the damage.
'Falling and Kicking'; are not these derivatives of Foot? - No; the damage of foot occurs frequently while the damage of these does not occur frequently.
But what then are the derivatives which, R. Papa says, are not on a par with their Principals? He can hardly be said to refer to these, since what differentiation is possible? For just as Horn does its damage with intent and, being your property, is under your control, so also these [derivatives] do damage with intent and, being your property, are under your control! The derivatives of Horn are therefore equal to Horn, and R. Papa's statement refers to Tooth and Foot.
'Tooth' and 'Foot'- where in Scripture are they set down? - It is taught: And he shall send forth22 denotes Foot, as it is [elsewhere] expressed, That send forth the feet of the ox and the ass.23 And it shall consume22 denotes Tooth as [elsewhere] expressed, As the tooth consumeth
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(1) Num. XIX, 11-22.
(2) I.e., the objects rendered defiled by coming in contact with any Primary Defilement.
(3) Such as any one of these three and the others enumerated in Kelim I.
(4) Cf. Lev. XI, 32-33.
(5) V. ibid. 34.
(6) Ex. XXI, 28.
(7) I Kings XXII, 11.
(8) Deut. XXXIII, 17.
(9) [דברי קבלה 'words of tradition'; i.e. the teachings received on tradition from the prophets, a designation for non-Pentateuchal, primarily prophetic, texts. V. Bacher, op. cit., I, 166, II, 185.] The meaning of Ex. XXI, 28, should therefore not he deduced from I Kings XXII, 11.
(10) Which might surely he obtained even from post- Pentateuchal texts.
(11) Hence again why that 'further' citation?
(12) 'Innocuous,' i.e., an animal not having gored on more than three occasions; the payment for damage done on any of the first three incidents (of goring] is half of the total assessment and is realised out of the body of the animal that gored, cf. Ex. XXI, 35 and infra 16b.
(13) 'Cautioned,' i.e., after it had already gored three times, and its owner had been duly cautioned, the payment is for the whole damage and is realised out of the owner's general estate; v. Ex. XXI, 36, and infra 16b.
(14) As was the case in the first quotation from Kings.
(15) V. p. 2, n. 13.
(16) Ex. XXI, 35.
(17) Ibid. 36.
(18) V. p. 2, n. 13.
(19) V. p. 3; n. 10.
(20) As it is more difficult to injure a man than an animal.
(21) Cf. infra 205.
(22) Ex. XXII, 4.
(23) Isa. XXXII, 20.
Talmud - Mas. Baba Kama 3a
to entirety.1
The Master has [just] enunciated: 'And he shall send forth denotes Foot , as it is [elsewhere] expressed, That send forth the feet of the ox and the ass.' His reason then is that the Divine Law2 [also] says, That send forth the feet of the ox and the ass, but even were it not so, how else could you interpret the phrase?3 It could surely not refer to Horn which is already [elsewhere] set down,4 nor could it refer to Tooth since this is likewise [already] set down?3 - It was essential5 as otherwise it might have entered your mind to regard both [phrases]6 as denoting Tooth: the one when there is destruction of the corpus and the other when the corpus remains unaffected; it is therefore made known to us that this is not the case. Now that we have identified it with Foot, whence could be inferred the liability of Tooth in cases of non-destruction of the corpus? From the analogy of Foot;7 just as [in the case of] Foot no difference in law is made between destruction and non-destruction of corpus, so [in the case of] Tooth no distinction is made between destruction and non-destruction of corpus.
The Master has [just] enunciated: 'And it shall consume denotes Tooth, as elsewhere expressed, As the tooth consumeth to entirety.' His reason then is that the Divine Law [also] says, As the tooth consumeth to entirety, but even were it not so, how else could you interpret the phrase? It could surely not refer to Horn which is already elsewhere set down,4 nor could it refer to Foot, since this is likewise elsewhere set down?3 - It is essential,8 as otherwise it might have entered your mind to regard both phrases6 as denoting Foot: the one when the cattle went of its own accord and the other9 when it was sent by its owner [to do damage]; it is, therefore, made known to us that this is not so. Now that we have identified it with Tooth, whence could be inferred the liability of Foot in cases when the cattle went of its own accord? - From the analogy of Tooth;10 just as in the case of Tooth there is no difference in law whether the cattle went of its own accord or was sent by its owner, so [in the case of] Foot there is no difference in law whether the cattle went of its own accord or was sent by its owner.
But supposing Divine Law had only written, And he shall send forth,11 omitting And it shall consume, would it not imply both Foot and Tooth? Would it not imply Foot, as it is written, That send forth the feet of the ox and the ass? Again, would it not also imply Tooth, as it is written, And the teeth of beasts will I send upon them?12 - If there were no further expression I would have said either one or the other [might be meant], either Foot, as the damage done by it is of frequent occurrence, or Tooth, as the damage done by it affords gratification.13 Let us see now, they are equally balanced, let them then both be included, for which may you exclude?14 - It is essential [to have the further expression], for [otherwise] it might have entered your mind to assume that these laws [of liability] apply only to intentional trespass,15 exempting thus cases where the cattle went of its own accord; it is, therefore, made known to us that this is not the case.
The derivative of Tooth, what is it? - When [the cattle] rubbed itself against a wall for its own pleasure [and broke it down], or when it spoiled fruits [by rolling on them] for its own pleasure. Why are these cases different? Just as Tooth affords gratification from the damage [it does] and, being your possession, is under your control, why should not this also be the case with its derivatives which similarly afford gratification from the damage [they do] and, being your possession are under your control? - The derivative of Tooth is therefore equal to Tooth, and R. Papa's statement [to the contrary]16 refers to the derivative of Foot.
What is the derivative of Foot? - When it did damage while in motion either with its body or with its hair, or with the load [which was] upon it, or with the bit in its mouth, or with the bell on its neck. Now, why should these cases be different? Just as Foot does frequent damage and, being your possession, is under your control, why should not this also be the case with its derivatives which similarly do frequent damage and, being your possession, are under your control? The derivative of Foot is thus equal to Foot, and R. Papa's statement [to the contrary]17 refers to the derivative of the Pit.
What is the derivative of Pit? It could hardly be said that the Principal is a pit of ten handbreadths deep and its derivative one nine handbreadths deep, since neither nine nor ten is stated in Scripture! - That is no difficulty: [as] And the dead beast shall be his18 the Divine Law declares, and it was quite definite with the Rabbis19 that ten handbreadths could occasion death, whereas nine might inflict injury but could not cause death . But however this may be, is not the one [of ten] a principal [cause] in the event of death, and the other [of nine] a principal [cause] in the event of [mere] injury? - Hence [Rab Papa's statement] must refer to a stone, a knife and luggage which were placed on public ground and did damage. In what circumstances? If they were abandoned [there], according to both Rab and Samuel,20 they would be included in [the category of] Pit;21
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(1) I Kings XIV, 10. ['Galal', E.V.: 'dung', is interpreted as 'marble', 'ivory', which teeth resemble; cf. Ezra V, 8. V. Tosaf. a.l.]
(2) [Lit., 'The Merciful One,' i.e., God, whose word Scripture reveals. V. Bacher, Exeg. Term., II, 207f.]
(3) V. p. 4, n. 6.
(4) Ex. XXI, 35-36.
(5) To cite the verse from Isaiah.
(6) Send forth and consume, cf. n. 2.
(7) Where no term expressing 'Consumption' is employed.
(8) To cite the verse from Kings.
(9) I.e., 'He shall send forth'.
(10) Where no term expressing 'sending forth' is employed.
(11) V. p. 4, n. 6.
(12) Deut. XXXII, 24.
(13) And thus there would be no definite sanction for action in either.
(14) V., however, infra p. 17, that Tooth and Foot were recorded in Scripture not for the sake of liability but to be immune for damage done by them on public ground.
(15) As signified by, 'He shall send forth'.
(16) Cf. supra p. 2.
(17) V. p. 6, n. 6.
(18) Ex. XXI, 34.
(19) Infra 50b.
(20) Infra p. 150.
(21) Being, like Pit, a public nuisance.
Talmud - Mas. Baba Kama 3b
if [on the other hand] they were not abandoned, then, according to Samuel, who maintains that all public nuisances come within the scope of the law applicable to Pit, they would be included in Pit, whereas according to Rab, who maintains that in such circumstances they rather partake of the nature of Ox, they are equivalent in law to Ox.1
[And even according to Samuel] why should [the derivatives of Pit] be different? Just as Pit is from its very inception a source of injury, and, being your possession, is under your control, so is the case with these [derivatives] which from their very inception [as nuisances] also are sources of injury and being your possession, are under your control! - The derivative of Pit is therefore equal to Pit, and R. Papa's statement [to the contrary] refers to the derivative of 'Spoliator'. But what is it? If we are to follow Samuel, who takes 'Spoliator' to denote Tooth,2 behold we have [already] established that the derivative of Tooth equals Tooth;3 if on the other hand Rab's view is accepted, identifying 'Spoliator' With Man,2 what Principals and what derivatives could there be in him? You could hardly suggest that Man [doing damage] while awake is Principal, but becomes derivative [when causing damage] while asleep, for have we not learnt:4 'Man is in all circumstances Mu'ad,5 whether awake or asleep'? - Hence [R. Papa's statement6 will] refer to phlegm7 [expectorated from mouth or nostrils]. But in what circumstances? If it did damage while in motion, it is [man's] direct agency! If [on the other hand] damage resulted after it was at rest, it would be included, according to both Rab and Samuel,8 in the category of Pit! - The derivative of 'Spoliator' is therefore equal to 'Spoliator'; and R. Papa's statement [to the contrary]6 refers to the derivative of Fire.
What is the derivative of Fire? Shall I say it is a stone, a knife and luggage which having been placed upon the top of one's roof were thrown down by a normal wind and did damage? Then in what circumstances? If they did damage while in motion, they are equivalent to Fire; and why should they be different? Just as Fire is aided by an external force, and, being your possession, is under your control, so also is the case with these [derivatives] which are aided by an external force, and, being your possession, are under your control! - The derivative of Fire is therefore equal to Fire; and R. Papa's statement [to the contrary]6 refers to the derivative of Foot.
'Foot'! Have we not established that the derivative of Foot is equal to Foot?9 - There is the payment of half damages done by pebbles [kicked from under an animal's feet] - a payment established by tradition.10 On account of what [legal] consequence is it designated 'derivative of Foot'?11 So that the payment should likewise be enforced [even] from the best of the defendant's possessions.12 But did not Raba question whether the half-damage of Pebbles is collected only from the body of the animal or from any of the defendant's possessions?13 - This was doubtful [only] to Raba, whereas R. Papa was [almost] certain about it [that the latter is the case]. But according to Raba, who remained doubtful [on this point], on account of what [legal] consequence is it termed 'derivative of Foot'?14 - So that it may also enjoy exemption [where the damage was done] on public ground.15
THE SPOLIATOR [MABEH] AND THE FIRE etc. What is [meant by] MAB'EH? - Rab said: MAB'EH denotes Man [doing damage], but Samuel said: MAB'EH signifies Tooth [of trespassing cattle]. Rab maintains that MAB'EH denotes Man,16 for it is written: The watchman said: The morning cometh, and also the night - if ye will enquire, enquire ye.17 Samuel [on the other hand] holds that MAB'EH signifies Tooth, for it is written: How is Esau searched out! How are his hidden places sought out!18 But how is this deduced?19 As rendered by R. Joseph:20 How was Esau ransacked? How were his hidden treasures exposed?21
Why did not Rab agree with [the interpretation of] Samuel? - He may object: Does the Mishnah employ the term NIB'EH22 [which could denote anything 'exposed']?
Why [on the other hand] did not Samuel follow [the inter pretation of] Rab? - He may object: Does the Mishnah employ the term BO'EH23 [which could denote 'an enquirer']?
But in fact the Scriptural quotations could hardly bear out the interpretation of either of them. Why then did not Rab agree with Samuel? - THE OX [in the Mishnah] covers all kinds of damage done by ox.24 How then will Samuel explain the fact that ox has already been dealt with? - Rab Judah explained: THE OX [in the Mishnah] denotes Horn, while MAB'EH stands for Tooth; and this is the sequence in the Mishnah: The aspects of Horn, which does not afford gratification from the injury [are not of such order of gravity] as those of Tooth which does afford gratification from the damage;25
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(1) The derivatives of which are equal to the Principal.
(2) Infra p. 9.
(3) Supra p. 7.
(4) Infra p. 136.
(5) I.e., civilly liable in full for all misdeeds.
(6) V. p. 6, n. 6.
(7) I.e., the derivative of Man.
(8) V. p. 7, n. 4.
(9) Supra p. 7.
(10) Cf. infra p. 80.
(11) Since it pays only half the damage.
(12) Unlike half damages in the case of Horn where the payment is collected only out of the body of the animal that did the damage.
(13) Infra p. 83.
(14) V. p. 8, n. 10.
(15) Just as is the case with Foot, cf. infra p. 17.
(16) As possessing freedom of will and the faculty of discretion and enquiry, i.e., constituting a cultural and rational being; idiots and minors are thus excluded, cf. infra p. 502.
(17) תבעון בעיו, Isa. XXI, 12; the root in each case being the same.
(18) נבעו Ob. I, 6; the root in each case being the same.
(19) I.e., how could a term denoting 'seeking out' stand for Tooth?
(20) Who was exceptionally well conversant with Targumic texts. Some explain it on account of his having been blind (v. infra p. 501), and thus unable to cite the original Biblical text because of the prohibition to recite orally passages from the Written Law, cf. Git. 60a. [Others ascribe the edition of the Targum on the prophets to him, v. Graetz (Geschichte IV, 326.]
(21) נבעו (E.V.: sought out), translated exposed, indicates exposure and may therefore designate Tooth which is naturally hidden but becomes exposed in grazing.
(22) In the passive voice.
(23) In the kal denoting mere action; the causative (hiph'il) is used with reference to Tooth which the animal exposes in grazing.
(24) Cattle, including Tooth.
(25) And therefore the liability of Tooth could not he derived from that of Horn.
Talmud - Mas. Baba Kama 4a
nor are the aspects of Tooth, which is not prompted by malicious intention to injure, [of such order of gravity] as those of Horn which is prompted by malicious intention to do damage.1 But can this not be deduced a fortiori? If Tooth, which is prompted by no malicious intention to injure, involves liability to pay, how much more so should this apply to Horn, which is prompted by malicious intention to do damage? - Explicit [Scriptural] warrant for the liability of Horn is, nevertheless, essential, as otherwise you might have possibly thought that I assume [immunity for Horn on] an analogy to the case of man- and maid-servants. Just as a man- and maid-servant, although prompted by malicious intention to do damage, do not devolve any liability [upon their masters],2 so is the law here [in the case of Horn]. R. Ashi, however, said: Is not the immunity in the case of damage done by man-and maid-servants due to the special reason that, but for this, a servant provoked by his master might go on burning down3 another's crops, and thus make his master liable to pay sums of money day by day?4 - The sequence [of the analysis in the Mishnah] must accordingly be [in the reverse direction]: The aspects of Horn, which is actuated by malicious intention to do damage, are not [of such low order of gravity] as those of Tooth, which is not actuated by malicious intention to do damage; again, the aspects of Tooth which affords gratification while doing damage are not [of such low order of gravity] as those of Horn, which affords no gratification from the damage.5 But what about Foot? Was it entirely excluded [in the Mishnah]? - [The generalisation,]6 Whenever damage has occurred, the offender is liable, includes Foot. But why has it not been stated explicitly? - Raba therefore said: THE OX [stated in the Mishnah] implies Foot,7 while MAB'EH stands for Tooth; and this is the sequence [in the Mishnah]: The aspects of Foot, which does frequent damage, are not [of such low order of gravity] as those of Tooth, the damage by which is not frequent: again, the aspects of Tooth, which affords gratification from the damage, are not [of such low order of gravity] as those of Foot, which does not afford gratification from the damage.8 But what about Horn? Was it entirely excluded [in the Mishnah]? - [The generalisation,] Whenever damage has occurred, the offender is liable, includes Horn. But why has it not been stated explicitly? - Those which are Mu'ad ab initio are mentioned explicitly [in the Mishnah] but those which initially are Tam,9 and [only] finally become Mu'ad, are not mentioned explicitly.
Now as to Samuel, why did he not adopt Rab's interpretation [of the Mishnaic term MAB'EH]? - He may object: If you were to assume that it denotes Man, the question would arise, is not Man explicitly dealt with [in the subsequent Mishnah]: 'Mu'ad cattle and cattle doing damage on the plaintiff's premises and Man'?10 But why then was Man omitted in the opening Mishnah? - [In that Mishnah] damage done by one's possessions is dealt with, but not that done by one's person.
Then, how could even Rab uphold his interpretation, since Man is explicitly dealt with in the subsequent Mishnah?10 - Rab may reply: The purpose of that Mishnah is [only] to enumerate Man among those which are considered Mu'ad. What then is the import of [the analysis introduced by] THE ASPECTS ARE NOT etc.? - This is the sequence: The aspects of Ox, which entails the payment of kofer [for loss of human life],11 are not [of such low order of gravity] as those of Man who does not pay [monetary] compensation for manslaughter;12 again, the aspects of Man who [in case of human bodily injury] is liable for [additional] four items,13 are not [of such low order of gravity] as those of Ox, which is not liable for those four items.14
THE FEATURE COMMON TO THEM ALL IS THAT THEY ARE IN THE HABIT OF DOING DAMAGE. Is it usual for Ox [Horn]15 to do damage? - As Mu'ad. But even as Mu'ad, is it usual for it to do damage? - Since it became Mu'ad this became its habit. Is it usual for Man to do damage? - When he is asleep. But even when asleep is it usual for Man to do damage? - While stretching his legs or curling them this is his habit.
THEIR HAVING TO BE UNDER YOUR CONTROL. Is not the control of man's body [exclusively] his own?16 - Whatever view you take,17 behold Karna taught: The principal categories of damage are four and Man is one of them. [Now] is not the control of a man's body [exclusively] his own? You must therefore say with R. Abbahu who requested the tanna18 to learn, 'The control of man's body is [exclusively] his own,'
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(1) And therefore the liability of Horn could not be derived from that of Tooth.
(2) Cf. infra p. 502.
(3) But v. infra pp. 47 and 112.
(4) Yad. IV, 6; and the suggested analogy is thus untenable.
(5) So that neither Horn nor Tooth could he derived from each other.
(6) Infra p. 36, v. Tosaf.
(7) And not Horn as first suggested.
(8) So that neither Foot nor Tooth could he derived from each other.
(9) As is the case with Horn.
(10) V. infra 15b.
(11) Lit., 'Ransom', i.e., monetary compensation for manslaughter, cf Ex. XXI, 30; v. Glos.
(12) V. Num. XXXV, 31-32. Hence Man could not be derived from Ox.
(13) I.e., Pain, Healing, Loss of Time and Degradation; cf. infra p. 473.
(14) Ox is liable only for Depreciation.
(15) According to Rab who takes Ox as including Horn.
(16) The phrase in the Mishnah is thus inappropriate to man.
(17) Even if you take Mab'eh as Tooth.
(18) [The term here designates one whose special task was to communicate statements of older authorities to expounding teachers, v. Glos.]
Talmud - Mas. Baba Kama 4b
that here also it is to be understood that the control of man's body is his own.1
R. Mari, however, demurred: Say perhaps MAB'EH denotes water [doing damage], as it is written, As when the melting fire burneth, fire tib'eh [causeth to bubble] water?2 - Is it written, 'Water bubbles'? It is written, Fire causes bubbling.3 R. Zebid demurred: Say then that MAB'EH denotes Fire, as it is fire to which the act of 'tib'eh' in the text is referred? - If this be so what is then the explanation of THE MAB'EH AND THE FIRE? If you suggest the latter to be the interpretation of the former,4 then instead of 'FOUR' there will be 'three'? If however, you suggest that OX constitutes two [kinds of damage],5 then what will be the meaning of [the Mishnaic text]: NOR ARE THE ASPECTS OF EITHER OF THEM [OX and MAB'EH] IN WHICH THERE IS LIFE? Is there any life in fire? Again, what will be conveyed by [the concluding clause] AS THOSE OF THE FIRE?
R. Oshaia: taught There are thirteen principal categories of damage: The Unpaid Bailee and the Borrower, the Paid Bailee and the Hirer, Depreciation, Pain [suffered]. Healing, Loss of Time, Degradation and the Four enumerated in the Mishnah, thus making [a total of] thirteen. Why did our Tanna mention [only the Four and] not the others? According to Samuel,6 this presents no difficulty, as the Mishnah mentions only damage committed by one's possessions and not that committed by one's person, but according to Rab7 let the Mishnah also mention the others? - In the mention of Man all kinds of damage committed by him are included. But does not R. Oshaia also mention Man?8 - Two kinds of damage could result from Man: Man injuring man is treated as one subject, and Man damaging chattel9 as another.
If this be so let R. Oshaia similarly reckon Ox twice, as two kinds of damage could result also from Ox: [i] Ox damaging chattel9 and [ii] Ox injuring man? - But is that a logical argument? It is quite proper to reckon Man in this manner as Man damaging chattel pays only for Depreciation, while Man injuring man may also have to pay for four other kinds of damage,10 but how can Ox be thus reckoned when the liability for damage done by it to either man or chattel is alike and is confined to [only one kind of damage, i.e.] Depreciation?
But behold, are not the Unpaid Bailee and the Borrower, the Paid Bailee and the Hirer, within the sphere of Man damaging chattel and they are nevertheless reckoned by R. Oshaia? - Direct damage and indirect damage are treated by him independently.
R. Hiyya taught: There are twenty-four principal kinds of damage: Double Payment,11 Fourfold or Fivefold Payment,12 Theft,13 Robbery,14 False Evidence,15 Rape,16 Seduction,17 Slander,18 Defilement,19 Adulteration,20 Vitiation of wine,21 and the thirteen enumerated above by R. Oshaia,22 thus making [the total] twenty-four.
Why did not R. Oshaia reckon the twenty-four? - He dealt only with damage involving civil liability but not with that of a punitive nature. But why omit Theft and Robbery which also involve civil liability? - These kinds of damage may be included in the Unpaid Bailee and the Borrower.23 Why then did not R. Hiyya comprehend the former in the latter? - He reckoned them separately, as in the one case the possession of the chattel was acquired lawfully,24 while in the other25 the acquisition was unlawful.
[Why did not R. Oshaia]
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(1) The Mishnaic wording refers to the other categories.
(2) Isa. LXIV, 1.
(3) Hence the term 'tib'eh' describes not the act of water but that of fire.
(4) The Mab'eh and the Fire will thus constitute one and the same kind of damage.
(5) And the other two will be: Pit and Fire.
(6) Who takes Mab'eh to denote Tooth and not Man; supra p. 9.
(7) Who takes Mab'eh to denote Man; supra p. 9.
(8) Why does he not include in Man all kinds of damage committed by him?
(9) Lit., 'cattle'.
(10) I.e., Pain, Healing, Loss of Time and Degradation.
(11) As fine for theft; cf. Ex. XXII, 3.
(12) Fines for the slaughter or sale of a stolen sheep and ox respectively; cf. Ex. XXI, 37.
(13) I.e., the restoration of stolen goods or the payment of their value.
(14) I.e., the unlawful acquisition of chattels by violence; cf. Lev, V, 23.
(15) Cf. Deut. XIX, 19; v. Mak. I.
(16) I.e., fifty shekels of silver; cf. Deut. XXII, 28-29.
(17) Cf. Ex. XXII, 15-16.
(18) I.e., a defaming husband; v. Deut. XXII, 13-19.
(19) Of terumah (v. Glos.) which makes it unfit for human consumption.
(20) Of ordinary grain with that of terumah restricting thereby the use of the mixture to priestly families.
(21) Through idolatrous application by means of libation which renders all the wine in the barrel unfit for any use whatsoever; the last three heads of damage are dealt with in Git. V, 3.
(22) V. p. 13.
(23) I.e., when these are guilty of larceny; cf. Ex. XXII, 7.
(24) I.e in the case of the Unpaid Bailee and Borrower.
(25) I.e., in the case of Theft and Robbery.
Talmud - Mas. Baba Kama 5a
deal with False Evidence, the liability for which is also civil? - He holds the view of R. Akiba who maintains that the liability for False Evidence [is penal in nature and] cannot [consequently]1 be created by confession.2 But if R. Oshaia follows R. Akiba why does he not reckon Ox as two distinct kinds of damage: Ox damaging chattel and Ox injuring men, for have we not learnt that R. Akiba said: A mutual injury arising between man and [ox even while a] Tam is assessed in full and the balance paid accordingly?3 This distinction could, however, not be made, since it is elsewhere4 taught that R. Akiba himself has qualified this full payment.5 For R. Akiba said: You might think that, in the case of Tam injuring man, payment should be made out of the general estate; it is therefore stated, [This judgment] shall be done unto it,6 to emphasise that the payment should only be made out of the body of the Tam and not out of any other source whatsoever.
Why did R. Oshaia omit Rape, Seduction and Slander, the liabilities for which are also civil?7 - What particular liability do you wish to refer to? If for actual loss, this has already been dealt with under Depreciation; if for suffering, this has already been dealt with under Pain; if for humiliation, this has already been dealt with under Degradation; if again for deterioration, this is already covered by Depreciation. What else then can you suggest? The Fine.8 With this [type of liability] R. Oshaia is not concerned.
Why then omit Defilement , Adulteration and Vitiation of wine, the liabilities for which are civil? - What is your view in regard to intangible damage?9 If [you consider] intangible damage a civil wrong, defilement has then already been dealt with under Depreciation; if on the other hand intangible damage is not a civil wrong, then any liability for it is penal in nature, with which R. Oshaia is not concerned.
Are we to infer that R. Hiyya considers intangible damage not to be a civil wrong? For otherwise would not this kind of damage already have been reckoned by him under Depreciation? - He may in any case have found it expedient to deal with tangible damage and intangible damage under distinct heads.
It is quite conceivable that our Tanna10 found it necessary to give the total number [of the principal kinds of damage] in order to exclude those of R. Oshaia;11 the same applies to R. Oshaia who also gave the total number in order to exclude those of R. Hiyya;12 but what could be excluded by the total number specified by R. Hiyya? - It is intended to exclude Denunciation13 and Profanation of sacrifices.14
The exclusion of profanation is conceivable as sacrifices are not here reckoned; but why is Denunciation omitted? - Denunciation is in a different category on account of its verbal nature with which R. Hiyya is not concerned. But is not Slander of a verbal nature and yet reckoned? - Slander is something verbal but dependent upon some act.15 But is not False Evidence a verbal effect not connected with any act and yet it is reckoned? - The latter though not connected with any act is reckoned because it is described in the Divine Law as an act, as the text has it: Then shall ye do unto him as he had purposed to do unto his brother.16
It is quite conceivable that the Tanna of the Mishnah characterises his kinds of damage as Principals in order to indicate the existence of others which are only derivatives: but can R. Hiyya and R. Oshaia characterise theirs as Principals in order to indicate the existence of others which are derivatives? If so what are they? - Said R. Abbahu: All of them are characterised as Principals for the purpose of requiring compensation out of the best of possessions.17 How is this uniformity [in procedure] arrived at? - By means of a uniform interpretation of each of the following terms: 'Instead',18 'Compensation',19 'Payment',20 'Money'.21
THE ASPECTS OF THE OX ARE [IN SOME RESPECTS] NOT [OF SUCH LOW ORDER OF GRAVITY] AS THOSE OF THE 'SPOLIATOR' [MAB'EH]. What does this signify? - R. Zebid in the name of Raba said: The point of this is: Let Scripture record only one kind of damage22 and from it you will deduce the liability for the other!23 In response it was declared: One kind of damage could not be deduced from the other.24
NOR ARE THE ASPECTS OF EITHER OF THEM IN WHICH THERE IS LIFE. What does this signify? R. Mesharsheya in the name of Raba said: The point of it is this:
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(1) Penal liabilities are created only by means of impartial evidence and never by that of confession; cf. infra 64b.
(2) Mak. 2b.
(3) V. infra p. 179.
(4) Infra pp. 180 and 240.
(5) Lit., 'broke the [full] force of his club' (Jast.); Rashi: 'of his fist'.
(6) Ex. XXI. 31.
(7) Cf. Keth. 40a.
(8) V. Deut, XXII, 29; Ex. XXII, 6; and Deut. XXII, 19.
(9) Cf. Git. 53a.
(10) Opening the Tractate.
(11) I.e., the additional nine kinds enumerated by him supra p. 13.
(12) I.e the eleven added by him supra. p. 14.
(13) Cf. infra 62a and 117a.
(14) Cf. Lev. VII, 18 and Zeb. I, 1 and II, 2-3.
(15) The consummation of the marriage rite according to R. Eliezer, or the bribery of false witnesses according to R. Judah; cf. Keth. 46a.
(16) Deut. XIX, 19.
(17) Cf. Ex. XXII, 4.
(18) I.e., for occurring in Ex. XXI, 36, and elsewhere.
(19) I.e., an expression such as, He shall give, cf. EX XXI, 32 and elsewhere.
(20) As in Ex. XXII, 8 and elsewhere.
(21) Such as, e.g., in Ex. XXI, 34 and elsewhere. [One of these four terms occurs with each of the four categories of damage specified in the Mishnah and likewise with each of the kinds of damage enumerated by R. Oshaia and R. Hiyya, thus teaching uniformity in regard to the mode of payment in them all.]
(22) I.e., Ox.
(23) I.e., Mab'eh.
(24) V. supra pp. 11-12.
Talmud - Mas. Baba Kama 5b
Let Scripture record only two kinds of damage1 and from them you will deduce a further kind of damage?2 In response it was declared: Even from two kinds of damage it would not be possible to deduce one more.3
Raba, however, said: If you retain any one kind of damage along with Pit [in Scripture], all the others but Horn will be deduced by analogy;4 Horn is excepted as the analogy breaks down, since all the other kinds of damage are Mu'ad ab initio.5 According, however, to the view that Horn on the other hand possesses a greater degree of liability because of its intention to do damage,6 even Horn could be deduced. For what purpose then did Scripture record them all? For their [specific] laws: Horn, in order to distinguish between Tam and Mu'ad;7 Tooth and the Foot, to be immune [for damage done by them] on public ground;8 Pit, to be immune for [damage done by it to] inanimate objects;9 and, according to R. Judah who maintains liability for inanimate objects damaged by a pit,10 in order still to be immune for [death caused by it to] man;11 Man, to render him liable for four [additional] payments [when injuring man];12 Fire, to be immune for [damage to] hidden goods;13 but according to R. Judah, who maintains liability for damage to hidden goods by fire,13 what [specific purpose] could be served?
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(1) I.e., Ox and Mab'eh.
(2) I.e., Fire.
(3) For the reason stated in the Mishnah.
(4) To the feature common in Pit and the other kind of damage.
(5) I.e., it is usual for them to do damage, whereas Horn does damage only through excitement and evil intention which the owner should not necessarily have anticipated; cf. infra p. 64.
(6) Cf. supra p. 11 and infra p. 64.
(7) Infra p. 73.
(8) Infra p. 94.
(9) Infra 52a.
(10) Infra 53b.
(11) Infra 54a.
(12) Infra p. 473; cf. also supra pp. 12 and 13.
(13) Infra 61b.
Talmud - Mas. Baba Kama 6a
- To include [damage done by fire] lapping his neighbour's ploughed field and grazing his stones.1
THE FEATURE COMMON TO THEM ALL . . . What else is this clause intended to include? - Abaye said: A stone, a knife and luggage which, having been placed by a person on the top of his roof, fell down through a normal wind and did damage.2 In what circumstances [did they do the damage]? If while they were in motion, they are equivalent to Fire! How is this case different? Just as Fire is aided by an external force3 and, being your possession, is under your control, so also is the case with those which are likewise aided by an external force and, being your possessions are under your control. If [on the other hand, damage was done] after they were at rest, then, if abandoned, according to both Rab and Samuel, they are equivalent to Pit.4 How is their case different? Just as Pit is from its very inception a source of injury, and, being your possession is under your control, so also is the case with those5 which from their very inception [as nuisances] are likewise sources of injury, and, being your possession are under your control.6 Furthermore, even if they were not abandoned, according to Samuel who maintains that we deduce [the law governing] all nuisances from Pit,4 they are [again] equivalent to Pit? - Indeed they were abandoned, still they are not equivalent to Pit. Why [is liability attached] to Pit if not because no external force assists it? How then can you assert [the same] in the case of those5 which are assisted by an external force? - Fire,7 however, will refute [this reasoning]. But [you may ask] why [is liability attached] to Fire if not because of its nature to travel and do damage?8 - Pit, however, will refute [this reasoning]. The argument is [thus endlessly] reversible [and liability9 can be deduced only from the Common Aspects].10
Raba said: [This clause is intended] to include a nuisance which is rolled about [from one place to another] by the feet of man and by the feet of animal [and causes damage]. In what circumstances [did it do the damage]? If it was abandoned, according to both Rab and Samuel,11 it is equivalent to Pit! How does its case differ? Just as Pit is from its very inception a source of injury, and is under your control, so also is the case with that which from its very inception [as a nuisance] is likewise a source of injury, and is under your control. Furthermore, even if it were not abandoned, according to Samuel,11 who maintains that we deduce [the law governing] all nuisances from Pit, it is [again] equivalent to Pit? - Indeed it was abandoned, still it is not equivalent to Pit: Why [is liability attached] to Pit if not because the making of it solely caused the damage? How then can you assert [the same] in the case of such nuisances,12 the making of which did not directly cause the damage?13 - Ox, however, will refute [this reasoning]. But [you may ask] why [is liability attached] to Ox if not because of its habit to walk about and do damage? - Pit will refute [this reasoning]. The argument is [thus endlessly] reversible as the aspect of the one is not comparable to the aspect of the other, [and liability14 therefore can be deduced only from the Common Aspects].
R. Adda b. Ahabah said: To include that which is taught:15 'All those who open their gutters or sweep out the dust of their cellars
[into public thoroughfares] are in the summer period acting unlawfully, but lawfully in winter; [in all cases] however, even though they act lawfully, if special damage resulted they are liable to compensate.' But in what circumstances? If the damage occurred while [the nuisances were] in motion, is it not man's direct act?16 If, on the other hand, it occurred after they were at rest, [again] in what circumstances? If they were abandoned, then, according to both Rab and Samuel,17 they are equivalent to Pit! How does their case differ? Just as Pit is from its very inception a source of injury, and, being your possession, is under your control, so also is the case with those which are likewise from their very inception [as nuisances] sources of injury and, being your possession, are under your control. Furthermore, even if they were not abandoned, according to Samuel,17 who maintains that we deduce [the law governing] all nuisances from Pit, they are [again] equivalent to Pit? - Indeed they were abandoned, still they are not equivalent to Pit: Why [is liability attached] to Pit if not because of its being unlawful?18 How then could you assert [the same] in the case of those which [in winter] are lawful? -
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(1) As this damage is rather an unusual effect from fire and special reference is therefore essential.
(2) Cf. supra p. 8.
(3) I.e., the blowing wind.
(4) Infra 28b; v. supra p. 7.
(5) I.e., stone, knife and luggage referred to above.
(6) Cf. supra p. 7.
(7) Which is also assisted by an external force, i.e. the wind, but nevertheless creates liability to pay.
(8) Which cannot he said of stone, knife and luggage.
(9) Even when the nuisance has, like Fire, been assisted by an external force and is, like Pit, unable to travel and do damage.
(10) Referred to in the Mishnaic quotation.
(11) Infra 28b and supra p. 7.
(12) Which have been rolling about from one place to another.
(13) But the rolling by man and beast.
(14) Even in the case of nuisances that roll about.
(15) Cf. infra 30a.
(16) The liability for which is self-evident under the category of Man.
(17) Infra 28b and supra p. 7.
(18) It being unlawful to dig a pit in public ground.
Talmud - Mas. Baba Kama 6b
Ox,1 however, will refute [this reasoning]. But, you may ask, why [is liability attached] to Ox if not because of its nature to walk about and do damage? - PIt will refute [this reasoning]. The argument is [thus endlessly] reversible [and liability2 can be deduced only from the Common Aspects].
Rabina said: To include that which we have learnt: 'A wall or a tree which accidentally fell into a Public thoroughfare and did damage, involves no liability for compensation. If an order had been served [by the proper authorities] to fell the tree and pull down the wall within a specified time, and they fell within the specified time and did damage, the immunity holds goods, but if after the specified time, liability is incurred.'3 But what were the circumstances [of the wall and the tree]? If they were abandoned, then according to both Rab and Samuel,4 they are equivalent to Pit! How is their case different? Just as Pit does frequent damage and is under your control, so also is the case with those which likewise do frequent damage and are under your control. Furthermore, even if they were not abandoned, according to Samuel.4 who maintains that we deduce [the law governing] all nuisances from Pit, they are [again] equivalent to Pit? - Indeed they were abandoned, still they are not equivalent to Pit: Why [is liability attached] to Pit if not because of its being from its very inception a source of injury? How then can you assert [the same] in the case of those which are not sources of injury from their inception? - Ox, however, will refute [this reasoning]. But [you may ask] why [is liability attached] to Ox if not because of its nature to walk about and do damage? - Pit will refute [this reasoning]. The argument is [thus endlessly] reversible [and liability5 can be deduced only from Common Aspects].
WHENEVER ANYONE OF THEM DOES DAMAGE THE OFFENDER IS [HAB] LIABLE. 'The offender is HAB!' - 'The offender is HAYYAB'6 should be the phrase? - Rab Judah, on behalf of Rab, said: This Tanna [of the Mishnaic text] was a Jerusalemite who employed an easier form.7
TO INDEMNIFY WITH THE BEST OF HIS ESTATE. Our Rabbis taught: Of the best of his field and of the best of his vineyard shall he make restitution8 refers to the field of the plaintiff and to the vineyard of the plaintiff, this is the view of R. Ishmael. R. Akiba says: Scripture only intended that damages should be collected out of the best,9 and this applies even more so to sacred property.10
Would R. Ishmael maintain that the defendant, whether damaging the best or worst, is to pay for the best? - R. Idi b. Abin said: This is so where he damaged one of several furrows and it could not be ascertained whether the furrow he damaged was the worst or the best,in which case he must pay for the best. Raba, however, [demurred] saying: Since where we do know that he damaged the worst, he would only have to pay for the worst, now that we do not know whether the furrow damaged was the best or the worst, why pay for the best? It is the plaintiff who has the onus of proving his case by evidence. R. Aha b. Jacob therefore explained: We are dealing here with a case where the best of the plaintiff's estate equals in quality the worst of that of the defendant;11 and the point at issue is [as follows]: R. Ishmael maintains that the qualities are estimated in relation to those of the plaintiff's estate;12 but R. Akiba is of the opinion that it is the qualities of the defendant's possessions that have to be considered.13
What is the reason underlying R. Ishmael's view? - The term 'Field' occurs both in the latter clause14 and the earlier clause of the verse;15 now just as in the earlier clause it refers to the plaintiff's possessions, so also does it in the latter clause. R. Akiba, however, maintains that [the last clause,] Of the best of his field and of the best of his vineyard shall he make restitution16 clearly refers to the possessions of the one who has to pay. R. Ishmael [on the other hand,] contends that both the textual analogy17 of the terms and the plain textual interpretation are complementary to each other. The analogy of the terms is helpful towards establishing the above statement18 while the plain textual interpretation helps to qualify [the application of the above18 in] a case where the defendant's estate consists of good and bad qualities, and the plaintiff's estate likewise comprises good quality, but the bad of the defendant's estate is not so good as the good quality of the estate of the plaintiff;19 for in this case the defendant must pay out of the better quality of his estate, as he cannot say to him, 'Come and be paid out of the bad quality' [which is below the quality of the estate of the plaintiff], but he is entitled to the better quality [of the defendant].
'R. Akiba said: Scripture only intended that damages be collected out of the best, and this applies even more so to sacred property.' What is the import of the last clause? It could hardly be suggested that it refers to a case where a private ox gored an ox consecrated [to the Sanctuary], for does not the Divine Law distinctly say, The ox of one's neighbour,20 excluding thus [any liability for damage done to] consecrated chattel? Again, it could hardly deal with a personal undertaking by one to pay a maneh to the Treasury of the Temple, thus authorising the treasurer to collect from the best; for surely he should not be in a better position than a private creditor
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(1) Which it is similarly lawful to keep, but which when doing damage creates nevertheless a liability to pay.
(2) Even in the cases referred to by R. Adda b. Ahabah.
(3) B.M. 117b.
(4) Infra 28b.
(5) Even in the case of the wall and the tree.
(6) A slight variation in the Hebrew text: a disyllable instead of a monosyllable.
(7) Preferred a contracted form.
(8) Ex. XXII, 4.
(9) Of the defendant's estate.
(10) I.e., property dedicated to the purposes of the sanctuary.
(11) The amount of damages, however, would never be more than could be proved to have been actually sustained.
(12) I.e., the quality of the field paid by the defendant as damages need not exceed the best quality of the plaintiff's estate. Hence, in the case in hand, the worst of the defendant's will suffice.
(13) The quality of the payment must therefore always he the best of the defendant's estate,
(14) I.e., of the best of his field . . . Ex, XXII,4.
(15) If a man shall cause a field or a vineyard to be eaten, ibid.
(16) Ex. XXII,4.
(17) The (Gezerah Shawah, v. Glos.
(18) 'That the qualities are estimated in relation to those of the plaintiff's estate.'
(19) The bad quality could not thus be tendered.
(20) Ex. XXI, 35.
Talmud - Mas. Baba Kama 7a
who can collect nothing better than the medium quality.1 If, however, you hold that R. Akiba authorises the payment of all loans out of the best, [the treasurer of the Temple could still hardly avail himself of this privilege as] the analogy between these two kinds of liability could be upset as follows: A private creditor is at an advantage in that for damages he will surely be paid out of the best, but is not the Temple Treasury at a very great disadvantage in this respect?2 - It may still be maintained that it applies to the case where a private ox gored a consecrated ox, and in answer to the difficulty raised by you - that the Divine Law definitely says The ox of one's neighbour, thus exempting for damage done to consecrated property - it may be suggested that R. Akiba shares the view of R. Simeon b. Menasya as taught:3 R. Simeon b. Menasya says: In the case of a consecrated ox goring a private one, there is total exemption; but for a private ox, whether Tam or Mu'ad, goring a consecrated ox, full damages must be paid.4 If this is R. Akiba's contention, whence could it be proved that the point at issue between R. Ishmael and R. Akiba is as to the best of the plaintiff's equalling the worst of the defendant's? Why not say that on this point they are both of opinion that the qualities are estimated in relation to the plaintiff's possessions,5 whereas the disagreement between them is on the point at issue between R. Simeon b. Menasya and the Rabbis [i.e., the majority against him], R. Akiba holding the view of R. Simeon b. Menasya, and R. Ishmael that of the Rabbis? - If so, what would be the purport of the first clause of R. Akiba, 'Scripture only intended that damages be collected out of the best'?6 Again, would not then even the last clause 'And this even more so applies to sacred property' be rather illogically phrased?7 Furthermore, R. Ashi said: It was explicitly taught: Of the best of his field and of the best of his vineyard shall he make restitution8 refers to the field of the plaintiff and to the vineyard of the plaintiff: this is the view of R. Ishmael. R. Akiba [on the other hand] says: The best of the defendant's field and the best of the defendant's vineyard.
Abaye pointed out to Raba the following contradiction: Scripture records, Out of the best of his field and out of the best of his vineyard shall he make restitution8 [thus indicating that payment must be made] only out of the best and not out of anything else; whereas it is taught: He should return,9 includes payment in kind,10 even with bran?11 - There is no contradiction: the latter applies when the payment is made willingly, while the former refers to payments enforced [by law]. 'Ulla the son of R. Elai, thereupon said: This distinction is evident even from the Scriptural term, He shall make restitution,8 meaning, even against his will. Abaye, on the other hand, said to him: Is it written yeshullam12 ['Restitution shall be made']? What is written is yeshallem13 ['He shall make restitution'], which could mean of his own free will! - But said Abaye: [The contradiction can be solved] as the Master14 [did] in the case taught: An owner of houses, fields and vineyards15 who cannot find a purchaser [is considered needy and] may be given the tithe for the poor16 up to half the value of his estate.17 Now the Master discussed the circumstances under which this permission could apply: If property in general, and his included, dropped in value, why not grant him even the value of more [than the half of his estate's value], since the depreciation is general? If, on the other hand, property in general appreciated, but his, on account of his going about looking here and there for ready money, fell in price,
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(1) Git. V, 1.
(2) On account of the absolute immunity, as stated, for damage done to Temple property.
(3) Infra p. 212.
(4) R. Akiba thus maintains that the Temple Treasury will, for any damage sustained, be reimbursed out of the best of the defendant's estate.
(5) And where the plaintiff's best equals the defendant's worst, the latter will perhaps suffice according to all opinions.
(6) Which indicates that the interpretation of the Scriptural verse (Ex. XXII, 4) is the point at issue.
(7) As according to the view requiring full payment in all cases, the quality of the payment for damage done to sacred property may he higher than that paid for damage done to ordinary property, and in fact nothing less than the very best of the defendant's estate would suffice.
(8) Ex. XXII, 4.
(9) Ex. XXI, 34.
(10) Otherwise the Scriptural text would be superfluous, as payment in specie is evident in an earlier clause.
(11) Infra 9a.
(12) ישלם
(13) ישלם
(14) Rabbah (Rashi).
(15) The value of which amounted to 200 zuz.
(16) Cf. Deut. XIV, 28-29; this tithe is distributed among those who possess less than two hundred zuz; Pe'ah VIII, 8.
(17) I.e., 100 zuz to enable him to sell his property for half its value which, it is assumed, he can at any time realise.
Talmud - Mas. Baba Kama 7b
why give him anything at all?1 And the Master thereupon said: No; the above law is applicable to cases where in the month of Nisan2 property has a higher value, whereas in the month of Tishri3 it has a lower value. People in general wait until Nisan and then sell, whereas this particular proprietor, being in great need of ready money, finds himself compelled to sell in Tishri at the existing lower price; he is therefore granted half because it is in the nature of property to drop in value up to a half, but it is not in its nature to drop more than that. Now a similar case may also be made out with reference to payment for damage which must be out of the best. If the plaintiff, however, says: 'Give me medium quality but a larger quantity', the defendant is entitled to reply: 'It is only when you take the best quality which is due to you by law that you may calculate on the present price; failing that, whatever you take you will have to calculate according to the higher price anticipated.'4 But R. Aha b. Jacob demurred: If so, you have weakened the right of plaintiffs for damages in respect of inferior quality. When the Divine Law states out of the best,5 how can you maintain that inferior qualities are excluded?6 R - Aha b. Jacob therefore said: If any analogy could he drawn,7 it may be made in the case of a creditor. A creditor is paid by law out of medium quality; if, however, he says: 'Give me worse quality but greater quantity,' the debtor is entitled to say, 'It is only when you take that quality which is due to you by law that you may calculate on the present price, failing that, whatever you take you will have to calculate according to the higher price anticipated.' R. Aha, son of R. Ika, demurred: If so, you will close the door in the face of prospective borrowers. The creditor will rightly contend, 'Were my money with me I would get property according to the present low price; now that my money is with you, must I calculate according to the anticipated higher price?' - R. Aha, son of R. Ika, therefore said: If any analogy could be drawn,7 it is only with the case of a Kethubah8 [marriage settlement]9 which, according to the law, is collected out of the worst quality. But if the woman says to the husband: 'Give me better quality though smaller quantity,' he may rejoin: 'It is only when you take the quality assigned to you by law that you may calculate in accordance with the present low price; failing that, you must calculate in accordance with the anticipated higher price.,
But be it as it is, does the original difficulty10 still not hold good? - Said Raba: Whatever article is being tendered has to be given out of the best [of that object].11 But is it not written: 'The best of his field'?12 - But when R. Papa and R. Huna the son of R. Joshua had arrived from the house of study13 they explained it thus: All kinds of articles are considered 'best', for if they were not to be sold here they would be sold in another town;14 it is only in the case of land which is excepted therefrom that the payment has to be made out of the best, so that intending purchasers jump at it.
R. Samuel b. Abba of Akronia15 asked of R. Abba: When the calculation16 is made, is it based on his own [the defendant's] property or upon that of the general public? This problem has no application to R. Ishmael's view that the calculation is based upon the quality of the plaintiff's property;17 it can apply only to R. Akiba's view17 which takes the defendant's property into account.18 What would, according to him, be the ruling? Does the Divine Law in saying, 'the best of his field' intend only to exclude the quality of the plaintiff's property from being taken into account, or does it intend to exclude even the quality of the property of the general public? - He [R. Abba] said to him:19 The Divine Law states, 'the best of his field' how then can you maintain that the calculation is based on the property of the general public?
He20 raised an objection: [It is taught,] If the defendant's estate consists only of the best, creditors of all descriptions are paid out of the best; if it is of medium quality, they are all paid out of medium quality; if it is of the worst quality, they are all paid out of the worst quality. [It is only] when the defendant's possessions consist of both the best, the medium, and the worst [that] creditors for damages are paid out of the best, creditors for loans out of the medium and creditors for marriage contracts out of the worst. When [however] the estate consists only of the best and of the medium qualities, creditors for damages are paid out of the best while creditors for loans and for marriage contracts will be paid out of the medium quality. [Again] if the estate consists only of the medium and the worst qualities, creditors for either damages or loans are paid out of the medium quality whereas those for marriage contracts will be paid out of the worst quality.
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(1) Since, in reality, his property is worth 200 zuz.
(2) It being the beginning of Spring and the best season for transactions in property, both for agricultural and building purposes.
(3) I.e., about October, being the end of the season.
(4) The scriptural verse, 'He shall return', introducing payment in kind, would thus authorise the calculation on the higher price anticipated whenever the plaintiff prefers a quality different from that assigned to him by law.
(5) Ex. XXII, 4.
(6) From the option of the plaintiff.
(7) To the case made out by the Master regarding the Tithe of the Poor referred to above.
(8) V. Glos.
(9) Git. V, 1.
(10) Raised by Abaye supra p. 24.
(11) I.e., when bran is tendered it is the best of it which has to he given.
(12) Confining it thus to land, for if otherwise why altogether insert 'of his field'?
(13) בי רב. V. Sanh. (Sonc. ed p. 387, n. 7.
(14) And could therefore be tendered.
(15) [Or Hagronia, a town near Nehardea, v. Obermeyer, J. Die Landschaft Babylonian, p. 265.]
(16) Of the best, medium and worst qualities, out of which to pay creditors for damages, loans and marriage-contracts respectively.
(17) Cf. supra p. 22.
(18) I.e., his estate is divided into three categories; best, medium and worst, out of which the payments will respectively be made.
(19) I.e., to R. Samuel, the questioner.
(20) I.e., R. Samuel.
Talmud - Mas. Baba Kama 8a
If, however, the estate consists only of the best and of the worst qualities, creditors for damages are paid out of the best whereas those for loans and marriage contracts are paid out of the worst quality. Now1 the intermediate clause states that if the estate consists only of the medium and the worst qualities, creditors for either damages or loans are paid out of the medium quality whereas marriage contracts will be paid out of the worst quality. If, therefore, you still maintain that the calculation is based only upon the qualities of the defendant's estate, is not the medium [when there is no better with him] his best? Why then should not the creditors for loans be thrown back on the worst quality? - This [intermediate clause] deals with a case where the defendant originally possessed2 property of a better quality but has meanwhile disposed of it. And R. Hisda likewise explained this [intermediate clause] to deal with a case where the defendant originally possessed2 property of a better quality but has meanwhile disposed of it. This explanation stands to reason, for it is taught elsewhere: If the estate consisted of the medium and the worst qualities, creditors for damages are paid out of the medium quality whereas those for loans and marriage contracts will be paid out of the worst quality. Now these [two Baraithas] do not contradict each other, unless we accept [the explanation that] the one deals with a case where the defendant originally owned property of a better quality but which he has meanwhile disposed of, while the other states the law for a case where he did not have3 property of a quality better than the medium in his possession. It may, however, on the other hand be suggested that both [Baraithas] state the law when a better quality was not disposed of4 and there is yet no contradiction, as the second [Baraitha] presents a case where the defendant's medium quality is as good as the best quality of the general public,5 whereas in the first [Baraitha] the medium quality was not so good as the best of the public.6 It may again be suggested that both [Baraithas] present a case where the defendant's medium quality was not better than the medium quality of the general public and the point at issue is this: the second [Baraitha] bases the calculation upon the qualities of the defendant's estate,7 but the first bases it upon those of the general public.8
Rabina said: The point at issue is the view expressed by 'Ulla.9 For 'Ulla said: Creditors for loans may, according to Pentateuchal Law, be paid out of the worst, as it is said, Thou shalt stand without, and the man to whom thou dost lend shall bring forth the pledge without unto thee.10 Now it is certainly in the nature of man [debtor] to bring out the worst of his chattels. Why then is it laid down that creditors for loans are paid out of the medium quality?11 This is a Rabbinic enactment made in order that prospective borrowers should not find the door of their benefactors locked before them. Now this enactment referred to by 'Ulla is accepted by the first [Baraitha] whereas the second disapproves of this enactment.12
Our Rabbis taught: If a defendant13 disposed of all his land14 to one or to three persons at one and the same time, they all have stepped into the place of the original owner.15 [If, however, the three sales took place] one after another, creditors of all descriptions will be paid out of the [property purchased] last;16 if this property does not cover [the liability], the last but one purchased estate is resorted to [for the balance]; if this estate again does not meet [the whole obligation], the very first purchased estate is resorted to [for the outstanding balance].
'If the defendant disposed of all his land to one' - under what circumstances [was it disposed of]? It could hardly be suggested [that it was effected] by one and the same deed, for if in the case of three persons whose purchases may have been after one another,17 you state that, 'They all have stepped into the place of the original owner,' what need is there to mention one person purchasing all the estate by one and the same deed? It therefore seems pretty certain [that the estate disposed of to one person was effected by] deeds of different dates. But [then] why such a distinction?18 Just as in the case of three purchasers [in succession] each can [in the first instance] refer any creditor [to the very last purchased property], saying, '[When I bought my estate] I was careful to leave [with the defendant] plenty for you to be paid out of,'19 why should not also one purchaser [by deeds of different dates] be entitled to throw the burden of payment on to the very last purchased property, saying, '[When I acquired title to the former purchases] I was very careful to leave for you plenty to be paid out of'? - We are dealing here with a case where the property purchased last was of the best quality;20 also R. Shesheth stated that [this law applies] when the property purchased last was of the best quality. If this be the case, why [on the other hand] should not creditors of all kinds come and be paid out of the best quality [as this was the property purchased last]? - Because the defendant may say to the creditors: 'If you acquiesce and agree to be paid out of the qualities respectively allotted to you by law, you may be paid accordingly, otherwise I will transfer the deed of the worst property back to the original owner - in which case you will all be paid out of the worst.'21 If so,
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(1) Here begins R. Samuel's argument.
(2) I.e., at the time when the loan took place, in which case the creditors then obtained a claim on the medium quality by the process of law.
(3) At the time when the loan took place, in which case the medium (in the absence of a better quality) was relatively the best, and therefore not available to creditors for loans.
(4) But was either retained, as is the case in the second Baraitha, or on the other hand not owned at all at the time of the loan as is the case in the first Baraitha.
(5) In such a case it is considered the best quality to all intents and purposes, as the calculation is based upon the general standard of quality.
(6) It is thus termed only medium and creditors for loans have access to it.
(7) Hence in the absence of a better quality in his own estate, that property which is termed medium in comparison to the general standard is the best in the eye of the law.
(8) According to which it is but medium.
(9) Git. 50a.
(10) Deut XXIV, 11.
(11) Git. V, 1.
(12) Maintaining that creditors for loans will always he paid out the worst quality.
(13) I.e., a debtor for damages, loans and marriage-settlements.
(14) Consisting of best, medium and worst qualities.
(15) So that creditors for damages, for loans and for marriage-settlements will he paid according to their respective rights.
(16) Whether it be best, medium or worst.
(17) Though on one and the same day; cf, Keth. 94a.
(18) I.e., why should the legal position of one purchaser be worse than that of three?
(19) As, according to a Mishnaic enactment (Git. V, 1), 'Property disposed of by a debtor could not he resorted to by his creditors so long as there are with him available possessions undisposed of.'
(20) In which case it is not in the interest of the purchaser that the last purchase should he available to any one of the creditors.
(21) At the hands of the debtor, according to the Mishnaic enactment, Git. V, 1.
Talmud - Mas. Baba Kama 8b
why should the same not be said regarding creditors for damages?1 It must therefore he surmised that we deal with [a case where the vendor has meanwhile died, and, as his] heirs are not personally liable to pay,2 the original liability [which accompanied the purchased properties] must always remain upon the purchaser;3 who could consequently no longer [threaten the creditors and] say this: ['If you acquiesce . . .'?]4 - But the reason the creditors cannot be paid out of the best is that the vendee may [repudiate their demand and] say to them: 'On what account have the Rabbis enacted that "property disposed of by a debtor can not be attached by his creditors so long as there are available possessions still not disposed of"5 if not for the sake of protecting my interests? In the present instance I have no interest in availing myself of this enactment.' Exactly as Raba, for Raba elsewhere said: Whoever asserts, 'I have no desire to avail myself of a Rabbinical enactment' such as this is listened to.6 To what does 'such as this' refer? - To R. Huna, for R. Huna said: A woman is entitled to say to her husband, 'I don't expect any maintenance from you7 and I do not want to work for you.'8
It is quite certain that if the vendee9 has sold the medium and worst qualities and retained the best, creditors of all descriptions may come along and collect out of the best quality. For this property was acquired by him last; and, since the medium and worst qualities are no more in his possession, he is not in a position to say to the creditors: 'Take payment out of the medium and worst properties, as I have no interest in availing myself of the Rabbinic enactment.'10 But what is the law when the vendee disposed of the best quality and retained the medium and the worst? - Abaye at first was inclined to say: Creditors of all descriptions are entitled to come and collect out of the best.11 But Raba said to him.12 Does not a vendee selling [property] to a sub-vendee assign to him all the rights [connected] therewith] that may accrue to him?13 Hence just as when the creditors come to claim from the vendee, he is entitled to pay them out of the medium and the worst [respectively], irrespective of the fact that when the medium and the worst qualities were purchased by him, the best property still remained free with the original vendor, and in spite of the enactment that properties disposed of cannot be distrained on [at the hands of the vendee] so long as there is available [with the debtor] property undisposed of,14 the reason of the exception being that the vendee is entitled to say that he has no interest in availing himself of this enactment, so is the subvendee similarly entitled to say to the creditors: 'Take payment out of the medium and the worst.'15 For the sub-vendee entered into the sale only upon the understanding that any right that his vendor may possess in connection with the purchase should also be assigned to him.
Raba said:16 If Reuben disposed of all his lands to Simeon who in his turn sold one of the fields to Levi, Reuben's creditor may come and collect out of the land which is in the possession either of Simeon or Levi. This law applies only when Levi bought medium quality; but if he purchased either the best or the worst the law is otherwise, as Levi may lawfully contend: 'I have purposely been careful to buy the best or the worst, that is, property which is not available for you.'17 Again, even when he bought medium quality the creditor will not have this option unless Levi did not leave [with Simeon] medium quality of a similar nature,in which case he is unable to plead, 'l have left for you ample land with Simeon;' but if Levi did leave with Simeon medium quality of a similar nature the creditor is not entitled to distrain on Levi who may lawfully contend, 'I have left for you ample land [with Simeon] to satisfy your claim from it.
Abaye said:18 If Reuben had disposed of a field to Simeon with a warranty [of indemnity],19 and an alleged creditor of Reuben came to distrain on it from Simeon, Reuben is entitled by law to come forward and litigate with the creditor, nor can the latter say to him: 'You [Reuben] are no party to me;'20 for Reuben will surely say to him: 'If you will deprive Simeon of the field purchased by him from me, he will turn on me.'21 There are some who say: Even if there were no warranty there the same law applies, as Reuben may say to the alleged creditor: 'I don't want Simeon to have any grievance against me.'
And Abaye further said:22 If Reuben sold a field to Simeon without a warranty [for indemnity]
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(1) I.e., they also should thus not he paid out of the best; like creditors for loans they would still he paid out of the medium quality, as the worst quality they could never lose.
(2) I.e., when no land was left in the inherited estate.
(3) For even by transferring the worst quality to the heirs he would not escape any liability affecting him.
(4) Since the liability upon him will thereby not be affected, why then should they, in such circumstances, not resort to the very best property purchased?
(5) Git. V, 1.
(6) Keth. 83a.
(7) Maintenance is a Rabbinical enactment for married women in exchange for their domestic work; cf. Keth. 47b.
(8) Keth. 58b.
(9) Who at successive sales purchased the whole estate of a debtor, and the last purchase was property of the best quality.
(10) As supra p. 31.
(11) At the hands of the sub-vendee, since nothing else of the same estate is with him to be offered to the creditors
(12) Cf. 'Ar. 31b.
(13) I.e., the vendee.
(14) Git. V, 1.
(15) At the hands of the vendee.
(16) Cf. Keth. 92b.
(17) Cf. supra p. 29.
(18) Cf. Keth. 92b and B.M. 14a.
(19) In case it is distrained on by the vendor's creditors.
(20) For he who has no personal interest in a litigation can be no pleader in it; cf. infra 70a.
(21) To be indemnified for the warranty.
(22) Keth. 92b-93a.
Talmud - Mas. Baba Kama 9a
and there appeared claimants [questioning the vendor's title], so long as Simeon had not yet taken possession of it he might withdraw; but after he had taken possession of it he could no longer withdraw. What is the reason for that? - Because the vendor may say to him: 'You have agreed to accept a bag tied up with knots.'1 From what moment [in this case] is possession considered to be taken? - From the moment he sets his foot upon the landmarks [of the purchased field]. This applies only to a purchase without a warranty. But if there is a warranty the law is otherwise. Some, however, say: Even if there is a warranty the same law applies, as the vendor may still say to him: 'Produce the distress warrant2 against you and I will indemnify you.'
R. Huna said: [The payment for damages is] either with money or with the best of the estate.3 R. Nahman objected to R. Huna [from the Baraitha]: He should return4 shows that payment in kind is included, even with bran?5 - This deals with a case where nothing else is available. If nothing else is available, is it not obvious? - You might have thought that we tell him to go and take the trouble to sell [the bran] and tender the plaintiff ready money. It is therefore made known to us [that this is not the case.].
R. Assi said: Money is on a par with land. What is the legal bearing of this remark? If to tell us what is best, is this not practically what R. Huna said?6 It may, however, refer to two heirs7 who divided an inheritance, one taking the land and the other the money. If then a creditor8 came and distrained on the land, the aggrieved heir could come forward and share the money with his brother. But is this not self-evident? Is the one a son [to the deceased] and the other one not a son? There are some who argue [quite the reverse]: The one brother may say to the other, 'I have taken the money on the understanding that if it be stolen I should not be reimbursed by you, and you also took the land on the understanding that if it be distrained on there should be no restitution to you out of anything belonging to me.' It9 will therefore refer to two heirs7 who divided lands among themselves after which a creditor8 came along and distrained on the portion of one of them.10 But has not R. Assi already once enunciated this law? For it was stated;11 [In the case of] heirs who divided [the land of the inheritance among themselves], if a creditor8 came along and distrained on the portion of one of them, Rab said: The original apportionment becomes null and void. Samuel said: The portion is waived; but R. Assi said: The portion is refunded by a quarter in land or by a quarter in money.12 Rab, who said that the partition becomes null and void, maintains that heirs, even after having shared, remain13 co-heirs;14 Samuel, who said that the portion is waived, maintains that heirs, after having shared, stand to each other in the relationship of vendees, each being in the position of a purchaser without a warranty [of indemnity];15 R. Assi, who said that the portion is refunded by a quarter in land or by a quarter in money, is in doubt as to whether heirs, after having shared, still remain co-heirs16 or stand in the relationship of vendees;15 and on account of that [doubt] there must be refunded a quarter in land or a quarter in money.17 What then is the meaning of 'Money is on a par with land'?18 - In respect of being counted as 'best'. But if so, is not this practically what R. Huna said? - Read 'And so also said R. Assi . . .'
R. Zera said on behalf of R. Huna: For [the performance of] a commandment one should go up to a third. A third of what?
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(1) I.e., you bought it at your own risk; the sale is thus the passing not of ownership but of possession.
(2) טירפא, document conferring the right of seizure of a debtor's property sold after the loan (Jast.).
(3) R. Huna refers either to the last clause of the Mishnah on p. 1 or to the problem raised by Abaye on p. 24.
(4) Ex. XXI, 34.
(5) Cf. supra p. 24.
(6) The text should thus run, 'And so also said R. Assi . . .'
(7) Lit. 'brothers'.
(8) Of the deceased.
(9) I.e., R. Assi's statement.
(10) [In which case R. Assi stated that the other can offer in refundment either money or land.]
(11) B.B. 107a.
(12) Cf. Bek. 48a.
(13) In this respect.
(14) So that all of them have to share the burden of the debt and if the portion of the one was distrained on, the portion of the other constitutes the whole inheritance which has equally to he distributed accordingly.
(15) Who cannot thus be reimbursed for the distress effected upon the portion assigned to any one of them.
(16) V. p. 34. n. 11.
(17) On the principle that in such and similar matters the two parties should equally have the benefit of the doubt (Rashi, according to one interpretation).
(18) Stated above by R. Assi.
Talmud - Mas. Baba Kama 9b
You could hardly suggest 'a third of one's possessions,' for if so when one chanced to have three commandments [to perform at one and the same time] would one have to give up the whole of one's possessions? - R. Zera therefore said: For [performing a commandment in] an exemplary manner one should go up to a third of [the ordinary expense involved in] the observance thereof.
R. Ashi queried: Is it a third from within [the ordinary expense]1 or is it a third from the aggregate amount?2 This stands undecided.
In the West3 they said in the name of R. Zera: Up to a third, a man must perform it out of his own,4 but from a third onwards he should perform it in accordance with the special portion the Holy One, blessed be He, has bestowed upon him.5
MISHNAH. WHENEVER I AM UNDER AN OBLIGATION OF CONTROLLING [ANYTHING IN MY POSSESSION], I AM CONSIDERED TO HAVE PERPETRATED ANY DAMAGE THAT MAY RESULT.6 WHEN I AM TO BLAME FOR A PART OF THE DAMAGE I AM LIABLE TO COMPENSATE FOR THE DAMAGE AS IF I HAD PERPETRATED THE WHOLE OF THE DAMAGE.
THE [DAMAGED] PROPERTY MUST BE OF A KIND TO WHICH THE LAW OF SACRILEGE7 HAS NO APPLICATION. THE [DAMAGED] PROPERTY SHOULD BELONG TO PERSONS WHO ARE UNDER [THE JURISDICTION OF] THE LAW.8 THE PROPERTY SHOULD BE OWNED. THE PLACE [OF THE DAMAGE] IS IMMATERIAL, WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT OR PREMISES OWNED [JOINTLY] BY THE PLAINTIFF AND THE DEFENDANT. WHENEVER DAMAGE HAS OCCURRED, THE OFFENDER IS LIABLE TO INDEMNIFY WITH THE BEST OF HIS ESTATE.
GEMARA. Our Rabbis taught: 'WHENEVER I AM UNDER AN OBLIGATION OF CONTROLLING [ANYTHING IN MY POSSESSION], I AM CONSIDERED TO HAVE PERPETRATED ANY DAMAGE [THAT MAY RESULT]. How is that? When an ox or pit which was left with a deaf-mute, an insane person or a minor, does damage, the owner is liable to indemnify. This, however, is not so with a fire.' With what kind of case are we here dealing? If you say that the ox was chained and the pit covered, which corresponds in the case of fire to a hot coal, what difference is there between the one and the other? If on the other hand the ox was loose and the pit uncovered which corresponds in the case of fire to a flame, the statement 'This, however, is not so with a fire,' would here indicate exemption, but surely Resh Lakish said in the name of Hezekiah: They9 have not laid down the law of exemption unless there was handed over to him10 a coal which he has blown up, but in the case of a flame there will be full liability, the reason being that the danger is clear!11 - Still, the ox may have been chained and the pit covered and the fire likewise in a coal, yet your contention, 'Why should we make a difference between the one and the other?' could be answered thus: An ox is in the habit of loosening itself; so also a pit is in the nature of getting uncovered; but a hot coal, the longer you leave it alone, the more it will get cooler and cooler. According to R. Johanan, however, who said11 that even when there has been handed over to him10 a flame the law of exemption applies, the ox here would likewise be loose and the pit uncovered; but why should we make a difference between the one and the other? - There, in the case of the fire, it is the handling of the deaf-mute that causes the damage, whereas here, in the case of the ox and the pit, it is not the handling of the deaf-mute that causes the damage.
Our Rabbis taught: There is an excess in [the liability for] Ox over [that for] Pit, and there is [on the other hand] an excess in [the liability for] Pit over [that for] Ox. The excess in [the liability for] Ox over [that for] Pit is that Ox involves payment of kofer12 and the liability of thirty [shekels] for the killing of a slave;13 when judgment [for manslaughter] is entered [against Ox] it becomes vitiated for any use,14 and it is in its habit to move about and do damage, whereas all this is not so in the case of Pit. The excess in [the liability for] Pit over [that for] Ox is that Pit is from its very inception a source of injury and is Mu'ad ab initio which is not so in the case of Ox.15
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(1) I.e., 33-1/3 per cent. of the cost of ordinary performance, the cost of the ordinary performance and that of the exemplary performance would thus stand to each other as 3 to 4.
(2) I.e., 50 per cent. of the cost of the ordinary performance; the cost of the ordinary performance and that of the exemplary performance would thus stand to each other as 2 to 3.
(3) Palestine.
(4) I.e., whether he possesses much or little.
(5) Cf. Shittah Mekubezeth and Nimmuke Joseph a.l. According to Rashi and Tosaf. a.l.: 'The cost up to a third remains man's loss in this world (as the reward for that will he paid only in the world to come); but the cost from a third onwards (if any) will he refunded by the Holy One, blessed be He, in man's lifetime.'
(6) From neglecting the obligation to control.
(7) Of consecrated things. cf. Lev. V, 15-16.
(8) Lit., 'sons of the Covenant', excluding heathens who do not respect the covenant of the law; v. infra p. 211, n. 6.
(9) I.e., the Rabbis of the Mishnah, v. infra 59b.
(10) I.e., to a deaf-mute, an insane person or a minor.
(11) Infra 59b.
(12) Cf. Ex. XXI, 29-30; v. Glos.
(13) Ibid. XXI, 32.
(14) V. infra p. 255.
(15) Cf. supra p. 3, nn. 6-7.
Talmud - Mas. Baba Kama 10a
There is an excess in [the liability for] Ox over [that for] Fire and there is [on the other hand] an excess in [the liability for] Fire over [that for] Ox. The excess in [the liability for] Ox over [that for] Fire is that Ox involves payment of kofer and the liability of thirty [shekels] for the killing of a slave; when judgment [for manslaughter] is entered against Ox it becomes vitiated for any use;1 if the owner handed it over to the care of a deaf-mute, an insane person or a minor he is still responsible [for any damage that may result];2 whereas all this is not so in the case of Fire. The excess in [the liability for] Fire over [that for] Ox is that Fire is Mu'ad ab initio which is not so in the case of Ox.
There is an excess in [the liability for] Fire over [that for] Pit, and there is [on the other hand] an excess in [the liability for] Pit over [that for] Fire. The excess in [the liability for] Pit over [that for] Fire is that Pit is from its very inception a source of injury; if its owner handed it over to the care of a deaf-mute, an insane person or a minor, he is still responsible [for any damage that may result],2 whereas all this is not so in the case of Fire. The excess in [the liability for] Fire over [that for] Pit is that the nature of Fire is to spread and do damage and it is apt to consume both things fit for it and things unfit for it, whereas all this is not so in the case of Pit.
Why not include in the excess of [liability for] Ox over [that for] Pit [the fact] that Ox is [also] liable for damage done to inanimate objects3 which is not so in the case of Pit?4 - The above [Baraitha] is in accordance with R. Judah who enjoins payment for damage to inanimate objects [also] in the case of Pit.5 If it is in accordance with R. Judah, look at the concluding clause, 'The excess in [the liability for] Fire over [that for] Pit is that the nature of Fire is to spread and do damage, and it is apt to consume both things fit for it and things unfit for it; whereas all this is not so in the case of Pit.' 'Things fit for it:' are they not 'of wood'? 'Things unfit for it: are they not 'utensils'?6 Now 'all this is not so in the case of Pit'. But if the statement is in accordance with R. Judah, did you not say that R. Judah enjoins payment for damage to inanimate objects [also] in the case of Pit? The Baraitha is, therefore, indeed in accordance with the Rabbis, but it mentions [some points] and omits [others].7 What else does it omit that it omits that [particular] point?8 - It also omits the law of hidden goods.9 On the other hand you may also say that the Baraitha can still be reconciled with R. Judah, for 'things unfit for it' do not include utensils,10 but do include [damage done by fire] lapping his neighbour's ploughed field and grazing his stones.11
R. Ashi demurred: Why not include, in the excess of liability for Ox Over [that for] Pit, [the fact] that Ox is [also] liable for damage done to consecrated animals that have become unfit [for the altar],12 whereas this is not so in the case of Pit?13 No difficulty arises if you assume that the Baraitha is in accordance with the Rabbis; just as it had omitted that point,14 it omitted this point too. But if you maintain that the Baraitha is in accordance with R. Judah, what else did it omit that it omits this [one] point?-It omitted [Ox] trampling upon newly broken land.15 [No! this is no argument,] for as to [Ox] trampling upon newly broken land there is no omission there, for this [is included in that which] has already been stated, 'It is in its habit to move about and do damage.'16
WHEN I HAVE PERPETRATED A PART OF THE DAMAGE. Our Rabbis taught: 'When I have perpetrated a part of the damage I become liable for the compensation for the damage as if I had perpetrated the whole of the damage. How is that? If one had dug a Pit nine handbreadths deep and another came along and completed it to a depth of ten handbreadths, the latter person is liable.' Now this ruling is not in accordance with Rabbi; for it was taught:17 If one had dug a pit nine handbreadths deep and another came along and completed it to a depth of ten handbreadths, the latter person is liable. Rabbi says: The latter person is liable in cases of death,18 but both of them in cases of injury!19 - R. Papa said: The Mishnaic ruling20 deals with cases of death and is unanimous.21 Some read: May we say that the Mishnah is not in accordance with Rabba? - R. Papa thereupon said: It deals with cases of death and is unanimous.
R. Zera demurred: Are there no other instances?22 Behold there is [the case] where an ox was handed over to the care of five persons and one of them was careless, so that the ox did damage; that one is liable! - But in what circumstances? If without the care of that one, the ox could not be controlled, is it not obvious that it is that one who perpetrated the whole of the damage?23 If, [on the other hand] even without the care of that one, the ox could be controlled, what, if anything at all, has that one perpetrated?
R. Shesheth, however, demurred: Behold there is [the case] where a man adds a bundle [of dry twigs to an existing fire]! - But in what circumstances?
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(1) V. p. 37, n. 6.
(2) Cf. supra p. 36.
(3) Lit., 'utensils'.
(4) Cf. supra pp. 17 and 18.
(5) V. supra p. 18 and infra 53b.
(6) Metal or earthenware.
(7) Such as the distinction between Ox and Pit with reference to inanimate objects
(8) As a Tanna would not, in enumeration, just stop short at one point.
(9) For damage to which, according to the Rabbis, there is no liability in the case of Fire; cf. supra p. 18 and infra 61b.
(10) V. p. 38, n. 6.
(11) V. supra p. 18.
(12) On account of a blemish, cf, Lev. XXII, 20 and Deut. XV, 21-22; such animals have to be redeemed, in accordance with Lev. XXVII, 11-13 and 27.
(13) Cf. infra 53b.
(14) I.e., with reference to inanimate objects.
(15) Which is impossible in the case of Pit.
(16) And therefore, if the Baraitha were in accordance with R. Judah, the question, 'What else did it omit etc.', would remain unanswered.
(17) Cf. Tosaf, B.K. VI, 3 and infra 51a.
(18) As without the additional handbreadth done by him the pit would have been nine handbreadths deep which could not occasion any fatal accident; cf, supra p. 7.
(19) For even a pit nine handbreadths deep could occasion injuries.
(20) Which declares the latter person 'who perpetrated part of the damage' liable.
(21) I.e., is even in accordance with Rabbi.
(22) To illustrate the perpetration of a part of the damage involving liability for the whole of the damage.
(23) And not a part of it.
Talmud - Mas. Baba Kama 10b
If without his co-operation the fire would not have spread, is it not obvious [that he is totally to blame]? If [on the other hand] even without his co-operation the fire would have spread, what, if anything at all, has he perpetrated?
R. Papa demurred: Behold there is that case which is taught: 'Five persons were sitting upon one bench and did not break it; when, however, there came along one person more and sat upon it, it broke down; the latter is liable' - supposing him, added R. Papa, to have been as stout as Papa b. Abba.1 But under what circumstances? If without him the bench would not have broken, is it not obvious [that he is totally to blame]? If, on the other hand, without him it would also have broken, what, if anything at all, has he perpetrated? Be this as it may, how can the Baraitha be justified? - It could hold good when, without the newcomer, the bench would have broken after two hours, whereas now it broke in one hour. They2 therefore can say to him: 'If not for you we would have remained sitting a little while longer and would then have got up.'3 But why should he not say to them: 'Had you not been [sitting] there, through me the bench would not have broken'?4 - No; it holds good when he [did not sit at all on the bench but] merely leaned upon them and the bench broke down. Is it not obvious [that he is liable]? - You might have argued '[Damage done by] a man's force is not comparable with [that done directly by] his body.'It is therefore made known to us that [a man is responsible for] his force [just as he] is [for] his body, for whenever his body breaks [anything] his force also participates in the damage.5
Are there no other instances? Behold there is that which is taught:5 When ten persons beat a man with ten sticks, whether simultaneously or successively, so that he died, none of them is guilty of murder. R. Judah b. Bathyra says: If [they hit] successively, the last is liable, for he was the immediate cause of the death!6 - Cases of murder are not dealt with here.7 You may also say that controversial cases are not dealt with.7 Are they not? Did not we suggest that the Mishnah is not in accordance with Rabbi?8 - That the Mishnah is not in accordance with Rabbi but in accordance with the Rabbis, we may suggest;9 whereas that it is in accordance with R. Judah b. Bathyra, and not in accordance with the Rabbis, we are not inclined to suggest.9
I AM LIABLE TO COMPENSATE FOR THE DAMAGE. 'I become liable for the replacement of the damage' is not stated but '. . . TO COMPENSATE FOR THE DAMAGE'. We have thus learnt here that which the Rabbis taught elsewhere:10 '"To compensate for damage" imports that the owners [plaintiffs] have to retain the carcass as part payment'. What is the authority for this ruling? - R. Ammi said: Scripture states, He that killeth a beast yeshallemennah [shall make it good];11 do not read yeshallemennah ['he shall pay for it'], but yashlimennah12 ['He shall complete its deficiency']. R.Kahana infers it from the following: If it be torn in pieces, let him bring compensation up to ['ad]13 the value of the carcass,' he shall not make good that which was torn.14 'Up to' the value of the carcass15 he must pay, but for the carcass itself he has not to pay. Hezekiah infers it from the following: And the dead shall be his own,16 which refers to the plaintiff. It has similarly been taught in the school of Hezekiah: And the dead shall be his own,16 refers to the plaintiff. You say 'the plaintiff'. Why not the defendant? You may safely assert: 'This is not the case.' Why is this not the case? - Abaye said: If you assume that the carcass must remain with the defendant, why did not the Divine law, stating He shall surely pay ox for ox,17 stop at that? Why write at all And the dead shall be his own?18 This shows that it refers to the plaintiff.
And all the quotations serve each its specific purpose. For if the Divine Law had laid down [this ruling only in] the verse 'He that killeth a beast shall make it good,' the reason of the ruling would have been assigned to the infrequency of the occurrence,19 whereas in the case of an animal torn in pieces [by wild beasts]'20 which is [comparatively] of frequent occurrence, the opposite view might have been held;21 hence special reference is essential.20 If [on the other hand] this ruling had been made known to us only in the case of an animal torn in pieces.22 it would have been explained by the fact that the damage there was done by an indirect agency,23 whereas in the case of a man killing a beast, where the damage was done by a direct agency, the opposite view might have been held. Again, were this ruling intimated in both cases, it would have been explained in the one case on account of its infrequency,24 and in the other account of the indirect agency,25 whereas in the damage to which 'And the dead shall be his own'26 refers, which is both frequent and direct,27 an opposite view might have been taken. If [on the other hand] this ruling had been intimated only in the case referred to by 'And the dead shall be his own, it would have been explained by the fact of the damage having been done only by man's possession,28 whereas in cases where the damage resulted from man's person29 an opposite view might have been taken. Hence all quotations are essential.
R.Kahana said to Rab: The reason [for the ruling] is that the Divine Law says 'And the dead shall be his own', and but for this I might have thought that the carcass shall remain with the defendant [yet how can this be]? If, when there are with him30 several carcasses he is entitled to pay him31 with them, for the Master stated: He shall return,32 includes payment in kind, even with bran,33 what question then about the carcass of his own animal? - No, the verse is required only for the law regarding the decrease of the value of the carcass34
May we say that the decrease of the value of the carcass is a point at issue between Tannaitic authorities? For it has been taught: If it be torn in pieces, let him bring it for witness:35
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(1) Who was very corpulent, cf. B.M. 84a. [According to Zacuto's Sefer ha-Yuhasin, the reference there is not to R. Papa but to Papa b. Abba]
(2) I.e., the five persons that had previously been sitting upon the bench.
(3) Therefore he is to he regarded as having perpetrated the whole, and not merely a part, of the damage.
(4) And why should he alone be liable?
(5) V. infra pp. 79-80.
(6) Sanh. 78a and infra p. 139. [Why then was this ruling of R. Judah not taken as a further illustration of the Mishnaic principle?]
(7) In the Mishnah before us (which presents the law of civil action and not that of murder).
(8) Cf. supra p. 39.
(9) As it is the view of the majority that prevails; Ex. XXIII, 2.
(10) Tosef. B.K. I. 1.
(11) ישלמנה Lev. XXIV, 18.
(12) Changing the vowels of the Hebrew verb; ישלמנה into ישלימנה
(13) Similarly by changing the vowel; the monosyllable עד (witness) is read עד 'up to'.
(14) Ex. XXII, 12.
(15) I.e., the amount required to make up the deficiency.
(16) Ex. XXI, 36.
(17) Ex. XXI, 36.
(18) Ibid; since it is self-evident that the defendant, having paid for the ox, claims the carcass.
(19) For a man to kill a beast with intent to cause damage to his neighbour.
(20) Ex. XXII, 12.
(21) In the interest of the plaintiff.
(22) V. p. 42, n. 11.
(23) I.e., not by the bailee himself but by a wild beast.
(24) I.e., man killing an animal.
(25) I.e., when the animal in charge was torn by beasts.
(26) I.e.,in the case of a goring ox, Ex. XXI, 36.
(27) The ox being his property, makes the owner responsible for the damage as if it were perpetrated by himself,
(28) I.e., by his cattle.
(29) Such as in Lev. XXIV, 18 and Ex. XXII, 12.
(30) I.e.,with the defendant.
(31) I.e., the plaintiff.
(32) EX.XXI, 34.
(33) Cf. supra p. 24.
(34) That is to he sustained by the plaintiff, since it becomes his from the moment of the goring.
(35) Ex.XXII, 12.
Talmud - Mas. Baba Kama 11a
Let him1 bring witnesses that it had been torn by sheer accident and free himself. Abba Saul says: Let him2 [in all cases] bring the torn animal3 to the Court. Now is not the following the point at issue: The latter maintains that a decrease in value of the carcass will be sustained by the plaintiff,4 whereas the former view takes it to be sustained by the defendant? - No, it is unanimously held that the decrease will be sustained by the plaintiff. Here, however, the trouble of [providing5 for bringing up] the carcass [from the pit] is the point at issue,6 as [indeed] taught: Others say, Whence [could it be derived] that it is upon the owner of the pit to bring up the [damaged] ox from his pit? We derive it from the text, 'Money shall he return unto to the owner. And the dead beast'. . .7 Abaye said to Raba: What does this trouble about the carcass mean? If the value of the carcass in the pit is one zuz,8 whereas on the banks9 its value will be four [zuz], is he not taking the trouble [of bringing up the carcass] solely in his own interests? - He [Raba], however, said: No, it applies when in the pit its value is one zuz, and on the banks its value is similarly one zuz. But is such a thing possible? Yes, as the popular adage has it, 'A beam in town costs a zuz and a beam in a field costs a zuz'.
Samuel said: No assessment is made in theft and robbery10 but in cases of damage;11 I, however, maintain that the same applies to borrowing,12 and Abba13 agrees with me. It was therefore asked: Did he mean to say that 'to borrowing the law of assessment does apply and Abba agrees with me,' Or did he perhaps mean to say that 'to borrowing the law of assessment does not apply and Abba agrees with me'? - Come and hear: A certain person borrowed an axe from his neighbour and broke it. He came before Rab, who said to him, 'Go and pay [the lender] for his sound axe.'14 Now, can you not prove hence15 that [the law of] assessment does not apply [to borrowing]?16 - On the contrary, for since R. Kahana and R. Assi [interposed and] said to Rab, 'Is this really the law?' and no reply followed, we can conclude that assessment is made. It has been stated: 'Ulla said on behalf of R. Eleazar: Assessment is [also] made in case of theft and robbery; but R. Papi said that no assessment is made [in these cases]. The law is: No assessment is made in theft and robbery, but assessment is made in cases of borrowing, in accordance with R. Kahana and R. Assi.
'Ulla further said on behalf of R. Eleazar: When a placenta comes out [from a woman] partly on one day and partly on the next day, the counting of the days of impurity17 commences with the first day [of the emergence]. Raba, however, said to him: What is in your mind? To take the stricter course? Is not this a strictness that will lead to lenience, since you will have to declare her pure18 by reckoning from the first day? Raba therefore said: 'Out of mere apprehension, notice is taken of the first day [to be considered impure], but actual counting commences only with the second day.' What is the new point made known to us? That even a part of an [emerging] placenta contains a fetus. But have we not learnt this elsewhere:19 'A placenta coming partly out of an animal20 renders [the whole of] it unfit for consumption,21 as that, which is a sign of a fetus in humankind is similarly a sign of a fetus in an animal'? - As to this Mishnaic statement I might still have argued
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(1) I.e.,the paid bailee who is defending himself against the depositor.
(2) V. p 43 n. 15.
(3) [עד :עדודה being an unaugmented passive participle from the root דדע, v. Halpern, B. ZAW, XXX, p. 57.]
(4) I.e., when the deposited animal has been torn not by accident, in which case the paid bailee has to indemnify. The torn animal is thus brought at once to the Court to ascertain its value at the time of the mishap.
(5) I.e , the expenses involved.
(6) Abba Saul maintains that the defendant has to do it, whereas the other view releases him from this.
(7) Ex. XXI, 34; the subject of the last clause is thus joined to the former sentence as a second object.
(8) A coin; V. Glos.
(9) Of the pit.
(10) In which case payment must b e made in full for the original value of the damaged article.
(11) Where the carcass may he returned to the plaintiff.
(12) Treated in Ex. XXII, 13.
(13) [I.e., Rab whose full name was Abba].
(14) B.M. 96b.
(15) When the value of the broken axe vas not taken into account, but full payment for the axe in its original condition was ordered.
(16) Since Rab ordered the borrower to pay in full for the original value of the axe.
(17) Which are seven for a male child and fourteen for a girl; cf. Lev. XII. 2 and 5.
(18) I.e., after the expiration of the 7 or 14 days for a male or female child respectively, when there commence 33 or 66 days of purity for a boy or girl respectively; cf. Lev. ibid. 4-5.
(19) Hul. 68a.
(20) Before the animal was slaughtered.
(21) As it is considered to contain a fetus which when born is subject to the law of slaughtering on its own accord.
Talmud - Mas. Baba Kama 11b
that it is quite possible for a part of a placenta to emerge without a fetus, but that owing to a [Rabbinic] decree a part of a placenta is in practice treated like the whole of it;1 it is therefore made known to us2 that this is not the case.
'Ulla further said on behalf of R. Eleazar: A first-born son who has been killed within thirty days [of his birth] need not be redeemed.3 The same has been taught by Rami b. Hama: From the verse, Shalt thou surely redeem4 one might infer that this would apply even when the firstborn was killed within thirty days [of his birth]; there is therefore inserted the term 'but'5 to exclude it.
'Ulla further said on behalf of R. Eleazar: [Title to] large cattle is acquired by 'pulling'.6 But did we not learn, . . . by 'delivery'?7 - He8 follows another Tanna; for it has been taught:9 The Rabbis say: Both one and the other10 [are acquired] by 'pulling'. R. Simeon says: Both one and the other by 'lifting up'.
'Ulla further said on behalf of R. Eleazar: In the case of heirs11 who are about to divide the estate among themselves, whatever is worn by them will [also] be assessed [and taken into account], but that which is worn by their sons and daughters is not assessed [and not taken into account].12 R. Papa said: There are circumstances when even that which is worn by the heirs themselves is not assessed. This exception applies to the eldest of the heirs,13 as it is in the interest of them all that his words should be respected.
'Ulla further said on behalf of R. Eleazar: One bailee handing over his charge to another bailee does not incur thereby any liability.14 This ruling unquestionably applies to an unpaid bailee handing over his charge to a paid bailee in which case there is a definite improvement in the care; but even when a paid bailee hands over his charge to an unpaid bailee where there is definitely a decrease in the care, still he thereby incurs no liability, since he transfers his charge to a responsible person.
Raba, however, said: One bailee handing over his charge to another bailee becomes liable for all consequences. This ruling unquestionably holds good in the case of a paid bailee handing over his charge to an unpaid bailee where there is a definite decrease in the care; but even when an unpaid bailee hands over his charge to a paid bailee, where there is definitely an improvement in the care, still he becomes liable for all consequences, as the depositor may say [to the original bailee]: You would be trusted by me [should occasion demand] an oath [from you], but your substitute would not be trusted by me in the oath [which he may be required to take].15
'Ulla further said on behalf of R. Eleazar: The law is that distraint may be made on slaves.16 Said R. Nahman to 'Ulla: Did R. Eleazar apply this statement even in the case of heirs17 [of the debtor]? - No, Only to the debtor himself. To the debtor himself? Could not a debt be collected even from the cloak upon his shoulder?18 - We are dealing here with a case where a slave was mortgaged,19 as in the case stated by Raba, for Raba said:20 Where a debtor mortgaged his slave and then sold him [to another person], the creditor may distrain on him [in the hands of the purchaser]. But where an ox was mortgaged and afterwards sold, the creditor cannot distrain on it [in the hands of the purchaser], the reason [for the distinction] being that in the former case the transaction of the mortgage aroused public interest21 whereas in the latter case no public interest was aroused.22
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(1) On account of mere apprehension, lest no distinction will he made between the emergence of the whole of the placenta and a part of it.
(2) In the statement of 'Ulla on behalf of R. Eleazar,
(3) Notwithstanding Num. XVIII, 15-16.
(4) Ibid. 15.
(5) Hebrew 'Ak אכ being a particle of limitation.
(6) I.e., by the buyer; v, Glos. s.v. Meshikah.
(7) l.e., by the seller handing over the bit to the buyer; Kid. 25b.
(8) I.e., 'Ulla on behalf of R. Eleazar.
(9) Cf. Kid. 25b and B.B. 86b.
(10) I.e. Large and small cattle.
(11) Lit., 'brothers'.
(12) As it would be a degradation to them to be forced to appear before the court.
(13) In charge of the administration of the affairs of the heirs.
(14) Cf.B.M. 36a.
(15) The original bailee has thus committed a breach of the trust.
(16) Cf. B.B. 128a.
(17) Who inherited the slaves; v. supra p. 31.
(18) Why then speak about slaves?
(19) By the debtor who had meanwhile died.
(20) Infra 33b and B.B. 44b.
(21) So that the purchaser was no doubt aware of it and should consequently not have bought it.
(22) So that the purchaser is not to blame.
Talmud - Mas. Baba Kama 12a
After R. Nahman went out 'Ulla said to the audience: 'The statement made by R. Eleazar refers even to the case of heirs.' R. Nahman said: 'Ulla escaped my criticism'. A case of this kind arose in Nehardea and the judges of Nehardea1 distrained [on slaves in the hands of heirs]. A further case took place in Pumbeditha and R. Hana b. Bizna distrained [on slaves in the hands of heirs]. But R. Nahman said to them: 'Go and withdraw [your judgments], otherwise I will distrain on your own homes [to reimburse the aggrieved heirs].'2 Raba, however, said to R. Nahman: 'There is 'Ulla, there is R. Eleazar, there are the judges of Nehardea and there is R. Hana b. Bizna [who are all joining issue with you]; what authorities is the Master following?' - He said to him:3 'I know of a Baraitha, for Abimi learned: "A prosbul4 is effective only when there is realty5 [belonging to the debtor] but not when he possesses slaves6 only. Personalty is transferred along with realty7 but not along with slaves."'6
May we not say that this problem is a point at issue between the following Tannaim? [For it was taught:] 'Where slaves and lands are sold, if possession is taken of the slaves no title is thereby acquired to the land, and similarly by taking possession of the lands no title is acquired to the slaves. In the case of lands and chattels, if possession is taken of the lands title is also acquired to the chattels,7 but by taking possession of the chattels no title is acquired to the lands. In the case of slaves and chattels, if possession is taken of the slaves no title is thereby acquired to the chattels,8 and similarly by taking possession of the chattels no title is acquired to the slaves. But [elsewhere] it has been taught: 'If possession is taken of the slaves the title is thereby acquired to the chattels.'9 Now, is not this problem the point at issue: the latter Baraitha9 maintains that slaves are considered realty [in the eye of the law], whereas the former Baraitha10 is of the opinion that slaves are considered personalty? - R. Ika the son of R. Ammi, however, said: [Generally speaking] all [authorities] agree that slaves are considered realty. The [latter] Baraitha stating that the transfer [of the chattels] is effective, is certainly in agreement; the [former] Baraitha stating that the transfer [of the chattels] is ineffective, may maintain that the realty we require is such as shall resemble the fortified cities of Judah in being immovable. For we have learnt: 'Property which is not realty may be acquired incidentally with property which is realty11 through the medium of either [purchase] money, bill of sale or taking possession.' [And it has been asked:]12 What is the authority for this ruling? And Hezekiah thereupon said: Scripture states, And their father gave them great gifts of silver and of gold and of precious things with fortified cities in Judah.13 [Alternatively] there are some who report: R. Ika the son of R. Ammi said: [Generally speaking] all [authorities] agree that slaves are considered personalty. The [former] Baraitha stating that the transfer [of the chattels] is ineffective is certainly in agreement; the [latter] Baraitha stating that the transfer of the chattels is effective deals with the case when the chattels [sold] were worn by the slave.14 But even if they were worn by him, what does it matter? He is but property15 in motion, and property in motion cannot be the means of conveying anything it carries. Moreover, even if you argue that the slave was then stationary, did not Raba say that whatsoever cannot be the means of conveying while in motion cannot be the means of conveying even while in the state of standing or sitting?16 - This law applies to the case where the slave was put in stocks. But behold has it not been taught: 'If possession is taken of the land, title is thereby acquired also to the slaves'?17 - There the slaves were gathered on the land.18 This implies that the Baraitha which stated that the transfer of the slaves is ineffective,19 deals with a case where the slaves were not gathered on the land. That is all very well according to the version that R. Ika the son of R. Ammi said that slaves are considered personalty; there is thus the stipulation that if they were gathered on the land, the transfer is effective, otherwise ineffective. But according to the version which reads that slaves are considered realty, why the stipulation that the slaves be gathered on the land?
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(1) Generally referring to R. Adda b. Minyomi; Sanh. 17b.
(2) As he considered them to have acted against established law, and so ultra vires; cf infra pp. 584ff. and Sanh. 33a.
(3) I.e., R. Nahman to Raba.
(4) ** i.e., an official declaration made in court by a lender to the effect that the law of limitation by the Sabbatical year shall not apply to the loans contracted by him; cf. Sheb. X. 4 and Git. 36a. V. Glos.
(5) As realty even when sold by the debtor could be distrained on in the hands of the purchasers; cf. Git. 37a.
(6) As these are considered personalty. They cannot therefore be distrained on in the hands of heirs.
(7) I.e., the acquisition of land confers title to chattels bought at the same time. Kid. 26a; v. infra, p. 49.
(8) Slaves seem thus to be not realty.
(9) In this Baraitha slaves are treated like realty.
(10) Stating that by taking possession of slaves no title is acquired to chattels.
(11) Lit, 'property which affords no surety may be acquired along with property which does afford surety' (to creditors in case of non-payment of debts); Kid 26a.
(12) Kid. 26a.
(13) II Chron. XXI,3: with עם is taken in the sense by means of.
(14) They are therefore part and parcel of the slave.
(15) Lit., a courtyard.
(16) Git. 21a, 68a; B.M. 9b.
(17) Apparently on account of the fact that these are treated like personalty.
(18) In which case even if they are not personalty their transfer has to he valid.
(19) When only incidental to the transfer of land.
Talmud - Mas. Baba Kama 12b
Did not Samuel say that if ten fields in ten different countries are sold, as soon as possession is taken of one of them, the transfer of all of them becomes effective?1 - But even if your reasoning be followed [that it is in accordance with the version reading that slaves are considered personalty], why again the stipulation that the slaves be gathered on the land? Has it not been established that the personalty' need not be gathered on the land? You can therefore only say that there is a distinction in law between movable personalty2 and immovable personalty. Likewise here also [we say] there is a distinction in law between movable realty3 and immovable realty: slaves [if realty] are movable realty whereas there [in the case of the ten fields] land is but one block.
THE [DAMAGED] PROPERTY MUST BE OF A KIND TO WHICH THE LAW OF SACRILEGE HAS NO APPLICATION etc. So long as [the penalty of] Sacrilege does not apply. Who is the Tanna [of this view]? - R. Johanan said: This is so in the case of minor sacrifices according to R. Jose the Galilean, who considers them to be private property; for it has been taught: If a soul sin and commit a trespass against the Lord and lie unto his neighbour.4 . . this indicates also minor sacrifices,5 as these are considered private property;6 so R. Jose the Galilean. But, behold, we have learnt: If one betroths [a woman] by means of the priestly portion, whether of major sacrifices or of minor sacrifices, the betrothal is not valid.7 Are we to say that this Mishnah is not in accordance with R. Jose the Galilean?8 - You may even reconcile it with R. Jose the Galilean; for R. Jose the Galilean confines his remark to sacrifices that are still alive, whereas, in the case of sacrifices that have already been slaughtered, even R. Jose the Galilean agrees that those who are entitled to partake of the flesh acquire this right as guests at the divine table.9 But so long as the sacrifice is still alive, does he really maintain that it is private property? Behold, we have learnt: A firstling, if unblemished, may be sold only while alive; but if blemished [it may be sold] both while alive and when slaughtered. It may similarly be used for the betrothal of a woman.10 And R. Nahman said on behalf of Rabbah b. Abbuha:11 This is so only in the case of a firstling at the present time,12 in which, on account of the fact that it is not destined to be sacrificed, the priests possess a proprietary right; but at the time when the Temple still existed, when it would have been destined to be sacrificed, the law would not have been so.13 And Raba asked R. Nahman: [Was it not taught:] If a soul sin and commit a trespass against the Lord and lie unto his neighbour. . .;14 this indicates also minor sacrifices, as these are considered private property;15 this is the view of R. Jose the Galilean? And Rabina replied that the latter case16 deals with firstlings from outside [Palestine] and is in accordance with R. Simeon, who maintains that if they were brought [to Palestine] in an unblemished condition, they will be sacrificed.17 Now this is so only if they were brought [to Palestine, which implies that] there is no necessity to bring them there in the first instance for that specific purpose.18 Now, if it is the fact that R. Jose the Galilean considers them private property while alive,
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(1) Kid. 27a.
(2) That is to he acquired along with realty; v. Kid. 27a.
(3) Which needs to be gathered on the land.
(4) Lev. V, 21.
(5) E.g., peace offerings, as these belong partly to the Lord and partly to the neighbour; some parts thereof are burnt on the altar but the flesh is consumed by the original owners.
(6) Pes. 90a.
(7) Kid. 52b.
(8) For according to him the flesh is private property and alienable,
(9) I.e., as merely invited without having in them any proprietary rights.
(10) M.Sh. I, 2.
(11) Tem. 7b.
(12) When no sacrifices are offered.
(13) The priests would not have had in it a proprietary right nor have been able to use it for the betrothal of a woman.
(14) Lev, V, 21.
(15) Even in Temple times, since the text requires the offender to bring a trespass offering.
(16) Where they are considered private property.
(17) Tem. III. 5.
(18) And since they need not be brought and sacrificed they are considered the private property of the priests as stated by R. Jose the Galilean.
Talmud - Mas. Baba Kama 13a
why [did Rabina] not reply that the one1 is in accordance with R. Jose the Galilean,and the other2 in accordance with the Rabbis?3 - It was said in answer: How can you refer to priestly gifts? Priestly gifts are altogether different4 as those who are entitled to them enjoy that privilege as guests at the divine table.5
[To refer to] the main text : If a soul sin and commit a trespass against the Lord and lie unto his neighbour:6 this indicates also minor sacrifices; this is the view of R. Jose the Galilean. Ben 'Azzai says that it indicates [also] peace-offerings. Abba Jose b. Dostai said that Ben 'Azzai meant to include only the firstling. The Master said:6 'Ben Azzai says that it indicates [also] peace-offerings.' What does he mean to exclude? It can hardly be the firstling, for if in the case of peace-offerings which are subject to the laws of leaning,7 libations8 and the waving of the breast and shoulder,9 you maintain that they are private property, what question could there be about the firstling?10 - R. Johanan therefore said: He meant to exclude the tithe,11 as taught: In the case of the firstling, it is stated, Thou shalt not redeem;12 it may, however, if unblemished be sold while alive, and if blemished [it may be sold] alive or slaughtered; in the case of the tithe it is stated, It shall not be redeemed,13 and it can be sold neither alive nor slaughtered neither when unblemished nor when blemished.14 Rabina connected all the above discussion with the concluding clause: 'Abba Jose b. Dostai said that Ben 'Azzai meant to include only the firstling.' What does he mean to exclude? It can hardly be peace-offerings, for if the firstling which is holy from the very moment it opens the matrix,15 is private property, what question could there be about peace-offerings?16 - R. Johanan therefore said: He meant to exclude the tithe, as taught:17 In regard to the firstling it is stated, Thou shalt not redeem;18 it may, however, if unblemished be sold while alive and if blemished [it may be sold] alive or slaughtered; in regard to the tithe it is stated, It shall not be redeemed,19 and it can be sold neither while alive nor when slaughtered, neither when unblemished nor blemished. But does he not say, 'The firstling alone'?20 This is a difficulty indeed!
Raba [on the other hand] said: What is meant by 'THE [DAMAGED] PROPERTY MUST BE OF A KIND TO WHICH THE LAW OF SACRILEGE HAS NO APPlication' is that the property is not of a class to which the law of sacrilege may have any reference21 but is such as is owned privately . But why does not the text say. 'Private property'? - This is a difficulty indeed!
R.Abba said: In the case of peace-offerings that did damage,22 payment will be made23 out of their flesh but no payment could be made out of their emurim.24 Is it not obvious that the emurim will go up [and be burnt] on the altar? - No; we require to be told that no payment will be made out of the flesh for the proportion due from the emurim. But according to whose authority is this ruling made? If according to the Rabbis,25 is this not obvious? Do they not maintain that when payment cannot be recovered from one party, it is not requisite to make it up from the other party? If according to R. Nathan,26 [it is certainly otherwise] for did he not say that when no payment can be made from one party, it has to be made up from the other party? - If you wish, you may say: The ruling was made in accordance with R. Nathan; or, if you wish, you may say that it was made in accordance with the Rabbis. You may say that it was made in accordance with the Rabbis,for their ruling is confined to a case where the damage was done by two separate agencies,27 whereas, in the case of one agency,28 the plaintiff may be justified in demanding payment from whatever source he finds it convenient. Alternatively you may say that the ruling was made in accordance with R. Nathan, for it is only there [in the case of an ox pushing another's ox in a pit] that the owner of the damaged ox is entitled to say to the owner of the pit, 'I have found my ox in your pit; whatever is not paid to me by your co-defendant must be made up by you;'
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(1) Maintaining that a firstling is the private property of the priest.
(2) I.e., the statement of R. Nahman that a firstling is not the private property of the priest.
(3) The opponents of R. Jose the Galilean.
(4) Even R. Jose regards them in no case as the property of the priest; all the Rabbis including R. Jose are thus unanimous on this matter. Hence Rabina was unable to explain the one Baraitha in accordance with R. Jose and the other in accordance with the Rabbis.
(5) Even while the firstling is still alive.
(6) Lev. V, 21.
(7) Ibid. III, 2.
(8) Num. XV, 8-II.
(9) Lev. VII, 30-34.
(10) The sacredness of which is of a lower degree and is not subject to all these rites. Consequently it should thus certainly be considered private property. It, of course, deals with a firstling outside Palestine which is not destined to he sacrificed.
(11) Of cattle dealt with in Lev. XXVII, 32-33.
(12) Num. XVIII, 17, the text is taken not to include alienation, in which case the sanctity of the firstling is not affected.
(13) Lev XXVII, 33; in this case, on account of Gezerah Shawah. i.e. a similarity of phrases between ibid. and verse 28, the right of alienation is included; cf, Bek. 32a.
(14) Tem. 8a. Because it is not private property.
(15) Ex. XIII, 12.
(16) That they should certainly be private property.
(17) Tem. 8a.
(18) Num. XVIII, 17.
(19) Lev. XXVII, 33.
(20) Excluding thus everything else, even peace-offerings.
(21) I.e. is not holy at all.
(22) While still Tam, when the payment must be made out of the body of the doer of the damage, v. infra p. 73.
(23) According to R. Jose the Galilean who maintains, supra p. 50, that minor sacrifices are considered private property.
(24) The part which has to he burnt on the altar; cf. Lev. III, 3-4.
(25) Infra 53a. where in the case of an ox pushing somebody else's animal into a pit, the owner of the pit pays nothing, though the owner of the ox does not pay full damages.
(26) Who makes the owner of the pit also pay.
(27) I.e., the ox and the pit, v. p. 53. n. 12.
(28) Such as in the case of peace-offerings dealt with by R. Abba.
Talmud - Mas. Baba Kama 13b
but in the case in hand, could the plaintiff say, 'The flesh did the damage and the emurim did no damage'?1
Raba said: In the case of a thanksgiving-offering that did damage,2 payment will be made3 out of the flesh but no payment could be made out of its bread.4 'Bread'! Is this not obvious?5 - He wanted to lead up to the concluding clause: The plaintiff partakes of the flesh,6 while he, for whose atonement the offering is dedicated,7 has to bring the bread. Is not this also obvious? - You might have thought that since the bread is but an accessory to the sacrifice,4 the defendant may be entitled to say to the plaintiff. 'If you will partake of the flesh, why should I bring the bread?' It is therefore made known to us [that this is not the case, but] that the bread is an obligation upon the original owner of the sacrifice.
THE [DAMAGED] PROPERTY SHOULD BELONG TO PERSONS WHO ARE UNDER [THE JURISDICTION OF] THE LAW. What [person] is thereby meant to be excepted? If a heathen,8 is not this explicitly stated further on: 'An ox of an Israelite that gored an ox of a heathen is not subject to the general law of liability for damage'?9 - That which has first been taught by implication is subsequently explained explicitly.
THE PROPERTY SHOULD BE OWNED. What is thereby excepted? - Rab Judah said: It excepts the case [of alternative defendants] when the one pleads. 'It was your ox that did the damage,' and the other pleads. 'It was your ox that did the damage.' But is not this explicitly stated further on: If two oxen pursue another ox, and one of the defendants pleads. 'It was your ox that did the damage,' and the other defendant pleads, 'It was your ox that did the damage,' no liability could be attached to either of them?10 - What is first taught by implication is subsequently explained explicitly. In a Baraitha it has been taught: The exception refers to ownerless property.11 But in what circumstances? It can hardly be where an owned ox gored an ownerless ox, for who is there to institute an action? If on the other hand an ownerless ox gored an owned ox, why not go and take possession of the ownerless doer of the damage? - Somebody else has meanwhile stepped in and already acquired title to it.12 Rabina said: It excepts an ox which gored and subsequently became consecrated or an ox which gored and afterwards became ownerless.12 It has also been taught thus: Moreover said R. Judah:13 Even if after having gored, the ox was consecrated by the owner, or after having gored it was declared by him ownerless, he is exempt, as it is said, And it hath been testified to his owner and he hath not kept it in, but it hath killed a man or a woman; the ox shall be stoned.14 That is so only where conditions are the same at the time of both the manslaughter and the appearance before the Court.15 Does not the final verdict also need to comply with this same condition? Surely the very verse, The ox shall be stoned, circumscribes also the final verdict! - Read therefore: That is so only when conditions are the same at the time of the manslaughter and the appearance before the Court and the final verdict.15
WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT: Because he may argue against the plaintiff, 'What was your ox doing on my premises?' OR PREMISES OWNED [JOINTLY] BY PLAINTIFF AND DEFENDANT. R. Hisda said on behalf of Abimi: [Where damage is done] in jointly owned courts, there is liability for Tooth and Foot,16 and the [Mishnah] text is to be read thus: WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT, where there is exemption. but in the case of PREMISES OWNED [JOINTLY] BY PLAINTIFF AND DEFENDANT, WHENEVER DAMAGE HAS OCCURRED,17 THE OFFENDER IS LIABLE. R. Eleazar [on the other hand] said: There is no liability there for Tooth and Foot,16 and the text is to be understood thus: WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT OR [OF] PREMISES OWNED [JOINTLY] BY PLAINTIFF AND DEFENDANT, where there is also exemption. But WHENEVER DAMAGE HAS OCCURRED [otherwise] THE OFFENDER IS LIABLE etc. introduces Horn.18 This would be in conformity with Samuel,19 but according to Rab, who affirmed that ox in the Mishnaic text was intended to include all kinds of damage done by ox,20 what was meant to be introduced by the clause, THE OFFENDER IS LIABLE? - To introduce that which our Rabbis have taught: WHENEVER DAMAGE HAS OCCURRED THE OFFENDER IS LIABLE introduces liability in the case of a paid bailee and a borrower, an unpaid bailee and a hirer, where the animal in their charge did damage, Tam paying half-damages and Mu'ad paying full damages. If, however, a wall21 broke open at night, or robbers took it by force and it went out and did damage, there is exemption.
The Master said: 'WHENEVER DAMAGE HAS OCCURRED, THE OFFENDER IS LIABLE introduces liability in the case of an unpaid bailee and a borrower, a paid bailee and a hirer'. Under what circumstances? If the ox of the lender damaged the ox of the borrower, why should not the former say to the latter: 'If my ox had damaged somebody else's, you would surely have had to compensate;22 now that my ox has damaged your own ox, how can you claim compensation from me?' Again, if the ox of the borrower damaged the ox of the lender, why should not the latter say to the former: 'If my ox had been damaged by somebody else's, you would surely have had to compensate me for the full value of the ox,23 now that the damage resulted from your ox, how can you offer me half damages?24 - It must therefore still be that the ox of the lender damaged the ox of the borrower, but we deal with a case where he [the borrower] has taken upon himself responsibility for the safety of the ox
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(1) Hence the flesh need not pay for the emurim.
(2) While still Tam, in which case the payment must he made out of the body of the damage-doer, as infra p. 73.
(3) In accordance with R. Jose the Galilean that minor sacrifices are private property.
(4) I.e., accompanying the offering, cf. Lev. VII, 12-13.
(5) That the bread need not pay, since the bread did not do any damage.
(6) After the offering of the sacrifice.
(7) I.e.,(as a rule) the defendant.
(8) Who does not recognise the covenant of Law, and who does not consider himself bound to control his own cattle from doing damage to others.
(9) V. infra p. 211 and note 6.
(10) V. infra 35a. 'Owned' thus means 'known to belong to a particular defendant.'
(11) Tosef. B.K. I, 1.
(12) In which case the plaintiff will recover nothing.
(13) Infra p. 254.
(14) Ex. XXI, 29.
(15) I.e., where the ox is privately owned all through.
(16) For which there is no liability in a public thoroughfare; cf. supra p. 17.
(17) Even by Tooth and Foot.
(18) For which there is liability even in a public thoroughfare
(19) Who maintains, supra pp. 9-11, that Mab'eh in the Mishnaic text denotes Tooth, and Ox signifies Foot, whereas Horn has not been dealt with explicitly.
(20) Supra p. 10; so that Horn has already been dealt with in the first Mishnah.
(21) Of a sound structure, cf. infra 55b-56a
(22) The borrower being responsible for the damage done by the ox whilst under his charge. V. infra 44b
(23) As laid down in Ex. XXII. 13.
(24) I.e., in the case of the borrower's ox having been Tam.
Talmud - Mas. Baba Kama 14a
but not responsibility for any damage [that it may do].1 If so, explain the concluding clause: 'If a wall broke open at night, or if robbers took it by force and it went out and did damage, there is exemption.' From this it may surely be inferred that [if this had happened] in the daytime, the borrower would have been liable. Why so, if he did not take upon himself responsibility for any damage [that it may do]? - The meaning must be as follows: [But] if he has taken upon himself responsibility for damage [that it may do], he would be liable to compensate, yet, if a wall broke open at night, or if robbers took it by force and it went out and did damage there is exemption [in such a case]. Is it really so?2 Did not R. Joseph learn: In the case of jointly owned premises or an inn, there is liability for Tooth and for Foot? Is not this a refutation of R. Eleazar? - R. Eleazar may answer you as follows: Do you really think so? Are Baraithas not divided [in their opinions] on the matter?3 For it was taught:4 'Four general rules were stated by R. Simeon b. Eleazar to apply to the laws of torts: [In the case of damage done in] premises owned by the plaintiff and not at all by the defendant, there is liability in all; if owned by the defendant and not at all by the plaintiff, there is total exemption; but if owned by the one and the other, e.g., jointly owned premises or a valley, there is exemption for Tooth and for Foot, whereas for goring, pushing, biting, falling down, and kicking, Tam pays half-damages and Mu'ad pays full damages; if not owned by the one and the other, e.g., premises not belonging to them both, there is liability for Tooth and for Foot, whereas for goring, pushing, biting, falling down, and kicking, Tam pays half-damages and Mu'ad pays full damages.' It has thus been taught here that in the case of jointly owned premises or a valley there is exemption for Tooth and Foot.5
Do then the two Baraithas contradict each other? - The latter Baraitha speaks of a case where the premises were set aside by the one and the other6 for the purposes of both keeping fruits and keeping cattle in, whereas that of R. Joseph deals with premises set aside for keeping fruits in but not cattle, in which case so far as Tooth is concerned the premises are in practice the plaintiff's ground.7 In fact the context points to the same effect. In the Baraitha here8 the jointly owned premises are put on the same footing as an inn whereas in the Baraitha there9 they are put on the same footing as a valley. This is indeed proved. R. Zera, however, demurred: In the case of premises which are set aside for the purpose of keeping fruits [of the one and the other].10 how shall we comply with the requirement, and it feed in another man's field,11 which is lacking in this case? - Abaye said to him: Since the premises are not set aside for keeping cattle in, they may well be termed 'another man's field.'12
R. Aha of Difti13 said to Rabina: May we say that just as the Baraithas14 are not divided on the matter so also are the Amoraim15 not divided on the subject?16 He answered him: Indeed, it is so; if, however, you think that they are divided [in their views].17 the objection of R. Zera and the answer of Abaye form the point at issue.18
[To revert] to the above text: 'Four general rules were stated by R. Simeon b. Eleazar to apply to the laws of torts: [Where damage is done in] premises owned by the plaintiff, and not at all by the defendant, there is liability in all.' It is not stated 'for all'19 but 'in all', i.e., in the whole of the damage; is it not in accordance with R. Tarfon who maintains that the unusual damage occasioned by Horn in the plaintiff's premises will be compensated in full.20 Read, however, the concluding clause: 'If not owned by the one and the other, e.g., premises not belonging to them both, there is liability for Tooth and for Foot.' Now, what is the meaning of 'not owned by the one and the other'? It could hardly mean 'owned neither by the one nor by the other, but by somebody else,' for have we not to comply with the requirement, and it feed in another man's field,21 which is lacking in this case? It means therefore, of course, not owned by them both, but exclusively by the plaintiff,' and yet it is stated in the concluding clause, 'Tam pays half-damages and Mu'ad pays full damages,' which follows the view of the Rabbis who maintain that the unusual damage occasioned by Horn in the plaintiff's premises will still be compensated only by half-damages.22 Will the commencing clause be according to R. Tarfon and the concluding clause according to the Rabbis? - Yes, even as Samuel said to Rab Judah: Shinena,23 leave this Baraitha alone,24 and follow my view that the commencement of the Baraitha is according to R. Tarfon and its conclusion according to the Rabbis. Rabina, however, said in the name of Raba: The whole Baraitha is according to R. Tarfon; what is meant by 'not owned by the one and the other' is that the right of keeping fruits there is owned not by both, the one and the other, but exclusively by the plaintiff, whereas the right of keeping cattle there is owned by both, the one and the other. In the case of Tooth the premises are in practice the plaintiff's ground,25 whereas in the case of Horn they are jointly owned ground.26 If so, how are the rules four in number?27 Are they not only three? - R. Nahman b. Isaac replied:
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(1) In which case the lender still remains liable for any damage his ox may do.
(2) That R. Eleazar exempts Tooth and Foot doing damage in jointly owned premises.
(3) And my view is supported by one of them.
(4) Tosef. B.K. I, 6.
(5) Thus fully supporting the view of R. Eleazar and contradicting the teaching of R. Joseph's Baraitha.
(6) I.e., by both plaintiff and defendant.
(7) For the defendant had no right to allow his cattle to be there, and is therefore liable for Tooth, etc.
(8) I.e., of R. Joseph.
(9) Recording the view of R. Simeon b. Eleazar.
(10) I.e., by both plaintiff and defendant.
(11) Ex. XXII, 4; implying that the field should belong exclusively to the plaintiff.
(12) For the defendant had no right to allow his cattle to be there, and is therefore liable for Tooth, etc.
(13) [Identified with Dibtha near the famous city of Washit on the Tigris, Obermeyer, op. cit. p. 197].
(14) I.e., that of R. Joseph and that of R. Simeon b. Eleazar.
(15) R. Hisda and R. Eleazar.
(16) R. Hisda deals with a case where the keeping of cattle has not been permitted, while R. Eleazar deals with the case when the premises have been set aside for that also.
(17) When the premises have been set aside not for cattle, but for the keeping of fruit.
(18) R. Hisda is of Abaye's opinion. whereas R. Eleazar prefers R. Zera's reasoning.
(19) Which would mean for all kinds of damage.
(20) Cf. infra 24b.
(21) Ex. XXII, 4, indicating that the field has to belong to the plaintiff.
(22) Cf. infra 24b.
(23) [Lit., (i) 'sharp one', i.e, scholar with keen and sharp mind; (ii) 'long-toothed', denoting a facial characteristic; (iii) 'translator', Rab Judah being so called on account of his frequent translation of Mishnaic terms into the vernacular Aramaic, Golomb, D. Targumno I, Introduction, XLVff.]
(24) [Give up your attempt to harmonize the two contradictory clauses.]
(25) As the right to keep fruits there is exclusively the plaintiff's.
(26) For they both may keep cattle there.
(27) Since in principle they are only three in number: (a) exclusively the plaintiff's premises. (b) exclusively the defendant's, and (c) partnership premises.
Talmud - Mas. Baba Kama 14b
The rules are three in number, but the places to which they apply may be divided into four.1
MISHNAH. THE VALUATION [IS MADE] IN MONEY [BUT MAY BE PAID] BY MONEY'S WORTH, IN THE PRESENCE OF THE COURT AND ON THE EVIDENCE OF WITNESSES WHO ARE FREE MEN AND PERSONS UNDER THE JURISDICTION OF THE LAW. WOMEN ARE ALSO SUBJECT TO THE LAW OF TORTS. [BOTH] THE PLAINTIFF AND DEFENDANT ARE INVOLVED IN THE PAYMENT.
GEMARA. What is the meaning of THE VALUATION IN MONEY? Rab Judah said: This valuation must be made only in specie. We thus learn here that which has been taught by our Rabbis elsewhere:2 In the case of a cow damaging a garment while the garment also damaged the cow, it should not be said that the damage done by the cow is to be set off against the damage done to the garment and the damage done to the garment against the damage done to the cow, the respective damages have to be estimated at a money value.
BY MONEY'S WORTH. [This is explained by what] our Rabbis taught [elsewhere]:2 'MONEY'S WORTH' implies that the Court will not have recourse for distraint save to immovable property. Nevertheless if the plaintiff himself seized some chattels beforehand, the Court will collect payment for him out of them.
The Master stated: "'MONEY'S WORTH" implies that the Court will not have recourse for distraint save to immovable property. How is this implied? Rabbah b. 'Ulla said: The article of distress has to be worth all that is paid for it [in money].3 What does this mean? An article which is not subject to the law of deception?4 Are not slaves and deeds also not subject to the law of deception?4 - Rabbah b. 'Ulla therefore said: An article, title to which is acquired by means of money.5 Are not slaves6 and deeds7 similarly acquired by means of money.6 R. Ashi therefore said: 'Money's worth' implies that which has money's worth,8 whereas chattels are considered actual money.9 Rab Judah b. Hinena pointed out the following contradiction to R. Huna the son of R. Joshua: It has been taught: 'MONEY'S FORTH implies that the Court will not have recourse for distraint save to immovable property; behold, was it not taught: He shall return10 includes 'money's worth', even bran?11 - [In the former Baraitha] we are dealing with a case of heirs.12 If we are dealing with heirs read the concluding clause: 'If the plaintiff himself seized some chattels beforehand, the Court will collect payment for him out of them.' Now, if we are dealing with heirs, how may the Court collect payment for him out of them? - As already elsewhere13 stated by Raba on behalf of R. Nahman, that the plaintiff seized [the chattels] while the original defendant was still alive, so here too, the seizure took place while the defendant was still alive.
IN THE PRESENCE OF THE COURT,14 [apparently] exempts a case where the defendant sold his possessions before having been summoned to Court. May it hence be derived that in the case of one who borrowed money and sold his possessions before having been summoned to Court , the Court does not collect the debt out of the estate which has been disposed of?15 - The text therefore excepts a Court of laymen.16
ON THE EVIDENCE OF WITNESSES, thus excepting a confession of [an act punishable by] a fine for which subsequently there appeared witnesses, in which case there is exemption. That would accord with the view that in the case of a confession of [an act punishable by] a fine, for which subsequently there appeared witnesses, there is exemption;17 but according to the opposite view that in the case of a confession of [an act punishable by] a fine for which subsequently appeared witnesses, there is liability,17 what may be said [to be the import of the text]? - The important point comes in the concluding clause:
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(1) [ I.e.. partnership premises may he subdivided into two: (a) where both have the right to keep fruit, as well as cattle; (b) where the right to keep fruit is exclusively the plaintiff's.]
(2) Tosef. B.K., I.
(3) 'Money's worth' would thus mean 'property which could not be said to be worth less than the price paid for it,' and is thus never subject to the law of deception. This holds good with immovable property; cf. B.M. 56a.
(4) Cf. B.M. ibid.
(5) Kid. 26a.
(6) Cf. Kid. 23b.
(7) [Tosaf. deletes 'deeds' as these are not acquired by money but by Mesirah (v. Glos.). cf. B.B. 76a.]
(8) I.e., immovable property.
(9) As these could easily be converted into money, v. supra p. 26.
(10) Ex. XXI, 34.
(11) Supra p. 24.
(12) Who have to pay only out of the realty of the estate but not out of the personalty; cf. supra p. 31.
(13) Keth. 84b.
(14) Is taken to mean 'the payment in kind is made out of the possessions which are in the presence of the Court', i.e., not disposed of.
(15) Whereas the law is definitely otherwise as in B.B. X, 8.
(16) IN THE PRESENCE OF THE COURT does not refer to payment in kind but to the valuation which has to be made by qualified judges, v. infra 84b.
(17) Infra p. 429.
Talmud - Mas. Baba Kama 15a
FREE MEN AND PERSONS UNDER THE JURISDICTION OF THE LAW. 'FREE MAN' excludes slaves;1 'PERSONS UNDER THE JURISDICTION OF THE LAW'2 excludes heathens. Moreover, it was essential to exclude each of them. For if the exemption had been stated only in reference to a slave, we would have thought it was on account of his lack of [legal] pedigree3 whereas a heathen who possesses a [legal] pedigree4 might perhaps have been thought not to have been excluded. Had, on the other hand, the exemption been referred only to a heathen, we should have thought it was on account of his not being subject to the commandments [of the Law], whereas a slave who is subject to the commandments5 might have been thought not to have been excluded. It was thus essential to exclude each of them independently.
WOMEN ARE ALSO SUBJECT TO THE LAW OF TORTS. Whence is derived this ruling? - Rab Judah said on behalf of Rab, and so was it also taught at the school of R. Ishmael:6 Scripture states, When a man or woman shall commit any sin.7 Scripture has thus made woman and man equal regarding all the penalties of the Law. In the School of Eleazar it was taught: Now these are the ordinances which thou shalt set before them.8 Scripture has thus made woman and man equal regarding all the judgments of the Law. The School of Hezekiah and Jose the Galilean taught: Scripture says. It hath killed a man or a woman.9 Scripture has thus made woman and man equal regarding all the laws of manslaughter in the Torah. Moreover, [all the quotations] are necessary: Had only the first inference10 been drawn, [I might have said that] the Divine Law exercised mercy towards her so that she should also have the advantage of atonement, whereas judgments which concern as a rule man who is engaged in business, should not include woman. Again, were only the inference regarding judgments to have been made, we might perhaps have said that woman should also not be deprived of a livelihood, whereas the law of atonement should be confined to man, as it is he who is subject to all commandments, but should not include woman, since she is not subject to all the commandments.11 Moreover, were even these two inferences to have been available, [we might have said that] the one is on account of atonement and the other on account of livelihood, whereas regarding manslaughter [it might have been thought that] it is only in the case of man, who is subject to all commandments, that compensation for the loss of life must be made, but this should not be the case with woman. Again, were the inference only made in the case of compensation for manslaughter, [it might have been thought to apply] only where there is loss of human life, whereas in the other two cases, where no loss of human life is involved, I might have said that man and woman are not on the same footing. The independent inferences were thus essential.
THE PLAINTIFF AND DEFENDANT ARE INVOLVED IN THE PAYMENT.
It has been stated:12 The liability of half-damages13 is said by R. Papa to be civil, whereas R. Huna the son of R. Joshua considers it to be penal.14 R. Papa said that it is civil, for he maintains that average cattle cannot control themselves not to gore.15 Strict justice should therefore demand full payment [in case of damage].16 It was only Divine Law that exercised mercy [and released half payment] on account of the fact that the cattle have not yet become Mu'ad. R. Huna the son of R. Joshua who said that it is penal, on the other hand maintains that average cattle can control themselves not to gore.17 Justice should really require no payment at all.18 It was Divine Law that imposed [upon the owner] a fine [in case of damage] so that additional care should be taken of cattle. We have learnt: THE PLAINTIFF AND THE DEFENDANT ARE INVOLVED IN PAYMENT. That is all very well according to the opinion which maintains that the liability of half-damages is civil. The plaintiff [who receives only half his due] is thus indeed involved in the payment. But according to the opinion that the liability of half-damages is penal, in which case the plaintiff is given that which is really not his due, how is he involved in the payment? - This may apply to the loss caused by a decrease in the value of the carcass [which is sustained by the plaintiff].19 'A decrease in the value of the carcass'! Has not this ruling been laid down in a previous Mishnah : 'To compensate for the damage'20 implying that the owners [plaintiffs] have to retain the carcass as part payment?21 - One Mishnah gives the law in the case of Tam whereas the other deals with Mu'ad. Moreover these independent indications22 are of importance: For were the ruling laid down only in the case of Tam, it might have been accounted for by the fact that the animal has not yet become Mu'ad, whereas in the case of Mu'ad I might have thought that the law is different; if on the other hand the ruling had been laid down only in the case of Mu'ad, it might have been explained as due to the fact that the damage is compensated in full, whereas in the case of Tam I might have thought that the law is otherwise. The independent indications were thus essential.
Come and hear: What is the difference [in law] between Tam and Mu'ad? In the case of Tam, half-damages are paid, and only out of the body [of the tort-feasant cattle], whereas in the case of Mu'ad full payment is made out of the best of the estate.23 Now, if it is so [that the liability of half-damages is penal] why not mention also the following distinction, 'That in the case of Tam no liability is created by mere admission,24 while in the case of Mu'ad liability is established also by mere admission'? - This Mishnah stated [some points] and omitted [others]. But what else did it omit that the omission of that particular point should be justified?25 - It also omitted the payment of half-kofer [for manslaughter].26 The absence of half-kofer [for manslaughter], however, is no omission, as the Mishnah may be in accordance with R. Jose the Galilean who maintains that Tam is not immune from half-liability for kofer [for manslaughter].27
Come and hear:
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(1) From giving evidence,
(2) V. supra p. 36. n. 3.
(3) As his issue were considered the property of the owner, there being no parental relationship between him and them; cf. infra p. 508.
(4) Of free descent; cf. Yeb. 62a.
(5) Applicable to females; v. Hag. 4a.
(6) Cf. Kid. 35a.
(7) Num. V, 6. This quotation deals with certain laws of atonement.
(8) Ex. XXI. I.
(9) Ibid. XXI, 29.
(10) Dealing with atonement.
(11) Positive precepts prescribed for a definite time or certain periods do not as a rule apply to females; cf. Kid. 29a.
(12) Keth. 41a.
(13) Paid for damage done by (Horn of) Tam
(14) קנס Kenas, v. Glos.
(15) Lit. 'are not presumed to he safe'.
(16) As it was the effect of carelessness on the part of the owner.
(17) Lit., are presumed to be safe'.
(18) Since the owner could not have expected that his cattle would start goring.
(19) Who is in this way involved in the payment.
(20) Supra p. 36.
(21) Supra, p. 42.
(22) That it is the plaintiff who has to sustain any loss occasioned by a decrease in the value of the carcass.
(23) Mishnah, infra 16b.
(24) As penal liabilities are not created by admission; v. supra 5a.
(25) V. supra p. 39, n. I.
(26) [While a Mu'ad has to pay full compensation (Kofer, v. Glos.) for manslaughter. Ex XXI, 25-30, a Tam does not compensate even by half; v. infra 41b.]
(27) infra 26a.
Talmud - Mas. Baba Kama 15b
'My ox committed manslaughter on A'; or 'killed A's ox' '[in either case] a liability to compensate is established by this admission.1 Now does this Mishnah not deal with the case of Tam?2 - No, only with Mu'ad. But what is the law in the case of Tam? Would it really be the fact that no liability is established by admission?3 If this be the case, why state in the concluding clause, 'My ox killed A's slave,'4 no liability is created by this admission?5 Why indeed not indicate the distinction in the very same case by stating: 'the rule that liability is established by mere admission is confined to Mu'ad, whereas in the case of Tam no liability is created by mere admission'?6 - The Mishnah all through deals with Mu'ad.
Come and hear: This is the general rule: In all cases where the payment is more than the actual damage done, no liability is created by mere admission.5 Now does this not indicate that in cases where the payment is less than the damage,7 the liability will be established even by mere admission?8 - No , this is so only when the payment corresponds exactly to the amount of the damages. But what is the law in a case where the payment is less than the damage? Would it really be the fact that no liability is established by admission? If this be the case, why state: 'This is the general rule: In all cases where the payment is more than the actual damage done, no liability is created by mere admission'?9 Why not state simply: 'This is the general rule: In all cases where the payment does not correspond exactly to the amount of the damages . . ., which would [both] imply 'less' and imply 'more'?10 This is indeed a refutation.11 Still the law is definite that the liability of half-damages is penal. But if this opinion was refuted, how could it stand as a fixed law? - Yes! The sole basis of the refutation is in the fact that the Mishnaic text9 does not run '. . . where the payment does not correspond exactly to the amount of the damages'. This wording would, however, be not altogether accurate, as there is the liability of half-damages in the case of pebbles12 which is, in accordance with a halachic tradition, held to be civil. On account of this fact the suggested text has not been adopted.
Now that you maintain the liability of half-damages to be penal. the case of a dog devouring lambs, or a cat devouring hens is an unusual occurrence,13 and no distress will be executed in Babylon14 - provided, however, the lambs and hens were big; for if they were small, the occurrence would be usual?15 Should, however, the plaintiff16 seize chattels belonging to the defendant, it would not be possible for us to dispossess him of them. So also were the plaintiff to plead 'fix me a definite time for bringing my case to be heard in the Land of Israel,' we would have to fix it for him; were the other party to refuse to obey that order, we should have to excommunicate him. But in any case, we have to excommunicate him until he abates the nuisance, in accordance with the dictum of R. Nathan. For it was taught:17 R. Nathan says: Whence is it derived that nobody should breed a bad dog in his house, or keep an impaired ladder in his house? [We learn it] from the text, Thou bring not blood upon thine house.18
M I S H N A H. THERE ARE FIVE CASES OF TAM AND FIVE CASES OF MU'AD. ANIMAL IS MU'AD NEITHER TO GORE, NOR TO COLLIDE, NOR TO BITE, NOR TO FALL DOWN NOR TO KICK.19 TOOTH, HOWEVER, IS MU'AD TO CONSUME WHATEVER IS FIT FOR IT; FOOT IS MU'AD TO BREAK [THINGS] IN THE COURSE OF WALKING; OX AFTER BECOMING MU'AD; OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES; AND MAN,20 SO ALSO THE WOLF, THE LION, THE BEAR, THE LEOPARD, THE BARDALIS [PANTHER] AND THE SNAKE ARE MU'AD. R. ELEAZAR SAYS: IF THEY HAVE BEEN TAMED, THEY ARE NOT MU'AD; THE SNAKE, HOWEVER, IS ALWAYS MU'AD.
GEMARA. Considering that it is stated TOOTH IS MU'AD TO CONSUME . . ., it must be assumed that we are dealing with a case where the damage has been done on the plaintiff's premises.21 It is also stated22 ANIMAL IS MU'AD NEITHER TO GORE . . . meaning that the compensation will not be in full, but only half-damages will be paid, which is in accordance with the Rabbis who say that for the unusual damage done by Horn [even] on the plaintiff's premises only half-damages will be paid.23 Read now the concluding clause: OX AFTER HAVING BECOME MU'AD, OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES, AND MAN, which is in accordance with R. Tarfon who said that for the unusual damage done by Horn on the plaintiff's premises full compensation must be paid.23 Is the commencing clause according to the Rabbis and the concluding clause according to R. Tarfon? - Yes, since Samuel said to Rab Judah, 'Shinena,24 leave the Mishnah alone25 and follow my view: the commencing clause is in accordance with the Rabbis, and the concluding clause is in accordance with R. Tarfon.' R. Eleazar in the name of Rab, however, said:
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(1) Keth. 41a.
(2) And if the liability is created by admission it proves that it is not penal but civil.
(3) On account of its being penal.
(4) And the fine of thirty shekels has to he imposed; v, Ex. XXI, 32.
(5) Keth. 41a.
(6) Because it is considered penal.
(7) Such, e.g., as in the case of Tam.
(8) This proves that the penalty is not penal but civil, and this refutes R. Huna b. R. Joshua.
(9) Keth. 41a.
(10) Not to be civil.
(11) Of the view maintaining the liability of Tam to be penal.
(12) Kicked from under an animal's feet and doing damage; cf. supra p. 8.
(13) Falling thus under the category of Horn; as supra p. 4.
(14) As penal liabilities could be dealt with only in the Land of Israel where the judges were specially ordained for the purpose; Mumhin, v. Glos. s. v. Mumhe; cf. infra. 27b, 84a-b.
(15) And would come within the category of Tooth, the payment for which is civil.
(16) Even in Babylon.
(17) Infra 46a and Keth. 41b.
(18) Deut. XXII, 8.
(19) These are the five cases of Tam, v. supra p. 3.
(20) These are the five cases of Mu'ad, v. Glos.
(21) For if otherwise there is no liability in the case of Tooth; cf. Ex. XXII, 4, and supra, 5b.
(22) In the commencing clause of the Mishnah.
(23) Cf. supra 14a; infra 24b.
(24) V. supra p. 60, n. 2.
(25) Cf. supra p. 60, n. 3.
Talmud - Mas. Baba Kama 16a
The whole Mishnah is in accordance with R. Tarfon. The commencing clause deals with premises set aside for the keeping of the plaintiff's fruits whereas both plaintiff and defendant may keep there their cattle. In respect of Tooth the premises are considered [in the eye of the law] the plaintiff's.1 whereas in respect of Horn they are considered their common premises.2 R. Kahana said: I repeated this statement in the presence of R. Zebid of Nehardea, and he answered me, 'How can you say that the whole Mishnah is in accordance with R. Tarfon? Has it not been stated TOOTH IS MU'AD TO CONSUME WHAT EVER IS FIT FOR IT? That which is fit for it is included,3 but that which is unfit for it is not included.4 But did not R. Tarfon say that for the unusual damage done by Horn on the plaintiff's premises full compensation must be paid?' - It must, therefore, still be maintained that the Mishnah is in accordance with the Rabbis, but there are some phrases missing there; the reading should be thus: 'There are five cases of Tam,'5 all the five of them may eventually become Mu'ad.6 Tooth and Foot are however Mu'ad ab initio, and their liability is confined to damage done on the plaintiff's premises.'7 Rabina demurred: We learn later on: What is meant by [the statement] OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES [etc.]?8 It is all very well if you say that this damage has previously been dealt with;9 we may then well ask 'What is meant by it?' But if you say that this damage has never been dealt with previously, how could it be asked 'What is meant by it?'10 - Rabina therefore said: The Mishnah is indeed incomplete, but its meaning is this: 'There are five cases of Tam,'5 all the five of them may eventually become Mu'ad11 - Tooth and Foot are Mu'ad ab initio.12 In this way Ox is definitely Mu'ad. As to Ox doing damage on the plaintiff's premises there is a difference of opinion between R. Tarfon and the Rabbis.13 There are other damage-doers which like these cases are similarly Mu'ad, as follows: The wolf, the lion, the bear, the leopard. the panther, and the snake.' This very text has indeed been taught: 'There are five cases of Tam; all the five of them may eventually become Mu'ad. Tooth and Foot are Mu'ad ab initio. In this way Ox is definitely Mu'ad. As to Ox doing damage on the plaintiff's premises there is a difference of opinion between R. Tarfon and the Rabbis. There are other damage-doers which like these are similarly Mu'ad, as follows: The wolf, the lion, the bear, the leopard, the panther and the snake.'
Some arrived at the same interpretation by having first raised the following objection: We learn THERE ARE FIVE CASES OF TAM AND FIVE CASES OF MU'AD; are there no further instances?14 Behold there are the wolf, the lion, the bear, the leopard, the panther and the snake!15 - The reply was: Rabina said: The Mishnah is incomplete and its reading should be as follows: There are five cases of Tam; all the five of them may eventually become Mu'ad - Tooth and Foot are Mu'ad ab initio. In this way Ox is definitely Mu'ad. As to Ox doing damage on the plaintiff's premises there is a difference of opinion between R. Tarfon and the Rabbis. There are other damage-doers which like these are similarly Mu'ad, as follows: The wolf, the lion, the bear, the leopard, the panther and the snake.
NOR TO FALL DOWN. R. Eleazar said: This is so only when it falls down on large pitchers, but in the case of small pitchers it is a usual occurrence.16 May we support him [from the following teaching]: 'Animal is Mu'ad to walk in the usual manner and to break or crush a human being, or an animal, or utensils'? - This however may mean, through contact sideways.17 Some read: R. Eleazar said: Do not think that it is only in the case of large pitchers that it is unusual, whereas in the case of small pitchers it is usual. It is not so, for even in the case of small pitchers it is unusual. An objection was brought: '. . . or crush a human being, or an animal or utensils?'18 - This19 may perhaps mean through contact sideways.20 Some arrived at the same conclusion by having first raised the following objection: We have learnt: NOR TO FALL DOWN.18 But was it not taught: '. . . or crush a human being, or an animal or utensils'?18 R. Eleazar replied: There is no contradiction: the former statement deals with a case of large pitchers,21 whereas the latter deals with small pitchers.22
THE WOLF, THE LION, THE BEAR, THE LEOPARD AND THE BARDALIS [PANTHER].23 What is bardalis? - Rab Judah said: nafraza.24 What is nafraza? - R. Joseph said: apa.25 An objection was raised: R. Meir adds also the zabu'a.26 R. Eleazar adds, also the snake.27 Now R. Joseph said that zabu'a means apa!28 - This, however, is no contradiction, for the latter appellation [zabu'a] refers to the male whereas the former [bardalis] refers to the female,29 as taught elsewhere: The male zabu'a [hyena] after seven years turns into a bat,30 the bat after seven years turns into an arpad,31 the arpad after seven years turns into kimmosh,32 the kimmosh after seven years turns into a thorn, the thorn after seven years turns into a demon. The spine of a man after seven years turns into a snake,33 should he not bow34 while reciting the benediction, 'We give thanks unto Thee'.35 The Master said: 'R. Meir adds also the zabu'a;
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(1) As nobody else had the right to keep there fruits.
(2) Since both plaintiff and defendant had the right to keep there their cattle.
(3) In the category of Tooth.
(4) In the category of Tooth, but being unusual falls under the category of Horn; cf. supra 15b; infra 16b and 19b.
(5) I.e., 'goring', 'colliding', 'biting', 'falling down' and 'kicking'.
(6) These constitute the five cases of Mu'ad.
(7) Cf. Ex. XXII, 4, and supra, 5b. ['OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES' refers thus to Tooth and not to Horn.]
(8) [With reference to damage done by Horn, infra, 24b.]
(9) [In Our Mishnah, i.e.,the damage of Horn on the plaintiff's premises.]
(10) Cf. infra 24b.
(11) [The first clause of the Mishnah thus enumerates the five cases of Mu'ad as well as of Tam.]
(12) [But are not included in the 'five cases of Mu'ad', the clause being added only in parenthesis.]
(13) As infra p. 125.
(14) Of Mu'ad.
(15) Which are Mu'ad ab initio.
(16) And would thus not fall under the category of Horn but under that of Foot; cf, supra p. 4.
(17) Whereas to fall down upon pitchers may perhaps in all cases be unusual.
(18) Is usual.
(19) [So MS.M. Cur.edd, insert 'R. Eleazar said this etc.']
(20) V. p. 70. n. 5.
(21) Which is unusual.
(22) Which is usual.
(23) **
(24) נפרזא D.S. נפריא from נפר 'to run' or 'jump'.
(25) [אפא contraction of אפעא (hyena)].
(26) [Lit., 'the many-coloured'. Another term for hyena on account of its coloured stripes.]
(27) To those which are enumerated in the Mishnah as Mu'ad ab initio.
(28) If zabu'a means apa, how could bardalis, which is mentioned independently, also mean apa.
(29) So Rashi's second interpretation; others reverse.
(30) The male zabu'a is subject to undergo constant and rapid changes in the evolution of its physique, so that on account of these various transformations it has various appellations, such as bardalis, nafraza and apa [For parallels in ancient Greek and Roman literature for this belief, v. Lewysohn. Zoologie, p. 77.]
(31) I.e., a species of bat; cf. Targum Jonathan Lev, XI, 19, where Heb. עטלף is rendered ערפדא.
(32) I.e., a species of thorn (Jast.).
(33) Which is the symbol of ingratitude.
(34) And thus not appreciate the favours of eternal God bestowed upon mortal man. [This is but a quaint way of indicating the depths into which human depravity, which has its source in ingratitude to the Creator, may gradually sink.]
(35) Cf. P.B. p. 51.
Talmud - Mas. Baba Kama 16b
R. Eleazar adds also the snake.' But have we not learned: R. ELEAZAR SAYS, IF THEY HAD BEEN TAMED, THEY ARE NOT MU'AD; THE SNAKE, HOWEVER, IS ALWAYS MU'AD?1 - Read 'the snake'.2 Samuel said: In the case of a lion on public ground seizing and devouring [an animal]. there is exemption;3 but for tearing it to pieces and then devouring it there is liability to pay. In 'seizing and devouring there is exemption' on account of the fact that it is as usual for a lion to seize its prey as it is for an animal to consume fruits and vegetables; it therefore amounts to Tooth on public ground where there is exemption.3 The 'tearing' [of the prey into pieces] is however not unusual with the lion.4
Should it thus be concluded that the tearing of prey is unusual [with the lion]? But behold, it is written: The lion did tear in pieces enough for his whelps?5 - This is usual only when it is for the sake of his whelps. [But the text continues:] And strangled for his lionesses?5 - This again is only when it is for the sake of his lionesses. [But the text further states:] And filled his holes with prey?5 - [This too is usual only when it is done] with the intention of preserving it in his holes. But the text concludes: And his dens with ravin?5 - [This again is only] when the intention is to preserve it in his dens. But was it not taught: 'Similarly in the case of a beast entering the plaintiff's premises, tearing an animal to pieces and consuming its flesh, the payment must be made in full'?6 - This Baraitha deals with a case where the tearing was for the purpose of preservation. But behold, it is stated: 'consuming [its flesh]'? - It was by an afterthought that the beast consumed [it]. But how could we know that? Again, also in the case of Samuel why not make the same supposition?7 - R. Nahman b. Isaac therefore said: Alternative cases are dealt with [in the Baraitha]: . . . If it either tears to pieces for the purpose of preservation, or seizes and devours [it], the payment must he in full.' Rabina, however, said that Samuel dealt with a case of a tame lion, and was following the view of R. Eleazar,8 that that was unusual [with such a lion] If so, even in the case of seizing there should be liability! - Rabina's statement has, therefore, no reference to Samuel's case but to the Baraitha, which we must thus suppose to deal with a tame lion and to follow the view of R. Eleazar, that that was unusual [with such a lion].9 If so, [no more than] half-damages should be paid!10 - [The lion dealt with] has already become Mu'ad. If so, why has this Baraitha been taught in conjunction with the secondary kinds of Tooth,11 whereas it should have been taught in conjunction with the secondary kinds of Horn? This is indeed a difficulty.
M I S H N A H. WHAT IS THE DIFFERENCE [IN LAW] BETWEEN TAM AND MU'AD? IN THE CASE OF TAM ONLY HALF-DAMAGES ARE PAID AND ONLY OUT OF THE BODY [ OF THE TORT-FEASENT CATTLE], WHEREAS IN THE CASE OF MU'AD FULL PAYMENT IS MADE OUT OF ['ALIYYAH]12 THE BEST [OF THE ESTATE].
GEMARA. What is 'Aliyyah? - R. Eleazar said: The best of the defendant's estate as stated in Scripture: And Hezekiah slept with his fathers and they buried him [be-ma'aleh] in the best of the sepulchres of the sons of David;13 and R. Eleazar said: be-ma'aleh means, near the best of the family, i.e., David and Solomon. [Regarding King Asa it is stated:] And they buried him in his own sepulchres which he had made for himself in the city of David and laid him in the bed which was filled with [besamim u-zenim]14 sweet odours and divers kinds of spices.15 What is besamim u-zenim? - R. Eleazar said: Divers kinds of spices. But R. Samuel b. Nahmani said: Scents which incite all those who smell them to immorality.16
[Regarding Jeremiah it is stated:] For they have digged a ditch to take me and hid snares for my feet.17 R. Eleazar said: They maliciously accused him of [having illicit intercourse with] a harlot. But R. Samuel b. Nahmani said: They maliciously accused him of having [immoral connections with] another man's wife. No difficulty arises if we accept the view that the accusation was concerning a harlot, since it is written: For a harlot is a deep ditch.18 But according to the view that the accusation was concerning another man's wife, how is this expressed in the term 'ditch' [employed in Jeremiah's complaint]?17 - Is then another man's wife [when committing adultery] excluded from the general term of 'harlot'? [On the other hand] there is no difficulty on the view that the accusation was concerning another man's wife, for Scripture immediately afterwards says: Yet Lord, Thou knowest all their counsel against me to slay me;19 but according to the view that the accusation was concerning a harlot, how did they thereby intend 'to slay him'?20 - [This they did] by throwing him into a pit of mire.21
Raba gave the following exposition: What is the meaning of the concluding verse: But let them be overthrown before Thee; deal thus with them in the time of Thine anger?22 - Jeremiah thus addressed the Holy One, blessed be He: Lord of the Universe, even when they are prepared to do charity, cause them to be frustrated by people unworthy of any consideration so that no reward be forthcoming to them for that charity.23
[To come back to Hezekiah regarding whom it is stated:] And they did him honour at his death:24 this signifies that they set up a college25 near his sepulchre. There was a difference of opinion between R. Nathan and the Rabbis. One said: For three days,
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(1) [Which seems to exclude the other animals enumerated in the Mishnah?]
(2) Do not read 'also the snake', but 'the snake', i.e. 'only the snake', excluding 'the hyena' introduced by R. Meir, as well as the other animals enumerated.
(3) Cf. Ex XXII, 4 and supra 5b.
(4) And falls thus under the category of Horn which is not immune even on public ground, cf. supra p. 67 and infra 19b.
(5) Nah. II, 13.
(6) Cf. infra 19b.
(7) [Why then doses he state that, where the lion tore and consumed, there is payment?]
(8) Supra p. 68.
(9) And comes therefore within the category of Horn, for which there is liability even on public grounds.
(10) For in the case of Horn only half-damages are paid on the first three occasions.
(11) I.e., infra 19b.
(12) עלײה
(13) II Chron. XXXII, 33. [The word במעלה (E.V.: 'ascent') is tendered as 'the best' from עלה 'to go up', 'to excel'.]
(14) בשמים וזנים
(15) II Chron. XVI, 14.
(16) [Deriving זנים from זנה to commit whoredom'.]
(17) Jer. XVIII, 22.
(18) Prov. XXIII, 27.
(19) Jer. XVIII, 23; referring to the death penalty prescribed for such an offence. See Lev. XX, 10.
(20) Since no death penalty is attached to that sin,
(21) Jer. XXXVIII, 6.
(22) Ibid. XVIII, 23.
(23) Cf. however Keth. 68a.
(24) II Chron. XXXII, 33.
(25) [ Of students to study the law.]
Talmud - Mas. Baba Kama 17a
and the other said: For seven days. Others, however, said: For thirty days.1
Our Rabbis taught: And they did him honour at his death, in the case of Hezekiah the king of Judah, means that there marched before him thirty-six2 thousand [warriors] with bare shoulders;3 this is the view of R. Judah. R. Nehemiah, however, said to him: Did they not do the same before Ahab?4 [In the case of Hezekiah] they placed the scroll of the Law upon his coffin and declared: 'This one fulfilled all that which is written there.' But do we not even now do the same [on appropriate occasions]?5 - We only bring out [the scroll of the Law] but do not place [it on the coffin].5 It may alternatively be said that sometimes we also place [it on the coffin] but do not say. 'He fulfilled [the law] . . .'
Rabbah b. Bar Hanah said: I was once following R. Johanan for the purpose of asking him about the [above] matter. He, however, at that moment went into a toilet room. [When he reappeared and] I put the matter before him, he did not answer until he had washed his hands, put on phylacteries and pronounced the benediction.6 Then he said to us: Even if sometimes we also say. 'He fulfilled [the law] . . .' we never say. 'He expounded [the law] . . .' But did not the Master say: The importance of the study of the law is enhanced by the fact that the study of the law is conducive to [the] practice [of the law]?7 - This, however, offers no difficulty; the latter statement deals with studying [the law], the former with teaching [the law].
R. Johanan said in the name of R. Simeon b. Yohai:8 What is the meaning of the verse: Blessed are ye that sow beside all waters, that send forth thither the feet of the ox and the ass?9 Whoever is occupied with [the study of] the law and with [deeds of] charity, is worthy of the inheritance of two tribes,10 as it is said: Blessed are ye that sow. . . Now, sowing [in this connection] signifies 'charity'. as stated, Sow to yourselves in charity, reap in kindness;11 again, water [in this connection] signifies 'the law' as stated, Lo, everyone that thirsteth, come ye to the waters.12
'He is worthy of the inheritance of two tribes:' He is worthy of an inheritance13 like Joseph, as it is written: Joseph is a fruitful bough . . . whose branches run over the wall;14 he is also worthy of the inheritance of Issachar, as it is written: Issachar is a strong ass.15 There are some who say, His enemies will fall before him, as it is written: With them he shall push the people together, to the ends of the earth.16 He is worthy of understanding like Issachar, as it is written: And of the children of Issachar which were men that had understanding of the times to know what Israel ought to do.17
CHAPTER 2
M I S H N A H. WITH REFERENCE TO WHAT IS FOOT MU'AD?18 [IT IS MU'AD:] TO BREAK [THINGS] IN THE COURSE OF WALKING. ANY ANIMAL IS MU'AD TO WALK IN ITS USUAL WAY AND TO BREAK [THINGS]. BUT IF IT WAS KICKING OR PEBBLES WERE FLYING FROM UNDER ITS FEET AND UTENSILS WERE [IN CONSEQUENCE] BROKEN, [ONLY] HALF-DAMAGES WILL BE PAID. IF IT TROD UPON A UTENSIL AND BROKE IT, AND A FRAGMENT [OF IT] FELL UPON ANOTHER UTENSIL WHICH WAS ALSO BROKEN, FOR THE FIRST UTENSIL FULL DAMAGES MUST BE PAID,19 BUT FOR THE SECOND, [ONLY] HALF-DAMAGES WILL BE PAID.20
POULTRY21 ARE MU'AD TO WALK IN THEIR USUAL WAY AND TO BREAK [THINGS]. IF A STRING BECAME ATTACHED TO THEIR FEET, OR WHERE THEY HOP ABOUT AND BREAK UTENSILS, [ONLY] HALF-DAMAGES WILL BE PAID.20
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(1) Cf. M.K. 27b.
(2) This figure was arrived at by the numerical value of ול occurring here in the text.
(3) [As sign of mourning for a righteous man and scholar.]
(4) [Although he was an evil doer.] See Targum on Zech. XII, 11, and Meg. 3a.
(5) Cf., e.g., M. K. 25a and Men. 32b.
(6) V. P.B. p. 4.
(7) Meg. 27a; Kid. 40b; thus indicating that the practice of the law is superior to its study.
(8) V. A.Z. 5b.
(9) Isa. XXXII, 20.
(10) [Joseph and Issachar: the former is compared to an ox (Deut. XXXIII, 17) and the latter to an ass (Gen. XLIX, 14).]
(11) Hos X, 12.
(12) Isa. LV, 1.
(13) So MS.M. The printed editions have 'canopy'. [Rashi connects it with the descriptions of 'branches running over the wall.']
(14) Gen XLIX, 22.
(15) Ibid. 14.
(16) Deut. XXXIII, 17.
(17) I Chron. XII, 32.
(18) Referring to supra p. 68.
(19) As it is subject to the law of 'Foot'.
(20) Since it was broken not by the actual body of the animal (or poultry) but by its agency and force in some other object, it comes within the purview of the law of 'Pebbles'; v. Glos, Zeroroth
(21) Lit. 'The cocks'.
Talmud - Mas. Baba Kama 17b
G E M A R A. Rabina said to Raba: Is not FOOT [Mentioned in the commencing clause] identical with ANIMAL [mentioned in the second clause]?1 - He answered him: [In the commencing clause the Mishnah] deals with Principals2 whereas [in the second clause] derivatives are introduced.3 But according to this, the subsequent Mishnah stating, 'Tooth is Mu'ad . . . Any animal is Mu'ad . . .'4 what Principals and what derivatives could be distinguished there?5 - Raba, however, answered him humorously, 'I expounded one [Mishnah], it is now for you to expound the other.' But what indeed is the explanation [regarding the other Mishnah]? - R. Ashi said: [In the first clause, the Mishnah] speaks of 'Tooth' of beast, whereas [in the second place] 'Tooth' of cattle is dealt with. For it might have been thought that since he shall put in be'iroh [his cattle]6 is stated in Scripture, the law concerning Tooth should apply only to cattle, but not to beast; it is therefore made known to us that beast is included in the term 'animal'. If so, cattle7 should be dealt with first! - Beast, which is deduced by means of interpretation, is more important [to the Mishnah which thus gives it priority]. If so, also in the opening Mishnah [dealing with FOOT, the same method should have been adopted] to state first that which is not recorded [in Scripture]?8 - What a comparison! There [in the case of Tooth] where both [beast and cattle] are Principals, that which is introduced by means of interpretation is preferable; but here [in the case of Foot], how could the Principal be deferred and the derivative placed first?9 You may alternatively say: Since [in the previous chapter the Mishnah] concludes with 'Foot',10 it commences here with 'Foot'.
Our Rabbis taught: An animal is Mu'ad to walk in its usual way and to break [things]. That is to say, in the case of an animal entering into the plaintiff's premises and doing damage [either] with its body while in motion, or with its hair while in motion, or with the saddle [which was] upon it, or with the load [which was] upon it, or with the bit in its mouth, or with the bell on its neck,11 similarly in the case of an ass [doing damage] with its load, the payment must be in full. Symmachus says: In the case of Pebbles12 or in the case of a pig burrowing in a dunghill and doing damage. the payment is [also] in full.
[In the case of a pig] actually doing damage, is it not obvious [that the payment must be in full]?13 - Read therefore: 'When it had caused [something of the dunghill] to fly out so that damage resulted therefrom, the payment will be in full.' But have Pebbles ever been mentioned [in this Baraitha, that Symmachus makes reference to them]? - There is something missing [in the text of the Baraitha where] the reading should be as follows: Pebbles, though being quite usual [with cattle, involve nevertheless] only half-damages; in the case of a pig digging in a dunghill and causing [something of it] to fly out so that damage resulted therefrom, only half-damages will therefore be paid. Symmachus, however, says: In the case of Pebbles, and similarly in the case of a pig digging in a dunghill and causing [something of it] to fly out so that damage resulted therefrom, the payment must he in full.
Our Rabbis taught: In the case of poultry flying from one place to another and breaking utensils with their wings. the payment must be in full: but if the damage was done by the vibration that resulted from their wings, only half-damages will be paid.14 Symmachus. however, says: [In all cases] the payment must be in full.15
Another [Baraitha] taught: In the case of poultry hopping upon dough or upon fruits which they either made dirty or picked at, the payment will be in full; but if the damage resulted from their raising there dust or pebbles, only half damages14 will be paid. Symmachus. however, says: [In all cases] the payment must be in full.
Another [Baraitha] taught: In the case of poultry flying from one place to another, and breaking vessels with the vibration from their wings, only half-damages will be paid. This anonymous Baraitha records the view of the Rabbis.16
Raba said: This fits in very well with [the view of] Symmachus who maintains that [damage done by an animal's] force17 falls under the law applicable to [damage done by its] body;18 but what about the Rabbis? If they too maintain that [damage done by an animal's] force is subject to the same law that is applicable to [damage done by its] body. why then not pay in full? If on the other hand it is not subject to the law of damage done by a body,. why pay even half damages? - Raba [in answer] said: It may indeed be subject to the law applicable to damage done by a body, yet the payment of half damages in the case of Pebbles is a halachic principle based on a special tradition.19 Raba said: Whatever would involve defilement in [the activities of] a zab20 will in the case of damage involve full payment, whereas that which in [the activities of] a zab would not involve defilement,21 will in the case-of damage involve only half damages. Was Raba's sole intention to intimate to us [the law of] Pebbles?22 - No, Raba meant to tell us the law regarding cattle23 drawing a waggon [over utensils which were thus broken].24 It has indeed been taught in accordance with [the view expressed by] Raba: An animal is Mu'ad to break [things] in the course of walking. How is that? In the case of an animal entering into the plaintiff's premises and doing damage either with its body while in motion, or with its hair while in motion, or with the saddle [which was] upon it, or with the load [which was] upon it, or with the bit in its mouth, or with the bell on its neck, similarly in the case of an ass [doing damage] with its load, or again, in the case of a calf drawing a waggon [over utensils which were thus broken], the payment must be in full.
Our Rabbis taught: In the case of poultry picking at a cord attached to a pail so that the cord was snapped asunder and the bucket broken, the payment must be in full.
Raba asked: In the case of [cattle] treading upon a utensil which has not been broken at once, but which was rolled away to some other place where it was then broken, what is the law? Shall we go by the original cause [of the damage in our determination of the law], which would thus amount to damage done by the body,25 or shall only [the result, i.e.] the breaking of the utensil be the determining factor, amounting thus to Pebbles? - But why not solve the problem from a statement made by Rabbah?26 For Rabbah said:27 If a man threw [his fellow's] utensil from the top of a roof and another one came and and broke it with a stick [before it fell upon the ground. where it would in any case have been broken], the latter is under no liability to pay, as we say. 'It was only a broken utensil that was broken by him.' [Is not this the best proof that it is the cause of the damage which is the determining factor?]28 - To Rabbah that was pretty certain, whereas to Raba it was doubtful.
Come and hear: 'Hopping [with poultry] is not Mu'ad.29 Some however say: It is Mu'ad.'30 'Could 'hopping' [in itself] be thought [in any way not to be habitual with poultry]? Does it not therefore mean: 'Hopping that results in making [a utensil] fly [from one place to another so that it is broken] . . . 'so that the point at issue is this: The latter view maintains that the original cause [of the damage] is the determining factor30 but the former maintains that only [the result, i.e.,] the breaking of the utensil is the determining factor?31 - No,
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(1) Wherefore then this redundancy?
(2) I.e. damage done by the actual foot.
(3) I.e. damage done by other parts of the body of the animal, cf. supra p. 6.
(4) [Infra 19b.
(5) For both clauses deal with actual 'eating'.
(6) Ex. XXII, 4. [בעיר תבעירה in Aramaic denotes, 'a grazing animal', 'cattle' (Rashi).]
(7) Which is more obvious.
(8) I.e. damage done by other parts of the body of the animal.
(9) 'Foot' is therefore put in the first place.
(10) Supra p. 68.
(11) CF. supra, p. 6.
(12) See supra p. 8.
(13) Why then was it deemed necessary to give it explicit treatment?
(14) As this kind of damage is subject to the law of Pebbles.
(15) For he maintains that even in the case of Pebbles full payment has to be made.
(16) Who hold that in the case of Pebbles only half payment is made.
(17) Such as in the case of Pebbles.
(18) Which is subject to the law of 'Foot'.
(19) See also supra 8.
(20) I.e., one afflicted with gonorrhoea who is subject to the laws of Lev. XV, 1-15; 19-24. Defilement is caused by him both by actual bodily touch and indirectly.
(21) E.g when the zab throws some article on a person levitically clean.
(22) Is not this obvious?
(23) Lit. 'calf'.
(24) That there is in such a case full payment, because if a zab were to sit in a waggon that passed over clean objects, defilement would have been extended to them - the damage and the defilement respectively being regarded as having been caused by the body and not by its force.
(25) Being therefore subject to the law of 'Foot'.
(26) Who was a predecessor of Raba.
(27) Cf. infra 26b.
(28) Seeing that the latter is under no obligation to compensate, but the whole liability to pay is upon the one who threw the utensil from the top of the roof.
(29) The payment for damage will therefore not be in full.
(30) Payment will thus be in full.
(31) Thus constituting Pebbles, for which payment will not be in full.
Talmud - Mas. Baba Kama 18a
the 'hopping' only caused pebbles to fly, so that the point at issue is the same as that between Symmachus and the Rabbis.1
Come and hear: 'In the case of poultry picking at a cord attached to a pail so that the cord was snapped asunder and the bucket2 broken, the payment must be in full.' Could it not be proved from this [Baraitha] that it is the original cause of the damage that has to be followed? - You may, however, interpret [the liability of full payment] to refer to the damage done to the cord.3 But behold, is not [the damage of] the cord unusual [with poultry4 and only half damages ought to be paid]? - It was smeared with dough.5 But, does it not say 'and the bucket [was] broken'?6 This Baraitha must therefore be in accordance with Symmachus, who maintains that also in the case of Pebbles full payment must be made. But if it is in accordance with Symmachus, read the concluding clause: Were a fragment of the broken bucket to fly and fall upon another utensil, breaking it, the payment for the former [i.e., the bucket] must be in full, but for the latter only half damages will be paid. Now does Symmachus ever recognise half damages [in the case of Pebbles]? If you, however, submit that there is a difference according to Symmachus between damage occasioned by direct force7 and that caused by indirect force,8 what about the question raised by R. Ashi:9 Is damage occasioned by indirect force according to Symmachus subject to the same law10 applicable to direct force, or not subject to the law of direct force?11 Why is it not evident to him that it is not subject to the law of direct force? Hence the above Baraitha is accordingly more likely to be in accordance with the Rabbis, and proves thus that it is the original cause that has to be followed [as the determining factor]!12 R. Bibi b. Abaye, however, said: The bucket [that was broken] was [not rolled but] continuously pushed by the poultry [from one place to another, so that it was broken by actual bodily touch].13
Raba [again] queried: Will the half damages in the case of 'Pebbles' be paid out of the body [of the tort-feasant animal]14 or will it be paid out of the best of the defendant's estate?15 Will it be paid out of the body [of the tort-feasant animal] on account of the fact that nowhere is the payment of half damages made out of the best of the defendant's estate, or shall it nevertheless perhaps be paid out of the best of the defendant's estate since there is no case of habitual damage being compensated out of the body [of the tort-feasant animal]? - Come and hear: 'Hopping [with poultry] is not Mu'ad. Some, however, say: It is Mu'ad.' Could 'hopping' be said [in any way not to be habitual with poultry]? Does it not therefore mean: 'Hopping and making [pebbles] fly,' so that the point at issue is as follows: The former view maintaining that it is not [treated as] Mu'ad, requires payment to be made out of the body [of the tort-feasant poultry]14 whereas the latter view maintaining that it is [treated as] Mu'ad, will require the payment [of the half damages for Pebbles] to be made out of the best of the defendant's estate?15 - No, the point at issue is that between Symmachus and the Rabbis.16
Come and hear: In the case of a dog taking hold of a cake [with live coals sticking to it] and going [with it] to a stack of grain where he consumed the cake and set the stack on fire, full payment must be made for the cake,17 whereas for the stack only half damages will be paid.18 Now, what is the reason [that only half damages will be paid for the stack] if not on account of the fact that the damage of the stack is subject to the law of Pebbles?19 It has, moreover, been taught in connection with this [Mishnah] that the half damages will be collected out of the body [of the tort-feasant dog]. [Does not this ruling offer a solution to the problem raised by Raba?] - But do you really think [the law of 'Pebbles' to be at the basis of this ruling]?20 According to R. Eleazar [who maintains21 that the payment even for the stack will be in full and out of the body of the tort-feasant dog], do we find anywhere full payment being collected out of the body [of tort-feasant animals]? Must not this ruling20 therefore be explained to refer to a case where the dog acted in an unusual manner in handling the coal,22 R. Eleazar being of the same opinion as R. Tarfon, who maintains23 that [even] for the unusual damage by Horn, if done in the plaintiff's premises, the payment will be in full?24 - This explanation, however, is not essential. For that which compels you to make R. Eleazar maintain the same opinion as R. Tarfon, is only his requiring full payment [out of the body of the dog]. It may therefore be suggested on the other hand that R. Eleazar holds the view expressed by Symmachus, that in the case of Pebbles full damages will be paid; and that he further adopts the view of R. Judah who said25 that [in the case of Mu'ad, half of the payment, i.e.] the part of Tam, remains unaffected, [i .e., is always subject to the law of Tam]; the statement that payment is made out of the body [of the dog] will therefore refer only to [one half] the part for which even Tam would be liable. But R. Samia the son of R. Ashi said lo Rabina: I submit that the view you have quoted in the name of R. Judah is confined to cases of Tam turned into Mu'ad [i.e. Horn],25 whereas in cases which are Mu'ad ab initio26
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(1) I.e., whether full or half payment has to be made for damage caused by Pebbles.
(2) Probably by rolling to some other place, where it finally broke.
(3) Whereas for the bucket only half damages will perhaps be paid.
(4) Being thus subject to the law of 'Horn'.
(5) In which case it is not unusual with poultry to pick at such a cord.
(6) Thus clearly indicating that the payment is in respect of the damage done to the bucket.
(7) Such as in the case of a bucket upon which pebbles were thrown directly by an animal.
(8) I.e., a second bucket damaged by a fragment that fell from a first bucket, which was broken by pebbles thrown by an animal.
(9) Infra 19a.
(10) I.e., to full payment.
(11) But merely to half damages.
(12) I.e., though the bucket rolled to some other place where it broke, the case is still subject to the law of Foot.
(13) And coming within the usual category of Foot.
(14) As in the case of Tam; cf. supra, p. 73.
(15) As in the case of Foot; cf. supra, p. 9.
(16) I.e., whether full or half damages are to be paid in the case of Pebbles.
(17) Being subject to the law applicable to Tooth, cf. supra p. 68.
(18) Infra 21b.
(19) Because the damage to the stack was not done by the actual body of the dog but was occasioned by the dog through the instrumentality of the coal, which, after having been put on a certain spot, spread the damage near and far.
(20) Of half damages for the stack.
(21) In a Baraitha.
(22) By taking it in its mouth and applying it to the stack, in which case it is subject to the law of 'Horn'.
(23) Supra p. 59 and infra 24b.
(24) [Though the payment will still be made out of the body of the tort-feasant animal.)
(25) Infra 39a. 45b.
(26) Such as Foot (and Pebbles at least according to Symmachus).
Talmud - Mas. Baba Kama 18b
you have surely not found him maintaining so! You can therefore only say that R. Eleazar's statement regarding full payment deals with a case where the dog has already become Mu'ad [to set fire to stacks in an unusual manner]1 and the point at issue will be that R. Eleazar maintains that there is such a thing as becoming Mu'ad [also] regarding [the law of] Pebbles2 whereas the Rabbis maintain that there is no such thing as becoming Mu'ad in the case of Pebbles.3 But If so what about another problem raised [elsewhere]4 by Raba: 'Is there such a thing as becoming Mu'ad regarding [the law of] Pebbles,5 or is there no such thing as becoming Mu'ad in the case of Pebbles?'6 Why then not say that according to the Rabbis there could be no such thing as becoming Mu'ad in the case of Pebbles, whereas according to R. Eleazar there may be a case of becoming Mu'ad even in the case of Pebbles? - Raba, however, may say to you: The problem raised by me [as to the possibility of becoming Mu'ad] is of course based on the view of the Rabbis who differ [in this respect] from Symmachus, whereas here [in the case of the dog] both the Rabbis and R. Eleazar may hold the view of Symmachus who maintains that Pebbles always involve payment in full. The reason, however, that the Rabbis order only half damages [to be paid]7 is on account of the fact that the dog handled the coal in an unusual manner8 while it had not yet become Mu'ad [for that]. The point at issue between them9 would be exactly the same as between R. Tarfon and the Rabbis.10 But R. Tarfon who took the view that the payment will be in full may perhaps never have intended to make it dependent upon the body [of the tort-feasant cattle]?11 - Cer tainly so, for he derives his view from [the law of] Horn on public ground12 and it only stands to reason that Dayyo,13 [i.e. it is sufficient] to a derivative by means of a Kal wa-homer14 to involve nothing more than the original case from which it has been deduced.15 But behold, R. Tarfon is expressly not in favour of the Principle of Dayyo?13 - He is not in favour of Dayyo only when the Kal wa-homer would thereby be rendered completely ineffective16 , but where the Kal wa-homer would not be rendered ineffective he too upholds Dayyo.17
To revert to the previous theme:18 Raba asked: Is there such a thing as becoming Mu'ad regarding [the law of] Pebbles, or is there no such thing as becoming Mu'ad in the case of Pebbles? Do we compare Pebbles to Horn [which is subject to the law of Mu'ad] or do we not do so since the law of Pebbles is a derivative of Foot19 [to which the law of Mu'ad has no application]?
Come and hear: "Hopping is not Mu'ad [with poultry]. Some, however, say: It is Mu'ad.' Could 'hopping' be thought [in any way not to be habitual with poultry]? It, therefore, of course means 'Hopping and making thereby [pebbles] fly.' Now, does it not deal with a case where the same act has been repeated three times, so that the point at issue between the authorities will be that the one Master [the latter] maintains that the law of Mu'ad applies [also to Pebbles] whereas the other Master [the former] holds that the law of Mu'ad does not apply [to Pebbles]? - No, it presents a case where no repetition took place; the point at issue between them being the same as between Symmachus and the Rabbis.20
Come and hear: In the case of an animal dropping excrements into dough. R. Judah maintains that the payment must be in full, but R. Eleazar says that only half damages will be paid. Now, does it not deal here with a case where the act has been repeated three times, so that the point at issue between the authorities will be that R. Judah maintains that the animal has thus become Mu'ad whereas R. Eleazar holds that it has not become Mu'ad?21 - No, it deals with a case where no repetition took place, the point at issue between them being the same which is between Symmachus and the Rabbis. But is it not unusual [with an animal to do so]?22 - The animal was pressed for space [in which case it is no more unusual]. But why should not R. Judah have explicitly stated that the Halachah is in accordance with Symmachus and similarly R. Eleazar should have stated that the Halachah is in accordance with the Rabbis?23 - [A specific ruling in regard to] excrements is of importance, for otherwise you might have thought that since these [excrements formed a part of the animal and] were poured out from its body, they should still be considered as a part of its body,24 it has therefore been made known to us that this is not so.25
Come and hear: Rami b. Ezekiel learned:26 In the case of a cock putting its head into an empty utensil of glass where it crowed so that the utensil thereby broke, the payment must be in full, while R. Joseph on the other hand said26 that it has been stated in the School of Rab that in the case of a horse neighing or an ass braying so that utensils were thereby broken, only half damages will be paid. Now, does it not mean that the same act has already been repeated three times,
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(1) Being thus subject to the law applicable to Horn whereas in the case of Pebbles not accompanied by an unusual act, R. Eleazar would maintain the view of the Rabbis that the payment will not be in full.
(2) When thrown by an unusual act and repeated on more than three occasions; the payment would thus then have to be in full.
(3) But that in spite of all repetitions of the damage the payment will never exceed half damages on account of the consideration that the case of Pebbles in the usual way is always Mu'ad ab initio and yet no more than half damages is involved.
(4) Cf. infra p. 86.
(5) So that in the case of an animal making pebbles fly (by means of an unusual act) on more than three occasions, the payment will be in full, on the analogy with Horn
(6) The payment will thus never exceed half damages on account of the fact that the repetition on three occasions renders the act usual and makes it subject to the general laws of Pebbles, requiring half damages in the case of any usual act of an animal making pebbles fly.
(7) In the case of the dog.
(8) Coming thus within the category of Horn.
(9) I.e., between the Rabbis and R. Eleazar.
(10) With reference in damage done by Horn (Tam) on the Plaintiff's premises; cf. supra pp. 59. 84; infra p. 125.
(11) For since the payment is in full why should it not be out of the best of the defendant's estate? Cf. however supra p. 15, infra p. 180; but also pp. 23,212.
(12) Infra 24b.
(13) Lit., 'It is sufficient for it'.
(14) Lit. 'From Minor to Major'; v. Glos.
(15) Which was Horn on public ground where the payment in the case of Tam is made out of the body of the tort-feasant animal.
(16) Such as, e.g., to make on account of Dayyo, the payment in the case of Tam doing damage on the plaintiff's premises only for half damages - a payment which would be ordered even without a Kal wa-homer.
(17) The full payment in the case of Tam on the plaintiff's premises which is deduced from the Hal wa-homer, will therefore be collected only out of the body of the tort-feasant animal, on the strength of the Dayyo.
(18) Supra p. 85.
(19) Cf. supra 3b; v. also p. 85, n. 5.
(20) I.e., whether the payment for Pebbles generally be in full or half; cf. supra 17b.
(21) And thus the problem propounded by Raba is a point at issue between Tannaim.
(22) The case must accordingly come under the category of Horn where only half damages should he paid in the first three occasions.
(23) Why deal at all with the specific case of an animal dropping excrements?
(24) Any damage done by them should thus be compensated in full on the analogy of any other derivative of Foot proper.
(25) I.e., it does not come under the category of Foot proper but under that of Pebbles.
(26) Cf. Kid. 24b.
Talmud - Mas. Baba Kama 19a
so that the point at issue [between the contradictory statements] will be that the one Master [the former] maintains that the law of Mu'ad applies [also to Pebbles]1 whereas the other Master [the latter] holds that the law of Mu'ad does not apply [to Pebbles]?2 - No, we suppose the act not to have been repeated, the point at issue being the same as that between Symmachus and the Rabbis. But is it not unusual [for a cock to crow into a utensil]?3 - There had been some seeds there [in which case it was not unusual].
R. Ashi asked: Would an unusual act4 reduce Pebbles [by half, i.e.,] to the payment of quarter damages or would an unusual act not reduce Pebbles to the payment of quarter damages?5 - But why not solve this question from that of Raba, for Raba asked [the following]:6 Is there such a thing as becoming Mu'ad in the case of Pebbles7 or is there no such thing as becoming Mu'ad in the case of Pebbles?8 Now, does not this query imply that no unusual act [affects the law of Pebbles]?9 - Raba may perhaps have formulated his query upon a mere supposition as follows: If you suppose that no unusual act [affects the law of Pebbles], is there such a thing as becoming Mu'ad [in the case of Pebbles] or is there no such thing as becoming Mu'ad? - Let it stand undecided.
R. Ashi further asked: Is [damage occasioned by] indirect force, according to Symmachus,10 subject to the law applicable to direct force or not so? Is he11 acquainted with the special halachic tradition [on the matter]12 but he confines its effect to damage done by indirect force or is he perhaps not acquainted at all with this tradition? - Let it stand undecided.
IF IT WAS KICKING OR PEBBLES WERE FLYING FROM UNDER IT'S FEET AND UTENSILS WERE BROKEN, [ONLY] HALF DAMAGES WILL BE PAID. The following query was put forward: Does the text mean to say: 'If it was kicking so that damage resulted from the kicking, or in the case of pebbles flying in the usual way ... [only] half damages will be paid,' being thus in accordance with the Rabbis;13 or does it perhaps mean to say: 'If it was kicking so that damage resulted from the kicking, or when pebbles were flying as a result of the kicking . . . [only] half damages will be paid.' thus implying that in the case of pebbles flying in the usual way, the payment would be in full, being therefore in accordance with Symmachus?14
Come and hear the concluding clause: IF IT TROD UPON A UTENSIL AND BROKE IT, AND A FRAGMENT [OF IT] FELL UPON ANOTHER UTENSIL WHICH WAS ALSO BROKEN, FOR THE FIRST UTENSIL FULL COMPENSATION MUST BE PAID, BUT FOR THE SECOND, [ONLY] HALF DAMAGES. Now, how could the Mishnah be in accordance with Symmachus,14 who is against half damages [in the case of Pebbles]? If you, however, suggest that THE FIRST UTENSIL refers to the utensil broken by a fragment that flew off from the first [broken] utensil, and THE SECOND refers thus to the utensil broken by a fragment that flew off from, the second [broken] utensil, and further assume that according to Symmachus there is a distinction between damage done by direct force and damage done by indirect force [so that in the latter case only half damages will be paid], then [if so] what about the question of R. Ashi: 'Is [damage occasioned by] indirect force, according to Symmachus, subject to the law of direct force or not subject to the law of direct force?' Why is it not evident to him [R. Ashi] that it is not subject to the law applicable to direct force? - R. Ashi undoubtedly explains the Mishnah in accordance with the Rabbis, and the query15 is put by him as follows: [Does it mean to say:] 'If it was kicking so that damage resulted from the kicking, or in the case of pebbles flying in the usual way . . . [only] half damages will be paid', thus implying that [in the case of Pebbles flying] as a result of kicking, [only] quarter damages would be paid on account of the fact that an unusual act reduces payment [in the case of Pebbles]16 or [does it perhaps mean to say:] 'If it was kicking so that damage resulted from the kicking or when pebbles were flying as a result of the kicking . . .half damages will be paid,' thus making it plain that an unusual act does not reduce payment [in the case of Pebbles]? - Let it stand undecided.
R. Abba b. Memel asked of R. Ammi, some say of R. Hiyya b. Abba, [the following Problem]: In the case of an animal walking in a place where it was unavoidable for it not to make pebbles fly [from under its feet], while in fact it was kicking and in this way making pebbles fly and doing damage, what would be the law? [Should it be maintained that] since it was unavoidable for it not to make pebbles fly there, the damage would be considered usual;17 or should it perhaps be argued otherwise, since in fact the damage resulted from kicking18 that caused the pebbles to fly? - Let it stand undecided.
R. Jeremiah asked R. Zera: In the case of an animal walking on public ground and making pebbles fly from which there resulted damage, what would be the law? Should we compare this case19 to Horn20 and thus impose liability; or since, on the other hand, it is a derivative of Foot, should there be exemption [for damage done on public ground]? - He answered him: It stands to reason that [since] it is a secondary kind of Foot [there is exemption on Public ground].21
Again [he asked him]: In a case where the pebbles were kicked up on public ground but the damage that resulted therefrom was done in the plaintiff's premises, what would be the law? - He answered him: if the cause of raising [the pebbles] is not there [to institute liability],22 how could any liability be attached to the falling down [of the pebbles]? Thereupon he [R. Jeremiah] raised an objection [from the following]: In the case of an animal walking on the road and making pebbles fly either in the plaintiff's premises or on public ground, there is liability to pay. Now, does not this Baraitha deal with a case where the pebbles were made both to fly up on public ground and to do damage on public ground?23 - No, though the pebbles were made to fly on public ground, the damage resulted on the plaintiff's premises. But did you not say [he asked him further, that in such a case there would still be exemption on account of the argument].'If the cause of raising [the pebbles] is not there [to institute liability], how could any liability be attached to the falling down [of the pebbles]?' He answered him: 'I have since changed my mind [on this matter].'24
He raised another objection: IF IT TROD UPON A UTENSIL AND BROKE IT, AND A FRAGMENT [OF IT] FELL UPON ANOTHER UTENSIL WHICH WAS ALSO BROKEN, FOR THE FIRST UTENSIL FULL COMPENSATION MUST BE PAID, BUT FOR THE SECOND [ONLY] HALF DAMAGES. And it was taught on the matter: This ruling is confined to [damage done on] the plaintiff's premises, whereas if it took place on public ground there would be exemption regarding the first utensil though with respect to the second there would be liability to pay. Now, does not the Baraitha present a case where the fragment was made both to fly up on public ground and to do damage on public ground?25 - No, though the fragment was made to fly on public ground, the damage resulted on the plaintiff's premises.
But did you not say [that in such a case there would still be exemption on account of the argument]: 'If the cause of raising [the pebbles] is not there [to institute liability], how could any liability be attached to the falling down [of the pebbles?]'
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(1) The compensation is therefore in full.
(2) Consequently only half damages will be paid.
(3) Coming thus under the category of Horn only half damages should be paid in the case of Tam.
(4) Done by an animal making pebbles fly through kicking.
(5) But the compensation of half damages will be made in all cases of Pebbles.
(6) Supra p. 85.
(7) For compensation in full.
(8) And no more than half damages will ever be paid
(9) For if otherwise, and quarter damages will be paid in the first instance of an unusual act in the case of Pebbles, how could the compensation rise above half damages?
(10) Who orders full compensation in the case of Pebbles; supra p. 79.
(11) I.e., Symmachus.
(12) Ordering only half damages; v supra p. 79.
(13) Who, against the view of Symmachus, order only half damages to be paid, supra p. 79.
(14) Who orders full compensation in the case of Pebbles; ibid.
(15) As to the reading of the Mishnaic text.
(16) As queried by R. Ashi himself, supra p. 88.
(17) Coming thus under the law applicable to Pebbles in the usual way.
(18) Which is an unusual act and should thus be subject to the query put forward by Raba regarding pebbles that were caused to fly by means of an unusual act.
(19) On account of the liability only for half damages.
(20) Where there is liability even on public ground.
(21) Cf. supra p. 9.
(22) Since it took place on public ground.
(23) Which is a refutation of R. Zera's first ruling.
(24) I.e., on the last point.
(25) Which shows that there is liability for Pebbles, i.e., for 'the second utensil,' on public ground, against the ruling of R. Zera.
Talmud - Mas. Baba Kama 19b
- He answered him: 'I have since changed my mind [on this matter].''
But behold R. Johanan said that in regard to the liability of half damages there is no distinction between the plaintiff's premises and public ground. Now, does not this statement also deal with a case where the pebbles were made both to fly up on public ground and to do damage on public ground? - No, though the pebbles were made to fly up on public ground, the damage resulted on the plaintiff's premises. But did you not say [that in such a case there would still be exemption on account of the argument], 'If the cause of raising [the pebbles] is not there [to institute liability], how could any liability be attached to the falling down [of the pebbles]?' - He answered him: 'I have since changed my mind [on this matter].' Alternatively, you might say that R. Johanan referred only to [the liability attached to] Horn.1
R. Judah [II] the Prince and R. Oshaia had both been sitting near the entrance of the house of R. Judah, when the following matter was raised between them: In the case of an animal knocking about with its tail, [and doing thereby damage on public ground] what would be the law? - One of them said in answer: Could the owner be asked to hold the tail of his animal continuously wherever it goes?2 But if so, why in the case of Horn shall we not say the same: 'Could the owner be asked to hold the horn of his animal continuously wherever it goes?' - There is no comparison. In the case of Horn the damage is unusual, whereas it is quite usual [for an animal] to knock about with its tail.3 But if it is usual for an animal to knock about with its tail, what then was the problem?4 - The problem was raised regarding an excessive knocking about.5
R. 'Ena queried: In the case of an animal knocking about with its membrum virile and doing thereby damage,6 what is the law? Shall we say it is analogous to Horn?7 For in the case of Horn do not its passions get the better of it, as may be said here also? Or shall we perhaps say that in the case of Horn, the animal is prompted by a malicious desire to do damage, whereas, in the case before us, there is no malicious desire to do damage?8 - Let it stand undecided.
POULTRY ARE MU'AD TO WALK IN THEIR USUAL WAY AND TO BREAK [THINGS]. IF A STRING BECAME ATTACHED TO THEIR FEET OR WHERE THEY HOP ABOUT AND BREAK UTENSILS, [ONLY] HALF DAMAGES WILL BE PAID. R. Huna said: The ruling regarding half damages applies only to a case where the string became attached of itself, but in a case where it was attached by a human being the liability would be in full. But in the case where the string was attached of itself, who would be liable to pay the half damages? It could hardly be suggested that the owner of the string9 would have to pay it, for in what circumstances could that be possible? If when the string was kept by him in a safe place [so that the fact of the poultry taking hold of it could in no way be attributed to him], surely it was but a sheer accident?10 If [on the other hand] it was not kept in a safe place, should he not be liable for negligence [to pay in full]? It was therefore the owner of the poultry who would have to pay the half damages. But again why differentiate [his case so as to excuse him from full payment]? If there was exemption from full payment on account of [the inference drawn from] the verse, If a man shall open a pit,11 which implies that there would be no liability for Cattle opening a Pit, half damages should [for the very reason] similarly not be imposed here as [there could be liability only when] Man created a pit but not [when] Cattle [created] a pit? - The Mishnaic ruling [regarding half damages] must therefore be applicable only to a case where the poultry made the string fly [from one place to another, where it broke the utensils, being thus subject to the law of Pebbles]; and the statement made by R.Huna will accordingly refer to a case which has been dealt with elsewhere [viz.]: In the case of an ownerless string, R. Huna said that if it had become attached of itself to poultry [and though damage resulted to an animate object tripping over it while it was still attached to the poultry] there would be exemption.12 But if it had been attached to the poultry by a human being, he would be liable to pay [in full]. Under what category of damage could this liability come?13 - R. Huna b. Manoah said: Under the category of Pit, which is rolled about by feet of man and feet of animal.14
MISHNAH. WITH REFERENCE TO WHAT IS TOOTH MU'AD?15 [IT IS MU'AD] TO CONSUME WHATEVER IS FIT FOR IT. ANIMAL IS MUA'D TO CONSUME BOTH FRUITS AND VEGETABLES. BUT IF IT HAS DESTROYED CLOTHES OR UTENSILS, [ONLY] HALF DAMAGES WILL BE PAID.16 THIS RULING APPLIES ONLY TO DAMAGE DONE ON THE PLAINTIFF'S PREMISES, BUT IF IT IS DONE ON PUBLIC GROUND THERE WOULD BE EXEMPTION.17 WHERE, HOWEVER, THE ANIMAL HAS DERIVED SOME BENEFIT [FROM THE DAMAGE DONE BY IT], PAYMENT WILL [IN ANY CASE] BE MADE TO THE EXTENT OF THE BENEFIT. WHEN WILL PAYMENT BE MADE TO THE EXTENT OF THE BENEFIT? IF IT CONSUMED [FOOD] IN THE MARKET, PAYMENT TO THE EXTENT OF THE BENEFIT WILL BE MADE; [BUT IF IT CONSUMED] IN THE SIDEWAYS OF THE MARKET, THE PAYMENT WILL BE FOR THE ACTUAL. DAMAGE DONE BY THE ANIMAl. [SO ALSO IF IT CONSUMED] AT THE ENTRANCE OF A SHOP, PAYMENT TO THE EXTENT OF THE BENEFIT WILL BE MADE, [BUT IF IT CONSUMED] INSIDE THE SHOP, THE PAYMENT WILL BE FOR THE ACTUAL DAMAGE DONE BY THE ANIMAL.
GEMARA. Our Rabbis taught: Tooth is Mu'ad to consume whatever is fit for it. How is that? In the case of an animal entering the plaintiff's premises and consuming food that is fit for it or drinking liquids that are fit for it, the payment will be in full. Similarly in the case of a wild beast entering the plaintiff's premises, tearing an animal to pieces and consuming its flesh, the payment will be in full. So also in the case of a cow consuming barley, an ass consuming horse-beans, a dog licking oil, or a pig consuming a piece of meat, the payment will be in full. R. Papa [thereupon] said: Since it has been stated that things which in the usual way would be unfit as food [for particular animals] but which under pressing circumstances are consumed by them,18 come under the designation of food, in the case of a cat consuming dates, and an ass consuming fish, the payment will similarly be in full.
There was a case where an ass consumed bread and chewed also the basket19 [in which the bread had been kept]. Rab Judah thereupon ordered full payment for the bread, but only half damages for the basket. Why can it not be argued that since it was usual for the ass to consume the bread, it was similarly usual for it to chew at the same time the basket too? - It was only after it had already completed consuming the bread, that the ass chewed the basket. But could bread be considered the usual food of an animal? Here is [a Baraitha] which contradicts this: If it [the animal] consumed bread, meat or broth, only half damages will be paid.20 Now, does not this ruling refer to [a domestic] animal?21 - No, it refers to a wild beast. To a wild beast? Is not meat its usual food? - The meat was roasted.22 Alternatively, you may say: It refers to a deer.23 You may still further say alternatively that it refers to a [domestic] animal, but the bread was consumed upon a table.24
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(1) Where indeed there is no distinction between public ground and the plaintiff's premises; (cf. however, the views of R. Tarfon, supra 14a;18a and infra 24b). but in regard to Pebbles, there is a distinction, and liability is restricted to the plaintiff's premises, according to the ruling of R. Zera.
(2) There will therefore be no liability.
(3) Coming thus under the category of Foot, for which there is no liability on public ground.
(4) Why should it not be regarded as a derivative of Foot?
(5) Whether it is still usual for it or not.
(6) On public ground.
(7) And there will be liability.
(8) It should therefore come under the category of Tooth and Foot, for which there is no liability on public ground.
(9) Not being the owner of the poultry.
(10) He should consequently be freed altogether.
(11) Ex. XXI, 33. (5) I.e., no responsibility is involved in cattle creating a nuisance. Cf. infra 48a; 51a.
(12) As there was no owner to the string, while the owner of the poultry could not be made liable for damage that resulted from a nuisance created by his poultry on the principle that Cattle, creating a nuisance, would in no way involve the owner in any obligation.
(13) Since that human being was neither the owner of the poultry nor the owner of the string, and the damage did not occur at the spot where he attached the string.
(14) For which there is liability, as explained supra p. 19.
(15) V. supra p. 68.
(16) For being an unusual act, it comes under the category of Horn.
(17) Cf. supra p. 17.
(18) E.g., horse-beans by an ass, or meat by a pig.
(19) Or 'split it', 'picked it to pieces' (Rashi).
(20) On the ground that the act was unusual and as such would come under the category of Horn.
(21) This shows that bread is not the usual food of animal.
(22) Which is in such a state not usually consumed even by a wild beast.
(23) Which, as a rule, does not feed on meat.
(24) Which was indeed unusual.
Talmud - Mas. Baba Kama 20a
There was a case where a goat, noticing turnips upon the top of a cask, climbed up there and consumed the turnips and broke the jar. - Raba thereupon ordered full payment both for the turnips and for the jar; the reason being that since it was usual with it to consume turnips it was also usual to climb up [for them].
Ilfa stated: In the case of an animal on public ground stretching out its neck and consuming food that had been placed upon the back of another animal, there would be liability to pay; the reason being that the back of the other animal would be counted as the plaintiff's premises. May we say that the following teaching supports his view: 'In the case of a plaintiff who had a bundle [of grain] hanging over his back and [somebody else's animal] stretched out its neck and consumed [the grain] out of it, there would be liability to pay'? - No, just as Raba elsewhere referred to a case where the animal was jumping [an act which being quite unusual would be subject to the law of Horn1 ], so also this teaching might perhaps similarly deal with a case of jumping.
With reference to what was Raba's statement made? - [It was made] with reference to the following statement of R. Oshaia: In the case of an animal on public ground going along and consuming, there would be exemption, but if it was standing and consuming there would be liability to pay. Why this difference? If in the case of walking [there is exemption, since] it is usual with animal to do so, is it not also in the case of standing usual with it to do so? - [It was on this question that] Raba said: 'Standing' here implies jumping [which being unusual was therefore subject in the law of Horn].1
R. Zera asked: [In the case of a sheaf that was] rolling about, what would he the law? (In what circumstances? - When, e.g., grain had originally been placed in the plaintiff's premises, but was rolled thence into public ground [by the animal, which consumed the grain while standing on public ground], what would then be the law?)2 - Come and hear that which R. Hiyya taught: 'In the case of a bag of food lying partly inside and partly outside [of the plaintiff's premises], if the animal consumed inside, there would be liability [to pay], but if it consumed outside there would be exemption.' Now, did not this teaching refer to a case where the bag was being continually rolled?3 - No; read . '...which the animal consumed, for the part which had originally been lying inside4 there would be liability but for the part that had always been outside there would be exemption.' You might alternatively say that R. Hiyya referred to a bag containing long stalks of grass.5
ANIMAL IS MUA'D TO CONSUME BOTH FRUITS AND VEGETABLES. BUT IF IT HAS DESTROYED CLOTHES OR UTENSILS, [ONLY] HALF DAMAGES WILL BE PAID. THIS RULING APPLIES ONLY TO DAMAGE DONE ON THE PLAINTIFF'S PREMISES, BUT IF IT IS DONE ON PUBLIC GROUND THERE WOULD BE EXEMPTION. To what ruling does the last clause refer? - Rab said: [It refers] to all the cases [dealt with in the Mishnah, even to the destruction of clothes and utensils];6 the reason being that whenever the plaintiff himself acted unlawfully,7 the defendant, though guilty of misconduct, could be under no liability to pay. Samuel on the other hand said: It refers only to the ruling regarding [the consumption of] fruits and vegetables,8 whereas in the case of clothes and utensils9 there would be liability [even when the damage was done on public ground]. [The same difference of opinion is found between Resh Lakish and R. Johanan, for] Resh Lakish said: [It refers] to all the cases [even to the destruction of clothes and utensils].10 In this Resh Lakish was following a view expressed by him in another connection, where he stated:11 In the case of two cows on public ground, one lying down and the other walking about, if the one that was walking kicked the one that was lying there would be exemption [since the latter too misconducted itself by laying itself down on public ground], whereas if the one that was lying kicked the one that was walking there would be liability to pay. R. Johanan on the other hand said: The ruling in the Mishnah refers only to the case of fruits and vegetables, whereas in the case of clothes and utensils there would be liability [even when the damage was done on public ground]. Might it thus be inferred that R. Johanan was also against the view expressed by Resh Lakish even in the case of the two cows? - No; [in that case] he could indeed have been in full agreement with him; for while in the case of clothes [and utensils] it might be customary with people to place [their] garments [on public ground] whilst having a rest near by, [in the case of the cows] it is not usual [for an animal to lie down on public ground].12
WHERE, HOWEVER, THE ANIMAL HAS DERIVED SOME BENEFIT [FROM THE DAMAGE DONE BY IT]. PAYMENT WILL [IN ANY CASE] BE MADE TO THE EXTENT OF THE BENEFIT. How [could the extent of the benefit be] calculated? - Rabbah said: [It must not exceed] the value of straw [i.e. the coarsest possible food for animals]. But Raba said: The value of barley13 on the cheapest scale [i.e. two-thirds of the usual price]. There is a Baraitha in agreement with Rabbah, and there is another Baraitha in agreement with Raba. There is a Baraitha in agreement with Rabbah [viz.]: R. Simeon b. Yohai said: The payment [to the extent of the benefit] would not be more than the value of straw.14 There is a Baraitha in agreement with Raba [viz.]: When the animal derived some benefit [from the damage done by it], payment would [in any case] be made to the extent of the benefit. That is to say, in the case of [an animal] having consumed [on public ground] one kab15 or two kabs [of barley], no order would be given to pay the full value of the barley [that was consumed], but it would be estimated how much might an owner be willing to spend to let his animal have that particular food [which was consumed] supposing it was good for it, though in practice he was never accustomed to feed it thus. It would therefore follow that in the case of [an animal] having consumed wheat or any other food unwholesome for it, there could be no liability at all.
R.Hisda said to Rami b. Hama: You were not yesterday with us in the House of Study16 where there were discussed some specially interesting matters. The other thereupon asked him: What were the specially interesting matters? He answered: [The discussion was whether] one who occupied his neighbour's premises unbeknown to him would have to pay rent17 or not. But under what circumstances? It could hardly be supposed that the premises were not for hire,18 and he [the one who occupied them] was similarly a man who was not in the habit of hiring any,19 for [what liability could there be attached to a case where] the defendant derived no benefit and the plaintiff sustained no loss? If on the other hand the premises were for hire and he was a man whose wont it was to hire premises, [why should no liability be attached since] the defendant derived a benefit and the plaintiff sustained a loss? - No; the problem arises in a case where the premises were not for hire, but his wont was to hire premises. What therefore should be the law? Is the occupier entitled to plead [against the other party]: 'What loss have I caused to you [since your premises were in any case not for hire]?'
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(1) Which could not be exempted from liability even on public ground.
(2) If we were to go by the place of the actual consumption there would be exemption in this case, whereas if the original place whence the food was removed is also taken into account, there would be liability to pay.
(3) According to this Baraitha, the place of actual consumption was the basic point to be considered.
(4) Though removed by the animal and consumed outside.
(5) Which was lying partly inside and partly outside, and as, unlike grain, it constituted one whole, the place of the consumption was material.
(6) For which there would be no liability on public ground, although, being unusual, it would come under the category of Horn.
(7) By allowing his clothes or utensils to be on public ground.
(8) Cf. supra p. 17.
(9) As the damage would come under the category of Horn.
(10) V. p. 97, n. 5.
(11) V. infra 32a.
(12) It was therefore a misconduct on the the part of the animal to lie down, which makes it liable for any damage it caused, whilst it is not entitled to payment for any damage sustained.
(13) I.e., the value of the food actually consumed by the animal.
(14) Even when the animal consumed barley, as it might be alleged that straw would have sufficed it.
(15) A certain measure: v. Glos.
(16) Lit. 'in our district,' 'domain' בחהומא This word is omitted in some texts, v. D. S. a.l.
(17) For the past.
(18) And would in any case have remained vacant.
(19) As he had friends who were willing to accommodate him without any pay.
Talmud - Mas. Baba Kama 20b
Or might the other party retort: 'Since you have derived a benefit [as otherwise you would have had to hire premises], you must pay rent accordingly'? Rami b. Hama thereupon said to R. Hisda: 'The solution to the problem is contained in a Mishnah.' - 'In what Mishnah?' He answered him: 'When you will first have performed for me some service.'1 Thereupon he, R. Hisda, carefully lifted up his2 scarf and folded it. Then Rami b. Hama said to him: [The Mishnah is:] WHERE, HOWEVER, THE ANIMAL HAS DERIVED SOME BENEFIT [FROM THE DAMAGE DONE BY IT,] PAYMENT WILL [IN ANY CASE] BE MADE TO THE EXTENT OF THE BENEFIT. Said Raba: How much worry and anxiety is a person [such as Rami b. Hama] spared whom the Master [of all] helps! For though the problem [before us] is not at all analogous to the case dealt with in the Mishnah, R. Hisda accepted the solution suggested by Rami b. Hama. [The difference is as follows:] In the case of the Mishnah the defendant derived a benefit and the plaintiff sustained a loss, whereas in the problem before us the defendant derived a benefit but the plaintiff sustained no loss. Rami b. Hama was, however, of the opinion that generally speaking fruits left on public ground have been [more or less] abandoned by their owner [who could thus not regard the animal that consumed them there as having exclusively caused him the loss he sustained, and the analogy therefore was good].
Come and hear: 'In the case of a plaintiff who [by his fields] has encircled the defendant's field on three sides, and who has made a fence on the one side as well as on the second and third sides [so that the defendant is enjoying the benefit of the fences], no payment can be enforced from the defendant [since on the fourth side his field is still open wide to the world and the benefit he derives is thus incomplete].'3 Should, however, the plaintiff make a fence also on the fourth side, the defendant would [no doubt] have to share the whole outlay of the fences. Now, could it not he deduced from this that wherever a defendant has derived benefit, though the plaintiff has thereby sustained no loss,4 there is liability to pay [for the benefit derived]? - That case is altogether different, as the plaintiff may there argue against the defendant saying: It is you that [by having your field in the middle of my fields] have caused me to erect additional fences5 [and incur additional expense].
Come and hear: [In the same case] R. Jose said: [It is only] if the defendant [subsequently] of his own accord makes a fence on the fourth side that there would devolve upon him, a liability to pay his share [also] in the existing fences [made by the plaintiff].6 The liability thus applies only when the defendant fences [the fourth side], but were the plaintiff to fence [the fourth side too] there would be no liability [whatsoever upon the defendant]. Now, could it not be deduced from this that in a case where, though the defendant has derived benefit, the plaintiff has [thereby] sustained no loss, there is no liability to pay? - That ruling again is based on a different principle, since the defendant may argue against the plaintiff saying: 'For my purposes a partition of thorns of the value of zuz7 would have been quite sufficient.'
Come and hear: '[A structure consisting of] a lower storey and an upper storey, belonging respectively to two persons, has collapsed. The owner of the upper storey thereupon asks the owner of the lower storey to rebuild the ground floor, but the latter does not agree to do so. The owner of the upper storey is then entitled to build the lower storey and to occupy it until the owner of the ground floor refunds the outlay.'8 Now, seeing that the whole outlay will have to be refunded by the owner of the lower storey, it is evident that no rent may be deducted [for the occupation of the lower storey]. Could it thus not be inferred from this ruling that in a case where, though the defendant has derived a benefit, the plaintiff has [thereby] sustained no loss,9 there is no liability to pay? - That ruling is based on a different principle as the lower storey is by law accessory to the upper storey.10
Come and hear: [In the same case] R. Judah said: Even this one who occupies another man's premises without an agreement with him must nevertheless pay him rent.11 Is not this ruling a proof that in a case where the defendant has derived benefit, though the plaintiff has [thereby] sustained no loss, there is full liability to pay? - That ruling is based on a different principle, since we have to reckon there with the blackening of the walls [in the case of newly built premises, the plaintiff thus sustaining an actual loss].
The problem was communicated to R. Ammi and his answer was: 'What harm has the defendant done to the other party? What loss has he caused him to suffer? And finally what indeed is the damage that he has done to him?' R. Hiyya b. Abba, however, said: 'We have to consider the matter very carefully.' When the problem was afterwards again laid before R. Hiyya b. Abba he replied: 'Why do you keep on sending the problem to me? If I had found the solution, would I not have forwarded it to you?'
It was stated: R. Kahana quoting R. Johanan said: [In the case of the above problem] there would be no legal obligation to pay rent; but R. Abbahu similarly quoting R. Johanan said: There would be a legal obligation to pay rent. R. Papa thereupon said: The view expressed by R. Abbahu [on behalf of R. Johanan] was not stated explicitly [by R. Johanan] but was only arrived at by inference. For we learnt: He who misappropriates a stone or a beam belonging to the Temple Treasury12 does not render himself subject to the law of Sacrilege.13 But if he delivers it to his neighbour, he is subject to the law of Sacrilege,14 whereas his neighbour is not subject to the law of Sacrilege.15 So also when he builds it into his house he is not subject to the law of Sacrilege until he actually occupies that house for such a period that the benefit derived from that stone or that beam would amount to the value of a perutah.16 And Samuel thereupon said that the last ruling referred to a case where the stone or the beam was [not fixed into the actual structure but] left loose on the roof.17 Now, R. Abbahu sitting in the presence of R. Johanan said in the name of Samuel that this ruling proved that he who occupied his neighbour's premises without an agreement with him would have to pay him rent.18 And he [R. Johanan] kept silent. [R. Abbahu] imagined that since he [R. Johanan] remained silent, he thus acknowledged his agreement with this inference. But in fact this was not so. He [R. Johanan] paid no regard to this view on account of his acceptance of an argument which was advanced [later] by Rabbah; for Rabbah19 said: The conversion of sacred property even without [the] knowledge [of the Temple Treasury] is [subject20 to the law of Sacrilege]21
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(1) 'Then will I let you know the source.' The service thus rendered would on the one hand prove the eagerness of the enquirer and on the other make him appreciate the answer;.
(2) I.e.. the other's.
(3) B.B. 4b.
(4) Such as in the case before us where the fences were of course erected primarily for the plaintiff's own use.
(5) I.e., the fencing which was erected between the field of the defendant and the surrounding fields that belong to the plaintiff. This interpretation is given by Rashi but is opposed by the Tosaf. a.l. who explain the case to refer to fencing set up between the fields of the plaintiff and those of the surrounding neighbours.
(6) B.B. 4b.
(7) A small coin; v. Glos.
(8) B.M. 117a.
(9) [Since in this case the owner of the ground floor refused to build.]
(10) The occupation of the newly-built lower storey by the owner of the upper storey is thus under the given circumstances a matter of right.
(11) B.M. 117a.
(12) But which has been all the time in his possession as he had been the authorized Treasurer of the Sanctuary; v. Hag. 11a and Mei. 20a
(13) Since the offender was the Treasurer of the Temple and the possession of the consecrated stone or beam has thus not changed hands, no conversion has been committed in this case. As to the law of Sacrilege, v. Lev. V, 15-16, and supra, p. 50.
(14) For the conversion that has been committed.
(15) Since the article has already been desecrated by the act of delivery.
(16) Mei. V, 4. Perutah is the minimum legal value; cf. also Glossary.
(17) [As otherwise the mere conversion involved would render him liable to the law of Sacrilege.]
(18) For if in the case of private premises there would be no liability to pay rent, why should the law if Sacrilege apply on account of the benefit of the perutah derived from the stone or the beam?
(19) Cf. B.M. 99b, where the reading is Raba.
(20) As nothing escapes the knowledge of Heaven which ordered the law of Sacrilege to apply to all cases of conversion.
(21) Dealt with in Lev. V, 15-16.

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2009 JCR