The Babylonian Talmud
Baba Kamma

Talmud - Mas. Baba Kama 41a
that the execution amounted to manslaughter on the part of the animal; we are therefore told [that this is not the case]. Raba on the other hand held that [we deal here with a case where] while copulating with a woman the animal did kill her, and as for the objection what difference could be made between killing committed by means of horns and killing committed by means of copulating, [the answer would be that] in the case of Horn the animal purposes to do damage, whereas in this case [of copulating] the intention of the animal is merely for self-gratification. What is the point at issue [between these two explanations]?1 - [Whether kofer should be paid] in the case of Foot treading upon a child in the premises of the plaintiff [and killing it].2 According to Abaye there would be liability to pay kofer, whereas according to Raba no payment of kofer would have to be made.3
It was taught in accordance with the view of Rab: An ox trained for the arena [that killed a person] is not liable [to be stoned] to death , and is eligible for the altar, for it had been compelled [to commit the manslaughter].
MISHNAH. IF AN OX GORES A MAN AND DEATH RESULTS, IN THE CASE OF MU'AD THERE IS LIABILITY TO PAY KOFER,4 BUT IN THE CASE OF TAM, THERE IS NO LIABILITY TO PAY KOFER. IN BOTH CASES, HOWEVER, THE OXEN ARE LIABLE [TO BE STONED] TO DEATH.5 THE SAME [JUDGMENT APPLIES] IN THE CASE OF A [MINOR] SON AND THE SAME [JUDGMENT APPLIES] IN THE CASE OF A [MINOR] DAUGHTER.6 BUT WHERE THE OX HAS GORED A MANSERVANT OR A MAIDSERVANT [AND DEATH HAS RESULTED], COMPENSATION HAS TO BE GIVEN TO THE AMOUNT OF THIRTY SELA',7 WHETHER THE KILLED SERVANT WAS WORTH A HUNDRED MANEH8 OR NOT WORTH ANY MORE THAN ONE DENAR.9
GEMARA. But since when it was still the state of Tam it had to be killed [for manslaughter], how could it ever have been possible to declare it Mu'ad? - Rabbah said: We are dealing here with a case where, e.g. it had been estimated that it10 might have killed three11 human beings.12 R. Ashi, however, said that such estimation amount to nothing,13 and that we are therefore dealing here with a case where the ox gored and endangered the lives of three human beings.14 R. Zebid [on the other hand] said: [The case is one] where, for instance, it killed three animals.15 But is an ox [which has been declared] Mu'ad to kill animals also Mu'ad to kill men?16 - R. Shimi therefore said: [The case is one] where for instance it killed three heathens.15 But is an ox [which has been declared] Mu'ad to gore persons who are heathens also Mu'ad with reference to those who are Israelites? - R. Simeon b. Lakish therefore said: [The case is one] where, for instance, it killed three persons who had already been afflicted with fatal organic diseases.15 But is an ox [which has been declared] Mu'ad with reference to persons afflicted with fatal organic diseases also Mu'ad regarding persons in sound condition? - R. Papa therefore said: [The case is one where] the ox [on the first occasion] killed [a sound person] but escaped to the pasture,17 killed again [a sound person] but similarly escaped to the pasture. R. Aha the son of R. Ika said: [The case is one] where, for instance, [two witnesses alleged in every case an alibi against the three pairs of witnesses who had testified to the first three occasions of goring,17 and] it so happened that [after evidence had been given regarding the fourth time of goring the accusation of the alibi with reference to the first three times of goring fell to the ground as] a new pair of witnesses gave evidence of an alibi against the same two witnesses who alleged the alibi [against the three sets of witnesses who had testified to the first three occasions of goring]. Now this explanation would be satisfactory [if the three days required for] the declaration of Mu'ad refer to [the goring of] the ox18 [so as to make sure that it has an ingrained tendency].19 But if the three days are needed to warn the owner,18 why should he not plead [against the plaintiff], 'I was not aware [that the evidence as to the first three gorings was genuine]'? - [This could not be pleaded where] e.g., it was stated [by the very last pair of witnesses] that whenever the ox had [gored and] killed he20 had been present [and witnessed every occasion]. - Rabina said: [The case of an ox not being stoned after any of the first three fatal gorings might be] where, though recognising the owner of the ox20 [the witnesses who testified to the first three time of goring] did not at that time recognise the identity of the ox [also].17 But what could the owner20 have done [where the ox that gored and killed had not been identified]?21 - [He is culpable because] they could say to him: 'Knowing that an ox inclined to gore has been among your herd, you ought to have guarded the whole of your herd.'
IN BOTH CASES, HOWEVER, THE OXEN ARE LIABLE [TO BE STONED] TO DEATH. Our Rabbis taught: From the implication of the statement The ox shall be surely stoned22 would I not have known that it becomes nebelah23 and that by becoming nebelah it should be forbidden to be consumed for food?24 Why then was it necessary to state further And his flesh shall not be eaten?25 Scripture must therefore have intended to tell us that were the ox to be slaughtered after the sentence has been passed upon it, it would be forbidden to be consumed as food. This rule is thus established as regards food; whence could it be derived that it would also be forbidden for any [other] use whatsoever? The text therefore says, But the owner of the ox shall be quit.25 How does this bear [on the matter in hand]? - Simeon B. Zoma said: [The word 'quit' is used here] as in [the colloquial expression,] So-and-so went out quit from his possessions without having any benefit of them whatsoever.
But how do we know that 'his flesh shall not be eaten' refers to a case where the ox has been slaughtered after the sentence had been passed on it, to indicate that it should be forbidden to be used as food? Why not rather suppose that where it has been slaughtered after the sentence had been passed on it, the ox would be eligible to be used for food, and take the words 'his flesh shall not be eaten' as referring to a case where the ox had already been stoned, and indicating that it should [then] be forbidden for any use whatsoever?26 Such an implication is even in conformity with the view of R. Abbahu, for R. Abbahu said on behalf of R. Eleazar:27 Wherever Scripture says either it shall not be eaten28 or thou shalt not eat29 or you shall not eat,30 a prohibition both in respect of food and in respect of any [other] use is implied, unless where Scripture makes an explicit exception, as it did make an exception in the case of a thing that dies of itself, which may be given unto a stranger or sold unto a heathen!24 - It may, however, be argued against this that these words [of R. Abbahu] hold good only where the prohibition both in respect of food and in respect of any [other] use is derived from the one Scriptural text, [viz.,] 'it shall not be eaten', but here where the prohibition in respect of food is derived from '[the ox] shall be surely stoned', should you suggest that [the words] 'his flesh shall not be eaten' were meant as a prohibition for any use, [we may ask] why then did the Divine Law not plainly state 'No benefit shall be derived from it'? Or again, why not merely say, 'It shall not be eaten'? Why [the additional words] 'his flesh', if not to indicate that even where it had been made and prepared to resemble other meat, as where the ox was slaughtered, it should still be forbidden. Mar Zutra strongly demurred to this: Why not [he said] take this prohibition
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(1) Given by Abaye and Raba respectively.
(2) Discussed supra p. 134.
(3) Since the intention of the animal was not to do damage.
(4) Ex. XXI, 30.
(5) Ibid. 28-29.
(6) Ibid. 31
(7) Ibid. 32.
(8) V. Glos.
(9) V. Glos.
(10) The ox.
(11) As Mu'ad could be only on the fourth occasion; cf. however Rashi a.l.; also Tosaf. a.l. and supra p. 119.
(12) Whom the ox pursued but who had a very narrow escape from death by running away to a safe place.
(13) Since no actual goring took place.
(14) Who, however, did not die until after the ox gored again on the fourth occasion, and it was on account of this delay that the ox was not stoned previously.
(15) In which case the ox should not be put to death.
(16) Cf. supra p. 4, and p. 205.
(17) The ox thus escaped death.
(18) Cf. supra p.121
(19) As in this case also the first three times of goring took place on three successive days.
(20) I.e. the defendant.
(21) How then could this be called warning?
(22) Ex. XXI. 28.
(23) I.e.. the carcass of an animal not ritually slaughtered.
(24) In accordance with Deut XIV, 21.
(25) V. p. 233, n. 6.
(26) For without this implication it would have followed the general rule that an animal which was not slaughtered in accordance with the requirements of the law could be used for any purpose but food; cf. Deut. XIV, 21 and Lev. VII, 24.
(27) Pes. 21b; Kid. 56b.
(28) Such e.g. as in Ex. XIII,3.
(29) See Lev. XVII, 12 but also Pes. 22a.
(30) Cf. e.g., Gen. XXXII, 33 and Pes. 22a and Hul. 100b.
Talmud - Mas. Baba Kama 41b
to refer to a case where the slaughterer prepared1 a piece of sharp flint and with it slaughtered the ox, which was thus dealt with as if it has been stoned, whereas where it had been slaughtered by means of a knife the prohibition should not apply? - To this it may be replied: Is a knife specifically mentioned in Scripture? Moreover we have learnt:2 If one slaughters with a hand-sickle, with a flint or with a reed, the act of slaughtering has been properly executed.2
And now that the prohibition in respect both of food and of any [other] use has been derived from [the text] 'his flesh shall not be eaten', what additional teaching is afforded to me by [the words] 'The owner of the ox shall be quit'? - [The prohibition of] the use of the skin. For otherwise you might have been inclined to think that it was only the flesh that had been proscribed from being used, whereas the skin should be permitted to be used; we are therefore told [that this is not the case but] that 'the owner of the ox shall be quit.' But what of those Tannaim who employ this [text], 'The owner of the ox shall be quit' for deriving other implications (as we will indeed have to explain infra);3 whence do they derive the prohibition against the making use of the skin? - They derive it from [the auxiliary term in the Hebrew text] 'eth his flesh', meaning, 'together with that which is joined to its flesh', that is, its skin. This Tanna,4 however, does not stress [the term] 'eth' for legal expositions, as it has been taught:5 Simeon the Imsonite, or as others read, Nehemiah the Imsonite, used to expound [the term] 'eth'6 wherever it occurred in the Torah. When, however, he reached, Thou shalt fear eth the Lord thy God,7 he abstained.8 His disciples said to him: Rabbi, what is to be done with all the expositions of [the term] 'eth' which you have already given?6 He said to them: Just as I have received reward for the [previous] expositions so have I received reward for the [present] abstention. When R. Akiba, however, came, he taught: 'Thou shalt fear eth the Lord thy God' implies that the scholarly disciples are also to be feared.
Our Rabbis taught: 'But the owner of the ox shall be quit' means, according to the view of R. Eliezer, quit from [paying] half kofer.9 Said R. Akiba to him: Since any actual liability in the case of the ox itself [being a Tam] is not paid except out of its body,10 [why cannot the owner say to the plaintiff,] 'Bring it to the Court of Law and be reimbursed out of it' ?11 R. Eliezer then said to him: 'Do I really appear so [simple] in your eyes that [you should take] my exposition to refer to a case of an ox liable [to be stoned] to death? My exposition referred only to one who killed the human being in the presence of one witness or in the presence of its owner.'12 In the presence of its owner! Would he not be admitting a penal liability?13 - R. Eliezer maintains that kofer partakes of a propitiatory character.14
Another [Baraitha] teaches: R. Eliezer said to him: Akiba, do I really appear so [simple] in your eyes that [you take] my exposition to refer to an ox liable [to be stoned] to death? My exposition referred only to one who had been intending to kill a beast but [by accident] killed a man, [or where it had been intending to kill] an Egyptian and killed an Israelite, [or] a non-viable child and killed a viable child.15 Which of the answers, was given first? - R. Kahana in the name of Raba said that [the answer about] intention was given first, whereas R. Tabyomi in the name of Raba said that [the answer about] having killed [the man in the presence of one witness etc.] was given first. R. Kahana, who in the name of Raba said [that the answer about] intention was given first, compared him to a fisherman who had been catching fishes in the sea;
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(1) Lit., 'tested', that is, to see whether it was fit for ritual slaughetering.
(2) Hul. 15b.
(3) V. pp.236-239.
(4) Who needs the whole of the text to imply the prohibition of the skin.
(5) Kid. 57a; Bek. 6b and Pes 22b.
(6) To imply some amplification of the statement actually made.
(7) Deut VI. 13
(8) Being loth to put any being whatsoever on a par with God.
(9) In the case of Tam.
(10) As supra p. 73.
(11) But since the ox is put to death and the carcass including also the skin is proscribed for any use whatsoever, is it not evident that no payment could be made in the case of Tam killing a human being? Why then give a special indication to this effect?
(12) [In which case the ox is not stoned (v. Zeb. 71a: Rashi and Tosaf. s.v. על פי).]
(13) For the payment of half-damages in the case of Tam is, as decided supra p. 67 of a penal character and as such liability for it could in any case not be established by the admission of the defendant, for which cf. supra p. 62 and infra p. 429.
(14) And liability to it would thus have been established even by the admission of the defendant.
(15) V. supra p. 232. n.11.
Talmud - Mas. Baba Kama 42a
when he caught big ones he took them and when he [subsequently] caught little ones he took them also.1 But R. Tabyomi, who in the name of Raba said that [the answer about] having killed [the man in the presence of one witness etc.] was given first, compares him to a fisherman who was catching fishes in the sea and when he caught little ones he took them, but when he [subsequently] caught big ones he threw away the little ones and took the big ones.2
Another [Baraitha] teaches: 'And the owner of the ox shall be quit' [implies] according to the statement of R. Jose the Galilean, quit from compensating [in the case of Tam killing] embryos . Said R. Akiba to him: Behold Scripture states: If men strive together and hurt a woman with child etc.,3 [implying that only] men but not oxen [are liable for killing embryos]!4 Was not this a good question on the part of R. Akiba? - R. 'Ulla the son of R. Idi said: [The implication drawn by R. Jose] is essential. For otherwise it might have occurred to you to apply [R. Akiba's] inference 'Men but not oxen' [exclusively to such] oxen as are comparable to men: Just as men are Mu'ad,5 so also here the oxen referred to are Mu'ad, whereas in the case of Tam there should be liability. The Divine Law has therefore stated, 'The owner of the ox shall be quit', implying exemption [also in the case of Tam]. Said Raba thereupon: Is the native born to be on the earth and the stranger in the highest heavens?6 No, said Raba. [The implication drawn by R. Jose] is essential [for this reason, that] you might have been inclined to apply the inference 'Men but not oxen' only to oxen which could be compared to men - just as men are Mu'ad so the oxen here referred to are Mu'ad - and to have extended the exemption to cases of Tam by an argument a fortiori. Therefore the Divine Law purposely states [further], The owner of the ox shall be quit [to indicate that only] in the case of Tam will there be exemption whereas in the case of Mu'ad there will be liability. Said Abaye to him: If that is so, why not argue in the same way in the case of payment for degradation; thus: [Scripture says] 'Men',7 excluding oxen which could be compared with men: just as the men are Mu'ad so the oxen [thus exempted] must be Mu'ad, and a fortiori exemption is extended to cases of Tam. Thereupon the Divine Law on another occasion purposely states, 'The owner of the ox shall be quit' [to indicate that only] in the case of Tam will there be exemption, whereas in the case of Mu'ad there will be liability [for degradation]? Now you could hardly say that this is indeed the case, for if so why not teach that, 'the owner of the ox shall be quit' [means], according to R. Jose the Galilean, quit from compensating [both in the case of Tam killing] embryos and [in the case of it having caused] degradation?8 - Abaye and Raba both therefore said: [You might have been inclined to suppose that] in the case of 'men' it is only where no mischief9 [resulted to the woman] that a liability to pay [for the embryo is imposed] upon them whereas where a mischief [resulted to the woman] no civil liability10 [is imposed] upon them,11 but that it is not so with oxen, as in their case even if mischief [results to the woman] a liability to pay is imposed.12 The Divine Law has therefore on another occasion purposely stated, The owner of the ox shall be quit, to indicate exemption [in all cases]. R. Adda b. Ahabah demurred to this, saying: Does then the matter of civil liability13 depend upon the non-occurrence of mischief to the woman? Does this matter not depend upon intention [of the defendant]?14 - R. Adda b. Ahabah therefore said: [You might have been inclined to think thus:] In the case of men where their purpose was to kill one another, even if mischief results to a woman, a civil liability13 will be imposed, whereas where they purposed to kill the woman herself [who was in fact killed], no civil liability13 would be imposed. In the case of oxen, however, even where their purpose was to kill the woman [who is indeed killed by them] a civil liability should be imposed for the embryo. [To prevent your reasoning thus] the Divine Law on another occasion purposely states, 'The owner of the ox shall be quit' to indicate exemption [altogether in the case of oxen]. And so also R. Haggai upon returning from the South, came [to the College] and brought the teaching [of a Baraitha] with him stating the case in accordance with the interpretation given by R. Adda b. Ahabab.
Another [Baraitha] teaches: 'The owner of the ox shall be quit' [implies], according to the statement of R. Akiba, quit from compensating for [the killing of] a slave.15
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(1) So also here where the better answer was given first and the inferior one later. The answer about intention is considered the better one.
(2) Here also when R. Eliezer subsequently found a better answer he withdrew the answer which he had given first.
(3) Ex. XXI, 22.
(4) Why then a special implication to exempt Tam?
(5) V. supra p. 68.
(6) I.e., how would it be possible to have exemption in the case of Mu'ad and liability in the case of Tam?
(7) Deut. XXV, 11.
(8) But Mu'ad is liable.
(9) I.e., death.
(10) For the embryo.
(11) As all civil claims would merge in the capital charge; cf. supra p. 113 and infra p. 427, n. 2.
(12) For the civil liability of the owner should not be affected by the ox having to be put to death.
(13) V. p. 238, n. 4.
(14) For where he intended to kill another person and it was only by accident that the woman and her embryo were killed, there would, according to R. Adda b. Ahabah, be no capital charge but a civil liability; cf. for such a view infra p.252 and Sanh. 79a.
(15) V. supra p. 232.
Talmud - Mas. Baba Kama 42b
But why should R. Akiba not argue against himself,1 Since any actual liability in the case of the ox itself [being a Tam] is not paid except out of its body [why should not the owner say to the plaintiff] 'Bring it to the Court of Law and be reimbursed out of it'? - R. Samuel son of R. Isaac thereupon said: [This creates no difficulty; the case is one] where the owner of the ox slaughtered it before [the passing of the sentence].2 You might suggest in that case that payment should be made out of the flesh; we are therefore told that since the ox [as such] had been liable [to be stoned] to death, no payment could be made out of it even where it was slaughtered [before the passing of the sentence]. But if so, why [did not R. Akiba think of this reply to the objection he made] to R. Eliezer3 also, viz. that the owner of the ox slaughters it beforehand? - He could indeed have done this, but he thought that R. Eliezer3 also probably had another explanation better than this which he would tell him. But why did R. Eliezer [himself] not answer him that he referred to a case where the owner slaughtered the ox beforehand? - He could answer: It was only there where the ox aimed at killing a beast but [by accident] killed a man, in which case it is not liable [to be stoned] to death, and you might therefore have thought there was a liability [for kofer], that there was a need for Scripture to indicate that there is [in fact] no liability. But here where the ox had originally been liable [to be stoned] to death, no Scriptural indication should be needed [to exempt from liability] even where the ox has meanwhile been slaughtered.4 But should not the same argument be employed also regarding the exposition of R. Akiba?5 - R. Assi therefore said: The explanation of this matter was delivered to me from the mouth of a great man, to wit, R. Jose b. Hanina [who said]: You might be inclined to think that since R. Akiba said, 'Even in the case of Tam injuring Man the payment of the difference must be in full',6 the compensation for killing a slave should also be paid out of the best [of the general estate]. Divine Law therefore states, The owner of the ox shall be quit, [implying that this is not the case]. Said R. Zera to R. Assi: Did R. Akiba himself not qualify this liability? For it was taught:7 R. Akiba says, As it might be thought that this full payment8 has to be made out of the best [of the general estate], it is therefore further stated, According to this judgment shall it be done unto him,9 [to emphasize that] payment is to be made out of its body, but no payment is to be made out of any other source whatsoever? - Raba therefore [gave a different explanation] saying: The implication is still essential, for otherwise you might have thought that since10 I have to be more strict in the case of [killing] a slave than in the case of a freeman - for in the case of a freeman worth one sela' the payment11 will be one sela', and of one worth thirty the payment will be thirty, whereas in the case of a slave even where he was worth one sela' the payment will have to be thirty10 - there should be compensation for [the killing of] a slave12 even out of the best of the estate,13 the Divine Law therefore states, ' The owner of the ox should be quit' [implying that this is not the case]. It was taught in accordance with [the explanation given by] Raba: 'The owner of the ox should be quit' [implies], according to the statement of R. Akiba, quit from compensation for [the killing of] a slave. But is this not strictly logical?14 For since there is liability [to pay compensation] for [the killing of] a slave and there is liability [to pay compensation] for [the killing of] a freeman;11 just as where there is liability [to pay compensation] for [the killing of] a freeman a distinction has been made by you between Tam and Mu'ad,15 why then in the case where compensation has to be paid for [the killing of] a slave should you similarly not make a distinction between Tam and Mu'ad? This conclusion could moreover be arrived at by the a fortiori argument: If in the case of [killing] a freeman where the compensation11 is for the whole of his value a distinction has been made by you between Tam and Mu'ad,15 then in the case of [killing] a slave where the compensation amounts only to thirty [sela'] should it not stand to reason that a distinction must be made by us between Tam and Mu'ad? - Not so, because (on the other hand] I am16 more strict in the case of [killing] a slave than in that of [killing] a freeman. For in the case of a freeman, where he was worth one sela' the compensation will be one sela',17 [where he was worth] thirty the compensation will be thirty, whereas in the case of a slave even where he was worth one sela' the compensation has to be thirty.16 This might have inclined us to think that [even in the case of Tam] there should be liability. It was therefore [further stated], The owner of the ox shall be quit, implying quit from compensation for [the killing of] a slave.
Our Rabbis taught: [It is written,] But it hath killed a man or a woman.18 R. Akiba says: What does this clause come to teach us? If that there is liability for the goring to death of a woman as of a man, has it not already been stated, if an ox gore a man or a woman?19 It must therefore have intended to put the woman on the same footing as the man: just as in the case of a man the compensation17 will go to his heirs, so also in the case of a woman the compensation will go to her heirs.20 Did R. Akiba thereby mean [to put forward the view] that the husband was not entitled to inherit her? But has it not been taught: 'And he shall inherit her;21 this shows that the husband is entitled to inherit his wife. This is the view of R. Akiba'?22 - Resh Lakish therefore said: R. Akiba23 stated this24 only with reference to kofer which, since it has not to be paid save after [the] death [of the victim], is regarded as property in anticipation,25 and a husband is not entitled to inherit property in anticipation as he does property in actual possession.26 But why [should kofer not be paid except after death]?27 - Scripture says: But it hath killed a man or a woman; the ox shall be stoned, and its owner also shall be put to death. If there be laid on him a ransom.28 But did R. Akiba not hold that damages [for injury also are not inherited by the husband]? Has it not been taught:29 If one hurt a woman so that her embryo departed from her, compensation for Depreciation and for Pain should be given to the woman, compensation for the value of the embryo to the husband.30 If the husband is not [alive], his due should be given to his heirs, and if the woman is not [alive at the time of payment] her due should be given to her heirs. [Hence] if the woman was a slave that had been emancipated31
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(1) Exactly as he argued against R. Eliezer, supra p.236.
(2) In which case the flesh could legitimately be used as food; cf. infra p. 255.
(3) Supra p. 236.
(4) This was the reason why R. Eliezer answered as he did, and not as suggested here that the ox was slaughtered before the sentence had been passed on it.
(5) And if so, the original problem will recur: Why should R. Akiba not argue against himself as he did against R. Eliezer, supra p. 236.
(6) Supra p. 179.
(7) Cf. supra p. 180.
(8) In the case of Tam injuring a human being.
(9) Ex. XXI, 31.
(10) In the case of Mu'ad.
(11) I.e. kofer.
(12) In the case of Tam.
(13) There can thus no more arise the question, 'Since any actual liability in the case of the ox itself (being Tam) is not paid except out of its body, (why should not the owner say to the plaintiff) "Bring it to the Court and be reimbursed out of it"?' Cf. supra p. 236.
(14) Wherefore then the special inference from the verse?
(15) That in the case of Mu'ad, kofer is paid, but not in the case of Tam.
(16) In the case of Mu'ad.
(17) V. p. 241, n. 3.
(18) Ex. XXI, 29.
(19) Ibid. 28.
(20) Not to her husband.
(21) Num. XXVII, 11.
(22) B.B. 111b.
(23) [So MS. M., v. Rashi.]
(24) That the husband does not inherit the compensation due to the woman.
(25) As at the last moment of her life the liability for kofer was neither a chose in possession nor even a chose in action
(26) Cf. B. B. 113a and 125b.
(27) Why not say that as soon as the blow was ascertained to have been fatal the payment of kofer should be enforced?
(28) Implying that the payment of money as kofer is, like the killing of the ox, not enforced before the victim has actually died.
(29) Infra p. 280.
(30) V. Ex. XXI, 22.
(31) And the husband was of the same category.
Talmud - Mas. Baba Kama 43a
or a proselytess the defendant would be the first to acquire title [to all the claims and thus be released from any liability]? - Rabbah thereupon said: We deal [in this latter case] with a divorced woman.1 So also said R. Nahman [that we deal here] with a divorced woman. [But] I might [here] object: If she was divorced, why should she not also share in the compensation for the value of the embryo?2 - R. Papa thereupon said: The Torah awarded the value of embryos to the husband even where the cohabitation had taken place not in a married state, the reason being that Scripture says: According as the cohabitator3 of the woman will lay upon him.4
But why should not Rabbah refer the ruling5 to the case where the payment of the compensation had been collected in money, and R. Nahman to the case where it had been collected out of land? For did Rabbah not say6 that where an outstanding debt had been collected7 out of land, the first-born son would take in it [a double portion],8 but where it had been collected in money the first-born son would not [take in it a double portion]?9 Or again did R. Nahman not say10 that [on the contrary] where the debt had been collected in money the first-born would take [in it a double portion],11 but where it has been collected out of land, the first-born son would not [take in it a double portion]?12 - It could, however, be answered that these statements were made on the basis of the despatch of the Western Sages according to the view of the Rabbis,13 whereas in the case here [where Rabbah and R. Nahman interpreted it to have referred to a divorced woman] they were stating the law as maintained by Rabbi.14
R. Simeon b. Lakish said: Where an ox killed a slave without purposing to do so, there would be exemption from the payment of thirty shekels, since it is written, He shall give unto their master thirty shekels of silver, and the ox shall be stoned,15 [implying that] where the ox would be liable to be stoned the owner is to pay thirty shekels, but where the ox would not be liable to be stoned16 the owner need not pay thirty shekels. Rabbah [similarly] said: Where an ox killed a freeman without purposing to do so there would be exemption from kofer, for it is written17 The ox should be stoned and its owner also shall be put to death. If there be laid on him a ransom, [implying that] where the ox has to be stoned16 the owner has not to pay kofer. Abaye raised an objection to this [from the following Mishnah]:18 If a man says: 'My ox has killed so-and-so' or 'has killed so-and-so's' ox, [in either case] the defendant has to pay in virtue of his own admission. Now, does the payment [in the former case]19 not mean kofer [though the ox would not become liable to be stoned through the owner's admission]?20 - No; [it means for] the actual value.21 If [it means payment for] the pecuniary loss, read the concluding clause: [If he says], 'My ox has killed so-and-so's slave,' the defendant is not liable to pay in virtue of his own admission.22 Now, if [the payment referred to in the first clause was meant for] the pecuniary loss, why is there no liability [to pay for the pecuniary loss in the case of a slave]?23 - He, however, said to him: I could have answered you that the opening clause refers to the actual value24 [of the killed person],25 whereas the concluding clause refers to the fixed fine [of thirty shekels]. As, however, I have no intention to answer you by means of forced interpretations, [I will say that] both clauses do in fact refer to the actual value [of the killed person].
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(1) For otherwise the husband would inherit her claim for damages.
(2) Since she was his wife no more.
(3) The Hebrew term בעל ('husband' E.V.) is thus understood.
(4) Ex. XXI, 22.
(5) That the damages will be paid to her heirs and not to the husband.
(6) B.B. l24b.
(7) After the death of a creditor.
(8) In accordance with Deut. XXI. 17.
(9) Because the debt collected after the death of the father was not a chose in possession in the lifetime of the creditor, and the first-born takes a double portion only 'of all that' his father 'hath' at the time of death. A husband is in a similar position, as he too has the right to inherit only chooses in possession at the lifetime of his wife.
(10) V. p. 243, n. 10.
(11) For the money collected is considered in the eye of the law as the money which was lent to the father of the debtor.
(12) V. p. 243, n. 13.
(13) V. p. 243, n. 10.
(14) That debts collected after the death of a creditor whether in species or out of land will be subject to the law of double portion in the case of a first-born and similarly to the law of a husband inheriting his wife. v. B.B. (Sonc. ed.) p. 518.
(15) V. Ex. XXI, 32.
(16) As e.g., where it killed a human being by accident.
(17) Ex. XXI, 29.
(18) Keth. III, 9.
(19) Where the defendant admitted that his ox killed a man.
(20) Without the corroboration of witnesses; v. supra p. 236, n. 8.
(21) I.e., the pecuniary loss sustained through the man's death. [It is distinguished from kofer in that the payment of the latter is an act of atonement to be compounded in no circumstance; v. Tosaf. s. v. מאי.]
(22) As the payment of thirty shekels in the case of a slave is of the nature of a penalty which could not be inflicted on the strength of the word of mouth of the defendant.
(23) Does this not prove that in the case of manslaughter committed by cattle no payment for the pecuniary loss would have to be made if you except kofer in the case of a freeman, and the thirty shekels in the case of a slave?
(24) I.e. the pecuniary loss sustained through his death.
(25) Which has to be paid even where kofer could for some reason or other not be imposed upon the defendant.
Talmud - Mas. Baba Kama 43b
But [it is only in the case of] a freeman where kofer may sometimes be paid on the strength of the defendant's own admission - as where witnesses appeared and testified to the ox having killed [a freeman] without, however, knowing whether it was still Tam or already Mu'ad and the owner admits it to have been Mu'ad, in which case kofer would be paid on the strength of his own admission1 - that [we say] where witnesses are not at all available payment will be made for the actual value [of the loss]. [Whereas] in the case of a slave where the fixed fine could never be paid through the defendant's own admission - since even where witnesses appear and testify to the ox having killed [a slave], without knowing whether it had still been Tam or already Mu'ad, and the owner admits that it had already been Mu'ad, no fine would be paid - [we say] where no witnesses at all are available there will be no payment even for the amount of the value [of the loss].
R. Samuel son of R. Isaac raised an objection [from the following teaching]: Wherever there is liability in the case of a freeman,2 there is liability in the case of a slave both for kofer and for stoning. Now, how could kofer ever be [paid] in the case of a slave?3 Does it therefore not surely mean the payment for the amount of the value [of the loss]?4 - Some say that he raised the objection and he himself answered it, others say that Rabbah said to him: What is meant is as follows: Wherever there is liability for kofer [i.e.] in the case of a freeman killed intentionally [by the ox] as testified by witnesses, there is [a similar] liability for the fine in the case of a slave, and wherever there is liability for the amount of the value [of the loss, i.e.,] in the case of a freeman killed unintentionally, as testified by witnesses, there is also liability for the amount of the value [of the loss] in the case of a slave killed unintentionally, as testified by witnesses.5 Raba, however, said to him: If so,6 why in the case of Fire unintentionally7 burning a human being [to death], as testified by witnesses, should there also not be liability to pay the amount of the value [of the loss]? And how did Raba know that no payment would be made [in this case]? Shall we say from the following Mishnah: '[Where fire was set to a barn and] a goat had been bound to it and a slave was loose near by it and all were burnt [with the barn] there would be liability.8 But where the slave had been chained to it, and the goat loose near by it and all were burnt with it there would be no liability.'9 [But how could Raba prove his point from this case here?]10 Did Resh Lakish not state that this case here should be explained as one where e.g., the defendant put the actual fire upon the body of the slave so that [no other11 but] the major punishment had to be inflicted? But [it may perhaps be suggested that Raba derived his point] from the following [Baraitha]: For it has been taught: 'The excess in [the liability] for Fire over [that for] Pit is that Fire is apt to consume both things fit for it and things unfit for it, whereas this is not so in the case of Pit.'12 It is not, however, said that 'in the case of Fire [where a human being has been burnt to death] unintentionally there is liability to pay for the pecuniary loss, whereas it is not so in Pit'.13 But might [the Baraitha] not perhaps have stated [some points] and omitted [others]? - It must therefore have been that Raba himself was questioning whether in the case of Fire [burning a human being] unintentionally there would be payment for the amount of the value [of the loss] or whether there would be none. Should we say that it was only in the case of cattle - where if the manslaughter was unintentional kofer would be paid - that for unintentional manslaughter the amount of the value [of the loss] is to he paid - whereas in the case of Fire - where for intentional manslaughter no kofer would be paid14 - there should be no payment of the amount of the value [of the loss] for unintentional manslaughter? Or [shall we] perhaps [rather say that] since in the case of Cattle [killing a person] unintentionally where no kofer is paid, the value [of the loss] is nevertheless paid, so should it also be with Fire where no kofer would be paid for intentional manslaughter, that nevertheless the value [of the loss] caused by unintentional manslaughter should be paid? But as no information was available to us [on this matter], it remained undecided.
When R. Dimi arrived [from Palestine] he said on behalf of R. Johanan: [The word] kofer [I understand]. What is taught by [the expression] If kofer?15 It implies the inclusion of [the payment of] kofer in cases where there was no intention16 [to kill] just as kofer [is paid] where there was intention. Abaye however said to him: If so , the same could now surely also be argued in the case of a slave: viz.: What is taught by [the expression] If a slave?15 [It implies] that a slave killed unintentionally is subject to the same law as a slave, killed intentionally? If that is so, why did Resh Lakish say that where an ox killed a slave unintentionally there would be exemption from the thirty shekels? He replied: Would you confute one person's view by citing another?17
When Rabin arrived [from Palestine] he said on behalf of R. Johanan: [The word] a slaves [I understand], What is taught by [the expression] If a slave? [It implied] that a slave [killed] unintentionally is subject to the same law as a slave [killed] intentionally. Now as regards Resh Lakish [who was of a different view in this respect] shall we also assume that just as he drew no lesson from the distinction between 'a slave' and 'if a slave', so he drew no lesson from the distinction between 'kofer' and 'if kofer'? - I may say that this was not so. From the distinction between 'a slave' and 'if a slave'18 he did not draw a lesson, whereas from the distinction between 'kofer' and 'if kofer' he did draw a lesson. Why this difference? The expressions 'a slave' and 'if a slave' do not occur in the context dealing with payment,19 whereas the expressions 'kofer' and 'if kofer' do occur in a context dealing with payment.
THE SAME JUDGMENT APPLIES IN THE CASE OF A SON OR IN THAT OF A DAUGHTER. Our Rabbis taught: [The text] Whether it have gored a son or have gored a daughter20 [implies] that there is liability in the case of little ones just as in that of grown-ups. But surely this is only logical! For since there is a liability in the case of Man killing man there is similarly a liability in the case of Cattle killing man, just as where Man has killed man no distinction is made between [the victims being] little ones or grown-ups,21 so also where Cattle killed man no distinction should be made between [the victims being] little ones or grown-ups? Moreover there is an a fortiori argument [to the same effect]; for if in the case of Man killing man where the law did no make [murderers who are] minors liable as [it did make] grown-ups,22 it nevertheless imposed there liability for little ones as for grown-ups,
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(1) As the ox in this case would be subject to be stoned, [and where the ox is stoned, the owner pays kofer].
(2) I.e. kofer.
(3) V. p. 244, n. 6.
(4) [This shows that pecuniary loss is paid in the case of a slave on his own admission even as in the case of a freeman.]
(5) [Though in the case of self-admission there will still be a distinction between the death of a freeman and that of a slave (by an ox) in regard to the payment of pecuniary loss.]
(6) [That there is payment of pecuniary loss, even where kofer is not payable.]
(7) [If intentionally, the civil liability would merge with the graver capital charge.]
(8) For the barn and the goat but not for the slave, as he should have run away.
(9) Infra 61b.
(10) By not extending the ruling in the second clause to refer also to the barn but confining it to the goat which should have run away, and to the slave, on the alleged ground that no compensation should be paid for the value of the loss occasioned by fire burning a human being to death.
(11) The ruling of exemption in the second clause is thus extended even to the barn.
(12) Supra p. 38.
(13) For which see supra p. 18 and infra 50b.
(14) For it merges with the graver capital charge.
(15) Ex. XXI, 30; for it is surely neither an optional nor a conditional liability.
(16) ['If' אם implying a case where kofer is imposed, though the ox is not stoned, i.e. where there was no intention (contrary to the view of Rabbah, supra); v. Malbim on Ex. XXI, 30.]
(17) As R. Johanan and Resh Lakish might perhaps have differed on this point.
(18) In Ex. XXI, 32.
(19) It could thus hardly have any bearing on the law of payment.
(20) Ibid. 31.
(21) Cf. Nid. 44a.
(22) See Lev. XXIV, 17 and Mek. on Ex. XXI, 12.
Talmud - Mas. Baba Kama 44a
now in the case of Cattle killing man where the law made small cattle [liable] as [it did make] big cattle,1 should it not stand to reason that there is liability for little ones as there is for grown-ups?2 - No, [for it could have been argued that] if you stated this ruling in the case of Man killing man it was [perhaps] because [where Man injured man] there was liability for the four [additional] items,3 but how would you be able to prove the same ruling in the case of Cattle where there could be no liability for the four [additional] items? Hence it is further laid down: Whether it have gored a son or have gored a daughter to impose liability for little ones as for grown-ups. So far I know this only in the case of Mu'ad.4 Whence do I know it in the case of Tam? - We infer it by analogy: Since there is liability for killing Man or Woman and there is similarly liability for killing Son or Daughter, just as regarding the liability for Man or Woman you made no discrimination between Tam and Mu'ad,5 so also regarding the liability for Son or Daughter you should make no discrimination between Tam and Mu'ad. Moreover there is an a fortiori argument [to the same effect]; for if in the case of Man and Woman who are in a disadvantageous position when damages had been done by them,6 you have nevertheless made there no discrimination between Tam and Mu'ad, in the case of Son and Daughter who are in an advantageous position when damage has Been done by them,7 should it not stand to reason that you should make no discrimination between Tam and Mu'ad? - [No,] you cannot argue thus. Can we draw an analogy from a more serious to a lighter case so as to be more severe [with regard to the latter]? If8 the law is strict with Mu'ad which is a more serious case, how can you argue that it ought to be [equally] strict with Tam which is a lighter case? Moreover, [you could also argue that] the case of Man and Woman [is graver] since they are under obligation to observe the commandments [of the Law],9 but how draw therefrom an analogy to the case of Son and Daughter seeing that they are exempt from the commandments?10 It was therefore necessary to state [further]: Whether it have gored a son, or have gored a daughter; [the repetition of the word 'gored' indicating that no discrimination should be made between] goring in the case of Tam and goring in the case of Mu'ad, between goring in the case of killing and goring in the case of mere injury.
MISHNAH. IF AN OX BY RUBBING ITSELF AGAINST A WALL CAUSED IT TO FALL UPON A PERSON [AND KILL HIM], OR IF AN OX WHILE TRYING TO KILL A BEAST [BY ACCIDENT] KILLED A HUMAN BEING, OR WHILE AIMING AT A HEATHEN11 KILLED AN ISRAELITE, OR WHILE AIMING AT NON-VIABLE INFANTS KILLED A VIABLE CHILD, THERE IS NO LIABILITY.
GEMARA. Samuel said: There is exemption [for the ox in these cases] only from [the penalty of being stoned to] death, but there is lability [for the owner] to pay kofer.12 Rab, however, said: There is exemption here from both liabilities.13 But why [kofer]?14 Was not the ox Tam?15 - Just as [in an analogous case] Rab said that the ox was Mu'ad to fall upon human beings in pits,16 so also [in this case we say that] the ox was Mu'ad to rub itself against walls [which thus fell] upon human beings. But if so, why should the ox not be liable to [be stoned to] death? It is correct in this other case where we can explain that the ox was looking at some vegetables and so came to fall [into a pit],17 but here what ground could we give [for assuming otherwise than an intention to kill on the part of the ox]? - Here also [we may suppose that] the ox had been rubbing itself against the wall for its own gratification.17 But how can we know this?18 - [By noticing that] even after the wall had fallen the ox was still rubbing itself against it.
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(1) Cf. infra p. 380, and 'Ed. VI, 1.
(2) Why then was it necessary for Scripture to make this explicit in Ex. XXI, 31?
(3) For which cf. supra p. 12.
(4) As verse 31 follows 29 and 30 which deal with Mu'ad.
(5) As clearly seen in verses 29 and 30.
(6) I.e. they are liable to pay for it. Cf. supra p. 63 but also infra p. 502.
(7) For which they are not liable to pay; see infra p. 502.
(8) [Some texts omit, 'If . . . . Moreover,' v. D.S. a.l.]
(9) Cf. however, supra p. 64, but also Kid. I, 7.
(10) So long as they are minors and have not reached puberty for which cf. Nid. 52a.
(11) Cf. supra p. 211, n. 6.
(12) As also maintained by R. Johanan, supra p. 248, and still earlier by R. Eliezer, supra p. 237.
(13) For the reason v. supra 244
(14) In the case dealt with first in the Mishnah.
(15) In killing a human being by rubbing itself against a wall and thus causing it to fall. In the case of Tam no kofer is paid; see Ex. XXI, 28.
(16) Infra p. 274.
(17) And as intention to kill was lacking, no death penalty could be attached.
(18) Seeing that the ox was Mu'ad to rub itself against walls.
Talmud - Mas. Baba Kama 44b
But granted all this, is this manner of damage1 not on a par with that done by Pebbles2 [where there would be no liability for kofer]?3 - R. Mari the son of R. Kahana thereupon said: [We speak of] a wall gradually brought down by the constant pushing of the ox.4
It has been taught in accordance with Samuel and in refutation of Rab: There are cases where the liability is both for [stoning to] death and kofer: there are other cases, where there is liability for kofer but exemption from [stoning to] death; there are again [other] cases where there is liability [for stoning to] death but exemption from kofer; and there are still other cases where there is exemption both from [stoning to] death and from kofer. How so? In the case of Mu'ad [killing a person] intentionally, there is liability both for [stoning to] death and for kofer.5 In the case of Mu'ad [killing a person] unintentionally there is liability for kofer but exemption from [stoning to] death. In the case of Tam [killing a person] intentionally there is liability [for stoning to] death but exemption from kofer. In the case of Tam [killing a person] unintentionally, there is exemption from both penalties. Whereas in case of injury [caused by the ox] unintentionally, R. Judah says there is liability to pay [damages], but R. Simeon says there is no liability to pay.6 What is the reason of R. Judah? - He derives [the law of damages from] that of kofer: just as for kofer there is liability even where there was no intention [to kill], so also for damages for injuries there is liability even where there was no intention [to injure]. R. Simeon, on the other hand, derived [the law of damages] from that of the killing of the ox: just as the stoning of the ox is not required where there was no intention [to kill], so also damages are not required where there was no intention [to injure]. But why should R. Judah also not derive [the ruling in this case] from [the law applying to the] killing [of the ox]? It is proper to derive [a ruling regarding] payment from [another ruling regarding] payment, but it is not proper to derive [a ruling regarding] payment from [a ruling regarding] killing. Why then should R. Simeon also not derive [the ruling in this case] from [the law applying to] kofer? - It is proper to derive a liability regarding the ox7 from another liability that similarly concerns the ox,8 thus excluding kofer which is a liability that concerns only the owner.9
OR IF THE OX WHILE TRYING TO KILL A BEAST [BY ACCIDENT] KILLED A HUMAN BEING . . . THERE IS NO LIABILITY. Where, however, the ox had aimed at killing one human being and [by accident] killed another human being, there would be liability. [This implication of] the Mishnah is not in accordance with R. Simeon. For it has been taught: R. Simeon says: Even where [the ox] aimed at killing one person and [by accident] killed another person there would be no liability. What was the reason of R. Simeon? - Scripture states: The ox shall be stoned and its owner also shall be put to death,10 [implying that only] in those cases in which the owner would be subject to be put to death [were he to have committed murder], the ox also would be subject to be put to death. Just as therefore in the case of the owner the liability arises only where he was aiming at the particular person [who was actually killed], so also in the case of the ox the liability will arise only where it was aiming at the particular person [who was actually killed]. But whence do we know that this is so even in the case of the owner himself?11 - Scripture States: And lie in wait for him and rise up against him12 [which indicates that he is not liable] unless he bad been aiming at the particular person [whom he killed]. What then do the Rabbis13 make of [the words,] 'And lie in wait'? - It was said at the School of R. Jannai: They except [on the strength of them a manslaughter committed by] a stone being thrown into a crowd.14 How is this to be understood? If you say that there were [in the crowd] nine heathens and one Israelite, why not except the case on the ground that the majority [in the crowd] were persons who were heathens?15 And even where they were half and half, does not an accused in a criminal charge have the benefit of the doubt? - The case is one where there were nine Israelites and one heathen. For though in this case the majority [in the crowd] consisted of Israelites, still since there was among them one heathen he was an essential part [of the group], and essential part16 is reckoned as equivalent to half, and where there is a doubt in a criminal charge the accused has the benefit.
MISHNAH. WHERE AN OX OF A WOMAN, OR AN OX OF [MINOR] ORPHANS, OR AN OX OF A GUARDIAN, OR AN OX OF THE WILDERNESS, OR AN OX OF THE SANCTUARY, OR AN OX OF A PROSELYTE WHO DIED WITHOUT [LEGAL] HEIRS,17 [HAS KILLED A PERSON], IT IS LIABLE TO [BE STONED TO] DEATH. R. JUDAH SAYS: IN THE CASE OF AN OX OF THE WILDERNESS, AN OX OF THE SANCTUARY AND AN OX OF A PROSELYTE WHO DIED [WITHOUT HEIRS] THERE WOULD BE EXEMPTION FROM [STONING TO] DEATH SINCE THESE HAVE NO [PRIVATE] OWNERS.
GEMARA. Our Rabbis taught: [The word] ox occurs seven times [in the section dealing with Cattle killing man]18 to include the ox of a woman, the ox of [minor] orphans, the ox of a guardian, the ox of the wilderness, the ox of the Sanctuary and the ox of a proselyte who died without [legal] heirs. R. Judah, however, says: An ox of the wilderness, an ox of the Sanctuary and an ox of a proselyte who died without heirs are exempt from [stoning to] death since these have no [private] owners.
R. Huna said: The exemption laid down By R. Judah extends even to the case where the ox gored and was only subsequently consecrated to the Temple, or where the ox gored and was only subsequently abandoned. Whence do we know this? - From the fact that R. Judah specified both an ox of the wilderness and an ox of a proselyte who died without heirs. Now what actually is 'an ox of a proselyte who died'? Surely since he left no heirs the ox remained ownerless, and this [category] would include equally an ox of the wilderness and an ox of the proselyte who died without heirs? We must suppose then that what he intended to tell us [in mentioning both] was that even where the ox gored but was subsequently consecrated, or where the ox gored but was subsequently abandoned, [the exemption would still apply] and this may be taken as proved. It has also been taught to the same effect:19 R. Judah went even further, saying: Even if after having gored, the ox was consecrated or after having gored it became ownerless, there is exemption, as it has been said, And it hath been testified to his owner and he hath not kept him in, but that he hath killed a man or a woman, the ox shall be stoned.20 This applies only when no change of status has taken place between the manslaughter and the appearance before the Court.21 Does not the final verdict also need to comply with this same condition? Does not the same text, The ox shall be stoned,22 [apply also to] the final verdict? - Read therefore: That is so only when no change in status has taken place between the manslaughter, the appearance before the Court, and the final verdict.
MISHNAH. IF WHILE AN OX [SENTENCED TO DEATH] IS BEING TAKEN OUT TO BE STONED ITS OWNER DECLARES IT SACRED, IT DOES NOT BECOME SACRED;23 IF HE SLAUGHTERS IT, ITS FLESH IS FORBIDDEN [FOR ANY USE].23 IF, HOWEVER. BEFORE THE SENTENCE HAS BEEN PRONOUNCED THE OWNER CONSECRATES IT, IT IS CONSECRATED, AND IF HE SLAUGHTERS IT, ITS FLESH IS PERMITTED [FOR FOOD].
IF THE OWNER HANDS OVER HIS CATTLE TO AN UNPAID BAILEE OR TO A BORROWER, TO A PAID BAILEE OR TO A HIRER, THEY ENTER INTO ALL LIABILITIES IN LIEU OF THE OWNER: IN THE CASE OF MU'AD THE PAYMENT WOULD HAVE TO BE IN FULL, WHEREAS IN THE CASE OF TAM HALF DAMAGES WOULD BE PAID.
GEMARA. Our Rabbis taught: If an ox has killed [a person], and before its judgment is pronounced its owner sells it,
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(1) Being done not by the body of the ox but by something set in motion by it.
(2) Dealt with supra p. 79.
(3) [Kofer is imposed only where death was caused by the body of the ox even as is the case with 'goring'.]
(4) And was thus the whole time as it were a part of the body of the ox.
(5) Ex. XXI, 29-30.
(6) Cf. Tosef. B.K. IV.
(7) I.e. a liability to make good the damage done by the ox.
(8) Such as the death of the ox for the manslaughter it committed.
(9) As kofer is the ransom of his life.
(10) Ex. XXI, 29.
(11) Committing murder.
(12) Deut. XIX, II.
(13) Who differ from R. Simeon on this point. v. Sanh. 79a.
(14) And a person was killed.
(15) For in matters of judgment the principle of 'majority' is as a rule the deciding factor. [That does not mean to imply that the killing of a heathen was no murder. The Mekilta in Ex. XXI, 12 states explicitly that the crime is equally condemnable irrespective of the religion and nationality of the victim. But what it does mean is that the Biblical legislation in regard to crime did not apply to heathens. As foreigners they fully enjoyed their own autonomous right of self-help, i.e., blood feuds or ransom, prohibited by the Law to the Jews, and accordingly were not governed by the provisions made in the Bible relating to murder, v. Guttmann, loc. cit. p. 16 ff and supra p. 211, n. 6.]
(16) Lit., 'fixed'. For a full discussion of this passage, v. Sanh. (Sonc. ed.) p. 531 and notes a.l.
(17) The ox thus becoming ownerless.
(18) Ex. XXI, 28-32.
(19) Supra p. 55.
(20) Ex. XXI, 29.
(21) Supra p. 56.
(22) Ex. XXI, 29.
(23) Cf. supra p. 234.
Talmud - Mas. Baba Kama 45a
the sale holds good; if he declares it sacred, it is sacred; if it is slaughtered, its flesh is permitted [for food]; if a bailee returns it to the house of its owner, it is an effective restoration. But if after its sentence had already been pronounced the owner sold it, the sale would not be valid; if he consecrates it, it is not consecrated; if it is slaughtered its flesh is forbidden [for any use]; if a bailee returns it to the house of its owner, it is not an effective restoration. R. Jacob, however, says: Even if after the sentence had already been pronounced the bailee returned it to its owner, it would be an effective restoration. Shall we say that the point at issue1 is that in the view of the Rabbis it is of no avail to plead2 regarding things which became forbidden for any use, 'Here is your property before you',3 whereas in the view of R. Jacob it can be pleaded even regarding things forbidden for any use, 'Here is your property before you'? - Rabba said: Both parties in fact agree that even regarding things forbidden for any use, the plea, 'Here is your property before you' can be advanced, for if it is as you said,4 why did they not differ in the case of leaven5 on Passover?6 But the point at issue here [in the case before us] must therefore be whether [or not] sentence may be pronounced over an ox in its absence. The Rabbis maintain that no sentence can be pronounced over an ox in its absence, and the owner may accordingly plead against the bailee: 'If you would have returned it to me [before the passing of the sentence], I would have caused it to escape to the pastures, whereas you have allowed my ox to fall into the hands of those7 against whom I am unable to bring any action'. R. Jacob, however, maintains that the sentence can be pronounced over the ox even in its absence, and the bailee may accordingly retort to the owner: 'In any case the sentence would have been passed on the ox.' What is the reason of the Rabbis? - [Scripture says]: The ox shall be stoned and its owner also shall be put to death8 [implying that] the conditions under which the owner would be subject to be put to death [were he to have committed murder], are also the conditions under which the ox would be subject to be put to death; just as in the case of the owner [committing murder, the sentence could be passed only] in his presence,9 so also [the sentence] in the case of an ox [could be passed only] in its presence. But R. Jacob [argues]: That applies well enough to the case of the owner [committing murder], as he is able to submit pleas, but is the ox also able to submit pleas?10
WHERE AN OWNER HAS HANDED OVER HIS CATTLE TO AN UNPAID BAILEE OR TO A BORROWER etc. Our Rabbis taught: The following four [categories of persons] enter into all liabilities in lieu of the owner, viz., Unpaid Bailee and Borrower, Paid Bailee and Hirer. [If cattle so transferred] kill [a person] if they are Tam, they would be stoned to death, but there would be exemption from kofer,11 whereas in the case of Mu'ad, they would be stoned and the bailees in charge would be liable to pay kofer. In all cases, however, the value of the ox would have to be reimbursed to the owner by all of the bailees with the exception of the Unpaid Bailee. I would here ask with what circumstances are we dealing? If where the ox [was well] guarded, why should all of them12 not be exempt [from having to reimburse the owner]? If on the other hand it was not guarded well, why should even the Unpaid Bailee not be liable?13 - It might be said that we are dealing here with a case where inferior precautions14 were taken to control the ox but not really adequate precautions.15 In the case of an Unpaid Bailee his obligation to control was thereby fulfilled, whereas the others did thereby not yet fulfil their obligation to control. Still I would ask, whose view is here followed? If that of R. Meir
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(1) I.e. between R. Jacob and the Rabbis.
(2) Against a depositor or against a person who was robbed of an article, before it became prohibited for any use.
(3) The reason is that, by becoming forbidden for any use, the things, though not undergoing any change in their external size and appearance, do not remain (in the eyes of the law) the same things as were previously deposited with the bailee or misappropriated by the robber, their status then having been different.
(4) That R. Jacob and the Rabbis differ on this point.
(5) Stolen before the eve of Passover.
(6) I.e. whether the leaven might be returned by the robber after the approach of Passover when it became forbidden for any use; cf. infra pp. 561, 572.
(7) I.e. the Court of Law.
(8) Ex. XXI, 29.
(9) For which cf. Num. XXXV, 12.
(10) That its presence should be required.
(11) Ex. XXI, 28.
(12) With the exception, however, of the borrower who is liable even for accidents.
(13) For he also is liable for carelessness.
(14) Such as e.g. a door which would withstand only an ordinary wind. V. infra 55b
(15) So as to withstand a wind of even unusual force.
Talmud - Mas. Baba Kama 45b
who maintained1 that Hirer is subject to the same law as Unpaid Bailee, why is it not taught above 'with the exception of Unpaid Bailee and Hirer'? If [on the other hand the view followed] was that of R. Judah who maintained1 that Hirer should be subject to the same law as Paid Bailee, why was it not taught 'with the exception of Unpaid Bailee, whereas in the case of Mu'ad they all would be exempt from kofer'?2 - R. Huna b. Hinena thereupon said: This teaching is in accordance with R. Eliezer, who said,3 that the only precaution for it [Mu'ad] is the slaughter knife, and who regarding Hirer might agree with the view of R. Judah that Hirer should be subject to the same law as Paid Bailee. Abaye, however, said: It could still follow the view of R. Meir, but as transposed by Rabbah b. Abbahu who learnt thus: How is the payment [for the loss of the article] regulated in the case of Hirer? R. Meir says: As in the case of Paid Bailee. R. Judah, however, says: As in the case of Unpaid Bailee.4
R. Eleazar said: Where an ox had been handed over to an Unpaid Bailee and damage was done by it, the bailee would be liable, but where damage was done to it, the bailee would be exempt. I would here ask what were the circumstances? If where the bailee had undertaken to guard the ox against damage, why even in the case where it was injured should there be no liability? If, on the other hand, where the bailee had not undertaken to guard against damage why even in the case where damage was done by the ox should there not be exemption? - Raba thereupon said: We suppose in fact that the bailee had undertaken to guard the ox against damage, but the case here is one where he had known the ox to be a gorer, and it is natural that what he did undertake was to prevent the ox from going and doing damage to others, but he did not think of the possibility of others coming and injuring it.
MISHNAH. IF THE OWNER FASTENED HIS OX [TO THE WALL INSIDE THE STABLE] WITH A CORD, OR SHUT THE DOOR IN FRONT OF IT IN THE ORDINARY WAY5 BUT THE OX GOT OUT AND DID DAMAGE, WHETHER IT HAD BEEN TAM OR ALREADY MU'AD, HE WOULD BE LIABLE; THIS IS THE RULING OF R. MEIR. R. JUDAH, HOWEVER, SAYS: IN THE CASE OF TAM HE WOULD BE LIABLE, BUT IN THE CASE OF MU'AD HE WOULD BE EXEMPT, SINCE IT IS WRITTEN, AND HIS OWNER HATH NOT KEPT HIM IN,6 [THUS EXCLUDING THIS CASE WHERE] IT WAS KEPT IN. R. ELIEZER SAYS: NO PRECAUTION IS SUFFICIENT [FOR MU'AD] SAVE THE [SLAUGHTER] KNIFE.
GEMARA. What was the reason of R. Meir? - He Maintained that normally oxen are not kept under control,7 and the Divine Law enacted that Tam should involve liability to show that at least moderate precautions were required. Then the Divine Law stated further in the case of Mu'ad, And his owner hath not kept him in,6 to show that [for this] really adequate precautions are required;8 and the goring mentioned in the case of Tam is now placed on a par with the goring mentioned in the case of Mu'ad.9 R. Judah, however, maintained that oxen normally are kept under control, and the Divine Law stated that in the case of Tam there should be payment to show that really adequate precaution is required. The Divine Law, however, goes on to say, And his owner hath not kept him in,6 in the case of Mu'ad. [This would imply] that there should be there precaution of a superior degree. [These words, however, constitute] an amplification following an amplification, and as the rule is that an amplification following an amplification intimates nothing but a limitation,10 Scripture has thus reduced the superior degree of the required precaution. And should you object to this that goring is mentioned in the case of Tam and goring is mentioned in the case of Mu'ad9 [for mutual inference,11 the answer is that in this case] the Divine Law has explicitly restricted [this ruling by stating] And his owner hath not kept him in,6 [the word 'him' confining the application] to this one12 but not to another.13 But surely these words are needed for the stated purpose?14 - [If that were so, the Divine Law should write surely, 'Hath not kept in'. Why does it say, hath not kept him in? To show that the rule applies to this one15 but not to another.16
It has been taught: R. Eliezer b. Jacob says: Whether in the case of Tam or in that of Mu'ad, as soon as even inferior precautions have been taken [to control the ox], there is exemption. What is his reason? - He concurs with R. Judah, in holding that in the case of Mu'ad precaution even of an inferior degree is sufficient, and he [extended this ruling to Tam as he] on the strength of [the mutual inference17 conveyed by] the mention of goring in the case both of Tam and of Mu'ad.17
R. Adda b. Ahabah said: The exemption laid down by R. Judah applies only to the part of the payment due on account of the ox having been declared Mu'ad,18 but the portion due on account of Tam remains unaffected.19 Rab said: Where the ox was declared Mu'ad to gore with the right horn, it would thereby not become Mu'ad for goring with the left horn.20 I would here ask: In accordance with whose view [was this statement made]? If in accordance with R. Meir, did he not say that whether in the case of Tam or in that of Mu'ad, precaution of a superior degree was needed?21 If [on the other hand] in accordance with R. Judah,22 why specify only the left horn? Even in the case of the right horn itself, does not one part of the payment come under the rule of Tam23 and another under that of Mu'ad? I may say that in fact it is in accordance with R. Judah , and that Rab does not concur in the view. expressed by R. Addah b. Ahabah, and what Rab thus intended to say was that it was only in such an instance24 that there would be in one ox part Tam and part Mu'ad
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(1) Cf. infra 57b.
(2) For R. Judah maintains that even an inferior precaution in the case of Mu'ad suffices to confer exemption for any damage that has nevertheless resulted.
(3) Infra p. 259.
(4) V. p. 257, n. 7. [And since R. Meir also holds that Mu'ad requires adequate precaution, he rightly makes the Hirer liable to pay kofer as well as reimburse the owner.]
(5) So that it would be perfectly safe in the case of an ordinary wind; cf. infra 55b.
(6) Ex. XXI,36.
(7) Cf. supra p. 64.
(8) So that it would be safe even in the case of a wind of unusual force.
(9) To show that both require really adequate precaution.
(10) V. Shebu. (Sonc. ed.) p. 12, n. 3.
(11) Cf. supra p. 250. [So that for Tam too an inferior precaution should suffice.]
(12) To Mua'd.
(13) To Tam.
(14) Lit., 'for the negative', that is, that he is liable because be failed to take the necessary precautions.]
(15) V. p. 259, n.7.
(16) Ibid. n. 8.
(17) Ibid. n. 6.
(18) I.e. the half added on account of the ox having been declared Mu'ad.
(19) And thus constantly subject to the law of Tam.
(20) Damage done by the right horn would thus be subject to the degree of precaution required in the case of Mu'ad while damage done by the left horn would still remain subject to the degree of precaution needed in Tam.
(21) Thus so far as precaution is concerned there would in this case be no difference between the right horn and the left horn.
(22) Who demands a greater degree of precaution in case of a Tam than in that of a Mu'ad, and accordingly there would be no liability if the ox gored with the right horn after inferior precautions had been taken, whereas there would be liability with the left horn.
(23) Requiring on that account adequate precautions, in the absence of which there should be liability.
(24) Where the ox gored three times with the right horn and was declared Mu'ad accordingly, remaining thus Tam in respect of the left horn.
Talmud - Mas. Baba Kama 46a
. But in the case of an ox which was altogether Mu'ad no element of Tam could be found in it at all.
R. ELIEZER SAYS: NO PRECAUTION IS SUFFICIENT [FOR MU 'AD] SAVE [THE SLAUGHTER] KNIFE. Rabbah said: What was the reason of R. Eliezer? Because Scripture says: And his owner hath not kept him in,1 [meaning] that precaution would no more be of any avail for such a one. Said Abaye to him: If that is so, why not similarly say on the strength of the words, And not cover it2 that a cover would no more be of any avail for such a [pit]? And if you say that this is indeed the case, have we not learnt, 'Where it had been covered properly and an ox or an ass has [nevertheless] fallen into it there is exemption'?3 - Abaye therefore said: The reason of R. Eliezer was as taught [elsewhere]:4 R. Nathan says: Whence do we learn that a man should not bring up a vicious dog in his house, or keep a shaky ladder in his house? Because it is said: Thou bring not blood upon thy house.5
CHAPTER 5
MISHNAH. IF AN OX HAS GORED A COW AND ITS [NEWLY-BORN] CALF IS FOUND [DEAD] NEAR BY, AND IT IS UNKNOWN WHETHER THE BIRTH OF THE CALF PRECEDED THE GORING6 OR FOLLOWED THE GORING,7 HALF DAMAGES8 WILL BE PAID FOR [THE INJURIES INFLICTED UPON] THE COW9 BUT [ONLY] QUARTER DAMAGES WILL BE PAID FOR [THE LOSS OF] THE CALF.10 SO ALSO WHERE A COW GORED AN OX AND A [LIVE] CALF WAS FOUND NEAR BY, SO THAT IT WAS UNKNOWN WHETHER THE BIRTH OF THE CALF PRECEDED THE GORING11 OR FOLLOWED THE GORING,12 HALF DAMAGES CAN BE RECOVERED OUT OF THE COW, AND QUARTER DAMAGES OUT OF THE CALF.13
GEMARA. Rab Judah on behalf of Samuel said: This ruling is the view of Symmachus who held that money, the ownership of which cannot be decided has to be shared [by the parties].14 The Sages, however, say that it is a fundamental principle in law that the onus probandi falls on the claimant. Why was it necessary to state 'this is a fundamental principle in law'? - It was necessary to imply that even where the plaintiff is positive and the defendant dubious14 it is still the plaintiff on whom falls onus probandi. Or [we may say] it is also necessary in view of a case of this kind: For it has been stated:15 If a man sells an ox to another and it is found to be a gorer, Rab maintained that the sale would be voidable,16 whereas Samuel said that the vendor could plead 'I sold it to be slaughtered'.17 How so? Why not see whether the vendee was a person buying for field work or whether he was a person buying to slaughter?18 - Samuel's view can hold good where he was a person buying both for the one and the other. But why not see if the money paid corresponded to the value of an ox for field work, then it must have been purchased for field work; if, on the other hand it corresponded to that of an ox to be slaughtered, then it must have been purchased for slaughter?19 - Samuel's view could still hold good where there was a rise in the price of meat so that the ox was worth the price paid for one for field work.
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(1) Ex. XXI, 29.
(2) Ibid. 33
(3) Infra 52a.
(4) Supra p. 67.
(5) Deut. XXII, 8. The same prohibition applies to a goring ox.
(6) In which case the death of the calf could not he imputed to the goring of the ox.
(7) So that the miscarriage of the calf was a result of the goring.
(8) In the case of Tam.
(9) As these have certainly resulted from the goring of the ox.
(10) On account of the doubt.
(11) In which case the calf did not participate in the goring.
(12) So that the calf while it was still an embryo took part in the act of the cow.
(13) V. Gemara, infra p. 264.
(14) Cf. also supra p. 196.
(15) B.B. 92a.
(16) At the instance of the vendee.
(17) As Samuel follows his own view that this grand principle in law accepted by the Sages has to he applied in all cases and in all circumstances, as the Gemara proceeds to explain.
(18) Would this consideration not be a piece of good circumstantial evidence?
(19) As indeed maintained by R. Judah in a similar case dealt with in B. B. 77b; as to the other view, cf. Tosaf. a.l.
Talmud - Mas. Baba Kama 46b
I may here ask: If the vendor had not the wherewithal for making payment, why not take the ox in lieu of money?1 Do not people say, 'From the owner of your loan2 take payment even in bran'? - No, this is to be applied where he had the wherewithal for making payment.3 Rab who said that it was a voidable purchase maintained that we decide according to the majority of cases, and the majority of people buy for field work. Samuel, however, said that the vendor might plead against him, 'It was for slaughter that I sold it to thee,' and that we do not follow the majority,4 for we follow the majority only in ritual matters, but in pecuniary cases we do not follow the majority, but whoever has a [pecuniary] claim against his neighbour the onus probandi falls upon him.
It has been taught to the same effect: 'Where an ox gored a cow and its [newly-born] calf was found [dead] nearby, so that it was unknown whether the birth of the calf preceded the goring, or followed the goring, half damages will be paid for [injuries inflicted upon] the cow but only quarter damages will be paid for [the loss of] the calf; this is the view of Symmachus. The Sages, however, say: If one claims anything from his neighbour, the onus probandi falls upon him.
R. Samuel b. Nahmani stated: Whence can we learn that the onus probandy falls on the claimant? It is said: If any man have any matters to do, let him come unto them,5 [implying] 'let him bring evidence before them'. But R. Ashi demurred, saying: Do we need Scripture to tell us this?6 Is it not common sense that if a man has a pain he visits the healer? No: the purpose of the verse is to corroborate the statement made by R. Nahman on behalf of Rabbah b. Abbuha: Whence can we learn that judges should give prior consideration to the first plaintiff?7 It is said: If any man have any matters to do, let him come unto them5 [implying]: let him cause his matters to be brought [first] before them. The Nehardeans however, said; It may sometimes be necessary to give prior consideration to the defendant, as for instance in a case where his property would otherwise depreciate in value.8
SO ALSO WHERE A COW GORED AN OX etc. [We have here] half damages plus quarter damages! Is it not [only] half of the damage that need be paid for? What then have full damages less a quarter to do here? - Abaye said: Half of the damage means one quarter of the damage,9 and a quarter of the damage means one eighth of the damage.10 It is true that where the cow and the calf belong to one owner, the plaintiff would be entitled to plead against the owner of the cow, 'In any case, have you not to pay me half damages?'11 The ruling, however, applies to the case where the cow belonged to one and the calf to another.12 Again, where the plaintiff claimed from the owner of the cow first it would still also make no difference, as he would be entitled to argue against the owner of the cow, 'It was your cow that did me the damage, [and it is for you to] produce evidence that there is a joint defendant with you.'13 But where the rule applies is to a case where he claimed from the owner of the calf first, in which case the owner of the cow may say to him, 'You have made clear your opinion that there is a joint defendant with me.'14 Some, however, say that even where the plaintiff claimed from the owner of the cow first, the latter might put him off by saying, 'It is definitely known to me15 that there is a joint defendant with me.'14 Raba said: Is then 'a fourth of the damage' and 'an eighth of the damage' mentioned in the text? Is not 'half damages' and 'quarter damages' stated in the text?16 - Raba therefore said: We suppose that in fact the cow and the calf belonged to one owner,17 and the meaning is this: Where the cow is available,18 the payment of half damages will be made out of the cow.19
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(1) Since the meat of the ox is worth the purchase money.
(2) I.e. from your debtor who is now the owner of the money lent to him; cf. the Roman 'Mutuum'.
(3) In which case the creditor is entitled to ready cash; cf. Tosaf. a.l. and supra 9a; 27a; B.B. 92b.
(4) Which is otherwise an accepted principle in Rabbinic Law; cf. Hul. 11b.
(5) Ex. XXIV, 14.
(6) Keth. 22a and Nid. 25a.
(7) I.e., where A instituted an action against B, and B on appearance introduced a counter-claim against A; cf. Rashi and Tosaf. a.l., and Sanh. 35a.
(8) Where, e.g., he has an opportunity of disposing of the estate concerned at a high price - an opportunity he might miss through any delay in a settlement of his counter-claim.
(9) I.e., a half of the half, as half constitutes the whole payment in the case of Tam.
(10) I.e., a quarter of the half.
(11) Since both the cow and the calf belong to you.
(12) As e.g., where the cow was sold with the exception of its offspring; Rashi.
(13) That is, that the calf took part in the goring, otherwise you must be held solely responsible.
(14) So that I cannot accordingly be held liable for all the damages.
(15) Unless you prove to the contrary.
(16) How then could Abaye interpret half-damages to mean quarter damages, and quarter damages to mean an eighth of the damage?
(17) In the case stated in the Mishnah.
(18) To be distrained upon for the damages in accordance with the law applicable to Tam.
(19) As she definitely did the damage.
Talmud - Mas. Baba Kama 47a
But where the cow is not available, quarter damages will be paid out of the body of the calf.1 Now this is so only where it is not known whether the calf was still part of the cow at the time she gored or whether it was not so, but were we certain that the calf was still part of the cow at the time of the goring2 the whole payment of the half damages would be made from the body of the calf. Raba here adopts the same line of reasoning [as in another place], as Raba has indeed stated: Where a cow has done damage, payment can be collected out of the body of its calf, the reason being that the latter is a part of the body of the former, whereas in the case of a chicken doing damage, no payment will be made out of its eggs, the reason being that they are a separate [body].3
Raba further said: [Where an ox has gored a cow and caused miscarriage] the valuation will not be made for the cow separately and for the calf separately, but the valuation will be made for the calf as at the time when it formed a part of the cow; for if you do not adopt this rule,4 you will be found to be making the defendant suffer unduly. The same method is followed in the case of the cutting off the hand of a neighbour's slave;5 and the same method is followed in the case of damage done to a neighbour's field.6 Said R. Aha the son of Raba to R. Ashi: If justice demands, why should not the defendant suffer? - Because he is entitled to say to him: 'Since it was a pregnant cow that I deprived you of, it is a pregnant cow which should be taken into valuation.'
There is no question that where the cow belonged to one owner and the calf to another owner, the value of the fat condition of the cow will go to the owner of the cow.7 But what of the value of its bulky appearance? - R. Papa said: It will go to the owner of the cow. R. Aha the son of R. Ika said: It will be shared [by the two owners].8 The law is that it will be shared [by the two owners].
MISHNAH.IF A POTTER BRINGS HIS WARES INTO THE COURTYARD OF ANOTHER PERSON WITHOUT PERMISSION, AND THE CATTLE OF THE OWNER OF THE COURTYARD BREAKS THEM, THERE IS NO LIABILITY.9 MOREOVER, SHOULD THE ANIMAL BE INJURED BY THEM, THE OWNER OF THE POTTERY IS LIABLE [TO PAY DAMAGES]. IF, HOWEVER, HE BROUGHT [THEM] IN WITH PERMISSION,10 THE OWNER OF THE COURTYARD IS LIABLE. SIMILARLY IF [A MAN] BRINGS HIS PRODUCE INTO THE COURTYARD OF ANOTHER PERSON WITHOUT PERMISSION AND THE ANIMAL OF THE OWNER OF THE PREMISES CONSUMES IT, THERE IS NO LIABILITY.11 IF IT WAS HARMED BY IT THE OWNER WOULD BE LIABLE. IF, HOWEVER, HE BROUGHT THEM IN WITH PERMISSION,10 THE OWNER OF THE PREMISES WOULD BE LIABLE. SO ALSO IF [A MAN] BRINGS HIS OX INTO THE COURTYARD OF ANOTHER WITHOUT
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(1) On account of the doubt involved in the case dealt with in the Mishnah.
(2) In which case it participated in the goring.
(3) [So Rashi. Curr. edd. read 'mere excrement'.]
(4) But that the cow should be valued separately and the calf separately.
(5) [You do not value the hand separately, viz., what price a master would in the first instance be willing to take for depriving his slave of the use of his hand; but the difference in the value of a slave who had his hand cut off - a much smaller price.]
(6) [The valuation is not made on the basis of the single plot which has been damaged, but on the basis of its value in relation to the whole field.]
(7) As the embryo did not increase the fatness of the cow.
(8) As both the cow and embryo participate in the bulky appearance of the animal.
(9) As the plaintiff was a trespasser.
(10) In which case he was no trespasser
(11) V.p. 266, n. 7.
Talmud - Mas. Baba Kama 47b
PERMISSION AND THE OX OF THE OWNER OF THE PREMISES GORES IT OR THE DOG OF THE OWNER OF THE PREMISES BITES IT, THERE IS NO LIABILITY. MOREOVER SHOULD IT GORE THE OX OF THE OWNER OF THE PREMISES ITS OWNER WOULD BE LIABLE. AGAIN, IF IT FALLS [THERE] INTO A PIT OF THE OWNER OF THE PREMISES AND MAKES THE WATER IN IT FOUL, THERE WOULD BE LIABILITY. SO ALSO IF [IT KILLS] THE OWNER'S FATHER OR SON [WHO] WAS INSIDE THE PIT, THERE WOULD BE LIABILITY TO PAY KOFER.1 IF, HOWEVER, HE BROUGHT IT IN WITH PERMISSION, THE OWNER OF THE YARD WOULD BE LIABLE. RABBI, HOWEVER, SAYS: IN ALL THESE CASES THE OWNER OF THE PREMISES WOULD NOT BE LIABLE UNLESS HE HAS TAKEN IT UPON HIMSELF TO WATCH [THE ARTICLES BROUGHT INTO HIS PREMISES].
GEMARA. The reason why [the potter would be liable for damage occasioned by his pottery to the cattle of the owner of the premises] is because the entry was without permission, which shows that were it with permission the owner of the pots would not be liable for the damage done to the cattle of the owner of the premises and we do not say that the owner of the pots has by implication undertaken to watch the cattle of the owner of the premises. Who is the authority for this view? - Rabbi, who has laid down that without express stipulation no duty to watch is undertaken.2 Now look at the second clause: IF HE BROUGHT THEM IN WITH PERMISSION, THE OWNER OF THE PREMISES WOULD BE LIABLE. This brings us round to the view of the Rabbis,3 who said that even without express stipulation he makes himself responsible for watching. Moreover, [it was further stated]: RABBI SAYS: IN ALL THESE CASES THE OWNER OF THE PREMISES WOULD NOT BE LIABLE UNLESS HE HAS TAKEN UPON HIMSELF TO WATCH. [Are we to say that] the opening clause and the concluding clause are in accordance with Rabbi while the middle clause is in accordance with the Rabbis? - R. Zera thereupon said: The contradiction [is obvious]; he who taught one clause cannot have taught the other clause. Raba, however, said; The whole [of the anonymous part of the Mishnah] is in accordance with the Rabbis, for [where the entry was] with permission the owner of the premises undertook the safeguarding of the pots even against breakage by the wind.4
IF [A MAN] BRINGS HIS PRODUCE INTO THE COURTYARD OF ANOTHER OWNER etc. Rab said: This rule5 applies only where the animal [was injured] by slipping on them, but if the animal ate them [and was thereby harmed], there would be exemption on the ground that it should not have eaten them.6 Said R. Shesheth: I feel inclined to say that it was only when he was drowsy or asleep that Rab could have made such a statement.7 For it was taught: If one places deadly poison before the animal of another he is exempt from the judgment of Man, but liable to the judgment of Heaven.8 Now, that is so only in the case of deadly poison which is not usually consumed by an animal, but in the case of products that are usually consumed by an animal, there appears to be liability even to the judgment of Man. But why should this be so? [Why not argue:] It should not have eaten them? - I may reply that strictly speaking even in the case of produce there should be exemption from the judgment of Man, and there was a special purpose in enunciating this ruling with reference to deadly poison, namely that even where the article was one not usually consumed by an animal, there will still be liability to the judgment of Heaven. Or if you wish you may say that by the deadly poison mentioned was meant hypericum,9 which like a fruit [is eaten by animals].
An objection could be raised [from the following]: If a woman enters the premises of another person to grind wheat without permission, and the animal of the owner consumes it, there is no liability; if the animal is harmed, the woman would be liable. Now, why not argue: It should not have over-eaten? - I can answer: [In what respect] does this case go beyond that of the Mishnah, which was interpreted [to refer to damage occasioned by] the animal having slipped over them? What then was in the mind of the one who made the objection? - He might have said to you; Your explanation is satisfactory regarding the Mishnah where it says, IF IT WAS HARMED BY IT [which admits of being interpreted] that the animal slipped over them. But here [in the Baraitha] it says, 'if the animal is harmed', without the words 'by them', so that surely the consumption [of the wheat] is what is referred to. And the other?10 - He can contend [that the omission of these words] makes no difference.
Come and hear: If a man brought his ox into the courtyard of another person without permission, and it ate there wheat and got diarrhoea from which it died, there would be no liability. But if he brought it in with permission, the owner of the courtyard would be liable. Now why not argue: It should not have eaten?11 - Raba thereupon said: How can you raise an objection from a case where permission was given12 against a case where permission was not given?13 Where permission was given, the owner of the premises assumed liability for safeguarding the ox even against its strangling itself.
The question was raised: Where the owner of the premises has assumed responsibility to safeguard [the articles brought in to his premises], what is the legal position? Has the obligation to safeguard been assumed by him [only] against damage from his own [beasts], or has he perhaps also undertaken to safeguard from damage in general? Come and hear: Rab Judah b. Simon learnt in the [Tractate] Nezikin of the School of Karna;14 If a man brings his produce into the courtyard of another without permission, and an ox from elsewhere comes and consumes it, there is no liability. But if he brought it in with permission there would be liability. Now, who would be exempt15 and who would be liable?16 Does it not mean that the owner of the premises would be exempt15 and16 the owner of the premises would be liable?17 - I may say that this is not so, it is the owner of the ox who would be exempt15 and the owner of the ox who would be liable.16 But if it refers to the owner of the ox,
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(1) Ex. XXI, 29-30.
(2) [For the present it is assumed that the duty applies alike to the owner of the pottery in regard to the belongings of the owner of the premises as to the latter in regard to the pottery.]
(3) The representatives of the anonymous view cited on the Mishnah.
(4) Whereas the owner of the pottery could never be considered to have by implication accepted upon himself the responsibility for safeguarding the belongings of the owner of the premises.
(5) Imposing liability where the animal was injured by the produce.
(6) Cf. infra 57b.
(7) V. infra p. 376.
(8) V. infra 56a.
(9) [St. John's Wort.]
(10) Rab.
(11) So that the owner of the courtyard should not be liable for the harm occasioned by the wheat to the ox brought in with his permission.
(12) And the harm was done to the ox thus brought in with permission.
(13) I.e. where produce brought in without permission was eaten by the owner's animal which thereby suffered harm, in which case the owner though being a trespasser has still no liability to safeguard to that extent the belongings of the owner of the premises.
(14) [Karna, one of the Judges of the Exile, had a collection of Babylonian traditions, הלכתא דבבלאי (Gen. Rab. XXXIII), of pre-Amoraic days, v. Funk, S., Die Juden in Babylonian, I, n. 1.]
(15) In the absence of permission.
(16) Where permission was granted.
(17) [This shows that the responsibility assumed by the owner of the premises extends in regard to damages in general.]
Talmud - Mas. Baba Kama 48a
what has permission or absence of permission to do with the case?1 - I will answer; [Where the produce was brought in] with permission, the case would be one of Tooth [doing damage] in the plaintiff's premises,2 and Tooth doing damage in the plaintiff's premises entails liability,3 whereas in the absence of permission it would be a case of Tooth doing damage on public ground,4 and Tooth doing damage on public ground entails no liability.5
Come and hear: If a man brings his ox into the premises of another person without permission, and an ox from elsewhere comes and gores it, there is no liability. But if he brought it in with permission there would be liability. Now, who would be exempt6 and who would be liable?7 Does it not mean that it is the owner of the premises who would be exempt6 and the owner of the premises who would be liable?7 - No, it is the owner of the ox [from elsewhere] who would be exempt6 and similarly it is the owner of the ox [from elsewhere] who would be liable.7 But if so, what has permission or the absence of permission to do with the case?8 - I would answer that this teaching is in accordance with R. Tarfon, who held9 that the unusual damage occasioned by Horn in the plaintiff's premises has to be compensated in full: [Where the ox was brought in] with permission the case would therefore be one of Horn doing damage in the plaintiff's premises10 and the payment would have to be for full damages, whereas in the absence of permission it would amount to Horn doing damage on public ground,4 and the payment would accordingly be only for half damages.
A certain woman once entered the house of another person for the purpose of baking bread there, and a goat of the owner of the house came and ate up the dough, from which it became sick and died. [In giving judgment] Raba ordered the woman to pay damages for the value of the goat. Are we to say now that Raba differed from Rab, since Rab said:11 It should not have eaten?12 - I may reply, are both cases parallel? There,11 there was no permission and the owner of the produce did not assume any obligation of safeguarding [the property of the owner of the premises], whereas in this case, permission had been given and the woman had accepted responsibility for safeguarding13 [the property of the owner of the premises]. But why should the rule in this case be different from [what has been laid down, that] if a woman enters the premises of another person to grind wheat without permission, and the animal of the owner of the premises eats it up, the owner is not liable, and if the animal suffers harm the woman is liable, the reason being that there was no permission, which shows that where permission was granted she would be exempt?14 - I can answer: In the case of grinding wheat, since there is no need of privacy at all, and the owner of the premises is not required to absent himself, the obligation to take care [of his property] still devolves upon him, whereas in the case of baking where, since privacy is required,15 the owner of the premises absents himself [from the premises], the obligation to safeguard his property must fall upon the woman.
IF A MAN BRINGS HIS OX INTO THE PREMISES OF ANOTHER PERSON [etc.]. Raba said: If he brings his ox on another person's ground and it digs there pits, ditches, and caves, the owner of the ox would be liable for the damage done to the ground, and the owner of the ground would be liable for any damage resulting from the pit. For though the Master stated:16 [It says,] If a man shall dig a pit,17 and not 'if an ox [shall dig] a pit', still here [in this case] since it was the duty of the owner of the ground to fill in the pit and he did not fill it in, he is reckoned [in the eyes of the law] as having himself dug it.18
Raba further said: If he brings his ox into the premises of another person without permission, and the ox injures the owner of the premises, or the owner of the premises suffers injury through the ox,19 he is liable, but if it lies down,20 he has no liability. But why should the fact of its lying down confer exemption?21 - R. Papa thereupon said: What is meant by 'it lies down' is that the ox lays down its excrements [upon the ground], and thereby soils the utensils of the owner of the premises. [The exemption is because] the excrements22 are a case of Pit, and we have never found Pit involving liability for damage done to inanimate objects.23 This explanation is satisfactory if we adopt the view of Samuel who held24 that all kinds of nuisances come under the head of Pit. But on the view of Rab who said24 [that they do not come under the head of Pit] unless they have been abandoned,25 what are we to say? - It may safely be said that excrements as a rule are abandoned.26
Raba said further: If one enters the premises of another person without permission, and injures the owner of the premises,27 or the owner of the premises suffers injury through him28 there would be liability;29 and if the owner of the premises injured him, there would be no liability. R. Papa thereupon said: This ruling applies only where the owner had not noticed him. For if he had noticed him, the owner of the premises by injuring him would render himself liable, as the trespasser would be entitled to say to him: 'Though you have the right to eject me, you have no right to injure me.'30 These authorities31 followed the line of reasoning [adopted by them elsewhere], for Raba or, as others read, R. Papa stated:
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(1) Since the defendant was not the owner of the premises.
(2) As the plaintiff obtained a legal right to keep there the object which was subsequently damaged by a stray ox.
(3) Ex. XXII, 4.
(4) I.e. on premises where the plaintiff has no more right than the owner of the ox, the defendant.
(5) Cf. supra p. 17.
(6) V. p. 270, n. 4.
(7) V. p. 270, n. 5.
(8) V. p. 270, n. 7.
(9) Supra p. 125.
(10) V. p. 270, n. 8.
(11) Supra p. 268.
(12) And the woman would therefore not have to pay for the damage sustained by the animal of the owner of the premises.
(13) V. the discussion that follows.
(14) Why then should the woman, the owner of the dough, have to pay?
(15) Lit., 'she requires privacy.' As the woman would usually have to uncover her arms.
(16) Infra p. 93 and cf. also supra 51a.
(17) Ex. XXI, 33.
(18) The owner of the ground is therefore liable for any damage resulting from the pit.
(19) By stumbling over it
(20) And, as it is assumed at present, it did damage thereby.
(21) If damage was done by it.
(22) As any other nuisance.
(23) For Scripture said: Ox and ass'; cf. supra p. 18.
(24) Supra p. 150.
(25) But where they were not abandoned they would be subject to the law applicable to Cattle, where there is no exemption for damage done to inanimate objects.
(26) Cf. B.M. 27a.
(27) [Whether with or without intention.]
(28) I.e. the trespasser, by stumbling over him.
(29) Upon the trespasser.
(30) Cf. supra p. 124.
(31) I.e. Raba and R. Papa.
Talmud - Mas. Baba Kama 48b
Where both of them [plaintiff and defendant] had a right [to be where they were]1 or where both of them [on the other hand] had no right [to be where they were],2 if either of them injured the other, he would be liable, but if either suffered injury through the other, there would be no liability. This is so only where both of them had a right to be where they were1 or where both of them [on the other hand] had no right to be where they were,2 but where one of them had a right and the other had no right, the one who had a right would be exempt,3 whereas the one who had no right would be liable.3
IF IT FALLS [THERE] INTO A PIT OF THE OWNER AND MAKES THE WATER IN IT FOUL, THERE WOULD BE LIABILITY. Raba said: This ruling applies only where the ox makes the water foul at the moment of its falling into the pit.4 For where the water became foul [only] after it fell in, there would be exemption on the ground that [the damage done by] the ox5 should then be [subject to the law applicable in the case of] Pit, and water is an inanimate object, and we never find Pit entailing liability for damage done to inanimate objects.6 Now this is correct if we accept the view of Samuel who said7 that all kinds of nuisances are subject to the law of Pit. But on the view of Rab who held7 [that this is not so] unless they have been abandoned,8 what are we to say? - We must therefore suppose that if the statement was made at all, it was made in this form: Raba said: The ruling [of the Mishnah] applies only where the ox made the water foul by [the dirt of] its body.4 But where it made the water foul by the smell of its carcass there would be no liability, the reason being that the ox [in this case] was only a [secondary] cause [of the damage], and for a mere [secondary] cause there is no liability.
WHERE [IT KILLS] THE OWNER'S FATHER OR HIS SON [WHO] WAS INSIDE THE PIT, THERE WOULD BE LIABILITY TO PAY KOFER. But why? Was the ox not Tam?9 - Rab thereupon said: We are dealing with a case where the ox was Mu'ad to fall upon people in pits. But if so, should it not have already been killed [on the first occasion]?10 - R. Joseph thereupon said: The ox was looking at some grass [growing near the opening of the pit] and thus fell [into it].11 Samuel, however, said: This ruling is in accordance with R. Jose the Galilean, who held12 that [killing by] Tam entails the payment of half kofer. 'Ulla, however, said: It accords with the ruling laid down by R. Jose the Galilean in accordance with R. Tarfon, who said13 that Horn doing damage in the plaintiff's premises entails the payment of full damages.14 So here the liability is for the payment of full kofer.15 'Ulla's answer satisfactorily explains why the text [of the Mishnah] says, IF HIS FATHER OR HIS SON WAS INSIDE THE PIT.16 But if we take the answer of Samuel, why [is the ruling stated] only with reference to his father and his son?16 Why not with reference to any other person? - The Mishnah took the most usual case.17
IF HE BROUGHT THEM IN WITH PERMISSION, THE OWNER OF THE PREMISES WOULD BE LIABLE etc. It was stated: Rab said: 'The law18 is in accordance with the first Tanna,' whereas Samuel said, 'The law18 is in accordance with the view of Rabbi.'19
Our Rabbis taught: [If the owner of the premises says:] 'Bring in your ox and watch it,' should the ox then damage, there would be liability,20 but should the ox suffer injury there would be no liability.21 If, however, [the owner says], 'Bring in your ox and I will watch it,' should the ox suffer injury there would be liability,21 but should it do damage22 there would be no liability.20 Does not this statement contain a contradiction? You say that [where the owner of the premises said:] 'Bring in your ox and watch it,' should the ox do damage there would be liability,20 but should the ox suffer injury there would be no liability.21 Now the reason for this is that he expressly said to the owner of the ox 'watch it' - [the reason, I mean,] that the owner of the ox will be liable and the owner of the premises exempt; from which I infer that if no explicit mention was made [as to the watching] the owner of the premises would be liable, and the owner of the ox exempt, indicating that without express stipulation to the contrary the former takes it upon himself to safeguard [the ox].23 Now read the concluding clause: But [if he said]: 'Bring in your ox and I will watch it', should the ox suffer injury there would be liability,24 but should it do damage there would be no liability, [the reason being that] he expressly said to him 'and I will watch it' - [the reason,] I mean, that the owner of the premises would be liable and the owner of the ox exempt; from which I infer that if there is no express stipulation, the owner of the ox would be liable and the owner of the premises exempt, as in such a case the owner of the premises does not take it upon himself to safeguard [the ox]. This brings us round to the view of Rabbi, who laid down [there would be no liability upon him]24 unless where the owner of the premises had taken upon himself to safeguard. Is then the opening clause in accordance with the Rabbis, and the concluding clause in accordance with Rabbi? - R. Eleazar thereupon said: The contradiction [is obvious]; he who taught one clause cannot have taught the other clause.25 Raba, however, said: The whole [of the Baraitha] can be explained as being in accordance with the Rabbis; since the opening clause required the insertion of the words, 'watch it',26 there were correspondingly inserted in the concluding clause the words 'And I will take care of it'. R. Papa, however, said: The whole [of the Baraitha] is in accordance with Rabbi;27 for he concurred in the view of R. Tarfon who stated28 that Horn doing damage in the plaintiff's premises would entail the payment of full damages. It therefore follows that where he expressly said to him, 'Watch it', he certainly did not transfer a legal right to him to any place in the premises, so that the case29 becomes one of Horn doing damage in the plaintiff's premises, and [as already explained]30 where Horn does damage in the plaintiff's premises the payment must be for full damages. Where, however, he did not expressly say, 'Watch it', he surely granted him a legal right to place in the premises, so that the case is one of [damage done on] premises of joint owners and [as we know] where Horn does damage on premises of owners in common, there is no liability to pay anything but half damages.31
MISHNAH. IF AN OX WHILE CHARGING ANOTHER OX [INCIDENTALLY] INJURES A WOMAN WHO [AS A RESULT] MISCARRIES, NO COMPENSATION NEED BE MADE FOR THE LOSS OF THE EMBRYOS. BUT IF A MAN WHILE MEANING TO STRIKE ANOTHER MAN [INCIDENTALLY] STRUCK A WOMAN WHO THUS MISCARRIED HE WOULD HAVE TO PAY COMPENSATION FOR THE LOSS OF THE EMBRYOS.32 HOW IS THE COMPENSATION FOR [THE LOSS OF] EMBRYOS FIXED? THE ESTIMATED VALUE OF THE WOMAN BEFORE HER MISCARRIAGE IS COMPARED WITH HER VALUE AFTER MISCARRIAGE.
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(1) Such as e.g. on public ground or on their joint premises.
(2) E.g. where they were running on public ground, for which cf. supra p. 172.
(3) For incidental damage suffered through him.
(4) In which case the damage was direct.
(5) By becoming a stationary nuisance.
(6) Supra p. 18.
(7) V. p. 273, n. 3.
(8) V. p. 273, n. 4.
(9) In which case no kofer has to be paid.
(10) For in a case where the ox threw itself upon a human being in a pit to kill him it could hardly escape being sentenced to death and stoned accordingly. The explanations given supra pp. 232-3 on a similar problem could therefore hardly apply here.
(11) Without any intention to kill the human being in the pit. The ox is therefore exempt from being stoned, but the owner is nevertheless liable to pay kofer as this kind of damage comes under the category of Tooth, since the ox did it for its own gratification; cf. supra p. 6.
(12) Supra p. 66.
(13) V. p. 271, n. 6.
(14) Cf. also supra p. 134.
(15) Since the ox killed the human being on his own premises.
(16) So that he was killed on his own premises.
(17) For it is not quite usual that a person not of the household of the owner of the yard should be in the pit which was the private property of the owner.
(18) [V.l., 'The halachah is.']
(19) Cf. Bez. 40a.
(20) Upon the owner of the ox.
(21) Upon the owner of the premises.
(22) To the belongings of the owner of the premises.
(23) [MS. M. adds: This will be in accordance with the Rabbis who hold that in the absence of any express stipulation there is still the duty to watch.]
(24) Upon the owner of the premises.
(25) Cf. supra p. 268.
(26) As otherwise the owner of the premises would by implication, according to the Rabbis, have accepted liability to safeguard.
(27) For while the inference from the concluding clause holds good, this is not the case with that of the commencing clause, as even where no mention was made about watching the ox brought in, the owner of the premises would still not be liable for any damage done to it. There may, however, be a difference where it gored an ox of the owner of the premises if Rabbi followed the view of R. Tarfon as will be explained in the text.
(28) V. supra p. 125.
(29) Where the ox brought in gored an ox of the owner of the premises.
(30) V. p. 276, n. 6.
(31) Supra. p. 58.
(32) Ex. XXI, 22
Talmud - Mas. Baba Kama 49a
R. SIMEON B. GAMALIEL SAID: IF THIS IS SO, A WOMAN AFTER HAVING GIVEN BIRTH INCREASES IN VALUE.1 IT IS THEREFORE THE VALUE OF THE EMBRYOS WHICH HAS TO BE ESTIMATED, AND THIS AMOUNT WILL BE GIVEN TO THE HUSBAND. IF, HOWEVER, THE HUSBAND IS NO LONGER ALIVE, IT WOULD BE GIVEN TO HIS HEIRS. IF THE WOMAN WAS A MANUMITTED SLAVE OR A PROSELYTESS [AND THE HUSBAND, ALSO A PROSELYTE, IS NO LONGER ALIVE], THERE WOULD BE COMPLETE EXEMPTION.2
GEMARA. The reason why there is exemption is because the ox was charging another ox, from which we infer that if it was charging the woman, there would be liability to pay. Will this not be in contradiction to the view of R. Adda b. Ahabah? For did not R. Adda b. Ahabah state3 that [even] where Cattle were charging the woman, there would [still] be exemption from paying compensation for [the loss] of the embryos? - R. Adda b. Ahabah might reply: The same ruling [of the Mishnah] would apply even in the case of Cattle making for the woman, where there would similarly be exemption from paying compensation for [the loss of] the embryos. And as for the Mishnah saying IF AN OX WHILE CHARGING OTHER CATTLE, the reason is that, since it was necessary to state in the concluding clause BUT IF A MAN WHILE MEANING TO STRIKE ANOTHER MAN, this being the case stated in Scripture,4 it was also found expedient to have a similar text in the commencing clause IF AN OX WHILE CHARGING ANOTHER OX.
R. Papa said: If an ox gores a woman-slave, causing her to miscarry, there would be liability to pay for the loss of the embryos, the reason being that [in the eyes of the law] it was merely a case of a pregnant she-ass being injured, for Scripture says, Abide ye here with the ass,5 thus comparing this folk to an ass.6
HOW IS THE COMPENSATION FOR THE LOSS OF EMBRYOS FIXED etc.? 'COMPENSATION FOR THE EMBRYOS'? Should it not [also] have been 'Compensation for the increase in [the woman's] value caused by the embryos'?7 - This indeed was what was meant: How is the compensation for the embryos and for the increase [in the woman's value] due to embryos fixed? Her estimated value before miscarriage is compared with her value after miscarriage.8
BUT R. SIMEON B. GAMALIEL SAID; IF THIS IS SO, A WOMAN AFTER HAVING GIVEN BIRTH INCREASES IN VALUE. What did he mean by this statement?9 - Rabbah said; He meant to say this; Does a woman increase in value before giving birth more than after? Does not a woman increase in value after giving birth10 more than before giving birth? It is therefore the value of the embryos which has to be estimated, and this amount will be given to the husband. It was taught to the same effect; Does the value of a woman increase more before giving birth than after giving birth? Does not the value of a woman increase after having given birth10 more than before giving birth? It is therefore the value of the embryos which has to be estimated, and this amount will be given to the husband. Raba, however, said: What is meant is this.11 'Is a woman's increase in value wholly for [the benefit of the husband for] whom she bears, and has she no share at all in the increase [in the value]12 due to the embryo? It is therefore the value of the embryos which has to be estimated and this amount will be given to the husband, whereas the amount of the increase [in the value]12 caused by the embryos will be shared equally [between husband and wife].' It was similarly taught: R. Simeon b. Gamaliel said: Is the increase in a woman's value wholly for [the benefit of the husband for] whom she bears, and has she herself no share at all in the increase [in her value] due to the embryos? No; there is a separate estimation for Depreciation13 and also for Pain,13 and the value of the embryos is estimated and given to the husband, whereas the amount of the increase in her value caused by the embryos will be shared equally [between husband and wife]. But is not R. Simeon b. Gamaliel contradicting himself [in this]?14 - There is no contradiction, for one case15 is that of a woman pregnant for the first time,16 and the other of a woman who had already given birth to children.17
What was the reason of the Rabbis who stated that the amount of the increase [in the woman's value] due to the embryos also belongs to the husband? - As it was taught: From the words, so that her fruit depart from her,18 cannot I understand that the woman was pregnant? Why then [the words] with child?18 To teach you that the increase in her value due to pregnancy belongs to the husband. How then does R. Simeon b. Gamaliel expound the phrase 'with child'? - He required it for the lesson taught in the following: R. Eliezer b. Jacob says: Liability is never incurred save when the blow is given over against the place of the womb. R. Papa said: You are not to understand from this just over against the place of the womb, for wherever the bruise could be communicated to the embryo [will suffice];19 what is excluded is a blow on the hand or foot, where there would be liability.
IF THE WOMAN WAS A MANUMITTED SLAVE,OR PROSELYTESS [AND THE HUSBAND, ALSO A PROSELYTE, IS NO LONGER ALIVE], THERE WOULD BE EXEMPTION ALTOGETHER.20 Rabbah said: This rule applies only where the blow was given during the lifetime of the proselyte [husband] and it was only after this that he died, for since the blow was given during the lifetime of the proselyte, he acquired title to the impending payment, so that when he subsequently died21 the defendant became quit of it as it was an asset of the proselyte.21 But where the blow was given after the death of the proselyte it was the mother who acquired title to the embryos, so that the defendant would have to make payment to her. Said R. Hisda: O, master of this [teaching]! Are embryos packets of money to which a title can be acquired? It is only when the husband is there22 that the Divine Law grants payment to him, but not when he is no more.
An objection was raised:23 'Where a woman is struck and a miscarriage results, compensation for Depreciation and Pain is to be paid to the woman, but for the loss of the embryos to the husband; where the husband is no more alive it24 is given to his heirs; so also where the woman is no more alive, it25 is given to her heirs. Should she be a slave who has been manumitted, or a proselytess [whose husband, also a proselyte, is no longer alive], the defendant becomes entitled to it'?26 - I would reply: Is there anything more in this case than in that of the Mishnah, which has been interpreted to refer to where the blow was given during the lifetime of the proselyte and [where it was only after this that] the proselyte died?27 [Why therefore not interpret the text] here also as referring to a case were the blow was given during the lifetime of the proselyte and [where it was only after this that] the proselyte died!27 More-over, if you wish you may [alternatively] say that it might have referred even to a case where the blow was given after the death of the proselyte,
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(1) V. the explanation in the Gemara.
(2) The reason being that in this case there is no legitimate plaintiff.
(3) Supra p. 239.
(4) Ex. XXI, 22.
(5) Gen. XXII, 5.
(6) I.e. a mere chattel of the Master.
(7) Before the miscarriage took place. For besides the loss of the value of the embryos there was a loss of the value of the woman herself that was increased by the embryos making her look bigger and stouter. [Rashi reads: 'Is this (referring to the valuation laid down in the Mishnah) compensation for the embryos? Is it not also compensation for the increase etc.?']
(8) [This valuation, that is to say, serves as compensation both for the embryos and for the increase etc.]
(9) For surely the anonymous Tanna expressed himself to the contrary.
(10) Through having emerged safely from the dangers of childbirth.
(11) By R. Simeon b. Gamaliel.
(12) Of her own body.
(13) Cf. supra p. 243 and Keth. VI, 1.
(14) For according to his other statement a woman increases in value after giving birth more than before.
(15) Where he stated that the value of a woman after having given birth is greater than that prior to having given birth.
(16) Where the circumstances are more complicated.
(17) In which case her value later is less than that prior to giving birth
(18) Ex. XXI, 22.
(19) To create liability.
(20) V. p. 277, n. 6.
(21) Without issue, leaving thus no heirs.
(22) I.e. alive.
(23) Cf. supra p. 234.
(24) I.e. the payment for the loss of the embryos.
(25) I.e. the payment for Depreciation and Pain.
(26) Even, it would seem, when the blow was given after the death of the proselyte, which contradicts the view of Rabbah.
(27) V. p. 280, n. 5.
Talmud - Mas. Baba Kama 49b
but read in the text 'she would become entitled to it'.1
May we say that there is on this point2 a difference between Tannaitic authorities? [For it was taught:] If a daughter of an Israelite was married to a proselyte and became pregnant by him, and a blow was given her during the lifetime of the proselyte,3 the compensation for the loss of the embryos will be given to the proselyte. But if after the death of the proselyte!4 - One Baraitha teaches that there would be liability, whereas another Baraitha teaches that there would be no liability. Now, does this not show that Tannaim differ on this [point]?5 According to Rabbah there is certainly a difference between Tannaim on this matter.6 But what of R. Hisda?7 Must he also hold that Tannaim were divided on it? - [No; he may argue that] there is no difficulty,8 as one [Baraitha] accepts the view of the Rabbis9 whereas the other follows that of R. Simeon b. Gamaliel.10 But if [the Baraitha which says that there is liability follows the view of] R. Simeon b. Gamaliel, why speak only of compensation after the death [of the proselyte]? Would she even during [his] lifetime not have [a half of the payment]? - During [his] lifetime she would have only a half, whereas after death she would have the whole.11 Or if you wish you may say that both this [Baraitha]12 and the other follow the view of R. Simeon b. Gamaliel,10 but while one12 deals with the increase in the value [of the woman caused] by the embryos, the other13 refers to the compensation for the loss of the value of the embryos [themselves].14 I would here ask, why not derive from the rule12 regarding the increased value due to the embryos the other rule regarding the value of the embryos themselves?15 And again, why not derive from the ruling12 of R. Simeon b. Gamaliel also the ruling of the Rabbis?16 - It may, however, be said that this could not be done. For as regards the increased value [of the woman due] to the embryos, seeing that she has some hold upon it,17 she can acquire a title to the whole of it,18 whereas in regard to the compensation for the embryos themselves, on which she has no hold,19 she can acquire no title to them at all.
R. Yeba the Elder enquired of R. Nahman: If a man has taken possession of the deeds of a proselyte,20 what is the legal position? [Shall we say that] a man who takes possession of a deed does so with intent to acquire the land [specified in the document], but has thereby not taken possession of the land, nor does he even acquire title to the deed, since his intent was not to obtain the deed?21 Or [shall we] perhaps [say] that his intent was to obtain the deed also?21 - He22 said to him: Tell me, Sir, could he need it to cover the mouth of his flask? - He23 replied: Yes indeed, [he could need it] to cover[ the flask].
Rabbah stated: If the pledge of an Israelite is in the hands of a proselyte [creditor], and the proselyte dies [without any legal issue] and another Israelite comes along and takes possession of it,20 it would be taken away from him, the reason being that as the proselyte has died, the lien he had upon the pledge has disappeared. But if a pledge of a proselyte [debtor] is in the hands of an Israelite, and the proselyte dies and another Israelite comes along and takes possession of it, the creditor would become owner of the pledge to the extent of the amount due to him, while the one who took possession of it would own the balance. Why should the premises [of the creditor where the pledge was kept] not render him the owner [of the whole pledge]? Did not R. Jose b. Hanina say that a man's premises effect a legal transfer [of ownerless property placed there] even without his knowledge? - It may be said that we are dealing here with a case where the creditor was not there.24 For it is only where he himself25 is there,24 in which case should he so desire he would be able to take possession of it,26 that his premises could [act on his behalf and] effect the transfer, whereas where he himself25 was absent, in which case were he to desire to acquire title to it26 he would have been unable to take possession of it, his premises could similarly not effect a transfer. But the law is that it is only where it [the pledge] was not [kept] in the [creditor's] premises that he would acquire no title to it.27
MISHNAH. IF A MAN DIGS A PIT IN PRIVATE GROUND AND OPENS IT ON TO A PUBLIC PLACE, OR IF HE DIGS IT IN PUBLIC GROUND AND OPENS IT ON TO PRIVATE PROPERTY, OR AGAIN, IF HE DIGS IT IN PRIVATE GROUND AND OPENS IT ON TO THE PRIVATE PROPERTY OF ANOTHER, HE BECOMES LIABLE28 [FOR ANY DAMAGE THAT MAY RESULT].
GEMARA. Our Rabbis taught: If a man digs a pit on private ground and opens it on to a public place, he becomes liable, and this is the Pit of which the Torah29 speaks. So R. Ishmael. R. Akiba, however, says: When a man abandons his premises without, however, abandoning his pit, this is the Pit of which the Torah29 speaks. Rabbah thereupon said: In the case of a pit on public ground there is no difference of opinion that there should be liability. What is the reason? - Scripture says, If a man open or if a man dig.29 Now, if for mere opening there is liability, should there not be so all the more in the case of digging? [Why then mention digging at all?] Scripture must therefore mean to imply that it is on account of the act of opening and on account of the act of digging that the liability is at all brought upon him.30 A difference arises
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(1) In accordance with the view of Rabbah.
(2) In which Rabbah and R. Hisda differ.
(3) And a miscarriage resulted.
(4) I.e. if the blow was given after the death of the proselyte.
(5) I.e., whether the mother acquires a title to the embryos on the death of her husband, the proselyte, or not.
(6) He therefore followed the view of the former Baraitha laying down liability.
(7) Stating exemption.
(8) I.e., no contradiction between the two Baraithas, which do not deal with the payment for the loss of the embryos but with the payment for the loss of the increment in the value of the woman herself due to the embryos.
(9) Maintaining that the payment for the loss of the increment in the value of the woman herself also belongs to the husband, so that where he was a proselyte dying without issue there would be no liability at all upon the defendant.
(10) According to whom the payment for the loss of the increment in the value of the woman herself has to be shared by the mother and father, so that where he was a proselyte dying without issue she will surely not forfeit her due, but as to the embryos, all agree that the woman acquires in no circumstance title to them.
(11) For since the mother is a joint plaintiff with her husband regarding this payment, where he was a proselyte dying without issue she will remain the sole plaintiff and thus be entitled to the full payment.
(12) Stating liability.
(13) Stating exemption.
(14) To which the mother was never a plaintiff.
(15) That payment should be made to the mother, in contradiction to the view of R. Hisda.
(16) [That she should have the whole where the proselyte husband is no longer alive.]
(17) Even during the lifetime of her husband.
(18) At the demise of the proselyte without any legal issue.
(19) V. p. 282, n. 10.
(20) V. p. 282, n. 11.
(21) I.e., the mere value of the paper of the deed.
(22) R. Nahman.
(23) R. Yeba.
(24) [I.e., 'in town' (Rashi), or (according to Tosaf.) 'beside the premises,' v. B.M. 11a: 'non-guarded premises confer title only when the owner is standing beside them.']
(25) I.e., the owner of the premises.
(26) I.e., the pledge or any other ownerless article.
(27) For where the pledge was kept in the creditor's premises at the time of the demise of the proselyte without issue, the creditor would acquire title to the whole of it, though the creditor were out of town (Rashi). [Tosaf. renders, 'where the creditor was not beside the premises.']
(28) V. Gemara.
(29) Ex. XXI, 33-34
(30) I.e. where the ground of the pit that did the actual damage was not his at all.
Talmud - Mas. Baba Kama 50a
only in regard to a pit on his own premises. R. Akiba maintains that a pit in his own premises should also involve liability, since it says, The owner of the pit,1 which shows that the Divine Law is speaking of a pit which has an owner; R. Ishmael on the other hand maintaining that this simply refers to the perpetrator of the nuisance.2 But what then did R. Akiba mean by saying, '[When a man abandons his premises without, however, abandoning his pit] - this is the Pit stated in the Torah'?3 - [He meant that] this is the Pit with reference to which Scripture first began to lay down4 the rules for compensation [in the case of Pit]. R. Joseph said: in the case of a pit on private ground there is no difference of opinion that there should be liability. What is the reason? Divine Law says, the owner of the pit, to show that it is a pit having an owner with which we are dealing.5 They differ only in the case of a pit in public ground. R. Ishmael maintains that a pit on public ground should also involve liability, since it says, 'If a open . . . and if a man dig . . .' Now, if for mere opening there is liability, should there not all the more be so in the case of digging? Scripture therefore must mean to imply that it is on account of the act of opening and on account of the act of digging that the liability is at all brought upon him.6 And R. Akiba? [He might reply that] both terms7 required to be explicitly mentioned. For if the Divine Law had said only 'If a man open' it might perhaps have been said that it was only in the case of opening that covering up would suffice [as a precaution], whereas in the case of digging covering up would not suffice, unless the pit was also filled up. If [on the other hand] the Divine Law had said only If a man dig it might have been said that it was only where he dug it that he ought to cover it, as he actually made the pit, whereas where he merely opened it, in which case he did not actually make the pit, it might have been thought that he was not bound even to cover it. Hence it was necessary to tell us [that this was not the case but that the two actions are on a par in all respects]. But what then did R. Ishmael mean by saying, [If a man digs a pit in private ground and opens it on to a public place, he comes liable] and this is the Pit of which the Torah8 speaks?9 - This is the Pit with reference to which Scripture opens10 the rules concerning damage [caused by Pit].
An objection was raised [from the following]: If a man digs a pit in public ground and opens it to private property there is no liability, in spite of the fact that he has no right to do so as hollows must not be made underneath a public thoroughfare. But if he digs pits, ditches or caves in private premises and opens them on to a public place, there would be liability. If, again, a man digs pits in private ground abutting on a public thoroughfare, such as e.g., workmen digging foundations, there would be no liability. R. Jose b. Judah, however, says there is liability unless he makes a partition of ten handbreaths in height or unless he keeps the pit away from the place where men pass as well as from the place where animals pass at a distance of at least four handbreadths.11 Now this is so only in the case of foundations,12 but were the digging made not for foundations there would apparently be liability. In accordance with whose view13 is this? All would be well if we follow Rabbah, since the opening clause14 would be in accordance with R. Ishmael and the later clause15 in accordance with R. Akiba. But if we follow R. Joseph, it is true there would be no difficulty about the concluding clause15 which would represent a unanimous view, but what about the prior clause14 which would be in accordance neither with R. Ishmael nor with R. Akiba?16 - R. Joseph, however, might reply: The whole text represents a unanimous view, for the prior clause deals with a case where the man abandoned neither his premises nor his pit.17 R. Ashi thereupon said: Since according to R. Joseph you have explained the text to represent a unanimous view, so also according to Rabbah you need not interpret it as representing two opposing views of Tannaim. For as the prior clause14 was in accordance with R. Ishmael, the later clause would also be in accordance with R. Ishmael; and the statement that this ruling holds good only in the case of foundations whereas if the digging is not for foundations there would be liability, refers to an instance where e.g., the digging was widened out into actual public ground.18
An objection was [again] raised: 'If a man digs a pit in private ground and opens it on to a public place he becomes liable, but if he digs it in private ground abutting on a public thoroughfare he would not be liable.' No difficulty arises if we follow Rabbah, since the whole text19 is in accordance with R. Ishmael. But if we follow R. Joseph, no difficulty, it is true, arises in the prior clause20 which would be in accordance with R. Ishmael, but what about the concluding clause19 which would be in accordance neither with R. Ishmael nor with R. Akiba?21 - He might reply that it deals with digging for foundations,22 in regard to which the ruling is unanimous.
Our Rabbis taught:23 If a man dug [a well] and left it open, but transferred it to the public,24 he would be exempt,25 whereas if he dug it and left it open without dedicating it to the public he would be liable. Such also was the custom of Nehonia the digger of wells, ditches and caves; he used to dig wells26 and leave them open and dedicate them to the public.24 When this matter became known to the Sages they observed, 'This man27 has fulfilled this Halachah'. Only this Halachah and no more? - Read therefore 'this Halachah also'.
Our Rabbis taught: It happened that the daughter of Nehonia the digger of wells once fell into a deep pit. When people came and informed R. Hanina b. Dosa28 [about it], during the first hour he said to them 'She is well', during the second he said to them, 'She is still well', but in the third hour he said to them, 'She has by now come out [of the pit].' They then asked her, ' Who brought you up?' - Her answer was: 'A ram29 [providentially] came to my help30 with an old man31 leading it.' They then asked R. Hanina b. Dosa, 'Are you a prophet?' He said to them, 'I am neither a prophet nor the son of a prophet. I only exclaimed: Shall the thing to which that pious man has devoted his labour become a stumbling-block to his seed?'32 R. Aha, however, said; Nevertheless, his33 son died of thirst, [thus bearing out what the Scripture] says, And it shall be very tempestuous round about him,34 which teaches that the Holy One, blessed be He, is particular with those round about Him35 even for matters as light as a single hair.36 R. Nehonia37 derived the same lesson from the verse,38 God is greatly to be feared in the assembly of the saints and to be had in reverence of all them that are about Him. R. Hanina said: If a man says that the Holy One, blessed be He, is lax in the execution of justice, his life shall be outlawed, for it is stated, He is the Rock, His work is perfect; for all His ways are judment.39 But R. Hana, or as others read R. Samuel b. Nahmani, said: Why is it written40
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(1) Ex. XXI, 34
(2) But did not mean the legal owner of it.
(3) Since even according to R. Akiba the Torah deals with Pit on public ground.
(4) In verse 34.
(5) [As against R. Ishmael who requires the pit itself to be abandoned.]
(6) V. p. 284, n. 4.
(7) Of opening and of digging.
(8) V. p. 284, n. 3.
(9) Since even according to R. Ishmael the Torah deals with Pit on private ground.
(10) I.e., in verse 33.
(11) Rashal reads 'cubits'.
(12) Which is a general practice.
(13) Either with that of R. Ishmael or with that of R. Akiba.
(14) Stating exemption in the case of Pit open to private ground.
(15) Implying liability in the case of Pit on private ground.
(16) For they both according to R. Joseph maintain liability for Pit on private ground.
(17) In which case the defendant is entitled to put in a defence of trespass on his ground against the plaintiff.
(18) But if the digging was not widened out into actual public ground there would be no difference as to the purpose of the digging for there would be exemption in all cases.
(19) V. p. 286, n. 5.
(20) Stating liability in the case of Pit on public ground.
(21) V. p. 286, n. 7.
(22) V. p. 286, n. 3.
(23) Tosef. B.K. VI.
(24) For the general use of the water.
(25) As it became communal property.
(26) Thus to provide water for the pilgrims who travelled to Jerusalem on the three festivals in accordance with Ex. XXXIV, 23.
(27) I.e. Nehonia.
(28) [On R. Hanina b. Dosa as a 'man of deeds' whose acts were viewed as acts of human love and sympathy rather than miracles, v. BŸchler, Types, p. 100ff.]
(29) The ram of Isaac, cf. Gen. XXII,13 and R.H. 16a.
(30) Lit., 'was appointed for me.'
(31) Abraham.
(32) V. J. Shek. V. 1.
(33) Nehonia's.
(34) Ps. L, 3.
(35) I.e. the pious devoted to Him.
(36) The Hebrew term for 'tempestuous' is homonymous with that for 'hair'.
(37) 'Hanina' occurs in Yeb. 121b.
(38) Ps. LXXXIX, 8.
(39) Deut. XXXII, 4.
(40) Ex. XXXIV, 6.
Talmud - Mas. Baba Kama 50b
'Long of sufferings'1 and not 'Long of suffering'?2 [It must mean,] 'Long of sufferings' to both the righteous3 and the wicked.4
Our Rabbis taught: A man should not remove stones from his ground on to public ground. A certain man5 was removing stones from his ground on to public ground when a pious man found him doing so and said to him, 'Fool,6 why do you remove stones from ground which is not yours to ground which is yours?' The man laughed at him. Some days later he had to sell his field, and when he was walking on that public ground he stumbled over those stones. He then said, 'How well did that pious man say to me, "Why do you remove stones from ground which is not yours to ground which is yours?"'
MISHNAH. IF A MAN DIGS A PIT ON PUBLIC GROUND AND AN OX OR AN ASS FALLS INTO IT, HE BECOMES LIABLE. WHETHER HE DUG A PIT, OR A DITCH, OR A CAVE, TRENCHES, OR WEDGE-LIKE DITCHES, HE WOULD BE LIABLE. IF SO WHY IS PIT MENTIONED [IN SCRIPTURE]?7 [TO TEACH THAT] JUST AS PIT CAN CAUSE DEATH BECAUSE IT IS USUALLY TEN HANDBREADTHS [DEEP], SO ALSO ALL [OTHER SIMILAR NUISANCES] MUST BE SUCH AS CAN CAUSE DEATH, [I.E.] TEN HANDBREADTHS [DEEP]. WHERE, HOWEVER, THEY WERE LESS THAN TEN HANDBREADTHS [DEEP], AND AN OX AR AN ASS FELL INTO THEM AND DIED, THERE WOULD BE EXEMPTION.8 IF THEY WERE ONLY INJURED BY THEM, THERE WOULD BE LIABILITY.
GEMARA. Rab stated: The liability imposed by the Torah in the case of Pit9 is for the unhealthy air created by excavation, but not for the blow given by it. It could hence he inferred that he held that so far as the blow was concerned it was the ground of the public that caused the damage.10 Samuel, however, said: For the unhealthy air, and, ˆ plus forte raison, for the blow. And should you say that it was for the blow only that the Torah imposed liability but not for the unhealthy air, (you have to bear in mind that] for the Torah11 a pit is a pit, even where it is full of pads of wool. What is the practical difference between them? - There is a practical difference between them. Where a man made a mound on public ground: according to Rab there would in the case of a mound be no liability,12 whereas according to Samuel there would in the case of a mound also be liability. What was the reason of Rab?13 Because Scripture says, And it fall,14 [implying that there would be no liability] unless where it fell in the usual way of falling.15 Samuel [on the other hand maintained that the words] And it fall imply anything [which is like falling].16
We have learnt: IF SO WHY WAS PIT MENTIONED [IN SCRIPTURE]?17 [TO TEACH THAT] JUST AS PIT CAN CAUSE DEATH BECAUSE IT IS USUALLY TEN HANDBREADTHS [DEEP], SO ALSO ALL [OTHER SIMILAR NUISANCES] MUST BE SUCH AS CAN CAUSE DEATH, [I.E.] TEN HANDBREADTHS [DEEP]. Now this creates no difficulty if we follow Samuel, since the phrase SO ALSO ALL would imply mounds also. But according to Rab, what does the phrase SO ALSO ALL imply?17 - It was meant to imply trenches and wedge-like ditches. But are trenches and wedge-like ditches not explicitly stated in the text? - They were [first] mentioned and then the reason for them explained.
What need was there to mention all the things specified in the text? - They all required [to be explicitly stated]. For if only a pit had been explicitly mentioned, I might have said that it was only a pit where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to cause death] on account of its being small and circular, whereas in the case of a ditch which is long I might have thought that [even] in ten handbreadths of depth there would still not be [sufficient] unhealthy air [to cause death]. If [again] only a ditch had been mentioned explicitly, I might have said that it was only a ditch where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to cause death] on account of its being small, whereas in a cave which is square I might have thought that [even] in ten handbreadths of depth there would still not be [sufficient] unhealthy air [to cause death]. Again, if only a cave had been mentioned explicitly, I might have said that it was only a cave where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to kill] on account of its being covered, whereas in the case of trenches which are uncovered I might have thought that [even] in ten handbreadths [of depth] there would still not be [sufficient] unhealthy air [to cause death]. Further, if only trenches had been stated explicitly, I might have said that it was only trenches where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to cause death] on account of their not being wider at the top than at the bottom, whereas in wedgelike ditches which are wider at the top than at the bottom I might have said that [even] in ten handbreadths [of depth] there would still not be [sufficient] unhealthy air [to cause death]. It was therefore necessary to let us know [that all of them are on a par in this respect].18
We have learnt: WHERE, HOWEVER, THEY WERE LESS THAN TEN HANDBREADTHS [DEEP] AND AN OX OR AN ASS FELL INTO THEM AND DIED, THERE WOULD BE EXEMPTION.19 IF THEY WERE ONLY INJURED BY THEM THERE WOULD BE LIABILITY. Now what could be the reason that where an ox or an ass fell into them and died there would be exemption? Is it not because the blow was insufficient [to cause death]?20 - No, it is because there was no unhealthy air there. But if so, why where the animal was merely injured in such a pit should there be liability, seeing that there was no unhealthy air there? - I might reply that there was not unhealthy air there sufficient to kill, but there was unhealthy air there sufficient to injure.
A certain ox fell into a pond which supplied water to the neighbouring fields. The owner hastened to slaughter it, but R. Nahman declared it trefa.21 Said R. Nahman: 'Had the owner of this ox taken a kab22 of flour and come to the house of study, where he would have learnt that "If the ox lasted at least twenty-four hours [before being slaughtered] it would be kasher",23 I would not have caused him to lose the ox which was worth several kabs.' This seems to show that R. Nahman held that a deadly blow can be inflicted even by an excavation less than ten handbreadths deep.24
Raba raised an objection to R. Nahman: WHERE, HOWEVER, THEY WERE LESS THAN TEN HANDBREADTHS [DEEP] AND AN OX OR AND ASS FELL INTO THEM AND DIED, THERE SHOULD BE EXEMPTION. Now, is not the reason of this [exemption] because there was no deadly blow there?25
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(1) אפים, the plural.
(2) אף, the singular.
(3) By not rewarding them in this world for their good deeds.
(4) By not punishing them in this world for their wicked deeds.
(5) B.K. Tosef. II.
(6) Raca.
(7) Ex. XXI, 33.
(8) As the death of the animal should in this case not be wholly imputed to the pit.
(9) On public ground.
(10) For which the defendant has not to be liable.
(11) Lit., 'the Torah testified that etc.', since 'pit' is left undefined.
(12) As no unhealthy air was created and the blow was given by the public ground.
(13) Is not a mound a nuisance?
(14) Ex. XXI, 33.
(15) Excepting thus a mound.
(16) I.e. including mounds.
(17) Since according to him there would be no liability for mounds.
(18) That the depth of ten handbreadths is sufficient to create enough unhealthy air to cause death in any one of these excavations.
(19) V. p. 289, n. 2.
(20) Though the air was not less unhealthy there will be no liability, thus contradicting the views of both Rab and Samuel.
(21) I.e. forbidden to be eaten in accordance with dietary laws; for the term cf. Ex. XII, 30 and Glossary.
(22) [(V. Glos.), i.e., provision for his journey.]
(23) Cf. Hul. 51b.
(24) For the pond in which the ox fell was only six handbreadths deep.
(25) Thus disproving the view of R. Nahman.
Talmud - Mas. Baba Kama 51a
No; it is because there was no unhealthy air there. But if so, why where it was injured in such a pit would there be liability since there was no unhealthy air there? - He replied: There was not unhealthy air there sufficient to kill, but there was unhealthy air there enough to injure.
A further objection was raised: The scaffold [for stoning] was of the height of two men's statures.1 And it has been taught regarding this: When you add the stature of the convict there will be there the height of three statures. Now, if you assume that a fall can be fatal even from a height of less than ten handbreadths, why was such a great height as that necessary? - But even according to your argument, why not make the height ten handbreadths only? This must therefore be explained in accordance with R. Nahman, for R. Nahman stated that Rabbah b. Abbuha had said: Scripture says, And thou shalt love thy neighbour as thyself,2 [which implies], 'thou shalt choose for a convict the easiest possible execution.'3 But if so, why not raise it still higher? - He would then become disfigured altogether.
A further objection was raised: If any man fall from thence;4 'from thence' but not into it. How is that so? Where the public road was ten handbreadths higher than the roof, and a man might fall from the former on to the latter, there is no liability [in respect of a parapet], but if the public road was ten handbreadths lower than the roof, and a man might fall from the latter on to the former, that there will be liability [in respect of a parapet]. Now, if you assume that a fall could be fatal even from a height of less than ten handbreadths, why should it be necessary to have the public road lower by [full] ten handbreadths?5 - It was said in answer:6 There is a difference in the case of a house, since if it is less than ten handbreadths [in height] it could not be designated 'house'.7 But if so, even now when from the outside it is ten handbreadths high, were you to deduct from that the ceiling and the plaster, from the inside it would surely not have the height of ten handbreadths?8 - To this it was said in reply: [We are dealing here with a case] where, e.g., the owner of the house sank the floor from within.9 But if so, even where the height from the outside was not ten handbreadths, it could still be possible that from the inside it was ten handbreadths, as for instance where he sank the floor still more? - The reason of R. Nahman must therefore have been this: he considered that from the abdomen of the ox to the level of the ground must be [at least] four handbreadths, and the pond feeding the fields must be six handbreadths;10 this makes ten handbreadths, with the result that when the ox received the blow it was from the height of ten handbreadths that the blow was given.11 But why then does the Mishnah say: JUST AS PIT CAN CAUSE DEATH BECAUSE IT IS USUALLY TEN HANDBREADTHS [DEEP], SO ALSO ALL [OTHER SIMILAR NUISANCES] MUST BE SUCH AS CAN CAUSE DEATH, [I.E.] TEN HANDBREADTHS [DEEP]? Should not six handbreadths be enough?12 - We could reply that the Mishnah deals with a case where the ox rolled itself over into the pit.13 MISHNAH. WHERE THERE IS A PIT [IN CHARGE OF] TWO PARTNERS, IF THE FIRST ONE PASSES BY AND DOES NOT COVER IT, AND THE SECOND ONE ALSO [PASSES BY AND DOES] NOT COVER IT,14 THE SECOND WOULD BE LIABLE.
GEMARA. I would here ask, how can we picture a pit in charge of two partners? True, we can understand this if we take the view of R. Akiba, who said that a pit in private ground would involve liability,15 in which case such a pit could be found where they jointly own the ground and also a pit in it, and while they abandoned the ground [round about],16 they did not abandon the pit itself. But if we take the view that a pit on private ground would involve exemption,15 in which case liability could be found only where it was on public ground, how then is it possible for a pit in public ground to be in charge of two partners?17 [For if you say that] both of them appointed an agent and said to him: 'Go forth and dig for us', and he went and dug for them, [we reply that] there can be no agency for a sinful act.18 If again you say that the one19 dug five handbreadths and the other one19 dug another five handbreadths, [then we would point out that] the act of the former has become eliminated?20 It is true that according to Rabbi,21 we can imagine a pit [in charge of two partners] in respect of mere injury.22 But in respect of death even according to Rabbi, or in respect whether of death or of mere injury22 according to the Rabbis,21 where could we find such a pit? - R. Johanan thereupon said: [We find such a pit] where e.g., both of them removed a layer of ground at the same time and thereby made the pit ten handbreadths deep.23
What opinion of Rabbi and what opinion of the Rabbis [was referred to above]? - It was taught:24 Where one had dug a pit of nine handbreadths [deep] and another one came along and completed it to a depth of ten handbreadths, the latter would be liable.25 Rabbi says: The last one is responsible in26 cases of death,27 but both of them in cases of injury.28 What was the reason of the Rabbis? - Scripture says; If a man shall open . . . or if a man shall dig . . .29 Now if for mere opening there is liability, should there not be all the more so in the case of digging? [Why then mention digging at all?] It must be in order to lay down the rule [also] for [the case of] one person digging [in a pit] after another,30 [namely,] that [in such a case] the act of the one who dug first31 is regarded as eliminated.32 And Rabbi?33 - He might rejoin that it was necessary to mention both terms,34 as explained elsewhere.35 And do not the Rabbis also hold that it was necessary?35 - The reason of the Rabbis must therefore have been that Scripture says, If a man shall dig [indicating that] one person but not two persons [should be liable for one pit]. Rabbi, on the other hand, maintained that [the expression 'a man'] was needed to teach that if a man shall dig a pit [there would be liability] but not where an ox [dug] a 'pit'.36 And the Rabbis?37 [They might point out] 'a man . . . a pit' is inserted twice [in the same context].29 And Rabbi? - He [could rejoin that] having inserted these words in the first text, Scripture retained them in the second also.
Now [according to the Rabbis who hold that Scripture intended to make only one person liable], whence could it be proved that it is the last person [that dug] who should be liable? Why not make the first person [who dug] liable? - Let not this enter your mind, since Scripture has stated, And the dead shall be his38 [implying that the liability rests upon him] who made the pit capable of killing. But was not this [verse] 'And the dead shall be his' required for the lesson drawn by Raba? For did Raba not say:39 If a sacred ox which has become disqualified [for the altar]40 falls into a pit, there would be exemption, as Scripture says 'And the dead beast shall be his' [implying that it is only] in the case of an ox whose carcass could be his41 [that there would be liability]?42 - To this I might rejoin: Can you not [at the same time] automatically derive from it that it is the man who made the pit capable of killing with whom we are dealing?
Our Rabbis taught: If one person has dug a pit to a depth of ten handbreadths and another person comes along and completes it to a depth of twenty, after which a third person comes along and completes it to a depth of thirty, they all would be liable. A contradiction was here pointed out:43 If one person dug a pit ten handbreadths deep, and another came along and lined it with plaster and cemented it,44 the second would be liable.
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(1) Sanh. 45a.
(2) Lev. XIX, 18.
(3) V. Sanh. ibid.
(4) Deut. XXII, 8.
(5) Why should there be no liability to construct a parapet even where the public road was lower by less than ten handbreadths.
(6) Lit., 'He said to him'.
(7) Cf. B.B. 7a.
(8) In which case it would still not be termed house. Why then a parapet?
(9) So that the vertical height inside was not less than ten handbreadths.
(10) V. p. 292, n. 2.
(11) And as a fall from the height of ten handbreadths can be fatal R. Nahman had to declare the ox trefa.
(12) For from the abdomen of the ox to the level of the ground there are surely four handbreadths.
(13) But where the ox fell while walking, even where the pit was only six handbreadths deep the blow would be fatal.
(14) And damage occurred later.
(15) Supra 50a.
(16) In which case they cannot plead trespass on the part of the plaintiff as defence.
(17) For it is the one who dug it that should be responsible.
(18) It will accordingly be the agent and not the principal who will have to be subject to the penalty; cf. B.M. 10b.
(19) Partner.
(20) For it was the latter's act that made the pit complete and capable of causing all kinds of damage.
(21) V. p. 295.
(22) V. the discussion later.
(23) In which case they both made it complete and capable of causing all kinds of damage.
(24) V. supra 10a.
(25) V. p. 294, n. 7.
(26) Lit., 'after the last for'.
(27) For without the latter the pit would have been unable to cause death.
(28) For even without the latter the pit would have been able to cause injury.
(29) Ex. XXI, 33.
(30) The verse would thus imply a case where after one man opened the pit of nine handbreadths deep another man dug an additional handbreadth and thus made it a pit of ten handbreadths deep.
(31) The nine handbreadths.
(32) So that he should become released from any responsibility.
(33) How does he interpret the verse?
(34) Of opening and of digging.
(35) Supra p. 285.
(36) V. supra p. 272.
(37) Whence do they derive this latter deduction?
(38) Ex. XXI, 34.
(39) Infra p. 310.
(40) As it became blemished.
(41) I.e., could be used by him as food for dogs and like purposes.
(42) Excepting thus a scared ox falling into a pit and dying there, as no use could lawfully be made of its carcass.
(43) From the following Baraitha.
(44) Who thus made its width smaller and the air closer and more harmful.
Talmud - Mas. Baba Kama 51b
Are we to say that the former statement1 follows the view of Rabbi2 whereas the latter3 follows that of the Rabbis?3 - R. Zebid thereupon said that the one statement as well as the other could be regarded as following the view of the Rabbis.3 For even there [in their own case] the Rabbis would not say that the last digger should be liable, save in a case where the first digger did not make the pit of the minimum depth capable of killing, whereas [in this case] where the first digger made the pit of the minimum depth capable of killing even the Rabbis would agree that all the diggers should be liable.4 But, [what of] the case of [the second] lining it with plaster and cementing it,5 where the first digger made the pit of the minimum depth capable of killing, and yet it was said that the second would be liable? - It may be answered that the case there was where the unhealthy air was not sufficient to kill,6 and it was the other person who, by diminishing the size of the pit increased the dangerous effect of the air so as to make it capable of killing. Some report that R. Zebid said that the one statement as well as the other could he regarded as following the view of Rabbi.7 About the statement that they would all be liable there is [on this supposition] no difficulty. And as for the other statement that the second digger would be liable, this refers to a case where e.g., the unhealthy air was sufficient neither to kill nor to injure, and it was the other person who by diminishing the size of the pit increased the dangerous effect of the air so as to make it capable of both killing and injuring.8
Raba said: The case of a man putting a stone round the mouth of a pit and thereby completing it to a depth of ten handbreadths is one which brings us face to face with the difference of opinion between Rabbi and the Rabbis.9 Is this not obvious? - You might perhaps think that [the difference of opinion] was only where the increase in depth was made at the bottom, in which case it was the unhealthy air added by the second digger that caused death, whereas where the increase was made from the top,10 in which case it was not the unhealthy air added by him that caused the death, it might have been said that there was no difference of opinion.11 We are therefore told12 [that this is not the case].
Raba raised the question: Where [the second comer] filled in the one handbreadth [which he had previously dug] with earth, or where he removed the stones [which he had previously put round the mouth of the pit], what would be the legal position? Are we to say that he has undone what he had previously done,13 or rather perhaps that the act of the first digger had already been merged [in the act of the second] and the whole pit had since then been in the charge of the second? - Let this remain undecided.
Rabbab b. Bar Hanah said that Samuel b. Martha stated: Where a pit is eight handbreadths deep, but two handbreadths out of these are [full] of water, there would be liability,14 the reason being that each handbreadth [full] of water is equivalent [in its capacity to cause death] to two handbreadths without water. The question was thereupon raised: Where a pit is of nine handbreadths but one of these is full of water, what should be the law? Should we say that since there is not so much water there, there is not [so much] unhealthy air,15 or rather that since the pit is deeper there is there [a quantity of] unhealthy air?16 [Again], where the pit is of seven handbreadths and out of these three handbreadths are full of water, what would be the legal position? Should we say that since there is much water there, the unhealthy air is there [in proportion],16 or rather that since it is not deep, there is no [great quantity of] unhealthy air there?15 - Let these queries remain undecided.
R. Shezbi inquired of Rabbah: If the second digger makes it wider, what would be the law? - He replied: Does he not thereby diminish the unhealthy air?17 Said the other to him: On the contrary, does he not increase the risk of injury?18 - R. Ashi thereupon said: We have to consider whether [the animal] died through bad air, in which case [the second digger could not be responsible as] he diminished the unhealthy air, or whether it died through the fall, in which case [the second digger should be responsible as] he increased the risk of injury. Some report that R. Ashi said: We have to see whether [the animal] fell from this side [which was extended], in which [case the second digger would be responsible as] he increased the risk of injury, or whether it fell from the other side, in which case [the second digger would not be to blame, as] he diminished the unhealthy air in the pit.
It was stated: In regard to a pit as deep as it is wide [there is a difference of opinion between] Rabbah and R. Joseph, both of whom made their respective statements in the name of Rabbah b. Bar Hanah who said it in the name of R. Mani. One said that there is always unhealthy air in a pit unless where its width is greater than its depth,19 the other said that there could never be unhealthy air in a pit unless where its depth was greater than its width.20
IF THE FIRST ONE21 PASSED BY AND DID NOT COVER IT . . . From what point of time will the first one21 be exempt from responsibility? - [There was a difference of opinion here between] Rabbah and R. Joseph, both of whom made their respective statements in the name of Rabbah b. Bar Hanah who said it in the name of R. Mani. One said, from the moment when the first partner leaves the second in the act of using the well; the other, from the moment when he hands over the cover of the well to him. [The same difference22 is found] between the following Tannaim: If one [partner] was drawing water from a well and the other came along and said to him, 'Leave it to me as I will also draw water', as soon as the first left the second in the act of using it he would become exempt [from any responsibility]. R. Eliezer b. Jacob said: [The exemption commences] from the time that the first hands over the cover to the second. In regard to what principle do they differ? - R. Eliezer b. Jacob held that there is bererah23 [so that] the one [partner] was drawing water from his own24 and so also the other [partner] was drawing the water from his own,25 whereas the Rabbis maintained that there is no bererah.26 Rabina thereupon said: They27 have followed here the same line of reasoning as elsewhere, as we have learnt, Where partners have vowed not to derive benefit from one another they would not be allowed to enter premises jointly owned by them. R. Eliezer b. Jacob, however, says: The one partner enters his own and the other partner enters his own.28 [Now, it was asked there,] in regard to what principle did they differ? - R. Eliezer b. Jacob held that there is bererah so that the one partner would thus be entering his own and the other partner would similarly be entering his own, whereas the Rabbis maintained that there is no bererah.
R. Eleazar said: If a man sells a pit to another, as soon as he hands over the cover of the pit to him, the conveyance is complete. What are the circumstances? If money was paid, why was the conveyance not completed by the money?29 If possession was taken [of the pit], why was the conveyance not completed by possession?29 - In fact, we suppose possession to have been taken [of the pit], and it was still requisite for the seller to say to the buyer, 'Go forth, take possession and become the owner',30 but as soon as he handed over the cover to him, this was equivalent [in the eyes of the law] to his saying to him, 'Go forth, take possession and complete the conveyance.'
R. Joshua b. Levi said: If a person sells a house to another
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(1) Making them all liable.
(2) Who in the case of mere injury makes them all liable.
(3) Making the second liable in all cases.
(4) Hence the liability upon all of them in the former Baraitha.
(5) V. p. 296, n. 7.
(6) As where its width was more than its depth.
(7) V. p. 296, n. 9.
(8) In which case it stands to reason that the second person only should be liable.
(9) As to whether the second person or both of them would be liable in cases of injury.
(10) As in the case stated by Raba.
(11) And that according to both Rabbi and the Rabbis the second person should not be liable.
(12) By Raba.
(13) And thus released himself from further responsibility.
(14) If an animal fell in and was killed.
(15) And should therefore be subject to the law applicable to a pit of less than ten handbreadths deep.
(16) And should thus be equal to that of a pit ten handbreadths deep.
(17) What liability had he thus incurred?
(18) On account of which he should surely bear responsibility.
(19) Implying that where the width is just equal to the depth there would still be unhealthy air there.
(20) But where the depth just equalled the width there would be no unhealthy air there.
(21) Of the partners.
(22) Between Rabbah and R. Joseph.
(23) I.e., retrospective designation, so that a subsequent selection or definition determines retrospectively a previous state of affairs that was undefined in its nature.
(24) Though this water which he subsequently drew was by no means defined at the time when the partnership was formed.
(25) So that one partner does not use the water of the other to become thereby a borrower of it and thus enter into responsibility regarding it.
(26) So that the water drawn by each of them consists of two parts: one from his own and the other from that of his fellow-partner, with reference to which he in the position of borrower, assuming thus full responsibility also for the part of the partner who is the lender.
(27) The Rabbis and R. Eliezer b. Jacob.
(28) And are consequently not deriving any benefit from one another. (Ned. 45b).
(29) In accordance with Kid. I, 5.
(30) B.B. 53a.
Talmud - Mas. Baba Kama 52a
as soon as he hands over the key to him, the conveyance is complete. What are the circumstances? If money was previously paid, why was the conveyance not completed by the money? If possession was taken, why was the conveyance not completed by possession? - We suppose that in fact possession was taken [of the house], and it was still requisite for the seller to say to the buyer, 'Go forth, take possession and become the owner', but as soon as he handed over the key to him, this was equivalent [in the eye of the law] to his saying to him, 'Go forth, take possession and complete the conveyance.'
Resh Lakish said in the name of R. Jannai: If a man sells a herd to his neighbour, as soon as he has handed over the mashkokith1 to him, the conveyance is complete. What are the circumstances? If possession by pulling [has already taken place], why was the conveyance not completed by the act of pulling? If delivery [of the flock has already taken place], why was the conveyance not completed by the act of delivery?2 - We suppose in fact that possession by pulling [has already taken place], and it was still necessary for the seller to say to the buyer, 'Go forth, take possession by pulling and become the owner,'3 but as soon as he handed over the mashkokith to him, this was equivalent [in the eye of the law] to his saying, 'Go forth, take possession by pulling and complete the conveyance.' What is mashkokith? - Here4 they explained it: 'The bell'. R. Jacob, however, said: 'The goat that leads the herd.' So too a certain Galilean5 in one of his discourses before R. Hisda [said] that when the shepherd becomes angry with his flock he appoints for a leader one which is blind.
MISHNAH. IF THE FIRST ONE6 COVERED IT AND THE SECOND ONE CAME ALONG AND FOUND IT OPEN AND [NEVERTHELESS] DID NOT COVER IT, THE SECOND WOULD BE LIABLE. IF [AN OWNER OF A PIT] HAD COVERED IT PROPERLY, AND AN OX OR AN ASS [NEVERTHELESS] FELL INTO IT AND WAS KILLED, HE WOULD BE EXEMPT.7 BUT IF HE DID NOT COVER IT PROPERLY, AND AN OX OR ASS FELL INTO IT AND WAS KILLED, HE WOULD BE LIABLE. IF IT FELL FORWARD, [BEING FRIGHTENED] ON ACCOUNT OF THE NOISE OF DIGGING, THERE WOULD BE LIABILITY, BUT IF IT FELL BACKWARD ON ACCOUNT OF THE NOISE OF DIGGING, THERE WOULD BE EXEMPTION.8 IF AN OX FELL INTO IT TOGETHER WITH ITS IMPLEMENTS WHICH THEREBY BROKE, [OR] AN ASS TOGETHER WITH ITS BAGGAGE WHICH WAS THEREBY TORN, THERE WOULD BE LIABILITY FOR THE BEAST BUT EXEMPTION AS REGARDS THE INANIMATE OBJECTS.9 IF THERE FELL INTO IT AN OX, DEAF, ABNORMAL OR SMALL,8 THERE WOULD BE LIABILITY. BUT IN THE CASE OF A SON OR A DAUGHTER,10 A MANSERVANT OR A MAIDSERVANT, THERE WOULD BE EXEMPTION.9
GEMARA. Up to when would the first partner be exempt [altogether]? - Rab said: Until he had time to learn [that the cover had been removed]. Samuel said: Until there was time for people to tell him. R. Johanan said: Until there was time for people to tell him and for him to hire labourers and cut cedars to cover it [again].
IF [AN OWNER OF A PIT] HAD COVERED IT PROPERLY AND AN OX OR AN ASS [NEVERTHELESS] FELL INTO IT AND WAS KILLED, HE WOULD BE EXEMPT. But seeing that he covered it properly, how indeed could the animal have fallen [into it]? - R. Isaac b. Bar Hanah said: We suppose [the boards of the cover] to have decayed from within.11 It was asked: Suppose he had covered it with a cover which was strong enough for oxen but not strong enough for camels, and some camels happened to come first and weaken the cover and then oxen came and fell into the pit,12 what would be the legal position? - But I would ask what were the circumstances? If camels frequently passed there, should he not be considered careless?13 If camels did not frequently pass there, should he not be considered innocent?14 - The question applies to the case where camels used to pass occasionally, [and we ask]: Are we to say that since from time to time camels passed there he was careless,13 since he ought to have kept this in mind; or do we rather say that since at the time the camels had not actually been there, he was innocent? - Come and hear: IF HE HAD COVERED IT PROPERLY, AND AN OX OR AN ASS [NEVERTHELESS] FELL INTO IT AND WAS KILLED, HE WOULD BE EXEMPT.15 Now, what were the circumstances? If it was covered properly, both as regards oxen and as regards camels, how then did any one fall in there? Does it therefore not mean 'properly as regards oxen,
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(1) V. the discussion later.
(2) In accordance with Kid. I, 4; v. also supra 11b.
(3) V. p. 300, n. 5.
(4) In Babylon.
(5) Who delivered popular discourses at R. Hisda's; cf. Shab 88a.
(6) Of the partners.
(7) As he is surely not to blame.
(8) V. the discussion in Gemara.
(9) As supra 25b.
(10) Though a minor.
(11) But not noticeable from the outside.
(12) For if the camels had fallen in he would have certainly been liable.
(13) Even regarding oxen, for he should have thought of the possibility that camels might come first and weaken the cover and oxen would then fall in.
(14) As he is surely not to blame.
(15) V. p. 301, n. 7.
Talmud - Mas. Baba Kama 52b
but not properly as regards camels'?1 Again, if camels frequently passed, why should he be exempt where he had been so careless? If [on the other hand] camels did not frequently pass, is it not obvious [that he is exempt since] he was innocent? Did it therefore not refer to a case where camels used to pass occasionally, and it so happened that when camels passed they weakened the cover so that the oxen coming [later on] fell? And [in such cases] the text says, 'he would be exempt.' Does not this prove that since at that time camels had not actually been there he would be considered innocent? - I would say, no. For it might still [be argued that the pit had been covered] properly both as regards oxen and as regards camels; and as for the difficulty raised by you 'how did any one fall in there?', [this has already been removed by] the statement of R. Isaac b. Bar Hanah that [the boards of the cover] decayed from within.2
Come and hear: BUT IF HE DID NOT COVER IT PROPERLY AND AN OX OR AN ASS FELL INTO IT AND WAS KILLED, HE WOULD BE LIABLE. Now what were the circumstances? If you say that it means not properly covered as regards oxen', [which would of course imply] also 'not properly covered as regards camels', is it not obvious? Why then was it necessary to state liability? Does it not therefore mean 'that it was properly covered as regards oxen but not properly covered as regards camels'?1 [Again, I ask,] what were the circumstances? If camels frequently passed [is it not obvious that] he was careless? If [on the other hand] no camels were to be found there, was he not innocent? Does it not [therefore speak of a case] where camels used to arrive occasionally and it so happened that camels in passing had weakened the cover so that the oxen coming [later] fell in? And [in reference to such a case] the text states liability. Does this not prove that since from time to time camels did pass he should be considered careless as he ought to have borne this fact in mind? - In point of fact [I might reply, the text may still speak of a pit covered] 'properly' as regards oxen though 'not properly' as regards camels, and [of one where] camels frequently passed, and as for your question. '[Is it not obvious that] he was careless?' [the answer would be that] since the prior clause contains the words, 'If he covered it properly', the later clause has the wording, 'If he did not cover it properly'.3
Some report that certainly no question was ever raised about this, for since the camels used to pass from time to time he was certainly careless, as he ought to have borne this fact in mind. If a question was raised, it was on the following point: Suppose he covered it with a cover that was strong enough for oxen but not strong enough for camels and in a place where camels frequently passed, and it decayed from the inside, what should be the legal position? Should we say miggo,4 [i.e.,] since he had been careless with respect to camels he ought to be considered careless also with respect to the [accidental] decay; or should we not say miggo? - Come and hear; IF HE COVERED IT PROPERLY AND AN OX OR AN ASS FELL INTO IT AND WAS KILLED, HE WOULD BE EXEMPT. And it was stated in connection with this ruling that R. Isaac b. Bar Hanah explained that the boards of the cover had decayed from the inside. Now, what were the circumstances? If we say that it means 'properly covered as regards oxen' and also properly covered as regards camels', and that it had decayed from the inside, is it not obvious that there should be exemption? For indeed what more could he have done? Does it not mean, therefore, properly covered as regards oxen though not properly covered as regards camels', and in a place where camels frequently passed, and it so happened that the cover decayed from the inside? And [in such a case] the text states exemption. Does this not prove that we should not say miggo, [i.e.] since he was careless with respect to camels he ought to be considered careless with reference to the decay? - No, it might still [be argued that the pit was covered] properly as regards camels as well as oxen, and it so happened that it became decayed from the inside. And as for your question 'if it becomes decayed [from inside] what indeed should he have done?' [the answer would be that] you might have thought that he ought to have come frequently to the cover and knocked it [to test its soundness], and we are therefore told [that he was not bound to do this].
Come and hear; BUT IF HE DID NOT COVER IT PROPERLY, AND AN OX OR AN ASS FELL INTO IT AND WAS KILLED, HE WOULD BE LIABLE. Now, what were the circumstances? Should you say that it means 'not properly covered as regards oxen, [which would of course imply also] 'not properly covered as regards camels', why then was it necessary to state liability? Does it not therefore mean [that it was covered] properly as regards oxen but not properly as regards camels? But again if camels frequently passed there, [is it not obvious that] he was careless? If [on the other hand] no camels were to be found there, was he not innocent? Does it therefore not deal with a case where camels did frequently pass, but [it so happened] that the cover decayed from the inside? And [in such a case] the text states liability. Does this not prove that we have to say miggo, [i.e.,] since he had been careless with respect to camels, he should be considered careless also with reference to decay?5 - I would say, No. For it might still [be argued that the pit had been covered] properly as regards oxen but not properly as regards camels, and in a place where camels were to be found frequently, and [it happened that] camels had come along and weakened the cover so that when oxen subsequently came they fell into the pit. And as for your question, 'Is it not obvious that he was careless?' [the answer would be that] since the prior clause contained the words 'If he covered it properly', the later clause similarly uses the wording. 'If he did not cover it [properly]'.
Come and hear; 'If there fell into it an ox that was deaf, abnormal, small, blind or while it walked at night time, there would be liability.6 But in the case of a normal ox walking during the day there would be exemption.'7 Why so? Why not say that since the owner of the pit was careless with respect to a deaf animal he should be considered careless also with reference to a normal animal? Does not this show that we should not say miggo.' - This does indeed prove [that we do not say miggo].
IF IT FELL FORWARD etc. Rab said: 'FORWARD' means quite literally 'on its face',8 and 'BACKWARD' means also literally, 'on its back',9
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(1) And it so happened that camels weakened the cover, and when an ox or ass came later on it fell in.
(2) V. p. 302, n. 4.
(3) Though this ruling is obvious.
(4) Cf. Glos.
(5) no note.
(6) Infra 54b.
(7) As the owner of the pit could hardly have thought it likely that a normal ox walking during the day would fall into a pit.
(8) In which case it died from suffocation and there would be liability.
(9) Where the death could not have been caused by suffocation and there is therefore exemption.
Talmud - Mas. Baba Kama 53a
the fall in each case being into the pit. Rab thus adhered to his own view as [elsewhere]1 stated by Rab, that the liability in the case of Pit imposed by the Torah2 is for injury caused by the unhealthy air [of the pit] but not for the blow [given by it]. Samuel, however, said that where the ox fell into the pit, whether on its face or on its back, there would always be liability, since Samuel adhered to the view stated by him [elsewhere]1 that [the liability is] for the unhealthy air, and a plus forte raison for the blow. How then are we to understand [the words 'Where it fell] BACKWARD ON ACCOUNT OF THE NOISE OF DIGGING', in which case [we are told] there should be exemption? - As, for instance, where it stumbled over the pit and fell to the back of the pit, [i.e.,] outside the pit.3
An objection was raised [from the following: If it fell] inside the pit whether on its face or on its back there would be liability. Is not this a contradiction of the statement of Rab? - R. Hisda replied: Rab would admit that in the case of a pit in private ground4 there would be liability, as the plaintiff could argue against the defendant: 'Whichever way you take it, if the animal died through the unhealthy air, was not the unhealthy air yours? If [on the other hand] it died through the blow, was not the blow given by your ground?5 Rabbah, however, said: We are dealing here6 with a case where the animal turned itself over; it started to fall upon its face but [before reaching the bottom of the pit it] turned itself over and finally fell upon its back, so that the unhealthy air which affected it [at the outset] really did the mischief. R. Joseph. however, said that we are dealing here6 with a case where damage was done to the pit by the ox, i.e., where the ox made foul the water in the pit,7 in which case no difference could be made whether it fell on its face or on its back, as there would always be liability.
R. Hananiah learnt [in a Baraitha] in support of the statement of Rab: [Scripture says] And it fall,8 [implying that there would be no liability] unless where it fell in the usual way of falling.9 Hence the Sages said: If it fell forward on account of the noise of digging there would be liability, but if it fell backward on account of the noise of digging there would be exemption, though in both cases [it fell] into the pit.
The Master stated: Where it fell forward on account of the noise of digging there would be liability. But why not say that it was the digger who caused it?10 - R. Shimi b. Ashi thereupon said: This ruling is in accordance with R. Nathan, who stated that it was the owner of the pit who did the actual damage, and whenever no payment can be enforced from one [co-defendant] it is made up from the other11 as indeed it has been taught: 'If an ox pushes another ox into a pit, the owner of the ox is liable, while the owner of the pit is exempt. R. Nathan, however, said that the owner of the ox would have to pay a half [of the damages] and the owner of the pit would have to pay the other half.' But was it not taught: R. Nathan says: The owner of the pit has to pay three-quarters, and the owner of the ox one quarter? - There is no contradiction, as the latter statement refers to Tam12 and the former to Mu'ad.13 On what principle did he base his ruling in the case of Tam? If he held that this [co-defendant] should be considered [in the eye of the law] as having done the whole of the damage, and so also the other co-defendant as having done the whole of the damage, why should not the one pay half and the other also pay half? If [on the other hand] he held that the one did half the damage and the other one also did half the damage, then let the owner of the pit pay half [of the damages] and the owner of the ox a quarter,14 while the remaining quarter will be lost to the plaintiff? Raba thereupon said: R. Nathan was a judge, and went down to the depth of the law:15 He did in fact hold that the one was considered as having done the whole of the damage and so also the other was considered as having done the whole of the damage; and as for your question 'Why should the one not pay half and the other half?' [he could answer] because the owner of the ox16 could say to the owner of the pit, 'What will this your joining me [in the defence] benefit me?'17 Or if you wish you may [alternatively] say that R. Nathan did in fact hold that the one did half of the damage and the other did half of the damage, and as for your question, 'Why not let the owner of the pit pay half and the owner of the ox a quarter while the remaining quarter will be lost to the plaintiff?' he might answer, because the owner of the killed ox would be entitled to say to the owner of the pit, 'As I have found my ox in your pit, you have killed it. Whatever is paid to me by the other defendant I do not mind being paid [by him], but whatever is not paid to me by him, I will require to be paid by you.'18
Raba said: If a man puts a stone near the mouth of a pit [which had been dug by another person] and an ox coming along stumbles over the stone and falls into the pit, we are here brought face to face19 with the difference of opinion between R. Nathan and the Rabbis.20 But is this not obvious? - You might perhaps have said that [the difference of opinion was confined to that case] where the owner of the pit could say to the owner of the ox, 'Had not my pit been there at all, your ox would in any case have killed the other ox,' whereas in this case the person who put the stone [near the pit] could certainly say to the owner of the pit, 'If not for your pit what harm would my stone have done? Were the ox even to have stumbled over it, it might have fallen but would have got up again.' We are therefore told [by this] that the other party can retort, 'If not for your stone, the ox would not have fallen into the pit at all.'
It was stated:
____________________
(1) Supra p. 289.
(2) Ex. XXI, 33-34.
(3) In which case the pit acted only as a secondary cause.
(4) Where the ground round about the pit has been abandoned, while the pit itself and the ground of it still remain with the owner.
(5) Since the pit and its ground remained yours.
(6) Where liability was stated.
(7) Cf. Mishnah 47b.
(8) Ex. XXI, 33.
(9) Cf. supra p. 290.
(10) Why then should the owner of the pit be liable? The digger too should also be exempt as he was but a remote cause to the damage that resulted.
(11) Cf. supra 13a.
(12) In which case the owner of the ox will pay quarter and the owner of the pit three quarters.
(13) Where both of them will pay equally.
(14) Which is half of the payment in the case of Tam.
(15) B.M. 117b; cf. also Hor. 13b.
(16) In the case of Tam.
(17) If I will have to pay half damages which is the maximum payment in my case.
(18) V. p. 307, n. 7. [And similarly in the case of our Mishnah since he cannot claim any damages from the digger, who was but a secondary cause, he is compensated by the owner of the pit.]
(19) As to whether the digger of the pit or the one who put the stone should be liable.
(20) According to whom the one who put the stone would alone have to pay.
Talmud - Mas. Baba Kama 53b
Where an ox [of a private owner] together with an ox that was sacred1 but became disqualified2 [for the altar], gored [an animal]. Abaye said that the private owner would have to pay half damages,3 whereas Rabina said that he would have to pay quarter damages.3 Both the one and the other are speaking of Tam, but while Rabina followed the view of the Rabbis,4 Abaye followed that of R. Nathan.5 Or if you wish you may say that both the one and the other followed the view of the Rabbis,4 but while Rabina was speaking of Tam6 Abaye was speaking of Mu'ad. Some report that Abaye stated half damages and Rabina full damages. The one ruling like the other would refer to the case of Mu'ad, but while one7 followed the Rabbis8 the other9 followed the view of R. Nathan.10 If you wish you may say that the one ruling like the other followed the view of R. Nathan, but while ones was speaking of Mu'ad, the other7 was speaking of Tam.11
Raba said: If an ox along with a man pushes [certain things] into a pit, on account of Depreciation12 they would all [three]13 be liable, but on account of the four [additional] items12 or with respect to compensation for the value of [lost] embryos.14 Man would be liable15 but Cattle and Pit exempt;14 in respect of kofer16 or the thirty shekels17 for [the killing of] a slave, Cattle would be liable18 but Man and Pit exempt;19 in respect of damage done to inanimate objects or to a sacred ox which had become disqualified [for the altar], Man and Cattle would be liable but Pit exempt, the reason being that Scripture says, And the dead beast shall be his,20 [implying that it was only] in the case of an ox whose carcass could be his21 [that there would be liability], excluding thus the case of this [ox] whose carcass could not be his.22 Does this mean that this last point was quite certain to Raba? Did not Raba put it as a query? For Raba asked; If a sacred ox which had become disqualified23 [for the altar] fell into a pit, what would be the legal position? Shall we say that this [verse], And the beast shall be his, [confines liability to the case of] an ox whose carcass could be his, thus excluding the case of this ox whose carcass could never be his,22 or shall we say that the words And the dead beast shall be his are intended only to lay down that the owners [plaintiffs] have to retain the carcass as part payment?24 [The fact is that] after raising the question he himself solved it. But whence [then] would he derive the law that the owners [plaintiffs] have to retain the carcass as part payment ? - He would derive it from the clause and the dead shall be his own25 [inserted in the case] of Cattle. What reason have you for rising [the clause] And the dead shall be his own [in the context dealing] with Cattle to derive from it the law that the owners [plaintiffs] have to retain the carcass as part payment, while you rise [the clause] And the dead beast shall be his26 [in the context dealing] with Pit [to confine liability] to an animal whose carcass could be his?27 Why should I not reverse [the implications of the clauses]? - It stands to reason that the exemption should be connected with Pit, since there is in Pit exemption also in the case of inanimate objects.28 On the contrary, should not the exemption be connected with Cattle, since in Cattle there is exemption from half damages [in the case of Tam]? - In any case, exemption from the whole payment is not found [in the case of cattle].
WHERE THERE FELL INTO IT AN OX TOGETHER WITH ITS IMPLEMENTS WHICH THEREBY BROKE etc. This Mishnaic ruling is not in accordance with R. Judah. For it was taught: R. Judah imposes liability for damage to inanimate objects done by Pit. But what was the reason of the Rabbis?29 - Because Scripture says, And an ox or an ass fall therein,30 [implying] 'ox' but not 'man',31 'ass' but not 'inanimate objects'. R. Judah, [however, maintained that the word] 'or' [was intended] to describe inanimate objects while the [other] Rabbis
____________________
(1) Which is not subject to the law of damage; cf. supra pp. 50ff.
(2) Through a blemish. [As long as such an ox had not been redeemed, it is regarded as an ox of the sanctuary, v. supra 36b. Cur. edd. add in brackets, 'e.g., a first-born ox which cannot be redeemed.' It is however questionable whether such an ox is not to be considered a common animal, having regard to the fact that being blemished it is entirely the priests, no share thereof being offered up on the altar. MS. M. omits these words.]
(3) And the remaining part will be lost to the plaintiff.
(4) Maintaining that each defendant is only liable for himself.
(5) Who stated that if no payment can be enforced from a defendant, his co-defendant has to make it up.
(6) Where quarter damages is half of the maximum payment.
(7) Abaye.
(8) V. p. 309, n. 6.
(9) Rabina.
(10) V. p. 309, n. 7.
(11) Where half damages is the maximum payment.
(12) Cf. supra 26a.
(13) I.e. the man, the owner of the pit and the owner of the ox.
(14) V. supra 49a.
(15) Ex. XXI, 22.
(16) Ibid. 29-30.
(17) Ibid. 32.
(18) Ibid. 28-32.
(19) Supra 28b and 35a
(20) Ex. XXI, 34.
(21) I.e., could be used by him as food for dogs and like purposes.
(22) As no use could lawfully be made of a carcass of a sacred animal that died.
(23) Through a blemish.
(24) Supra 10b.
(25) Ex. XXI, 36.
(26) V. p. 310. n. 14.
(27) V. p. 310. n. 15.
(28) V. supra p. 302, n. 2.
(29) For maintaining exemption.
(30) Ex. XXI, 33.
(31) Dying through falling into a pit.
Talmud - Mas. Baba Kama 54a
[argued that the word] 'or' was necessary as a disjunctive.1 And R. Judah? - [He maintained that] the disjunction could be derived from [the use of the singular] And it fall.2 And the Rabbis? - [They could reply that even the singular] And it fall could also imply many [things].3
May I say [that the expression] And it fall is intended as a generalisation,4 while an ox or an ass [follows as] a specification, and where a generalisation is followed by a specification, the generalisation does not apply to anything save what is enumerated in the specification,5 so that only in the case of an ox or an ass should there be liability, but not for any other object whatsoever? - No; for it could be said that [the clause] The owner of the pit shall make it good6 generalises again. Now where there is a generalisation preceding a specification which is in its turn followed by another generalisation, you include only such cases as are similar to the specification.5 [Thus here] as the specification refers to objects possessing life, so too all objects to be included [must be such] as possess life.7 But [why not argue] since the specification refers to [animate] objects whose carcass would cause defilement whether by touching or by carrying,8 should we not include [only animate] objects whose carcass would similarly cause defilement whether by touching or by carrying,9 so that poultry would thus not be included?10 - If so, the Divine Law would have mentioned only one object in the specification. But which [of the two]11 should the Divine Law have mentioned? Had it inserted [only] 'ox', I might have said that an animal which was eligible to be sacrificed upon the altar12 should be included, but that which was not eligible to be sacrificed upon the altar13 should not be included.14 If [on the other hand] the Divine Law had [only] 'ass', I might have thought that an animal which was subject to the sanctity of firstborn15 should be included, but that one which was not subject to the sanctity of firstborn16 should not be included.17 [But still why indeed not exclude poultry?] Scripture says: 'And the dead shall be his' [implying] all things that are subject to death. [If so,] whether according to the Rabbis who exclude inanimate objects, or according to R. Judah who includes inanimate objects, [the question maybe raised] are inanimate objects subject to death? It may be said that their breaking is their death. But again according to Rab who stated18 that the liability imposed by the Torah in the case of Pit was for the unhealthy air [of the pit] but not for the blow [it gave], would either the Rabbis or R. Judah maintain that inanimate objects could be damaged by unhealthy air? - It may be said that [this could happen] with new utensils that burst in bad air. But was not this [clause] And the dead shall be his19 required for the ruling of Raba?20 For did Raba not say,21 'Where a sacred ox which had become disqualified [for the altar] fell into a pit, there would be exemption', as it is said: And the dead shall be his [implying that it was only] in the case of an ox whose carcass could be his [that there would be liability] and thus excluding the case of this ox whose carcass could never be his? - But Scripture says: He should give money unto the owner of it19 [implying] that everything is included which has an owner. If so, why not also include even inanimate objects and human beings?22 - Because Scripture says specifically 'an ox', [implying] and not 'a man', 'an ass' [implying] and not inanimate objects. Now according to R. Judah who included inanimate objects we understand the term 'ox' because it was intended to exclude 'man', but what was intended to be excluded by the term an ass? - Raba therefore said:23 The term 'ass' in the case of Pit, on the view of R. Judah, as well as the term 'sheep' [occurring in the section dealing] with lost property24 on the view unanimously accepted, remains difficult to explain.
IF THERE FELL INTO IT AN OX, DEAF, ABNORMAL OR SMALL THERE WOULD BE LIABILITY. What is the meaning of 'AN OX, DEAF, ABNORMAL OR SMALL'? It could hardly be suggested that the meaning is 'an ox of a deaf owner, an ox of an abnormal owner, an ox of a minor', for would not this imply exemption in the case of an ox belonging to a normal owner?25 - R. Johanan said: [It means] 'an ox which was deaf, an ox which was abnormal, an ox which was small.'
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(1) So that it should not be thought that there should be no liability unless both ox and ass fell in together.
(2) [So that 'or' carries the disjunction further to include utensils attached to the animal, v. Malbim, a.l.]
(3) As in Ex. XXXVI, 1; Deut. XIII, 3; I Sam. XVII, 34 etc.
(4) To include everything.
(5) [This is one of the principles of hermeneutics (Kelal u-ferat) according to R. Ishmael, v. Sanh. (Sonc. ed.) p. 12, n. 9.]
(6) Ex. XXI, 34.
(7) Thus excluding inanimate objects.
(8) Lev. XI, 39-40.
(9) Lev. ibid. 26-28.
(10) As these do not cause defilement either by touching or by carrying.
(11) Ox and ass.
(12) As was the case with ox.
(13) Such as an ass, horse, camel and the like.
(14) Hence ass was inserted to include also animals not eligible to be sacrificed upon the altar.
(15) As was the case with ass; cf. Ex. XIII, 13.
(16) Such as e.g., a horse, camel and the like.
(17) Hence 'ox' was inserted, for though the species of ox is subject to the sanctity of firstborn and would in no case have been excluded, its insertion being thus superfluous was surely intended to include even those animals which are not subject to the sanctity of firstborn.
(18) Supra p. 289.
(19) Ex. XXI, 34.
(20) [How then deduce from it liability in case of poultry?]
(21) Supra p. 296.
(22) E.g., slaves.
(23) Cf. B.M. 27a.
(24) Deut. XXII, 1-3.
(25) Which is of course not the case at all
Talmud - Mas. Baba Kama 54b
Still, would not this imply exemption in the case of an ox which was normal?1 - R. Jeremiah thereupon said: A particularly strong case is taken:2 There could be no question that in the case of a normal ox there should be liability, but in the case of an ox which is deaf or abnormal or small it might have been thought that it was its deafness that caused [the damage to it] or that it was its smallness that caused it [to fall] so that the owner of the pit should be exempt.3 We are therefore told [that even here he is liable]. Said R. Aha to Rabina: But it has been taught: If a creature possessing sense fell into it there would be exemption. Does this not mean an ox possession sense? - He replied: No, it means a man. [If that is so,] would not this imply that only in the case of a man who possesses sense that there would be exemption, whereas if he did not possess sense there would be liability, [and how can this be, seeing that] it is written 'ox' [which implies] 'and not man'? - The meaning of 'one possessing sense' must therefore be 'one of the species of rational being'. But he again said to him: Was it not taught: If there fell into it an ox possessing sense there would be exemption? - Raba therefore said: [The Mishnaic text indeed means] precisely an ox which was deaf, an ox which was abnormal, an ox which was small, for in the case of an ox which was normal there would be exemption, the reason being that such an ox should have looked more carefully while walking. So indeed was it taught likewise:4 Where there fell into it an ox which was deaf, or abnormal or small, or blind or while walking at night time, there would be liability whereas if it was normal and walking during the day there would be exemption.
MISHNAH. BOTH AN OX AND ANY OTHER ANIMAL ARE ALIKE [BEFORE THE LAW WITH REFERENCE] TO FALLING INTO A PIT,5 TO EXCLUSION FROM MOUNT SINAI,6 TO PAYING DOUBLE [IN CASES OF THEFT],7 TO RESTORING LOST PROPERTY,8 TO UNLOADING [BURDENS TOO HEAVY FOR AN ANIMAL TO BEAR],9 TO ABSTAINING FROM MUZZLING,10 TO HETEROGENEOUS ANIMALS [BEING COUPLED11 OR WORKING TOGETHER],12 TO SABBATH REST.13 SO ALSO BEASTS AND BIRDS ARE LIKE THEM. IF SO WHY DO WE READ, AN OX OR AN ASS? ONLY BECAUSE SCRIPTURE SPOKE OF THE MORE USUAL [ANIMALS IN DOMESTIC LIFE].
GEMARA. [WITH REFERENCE] TO FALLING INTO A PIT, since it is written, He should give money unto the owner of it,14 [to include] everything that an owner has, as indeed already stated.15 TO EXCLUSION FROM MOUNT SINAI [as it is written] Whether it be animal or man, it shall not live.6 Beast16 is included in 'animal' and [the word] 'whether' includes 'birds'. TO PAYING DOUBLE, as we said elsewhere:17 [The expression] for all manner of trespass18 is comprehensive. TO RESTORING LOST PROPERTY; [this is derived from the words] with all lost things of thy brother.19 TO UNLOADING [BURDENS TOO HEAVY FOR AN ANIMAL TO BEAR]; we derive this [by] comparing [the term] 'ass'9 with [the term] 'ass'13 [occurring in connection] with the Sabbath.20 TO [ABSTAINING FROM] MUZZLING; this we learn [similarly by] comparing [the term] 'ox'10 with [the term] 'ox'13 [used in connection] with Sabbath.20 TO HETEROGENEOUS ANIMALS; the rule as regards ploughing we learn [by comparing the term] 'ox'12 with the term 'ox'13 used [in connection] with Sabbath;20 and the rule as regards coupling we learn [by comparing the term] 'thy cattle'11 with the term 'thy cattle'13 [used in connection] with Sabbath. But whence are [all these rules known] to us in the case of Sabbath [itself]? - As it was taught: R. Jose says in the name of R. Ishmael: In the first Decalogue21 it is said thy manservant and thy maidservant and thy cattle22 whereas in the second Decalogue23 it is said thy ox and thy ass and any of thy cattle.24 Now, are not 'ox' and 'ass' included in 'any of thy cattle'? Why then were they singled out? To tell us that just as in the case of the 'ox and ass' mentioned here,24 beasts and birds are on the same footing with them.25 So also [in any other case where 'ox and ass' are mentioned] all beasts and birds are on the same footing with them. But may we not say that 'thy cattle' in the first Decalogue21 is a generalisation, and 'thy ox and thy ass' in the second Decalogue is a specification, and [we know that] where a generalisation is followed by a specification, the generalisation does not include anything save what is mentioned in the specification,26 [whence it would follow that only] 'ox and ass' are [prohibited]27 but not any other thing? - I may reply that the words 'and any of thy cattle' in the second Decalogue constitute a further generalisation, so that we have a generalisation preceding a specification which in its turn is followed by another generalisation; and in such a case you include also28 that which is similar to the specification,26 so that as the specification [here] mentions objects possessing life, there should thus also be included all objects possessing life. But, I may say, the specification mentions [living] things whose carcass would cause defilement whether by touching or by carrying.29 [Why not say that] there should also be included all [living] things whose carcass would similarly cause defilement whether by touching or by carrying,30 so that birds would thus not be included?31 - I may reply: If that were the case, the Divine Law would have inserted only one [object in the] specification. But which [of the two]32 should the Divine Law have inserted? For were the Divine Law to have inserted [only] 'ox', I might have thought than an animal which was eligible to be sacrificed upon the altar33 should be included, but one which was not eligible to be sacrificed upon the altar34 should not be included, so that the Divine Law was thus compelled to insert also 'ass'.35 If [on the other hand] the Divine Law had inserted [only] 'ass', I might have thought that [an animal which was subject to the] sanctity of first birth36 should be included, but that which was not subject to the sanctity of first birth37 should not be included; the Divine Law therefore inserted also 'ox'.38 It must therefore [be said that] and all thy cattle is [not merely a generalisation but] an amplification.39 [Does this mean to say that] wherever the Divine Law inserts [the word] 'all', it is an amplification? What about tithes where [the word] 'all' occurs and we nevertheless expound it as an instance of generalisation and specification? For it was taught:40 And thou shalt bestow that money for all that thy soul lusteth after41 is a generalisation; for oxen, or for sheep, or for wine, or for strong drink41 is a specification; or for all that thy soul desireth is again a generalisation. Now, where a generalisation precedes a specification which is in its turn followed by another generalisation you cannot include anything save what is similar to the specification. As therefore the specification [here]41 mentions products obtained from products42 and which spring from the soil43 there may also be included all kinds of products obtained from products44 and which spring from the soil.45 [Does this not prove that the expression 'all' was taken as a generalisation, and not as an amplification?]46 - I might say that [the expression] 'for all'47 is but a generalisation, whereas 'all' would be an amplification. Or if you wish I may say that [the term] 'all' is also a generalisation, but in this case48 'all' is an amplification. For why was it not written And thy cattle just as in the first Decalogue? Why did Scripture insert here 'and all thy cattle' unless it was meant to be an amplification? - Now that you decide that 'all' is an amplification49 why was it necessary to have 'thy cattle' in the first Decalogue and 'ox and ass' in the second Decalogue? - I may reply that 'ox' was inserted [to provide a basis] for comparison of 'ox' with [the term] 'ox' [used in connection] with muzzling; so also 'ass' [to provide a basis] for comparison of 'ass' with the term 'ass' [used in connection] with unloading; so again 'thy cattle' [to provide a basis] for comparison of 'thy cattle' with [the expression] 'thy cattle' [occurring in connection] with heterogeneity. If that is the case [that heterogeneity is compared with Sabbath breaking] why should even human beings not be forbidden50 [to plough together with an animal]? Why have we learnt; A human being is allowed to plough [the field] and to pull [a waggon] with any of the beasts?51 - R. Papa thereupon said: The reason of this matter was known to the Papunean,52 that is R. Aha b. Jacob [who said that as] Scripture says that thy manservant and thy maidservant may rest as well as thou48 [it is only] in respect of the law of rest that I should compare them [to cattle] but not of any other matter.
R. Hanina b. 'Agil asked R. Hiyya b. Abba: Why in the first Decalogue is there no mention of wellbeing,53 whereas in the second Decalogue
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(1) And why should this be so?
(2) Lit., 'He states (a case) where there can be no question'.
(3) Putting in contributory negligence on the part of the plaintiff as a defence.
(4) Supra p. 305.
(5) V. Ex. XXI, 33.
(6) V. ibid., XIX, 13.
(7) V. ibid. XXII, 3.
(8) V. Deut. XXII, 1-3.
(9) V. Ex. XXIII, 5 and Deut. XXII, 4.
(10) V. Deut. XXV, 4.
(11) V. Lev. XIX, 19.
(12) V. Deut. XXII, 10.
(13) V. Ex. XX, 10 and Deut. V, 14.
(14) Ex. XXI, 34.
(15) Supra p. 313.
(16) [I.e., non-domesticated animals.]
(17) Infra p. 364.
(18) Ex. XXII, 8.
(19) Deut. XXII, 3.
(20) As explained anon.
(21) Ex. XX, 2-17
(22) Ibid. 10.
(23) Deut. V, 6-18.
(24) Ibid. 14.
(25) As will be shown anon.
(26) V. supra p. 312, n. 1.
(27) To work on the Sabbath.
(28) Lit., 'only'.
(29) Lev. XI, 39-40.
(30) Ibid. 26-28.
(31) As these do not cause defilement either by touching or by carrying.
(32) Ox and ass.
(33) As was the case with ox.
(34) Such as an ass, horse, camel and the like.
(35) Which would include also animals not eligible to be sacrificed upon the altar.
(36) As was the case with ass; cf. Ex. XIII, 13.
(37) Such as horses and camels and the like.
(38) To include those animals which otherwise would have been excluded; for since the species of ox is subject to the sanctity of first-born and would in no case have been excluded, its insertion being thus superfluous was surely intended to include even those animals which are not subject to the sanctity of first-born. On the other hand, birds should still be excluded since, unlike ox and ass, their carcasses do not defile, either by touching or by carrying.
(39) I.e., the term 'all' does more than generalize, for it includes everything. [On the difference between amplification ribbuy and generalisation kelal, v. Shebu. (Sonc. ed.) p. 12, n. 9.]
(40) V. infra 63a.
(41) Deut. XIV, 26.
(42) Such as wine from grapes.
(43) Which characterises also cattle.
(44) Excluding water, salt and mushrooms.
(45) Thus excluding fishes.
(46) Which would have included all kinds of food and drink.
(47) [בכל, the particle ב ('for') is taken as partitive.]
(48) In Deut. V, 14.
(49) At least in the case of the Sabbath, including thus all kinds of living creatures.
(50) For in the case of Sabbath, servants are included.
(51) Kil. VIII, 6.
(52) [Papunia was a place between Bagdad and Pumbeditha, v. B.B. (Sonc. ed.) p. 79, n. 8.]
(53) For honouring father and mother; v. Ex. XX, 12.
Talmud - Mas. Baba Kama 55a
there is a mention of wellbeing?1 - He replied: While you are asking me why wellbeing is mentioned there, ask me whether wellbeing is in fact mentioned or not, as I do not know whether wellbeing is mentioned there or not.2 Go therefore to R. Tanhum b. Hanilai who was intimate with R. Joshua b. Levi, who was an expert in Aggadah. When he came to him he was told by him thus: 'From R. Joshua b. Levi I have not heard anything on the matter. But R. Samuel b. Nahum the brother of the mother of R. Aha son of R. Hanina, or as others say the father of the mother of R. Aha son of R. Hanina, said to me this: Because the [first tablets containing the] Commandments were destined to be broken.'3 But even if they were destined to be broken, how should this affect [the mention of wellbeing]? - R. Ashi thereupon said: God forbid! Wellbeing would then have ceased in Israel.4
R. Joshua5 said: He who sees [the letter] teth6 in a dream [may regard it as] a good omen for himself. Why so? If because it is the initial letter of [the word] 'Tob' ['good'] written in Scripture,7 why not say [on the contrary that it is also the initial letter of the verb 'ta'atea'8 commencing the Scriptural verse] And I will sweep it with the besom of destruction?9 - We are speaking [here of where he saw in a dream only] one teth [whereas ta'atea contains two such letters]. But still why not say [that it might have referred to the word 'tum'ah'10 as in the verse] Her filthiness is in her skirts?11 - We are speaking of [where he saw in a dream the letters] 'teth' and 'beth'.12 But again why not say [that it might have referred to the verb tabe'u13 as in the verse], Her gates were sunk in to the ground?14 - The real reason is that Scripture used this letter on the very first occasion to express something good, for from the beginning of Genesis up to [the verse] And God saw the light15 no teth occurs.16 R. Joshua b. Levi similarly said: He who sees [the word] hesped17 in a dream [may take it as a sign that] mercy has been exercised towards him in Heaven, and that he will be released [from trouble].18 provided, however, [he saw it] in script.
SO ALSO BEASTS AND BIRDS ARE LIKE THEM etc. Resh Lakish said: Rabbi taught here19 that a cock, a peacock and a pheasant are heterogeneous with one another.20 Is this not obvious?21 - R. Habiba said: Since they can breed from one another it might have been thought that they constitute a homogeneous species; we are therefore told [by this that this is not the case]. Samuel said:22 The [domestic] goose and the wild goose are heterogeneous with each other. Raba son of R. Hanan demurred [saying:] What is the reason? Shall we say because one has a long neck and the other has a short neck? If so, why should a Persian camel and an Arabian camel similarly not be considered heterogeneous with each other, since one has a thick neck and the other a slender neck? - Abaye therefore said: [It is because] one23 has its genitals discernible from without while the other one24 has its genitals within. R. Papa said: [It is because] one23 becomes pregnant with only one egg at fecundation, whereas the other one21 becomes pregnant with several eggs at one fecundation. R. Jeremiah reported that Resh Lakish said: He who couples two species of sea creatures becomes liable to be lashed.25 On what ground?26 R. Adda b. Ahabah said in the name of 'Ulla: This rule comes from the expression 'after its kind'27 [in the section dealing with fishes] by comparison with 'after its kind'28 [in reference to creatures] of the dry land. Rehabah inquired: If a man drove [a waggon] by means of a goat and a mullet together, what would be the legal position? Should we say that since a goat could not go down into the sea and a mullet could not go up on to the dry land, no transgression has been committed, or do we say that after all they are now pulling together?29 Rabina demurred to this: If this is so, supposing one took wheat and barley together in his hand and sowed the wheat on the soil of Eretz Yisrael30 and the barley on the soil outside Eretz Yisrael,31 would he be liable [as having transgressed the law]?32 - I might answer: Where is the comparison? There [in your case]33 Eretz Yisrael is the place subject to this obligation whereas any country outside Eretz Yisrael is not subject to this obligation; but here,34 both one place35 and the other36 are subject to the obligation.37 [
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(1) Cf. Deut. V, 16, where the following occurs, That thy days may be prolonged, and that it may go well with the . . . .
(2) As no Halachic point was involved, R. Hiyya b. Abba did not observe the difference; see also Tosaf. B.B. 113a.
(3) Ex. XXXII, 19.
(4) I.e. if it would have been inserted in the first Decalogue it would have ceased altogether when the two tablets were broken.
(5) Some add 'b. Levi'.
(6) The ninth letter of the Hebrew alphabet.
(7) On so many occasions.
(8) I.e. to sweep with a besom.
(9) Isa. XIV, 23.
(10) Meaning defilement and filthiness.
(11) Lam. I, 9.
(12) The second letter of the Alphabet.
(13) I.e., they sunk.
(14) Lam. II, 9.
(15) Gen. I, 4.
(16) And since the first teth in Scriptures commences the word denoting 'good' it is a good omen to see it in a dream.
(17) Which denotes an elegy and a lamentation.
(18) As the word hesped could be divided thus: has pad [ah]. i.e. mercy has been exercised and release granted.
(19) By stating that the law of heterogeneity applies also to birds.
(20) I.e., we are justified in maintaining so.
(21) Since they are birds of different kinds.
(22) Bek. 8a.
(23) The wild goose.
(24) The domestic goose.
(25) As be transgressed the negative commandment of Lev. XIX, 19.
(26) Is not 'cattle' specified in Lev. XIX, 19?
(27) Gen. I. 21.
(28) Ibid. 25.
(29) And a sin has been committed.
(30) Which is subject to the law of not being sown with mingled seed.
(31) Which is not subject to this law.
(32) And since he would not be liable, what doubt could be entertained in the case of a goat and mullet?
(33) Of sowing a field with mingled seed.
(34) In the case of a goat and a mullet.
(35) The dry land.
(36) The sea.
(37) As derived above from the similarity of expressions 'after its kind'.]
Talmud - Mas. Baba Kama 55b
CHAPTER 6
MISHNAH. IF A MAN BRINGS SHEEP INTO A SHED AND LOCKS THE DOOR IN FRONT OF THEM PROPERLY, BUT THE SHEEP [NEVERTHELESS] GET OUT AND DO DAMAGE, HE IS NOT LIABLE.1 IF, HOWEVER, HE DOES NOT LOCK THE DOOR IN FRONT OF THEM PROPERLY, HE IS LIABLE.2 IF [THE WALL] BROKE DOWN AT NIGHT, OR IF ROBBERS BROKE IN, AND THEY3 GOT OUT AND DID DAMAGE, HE WOULD NOT BE LIABLE. IF [HOWEVER] ROBBERS TOOK THEM OUT [FROM THE SHED AND LEFT THEM AT LARGE AND THEY DID DAMAGE] THE ROBBERS WOULD BE LIABLE [FOR THE DAMAGE].4 BUT IF THE OWNER HAD LEFT THEM IN A SUNNY PLACE, OR HE HAD HANDED A MINOR, AND THEY GOT AWAY AND DID DAMAGE, HE HANDED THEM OVER TO THE CARE OF A DEAF-MUTE, AN IDIOT, HE WOULD BE LIABLE.4 IF HE HAD HANDED THEM OVER TO THE CARE OF A SHEPHERD, THE SHEPHERD WOULD HAVE ENTERED [INTO ALL RESPONSIBILITIES] INSTEAD OF HIM. IF A SHEEP [ACCIDENTALLY] FELL INTO A GARDEN AND DERIVED BENEFIT [FROM THE FRUIT THERE], PAYMENT WOULD HAVE TO BE MADE TO THE EXTENT OF THE BENEFIT,5 WHEREAS IF IT HAD GONE DOWN THERE IN THE USUAL WAY AND DONE DAMAGE, THE PAYMENT WOULD HAVE TO BE FOR THE AMOUNT OF THE DAMAGE DONE BY IT.6 HOW IS PAYMENT MADE FOR THE AMOUNT OF DAMAGE DONE BY IT?6 BY COMPARING THE VALUE OF AN AREA IN THAT FIELD REQUIRING ONE SE'AH7 [OF SEED] AS IT WAS [PREVIOUSLY] WITH WHAT ITS WORTH IS [NOW]. R. SIMEON, HOWEVER, SAYS: IF IT CONSUMED RIPE FRUITS THE PAYMENT SHOULD BE FOR RIPE FRUITS; IF ONE SE'AH8 [IT WOULD BE FOR] ONE SE'AH, IF TWO SE'AHS [FOR] TWO SE'AHS.
GEMARA. Our Rabbis taught: What is denominated 'properly' and what is not 'properly'? - If the door was able to stand against a normal wind,9 it would be 'properly', but if the door could not stand against a normal wind, that would be 'not properly'. R. Manni b. Pattish thereupon said: Who can be the Tanna [who holds] that in the case of Mu'ad,10 even inadequate precaution11 suffices [to confer exemption]? It is R. Judah. For we have learnt: If the owner fastened his ox [to the wall inside the stable] with a cord or shut the door in front of it properly12 and the ox got out and did damage, whether it was Tam or already Mu'ad, he would be liable; so R. Meir. R. Judah, however, says: In the case of Tam he would be liable, but in the case of Mu'ad exempt, for it is written, And his owner hath not kept him in13 [thus excluding this case where] it was kept in. R. Eliezer, however, says: No precaution is adequate [for Mu'ad] save the [slaughter] knife.14 [But does not an anonymous Mishnah usually follow the view of R. Meir?]15 - We may even say that it is in accordance with R. Meir, for Tooth and Foot are different16 [in this respect], since the Torah required a lesser degree of precaution in their case as stated by R. Eleazar, or, according to others, as stated in a Baraitha: There are four cases [of damage] where the Torah requires a lesser degree of precaution. They are these: Pit and Fire, Tooth and Foot. Pit as it is written, And if a man shall open a pit, or if a man shall dig a pit and not cover it,17 implying that if he covered it18 he would he exempt. Fire, as it is written, He that kindled the fire shall surely make restitution,19 [that is to say] only where he acted [culpably], as by actually kindling the fire.20 Tooth, as it is written, And he shall send forth,21 [that is to say] only where he acted [wrongly] as by actually sending it forth.20 It was [further] taught:22 'And he shall send forth'23 denotes Foot, as in the similar expression, That send forth the foot of the ox and the ass;24 And it shall consume denotes 'Tooth',23 as in the similar expression, As the tooth consumeth to entirety.25 This is so only for the reason that he acted [culpably] as by actually sending it forth or feeding it there,26 whereas where he did not act [in such a manner] this would not be so. Rabbah said: The text of the Mishnah also corroborates [this view]27 by taking here the case of sheep. For have we not been dealing all along [so far] with an 'ox'?28 Why then not say [here also] 'ox'?29 What special reason was there for taking here SHEEP?30 Is it not because the Torah required a lesser degree of precaution in their case31 on account of the fact that it is not Horn that is dealt with here,32 but Tooth and Foot that are dealt with here? It is thus indicated to us that [this kind of precaution33 is] only in the case of Tooth and Foot which are Mu'ad [ab initio]; and this may be regarded as proved.
It was taught: R. Joshua said: There are four acts for which the offender is exempt from the judgments of Man but liable to the judgments of Heaven. They are these: To break down a fence in front of a neighbour's animal [so that it gets out and does damage];34 to bend over a neighbour's standing corn in front of a fire;34 to hire false witnesses to give evidence; and to know of evidence in favour of another and not to testify on his behalf.35
The Master stated: 'To break down a fence in front of a neighbour's animal.' Under what circumstances? If we assume that the wall was sound, why should the offender not be liable even according to the judgments of Man [at least for the damage done to the wall]? - It must therefore be
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(1) As he is not to blame.
(2) As he did not discharge his duty of guarding his cattle.
(3) I.e., the sheep.
(4) Done by the sheep, since they have come into the possession of the robbers, who have thus become liable to control them.
(5) But not to the extent of the actual damage: cf. supra 19b.
(6) In accordance with the law of Tooth.
(7) V. Glos.
(8) V. Glos.
(9) Though unable to withstand an extraordinary wind.
(10) As in the case with Tooth and Foot.
(11) I.e., a door able to withstand a normal wind.
(12) Withstanding a normal wind.
(13) Ex. XXI, 36.
(14) Supra 45b.
(15) According to whom precaution of a lesser degree would not suffice.
(16) From Horn.
(17) Ex. XXI, 33.
(18) Though he did not fill it with sand.
(19) Ex. XXII, 5.
(20) But not where any precaution has been taken.
(21) Ex. XXII, 4.
(22) Cf. supra 2b.
(23) Ex. XXII, 4.
(24) Isa. XXXII, 20.
(25) I Kings XIV,10.
(26) V. supra n. 1.
(27) I.e. the distinction between Tooth and Horn.
(28) And not with sheep.
(29) Which as a rule stands for Horn.
(30) Which damages by Tooth and Foot.
(31) I.e. in Tooth and Foot.
(32) [MS. M. reads 'sheep'. Render accordingly: Because as to sheep there is no mention (in the Torah) in connection with Horn; only Tooth and Foot are mentioned in connection therewith.]
(33) Which would withstand only a normal wind.
(34) V. the discussion later.
(35) Tosef., Shebu. III.
Talmud - Mas. Baba Kama 56a
where the wall was shaky.1
The Master stated: 'To bend over a neighbour's corn standing in front of a fire.' Under what circumstances? If we assume that the fire can now reach it in a normal wind, why is he not liable also according to the judgments of Man? - It must therefore be where it would reach them only in an unusual wind. R. Ashi said: What is referred2 to is 'covering' the offender having caused the stalks to become hidden in the ease of Fire.3
The Master stated: 'To hire false witnesses.' Under what circumstances? If we assume for his own benefit,4 should he not pay the money5 and should he thus not also be liable even in accordance with the judgments of Man? - It therefore must mean for the benefit of his neighbour.6
'To know of evidence in favour of another and not to testify on his behalf.' With what case are we dealing here? If with a case where there are two [witnesses], is it not obvious that it is a Scriptural offence,7 [as it is written], If he do not utter it then he shall bear his iniquity?8 - It must therefore be where there is one [witness].9
(Mnemonic: He who does, Deadly poison, Entrusts, His fellow, Broken.)
But are there no more cases [of the same category]? Is there not the case of a man who does work with the Water of Purification10 or with the [Red] Heifer of Purification,10 where he is similarly exempt according to the judgments of Man but liable according to the judgments of Heaven?11 Again, is there not the case of one who placed deadly poison before the animal of a neighbour, where he is exempt from the judgments of Man but liable according to the judgments of Heaven?12 So also is there not the case of one who entrusts fire to a deaf-mute, an idiot or a minor [and damage results], where he is exempt from the judgments of Man but liable according to the judgments of Heaven?13 Again, is there not the case of the man who gives his fellow a fright, where he is similarly exempt from the judgments of Man but liable according to the judgments of Heaven?14 And finally is there not the case of the man who, when his pitcher has broken on public ground, does not remove the potsherds, who, when his camel falls does not raise it, where R. Meir indeed makes him liable for any damage resulting therefrom, but the Sages hold that he is exempt from the judgments of Man though liable according to the judgments of Heaven?15 - Yes, there are surely many more cases [to come under the same category], but these four cases were particularly necessary to be stated by him,16 as otherwise you might have thought that even according to the judgments of Heaven there should not be any liability. It was therefore indicated to us [that this is not so]. In the case of breaking down a fence in front of a neighbour's animal you might have said that since the wall was in any case bound to come down, what offence was committed, and that even according to the judgments of Heaven there should be no liability. It was therefore indicated to us [that this is not so]. In the case of bending over a neighbour's standing corn in front of a fire you might also have said that the defendant could argue, 'How could I know that an unusual wind would come?' and that consequently even according to the judgments of Heaven he should not be liable; it was therefore indicated to us [that this is not the case]. So also according to R. Ashi who said that the reference is to 'covering', you might have said that [the defendant could contend], 'I surely intended to cover and thus protect your property,17 and that even according to the judgments of Heaven he should not be liable. It was therefore indicated to us [that this is not so]. In the case of hiring false witnesses you might also have said that the offender should be entitled to plead, 'Where the words of the Master18 are contradicted by words of a disciple,19 whose words should be followed?'20 and that even according to the judgments of Heaven he should not be liable. It was therefore indicated to us [that this is not so]. In the case where one knows evidence in favour of another and does not testify on his behalf, you might also have said that [the offender could argue], 'Who can say for certain that even had I gone and testified on his behalf, the other party would have admitted [the claim], and would not perhaps have sworn falsely [against my evidence]?'21 and that even according to the judgments of Heaven he should not be liable. It was therefore indicated to us [that this is not the case].
IF THE WALL BROKE DOWN AT NIGHT OR IF ROBBERS BROKE IN etc., Rabbah said: This22 is so only where the animal undermined the wall. What then of the case where it did not undermine the wall?23 Would there then be liability? Under what circumstances? If it be assumed that the wall was sound, why then even where it did not undermine it23 should there be liability? What else could the defendant have done? But if, on the other hand, the wall was shaky, why even in the case where the animal undermined it should there be exemption? Is not this a case where there is negligence24 at the beginning but [damage results from] accident25 at the end? Your view is correct enough on the assumption26 that where there is negligence at the beginning [and damage results through] accident at the end there is exemption, but if we take the view26 that where there is negligence at the beginning though [damage results from] accident at the end there is liability, what can be said? - This ruling of the Mishnah therefore refers to a sound wall and even to a case where it did not undermine the wall.27 For the statement of Rabbah was made with reference to [the ruling in] the concluding clause, IF THE OWNER HAD LEFT THEM IN A SUNNY PLACE OR HANDED THEM OVER TO THE CARE OF A DEAF-MUTE, AN IDIOT OR A MINOR AND THEY GOT AWAY AND DID DAMAGE, HE WOULD BE LIABLE. Rabbah thereupon said: This would be so even where it undermined the wall. For there would be no doubt that [this would be so] where it did not undermine the wall28 as there was negligence throughout, but even where it did undermine the wall,29 the ruling30 would also hold good. You might have said [in that case, that where it undermined the wall]29 it should be regarded as a case of negligence at the beginning but accident at the end.31 It was therefore indicated to us32 that [it is regarded as a case of] negligence throughout, the reason being that the plaintiff might say, 'You should surely have realised that since you left it in a sunny place, it will use every possible device for the purpose of getting out.
IF THE ROBBERS TOOK THEM OUT, THE ROBBERS WOULD BE LIABLE [FOR THE DAMAGE].33
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(1) And should in any case have been pulled down.
(2) By the expression 'bending over'.
(3) For which there is no liability according to the view of the Rabbis (v. infra p. 357), and by his act he caused the owner of the corn the loss of all claim to compensation.
(4) I.e., to obtain money really not due to him.
(5) Which he obtained by false pretenses and by the evidence of the false witnesses whom he hired.
(6) I.e. to pay him money not due to him, and it so happened that the neighbour to whom the money was paid could not be made to give back the money he obtained by the false evidence.
(7) Why then state it here?
(8) Lev. V, 1.
(9) Whose evidence would merely entail the imposition of an oath upon the defendant, v. Shebu 40a.
(10) Thus disqualifying it from being used for the purpose of purification, Par. IV, 4.
(11) Git. 53a, and infra 98a.
(12) Supra 47b.
(13) Infra 59b.
(14) Infra 91a.
(15) Supra 28b.
(16) R. Joshua.
(17) But not to cause you the loss of compensation.
(18) Expressed in the Divine Law.
(19) I.e. mortal man.
(20) Surely the word of the former. The witnesses should therefore be exclusively responsible, as they should not have followed the advice of a man in contradiction to the words of the Law. The law of agency could on this account not apply in matters of transgression; cf. Kid. 42b and supra p. 294.
(21) Since one witness could not make the defendant liable for money payment but only for an oath.
(22) Exemption.
(23) Which fell down of itself.
(24) To leave an animal behind a shaky wall which could not withstand a normal wind.
(25) Viz., that the animal broke through it.
(26) Supra 21b.
(27) V. p. 327, n. 6.
(28) But managed to escape through the door.
(29) Which was very sound.
(30) Of liability.
(31) V. p. 327, n. 8.
(32) By Rabbah.
(33) V. p. 324, n. 4.
Talmud - Mas. Baba Kama 56b
Is this not obvious, seeing that as soon as they took it out it was placed under their charge in all respects?1 The ruling was necessary to meet the case where they merely stood in front of it2 [thus blocking any other way for it while leaving open that leading to the corn]. This is on the lines of the statement made by Rabbah on behalf of R. Mattena who said it on behalf of Rab: If a man placed the animal of one person near the standing corn of another, he is liable.3 'Placed', [you say]? Is this not obvious? - The ruling was necessary to meet the case where he merely stood in front of it [blocking thus any other way for it while leaving open that leading to the corn]. Said Abaye to R. Joseph: Did you not explain to us that [the ruling of Rab referred to a case where] the animal was [not actually placed but only] beaten [with a stick and thus driven to the corn]? In the case of robbers also, [the ruling in the Mishnah similarly refers to a case where] they had only beaten it. IF HE HANDED THEM OVER TO THE CARE OF A SHEPHERD, THE SHEPHERD WOULD ENTER INTO ALL THE RESPONSIBILITIES INSTEAD OF HIM. I would here ask: 'Instead of whom?' If you say, instead of the owner of the animal, have we not already learnt elsewhere: 'If an owner hands over his cattle to an unpaid bailee or to a borrower, to a paid bailee or to a hirer, each of them would enter into the responsibilities of the owner'?4 It must therefore mean, instead of a bailee,5 and the first bailee would be exempt altogether. Would this not be a refutation of Raba? For did Raba not say: One bailee handing over his charge to another bailee becomes liable for all consequences?6 - Raba might reply that 'he handed it over to a shepherd' means [the shepherd handed it over] to his apprentice, as it is indeed the custom of the shepherd to hand over his sheep to [the care of] his apprentice. Some say that since the text says, HE HANDED THEM OVER TO THE CARE OF A SHEPHERD and does not say 'he handed them over to another person,'it could from this be proved that the meaning of 'HE HANDED THEM OVER TO THE CARE OF A SHEPHERD' is that the shepherd handed [them] over to his apprentice, as it is indeed the custom of the shepherd to hand over [various things] to [the care of] his apprentice, whereas if [he handed it over] to another person this would not be so. May we say that this supports the view of Raba? For did Raba not say: One bailee handing over his charge to another bailee becomes liable for all consequences?6 - It may however be said that this is no support. For the text perhaps merely mentioned the usual case, though the same ruling would apply [to a case where it was handed over] to another person altogether.
It was stated: A person taking charge of a lost article [which he has found],7 is according to Rabbah in the position of an unpaid bailee,8 but according to R. Joseph in the position of a paid bailee.9 Rabbah said: He is in the position of an unpaid bailee, since what benefit is forthcoming to him? R. Joseph said: He is in the position of a paid bailee on account of the benefit he derives from not being required to give bread to the poor [while occupied in minding the lost article found by him];10 hence he should be considered a paid bailee. Some, however, explain it thus: R. Joseph said that he would be like a paid bailee as the Divine Law put this obligation11 upon him even against his will; he must therefore be considered as a paid bailee.12 R. Joseph brought an objection to the view of Rabbah [from the following]:
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(1) V. p. 325, n. 7.
(2) In which case the sheep did not come into the possession of the robbers.
(3) Though the animal which did the damage is not his.
(4) Supra 44b.
(5) I.e. where the sheep has already been in the hands of a bailee who later transferred it to a shepherd. By declaring the shepherd to be liable it is implied that the bailee will become released from his previous obligations.
(6) Even for accidents, as he had no right to hand over his charge to another person without the consent of the owner, v. supra 11b.
(7) And which he will have to return to the owner.
(8) To whom the law of Ex. XXII, 6-8 applies, and who is thus exempt where the article was stolen or lost.
(9) Who is subject to Ex. XXII, 9-12 and who is therefore liable to pay where the article was stolen or lost.
(10) As while a person is occupied with the performance of one commandment he is not under an obligation to perform at the same time another commandment; cf. Suk. 25a.
(11) Of looking after the lost article which he found.
(12) Who after receiving the consideration is similarly under an obligation to guard.
Talmud - Mas. Baba Kama 57a
If a person returns [the lost article which he had found] to a place where the owner is likely to see it, he is not required any longer to concern himself with it. If it is stolen or lost1 he is responsible for it.2 Now, what is meant by 'If it is stolen or lost'? Does it not mean, 'If it is stolen while in his house or if it is lost while in his house'?3 - No; it means from the place to which it had been returned.4 But was it not stated, 'He is not required any longer to concern himself with it'?5 - He answered him: We are dealing here with a case where he returned it in the afternoon,6 Two separate cases are, in fact, stated in the text, which should read thus: If he returned it in the morning to a place where the owner might see it [at a time] when it was usual with him to go in and out so that he would most likely see it, he would no more be required to concern himself with it, but if he returned it in the afternoon to a place where the owner might see it7 [since it was at the time] when it was not usual with him to go in and out [of the house] and he could thus not be expected to see it, if it was stolen or lost there, he would still be responsible for it. He then brought another objection [from the following]: He is always responsible [for its safety] until he has returned it to the keeping of its owner.8 Now, what is the meaning of [the term] 'always'? Does it not mean 'even while in the keeper's house'9 thus proving that he was like a paid bailee?10 - Rabbah said to him: I agree with you in the case of living things, for since they are in the habit of running out into the fields they need special watching.11
Rabbah [on the other hand] brought an objection to the view of R. Joseph [from the following: The text says] 'Return';12 this tells me only [that it can be returned] to the house of the owner. Whence [could it be derived that it may also be returned] to his garden and to his deserted premises? It says therefore further: Thou shalt return them12 [that is to say] 'everywhere'.13 Now, to what kind of garden and deserted premises [may it be returned]? If you say to a garden which is closed in and to deserted premises which are closed in, are these not equivalent to his house? It must surely therefore refer to a garden that is not closed in and to deserted premises that are not closed in. Does not this show that a person taking care of a lost article [which he has found] is like an unpaid bailee?14 - He replied: In point of fact it refers to a garden which is closed in and to deserted premises which are closed in, and as for your questions, 'Are these not equivalent to his house?' [the answer would be that] it is thereby indicated to us that it is not necessary to notify the owner, as indeed [stated by] R. Eleazar,13 for R. Eleazar said: In all cases notification must be given to the owner, with the exception, however, of returning a lost article, as the Torah uses in this connection many expressions of returning.15
Said Abaye to R. Joseph: Do you really not accept the view that a person minding a lost article [which he has found] is like an unpaid bailee? Did R. Hiyya b. Abba not say that R. Johanan stated that if a man puts forward a plea of theft [to account for the absence of] an article [which had been found by him] he might have to make double payment?16 Now, if you assume that [the person minding the lost article] is like a paid bailee, why should he have to refund double [seeing that] he has to return the principal?17 - He replied:18 We are dealing here with a case where, for instance, he pleads [that it was taken] by all armed malefactor.19 But, he rejoined:20 All armed malefactor is surely considered a robber?21 - He replied:18 I hold that an armed malefactor, having regard to the fact that he hides himself from the public, is considered a thief.22
He23 brought a [further] objection [from the following]:
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(1) V. the discussion later.
(2) Tosef. B.M. II.
(3) But if he would have to pay where the article was stolen or lost this would prove that he is subject to the law of Paid Bailee.
(4) The liability would therefore be for carelessness.
(5) Why then should he be liable to pay when it was stolen or lost there?
(6) When the owner is usually in the fields and not at home.
(7) Had he been at home.
(8) V. p. 330, n. 8.
(9) Where it was stolen or lost.
(10) V. p. 330, n. 9.
(11) In which case any loss amounts to carelessness.
(12) Literal rendering of Deut. XXII, 1.
(13) B.M. 31a.
(14) And need not take as much care as a paid bailee would have to do.
(15) By doubling the verb 'in return', השב תשיבם
(16) If his false defence of theft has already been corroborated by all oath, v. infra 63a; 106b.
(17) For in his case the plea of an alleged theft would not be a defence but an admission of liability, and no oath would usually be taken to corroborate it. Moreover, the paid bailee could in such circumstances not be required to pay double even after it was found out that he himself had misappropriated the article in his charge.
(18) I.e. R. Joseph to Abaye.
(19) **, 'a rover'. This case is a mere accident as the bailee is not to blame and would not have to pay the principal; this plea would therefore be not an admission of liability but a defence, and if substantiated by a false oath he would have to pay double.
(20) I.e. Abaye to R. Joseph.
(21) And if traced would have to pay the principal and not make double payment (v. infra). The bailee making use of such a defence should therefore never have to pay double, as his plea was not an alleged theft but an alleged robbery.
(22) And would therefore have to pay double when traced. The bailee by submitting such a defence and substantiating it by a false oath should similarly be liable to double payment as his defence was a plea of theft, although had it been true, he would not have to pay even the principal, because the case of an armed malefactor is one of accident, v. note 5.
(23) I.E., Abaye.
Talmud - Mas. Baba Kama 57b
No.1 Because you say that [a certain liability falls on] the unpaid bailee who is subject to pay double payment,2 it does not follow that you can say the same in the case of the paid bailee who does not pay double payment.3 Now if you assume that an armed malefactor is considered a thief,4 it would be possible that even a paid bailee would [in some cases] have to make double payment, as where he pleaded that [the articles in his charge were taken] by an armed malefactor!5 - He replied:6 What was meant is this: No. Because you say that a certain liability falls on the unpaid bailee, who has to make double payment,2 whatever pleas he puts forward,7 it does not follow that you can say the same in the case of the paid bailee who could not have to make a double payment except where he puts forward the plea that an armed malefactor5 [took away the article in his charge]. He8 again brought an objection [from the following]: [From the text] And it be hurt or die9 I learn only the case of breakage or death. Whence [could there also be derived cases of] theft and loss?10 An a fortiori argument may be applied here: If in the case of Paid Bailee who is exempt for breakage and death11 he is nevertheless liable for theft12 and loss,in the case of Borrower who is liable for breakage and death9 would it not be all the more certain that he should be liable [also] for theft and loss? This a fortiori has indeed no refutation.13 Now, if you assume that an armed malefactor is considered a thief why could there be no refutation [of this a fortiori]? It could surely be refuted [thus]: Why [is liability attached] to Paid Bailee if not because he might have to pay double payment where he puts forward the plea [that] an armed malefactor5 [took the articles in his charge]?14 - He said to him:15 This Tanna held that the liability to pay the principal in the absence of any oath16 is of more consequence than the liability for double payment which is conditioned by taking the oath.17
May we say that he18 derives support [from the following]: If a man hired a cow from his neighbour and it was stolen, and the hirer said, 'I would prefer to pay and not to swear'19 and [it so happened that] the thief was [subsequently] traced, he should make the double payment to the hirer.20 Now it was presumed that this statement followed the view of R. Judah21 who said that Hirer22 is equal [in law] to Paid Bailee.23 Since then it says 'the hirer said "I would prefer to pay and not to swear"',19 this shows that had he wished he could have freed himself by resorting to the oath. Under what circumstances [could this be so]? Where, for instance, he advances the plea that an armed malefactor [took it].24 Now seeing that it says, '. . . and it so happened that the thief was [subsequently] traced, he should pay the double payment to the hirer',25 can it not be concluded from this that an armed malefactor is considered as a thief?26 - I might answer: Do you presume that this statement follows the view of R. Judah who said that Hirer22 is equal [in law] to Paid Bailee?23 Perhaps it follows the view of R. Meir who said that Hirer is equal [in law] to Unpaid Bailee.27 If you wish28 I may say: [We should read the relevant views] as they were transposed by Rabbah b. Abbuha, who [taught thus]: How is the payment [for the loss of articles] regulated in the case of Hirer? R. Meir says: As in the case of Paid Bailee. R. Judah, however, says: As in the case of Unpaid Bailee.29 R. Zera said:30 We are dealing here with a case where the hirer advances the plea [that it was taken by] an armed malefactor, and it was afterwards discovered that [it was taken by] a malefactor without arms.31
IF A SHEEP [ACCIDENTALLY] FELL INTO A GARDEN AND DERIVED BENEFIT [FROM THE FRUITS THERE], PAYMENT WOULD HAVE TO BE MADE TO THE EXTENT OF THE BENEFIT. Rab said: [This applies to benefit derived by the animal] from [the lessening of] the impact.32 But what when it consumed them? Would there be no need to pay even to the extent of the benefit? Shall we say that Rab is here following the principle laid down by him [elsewhere]? For did Rab not say, 'It should not have eaten'?33 - But what a comparison! Rab said 'It should not have eaten' only there where it was injured [by over-eating itself], so that the owner of the fruits could say [to the plaintiff], 'I will not pay as it should not have eaten [my fruits]'. But did Rab ever say this in the case where the animal did damage to others that there should be exemption?
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(1) This is a continuation of a Baraitha (now partly lost), which sought at the outset to derive a certain liability (undefined) in the case of a paid bailee by an a fortiori from the case of an unpaid bailee.
(2) V. p. 332, n. 2.
(3) V. p. 332, n. 3.
(4) V. p. 332, n. 9.
(5) V. p. 332, n. 5.
(6) I.e., R. Joseph to Abaye.
(7) I.e., by a thief whether armed or unarmed.
(8) I.e. Abaye.
(9) Ex. XXII, 13 dealing with a borrower.
(10) To involve liability.
(11) In accordance with Ex. ibid. 9-10.
(12) Ibid. 11.
(13) B.M. 95a.
(14) Whereas in the case of Borrower there could never be an occasion for double payment, as any plea of theft whether by an armed malefactor or by an ordinary thief would involve the payment of the principal and would thus be an admission of liability and not a defence at all.
(15) I.e., R. Joseph to Abaye.
(16) Such as is the case with the Borrower.
(17) Such as in the case of a Paid Bailee. Cf. also B.M. 41b and 94b.
(18) I.e. R. Joseph who maintains that a malefactor in arms is subject to the law applicable to an ordinary thief.
(19) In corroboration of my defence.
(20) For by offering to pay the value of the cow he acquired title to all possible payments with reference to it, B.M. 34a.
(21) As this view was followed in B.M. VII, 8; 36a; 97a; Jeb. 66b; Sheb. VIII, 1 and elsewhere; cf. also 'Er. 46b.
(22) Dealt with in Ex. XXII, 14.
(23) V. p. 330, n. 3.
(24) V. p. 332, n. 5.
(25) For by offering to pay the value of the cow he acquired title to all possible payments with reference to it.
(26) V. p. 332, n. 9.
(27) Who is exempt also where the article was stolen by an ordinary thief, in which case the thief referred to in the Baraitha did not necessarily mean a malefactor in arms but an ordinary thief.
(28) To bring the ruling into accord with R. Judah though the reason stated in n.10 may not apply.
(29) V. p. 334, n. 8.
(30) That a hirer might be subject to the law of Paid Bailee, and still the Baraitha affords no support to R. Joseph.
(31) I.e. an ordinary thief who has to pay double, whereas if he would have been with arms he might perhaps have been subject to the law applicable to a robber, and there would have been no place for double payment.
(32) As the fruits protected the animal from being hurt too much.
(33) V. supra 47b. And so here the owner of the animal might plead, 'it should not have eaten'.
Talmud - Mas. Baba Kama 58a
Rab took a particularly strong instance.1 There can be no doubt that where the benefit was derived from the animal having consumed the fruits payment would have to be made to the extent of the benefit. Regarding, however, [the benefit derived by the animal from the lessening of] the impact, it might have been thought that the fruits served only the purpose of 'preventing a lion from [damaging] a neighbour's property',2 so that no payment should be made even to the extent of the benefit. It is therefore indicated to us [here that even this benefit has to be paid for]. But why not say that this is so?3 - [No payment it is true could be claimed] in the case of preventing a lion from [damaging] a neighbour's property as [the act of driving the lion away] is voluntary, but in this case the act was not voluntary.4 Or again, in the case of preventing the lion from [damaging] a neighbour's property, no expenses were incurred [by the act of driving away the lion], but in this case here there was [pecuniary] loss attached to it.
[How did the animal fall]?5 - R. Kahana said: It slipped in its own water. Raba, however, said: [The rule would hold good even] where another animal pushed it down. The one who explains the ruling to apply where another animal pushed it down, would certainly apply it where it slipped in its own water.6 But the one who explains the ruling to apply where it slipped in its own water [might maintain that] where another animal pushed it down there was negligence, and the payment should be for the amount of damage done by it, as the plaintiff would be entitled to say, 'You should have made them go past one by one.'
R. Kahana said: The Mishnaic ruling applies only to the bed [into which it fell].7 If, however, it went from one bed to another bed, the payment8 would be for the amount of damage done by it. R. Johanan, however, said that even where it went from one bed to another bed and did so even all day long, [the payment would be made only to the extent of the benefit], unless it left the garden and returned there again with the knowledge [of the owner]. R. Papa thereupon said: Do not imagine this to mean 'unless it left the garden to the knowledge of the owner and returned there again with the knowledge of the owner', for as soon as it left the garden to the knowledge of the owner, even though it returned again without his knowledge [there would already be liability],9 the reason being that the plaintiff might [rightly] say: Since it had once become known [to it where it can find fruit, you should have realised that] whenever it broke loose it would run to that place.
IF IT WENT DOWN THERE IN THE USUAL WAY AND DID DAMAGE, THE PAYMENT WOULD HAVE TO BE FOR THE AMOUNT OF DAMAGE DONE BY IT. R. Jeremiah raised the question: Where it had gone down there in the usual way but did damage by water resulting from giving birth,10 what would be the legal position? If we accept the view that where there is negligence at the beginning but [damage actually results] in the end from sheer accident there is liability,11 no question arises.12 Where we have to ask is if we accept the view11 that where there is negligence at the beginning, but [damage actually results] in the end from sheer accident there is exemption. What [in that case is the law]? Should we say that this is a case where there was negligence at first but the final result was due to accident, and therefore there should be exemption, or should we say [on the contrary that] this case is one of negligence throughout, for since the owner could see that the animal was approaching the time to give birth, he should have watched
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(1) Lit., 'he says there can be no question'.
(2) For which no payment could be demanded, this being merely an act of goodwill and kindness, v. B.B. 52a.
(3) That he is 'preventing a lion' etc.
(4) The owner of the fruit should thus be entitled to compensation.
(5) That it should be considered a mere accident and the payment should only be to the extent of the benefit.
(6) As this is certainly a matter of accident.
(7) Regarding which the whole act is considered an accident.
(8) For the beds except the first one.
(9) To the full extent of the damage.
(10) Which was apparently an accident.
(11) V. Supra 21b.
(12) That there will be liability in this case too.
Talmud - Mas. Baba Kama 58b
it and indeed taken more care of it? - Let this remain undecided.
HOW IS PAYMENT MADE FOR THE AMOUNT OF DAMAGE DONE BY IT? BY COMPARING THE VALUE OF AN AREA IN THE FIELD REQUIRING ONE SE'AH OF SEED AS IT WAS [PREVIOUSLY] WITH WHAT ITS WORTH IS [NOW] etc. Whence is this derived? - R. Mattena said: Scripture says, And shall feed in another man's field1 to teach that the valuation should be made in conjunction with another field. But was this [verse] and shall feed in another man's field not required to exclude public ground [from being subject to this law]? - If so,2 Scripture would have said 'and shall feed in a neighbour's field' or ['and shall consume] another man's field.' Why then is it said in another [man's] field [unless to teach that] the valuation should be made in conjunction with another field? Let us say then that the whole import [of this verse] was to convey only this ruling, there being thus no authority to exclude public ground? - If so,3 Scripture would have inserted this clause in the section dealing with payment, e.g., 'of the best of his own field and of the best of his own vineyard shall he make restitution [as valued] in conjunction with another field.' Why then did Scripture put it in juxtaposition with and shall feed unless to indicate that the two [rulings] are to be derived from it.4
How is the valuation5 arrived at? - R. Jose b. Hanina said: [The value of] an area requiring one se'ah of seed [is determined] in proportion to the value of an area requiring sixty se'ahs of seed. R. Jannai said: [The value of] an area requiring one tarkab6 of seed [is determined] in proportion to the value of an area requiring sixty tarkabs of seed. Hezekiah said: [The value of] each stalk [consumed is determined] in proportion to the value of sixty such stalks.7 An objection was raised [from the following:] If it consumed one kab in two kabs [of grain], it would not be right to ask payment for their full value,8 but the amount consumed would have to be considered as if forming a little bed which would thus be estimated. Now, does this not mean that the bed will be valued by itself?9 - No; in [the proportion of one to] sixty.10
Our Rabbis taught: The valuation is made neither of a kab by itself, as this would be an advantage to him,11 nor of an area required for a kor12 of seed, as this would be a disadvantage to him.11 What does this mean? - R. Papa said: What is meant is this: Neither is a kab [of grain consumed] valued in conjunction with sixty kabs, as the defendant would thereby have too great an advantage,13 nor is a kor valued in conjunction with sixty kors, as this would mean too great a disadvantage for the defendant.14 R. Huna b. Manoah demurred to this, saying: Why then does it say, 'nor of an area required for a kor of seed'? [According to your interpretation] should it not have been 'nor a kor'?15 - R. Huna b. Manoah therefore said in the name of R. Aha the son of R. Ika: What is meant is this: The valuation is made neither of a kab by itself, as this would be too great an advantage to the plaintiff, nor of a kab in conjunction with an area required for a kor of seed, as this would be too great a disadvantage for the plaintiff. It must therefore be made only in conjunction with sixty [times as much].
A certain person cut down a date-tree belonging to a neighbour. When he appeared before the Exilarch, the latter said to him: 'I myself saw the place; three date-trees stood close together16 and they were worth one hundred zuz. Go therefore and pay the other party thirty-three and a third [zuz].' Said the defendant: 'What have I to do with an Exilarch who judges in accordance with Persian Law?' He therefore appeared before R. Nahman, who said to him [that the valuation should be made] in conjunction with sixty [times as much]. Said Raba to him:17 If the Sages ordained this valuation in the case of chattels doing damage, would they do the same in the case of damage done by Man with his body? - Abaye, however, said to Raba: In regard to damage done by Man with his body, what is your opinion [if not] that which was taught: 'If a man prunes [the berries from] a neighbour's vineyard while still in the budding stage, it has to be ascertained how much it was worth previously and how much it is worth afterwards', but nothing is said of valuation in conjunction with sixty [times as much]? But has it not been taught similarly with respect to [damage done by] Cattle? For it was taught: If [a beast] breaks off a plant, R. Jose says that the Legislators of [public enactments18 in Jerusalem stated that if the plant was of the first year, two silver pieces19 [should be paid] but if it was in its second year, four silver pieces [should be paid]. If it consumed young blades of grain, R. Jose the Galilean says that it has to be considered in the light of the future value of that which was left in the field. The Sages, however, say that it has to be ascertained how much it [the field] was worth [previously] and how much it is worth [now].
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(1) Ex. XXII, 4.
(2) I.e., were it intended only for that.
(3) V. p. 337, n. 7.
(4) I.e. that public ground be excluded and that the valuation be made in conjunction with another field.
(5) Of an area requiring one se'ah of seed.
(6) I.e. half a se'ah, amounting thus to three kabs, though originally it meant two kabs.
(7) The principle underlying this difference of opinion is made clear in the Baraitha that follows.
(8) Cf. supra p. 123.
(9) And not in proportion to the value of a bigger area. This refutes the views of all the cited authorities.
(10) [I.e., either 'se'ahs', 'tarkabs' or 'stalks' as the case may be.]
(11) V. the discussion infra.
(12) I.e., thirty se'ahs; cf. Glos.
(13) As the payment would be very small owing to the fact that the deficiency of one kab in an area required for sixty kabs of seed would hardly be noticed, and so would reduce the general price very little.
(14) For the deficiency of one kor, in an area required for sixty times as much, is conspicuous, and reduces the general price too much. The valutation of a se'ah will therefore be made in proportion to sixty se'ahs.
(15) Should be valued in this way.
(16) Lit., 'in one nest', or 'place'.
(17) R. Nahman.
(18) גוזרי גזירות Admon and Hanan b. Abishalom, identical with the 'Judges of Civil Law' דײני גזירות mentioned in Keth. XIII, 1 (Rashi). Little is known of their functions and power to enable us to explain their designation (Buchler, Das Synedrion, p. 113); cf. also Geiger, Urschrift, p. 119.]
(19) I.e two ma'ahs which were a third of a denar; cf. Glos.
Talmud - Mas. Baba Kama 59a
If it consumed grapes while still in the budding stage, R. Joshua says that they should be estimated as if they were grapes ready to be plucked off. But the Sages [here too] say that it will have to be ascertained how much it was worth [previously] and how much it is worth [now]. R. Simeon b. Judah says in the name of R. Simeon:1 These rulings apply where it consumed sprouts of vines or shoots of fig-trees, but where it consumed [actual] figs or half-ripe grapes they would be estimated as if they were grapes ready to be plucked off.2 Now, it is definitely taught here, 'The Sages say that it will have to be ascertained how much it was worth [previously] and how much it is worth [now]' and it is not said [explicitly that the valuation will be made] in conjunction with sixty [times as much]. Nevertheless you must say that it is implied that [the valuation is to be made] in conjunction with sixty [times as much]. So also then here, [in the case of Man it is implied that the valuation is to be] in conjunction with Sixty [times as much].
Abaye said: R. Jose the Galilean and R. Ishmael expressed the same view [in this matter]. R. Jose the Galilean as stated by us [above],3 and R. Ishmael as taught [elsewhere]:4 'Of the best of his own field and of the best of his own vineyard shall he make restitution;5 this means the best of the field of the plaintiff and the best of the vineyard of the plaintiff. This is the view of R. Ishmael. R. Akiba, however, says: Scripture only intended to lay down that damages should be collected out of the best and this applies even more to sacred property. Nor can you say that he [R. Ishmael] meant this in the sense of R. Idi b. Abin, who said [that it deals with a case where] e.g., the cattle consumed one bed out of several beds and we could not ascertain whether its produce was meagre or fertile, so that R. Ishmael would [thus be made to] order the defendant to go and pay for a fertile bed in accordance with the value of the best bed at the time of the damage. This could not be maintained by us, for the reason that the onus probandi falls upon the claimant. R. Ishmael6 must therefore have meant the best of anticipation, i.e., as it would have matured [at the harvest time].
The Master stated: 'R. Simeon b. Judah says in the name of R. Simeon: These rulings apply only where it consumed sprouts of vines or shoots of fig-trees,' [thus implying that] where it consumed grapes in the budding stage they would be estimated as if they were grapes ready to be plucked off. Read [now] the concluding clause: 'Where it consumed [actual] figs or half-ripe grapes they would be estimated as if they were grapes ready to be plucked off', [implying to the contrary that] where it consumed grapes in the budding stage it would have to be ascertained how much it was worth [previously] and how much it is worth [now]. [Is this not a contradiction?] - Rabina said: Embody [the new case in the text] and teach thus: 'These rulings apply only where it consumed sprouts of vines or shoots of fig-trees, for where it consumed grapes in the budding stage, or [actual] figs or half-ripe grapes they would be estimated as if they were grapes ready to be plucked off.' But if so would R. Simeon b. Judah's view not be exactly the same as that already stated by R. Joshua? - There is a practical difference between them as to [the deduction to be made for] the depreciation of the vines [themselves, through exhaustion, if the grapes had remained there until fully ripe],7 though the views cannot be identified.8 Abaye, however, said: They most assuredly could be identified. For who could be the Tanna who takes into consideration the depreciation of the vine, if not R. Simeon b. Judah? For it was taught: R. Simeon b. Judah says in the name of R. Simeon b. Menasya:9 [Even] in the case of Rape no compensation is made for Pain, as the female would [in any case] have subsequently to undergo the same pain through her husband.10 The Rabbis however said to him: A woman having intercourse by her free will is not to be compared to one having intercourse by constraint.
Abaye further said: The following Tannaim and R. Simeon b. Judah expressed on this point the same view?11 R. Simeon b. Judah's view as stated by us [above]. Who are the other Tannaim [referred to]? - As taught: R. Jose says: Deduct the fees of the midwife,12 but Ben 'Azzai says: Deduct food.13 The one who says, 'deduct the fees for the midwife' would certainly deduct food,14 but the one who says, 'deduct food', would not deduct the fees for the midwife, as the plaintiff might say, 'My wife is a lively person and does not need a midwife.'15 R. Papa and R. Huna the son of R. Joshua in an actual case16 followed the view of R. Nahman and valued in conjunction with sixty times [as much]. According to another report, however, R. Papa and R. Huna the son of R. Joshua valued a palmtree in conjunction with the small piece of ground.16 The law is in accordance with R. Papa and R. Huna the son of R. Joshua17 in the case of an Aramean palm,18 but it is in accordance with the Exilarch19 in the case of a Persian palm.20
Eliezer21 Ze'era
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(1) B. Yohai.
(2) Keth. 105a.
(3) That it will have to be considered in the light of the future value of that which was left in the field.
(4) V. supra 6b.
(5) Ex. XXII, 4.
(6) [In the case where the quality of the bed consumed by the cattle was not in doubt.]
(7) [I.e., one view would maintain that this deduction has to be made, while the other would not maintain this.]
(8) [It cannot be stated precisely which authority is of the one and which of the other view.]
(9) Keth, 39a.
(10) Proving that a deduction from the amount of the damages is made on a similar accord.
(11) That a deduction should be made on this accord.
(12) From the payment for injuring a pregnant woman resulting in a miscarriage; cf. Ex. XXI, 22 and supra 49a.
(13) I.e. the special diet which would have been necessary during the confinement period.
(14) As the special diet would have been an inevitable expense.
(15) He would therefore have spared this expense.
(16) Where a human being did damage with his body.
(17) To value in conjunction with sixty times as much where a human being did damage with his body.
(18) Which is by itself of no great value.
(19) To value the tree by itself.
(20) Which is even by itself of considerable value.
(21) [V.l. Eleazar].
Talmud - Mas. Baba Kama 59b
once put on a pair of black shoes and stood in the market place of Nehardea. When the attendants of the house of the Exilarch met him there, they said to him: 'What ground have you for wearing black shoes?'1 - He said to them: 'I am mourning for Jerusalem.' They said to him: 'Are you such a distinguished person as to mourn over Jerusalem?'2 Considering this to be a piece of arrogance on his part they brought him and put him in prison. He said to them, 'I am a great man!' They asked him: 'How can we tell?' He replied, 'Either you ask me a legal point or let me ask you one.' They said to him: '[We would prefer] you to ask.' He then said to them: 'If a man cuts a date-flower, what payment should he have to make?' - They answered him: 'The payment will be for the value of the date-flower.' 'But would it not have grown into dates?'3 - They then replied: 'The payment should be for the value of the dates.' 'But', he rejoined, 'surely it was not dates which he took from him!'4 They then said to him: 'You tell us.' He replied: 'The valuation would have to be made in conjunction with sixty times as much.'5 They said to him: 'What authority can you find to support you?' - He thereupon said to them: 'Samuel is alive and his court of law flourishes [in the town].' They sent this problem to be considered before Samuel who answered them: 'The statement he6 made to you, that the valuation should be in conjunction with sixty times [as much as the damaged date-flower]5 is correct.' They then released him.
R. SIMEON SAYS: IF IT CONSUMED RIPE FRUITS etc. On what ground?7 - The statement of the Divine Law, And shall feed in another man's field,8 teaching that valuation is to be made in conjunction with the field applies to produce which was still in need of a field, whereas these fruits [in the case before us],9 since they were no more in need of a field, must be compensated at their actual value.
R. Huna b. Hiyya said that R. Jeremiah stated that Rab gave judgment [in contradistinction to the usual rule]10 in accordance with R. Meir and [on another legal point] decided the law to be in accordance with R. Simeon. He gave judgment in accordance with R. Meir on the matter taught: If the husband drew up a deed for a would-be purchaser [of a field which had been set aside for the payment of the marriage settlement of his wife] and she did not endorse it, and [when a deed on the same field was drawn up] for another purchaser she did endorse it, she has thereby lost her claim to the marriage settlement; this is the view of R. Meir.11 R. Judah, however, says: She might still argue, 'I made the endorsement merely to gratify my husband; why therefore should you go against me?'12 [The legal point where] he decided the law to be in accordance with R. Simeon was that which we learnt: R. SIMEON SAYS: IF IT CONSUMED RIPE FRUITS, THE PAYMENT SHOULD BE FOR RIPE FRUITS, IF ONE SE'AH [IT WOULD BE FOR] ONE SE'AH, IF TWO SE'AHS, [FOR] TWO SE'AHS.
MISHNAH. IF A MAN PUTS HIS STACKS OF CORN IN THE FIELD OF ANOTHER WITHOUT PERMISSION, AND THE ANIMAL OF THE OWNER OF THE FIELD EATS THEM, THERE IS NO LIABILITY. MOREOVER, IF IT SUFFERED HARM FROM THEM, THE OWNER (OF THE STACKS WOULD BE LIABLE. IF, HOWEVER, HE PUT THE STACKS THERE WITH PERMISSION, THE OWNER OF THE FIELD WOULD BE LIABLE.
GEMARA. May we say that this Mishnah is not in accordance with Rabbi? For if in accordance with Rabbi, did he not say13 that unless the owner of the premises explicitly took upon himself to safeguard he would not be liable?14 - R. Papa said: [Here we were dealing with] the watchman of the barns.15 For since he said, 'Enter and place your stacks', it surely amounted to, 'Enter and I will guard for you'.16
MISHNAH. IF A MAN SENT OUT SOMETHING BURNING THROUGH A DEAF MUTE, AN IDIOT, OR A MINOR [AND DAMAGE RESULTED] HE WOULD BE EXEMPT FROM THE JUDGMENTS OF MAN, BUT LIABLE IN ACCORDANCE WITH THE JUDGMENTS OF HEAVEN. BUT IF HE SENT [IT] THROUGH A NORMAL PERSON, THE NORMAL PERSON WOULD BE LIABLE. IF ONE PERSON [FIRST] SUPPLIES THE FIRE AND ANOTHER THE WOOD, HE WHO SUPPLIES THE WOOD WOULD BE LIABLE.17 WHERE, [ON THE OTHER HAND], THE FIRST SUPPLIES THE WOOD AND THE SECOND THE FIRE, HE WHO SUPPLIES THE FIRE WOULD BE LIABLE.17 BUT WHERE ANOTHER PERSON CAME ALONG AND FANNED THE FLAME, THE ONE WHO FANNED IT WOULD BE LIABLE.17 IF IT WAS THE WIND THAT FANNED IT, ALL WOULD BE EXEMPT.
GEMARA. Resh Lakish said in the name of Hezekiah: The Mishnaic ruling18 holds good only where he handed over a [flickering] coal to [the deaf mute] who fanned it into flame, but if he handed over to him something already in flame he would be liable, the reason being that it was his acts that were the [immediate] cause. R. Johanan, however, said: Even where he handed something already in flame to him, he would still be exempt, the reason being that it was the handling of the deaf mute that caused the damage; he could therefore not be liable unless where he handed over to him tinder,
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(1) Cf. Ta'an. 22a. [Tosaf. regards the black lacing as the distinguishing mark of mourning, v. also Krauss, Talm. Arch. I, 628.]
(2) In such a manner.
(3) Why then not pay for actual dates of which the owner was deprived?
(4) Why then pay for ripe dates?
(5) Including the ground occupied by them.
(6) I.e. Eliezer Ze'era.
(7) Should the valuation not be made in conjunction with the field where ripe fruits were consumed.
(8) Ex. XXII, 4.
(9) In the statement of R. Simeon.
(10) That the law does not prevail in accordance with R. Meir against R. Judah: cf. 'Er. 46b
(11) For by endorsing the deed drawn up for the second purchaser and not that drawn up for the first one, she made it evident that on the one hand she was not out to please her husband by confirming his sale, and on the other that she was finally prepared to forego her claim.
(12) Keth. 95a.
(13) Supra 47b.
(14) Why then should the owner of the field be liable where the corn was stacked with his permission?
(15) As it was the custom to pile all the stacks of the villagers in one place and appoint a guardian to look after them.
(16) In accordance with the custom of the place.
(17) For he being last is mostly to blame.
(18) Of exemption from the judgments of Man.
Talmud - Mas. Baba Kama 60a
shavings and a light, in which case it was certainly his act that was the immediate cause.1
BUT IF HE SENT [IT] THROUGH A NORMAL PERSON, THE NORMAL PERSON WOULD BE LIABLE etc. IF ANOTHER PERSON CAME ALONG AND [LIBBAH] FANNED IT etc. R. Nahman b. Isaac said: He who reads in the [original] text libbah2 is not mistaken; so also he who reads in the text nibbah3 is similarly not mistaken.4 He who has in the text libbah2 is not mistaken, since we find [in Scripture] be-labbath esh5 [in a flame of fire], and so also he who has in the text nibbah3 is not mistaken, as we find, I create nib [the movement of] the lips.6
IF IT WAS THE WIND THAT FANNED IT, ALL WOULD BE EXEMPT. Our Rabbis taught: Where he fanned it [along with] the wind which also fanned it, if there was enough force in his blowing to set the fire ablaze he would be liable, but if not he would be exempt. But why should he not be liable, as in the case of one winnowing [on Sabbath, who is liable] though the wind was helping him?7 - Abaye thereupon said: We are dealing here with a case where e.g., he blew it up in one direction and the wind blew it up in a different direction.8 Raba said: [The case is one] where e.g., he started to blow it up when the wind was only normal, [and would have been unable to set it ablaze], but there [suddenly] came on an unusual wind which made it blaze up. R. Zera said: [The case is one] where e.g., he merely increased the heat by breathing heavily on it.9 R. Ashi said: When we say that there is liability for winnowing where the wind is helping, this applies to Sabbath where the Torah prohibited any work with a definite object,10 whereas here [regarding damage] such an act could be considered merely as a secondary cause, and a mere secondary cause in the case of damage carries no liability.
MISHNAH. IF HE ALLOWED FIRE TO ESCAPE AND IT BURNT WOOD, STONES OR [EVEN] EARTH, HE WOULD BE LIABLE, AS IT SAYS: IF FIRE BREAK OUT AND CATCH IN THORNS SO THAT THE STACKS OF CORN, OR THE STANDING CORN, OR THE FIELD BE CONSUMED THEREWITH: HE THAT KINDLED THE FIRE SHALL SURELY MAKE RESTITUTION.11
GEMARA. Raba said: Why was it necessary for the Divine Law to mention [both] 'thorns', 'stacks', 'standing corn' and 'field'? They are all necessary. For if the Divine Law had mentioned [only] 'thorns', I might have said that it was only in the case of thorns that the Divine Law imposed liability because fire is found often among them and carelessness in regard to them is frequent,12 whereas in the case of 'stacks',13 which are not often on fire and in respect of which negligence is not usual, I might have held that there is no liability. If [again] the Divine Law had mentioned [only] 'stacks', I might have said that it was only in the case of 'stacks' that the Divine Law imposed liability as the loss involved there was considerable, whereas in the case of 'thorns' where the loss involved was slight I might have thought there was no liability. But why was standing corn' necessary [to be mentioned]? [To teach that] just as 'standing corn' is in an open place, so is everything [which is] in an open space [subject to the same law].14 But according to R. Judah who imposes15 liability also for concealed articles damaged by fire, why had 'standing corn' [to be mentioned]? - To include anything possessing stature.15 Whence then did the [other] Rabbis include anything possessing stature?16 - They derived this from [the word] 'or' [placed before] 'the standing corn'.17 And R. Judah? - He needed [the word] 'or' as a disjunctive.17 Whence then did the [other] Rabbis derive the disjunction? - They derived it from [the word] 'or' [placed before] 'the field'. And R. Judah? - He held that because the Divine Law inserted 'or' [before] 'the standing corn' 'it also inserted 'or' [before] 'the field'. But why was 'field' needed [to be inserted]? - To include [the case of] Fire lapping his neighbour's ploughed field, and grazing his stones.18 But why did the Divine Law not say only 'field',19 in which case the others would not have been necessary? They were still necessary. For if the Divine Law had said 'field' only, I might have said that anything in the field would come under the same law, but not any other thing.20 It was therefore indicated to us [that this is not so].
R. Samuel b. Nahmani stated21 that R. Johanan said: Calamity comes upon the world only when there are wicked persons in the world, and it always begins with the righteous, as it says: If fire break out and catch in thorns.22 When does fire break out? Only when thorns are found nearby. It always begins, however, with the righteous, as it says: so that the stack of corn was consumed:23 It does not say 'and it would consume the stack of corn', but 'that the stack of corn was consumed' which means that the 'stack of corn' had already been consumed.
R. Joseph learnt: What is the meaning of the verse, And none of you shall go out at the door of his house until the morning?24 Once permission has been granted to the Destroyer, he does not distinguish between righteous and wicked. Moreover, he even begins with the righteous at the very outset, as it says:25 And I will cut off from thee the righteous and the wicked.26 R. Joseph wept at this, saying: So much are they27 compared to nothing!28 But Abaye [consoling him,] said: This is for their advantage, as it is written, That the righteous is taken away from the evil to come.29
Rab Judah stated that Rab said:
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(1) Supra 9b.
(2) ליבה (connected with להב, 'flame'), to denote blazing up.
(3) [ניבה from נבא, 'to blow up' to blow a blaze'.]
(4) For similar textual remarks by the same sage, cf. A.Z. 2a.
(5) Ex. III, 2.
(6) Isa. LVII, 19. [The blaze is provided by 'the movement of the lips', i.e., by blowing with the mouth.]
(7) Cf. Shab. VII, 2; v. also B.B. 26a.
(8) So that the wind did not help him at all.
(9) But did not actually blaze it up.
(10) Whether man did it wholly by his own body or not.
(11) Ex. XXII, 5.
(12) As thorns are usually worthless and nobody minds them.
(13) Which are of great value and are usually looked after.
(14) Excluding thus hidden articles.
(15) Supra 5b.
(16) E.g., living objects and plants [Though the latter, unlike 'stacks' are still attached to the ground. Tosaf.]
(17) Cf. supra p. 311, and also Tosaf. Hul. 86b.
(18) V. p. 347. n. 5.
(19) Which includes everything.
(20) Such as the field itself.
(21) [Having stated 'standing corn', the Torah must have added 'field' to indicate the field itself.]
(22) Ex. XXII, 5.
(23) Used metaphorically to express the righteous.
(24) Ex. XII, 22.
(25) Ezek. XXI, 8.
(26) Thus mentioning first the 'righteous' and then the 'wicked'.
(27) I.e., the righteous.
(28) That they are punished even for the wicked.
(29) Isa. LVII, 1.
Talmud - Mas. Baba Kama 60b
A man should always enter [a town] by daytime and leave by daytime, as it say's, And none of you shall go out at the door of his house until the morning.1
Our Rabbis taught: When there is an epidemic in the town keep your feet inside [the house], as it says, And none of you shall go out at the door of his house until the morning,1 and it further says, Come, my people, enter thou into thy chambers and shut thy doors about thee;2 and it is again said: The sword without, the terror within shall destroy.3 Why these further citations? - Lest you might think that the advice given above4 refers only to the night, but not to the day. Therefore, come and hear: Come, my people, enter thou into thy chamber, and shut thy doors about thee.5 And should you say that these apprehensions apply only where there is no terror inside,6 whereas where there is terror inside6 it is much better to go out and sit among people in one company, again come and hear: The sword without, the terror within shall destroy,3 implying that [even where] the terror is 'within'6 the 'sword'7 will destroy [more] without. In the time of an epidemic Raba used to keep the windows shut, as it is written, For death is come up into our windows.8
Our Rabbis taught: When there is a famine in town, withdraw your feet,9 as stated, And there was a famine in the land; and Abram went down into Egypt to sojourn there;10 and it is further said: If we say: We will enter into the city, then the famine is in the city and we shall die there.11 Why the additional citation? - Since you might think that this advice12 applies only where there is no danger to life [in the new settlement], whereas where there is a danger to life [in the new place] this should not be undertaken, come and hear: Now therefore come, and let us fall unto the host of the Arameans; if they save us alive, we shall live.13
Our Rabbis taught: When there is an epidemic in a town, one should not walk in the middle of the road, as the Angel of Death walks then in the middle of the road, for since permission has been granted him, he stalks along openly. But when there is peace in the town, one should not walk at the sides of the road, for since [the Angel of Death] has no permission he slinks along in hiding.
Our Rabbis taught: When there is an epidemic in a town nobody should enter the House of Worship14 alone, as the Angel of Death keeps there his implements. This, however, is the case only where no pupils are being taught there15 or where ten [males] do not pray there [together].
Our Rabbis taught: When dogs howl, [this is a sign that] the Angel of Death has come to a town. But when dogs frolic, [this is a sign that] Elijah the prophet has come to a town. This is so, however, only if there is no female among them.
When R. Ammi and R. Assi were sitting before R. Isaac the Smith, one of them said to him: 'Will the Master please tell us some legal points?' while the other said: 'Will the Master please give us some homiletical instruction?' When he commenced a homiletical discourse he was prevented by the one, and when he commenced a legal discourse he was prevented by the other. He therefore said to them: I will tell you a parable: To what is this like? To a man who has had two wives, one young and one old. The young one used to pluck out his white hair, whereas the old one used to pluck out his black hair. He thus finally remained bald on both sides. He further said to them: I will accordingly tell you something which will be equally interesting to both of you:16 If fire break out and catch in thorns; 'break out' implies 'of itself'. He that kindled the fire shall surely make restitution. The Holy One, blessed be He, said: It is incumbent upon me to make restitution for the fire which I kindled. It was I who kindled a fire in Zion as it says, And He hath kindled a fire in Zion which hath devoured the foundations thereof,17 and it is I who will one day build it anew by fire, as it says, For I, [saith the Lord] will be unto her a wall of fire round about, and I will be the glory in the midst of her.18 On the legal side, the verse commences with damage done by chattel,19 and concludes with damage done by the person,20 [in order] to show that Fire implies also human agency.21
Scripture says:22 And David longed, and said, Oh that one would give me water to drink of the well of Bethlehem, which is by the gate. And the three mighty men broke through the host of the Philistines and drew water out of the well of Bethlehem that was by the gate etc. What was his difficulty?23 - Raba stated that R. Nahman had said: His difficulty was regarding concealed articles damaged by fire24 - whether the right ruling was that of R. Judah25 or of the Rabbis;26 and they gave him the solution, whatever it was. R. Huna, however, said: [The problem was this:] There were there27 stacks of barley which belonged to Israelites but in which Philistines had hidden themselves, and what he asked was whether it was permissible to rescue oneself through the destruction of another's property.28 The answer they despatched to him was: [Generally speaking] it is forbidden to rescue oneself through the destruction of another's property29 you however are King and a king may break [through fields belonging to private persons] to make a way [for his army], and nobody is entitled to prevent him [from doing so].30 But [some] Rabbis, or, as [also] read, Rabbah b. Mari, said: There were there31 [both] stacks of barley belonging to Israelites and stacks of lentils belonging to the Philistines.32 The problem on which instruction was needed was whether it would be permissible to take the stacks of barley that belonged to the Israelites and put them before the beasts [in the battle field], on condition of [subsequently] paying for them with the stacks of lentils that belonged to the Philistines. [The reply] they despatched to him [was]: If the wicked restore the pledge, give again the robbery,33 [implying that] even where the robber [subsequently] pays for the 'robbery', he still remains 'wicked'. You, however, are King and a king may break through [fields of private owners] making thus a way [for his army], and nobody is entitled to prevent him [from doing so]. If we accept the view that he wanted to exchange,34 we can quite understand how in one verse it is written, Where was a plot of ground full of lentils,35 and in another verse it is written, Where was a plot of ground full of barley.36 If we, however, take the view that he wanted to burn them37 down, what need was there to have these two verses?38 - He, however, might say to you that there were also there stacks of lentils which belonged to Israelites and in which Philistines were hidden.39 Now on the view that he wanted to burn them37 down, we can quite understand why it is written, But he stood in the midst of the ground, and defended it.40 But according to the view that he wanted to exchange, what would be the meaning of and he defended it?41 - That he did not allow them to exchange. According to [these] two views, we can quite understand why there are two verses.
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(1) V. p. 348, n. 9.
(2) Isa. XXVI, 20.
(3) Deut. XXXII, 25.
(4) To keep indoors.
(5) Isa. XXVI, 20.
(6) The house.
(7) Of the Angel of Death.
(8) Jer. IX, 20.
(9) I.e., migrate to another place; see also B.M. 75b.
(10) Gen. XII, 10.
(11) II Kings VII, 4.
(12) Implied in Gen. XII, 10.
(13) II Kings VII, 4.
(14) [בית הכנסת Lit., 'House of meeting', the Synagogue. The origin of the term as applied to a synagogue is uncertain. It probably has its source in the assemblies called together for the purpose of considering problems of an economic and social character. These were probably attended with some sort of prayer and out of these evolved the regular meetings for prayers, v. Zeitlin, The Origin of the Synagogue in the Proceedings of the American Academy for Jewish Research, 1930-31, p. 75 ff.]
(15) In the House of Worship.
(16) Ex. XXII, 5.
(17) Lam. IV, 11.
(18) Zech. II, 9.
(19) As the expression 'if a fire break out' means 'break out itself without any direct act on the part of man'; cf. supra p. 115.
(20) By saying, 'He that kindled a fire', implying that there was some direct act on the part of man to kindle the fire.
(21) V. supra p. 115.
(22) II Sam. XXIII, 15-16.
(23) For as 'water' is homiletically used as a metaphor expressing learning, it was aggadically assumed here that instead of actual water David was in need of some legal instruction, especially since mention was made in the verse of 'the gate' which was then the seat of judgment.
(24) As some of his men burned down a stack in which articles were hidden, v. p. 353. n. 6.
(25) Who imposes liability.
(26) Who maintain exemption.
(27) Near the battle-field.
(28) As the warriors of David burned the stacks down for strategical purposes and the problem was whether compensation was to be made or not.
(29) I.e. compensation should be made.
(30) V. Sanh. 20a.
(31) V. p. 351, n. 11.
(32) The enemy.
(33) Ezek. XXXIII, 15.
(34) Stacks of barley belonging to Israelites for stacks of lentils that belong to the enemy.
(35) II Sam. XXIII, 11.
(36) I Chron. XI, 13.
(37) I.e., the stacks of barley belonging to the Israelites without repaying them with the lentils of the enemy.
(38) In fact the two verses contradict each other.
(39) And which had thus also to be burned down.
(40) Ibid. 12. This would show that he did not let his warriors burn the stacks as this was not permissible by strict law.
(41) Since there was no question there of burning down.

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