The Babylonian Talmud

Baba Kamma

 

Talmud - Mas. Baba Kama 21a

just as the use of private property under an agreement [is subject to the law of Contracts].

R. Abba b. Zabda sent [the following message] to Mari the son of the Master:1 'Ask R. Huna as to his opinion regarding the case of one who occupies his neighbour's premises without any agreement with him, must he pay him rent or not?' But in the meanwhile R. Huna's soul went to rest. Rabbah b. R. Huna thereupon replied as follows: 'Thus said my father, my Master, in the name of Rab: He is not legally bound to pay him rent; but he who hires premises from Reuben may have to pay rent to Simeon.' But what connection has Simeon with premises [hired from Reuben, that the rent should be paid to him]? - Read therefore thus: '. . . [Reuben] and the premises were discovered to be the property of Simeon, the rent must be paid to him.' But [if so], do not the two statements [made above in the name of Rab] contradict each other? - The latter statement [ordering payment to Simeon] deals with premises which were for hire,2 whereas the former ruling [remitting rent in the absence of an agreement] refers to premises which were not for hire. It has similarly been stated: R. Hiyya b. Abin quoting Rab said, (some say that R. Hiyya b. Abin quoting R. Huna said): 'He who occupies his neighbour's premises without any agreement with him is not under a legal obligation to pay him rent. He, however, who hires premises from the representatives of the town must pay rent to the owners.' What is the meaning of the reference to 'owners'? - Read therefore thus: '. . . [representatives of the town,] and the premises are discovered to be the property of [particular] owners, the rent must be paid to them.' But [if so,] how can the two statements be reconciled with each other? The latter statement [ordering payment to the newly discovered owners] deals with premises which are for hire,2 whereas the former ruling [remitting rent in the absence of an agreement] refers to premises which are not for hire.

R.Sehorah slated that R. Huna quoting Rab had said: He who occupies his neighbour's premises without having any agreement with him is under no legal obligation to pay him rent, for Scripture says, Through emptiness3 even the gate gets smitten.4 Mar, son of R. Ashi, remarked: I myself have seen such a thing5 and the damage was as great as though done by a goring ox. R. Joseph said: Pre mises that are inhabited by tenants6 keep in a better condition. What however is the [practical] difference between them?7 - There is a difference between them in the case where the owner was using the premises for keeping there wood and straw.8

There was a case where a certain person built a villa upon ruins that had belonged to orphans. R. Nahman thereupon confiscated the villa from him [for the benefit of the orphans]. May it therefore not be inferred that R. Nahman is of the opinion that he who occupies his neighbour's premises without having any agreement with him must still pay him rent? - [The case of the orphans is based on an entirely different principle, as] that site had originally been occupied by certain Carmanians9 who used to pay the orphans a small rent.10 When the defendant had thus been advised by R. Nahman to go and make a peaceful settlement with the orphans, he paid no heed. R. Nahman therefore confiscated the villa from him.

WHEN WILL PAYMENT BE MADE TO THE EXTENT OF THE BENEFIT? [IF IT CONSUMED [FOOD] . . . IN THE SIDEWAYS OF THE MARKET, THE PAYMENT WILL BE FOR THE ACTUAL DAMAGE DONE BY THE ANIMAL.] Rab thereupon said: [The last ruling ordering payment for the actual damage done extends] even to a case where the animal itself [stood in the market place but] turned its head to the sideways [where it in this wise consumed the food]. Samuel on the other hand said: Even in the case of the animal turning its head to the sideways no payment will be made for the actual damage done.11 But according to Samuel, how then can it happen that there will be liability to pay for actual damage? - Only when, e.g., the animal had quitted the market place altogether and walked right into the sideways of the market place. There are some [authorities] who read this argument [between Rab and Samuel] independent of any [Mishnaic] text: In the case of an animal [standing in a market place but] turning its head into the sideways [and unlawfully consuming food which was lying there], Rab maintains that there will be liability [for the actual damage] whereas Samuel says that there will be no liability [for the actual damage]. But according to Samuel, how then can it happen that there will be liability to pay for actual damage? - Only when, e.g., the animal had quitted the market place altogether and had walked right into the sideways of the market place. R. Nahman b. Isaac raised an objection: [SO ALSO IF IT CONSUMED] AT THE ENTRANCE OF A SHOP, PAYMENT TO THE EXTENT OF THE BENEFIT WILL BE MADE.12 How could the damage in this case have occurred unless, of course, by the animal having turned [its head to the entrance of the shop]? Yet the text states, PAYMENT TO THE EXTENT OF THE BENEFIT. [That is to say,] only to the extent of the benefit [derived by the animal] but not for the actual damage done by it?13 - He raised the objection and he himself14 answered it: The entrance to the shop might have been at a corner [in which case the animal had access to the food placed there without having to turn its head].

There are some [authorities], however, who say that in the case of an animal turning [its head to the sideways of the market place] there was never any argument whatsoever that there would be liability [for the actual damage done]. The point at issue between Rab and Samuel was in the case of a plaintiff who left unfenced a part of his site abutting on public ground, and the statement ran as follows: Rab said that the liability for the actual damage done could arise only in a case where [the food was placed in the sideways of the market to which] the animal turned [its head]. But in the case of a plaintiff leaving unfenced a part of his site abutting on public ground [and spreading out there fruits which were consumed by the defendant's animal] there would be no liability to pay [for the loss sustained].15 Samuel, however, said that even in the case of a plaintiff leaving unfenced a part of his site abutting on to the public ground, there would be liability to pay [for the loss sustained]. Might it not be suggested that the basic issue [between Rab and Samuel] would be that of a defendant having dug a pit on his own site [and while abandoning the site still retains his ownership of the pit]?16 Rab who here upholds exemption [for the loss sustained by the owner of the fruits] maintains that a pit dug on one's own site is subject to the law of Pit [so that fruits left on an unfenced site adjoining the public ground constitute a nuisance which may in fact be abated by all and everybody],17 whereas Samuel who declares liability [for the loss sustained by the owner of the fruits] would maintain that a pit dug on one's own site could never be subject to the law of Pit!18 - Rab could, however, [refute this suggestion and] reason thus: [In spite of your argument] I may nevertheless maintain

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(1) Cf. infra 97a; B.M. 64b.
(2) In which case the owner sustains a loss and rent must be paid.
(3) The Hebrew word She'iyyah שאײה rendered 'emptiness', is taken to be the name of a demon that haunts uninhabitated premises; cf. Rashi a.l.
(4) Isa. XXIV, 12.
(5) Lit '. . . him referring, to the demon.
(6) Who look after premises.
(7) I.e., between the reason adduced by Rab and that given by R. Joseph.
(8) In which case the premises had in any case not been empty and thus not haunted by the so-called demon 'She'iyyah'. There would therefore be liability to pay rent. But according to the reason given by R. Joseph that premises inhabited by tenants keep in better condition as the tenants look after their repairs, there would even in this case be no liability of rent upon the tenant who trespassed into his neighbour's premises that had previously been used only for the keeping of wood and straw and thus liable to fall into dilapidation.
(9) I.e., persons who came from Carmania. According to a different reading quoted by Rashi a.l. and occurring also in MS.M., it only means 'Former settlers'.
(10) In which case the plaintiffs suffered an actual loss, however small it was.
(11) Since the body of the animal is still on public ground.
(12) Supra p. 94.
(13) Supporting thus the view of Samuel but contradicting that of Rab.
(14) I.e., R. Nahman b. Isaac.
(15) But only for the benefit the animal derived from the fruits.
(16) The fruits kept near the public ground are a public nuisance and equal a pit, the ownership of which was retained and which was dug on a site to which the public has full access.
(17) Cf. infra 30a.
(18) Since the pit still remains private property.

Talmud - Mas. Baba Kama 21b

that in other respects a pit dug on one's own site is not subject to the law of Pit, but the case before us here is based on a different principle, since the defendant is entitled to plead [in reply to the plaintiff]: 'You had no right at all to spread out your fruits so near to the public ground as to involve me in liability through my cattle consuming them.' Samuel on the other hand could similarly contend: In other respects a pit dug on one's own site may be subject to the law of Pit, for it may be reasonable in the case of a pit for a plaintiff to plead that the pit may have been totally overlooked [by the animals that unwittingly fell in]. But in the case of fruits [spread out on private ground], is it possible to plead with reason that they may have been overlooked? Surely they must have been seen.1

May it not be suggested that the case of an animal 'turning its head [to the sideways]' is a point at issue between the following Tannaitic authorities? For it has been taught: In the case of an animal [unlawfully] consuming [the plaintiff's fruits] on the market, the payment will be [only] to the extent of the benefit; [but when the fruits had been placed] on the sideways of the market, the payment would be assessed for the damage done by the animal. This is the view of R. Meir and R. Judah. But R. Jose and R. Eleazar say: It is by no means usual for an animal to consume [fruits], Only to walk [there]. Now, is not R. Jose merely expressing the view already expressed by the first-mentioned Tannaitic authorities2 , unless the case of an animal 'turning its head [to the sideways]' was the point at issue between them, so that the first-mentioned Tannaitic authorities2 maintained that in the case of an animal 'turning its head [to the sideways]' the payment will still be fixed to the extent of the benefit it had derived, whereas R. Jose would maintain that the payment will be in accordance with the actual damage done by it?3 - No; all may agree that in the case of an animal 'turning its head [to the sideways]' the law may prevail either in accordance with Rab or in accordance with Samuel; the Point at issue, however, between the Tannaitic authorities here [in the Baraitha] may have been as to the qualifying force of in another man's field.4 The first Tannaitic authorities2 maintain that the clause, And it [shall] feed in another man's field, is meant to exclude liability for damage done on public ground, whereas the succeeding authorities5 are of the opinion that the clause And it [shall] feed in another man's field exempts [liability only for damage done to fruits which had been spread on] the defendant's domain.6 On the defendant's domain! Is it not obvious that the defendant may plead: What right had your fruit to be on my ground?7 - But the point at issue [between the authorities mentioned in the Baraitha] will therefore be in reference to the cases dealt With [above]8 by Ilfa9 and by R. Oshaia.10

MISHNAH. IF A DOG OR A GOAT JUMPS DOWN FROM THE TOP OF A ROOF AND BREAKS UTENSILS [ON THE PLAINTIFF'S GROUND] THE COMPENSATION MUST BE IN FULL, FOR ANY OF THEM IS CONSIDERED MU'AD IN RESPECT OF THAT DAMAGE].11 IF [HOWEVER] A DOG TAKES HOLD OF A CAKE [WITH LIVE COALS STICKING TO IT] AND GOES [WITH IT] TO A BARN, CONSUMES THE CAKE AND SETS THE BARN ON FIRE, [THE OWNER OF THE DOG] PAYS FULL COMPENSATION FOR THE CAKE,12 WHEREAS FOR THE BARN [HE] PAYS [ONLY] HALF DAMAGES.

GEMARA. The reason of [the liability in the commencing clause] is that the dog or goat has jumped [from the roof]13 , but were it to have fallen down14 [from the roof and thus broken utensils] there would be exemption. It can thus be inferred that the authority here accepted the view that the inception of [potential] negligence resulting in [mere] accident carries exemption.

It has been explicitly taught to the same effect: 'If a dog or goat jumps down from the top of a roof and breaks utensils [on the plaintiff's ground] the compensation must be in full; were it, however, to have fallen down15 [and thus broken the utensils] there would be exemption.' This ruling seems to be in accord with the view that where there is negligence at the beginning16 but the actual damage results from [mere] accident17 there is exemption,18 but how could the ruling be explained according to the view that upholds liability? - The ruling may refer to a case where the utensils had, for example, been placed very near to the wall so that were the animal to have jumped it would by jumping have missed them altogether; in which case there was not even negligence at the beginning.19

R. Zebid in the name of Raba, however, said: There are certain circumstances where there will be liability even in the case of [the animal] falling down. This might come to pass when the wall had not been in good condition.20 Still what was the negligence there? It could hardly be that the owner should have borne in mind the possibility of bricks falling down21 [and doing damage], for since after all it was not bricks that came down but the animal that fell down, why should it not be subject to the law applicable to a case where the damage which might have been done by negligence at the inception actually resulted from accident?22 - No, it has application where the wall of the railing was exceedingly narrow.23

Our Rabbis taught: In the case of a dog or goat jumping [and doing damage], if it was in an upward direction24 there is exemption;25 but if in a downward direction there is liability.26 In case, however, of man or poultry jumping [and doing damage], whether in a downward or upward direction, there is liability.27

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(1) And since they were kept on private ground they could not be considered a nuisance. The animal consuming them there has indeed committed trespass.
(2) I.e., R. Meir and R. Judah; for the point at issue could hardly be the case of consumption on public ground where none would think of imposing full liability for the actual damage done, but it must be in regard to the sideways of the market.
(3) For in the case of turning the head it was none the more lawful to consume the fruits.
(4) Ex. XXII, 4.
(5) R. Jose and R. Eleazar.
(6) [But there would be no exemption according to R. Jose for consuming fruits even on the market.]
(7) There should thus be no need of explicit exemption.
(8) Supra p. 96.
(9) Dealing with an animal stretching out its head and consuming fruits kept on the back of the plaintiff's animal, in which case R. Meir and R. Judah impose the liability only to the extent of the benefit, whereas R. Jose and R. Eleazar order compensation for the actual damage sustained by the plaintiff.
(10) Imposing liability in the case of an animal jumping and consuming fruits kept in baskets: R. Meir and R. Judah thus limit the liability to the extent of the benefit derived, whereas R. Jose and R. Eleazar do not limit it thus.
(11) Coming thus within the purview of the law of Foot.
(12) Being subject to the law of Tooth.
(13) An act which is usual with either of them and thus subject to the law of Foot.
(14) By mere accident.
(15) By mere accident.
(16) For the owner should have taken precautions against its jumping.
(17) Since it fell down.
(18) Cf. infra 56a; 58a; B.M. 42a and 93b.
(19) But mere accident all through.
(20) The defendant is thus guilty of negligence.
(21) From the wall, which the defendant kept in a dilapidated state.
(22) Where opinions differ.
(23) Or very sloping. It was thus natural that the animal would be unable to remain there very long, but should slide down and do damage.
(24) An act unusual with any of them.
(25) From full compensation, whereas half damages will be paid in accordance with the law applicable to Horn.
(26) I.e., complete liability, as the act is usual with them and is thus subject to the law of Foot.
(27) As the act is quite usual with poultry, and as to man, he is always Mu'ad, v. supra p. 8.

Talmud - Mas. Baba Kama 22a

But was it not [elsewhere] taught: 'In the case of a dog or goat jumping [and doing damage], whether in a downward or upward direction, there is exemption'?1 - R. Papa thereupon interpreted the latter ruling2 to refer to cases where the acts done by the animals were the reverse of their respective natural tendencies: e.g, the dog [jumped] by leaping and the goat by climbing. If so, why [complete] exemption?3 - The exemption indeed is only from full compensation while there still remains liability for half damages.3

IF A DOG TAKES HOLD etc. It was stated: R. Johanan said: Fire [involves liability] on account of the human agency that brings it about.4 Resh Lakish, however, maintained that Fire is chattel.5 Why did Resh Lakish differ from R. Johanan? - His contention is: Human agency must emerge directly from human force whereas Fire does not emerge from human force.6 Why, on the other hand, did not R. Johanan agree with Resh Lakish?7 - He may say: Chattel contains tangible properties, whereas Fire8 has no tangible properties.

We have learnt:9 IF A DOG TAKES HOLD OF A CAKE [TO WHICH LIVE COALS WERE STUCK] AND GOES [WITH IT] TO A BARN, CONSUMES THE CAKE AND SETS THE BARN ALIGHT, [THE OWNER] PAYS FULL COMPENSATION FOR THE CAKE, WHEREAS FOR THE BARN [HE] PAYS [ONLY] HALF DAMAGES. This decision accords well with the view that the liability for Fire is on account of the human agency that caused it; in the case of the dog, there is thus some liability upon the owner of the dog as the fire there was caused by the action of the dog.10 But according to the principle that Fire is chattel, [why indeed should the owner of the dog be liable?] Could the fire be said to be the chattel of the owner of the dog? - Resh Lakish may reply: The Mishnaic ruling deals with a case where the burning coal was thrown by the dog [upon the barn]: full compensation must of course be made for the cake,11 but only half will be paid for the damage done to the actual spot upon which the coal had originally been thrown,12 whereas for the barn as a whole there is exemption altogether.13 R. Johanan, however, maintains that the ruling refers to a dog actually placing the coal upon the barn: For the cake11 as well as for the damage done to the spot upon which the coal had originally been placed the compensation must be in full,14 whereas for the barn as a whole only half damages will be paid.15

Come and hear: A camel laden with flax passes through a public thoroughfare. The flax enters a shop, catches fire by coming in contact with the shopkeeper's candle and sets alight the whole building. The owner of the camel is then liable. If, however, the shopkeeper left his candle outside [his shop], he is liable. R. Judah says: In the case of a Chanucah candle16 the shopkeeper would always be quit.17 Now this accords well with the view that Fire implies human agency: the agency of the camel could thus be traced in the setting alight of the whole building. But according to the view that Fire is chattel, [why should the owner of the camel be liable?] Was the fire in this case the chattel of the owner of the camel? - Resh Lakish may reply that the camel in this case [passed along the entire building and] set every bit of it on fire.18 If so, read the concluding clause: If, however, the shopkeeper left his candle outside [his shop] he is liable. Now, if the camel set the whole of the building on fire, why indeed should the shopkeeper be liable? - The camel in this case stood still [all of a sudden].19 But [it is immediately objected] if the camel stood still and yet managed to set fire to every bit of the building, is it not still more fitting that the shopkeeper should be free but the owner of the camel fully liable?20 - R. Huna b. Manoah in the name of R. Ika [thereupon] said: The rulings apply to [a case where the camel] stood still to pass water;21

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(1) Because the act is considered unusual with them.
(2) That exempts in acts towards all directions.
(3) For though the acts are unusual, they should be subject to the law of Horn imposing payment of half damages for unusual occurrences.
(4) Lit., 'his fire is due to his arrows'. Damage done by Fire equals thus damage done by Man himself.
(5) Lit., 'his property'.
(6) Since it travels and spreads of itself.
(7) That Fire is chattel.
(8) I e., the flame; cf. Bez. 39a.
(9) Supra p. 109.
(10) All the damage to the barn that resulted from the fire is thus considered as if done altogether by the dog that caused the live coals to start burning the barn.
(11) On account of the law applicable to Tooth.
(12) For the damage to this spot is solely imputed to the action of the dog throwing there the burning coal. The liability, however, is only for half damages on account of the law of Pebbles to which there is subject any damage resulting from objects thrown by cattle: cf. supra P. 79.
(13) Since the fire in this case could not be said to have been the obnoxious chattel of the owner of the dog [Nor could it be treated as Pebbles, since it spread of itself.]
(14) As the damage to this spot is directly attributed to the action of the dog.
(15) For any damage that results not from the direct act, but from a mere agency of chattels, is subject to the law of Pebbles ordering only half damages to be paid.
(16) Which has to be kept in the open thoroughfare; see infra p. 361.
(17) Ibid.
(18) The damage done to every bit of the building is thus directly attributed to the action of the camel.
(19) V. n. 4.
(20) For not having instantly driven away the camel from such a dangerous spot.
(21) And while it was impossible to drive it away quickly from that spot, the camel meanwhile managed to set every bit of the building on fire.

Talmud - Mas. Baba Kama 22b

[so that] in the commencing clause the owner of the camel is liable, for he should not have overloaded [his camel],1 but in the concluding clause the shopkeeper is liable for leaving his candle outside [his shop].

Come and hear: In the case of a barn being set on fire, where a goat was bound to it and a slave [being loose] was near by it, and all were burnt, there is liability [for barn and goat].2 In the case, however, of the slave being chained to it and the goat3 near by it and all being burnt, there is exemption [for barn and goat].4 Now this is in accordance with the view maintaining the liability for Fire to be based upon human agency: there is therefore exemption here [since capital punishment is attached to that agency].4 But, according to the view that Fire is chattel, why should there be exemption? Would there be exemption also in the case of cattle killing a slave?5 - R. Simeon b. Lakish may reply to you that the exemption refers to a case where the fire was actually put upon the body of the slave6 so that no other but the major punishment is inflicted.7 If so, [is it not obvious?] Why state it at all? - No; it has application [in the case] where the goat belonged to one person and the slave to another.8

Come and hear: In the case of fire being entrusted to a deaf-mute, an idiot or a minor9 [and damage resulting], no action can be instituted in civil courts, but there is liability10 according to divine justice.11 This again is perfectly consistent with the view maintaining that Fire implies human agency, and as the agency in this case is the action of the deaf mute [there is no liability]; but according to the [other] view that Fire is chattel, [why exemption?] Would there similarly be exemption in the case of any other chattel being entrusted to a deaf-mute, an idiot, or a minor?12 - Behold, the following has already been stated in connection therewith:13 Resh Lakish said in the name of Hezekiah that the ruling11 applies only to a case where it was a [flickering] coal that had been handed over to [the deaf-mute] who fanned it into flame, whereas In the case of a [ready] flame having been handed over there is liability on the ground that the instrument of damage has been fully prepared. R. Johanan, on the other hand, stated that even in the case of a ready flame there is exemption, maintaining that it was only the handling by14 the deaf-mute that caused [the damage]; there could therefore be no liability unless chopped wood, chips and actual fire were [carelessly] given him.

Raba said: [Both] Scripture and a Baraitha support [the View of] R. Johanan. 'Scripture': For it is written, If fire break out;15 'break out' implies 'of itself' and yet [Scripture continues], He that kindled the fire16 shall surely make restitution.17 It could thus be inferred that Fire implies human agency. 'A Baraitha': For it was taught. The verse,17 though commencing with damage

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(1) To the extent that the flax should penetrate the shop.
(2) But not for the slave, who should have quitted the spot before it was too late; cf. infra 27a.
(3) Whether chained or loose.
(4) Infra 43b and 61b. For all civil actions merge in capital charges and the defendant in this case is charged with murder
(since the slave was chained and thus unable to escape death), and thus exempt from all money payment arising out of the charge; cf. infra 70b.
(5) V. Ex. XXI, 32, where the liability of thirty shekels is imposed upon the owner.
(6) The defendant has thus committed murder by his own hands.
(7) V. p.113. n. 8.
(8) Though the capital charge is not instituted by the owner of the goat, no damages could be enforced for the goat, since the defendant has in the same act also committed murder, and is liable to the graver penalty.
(9) Who does not bear responsibility before the law.
(10) Upon the person who entrusted the fire to the deaf-mute, etc. Mishnah, infra 59b.
(11) Cf. supra p. 38.
(12) Supra p. 36; infra 59b.
(13) Supra 9b.
(14) Lit., 'the tongs of'.
(15) Ex. XXII, 5.
(16) The damage that resulted is thus emphatically imputed to human agency.
(17) Ex. XXII 5.

Talmud - Mas. Baba Kama 23a

done by property,1 concludes with damage done by the person2 [in order] to declare that Fire implies human agency.

Raba said: The following difficulty confronted Abaye:According to the view maintaining that Fire implies human agency, how [and when] was it possible for the Divine law to make exemption3 for damage done by Fire to hidden things?4 He solved it thus: Its application is in the case of a fire which would ordinarily not have spread beyond a certain point, but owing to the accident of a fence collapsing not on account of the fire, the conflagration continued setting alight and doing damage in other premises where the original human agency is at an end.5 If so, even regarding unconcealed goods is not the human agency at an end?6 - Hence the one maintaining that Fire implies human agency also holds that Fire is chattel,7 so that liability for unconcealed goods would arise in the case where the falling fence could have been, but was not, repaired in time [to prevent the further spread of the fire], since it would equal chattel8 left unguarded by the owner.9 But if the one who holds that fire implies human agency also maintains that Fire is chattel,7 what then is the practical point at issue?10 - The point at issue is whether Fire11 will involve the [additional] Four Items.12

[THE OWNER OF THE DOG] PAYS FULL COMPENSATION FOR THE CAKE WHEREAS FOR THE BARN [HE] PAYS [ONLY] HALF DAMAGES. Who is liable [for the barn]? - The owner of the dog. But why should not the owner of the coal also be made liable?13 - His [burning] coal was [well] guarded by him.14 If the [burning] coal was well guarded by him, how then did the dog come to it? - By breaking in. R. Mari the son of R. Kahana thereupon said: This ruling implies that the average door is not beyond being broken in by a dog.15

Now in whose premises was the cake devoured? It could hardly be suggested that it was devoured in the barn of another party,16 for do we not require And shall feed in the field of another17 [the plaintiff], which is not the case here? - No, it applies where it was devoured in the barn of the owner of the cake. You can thus conclude that [the plaintiff's food carried in] the mouth of [the defendant's] cattle

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(1) I.e., by fire breaking out of itself.
(2) As implied in the clause, He that kindled the fire.
(3) Since in the case of Man doing damage such an exemption does not exist.
(4) V. supra pp. 18 and 39 and infra 61b.
(5) It is in this case (where the human agency is at an end) that there is exemption for hidden goods but liability for unconcealed articles.
(6) And there should therefore be exemption for damage done to all kinds of property.
(7) So that whenever the human agency is at an end, there would still be a possibility of liability being incurred.
(8) Lit., 'his ox'.
(9) Cf. infra 55b.
(10) I.e., what is the difference in law whether the liability for Fire is for the principles of human agency and chattel combined, or only on account of the principle of chattel? The difference could of course be only in the case where the human agency involved in Fire was not yet brought to an end. For otherwise the liability according to both views would only be possible on account of the principle of chattel, a principle which is according to the latest conclusion maintained by all.
(11) In cases where the human agency was not yet at an end.
(12) I.e., Pain, Healing, Loss of Time and Degradation, which in the case of Man, but not Ox, injuring men are paid in addition to Depreciation which is a liability common in all cases; v. supra p. 12. According to R. Johanan who considers Fire a human agency, the liability will be not only for Depreciation but also for the additional Four Items: whereas Resh Lakish maintains that only Depreciation will be paid, as in the case of damage done by Cattle.
(13) Since it was his coal that did the damage.
(14) He is therefore not to blame.
(15) For if otherwise the breaking in should be an act of unusual occurrence that should be subject to the law applicable to Horn, involving only the compensation of half damages for the consumption of the cake.
(16) I.e., a barn not belonging to the owner of the cake.
(17) Ex. XXII, 4.

Talmud - Mas. Baba Kama 23b

is still considered [kept in] the plaintiff's premises.1 For if it is considered to be in the defendant's premises why should not he say to the plaintiff: What is your bread doing in the mouth of my dog?2 For there had been propounded a problem: Is [the plaintiff's food carried in] the mouth of [the defendant's] cattle considered as kept in the premises of the plaintiff, or as kept in the premises of the defendant? (Now if you maintain that it is considered to be in the defendant's premises, how can Tooth, for which the Divine Law imposes liability,3 ever have practical application? - R. Mari the son of R. Kahana, however, replied: [It can have application] in the case where [the cattle] scratched against a wall for the sake of gratification [and pushed it down], or where it soiled fruits [by rolling upon them] for the purpose of gratification.4 But Mar Zutra demurred: Do we not require, As a man taketh away dung till it all be gone,5 which is not the case here?6 - Rabina therefore said; [It has application] in the case where [the cattle] rubbed paintings7 off [the wall]. R. Ashi similarly said: [It may have application] in the case where the cattle trampled on fruits [and spoilt them completely].7 )

Come and hear: If he incited a dog against him [i.e. his fellowman], or incited a serpent against him [to do damage], there is exemption.8 For whom is there exemption? - There is exemption for the inciter, but liability upon the owner of the dog. Now if you contend that [whatever is kept in] the mouth of the defendant's cattle is considered [as kept in] the defendant's premises, why should he not say to the plaintiff: What is your hand doing in the mouth of my dog?9 - Say, therefore, there is exemption also for the inciter;10 or if you like, you may say: The damage was done by the dog baring its teeth and wounding the plaintiff.11

Come and hear: If a man caused another to be bitten by a serpent, R. Judah makes him liable whereas the Sages exempt him.8 And R. Aha b. Jacob commented:12 Should you assume that according to R. Judah the poison of a serpent is ready at its fangs, so that the defendant [having committed murder is executed by] the sword,13 whereas the serpent [being a mere instrument] is left unpunished, then according to the view of the Sages, the poison is spitten out by the serpent of its own free will, so that the serpent [being guilty of slaughter] is stoned,14 whereas the defendant, who caused it, is exempt.15 Now if you maintain that [whatever is kept in] the mouth of the defendant's cattle is considered [to be in] the defendant's premises, why should not the owner of the serpent say to the plaintiff: 'What is your hand doing in the mouth of my serpent?' - Regarding [the] killing [of the serpent] we certainly do not argue thus. Whence can you derive [this]? - For it was taught: Where a man enters another's premises without permission and is gored there to death by the owner's ox, the ox is stoned,14 but the owner is exempted [from paying] kofer16 [for lost life].17 Now 'the owner is exempted [from paying] kofer.' Why? Is it not because he can say, 'What were you doing on my premises?' Why then regarding the ox should not the same argument be put forward [against the victim]: 'What had you to do on my premises?' - Hence, when it is a question of killing [obnoxious beasts] we do not argue thus.

The goats of Be Tarbu18 used to do damage to [the fields of] R.Joseph. He therefore said to Abaye: 'Go and tell their owners that they should keep them indoors.' But Abaye said: 'What will be the use in my going? Even if I do go, they will certainly say to me "Let the master construct a fence round his land."' But if fences must be constructed, what are the cases in which the Divine Law imposed liability for Tooth?19 - [Perhaps only] when the cattle pulled down the fence and broke in, or when the fence collapsed at night. It was, however, announced by R. Joseph, or, as others say, by Rabbah: 'Let it be known to those that go up from Babylon to Eretz Yisrael as well as to those that come down from Eretz Yisrael to Babylon, that in the case of goats that are kept for the market day but meanwhile do damage, a warning is to be extended twice and thrice to their owners. If they comply with the terms of the warning well and good, but if not, we bid them: "Slaughter your cattle immediately20 and sit at the butcher's stall to get whatever money you can."'

MISHNAH. WHAT IS TAM, AND WHAT IS MU'AD? - [CATTLE BECOME] MU'AD AFTER [THE OWNER HAS] BEEN WARNED FOR THREE DAYS [REGARDING THE ACTS OF GORING],21 BUT [RETURN TO THE STATE OF] TAM AFTER REFRAINING FROM GORING FOR THREE DAYS; THESE ARE THE WORDS OF R. JUDAH. R. MEIR, HOWEVER, SAYS: [CATTLE BECOME] MU'AD AFTER [THE OWNER HAS] BEEN WARNED THREE TIMES [EVEN ON THE SAME DAY], AND [BECOME AGAIN] TAM WHEN CHILDREN KEEP ON TOUCHING THEM AND NO GORING RESULTS.

GEMARA. What is the reason of R. Judah?22 - Abaye said: [Scripture states, Or, if it be known from yesterday, and the day before yesterday, that he is a goring ox, and yet his owner does not keep him in . . .23 ]: 'Yesterday', denotes one day; 'from yesterday' - two;24 and 'the day before yesterday' - three [days]; 'and yet his owner does not keep him in' - refers to the fourth goring. Raba said: 'Yesterday' and 'from yesterday'25 denote one day; 'the day before yesterday' - two, 'and he [the owner] does not keep him in,' then, [to prevent a third goring,] he is liable [in full].26 What then is the reason of R. Meir?27 - As it was taught: R. Meir said:

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(1) And liability for the consumption of the food is not denied.
(2) [I.e., why should I be liable for the bread consumed in my (the defendant's) premises?]
(3) Ex. XXII, 4.
(4) Cf. supra p. 6.
(5) I Kings XIV, 10.
(6) On account of the fact that the corpus is in any of these cases not being destroyed; v. supra pp. 4-5.
(7) In which case there is total destruction of the corpus.
(8) Sanh. IX, 1; v. also infra 24b.
(9) For which the dog is not much to blame since it was incited to do it.
(10) I.e., both inciter and dog-owner will not be made liable.
(11) In which case his hand has never been kept in the mouth of the dog.
(12) Sanh. 78a.
(13) V. Sanh. IX. 1.
(14) In accordance with Ex. XXI, 28-29.
(15) Being a mere accessory.
(16) Lit., 'atonement', v. Glos.
(17) Contrary to the ruling of Ex. XXI, 30.
(18) A p.n. of a certain family.
(19) Ex. XXII. 4.
(20) Without waiting for the market day.
(21) Committed by his cattle.
(22) Making the law of Mu'ad depend upon the days of goring.
(23) Ex. XXI, 36.
(24) The Hebrew term מתמול denoting 'From yesterday' is thus taken to indicate two days.
(25) Expressed in the one Hebrew word מתמול.
(26) According to Rashi a.l. even for the third goring. But Tosaf. a.l. and Rashi B.B. 28a explain it to refer only to the goring of the fourth time and onwards.
(27) That the number of days is immaterial.

Talmud - Mas. Baba Kama 24a

If for goring at long intervals [during three days], there is [full] liability, how much more so for goring at short intervals.1 They,2 however, said to him: 'A zabah3 disproves your argument, as by noticing her discharges at long intervals [three cases of discharge in three days], she becomes [fully] unclean,4 whereas by noticing her discharges at short intervals [i.e. on the same day] she does not become [fully unclean].'5 But he answered them: Behold, Scripture says: And this shall be his uncleanness in his issue.6 Zab7 has thus been made dependent upon [the number of] cases of 'noticing', and zabah upon that of 'days'. But whence is it certain that 'And this'6 is to exempt zabah from being affected by cases of 'noticing'?8 Say perhaps that it meant only to exempt zab from being affected by the number of 'days'?9 - The verse says, And of him that hath on issue, of the man, and of the woman.10 Male is thus made analogous to female: just as female is affected by [the number of] 'days' so is man affected by 'days'.11 But why not make female analogous to male [and say]: just as male is affected by cases of 'noticing',8 so also let female be affected by cases of 'noticing'?8 - But Divine Law has [emphatically] excluded that by stating, 'And this'.12 On what ground, however, do you say [that the Scriptural phrase excludes the one and not the other]? - It only stands to reason that when cases of 'noticing' are dealt with,13 cases of 'noticing' are excluded;14 [for is it reasonable to maintain that] when cases of 'noticing' are dealt with,13 'days' should be excluded?15

Our Rabbis taught: What is Mu'ad? After the owner has been warned for three days;16 but [it may return to the state of] Tam, if children keep on touching it and no goring results; this is the dictum of R. Jose. R. Simeon says: Cattle become Mu'ad, after the owner has been warned three times,17 and the statement regarding three days refers only to the return to the state of Tam.

R. Nahman quoting Adda b. Ahabah said: 'The Halachah is in accordance with R. Judah regarding Mu'ad, for R. Jose agrees with him.18 But the Halachah is in accordance with R. Meir regarding Tam,19 since R. Jose agrees with him [on this point].' Raba, however, said to R. Nahman: 'Why, Sir, not say that the Halachah is in accordance with R. Meir regarding Mu'ad for R. Simeon agrees with him, and the Halachah is in accordance with R. Judah regarding Tam, since R. Simeon agrees with him [on this point]?' He answered him: 'I side with R. Jose, because the reasons of R. Jose are generally sound.'20

There arose the following question: Do the three days [under discussion] apply to [the goring of] the cattle [so that cases of goring on the same day do not count as more than one], or to the owner [who has to be warned on three different days]?21 The practical difference becomes evident when three sets of witnesses appear on the same day [and testify to three cases of goring that occurred previously on three different days]. If the three days apply to [the goring of] the cattle there would in this case be a declaration of Mu'ad;22 but, if the three days refer to the warning given the owner, there would in this case be no declaration of Mu'ad, as the owner may say: 'They have only just now testified against me [while the law requires this to be done on three different days].'

Come and hear: Cattle cannot be declared Mu'ad until warning is given the owner when he is in the presence of the Court of Justice. If warning is given in the presence of the Court while the owner is absent, or, on the other hand, in the presence of the owner, but outside the Court, no declaration of Mu'ad will be issued unless the warning be given before the Court and before the owner. In the case of two witnesses giving evidence of the first time [of goring], and another two of the second time, and again two of the third time [of goring], three independent testimonies have been established. They are, however, taken as one testimony regarding haza mah.23 Were the first set found zomemim,24 the remaining two sets would be unaffected; the defendant would, however, escape [full] liability25 and the zomemim would still not have to pay him [for conspiring to make his cattle Mu'ad].26 Were also the second set found zomemim, the remaining testimony would be unaffected; the defendant would escape [full] liability25 and the zomemim would still not have to compensate him [for conspiring to make his cattle Mu'ad].26 Were the third set also found zomemim, they would all have to share the liability [for conspiring to make the cattle Mu'ad];27 for it is with reference to such a case that it is stated, Then shall ye do unto him as he had thought to have done unto his brother.28 Now if it is suggested that the three days refer to [the goring of] the cattle [whereas the owner may be warned in one day], the ruling is perfectly right [as the three pairs may have given evidence in one day].29

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(1) I.e., by goring three times in one and the same day.
(2) The other Rabbis headed by R. Judah his opponent.
(3) I.e., a woman who within the eleven days between one menstruation period and another had discharges on three consecutive days; cf. Lev.XV, 25-33.
(4) For seven days.
(5) I.e., for more than one day.
(6) Lev. XV, 3. This text checks the application of the a fortiori in this case as the explanation goes on.
(7) I.e., a male person afflicted with discharges of issue on three different occasions; cf. Lev. XV, 1-15.
(8) On one and the same day.
(9) So that he is affected only by that of the cases of 'noticing'.
(10) Lev. XV, 33.
(11) So that if one discharge lasted with him two or three days, it will render him zab proper.
(12) Lev. XV, 3.
(13) In Lev. ibid.
(14) Regarding zabah.
(15) In the case of zab.
(16) Regarding three acts of goring by their cattle.
(17) For three acts of goring.
(18) Thus constituting a majority against R. Meir on this point.
(19) I.e., the return to the state of Tam.
(20) Lit., 'his depth is with him.' v. Git. 67a.
(21) Regarding three acts of goring committed by his cattle even on one day.
(22) Though the evidence was given in one day.
(23) I.e., proved alibi of a set of witnesses, v. Mak. (Sonc. ed.) p. 1, n. 1.
(24) I.e., proved to have been absent at the material time of the alleged goring; v. Glos.
(25) As his cattle 'would have to be dealt with as Tam.
(26) In accordance with law of retaliation. Deut. XIX, 19. Since regarding the declaration of Mu'ad all the three pairs of witnesses constitute one set, and the law of hazamah applies only when the whole set has been convicted of an alibi.
(27) I.e., the half damages added on account of the declaration of Mu'ad, whereas the original half damages on account of Tam will be imposed only upon the last pair of witnesses.
(28) Deut. XIX. 19.
(29) And since they waited until the last day when they were summoned by the plaintiff of that day, it is plain that their object in giving evidence was to render the ox Mu'ad.

Talmud - Mas. Baba Kama 24b

But if it be suggested that the three days refer to the warning given the owner,1 why should not the first set say: 'Could we have known that after three days there would appear other sets to render the cattle Mu'ad?'2 - R. Ashi thereupon said: I repeated this argument to R. Kahana, and he said to me: 'And even if the three days refer to [the goring of] the cattle,3 is the explanation satisfactory? Why should not the last set say: "How could we have known that all those present at the Court4 had come to give evidence against the [same] ox? Our aim in coming was only to make the defendant liable for half damages."?'5 - [But we may be dealing with a case where] all the sets were hinting to one another6 [thus definitely conspiring to act concurrently]. R. Ashi further said that we may deal with a case where all the sets appeared [in Court] simultaneously.7 Rabina even said: 'Where the witnesses know only the owner but could not identify the ox.'8 How then can they render it Mu'ad?9 - By saying: 'As you have in your herd an ox prone to goring, it should be your duty to control the whole of the herd.'

There arose the following question: In the case of a neighbour's dog having been set on a third person, what is the law? The inciter could undoubtedly not be made liable,10 but what about the owner of the dog? Are we to say that the owner is entitled to plead: 'What offence have I committed here?' Or may we retort: 'Since you were aware that your dog could easily be incited and do damage you ought not to have left it [unguarded]'?

R. Zera [thereto] said: Come and hear: [CATTLE BECOME AGAIN] TAM, WHEN CHILDREN KEEP ON TOUCHING THEM AND NO GORING RESULTS, implying that were goring to result therefrom there would be liability [though it were caused by incitement]! - Abaye however said: Is it stated: If goring results therefrom there is liability? What perhaps is meant is: If goring does result therefrom there will be no return to the state of Tam, though regarding that [particular] goring no liability will be incurred.

Come and hear: If he incited a dog or incited a serpent against him, there is exemption.11 Does this not mean that the inciter is free, but the owner of the dog is liable? - No, read: '. . . the inciter too is free.'12

Raba said: Assuming that in the case of inciting a neighbour's dog against a third person, the owner of the dog is liable, if the incited dog turns upon the inciter, the owner is free on the ground that where the plaintiff himself has acted wrongly, the defendant who follows suit and equally acts wrongly [against the former] could not be made liable [to him]. R. Papa thereupon said to Raba: A statement was made in the name of Resh Lakish agreeing with yours; for Resh Lakish said:13 'In the case of two cows on public ground, one lying and the other walking, if the walking cow kicks the other, there is no liability [as the plaintiff's cow had no right to be lying on the public ground], but if the lying cow kicks the other cow there will be liability.' Raba, however, said to him: In the case of the two cows I would always order payment14 as [on behalf of the plaintiff] we may argue against the defendant: 'Your cow may be entitled to tread upon my cow, she has however no right to kick her.'

MISHNAH WHAT IS MEANT BY 'OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES'?15 IN CASE OF GORING, PUSHING, BITING, LYING DOWN OR KICKING, IF ON PUBLIC GROUND THE PAYMENT16 IS HALF, BUT IF ON THE PLAINTIFF'S PREMISES R. TARFON ORDERS PAYMENT IN FULL17 WHEREAS THE SAGES ORDER ONLY HALF DAMAGES.

R.TARFON THERE UPON SAID TO THEM: SEEING THAT, WHILE THE LAW WAS LENIENT TO TOOTH AND FOOT IN THE CASE OF PUBLIC GROUND ALLOWING TOTAL EXEMPTION18 , IT WAS NEVERTHELESS STRICT WITH THEM REGARDING [DAMAGE DONE ON] THE PLAINTIFF'S PREMISES WHERE IT IMPOSED PAYMENT IN FULL, IN THE CASE OF HORN, WHERE THE LAW WAS STRICT REGARDING [DAMAGE DONE ON] PUBLIC GROUND IMPOSING AT LEAST THE PAYMENT OF HALF DAMAGES, DOES IT NOT STAND TO REASON THAT WE SHOULD MAKE IT EQUALLY STRICT WITH REFERENCE TO THE PLAINTIFFS PREMISES SO AS TO REQUIRE COMPENSATION IN FULL? THEIR ANSWER WAS: IT IS QUITE SUFFICIENT THAT THE LAW IN RESPECT OF THE THING INFERRED19 SHOULD BE EQUIVALENT TO THAT FROM WHICH IT IS DERIVED:20 JUST AS FOR DAMAGE DONE ON PUBLIC GROUND THE COMPENSATION [IN THE CASE OF HORN] IS HALF, SO ALSO FOR DAMAGE DONE ON THE PLAINTIFF'S PREMISES THE COMPENSATION SHOULD NOT BE MORE THAN HALF. R. TARFON, HOWEVER, REJOINED: BUT NEITHER DO I

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(1) In which case the three sets dealt with could not have given their evidence in one and the same day, but each set on the day the respective goring took place.
(2) Why then should the first set ever be made responsible for the subsequent rendering of the cattle Mu'ad.
(3) In which case the three pairs may have given their evidence in one day.
(4) I.e., the witnesses that constituted the former sets.
(5) The former sets, however, cannot plead thus since they waited with their evidence until the last day, when they appeared to the summons of the plaintiff of that day, in which case it is more than evident that all that concerned that plaintiff regarding the evidence of the earlier times of goring was solely to render the ox Mu'ad.
(6) And all gave evidence in one and the same day. Rashi a.l. maintains that this would still prove that the three days refer to the goring of the cattle and not to warning the owner. According to an interpretation suggested by Tosaf., however, the first and second sets who also appeared on the third day together with the third set, had already given their evidence on the first and second day respectively. The requirement of the three days could thus accordingly refer to warning the owner.
(7) Cf. n. 2.
(8) In which case the sole intention of all the sets of witnesses was the declaration of Mu'ad. They could not have intended to make the defendant liable for half damages since half damages in the case of Tam is paid only out of the body of the goring ox which the witnesses in this case were unable to identify. This explanation holds good only regarding the intention of the last set of witnesses, whereas the former sets, if for the declaration of Mu'ad they would necessarily have to record their evidence before the third time of goring, could then not have foreseen that the same ox (whose identity was not established by them) would continue goring for three and four times. Rashi thus proves that the three days refer not to warning the owner but to the times of goring committed by the cattle.
(9) Since the identity of the goring ox could not be established.
(10) For he, not having actually done the damage, is but an accessory.
(11) Cf. supra p. 117.
(12) Meaning thus that both inciter and owner are free.
(13) Supra p. 98.
(14) Even in the case of the walking cow kicking the lying cow.
(15) Referred to supra p. 68.
(16) While in the state of Tam; cf. supra p. 73.
(17) V. supra p. 68.
(18) Supra p. 17.
(19) I.e., Horn doing damage on the plaintiff's premises.
(20) I.e., Horn doing damage on public ground.

Talmud - Mas. Baba Kama 25a

INFER HORN [DOING DAMAGE ON THE PLAINTIFF'S PREMISES] FROM HORN [DOING DAMAGE ON PUBLIC GROUND]; I INFER HORN FROM FOOT: SEEING THAT IN THE CASE OF PUBLIC GROUND THE LAW, THOUGH LENIENT WITH REFERENCE TO TOOTH AND FOOT, IS NEVERTHELESS STRICT REGARDING HORN, IN THE CASE OF THE PLAINTIFF'S PREMISES, WHERE THE LAW IS STRICT WITH REFERENCE TO TOOTH AND FOOT, DOES IT NOT STAND TO REASON THAT WE SHOULD APPLY THE SAME STRICTNESS TO HORN? THEY, HOWEVER, STILL ARGUED: IT IS QUITE SUFFICIENT IF THE LAW IN RESPECT OF THE THING INFERRED IS1 EQUIVALENT TO THAT FROM WHICH IT IS DERIVED.2 JUST AS FOR DAMAGE DONE ON PUBLIC GROUND THE COMPENSATION [IN THE CASE OF HORN] IS HALF, SO ALSO FOR DAMAGE DONE ON THE PLAINTIFF'S PREMISES, THE COMPENSATION SHOULD NOT BE MORE THAN HALF.

GEMARA. Does R. Tarfon really ignore the principle of Dayyo?3 Is not Dayyo of Biblical origin as taught:4 How does the rule of Kal wa-homer5 work? And the Lord said unto Moses, If her father had but spit in her face, should she not be ashamed seven days?6 How much the more so then in the case of divine [reproof] should she be ashamed fourteen days? Yet the number of days remains seven, for it is sufficient if the law in respect of the thing inferred7 be equivalent to that from which it is derived!8 - The principle of Dayyo is ignored by him [R. Tarfon] only when it would defeat the purpose of the a fortiori,9 but where it does not defeat the purpose of the a fortiori, even he maintains the principle of Dayyo. In the instance quoted there is no mention made at all of seven days in the case of divine reproof; nevertheless, by the working of the a fortiori, fourteen days may be suggested: there follows, however, the principle of Dayyo so that the additional seven days are excluded, whilst the original seven are retained. Whereas in the case before us10 the payment of not less than half damages has been explicitly ordained [in all kinds of premises]. When therefore an a fortiori is employed, another half-payment is added [for damage on the plaintiff's premises], making thus the compensation complete. If [however] you apply the principle of Dayyo, the sole purpose of the a fortiori would thereby be defeated.11 And the Rabbis?12 - They argue that also in the case of divine [reproof] the minimum of seven days has been decreed in the words: Let her be shut out from the camp seven days.13 And R. Tarfon?14 - He maintains that the ruling in the words, 'Let her be shut out etc.', is but the result of the application of the principle of Dayyo15 [decreasing the number of days to seven]. And the Rabbis? - They argue that this is expressed in the further verse: And Miriam was shut out from the camp.16 And R. Tarfon? - He maintains that the additional statement was intended to introduce the principle of Dayyo for general application so that you should not suggest limiting its working only to that case where the dignity of Moses was involved, excluding thus its acceptance for general application: it has therefore been made known to us [by the additional statement] that this is not the case.

R. Papa said to Abaye: Behold, there is a Tanna who does not employ the principle of Dayyo even when the a fortiori would thereby not be defeated, for it was taught: Whence do we know that the discharge of semen virile in the case of zab17 causes defilement [either by 'touching' or by 'carrying']?18 It is a logical conclusion: For if a discharge19 that is clean in the case of a clean person is defiling in the case of zab,20 is it not cogent reasoning that a discharge21 which is defiling in the case of a clean person,22 should defile in the case of zab? Now this reasoning applies to both 'touching' and 'carrying',23 But why not argue that the a fortiori serves a useful purpose in the case of 'touching', whilst the principle of Dayyo can be employed to exclude defilement by mere 'carrying'?24 If, however, you maintain that regarding 'touching' there is no need to apply the a fortiori on the ground that [apart from all inferences] zab could surely not be less defiling than an ordinary clean person,25 my contention is [that the case may not be so, and] that the a fortiori may [still] be essential. For I could argue: By reason of uncleanness that chanceth him by night26 is stated in Scripture to imply that the law of defilement applies only to those whose uncleanness has been occasioned solely by reason of their discharging semen virile, excluding thus zab, whose uncleanness has been occasioned not [solely] by his discharging semen virile but by another cause altogether.27 May not the a fortiori thus have to serve the purpose of letting us know that zab is not excluded?28 - But where in the verse is it stated that the uncleanness must not have [concurrently] resulted also from any other cause?29

Who is the Tanna whom you may have heard maintain that semen virile of zab causes [of itself] defilement by mere 'carrying'? He could surely be neither R. Eliezer, nor R. Joshua, for it was taught:30 The semen virile of zab causes defilement by 'touching', but causes no defilement by mere 'carrying'. This is the view of R. Eliezer. R. Joshua, however, maintains that it also causes defilement by mere 'carrying', for it must necessarily contain particles of gonorrhoea.31 Now, the sole reason there of R. Joshua's view is that semen virile cannot possibly be altogether free from particles of gonorrhoea, but taken on its own it would not cause defilement. The Tanna who maintains this32 must therefore be he who is responsible for what we have learnt: More severe than the former [causes of defilement]33

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(1) V. p. 125, n. 5.
(2) V. ibid. n. 6. [As in whatever way the argument is put the result is the same - namely, inferring Horn on the plaintiff's premises from Horn on public ground.]
(3) The Hebrew term meaning 'it is sufficient for it', and denoting the qualification applied by the Rabbis to check the full force of the a fortiori; v. Glos.
(4) B.B. II 1a; Zeb. 69b.
(5) The technical term for the logical inference, 'From minor to major,' v. Glos.
(6) Num. XII, 14.
(7) I.e., in the case of Divinity.
(8) I.e., the case of her father. [Hence, even in the case of Divinity, no more than seven days are inferred proving that Dayyo has a Biblical basis.]
(9) I.e., render it completely ineffective.
(10) Regarding compensation whether it be half or full in the case of Horn doing damage.
(11) V. p. 126, n. 9.
(12) I.e., the Sages in the Mishnah: how do they meet R. Tarfon's objection?
(13) Num. XII, 14.
(14) How can he state that no mention is made of seven days in connection with divine reproof?
(15) But not a decree per se.
(16) Num. XII, 15.
(17) A person afflicted with gonorrhoea: cf. Lev. XV, 1-15.
(18) As is the case with gonorrhoeal discharge.
(19) Such as saliva.
(20) Cf. Lev. XV, 8, and Niddah, 55b.
(21) Such as semen virile.
(22) Cf. Lev. XV, 16-17, and supra p. 2.
(23) As it is based on the law applicable to the saliva of zab.
(24) As is the case with the law applicable to semen virile of a clean person.
(25) Whose semen virile causes defilement by touching.
(26) Deut. XXIII, 11.
(27) I.e., by the affliction of gonorrhoea. [I may therefore have assumed that the semen virile of a zab causes no defilement, not even by 'touching'.]
(28) And since the a fortiori would still serve a useful purpose regarding defilement by 'touching', why should not the principle of Dayyo be employed to exclude defilement by mere 'carrying'? Hence this Tanna does not resort to Dayya even where the employment thereof would not render the a fortiori ineffective.
(29) The law applicable to semen virile to cause defilement by 'touching' is thus per se common with all kinds of persons. The inference by means of the a fortiori would therefore indeed be rendered useless if Dayyo, excluding as a result defilement by 'carrying', were admitted.
(30) Naz. 66a.
(31) Which defile both by 'touching' and by 'carrying'.
(32) That semen virile of zab defiles by mere 'carrying' even on its own.
(33) I.e., the three primary Defilements: Dead Reptile, Semen Virile and the Person contaminated by contact with a corpse, all of which do not defile by mere carrying'. v. supra p. 2.

Talmud - Mas. Baba Kama 25b

are the gonorrhoeal discharge of zab, his saliva, his semen virile, his urine and the blood of menstruation, all of which defile whether by 'touching' or by mere 'carrying'.1 But why not maintain that the reason here is also because the semen virile of zab cannot possibly be altogether free from particles of gonorrhoea? - If this had been the reason, semen virile should have been placed in juxtaposition to gonorrhoeal discharge. Why then was it placed in juxtaposition to saliva if not on account of the fact that its causing defilement is to be inferred from the law applicable to his saliva?2

R. Aha of Difti said to Rabina: Behold there is this Tanna who does not employ the principle of Dayyo even when the purpose of the a fortiori would thereby not be defeated. For it was taught: Whence do we learn that mats3 become defiled if kept within the tent where there is a corpse? - It is a logical conclusion: For if tiny [earthenware] jugs that remain undefiled by the handling of zab4 become defiled when kept within the tent where there is a corpse,5 does it not follow that mats, which even in the case of zab become defiled,6 should become defiled when kept within the tent where there is a corpse.7 Now this reasoning applies not only to the law of defilement for a single day,8 but also to defilement for full seven9 [days]. But why not argue that the a fortiori well serves its purpose regarding the defilement for a single day,10 whilst the principle of Dayyo is to be employed to exclude defilement for seven days? - He [Rabina] answered him: The same problem had already been raised by R. Nahman b. Zachariah to Abaye, and Abaye answered him that it was regarding mats in the case of a dead reptile11 that the Tanna had employed the a fortiori, and the text should run as follows: 'Whence do we learn that mats12 coming in contact with dead reptiles13 become defiled? It is a logical conclusion: for if tiny [earthenware] jugs that remain undefiled by the handling of zab,14 become defiled when in contact with dead reptiles,15 does it not follow that mats which even in the case of zab become defiled,16 should become defiled by coming in contact with dead reptiles?' But whence the ruling regarding mats17 kept within the tent of a corpse? - In the case of dead reptiles it is stated raiment or skin,15 while in the case of a corpse it is also stated, raiment . . . skin:18 just as in the case of raiment or skin stated in connection with dead reptiles,15 mats [are included to] become defiled, so is it regarding raiment . . . skin stated in connection with a corpse18 that mats similarly become defiled. This Gezerah shawah19 must necessarily be 'free',20 for if it were not 'free' the comparison made could be thus upset: seeing that in the case of dead reptiles [causing defilement to mats], their minimum for causing uncleanness is the size of a lentil,21 how can you draw an analogy to corpses where the minimum to cause uncleanness is not the size of a lentil but that of an olive?22 - The Gezerah shawah must thus be 'free'. Is it not so? For indeed the law regarding dead reptiles is placed in juxtaposition to semen virile as written, Or a man whose seed goeth from him,23 and there immediately follows, Or whosoever toucheth any creeping thing. Now in the case of semen virile it is explicitly stated, And every garment, and every skin, whereon is the seed of copulation.24 Why then had the Divine Law to mention again raiment or skin in the case of dead reptiles?25 It may thus be concluded that it was [inserted] to be 'free' [for exegetical purposes].26 Still it has so far only been proved that one part [of the Gezerah shawah]27 is 'free'. This would therefore be well in accordance with the view maintaining28 that when a Gezerah shawah is 'free', even in one of its texts only, an inference may be drawn and no refutation will be entertained. But according to the view holding29 that though an inference may be drawn in such a case, refutations will nevertheless be entertained, how could the analogy [between dead reptiles and corpses] be maintained?30 - The verbal congruity in the text dealing with corpses is also 'free'. For indeed the law regarding corpses is similarly placed in juxtaposition to semen virile, as written, And whoso toucheth any thing that is unclean by the dead or a man whose seed goeth from him etc.23 Now in the case of semen virile it is explicitly stated, And every garment, and every skin, whereon is the seed of copulation. Why then had the Divine Law to mention again raiment . . . skin in the case of corpses?31 It may thus be concluded that it was [inserted] to be 'free' for exegetical purposes.26 The Gezerah shawah is thus 'free' in both texts. Still this would again be only in accordance with the view maintaining32 that when an inference is made by means of reasoning [from an analogy] the subject of the inference is placed back on its own basis.33 But according to the view that when an inference is made [by means of an analogy] the subject of the inference must be placed on a par with the other in all respects, how can you establish the law [that mats kept in the tent of a corpse become defiled for seven days,34 since you infer it from dead reptiles where the defilement is only for the day]?35 - Said Raba: Scripture states, And ye shall wash your clothes on the seventh day,36 to indicate that all defilements in the case of corpses cannot be for less than for seven [days].

But should we not let Tooth and Foot involve liability for damage done [even] on public ground because of the following a fortiori: If in the case of Horn37 where [even] for damage done on the plaintiff's premises only half payment is involved, there is yet liability to pay for damage done on public ground, does it not necessarily follow that in the case of Tooth and Foot where for damage done on the plaintiff's premises the payment is in full, there should be liability for damage done on public ground? - Scripture, however, says, And it shall feed in another man's field,38 excluding thus [damage done on] public ground.

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(1) Kelim I, 3.
(2) It is thus proved that semen virile of zab causes of itself defilement by 'carrying' and not on account of the particles of gonorrhoea it contains.
(3) Which are not included among the articles referred to in Num. XXXI, 20.
(4) [As he is unable to insert even his small finger within. Earthenware is susceptible to levitical uncleanness only through the medium of its interior. Lev. XI, 33.]
(5) As stated in Num. XIX, 15; and every open vessel . . . is unclean.
(6) In accordance with Lev. XV, 4.
(7) Shab. 84a.
(8) Lit., 'defilement (until) sunset,' which applies to defilements caused by zab; v. Lev. XV, 5-11.
(9) Usual in defilements through a corpse; cf. Num. XIX, 11-16.
(10) [As is the case with the bed of a zab (cf. Lev. XV, 4), since it is derived from zab.]
(11) But not at all regarding corpses; the whole problem thus concerns only defilement for a day; v. infra.
(12) As mats are not included among the articles referred to in Lev. XI, 32.
(13) The minimum quantity for defilement by which is the size of a lentil, a quantity which can easily pass through the opening of the smallest bottle.
(14) As he is unable to insert even his small finger within. Earthenware is susceptible to levitical uncleanness only through the medium of its interior. Lev. XI, 33.
(15) Lev. XI, 32: . . . whether it be any vessel of wood or raiment or skin . . . it shall be unclean until the even.
(16) In accordance with Lev. XV, 4.
(17) Which are not included among the articles referred to in Num. XXXI, 20.
(18) Num. XXXI, 20: And as to every raiment and all that is made of skin . . . ye shall purify.
(19) The technical term for (an inference from) a verbal congruity in two different portions of the Law; v. Glos.
(20) Heb. מופנה (Mufnah), 'free', that is, for exegetical use, having no other purpose to serve, but solely intended to indicate this particular similarity in law.
(21) Hag. 11a; Naz. 52a.
(22) Naz. 49b.
(23) Lev. XXII, 4.
(24) Ibid. XV, 17.
(25) Lev. XI, 32.
(26) Thus to make the Gezerah shawah irrefutable.
(27) I.e., in the case of dead reptiles.
(28) Nid. 22b.
(29) Shab. 131a; Yeb. 70b.
(30) Since the refutation referred to above may be entertained.
(31) Num. XXXI, 20.
(32) Yeb. 78b.
(33) Becoming subject to the specific laws applicable to its own category. [So here mats in the tent of a corpse, though derived by analogy from reptiles, are subject to the laws of defilement by corpses. i.e., a defilement of 7 days.]
(34) Usual in defilements through a corpse; cf. Num. XIX, 11-16.
(35) Lev. XI, 32.
(36) Num. XXXI, 24.
(37) While in the state of Tam; cf. supra p. 73.
(38) Ex. XXII, 4.

Talmud - Mas. Baba Kama 26a

But have we ever suggested payment in full? It was only half payment that we were arguing for!1 - Scripture further says, And they shall divide the money of it2 [to indicate that this3 is confined to] 'the money of it' [i.e.. the goring ox] but does not extend to compensation [for damage caused] by another ox.4

But should we not let Tooth and Foot doing damage on the plaintiff's premises involve the liability for half damages only because of the following a fortiori: If in the case of Horn, where there is liability for damage done even on public ground, there is yet no more than half payment for damage done on the plaintiff's premises,5 does it not follow that, in the case of Tooth and Foot where there is exemption for damage done on public ground,6 the liability regarding damage done on the plaintiff's premises should be for half compensation only? - Scripture says, He shall make restitution,7 meaning full8 compensation.

But should we not [on the other hand] let Horn doing damage on public ground involve no liability at all, because of the following a fortiori: If in the case of Tooth and Foot where the payment for damage done on the plaintiff's premises is in full there is exemption for damage done on public ground.6 does it not follow that, in the case of Horn where the payment for damage done on the plaintiff's premises, is only half, there should be exemption for damage done on public ground? - Said R. Johanan: Scripture says. [And the dead also] they shall divide,9 to emphasise that in respect of half payment there is no distinction between public ground and private premises.10

But should we not let [also] in the case of Man ransom be paid [for manslaughter]11 because of the following a fortiori: If in the case of Ox where there is no liability to pay the [additional] Four Items,12 there is yet the liability to pay ransom [for manslaughter,13 does it not follow that in the case of Man who is liable for the [additional] Four Items,12 there should be ransom [for manslaughter]? - But Scripture states, Whatsoever is laid upon him: upon him13 excludes [the payment of ransom] in the case of Man [committing manslaughter].

But should we not [on the other hand] let Ox involve the liability of the [additional] Four Items because of the following a fortiori: If Man who by killing man incurs no liability to pay ransom14 has, when injuring man, to pay [additional] Four Items,15 does it not follow that, in the case of Ox where there is a liability to pay ransom [for killing man],16 there should similarly be a liability to pay the [additional] Four Items when injuring [man]? - Scripture states, If a man cause a blemish in his neighbour,17 thus excluding Ox injuring the [owner's] neighbour.

It has been asked: In the case of Foot treading upon a child [and killing it] in the plaintiff's premises, what should be the law regarding ransom? Shall we say that this comes under the law applicable to Horn, on the ground that just as with Horn in the case of manslaughter being repeated twice and thrice it becomes habitual with the animal,18 involving thus the payment of ransom,19 so also seems to be the case here20 with hardly any distinction; or shall it perhaps be argued that in the case of Horn there was on the part of the animal a determination to injure, whereas in this case the act was not prompted by a determination to injure? - Come and hear: In the case of an ox having been allowed [by its owner] to trespass upon somebody else's ground and there goring to death the owner of the premises, the ox will be stoned, while its owner must pay full ransom whether [the ox was] Tam or Mu'ad. This is the view of R. Tarfon. Now, whence could R. Tarfon infer the payment of full ransom in the case of Tam, unless he shared the view of R. Jose the Galilean maintaining21 that Tam involves the payment of half ransom for manslaughter committed on public ground, in which case he22 could rightly have inferred ransom in full [for manslaughter on the plaintiff's premises] by means of the a fortiori from the law applicable to Foot?23 This thus proves that ransom has to be paid for [manslaughter committed by] Foot. R. Shimi of Nehardea, however, said that the Tanna24 might have inferred it from the law applicable to [mere] damage done by Foot.25 But [if so] cannot the inference be refuted? For indeed what analogy could be drawn to damage done by Foot, the liability for which is common also with Fire [whereas ransom does not apply to Fire]?26 - [The inference might have been] from damage done to hidden goods [in which case the liability is not common with Fire].27 Still what analogy is there to hidden goods, the liability for which is common with Pit [whereas ransom for manslaughter does not apply to Pit]?28 - The inference might have been from damage done to inanimate objects29 [for which there is no liability in the case of Pit].30 Still what analogy is there to inanimate objects, the liability for which is again common with Fire? - The inference might therefore have been from damage done to inanimate objects that were hidden [for which neither Fire nor Pit involve liability]. But still what comparison is there to hidden inanimate objects, the liability for which is common at least with Man [whereas ransom is not common with Man]?31 - Does this therefore not prove that he32 must have made the inference from ransom [for manslaughter] in the case of Foot,33 proving thus that ransom has to be paid for manslaughter committed by Foot? - This certainly is proved.

R. Aha of Difti said to Rabina: It even stands to reason that ransom has to be paid in the case of Foot. For if you say that in the case of Foot there is no ransom, and that the Tanna34 might have made the inference from the law applicable to mere damage done by Foot,35 his reasoning could easily be refuted. For what analogy could be drawn to damage done by Foot for which there is liability in the case of Foot [whereas this is not the case with ransom]? Does this [by itself] not show that the inference could only have been made from ransom in the case of Foot,36 proving thus that ransom has to be paid for [manslaughter conmitted by] Foot? - It certainly does show this.

MISHNAH. MAN IS ALWAYS MU'AD WHETHER [HE ACTS] INADVERTENTLY OR WILFULLY, WHETHER AWAKE OR ASLEFP.37 IF HE BLINDED HIS NEIGHBOUR'S EYE OR BROKE HIS ARTICLES, FULL COMPENSATION MUST [THEREFORE] BE MADE.

GEMARA. Blinding a neighbour's eye is placed here in juxtaposition to breaking his articles [to indicate that] just as in the latter case only Depreciation will be indemnified, whereas the [additional] Four Items [of liability]38 do not apply, so also in the case of inadvertently blinding his neighbour's eye only Depreciation will be indemnified, whereas the [additional] Four Items do not apply.

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(1) On the analogy to Horn where the liability is only for half damages in the case of Tam. The Scriptural text may have been intended to exclude only full compensation.
(2) Ex. XXI, 35.
(3) I.e., the division of compensation.
(4) With the exception of course of damage done by Pebbles according to the Rabbis, who by the authority of a special Mosaic tradition order the payment of half damages; cf. supra p. 80.
(5) In accordance with the Rabbis who differ from R. Tarfon; v. supra p. 125.
(6) Supra p. 132.
(7) Ex. XXII, 4.
(8) Lit., 'good', 'perfect'.
(9) [Ex. XXI, 35; the phrase being superfluous, as the text could have read, They shall divide the money of it and the dead.]
(10) Cf. supra p. 92.
(11) V. Supra p. 12.
(12) I.e., Pain, Medical Expenses, Loss of Time and Degradation, in addition to Depreciation, when injuring a human being; v. supra ibid.
(13) Ex. XXI, 30.
(14) V. supra p. 12.
(15) V. p. 133, n. 8.
(16) V. Ex. XXI, 30.
(17) Lev. XXIV, 19.
(18) Which becomes Mu'ad; v. supra p. 119.
(19) Ex. XXI, 30.
(20) With Foot, which is always considered Mu'ad; v. supra p. 11.
(21) Supra p. 66 and infra 48b.
(22) I.e., R. Tarfon.
(23) In the same way as he derived compensation in full for damage done by Horn on the plaintiff's premises, as argued by him, supra p. 125. [Thus: If in the case of Tooth and Foot, where there is no liability at all involved on public ground, there is liability to pay full ransom on the plaintiff's premises, does it not follow that Horn, which does involve at least payment of half ransom on public ground, should on the plaintiff's premises be liable to pay full ransom.]
(24) V. p. 134, n. 9.
(25) And not from the law applicable to manslaughter committed by Foot, in which case there may be no ransom at all. [Thus: If in the case of Foot, which involves no liability for damage on public ground, there is liability to pay in full in the plaintiff's premises, does it not follow that, in the case of Horn, involving as it does payment of half ransom on public ground, there should be payment of full ransom in plaintiff's premises.]
(26) For the person liable for arson may, in such a case, be indicted for manslaughter; cf. supra pp. 37-38 and p. 113.
(27) [Thus: If in the case of Foot, which involves no liability at all on public ground, there is full liability for hidden goods on the plaintiff's premises, does it not follow that, in the case of Horn, which involves liability to pay half damages on public ground, there should be payment of full ransom in plaintiff's premises?] Cf. supra p. 18.
(28) As stated supra p. 37.
(29) Cf. notes 2 and 4.
(30) V. supra p. 18.
(31) For all civil complaints are merged in the capital accusation of manslaughter; cf. supra, p. 113 and Num. XXXV, 32.
(32) I.e., R. Tarfon.
(33) V. supra. 134, n. 10.
(34) I.e., R. Tarfon
(35) V. supra p. 135, n. 2.
(36) V, supra p. 134, n. 10.
(37) Cf. supra p. 8.
(38) I.e., Pain, Medical Expenses, Loss of Time and Degradation; cf. supra p. 133 n. 8.

Talmud - Mas. Baba Kama 26b

. Whence is this ruling1 deduced? Hezekiah said, and thus taught a Tanna of the School of Hezekiah: Scripture states, Wound instead of a wound2 - to impose the liability [for Depreciation] in the case of inadvertence as in that of willfulness, in the case of compulsion as in that of willingness. [But] was not that [verse] required to prescribe [indemnity for] Pain even in the case where Depreciation is independently paid? - If that is all,3 Scripture should have stated, 'Wound for a wound',4 why state, [wound] instead of a wound,5 unless to indicate that both inferences be made from it?

Rabbah said: In the case of a stone lying in a person's bosom without his having knowledge of it, so that when he rose it fell down - regarding damage, there will be liability for Depreciation6 but exemption regarding the [additional] Four Items;7 concerning Sabbath8 [there will similarly be exemption] as it is [only] work that has been [deliberately] purposed that is forbidden by the Law;9 in a case of manslaughter10 there is exemption from fleeing [to a city of refuge];11 regarding [the release of] a slave,12 there exists a difference of opinion between R. Simeon b. Gamaliel and the Rabbis, as it was taught:13 If the master was a physician and the slave requested him to attend to his eye and it was accidentally blinded, or [the slave requested the master] to scrape his tooth and it was accidentally knocked out, he may now laugh at the master, for he has already obtained his liberty. R. Simeon b. Gamaliel, however, says: [Scripture states] and [he] destroy it,14 to make the freedom conditional upon the master intending to ruin the eye of the slave.

If the person, however, had at some time been aware of the stone in his bosom but subsequently forgot all about it, so that when he rose it fell down, - in the case of damage there is liability for Depreciation;15 but though the exemption regarding the [additional] Four Items still holds good,16 in the case of manslaughter17 he will have to flee [to a city of refuge], for Scripture says, at unawares,18 implying the existence of some [previous] knowledge [as to the dangerous weapon] and in the case before us such knowledge did at a time exist: concerning Sabbath,19 however, there is still exemption; regarding [the release of] a slave the difference of opinion between R. Simeon b. Gamaliel and the Rabbis20 still applies.

Where he intended to throw the stone to a distance of two cubits, but it fell at a distance of four,21 if it caused damage, there is liability for Depreciation; regarding the [additional] Four Items there is still exemption;16 so also concerning Sabbath,19 for work [deliberately] planned is required [to make it an offence];22 in the case of manslaughter,23 And if a man lie not in wait,24 is stated by Divine law, excluding a case where there was mention to throw a stone to a distance of two cubits but which fell at a distance of four.25 Regarding [the release of] a slave, the difference of opinion between R. Simeon b. Gamaliel and the Rabbis20 still applies. Where the intention was to throw the stone to a distance of four21 cubits but it fell eight cubits away, - if it caused damage there will be liability for Depreciation; regarding the [additional] Four Items there is still exemption;16 concerning Sabbath, if there was express intention that the stone should fall anywhere, there is liability for an offence,21 but in the absence of such express intention no offence was committed;26 in the case of manslaughter,27 And if a man lie not in wait,28 excludes a case where there was intention to throw a stone to a distance of four cubits, but which fell at a distance of eight. Regarding [the release of] a slave the difference of opinion between R. Simeon b. Gamaliel and the Rabbis29 still applies.

Rabbah again said: In the case of one throwing a utensil30 from the top of a roof and another one coming and breaking it with a stick [before it fell upon the ground where it would in any case have been broken], the latter is under no liability to pay; the reason being that it was only a utensil which was already certain to be broken that was broken by him.

Rabbah further said: In the case of a man throwing a utensil31 from the top of the roof while there were underneath mattresses and cushions which were meanwhile removed by another person, or even if he [who had thrown it] removed them himself, there is exemption; the reason being that at the time of the throwing [of the utensil] his agency had been void of any harmful effect.32

Rabbah again said: In the case of one throwing a child from the top of the roof and somebody else meanwhile appearing and catching it on the edge of his sword, there is a difference of opinion between R. Judah b. Bathyra and the Rabbis.33 For it was taught: In the case of ten persons beating one [to death] with ten sticks, whether simultaneously or consecutively, none of them

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(1) That Man is Mu'ad to pay Depreciation for damage done by him under all circumstances.
(2) [Literal rendering of Ex. XXI, 25, which is superfluous having regard to Lev. XXIV, 19, If a man maim his neighbour, as he hath done so shall it be done to him.]
(3) That one is not merged in the other; cf. infra 85a.
(4) Expressed in Hebrew only by two words פצע בפצע
(5) For which three words are employed in the Hebrew text.
(6) For Man is Mu'ad to pay Depreciation even for damage done while asleep.
(7) On account of the absence of a purpose to do damage.
(8) I.e., if while unaware of the stone in his bosom he carried it with him into the open public thoroughfare, thus violating the Sabbath; cf. Shab. 96b.
(9) V. infra 60a; Hag. 10b.
(10) I.e., if, when the stone fell down, it killed a human being; v. Num. XXXV. 9-34.
(11) Since he never had any knowledge of the stone being in his bosom, he could in no way be made responsible criminally for the accidental manslaughter.
(12) I.e., when the stone in falling down destroyed the eye or the tooth of a slave; v. Ex. XXI. 26-27.
(13) Kid. 24b.
(14) Ex. XXI, 26.
(15) For Man is Mu'ad to pay Depreciation even for damage done while asleep.
(16) On account of the absence of a will to do damage.
(17) I.e., if when the stone fell down, it killed a human being; v. Num. XXXV, 9-34.
(18) Num. XXXV, 11, 15.
(19) I.e., if while unaware of the stone in his bosom he carried it with him into the open public thoroughfare, thus violating the Sabbath; cf. Shab. 96b.
(20) Supra p. 137.
(21) For the minimum of distance to constitute the violation of Sabbath by throwing an object in a public thoroughfare is four cubits; v. Shab. 96b.
(22) v. supra p. 137, n. 7.
(23) I.e., if when the stone fell down, it killed a human being; v. Num. XXXV, 9-34.
(24) Ex. XXI, 13.
(25) [According to one interpretation of Rashi, this is a case for exile; according to another, a case which is excluded from enjoying the protection of the city of refuge: v. Mak. 7b.]
(26) V. p. 137, n. 7.
(27) V. p. 138 n.3.
(28) Ex. XXI, 13.
(29) V. supra p. 137.
(30) Belonging to another. According to the interpretation of Rashi a.l. the utensil was thrown by its owner; cf. however, Rashi, supra 17b.
(31) Belonging to another.
(32) Lit., 'he had let his arrow off', it had spent its force; i.e., when the act of throwing took place it was by no means calculated to do any damage.
(33) According to R. Judah, the latter who caught it on the edge of his sword will be guilty of murder, but according to the Rabbis, no one is guilty of it.

Talmud - Mas. Baba Kama 27a

is guilty of murder: R. Judah b. Bathyra, however says: If consecutively the last is liable, for he was the immediate cause of the death.1 In the case where an ox meanwhile appeared and caught the [falling] child on its horns there is a difference of opinion between R. Ishmael the son of R. Johanan b. Beroka and the Rabbis.2 For it was taught: Then he shall give for the redemption of his life3 [denotes] the value of the [life of] the killed person. R. Ishmael the son of R. Johanan b. Beroka interprets it to refer to the value of the [life of] the defendant.2

Rabbah further said: In the case of one falling from the top of the roof and [doing damage by] coming into close contact with a woman, there is liability for four items,4 though were she his deceased brother's wife5 he would thereby not yet have acquired her for wife.6 The Four Items [in this case] include: Depreciation, Pain, Medical Expenses and Loss of Time, but not Degradation. for we have learnt:7 There is no liability for Degradation unless there is intention [to degrade].

Rabbah further said: In the case of one who through a wind of unusual occurrence fell from the top of the roof [upon a human being] and did damage as well as caused degradation, there will be liability for Depreciation8 but exemption from the [additional] Four Items:9 if, however, [the fall had been] through a wind of usual occurrence and damage as well as degradation was occasioned, there is liability for Four Items4 but exemption from Degradation.7 If he turned over [while falling]10 there would be liability also for Degradation for it was taught: From the implication of the mere statement, And she putteth forth her hand,11 would I not have understood that she taketh him? Why then continue in the text and she taketh him?12 - In order to inform you that since there existed an intention to injure though none to cause degradation [there is liability even for Degradation]. Rabbah again said: In the case of one placing a live coal on a neighbour's heart and death resulting, there is exemption;13 if, however, it was put upon his belongings14 which were [thereby] burnt, there is liability.15 Raba said: Both of the two [latter cases] have been dealt with in Mishnah. Regarding the case 'on a neighbour's heart' we learnt:16 If one man held another fast down in fire or in water, so that it was impossible for him to emerge and death resulted, he is guilty [of murder]. If, however, he pushed him into fire or into water, and it was yet possible for him to emerge but death resulted, there is exemption. Regarding the case 'Upon his belongings' we have similarly learnt:17 [If a man says to another,] 'Tear my garment;' 'Break my jug;'18 there is nevertheless liability [for any damage done to the garment or to the jug]. But if he said, '. . . upon the understanding that you will incur no liability,' there is exemption. Rabbah, however, asked: If a man placed a live coal upon the heart of a slave19 [and injury20 results therefrom], what should be the law?21 Does it come under the law applicable in the case of a coal having been placed upon the body of the master himself,22 or to that applicable in the case of a coal having been placed upon a chattel of his?23 Assuming that it is subject to the law applicable in the case of a coal having been placed upon the heart of the master himself,22 what should be the law regarding a live coal placed upon an ox [from which damage resulted]? - He himself answered the query thus: His slave is on a par with his own body,22 whereas his ox is on a par with his chattels.23

CHAPTER 3

MISHNAH. IF A MAN PLACES A [KAD] PITCHER ON PUBLIC GROUND AND ANOTHER ONE COMES AND STUMBLES OVER IT AND BREAKS IT, HE IS EXEMPT. IF THE OTHER ONE WAS INJURED BY IT, THE OWNER OF THE [HABITH] BARREL IS LIABLE TO COMPENSATE FOR THE DAMAGE.

GEMARA. To commence with PITCHER24 and conclude with BARREL!25 And we have likewise learnt also elsewhere:26 If one man comes with his [habith] barrel and another comes with his beam and [it so happened that] the [kad] pitcher of this one breaks by [collision with] the beam of that one, he is exempt.26 Here [on the other hand] the commencement is with barrel25 and the conclusion with pitcher!24 We have again likewise learnt elsewhere: In the case of this man coming with a [habith] barrel of wine and that one proceeding with a [kad] pitcher of honey, and as the [habith] barrel of honey cracked, the owner of the wine poured out his wine and saved the honey into his barrel, he is entitled to no more than his service.27 Here again the commencement is with pitcher25 and the conclusion with barrel!25 R. Papa thereupon said: Both kad and habith may denote one and the same receptacle. But what is the purpose in this observation?28 - Regarding buying and selling.29 But under what circumstances? It could hardly be thought to refer to a locality where neither kad is termed habith nor habith designated kad, for are not these two terms then kept there distinct? - No, it may have application in a locality where, though the majority of people refer to kad by the term kad and to habith by the term habith, yet there are some who refer to habith by the term kad and to kad by the term habith. You might perhaps have thought that the law30 follows the majority.31

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(1) Cf. supra p. 41.
(2) Infra pp. 224-5. According to R. Ishmael compensation for manslaughter will have to be made by the owner of the ox, but according to the Rabbis there will be no payment, as the child at the time of the fatal fall was devoid of any value.
(3) Ex. XXI, 30.
(4) For since the falling down was caused by a wind of usual occurrence, it is considered wilful.
(5) V. Deut. XXV, 5, and Yeb. VI, 1.
(6) Cf. Kid. I, 1, and Yeb. 56a.
(7) Infra, 86b.
(8) For Man is Mu'ad to pay Depreciation even for damage done while asleep.
(9) On account of the absence of a will to do damage.
(10) Intending thus to fall upon a human being standing below so as to escape the worst effects of his falling, but without intention to degrade.
(11) Deut. XXV, 11.
(12) Ibid.
(13) Since the person upon whose heart the live coal had been placed was able to remove it.
(14) Lit., 'garment'.
(15) [In this case, the failure of the owner to remove the coal could be explained as due to his belief that he could claim compensation.]
(16) Sanh. 76b.
(17) Infra p. 531.
(18) This does not imply release from liability, as he might have meant, 'You may tear, if you wish it,' with all the consequences it involves.
(19) In the presence of his master; cf. Tosaf. a.l.
(20) Not death.
(21) Regarding compensation, as he could have removed it.
(22) In which case there is exemption.
(23) Where there is liability.
(24) Heb. Kad.
(25) Heb. Habith.
(26) Infra p. 169.
(27) V. infra p. 685.
(28) How can it affect law.
(29) The two terms may be interchanged in contracts as they are synonyms.
(30) Regulating technical terms in contracts of sale.
(31) Who keep the two terms distinct.

Talmud - Mas. Baba Kama 27b

It is therefore made known to us that we do not follow the majority1 in [disputes on] matters of money.2

AND ANOTHER ONE COMES AND STUMBLES OVER IT AND BREAKS IT, HE IS EXEMPT. Why exempt? Has not one to keep one's eyes open when walking? - They said at the school of Rab, even in the name of Rab: The whole of the public ground was filled with barrels.3 Samuel said: It is with reference to a dark place that we have learnt [the law in the Mishnah]. R. Johanan said: The pitcher was placed at the corner of a turning.4 R. Papa said: Our Mishnah is not consistent unless in accordance with Samuel or R. Johanan, for according to Rab why exemption only in the case of stumbling [over the pitcher]? Why not the same ruling even when one directly broke it? - R. Zebid thereupon said in the name of Raba: The same law applies even when the defendant directly broke it; for AND STUMBLES was inserted merely because of the subsequent clause which reads, IF THE OTHER ONE WAS INJURED BY IT, THE OWNER OF THE BARREL IS LIABLE TO COMPENSATE FOR THE DAMAGE; and which of course applies only to 'stumbling' but not to direct breaking, in which case it only stands to reason that it is the plaintiff who is to blame for the damage he caused to himself. It was therefore on this account that 'stumbling' was inserted in the commencing clause.

R.Abba said to R. Ashi: In the West5 the following [explanation] is stated in the name of R. 'Ulla: [The exemption6 is] because it is not the habit of men to look round while walking on the road.7 Such a case occurred in Nehardea8 where Samuel ordered compensation [for the broken utensil] and so also in Pumbeditha8 where Raba similarly ordered compensation to he paid. We understand this in the case of Samuel who abided by the dictum he himself propounded,9 but regarding Raba are we to say that he [also] embraced the view of Samuel? - R. Papa thereupon said: [In the case of Raba] the damage was done at the corner of an oil factory; and since it was usual to keep there barrels, he10 ought to have kept his eyes open while walking there.11

R.Hisda dispatched [the following query] to R. Nahman: As there has already been fixed a fine12 of three sela's13 for kicking with the knee; five for kicking with the foot; thirteen for a blow with the saddle of an ass - what is the fine for wounding with the blade of the hoe or with the handle of the hoe? - The reply was forwarded [as follows]: 'Hisda, Hisda! Is it your practice in Babylon to impose fines?14 Tell me the actual circumstances of the case as it occurred.' He15 thereupon dispatched him thus: There was a well belonging to two persons. It was used by them on alternate days.16 One of them, however, came and used it on a day not his. The other party said to him: 'This day is mine!' But as the latter paid no heed to that, he took a blade of a hoe and struck him with it. R. Nahman thereupon replied: No harm if he would have struck him a hundred times with the blade of the hoe. For even according to the view that a man may not take the law in his own hands17 for the protection of his interests, in a case where an irreparable loss is pending18 he is certainly entitled to do so.

It has indeed been stated: Rab Judah said: No man may take the law into his own hands for the protection of his interests, whereas R. Nahman said: A man may take the law into his own hands for the protection of his interests. In a case where an irreparable loss is pending, no two opinions exist that he may take the law into his own hands for the protection of his interests: the difference of opinion is only where no irreparable loss is pending. Rab Judah maintains that no man may take the law into his own hands for the [alleged] protection of his interests, for since no irreparable loss is pending let him resort to the Judge; whereas R. Nahman says that a man may take the law into his own hands for the protection of his interests, for since he acts in accordance with [the prescriptions of the] law, why [need he] take the trouble [to go to Court]?

R. Kahana [however] raised an objection; Ben Bag Bag said;19 Do not enter [stealthily] into thy neighbour's premises for the purpose of appropriating without his knowledge anything that even belongs to thee, lest thou wilt appear to him as a thief. Thou mayest, however, break his teeth and tell him, 'I am taking possession of what is mine.'20 [Does not this prove that a man may take the law into his own hands21 for the protection of his rights?22 ] - He23 thereupon said

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(1) Cf. infra p. 263 and B.B. 92b.
(2) As the defendant is entitled to plead that he belongs to the minority.
(3) Such a public nuisance may thus be abated.
(4) The defendant is thus not to blame.
(5) I.e., in Eretz Yisrael, which is West of Babylon.
(6) For breaking the pitcher.
(7) Probably because the roads in Eretz Yisrael were in better condition than in Babylon; v. Shab. 33b; A. Z. 3a.
(8) A town in Babylon.
(9) That were the pitcher to have been in a visible place there would be liability.
(10) The defendant.
(11) And was thus to blame for the damage he had done.
(12) Cf. infra 90a, dealing with some other fixed fines.
(13) Sela' is a coin equal to one sacred or two common shekels; v. Glos.
(14) For the judicial right to impose fines is confined to Palestinian judges; cf. supra p. 67 and infra 84b.
(15) R. Hisda.
(16) Cf. B.B. 13a.
(17) I.e., resort to force.
(18) As where there is apprehension that the Court will be unable to redress the wrong done, e.g., in case all the water in the well will be used up.
(19) V. Ab. (Sonc. ed.) p. 76. n.7.
(20) Cf. Tosef. B.K. X.
(21) Since it is definitely stated that he may break his teeth . . . [The case dealt with here is where the loss is not irreparable, otherwise, as stated above, he would be allowed to enter even without permission.]
(22) Thus contradicting the view of Rab Judah.
(23) Rab Judah.

Talmud - Mas. Baba Kama 28a

: It is true that Ben Bag Bag supports thy view; but he is only one against the Rabbis1 who differ from him. R. Jannai [even] suggested that 'Break his teeth' may also mean to bring him before a court of justice. But if so, why 'and thou mayest tell him?' Should it not read 'and they2 will tell him'? Again, 'I am taking possession of what is mine'; should it not be 'he is taking possession of what is his'? - This is indeed a difficulty.

Come and hear: In the case of an ox throwing itself upon the back of another's ox so as to kill it, if the owner of the ox that was beneath arrived and extricated his ox so that the ox that was above dropped down and was killed, there is exemption. Now, does not this ruling apply to Mu'ad3 where no irreparable loss is pending? - No, it only applies to Tam4 where an irreparable loss is indeed pending. But if so, read the subsequent clause: If [the owner of the ox that was beneath] pushed the ox from above, which was thus killed, there would be liability to compensate. Now if the case dealt with is of Tam,5 why liability? - Since he was able to extricate his ox from beneath, which in fact he did not do,[he had no right to push and directly kill the assailing ox].6

Come and hear: In the case of a trespasser having filled his neighbour's premises with pitchers of wine and pitchers of oil, the owner of the premises is entitled to break them when going out and break them when coming in. [Does not this prove that a man may take the law into his own hands for the protection of his rights?]7 - R. Nahman b. Isaac explained: He is entitled to break them [and make a way]8 when going out [to complain] to the Court of Justice, as well as break them when coming back to fetch some necessary documents.

Come and hear: Whence is derived the ruling that in the case of a [Hebrew] bondman whose term of service, that had been extended by the boring of his ear,9 has been terminated by the arrival of the Jubilee year10 if it so happened that his master, while insisting upon him to leave, injured him by inflicting a wound upon him, there is yet exemption? We learn it from the words, And ye shall take no satisfaction for him that is . . . come again . . .11 implying that we should not adjudicate compensation for him that is determined to 'come again' [as a servant].12 [Does not this prove that a man may take the law into his own hands for the protection of his interests?]7 - We are dealing here with a case where the servant became suspected of intending to commit theft.13 But how is it that up to that time he did not commit any theft and just at that time14 he became suspected of intending to commit theft? - Up to that time he had the fear of his master upon him, whereas from that time14 he is no more subject to his master's control.10 R. Nahman b. Isaac said: We are dealing with a bondman to whom his master assigned a Canaanite maidservant as wife:15 up to the expiration of the term this arrangement was lawful15 whereas from that time this becomes unlawful.16

Come and hear:IF A MAN PLACES A PITCHER ON PUBLIC GROUND AND ANOTHER ONE COMES AND STUMBLES OVER IT AND BREAKS IT, HE IS EXEMPT. Now, is not this so only when the other one stumbled over it, whereas in the case of directly breaking it there is liability?17 - R. Zebid thereupon said in the name of Raba: The same law applies even in the case of directly breaking it; for 'AND STUMBLES' was inserted merely because of the subsequent clause which reads, IF THE OTHER ONE WAS INJURED BY IT, THE OWNER OF THE BARREL IS LIABLE TO COMPENSATE FOR THE DAMAGE, and which, of course, applies only to stumbling but not to direct breaking, as then it is of course the plaintiff who is to blame for the damage he caused to himself. It was therefore on this account that 'stumbling' was inserted in the commencing clause.

Come and hear: Then thou shalt cut off her hand,18 means only a monetary fine. Does not this ruling apply even in a case where there was no other possibility for her to save [her husband]?19 - No, it applies only where she was able to save [him] by some other means.20 Would indeed no fine be imposed upon her in a case where there was no other possibility for her to save [her husband]? But if so, why state in the subsequent clause: 'And putteth forth her hand,21 excludes an officer of the Court of Justice [from any liability for degradation caused by him while carrying out the orders of the Court]'? Could not the distinction be made by continuing the very case22 [in the following manner]: 'Provided that there were some other means at her disposal to save [him],20 whereas if she was unable to save [him] by any other means there would be exemption'? - This very same thing was indeed meant to be conveyed [in the subsequent clause:] 'Provided that there were some other means at her disposal to save [him],23 for were she unable to save [him] by any other means, the resort to force in her case should be considered as if exercised by an officer of the Court24 [in the discharge of his duties] and there would be exemption.'

Come and hear:25 In the case of a public road passing through the middle of a field of an individual, who appropriates the road but gives the public another at the side of his field, the gift of the new road holds good, whereas the old one will not thereby revert to the owner of the field. Now, if you maintain that a man may take the law into his own hands for the protection of his interests, why should he not arm himself with a whip and sit there?26 - R. Zebid thereupon said in the name of Raba: This is a precaution lest an owner [on further occasions] might substitute a round- about way27 [for an old established road]. R. Mesharsheya even suggested that the ruling applies to an owner who actually replaced [the old existing road by] a roundabout way.27 R. Ashi said: To turn a road [from the middle] to the side [of a field] must inevitably render the road roundabout, for if for those who reside at that side it becomes more direct, for those who reside at the other side it is made far [and roundabout]. But if so, why does the gift of the new road hold good? Why can the owner not say to the public authorities: 'Take ye yours [the old path] and return me mine [the new one]'? - [That could not be done] because of Rab Judah, for Rab Judah said:28 A path [once] taken possession of by the public may not be obstructed.

Come and hear: If an owner leaves Pe'ah29 on one side of the field, whereas the poor arrive at another side and glean there, both sides are subject to the law of Pe'ah. Now, if you really maintain that a man may take the law into his own hands for the protection of his interests why should both sides be subject to the law of Pe'ah?30 Why should the owner not arm himself with a whip and sit?31 - Raba thereupon said: The meaning of 'both sides are subject to the law of Pe'ah' is that they are both exempt from tithing,32 as taught:33 If a man, after having renounced the ownership of his vineyard, rises early on the following morning and cuts off the grapes,34 there applies to them the laws of Peret,35 'Oleloth,36 'Forgetting'37 and Pe'ah38 whereas there is exemption from tithing.39

MISHNAH. IF HIS PITCHER BROKE ON PUBLIC GROUND AND SOMEONE SLIPPED IN THE WATER OR WAS INJURED BY THE POTSHERD HE IS LIABLE [TO COMPENSATE]. R. JUDAH SAYS: IF IT WAS DONE INTENTIONALLY HE IS LIABLE, BUT IF UNINTENTIONALLY HE IS EXEMPT.

GEMARA. Rab Judah said on behalf of Rab: The Mishnaic ruling refers only to garments soiled in the water.40

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(1) I.e., the majority of Rabbis.
(2) I.e., the Judges.
(3) In which case the Court would order compensation in full.
(4) Where compensation is only for a half, the plaintiff losing the other half.
(5) V. p. 145, n. 9.
(6) [Although there was the danger of his losing the full value of his ox.]
(7) Thus contradicting the view of Rab Judah.
(8) But no more.
(9) Ex. XXI, 6.
(10) Lev. XXV, 10, and Kid. 14b, 15a.
(11) Num. XXXV, 32.
(12) According to another rendering quoted by Rashi, it means 'that has to return' to his family, as prescribed in Lev. XXV, 10.
(13) In which case an irreparable loss is pending.
(14) I.e., the arrival of the Jubilee year.
(15) Ex. XXI, 4; Kid. 15a.
(16) Cf. Onkelos on Deut. XXIII, 18; hence the Master may use force to eject him.
(17) Thus opposing the view of R. Nahman.
(18) Deut. XXV, 12.
(19) Thus proving that even where irreparable loss is pending, as in this case, it is not permitted to take the law into one's own hands.
(20) In which case she acted ultra vires, i.e beyond the permission granted by law.
(21) Deut. XXV, 11.
(22) Dealing with a woman coming to rescue her husband.
(23) V. p. 147. n. 6.
(24) Lit. 'her hand is like the hand of the officer'.
(25) B. B. 99b.
(26) To keep away intruders; v. p. 147 n. 5.
(27) Which is of course not an equitable exchange in accordance with the law.
(28) B.B. 12a; 26b; 60b and 100a.
(29) I.e., the portion of the harvest left at a corner of the field for the poor in accordance with Lev. XIX. 9; XXIII, 22; v. Glos.
(30) Thus proving that even where irreparable loss is pending, as in this case, it is not permitted to take the law into his own hands.
(31) I.e., keeping the poor away from the Pe'ah on the former side.
(32) But they will by no means belong to the poor, for the portion left on the former side remains the owner's property.
(33) Infra 94a; Ned. 44b.
(34) So that ownership has been re-established.
(35) I.e.. grapes fallen off during cutting which are the share of the poor as prescribed in Lev. XIX, 10.
(36) Small single bunches reserved for the poor in accordance with Lev. XIX, 10, and Deut. XXIV, 21.
(37) I.e., produce forgotten in the field, belonging to the poor in accordance with Deut. XXIV, 19.
(38) I.e the portion of the harvest left at a corner of the field for the poor in accordance with Lev. XIX, 9; XXIII, 22; v. Glos.
(39) V. infra 94a. For the law of tithing applies only to produce that has never been abandoned even for the smallest space of time; v. Rashi and Tosaf. a.l.
(40) Rab maintains that the Mishnah deals with a case where the water of the broken pitcher has not been abandoned, so that it still remains the chattel of the original owner who is liable for any damage caused by it

Talmud - Mas. Baba Kama 28b

For regarding injury to the person there is exemption, since it was public ground1 that hurt him.2 When repeating this statement in the presence of Samuel he said to me: 'Well, is not [the liability for damage occasioned by] a stone, a knife or luggage3 derived from Pit?4 So that I adopt regarding them all [the interpretation]: An ox4 excluding man, An ass4 excluding inanimate objects! This qualification5 however applies only to cases of killing, whereas as regards [mere] injury, in the case of man there is liability, though with respect to inanimate objects there is [always] exemption?'6 - Rab [however, maintains7 that] these statements apply only to nuisances abandoned [by their owners],8 whereas in cases where they are not abandoned they still remain [their owner's] chattel.9

R. Oshaia however raised an objection: 'And an ox or an ass fall therein':4 'An ox' excluding man; 'an ass' excluding inanimate objects. Hence the Rabbis stated: If there fell into it an ox together with its tools and they thereby broke, [or] an ass together with its equipment which rent, there is liability for the beast but exemption as regards the inanimate objects.10 To what may the ruling in this case be compared? To that applicable in the case of a stone, a knife and luggage11 that had been left on public ground and did damage. (Should it not on the contrary read, 'What case may be compared to this ruling?'12 - It must therefore indeed mean thus: 'What may [be said to] be similar to this ruling? The case of a stone, a knife and luggage that had been left on public ground and did damage'.) 'It thus follows that where a bottle broke against the stone there is liability.' Now, does not the commencing clause13 contradict the view of Rab,14 whereas the concluding clause15 opposes that of Samuel?16 - But [even] on your view, does not the text contradict itself, stating exemption in the commencing clause13 and liability in the concluding clause!15 Rab therefore interprets it so as to accord with his reasoning, whereas Samuel [on the other hand] expounds it so as to reconcile it with his view. Rab in accordance with his reasoning interprets it thus: The [above] statement13 was made only regarding nuisances that have been abandoned, whereas where they have not been abandoned there is liability.17 It therefore follows that where a bottle broke against the stone there is liability. Samuel [on the other hand] in reconciling it with his view expounds it thus: Since you have now decided that a stone, a knife and luggage [constitute nuisances that] are equivalent [in law] to Pit, it follows that, according to R. Judah who orders compensation for inanimate objects damaged by Pit,18 where a bottle smashed against the stone there is liability.

R. Eleazar said: This ruling15 refers only to a case where the person stumbled over the stone and the bottle broke against the stone. For if the person stumbled because of the public ground, though the bottle broke against the stone, there is exemption.19 Whose view is here followed? - Of course not that of R. Nathan20 . There are, however, some who [on the other hand] read: R. Eleazar said: Do not suggest that it is only where the person stumbled upon the stone and the bottle broke against the stone that there is liability, so that where the person stumbled because of the public ground, though the bottle broke against the stone, there would be exemption. For even in the case where the person stumbled because of the public ground, provided the bottle broke against the stone there is liability. Whose view is here followed? - Of course that of Nathan.20

R. JUDAH SAYS: IF IT WAS DONE INTENTIONALLY HE IS LIABLE, BUT IF UNINTENTIONALLY HE IS EXEMPT. What does INTENTIONALLY denote? - Rabbah said: [It is sufficient21 if there was] an intention to bring the pitcher below the shoulder.22 Said Abaye to him: Does this imply that R. Meir23 imposes liability even when the pitcher slipped down [by sheer accident]? - He answered him:24 'Yes, R. Meir imposes liability even where the handle remained in the carrier's hand.' But why? Is it not sheer accident, and has not the Divine Law prescribed exemption in cases of accident as recorded,25 But unto the damsel thou shalt do nothing?26 You can hardly suggest this ruling to apply only to capital punishment, whereas regarding damages there should [always] be liability, for it was taught:27 If his pitcher broke and he did not remove the potsherds, [or] his camel fell down and he did not raise it, R. Meir orders payment for any damage resulting therefrom, whereas the Sages maintain

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(1) Lit 'ground of the world'.
(2) Whereas the water was only the remote cause of it.
(3) Even when not abandoned; cf. supra p. 7.
(4) Ex. XXI, 33.
(5) Excluding man.
(6) For killing and injury could not be distinguished in the case of inanimate objects. How then could Rab make him liable for soiled garments (and exempt for injury to the person)?
(7) The difference in principle between Samuel and Rab is that the former maintains that nuisances of all kinds, whether abandoned by their owners or not, are subject to the law applicable to Pit, in which case there is no liability either for damage done to inanimate objects or death caused to human beings, whereas the view of Rab is that only abandoned nuisances are subject to these laws of Pit, but nuisances that have not been abandoned by their owners are still his chattels, and as such have to be subject to the law applicable to ox doing damage, in which case no discrimination is made as to the nature of the damaged objects, be they men, beasts or inanimate articles; cf. also supra p. 38.
(8) In which case they are equal (in law) to Pits dug on public ground.
(9) They are thus subject to the law applicable to ox; v. supra p. 18.
(10) V. infra 52a.
(11) Even when not abandoned; cf. supra p. 7.
(12) Since the case of stone, knife and luggage is far less obvious than this case which is explicitly dealt with in Scripture.
(13) Making a stone, a knife and luggage subject to the law applicable to Pit.
(14) Who maintains that unless they have been abandoned they are subject to the law of Ox.
(15) Imposing liability in the case of a bottle having been smashed against the stone.
(16) According to whom it should be subject to the law applicable to Pit imposing no liability for damage done to inanimate objects.
(17) Even for damage done to inanimate objects, as they are subject not to the law of Pit but to that applicable to Ox.
(18) Supra p. 18.
(19) Since it was ownerless ground that was the primary cause of the accident.
(20) Who holds that where no payment can be exacted from one defendant, the co-defendant, if any, will himself bear the whole liability; cf supra p. 54 and infra 53a
(21) To constitute liability.
(22) Though there was no intention whatever to break it.
(23) Who is usually taken to have been the author of anonymous Mishnaic statements, especially when contradicting those of R. Judah b. Il'ai, his colleague.
(24) I.e., Rabbah to Abaye.
(25) Deut. XXII, 26.
(26) For so far as she is concerned it was a mishap.
(27) Infra 55a.

Talmud - Mas. Baba Kama 29a

that no action can be instituted against him in civil courts though there is liability1 according to divine justice. The Sages agree however, with R. Meir that, in the case of a stone, a knife and luggage which were left on the top of the roof and fell down because of a wind of usual occurrence2 and did damage, there will be liability.3 R. Meir [on the other hand] agrees with the Sages that, regarding bottles that were placed upon the top of the roof for the purpose of getting dry and fell down because of a wind of unusual occurrence4 and did damage, there is exemption.5 [Does not this prove that even regarding damages all agree that there is exemption in cases of sheer accident?] - Abaye therefore said: It is on two points that they6 differ [in the Mishnah]; they differ regarding damage done at the time of the fall [of the pitcher] and they again differ regarding damage occasioned [by the potsherds] subsequently to the fall. The difference of opinion regarding damage done at the time of the fall of the pitcher arises on the question whether stumbling implies negligence [or not];7 one Master8 maintaining that stumbling does imply negligence, whereas the other Master9 is of the opinion that stumbling does not [necessarily] imply negligence.10 The point at issue in the case of damage occasioned [by the potsherds] subsequently to the fall, is the law as applicable to abandoned nuisances;11 one Master8 maintaining that for damage occasioned by abandoned nuisances there is liability,12 whereas the other Master9 maintains exemption.13 But how can you prove this?14 - From the text which presents two [independent] cases [as follows]; SOMEONE SLIPPED IN THE WATER OR WAS INJURED BY THE POTSHERD; for indeed is not one case the same as the other,15 unless it was intended to convey, 'Someone slipped in the water while the pitcher had been falling16 or was injured by the potsherd subsequently to the fall.'

Now that the Mishnah presents two independent cases, it is only reasonable to assume that the Baraitha17 similarly deals with the same two problems. That is all very well as regards the 'pitcher' where the two [problems] have application [in the case of damage done] at the time of the fall or subsequently to the fall [respectively]. But how in the case of the 'camel'? For though concerning damage occasioned subsequently to the fall, it may well have application where the carcass has been abandoned,18 yet in the case of damage done at the time of the fall, what point of difference can be found?19 - R. Aha thereupon said: [It deals with a case] where the camel was led in water along the slippery shore of a river.20 But under what circumstances? If where there was another [better] way, is it not a case of culpa lata?21 If on the other hand there was no other way [to pass through], is it not a case of no alternative? - The point at issue can therefore only be where the driver stumbled and together with him the camel also stumbled.

But in the case of abandoning nuisances,22 where could [the condition of] intention [laid down by R. Judah] come in? - Said R. Joseph: The intention [in this case] refers to the retaining of the ownership of the potsherd.23 So also said R. Ashi, that the intention [in this case] refers to the retaining of the ownership of the potsherd.

R. Eleazar said: 'It is regarding damage done at the time of the fall that there is a difference of opinion.' But how in the case of damage done subsequently to the fall? Would there be unanimity that there is exemption? Surely there is R. Meir who expressed [his opinion]24 that there is liability! What else [would you suggest? That in this case] there is unanimity [imposing] liability? Surely there are the Rabbis who stated [their view] that there is exemption! - Hence, what he means [to convey by his statement] 'damage done at the time of the fall', is that there is difference of opinion 'even regarding damage done at the time of the fall', making thus known to us [the conclusions arrived at] by Abaye.25

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(1) For not having removed the potsherds or the camel that fell down.
(2) Which the defendant should have anticipated.
(3) For carelessness.
(4) Which could hardly have been anticipated.
(5) For in this case the defendant is not to blame for carelessness.
(6) I.e., R. Judah and the anonymous view which is that of R. Meir.
(7) As it was owing to the defendant having stumbled that his pitcher gave way.
(8) I.e., R. Meir.
(9) I.e., R. Judah.
(10) 'INTENTIONALLY' stated in the Mishnah would thus mean where there was intention actually to break the pitcher, for if the intention was merely to bring the pitcher below the shoulder it would come under the term 'UNINTENTIONALLY', the ground advanced by R. Judah is that in the case of stumbling and breaking a pitcher and doing thereby damage, no negligence was necessarily involved.
(11) Of which the defendant is no longer the owner.
(12) For the liability in the case of Pit is also where it has been dug in public ground and is thus ownerless.
(13) For he holds that the liability in the case of Pit is only where the defendant had dug it in his own ground and though he subsequently abandoned it he retained the ownership of the pit itself; cf. supra p. 107; and infra 50a.
(14) That the points at issue are twofold.
(15) Why then would one case not have sufficed?
(16) And the water was still in the process of being poured out.
(17) Supra p. 152.
(18) The point at issue thus consisting in the law applicable to abandoned nuisances.
(19) For the problem whether 'stumbling' implies negligence or not has surely no application where it was not the driver but the camel that stumbled.
(20) The stumbling of the camel is thus imputed to the driver.
(21) I.e., grave fault, which has nothing to do with the problem of stumbling.
(22) Which is the second point at issue between R. Judah and R. Meir.
(23) [R. Judah therefore means this: If he had the intention of retaining the shards he is liable; if he had no intention to do so but abandoned them, he is exempt.]
(24) Supra p. 152.
(25) Supra p. 153.

Talmud - Mas. Baba Kama 29b

R. Johanan, however, said: 'It is regarding damage occasioned after the fall [of the pitcher] that there is a difference of opinion.' But how in the case of damage done at the time of the fall? Would there be unanimity [granting] exemption? Surely R. Johanan's statement further on1 that we should not think that the Mishnah2 [there] follows the view of R. Meir who maintains that stumbling constitutes carelessness, implies that R. Meir imposes liability.3 What else [would you suggest? That there] be unanimity [imposing] liability? Surely the very statement made further on1 by R. Johanan [himself] that we should not think that the Mishnah2 [there] follows the view of R. Meir, implies that the Rabbis would exempt!3 - Hence what he [R. Johanan] intends to convey to us is that abandoned nuisances have only in this connection been exempted from liability by the Rabbis since the very inception [of the nuisances]4 was by accident, whereas abandoned nuisances in other circumstances involve liability [even according to the Rabbis].5

It was stated: In the case of abandoned nuisances [causing damage], R. Johanan and R. Eleazar [differ]. One imposes liability and the other maintains exemption. May we not say that the one imposing liability follows the view of R. Meir,6 whereas the other, who maintains exemption follows that of the Rabbis?6 - As to R. Meir's view no one could dispute [that there should be liability].7 Where they differ is as to the view of the Rabbis. The one who exempts does so because of the Rabbis,8 while the other who imposes liability can say to you, 'It is I who follow the view even of the Rabbis, for the Rabbis who declare abandoned nuisances exempt do so only in one particular connection, where the very inception [of the nuisances]9 had been by accident, whereas abandoned nuisances in other connections involve liability.' May it not be concluded that it was R. Eleazar who imposed liability? For R. Eleazar said in the name of R. Ishmael:10 There are two [laws dealing with] matters that are really not within the ownership of man but which are regarded by Scripture as if they were under his ownership. They are [the following]: Pit in public ground,11 and Leaven after midday [on Passover eve].12 It may indeed be concluded thus.13

But did R. Eleazar really say so? Did not R. Eleazar express himself to the contrary? For we have learnt;14 'If a man turns up dung that had been lying on public ground and another person is [subsequently] injured thereby, there is liability for the damage.' And R. Eleazar thereupon said: This Mishnaic ruling applies only to one who [by turning over the dung] intended to acquire title to it. For if he had not intended to acquire title to it there would be exemption. Now, does not this prove that abandoned nuisances are exempt? - R. Adda b. Ahabah suggested [that the amendment made by R. Eleazar] referred to one who has restored the dung to its previous position.15 Rabina [thus] said: The instance given by R. Adda b. Ahabah may have its equivalent in the case of one who, on coming across an open pit, covered it, but opened it up again. But Mar Zutra the son of R. Mari said to Rabina: What a comparison! In the latter case, [by merely covering the pit] the [evil] deed of the original [offender] has not yet been undone, whereas in the case before us [by removing the dung from its place] the [evil] deed of the original [offender] has been undone! May it not therefore [on the other hand] have its equivalent only in the case of one who, on coming across an open pit, filled it up [with earth] but dug it out again, where, since the nuisance created by the original [offender] had already been completely removed [by filling in the pit], it stands altogether under the responsibility of the new offender? - R. Ashi therefore suggested [that the amendment made by R. Eleazar] referred to one who turned over the dung within the first three [handbreadths]16 of the ground [in which case the nuisance created by the original offender is not yet considered in law as abated]. But what influenced R. Eleazar to make the [Mishnaic] ruling17 refer to one who turned over the dung within the first three [handbreadths of the ground], and thus to confine its application only to one who intended to acquire title to the dung,18 excluding thereby one who did not intend to acquire title to it? Why not indeed make the ruling refer to one who turned over the dung above the first three handbreadths, so that even where one did not intend to acquire title to it the liability should hold good? - Raba [thereupon] said: Because of a difficulty in the Mishnaic text17 [which occurred to him]: Why indeed have 'turning up' in the Mishnaic text and not simply 'raising,'19 if not to indicate that 'turning up' implies within the first three handbreadths [of the ground].

Now [then] that R. Eleazar was the one who maintained liability,20 R. Johanan would [of course] be the one who maintained exemption. But could R. Johanan really maintain this? Surely we have learnt: If a man hides thorns and broken glass [in public ground], or makes a fence of thorns, or if a man's fence falls upon public ground and damage results therefrom to another person, there is liability for the damage.21 And R. Johanan thereupon said: This Mishnaic ruling refers to a case where the thorns were projecting into the public thoroughfare. For if they were confined within private premises22 there would be exemption. Now, why should there be exemption in the case where they were confined within private premises if not because they would only constitute a nuisance on private premises? Does this then not imply that it is only a nuisance created upon public ground that involves liability, proving thus that abandoned nuisances do involve liability? - No, it may still be suggested that abandoned nuisances are exempt. The reason for the exemption in the case of thorns confined to private premises is, as it has already been stated in this connection,21 that R. Aha the son of R. Ika said: Because it is not the habit of men to rub themselves against walls.23

But again, could R. Johanan [really] maintain this?24 Surely R. Johanan stated:25 The halachah is in accordance with anonymous Mishnaic rulings. And we have learnt: If a man digs a pit in public ground, and an ox or ass falls in and dies, there is liability.26 [Does this not prove that there is liability for a pit dug in public ground?] - [It must] therefore [be concluded that] R. Johanan was indeed the one who maintained liability. Now then that R. Johanan was the one who maintained liability, R. Eleazar would [of course] be the one who maintained exemption. But did not R. Eleazar say

____________________
(1) Infra p. 166.
(2) Dealing with the case of the two potters, infra p. 166.
(3) For damage done at the time of the fall.
(4) I.e., when the pitcher gave way or the camel fell down.
(5) The statement made by R. Johanan that it was regarding damage occasioned after the fall (of the pitcher) that there was a difference of opinion would thus mean that the difference of opinion between R. Meir and the other Rabbis was only where the inception of the nuisance was with a fall, i.e. with an accident, as where the nuisance had originally been wilfully exposed to the public there would be liability according to all opinions.
(6) V. p. 155, n. 1.
(7) For R. Meir imposes liability for abandoned nuisances even where their very inception was by accident; v. Rashi, but also Tosaf. 29a.
(8) Supra p. 153.
(9) As when the pitcher gave way or the camel fell down.
(10) Pes. 6b.
(11) Which is not the property of the defendant, but for which he is nevertheless responsible on account of his having dug it.
(12) Lit., 'from the sixth hour upwards', when in accordance with Pes. I. 4, it becomes prohibited for any use and is thus rendered ownerless, but for its destruction the original owner is still held responsible.
(13) That according to R. Eleazar abandoning nuisances does not release from responsibility.
(14) Infra p. 161.
(15) In which case the defendant did not aggravate the position.
(16) According to the principle of Labud, which is the legal consideration of separated parts as united, one substance is not regarded as removed from another unless a space of not less than three handbreadths separates them.
(17) Infra p. 161.
(18) Lit., 'and the reason is because he intended', etc.
(19) Which would necessarily mean above the first three handbreadths of the ground level.
(20) In the case of abandoned nuisances that have caused damage.
(21) Infra p. 159.
(22) Although he subsequently abandoned it to the public.
(23) It is therefore the plaintiff himself who is to blame.
(24) That abandoning nuisances releases from responsibility.
(25) Shab. 46a.
(26) Infra 50b.

Talmud - Mas. Baba Kama 30a

in the name of R. Ishmael etc.1 [which proves that abandoned nuisances do involve liability]? - This presents no difficulty. One view2 is his own whereas the other3 is that of his master.

MISHNAH. IF A MAN POURS OUT WATER INTO PUBLIC GROUND AND SOME OTHER PERSON IS INJURED BY IT, THERE IS LIABILITY FOR THE DAMAGE. IF HE HIDES THORNS AND BROKEN GLASS, OR MAKES A FENCE OF THORNS, OR, IF A FENCE FALLS INTO THE PUBLIC GROUND AND DAMAGE RESULTS THEREFROM TO SOME OTHER PERSONS, THERE IS [SIMILARLY] LIABILITY FOR THE DAMAGE.4

GEMARA. Rab said: This Mishnaic ruling5 refers only to a case where his garments6 were soiled in the water. For regarding injury to himself there should be exemption, since it was ownerless ground that hurt him.7 [But] R. Huna said to Rab: Why should not [the topmost layer of the ground mixed up with private water] be considered as private clay?8 - Do you suggest [the ruling to refer to] water that has not dried up? [No.] It deals with a case where the water has already dried up. But why [at all] two [texts9 for one and the same ruling]?10 - One [text] refers to the summer season whereas the other deals with winter, as indeed [explicitly] taught [elsewhere]: All those who open their gutters or sweep out the dust of their cellars [into public thoroughfares] are, in the summer period, acting unlawfully, but lawfully in winter; [in all cases] even though when acting lawfully, if special damage resulted, they are liable to compensate.11

IF HE HIDES THORNS etc., R. Johanan said:4 This Mishnaic ruling refers only to a case where the thorns were projecting into the public ground. For if they were confined within private premises there would be no liability. On what account is there exemption [in the latter case]? - R. Aha the son of R. Ika [thereupon] answered:12 Because it is not the habit of men to rub themselves against walls.

Our Rabbis taught: If one hid thorns and broken glasses in a neighbour's wall and the owner of the wall came and pulled his wall down, so that they fell into the public ground and did damage, the one who hid them is liable. R. Johanan [thereupon] said: This ruling refers only to an impaired wall.13 For in the case of a strong wall the one who hid [the thorns] should be exempt while the owner of the wall would be liable.14 Rabina commented: This ruling15 proves that where a man covers his pit with a neighbour's lid and the owner of the lid comes and removes his lid, the owner of the pit would be liable [for any damage that may subsequently be caused by his pit]. Is not this inference quite obvious?16 - You might perhaps have suggested this ruling15 [to be confined to the case] there, where the owner of the wall had no knowledge of the identity of the person who hid the thorns in the wall, and was accordingly unable to inform him of the intended pulling down of the wall, whereas in the case of the pit, where the owner of the lid very well knew the identity of the owner of the pit, [you might have argued] that it was his duty to inform him [of the intended removal of the lid].17 It is therefore made known to us [that this is not the case].18

Our Rabbis taught: The pious men of former generations used to hide their thorns and broken glasses in the midst of their fields at a depth of three handbreadths below the surface so that [even] the plough might not be hindered by them. R Shesheth19 used to throw them into the fire.20 Raba threw them into the Tigris. Rab Judah said: He who wishes to be pious must [in the first instance particularly] fulfil the laws of [Seder] Nezikin.21 But Raba said: The matters [dealt with in the Tractate] Aboth;22 still others said: Matters [dealt with in] Berakoth.23

MISHNAH. IF A MAN REMOVES HIS STRAW AND STUBBLE INTO THE PUBLIC GROUND TO BE FORMED INTO MANURE, AND DAMAGE RESULTS TO SOME OTHER PERSON, THERE IS LIABILITY FOR THE DAMAGE, AND WHOEVER SEIZES THEM FIRST ACQUIRES TITLE TO THEM. R. SIMEON B. GAMALIEL SAYS: WHOEVER CREATES ANY NUISANCES ON PUBLIC GROUND CAUSING [SPECIAL] DAMAGE IS LIABLE TO COMPENSATE, THOUGH WHOEVER SEIZES OF THEM FIRST ACQUIRES TITLE TO THEM. IF HE TURNS UP DUNG THAT HAD BEEN LYING ON PUBLIC GROUND, AND DAMAGE [SUBSEQUENTLY] RESULTS TO ANOTHER PERSON, HE IS LIABLE FOR THE DAMAGE.

GEMARA. May we say that the Mishnaic ruling24 is not in accordance with R. Judah? For it was taught: R. Judah says: When it is the season of taking out foliage everybody is entitled to take out his foliage into the public ground and heap it up there for the whole period of thirty days so that it may be trodden upon by the feet of men and by the feet of animals; for upon this understanding did Joshua make [Israel]25 inherit the Land. - You may suggest it to be even in accordance with R. Judah, for R. Judah [nevertheless] agrees that where [special] damage resulted, compensation should be made for the damage done. But did we not learn that R. Judah maintains that in the case of a Chanukah candle26 there is exemption on account of it having been placed there with authorization?27 Now, does not this authorization mean the permission of the Beth din?28 - No, it means the sanction of [the performance of] a religious duty29 as [indeed explicitly] taught: R. Judah says: In the case of a Chanukah candle there is exemption on account of the sanction of [the performance of] a religious duty.

Come and hear: In all those cases where the authorities permitted nuisances to be created on public ground, if [special] damage results there will be liability to compensate. But R. Judah maintains exemption!30 - R. Nahman said: The Mishnah31 refers to the time when it is not the season to take out foliage and thus it may be in accordance with R. Judah. - R. Ashi further [said]:

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(1) That there is liability for a pit dug in public ground, though it is ownerless.
(2) That abandoning nuisances releases from responsibility.
(3) That abandoning nuisances does not release from responsibility.
(4) Supra p. 158.
(5) Which, according to Rab, deals with a case where the water has not been abandoned, but remained still the chattel of the original owner.
(6) Those of the person who was injured.
(7) Whereas the water was but the remote cause of it.
(8) Lit., 'his clay'. i.e., of the owner of the water.
(9) The one here and the other supra p. 149.
(10) Expounded by Rab here as well as supra pp. 149-150.
(11) Supra pp. 19-20.
(12) V. p. 159, n. 3.
(13) Which was likely to be pulled down.
(14) For not having taken proper care to safeguard the public.
(15) As stated in the Baraitha quoted.
(16) Why then had Rabina to make it explicit?
(17) Failing that, the sole responsibility should then fall upon him.
(18) But that the responsibility lies upon the owner of the pit.
(19) Who was stricken with blindness; cf. Ber. 58a.
(20) V. Nid. 17a.
(21) [By being careful in matters that may cause damage.]
(22) [Matters affecting ethics and right conduct. Var. lec., 'Rabina'.]
(23) [The Tractate wherein the benedictions are set forth and discussed.]
(24) Imposing liability in the commencing clause.
(25) B.M. 118b. Why then liability for the damage caused thereby during the specified period permitted by law?
(26) Placed outside a shop and setting aflame flax that has been passing along the public road.
(27) Infra p. 361.
(28) A permission which has similarly been extended in the case of the dung during the specified period and should accordingly effect exemption.
(29) Which is of course absent in the case of removing dung to the public ground, where liability must accordingly be imposed for special damage.
(30) Does not this prove that mere authorization suffices to confer exemption? Cf. n. 2.
(31) V. p. 161, n. 5.

Talmud - Mas. Baba Kama 30b

The Mishnah states, HIS STRAW AND STUBBLE which are slippery [and may never be removed into public ground even according to R. Judah].

WHOEVER SEIZES THEM FIRST ACQUIRES TITLE TO THEM. Rab said: Both to their corpus and to their increase [in value],1 whereas Ze'ire said: Only to their increase but not to their corpus.2 Wherein is the point at issue?3 - Rab maintains that they [the Rabbis] extended the penalty to the corpus on account of the increase thereof, but Ze'ire is of the opinion that they did not extend the penalty to the corpus on account of the increase thereof.

We have learnt: IF HE TURNS UP DUNG THAT HAD BEEN LYING ON PUBLIC GROUND AND DAMAGE [SUBSEQUENTLY] RESULTS TO ANOTHER PERSON, HE IS LIABLE FOR THE DAMAGE. Now, [in this case] it is not stated that 'Whoever seizes it first acquires title to it.'4 - [This ruling has been] inserted in the commencing clause, and applies as well to the concluding clause. But has it not in this connection5 been taught [in a Baraitha]: They are prohibited [to be taken possession of] on account of [the law of] robbery?6 - When [the Baraitha] states 'They are prohibited on account of robbery' the reference is to all the cases [presented] in the Mishnaic text7 and [is intended] to [protect] the one who had seized [of them] first, having thereby acquired title [to them]. But surely it was not meant thus, seeing that it was taught:8 'If a man removes straw and stubble into the public ground to be formed into manure and damage results to another person, he is liable for the damage, and whoever seizes them first acquires title to them, as this may be done irrespective of [the law of] robbery. [However] where he turns up dung on public ground and damage [subsequently] results to another person, he is liable [to compensate] but no possession may be taken of the dung on account of [the law of] robbery'?6 - R. Nahman b. Isaac [thereupon] exclaimed: What an objection to adduce from the case of dung! [It is only in the case of] an object that is susceptible to increase [in value] that the penalty is extended to the corpus9 for the purpose of [discouraging any idea of] gain, whereas with regard to an object that yields no increase there is no penalty [at all].10

The question was asked: According to the view that the penalty extends also to the corpus for the purpose of [discouraging the idea of] gain,9 is this penalty imposed at once11 or is it only after some gain has been produced that the penalty will be imposed? - Come and hear: An objection was raised [against Rab] from the case of dung!12 But do you really think this [solves the problem]? The objection from the case of dung was raised only before R. Nahman expounded the underlying principle;13 for after the explanation given by R. Nahman what objection indeed could there be raised from the case of dung?14

Might not one suggest [the argument between Rab and Ze'ire to have been] the point at issue between [the following] Tannaim? For it was taught: If a bill contains a stipulation of interest,15 a penalty is imposed so that neither the principal nor the interest is enforced; these are the words of R. Meir, whereas the Sages maintain that the principal is enforced though not the interest.16 Now, can we not say that Rab adopts the view of R. Meir17 whereas Ze'ire follows that of the Rabbis?18 - Rab may explain [himself] to you [as follows]: 'I made my statement even according to the Rabbis: for the Rabbis maintain their view only there, where the principal as such is quite lawful, whereas here in the case of nuisances the corpus itself is liable to do damage.' Ze'ire [on the other hand] may explain [himself] to you [thus]: 'I made my statement even in accordance with R. Meir; for R. Meir expressed his view only there, where immediately, at the time of the bill having been drawn up, [the evil had been committed] by stipulating the usury, whereas here in the case of nuisances, who can assert that [special] damage will result?'

Might not one suggest [the argument between Rab and Ze'ire to have been] the point at issue between these Tannaim? For it was taught: If a man removes straw and stubble into the public ground to be formed into manure and damage results to another person, he is liable for the damage, and whoever seizes them first acquires title to them. They are prohibited [to be taken possession of] on account of [the law of] robbery. R. Simeon b. Gamaliel says: Whoever creates any nuisances on public ground and causes [special] damage is liable to compensate, though whoever takes possession of them first acquires title to them, and this may be done irrespective of [the law of] robbery. Now, is not the text a contradiction in itself? You read, 'Whoever seizes them first acquires title to them,' then you state [in the same breath], 'They are prohibited [to be taken possession of] on account of [the law of] robbery'! It must therefore mean thus: 'Whoever seizes them first acquires title to them,' viz., to their increase, whereas, 'they are prohibited to be taken possession of on account of [the law of] robbery,' refers to their corpus. R. Simeon b. Gamaliel thereupon proceeded to state that even concerning their corpus, 'whoever seizes them first, acquires title to them.' Now, according to Ze'ire, his view must unquestionably have been the point at issue between these Tannaim,19 but according to Rab, are we similarly to say that [his view] was the point at issue between these Tannaim? - Rab may say to you: 'It is [indeed] unanimously held that the penalty must extend to the corpus for the purpose [of discouraging the idea] of gain; the point at issue [between the Tannaim] here is whether this halachah20 should be made the practical rule of the law'.21 For it was stated: R. Huna on behalf of Rab said: This halachah20 should not be made the practical rule of the law,22 whereas R. Adda b. Ahabah said: This halachah20 should be made the practical rule of the law. But is this really so? Did not R. Huna declare barley [that had been spread out on public ground] ownerless, [just as] R. Adda b. Ahabah declared

____________________
(1) While on public ground.
(2) Which thus still remains the property of the original owner.
(3) I.e., what is the principle underlying it?
(4) This clause, if omitted purposely, would thus tend to prove that the penalty attaches only to straw and stubble and their like, which improve while lying on public ground, but not to dung placed on public ground, apparently on account of the fact that in this case there is neither increase in quantity nor improvement in quality while lying on public ground. This distinction appears therefore to be not in accordance with the view of Rab, maintaining that the penalty extend not only to the increase but also to the corpus of the object of the nuisance.
(5) I.e. in connection with the latter clause.
(6) Which shows that the penalty does not extend to the corpus.
(7) Even to straw and stubble.
(8) [V. D.S. a.l.]
(9) According to the view of Rab.
(10) For, since there is no gain, nobody is likely to be tempted to place dung on public ground.
(11) Even before any gain accrued.
(12) Although no increase will ever accrue there, thus proving that according to Rab the penalty is imposed on the corpus even before it had yielded any gain.
(13) That there is no penalty at all with regard to an object that yields no increase; whereas the query is based on the principle laid down by R. Nahman.
(14) Where no increase will ever accrue.
(15) Which is against the biblical prohibition of Ex. XXII, 24.
(16) Cf. B.M. 72a.
(17) Extending the penalty also to the corpus.
(18) I.e., the Sages who maintain that the penalty attaches only to the increase.
(19) For R. Simeon b. Gamaliel is certainly against his view.
(20) To extend the penalty to the corpus.
(21) As to whether people should be encouraged to avail themselves of it, or not.
(22) For the sake of not disturbing public peace.

Talmud - Mas. Baba Kama 31a

the refuse of boiled dates [that had been placed on public ground] ownerless? We can well understand this in the case of R. Adda b. Ahabah who acted in accordance with his own dictum, but in the case of R. Huna, are we to say that he changed his view? - These owners [in that case] had been warned [several times not to repeat the nuisance].1

MISHNAH. IF TWO POTTERS WERE FOLLOWING ONE ANOTHER AND THE FIRST STUMBLED AND FELL DOWN AND THE SECOND STUMBLED BECAUSE OF THE FIRST, THE FIRST IS LIABLE FOR THE DAMAGE DONE TO THE SECOND.

GEMARA. R. Johanan said: Do not think [that the Tanna of] this Mishnah is R. Meir who considers stumbling as implying carelessness that involves liability.2 For even according to the Rabbis who maintain [that stumbling is] mere accident for which there is exemption,2 there should be liability here where he3 had [meanwhile had every possibility] to rise and nevertheless did not rise. [But] R. Nahman b. Isaac said: You may even say that [the Mishnah speaks also of a case] where he3 did not yet have [any opportunity] to rise, for he3 was [surely able] to caution4 and nevertheless did not caution. R. Johanan, however, considers that where he3 did not yet have [any opportunity] to rise, he3 could hardly be expected to caution as he was [surely] somewhat distracted.

We have learnt: If the carrier of the beam was in front, the carrier of the barrel behind, and the barrel broke by [colliding with] the beam, he5 is exempt. But if the carrier of the beam stopped suddenly, he is liable.6 Now, does this not mean that he stopped for the purpose of shouldering the beam as is usual with carriers, and it yet says that he is liable, [presumably] because [he failed] to caution?7 - No, he suddenly stopped to rest [which is rather unusual in the course of carrying]. But what should be the law8 in the case where he stopped to shoulder the beam? Would there then be exemption? Why then state in the subsequent clause,9 'Where he, however, warned the carrier of the barrel to stop, he is exempt'? Could the distinction not be made in the statement of the same case [in the following manner]: 'Provided that he stopped to rest; but if he halted to shift the burden on his shoulder, he is exempt'? - It was, however, intended to let us know that even where he stopped to rest, if he warned the carrier of the barrel to stop, he is exempt.

Come and hear: If a number of potters or glass-carriers were walking in line and the first stumbled and fell and the second stumbled because of the first and the third because of the second, the first is liable for the damage [occasioned] to the second, and the second is liable for the damage [occasioned] to the third. Where, however, they all fell because of the first, the first is liable for the damage [sustained] by them all. If [on the other hand] they cautioned one another, there is exemption. Now, does this teaching not deal with a case where there has not yet been [any opportunity] to rise?10 - No, [on the contrary] they [have already] had [every opportunity] to rise. But what should be the law8 in the case where they [have not yet] had [any opportunity] to rise? Would there then be exemption? If so, why state in the concluding clause, 'If [on the other hand] they cautioned one another, there is exemption'? Could the distinction not be made in the statement of the same case [in the following manner]: 'Provided that they have already had every opportunity to rise; but if they have not yet had any opportunity to rise, there is exemption'? - This is what it intended to let us know: That even where they [have already] had [every opportunity] to rise, if they cautioned one another, there is exemption.

Raba said: The first is liable for damage [done] to the second whether directly by his person11 or by means of his chattels,12 whereas the second is liable for damage to the third only if done by his person13 but not if caused by his chattels. [Now,] in any case [how could these rulings be made consistent]? [For] if stumbling implies carelessness, why should not also the second be liable [for all kinds of damage]?14 If [on the other hand] stumbling does not amount to carelessness, why should even the first not enjoy immunity?

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(1) It was therefore a specially aggravated offence.
(2) Supra pp. 153 and 155.
(3) The first potter.
(4) The second potter to stop.
(5) The carrier of the beam.
(6) Infra p. 169.
(7) Which would thus support the interpretation given by R. Nahman and contradict the view expounded by R. Johanan.
(8) According to the view of R. Johanan.
(9) Infra p. 170.
(10) V. p. 166, n. 7.
(11) Being subject to the law applicable to damage done by Man.
(12) Which are subject to the law applicable to Pit.
(13) V. p. 167, n. 4
(14) Even if caused by his chattels.

Talmud - Mas. Baba Kama 31b

- The first was certainly [considered] careless,1 whilst, as to the second, he is liable for damage done by his person, [that is,] only where he [has already] had [the opportunity] to rise and did [nevertheless] not rise; for damage caused by his chattels he is [however] exempt, as he may say to him:2 It is not I who dug this pit.3

An objection was raised [from the following Baraitha]: All of them are liable for damage [done] by their person,4 but exempt for damage [caused] by their chattels.4 Does [this Baraitha] not refer even to the first?5 - No, with the exception of the first. But is it not stated, 'All of them ...'? - R. Adda b. Ahabah said: 'All of them' refers to [all] the plaintiffs.6 [But] how is this? If you maintain that the first [is] also [included], we understand why the Baraitha says 'All of them'. But if you contend that the first is excepted, what [meaning could there be in] 'All of them'? Why [indeed] not say 'The plaintiffs'? - Raba [therefore] said: The first7 is liable for both injuries inflicted upon the person of the second and damage caused to the chattels of the second, whereas the second8 is liable to compensate the third only for injuries inflicted upon his person but not for damage9 to his chattels; the reason being that the [person of the] second is subject to the law applicable to Pit, and no case can be found where Pit would involve liability for inanimate objects.10 This accords well with the view of Samuel, who holds that all nuisances are [subject to the law applicable to] Pit.11 But according to Rab who maintains that it is only where the nuisance has been abandoned that this is so, whereas if not [abandoned] it is not so,12 what reason could be advanced?13 - We must therefore accept the first version,14 and as to the objection raised by you [from the Baraitha], 'All of them are liable',15 it has already been interpreted by R. Adda b. Minyomi in the presence of Rabina to refer to a case where inanimate objects have been damaged by the chattels [of the defendant].16

The Master stated: 'Where, however, they all fell because of the first, the first is liable for the damage [sustained] by them all.' How [indeed can they all] fall [because of the first]? - R. Papa said: Where he blocked the road like a carcass, [closing the whole width of the road]. R. Zebid said: Like a blind man's staff.17

MISHNAH. IF ONE COMES WITH HIS BARREL AND AN OTHER COMES WITH HIS BEAM AND THE PITCHER18 OF THIS ONE BREAKS BY [COLLISION WITH] THE BEAM OF THIS ONE, HE19 IS EXEMPT, FOR THE ONE IS ENTITLED TO WALK [THERE AND CARRY BEAMS] AND THE OTHER IS ENTITLED TO WALK [THERE AND CARRY BARRELS]. WHERE THE CARRIER OF THE BEAM WAS IN FRONT, AND THE CARRIER OF THE BARREL BEHIND, AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, THE CARRIER OF THE BEAM IS EXEMPT.20

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(1) [Since stumbling implies carelessness.]
(2) To the third.
(3) I.e., the nuisance was created not by the second, but caused by the first who fell.
(4) Whether to the person or to the chattels of the plaintiff.
(5) Who, according to Raba, is liable for damage caused even by his chattels to the person of the second as being subject to the law applicable to Pit. This Baraitha thus refutes Raba.
(6) The first is thus, as a matter of course, not included.
(7) Being subject to the law applicable to damage done by Man.
(8) Should be subject to the law applicable in Pit.
(9) Though done by the person of the second.
(10) Supra p. 18.
(11) Supra p. 150. [The person of the second may therefore be treated as Pit.]
(12) But is subject to the law applicable to Ox where damage to inanimate objects is also compensated.
(13) For the person of the second, though lying on the ground, has surely never been abandoned by him. Why then exemption for damage done by him to inanimate objects?
(14) Of the statement of Raba, according to which the first is liable for damage done whether by his person or by his chattels, whereas the second is liable for damage done only by his person but not if done by his chattels.
(15) For damage done by their person, but exempt for damage done by their chattels, including thus also the first.
(16) Which are subject to the laws of Pit involving no liability for inanimate objects. Were, however, the person of the plaintiff to have been injured, there would be no exemption even if the injury were caused by the chattels of the first, as expounded by Raba.
(17) [With which the blind gropes his way on either side of the road.]
(18) Cf. supra p. 142.
(19) The owner of the beam.
(20) For the carrier of the barrel who was behind should not have proceeded so fast.

Talmud - Mas. Baba Kama 32a

BUT IF THE CARRIER OF THE BEAM [SUDDENLY] STOPPED, HE IS LIABLE.1 IF, HOWEVER, HE CRIED TO THE CARRIER OF THE BARREL, HALT!' HE IS EXEMPT. WHERE, HOWEVER, THE CARRIER OF THE BARREL WAS IN FRONT, AND THE CARRIER OF THE BEAM BEHIND AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, HE IS LIABLE.2 IF, HOWEVER, THE CARRIER OF THE BARREL [SUDDENLY] STOPPED, HE IS EXEMPT. BUT WHERE HE CRIED TO THE CARRIER OF THE BEAM, 'HALT!' HE IS LIABLE. THE SAME APPLIES TO ONE CARRYING A [BURNING] CANDLE WHILE ANOTHER WAS PROCEEDING WITH FLAX.

GEMARA. Rabbah b. Nathan questioned R. Huna: If a man injures his wife through conjugal intercourse, what is [the legal position]? Since he performed this act with full permission is he to be exempt [for damage resulting therefrom], or should perhaps greater care have been taken by him? - He said to him. We have learnt it: ... FOR THE ONE IS ENTITLED TO WALK [THERE AND CARRY BEAMS] AND THE OTHER IS ENTITLED TO WALK [THERE AND CARRY BARRELS].3 Raba [however] said: There is an a fortiori [to the contrary]: If in the case of the Wood,4 where this one [the defendant] was entering [as if] into his own domain, and the other [the plaintiff] was [similarly] entering [as if] into his own domain, it is nevertheless considered [in the eye of the law]4 that he entered his fellow's [the plaintiff's] domain, and he is made liable, should this case5 where this one [the defendant]6 was actually entering the domain of his fellow [the plaintiff]7 not be all the more [subject to the same law]?8 But surely [the Mishnah] states, . . . FOR THE ONE IS ENTITLED TO WALK THERE [AND CARRY BEAMS] AND THE OTHER IS ENTITLED TO WALK [THERE AND CARRY BARRELS, indicating exemption where the entry was sanctioned]! - There, both of the parties were simultaneously [active against each other], whereas here9 it was only he10 that committed the deed. Is she11 [considered] not [to have participated in the act at all]? Is it not written, The souls that commit them shall be cut off from among their people?12 - [It is true that] enjoyment is derived by both of them, but it is only he to whom the active part can be ascribed.

WHERE THE CARRIER OF THE BEAM WAS IN FRONT etc. Resh Lakish stated:13 In the case of two cows on public ground, one lying down [maliciously] and the other walking about, if the one that was walking kicked the one that was lying, there is exemption [since the latter too misconducted itself by laying itself down on public ground], whereas if the one that was lying kicked the one that was walking, there is liability to pay. May not [the following be cited in] support of this:14 WHERE THE CARRIER OF THE BEAM WAS IN FRONT AND THE CARRIER OF THE BARREL BEHIND, AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, HE IS EXEMPT. BUT IF THE CARRIER OF THE BEAM [SUDDENLY] STOPPED HE IS LIABLE. For surely [this latter case] here is similar to that of the lying cow kicking the walking cow,15 and liability is stated! - But do you really think that this [liability] need be proved?14 [The Mishnaic text however] not only fails to be of any support [in this respect], but affords a contradiction to Resh Lakish, [in whose view] the reason [even for the liability] is that the lying cow kicked the walking cow, thus [implying] that [the latter] sustained damage [because of the former cow] through sheer accident, and there would be exemption. Now, [the case of] the Mishnah surely deals with accidental damage, and still states liability? - The Mishnah [deals with a case] where the beam blocked the [whole] passage as if by a carcass,16 whereas here [in the case dealt with by Resh Lakish] the cow was lying on one side of the road so that the other cow should have passed on the other side.17

But the concluding clause may [be taken to] support Resh Lakish. For it is stated, BUT IF THE CARRIER OF THE BARREL WAS IN FRONT AND THE CARRIER OF THE BEAM BEHIND, AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, HE IS LIABLE. IF, HOWEVER, THE CARRIER OF THE BARREL [SUDDENLY] STOPPED, HE IS EXEMPT. Now, surely this case resembles that of the walking cow kicking the lying cow,18 and the text states exemption? - No! The Mishnah [deals with the case where the damage was done in a usual manner as] he19 was passing in the ordinary way, whereas here [in the case dealt with by Resh Lakish] it may be argued for the lying cow,20 'Even if you are entitled to tread upon me, you have still no right to kick me.'21

MISHNAH. IF TWO [PERSONS] WERE PASSING ONE ANOTHER ON PUBLIC GROUND, ONE [OF THEM] RUNNING AND THE OTHER WALKING OR BOTH OF THEM RUNNING, AND THEY WERE INJURED BY EACH OTHER, BOTH OF THEM ARE EXEMPT.22

GEMARA. Our Mishnah is not in accordance with Issi b. Judah. For it has been taught: Issi b. Judah maintains that the man who had been running is liable, since his conduct was unusual. Issi, however, agrees [that if it were] on a Sabbath eve before sunset there would be exemption, for running at that time is permissible. R. Johanan stated that the halachah is in accordance with Issi b. Judah. But did R. Johanan [really] maintain this? Has R. Johanan not laid down the rule that the halachah is in accordance with [the ruling of] an anonymous Mishnah?23 Now, did we not learn . . . ONE [ OF THEM] RUNNING AND THE OTHER WALKING OR BOTH OF THEM RUNNING . . . BOTH OF THEM ARE EXEMPT? - Our Mishnah [deals with a case] of a Sabbath eve before sunset. What proof have you of that? - From the text, OR BOTH OF THEM RUNNING . . . BOTH OF THEM ARE EXEMPT; [for indeed] what need was there for this to be inserted? If in the case where one was running and the other walking there is exemption, could there be any doubt24 where both of them were running?25 It must accordingly mean thus: ' Where one was running and the other walking there is exemption; provided, however, it was on a Sabbath eve before sunset. For if on a weekday, [in the case of] one running and the other walking there would be liability, [whereas where] both of them were running even though on a weekday they would be exempt.'

The Master stated: 'Issi, however, agrees [that if it were] on a Sabbath eve before sunset there would be exemption, for running at that time is permissible.' On Sabbath eve, why is it permissible? - As [shown by] R. Hanina: for R. Hanina used to say:26

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(1) For he is to blame.
(2) For the carrier of the beam, who was in this case second, should have taken care to keep at a reasonable distance.
(3) This proves that where the act is sanctioned no liability is involved.
(4) Referring to Deut. XIX,5: As when a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree and the head slippeth from the helve and lighteth upon his neighbour ... cf. also infra p. 175
(5) I.e., the problem in hand.
(6) The husband.
(7) The wife.
(8) Of liability.
(9) V. p. 170 n. 6.
(10) I.e the husband.
(11) I.e the wife.
(12) Lev. XVIII, 29. [The plural indicates that both are regarded as having participated in the act.]
(13) Supra pp. 98 and 124.
(14) I.e., that misconduct involves liability for damage that may result.
(15) As here, too, the offender is to blame for misconduct.
(16) Consequently the liability extends even to accidental damage.
(17) [There could therefore be no liability attached except where the lying cow maliciously kicked her, but not for accidental damage.]
(18) In that there was contributory misconduct on the part of the plaintiff and his cow respectively.
(19) The carrier of the beam.
(20) Lit 'she can say to her'.
(21) It was therefore requisite that Resh Lakish should express his rejection of this plausible argument.
(22) So long as they had no intention of injuring each other.
(23) Cf. supra p. 158.
(24) That there should be exemption.
(25) Where there was contributory negligence.
(26) Cf. Shab. 119a.

Talmud - Mas. Baba Kama 32b

'Come, let us go forth to meet the bride, the queen!' Some [explicitly] read:'. . . to meet Sabbath, the bride, the queen.' R. Jannai, [however,] while dressed in his Sabbath attire used to remain standing and say: 'Come thou, O queen, come thou, O queen!'

MISHNAH. IF A MAN SPLITS WOOD ON PRIVATE PREMISES1 AND DOES DAMAGE ON PUBLIC GROUND, OR ON PUBLIC GROUND AND DOES DAMAGE ON PRIVATE PREMISES,2 OR ON PRIVATE PREMISES3 AND DOES DAMAGE ON ANOTHER'S PRIVATE PREMISES, HE IS LIABLE.

GEMARA. And [all the cases enumerated] are necessary [as serving respective purposes]. For if the Mishnah had stated only the case of splitting wood on private premises and doing damage on public ground, [the ruling could have been ascribed to the fact] that the damage occurred at a place where many people were to be found, whereas in the case of splitting wood on public ground and doing damage on private premises, since the damage occurred in a place where many people were not to be found, the opposite ruling might have been suggested.4 Again, if the Mishnah had dealt only with the case of splitting wood on public ground and doing damage on private premises,5 [the ruling could have been explained] on the ground that the act6 was even at the very outset unlawful, whereas in the case of splitting wood on private premises3 and doing damage on public ground, [in view of the fact] that the act6 [as such] was quite lawful, the opposite view might have been suggested.4 Again, if the Mishnah had dealt only with these two cases [the ruling could have been explained in] the one case on account of the damage having occurred at a place where many people were to be found, and [in] the other on account of the unlawfulness of the act,6 whereas in the case of splitting wood on private premises3 and doing damage on another's private premises, since the damage occurred in a place where many people were not to be found and the act6 was quite lawful even at the very outset, the opposite view might have been suggested.4 It was [hence] essential [to state explicitly all these cases].

Our Rabbis taught: 'If a man entered the workshop of a joiner without permission and a chip of wood flew off and struck him in the face and killed him, he [the joiner] is exempt.7 But if he entered with [the] permission [of the joiner], he is liable.' Liable for what? - R. Jose b. Hanina said: He is liable for the four [additional] items,8 whereas regarding the law of refuge9 he is [still] exempt on account of the fact that the [circumstances of this] case do not [exactly] resemble those of the Wood.10 For in the case of the Wood the one [the plaintiff] was entering [as if] into his own domain and the other [the defendant] was [similarly] entering [as if] into his own domain, whereas in this case the one [the plaintiff] had [definitely] been entering into his fellow's [the defendant's] workshop. Raba [however,] said: There is an a fortiori [to the contrary]: If in the case of the Wood where the one [the plaintiff] was entering to his own [exclusive] knowledge and that one [the defendant] was similarly entering of his own accord, it is nevertheless considered [in the eye of the law]10 as if he had entered with the consent of his fellow [the defendant] who thus becomes liable to take refuge, should the case before us, where the one [the plaintiff] entered the workshop with the knowledge of his fellow [the joiner], be not all the more subject to the same liability? Raba therefore said: What is meant by being exempt from [being subject to the law of] refuge is that the sin could not be expiated by mere refuge; the real reason of the statement of R. Jose b. Hanina being this: that his offence,11 though committed inadvertently, approaches wilful carelessness.12 Raba [on his own part] raised [however] an objection: If an officer of the Court inflicted on him13 an additional [unauthorized] stroke, from which he died, he [the officer] is liable to take refuge on his account.14 Now, does not [the offence] here committed inadvertently approach wilful carelessness?12 For surely he had to bear in mind that a person might sometimes die just through one [additional] stroke. Why then state, 'he is liable to take refuge on his account'? - R. Shimi of Nehardea there upon said: [The officer committed the offence as he] made a mistake in [counting] the number [of strokes]. [But] Naba tapped R. Shimi's shoe15 and said to him: Is it he who is responsible for the counting [of the strokes]? Was it not taught: The senior judge recites [the prescribed verses],16 the second [to him] conducts the counting [of the strokes], and the third directs each stroke to be administered?17 - No, said R. Shimi of Nehardea; it was the judge himself who made the mistake in counting.

A [further] objection was raised: If a man throws a stone into a public thoroughfare and kills [thereby a human being], he is liable to take refuge.18 Now, does not [the offence] here committed inadvertently approach wilful carelessness?19 For surely he had to bear in mind that on a public thoroughfare many people were to be found, yet it states, 'he is liable to take refuge'? - R. Samuel b. Isaac said: The offender [threw the stone while he] was pulling down his wall.20 But should he not have kept his eyes open? - He was pulling it down at night . But even at night time, should he not have kept his eyes open? - He was [in fact] pulling his wall down in the day time, [but was throwing it] towards a dunghill. [But] how are we to picture this dunghill? If many people were to be found there, is it not a case of wilful carelessness?19 If [on the other hand] many were not to be found there, is it not sheer accident?21 - R. Papa [thereupon] said: It could [indeed] have no application unless in the case of a dunghill where it was customary for people to resort at night time, but not customary to resort during the day, though it occasionally occurred that some might come to sit there [even in the day time]. [It is therefore] not a case of wilful carelessness since it was not customary for people to resort there during the day. Nor is it sheer accident since it occasionally occurred that some people did come to sit there [even in the day time].

R. Papa in the name of Raba referred [the remark of R. Jose b. Hanina] to the commencing clause: 'If a man entered the workshop of a joiner without permission and a chip of wood flew off and struck him in the face and killed him, he is exempt.' And R. Jose b. Hanina [thereupon] remarked; He would be liable for the four [additional] items,22 though he is exempt from [having to take] refuge.23 He who refers this remark to the concluding clause24 will, with more reason, refer it to the commencing clause,25 whereas he who refers it to the commencing clause25 maintains that, in the [case dealt with] in the concluding clause where the entrance had been made with [the] permission [of the joiner], he would be liable to take refuge.23 But would he be liable to take refuge [in that case]?24 Was it not taught: If a man enters the workshop of a smith and sparks fly off and strike him in the face causing his death, he [the smith] is exempt26 even where the entrance had been made by permission of the smith? - [In this Baraitha] here, we are dealing with an apprentice of the smith. Is an apprentice of a smith to be killed [with impunity]? - Where his master had been urging him to leave but he did not leave. But even where his master had been urging him to leave, [which he did not do,] may he be killed [with impunity]? - Where the master believed that he had already left. If so, why should not the same apply also to a stranger?

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(1) I.e., his own premises.
(2) Of a neighbour.
(3) V. p. 173, n. 5.
(4) Lit., 'I might have said no'.
(5) V. p. 173. n. 6.
(6) Of splitting wood.
(7) From fleeing to the city of refuge. Cf. Num. XXXV, 11-28,Deut. XIX, 4-6; and supra p. 137.
(8) In the case of mere injury; cf. supra p. 133.
(9) Laid down in the case of manslaughter.
(10) Referred to in the verse, As when a man goes into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve and lighteth upon his neighbour, that he die, he shall flee unto one of those cities, and live; Deut. XIX, 5. Cf. also supra p. 170.
(11) I.e., that of the joiner.
(12) In which case the taking of refuge is insufficient; cf. e.g. Num. XXXV, 16-21, and Deut. XIX, 11-13.
(13) On an offender sentenced to lashes.
(14) The victim's. Mak. III, 14.
(15) To draw his attention.
(16) Deut. XXVIII, 58 etc.; Ps LXXVIII, 38.
(17) Lit., says, "Smite him". Mak. 23a.
(18) Ibid. II. 2.
(19) In which case the taking of refuge is insufficient; cf. e.g. Num XXXV, 16-21 and Deut. XIX, 11-13.
(20) Cf. Mak. 8a.
(21) Why then be subject to the law of refuge?
(22) In the case of mere injury; cf. supra p. 133.
(23) In the case of manslaughter.
(24) Where the entrance had been made with the knowledge of the joiner.
(25) Where the entrance had been made without any imitation.
(26) From having to take refuge.

Talmud - Mas. Baba Kama 33a

- A stranger need not fear the master-smith1 whereas the apprentice is in fear of his master.2 R. Zebid in the name of Raba referred [the remark of R Jose b. Hanina] to the following: [The verse,] And [it] lighteth [upon his neighbour],3 excludes [a case] where the neighbour brings himself [within the range of the missile]. Hence the statement made by R. Eliezer b. Jacob: If a man lets [fly] a stone out of his hand and another [at that moment] puts out his head [through a window] and receives the blow [and is killed], he is exempt.4 [Now, it was with reference to this case that] R. Jose b. Hanina said: He is exempt from having to take refuge,5 but he would be liable for the four [additional] items.6 He who refers this remark to this [last] case will with more reason refer it to the cases dealt with previously,7 whereas he who refers it to those dealt with previously7 would maintain that in this [last] case8 the exemption is from all [kinds of liability].

Our Rabbis taught: If employees come to [the private residence of] their employer to demand their wages from him and [it so happens that] their employer's ox gores them or their employer's dog bites them, with fatal results, he [the employer] is exempt [from ransom].9 Others,10 however, maintain that employees have the right to [come and] demand their wages from their employer. Now, what were the circumstances [of the case]? If the employer could be found in [his] city [offices], what reason [could be adduced] for [the view maintained by] the 'Others'.10 If [on the other hand] he could be found only at home, what reason [could be given] for [the anonymous view expressed by] the first Tanna? - No, the application [of the case] is where the employer could [sometimes] be found [in his city offices] but could not [always] be found [there]. The employees therefore called at his [private] door, when the reply was 'Yes'. One view11 maintains that 'Yes' implies: 'Enter and come in.' But the other view12 maintains that 'Yes' may signify: 'Remain standing in the place where you are.' It has indeed been taught in accordance with the view12 maintaining that 'Yes' may [in this case] signify: 'Remain standing in the place where you are.' For it has been taught: 'If an employee enters the [private] residence of his employer to demand his wages from him and the employer's ox gores him or the employer's dog bites him, he [the employer] is exempt even where the entrance had been made by permission.' Why should there indeed be exemption13 unless in the case where he called at the door and the employer said: 'Yes'? This thus proves that 'Yes' [in such a case] signifies: 'Remain standing in the place where you are.

MISHNAH. IN THE CASE OF TWO TAM OXEN INJURING EACH OTHER, THE PAYMENT OF THE DIFFERENCE WILL BE IN ACCORDANCE WITH THE LAW OF HALF-DAMAGES.14 WHERE BOTH WERE MU'AD THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL.14 WHERE ONE WAS TAM AND THE OTHER MU'AD THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY MU'AD TO TAM WILL BE ON THE BASIS OF FULL COMPENSATION, WHEREAS THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY TAM TO MU'AD WILL BE IN ACCORDANCE WITH THE LAW OF HALF-DAMAGES. SIMILARLY IN THE CASE OF TWO PERSONS INJURING EACH OTHER, THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL. WHERE MAN HAS DAMAGED MU'AD AND MU'AD HAS INJURED MAN, THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL. BUT WHERE MAN DAMAGED TAM AND TAM INJURED MAN, THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY MAN TO TAM WILL BE ON THE BASIS OF FULL COMPENSATION, WHEREAS THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY TAM TO MU'AD WILL BE IN ACCORDANCE WITH THE LAW OF HALF-DAMAGES. R. AKIBA, HOWEVER, SAYS: EVEN IN THE CASE OF TAM INJURING MAN THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL.15

GEMARA. Our Rabbis taught: [The words of the Torah] According to this judgement shall be done unto it16 [imply that] the judgement in the case of Ox damaging ox applies also in the case of Ox injuring man. Just as where Ox has damaged ox half-damages are paid in the case of Tam and full compensation in the case of Mu'ad, so also where Ox has injured man only half damages will be paid in the case of Tam and full compensation in the case of Mu'ad. R. Akiba, however, says: [The words,] 'According to this judgement' refer to [the ruling that would apply to the circumstances described in] the latter verse17 and not in the former verse.18 Could this then mean that the [full] payment is to be made out of the best [of the estate]?19 [Not so; for] it is stated 'Shall it be done unto it [self],' to emphasise that payment will be made out of the body of Tam, but no payment is to be made out of any other source whatsoever.20 According to the Rabbis then, what purpose is served by the word 'this'? - To exempt from liability for the four [additional] items.21 Whence then does R. Akiba derive the exemption [in this case] from liability for the four [additional] items? - He derives it from the text, And if a man cause a blemish in his neighbour22 [which indicates that there is liability only where] Man injures his neighbour but not where Ox injures the neighbour [of the owner]. And the Rabbis?23 - Had the deduction been from that text we might have referred it exclusively to Pain,24 but as to Medical Expenses and Loss of Time25 we might have held there is still a liability to pay. We are therefore told26 [that this is not the case].

MISHNAH. IF AN OX [TAM] OF THE VALUE OF ONE HUNDRED ZUZ HAS GORED AN OX OF THE VALUE OF TWO HUNDRED ZUZ AND THE CARCASS HAD NO VALUE AT ALL, THE PLAINTIFF WILL TAKE POSSESSION OF THE [DEFENDANT'S] OX [THAT DID THE DAMAGE].27

GEMARA. Who is the author of our Mishnah? - It is R. Akiba, as it has been taught: The ox [that did the damage] has to be assessed by the Court of law;28 this is the view of R. Ishmael. R. Akiba, however, says: The [body of the] ox becomes transferred [to the plaintiff]. What is the point at issue? - R. Ishmael maintains that he [the plaintiff] is but a creditor and that he has only a claim of money against him [the defendant], whereas R. Akiba is of the opinion that they both [the plaintiff and defendant] become the owners in common of the ox29 [that did the damage]. They [thus also] differ as to the interpretation of the verse, Then they shall sell the live ox and divide the money of it.30 R. Ishmael maintains that it is the Court on which this injunction is laid by Divine Law,31 whereas R. Akiba is of the opinion that it is the plaintiff and defendant on which it is laid.32 What is the practical difference between R. Ishmael and R. Akiba? - There is a practical difference between them where the plaintiff consecrated the ox [that did the damage].33

Raba put the following question to R. Nahman: Should the defendant meanwhile dispose of the ox, what would be the law according to R. Ishmael? [Shall we say that] since R. Ishmael considers the plaintiff to be a creditor whose claim [against the defendant] is only regarding money, the sale is valid, or that

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(1) Who should thus have borne in mind that the stranger might not yet have left the place. The smith should therefore not yet have allowed the the sparks to fly off.
(2) Who should not resonably have expected him to have still been there.
(3) Deut. XIX, 5; v. supra, p. 175, n. 3.
(4) Cf. Mak. 8a.
(5) In the case of manslaughter.
(6) Since it was an act of negligence to throw a stone where people are to be found.
(7) In the case of the joiner, who at least knew that a newcomer had entered his workshop.
(8) Dealt with by R. Eliezer b. Jacob, where the defendant is to blame as he put out his head after the stone had already been in motion.
(9) For which cf. Ex. XXI, 30. The vicious beast is, however, stoned; v. supra p. 118.
(10) According to Hor. 13b, the views of R. Meir were sometimes quoted thus; cf. however Ber. 9b; Sot. 12a; A.Z. 64b.
(11) I.e., that of 'Others'.
(12) Put forward by the first Tanna.
(13) Where the entrance had been made by permission.
(14) Cf. supra p. 73.
(15) Cf supra p. 15.
(16) Ex. XXI, 31.
(17) Ibid. XXI, 29 dealing with Mu'ad.
(18) Ibid. XXI, 28 dealing with Tam.
(19) As in the case of an injury done by Mu'ad. Cf. supra, p. 73.
(20) Cf. supra p. 15.
(21) V. supra p. 133.
(22) Lev. XXIV, 19.
(23) [Wherefore apply 'this' to deduce exemption from the four items, since that is already derived from this latter verse?]
(24) The liability for which is not in respect of an actual loss of value.
(25) The liability for which is in respect of an actual loss of money sustained.
(26) By the expression 'this'.
(27) As the full value of it corresponds in this case to the amount of half-damages.
(28) And if its value is not less than the amount of the half-damages, the defendant will have to pay that amount in full, whereas where the value of the ox that did the damage is less than the amount of the half-damages, the defendant will have to pay no more than the actual value of the ox that did the damage.
(29) Where its value is more than the amount of the half-damages.
(30) Ex. XXI, 35.
(31) I.e., to sell the live ox which is still the property of the defendant.
(32) As the live ox became their property in common where its value had been more than the amount of the half-damages.
(33) [According to R. Ishmael the consecration is of no legal effect, whereas R. Akiba would declare it valid.]

Talmud - Mas. Baba Kama 33b

since the ox is mortgaged to the plaintiff,1 the defendant has no right [to dispose of it]? - He replied: The sale is not valid. But has it not been taught: In the case of [the defendant] having disposed of the ox, the sale is valid? - The plaintiff will still be entitled to come forward and distrain on it [from the purchaser].2 But if he is entitled to come forward and distrain on it, to what purpose is the sale valid? - For the ploughing [the ox did with the purchaser].3 Can we infer from this that in the case of a debtor having sold his chattels, a Court of law will distrain on them for a creditor?4 - The case there [of the ox]5 is altogether different, since the ox is regarded as if [the owner] had mortgaged it [for half-damages]. But did Raba not say6 that where a debtor has mortgaged his slave and then sold him [to a third person] the creditor is entitled to distrain on him, whereas where an ox has been mortgaged and then sold [to a third party] the creditor cannot distrain on it?7 - Is not the reason in the case of the slave that the transaction has been widely talked about?8 So also in the case of this ox; since it gored it has been talked about, and the name 'The ox that gored' given it.

R. Tahlifa the Western9 recited in the presence of R. Abbahu: 'Where he sold the ox, the sale is not valid, but where he consecrated it [to the altar], the consecration holds good.' Who sold it? Shall I say the defendant? [In that case the opening clause,] 'Where he sold the ox, the sale is not valid', would be in accordance with the view of R. Akiba that the ox becomes transferred [to the plaintiff], while [the concluding clause.] 'Where he consecrated it, the consecration holds good' could follow only the view of R. Ishmael who said that the ox has to be assessed by the Court. If [on the other hand, it has been disposed of by] the plaintiff, would not [the opening clause.] 'Where he sold the ox, the sale is not valid', be in accordance with the view of R. Ishmael, while [the concluding clause.,] 'Where he consecrated it, the consecration holds good' could follow only the view of R. Akiba? - We may still say that it was the defendant [who disposed of it], and yet [both rulings] will be in agreement with all. 'Where he sold the ox, the sale is valid' [may be explained] even in accordance with R. Ishmael, for the ox is mortgaged to the plaintiff. 'Where he consecrated it, the consecration holds good,' [may again be interpreted] even in accordance with R. Akiba, on account of [the reason given] by R. Abbahu; for R. Abbahu [elsewhere] stated:10 An extra precaution was taken11 lest people should say that consecrated objects could lose their status even without any act of redemption.12

Our Rabbis taught: If an ox does damage while still Tam, then, as long as its case has not been brought up in Court, if it is sold the sale is valid; if it is consecrated, the consecration holds good; if slaughtered and given away as a gift, what has been done is legally effective. But after the case has come into Court,13 if it is sold the sale is not valid; if consecrated, the consecration does not hold good; if slaughtered and given away as a gift, the acts have no legal effect; so also where [other] creditors stepped in first and distrained on the ox [while in the hands of the defendant], no matter whether the debt had been incurred before the goring took place or whether the goring had occurred before the debt was incurred, the distraint is not legally effective, since the compensation [for the damage]14 must be made out of the body of the ox [that did it].15 But in the case of Mu'ad doing damage there is no difference whether the case had already been brought into Court or whether it had not yet come into Court; if it has been sold, the sale is valid; if consecrated, the consecration holds good; if slaughtered and given away as a gift, what has been done is legally effective, where [other] creditors have stepped in and distrained on the ox, no matter whether the debt had been contracted before the goring took place or whether the goring had taken place before the debt was incurred, the distraint is legally effective, since the compensation is paid out of the best of the general estate [of the defendant].16

The Master stated: 'If it is sold, the sale is valid'. [This can refer] to ploughing [done by the ox while with the vendee]. 'If consecrated, the consecration holds good'; on account of the reason given by R. Abbahu. 'If slaughtered and given away as a gift, what has been done is legally effective'. We can quite understand that where it has been given away as a gift the act should be legally effective, in respect of the ploughing [meanwhile done by the ox]. But in the case of it having been slaughtered, why should [the claimant] not come and obtain payment out of the flesh? Was it not taught: '[The] live [ox]:17 this states the rule for when it was alive; whence do we know that the same holds good even after it has been slaughtered? Because it says further: And they shall sell the ox,17 i.e., in all circumstances'? - R. Shizbe therefore said: What is referred to must be the diminution in value occasioned by its having been slaughtered.18 R. Huna the son of Joshua thereupon said: This proves that if a man impairs securities mortgaged to his creditor, he incurs no liability. Is this not obvious?19 - It might perhaps have been suggested that it was only there20 where the defendant could argue, ' I have not deprived you of anything at all [of the quantity]', and could even say, 'it is only the mere breath [of life] that I have taken away from your security' [that there should be exemption], whereas in the case of impairing securities in general there should be liability; we are therefore told [that this is not the case]. But has not this been pointed out by Rabbah? For has not Rabbah stated: 'If a man destroys by fire the documents of a neighbour, he incurs no liability'?21 - It might perhaps have been suggested that it was only there where the defendant could contend 'It was only a mere piece of paper of yours that has actually been burnt' [that there should be exemption], whereas in the case [of spoiling a field held as security] by digging there pits, ditches and caves there should be liability; we are therefore told that [this is not so, for] in the case here the damage resembles that occasioned by digging pits, ditches and caves,22 and yet it is laid down that 'what has been done is legally effective'.

'Where [other] creditors stepped in first and distrained on the ox [in the hands of the defendant] no matter whether the debt had been incurred before the goring took place or whether the goring had taken place before the debt was incurred, the distraint is not legally effective, since the compensation must be made out of the body of the ox [that did the damage].' We understand this where the goring has taken place before the debt was incurred, in which case the plaintiff for damages has priority. But [why should it be so] where the debt has been contracted before the goring took place, [seeing that in that case] the creditor for the debt has priority?

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(1) For if payment were not forthcoming the plaintiff would be entitled to distrain on the ox to the extent of the amount of the half-damages.
(2) V. p. 181, n. 8.
(3) Who will thus not have to pay for the use of the animal, [or, who will be permitted to put the ox to such service, v. Wilna Gaon, Glosses.]
(4) Whereas according to established law this is usually the case only with immovable property, cf. supra p. 62 but also B.B. 44b.
(5) That did damage by goring while still in the state of Tam.
(6) Supra p. 47. Cf. also B.B. 44b.
(7) Why then distrain on the ox in the case of goring when it had already been sold?
(8) V. B.B. loc. cit.
(9) The Palestinian.
(10) 'Ar. 33a.
(11) In the case of one who consecrates property on which there is a lien of a kethubah or a debt.
(12) It is therefore a better policy to declare the consecration valid and prescribe a nominal sum for redemption.
(13) Since when the ox is legally transferred to the plaintiff.
(14) Which will be only half of the actual amount of the loss sustained.
(15) Cf. supra p. 73.
(16) Cf. Tosef. B.K. V.
(17) Ex. XXI. 35.
(18) For which the defendant is thus not made responsible.
(19) That such an inference could be made; why then the special statement made by R. Huna?
(20) In the case of the ox that had been slaughtered.
(21) Infra p. 570.
(22) Since the damage is visible.

Talmud - Mas. Baba Kama 34a

Moreover, even where the goring had taken place before the debt was contracted, was not the creditor actually first [in taking possession of the ox]?1 Can it be concluded from this that where a creditor of a subsequent date has preceded a creditor of an earlier date in distraining on [the property of the debtor], the distraint is of no legal avail?2 - No; I may still maintain that [in this case]3 the distraint holds good, whereas in the case there,4 it is altogether different; as the plaintiff [for damages] may argue,5 'Had the ox already been with you [before it gored], would I not have been entitled to distrain on it while in your hands? For surely out of the ox that did the damage I am to be compensated.'

Our Rabbis taught: Where an ox6 of the value of two hundred [zuz] gored an ox of the same value of two hundred [zuz] and injured it to the amount of fifty zuz, but it so happened that the injured ox [subsequently] improved and reached the value of four hundred zuz, since it can be contended that but for the injury it would have reached the value of eight hundred zuz, compensation will be [still] paid as at the time of the damage.7 Where it has depreciated, the compensation will be paid in accordance with the value at the time of the case being brought into Court.8 Where it was the ox which did the damage that [subsequently] improved, the compensation will still be made in accordance with the value at the time of the damage.9 Where it has [on the other hand] depreciated, the compensation will be made in accordance with the value at the time of the case being brought into Court.10

The Master has said: 'Where it was the ox which did the damage that [subsequently] improved, the compensation will still be made as at the time of the damage.' This ruling is in accordance with R. Ishmael, who maintains that the plaintiff is a creditor and he has a pecuniary claim against him [the defendant]. Read now the concluding clause: 'Where it [on the other hand] depreciated, the compensation will be made in accordance with the value at the time of the case being brought into Court'. This ruling, on the other hand, follows the view of R. Akiba, that they both [plaintiff and defendant] become the owners in common [of the ox that did the damage]. [Is it possible that] the first clause should follow the view of R. Ishmael and the second clause follow that of R. Akiba? - No; the whole teaching follows the view of R. Akiba, for we deal here with a case where the improvement was due to the defendant having fattened the ox.11 If the improvement was due to fattening, how could you explain the opening clause, 'where . . . the injured ox [subsequently] improved and reached the value of four hundred zuz . . . compensation will be paid as at the time of the damage'? For where the improvement was due to the act of fattening [by the owner], what need could there have been to state [that compensation for the original damage has still to be paid]? - R. Papa thereupon said: The ruling in the opening clause12 applies to all cases, whether where the ox improved by special fattening or where it improved by itself: the statement of the rule was required for the case where the ox improved by itself - even then compensation will be paid as at time of the damage. The ruling in the concluding clause,13 however, could apply only to a case where the improvement was due to special fattening.

'Where it14 has depreciated, the compensation will be made in accordance with the value at the time of the case being brought into Court.' Through what can it have depreciated? Shall I say that it has depreciated through hard work? In that case [surely] the defendant can say, 'You cause it to depreciate!15 Could you expect me to pay for it?' - R. Ashi thereupon said: The depreciation [referred to] is due to the injury, in which case the plaintiff is entitled to contend, '[The evil effect of] the horn of your ox is still buried within the suffering animal.'16

MISHNAH. WHERE AN OX17 OF THE VALUE OF TWO HUNDRED [ZUZ] GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [ZUZ] AND THE CARCASS HAD NO VALUE AT ALL, R. MEIR SAID THAT IT WAS WITH REFERENCE TO THIS CASE THAT IT IS WRITTEN, AND THEY SHALL SELL THE LIVE OX AND DIVIDE THE MONEY OF IT.18 R. JUDAH, HOWEVER, SAID: THIS IS CERTAINLY THE HALACHAH,19 BUT WHILE YOU FULFIL [BY THIS RULING THE INJUNCTION], 'AND THEY SHALL SELL THE LIVE OX AND DIVIDE THE MONEY OF IT,' YOU DO NOT FULFIL [THE NEXT INJUNCTION], 'AND THE DEAD OX ALSO THEY SHALL DIVIDE.'20 THE CASE DEALT WITH BY SCRIPTURE IS THEREFORE WHERE AN OX OF THE VALUE OF TWO HUNDRED [ZUZ] GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [ZUZ] AND THE CARCASS WAS WORTH FIFTY ZUZ: ONE PARTY WOULD HERE GET HALF OF THE LIVING OX TOGETHER WITH HALF OF THE DEAD OX21 AND THE OTHER PARTY WOULD SIMILARLY GET HALF OF THE LIVING OX TOGETHER WITH HALF OF THE DEAD OX.

GEMARA. Our Rabbis taught: Where an ox of the value of two hundred [zuz] gored an ox of the same value of two hundred [zuz] and the carcass was worth fifty zuz, one party would get half of the living ox together with half of the dead ox and the other party would similarly get half of the living ox together with half of the dead ox. This is the [case of the goring] ox dealt with in the Torah, according to the view of R. Judah. R. Meir, however, says; This is not the [case of the goring] ox dealt with in the Torah, but where an ox of the value of two hundred [zuz] gored an ox of the same value of two hundred [zuz] and the carcass was of no value at all - this is the case regarding which it is laid down, 'And they shall sell the live ox and divide the money of it.' But how could I [in this case] carry out [the other direction],'And the dead ox also they shall divide'? [This only means that] the diminution [in value] brought about by the death22 has to be [compensated] to the extent of one-half out of the body of the living ox. Now, since [in the former case]23 according to both R. Meir and R. Judah one party will get a hundred and twenty-five [zuz]24 and the other party will similarly get a hundred and twenty-five [zuz], what is the [practical] difference between them? - Raba thereupon said: The difference arises where25 there has been a decrease in the value of the carcass,26 R. Meir maintains that the loss in the value of the carcass has to be [wholly] sustained by the plaintiff,27 whereas R. Judah is of the opinion that the loss in the value of the carcass will be borne by the defendant to the extent of a half.28 Said Abaye to him:29 If this be the case, will it not turn out that according to R. Judah

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(1) Why should then the plaintiff for damages override the right of another creditor who had already taken possession of the ox?
(2) Whereas this is a point on which opinions differ; cf. Keth. 94a.
(3) Dealing with two creditors for loans.
(4) Where one of the creditors was a plaintiff for damages.
(5) Against the other creditor.
(6) In the state of Tam.
(7) And the defendant cannot put up the increase in the value of the injured ox as a defence, for but for the injury the ox might have reached the value of even eight hundred zuz.
(8) To the detriment of the defendant.
(9) This view apparently maintains that the plaintiff does not become an owner of a definite portion in the ox that did the damage, but becomes entitled merely to a certain sum of money to be collected out of the body of that ox.
(10) Seemingly because the plaintiff is according to this ruling regarded as having become at the time the goring took place an owner of a definite portion in the ox which has subsequently depreciated. For if he became entitled to a certain sum of money in the body of that ox, why should he suffer on account of depreciation?
(11) In which case it is only reasonable that the plaintiff should not be entitled to any share in the improvement that resulted from the fattening carried out by the defendant.
(12) Dealing with the case where it was the injured ox that improved and increased in value.
(13) Giving the law where the ox that had done the damage improved.
(14) I.e., the ox that had been injured, dealt with in the opening clause.
(15) By hard work.
(16) The depreciation is thus a direct result of the injury for which the defendant is responsible.
(17) In the state of Tam.
(18) Ex. XXI, 35.
(19) That half-damages should be paid in the case of Tam.
(20) As in the case specified by R. Meir the carcass had no value at all.
(21) Amounting altogether to one hundred and twenty-five zuz. The plaintiff would thus get seventy-five zuz in respect of the damage that amounted to one hundred and fifty zuz. Together with the fifty of the carcass of his ox the sum total will be one hundred and twenty-five zuz.
(22) Of the animal attacked resulting from the injuries inflicted upon it.
(23) Specified by R. Judah, where the carcass was worth fifty zuz.
(24) I.e., half of the value of the living ox and half of the value of the carcass.
(25) Since the death of the attacked ox.
(26) Before it has been sold.
(27) As according to R. Meir, the defendant has no interest whatsoever in the carcass.
(28) Since according to R. Judah, both the defendant and the plaintiff have to divide the value of the carcass.
(29) Raba.

Talmud - Mas. Baba Kama 34b

[injury by] Tam would involve a more severe penalty than [injury by] Mu'ad?1 And should you maintain that this indeed is so,2 as we have learned: R. Judah says: In the case of Tam there is liability [where the precaution taken to control the ox has not been adequate] whereas in the case of Mu'ad there is no liability,3 it may be contended that you only heard R. Judah maintaining this with reference to precaution, which is specified in Scripture,4 but did you ever hear him say this regarding compensation? Moreover, it has been taught: R. Judah says: One might say that where an ox of the value of a maneh [a hundred zuz] gored an ox of the value of five sela' [i.e., twenty zuz] and the carcass was worth a sela' [i.e., four zuz], one party should get half of the living ox5 together with half of the dead ox6 and the other party should similarly get half of the living ox and half of the dead ox?7 [This cannot be so]; for we reason thus: Has Mu'ad been singled out8 to entail a more severe penalty or a more lenient one? You must surely say: [to entail] a more severe penalty. Now, if in the case of Mu'ad no payment is made but for the amount of the damage, should this not the more so be true in the case of Tam the [penalty in respect of which is] less severe?9 - R. Johanan therefore said: The practical difference between them10 arises where there has been an increase in the value of the carcass, one Master11 maintaining that it will accrue to the plaintiff whereas the other Master holds that it will be shared equally [by the two parties].12

And it is just on account of this view that a difficulty was felt by R. Judah: Now that you say that the Divine Law is lenient to the defendant, allowing him to share in the increase [of the value of the carcass] , you might then presume that where an ox of the value of five sela' [i.e. twenty zuz] gored an ox of the value of a maneh [a hundred zuz] and the carcass was valued at fifty zuz, one party would take half of the living ox13 together with half of the dead ox14 and the other party would similarly take half of the living ox and half of the dead ox?15 Say [this cannot be so, for] where could it elsewhere be found that an offender should [by order of the Court] be made to benefit as you would have the offender here in this case to benefit? It is moreover stated, He shall surely make restitution,16 [emphasising that] the offender could only have to pay but never to receive payment. Why that additional quotation?17 - [Otherwise] you might have thought this principle to be confined only to a case where the plaintiff was the loser,18 and that where no loss would be incurred to the plaintiff - as e.g. where an ox of the value of five sela' gored an ox similarly of the value of five sela' [i.e. twenty zuz] and it so happened that the carcass [increased in value and] reached the amount of thirty zuz - the defendant should indeed be entitled to share in the profit;18 hence the verse, He shall surely make full restitution, is adduced [to emphasise that in all cases] an offender could only have to pay but never to receive payment.

But R. Aha b. Tahlifa said to Raba: If so [that the principle to compensate by half for the decrease in value brought about by the death is maintained only by R. Meir], will it not be found that according to R. Judah Tam will involve the payment of more than half damages,19 whereas the Torah [emphatically] stated, And they shall sell the live ox and divide the money of it? - [No;] R. Judah also holds that the decrease in value brought about by the death will be [compensated] by half in the body of the living ox.20 Whence could he derive this?21 - From [the verse], And the dead ox also they shall divide.22 But did not R. Judah derive from this verse that one party will take half of the living ox together with half of the dead ox and the other party will similarly take half of the living ox and half of the dead ox?23 - If that were all, the text could have run, 'And the dead ox [they shall divide].' Why insert 'also'? It shows that two lessons are to be derived from the verse.24

MISHNAH. THERE ARE CASES WHERE THERE IS LIABILITY FOR OFFENCES COMMITTED BY ONE'S CATTLE25 THOUGH THERE WOULD BE NO LIABILITY SHOULD THESE OFFENCES BE COMMITTED BY ONESELF. THERE ARE, AGAIN, CASES WHERE THERE IS NO LIABILITY FOR OFFENCES COMMITTED BY ONE'S CATTLE25 THOUGH THERE WOULD BE LIABILITY WERE THESE OFFENCES COMMITTED BY ONESELF. FOR INSTANCE, IF CATTLE HAS BROUGHT INDIGNITY [UPON A HUMAN BEING] THERE IS NO LIABILITY,26 WHEREAS IF THE OWNER CAUSES THE INDIGNITY THERE WOULD BE LIABILITY.27 SO ALSO IF AN OX PUTS OUT THE EYE OF THE OWNER'S SLAVE OR KNOCKS OUT HIS TOOTH THERE IS NO LIABILITY,28 WHEREAS IF THE OWNER HIMSELF HAS PUT OUT THE EYE OF HIS SLAVE OR KNOCKED OUT HIS TOOTH HE WOULD BE LIABLE [TO LET HIM GO FREE].29 AGAIN, IF AN OX HAS INJURED THE FATHER OR MOTHER OF THE OWNER THERE IS LIABILITY,30 THOUGH WERE THE OWNER HIMSELF TO INJURE HIS FATHER OR HIS MOTHER31 THERE WOULD BE NO [CIVIL] LIABILITY.32 SO ALSO WHERE CATTLE HAS CAUSED FIRE TO BE SET TO A BARN ON THE DAY OF SABBATH THERE IS LIABILITY,30 WHEREAS WERE THE OWNER TO SET FIRE TO A BARN ON SABBATH33 THERE WOULD BE NO [CIVIL] LIABILITY, AS HE WOULD BE SUBJECT TO A CAPITAL CHARGE.32

GEMARA. R. Abbahu recited in the presence of R. Johanan:34 Any work [on the Sabbath] that has a destructive purpose entails no penalty [for the violation of the Sabbath], with the exception, however, of the act of inflicting a bodily injury, as also of the act of setting on fire. Said R. Johanan to him: Go and recite this outside35 [for the exception made of] the act of inflicting a bodily injury and of setting on fire is not part of the teaching; and should you find grounds for maintaining that it is,36 [you may say that] the infliction of a bodily injury refers to where the blood was required to feed a dog;37 and in the case of setting on fire, where there was some need of the ashes.37

We have learnt: WHERE CATTLE HAS CAUSED FIRE TO BE SET TO A BARN ON THE DAY OF SABBATH THERE IS LIABILITY, WHEREAS WERE THE OWNER TO HAVE SET FIRE TO A BARN ON SABBATH THERE WOULD BE NO [CIVIL] LIABILITY. Now, the act of the owner is here placed on a level with that of Cattle; which would show, would it not, that just as in the act of Cattle there was certainly no intention to satisfy any need,

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(1) For in the case of Mu'ad it is certainly the plaintiff who has to bear the whole loss occasioned by a decrease in the value of the carcass; cf. supra p. 65.
(2) And Tam will indeed involve a penalty more severe than that involved by Mu'ad.
(3) B.K. IV, 9.
(4) For which cf. infra, p. 259.
(5) Amounting to fifty zuz.
(6) That would amount to another ten zuz.
(7) The result would be that the plaintiff whose injured ox had altogether been worth twenty zuz would get damages amounting to sixty zuz.
(8) In Scripture; cf. Ex. XXI, 36.
(9) Why should then the defendant in the case of Tam share the loss occasioned by a decrease in the value of the carcass which he would not have to do in the case of Mu'ad?
(10) R. Meir and R. Judah.
(11) R. Meir, according to whom the defendant has no interest in the carcass.
(12) V. supra p. 189, n. 7.
(13) Amounting to ten zuz.
(14) That would amount to another twenty-five zuz.
(15) The result would be that the defendant instead of paying compensation would make a profit out of the offence, as in lieu of his ox which did the damage and which was worth twenty zuz he would get a total of thirty-five zuz.
(16) Ex. XXI, 36.
(17) I.e., why is not the first objection sufficient?
(18) Of the ten zuz that make the carcass worth more than the ox while alive.
(19) As e.g.. where an ox of the value of fifty zuz gored another's ox of the value of forty zuz and the carcass was worth twenty zuz, in which case the actual damage amounted to twenty zuz, half of which would be ten zuz, whereas if the plaintiff will get half of the living ox and half of the dead ox he shall be in receipt for damages, in addition to the value of the carcass, not of ten but of fifteen zuz.
(20) The sum total received by the plaintiff will therefore never be more than half of the actual loss sustained by him after allowing him, of course, the full value of the carcass of his ox.
(21) Since he is in disagreement with R. Meir as to the implication of the last clause of Ex. XXI, 35.
(22) Ex. XXI, 35.
(23) I.e., that the decrease in value brought about by the death will be compensated for by half in the body of the living ox. V. Supra p. 189.
(24) Viz., the principle laid down in the preceding note and the principle maintained by R. Judah, that the defendant as well as the plaintiff has an interest in the carcass and will share the profits of any increase in its value.
(25) Lit., 'ox'.
(26) As explained supra p. 134.
(27) Cf. B. K. VIII 1-2.
(28) To the law laid down in Ex. XXI, 26-27.
(29) In accordance with ibid, cf. also supra p. 137.
(30) For damages.
(31) Involving thus a capital charge, for which cf Ex. XXI, 15.
(32) As wherever a capital charge is involved by an offence, all civil liabilities that may otherwise have resulted from that offence merge in the capital charge; cf. supra p. 113.
(33) For which cf. Ex. XXXI, 14-15; but v. also ibid. XXXV, 2-3, Mekilta a.l. and Yeb. 7b, 33b and Shab. 70a.
(34) Cf. Shab. 106a.
(35) [I.e., your teaching is fit only for outside and not to be admitted within the Beth Hamidrash; v. Sanh. (Sonc. ed.) p. 425.]
(36) Cf. Shab. 75a; v. also B.K. VIII, 5.
(37) Which case involves the violation of the Sabbath because the purpose has not been altogether destructive.

Talmud - Mas. Baba Kama 35a

so also the owner similarly had no intention to satisfy thereby any need, and yet it is stated THERE WOULD BE NO [CIVIL] LIABILITY AS HE WOULD BE SUBJECT TO A CAPITAL CHARGE?1 No; it is the act of Cattle, which is placed on the same level as that of the owner himself, to show that just as in the act of the owner there had surely been the intention to satisfy some need, so also in the act of Cattle there must have been the intention to satisfy some need.2 But how is this possible in the case of Cattle? - R. Iwiya replied: The case here supposed is one of an intelligent animal which, owing to an itching in the back, was anxious to burn the barn so that it might roll in the [hot] ashes. But how could we know [of such an intention]? [By seeing that] after the barn had been burnt, the animal actually rolled in the ashes. But could such a thing ever happen? - Yes, as in the case of the ox which had been in the house of R. Papa, and which, having a severe toothache, went into the brewery, where it removed the lid [that covered the beer] and drank beer until it became relieved [of the pain]. The Rabbis, however, argued in the presence of R. Papa: How can you say that [the Mishnah places the act of] Cattle on a level with [the act of] the owner himself? For is it not stated: IF CATTLE HAS BROUGHT INDIGNITY [UPON A HUMAN BEING] THERE IS NO LIABILITY,3 WHEREAS IF THE OWNER CAUSES THE INDIGNITY THERE IS LIABILITY? Now, if we are to put the act of Cattle on a level with that of the owner himself, how are we to find intention [in the case of Cattle]?4 - Where, for instance, there was intention to do damage, as stated by the Master5 that where there was intention to do damage though no intention to insult, [liability for insult will attach]. Raba, however, suggested that the Mishnah here6 deals with a case of inadvertence, [resembling thus Cattle which acts as a rule without any specific purpose] and [the law7 was laid down] in accordance with the teaching at the School of Hezekiah. For it was taught at the School of Hezekiah:8 [Scripture places in juxtaposition] He that killeth a man . . . and he that killeth a beast9 .....[to imply that] just as in the case of killing a beast you can make no distinction whether it was inadvertent or malicious, whether intentional or unintentional, whether by way of coming down or by way of coming up,10 so as to exempt from pecuniary obligation, but [in all cases] there is pecuniary liability,11 so also in the case of killing man you should make no distinction whether it was inadvertent or malicious, whether intentional or unintentional, whether by way of coming down or by way of coming up so as to impose a pecuniary liability, but [in all cases] there should be exemption from pecuniary obligation.12 Said the Rabbis to Raba: How can you assume that the ruling in the Mishnah refers to an inadvertent act?13 Is it not stated there [that were the owner to have set fire to a barn on Sabbath there would be no civil liability] AS HE WOULD BE SUBJECT TO A CAPITAL CHARGE?14 - It only means to say this: Since if he would have committed it maliciously he would have been liable to a capital charge, as, e.g., where he had need of the ashes, there should be exemption [from civil liability] even in such a case as this where he did it inadvertently.15

MISHNAH. IF AN OX WAS PURSUING AN OTHER'S OX WHICH WAS [AFTERWARDS FOUND TO BE] INJURED, AND THE ONE [PLAINTIFF] SAYS, 'IT WAS YOUR OX THAT DID THE DAMAGE, WHILE THE OTHER PLEADS, 'NOT SO, BUT IT WAS INJURED BY A ROCK [AGAINST WHICH IT HAD BEEN RUBBING ITSELF]',16 THE BURDEN OF PROOF LIES ON THE CLAIMANT. [SO ALSO] WHERE TWO [OXEN] PURSUED ONE AND THE ONE DEFENDANT ASSERTS, 'IT WAS YOUR OX THAT DID THE DAMAGE', WHILE THE OTHER DEFENDANT ASSERTS, 'IT WAS YOUR OX THAT DID THE DAMAGE',

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(1) Which would show that setting fire on Sabbath even for purely destructive purposes is a violation of the Sabbath, supporting thus the view of R. Abbahu and contradicting that of R. Johanan.
(2) Though with cattle there would really be no legal difference whatsoever whether this was the case or not.
(3) V. p. 192, n. 2.
(4) Being as it is altogether devoid of the whole conception of insult.
(5) Supra p. 141.
(6) Which exempts man setting fire on Sabbath from any civil liability involved.
(7) Exempting from civil liability in the case of Man.
(8) Keth. 35a, 38a; Sanh. 79b and 84b.
(9) Lev. XXIV, 21.
(10) Which, however, forms a distinction in the case of unintentional manslaughter with reference to the liability to take refuge, for which cf. Mak. 7b.
(11) As indeed stated supra p. 136.
(12) Even when there is no actual death penalty involved, and likewise in the Mishnah the man setting fire though inadvertently is exempt from all civil liability, so that you cannot infer therefrom that death penalty is attached to setting fire on Sabbath even for destructive purposes. V. supra p. 192. n. 8.
(13) In which case the capital punishment could never be applied.
(14) V. p. 192, n. 8.
(15) On the basis of the teaching of Hezekiah.
(16) Denying thus any liability.

Talmud - Mas. Baba Kama 35b

NEITHER OF THE DEFENDANTS WILL BE LIABLE. BUT WHERE BOTH OF THE [PURSUING] OXEN BELONGED TO THE SAME OWNER,1 LIABILITY WILL ATTACH TO BOTH OF THEM. WHERE, HOWEVER, ONE [OF THE OXEN] WAS BIG AND THE OTHER LITTLE1 AND THE CLAIMANT MAINTAINS THAT THE BIG ONE DID THE DAMAGE,2 WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR IT WAS THE LITTLE ONE THAT DID THE DAMAGE', OR AGAIN WHERE ONE [OX] WAS TAM AND THE OTHER MU'AD AND THE CLAIMANT MAINTAINS THAT THE MU'AD DID THE DAMAGE3 WHILE THE DEFENDANT ASSERTS, 'NOT SO, FOR IT WAS THE TAM THAT DID THE DAMAGE,' THE BURDEN OF PROOF LIES ON THE CLAIMANT. [SO ALSO] WHERE THERE WERE TWO INJURED OXEN, ONE BIG AND ONE LITTLE, SIMILARLY TWO PURSUERS, ONE BIG AND ONE LITTLE, AND THE PLAINTIFF ASSERTS THAT THE BIG ONE INJURED THE BIG ONE AND THE LITTLE ONE THE LITTLE ONE, WHILE THE DEFENDANT CONTENDS, 'NOT SO, FOR [IT WAS] THE LITTLE ONE [THAT INJURED] THE BIG ONE AND THE BIG ONE [THAT INJURED] THE LITTLE ONE'; OR AGAIN WHERE ONE WAS TAM AND THE OTHER MU'AD, AND THE PLAINTIFF MAINTAINS THAT THE MU'AD INJURED THE BIG ONE AND THE TAM THE LITTLE ONE, WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR [IT WAS THE] TAM [THAT INJURED] THE BIG ONE AND THE MU'AD [THAT INJURED] THE LITTLE ONE,' THE BURDEN OF PROOF FALLS ON THE CLAIMANT.

GEMARA. R. Hiyya b. Abba stated: This [Mishnaic ruling]4 shows that [in this respect] the colleagues differed from Symmachus who maintained5 that money of which the ownership cannot be decided has to be equally divided [between the two parties]. Said R. Abba b. Memel to R. Hiyya b. Abba: Did Symmachus maintain his view even where the defendant was as positive as the claimant?6 - He replied: Yes, Symmachus maintained his view even where the defendant was as positive as the claimant. But [even if you assume otherwise],7 how do you know that the Mishnah is here dealing with a case where the defendant was as positive as the claimant?8 - Because it says, THE PLAINTIFF STATES 'IT WAS YOUR OX THAT DID THE DAMAGE', WHILE THE DEFENDANT PLEADS 'NOT SO. . . '9 R. Papa, however, demurred to this, saying: If in the case presented in the opening clause the defendant was as positive as the claimant, we must suppose that in the case presented in the concluding clause the defendant was similarly as positive as the claimant. [Now,] read the concluding clause; WHERE, HOWEVER, ONE OX WAS BIG AND THE OTHER LITTLE, AND THE PLAINTIFF ASSERTS THAT THE BIG ONE DID THE DAMAGE WHILE THE DEFENDANT PLEADS 'NOT SO, FOR IT WAS THE LITTLE ONE THAT DID THE DAMAGE'; OR AGAIN WHERE ONE OX WAS TAM AND THE OTHER MU'AD, AND THE CLAIMANT MAINTAINS THAT THE MU'AD DID THE DAMAGE, WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR IT WAS THE TAM THAT DID THE DAMAGE', THE BURDEN OF PROOF IS ON THE CLAIMANT. [Now this implies, does it not, that] where he does not produce evidence he will get paid in accordance with the pleading of the defendant. May it now not be argued that this [ruling] is contrary to the view of Rabbah b. Nathan, who said that where the plaintiff claims wheat and the defendant admits barley, he is not liable [for either of them]?10 - You conclude then that the Mishnah deals with a case where one party was certain and the other doubtful.11 Which then was certain and which doubtful? It could hardly be suggested that it was the plaintiff who was certain, and the defendant who was doubtful, for would this still not be contrary to the view of Rabbah b. Nathan?12 It would therefore seem that it was the plaintiff who was doubtful11 and the defendant certain. And if the concluding clause deals with a case where the plaintiff was doubtful and the defendant certain, we should suppose that the opening clause13 likewise deals with a case where the plaintiff was doubtful and the defendant certain. But could Symmachus indeed have applied his principle even to such a case,14 that the Mishnah thought fit to let us know that this view ought not to be accepted? - [Hence it must be said:] No; but that the concluding clause [deals with a case where] the plaintiff was doubtful and the defendant certain, and the opening clause13 [presents a case where it was] the plaintiff who was certain and the defendant doubtful.15 But [even in that case] the opening clause is not co-ordinate with the concluding clause?16 - I can reply that [a case where the plaintiff is] certain and [the defendant] doubtful17 and [a case where the claimant is] doubtful and [the defendant] certain18 are co-ordinate19 whereas [a case where the claimant is] certain and [the defendant also] certain is not co-ordinate with [a case where the claimant is] doubtful and [the defendant] certain.20

The above text states: 'Rabbah b. Nathan said: Where the plaintiff claimed wheat and the defendant admitted barley, he is not liable [for either of them].'21 What does this tell us? Have we not already learnt [in a Mishnah]: where the plaintiff claimed wheat and the defendant admitted barley he is not liable?22 If we had only [the Mishnah] there22 to go by, I might have argued that the exemption was only from the value of the wheat,23 while there would still be liability for the value of barley;24 we are therefore told by Rabbah b. Nathan that the exemption is complete.

We have learnt: WHERE THERE WERE TWO INJURED OXEN, ONE BIG AND THE OTHER LITTLE etc. [Now this implies that] where he does not produce evidence he will get paid in accordance with the pleading of the defendant. But why not apply here [the principle of complete exemption laid down in the case of] wheat and barley? - The plaintiff25 is entitled to get paid [only where he produces evidence to substantiate the claim], but will have nothing at all [where he fails to do so]. But has it not been taught; He will be paid for [the injury done to] the little one out of the body of the big and for [the injury done to] the big one out of the body of the little one? - Only where he had already seized them.26 We have learnt: IF ONE WAS TAM AND THE OTHER MU'AD, AND THE PLAINTIFF CLAIMS THAT THE MU'AD INJURED THE BIG ONE27 AND THE TAM THE LITTLE ONE WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR [IT WAS THE] TAM [THAT INJURED] THE BIG ONE AND THE MU'AD [THAT INJURED] THE LITTLE ONE', THE BURDEN OF PROOF FALLS ON THE CLAIMANT. [Now this implies that] where he does not produce evidence he will get paid in accordance with the pleading of the plaintiff. But why should [the principle of complete exemption laid down in the case of] wheat and barley not be applied here? -

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(1) And were in the state of Tam, in which case the half-damages are paid only out of the body of the ox that did the damage, as supra p. 73.
(2) And the body of the big one should secure the payment of the half damages.
(3) And the compensation should thus be made in full.
(4) That it is the claimant on whom falls the onus probandi.
(5) Infra p. 262 and B.M. 2b, 6a, 98b, 100a; B.B. 141a.
(6) In which case not the defendant but only the Court is in doubt.
(7) And suggest that where the defendant has been positive even Symmachus admits that the claimant will get nothing unless by proving his case.
(8) For in the cases dealt with in the Mishnah the defendant is usually unable to speak positively, as in most cases he was not present at the place when the alleged damage was done; cf. also Tosaf. a.l.
(9) Which is apparently a definite defence.
(10) For the claim of wheat has been repudiated by the defendant while the claim for barley admitted by him has tacitly been dispensed with by the plaintiff. The very same thing could be argued in the case of the Mishnah quoted above, where the claim was made in respect of the big one or the Mu'ad, and the defence admitted the little one or the Tam respectively.
(11) In which case the argument contained in the preceding note could no more be maintained.
(12) For surely the plaintiff, by his definite claim in respect of the big one or the Mu'ad, has tacitly waived his claim in respect of the little one or the Tam respectively.
(13) Where the defendant pleads that 'the pursued ox was injured by a rock...' .
(14) Which is really an absurdity, to maintain that a plaintiff pleading mere supposition against a defendant submitting a definite denial should in the absence of any evidence be entitled to any payment whatsoever.
(15) [How then could R. Hiyya maintain that our Mishnah deals with a case where both were certain in their pleas.]
(16) [If so, what is the objection of R. Papa to R. Hiyya's statement, since even on his view there is a lack of co-ordination between these two clauses in the Mishnah.]
(17) As in the case dealt with in the commencing clause.
(18) Which is the case in the concluding clause.
(19) Lit 'are one thing'.
(20) R. Papa was therefore loth to explain the commencing clause as dealing with a case where the defence as well as the claim was put forward on a certainty, but preferred to explain it as presenting a law-suit where, though the claim had been put forward positively, the defence was urged tentatively.
(21) V. p. 197. n. 2.
(22) Shebu. 38b.
(23) Which was denied by the defendant.
(24) Admitted by the defendant.
(25) In the case of the oxen.
(26) In which case the principle of complete exemption maintained by Rabbah b. Nathan apparently does not apply.
(27) V. p. 196. n. 1.

Talmud - Mas. Baba Kama 36a

The plaintiff is entitled to get paid [only where he produces evidence to substantiate the claim] but [failing that he] will have nothing at all. But has it not been taught: He will be paid for [the injury done to] the little one in accordance with the regulations applying to Mu'ad and for [the injury done to] the big one out of the body of the Tam? - Only where he had already seized them.

BUT WHERE BOTH OF THE [PURSUING] OXEN BELONGED TO THE SAME OWNER, LIABILITY WILL ATTACH TO BOTH OF THEM. Raba of Parazika1 said to R. Ashi: It can be concluded from this that where oxen in the state of Tam [belonging to the same owner] did damage, the plaintiff has the option to distrain either on the one or the other! - [No, replied R. Ashi, for] we are dealing here [in the Mishnah] with a case where they were Mu'ad.2 If where they were Mu'ad how do you explain the concluding clause: WHERE, HOWEVER, ONE [OF THE OXEN] WAS BIG AND THE OTHER LITTLE AND THE CLAIMANT MAINTAINS THAT THE BIG ONE DID THE DAMAGE WHILE THE DEFENDANT PLEADS 'NOT SO, FOR IT WAS THE LITTLE ONE THAT DID THE DAMAGE' THE BURDEN OF PROOF FALLS ON THE CLAIMANT. For indeed where they were Mu'ad what difference could there be [whether the big one or the little one did the damage] since at all events he has to pay the full value of the ox? - He thereupon said to him: The concluding clause presents a case where they were Tam, though the opening clause deals with a case where the oxen were Mu'ad. Said R. Aha the Elder to R. Ashi: If the commencing clause deals with a case where the oxen were Mu'ad,2 what is the meaning of 'LIABILITY WILL ATTACH TO BOTH OF THEM'? Should not the text run, 'The owner will be liable'? Again, what is the meaning of 'BOTH OF THEM'? - [The commencing clause also] must therefore deal with a case where the oxen were Tam, and the ruling stated follows the view of R. Akiba, that plaintiff and defendant become the owners in common [of the attacking ox].3 Now this is so where 'BOTH OF THEM' [the oxen] are with the owner, in which case he cannot possibly shift the claim [from one to the other].4 But if 'BOTH OF THEM' are not with him he may plead,5 'Go and produce evidence that it was this ox [which is still with me]6 that did the damage, and then I will pay you.'

CHAPTER 4

MISHNAH. IF A [TAM] OX HAS GORED FOUR OR FIVE OXEN ONE AFTER THE OTHER, COMPENSATION SHOULD IN THE FIRST INSTANCE BE MADE [OUT OF THE BODY OF THE OX] FOR THE LAST OFFENCE. SHOULD THERE BE A SURPLUS,7 COMPENSATION IS TO BE PAID ALSO FOR THE PENULTIMATE OFFENCE; SHOULD THERE STILL BE A SURPLUS, COMPENSATION IS TO BE MADE TO THE ONE BEFORE; THE LATER THE LIABILITY THE PRIOR THE CLAIM.8 THIS IS THE OPINION OF R. MEIR. R. SIMEON SAYS: IF AN OX OF THE VALUE OF TWO HUNDRED [ZUZ] HAS GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [ZUZ] AND THE CARCASS HAS NO VALUE AT ALL, THE PLAINTIFF WILL GET A HUNDRED ZUZ AND THE DEFENDANT WILL GET A HUNDRED ZUZ [OUT OF THE BODY OF THE OX THAT DID THE DAMAGE].9 SHOULD THE SAME OX HAVE GORED ANOTHER OX OF THE VALUE OF TWO HUNDRED [ZUZ], THE SECOND CLAIMANT WILL GET A HUNDRED ZUZ, WHILE THE FORMER CLAIMANT WILL GET ONLY FIFTY ZUZ10 AND THE DEFENDANT WILL HAVE FIFTY ZUZ [IN THE BODY OF HIS OX].11 SHOULD THE OX HAVE GORED YET ANOTHER OX OF THE VALUE OF TWO HUNDRED [ZUZ], THE THIRD CLAIMANT WILL GET A HUNDRED [ZUZ] WHILE THE SECOND WILL GET ONLY FIFTY [ZUZ]10 AND THE FIRST TWO PARTIES12 WILL HAVE A GOLD DENAR13 [EACH IN THE BODY OF THE OX THAT DID THE DAMAGE].11

GEMARA. Who is the author of our Mishnah? It is in accordance neither with the view of R. Ishmael nor with that of R. Akiba!14 For if it is in accordance with R. Ishmael, who maintains that they [the claimants of damages] are like any other creditors, how can it be said that THE LATER THE LIABILITY THE PRIOR THE CLAIM? Should it not be, the earlier the liability the prior the claim?15 If, on the other hand, it is in accordance with R. Akiba who maintains that the ox becomes the common property [of the plaintiff and the defendant], how can it be said that, IN THE CASE OF THERE BEING A SURPLUS16

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(1) [Identified with Faransag, near Bagdad, v. Obermeyer, op. cit., p. 269.]
(2) In which case the whole estate of the defendant can be distrained upon for the payment of damages; supra p. 73.
(3) Cf. supra p 181.
(4) So that there is no warrant for Raba of Parazika's inference.
(5) Against the plaintiff.
(6) And not the other ox that has been lost.
(7) In the body of the ox.
(8) Lit., 'the later always profits' as it is he who has the right of priority.
(9) As explained supra pp. 187-8.
(10) For the reason v. Gemara, infra p. 203.
(11) As the defendant and the first claimant became the owners of the ox in common.
(12) I.e the defendant and the first claimant.
(13) I.e., twenty-five zuz.
(14) For which cf. supra p. 181.
(15) As is usually the case with other creditors: v. p. 185.
(16) V.p. 201, n. 1.

Talmud - Mas. Baba Kama 36b

COMPENSATION WILL BE MADE FOR THE PENULTIMATE OFFENCE? Should it not be 'Compensation will be made [proportionately] for each offence'? - Raba replied: The Mishnah is indeed in accordance with R. Ishmael, who holds that claimants [of damages] are like any other creditors; and as to your objection to the statement 'THE LATER THE LIABILITY THE PRIOR THE CLAIM', which you contend should be 'The earlier the liability the prior the claim', [it can be argued] that we deal here with a case where each plaintiff has [in turn] seized the goring ox for the purpose of getting paid [the amount due to him] out of its body, in which case each has in turn acquired [in respect of the ox] the status of a paid bailee, liable for subsequent damages done by it.1 But if so, why does it say. SHOULD THERE BE A SURPLUS COMPENSATION IS TO BE PAID ALSO FOR THE PENULTIMATE OFFENCE? Should it not be: 'The surplus will revert to the owner'?2 - Rabina therefore said: The meaning is this: Should there be an excess in the damage done to him3 over that done to the subsequent plaintiff, the amount of the difference will revert to the plaintiff in respect of the preceding damage.4 So too, when Rabin returned [from Eretz Yisrael] he stated on behalf of R. Johanan that it was for the failure [to carry out their duty] as bailees that liability was incurred [by the earlier plaintiffs to the later].

How then have you explained the Mishnah? As being in accordance with R. Ishmael! If so, what of the next clause: R. SIMEON SAYS: WHERE AN OX OF THE VALUE OF TWO HUNDRED [ZUZ] HAS GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [ZUZ] AND THE CARCASS HAD NO VALUE AT ALL, THE PLAINTIFF WILL GET A HUNDRED ZUZ AND THE DEFENDANT WILL SIMILARLY GET A HUNDRED ZUZ [OUT OF THE BODY OF THE OX THAT DID THE DAMAGE]. SHOULD THE SAME OX HAVE GORED ANOTHER OX OF THE VALUE OF TWO HUNDRED [ZUZ], THE SECOND CLAIMANT WILL GET A HUNDRED ZUZ, WHILE THE FORMER CLAIMANT WILL GET ONLY FIFTY ZUZ, AND THE DEFENDANT WILL HAVE FIFTY ZUZ [IN THE BODY OF THE OX]. SHOULD THE OX HAVE GORED YET ANOTHER OX OF THE VALUE OF TWO HUNDRED [ZUZ], THE THIRD PLAINTIFF WILL GET A HUNDRED [ZUZ], WHILE THE SECOND PLAINTIFF WILL GET FIFTY [ZUZ] AND THE FIRST TWO PARTIES WILL HAVE A GOLD DENAR [EACH IN THE BODY OF THE OX THAT DID THE DAMAGE]. This brings us back [does it not] to the view of R. Akiba, who maintains that the ox becomes the common property [of the plaintiff and the defendant].5 Will then the first clause be in accordance with R. Ishmael and the second clause in accordance with R. Akiba? - That is so, since even Samuel said to Rab Judah, 'Shinena,6 leave this Mishnah alone7 and accept my explanation. that its first clause is [in accordance with] R. Ishmael and its second clause [in accordance with] R. Akiba.' (It was also stated that R. Johanan said: An actual case in which they would differ is where the plaintiff consecrates the goring ox [to the Temple].)8

We have learnt elsewhere:9 If a man boxes another man's ear, he has to give him a sela'10 [in compensation]. R. Judah in the name of R. Jose the Galilean says: A hundred zuz. A certain man having [been summoned for] boxing another man's ear, R. Tobiah b. Mattena sent an inquiry to R. Joseph, as to whether a Tyrian sela'11 is meant in the Mishnah12 or merely a sela' of [this] country.13 He sent back a reply: You have learnt it: AND THE FIRST TWO PARTIES WILL HAVE A GOLD DENAR [EACH]. Now, should you assume that the Tanna is calculating by the sela'13 of [this] country, [we may ask,] why does he not continue the division by introducing a further case where the amount [left for the first two] will come down to twelve [zuz] and one sela'?14 To which R. Tobiah replied: Has then the Tanna to string out cases like a peddler?15 What, however, is the solution?16 - The solution was gathered from the statement made by Rab Judah on behalf of Rab:17 'Wherever money18 is mentioned in the Torah, the reference is to Tyrian money, but wherever it occurs in the words of the Rabbis it means local19 money.' The plaintiff upon hearing that said to the judge: 'Since it will [only] amount to half a zuz,12 I do not want it; let him give it to the poor.' Later, however, he said; 'Let him give it to me, as I will go and obtain a cure for myself with it.' But R. Joseph said to him: The poor have already acquired a title to it, for though the poor were not present here, we [in the Court, always] act as the agents20 of the poor, as Rab Judah said on behalf of Samuel:21 Orphans

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(1) As supra p. 57, and infra p. 255.
(2) Since it is not the owner but the claimant in regard to the penultimate offence who has to he liable in respect of the last offence.
(3) I.e., to the penultimate plaintiff.
(4) As e.g. where an ox of the value of a hundred zuz gored successively the ox of A the ox of B and the ox of C, and the damages amount to fifty, thirty and twenty zuz respectively, C will be paid the sum of twenty, B only ten, which is the difference between the compensation due to him and that due from him to C, and A will get twenty, which again is the difference between the compensation due to him from the owner (of the ox that did the damage) and that owing from him to B. All the payments together, which are twenty to A, ten to B and twenty to C, make only fifty, so that the balance of the value of the ox will go to its owner.
(5) For if otherwise, why should the first two parties (the owner and the first claimant) always be treated alike?
(6) Cf. supra p. 60, n. 2.
(7) And do not try to make it self-consistent.
(8) V. supra p. 181. [This bracketed passage is to be deleted with Rashi, v. D.S. a.l.]
(9) Infra p. 520
(10) A Palestinian coin, v. Glos.
(11) Four zuz, v. infra p. 521, n. 6.
(12) As stated by the anonymous view.
(13) Half a zuz.
(14) I.e. where the last claimant will have a maneh, the next fifty zuz, the rest one gold denar, and the first claimant and the owner 12 zuz and one sela' each.
(15) Who cries the whole list of his wares. Cf. Git. 33a.
(16) As to the exact meaning of sela'.
(17) Cf. Kid. 11b and Bek. 50b.
(18) [Lit 'silver'. The market value of silver coinage was determined by Tyre, v. Krauss, op. cit., II, 405]
(19) Lit., 'the country'.
(20) Lit., 'hand'.
(21) Git. 37a.

Talmud - Mas. Baba Kama 37a

do not require a prosbul:1 and so also Rami b. Hama learned that orphans do not require a prosbul,2 since Rabban Gamaliel and his Court of law are the representatives3 of orphans.

The scoundrel Hanan, having boxed another man's ear, was brought before R. Huna, who ordered him to go and pay the plaintiff half a zuz.4 As [Hanan] had a battered zuz he desired to pay the plaintiff the half zuz [which was due] out of it. But as it could not be exchanged, he slapped him again and gave him [the whole zuz].

MISHNAH. IF AN OX WAS MU'AD TO DO DAMAGE TO ITS OWN SPECIES BUT WAS NOT MU'AD TO DO DAMAGE TO ANY OTHER SPECIES [OF ANIMALS] OR IF IT WAS MU'AD TO DO DAMAGE TO THE HUMAN SPECIES BUT NOT MU'AD TO ANY SPECIES OF BEASTS, OR IF IT WAS MU'AD TO SMALL [CATTLE] BUT NOT MU'AD TO LARGE [CATTLE], IN RESPECT OF DAMAGE DONE TO THE SPECIES TO WHICH IT WAS MU 'AD THE PAYMENT WILL HAVE TO BE IN FULL, BUT IN RESPECT OF DAMAGE DONE TO THAT TO WHICH IT WAS NOT MU' AD, THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. THEY5 SAID BEFORE R. JUDAH: HERE IS ONE WHICH WAS MU 'AD TO DO DAMAGE ON SABBATH DAYS BUT WAS NOT MU 'AD TO DO DAMAGE ON WEEK DAYS.6 HE SAID TO THEM: FOR DAMAGE DONE ON SABBATH DAYS THE PAYMENT WILL HAVE TO BE IN FULL, WHEREAS FOR DAMAGE DONE ON WEEK DAYS THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. WHEN [CAN THIS OX] RETURN TO THE STATE OF TAM? WHEN IT REFRAINS [FROM GORING] ON THREE [CONSECUTIVE] SABBATH DAYS.

GEMARA. It was stated: R. Zebid said: The proper reading of the Mishnah [in the first clause is], 'BUT WAS NOT MU 'AD . . .';7 whereas R. Papa said: The proper reading is 'IT IS NOT [THEREFORE] MU 'AD. . .'8 R. Zebid, who said that'... BUT WAS NOT MU' AD . . .'is the proper reading of the Mishnah, maintained that until we know the contrary9 such an ox is considered Mu'ad [to all species]. But R. Papa, who said that '. . . IT IS NOT [THEREFORE] MU 'AD. . .' is the correct reading of the Mishnah, maintained that even though we do not know the contrary the ox is not considered Mu 'ad [save to the species to which it had actually been Mu'ad]. R. Zebid inferred his view from the later clause [of the Mishnah], whereas R. Papa inferred his view from the opening clause. R. Zebid inferred his view from the later clause which states, IF IT WAS MU 'AD TO SMALL [CATTLE] BUT NOT MU 'AD TO LARGE [CATTLE]. Now this is quite in order if you maintain that BUT WAS NOT MU'AD' is the reading in the Mishnah, implying thus that in the absence of definite knowledge to the contrary the ox should be considered Mu'ad [to all species]. This clause would then teach us [the further point] that even where the ox was Mu 'ad to small [cattle] it would be Mu 'ad also to large [cattle] in the absence of knowledge to the contrary. But if you maintain that '. . . IT IS NOT [THEREFORE] MU'AD . . .' is the correct reading of the Mishnah, implying that even though we know nothing to the contrary the ox would not be considered Mu 'ad, could it not then be argued thus: Since in the case where the ox was Mu 'ad to do damage to small creatures of one species it would not be considered Mu 'ad with reference to small creatures of another species even if we have no definite knowledge to the contrary, was there any need to state that where the ox was Mu 'ad to small [cattle] it would not be considered Mu 'ad to big [cattle]?10 - R. Papa, however, may say to you: It was necessary to state this, since otherwise you might have been inclined to think that since the ox started to attack a particular species, it was going to attack the whole of that species without making a distinction between the large creatures of that species and the small creatures of that species, it was therefore necessary to let us know that [with reference to the large creatures] it would not be considered Mu'ad. R. Papa on the other hand based his view on the opening clause, which states: WHERE IT WAS MU 'AD TO THE HUMAN SPECIES IT WOULD NOT BE MU 'AD TO ANY SPECIES OF BEASTS. Now this would be quite in order if you maintain that 'IT IS NOT [THEREFORE] MU'AD . . .' is the text in the Mishnah denoting that even where we have no knowledge to the contrary the ox would not be considered Mu 'ad [to other species]; it was therefore necessary to make it known to us that even where the ox was Mu 'ad to the human species and though we knew nothing to the contrary, it would still not be Mu'ad to animals. But if you maintain that '. . . BUT WAS NOT MU 'AD . . .' is the correct reading of the Mishnah, implying that in the absence of knowledge to the contrary the ox would be considered Mu 'ad [to all species], could we not then argue thus: Since in the case where the ox was Mu'ad to one species of beast it would in the absence of knowledge to the contrary be considered Mu 'ad also to any other species of beast, was there any need to state that where the ox was Mu 'ad to the human species it would also be considered Mu 'ad to animals?11 - R. Zebid may, however, say to you: The opening clause refers to the reversion of the ox to the state of Tam, as, e.g., where the ox had been Mu 'ad to man and Mu 'ad to beast but has subsequently refrained from [doing damage to] beast, having stood near cattle on three different occasions without goring. It might then have been argued that since it has not refrained from injuring men, its refraining from goring cattle should [in the eye of the law] not be considered a proper reversion [to the state of Tam].12 We are therefore told that the refraining from goring cattle is in fact a proper reversion.

An objection was raised [from the following]: Symmachus says: If an ox is Mu'ad to man it is also Mu'ad to beast, a fortiori: if it is Mu'ad to injure man, how much more so is it Mu'ad to injure beast? Does this not prove that the view of the previous Tanna was that it would not be Mu'ad?'13 - R. Zebid may, however, say to you: Symmachus was referring to the reversion to the state of Tam, and what he said to the previous Tanna was this: 'Referring to your statement that the refraining [from goring] beasts is a proper reversion, [I maintain that] the refraining [from goring] beasts is not a proper reversion, [and can prove it] by means of an argument a fortiori from the case of man. For since it has not refrained from [attacking] man, will it not assuredly continue attacking beasts?

R. Ashi said: Come and hear: THEY SAID BEFORE R. JUDAH: HERE IS ONE WHICH IS MU 'AD TO DO DAMAGE ON SABBATH DAYS BUT NOT MU 'AD TO DO DAMAGE ON WEEK DAYS. HE SAID TO THEM: FOR DAMAGE DONE ON SABBATH DAYS, THE PAYMENT WILL HAVE TO BE IN FULL, WHEREAS FOR DAMAGE DONE ON WEEK DAYS THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. Now this is quite in order if you maintain that '. . . BUT WAS NOT MU'AD . . .' is the correct reading. The disciples were thus putting a question before him and he was replying to them accordingly. But If you contend that '. . .IS NOT [THEREFORE] MU 'AD . . .' is the correct text, [would it not appear as if his disciples] were giving instruction to him?14 Again, what would then be the meaning of his reply to them?15 R. Jannai thereupon said: The same can also be inferred from the opening clause, where it is stated: IN RESPECT OF DAMAGE DONE TO THE SPECIES TO WHICH IT WAS MU 'AD, THE PAYMENT WILL HAVE TO BE IN FULL, BUT IN RESPECT OF DAMAGE DONE TO THAT TO WHICH IT WAS NOT MU 'AD, THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. Now, this would be in order if you maintain that 'BUT IT WAS NOT MU 'AD . . .'16 is the correct text, in which case the clause just quoted would be explanatory. But if you maintain that '. . . IT IS NOT [THEREFORE] MU'AD . . .'17 is the correct text, this statement is complete in itself, and why then the further statement 'IN RESPECT OF DAMAGE DONE TO THE SPECIES TO WHICH IT WAS MU 'AD, THE PAYMENT WILL HAVE TO BE IN FULL, BUT IN RESPECT OF DAMAGE DONE TO THAT TO WHICH IT WAS NOT MU 'AD, THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY? Have we not been told before how that in the case of Mu 'ad the payment is for half the damage whereas in the case of Mu'ad the payment has to be in full?18 Yet even if you adopt the view of R. Papa,19 where the animal gored an ox, an ass and a camel [successively] it would still become Mu 'ad to all [species of beasts].20

Our Rabbis taught: If the animal sees an ox and gores it, another ox and does not gore it, a third ox and gores it, a fourth ox and does not gore it, a fifth ox and gores it, a sixth ox and does not gore it, the animal becomes Mu'ad to alternate oxen.

Our Rabbis taught: If an animal sees an ox and gores it, an ass and does not gore it, a horse and gores it a camel and does not gore it, a mule and gores it, a wild ass and does not gore it, the animal becomes Mu'ad to alternate beasts of all species.

The following question was raised: If the animal [successively] gored

____________________
(1) Cf. supra p. 48, n. 4 and Glos.
(2) V. p. 204, n. 16.
(3) Lit., 'father'.
(4) As stated by the anonymous view.
(5) The disciples.
(6) Apparently we are to supply the words, 'what is the rule regarding it' the remark being intended as a question. But v. infra p. 208.
(7) As indeed rendered in the Mishnaic text.
(8) The Mishnah should accordingly open thus: 'If an ox is Mu'ad to do damage to its own species, it is not (therefore) Mu'ad to any other species (of animals)' etc., etc.
(9) E.g., by letting other animals pass in front of it and seeing that it does not gore them.
(10) Since it is much less likely to attack big animals than small ones. Why then, on R. Papa's reading, have this clause at all in the Mishnah?
(11) Which it would be more ready to attack than human beings.
(12) Cf. supra p. 119.
(13) In contradiction to the view of R. Zebid.
(14) I.e., we have to read their remark as a statement and not as a question.
(15) After they had already decided the question in the wording of the problem.
(16) V. p. 205, n. 6.
(17) V. p. 206, n. 1
(18) Cf. supra p. 73.
(19) That in absence of knowledge to the contrary it is not Mu 'ad.
(20) And we should not require three gorings for each.

Talmud - Mas. Baba Kama 37b

one ox, a [second] ox, and a [third] ox, an ass, and a camel, what is the legal position? Shall the last ox be counted together with the [first two] oxen, in which case the animal that gored will still be Mu'ad only to oxen whereas to any other species it will not be considered Mu'ad, or shall perhaps the last ox be counted together with the ass and camel, so that the animal that gored will become Mu'ad to all species [of beasts]? [Again,1 where an animal has successively gored] an ass, a camel, an ox, another ox, and a [third] ox, what is the legal position? Shall the first ox be counted together with the ass and camel, so that the animal that gored will become Mu'ad to all species [of beasts], or shall it perhaps [rather] be counted together with the [other] oxen, in which case it will still be Mu'ad only to oxen, but not Mu'ad to any other species [of beasts]? [Again, where the consecutive gorings took place on] one Sabbath, [the next] Sabbath and [the third] Sabbath, and then on the [subsequent] Sunday and Monday, what is the legal position? Shall the last Sabbath be counted together with the [first two] Sabbaths, in which case the ox that gored would still be Mu'ad only for Sabbaths, whereas in respect of damage done on week days it would not yet be considered Mu 'ad, or shall it perhaps be counted together with Sunday and Monday and thus become Mu'ad in respect of all the days [of the week]? [Again, where the consecutive gorings took place on] a Thursday, the eve of Sabbath and the Sabbath, then on [the next] Sabbath and [the third] Sabbath, what is the legal position? Shall the first Sabbath be counted together with Thursday and the eve of Sabbath and the goring ox thus become Mu 'ad for all days, or shall perhaps the first Sabbath be counted together with the subsequent Sabbaths, in which case the goring ox would become Mu 'ad only for Sabbaths? - These questions must stand over.

If [an ox has] gored an ox on the fifteenth day of a particular month, and [another ox] on the sixteenth day of the next month, and [a third ox] on the seventeenth day of the third month, there would he a difference of opinion between Rab and Samuel.2 For it was stated:3 If the symptom of menstruation has once been noticed on the fifteenth day of a particular month, [then] on the sixteenth day of the next month, and [then] on the seventeenth day of the third month, Rab maintained that a periodical recurrence4 has thereby been established,5 whereas Samuel said [that this periodicity is not established] until the skipping is repeated [yet] a third time.6

Raba said: Where an ox upon hearing the sound of a trumpet gores and upon hearing [again] the sound of a trumpet gores [a second time], and upon hearing [again] the sound of a trumpet gores [a third time], the ox will become Mu'ad with reference to the hearing of the sound of trumpets. Is not this self-evident? - You might have supposed that [the goring at] the first [hearing of the sound of the] trumpet [should not be taken into account as it] might have been due merely to the sudden fright that came over the ox.7 We are therefore told [that it would be taken into account].8

MISHNAH. IN THE CASE OF PRIVATE OWNER'S9 CATTLE10 GORING AN OX CONSECRATED TO THE TEMPLE, OR CONSECRATED CATTLE GORING A PRIVATE OX, THERE IS NO LIABILITY, FOR IT IS STATED: THE OX OF HIS NEIGHBOUR,11 NOT [THAT IS TO SAY] AN OX CONSECRATED TO THE TEMPLE. WHERE AN OX BELONGING TO AN ISRAELITE HAS GORED AN OX BELONGING TO A CANAANITE, THERE IS NO LIABILITY,12 WHEREAS WHERE AN OX BELONGING TO A CANAANITE GORES AN OX BELONGING TO AN ISRAELITE, WHETHER WHILE TAM OR MU 'AD,13 THE COMPENSATION IS TO BE MADE IN FULL.14

GEMARA. The [ruling in the] Mishnah is not in accordance with [the view of] R. Simeon b. Menasya; for it was taught: Where a private ox has gored consecrated cattle or where consecrated cattle has gored a private ox, there is not liability, as it is stated: The ox of his neighbour,15 not [that is to say] an ox consecrated to the Temple. R. Simeon b. Menasya, however, says: Where consecrated cattle has gored a private ox there is no liability, but if a private ox has gored consecrated cattle, whether while Tam or Mu 'ad, payment is to be made for full damage.16 I might ask, what was the principle adopted by R. Simeon? If the implication of 'his neighbour'15 has to be insisted upon,17 why then even in the case of a private ox goring consecrated cattle should there not be exemption? If on the other hand the implication of 'his neighbour' has not to be insisted upon, why then in the case of consecrated cattle goring a private ox should there also not be liability? If, however, you argue that he18 does in fact maintain that the implication of 'his neighbour' has to be insisted upon, yet where a private ox has gored consecrated cattle there is a special reason for liability inferred by means of an a fortiori argument from the case of private cattle [as follows]: If where a private ox has gored private cattle there is liability, should not there be all the more liability where it has gored consecrated cattle? Why then [did he] not employ the principle of Dayyo19 [i.e. that it was sufficient] that the object20 to which the inference is made should be on the same footing as the object from which it was made?21 And since Tam involves there the payment of half damages, [why then should it not] here also involve the payment of half damages [only]? - Resh Lakish therefore said: Originally all cases came under the law of full compensation;22 when Scripture therefore particularised 'his neighbour' in the case of Tam, it meant that it was only where damage had been done to a neighbour that Tam would involve half damages [only], thus implying that where the damage had been done to consecrated property, whether by Tam or Mu'ad. the compensation must be in full;

____________________
(1) Assuming that in the previous case we decide that the last ox will be counted with the first two oxen.
(2) According to Rab it would become Mu'ad to gore every month by missing a day, so that if in the fourth month it gores on the eighteenth day, the compensation would have to be in full, whereas according to Samuel the compensation would still be a half, as the animal could not become Mu'ad until the act of missing a day is repeated three times, so that full compensation would begin with the goring on the nineteenth day of the fifth month.
(3) Nid. 67a.
(4) [MS.M. adds 'in skipping', cf. Rashi.]
(5) And the menstruation could accordingly be expected on the eighteenth day of the fourth month.
(6) I.e., until in the fourth month the menstruation recurs on the eighteenth day, in which case it would be expected on the nineteenth day of the fifth month,
(7) So that full compensation should begin with the fifth occasion.
(8) And full liability will commence with the fourth goring at the sound of a trumpet.
(9) [Mishnah text: 'of an Israelite'.]
(10) Lit., 'ox'.
(11) Ex. XXI, 35.
(12) As Canaanites did not recognise the laws of social justice, they did not impose any liability for damage done by cattle. They could consequently not claim to be protected by a law they neither recognised nor respected, cf. J. T. a.l. and Maim. Yad, Niz. Mam. VIII, 5. [In ancient Israel as in the modern state the legislation regulating the protection of life and property of the stranger was, as Guttmann. M. (HUCA. III 1 ff.) has shown, on the basis of reciprocity. Where such reciprocity was not recognised, the stranger could not claim to enjoy the same protection of the law as the citizen.]
(13) I.e., the ox that did the damage.
(14) So that they should guard their cattle from doing damage. (Maim. loc. cit.)
(15) V. p. 211, n. 5.
(16) Cf. supra p. 23.
(17) To mean the ox of his peer, of his equal. [This would not exclude Gentiles in general as the term רעהו, his neighbour applies also to them (cf. Ex. XI, 2); cf. next page.]
(18) R. Simeon
(19) V. supra p. 126.
(20) Viz. consecrated cattle.
(21) Viz. private cattle.
(22) As in the case of Mu 'ad where in contradistinction to Tam no mention was made of 'his neighbour': cf. Ex. XXI, 36.

Talmud - Mas. Baba Kama 38a

for if this was not its intention, Scripture should have inserted [the expression] 'his neighbour' in the text dealing with Mu'ad.1

WHERE AN OX BELONGING TO AN ISRAELITE HAS GORED AN OX BELONGING TO A CANAANITE THERE IS NO LIABILITY etc. But I might here assert that you are on the horns of a dilemma. If the implication of 'his neighbour' has to be insisted upon, then in the case of an ox of a Canaanite goring an ox of an Israelite, should there also not be exemption? If [on the other hand] the implication of 'his neighbour' has not to be insisted upon, why then even in the case of an ox of an Israelite goring an ox of a Canaanite, should there not be liability? - R Abbahu thereupon said: The Writ says, He stood and measured the earth; he beheld and drove asunder the nations,2 [which may be taken to imply that] God beheld the seven commandments3 which were accepted by all the descendants of Noah, but since they did not observe them, He rose up and declared them to be outside the protection of the civil law of Israel [with reference to damage done to cattle by cattle].4 R. Johanan even said that the same could be inferred from this [verse], He shined forth from Mount Paran,5 [implying that] from Paran6 He exposed their money to Israel. The same has been taught as follows: If the ox of an Israelite gores an ox of a Canaanite there is no liability,7 but if an ox of a Canaanite gores an ox of an Israelite whether the ox [that did the damage] was Tam or whether it had already been Mu 'ad, the payment is to be in full, as it is said: He stood and measured the earth, he beheld and drove asunder the nations,2 and again, He shined forth from Mount Paran.5 Why this further citation? - [Otherwise] you might perhaps think that the verse 'He stood and measured the earth' refers exclusively to statements [on other subjects] made by R. Mattena and by R. Joseph; come therefore and hear: 'He shined forth from Mount Paran,' implying that from Paran8 he exposed their money to Israel.

What was the statement made by R. Mattena [referred to above]? - It was this. R. Mattena said: He stood and measured the earth; He beheld etc.9 What did He behold? He beheld the seven commandments10 which were accepted by all the descendants of Noah, and since [there were some clans that] rejected them, He rose up and exiled them from their lands.11 But how can the word in the text12 be [etymologically] explained to mean 'exile'? - Here it is written '"wa-yatter" the nations' and in another place it is [similarly] written, '"le-natter" withal upon the earth,'13 which is rendered in the Targum14 'to leap withal upon the earth'.

What was the statement made by R. Joseph [referred to above]? - It was this. R. Joseph said: 'He stood and measured the earth; he beheld' etc. What did He behold? He beheld the seven commandments which had been accepted by all the descendants of Noah, and since [there were clans that] rejected them He rose up and granted them exemption. Does this mean that they benefited [by breaking the law]? And if so, will it not be a case of a sinner profiting [by the transgression he committed]? - Mar the son of Rabana15 thereupon said: 'It only means that even were they to keep the seven commandments [which had first been accepted but subsequently rejected by them] they would receive no reward.' Would they not? But it has been taught:16 'R. Meir used to say, Whence can we learn that even where a gentile occupies himself with the study of the Torah he equals [in status] the High Priest? We find it stated: . . . which if a man do he shall live in them;17 it does not say "priests, Levites and Israelites", but "a man", which shows that even if a gentile occupies himself with the study of the Torah he equals [in status] the High Priest.' - I mean [in saying that they would receive no reward] that they will receive reward not like those who having been enjoined perform commandments, but like those who not having been enjoined perform good deeds: for R. Hanina has stated:18 Greater is the reward of those who having been enjoined do good deeds than of those who not having been enjoined [but merely out of free will] do good deeds.19

Our Rabbis taught: The Government of Rome had long ago sent two commissioners to the Sages of Israel with a request to teach them the Torah. It was accordingly read to them once, twice and thrice. Before taking leave they made the following remark: We have gone carefully through your Torah, and found it correct with the exception of this point, viz. your saying that if an ox of an Israelite gores an ox of a Canaanite there is no liability,20 whereas if the ox of a Canaanite gores the ox of an Israelite, whether Tam or Mu 'ad, compensation has to be paid in full. In no case can this he right. For if the implication of 'his neighbour' has to be insisted upon, why then in the case of an ox of a Canaanite goring an ox of an Israelite should there also not be exemption? If [on the other hand] the implication of 'his neighbour' has not to be insisted upon, why then even in the case of an ox of an Israelite goring an ox of a Canaanite, should there not be liability? We will, however, not report this matter to our Government.21

When R. Samuel b. Judah lost a dauther the Rabbis22 said to 'Ulla: 'Let us go in and console him.' But he answered them: 'What have I to do with the consolation of the Babylonians,22 which is [almost tantamount to] blasphemy? For they say "What could have been done," which implies that were it possible to do anything they would have done it.' He therefore went alone to the mourner and said to him: [Scripture says,] And the Lord spake unto me, Distress not the Moabites, neither contend with them in battle.23 Now [we may well ask], could it have entered the mind of Moses to wage war without [divine] sanction? [We must suppose] therefore that Moses of himself reasoned a fortiori as follows: If in the case of the Midianites who came only to assist the Moabites24 the Torah commanded 'Vex the Midianites and smite them,'25

____________________
(1) V. p. 212, n. 8.
(2) Hab. III, 6.
(3) V. A.Z. (Sonc. ed.) p. 5, n. 7.
(4) The exemption from the protection of the civil law of Israel thus referred only to the Canaanites and their like who had wilfully rejected the elementary and basic principles of civilised humanity
(5) Deut. XXXIII, 2. [The Mount at which God appeared to offer the Law to the nations, who, however, refused to accept it. V. A.Z. 2b.]
(6) On account of what occurred thereat.
(7) V. p. 211, n. 6.
(8) Cf. A. Z. 2a.
(9) Hab. III, 2.
(10) V. p. 213, n. 3.
(11) As described in Deut. II, 10-23.
(12) I.e., wa-yatter.
(13) Lev. XI, 21.
(14) Targum Onkelos, the Aramaic version of the Hebrew Bible; cf. J.E. s.v.
(15) [Ms.M.: Rabina.]
(16) Sanh. 59a; A. Z. 3a.
(17) Lev. XVIII, 5.
(18) Infra p. 501. and Kid. 31a.
(19) [For the idea underlying this dictum v. A.Z. (Sonc. ed.) p. 6, n. 1.]
(20) V. p. 211, n. 6.
(21) [The same incident is related with some variations in J.B.K. IV, 4, and Sifre on Deut. XXXIII, 3, where R. Gamaliel (II) is mentioned as the Sage before whom the Commissioners appeared, Graetz, Geschichte, IV, 108, places this in the days of Domitian (81-96) whose distrust of the Jews led him to institute an inquisition into their beliefs and teachings; Halevy, Doroth I.e. 350, in the days of Nerva who wished to find out whether there was any truth in the slander against the Jews encouraged by Domitian.]
(22) I.e., Babylonian Rabbis.
(23) Deut. II, 9.
(24) Cf. Num. XXII, 4.
(25) Ibid XXV, 17.

Talmud - Mas. Baba Kama 38b

in the case of the Moabites [themselves] should not the same injunction apply even more strongly? But the Holy One, blessed be He, said to him: The idea you have in your mind is not the idea I have in My mind. Two doves have I to bring forth from them;1 Ruth the Moabitess and Naamah the Ammonitess. Now cannot we base on this an a fortiori argument as follows: If for the sake of two virtuous descendants the Holy One, blessed be He, showed pity to two great nations so that they were not destroyed, may we not be assured that if your honour's daughter had indeed been righteous and worthy to have goodly issue, she would have continued to live?

R. Hiyya B. Abba said that R. Johanan had stated:2 The Holy One, blessed be He, does not deprive any creature of any reward due to it, even if only for a becoming expression: for in the case of the [descendants of the] elder [daughter]3 who named her son 'Moab',4 the Holy One, Blessed be He, said to Moses, Distress not the Moabites, neither contend with them in battle, [implying that] while actual hostilities against them were forbidden, requisitioning from them was allowed, whereas in the case of the younger [daughter]3 who called her son 'Ben Ammi',5 the Holy One, Blessed be He, said to Moses: And when thou comest nigh over against the children of Ammon, distress them not, nor meddle with them at all,6 thus implying that they were not to be subjected even to requisitioning.

R. Hiyya B. Abba further said that R. Joshua b. Korha had stated:7 At all times should a man try to be first in the performance of a good deed, as on account of the one night by which the elder [daughter]8 preceded the younger she preceded her by four generations [in having a descendant] in Israel: Obed, Jesse, David and Solomon.9 For the younger [had no descendant in Israel] until [the advent of] Rehoboam, as it is written: And the name of his mother was Naamah the Ammonitess.10

Our Rabbis taught: If cattle of an Israelite has gored cattle belonging to a Cuthean11 there is no liability. But where cattle belonging to a Cuthean gored cattle belonging to an Israelite, in the case of Tam the payment will be for half the damage, whereas in the case of Mu'ad the payment will be in full. R. Meir, however, says: Where cattle belonging to an Israelite gored cattle belonging to a Cuthean there is no liability, whereas in the case of cattle belonging to an Israelite, whether in the case of Tam or in that of Mu'ad, the compensation is to be in full. Does this mean to say that R. Meir maintains that the Cutheans were lion-proselytes?12 But if [so], an objection would be raised [from the following]:13 All kinds of stains [found on women's underwear] brought from Rekem14 are [levitically] clean.15 But R. Judah considers them unclean, as the inhabitants [of that place] are mainly proselytes16 who are in error;17 from among Gentiles18 they are considered clean. But [where they were brought] from among Israelites19 or from Cutheans [after having been obtained from private places all agree in declaring them unclean.20 But where they were brought from Cutheans who had already abandoned them to the public at large]21 R. Meir considers them unclean,22 whereas the Sages consider them clean, for [even] they23 were not suspected of being lax in [the exposing of women's stained underwear]. Now does this not prove that R. Meir was of the opinion that Cutheans were true proselytes? - R. Abbahu thereupon said: This was only a pecuniary disability that R. Meir24 imposed upon them, so that [Israelites] should not intermingle with them.

R. Zera raised an objection [from the following]: These are the damsels through whom the fine25 is imposed: If a man has connexion with a girl that is a bastard,26 a Nethinah27 or a Cuthean.28 Now if you maintain that R. Meir imposed a pecuniary disability on them, why then not impose it in this case too,29 so that [Israelites] should not mix with them? Abaye thereupon said:

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(1) The Moabites and the Ammonites, who must therefore be saved.
(2) Naz. 23b and Hor. 10b.
(3) Of Lot; cf. Gen. XIX, 30-38.
(4) Lit., 'From father'.
(5) Lit., 'The son of my people'
(6) Deut. II, 19.
(7) Naz. ibid; and Hor. 11a.
(8) V. p. 216, n. 6.
(9) Cf. Ruth IV, 13-22.
(10) I Kings XIV, 31.
(11) I.e., members of the mixed tribes who had been settled on the territory of the former Kingdom of Israel by the Assyrian king and who were subsequently a great hindrance to the Jews who returned from the Babylonian captivity to revive their country and their culture; cf. II Kings, XVII. 24-41; Ezra IV, 1-24 and Neh. III, 33; IV, V, VI, 13.
(12) I.e., they accepted some of the Jewish practices not out of appreciation or with sincerity but simply out of the fear of the lions, which as stated in Scripture had been slaying them; cf. II Kings, XVII, 25.
(13) Nid. VII. 3.
(14) A place mainly inhabited by heathens who are not subject to the laws of purity and menstruation. [Rekem is identified by Targum Onkelos Gen. XVI, 14, with Kadesh; by Josephus (Ant. IV, 7, 1), with Petra.]
(15) As the underwear might naturally be supposed to have been worn by a heathen woman.
(16) Who are subject to all the laws of Scripture and whose menstrual discharge defiles any garment which comes in contact with it.
(17) And have lapsed from the observance of the Law.
(18) Those who have never embraced the religion of Israel and have thus never been subject to the laws of purity and menstruation.
(19) Who as a rule do not expose to the public garments stained with menstrual discharge.
(20) For both Israelites and Cutheans are subject to the laws of purity and menstruation.
(21) The bracketed passage follows the interpretation of this Mishnah given in Nid. 56b.
(22) For Cutheans in contradistinction to Israelites were, according to R. Meir, suspected of being lax in the matter of exposing to the public garments stained with menstrual discharge.
(23) I.e. Cutheans.
(24) Who in other respects considered them true proselytes.
(25) For seduction in accordance with Ex. XXII, 15-16, or for rape in accordance with Deut. XXII, 28-29.
(26) Cf. Deut. XXII, 29 and ibid. XXIII, 3.
(27) A Gibeonite, v. Glos.
(28) Keth. III, 1.
(29) By not allowing them to recover compensation for seduction.

Talmud - Mas. Baba Kama 39a

[No exception was made in this case] so that the sinner1 should not profit thereby. But let him pay the amount of the fine to the poor?2 - R. Mari said: It would [in that case have remained] a pecuniary obligation without definite claimants3 [and would thus never have been discharged].4

MISHNAH. IF AN OX OF AN OWNER WITH UNIMPAIRED FACULTIES GORES AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR,5 THE OWNER IS LIABLE. WHERE, HOWEVER, AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR HAS GORED AN OX OF AN OWNER WHOSE FACULTIES ARE UNIMPAIRED, THERE IS NO LIABILITY.6 IF AN OX OF A DEAF-MUTE AN IDIOT OR A MINOR7 HAS GORED, THE COURT OF LAW APPOINT A GUARDIAN, IN WHOSE PRESENCE WITNESSES WILL BE ABLE TO TESTIFY [THAT THE OX HAS GORED SO THAT IT WILL EVENTUALLY BE DECLARED MU'AD]. IF THE DEAF-MUTE RECOVERS HIS HEARING [OR SPEECH], OR IF THE IDIOT BECOMES SANE, OR IF THE MINOR COMES OF AGE, THE OX PREVIOUSLY DECLARED MU'AD WILL RETURN TO THE STATE OF TAM: THESE ARE THE WORDS OF R. MEIR. R. JOSE, HOWEVER, SAYS THAT THE OX WILL REMAIN IN STATUS QUO. IN THE CASE OF A STADIUM OX8 [KILLING A PERSON], THE DEATH PENALTY IS NOT IMPOSED [UPON THE OX], AS IT IS WRITTEN: IF AN OX GORE,9 EXCLUDING CASES WHERE IT IS GOADED TO GORE.

GEMARA. Is not the text in contradiction with itself? [In the first clause] you state, IF AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR GORES AN OX BELONGING TO ONE WHOSE FACULTIES ARE UNIMPAIRED THERE IS NO LIABILITY, implying that a guardian is not appointed in the case of Tam to collect [the payment of half-damages] out of its body.10 But read the following clause: IF AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR HAS GORED, THE COURT OF LAW APPOINT A GUARDIAN IN WHOSE PRESENCE WITNESSES WILL BE ABLE TO TESTIFY [SO THAT IT WILL EVENTUALLY BE DECLARED MU'AD]. Now, does this not prove that a guardian is appointed in the case of Tam to collect [the payment of half-damages] out of its body? - Raba replied [that the text of the concluding clause] should be understood thus: If the oxen are presumed to be gorers, then a guardian is appointed and witnesses will give evidence for the purpose of having the cattle declared Mu'ad, so that should another goring take place,11 the payment would have to come from the best [of the general estate].12

From the best of whose estate [would the payment have to come]? - R. Johanan said: From the best [of the estate] of the orphans;13 R. Jose b. Hanina said: From the best [of the estate] of the guardian. But did R. Johanan really say so? [Has it not been stated that] R. Judah said in the name of R. Assi:14 The estate of the orphans13 must not be distrained upon unless where usury is consuming it, and R.. Johanan said: [Unless there is a liability] either for a bond bearing interest or to a woman for her kethubah,15 [so as to save from further payment] on account of [her] maintenance?16 - You must therefore reverse names [to read as follows]: R. Johanan said: From the best [of the estate] of the guardian, whereas R. Jose b. Hanina said: From the best [of the estate] of the orphans. Raba, however, objected, saying: Because there is a contradiction between R. Johanan in one place and R. Johanan in another place, are you to ascribe to R. Jose b. Hanina an erroneous view?17 Was not R. Jose b. Hanina a judge, able to penetrate to the innermost intention of the Law? - We must therefore not reverse the names, [and the contradiction between the two views of R. Johanan18 can be reconciled by the consideration that] a case of damage is altogether different.19 R. Johanan stated that the payment must be made out of the best [of the estate] of the orphans, because if you were to say that it is to be out of the best [of the estate] of the guardians

____________________
(1) The seducer.
(2) So that the sinner should not benefit, but why pay the money to the Cuthean if R. Meir was inclined to impose a disability upon Cutheans?
(3) Any poor man claiming the money could be put off by the plea that he (the seducer) wished to give it to another poor man.
(4) If the Cuthean would not have been entitled to claim it.
(5) Usually up to the age of thirteen. These three form a category for themselves as they are not subject to the obligations of either civil or criminal law.
(6) In the case of Tam: v. the discussion in Gemara.
(7) By evidence having been delivered in the presence of the appointed guardian.
(8) [**, the arena used for wild beast hunts and gladiatorial contests, v. Krauss, op. cit. III, 119.]
(9) Ex. XXI, 28.
(10) Cf.supra p. 73.
(11) But no payment will be made for damage done while the ox was Tam.
(12) V. p. 219, n. 6.
(13) Who were minors.
(14) 'Ar. 22a.
(15) I.e., marriage settlement; v. Glos.
(16) For as long as the widow does not collect her kethubah, she receives her maintenance from the property of the orphans, v. Keth. XI, 1.
(17) [Raba regarded it as an adopted ruling not to distrain upon the estate of orphans. V. Asheri, a.l.]
(18) I.e., here and in 'Ar. 22a.
(19) Presumably on account of public safety and public interest it is more expedient not to postpone payment until the orphans come of age.

Talmud - Mas. Baba Kama 39b

people would certainly refrain from accepting this office and would do nothing at all [in the matter]. R. Jose b. Hanina, however, said that the payment should be made out of the best [of the estate] of the guardians. and that these should be reimbursed out of the estate of the orphans when the latter will have come of age.

Whether [or not] guardians could be appointed in the case of Tam to collect payment out of its body, is a point at issue between the following Tannaim: In the case of an ox whose owner has become a deaf-mute, or whose owner became insane or whose owner has gone abroad,1 Judah b. Nakosa said on behalf of Symmachus that it would have to remain Tam2 until witnesses could give evidence in the presence of the owner. The Sages, however, say that a guardian should be appointed in whose presence the evidence may be given. Should the deaf-mute recover his faculty [of hearing or speech], or the idiot become sane, or the minor come of age, or the owner return from abroad, Judah b. Nakosa said on behalf of Symmachus that the ox would revert to the state of Tam3 until evidence is given in the presence of the owner, whereas R. Jose said that it would retain its status quo. Now, we have here to ask, what is the meaning of 'it would have to remain Tam'4 in the dictum of Symmachus? It could hardly mean that the ox cannot become Mu'ad at all, for since it is stated in the concluding clause, 'The ox would revert to the state of Tam', it is implied that it had formerly been Mu'ad. What then is the meaning of, 'it would have to remain Tam'?4 We must say, 'It would remain Tam [complete],'5 that is, we do nothing to diminish its value, which would, of course, show that [Symmachus holds] no guardian is appointed in the case of Tam to collect payment out of its body. 'The Sages, however, say that a guardian should be appointed in whose presence evidence may be given', from which it follows that [they hold] a guardian may be appointed in the case of Tam to collect payment out of its body.

And what is the point at issue in the concluding clause? The point at issue there is [whether or not a change of] control6 should cause a change [in the state of the ox].7 Symmachus maintains that [a change in] control causes a change [in the state of the ox],7 whereas R. Jose holds that [a change of] control causes no change [in the state of the ox].

Our Rabbis taught: Where an ox of a deaf-mute, an idiot or a minor has gored, R. Jacob pays half-damages. What has R. Jacob to do with it?8 - But read, 'R. Jacob orders the payment of half-damages.' With what case are we here dealing? If with a Tam, is this not obvious?9 For does not any other owner similarly pay half-damages? If [on the other] hand we are dealing with a Mu'ad, then where proper precautions were taken to control it, why should any payment be made at all?10 And if no precautions were taken to control it, why should not damages be paid in full? - Raba thereupon said: We are in fact dealing with a Mu'ad, and with a case where precautions of some inferior sort11 were taken to control the ox, but not really adequate precautions. R. Jacob concurred with R. Judah who said12 that [even in the case of Mu'ad, half of the payment, i.e.] the part due from Tam remains unaffected [being still subject to the law of Tam]; he also concurred with R. Judah in holding13 that to procure exemption from the law of Mu'ad even inadequate precautions are sufficient;14 and he furthermore followed the view of the Rabbis15 who said that a guardian could be appointed in the case of Tam to collect payment out of its body.16 Said Abaye to him:17 Do they18 really not differ? Has it not been taught: 'Where the ox of a deaf-mute, an idiot or a minor has gored, R. Judah maintains that there is liability to pay and R. Jacob says that the payment will be only for half the damage'? - Rabbah b. 'Ulla thereupon said: The 'liability to pay' mentioned by R. Judah is here defined [as to its amount] by R. Jacob.19 But according to Abaye who maintained that they did differ, what was the point at issue between them? - He may tell you that they were dealing with a case of Mu'ad that had not been guarded at all, in regard to which R. Jacob would concur with R. Judah on one point but differ from him on another point. He would concur with him on one point, in that R. Judah lays down that [even with Mu'ad half of the payment, i.e.] the part due from Tam remains unaffected; but he would differ from him on another point, in that R. Judah lays down that a guardian should be appointed in the case of Tam to collect payment out of its body, whereas R. Jacob is of the opinion that a guardian could not be appointed and there could therefore be no payment except the half [which should be subject to the law] of Mu'ad.20 Said R. Aha b. Abaye to Rabina: All would be very well according to Abaye who maintained that they differ;21 he is quite right [in explaining the earlier statement of R. Jacob22 to apply only to Mu'ad].23 But according to Raba who maintained that they do not differ, why should the former statement [of R. Jacob] be referred only to Mu'ad? Why not also to Tam,

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(1) Lit., 'the Province of the Sea'.
(2) בתמותו
(3) V. the discussion which follows.
(4) In the commencing clause.
(5) Reading בתמימותו instead of בתמותו.
(6) Such as from guardian to owner.
(7) I.e., from the state of Mu'ad to that of Tam.
(8) That he personally should have to pay compensation.
(9) Why then state this at all?
(10) Since so far as the owner was concerned the damage occurred by accident.
(11) For the various degrees of precaution cf. infra 55b.
(12) Supra p. 84 and infra p. 260.
(13) Infra p. 259.
(14) But this would not be sufficient in the case of Tam. Where therefore such a precaution has been taken to control a Mu'ad, the half-damages for which the Tam is liable would be enforced, but not the additional damages for which the Mu'ad is liable.
(15) The Sages, whose view was explained supra.
(16) Hence R. Jacob's ruling for the payment of half-damages.
(17) I.e., to Raba.
(18) R. Jacob and R. Judah.
(19) Who thus makes precise what R. Judah left unspecified.
(20) Which is paid out of the general estate.
(21) I.e., that R. Jacob maintained that no guardian could be appointed in the case of Tam, and R. Judah that he could.
(22) Where the view of R. Judah was not mentioned at all.
(23) Where no precaution to control the ox has been taken.

Talmud - Mas. Baba Kama 40a

if he1 follows the view of R. Judah,2 in a case where the precautions taken to control the ox were of an inferior kind and not really adequate,3 or if he1 follows the view of R. Eliezer b. Jacob,4 where no precautions to control the ox had been taken at all,5 as it has been taught: R. Eliezer b. Jacob says: Whether in the case of Tam or in the case of Mu'ad, if precautions of [at least] some inferior sort have been taken to control the ox, there would be no liability. The new point made known to us by R. Jacob would thus have been that guardians should be appointed even in the case of Tam to collect payment out of its body. [Why then did Raba explain the former statement of R. Jacob to refer only to Mu'ad? Why did he not explain it to refer to Tam also?] - [In answer] he6 said: Raba made7 one statement express two principles [in which R. Jacob is in agreement with R. Judah].8

Rabina stated that [the question whether or not a change of] control should cause a change [in the state of the ox] might have been the point at issue between them,9 e.g., where after the ox had been declared Mu'ad, the deaf-mute recovered his faculty, or the idiot became sane, or the minor came of age, [in which case] R. Judah would maintain that the ox should remain in its status quo whereas R. Jacob would hold that [a change of] control should cause a change [in the state of the ox].

Our Rabbis taught: In the case of guardians, the payment [for damages] will be out of the best of the general estate, though no kofer10 will be paid by them. Who is the Tanna who holds that [the payment of] kofer is but an act of atonement11 [which would justify the exemption in this case], as [minor] orphans are not subject to the law of atonement? - R. Hisda said: It is R. Ishmael the son of R. Johanan b. Beroka. For it was taught: [The words,] Then he shall give for the ransom of his life12 [indicate] the value [of the life] of the person killed. But R. Ishmael the son of R. Johanan b. Beroka interprets it to refer to the value [of the life] of the defendant. Now, is this not the point at issue between them,13 that the Rabbis consider kofer to constitute a civil liability14 whereas R. Ishmael the son of R. Johanan b. Beroka holds kofer to be of the nature of propitiation?15 - R. Papa said that this was not the case. For we may suppose all to agree that kofer is a kind of propitiation, and the point at issue between them here is merely that the Rabbis hold that this propitiatory payment should be fixed by estimating the value [of the life] of the person killed, whereas R. Ishmael the son of R. Johanan b. Beroka maintains that it should be fixed by estimating the value of [the life of] the defendant. What reason have the Rabbis for their view? - The expression 'laying upon' is used in the later context16 and the same expression 'laying upon' is used in an earlier context;17 just as there it refers to the plaintiff, so does it here also refer to the plaintiff. But R. Ishmael the son of R. Johanan b. Beroka argued that it is written, 'Then he shall give for the ransom of his life' [referring of course to the defendant]. And the Rabbis? - [They reply,] Yes, it does say 'The ransom of his life', but the amount must be fixed by valuing [the life of] the person killed.

Raba in his conversations with R. Nahman used to praise R. Aha b. Jacob as a great man. He18 therefore said to him: 'When you come across him, bring him to me.' When he19 later came to see him he18 said to him: 'You may put problems to me', whereupon he19 asked him: 'If an ox of two partners [kill a person] how is the payment of kofer to be made? Shall this one pay kofer and the other one kofer? But one kofer is mentioned by Divine Law and not two kofers! Shall this one [pay] half of the kofer and the other one half of the kofer? A full kofer is commanded by Divine Law and not half of a kofer!' While he20 was still sitting and pondering over this, he21 further asked him: We have learnt:22 'In the case of debtors for valuations23 the Sanctuary treasury may demand a pledge, whereas in the case of those who are liable to sin-offerings or for trespass-offerings24 no pledge can be enforced.' Now, what would be the law in the case of those liable to kofer? [Shall it be said that] since kofer is a kind of propitiation it should be subject to the same ruling as sin-offerings and trespass-offerings,24 the matter being of serious moment to the defendant so that there is no necessity of enforcing a pledge from him; or [shall it] perhaps [be argued that] since it has to be given to a fellow man it is [considered] a civil liability, and as it does not go to the Temple treasury,25 it is consequently not taken too seriously by the defendant, for which [reason there may appear to be some] necessity for requiring a pledge? Or, again, since the defendant did not [in this case] himself commit the wrong, for it was his chattel that did the wrong [and committed manslaughter], the whole matter might be considered by him as of no serious moment, and a pledge should therefore be enforced? - He26 said to him: 'Leave me alone; I am still held prisoner by your first problem [that has not yet been answered by me].'

Our Rabbis taught: If a man borrowed an ox on the assumption that it is in the state of Tam but is subsequently discovered to have already been declared Mu'ad, [if goring is repeated while still with the borrower] the owner will pay one half of the damages and the borrower will pay [the other] half of the damages. But if it was declared Mu'ad while in the possession of the borrower, and [after it] was returned to the owner [it gored again] , the owner will pay half the damages while the borrower is exempt from any liability whatsoever.

The Master stated: 'If a man borrowed an ox on the assumption that it is in the state of Tam but was subsequently discovered to have already been declared Mu'ad, [if goring is repeated] the owner will pay one half of the damages and the borrower will pay [the other] half of the damages.' But why should the borrower not plead against the owner, 'I wanted to borrow an ox, I did not want to borrow a lion?' - Rab said: we are dealing here with a case where the borrower knew the ox to be a gorer.27 Still why can he not plead against him: 'I wanted to borrow an ox in the state of Tam but I did not want to borrow an ox that had already been declared Mu'ad'? - [This could not be pleaded] because the owner might argue against him: 'In any case, even had the ox been still Tam, would you not have to pay half-damages? Now, also, you have to pay one half of the damages.' But still why can he not plead against him: 'Had the ox been Tam, damages would have been paid out of its body'?28 - [This could similarly not be pleaded] because the owner might contend: 'In any case would you not have had to reimburse me [to the full extent of] the value of the ox?'29 Why can he still not plead against him:

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(1) I.e., R. Jacob.
(2) That an inferior degree of precaution is not sufficient in the case of Tam; v. infra p.259.
(3) Hence the liability to pay half-damages, a guardian being appointed to collect payment out of the body of the Tam.
(4) That a precaution of even an inferior degree suffices with Tam as well as with Mu'ad.
(5) V. p. 223, n. 10.
(6) I.e., Rabina.
(7) [So MS.M. deleting 'he means thus' in cur. edd. of Rashi.]
(8) [By explaining R. Jacob's earlier statement as referring to Mu'ad, he informs us that he shares the views of R. Judah both in regard to the question of precaution and that of the part due from Tam in case of a Mu'ad ox, whilst incidentally we also learn that guardians are appointed in case of Tam etc.]
(9) Between R. Jacob and R. Judah in the second cited Baraitha.
(10) Lit., 'atonement', or 'a sum of money', i.e., compensation paid for manslaughter committed by a beast in lieu of the life of the owner of the beast, as appears from Ex. XXI, 29-30; v. Glos.
(11) And not an ordinary civil obligation like damages.
(12) Ex. XXI, 30
(13) I.e., between R. Ishmael and the other Rabbis his opponents.
(14) The payment must therefore correspond to the value of the loss sustained through the death of the person killed.
(15) For since it was the life of the owner of the beast that should be redeemed the payment must surely correspond to the value of his life.
(16) Ex. XXI, 30.
(17) Ibid. XXI, 22.
(18) R. Nahman.
(19) R. Aha b. Jacob.
(20) V. p. 225, n. 6.
(21) V. ibid., n. 7.
(22) 'Ar. 21a.
(23) I.e. vows of value dealt with in Lev. XXVII, 2-8.
(24) Which are intended to procure atonement and which will consequently not be put off.
(25) [Lit., 'To the (Most) High.' Read with MS.M. 'Since it has to be given to a fellow man and not to the Treasury, it is a civil liability.']
(26) R. Nahman.
(27) Though he did not know that the ox had been declared Mu'ad.
(28) And not from my own estate.
(29) In payment of the ox you borrowed from me.

Talmud - Mas. Baba Kama 40b

'Were the ox to have been Tam I would have admitted [the act of goring] and become exempt from having to pay'?1 Moreover even according to the view2 that the payment of half-damages [for goring in the case of Tam] is a civil liability,3 why should the borrower still not argue: 'Had the ox been Tam I would have caused it to escape to the pasture'?4 - We must therefore suppose the case to have been one where the Court of law stepped in first and took possession of the ox. But if so why should the owner pay one half of the damages? Why not plead against the borrower: 'You have allowed my ox to fall into the hands of a party against whom I am powerless to bring any legal action'? - [This could not be pleaded] because the borrower might retort to him: 'Were I even to have returned the ox to you, would the Court of Law not have taken it from you?' But why should the owner still not plead against the borrower: 'Were you to have returned it to me, I would have caused it to escape to the pasture'?5 - [This could not be pleaded] because the borrower might argue against him: 'In any case would the damages not have been paid out of the best [of your general estate]?'6 This indeed could be effectively argued [by the borrower] where the owner possessed property, but what could be argued in the case where the owner possessed no property? - What therefore the borrower could always argue against the owner is [as follows]: 'Just as I am under a personal obligation to you,7 so am I under a personal obligation7 to that party [who is your creditor], in virtue of the rule of R. Nathan, as it was taught,8 'R. Nathan says: Whence do we conclude that if A claims a maneh9 from B, and B [claims a similar sum] from C, the money is collected from C and [directly] handed over to A? From the statement of Scripture:10 And give it unto him against whom he hath trespassed.11

'If it was declared Mu'ad while in the possession of the borrower, and [after it] was returned to the owner [it gored again], the owner will pay half damages while the borrower is exempt from any liability whatsoever.' Does this concluding clause [not appear to prove that a change in the] control [of the ox]12 causes a change [in its status], while the preceding clause [tends to prove that a change in the] control [of the ox]13 causes no change [in its status]? - R. Johanan thereupon said: The contradiction [is obvious]; he who taught one clause certainly did not teach the other clause [in the text of the Baraitha]. Rabbah, however, said: Since the opening clause [tends to prove that a change in the] control13 does not cause a change [in the status], the concluding clause [may also maintain that a change in the] control does not cause a change [in the status]. For the ruling in the concluding clause could be based on the fact that the owner may argue against the borrower, 'You had no legal right to cause my ox to be declared Mu'ad.'14 R. Papa, however, said: Since the concluding clause [proves that a change in the] control15 [of the ox] causes a change [in its status], the opening clause [may also maintain that a change in the] control [of the ox] causes a change [in its status]. For the ruling in the opening clause could be based upon the reason that wherever the ox is put, it bears the name of its owner upon it.16

IN THE CASE OF A STADIUM OX [KILLING A PERSON], THE DEATH PENALTY IS NOT IMPOSED [UPON THE OX] etc. The question was raised: What [would have been the position of such an ox] with reference to [its being sacrificed upon] the altar? - Rab said that it would have been eligible, whereas Samuel maintained that it would have been ineligible. Rab considered it eligible since it committed manslaughter only by compulsion, whereas Samuel considered it ineligible since it had been used as an instrument for the commission of a crime.

An objection was raised:17 [Ye shall bring your offering] of the cattle18 excludes an animal that has copulated with a woman and an animal that has copulated with a man;19 even of the herd18 excludes an animal that has been used as an instrument of idolatry; of the flock18 excludes an animal that has been set apart for idolatrous purposes; and of the flock excludes an animal that has gored [and committed manslaughter]. R. Simeon remarked upon this: If it is laid down that an animal that has copulated with a woman19 [is to be excluded] why was it necessary to lay down that an animal goring [and committing manslaughter is also excluded]?20 Again, if it is laid down that an animal that gored [and committed manslaughter is to be excluded], why was it necessary to lay down that an animal copulating with a woman [is also excluded]?20 [The reason is] because there are features in an animal copulating with a woman which are not present in an animal goring [and committing manslaughter], and again there are features in an animal goring [and committing manslaughter] which are not present in the case of an animal copulating with a woman. In the case of an animal copulating with a human being the law makes no distinction between a compulsory21 and a voluntary act [on the part of the animal],22 whereas in the case of an animal goring [and committing manslaughter] the law does not place a compulsory act on the same footing as a voluntary one. Again, in the case of an animal goring [and committing manslaughter] there is liability to pay kofer,23 whereas in the case of an animal copulating with a woman there is no liability to pay kofer.24 It is on account of these differences that it was necessary to specify both an animal copulating with a woman and an animal goring [and committing manslaughter]. Now, it is here taught that in the case of an animal copulating with a human being the law makes no distinction between a compulsory and a voluntary act, whereas in the case of an animal goring [and committing manslaughter the law] does not place a compulsory act on the same footing as a voluntary one. What rule are we to derive from this? Is it not the rule in respect of eligibility for becoming a sacrifice [upon the altar]?25 - No; the rule in respect of stoning.26 This indeed stands also to reason, for if you maintain that it is with reference to the sacrifice that the law does not place a compulsory act on the same footing as a voluntary one in the case of an animal goring, [I would point out that with reference to its eligibility for the altar] the Scripture says nothing explicitly with regard either to a compulsory act or a voluntary act on its part. Does it therefore not [stand to reason that what we are to derive from this is] the rule in respect of stoning?

The Master stated: 'In the case of an animal goring [and committing manslaughter] there is liability to pay kofer, whereas in the case of an animal copulating with a woman there is no liability to pay kofer.' What are the circumstances? It could hardly be that while copulating with a woman it killed her, for what difference could be made between killing by means of a horn and killing by means of copulating? If on the other hand the act of copulating did not result in manslaughter, is the exemption from paying kofer not due to the fact that no killing took place? - Abaye said: We suppose, in fact, that it deals with a case where, by the act of copulating, the animal did not kill the woman, who, however, was brought to the Court of Law and by its orders executed. [In such a case] you might perhaps have thought

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(1) For since the liability of half-damages in the case of Tam is only of a penal nature, confession by the defendant would have annulled the obligation; cf. supra. p. 62.
(2) V. supra p. 64.
(3) And confession would bring no exemption.
(4) And since the payment in the case of Tam is only out of its body he would have evaded it.
(5) V. p.227, n. 7.
(6) For in fact the ox had already been declared Mu'ad in the hands of the owner.
(7) To return the ox.
(8) Pes. 31a; Git. 37a; Keth. 19a, 82a; Kid. 15a.
(9) 100 zuz; cf. Glos.
(10) Num. V,7.
(11) Pointing thus to the last creditor.
(12) I.e. from the hands of the borrower to those of the owner.
(13) I.e, from the hands of the owner to those of the borrower.
(14) And it is because of this fact but not because of the change in the control that the ox reverts to the state of Tam.
(15) V. p. 228, n. 8.
(16) The ox therefore did not, by leaving the owner and coming into the hands of a borrower, undergo any change at all.
(17) From Bek. 41a;Tem. 28a.
(18) Lev. I, 2.
(19) Cf. Lev., XVIII, 23 and ib. XX,15-16.
(20) Since in both cases the animal is to be killed where the crime has been testified to by witnesses.
(21) As in the case of animal copulating with man.
(22) V. p. 229, n. 7.
(23) V. p. 224. n. 6.
(24) See the discussion which follows.
(25) Since this was the point under consideration, which solves the question as to the eligibility of a stadium ox for the altar.
(26) [In respect of which the difference between compulsory goring and voluntary goring is admitted.]

 

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