That cattle be permitted to pasture in woods;1 that wood may be gathered [by all] in private fields;1 that grasses may similarly be gathered [by all] in all places, with the exception, however, of a field where fenugrec is growing;1 that shoots be permitted to be cut off [by all] in all places. with the exception, however, of stumps of olive trees;1 that a spring emerging [even] for the first time may be used by the townspeople; that it be permitted to fish with an angle in the Sea of Tiberias, provided no sail is spread as this would detain boats [and thus interfere with navigation]; that it be permitted to ease one's self at the back of a fence even in a field full of saffron; that it be permitted [to the public] to use the paths in private fields until the time when the second rain is expected;2 that it be permitted to turn aside to [private] sidewalks in order to avoid the road-pegs; that one who has lost himself in the vineyards be permitted to cut his way through when going up and cut his way through when coming down;3 and that a dead body, which anyone finds has to bury should acquire [the right to be buried on] the spot [where found].
'That cattle be permitted to pasture in woods.' R. Papa said: This applies only to small cattle pasturing in big woods4 for in the case of small cattle pasturing in small woods or big cattle in big forests it would not be permitted,5 still less big cattle pasturing in small woods.5
'That wood may be gathered [by all] in private fields: 'This applies only to [prickly shrubs such as] Spina regia and hollow.6 For in the case of other kinds of wood it would not be so. Moreover, even regarding Spina Regia and hollow, permission was not given except where they were still attached to the ground, but after they had been already broken off [by the owner] it would not be so.7 Again, even in the case of shrubs still attached to the soil, permission was not given except while they were still in a wet state, but once they had become dry it would not be so.7 But in any case it is not permitted to uproot [them].
'That grasses may similarly be gathered [by all] in all places, with the exception, however, of a field where fenugrec is growing.' Does this mean to say that fenugrec derives some benefit from grasses?8 If so, a contradiction could be pointed out [from the following:] 'If fenugrec is mixed up with other kinds of grasses, the owner need not be compelled to tear it out9 [for he will do it in any case on account of the fact that the grasses spoil the fenugrec'.10 Now, does this not prove that grasses are disadvantageous to fenugrec?] - Said R. Jeremiah: There is no contradiction, for while the latter statement refers to the seeds,11 the former deals with the pods.12 It is only to the seeds that grasses are disadvantageous as they make them lean, whereas to the pods13 they are advantageous, for when placed between grasses they get softer. Or if you like I can say that while one statement refers to fenugrec sown for the use of man, the other refers to fenugrec sown for animals, for since it was sown for animals grasses are also required for it. How can we tell [for what it was sown]?13 - R. Papa said: If made in beds it is sown for man, but if not in beds it is for animals.
'That shoots be permitted to be cut off [by all] in all places, with the exception, however, of stumps of olive trees.' R. Tanhum and R. Barias explained in the name of a certain old man that in the case of an olive tree the size of the length of an egg has to be left over at the bottom; in the case of reeds and vines [it is only] from the knot and upwards14 [that it is permitted to cut off shoots]; in the case of all other trees [it is permitted only] from the thick parts of the tree but not from the central part of the tree, and only from a new bough that has not yet yielded fruit but not from an old bough which is yielding fruit; again, only from such spots [on the tree] as do not face the sun
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(1) The reason is given below.
(2) I.e., the seventeenth of Marcheshvan; cf. Ta'an. 6b and Ned VIII,5.
(3) Though damage be done thereby to the vineyard.
(4) Where the trees would thereby not be damaged.
(5) On account of the damage which could be done to the trees.
(6) Or other kinds of thorns and thistles.
(7) As they would then be the exclusive property of the owner.
(8) Which have thus to be preserved.
(9) So as not to transgress Lev. XI. 19: 'thou shalt not sow thy field with mingled seed'; cf. also Shek. I, 1-2.
(10) Kil. II,5.
(11) Which will be used for sowing purposes.
(12) Which are used as food.
(13) So that the stipulation of Joshua should have practical application where it was sown for the use of man.
(14) Cf. B.B. 80b.but not from a spot which does face the sun,1 for so it says 'And for the precious things of the fruits of the sun'.2
'That a spring emerging [even] for the first time may be used by the townspeople.' Rabbah son of R. Huna said that the owner3 is [still] entitled to be paid for its value. The law, however, is not in accordance with this view.
'That it be permitted to fish with an angle in the Sea of Tiberias provided that no sail is spread, as this would detain boats.' It is, however, permitted to fish by means of nets and traps. Our Rabbis taught: 'The tribes stipulated with one another at the very outset that nobody should spread a sail and thus detain boats. It is, however, permitted to fish by means of nets and traps.'4
Our Rabbis taught: The Sea of Tiberias was included in the portion of Naphtali. In addition, he received a rope's length of dry land on the southern side to keep nets on, in fulfilment of the verse, Possess thou the sea and the South.5
It was taught: R. Simeon b. Eleazar said: Anything found on the mountains detached from the soil was considered as belonging to all the tribes,6 but if still attached [to the ground] as belonging to the particular tribe [in whose territory it was found]. There was, however, no tribe in Israel which had not land7 both on the hills and in the vale, in the South and in the valley. as stated: Turn you and take your journey and go to the hill - country of the Amorites, and unto all the places nigh thereunto, in the plain, in the hills and in the vale, and in the South, and by the sea side8 etc., for you can similarly find the same regarding the Canaanites, perizites and Ammonites who were before them, as stated: 'and unto all nigh thereunto',8 proving that the same applied to those who were nigh thereunto.
'That it be permitted to ease one's self at the back of a fence even though in a field full of saffron.' R. Aha b. Jacob said: This permission was required only for the taking of a pebble from the fence.9 R. Hisda said: This may be done even on the Sabbath.10 Mar Zutra the Pious used to take a pebble from a fence and put it back there and tell his servant11 to go and make it good again.
'That it be permitted to use the paths in private fields until the time when the second rain is expected.' R. papa said that regarding our land [here in Babylon], even after the fall of [mere] dew this would be harmful.
'That it be permitted to turn aside to [private] sidewalks in order to avoid road pegs.' As Samuel and Rab Judah were once walking on the road, Samuel turned aside to the private sidewalk. Rab Judah thereupon said to him: Do the stipulations laid down by Joshua hold good even in Babylon? - He answered him: I say that it applies even outside Eretz Yisrael. As Rabbi and R. Hiyya were once walking on the road they turned aside to the private sidewalks, while R. Judah b. Kenosa went striding12 along the main road in front of them. Rabbi thereupon said to R. Hiyya. 'Who is that man who wants to show off13 in front of us?' R. Hiyya answered him: 'He might perhaps be R. Judah b. Kenosa who is my disciple and who does all his deeds out of pure piety.'14 When they drew near to him they saw him and R. Hiyya said to him: 'Had you not been Judah b. Kenosa, I would have sawed your joints with an iron saw.'15
'That one who lost himself in the vineyards should be permitted to cut his way through when going up and cut his way through when coming down.' Our Rabbis taught: He who sees his fellow wandering in the vineyards is permitted to cut his way through when going up and to cut his way through when coming down until he brings him into the town or on to the road; so also one who is lost in the vineyards may cut his way through when going up and cut his way through when coming down until he reaches the town or the road.16 What is the meaning of 'so also'? [Is the latter case not obvious?]17 - You might think that it is only in the case of a fellow-man wandering, in which case he18 knows where he is going to, that he may cut his way through, whereas in the case of being lost himself, when he does not know where he is going to, he should not be permitted to cut his way through but should have to walk round about the boundaries. We are therefore told that this is not so - Cannot this permission be derived from the Pentateuch? For it was taught: 'Whence can it be derived that it is obligatory to restore the body of a fellow-man?19 Because it is said: And thou shalt restore it to him20 [implying him himself, i.e., his person.'21 Why then was it necessary for Joshua to stipulate this?]22 - As far as the Pentateuch goes, he23 would have to remain standing between the boundaries [and walk round about]; it was therefore necessary for Joshua to come and ordain that he be permitted to cut his way through when going up and cut his way through when coming down.
'That a dead body, which anyone finding has to bury, should acquire the [right to be buried on the] spot [where found].' A contradiction could be pointed out [from the following:] If one finds a dead person lying on the road, he may remove him to the right side of the road or to the left side of the road. If on the one side of the road there is an uncultivated field and on the other a fallow field, he should remove him to the uncultivated field;24 so also where on the one side there is a fallow field but on the other a field with seeds he should remove him to the fallow field.25 But if both of them are uncultivated, or both of them fallow, or both of them sown he may remove him to any place he likes.26 [Does this not contradict your statement that a dead person acquires the right to be buried on the spot where he was found?] - Said R. Bibi: The dead person [in the latter case] was lying broadways across the boundary so that since permission had to be given to remove him from that spot27 he may be removed to any place he prefers.
I would here ask: Are these stipulations28 only ten [in number?] Are they not eleven? - [The permission] to use the paths in private fields is [implied in] a statement made by Solomon, as taught: If a man's produce has already been removed entirely from the field, and nevertheless he does not allow persons to enter his field, what would people say of him if not, 'What [real] benefit has that owner from his field, for in what way would people do him any harm?' It was regarding such a person that the verse says: While you can be good do not call yourself bad.29 But is it [anywhere] written:30 'While you can be good do not call yourself bad'? - Yes, it is written to a similar effect: Withhold not good from him to whom it is due, when it is in the power of thy hand to do it.31
But were there no more stipulations?32 Was there not the one mentioned by R. Judah? For it was taught: 'When it is the season of removing dung, everybody is entitled to remove his dung 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 condition did Joshua transfer the land to Israel as an inheritance.33 Again, was there not also the one referred to by R. Ishmael the son of R. Johanan b. Beroka? For it was taught: R. Ishmael the son of R. Johanan b. Beroka said: It is a stipulation of the Court of Law that the owner of the bees34 be entitled to go down into his fellow's field and cut off his fellow's bough [upon which his bees have settled] in order to rescue the swarm of his bees while paying only the value of his fellow's bough; it is [similarly] a stipulation of the Court of Law that the owner of wine should pour out his wine [from the flask] so as to save in it the honey of his fellow35 and recover the value of his wine out of the honey of his fellow; it is [again] a stipulation of the Court of Law that [the owner of a bundle of wood] should remove the wood [from his ass] and load [on his ass] the flax of his fellow [from the back of the ass that fell dead]36 and recover the value of his wood out of the flax of his fellow; for it was upon this stipulation that Joshua transferred the land to Israel for an inheritance.'37 [Why then were these stipulations not included?] - Views of individual authorities were not stated [among the stipulations that have unanimous recognition].
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(1) Such as from the sides of the tree.
(2) Deut. XXXIII, 14.
(3) Of the ground where the spring emerged.
(4) Tosef. B.K. VIII.
(5) Deut. XXXIII. 23.
(6) who had an equal right to the spoil.
(7) Cf. B.B. 122a.
(8) In Deut. 1, 7.
(9) Though it would thereby become impaired.
(10) Cf. Shab. 81.
(11) On a weekday.
(12) Upon the road pegs.
(13) By not taking advantage of the stipulation of Joshua and thus showing himself more scrupulous than required by strict law.
(14) Lit., 'in the name of Heaven', and not to show off.
(15) A metaphor for excommunication.
(16) Tosef. B.M. II.
(17) As it is surely covered by the ruling in the former case.
(18) I.e., the guide.
(19) When in danger, just as it is obligatory to restore him his lost chattels.
(20) Deut. XXII. 2.
(21) Cf. Sanh. 73a.
(22) Seeing that it can be derived from the Pentateuch.
(23) The one who lost his way.
(24) So as to interfere as little as possible with agriculture.
(25) V. p. 463,n.9.
(26) 'Er. 17b.
(27) So as not to cause defilement to all those who pass that way.
(28) Enumerated in the cited Baraitha supra p. 459.
(29) Cf. Ber. 30a.
(30) In Scripture.
(31) Prov. III, 27.
(32) Made by Joshua.
(33) Tosef. B.M. XI; supra 30a.
(34) Which settled upon a neighbour's tree.
(35) Carried by him in a jug which suddenly gave way, and the contents which were much more valuable than wine thus became in danger if being wasted.
(36) And which is thus in danger of being wasted if not rescued in time.
(37) Infra 114b.But did not R. Abin upon arriving [from Palestine] state on behalf of R. Johanan that the owner of a tree which overhangs a neighbour's field as well as the owner of a tree close to the boundary has to bring the first-fruits [to Jerusalem]1 and read the prescribed text2 as it was upon this stipulation [that trees might he planted near the boundary of fields and even overhang a neighbour's field] that Joshua transferred the land to Israel3 for an inheritance.4 [How then could R. Johanan describe this as a stipulation of Joshua when it was not included in the authoritative text of the Baraitha cited enumerating all the stipulations of Joshua?] - It must therefore be that the Tanna5 of [the text enumerating] the ten stipulations laid down by Joshua was R. Joshua b. Levi.6 R. Gebiha of Be Kathil7 explicitly taught this in the text: 'R. Tanhum and R. Barias stated in the name of a certain sage, who was R. Joshua b. Levi, that ten stipulations were laid down by Joshua.'
The [following] ten enactments were ordained by Ezra: That the law be read [publicly] in the Minhah8 service on Sabbath; that the law be read [publicly] on Mondays and Thursdays; that Courts be held on Mondays and Thursdays; that clothes be washed on Thursdays; that garlic be eaten on Fridays; that the housewife rise early to bake bread; that a woman must wear a sinnar;9 that a woman must comb her hair before performing immersion;10 that pedlars [selling spicery] be allowed to travel about in the towns,11 He12 also decreed13 immersion to be required10 by those to whom pollution has happened.14
'That the law be read [publicly] in the Minhah service on Sabbath:' on account of shopkeepers [who during the weekdays have no time to hear the reading of the Law].
'That the law be read [publicly] on Mondays and Thursdays.' But was this ordained by Ezra? Was this not ordained even before him? For it was taught: 'And they went three days in the wilderness and found no water,15 upon which those who expound verses metaphorically16 said: water means nothing but Torah,17 as it says: Ho, everyone that thirsteth come ye for water.18 It thus means that as they went three days without Torah they immediately became exhausted. The prophets among them thereupon rose and enacted that they should publicly read the law on Sabbath, make a break on Sunday, read again on Monday, make a break again on Tuesday and Wednesday, read again on Thursday and then make a break on Friday so that they should not be kept for three days without Torah.'19 - Originally it was ordained that one man should read three verses or that three men should together read three verses, corresponding to priests, Levites and Israelites.20 Then Ezra came and ordained that three men should be called up to read, and that ten verses should be read, corresponding to ten batlanim.21
'That Courts be held on Mondays and Thursdays' - when people are about, as they come to read the Scroll of the Law. 'That clothes be washed on Thursdays' - that the Sabbath22 may be duly honoured.
'That garlic be eaten on Fridays' - because of the 'Onah.'23 as it is written: 'That bringeth forth its fruit in its season'24 and Rab Judah, or as others say R. Nahman, or as still others say R. Kahana, or again as others say R. Johanan, stated that this refers to him who performs his marital duty every Friday night.25
Our Rabbis taught: Five things were said of garlic: It satiates, it keeps the body warm, it brightens up the face, it increases semen, and it kills parasites in the bowels. Some say that it fosters love and removes jealousy.
'That a housewife rise early to bake bread'26 - so that there should be bread for the poor.27
'That a woman must wear a sinnar - out of modesty.
'That a woman comb her hair before performing the immersion.' But this is derived from the pentateuch! For it was taught:28 'And he shall bathe [eth besaro] his flesh in water29 [implying] that there should be nothing intervening between the body and the water; "[eth besaro] his flesh", "eth" [including] whatever is attached to his flesh,30 i.e. the hair.' [Why then had this to be ordained by Ezra?] - It may, however, be said that as far as the Pentateuch goes it would only have to be necessary to see that the hair should not he knotted or that nothing dirty should be there which might intervene,
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(1) Cf. Ex. XXIII. 19.
(2) I.e. Deut. XXVI, 5-10, which could he recited only by one who was the sole legitimate owner of both the fruits and the tree and the ground.
(3) And no misappropriation could thus he traced in the produce of such trees.
(4) How then could R. Johanan, who was an Amora, differ from Tannaitie views?
(5) [MSS omit rightly, 'the Tanna.']
(6) [Who was himself an Amoraic sage from whom R. Johanan might have differed in this case as he did on many other occasions, cf. e.g., Ber. 3b and Meg. 27a.]
(7) [Kathil on the Tigris, N. of Bagdad, Obermeycr, op. cit. p 143.]
(8) I.e., afternoon; cf. Ber. IV, 1.
(9) A sort of garment, breeches (Rashi), or belt. The word is of doubtful origin.
(10) In a ritual plunge bath called Mikweh.
(11) Even against the wishes of the townspeople; cf. B.B. 22a.
(12) I.e., Ezra.
(13) Cf. Ber. 22b.
(14) Cf. Lev. XV, 16; Deut. XXIII, 11-12. [For a discussion of the ten enactments of Ezra, v. Hoffmann, Magazin, 1883 , 48ff.]
(15) Ex. XV. 22.
(16) Doreshe Reshumoth; v. Sanh. (Sonc. ed.) p. 712. n. 12.
(17) Cf. supra p. 76.
(18) Isa. LV, 1.
(19) [Why then was it necessary for Ezra to enact this?]
(20) In which groups the people were classed.
(21) The ten persons released from all obligations and thus having leisure to attend to public duties, and to form the necessary quorum for synagogue services; cf. Meg. 1, 3; v. also Meg. 21b.
(22) Cf. Isa. LVIII. 13 and Shab. 119a.
(23) I.e., the duty of marriage; cf. Ex. XXI, 10 and Keth. V, 6.
(24) Ps. I, 3.
(25) Cf. Keth. 62b.
(26) [J. Meg. IV adds 'on Fridays'.]
(27) Cf. Keth. 67b.
(28) 'Er. 4b.
(29) Lev. XIV, 9.
(30) For a similarity v. supra p. 235.whereas Ezra came and ordained actual combing.1
'That pedlars selling spicery be allowed to travel about in the towns' - for the purpose of providing toilet articles for the women so that they should not be repulsive in the eyes of their husbands.
'He also decreed that immersion was required for those to whom pollution had happened.' Is not this in the pentateuch, as it is written: And if the flow of seed go out front him, then he shall bathe all his flesh in water?2 - The pentateuchal requirement referred to terumah and sacrifices and he came and decreed that even for [the study of] the words of the Torah [immersion is needed].
Ten special regulations were applied to Jerusalem:3 That a house sold there should not be liable to become irredeemable;4 that it should never bring a heifer whose neck is broken;5 that it could never be made a condemned city;6 that its houses would not become defiled through leprosy;7 that neither beams nor balconies should be allowed to project there; that no dunghills should be made there; that no kilns should be kept there; that neither gardens nor orchards should be cultivated there, with the exception, however, of the garden of roses8 which existed from the days of the former prophets;9 that no fowls should be reared there, and that no dead person should be kept there over night.10
'That a house sold there should not be liable to become irredeemable' - for it is written: Then the house that is in the walled city shall be made sure in perpetuity to him that bought it throughout his generations11 and as it is maintained12 that Jerusalem was not divided among the tribes.13
'That it should never bring a heifer whose neck is broken' - as it is written: If one be found slain in the land which the Lord thy God giveth thee to possess it,14 and Jerusalem [could not be included as it] was not divided among the tribes.13
'That it could never be made a condemned city' - for it is written, [One of] thy cities,15 and Jerusalem was not divided among the tribes. 'That its houses could not become defiled through leprosy' - for it is written, And I put the plague of leprosy in the house of the land of your possession,16 and Jerusalem was not divided among the tribes.13
'That neither beams nor balconies should be allowed to project' - in order not to form a tent spreading defilement,17 and not to cause harm to the pilgrims for the festivals.18
'That no dunghills be made there' - on account of reptiles.19
'That no kilns be kept there' - on account of the smoke.20
'That neither gardens nor orchards be cultivated there' - on account of the bad odour [of withered grasses].
'That no fowls be bred there' on account of the sacrifices.
'That no dead person be kept there overnight' - this is known by tradition.
IT IS NOT RIGHT TO BREED PIGS IN ANY PLACE WHATEVER. Our Rabbis taught: When the members of the Hasmonean house were contending with one another, Hyrcanus was within and Aristobulus without [the city wall].21 [Those who were within] used to let down to the other party every day a basket of denarii, and [in return] cattle were sent up for the regular sacrifices.22 There was, however, an old man23 [among the besiegers] who had some knowledge in Grecian Wisdom24 and who said to them: 'So long as the other party [are allowed to] continue to perform the service of the sacrifices they will not be delivered into your hands.' On the next day when the basket of denarii was let down, a swine was sent up. When the swine reached the centre of the wall it stuck its claws into the wall, and Eretz Yisrael quaked over a distance of four hundred parasangs25 by four hundred parasangs. It was proclaimed on that occasion: Cursed be the man who would breed swine and cursed be the man who would teach his son Grecian Wisdom. It was concerning this time that we have learnt26 that the 'Omer27 was once brought from the gardens of Zarifin and the two loaves28 from the Valley of En Soker.29
But was Grecian Wisdom proscribed? Was it not taught that Rabbi stated: 'Why use the Syriac language in Eretz Yisrael
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(1) For the sake of absolute certainty.
(2) V. Lev. XV. 16.
(3) V. Yoma 23a; 'Ar. 32b and Tosef. Neg. VI, 2. [According to Krauss, REJ. LIII, 29 ff., some of these regulations relate only to the Temple Mount.]
(4) As should be the case with dwelling houses of a walled city (cf. Lev. XXV, 29-30); but is on the other hand considered as a house of a village which has no wall round about it; (ibid. 31.).
(5) As required in Deut. XXI, 3-4 in the case of a person found slain and it be not known who hath slain him.
(6) Which would he subject to Deut. XIII, 13-18.
(7) Cf. Lev. XIV, 34-53.
(8) Where the Jordan resin grew; cf. Ker. 6a.
(9) [Cf. II Kings XXV, 4; Jer. XXXI, 4; Neh. III, 15. V. Krauss, loc. cit. p. 33.]
(10) Cf. Hag. 26a; v. infra, p. 469.
(11) Lev. XXV. 29-30.
(12) Cf. Yoma 12a.
(13) But was kept in trust for all Israel and could therefore not be subject to a law where absolute private ownership is referred to.
(14) Deut. XXI, 1.
(15) Ibid. XIII, 13.
(16) Lev. XIV, 34.
(17) Cf. Num. XIX, 14.
(18) By the spread of defilement.
(19) Which thrive in dunghills, and as soon as they die they become a source of defilement.
(20) Which would blacken the buildings of the town; cf. B.B. 23a.
(21) [In the parallel passage the roles are reversed, Aristobulus being besieged and Hyrcanus laying the siege; v. Graetz, Geschichte III, p. 710 ff. Cf. Josephus, Ant. XIV, 2,2.]
(22) Cf. Num. XXVIII, 2-4.
(23) [Identified with Antipater, an ally of Hyrcanus, v. Graetz, op. cit. 711.]
(24) ['Sophistry'. v. Graetz, loc. cit.]
(25) V. Glos.
(26) Men. 64b. [The places are identified respectively with Sarafand near Lydda and Assakar near Nablus.]
(27) Lit., 'a sheaf', denoting the public sacrifice of the first-fruits of the harvest described in Lev. XXIII, 10-14.
(28) Cf. ibid. 17.
(29) Sot. 49b and Men. 64b.[where] either the Holy Tongue or the Greek language [could be employed]?' And R. Jose said: 'Why use the Aramaic language in Babylon [where] the Holy Tongue or the Persian language [could be used]?' - It may, however, be said that the Greek language is one thing and Grecian Wisdom is another. But was Grecian Wisdom proscribed? Did not Rab Judah say that Samuel stated in the name of R. Simeon b. Gamaliel: '[The words] Mine eye affected my soul because of all the daughters of my city1 [could very well be applied to the] thousand youths who were in my father's house; five hundred of them learned Torah and the other five hundred learned Grecian Wisdom, and out of all of them there remain only I here and the son of my father's brother in Asia'?2 - It may, however, be said that the family of R. Gamaliel was an exception, as they had associations with the Government, as indeed taught: 'He who trims the front of his hair3 in Roman fashion is acting in the ways of the Amorites.'4 Abtolmus b. Reuben however was permitted to cut his hair in the Gentile fashion as he was in close contact with the Government. So also the members of the family of Rabban Gamaliel were permitted to discuss Grecian Wisdom on account of their having had associations with the Government.
NO MAN SHOULD BREED A DOG UNLESS IT IS ON A CHAIN etc. Our Rabbis taught: No man should breed a dog unless it is kept on a chain. He may, however, breed it in a town adjoining the frontier where he should keep it chained during the daytime and loose it only at night. It was taught: R. Eliezer the Great says that he who breeds dogs is like him who breeds swine. What is the practical bearing of this comparison? - That he5 be declared cursed.6 R. Joseph b. Manyumi said in the name of R. Nahman that Babylon was on a par with a town adjoining the frontier.7 This, however, was interpreted to refer to Nehardea. R. Dostai of Bira8 expounded: And when it rested, he said, Return O Lord unto the tens of thousands [and] the thousands of Israel.9 This, [he said,] teaches that the Shechinah10 does not rest upon Israel if they are less than two thousand plus two tens of thousands.11 Were therefore the Israelites [to be twenty-two thousand] less one, and there was there among them a pregnant woman thus capable of completing the number, but a dog barked at her and she miscarried, the [dog] would in this case cause the Shechinah to depart from Israel. A certain woman12 entered a neighbour's house to bake [there bread], and a dog suddenly barked at her, but the owner of the house said to her: Do not be afraid of the dog as its teeth are gone. She, however, said to him: Take thy kindness and throw it on the thorns, for the embryo has already been moved [from its place].
IT IS NOT RIGHT TO PLACE NETS FOR DOVES UNLESS AT A DISTANCE OF THIRTY RIS FROM INHABITED SETTLEMENTS. But do they proceed so far? Did we not learn that a dove-cote must be kept at a distance from the town of fifty cubits?13 - Abaye said: They certainly fly much further than that, but they eat their fill within fifty cubits.14 But do they fly only thirty ris and no more? Was it not taught: 'Where there is an inhabited settlement no net must be spread even for a distance of a hundred mil'? - R. Joseph said: The latter statement refers to a settlement of vineyards;15 Rabbah said that it refers to a settlement of dove-cotes.15 But why not lay down the prohibition to spread nets on account of the dovecotes themselves?16 - If you like I can say that they belong to Cutheans,17 or if you like I can say that they are ownerless, or if you again like I can say that they are his own. [
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(1) Lam. III, 51.
(2) Sot. 49b and Git. 58a. [This proves that even Grecian Wisdom was not proscribed.]
(3) [Like a fringe on the forehead and lets the curls hang down on the temples (Jast.).]
(4) Which should not be imitated.
(5) Who breeds a dog.
(6) As if he would breed swine.
(7) Cf. 'Er. 45a.
(8) [In Galilee, v. Klein, op. cit., p. 39.]
(9) Num. x, 36; E.V.: unto the many thousands of Israel.
(10) The Divine Presence.
(11) I.e. , twenty-two thousand, comprising the minimum of the plural tens of thousands which is twenty thousand and the minimum of the thousands which is two thousand, cf. also Yeb. 64a.
(12) Cf. Shab. 63a; and supra p. 271.
(13) So that the doves should not consume the produce of the town. (B.B. 11,5.]
(14) On account of which a dove-cote need not be kept away from the town for more than fifty cubits.
(15) Where the doves could thus take rest and fly on to great distances.
(16) Why then base the prohibition upon the proximity of a settlement?
(17) Who did not recognise the necessity of being scrupulous to such an extent and should therefore not be treated better than they treated others: cf. supra p. 211, n. 6. [For a full discussion of the regulations laid down in our Mishnah and developed in the Gemara, as well as their application in the practical life of the Jewish communities in Talmudic times, v. Krauss, REJ, LIII, 14-55.]MISHNAH. ONE WHO INJURES A FELLOW MAN BECOMES LIABLE TO HIM FOR FIVE ITEMS: FOR DEPRECIATION, FOR PAIN, FOR HEALING, FOR LOSS OF TIME AND FOR DEGRADATION. HOW IS IT WITH 'DEPRECIATION'? IF HE PUT OUT HIS EYE, CUT OFF HIS ARM OR BROKE HIS LEG, THE INJURED PERSON IS CONSIDERED AS IF HE WERE A SLAVE BEING SOLD IN THE MARKET PLACE, AND A VALUATION IS MADE AS TO HOW MUCH HE WAS WORTH [PREVIOUSLY]. AND HOW MUCH HE IS WORTH [NOW]. 'PAIN' - IF HE BURNT HIM EITHER WITH A SPIT OR WITH A NAIL, EVEN THOUGH ON HIS [FINGER] NAIL WHICH IS A PLACE WHERE NO BRUISE COULD BE MADE, IT HAS TO BE CALCULATED HOW MUCH A MAN OF EQUAL STANDING WOULD REQUIRE TO BE PAID TO UNDERGO SUCH PAIN. 'HEALING' - IF HE HAS STRUCK HIM, HE IS UNDER OBLIGATION TO PAY MEDICAL EXPENSES. SHOULD ULCERS [MEANWHILE] ARISE ON HIS BODY, IF AS A RESULT OF THE WOUND, THE OFFENDER WOULD BE LIABLE, BUT IF NOT AS A RESULT OF THE WOUND, HE WOULD BE EXEMPT. WHERE THE WOUND WAS HEALED BUT REOPENED, HEALED AGAIN BUT REOPENED, HE WOULD STILL BE UNDER OBLIGATION TO HEAL HIM. IF, HOWEVER, IT HAD COMPLETELY HEALED [BUT HAD SUBSEQUENTLY REOPENED] HE WOULD NO MORE BE UNDER OBLIGATION TO HEAL HIM. 'LOSS OF TIME' - THE INJURED PERSON IS CONSIDERED AS IF HE WERE A WATCHMAN OF CUCUMBER BEDS1 [SO THAT THE LOSS OF SUCH WAGES2 SUSTAINED BY HIM DURING THE PERIOD OF ILLNESS MAY BE REIMBURSED TO HIM]. FOR THERE HAS ALREADY BEEN PAID TO HIM THE VALUE OF HIS HAND OR THE VALUE OF HIS LEG [THROUGH WHICH DEPRIVATION HE WOULD NO MORE BE ABLE TO CARRY ON HIS PREVIOUS EMPLOYMENT]. 'DEGRADATION' - ALL TO BE ESTIMATED IN ACCORDANCE WITH THE STATUS OF THE OFFENDER AND THE OFFENDED.
GEMARA. Why [pay compensation]? Does the Divine Law not say 'Eye for eye'?3 Why not take this literally to mean [putting out] the eye [of the offender]? - Let not this enter your mind, since it has been taught: You might think that where he put out his eye, the offender's eye should be put out, or where he cut off his arm, the offender's arm should be cut off, or again where he broke his leg, the offender's leg should be broken. [Not so; for] it is laid down, 'He that smiteth any man. . .' 'And he that smiteth a beast . . .'4 just as in the case of smiting a beast compensation is to be paid, so also in the case of smiting a man compensation is to be paid.5 And should this [reason] not satisfy you,6 note that it is stated, 'Moreover ye shall take no ransom for the life of a murderer, that is guilty of death',7 implying that it is only for the life of a murderer that you may not take 'satisfaction',8 whereas you may take 'satisfaction' [even] for the principal limbs, though these cannot be restored.' To what case of 'smiting' does it refer? If to [the Verse] 'And he that killeth a beast, shall make it good: and he that killeth a man, shall be put to death',9 does not this verse refer to murder?10 - The quotation was therefore made from this text: And he that smiteth a beast mortally shall make it good: life for life,11 which comes next to and if a man maim his neighbour: as he hath done so shall it be done to him.12 But is [the term] 'smiting' mentioned in the latter text?12 - We speak of the effect of smiting implied in this text and of the effect of smiting implied in the other text: just as smiting mentioned in the case of beast refers to the payment of compensation, so also does smiting in the case of man refer to the payment of compensation. But is it not written: And he that smiteth13 any man mortally shall surely be put to death14 [which, on account of the fact that the law of murder is not being dealt with here,15 surely refers to cases of mere injury and means Retaliation]?16 - [Even this refers to the payment of] pecuniary compensation. How [do you know that it refers] to pecuniary compensation? Why not say that it really means capital punishment?17 - Let not this enter your mind; first, because it is compared to the case dealt with in the text, 'He that smiteth13 a beast mortally shall make it good', and furthermore, because it is written soon after, 'as he hath done so shall it be done to him',18 thus proving that it means pecuniary compensation. But what is meant by the statement, 'if this reason does not satisfy you'? [Why should it not satisfy you?] - The difficulty which further occurred to the Tanna was as follows: What is your reason for deriving the law of man injuring man from the law of smiting a beast and not from the law governing the case of killing a man [where Retaliation is the rule]? I would answer: It is proper to derive [the law of] injury18 from [the law governing another case of] injury,19 and not to derive [the law of] injury18 from [the law governing the case of] murder. It could, however, be argued to the contrary; [that it is proper] to derive [the law of injury inflicted upon] man from [another case of] man but not to derive [the law of injury inflicted upon] man from [the case of] beast. This was the point of the statement 'If, however, this reason does not satisfy you.' [The answer is as follows:] 'It is stated: Moreover ye shall take no ransom for the life of a murderer that is guilty of death; but he shall surely be put to death, implying that it was only 'for the life of a murderer' that you may not take ransom whereas you may take ransom [even] for principal limbs though these cannot be restored.' But was the purpose of this [verse], Moreover ye shall take no ransom for the life of a murderer, to exclude the case of principal limbs? Was it not requisite that the Divine Law should state that you should not make him20 subject to two punishments, i.e. that you should not take from him pecuniary compensation as well as kill him? - This, however, could be derived from the verse, According to his crime,21 [which implies that] you can make him liable for one crime but cannot make him liable for two crimes.22 But still was it not requisite that the Divine Law should state that you should not take pecuniary compensation from him and release him from the capital punishment? - If so the Divine Law would have written, 'Moreover ye shall take no satisfaction for him who is guilty [and deserving] of death'; why then write 'for the life of a murderer' unless to prove from it that it is only 'for the life of a murderer' that you may not take ransom, whereas you may take ransom [even] for principal limbs though these could not be restored? But since it was written, Moreover ye shall take no ransom [implying the law of pecuniary compensation in the case of mere injury], why do I require [the analogy made between] 'smiting' [in the case of injuring man and] 'smiting' [in the case of injuring beast]? - It may be answered that if [the law would have had to be derived only] from the former text, I might have said that the offender has the option, so that if he wishes he may pay with the loss of his eye or if he desires otherwise he may pay the value of the eye; we are therefore told [that the inference is] from smiting a beast: just as in the case of smiting a beast the offender is liable for pecuniary compensation so also in the case of injuring a man he is liable for pecuniary compensation.
It was taught: R. Dosthai b. Judah says: Eye for eye means pecuniary compensation. You say pecuniary compensation, but perhaps it is not so, but actual retaliation [by putting out an eye] is meant? What then will you say where the eye of one was big and the eye of the other little, for how can I in this case apply the principle of eye for eye? If, however, you say that in such a case pecuniary compensation will have to be taken, did not the Torah state, Ye shall have one manner of law,23 implying that the manner of law should be the same in all cases? I might rejoin: What is the difficulty even in that case? Why not perhaps say that for eyesight taken away the Divine Law ordered eyesight to be taken away from the offender?24 For if you will not say this,
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(1) As even a lame or one-armed person could be employed in this capacity.
(2) But not of the previous employment on account of the reason which follows.
(3) Ex. XXI, 24.
(4) Lev. XXIV; for the exact verse see the discussion that follows.
(5) But no resort to Retaliation.
(6) Lit., 'If it is your desire to say (otherwise).'
(7) Num. XXXV, 31.
(8) I.e., ransom, and thus release him from capital punishment.
(9) Lev. XXIV, 21.
(10) Where retaliation actually applies.
(11) Ibid. 18.
(12) Ibid. 19.
(13) E.V.: 'killeth'.
(14) Ibid. 17.
(15) As follows in the text, ' Breach for breach, eye for eye' etc.
(16) The phrase, 'be put to death', would thus refer exclusively to the limb which has to be sacrificed in retaliation.
(17) As indeed appears from the literal meaning of the text.
(18) Lev. XXIV, 19.
(19) I.e., where Man injured beast.
(20) The murderer.
(21) Deut. XXV, 2.
(22) Cf. Mak. 4b and 13b.
(23) Lev. XXIV, 22.
(24) Without taking into consideration the sizes of the respective eyes.how could capital punishment be applied in the case of a dwarf killing a giant or a giant killing a dwarf,1 seeing that the Torah says, Ye shall have one manner of law, implying that the manner of law should be the same in all cases, unless you say that for a life taken away the Divine Law ordered the life of the murderer to be taken away?2 Why then not similarly say here too that for eyesight taken away the Divine Law ordered eyesight to be taken away from the offender?
Another [Baraitha] taught: R. Simon b. Yohai says: 'Eye for eye' means pecuniary compensation. You say pecuniary compensation, but perhaps it is not so, but actual retaliation [by putting out an eye] is meant? What then will you say where a blind man put out the eye of another man, or where a cripple cut off the hand of another, or where a lame person broke the leg of another? How can I carry out in this case [the principle of retaliation of] 'eye for eye', seeing that the Torah says, Ye shall have one manner of law, implying that the manner of law should be the same in all cases? I might rejoin: What is the difficulty even in this case? Why not perhaps say that it is only where it is possible [to carry out the principle of retaliation that] it is to be carried out, whereas where it is impossible, it is impossible, and the offender will have to be released altogether? For if you will not say this, what could be done in the case of a person afflicted with a fatal organic disease killing a healthy person?3 You must therefore admit that it is only where it is possible [to resort to the law of retaliation] that it is resorted to, whereas where it is impossible, it is impossible, and the offender will have to be released.
The School of R. Ishmael taught: Scripture says: So shall it be given to him again.4 The word 'giving' can apply only to pecuniary compensation. But if so, would the words, As he hath [given a blow that] caused a blemish,4 similarly refer to money?5 - It may be replied that at the School of R. Ishmael this text was expounded as a superfluous verse; since it has already been written, And if a man maim his neighbour,' as he hath done so shall it be done to him.6 Why after this do we require the words, so shall it be given to him again? It must, therefore refer to pecuniary compensation. [But still,] why the words, as he hath [given a blow that] caused a blemish in a man? Since it was necessary to write, so shall it be given to him again,7 the text also writes, as he hath [given a blow that] caused a blemish in a man.
The School of R. Hiyya taught: Scripture says, Hand in hand,8 meaning an article which is given from hand to hand, which is of course money. But could you also say the same regarding the [next] words, foot in foot? - It may be replied that at the School of R. Hiyya this text was expounded as a superfluous verse, for it has already been written: Then shall ye do unto him as he had purposed to do unto his brother.9 If then you assume actual retaliation [for injury], why do I require the words, hand in hand? This shows that it means pecuniary compensation. But still, why the words, foot in foot? - Having written 'hand in hand', the text also wrote 'foot in foot'.8
Abbaye said: [The principle of pecuniary compensation] could be derived from the teaching of the School of Hezekiah. For the School of Hesekiah taught: Eye for eye, life for life,10 but not 'life and eye for eye'. Now if you assume that actual retaliation is meant, it could sometimes happen that eye and life would be taken for eye, as while the offender is being blinded, his soul might depart from him. But what difficulty is this? perhaps what it means is that we have to form an estimate,11 and only if the offender will be able to stand it will retaliation be adopted, but if he will not be able to stand it, retaliation will not be adopted? And if after we estimate that he would be able to stand it and execute retaliation it so happens that his spirit departs from him, [there is nobody to blame,] as if he dies, let him die. For have we not learnt regarding lashes: 'Where according to estimation he12 should be able to stand them, but it happened that he died under the hand of the officer of the court, there is exemption [from any blame of manslaughter]'.13
R. Zebid said in the name of Raba: Scripture says, Wound for would.14 This means that compensation is to be made for pain even where Depreciation [is separately compensated].15 Now, if you assume that actual Retaliation is meant, would it not be that just as the plaintiff suffered pain [through the wound], the offender too would suffer pain through the mere act of retaliation?16 But what difficulty is this? Why, perhaps, not say that a person who is delicate suffers more pain whereas a person who is not delicate does not suffer [so much] pain, so that the practical result [of the Scriptural inference] would be to pay for the difference [in the pain sustained]!
R. Papa in the name of Raba said: Scripture says, To heal, shall he heal;17 this means that compensation is to be made for Healing even where Depreciation [is compensated separately]. Now, if you assume that Retaliation is meant, would it not be that just as the plaintiff needed medical attention, the defendant also would surely need medical attention [through the act of retaliation]? But what difficulty is this? Why perhaps not say that there are people whose flesh heals speedily while there are others whose flesh does not heal speedily, so that the practical result [of the Scriptural inference] would be to require payment for the difference in the medical expenses!
R. Ashi said: [The principle of pecuniary compensation] could be derived from [the analogy of the term] 'for' [occurring in connection with Man] with the term 'for' occurring in connection with Cattle. It is written here, 'Eye for eye,' and it is also written there, he shall surely pay ox for ox.18 [This indicates that] just as in the latter case it is pecuniary compensation that is meant, so also in the former case it means pecuniary compensation. But what ground have you for comparing the term 'for' with 'for' [mentioned in connection] with cattle, rather than with the 'for' [mentioned in connection] with [the killing of] man, as it is written, thou shalt give life for life,19 so that, just as in the case of murder it is actual Retaliation, so also here it means actual Retaliation? - It may be answered that it is more logical to infer [the law governing] injury from [the law governing another case of] injury18 than to derive [the law of] injury from [the law applicable in the case of] murder.19 But why not say on the contrary, that it is more logical to derive [the law applying to] Man from [a law which similarly applies to] Man19 than to derive [the law applying to] Man from [that applying to] Cattle? - R. Ashi therefore said: It is from the words for he hath humbled her,20 that [the legal implication of 'eye for eye'] could be derived by analogy, as [the law in the case of] Man is thus derived from [a law which is similarly applicable to] Man, and the case of injury from [a similar case of] injury.
It was taught: R. Eliezer said: Eye for eye literally refers to the eye [of the offender]. Literally, you say? Could R. Eliezer be against all those Tannaim [enumerated above]?21 - Raba thereupon said: it only means to say that the injured person would not be valued as if he were a slave.22 Said Abaye to him: How else could he be valued? As a freeman? Could the bodily value of a freeman be ascertained by itself? - R. Ashi therefore said: It means to say that the valuation will be made not of [the eye of] the injured person but of [that of] the offender.23
An ass once bit off the hand of a child. When the case was brought before R. Papa b. Samuel he said [to the sheriffs of the court], 'Go forth and ascertain the value of the Four items.'24 Said Raba to him: Have we not learnt Five [items]? - He replied: I did not include Depreciation. Said Abaye to him: Was not the damage in this case done by an ass, and in the case of an ass [injuring even man] there is no payment except for Depreciation?25 - He therefore ordered [the sheriffs], 'Go forth and make valuation of the Depreciation.' But has not the injured person to be valued as if he were a slave? - He therefore said to them, 'Go forth and value the child as if it were a slave.' But the father of the child thereupon said, 'I do not want [this method of valuation], as this procedure is degrading.' They, however, said to him, 'What right have you to deprive the child of the payment which would belong to it?'26 He replied, 'When it comes of age I will reimburse it out of my own.
An ox once chewed the hand of a child. When the case was brought before Raba, he said [to the sheriffs of the court], 'Go forth and value the child as if it were a slave.' They, however, said to him, 'Did not the Master [himself] say that payment for which the injured party would have to be valued as if he were a slave,27 cannot be collected in Babylon?'28 - He replied, 'My order would surely have no application except in case of the plaintiff becoming possessed of property belonging to the defendant.'29 Raba thus follows his own principle, for Raba said: Payment for damage done to chattel by Cattle30 or for damage done to chattel by Man can be collected even in Babylon,31 whereas payment for injuries done to man by Man or for injuries done to man by Cattle cannot be collected in Babylon. Now, what special reason is there why payment for injuries done to man by Cattle cannot [be collected in Babylon] if not because it is requisite [in these cases that the judges be termed] Elohim,32 [a designation] which is lacking [in Babylon]? Why then should the same not be also regarding payment for [damage done] to chattel by Cattle or to chattel by Man, where there is similarly
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(1) Where the bodies of the murderer and the murdered are not alike.
(2) Without considering the weights and sizes of the respective bodies.
(3) In which case the murderer could not be convicted by the testimony of witnesses; v. Sanh. 78a.
(4) Lev. XXIV. 20.
(5) Which could of course not be maintained.
(6) Ibid. 19.
(7) To indicate that pecuniary compensation is to be paid.
(8) Deut. XIX, 21. (E.V.: Hand for hand, foot for foot.)
(9) Ibid. 19.
(10) Ex. XXI, 24.
(11) Whether the offender would stand the operation or not.
(12) Who is subject to the thirty-nine lashes for having transgressed a negative commandment.
(13) Mak. III. 14.
(14) Ex. XXI, 25.
(15) V. supra 26b.
(16) How then could there he extra compensation for pain?
(17) Ex. XXI, 19. (E.V.: shall cause him to be thoroughly healed.)
(18) Ibid. 36.
(19) Ibid. 23.
(20) Deut.XXII, 29.
(21) Proving against Retaliation.
(22) In the manner described supra p. 473.
(23) As the pecuniary compensation in this case is a substitution for Retaliation.
(24) Enumerated supra p. 473.
(25) V. supra 26a.
(26) Cf, infra 87b.
(27) I.e., where the damages could otherwise not be ascertained.
(28) Because the judges there have not been ordained as Mumhe (v. Glos.) who alone were referred to by the Scriptural term Elohim standing for 'judges' as in Ex. XXI, 6 and XXII, 7-8, and who alone were qualified to administer penal justice; cf. Sanh. 2b, 5a, and 14a and supra p. 144.
(29) Cf. supra p. 67.
(30) Lit., 'ox'.
(31) As these matters are of a purely civil nature and of frequent occurrence, as brought out by the discussion which follows.
(32) As in Ex. XXI, 6 and XXII, 7-8.required the designation of Elohim which is lacking [in Babylon]? But if on the other hand the difference in the case of chattel [damaged] by Cattle or chattel [damaged] by Man is because we [in Babylon] are acting merely as the agents [of the mumhin1 judges in Eretz Yisrael] as is the practice with matters of admittances and loans,2 why then in the case of man [injured] by Man or man [injured] by Cattle should we similarly not act as their agents as is indeed the practice with matters of admittances and loans?2 - It may, however, be said that we act as their agents only in regard to a matter of payment which we can fix definitely, whereas in a matter of payment which we are not able to fix definitely [but which requires valuation] we do not act as their agents. But I might object that [payment for damage done] to chattel by Cattle or to chattel by Man we are similarly not able to fix definitely, but we have to say, 'Go out and see at what price an ox is sold on the market place.' Why then in the case of man [injured] by Man, or man [injured] by Cattle should you not similarly say, 'Go out and see at what price slaves are sold on the market place'? Moreover, why in the case of double payment3 and four-fold or five-fold payment4 which can be fixed precisely should we not act as their agents?5 - It may, however, be said that we may act as their agents only in matters of civil liability, whereas in matters of a penal nature6 we cannot act as their agents. But why then regarding payment [for an injury done] to man by Man which is of a civil nature should we not act as their agents? - We can act as their agents only in a matter of frequent occurrence, whereas in the case of man injured by Man which is not of frequent occurrence we cannot act as their agents. But why regarding Degradation,7 which is of frequent occurrence, should we not act as their agents? - It may indeed be said that this is really the case, for R. Papa ordered four hundred zuz to be paid for Degradation. But this order of R. Papa is no precedents for when R. Hisda sent to consult R. Nahman [in a certain case] did not the latter send back word, 'Hisda, Hisda, are you really prepared to order payment of fines in Babylon?'8 - It must therefore be said that we can act as their agents only in a matter which is of frequent occurrence and where actual monetary loss is involved,9 whereas in a matter of frequent occurrence but where no actual monetary loss is involved, or again in a matter not of frequent occurrence though where monetary loss is involved we cannot act as their agents. It thus follows that in the case of man [injured] by Man, though there is there actual monetary loss, yet since it is not of frequent occurrence we cannot act as their agents, and similarly in respect of Degradation, though it is of frequent occurrence, since it involves no actual monetary loss, we cannot act as their agents.
Is payment for damage done to chattel by Cattle really recoverable in Babylon? Has not Raba said: 'If Cattle does damage, no payment will be collected in Babylon'?10 Now, to whom was damage done [in this case stated by Raba]? If we say to man, why then only in the case of Cattle injuring man?11 Is it not the fact that even in the case of Man injuring man12 payment will not be collected in Babylon? It must therefore surely refer to a case where damage was done to chattel and it was nevertheless laid down that no payment would be collected in Babylon!13 - It may, however, be said that that statement referred to Tam,14 whereas this statement deals with Mu'ad.15 But did Raba not say that there could be no case of Mu'ad16 in Babylon? - It may, however, be said that where an ox was declared Mu'ad there [in Eretz Yisrael]17 and brought over here [in Babylon, there could be a case of Mu'ad even in Babylon] - But surely this18 is a matter of no frequent occurrence, and have you not stated that in a matter not of frequent occurrence we cannot act as their agents? - [A case of Mu'ad could arise even in Babylon] where the Rabbis of Eretz Yisrael came to Babylon and declared the ox Mu'ad here. But still, this also is surely a matter of no frequent occurrence,19 and have you not stated that in a matter not of frequent occurrence we cannot act as their agents? - Raba must therefore have made his statement [that payment will be collected even in Babylon where chattel was damaged by Cattle] with reference to Tooth and Foot which are Mu'ad ab initio.
PAIN: - IF HE BURNT HIM EITHER WITH A SPIT OR WITH A NAIL, EVEN THOUGH ON HIS [FINGER] NAIL WHICH IS A PLACE WHERE NO BRUISE COULD BE MADE etc. Would Pain be compensated even in a case where no depreciation was thereby caused? Who was the Tanna [that maintains such a view]?Raba replied: He was Ben 'Azzai, as taught: Rabbi said that 'burning'20 without bruising is mentioned at the outset, whereas Ben 'Azzai said that [it is with] bruising [that it] is mentioned at the outset. What is the point at issue between them? Rabbi holds that as 'burning' implies even without a bruise, the Divine Law had to insert 'bruise',21 to indicate that it is only where the burning caused a bruise that there would be liability,22 but if otherwise this would not be so,23 whereas Ben 'Azzai maintained that as 'burning' [by itself] implied a bruise, the Divine Law had to insert 'bruise' to indicate that 'burning' meant even without a bruise.24 R. Papa demurred: On the contrary, it is surely the reverse that stands to reason:25 Rabbi who said that 'burning', [without bruising] is mentioned at the outset holds that as 'burning,' implies also a bruise, the Divine Law inserted 'bruise' to indicate that 'burning,' meant even without a bruise,26 whereas Ben 'Azzai who said that [it was] with bruising [that it] was mentioned at the outset maintains that as 'burning' implies even without a bruise, the Divine Law purposely inserted 'bruise' to indicate that it was only where the 'burning' has caused a bruise that there will be liability, but if otherwise this would not be so; for in this way they27 would have referred in their statements to the law as it stands now in its final form. Or, alternatively, it may be said that both held that 'burning' implies both with a bruise and without a bruise, and here
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(1) V. Glos. s.v. Mumhe.
(2) For which cf. Sanh. (Sonc. ed.) p. 4, n. 3.
(3) For theft.
(4) For having slaughtered or sold the stolen sheep and ox respectively.
(5) Why then should these not be adjudicated and collected in Babylon?
(6) As is the case with double payment and four-fold or five-fold payment.
(7) [Omitting with MS.M. 'blemish' paid in case of rape, and occurring in cur. edd.]
(8) Cf. supra 27b.
(9) Excluding thus a loss of mere prospective profits.
(10) V. supra p. 481, n. 5.
(11) Which is of no frequent occurrence at all.
(12) Which is of slightly more frequent occurrence.
(13) This contradicts the statement made by the same Raba (supra p. 481) that payment for damage done to chattel by Cattle will be collected even in Babylon.
(14) In which case the payment is of a penal nature (as decided supra p. 67), which cannot be collected in Babylon.
(15) Where the payment is of a strictly civil nature, and accordingly collected even in Babylon.
(16) Regarding damage done by Horn, for since for the first three times of goring no penalty could be imposed in Babylon, the ox could never be declared Mu'ad.
(17) Where the judges are Mumhin and thus qualified to administer also penal justice.
(18) I.e., to bring over an ox already declared Mu'ad in Eretz Yisrael to Babylon.
(19) Cf. Keth. 110b.
(20) Ex. XXI, 25.
(21) Ibid.
(22) For the payment of Pain.
(23) I.e., Pain would not be compensated since no depreciation was thereby caused.
(24) Pain would therefore even in this case be compensated in accordance with Ben 'Azzai who could thus be considered to have been the Tanna of the Mishnaic ruling.
(25) That the Tanna of the Mishnaic ruling was most probably Rabbi and not his opponent, and moreover the statements made by Rabbi and Ben 'Azzai should be taken to give the final implication of the law and not as it would have been on first thoughts.
(26) So that Pain will be paid even in this case according to Rabbi who was the Tanna of the Mishnaic ruling.
(27) I.e., Rabbi and Ben 'Azzai.they were differing on the question of a generalisation and a specification placed at a distance from each other,1 Rabbi maintaining that in such a case the principle of a generalisation followed by a specification does not apply,2 whereas Ben 'Azzai maintained that the principle of a generalisation followed by a specification does apply.3 And should you ask why, according to Rabbi, was it necessary to insert 'bruise',4 [the answer would be that it was necessary to impose the payment of] additional money.5 IT HAS TO BE CALCULATED HOW MUCH A MAN OF EQUAL STANDING WOULD REQUIRE TO BE PAID TO UNDERGO SUCH PAIN. But how is pain calculated in a case where Depreciation [also has to be paid]?6 - The father of Samuel7 replied: We have to estimate how much a man would require to be paid to have his arm cut off. To have his arm cut off? Would this involve only Pain and not also all the Five Items?8 Moreover, are we dealing with fools [who would consent for any amount to have their arm cut off]? - It must therefore refer to the cutting off of a mutilated arm.9 But even [if the calculation be made on the basis of] a mutilated arm, would it amount only to Pain and not also to Pain plus Degradation, as it is surely a humiliation that a part of the body should be taken away and thrown to dogs? - It must therefore mean that we estimate how much a man whose arm had by a written decree of the Government to be taken off by means of a drug would require that it should be cut off by means of a sword. But I might say that even in such a case no man would take anything [at all] to hurt himself [so much]? - It must therefore mean that we have to estimate how much a man whose arm had by a written decree of the Government to be cut off by means of a sword would be prepared to pay that it might be taken off by means of a drug. But if so, instead of TO BE PAID should it not be written 'to pay'? - Said R. Huna the son of R. Joshua: It means that payment to the plaintiff will have to be made by the offender to the extent of the amount which the person sentenced would have been prepared to pay.
'HEALING': - IF HE HAS STRUCK HIM HE IS UNDER OBLIGATION TO PAY MEDICAL EXPENSES etc. Our Rabbis taught: Should ulcers grow on his body as a result of the wound and10 the wound break open again, he has still to heal him and is liable to pay him for Loss of Time, but if it was not caused through the wound he has not to heal him and need not pay him for Loss of Time. R. Judah, however, said that even if it was caused through the wound, though he has to heal him, he has not to pay him for Loss of Time. The Sages said: The Loss of Time and Healing [are mentioned together in Scripture:]11 Wherever there is liability for Loss of Time there is liability for Healing but wherever there is no liability for Loss of Time there is no liability for Healing. In regard to what principle do they12 differ? - Rabbah said: 'I found the Rabbis at the School of Rab sitting and saying13 that the question whether [or not] a wound may be bandaged14 [by the injured person] was the point at issue. The Rabbis15 maintained that a wound may be bandaged, whereas R. Judah maintained that a wound may not be bandaged, so that [it was only] for Healing of which there is a double mention in Scripture16 that there is liability,17 but for Loss of Time of which there is no double mention in Scripture there is no liability. I, however, said to them that if a wound may not be bandaged there would be no liability even for Healing.18 We must therefore say that all are agreed that a wound may be bandaged, but not too much; R. Judah held that since it may not be bandaged too much [it is only] for Healing of which there is a double mention in Scripture that there will be liability, but for Loss of Time of which there is no double mention in Scripture there will be no liability, whereas the Rabbis maintained that since Scripture made a double mention of healing there will be liability also for Loss of Time which is compared to Healing. R. Judah, however, maintained that there will be no liability for Loss of Time as Scripture excepted this by [the term] 'only';11 to which the Rabbis19 might rejoin that 'only' [was intended to exclude the case] where the ulcers that grew were not caused by the wound. But according to the Rabbis mentioned last20 who stated that whenever there is liability for Loss of Time there is liability for Healing, whereas where there is no liability for loss of Time there could be no liability for Healing - why do I require the double mention of Healing? - This was necessary for the lesson enunciated by the School of R. Ishmael, as taught: 'The School of R. Ishmael taught: [The words] "And to heal he shall heal''21 [are the source] whence it can be derived that authorisation was granted [by God] to the medical man to heal.'22
Our Rabbis taught: Whence can we learn that where ulcers have grown on account of the wound and23 the wound breaks open again, the offender would still be liable to heal it and also pay him for [the additional] Loss of Time? Because it says: Only he shall pay for the loss of his time and to heal he shall heal.24 [That being so, I might say] that this is so even where the ulcers were not caused by the wound. It therefore says further 'only'. R. Jose b. Judah, however, said that even where they were caused by the wound he would be exempt, since it says 'only'. Some say that [the view of R. Jose that] 'even where they were caused by the wound he would be exempt' means altogether from any [liability whatsoever],25 which is also the view of the Rabbis mentioned last. But others say that even where they were caused by the wound he would be exempt means only from paying for additional Loss of Time, though he would be liable for Healing. With whom [would R. Jose b. Judah then be concurring in his statement]? With his own father.26
The Master stated: '[In that case I might say] that this is so even where the ulcers were not caused by the wound. It therefore says further "only".' But is a text necessary to teach [that there is exemption] in the case where they were caused not by the wound?27 - It may be replied that what is meant by 'caused not by the wound' is as taught: 'If the injured person disobeyed his medical advice and ate honey or any other sort of sweet things, though honey and any other sort of sweetness are harmful to a wound, and the wound in consequence became gargutani [scabby], it might have been said that the offender should still be liable to [continue to] heal him. To rule out this idea it says "only".'28 What is the meaning of gargutani? - Abaye said: A rough seam.29 How can it be cured? - By aloes, wax and resin.
If the offender says to the injured person: 'I can personally act as your healer',30 the other party can retort 'You are in my eyes like a lurking lion.'31 So also if the offender says to him 'I will bring you a physician who will heal you for nothing', he might object, saying 'A physician who heals for nothing is worth nothing.' Again, if he says to him 'I will bring you a physician from a distance', he might say to him, 'If the physician is a long way off, the eye will be blind [before he arrives].'32 If, on the other hand, the injured person says to the offender, 'Give the money to me personally as I will cure myself', he might retort 'You might neglect yourself and thus get from me too much.' Even if the injured person says to him, 'Make it a fixed and definite sum', he might object and say, 'There is all the more danger that you might neglect yourself [and thus remain a cripple], and I will consequently be called "A harmful ox."'
A Tanna taught: 'All [the Four Items]33 will be paid [even] in the case where Depreciation [is paid independently].' Whence can this ruling be deduced? - Said R. Zebid in the name of Raba: Scripture says: Wound for wound,34 to indicate the payment of pain even in the case where Depreciation [is paid independently].35 But is not this verse required
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(1) Such as here the term 'hurts' which is a generalisation as it implies all kinds of burning whether with a bruise or without a bruise, and the term 'bruise' which specifies an injury with a bruise, are separated from each other by the intervening clause 'wound for wound'.
(2) To render the generalisation altogether ineffective; cf supra p. 371.
(3) Even in such a case.
(4) Since the term 'burning' is a generalisation and by itself implies both with a bruise and without a bruise.
(5) I.e., for Depreciation as explained by Rashi, or for the Pain where the burning left a mark and thus aggravated the ill feeling (Tosaf ).
(6) Such as where an arm was cut off and Depreciation had already been paid.
(7) Abba b. Abba.
(8) Whereas the problem raised deals with a case where the other items have already been paid for.
(9) Which is still attached to the body but unable to perform any work.
(10) [Maim. Yad, Hobel, II, 19 reads 'or'.]
(11) Ex. XXI, 19.
(12) I.e., R. Judah and the other Rabbis.
(13) In the name of Rab; cf. Suk. 17a.
(14) To prevent the cold from penetrating the wound though the bandage may cause swelling through excessive heat.
(15) In opposing R. Judah.
(16) Ex. XXI, 19 lit., 'to heal he shall heal'.
(17) Though the plaintiff had no right to bandage the wound which caused the ulcers to grow.
(18) Since the plaintiff would be to blame for the ulcer that grew through the bandage if he had no right to put it on.
(19) I.e., the first Tanna.
(20) Under the name of Sages.
(21) Cf. p. 487, n. 6.
(22) And it is not regarded as 'flying in the face of Heaven'; v. Ber. 60a.
(23) V. p. 486, n. 5.
(24) Ex. XXI, 19.
(25) Even from Healing.
(26) I.e., R. Judah who orders payment for Healing but not for Loss of Time.
(27) Why indeed would liability have been suggested?
(28) Implying that the liability is qualified and thus excepted in such and similar cases.
(29) Rashi: 'wild flesh'.
(30) And need thus not employ a medical man.
(31) I.e., 'I am not prepared to trust you'; cf. B.M. 101; B.B. 168a.
(32) [So S. Strashun; Rashi: 'If the physician is from far he might blind the eye'; others: 'A physician from afar has a blind eye'. i.e., he is little concerned about the fate of his patient.]
(33) I.e., Pain, Healing, Loss of Time, and Degradation.
(34) Ex. XXI, 25.
(35) Supra 26b.to extend liability [for Depreciation] to the case of inadvertence equally with that of willfulness, and to the case of compulsion equally with that of willingness? - If so [that it was required only for such a rule] Scripture would have said 'Wound in the case of wound'; why [say] '. . . for wound', unless to indicate that both inferences are to be made from it?1 R. Papa said in the name of Raba: Scripture says And to heal shall he heal,2 [thus enjoining] payment for Healing even in the case where Depreciation is paid independently. But is not that verse required for the lesson taught at the School of R. Ishmael for it was indeed taught at the School of R. Ishmael that [the text] 'And to heal he shall heal' [is the source] whence it is derived that authorisation was granted [by God] to the medical man to heal?3 - If so [that it was to be utilised solely for that implication] Scripture would have said, 'Let the physician cause him to be healed' - This shows that payment for Healing should be made even in the case where Depreciation [is paid independently]. But still, is not the text required as said above to provide a double mention in respect of Healing? - If so, Scripture should have said either 'to cause to heal [and] to cause to heal'4 or 'he shall cause to heal [and] he shall cause to heal.5 Why say 'and to heal he shall heal'6 unless to prove that payment should be made for Healing even in the case where Deprecation [is paid independently].
From this discussion it would appear that a case could arise where the Four Items would be paid even where no Depreciation was caused. But how could such a case be found where no Depreciation was caused? - Regarding Pain it was stated: 'PAIN': - IF HE BURNT HIM EITHER WITH A SPIT OR WITH A NAIL, EVEN ON HIS [FINGER] NAIL WHICH IS A PLACE WHERE NO BRUISE COULD BE MADE, Healing could apply in a case where one had been suffering from some wound which was being healed up, but the offender put on the wound a very strong ointment which made the skin look white [like that of a leper] so that other ointments have to be put on to enable him to regain the natural colour of the skin - Loss of Time [without Depreciation could occur] where the offender [wrongfully] locked him up in a room and thus kept him idle. Degradation [could apply] where he spat on his face.
'LOSS OF TIME': - THE INJURED PERSON IS CONSIDERED AS IF HE WERE A WATCHMAN OF CUCUMBER BEDS. Our Rabbis taught: '[In the case of assessing] Loss of Time, the injured person is considered as if he would have been a watchman of cucumbers. You might say that the requirements of justice suffer thereby, since when he was well7 he would surely not necessarily have worked for the wages of a watchman of cucumber beds but might have carried buckets of water and been paid accordingly, or have acted as a messenger and been paid accordingly.8 But in truth the requirements of justice do not suffer, for he has already been paid for the value of his hand or for the value of his leg.9
Raba said: If he cut off [another's] arm he must pay him for the value of the arm, and as to Loss of Time,10 the injured person is to be considered as if he were a watchman of cucumber beds; so also if he broke [the other's] leg, he must pay him for the value of the leg, and as to Loss of Time the injured person is to be considered as if he were a door-keeper; if he put out [another's] eye he must pay him for the value of his eye, and as to Loss of Time the injured person is to be considered as if he were grinding in the mill; but if he made [the other] deaf, he must pay for the value of the whole of him.11
Raba asked: If he had cut off [another man's] arm and before any appraisement had been made he also broke his leg, and again before any appraisement had been made he put out his eye, and again before any appraisement had been made he made him at last deaf, what would be the law? Shall we say that since no valuation has yet been made one valuation would be enough, so that he would have to pay him altogether for the value of the whole of him, or shall perhaps each occurrence be appraised by itself and paid for accordingly? The practical difference would be whether he would have to pay for Pain and Degradation of each occurrence separately. It is true that he would not have to pay for Depreciation, Healing and Loss of Time regarding each occurrence separately, the reason being that since he has to pay him for the whole of him the injured person is considered as if killed altogether, and there could surely be made no more payment than for the value of the whole of him; but in respect of Pain and Degradation the payment should be made for each occurrence separately, as he surely suffered pain and degradation on each occasion separately. If, however, you find it [more correct] to say that since no appraisement had been yet made he can pay him for the value of the whole of him altogether, what would be the law where separate appraisements were made? Shall we say that since separate valuations were made the payment should be for each occurrence by itself, or since the payment had not yet been made he has perhaps to pay him for the value of the whole of him? This must remain undecided.
Rabbah asked: What would be the law regarding Loss of Time that renders the injured person of less value [for the time being]. How could we give an example? For instance, where he struck him on his arm and the arm was broken but will ultimately recover fully.12 What would be the legal position?13 [Shall we say that] since it will ultimately recover fully he need not pay him [for the value of the arm], or perhaps [not so], since for the time being he diminished his value? - Come and hear:14 If one strikes his father and his mother without making on them a bruise,15 or injures another man on the Day of Atonement,16
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(1) Ibid.
(2) Ex. XXI, 19. [The emphasis indicates that this payment had to be made in all circumstances.]
(3) V. supra p. 488.
(4) I.e., a repetition of the infinitive.
(5) I.e., a repetition of the verb in the finite mood.
(6) I.e., on one occasion the verb is in the infinitive and on the other in the finite mood.
(7) Cf. Rashi; but also Tosaf. a.l.
(8) Why then not pay him for Loss of Time in accordance with the proper wage?
(9) In the way of Depreciation, and could in fact no more work in his previous employment but in a different capacity such as a watchman of cucumbers or a doorkeeper.
(10) During the days of illness when he is totally unable to do any work.
(11) As by having been made deaf he is unfit to do anything.
(12) In which case the depreciation is but temporary.
(13) Regarding the payment for Depreciation.
(14) Infra p. 87a.
(15) In which case the capital offence of Ex. XXI, 25 has not been committed; v. Sanh. 84b.
(16) The violation of which entails no capital punishment at the hands of a court of law; cf. Lev. XXIII, 30 and Ker. I,1. Again, though lashes could be involved in this case in accordance with Mak. III, 2, the civil liability holds good as supra p. 407.he is liable for all of the Five Items. Now, how are we to picture no bruise being made [in such a case]? Does this not mean, e.g., where he struck him on his arm which will ultimately recover1 and it is nevertheless stated that he 'is liable for all of the Five Items'?2 - It may, however, be said that we are dealing here with a case where e.g.,he made him deaf3 without making a bruise on him. But did Rabbah not say4 that he who makes his father deaf is subject to be executed,5 for it is impossible to cause deafness without first making a bruise through which a drop of blood falls into the ear?6 - It must therefore be said that we are dealing here with a case where e.g. he shaved him [against his will] - But will not the hair grow again in the case of shaving? And that is the very question propounded.7 - It may, however, be said that we are dealing here with a case where e.g. he smeared nasha8 over it so that no hair will ever grow there again. Pain [in such a case should similarly be paid] where he had scratches on his head and thus suffered on account of the sores. Healing [should similarly be paid] as it requires curing. Loss of Time would be where he was a dancer in wine houses and has to make gestures by moving his head and cannot do so [now] on account of these scratches.9 Degradation [should certainly be paid], for there could hardly be a case of greater degradation.
But this matter which was doubtful to Rabbah was quite certain to Abaye taking one view, and to Raba taking the opposite view. For it was stated: If he struck him on his arm and the arm was broken but so that it would ultimately recover completely, Abaye said that he must pay for General Loss of Time10 plus Particular Loss of time, whereas Raba said that he will not have to pay him anything but for the amount of the Loss of Time11 for each day [until he recovers].
It was stated: If a man cuts off the arm of a Hebrew servant of another, Abaye said that he will have to pay the servant for General Loss of Time, and the master for Particular Loss of Time, whereas Raba said that the whole payment should be given to the servant12 who would have to [invest it and] purchase real property whose produce would be enjoyed by the master. There is no question that where the servant became [through the injury] depreciated in his personal value while no loss was caused so far as the master was concerned, as for instance, where the offender split the top of the servant's ear or the top of his nostrils,13 the whole payment would go to the servant himself. It was only where the depreciation affected the master [also]14 that Abaye and Raba differ. 'DEGRADATION': - ALL TO BE ESTIMATED IN ACCORDANCE WITH THE STATUS OF THE OFFENDER AND THE OFFENDED. May we say that our Mishnah is in agreement neither with R. Meir nor with R. Judah but with R. Simeon? For it was taught: 'All [sorts of injured persons] should be considered as if they were freemen who have become impoverished since they are all the children of Abraham, Isaac and Jacob;15 this is the view of R. Meir. R. Judah says that [Degradation in the case of] the eminent man [will be estimated] in accordance with his eminence, [whereas in the case of] the insignificant man [it will be estimated] in accordance with his insignificance. R. Simeon says that wealthy persons will be considered merely as if they were freemen who have become impoverished, whereas the poor will all be put on the level of the least among them.16 Now, in accordance with whom is our Mishnah? It could not be in accordance with R. Meir, for the Mishnah states that all are to be estimated in accordance with the status of the offender and the offended, whereas according to R. Meir all [sorts of persons] are treated alike. It could similarly not be in accordance with R. Judah, for the Mishnah [subsequently] states17 that he who insults even a blind person is liable, whereas R. Judah18 says that a blind person is not subject to the law of Degradation. Must the Mishnah therefore not be in accordance with R. Simeon?19 - You may say that they are [even] in accordance with R. Judah. For the statement made by R. Judah that a blind person is not subject to the law of Degradation means that no payment will be exacted from him [where he insulted others], whereas when it comes to paying him [for Degradation where he was insulted by others], We would surely order that he be paid. But since it was stated in the concluding clause 'If he insulted a person who was sleeping he would be liable [to pay for Degradation], whereas if a person who was asleep insulted others he would be exempt', and no statement was made to the effect that a blind person insulting others should be exempt, it surely implied that in the case of a blind person20 there was no difference whether he was insulted by others or whether he insulted others, [as in all cases the law of Degradation would apply]!21 - It must therefore be considered as proved that the Mishnaic statements were in accordance with R. Simeon.
Who was the Tanna for what our Rabbis taught: If he intended to insult a katon22 but insulted [by accident] a gadol23 he would have to pay the gadol the amount due for the degradation of the katon, and so also where he intended to insult a slave but [by accident] insulted a freeman he would have to pay the freeman the amount due for the degradation of the slave? According to whom [is this teaching]? It is in agreement neither with R. Meir nor with R. Judah nor even with R. Simeon, it being assumed that katon meant 'small in possessions' and gadol [similarly meant] 'great in possessions'. It could thus hardly be in accordance with R. Meir, for he said that all classes of people are treated alike. It could similarly not be in accordance with R. Judah, for he stated that in the case of slaves no Degradation need be paid. Again, it could not be in accordance with R. Simeon, since he holds that where the offender intended to insult one person and by an accident insulted another person he would be exempt, the reason being that this might be likened to murder, and just as in the case of murder there is no liability unless where the intention was for the particular person killed,24 as it is written: 'And lie in wait for him and rise up against him'25 [implying, according to R. Simeon, that there would be no liability] unless where he aimed at him particularly, so should it also be in the case of Degradation, that no liability should be imposed on the offender unless where he aimed at the person insulted, as it is written: 'And she putteth forth her hand and taketh him by the secrets'26 [which might similarly imply that there should be no liability] unless where the offence was directed at the person insulted. [Who then was the Tanna of the teaching referred to above]? - It might still be said that he was R. Judah, for the statement made by R. Judah that in the case of slaves there would be no liability for Degradation means only that no payment will be made to them, though in the matter of appraisement we can still base the assessment on them. Or if you like I may say that you may even regard the teaching as being in accordance with R. Meir, for why should you think that gadol means 'great in possessions' and katon means 'small in possessions', and not rather that gadol means an actual gadol [i.e. one who is of age] and katon means an actual katon [i.e. a minor]? But is a minor subject to suffer Degradation? - Yes, as elsewhere stated by R. Papa, that if where he is reminded of some insult he feels abashed27 [he is subject to Degradation] so also here
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(1) For since no bruise was made it will surely recover.
(2) In which Depreciation is included.
(3) In which case he will never recover,
(4) Infra 98a.
(5) For having committed a capital offence in accordance with Ex. XXI, 25.
(6) And since a capital offence would thus have been committed no civil liabilities could be entailed; cf. infra p. 502.
(7) Which problem could thus be solved.
(8) I.e., the sap of a plant used as a depilatory; cf. also Mak. 20b.
(9) [MSS. omit 'on account of these scratches', apparently as it is the nasha which was smeared over his head which prevents his appearing in his dancing role.]
(10) Another term for Depreciation.
(11) But not for the temporary depreciation in value.
(12) [Tosaf. reads: 'to the master' as it is the master who is the primary loser in consequence of the servant's enforced idleness.]
(13) Through which injury the servant is not hindered from performing his usual work.
(14) Cf. Rashi and Tosaf. a. l.
(15) V. infra 90b.
(16) I.e., among the poor.
(17) Infra p. 496.
(18) Infra pp. 495-499.
(19) [Who also does not treat all persons alike.]
(20) Whom the Mishnaic statement makes subject to the law of Degradation.
(21) This would contradict R. Judah, who maintained that a blind person would not have to pay Degradation.
(22) Denotes either 'small', or a minor,
(23) Denotes either 'great' or 'one who is of age'.
(24) As indeed maintained by R. Simeon; cf. Sanh. 79a and supra p. 252.
(25) Deut. XIX, 11.
(26) Ibid. XXV, 11.
(27) Infra 86b.he was a minor who, if the insult were mentioned to him, would feel abashed.
MISHNAH. ONE WHO INSULTS A NAKED PERSON, OR ONE WHO INSULTS A BLIND PERSON, OR ONE WHO INSULTS A PERSON ASLEEP IS LIABLE [FOR DEGRADATION], THOUGH IF A PERSON ASLEEP INSULTED [OTHERS] HE WOULD BE EXEMPT. IF ONE IN FALLING FROM A ROOF DID DAMAGE AND ALSO CAUSED [SOMEBODY] TO BE DEGRADED, HE WOULD BE LIABLE FOR DEPRECIATION BUT EXEMPT FROM [PAYING FOR] DEGRADATION UNLESS HE INTENDED [TO INFLICT IT].1
GEMARA. Our Rabbis taught: If he insulted a person who was naked he would be liable2 though there could be no comparison between one who insulted a person who was naked3 and one who insulted a person who was dressed. If he insulted him in the public bath he would be liable though one who insulted a person in a public bath3 could not be compared to one who insulted a person in the market place.
The Master stated: 'If he insulted a person who was naked he would be liable.' But is a person who walks about naked capable of being insulted?4 - Said R. Papa: The meaning of 'naked' is that a wind [suddenly] came and lifted up his clothes, and then some one came along and raised them still higher, thus putting him to shame.
'If he insulted him in the public bath he would be liable.' But is a public bath a place where people are apt to feel offended?5 - Said R. Papa: It meant that he insulted him6 near the river.7
R. Abba b. Memel asked: What would be the law where he humiliated a person who was asleep but who died [before waking]?8 - What is the principle involved in this query?9 - Said R. Zebid: The principle involved is this: [Is Degradation paid] because of the insult, and as in this case he died before waking and was never insulted [no payment should thus be made], or is it perhaps on account of the [public] disgrace, and as there was here disgrace [payment should be made to the heirs]? - Come and hear: R. Meir says: A deaf-mute and a minor are subject to [be paid for] Degradation, but an idiot is not subject to be paid for Degradation. Now no difficulty arises if you say that degradation is paid on account of the disgrace; it is then quite intelligible that a minor [should be paid for Degradation]. But if you say that Degradation is paid on account of the insult, [we have to ask,] is a minor subject to feel insulted? - What then? [You say that] Degradation is paid because of the disgrace? Why then should the same not apply even in the case of an idiot? - It may, however, be said that the idiot by himself constitutes a disgrace which is second to none. But in any case, why not conclude from this statement that Degradation is paid on account of the disgrace, for if on account of the insult, is a minor subject to feel insulted? - As elsewhere stated by R. Papa, that if where the insult is recalled to him he feels abashed [he is subject to Degradation]; so also here he was a minor who when the insult was recalled to him would feel abashed.
R. Papa, however, said that the principle involved in the query [of R. Abba] was this: [Is Degradation paid] because of personal insult, and as in this case [where] he died [before waking he did not suffer any personal insult, no payment should be made], or is [Degradation paid] perhaps on account of the insult suffered by the family? - Come and hear: A deaf-mute and a minor are subject to [be paid for] Degradation but an idiot is not subject to [be paid for] Degradation. Now no difficulty arises if you say that Degradation is paid on account of the insult suffered by the family; it is then quite intelligible that a minor [should be paid for Degradation]. But if you say that Degradation is paid on account of personal insult [we have to ask], is a minor subject to personal insult? - What then? [Do you say] that Degradation is paid because of the insult sustained by the members of the family? Why then should the same not apply in the case of an idiot? - It may, however, be said that the idiot by himself constitutes a Degradation [to them] which is second to none. But in any case, why not conclude from this statement that Degradation is paid on account of the insult suffered by the family, for if on account of personal insult10 , is a minor subject to personal insult? - Said R. Papa: Yes, if when the insult is mentioned to him he feels insulted, as indeed taught: 'Rabbi says: A deaf-mute is subject to [be paid for] Degradation, but an idiot is not subject to [be paid for] Degradation, whereas a minor is sometimes subject to be paid and sometimes not subject to be paid [for Degradation].' The former [must be] in a case where, if the insult is mentioned to him, he would feel abashed, and the latter in a case where if the insult is recalled to him he would not feel abashed.
ONE WHO INSULTS A BLIND PERSON . . . IS LIABLE [FOR DEGRADATION]. This Mishnah is not in accordance with R. Judah. For it was taught: R. Judah says: 'A blind person is not subject to [the law of] Degradation. So also did R. Judah exempt him from the liability of being exiled11 and from the liability of lashes12 and from the liability of being put to death by a court of law.'13 What is the reason of R. Judah? - He derives [the law in the case of Degradation by comparing the term] 'thine eyes' [inserted in the case of Degradation14 from the term] 'thine eyes'15 occurring in the case of witnesses who were proved zomemim:16 just as there17 blind persons are not included18 so also here19 blind persons should not be included. The exemption from the liability to be exiled is derived as taught: Seeing him not20 excepts a blind person;21 so R. Judah. R. Meir on the other hand says that it includes a blind person.22 What is the reason of R. Judah? - He might say to you [as Scripture says]: 'As when a man goeth into the wood with his neighbour to hew wood',23 which might include even a blind person. The Divine Law therefore says 'Seeing him not' to exclude [him]. But R. Meir might contend that as the Divine Law inserted 'Seeing him not' [which implies] an exception, and the Divine Law further inserted unawares'24 [which similarly implies] an exception, we have thus a limitation followed by another limitation, and the established rule is that a limitation followed by another limitation is intended to amplify.25 And R. Judah? - He could argue that the word 'unawares' came to be inserted to except a case of intention. [Exemption from] liability to be put to death by a court of law is derived [from comparing the term] 'murderer' [used in the section dealing with capital punishment26 with the term] 'murderer' [used in the section setting out] the liability to be exiled.27 [Exemption from] liability of lashes is learnt [by comparing the term] 'wicked' [occurring in the Section dealing with lashes28 with the term] 'wicked'26 occurring in the case of those who are liable to be put to death by a court of law.
Another [Baraitha] taught: R. Judah says: A blind person is not subject to [the law of] Degradation.
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(1) Supra p. 140.
(2) Even where the insult was caused by further uncovering him; cf. Tosaf. a.l,
(3) In which case the payment will be much less.
(4) By means of being further uncovered; again, how could a naked person be further uncovered?
(5) By means of being uncovered, since everybody is uncovered there.
(6) By uncovering him.
(7) Where people merely bathe their legs and are therefore fully dressed.
(8) So that he personally never felt the humiliation.
(9) Why indeed should there by any payment in such a case.
(10) no note.
(11) For inadvertently killing a person.
(12) When transgressing a negative commandment.
(13) For committing a capital offence.
(14) Deut. XXV, 12.
(15) Ib., XIX, 21.
(16) I.e., against whom the accusation of an alibi was proved; v. Glos.
(17) In the case of witnesses.
(18) For since a blind person could not see he is disqualified from giving evidence, on the strength of Lev. v, 1; cf. Tosaf, B.B. 129a, s.v. אי, and Asheri B.B. VIII, 24; but v. also Shebu. 33b.
(19) In the case of Degradation.
(20) Num. XXXV, 23.
(21) From being subject to the law of exile.
(22) Mak. 9b.
(23) Deut. XIX, 5.
(24) Ibid. 4.
(25) Cf. supra p. 259.
(26) Num. XXXV, 31.
(27) Deut. XIX, 3.
(28) Deut. XXV, 2.So also did R. Judah exempt him from all the judgments of the Torah. What is the reason of R. Judah? - Scripture says: Then the congregation shall judge between the smiter and the avenger of blood according to these ordinances,1 whoever is subject to the law of the 'smiter' and 'the avenger of blood' is subject to judgments, but he2 who is not subject to the law of the 'smiter' and the 'avenger of blood' is not subject to judgments.
Another [Baraitha] taught: R. Judah.says: 'A blind person is not subject to [the law of] Degradation. So also did R. Judah exempt him from all commandments stated in the Torah.' R. Shisha the son of R. Idi said: The reason of R. Judah was because Scripture says: Now this is the commandment, the statutes and the ordinances;3 he who is subject to the 'ordinances' is subject to 'commandments' and 'statutes',but he who is not subject to 'ordinances' is not subject to 'commandments' and 'statutes'. R. Joseph stated:4 Formerly I used to Say: If someone would tell me that the halachah is in accordance with R. Judah who declared that a blind person is exempt from the commandments, I would make a festive occasion for our Rabbis, because though I am not enjoined5 I still perform commandments, but now that I have heard the statement of R. Hanina, as R. Hanina indeed said6 that greater is the reward of those who being enjoined do [good deeds] than of those who without being enjoined [but merely of their own free will] do [good deeds], if someone would tell me that the halachah is not in accordance with R. Judah I would make a festive occasion for our Rabbis, because if I am enjoined to perform commandments the reward will be greater for me.
MISHNAH. ON THIS [POINT] THE LAW FOR MAN IS MORE SEVERE THAN THE LAW FOR CATTLE, VIZ., THAT MAN HAS TO PAY FOR DEPRECIATION, PAIN, HEALING, LOSS OF TIME AND DEGRADATION;7 AND HE PAYS ALSO FOR THE VALUE OF EMBRYOS,8 WHEREAS IN THE CASE OF CATTLE THERE IS NO PAYMENT FOR ANYTHING BUT DEPRECIATION,9 AND THERE IS EXEMPTION FROM [PAYING] THE VALUE OF EMBRYOS.8 ONE WHO STRIKES HIS FATHER AND HIS MOTHER WITHOUT, HOWEVER, MAKING A BRUISE ON THEM,10 OR ONE WHO INJURED HIS FELLOW ON THE DAY OF ATONEMENT11 IS LIABLE FOR ALL [THE FIVE ITEMS]. ONE WHO INJURES A HEBREW SLAVE12 IS SIMILARLY LIABLE FOR ALL OF THEM, WITH THE EXCEPTION, HOWEVER, OF LOSS OF TIME IF HE IS HIS OWN SLAVE. ONE WHO INJURES A CANAANITE SLAVE13 BELONGING TO ANOTHER PERSON IS [SIMILARLY] LIABLE FOR ALL [THE FIVE ITEMS]. R. JUDAH, HOWEVER, SAYS THAT NO DEGRADATION IS PAID IN THE CASE OF [CANAANITE] SLAVES. A DEAF-MUTE, AN IDIOT AND A MINOR ARE AWKWARD TO DEAL WITH, AS HE WHO INJURES THEM IS LIABLE [TO PAY], WHEREAS IF THEY INJURE OTHERS THEY ARE EXEMPT. [SO ALSO] A SLAVE AND A [MARRIED] WOMAN ARE AWKWARD TO DEAL WITH, AS HE WHO INJURES THEM IS LIABLE [TO PAY], WHEREAS IF THEY INJURE OTHERS THEY ARE EXEMPT,14 THOUGH THEY MAY HAVE TO PAY AT A LATER DATE; FOR IF THE WOMAN WAS DIVORCED15 OR THE SLAVE MANUMITTED,16 THEY WOULD BE LIABLE TO PAY. HE WHO SMITES HIS FATHER OR HIS MOTHER MAKING ALSO A BRUISE ON THEM17 OR HE WHO INJURES ANOTHER ON THE SABBATH18 IS EXEMPT FROM ALL [THE FIVE ITEMS], FOR HE IS CHARGED WITH A CAPITAL OFFENCE.19 [SO ALSO] HE WHO INJURES A CANAANITE SLAVE OF HIS OWN IS EXEMPT FROM ALL [THE ITEMS].20
GEMARA. R. Eleazar inquired of Rab: If one injures a minor daughter of another person, to whom should [the payment for] the injury go?21 Shall we say that since the Divine Law bestowed upon the father [the right to] the income of [his daughter during the days of her] youth,22 the payment for an injury should also be his, the reason being that her value was surely decreased [by the injury], or [shall we say that it was] perhaps only the income of youth23 that the Divine Law granted him, since if he wishes to hand her over [in marriage e.g.,] to one afflicted with leprosy he could hand her over,24 whereas the payment for injury might not have been granted to him by the Divine Law, since if he wishes to injure her he would not have had the right to injure her?25
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(1) Num. XXXV, 24.
(2) Such as a blind person.
(3) Deut. VI, 2.
(4) Kid. 31a.
(5) As R. Joseph became blind through an illness; cf. Shab. 109a.
(6) V. supra p. 215.
(7) As supra p. 473.
(8) Cf. Ex, XXI, 22 and supra p. 277.
(9) V, supra 26a.
(10) In which case the capital offence of Ex. XXI,15 has not been committed; v. Sanh. 84b.
(11) The violation of which entails no capital punishment at the hands of a court of law; cf. Lev. XXIII, 30 and Ker. I, 1. Again, though lashes could be involved in this case in accordance with Mak. III, 2, the civil liability holds good as supra p. 407.
(12) Cf. Ex. XXI, 2-6.
(13) V. Lev. XXV, 44-46.
(14) Irrespective of the equality of all before the law, as supra p. 63, no payment could be made here as the possessions of slaves form a part of the estates of their masters as in Kid. 23b, and the property of a married woman is usually in the usufruct of the husband, cf, Keth, IV, 4,
(15) When her estate will return to her.
(16) And property was subsequently acquired by him.
(17) Which is a capital offence, v. Ex. XXI. 15; supra p. 492.
(18) Thus involving capital punishment, v. Shab. 106a; supra p. 192.
(19) In the punishment for which all civil liabilities merge; v. supra p. 192.
(20) For so far as the master is concerned the slave is but his chattel. He will, however, be liable to heal him; Tosaf, a.l.; Git. 12b.
(21) I.e., whether to her or to her father.
(22) Cf. Keth. 46b.
(23) Such as the consideration given by a prospective husband for marrying him, or the hire of her labour and the like.
(24) As could be inferred from Deut. XXII, 16,
(25) Moreover he would thereby commit the sin implied in Deut. XXV, 3.- He replied: 'The Torah did not bestow upon the father [any right] save to the income of youth alone.'
An objection was raised1 [from the following]: ONE WHO INJURES A HEBREW SLAVE IS SIMILARLY LIABLE FOR ALL OF THEM, WITH THE EXCEPTION HOWEVER OF LOSS OF TIME IF HE IS HIS OWN SLAVE!2 - Abaye replied: Rab surely agrees regarding the item of Loss of Time, as the work of her hands during the period preceding the age of womanhood3 belongs to her father. A [further] objection was raised [from the following]: 'If one injures his son who has already come of age4 he has to compensate him straight away, but if his son was still a minor5 he must make for him a safe investment [out of the compensation money], while he who injures his minor daughter is exempt, and what is more, if others injure her they are liable to pay the compensation to her father'?6 - The rulings here similarly refer to Loss of Time.7
Is it really a fact that in the case of a son who has already come of age the father has to compensate him straight away? [If so,] a contradiction could be pointed out [from the following:] 'If one injures the sons and daughters of others, if they have already come of age, he has to pay them straight away, but if they are still minors he should make for them a safe investment [out of the compensation money], whereas where the sons and daughters were his own, he would be exempt [altogether]'!8 - It may, however, be said that there is no difficulty, as the ruling here [stating exemption] refers to a case where the children still reclined at the father's table,9 whereas the ruling there10 deals with a case where they did not recline at his table. But how could you explain the former teaching to refer to a case where they did not recline at his table? For if so, read the concluding clause: 'Whereas he who injures his minor daughter is exempt, and what is more, even others who injure her are liable to pay the compensation to her father.' Why not pay her, since she has to maintain herself? For even according to the view11 that a master may say to his slave, 'Work with me though I am not prepared to maintain you,' surely this applies only to a Canaanite slave to whom the master can say, 'Do your work during the day and in the evenings you can go out and look about for food,'12 whereas in the case of a Hebrew slave in connection with whom it is written, Because he fareth well with thee,13 implying 'with thee in food and with thee in drink',14 this could certainly not be maintained; how much the more so then in the case of his own daughter?15 - As stated16 [in another connection] by Raba the son of R. 'Ulla, that the ruling applies only to the surplus [of the amount of her earnings over the cost of maintenance], so also here in this case this ruling applies only to the surplus [of the amount of compensation over the cost of maintenance]. You have then explained the latter statement [that there is exemption in the case of his own children] as dealing with a case where the children reclined at his table. Why then [in the case of children of other persons] is it stated that 'if they had already come of age he has to pay them straight away, but if they were still minors he should make for them a safe investment [out of the compensation money]? Why should the compensation not be made to their father?17 - It may, however, be said that the father would be particular only in a matter which would cause him a loss,18 whereas in regard to a profit coming from outside19 he would not mind [it going to the children]. But what about a find which is similarly a profit coming from outside, and the father still is particular about it?20 - It may be said that he is particular even about a profit which comes from outside provided no actual pain was caused to the children through it,21 whereas in the matter of compensation for injury where the children suffered actual pain and where the profit comes from outside he does not mind. But what of the other case22 where the daughter suffered actual pain and where there was a profit coming from outside and the father nevertheless was particular about it as stated 'What is more, even others who injure her are liable to pay the compensation to her father'? - It may still be said that it was only in that case22 where the father was an eccentric person who would not have his children at his table that he could be expected to care for the matter of profit coming even from outside, whereas in the case here23 where he was not an eccentric person, as his children joined him at his table it is only regarding a matter which would cause him a loss that he would be particular, but he would not mind about a matter of profit coming from outside.
What is meant by 'a safe investment'?24 - R. Hisda said: [To buy] a scroll of the Law.25 Rabbah26 son of R. Huna said: [To buy] a palm tree, from which he gets a profit in the shape of dates.
Resh Lakish similarly said that the Torah did not bestow upon the father any right save to the income of youth alone. R. Johanan however said: 'Even regarding wounding.' How can you think about wounding?27 Even R. Eleazar did not raise a question28 except regarding an injury
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(1) [Lit., 'he objected to him.' The objector was evidently not R. Eleazar, as Abaye is the one who replies to the objection.]
(2) Why then should the payment for Loss of Time in the case of a minor girl not go to her father to whom the hire for her labour would belong?
(3) Which begins six months after puberty was reached at approximately the age of twelve; cf. Nid. 45b; 65a and Keth. 39a.
(4) I.e., usually over the age of thirteen; cf. Glos. s.v. Gadol.
(5) I.e., before the age of thirteen; v. Glos. s.v. Katon.
(6) [Is this not against the view of Rab who stated that damages paid for injuring a minor girl would not go to her father?]
(7) For which all agree that payment must be made to the father.
(8) [Does the latter ruling not apply even where the sons and daughters had already come of age, in contradiction to the ruling stated in the former teaching?]
(9) I.e., were maintained and provided by him with all their needs; cf. B.M. 12b.
(10) Stating liability.
(11) Git. 12a.
(12) [Eg. where the work he performs is not worth the cost of his maintenance, v. Git. 12a.]
(13) Deut. XV, 16.
(14) He must share the same pleasures and comforts as the Master. Cf. Kid. 20a.
(15) [Why therefore should the compensation be paid to the father and not to her in a case where she has to maintain herself?]
(16) Keth. 43a.
(17) Since they are maintained by him.
(18) Such as if he would have to pay compensation where he himself injured them.
(19) As where others injured them and would have to pay compensation.
(20) Cf. B.M. 12b.
(21) Such as e.g., in the case of a find.
(22) I.e., in the former teaching.
(23) I.e., in the latter teaching.
(24) B.B. 52a.
(25) Cf. Er. 64a.
(26) B.B. 52: 'Raba'.
(27) Which would usually not decrease her pecuniary value.
(28) Supra p.502.through which her pecuniary value is decreased,1 whereas regarding mere wounding, through which her pecuniary value would not [usually] decrease there was never any question [that the compensation would not go to the father. How then could R. Johanan speak of mere wounding?] - R. Jose b. Hanina replied: We suppose the wound to have been made in her face, thus causing her pecuniary value to be decreased. ONE WHO INJURES A CANAANITE SLAVE BELONGING TO ANOTHER PERSON IS [SIMILARLY] LIABLE FOR ALL [FIVE ITEMS]. R. JUDAH, HOWEVER, SAYS THAT NO DEGRADATION IS PAID IN THE CASE OF [CANAANITE] SLAVES. What is the reason of R. Judah? - As Scripture says:2 'When men strive together one with another' the law applies to one who can claim brotherhood and thus excludes a slave who cannot claim brotherhood.3 And the Rabbis?4 - They would say that even a slave is a brother in so far as he is subject to commandments. If this is so, would you say that according to R. Judah witnesses proved zomemim5 in a capital accusation against a slave would not be subject to be put to death in virtue of the words:6 'Then shall ye do unto him as he had purposed to do unto his brother'?7 - Raba said that R. Shesheth stated: The verse concludes:6 'So shalt thou put away the evil from among you', implying 'on all accounts' - Would you say that according to the Rabbis8 a slave would be eligible to be chosen as king?9 - I would reply: According to your reasoning would the same difficulty not arise regarding a proselyte, whichever view we accept10 unless we suppose that when Scripture says 'One from among thy brethren',11 it implies 'one of the choicest of thy brethren'?12 - But again would you now also say that according to the Rabbis, a slave would be eligible to give evidence,13 since it says, And behold, if the witness be a false witness and hath testified falsely against his brother?14 - 'Ulla replied: Regarding evidence you can surely not argue thus. For that he15 is disqualified from giving evidence can be learnt by means of an a fortiori from the law in the case of Woman: for if Woman who is eligible to enter [by marriage] into the congregation [of Israel] is yet ineligible to give evidence,16 how much more must a slave who is not eligible to enter [by marriage] into the congregation [of Israel] be ineligible to give evidence? But why is Woman disqualified if not perhaps because she is not subject to the law of circumcision? How then can you assert the same In the case of a slave who is subject to circumcision?17 - The case of a [male] minor will meet this objection, for in spite of his being subject to circumcision he is disqualified from giving evidence.18 But why is a minor disqualified if not perhaps because he is not subject to commandments?19 How then can you assert the same in the case of a slave who is subject to commandments?20 - The case of Woman will meet this objection, for though she is subject to commandments she is disqualified from giving evidence. The argument is thus endlessly reversible. There are features in the one instance which are not found in the other, and vice versa. The features common to both21 are that they are not subject to all the commandments22 and that they are disqualified from giving evidence. I will therefore include with them a slave who also is not subject to all the commandments and should therefore also be disqualified from giving evidence. But why [I may ask] is the feature common to them21 that they are disqualified from giving evidence if not perhaps because neither of them is a man?23 How then can you assert the same in the case of a slave who is a man? - You must therefore deduce the disqualification of a slave from the law applicable in the case of a robber.24 But why is there this disqualification in the case of a robber if not because his own deeds caused it? How then can you assert the same in the case of a slave whose own deeds could surely not cause it?25 - You must therefore deduce the disqualification of a slave from both the law applicable to a robber and the law applicable to either of these [referred to above].26 Mar, the son of Rabina, however, said: Scripture says: 'The fathers shall not be put to death through27 the children';28 from this it could be inferred that no sentence of capital punishment should be passed on [the evidence of] the mouth of [persons who if they were to be] fathers would have no legal paternity over their children.29 For if you assume that the verse is to be taken literally, 'fathers shall not be put to death through children', meaning, 'through the evidence of children', the Divine Law should have written 'Fathers shall not be put to death through their children'. Why then is it written 'children', unless to indicate that no sentence of capital punishment should be passed on [the evidence of] the mouth of [persons who if they were to be] fathers would have no legal paternity over their children? If that is so, would you also say that the concluding clause 'neither shall the children be put to death through the fathers' similarly implies that no sentence of capital punishment should be passed on [the evidence of] the mouth of [witnesses who as] children would have no legal filiation with respect to their fathers, and therefore argue that a proselyte30 should similarly be disqualified from giving evidence?31 - It may be said that there is no comparison: It is true that a proselyte has no legal relationship to his ancestors, still he has legal relationship with his descendants, [but we may therefore] exclude a slave who has relationships neither with ancestors nor with descendants. For if you should assume that a proselyte is disqualified from giving evidence, the Divine Law should surely have written: 'Fathers shall not be put to death through their children', which would mean what we stated, that they would not be put to death through the evidence of children, and after this the Divine Law should have written: 'Neither shall children be put to death through fathers,' as from such a text you would have derived the two rules: one that children should not be put to death through the evidence of fathers and the other that no sentence of capital punishment should be passed on [the evidence of] the mouth of [witnesses who as] children have no legal filiation with respect to their fathers.32 The disqualification in the case of a slave would surely have been derived by means of an a fortiori from the law applicable to a proselyte: for if a proselyte, who has no legal relationship to his ancestors but has legal relationship to his descendants, is disqualified from giving evidence, how much more must a slave who has legal relationship neither to ancestors nor to descendants be disqualified from giving evidence? But since the Divine Law has written: 'Fathers shall not be put to death through children', which implies that no sentence of capital punishment should be passed on [the evidence of] the mouth of [witnesses who as] fathers would have no legal paternity over their children, we can derive from this that it is only a [Canaanite] slave who has relationship neither to ancestors nor to descendants that will be disqualified from giving evidence, whereas a proselyte will be eligible to give evidence on account of the fact that he has legal paternity over his children. If you object, why did the Divine Law not write: 'Neither shall children be put to death through their fathers', and why did the Divine Law write 'And neither shall children be put to death through fathers', which appears to imply that no sentence of capital punishment should be passed [on the evidence of] the mouth of [witnesses who as] children would have no legal filiation with respect to fathers,33 [my answer is that] since it was written, 'Fathers shall not be put to death through children', it was further written, 'neither shall children be put to death through fathers.'34
A DEAF, MUTE AN IDIOT AND A MINOR ARE AWKWARD TO DEAL WITH. The mother of R. Samuel b. Abba of Hagronia35 was married to R. Abba,36 and bequeathed her possessions to R. Samuel b. Abba, her son. After her death
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(1) And a loss thus caused to the father.
(2) Deut. XXV, 11.
(3) Cf. supra p. 63.
(4) The representatives of the anonymous opinion cited first in the Mishnah.
(5) I.e., where an alibi was proved against them; cf. Glos.
(6) Deut. XIX, 19.
(7) Since a slave according to R. Judah could not he considered a brother.
(8) Who consider a slave a brother.
(9) Where the text in Deut. XVII, is states, One from among thy brethren shalt thou set king over thee.
(10) For a proselyte is unanimously considered a brother.
(11) Deut. XVII, 15.
(12) Cf. Yeb. 45b; [and for this reason a slave is not eligible for kingship, not because he is not considered a brother.]
(13) Which would not be in conformity with R. H. I., 8.
(14) Deut. XIX, 18.
(15) I.e., a slave.
(16) V. Shebu. 30a.
(17) Cf. Gen. XVII, 12 and Yeb. 48b.
(18) Cf. B.B. 155b.
(19) Cf. supra p. 250.
(20) In the same way as a woman; cf. Hag. 4a.
(21) I.e., in Woman and male Minor.
(22) Cf. Kid. 29a.
(23) As a minor has not yet reached manhood.
(24) Who is disqualified from giving evidence though being a 'man' and eligible to enter by marriage into the Congregation; cf. Ex. XXIII, 1.
(25) Having done nothing criminal.
(26) I.e., a woman or male minor, the common feature being that they do not observe all commandments - the robber on account of his criminality, the woman or male minor because neither is subject to all the commandments.
(27) E.V. 'for'.
(28) Deut. XXV, 16.
(29) Such as slaves; cf. supra p. 63.
(30) Who has no legal filiation with respect to his ancestors; cf. Yeb. 62a.
(31) Which would not be in conformity with Nid. 49b.
(32) Which would have excluded also a proselyte.
(33) [Excluding thus a proselyte.]
(34) And while the phraseology of the concluding clause follows that of the commencing clause it is not usual in Scripture that the commencing clause should alter its phraseology because of the style of the concluding clause.
(35) V. supra p. 27, n. 1.
(36) He was not the father of R. Samuel as her former husband's name was also Abba.R. Samuel b. Abba went to consult R. Jeremiah b. Abba who confirmed him in possession of her property. R. Abba thereupon went and related the case to R. Hoshaia. R. Hoshaia then went and spoke on the matter with Rab Judah who said to him that Samuel had ruled as follows: If a woman disposes of her melog1 possessions during the lifetime of her husband and then dies, the husband is entitled to recover them from the hands of the purchasers.2 When this statement was repeated to R. Jeremiah b. Abba, he said: I [only] know the Mishnaic ruling which we have learnt: 'If a man assigns his possessions to his son, to take effect after his death,3 neither can the son alienate them [during the lifetime of the father] as they are then still in the possession of the father, nor can the father dispose of them since they are assigned to the son. Still, if the father sells them, the sale is valid until his death; if the son disposes of them the purchaser has no hold on them until the father dies.'4 This implies, does it not, that when the father dies the purchaser will have the possessions [bought by him from the son during the lifetime of the father], and this even though the son died during the lifetime of the father, in which case they had never yet entered into the possession of the son? For so it was laid down by R. Simeon b. Lakish, who said5 that there should be no difference whether the son died in the lifetime of the father, in which case the estate never came into the possession of the son, or whether the father died in the lifetime of the son, in which case the estate had entered into the possession of the son; the purchaser would [in either case] acquire title to the estate. (For it was stated:6 Where the son sold the estate7 in the lifetime of the father and it so happened that the son died during the lifetime of the father, R. Johanan said that the purchaser would not acquire title [to the estate], whereas Resh Lakish said that the purchaser would acquire title [to the estate]. R. Johanan, who held that the purchaser would not acquire title to the estate, would say to you that the Mishnaic statement, 'If the son disposed of them the purchaser would have no hold on them until the father dies, 'implying that at any rate after the death of the father the purchaser would own them, refers to the case where the son did not die during the lifetime of the father, so that the estate had actually entered into the possession of the son, whereas where the son died during the lifetime of the father, in which case the estate had never entered into the possession of the son, the purchaser would have no title to the estate even after the death of the father. This shows that in the opinion of R. Johanan a right to usufruct amounts in law to a right to the very substance [of the estate],8 from which it follows that when the son sold the estate [during the lifetime of his father] he was disposing of a thing not belonging to him.9 Resh Lakish on the other hand said that the purchaser would [in all cases] acquire title [to the estate after the death of the vendor's father], for the Mishnaic statement, 'If the son disposed of them the purchaser would have no hold on them until the father died,'implying that at least after the death of the father the purchaser would own them, applies equally whether the son did not die in the lifetime of the father, in which case the estate had entered into the possession of the son, or whether the son did die during the lifetime of the father, in which case the estate never did come into the possession of the son, [as in all cases] the purchaser would acquire title [to the estate as soon as the vendor's father died]. This shows that in the opinion of Resh Lakish a right to [mere] usufruct does not yet amount to a right in the very substance [of the estate], from which it follows that when the son sold the estate [during his father's lifetime] he was disposing of a thing that legally belonged to him.10 ) Now both11 R. Jeremiah b. Abba and Rab Judah, concur with Resh Lakish,12 and R. Jeremiah b. Abba accordingly argues thus: If you assume that a right to usufruct amounts [in law] to a right in the very substance, why then on the death of the father, if the son has previously died during the lifetime of his father, should the purchaser have any title to the estate, since when the son sold it he was disposing of a thing not belonging to him? Does not this show that a right to [mere] usufruct does not amount to a right to the very substance?13 When, however, the argument was later repeated in the presence of Rab Judah, he said that Samuel had definitely stated: 'This case14 cannot be compared to that stated in the Mishnah.' On what ground? - R. Joseph replied: We should have no difficulty if the case in the Mishnah were stated in a reversed order, i.e., 'If a son assigns his possessions to his father [to take effect after the son's death, and the father sold them during the lifetime of the son and died before the son,' and if the law would also in this case have been that the purchaser acquired title to the possessions] it would indeed have been possible to prove from it that a right to usufruct does not amount to a right to the very substance. But seeing that what it actually says is, 'If a father assigns his possessions to his son,' [the reason why the sale by the son is valid is] that [since] he was eligible to inherit him, [the father by drawing up the deed must necessarily have intended that the transfer to the son should have legal effect forthwith].15 Said Abaye to him: Does only a son inherit a father, and does a father never inherit a son?16 It is therefore to be assumed that such a deed was drawn up only for the purpose of keeping the possessions out of the hands of the children,17 and similarly also here18 the deed might have been drawn up for the sole purpose of keeping the possessions out of the hands of his brothers!19 - The reason of [Samuel's remark that] 'This case cannot be compared to that stated in the Mishnah' is because of the [Rabbinic] enactment at Usha. For R. Jose b. Hanina said: It was enacted at Usha that if a woman disposes of her melog possessions during the lifetime of her husband and subsequently dies, the husband will be entitled to recover them from the hands of the purchasers.20 R. Idi b. Abin said that we have been taught to the same effect: [Where witnesses state,] 'We can testify against a particular person that he has divorced his wife and paid her for her kethubah',21
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(1) Lit., 'plucking', but which denotes a wife's estate in which her husband has the right of usufruct and for which he hears no responsibility regarding any loss or deterioration, v. B.B. (Sonc. ed.) p. 206, n. 7.
(2) According to which statement R. Abba and not R. Samuel would be entitled to the possessions in direct contradiction to the judgment given by R. Jeremiah.
(3) [The father retaining for himself the right for life to the usufruct.]
(4) B.B. 136b.
(5) Ibid.
(6) B.B. 136a.
(7) [Assigned to him to be his after his father's death.]
(8) As indeed followed by him in Git. 47b and elsewhere.
(9) For since the father still had for life the right to usufruct he was for the time being the legal owner of the very substance of the estate, though the son had the reversionary right.
(10) Since he had the reversionary right while the father possessed merely for time being the right to usufruct. [The bracketed passage is an interpolation and not part of R. Jeremiah's argument.]
(11) [So MS.M. cur. edd. read, 'We now assume.']
(12) [That the sale is valid even where the son died in the lifetime of the father.] Cf. Yeb. 36b.
(13) Hence the gift of the mother to R. Samuel her son should become valid at her death in spite of the right to usufruct vested in R. Abba her second husband during her lifetime.
(14) I.e., the gift of the mother to R. Samuel her son.
(15) For if otherwise why was the deed necessary at all? [Whereas in the case of Samuel b. Abba, the deed was necessary for in the absence of one the estate would be inherited by the husband. V. B.B. 111b]
(16) Cf. B.B. VIII, 1. The same argument if at all sound could thus accordingly be raised even in the case made out by you where a son bequeathed his possessions to his father.
(17) Of the son who made the bequest in favour of his father, as otherwise the sons children would have been first to inherit him in accordance with Num. XXVII, 8.
(18) Where the father bequeathed his possessions to a son.
(19) I.e., from the brothers of the particular son in whose favour the bequest was made, as otherwise they would also have had a part in the inheritance on account of their being sons of the same father, and it was not intended that the transfer to the son should have legal effect forthwith. This being so, the case of Samuel b. Abba is on all fours with the Mishnah!
(20) For the right of the husband to the possessions of his wife took effect at the time of the wedding and thus preceded the act of the sale. V. B.B. (Sonc. ed.) p. 208.
(21) V. Glos.while the woman in question was still with him1 and in fact looking after him, and the witnesses were subsequently proved zomemim, it would not be right to say that they should pay [the woman]2 the whole amount of her kethubah, [as she did not lose anything] but the satisfaction of the benefit of [being provided with] her kethubah.3 How could [the value of] the satisfaction of the benefit of her kethubah be arrived at?3 An estimate will have to be made of how much a man would be prepared to pay as purchase money for the kethubah of this [particular woman] which can mature only after she is left a widow or divorced, since, were she [previously] to die her husband would inherit her.4 Now, if you assume that this enactment of Usha is of no avail, why is it certain that her husband would inherit her? Why should she be unable to sell her kethubah outright?5 Abaye said: If all this could be said6 regarding melog possessions,7 can it also be said8 regarding the possessions [placed in the husband's hands9 and secured10 as if they were] 'iron flocks'?11
Abaye further said: Since the subject of the [mere] satisfaction of a benefit has been raised, let us say something on it. The [purchase money of this] satisfaction of the benefit would belong solely to the woman. For if you assume that it should be subject to [the rights of] the husband, why could the witnesses not argue against her: 'What loss did we cause you, for should you even have sold the satisfaction of the benefit, the husband would have taken away [the purchase money] from you'? - R. Shalman, however, said: Because [even then] there would have been ample domestic provision.12
Raba stated: 'The law is that the purchase money for the satisfaction of the benefit belongs solely to the woman, and the husband will have no right to enjoy any profit [that may result from it], the reason being that it was only profits that the Rabbis assigned to him,13 whereas profits out of profits14 were not assigned to him by the Rabbis.
When R. Papa and R. Huna the son of R. Joshua came from the College they said: We have learnt to the same effect as the enactment of Usha [in the following Mishnah]: A SLAVE AND A WOMAN ARE AWKWARD TO DEAL WITH, AS HE WHO INJURES THEM IS LIABLE [TO PAY], WHEREAS IF THEY HAVE INJURED OTHERS THEY ARE EXEMPT.15 Now, if you assume that the enactment of Usha is not effective why should she not sell her melog16 property and with the purchase money pay the compensation? - But even according to your reasoning, granted that the enactment of Usha is effective, in which case she would be powerless to alienate altogether her melog possessions, yet let her sell the melog estate for what the satisfaction of the benefit would fetch17 and with his purchase money pay the compensation? It must therefore Surely be said that the ruling applies where she had no melog property; so also [according to the other view] the ruling would apply only where she possessed no melog property. But why should she not sell her kethubah for as much as the satisfaction of the benefit will fetch17 and thus pay compensation? - The ruling is based on the view of R. Meir, who said that it is prohibited for any man to keep his wife without a kethubah even for one hour.18 But what is the reason of this? So that it should not be an easy matter in his eyes to divorce her. In this case too he will surely not divorce her, for if he were to divorce her those who purchased the kethubah would certainly come and collect the amount of the kethubah from him. [Why then should she not be compelled by law to sell her kethubah and pay her creditors?] - We must therefore say that the satisfaction of such a benefit is a value of an abstract nature19 and abstract values are not considered mortgaged [for the payment of liabilities]. But why not? Could these abstract values not be sold for actual denarii? - We must therefore [say that it would not be practical to compel her to sell her kethubah] on account of the statement of Samuel. For Samuel said:20 Where a creditor assigns a liability on a bill to another and subsequently releases the debtor from payment, the debt is considered cancelled. Moreover, the creditor's heir may cancel the liability.21 I would, however, ask: Why should she not be compelled to sell it and pay with the proceeds the compensation, though if she should subsequently release her husband from the obligation the release would be legally valid? - It may be replied that since it is quite certain that where there is an obligation on the husband the wife will release him,it would not be right to make a sale which will straight away be nullified. Should you say, why should she not assign her kethubah to the person whom she injured, thus letting him have the satisfaction of the benefit,
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(1) I.e., that particular person who was her husband, as he had never divorced her.
(2) In retaliation, as required in Deut. XIX, 19.
(3) Since it was but a conditional liability, i.e., becoming mature either through her being divorced or through her remaining a widow.
(4) And there would then be no occasion for the payment of the kethubah (cf. Mak. 3a).
(5) If the husband would have no right to recover the possessions thus alienated. Why then should the witnesses not pay the woman the full amount of the kethubah?
(6) By R. Jeremiah against Rab Judah, thus ignoring the enactment of Usha.
(7) In which the husband had only the right of usufruct while the substance belonged to the wife; v. Glos.
(8) [That the woman should be able to sell outright.]
(9) As absolutely his own property.
(10) By him on his general estate to pay her for them her Kethubah in case she would become a widow or divorced.
(11) Zon barzel. I.e., 'flocks' sold on credit and the payment made secure as 'iron', v. B.B. (Sonc. ed.) p. 206, n. 3.
(12) As it is also for her benefit that the income of her husband increases.
(13) Out of the substance belonging to her. Cf. Keth. 47b and 79b.
(14) Such as here in the case of the purchase money.
(15) V. supra p. 502, n. 1.
(16) V. Glos.
(17) I.e., that the purchaser should stand in her place and become entitled to it in case she should become a widow or divorced.
(18) Keth. 57a.
(19) Lit., 'words', 'an order for payment'.
(20) B.M. 20a; B.B. 147b.
(21) It would therefore not be practical to compel her to sell her kethubah, for she might subsequently release the husband from the liability of the kethubah.for even if she should subsequently release her husband from the obligation, the purchaser1 would lose nothing as now too she pays him nothing on account of the compensation, [my answer is that] as it is in any case quite certain that where there is an obligation on the husband the wife will release him, it would not be proper to trouble the Court of Law so much for nothing. But seeing that it was taught: 'So also if she injures her husband she does not forfeit her kethubah'.2 why should she in this case not assign her kethubah to the husband and thus let him have the satisfaction of the benefit as compensation for the injury, for even if she releases her husband from the obligation no loss will result therefrom? - This teaching is surely based on the view of R. Meir who said3 that it is prohibited for any man to keep his wife without a kethubah even for one hour, the reason being that it should not be an easy matter in the eyes of the husband to divorce a wife. So also here if the kethubah be assigned to him he might easily divorce her and have her kethubah for himself as compensation for the injury. But if so [even now that the kethubah remains with her] would he just the same not find it easy to divorce her, as he would retain the amount of her kethubah as compensation for the injury? [This however would not be so where] e.g., the amount of her kethubah was much more than that of the compensation as on account of the small amount of the compensation he would surely not risk losing more.4 But again if the amount of her kethubah exceeded that of an ordinary kethubah as fixed by the Law,5 why should we not reduce the amount to that of the ordinary kethubah fixed by the Law,6 and she should assign the difference to the husband as compensation for the injury? [This could not be done where,] e.g. the amount of her kethubah did not exceed that of the ordinary kethubah fixed by the Law and the compensation for the injury was assessed to be four zuz, as it is pretty certain that for four zuz he will not risk losing twenty-five [sela'].7 But what of that which was taught: 'Just as she cannot [be compelled to] assign her kethubah8 so long as she is with her husband, so also she cannot [be compelled to] remit [anything of] her kethubah so long as she is with her husband'?9 Are there not times when she would be forced to remit, as, for example where the amount of her kethubah exceeded the amount of an ordinary kethubah fixed by the Law? - Said Raba: This concluding paragraph refers to the clause inserted in the kethubah regarding the male children,10 and what was meant was this: Just as in the case of a wife assigning her kethubah to others she does thereby not impair the clause in the kethubah regarding the male children, the reason being that she might have been compelled to do it on account of a pressing need for money, so should also be the case where a wife assigns her kethubah to her own husband, that she would thereby not impair the clause in the Kethubah dealing with male children on the ground that she might have been compelled to do this for lack of funds.
May we say that the enactment of Usha was a point at issue between the following Tannaim? For one [Baraitha] teaches that melog slaves are to go out free for the sake of a tooth or an eye11 if assaulted by the wife,12 but not if assaulted by the husband,13 whereas another [Baraitha] teaches that [they are not to go out free] when assaulted either by the husband or by the wife. Now it was thought that all authorities agree that a right to usufruct does not constitute in law a right to the very substance. Are we not to suppose then that the point at issue between them was that the one who held that they are to go out free if assaulted by the wife did not accept the enactment of Usha, while the one who held that they are not to go out free when assaulted either by the husband or by the wife accepted the enactment of Usha?14 - No; it is quite certain that the enactment of Usha was unanimously accepted, but the former Baraitha was formulated before the passing of the enactment while the other one was formulated after. Or if you like I may say that both the one Baraitha and the other dealt with conditions prevailing after the enactment, and also that both accepted the enactment of Usha, but the authority who held that the slaves are to go out free if assaulted by the wife and not by the husband did so on account of a reason underlying a statement of Raba, for Raba said:
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(1) I.e., the injured person.
(2) Tosaf. B.K. IX, 8.
(3) V. supra, p. 515, n. 6.
(4) [I.e., the difference between the large amount of the kethubah and the amount due to him as compensation.]
(5) The Bible, i.e., two hundred zuz where she was a virgin at the time of the marriage. Cf. Ex. XXII, 16; Keth. I, 2.
(6) [To provide against the prohibition in the view of R. Meir.]
(7) == 100 zuz, which is the minimum amount of a kethubah even in the case of a non-virgin; v. Keth. I, 2.
(8) [For any damage done to others (Tosaf.).]
(9) [For any damage done by her to her husband (Tosaf.) V. Tosaf. B.K. IX.]
(10) Which runs as follows: 'The male children which you will have with me shall inherit the amount of your kethubah over and above their appropriate portions due to them together with their brothers (if any of another mother).' V.B.B. (Sonc. ed.) p. 546, n.16.
(11) Cf. Ex. XXI, 26-27.
(12) Who possesses the ownership of their substance.
(13) Who has in them but the right of usufruct.
(14) According to which the wife would not be able to impair the right of the husband, [nor would the husband on the other hand be able to impair the right of the wife to the slaves whose substance is actually hers.]'The Consecration [of cattle1 to the altar, the prohibition of] leaven2 [from any use] and the manumission of a slave3 release any of these articles [if mortgaged] from the burden of the mortgage.4 Are we then to say that this statement of Raba constituted a point at issue between these Tannaim? - No; it is possible that all concurred in the ruling of Raba [in general cases], but in this particular case here the Rabbis5 [might perhaps] have specially protected the mortgage of the husband.6 Or again if you like I may say that these Tannaim were unanimous in not accepting the enactment of Usha, but in the case here they might have differed as to whether the right to usufruct amounts in law to a right to the very substance, exactly as this was the dividing point between the following Tannaim. For it was taught:7 'If an owner sells his slave to a man with whom he stipulates that the slave shall still remain to serve him for the next thirty days, R. Meir says that the vendor8 would be subject to the law of "a day or two"9 because the slave was still "under" him,' his view being that the right to a usufruct in the slave amounts in law to a right to the very substance of him. 'R. Judah on the other hand says that it is the purchaser who would be subject to the law of "a day or two"10 because the slave was "his money",' his view being that a right to a usufruct in the slave does not amount in law to a right to the very substance of him. 'But R. Jose says that both of them11 would be subject to the right of "a day or two": the vendor because the slave was still "under" him and the purchaser because the slave was already "his money",'for he was in doubt whether a right to a usufruct should amount to a right to the very substance or should not amount to a right to the very substance, and, as is well known, a doubt in capital charges should always be for the benefit of the accused.12 'R. Eliezer on the other hand says that neither of them would be subject to the law of "a day or two": the purchaser because the slave is not "under" him, and the vendor because he is not "his money".' Raba said: The reason of R. Eliezer was because Scripture says, For he is his money,13 implying that he has to be 'his money' owned by him exclusively.14 Whose view is followed in the statement made by Amemar that if a husband and wife sold the melog property [even simultaneously], their act is of no effect? Of course the view of R. Eliezer.15 So too, who was the Tanna who stated that which our Rabbis taught: 'One who is half a slave and half a freeman,16 as well as a slave belonging to two partners does not go out free for the mutilation of the principal limbs,17 even those which cannot be restored to him'? Said R. Mordecai to R. Ashi: Thus was it stated in the name of Raba, that this ruling gives the view of R. Eliezer. For did R. Eliezer not say that 'his money' implied that which was owned by him exclusively? So also here 'his slave'18 implies one who is owned by him exclusively.
MISHNAH. IF A MAN BOXES ANOTHER MAN'S EAR, HE HAS TO PAY HIM19 A SELA'.20 R. JUDAH IN THE NAME OF R. JOSE THE GALILEAN SAYS THAT [HE HAS TO PAY HIM] A MANEH.20 IF HE SMACKED HIM [ON THE FACE] HE HAS TO PAY HIM TWO HUNDRED ZUZ;20 [IF HE DID IT] WITH THE BACK OF HIS HAND HE HAS TO PAY HIM FOUR HUNDRED ZUZ. IF HE PULLED HIS EAR, PLUCKED HIS HAIR, SPAT SO THAT THE SPITTLE REACHED HIM, REMOVED HIS GARMENT FROM UPON HIM, UNCOVERED THE HEAD OF A WOMAN IN THE MARKET PLACE, HE MUST PAY FOUR HUNDRED ZUZ.
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(1) That had previously been mortgaged for a liability.
(2) [In Jewish possession during the Passover which had previously been mortgaged for a liability to a non-Jew]
(3) V. p. 498, n. 5.
(4) So also here though the right of the husband in the melog (v. Glos.) slave is impregnable in the case of a sale or gift, it must give way in the case of manumission.
(5) According to the second Baraitha.
(6) To be inviolable even in the case of a manumission.
(7) B.B. 50a.
(8) During the thirty days.
(9) Stated in Ex. XXI, 21 and according to which if an owner smites his servant, who after having continued to live for a day or two, dies, he would not be punished, though in the case of a stranger the slayer would be liable to death in all circumstances.
(10) Even during the thirty days that the slave had to be with the vendor.
(11) I.e., the vendor and the purchaser.
(12) B.B. 50b; Sanh. 79a also supra p. 253.
(13) Ex. XXI, 21.
(14) [Raba stresses the word 'his'.]
(15) Who considers neither the vendor nor the purchaser as the true owner, and so should be the case regarding husband and wife in the melog estate.
(16) As where the slave belonged to two partners and one of them manumitted him; cf. Git. 41a.
(17) Which are twenty-four in number; cf. Kid. 25a.
(18) Ex. XXI, 26.
(19) On account of Degradation.
(20) V. Glos.THIS IS THE GENERAL PRACTICE, THOUGH ALL DEPENDS UPON THE DIGNITY [OF THE INSULTED PERSON]. R. AKIBA SAID THAT EVEN THE POOR IN ISRAEL HAVE TO BE CONSIDERED AS IF THEY ARE FREEMEN REDUCED IN CIRCUMSTANCES, FOR IN FACT THEY ALL ARE THE DESCENDANTS OF ABRAHAM, ISAAC AND JACOB.1 IT ONCE HAPPENED THAT A CERTAIN PERSON UNCOVERED THE HEAD OF A WOMAN IN THE MARKET PLACE AND WHEN SHE CAME BEFORE R. AKIBA, HE ORDERED THE OFFENDER TO PAY HER FOUR HUNDRED ZUZ. THE LATTER SAID TO HIM, 'RABBI, ALLOW ME TIME [IN WHICH TO CARRY OUT THE JUDGMENT];' R. AKIBA ASSENTED AND FIXED A TIME FOR HIM. HE WATCHED HER UNTIL HE SAW HER STANDING OUTSIDE THE DOOR OF HER COURTYARD, HE THEN BROKE IN HER PRESENCE A PITCHER WHERE THERE WAS OIL OF THE VALUE OF AN ISAR,2 AND SHE UNCOVERED HER HEAD AND COLLECTED THE OIL WITH HER PALMS AND PUT HER HANDS UPON HER HEAD [TO ANOINT IT]. HE THEN SET UP 'WITNESSES AGAINST HER AND CAME TO R. AKIBA AND SAID TO HIM: HAVE I TO GIVE SUCH A WOMAN3 FOUR HUNDRED ZUZ?' BUT R. AKIBA SAID TO HIM: 'YOUR ARGUMENT IS OF NO LEGAL EFFECT, FOR WHERE ONE INJURES ONESELF THOUGH FORBIDDEN, HE IS EXEMPT,4 YET, WERE OTHERS TO INJURE HIM, THEY WOULD BE LIABLE: SO ALSO HE WHO CUTS DOWN HIS OWN PLANTS, THOUGH NOT ACTING LAWFULLY,5 IS EXEMPT,4 YET WERE OTHERS TO [DO IT], THEY WOULD BE LIABLE.
GEMARA. It was asked: Is it a Tyrian maneh6 of which the Mishnaic text speaks or is it only a local maneh7 which is referred to? - Come and hear: A certain person boxed another's ear and the case was brought before R. Judah Nesi'ah.8 He said to him: 'Here I am and here is also R. Jose the Galilean, so that you have to pay the plaintiff a Tyrian maneh.' Does this not show that it is a Tyrian maneh which is spoken of in the text? - It does.
What is the meaning of, 'Here I am, and here is also R. Jose the Galilean'? If you say he meant, 'Here I am who witnessed you [doing this] and here is also R. Jose the Galilean who holds that the payment should be a Tyrian maneh; go therefore and thus pay him a Tyrian maneh', would this not imply that a witness is eligible to act [also] as judge? But [how can this be, since] it was taught: If the members of the Sanhedrin saw a man killing another, some of them should act as witnesses and the others should act as judges: this is the opinion of R. Tarfon. R. Akiba [on the other hand] said that all of them are considered witnesses and [they thus cannot act as judges, for] a witness may not act as a judge.9 Now, even R. Tarfon surely did not mean more than that a part of them should act as witnesses and the others act as judges, but did he ever say that a witness [giving evidence] should be able to act as judge? - The ruling there10 [that witnesses actually giving evidence would not be eligible to act at the same time as judges] referred only to a case such as where e.g., they saw the murder taking place at night time when they were unable to act in a judicial capacity.11 Or if you like I may say that what R. Judah Nesi'ah said to the offender was, 'Since I am here who concur with R. Jose the Galilean who stated that a Tyrian maneh should be paid, and since there are here witnesses testifying against you, go and pay the plaintiff a Tyrian maneh.'
Does R. Akiba really maintain that a witness cannot [at the same time] act as judge? But it has been taught: [As Scripture says] And one smite another with a stone or with his fist,12 Simeon the Temanite remarked that just as a fist is a concrete object that can be submitted for examination to the assembly of the judges and the witnesses, so also it is necessary that all other instruments should be able to be submitted [for consideration] to the assembly of the judges and the witnesses, which excludes the case where the instrument of killing disappeared from under the hands of the witnesses.13 Said R. Akiba to him: [Even if the instrument was placed before the judges], yet did the actual killing take place before the judges of the Court of Law that they should be expected to know how many times the murderer struck the victim, or again the part of the body upon which he struck him, whether it was upon his thigh or upon the tip of the heart? Again, supposing the murderer threw a man down from the top of a roof or from the top of a mansion house so that the victim died, would the court of law have to go to the mansion or would the mansion have to go to the court of law? Again, if the mansion meanwhile collapsed, would it be necessary to erect it anew [as it was before for the inspection of the court of law]?14 We must therefore say that just as a fist is a definite object that was placed before the sight of witnesses [when the murder was committed] so also it is necessary that all other instruments should have been placed before the sight of the witnesses, which excludes the case where the instrument of killing disappeared from under the hand of the murderer who is thus free.' We see then that R. Akiba said to him, 'did the actual killing take place before the judges of the Court of Law that they should be expected to know how many times the murderer struck the victim . . . ?' which would imply that if he had killed him in their presence, [they who were the] witnesses would have been able to act as judges! - He was arguing from the point of view of R. Simeon the Temanite but this was not his own opinion.
Our Rabbis taught: 'If an ox while still Tam15 killed [a person] and subsequently also did damage, the judges will adjudicate on the loss of life16 but will not adjudicate on the pecuniary damage.17 In the case however of Mu'ad18 killing a person and subsequently doing damage the judges will first deal with the pecuniary matter19 and then adjudicate on the loss of life.20 But if [for some reason or other], they have already adjudicated on the capital matter it would no more be possible to start dealing with the pecuniary matter.' But even if they first adjudicated on the capital matter, what has happened that it should no more be possible for them to start dealing with the pecuniary matter? Raba said: 'I found the Rabbis at the School of Rab21 sitting and stating that this teaching follows the view of R. Simeon the Temanite who said that just as a fist is a definite object which can be submitted to the consideration of the assembly of the judges and the witnesses,
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(1) Cf. B.M. VIII, 1.
(2) A small coin; v. Glos.
(3) Who had herself for the mere value of an isar, publicly uncovered her own head.
(4) From any pecuniary punishment.
(5) Cf. Deut. XX, 19.
(6) Consisting of twenty-five sela's, v. supra p. 204. n. 4.
(7) Which was only an eighth part of a Tyrian maneh; cf. supra p. 204.
(8) I.e., R. Judah II, the Prince.
(9) Sanh. 34b; B.B. 114a.
(10) In the case of Sanhedrin witnessing a murder.
(11) As judgments could be passed only at day time; cf. Sanh. IV, 1. [But where witnessed during the daytime, they can immediately act in the dual capacity of judges and witnesses.]
(12) Ex. XXI, 18.
(13) [Though the witnesses had an opportunity of examining the killing instrument, where the Judges had no such opportunity, no death penalty can be passed.]
(14) [In which case the court relies on the examination made by the witnesses; v. Tosef. Sanh. XII.]
(15) V. Glos.
(16) Cf. Ex. XXI, 28.
(17) Cf. ibid. 35.
(18) V. Glos.
(19) Cf. ibid. 36.
(20) Cf. ibid. 29-30.
(21) Cf. supra p. 487.[so also all other instruments should be able to be submitted to the consideration of the assembly of the judges and the witnesses], which shows that the inspection1 [of the instrument] by the Court of Law is essential [before any liability can be imposed]; and in this case where the sentence has already been passed on the ox to be stoned2 it would not be possible to keep the ox for inspection1 by the Court of Law, as we could not delay3 the execution of the judgment. I said to them: 'You may even say that the teaching follows the view of R. Akiba, for we may have been dealing here with a case where the defendant ran away.'4 But if the defendant ran away even in the case where the capital matter has not yet been adjudicated, how would it be possible to deal with the pecuniary matter in the absence of the defendant? - It was only after the evidence of the witnesses had already been accepted that he ran away.5 Be that as it may, whence could the payment come6 [since the defendant ran away]?7 - Out of the hire obtained from ploughing [done by the ox]. But if so, why also in the case of Tam, should the pecuniary matter not be adjudicated first and the payment made out of the hire obtained from ploughing, and then adjudicate the capital matter? - Said R. Mari the son of R. Kahana: This indeed proves that the hire obtained from ploughing forms a part of the general estate of the owner.8
The question was raised: Is an inspection [of the instrument] essential also in the case of mere damage, or is no inspection necessary in the case of mere damage? Shall we say that it is only regarding murder9 that we have to inspect the instrument, as by means of one instrument life could be taken, while by means of another life could not be taken, whereas regarding mere damage any instrument would be sufficient, or is there perhaps no difference? - Come and hear: 'Just as Pit can cause death because it is usually ten handbreadths [deep], so also [other similar nuisances] should be such as can cause death, [i.e.,] ten handbreadths [deep]. If, however, they were less than ten handbreadths [deep] and an ox or an ass fell into them and died there would be exemption, but if only injured by them there would be liability.'10 Is not the Tanna here reckoning upwards - so that what he says is that a pit of a depth of from one handbreadth to ten handbreadths could not cause death though it could cause damage, implying that a pit of any depth would involve liability in the case of mere damage and thus indicating that no inspection is necessary regarding mere damage? - No, he reckoned downwards, and thus meant to say that only a pit of ten handbreadths could cause death whereas a Pit a little less than ten handbreadths could cause11 only damage and not death, so that it may therefore still be argued that inspection might be essential even regarding mere damage and that in each case it may be necessary that the instrument be such as would be fit to cause the particular damage done.
Come and hear: If [the master] struck his slave on the eye and blinded him, or on his ear and deafened him, the slave would on account of that go out free,12 but if he struck on an object which was opposite the slave's eye through which he lost his sight or on an object which was opposite his ear through which he lost his hearing, the slave would [on account of this] not go out free.13 Is not the reason of this that consideration of the instrument is required [before any liability can be imposed],14 which proves that the inspection of the instrument is essential also in the case of mere damage? - No; the reason is because we say that it was the slave who frightened himself, as taught: If a man frightens another he is exempt according to the judgments of Man but liable according to the judgments of Heaven; thus if he blew into his ear and deafened him he would be exempt, but if he actually took hold of his ear and blew into it and thus deafened him he would be liable.15
Come and hear: Regarding the Five Items,16 an estimation will be made and the payment made straight away, though Healing and Loss of Time will have to be estimated for the whole period until he completely recovers. If after the estimation was made his health continued to deteriorate, the payment will not be more than in accordance with the previous estimation. So also if after the estimation was made he recovered rapidly, payment will be made of the whole sum estimated. Does this not show that estimation is essential also in the case of mere damage? - That an estimate has to be made of the length of the illness likely to result from the wound17 has never been questioned by us, for it is certain that we would have to make such an estimation; the point which was doubtful to us was whether we estimate if the instrument was one likely to do that damage or not. What is indeed the law? - Come and hear: Simeon the Temanite said18 that just as a fist is a definite object that can be submitted to the consideration of the assembly of the judges and the witnesses, so also all other instruments should be able to be submitted to the consideration of the assembly of the judges and the witnesses. Does this not show that the inspection of the instrument is essential even in the case of mere damage? - It does indeed.
The Master stated: 'So also if after the estimation was made he recovered rapidly payment will be made of the whole sum estimated.' This appears to support the view of Raba. For Raba said: An injured person whose illness was estimated to last the whole day but who, as it happened recovered in the middle of the day and performed his usual work, would still be paid for the whole day, as the unexpected recovery was an act of mercy especially bestowed upon him from Heaven.
IF HE SPAT SO THAT THE SPITTLE REACHED HIM . . . HE HAS TO PAY FOUR HUNDRED ZUZ. R. Papa said: This Mishnaic ruling applies only where it reached him [his person], but if it reached only his garment this would not be so. But why should this not be equivalent to an insult in words? - It was stated in the West19 in the name of R. Jose b. Abin that this could indeed prove that where the insult was merely in words, there would be exemption from any liability whatsoever.
ALL DEPENDS UPON THE DIGNITY. . . The question was raised: Did the first Tanna mean by this to mitigate or to aggravate the penalty? Did he mean to mitigate the penalty, so that a poor man would not have to be paid so much, or did he perhaps mean to aggravate the penalty, so that a rich man would have to be paid more? - Come and hear: Since R. Akiba20 stated THAT EVEN THE POOR IN ISRAEL HAVE TO BE CONSIDERED AS IF THEY ARE FREEMEN WHO HAVE BEEN REDUCED IN CIRCUMSTANCES, FOR IN FACT THEY ALL ARE THE DESCENDANTS OF ABRAHAM, ISAAC AND JACOB, does this not show that the first Tanna meant to mitigate the penalty?21 - It does indeed.
IT ONCE HAPPENED THAT A CERTAIN PERSON UNCOVERED THE HEAD OF A WOMAN [IN THE MARKET PLACE . . . FIXED A TIME FOR HIM]. But is time allowed22 [in such a case]? Did R. Hanina not say that no time is granted in cases of injury? - No time is granted in the case of injury where there is an actual loss of money,23 but in the case of Degradation, where there is no actual loss of money, time22 to pay may be granted.
HE WATCHED UNTIL HE SAW HER STANDING OUTSIDE THE DOOR OF HER COURTYARD [. . . FOR IF ONE INJURES ONESELF, THOUGH IT IS FORBIDDEN TO DO SO . . .] But was it not taught: R. Akiba said to him, 'You have dived into the depths and have brought up a potsherd in your hand,24 for a man may injure himself'? - Raba said: There is no difficulty, as the Mishnaic statement deals with actual injury, whereas the other text referred to Degradation. But surely the Mishnah deals with Degradation,
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(1) Lit., 'estimation'.
(2) Lit., 'to be killed'.
(3) V. Sanh. (Sonc. ed.) p. 222, and notes.
(4) So that in his absence we cannot adjudicate the matter.
(5) In which case though judgment could be passed regarding the pecuniary liability it is of no use to do so as the defendant when running away took all available funds with him.
(6) Even in the case where the capital matter has not yet been adjudicated.
(7) With all his available funds.
(8) And could thus not become subject to be paid for damages in the case of Tam, where payment could only be made out of its own body; cf. supra p. 73. [The plaintiff, however, could not take the ox itself in payment as it is to be stoned. V. Tosaf.]
(9) Cf. Num. XXXV, 17, 18 and 23.
(10) V. supra 50b.
(11) I.e., is fit to cause.
(12) Cf. Ex. XXI, 26-27.
(13) Kid. 24b; infra 88a.
(14) And the act of the master in the second case is not considered a cause adequate to effect such a result.
(15) Kid. ibid, and cf. supra 56a.
(16) Enumerated Mishnah supra p. 473,
(17) Lit. 'how long he is likely to suffer . . . and how long he will not.'
(18) Supra pp. 522-3
(19) [This usually represents R. Jeremiah.] Cf. Sanh. 17b.
(20) [And yet R. Akiba does not impose more than four hundred zuz, the same amount as mentioned by the first Tanna.]
(21) [The figure 400 mentioned by him being a maximum whereas R. Akiba would award this amount to all alike.]
(22) For the execution of a judgment.
(23) Sustained by the plaintiff.
(24) I.e., you have gone to a great amount of trouble which could however be of no practical avail.and it nevertheless says: If one injures oneself, though it is forbidden to do so, he is exempt? - It was this which he1 said to him: 'There could be no question regarding Degradation, as a man may put himself to shame, but even in the case of injury where a man may not injure himself, if others injured him they would be liable.' But may a man not injure himself? Was it not taught: You might perhaps think that if a man takes an oath to do harm to himself and did not do so he should be exempt. It is therefore stated: 'To do evil or to do good,'2 [implying that] just as to do good is permitted, so also to do evil [to oneself] is permitted; I have accordingly to apply [the same law in] the case where a man had sworn to do harm to himself and did not do harm?3 - Samuel said: The oath referred to was to keep a fast.4 It would accordingly follow that regarding doing harm to others5 it would similarly mean to make them keep a fast. But how can one make others keep a fast? - By keeping them locked up in a room. But was it not taught: What is meant by doing harm to others? [If one says], I will smite a certain person and will split his skull?3 - It must therefore be said that Tannaim differed on this point, for there is one view maintaining that a man may not injure himself and there is another maintaining that a man may injure himself. But who is the Tanna maintaining that a man may not injure himself? It could hardly be said that he was the Tanna of the teaching, And surely your blood of your lives will I require,6 [upon which] R. Eleazar remarked [that] it meant I will require your blood if shed by the hands of yourselves,7 for murder is perhaps different. He might therefore be the Tanna of the following teaching: 'Garments may be rent for a dead person8 as this is not necessarily done to imitate the ways of the Amorites. But R. Eleazar said: I heard that he who rends [his garments] too much for a dead person transgresses the command,9 'Thou shalt not destroy',10 and it seems that this should be the more so in the case of injuring his own body. But garments might perhaps be different, as the loss is irretrievable, for R. Johanan used to call garments 'my honourers',11 and R. Hisda whenever he had to walk between thorns and thistles used to lift up his garments Saying that whereas for the body [if injured] nature will produce a healing, for garments [if torn] nature could bring up no cure.12 He must therefore be the Tanna of the following teaching: R. Eleazar Hakkapar Berabbi13 said: What is the point of the words: 'And make an atonement for him, for that he sinned regarding the soul.'14 Regarding what soul did this [Nazarite] sin unless by having deprived himself of wine? Now can we not base on this an argument a fortiori: If a Nazarite who deprived himself only of wine is already called a sinner, how much the more so one who deprives oneself of all matters?'15
HE WHO CUTS DOWN HIS OWN PLANTS . . . Rabbah b. Bar Hanah recited in the presence of Rab: [Where a plaintiff pleads] 'You killed my ox, you cut my plants, [pay compensation', and the defendant responds:] 'You told me to kill it, you told me to cut it down', he would be exempt. He [Rab] said to him. If so you almost make it impossible for anyone to live, for how can you trust him? - He therefore said to him: Has this teaching to be deleted? - He replied: No; your teaching could hold good in the case where the ox was marked for slaughter16 and so also the tree had to be cut down.17 If so what plea has he against him? - He says to him: I wanted to perform the precept myself in the way taught: 'He shall pour out . . . and cover it',18 implying that he who poured out19 has to cover it; but it once happened that a certain person performed the slaughter and another anticipated him and covered [the blood], and R. Gamaliel condemned the latter to pay ten gold coins.20
Rab said: A palm tree producing even one kab of fruit may not be cut down. An objection was raised [from the following]: What quantity should be on an olive tree so that it should not be permitted to cut it down? A quarter of a kab.21 - Olives are different as they are more important. R. Hanina said: Shibhath22 my son did not pass away except for having cut down a fig tree before its time. Rabina, however, said: If its value [for other purposes] exceeds that for fruit, it is permitted [to cut it down]. It was also taught to the same effect: 'Only the trees of which thou knowest'23 implies even fruit-bearing trees;24 That they be not trees for meat, means a wild tree. But since we ultimately include all things, why then was it stated, That they are not trees for food? To give priority25 to a wild tree over one bearing edible fruits.
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(1) I.e., R. Akiba.
(2) Lev. V, 4.
(3) Shebu. 27a.
(4) But in other ways a man may not injure himself.
(5) Dealt with in Shebu 27a.
(6) Gen. IX, 5.
(7) I.e., for committing suicide.
(8) Cf. II Sam. I, 11, and II Kings II, 12. Cf. also Sanh. 52b.
(9) According to the text, 'Will be lashed on account of transgressing' which could however hardly be substantiated; Cf. Tosaf. a.l.
(10) Deut. XX, 19.
(11) Sanh. 94a.
(12) Cf. Taan. 23a.
(13) A title of some scholars who belonged to the school of R. Judah the prince.
(14) Num. VI, 11; E.V.: for that he sinned by the dead.
(15) R. Eleazar Hakkapar is thus the Tanna forbidding self-injury.
(16) Such as where it killed a human being; cf. Ex. XXI, 28.
(17) Such as where it constituted a danger to the public or where it was planted for idolatrous purposes; cf. Deut. XII, 3.
(18) Lev. XVII, 13.
(19) I.e., he who acted as slaughterer.
(20) Hul. 87a.
(21) Sheb. IV, 10. [Why then should the palm tree require a bigger quantity?]
(22) B.B. 26a. There he is called 'Shikhath'.
(23) Deut. XX, 20.
(24) [That is where it is known that they no longer produce any fruits, v. Malbim, a.l.]
(25) To be cut down.As you might say that this is so even where the value [for other purposes] exceeds that for fruits, it says 'only'.1 Samuel's field labourer brought him some dates. As he partook of them he tasted wine in them. When he asked the labourer how that came about, he told him that the date trees were placed between vines. He said to him: Since they are weakening the vines so much, bring me their roots tomorrow.2 When R. Hisda saw certain palms among the vines he said to his field labourers: 'Remove them with their roots. Vines can easily buy palms but palms cannot buy vines.'2
MISHNAH. EVEN THOUGH THE OFFENDER PAYS HIM [COMPENSATION], THE OFFENCE IS NOT FORGIVEN UNTIL HE ASKS HIM FOR PARDON, AS IT SAYS: NOW THEREFORE RESTORE THE MAN'S WIFE ETC.3 WHENCE CAN WE LEARN THAT SHOULD THE INJURED PERSON NOT FORGIVE HIM HE WOULD BE [STIGMATISED AS] CRUEL? FROM THE WORDS: SO ABRAHAM PRAYED UNTO GOD AND GOD HEALED ABIMELECH ETC.4 IF THE PLAINTIFF SAID: 'PUT OUT MY EYE, CUT OFF MY ARM AND BREAK MY LEG,' THE OFFENDER WOULD NEVERTHELESS BE LIABLE; [AND SO ALSO EVEN IF HE TOLD HIM TO DO IT] ON THE UNDERSTANDING THAT HE WOULD BE EXEMPT HE WOULD STILL BE LIABLE. IF THE PLAINTIFF SAID: 'TEAR MY GARMENT AND BREAK MY PITCHER,' THE DEFENDANT WOULD STILL BE LIABLE, BUT IF HE SAID TO HIM: '[DO THIS] ON THE UNDERSTANDING THAT YOU WILL BE EXEMPT,' HE WOULD BE EXEMPT.5 BUT IF ONE SAID TO THE DEFENDANT: 'DO THIS TO A THIRD PERSON6 ON THE UNDERSTANDING THAT YOU WILL BE EXEMPT,' THE DEFENDANT WOULD BE LIABLE, WHETHER WHERE THE INJURY WAS DONE TO THE PERSON OR TO HIS CHATTELS.
GEMARA. Our Rabbis taught: All these fixed sums stated above7 specify only the payment [civilly due] for Degradation. For regarding the hurt done to the feelings of the plaintiff, even if the offender should bring all the 'rams of Nebaioth'8 in the world,9 the offence would not be forgiven until he asks him for pardon, as it is written: Now therefore restore the man's wife for he is a prophet and he will pray for thee.10 But is it only the wife of a prophet who has to be restored, whereas the wife of another man need not be restored? R. Samuel b. Nahmani said in the name of R. Johanan: 'Restore the man's wife' [surely implies] in all cases; for as to your allegation, Wilt thou slay even a righteous nation? Said he not unto me, She is my sister and she even she herself said: He is my brother,11 [you should know that] he is a prophet who has already [by act and deed]12 taught the world that where a stranger comes to a city whether he is to be questioned regarding food and drink - or regarding his wife, whether she is his wife or sister. From this we can learn that a descendant of Noah13 may become liable to death if he had the opportunity to acquire instruction14 and did not do so [and so committed a crime through the ignorance of the law].
For to close the Lord had closed up [all the wombs of the house of Abimelech].15 R. Eleazar said: Why is 'closing up' mentioned twice?16 There was one 'closing up' in the case of males, viz. semen [virile], and two in the case of females, viz. semen and the giving of birth. In a Baraitha it was taught that there were two in the case of males, viz. semen [virile] and urinating, and three in the case of females, i.e. semen, urinating and the giving of birth. Rabina said: Three in the case of males, viz. semen [virile], urinating and anus, and four in the case of females, viz. semen and the giving of birth, urinating and anus. 'All the wombs of the house of Abimelech.' It was stated at the College of R. Jannai that even a hen of the house of Abimelech did not lay an egg [at that time].
Raba said to Rabbah b. Mari: Whence can be derived the lesson taught by our Rabbis that one who solicits mercy for his fellow while he himself is in need of the same thing, [will be answered first]? - He replied: As it is written: And the Lord changed the fortune of Job when he prayed for his friends.17 He said to him: You say it is from that text, but I say it is from this text: 'And Abraham prayed unto God and God healed Abimelech and his wife and his maidservants,'18 and immediately after it Says: And the Lord remembered Sarah as he had said, etc.,19 [i.e.] as Abraham had [prayed and] said regarding Abimelech.
Raba [again] said to Rabbah b. Mari: Whence can be derived the proverbial saying that together with the thorn the cabbage is smitten?20 - He replied: As it is written, Wherefore will ye contend with Me, ye all have transgressed against Me, says the Lord.21 He said to him: You derive it from that text, but I derive it from this, How long refuse ye22 to keep My commandments and My laws.23 Raba [again] said to Rabbah b. Mari: It is written: 'And from among his brethren, he took five men.24 Who were these five? - He replied: Thus said R. Johanan that 'they were those whose names were repeated [in the Farewell of Moses].'25 But was not the name Judah repeated too?26 He replied: The repetition in the case of Judah was for a different purpose, as stated by R. Samuel b. Nahmani that R. Johanan said: What is the meaning of the words, Let Reuben live and not die, in that his men become few, and this is for Judah?27 All the forty years that the Israelites were in the wilderness the bones of Judah were scattered28 in the coffin29 until Moses came and solicited for mercy by saying thus to God: Master of the universe, who brought Reuben to confess30 if not Judah?31 Hear [therefore] Lord the voice of Judah! Thereupon each limb fitted itself into its original place.32 He was, however, not permitted to ascend to the heavenly gathering33 until Moses said: And bring him in unto his people.34 As, however, he did not know what the Rabbis were saying and was thus unable to argue with the Rabbis on matters of the law, Moses said: His hands shall contend for him!34 As again he was unable to bring his statement into accord with the Halachah, Moses said, Thou shalt be a help against his adversaries!34
Raba [again] said to Rabbah b. Mari: Whence35 can be derived the popular saying that poverty follows the poor?36 - He replied: We have learnt:37 'The rich used to bring the first fruits38 in baskets of gold and silver, but the poor brought it in wicker baskets made out of the bark of willow, and thus gave the baskets as well as the first-fruits to the priest.'39 He said to him: You derive it from there, but I derive it from this:
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(1) Which qualifies and thus exempts such a case from giving priority to wild trees over those bearing edible fruits.
(2) As the value of the produce of vines surpasses that of palms.
(3) Gen. XX, 7.
(4) Ibid. 17.
(5) For the distinction between injury to the person and damage to chattels see the Gemara.
(6) Lit., 'to such and such person'; cf. Ruth IV, 1.
(7) Supra pp. 520-1.
(8) Isa. LX, 7.
(9) For the purpose of propitiation.
(10) Gen. XX, 7.
(11) Ibid. 4-5. [Ms.M. 'He learned it from thee'; i.e. thy conduct in questioning a stranger, of which he as 'a prophet' became cognisant, put him on his guard. Cf. Mak. 9a.]
(12) Ibid. XVIII, 2-8.
(13) Who is subject to the seven commandments of civilized humanity enumerated in Sanh. 56a; cf. also supra.
(14) Regarding the elementary laws of humanity.
(15) Gen. XX, 18; E.V.: For the Lord had fast closed up. . .
(16) I.e., in the infinitive and finite mood.
(17) Job XLII, 10.
(18) Gen. XX, 17.
(19) Gen. XXI, I.
(20) I.e., that the good are punished with the bad.
(21) Jer. II, 29.
(22) [Including, as it were, Moses and Aaron.]
(23) Ex. XVI, 28.
(24) Gen. XLVII, 2.
(25) Deut. XXXIII, 2-29; (besides Judah) the five were as follows: Dan, Zebulun, Gad, Asher and Naphtali. These names had to be repeated in the blessing as they were the weakest among the tribes.
(26) As in Deut. XXXIII, 7 (though his tribe was by no means among the weak ones).
(27) Deut. XXXIII, 6.7.
(28) I.e., they were not kept together.
(29) As the bones of all the heads of the tribes just as those of Joseph were, according to homiletic interpretation, carried away from Egypt to the Promised Land. Cf. Mid. Rab. on Gen. L, 25.
(30) Cf. Gen. XXXV, 22 and XLIX, 4.
(31) Who made public confession in Gen. XXXVIII, 26.
(32) I.e., they were again made into one whole.
(33) Where matters of law are considered; cf. B.M. 86a.
(34) Deut. XXXIII, 7.
(35) V. Mak. 11b.
(36) B.B. 174b.
(37) Bik. III, 8.
(38) Cf. Ex. XXXIV, 26.
(39) So that the rich took back their gold or silver baskets, whereas the poor did not receive back their baskets made of the bark of the willow.And shall cry unclean, unclean.1
Rabbah [again] said to Rabbah b. Mari: Whence can be derived the advice given by our Rabbis:2 Have early breakfast in the summer because of the heat, and in the winter because of the cold, and people even say that sixty3 men may pursue him who has early meals in the mornings and will not overtake him? - He replied: As it is written, They shall not hunger nor thirst, neither shall the heat nor sun smite them.4 He said to him: You derive it from that text but I derive it from this one, And ye shall serve the Lord your God:5 this [as has been explained] refers to the reading of Shema'6 and the Tefillah,'7 'And he will bless thy bread and thy water:'5 this refers to the bread dipped in salt and to the pitcher of water;8 and after this, I will take [Mahalah, i.e.] sickness away from the midst of thee.5 It was [also] taught: Mahalah9 means gall;10 and why is it called mahalah! Because eighty-three different kinds of illnesses may result from it [as the numerical value of mahalah amounts exactly to this];11 but they all are counteracted by partaking in the morning of bread dipped in salt followed by a pitcher of water.
Raba [again] said to Rabbah b. Mari: Whence can be derived the saying of the Rabbis: 'If thy neighbour calls thee an ass put a saddle on thy back?'12 - He replied: As it is written: And he said: Hagar, Sarai's handmaid; Whence camest thou and whither goest thou? And she said: I flee from the face of my mistress Sarai.13
Raba [again] said to Rabbah b. Mari: Whence can be derived the popular saying: 'If there is any matter of reproach in thee be the first to tell it?' - He replied: As it was written: And he said, I am Abraham's servant.14
Raba again said to Rabbah b. Mari: Whence can be derived the popular saying: 'Though a duck keeps its head down while walking its eyes look afar'? - He replied: As it is written: And when the Lord shall have dealt well with my lord then remember thy handmaid.15 Raba [again] said to Rabbah b. Mari: Whence can be derived the popular saying, 'Sixty16 pains reach the teeth of him who hears the noise made by another man eating17 while he himself does not eat'? - He replied: As it is written, But me, even me thy servant and Zadok the priest, and Benaiah the son of Jehoiada, and thy servant Solomon, hath he not called.18 He said to him: You derive it from that verse, but I derive it from this verse, And Isaac brought her unto his mother Sarah's tent, and took Rebekah and she became his wife; and he loved her. And Isaac was comforted for his mother;19 and soon after it is written, And again Abraham took another wife and her name was Keturah.20
Raba [further] said to Rabbah b. Mari: Whence can be derived the popular saying, 'Though the wine belongs to the owner, the thanks are given to the butler'? - He replied: As it is written, And thou shalt put of thy honour upon him, that all the congregation of the children of Israel may hearken,21 and it is also written, 'And Joshua the son of Nun was full of the spirit of wisdom, for Moses had laid his hands upon him; and the children of Israel hearkened unto him. etc.22
Raba [again] said to Rabbah b. Mari: Whence can be derived the popular saying, 'A dog when hungry is ready to swallow even his [own] excrements'?23 - He replied: As it is written, The full soul loatheth an honeycomb, but to the hungry soul every bitter thing is sweet.24
Raba [again] said to Rabbah b. Mari: Whence can be derived the popular saying, 'A bad palm will usually make its way to a grove of barren trees'? - He replied: This matter was written in the Pentateuch, repeated in the Prophets, mentioned a third time in the Hagiographa, and also learnt in a Mishnah and taught in a Baraitha: It is stated in the Pentateuch as written, So Esau went unto Ishmael;25 repeated in the prophets, as written, And there gathered themselves to Jephthah idle men and they went out with him;26 mentioned a third time in the Hagiographa, as written: Every fowl dwells near its kind and man near his equal;27 it was learnt in the Mishnah: 'All that which is attached to an article that is subject to the law of defilement,28 will similarly become defiled, but all that which is attached to anything which would always remain [levitically] clean would similarly remain clean;29 and it was also taught in a Baraitha: R. Eliezer said: 'Not for nothing did the starling follow the raven, but because it is of its kind.'30 Raba [again] said to Rabbah b. Mari: Whence can be derived the popular saying: 'If you draw the attention of your fellow to warn him [and he does not respond], you may push a big wall and throw it at him'?31 - He replied: As it is written: Because I have purged thee and thou wast not purged, thou shalt not be purged from thy filthiness any more.32
Raba again said to Rabbah b. Mari: Whence can be derived the popular saying: 'Into the well from which you have once drank water do not throw clods?' He replied: As it is written: Thou shalt not abhor an Edomite, for he is thy brother; thou shalt not abhor an Egyptian because thou wast a stranger in his land.33
Raba again said to Rabbah b. Mari: Whence can be derived the popular Saying, 'If thou wilt join me in lifting the burden I will carry it, and if not I will not carry it?' - He replied: As it is written: And Barak said unto her, If thou wilt go with me, then I will go; but if thou wilt not go with me, I will not go.34
Raba again said to Rabbah b. Mari: Whence can be derived the popular Saying: 'When we were young we were treated as men, whereas now that we have grown old we are looked upon as babies'? - He replied: It is first written: And the Lord went before them by day in a pillar of a cloud, to lead them the way; and by night in a pillar of fire to give them light,35
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(1) Lev. XIII, 45. I.e., in addition to the affliction of the leprosy, he is compelled by Jaw to make it public.
(2) Cf. B.M. 107b.
(3) A common hyperbolical term.
(4) Isa. XLIX, 10. Which might imply as follows: If they will neither hunger nor thirst, but eat in time and drink in time, then neither the heat nor the sun shall smite them.
(5) Ex. XXIII, 25.
(6) [Lit., 'Hear (O Israel!)' introducing the three passages from Scriptures (Deut. VI, 4-9; XI, 13-21; Num. XV, 37-41) recited twice daily - in the morning and the evening.]
(7) [Lit., 'Prayer', the 'Eighteen Benedictions', the main constituents of the regular prayers recited three times daily.]
(8) Constituting the meal of breakfast after the morning prayer; cf. however Shab. 10a and Pes. 12b.
(9) E.V., disease.
(10) [Evidently connecting mahalah with Gr. ** (Preuss, Medezin, p. 215.]
(11) מחלה == forty, eight, thirty and five.
(12) I.e., do not quarrel with him for the purpose of convincing him otherwise.
(13) Gen. XVI, 8.
(14) Ibid. XXIV, 34.
(15) 1 Sam. XXV, 31. Spoken by Abigail to David and hinting thus that she would wish to become his wife in future days.
(16) V. supra p. 534, n.13.
(17) Cf. Keth. 61.
(18) I Kings, 1, 26.
(19) Gen. XXIV, 67.
(20) Ibid. XXV, 1.
(21) Num. XXVII, 18-20.
(22) Deut. XXXIV, 9. Though the spirit of wisdom belongs to God it is nevertheless ascribed to Moses.
(23) [Others: 'stones'.]
(24) Prov. XXVII, 7.
(25) Gen. XXVIII, 9.
(26) Judges XI, 3.
(27) Ecclesiasticus. XIII, 15.
(28) Such as where a metal hook was fixed into a wooden receptacle, which is subject to the law of defilement.
(29) Such as where the hook was stuck into a piece of wood which did not form a receptacle; v. Kel. XII. 2.
(30) Hul. 65a. [The reference is to the small Egyptian raven incident, v. Gen. Rab. LXV, and R. Eliezer had probably a similar incident in mind.]
(31) I.e., you can no more be responsible for any misfortune that his inattention may bring upon him.
(32) Ezek. XXIV, 13.
(33) Deut. XXIII, 8.
(34) Judges IV, 8.
(35) Ex. XIII, 21.but subsequently it is written: Behold I send an angel before thee to keep thee by the way.1
Raba [again] said to Rabbah b. Mari: Whence can be derived the popular saying: 'Behind an owner of wealth chips are dragged along'? - He replied: As it is written: And Lot also who went with Abram had flocks and herds and tents.2
R. Hanan said: He who invokes the judgment of Heaven against his fellow is himself punished first, as it says, And Sarai said unto Abram, My wrong be upon thee3 etc., and it is subsequently written, And Abraham came to mourn for Sarah, and to weep for her.4 This, however, is the case only where justice could be obtained in a temporal Court of Law. R. Isaac said: Woe to him who cries [for divine intervention] even more than to him against whom it is invoked! It was taught likewise: Both the one who cries for divine intervention and the one against whom it is invoked come under the Scriptural threat,5 but punishment is meted out first to the one who cries, [and is] more severe than for the one against whom justice is invoked.6 R. Isaac again said: The curse of an ordinary man should never be considered a trifling matter in your eyes,7 for when Abimelech called a curse upon Sarah it was fulfilled in her seed, as it says, Behold it is for thee a covering of the eyes,8 [which implies that] he said to her, 'Since thou hast covered the truth from me and not disclosed that he was thy husband, and hast thus caused me all this trouble, let it be the will [of Heaven] that there shall be to thee a covering of the eyes,'9 and this was actually fulfilled in her seed, as it is written: And it came to pass that when Isaac was old and his eyes were dim so that he could not see.10 R. Abbahu said: A man should always strive to be rather of the persecuted than of the persecutors as there is none among the birds more persecuted than doves and pigeons, and yet Scripture made them [alone]11 eligible for the altar.12
IF THE PLAINTIFF SAID: PUT OUT MY EYE . . . ON THE UNDERSTANDING THAT HE WOULD BE EXEMPT, HE WOULD STILL BE LIABLE. IF THE PLAINTIFF SAID: TEAR MY GARMENT ON THE UNDERSTANDING THAT YOU WILL BE EXEMPT HE WOULD BE EXEMPT. R. Assi b. Hama13 said to Rabbah:14 Why is the rule differing in the former case and in the latter case? - He replied: [There is liability in] the former case because no man truly pardons the wounding of his principal limbs. The others rejoined: Does a man then pardon the inflicting of pain, seeing that it was taught: 'If the plaintiff had said, "Smite me and wound me on the understanding that you will be exempt," the defendant would be exempt.' He had no answer and said: Have you heard anything on this matter? - He15 thereupon said to him: This is what R. Shesheth has said: The liability is because [the plaintiff had no right to pardon] the discredit to the family. It was similarly stated: R. Oshaia said: Because of the discredit to the family, whereas Raba said: Because no man could truly pardon the injury done to his principal limbs. R. Johanan, however, said: Sometimes the term 'Yes' means 'No'16 and the term 'No' means 'Yes' [as when spoken ironically].17 It was also taught likewise: If the plaintiff said, 'Smite me and wound me,' and when the defendant interposed, 'On the understanding of being exempt, the plaintiff replied, 'Yes,' there may be a 'Yes' which implies 'No' [i.e., when spoken ironically]. If the plaintiff said, 'Tear my garment,' and when the defendant interposed, 'On the Understanding of being exempt, he said to him, 'No', there may be a 'No' which means 'Yes' [such as when spoken ironically].17
IF THE DEFENDANT SAID: BREAK MY PITCHER AND TEAR MY GARMENT, THE DEFENDANT WOULD STILL BE LIABLE. A contradiction was pouched out: "'To keep"18 but not to destroy; "to keep", but not to tear; "to keep" but not to distribute to the poor,' [in which case the liability of bailees would not apply. Why then liability in the Mishnah]?19 - Said R. Huna: There is no difficulty, as here20 the article came into his hands,21 whereas there22 the article did not come into his hands.23 Said Rabbah to him: Does the expression 'To keep'24 not imply that the article has come into his hands? - Rabbah therefore said: This case as well as the other is one in which the article has come into his hands, and still there is no difficulty, as in the case here25 the article originally came into his hands21 for the purpose of being guarded, whereas there22 it came to his hands for the purpose of being torn.
A purse of money for charity having been brought to Pumbeditha, R. Joseph deposited it with a certain person who, however, was so negligent that thieves came and stole it. R. Joseph declared liability [to pay], but Abaye said to him: Was it not taught: 'To keep'24 but not to distribute to the poor? - R. Joseph rejoined: The poor of Pumbeditha have a fixed allowance,26 and the charity money could thus be considered as having been deposited 'to keep' [and not to distribute it to the poor].27 [
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(1) Ibid. XXIII, 20.
(2) Gen. XIII, 5.
(3) Ibid. XVI, 5.
(4) Ibid. XXIII, 2.
(5) Cf. Ex. XXII, 23.
(6) As in the case of Sarah; Gen. XVI, 5 and ibid. XXIII, 2.
(7) Cf. Ex. XXII, 23.
(8) Gen. XX, 16.
(9) I.e., blindness.
(10) Gen. XXVII, 1.
(11) Among birds.
(12) Cf. Lev.I, 14.
(13) [MS.M.: 'R. Joseph b. Hama' the father of Raba.]
(14) Raba in the text and 'Rab' in the text of Asheri, v. Marginal Glosses in cur. edd.
(15) I.e., R. Assi.
(16) Cf. supra pp. 178-9.
(17) According to Rashi there is strictly speaking no difference between the case dealt with in the commencing and that of the concluding clause; as all depends upon the implied intention, the illustration being in each case taken from what is usual, for while a man will pardon damage done to his chattel, he will not do so in regard to personal pain. But that this was not so was maintained by Tosaf.
(18) Ex. XXII, 6.
(19) Where he gave him the pitcher to break it and the garment to tear it.
(20) In the case of the Mishnah.
(21) I.e., to the hand of the one who did the damage.
(22) In Ex.
(23) But was destroyed before it actually reached the hand of the bailee.
(24) Ibid.
(25) In the case of the Mishnah.
(26) So much per week.
(27) As there were in that case definite plaintiffs.MISHNAH. IF ONE MISAPPROPRIATES PIECES OF WOOD AND MAKES UTENSILS OUT OF THEM, OR PIECES OF WOOL AND MAKES GARMENTS OUT OF THEM, HE HAS TO PAY FOR THEM IN ACCORDANCE WITH [THEIR VALUE AT] THE TIME OF THE ROBBERY.1 IF ONE MISAPPROPRIATED A PREGNANT COW WHICH MEANWHILE GAVE BIRTH [TO A CALF], OR A SHEEP BEARING WOOL WHICH HE SHEARED, HE WOULD PAY THE VALUE OF A COW WHICH WAS ABOUT TO GIVE BIRTH [TO A CALF], AND THE VALUE OF A SHEEP WHICH WAS READY TO BE SHORN [RESPECTIVELY]. BUT IF HE MISAPPROPRIATED A COW WHICH BECAME PREGNANT WHILE WITH HIM AND THEN GAVE BIRTH, OR A SHEEP WHICH WHILE WITH HIM GREW WOOL WHICH HE SHEARED, HE WOULD PAY IN ACCORDANCE WITH [THE VALUE AT] THE TIME OF THE ROBBERY. THIS IS THE GENERAL PRINCIPLE: ALL ROBBERS HAVE TO PAY IN ACCORDANCE WITH [THE VALUE OF THE MISAPPROPRIATED ARTICLES AT] THE TIME OF THE ROBBERY.
GEMARA. Shall we say that it is only where he actually made utensils out of the pieces of wood [that the Mishnaic ruling will apply], whereas if he merely planed them this would not be so?2 Again, it is only where he made garments out of the wool that this will be so, whereas where he merely bleached it this would not be so! But could not a contradiction be raised from the following: 'One who misappropriated pieces of wood and planed them, stones and chiselled them, wool and bleached it or flax and cleansed it, would have to pay in accordance with [the value] at the time of the robbery'?3 - Said Abaye: The Tanna of our Mishnah stated the ruling where the change [in the article misappropriated] is only such as is recognised by the Rabbis, that is, where it can still revert [to its former condition] and of course it applies all the more where the change is such4 as is recognised by the pentateuch:5 [for the expression ONE WHO MISAPPROPRIATES] PIECES OF WOOD AND MAKES OUT OF THEM UTENSILS refers to pieces of wood already planed, such as ready-made boards, in which a reversion to the previous condition is still possible, since if he likes he can easily pull the boards out [and thus have them as they were previously]; PIECES OF WOOL AND MADE GARMENTS OUT OF THEE also refers to wool which was already spun, in which [similarly] a reversion to the previous condition is possible, since if he likes he can pull out the threads and restore them to the previous condition; the same law would apply all the more in the case of a change [where the article could no more revert to the previous condition and] which would thus be recognised by the pentateuch.5 But the Tanna of the Baraitha deals only with a change [where the article could no more revert to its previous condition and] which would thus be recognised by the pentateuch, but does not deal with a change [in which the article could revert to its previous condition and which would be] recognised only by the Rabbis. R. Ashi, however, said: The Tanna of our [Mishnah also] deals with a change which would be recognised by the pentateuch, for by PIECES OF WOOD AND MAKES UTENSILS OUT OF THEM he means clubs, which were changed by planing them; by PIECES OF WOOL AND MAKES GARMENTS OUT OF THEM he similarly means felt cloths, which involves a change that can no more revert to its previous condition.
But should bleaching be considered a change?6 Could no contradiction be raised [from the following]: 'If the owner did not manage to give the first of the fleece to the priest until it had already been dyed, he would be exempt,7 but if he only bleached it without having dyed it, he would still be liable'?8 - Said Abaye: This is no difficulty, as the former statement is in accordance with R. Simeon and the latter in accordance with the Rabbis; for it was taught: 'If after the owner had shorn his sheep he span the wool or wove it, this portion would not be taken into account9 [with the other wool which was still left in a raw state];10 but if he only purified it, R. Simeon says: It would [still] not be taken into account, whereas the Sages say that it would be taken into account. But Raba said that both statements might be in accordance with R. Simeon, and there would still be no difficulty, as in one case11 [the process of bleaching was] by beating the wool [where no actual change took place], whereas in the other case12 the wool was corded with a comb. R. Hiyya b. Abin said that in one case11 the wool was merely washed [so that no actual change took place]. whereas in the other12 it was whitened with sulphur. But since even dyeing is according to R. Simeon not considered a change, how could bleaching be considered a change, for was it not taught: 'Where the owner had shorn one sheep after another and in the interval dyed the [respective] fleeces, [or shorn] one after another and in the interval spun the wool, [or shorn] one after another and in the interval wove the wool, this portion would not be taken into account,9 but R. Simeon b. Judah said in the name of R. Simeon13 that if he [only] dyed the wool it would be taken into account'?14 - Said Abaye: There is no difficulty, as the former statement was made by the Rabbis according to R. Simeon whereas the latter15 was made by R. Simeon b. Judah according to R. Simeon. But Raba said: You may still say that the Rabbis did not differ from R. Simeon b. Judah on this point,16 for dyeing might be different, the reason being that since the colour could be removed by soap, [it is not considered a change], and as to the statement made there, 'If the owner did not manage to give the first of his fleece to the priest until it had already been dyed he would be exempt' which has been stated to be accepted unanimously, this deals with a case where it was dyed with indigo [which could not be removed by soap].
Abaye said: R. Simeon b. Judah, Beth Shammai, R. Eliezer b. Jacob. R. Simeon b. Eleazar and R. Ishmael all maintain that a change leaves the article in its previous status: R. Simeon b. Judah here in the text quoted by us; but what about Beth Shammai? - As it was taught:17 'Where he gave her as her hire wheat of which she made flour, or olives of which she made oil, or grapes of which she made wine,' one [Baraitha] taught that 'the produce is forbidden to be sacrificed upon the altar,' whereas another [Baraitha] taught 'it is permitted'. and R. Joseph said: Gorion
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(1) I.e., of the pieces of wood and wool but not of the utensils and garments respectively, as by the change which took place he acquired title to them; cf. supra p. 384.
(2) I.e., the ownership would thereby not be transferred to the robber.
(3) The reason being that through the change which took place the ownership was transferred.
(4) I.e., where the article can no longer revert to its former condition; v. supra p. 386.
(5) To transfer ownership.
(6) In regard to which it was stated in the Baraitha that the robber will thereby acquire title to the wool.
(7) As by this change the original obligation was annulled and the owner acquired unqualified and absolute right to the wool.
(8) Hul. XI, 2; v. supra p. 382. Does not this prove that mere bleaching unlike dyeing does not constitute a change?
(9) In regard to the first fleece offering the minimum of which is according to R. Dosa b. Harkinas the weight of seven maneh and a half collected equally from not less than five sheep, but according to the Rabbis one maneh and a half collected equally from the same number of sheep would suffice; cf. Hul. XI, 2. A maneh amounts to twenty-five sela's; for Samuel's view according to the Rabbis cf ibid. 137b.
(10) On account of the change which had been made.
(11) Not considering it a change.
(12) Considering it a change.
(13) I.e., R. Simeon b. Yohai; cf. Sheb. 2b.
(14) This shows that R. Simeon b. Yohai does not consider dyeing a change, much less bleaching.
(15) v. p. 443. n. 5.
(16) As to the view of R. Simeon b. Yohai on this matter.
(17) For notes on passage following v. supra p. 380.of Aspurak taught: 'Beth Shammai prohibit the produce to be used as sacrifices, whereas Beth Hillel permit it.' Now, what was the reason of Beth Shammai? - Because it is written gam, to include their transformation. But Beth Hillel maintains that hem implies only them and not their transformations. Beth Shammai, however, maintains that though hem is written, what it implies is 'them and not their offsprings'. Beth Hillel still argue that you can understand both points from it: 'them and not their transformations, them and not their offsprings.' But how could Beth Hillel explain the insertion of gam? Gam offers a difficulty according to the view of Beth Hillel.
What about R. Eliezer b. Jacob? - As it was taught:1 R. Eliezer b. Jacob says: If one misappropriated a se'ah2 of wheat and kneaded it and baked it and set aside a portion of it as hallah,3 how would he be able to pronounce the benediction?4 He would surely not be pronouncing a blessing but pronouncing a blasphemy, as to such a one could be applied the words: The robber pronounceth a benediction [but in fact] contemneth the Lord.5
What about R. Simeon b. Eleazar? - As it was taught: This principle was stated by R. Simeon b. Eleazar: In respect of any improvement carried out by the robber, he would have the upper hand; if he wishes he can take the improvement, or if he wishes he may say to the plaintiff: 'Here take your own.' What is meant by this [last] statement?6 - Said R. Shesheth: This is meant: Where the article has been improved, the robber may take the increased value, but where it has deteriorated he may say to him: 'Here, take your own,' as a change leaves the article in its previous status. But if so why should it not be the same even in the case where the article was improved? We may reply, in order to make matters easier for repentant robbers.7
What about R. Ishmael? - It was taught:8 [Strictly speaking,] the precept of Pe'ah9 requires that it should be set aside from standing crops. If, however, the owner did not set it aside from standing crops he should set it aside from the sheaves; so also if he did not set it aside from the sheaves he should set it aside from the heap [in his store] so long as he has not evened the pile. But if he had already evened the pile10 he would have first to tithe it and then set aside the Pe'ah for the poor. Moreover, In the name of R. Ishmael it was stated that the owner would even have to set it aside from the dough and give it to the poor.11 Said R. papa to Abaye: Why was it necessary to repeat and bring together all these Tannaitic statements for the sole purpose of making us know that they concurred with Beth Shammai?12 - He replied: It was for the purpose of telling us that Beth Hillel and the Beth Shammai did probably not differ at all on this matter. But Raba said: What ground have we for saying that all these Tannaim follow one view? Why not perhaps say that R. Simeon b. Judah meant his statement there13 to apply only to the case of dyeing on account of the fact that the colour could be removed by soap, and so also did Beth Shammai mean their view there to apply only to a religious offering because it looks repulsive, or again that R. Eliezer b. Jacob meant his statement there to apply only to a benediction on the ground that it was a precept performed by the means of a transgression,14 and so also did R. Simeon b. Eleazar mean his view there to apply only to a deterioration which can be replaced, or again R. Ishmael meant his view there to apply only to the law of Pe'ah, on account of the repeated expression. 'Thou shalt leave'?15 If however you argue that we should derive the law16 from the latter case,17 [it might surely be said that] gifts to the poor are altogether different,18 as is shown by the question of R. Jonathan. For R. Jonathan asked concerning the reason of R. Ishmael: 'Was it because he held that a change does not transfer ownership, or does he as a rule hold that a change would transfer ownership, but here it is different on account of the repeated expression, Thou shalt leave'!19
But if you find ground for assuming that the reason of R. Ishmael was because a change does not transfer ownership, why then did the Divine Law repeat the expression 'Thou shalt leave'?15 Again, according to the Rabbis, why did the Divine Law repeat the expression 'Thou shalt leave'? - This [additional] insertion was necessary for that which was taught:20 If a man after renouncing the ownership of his vineyard gets up early on the following morning and cuts off the grapes, he will be subject to the laws of Peret, 'Oleloth, Forgetting and Pe'ah,21 but will be exempt from tithes.
Rab Judah said that Samuel stated that the halachah is in accordance with R. Simeon b. Eleazar.22 But did Samuel really say so? Did not Samuel state that assessment of the carcass is made neither in cases of theft nor of robbery, but only of damage?23 I grant you that according to Raba who said that the statement made there by R. Simeon b. Eleazar related only to a deterioration where a recovery would still be possible, there would be no difficulty since Samuel in his statement that the halachah is in accordance with R. Simeon b. Eleazar [who holds] that a change leaves the article in its previous status, referred to the case of deterioration where a recovery would still be possible, whereas the statement made there23 by Samuel that assessment of the carcass is made neither in the case of theft nor of robbery but only of damage would apply to deterioration where no recovery seems possible. But according to Abaye who said that the statement made by R. Simeon b. Eleazar [also] referred to deterioration where a recovery is no more possible, how can we get over the contradiction? - But Abaye might read thus: Rab Judah said that Samuel stated:
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(1) Cf. Sanh. 6b.
(2) V. Glos.
(3) I.e., the priestly portion set aside from dough. cf. Num. XV, 19-21.
(4) According to Asheri on Ber. 45a it refers to the grace over the meal.
(5) Ps. X. 3; [E.V.: And the covetous renounceth, yea, contemneth the Lord. In spite of the many changes the wheat had undergone it is still not his and not fit to have a blessing uttered over it.]
(6) For in the case of improvement it is surely not in the interests of the robber to plead, 'Here is thine before thee.'
(7) Cf. supra p. 383 and infra 547.
(8) Sanh. 68a; Mak. 16b.
(9) 'The corners of the field', cf. Lev. XIX. 9.
(10) When the grain becomes subject to the law of tithing; cf. Ber. 40b and Ma'as. I, 6.
(11) In spite of the many changes which had been made.
(12) Whose views have generally not been accepted; cf. 'Er. 13b.
(13) Regarding the dyeing of the wool which was subject to the law of the first of the fleece to be set aside for the priest.
(14) v. Ber. 47b.
(15) Lev. XIX. 10 and XXIII, 22 - implying in all circumstances.
(16) That change does not transfer ownership.
(17) I.e., from the law of Pe'ah.
(18) [Adreth. S., Hiddushim, improves the text by omitting: 'If however . . . different.']
(19) [This concludes Raba's argument. V. Adreth, loc. cit.]
(20) For notes v. supra pp. 148-9.
(21) On account of the repeated 'Thou shalt leave'.
(22) That in cases of deterioration the robber will be entitled to say. 'Here there is thine before thee.'
(23) Explained supra p. 44.They said that the halachah is in accordance with R. Simeon b. Eleazar though Samuel himself did not agree with this.
R. Hiyya b. Abba said that R. Johanan stated that according to the law of the Torah a misappropriated article should even after being changed be returned to the owner in its present condition, as it is said: He shall restore that which he took by robbery1 - in all cases. And should you cite against me the Mishnaic ruling,2 my answer is that this was merely an enactment for the purpose of making matters easier for repentant robbers.3 But did R. Johanan really say this? Did R. Johanan not say4 that the halachah should be in accordance with an anonymous Mishnah, and we have learnt: 'If the owner did not manage to give the first of the fleece to the priest until it had already been dyed, he is exempt'?5 - But a certain scholar of our Rabbis whose name was R. Jacob said to them: 'This matter was explained to me by R. Johanan personally, [that his statement referred only to a case] where, e.g., there were misappropriated planed pieces of wood out of which utensils were made, as after such a change the material could still revert to its previous condition.6
Our Rabbis taught: 'If robbers or usurers [repent and of their own free will] are prepared to restore [the misappropriated articles], it is not right to accept [them] from them, and he who does accept [them] from them does not obtain the approval of the Sages.'7 R. Johanan said: It was in the days of Rabbi that this teaching was enunciated, as taught: 'It once happened with a certain man who was desirous of making restitution that his wife said to him, Raca, if you are going to make restitution, even the girdle [you are wearing] would not remain yours, and he thus refrained altogether from making repentance. It was at that time that it was declared that if robbers or usurers are prepared to make restitution it is not right to accept [the misappropriated articles] from them, and he who accepts from them does not obtain the approval of the Sages.'
An objection was raised [from the following:] 'If a father left [to his children] money accumulated by usury, even if the heirs know that the money was [paid as] interest, they are not liable to restore the money [to the respective borrowers].8 Now, does this not imply that it is only the children who have not to restore, whereas the father would be liable to restore?9 The law might be that even the father himself would not have had to restore, and the reason why the ruling was stated with reference to the children10 was that since it was necessary to state in the following clause 'Where the father left them a cow or a garment or anything which could [easily] be identified, they are liable to restore [it], in order to uphold the honour of the father,' the earlier clause similarly spoke of them. But why should they be liable to restore11 in order to uphold the honour of the father? Why not apply to them [the verse] 'nor curse the role, of thy people',12 [which is explained to mean.] 'so long as he is acting in the spirit of 'thy people'?13 - As however, R. Phinehas [elsewhere]14 stated, that the thief might have made repentance, so also here we suppose that the father had made repentance. But if the father made repentance, why was the misappropriated article still left with him? Should he not have restored it?15 - But it might be that he had no time to restore it before he [suddenly] died.
Come and hear: Robbers and usurers even after they have collected the money must return it.16 But what collection could there have been in the case of robbers. for surely if they misappropriated anything they committed robbery, and if they had not misappropriated anything they were not robbers at all? It must therefore read as follows: 'Robbers, that is to say usurers, even after they have already collected the money, must return it.'17 - It may, however, be said that though they have to make restitution of the money it would not be accepted from them. If so why have they to make restitution? - [To make it quite evident that out of their own free will] they are prepared to fulfil their duty before Heaven.18
Come and hear: 'For shepherds, tax collectors and revenue farmers it is difficult to make repentance, yet they must make restitution [of the articles in question] to all those whom they know [they have robbed].19 - It may, however, [also here] be said that though they have to make restitution, it would not be accepted from them. If so why have they to make restitution? - [To make it quite evident that out of their free will] they are prepared to fulfil their duty before Heaven. But if so why should it be difficult for them to make repentance?20 Again, why was it said in the concluding clause that out of articles of which they do not know the owners they should make public utilities,21 and R. Hisda said that these should be wells, ditches and caves?22 - There is, however, no difficulty, as this teaching23 was enunciated before the days of the enactment,24 whereas the other statements were made after the enactment. Moreover, as R. Nahman has now stated that the enactment referred only to a case where the misappropriated article was no more intact, it may even be said that both teachings were enunciated after the days of the enactment, and yet there is no difficulty,
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(1) Lev. V. 23.
(2) That payment is made in accordance with the value at the time of robbery.
(3) v. p. 545. n. 6.
(4) Shab. 46a and supra p. 158.
(5) For notes v. supra p. 382. [This shows that change transfers ownership even where the consideration of penitents does not apply.]
(6) [In which case but for the consideration of penitent robbers, change transfers no ownership. Where the change. however, cannot be reverted, it confers unqualified ownership.]
(7) Rashi renders 'no spirit of wisdom and piety resides in him', but see also Tosaf. Yom Tob. Aboth III, 10.
(8) Tosef. B.M. V, 8.
(9) [Whereas above it is stated that the monies thus returned are not accepted.]
(10) And not to the father himself
(11) In the case dealt with in the concluding clause.
(12) Ex. XXII, 27.
(13) Excluding him who wilfully violates the laws of Israel.
(14) Hag. 26a.
(15) [I.e. not to retain it with him, despite the refusal of the owners to accept it (v. Tosaf.).]
(16) B.M. 62a.
(17) Does this not prove that the misappropriated money if restored would be accepted from them?
(18) As it is only in such a case that the restored money will not be accepted.
(19) Tosef B.M. VIII. Does this not prove that misappropriated articles if restored would be accepted?
(20) Since no actual restitution will have to be made.
(21) Cf. Az. 29a.
(22) And thus provide water to the general public among whom the aggrieved persons are to be found.
(23) Where actual restitution is implied.
(24) Which was ordained in the days of Rabbi.as the latter deals with a case where the misappropriated article is still intact whereas the other teaching refers to a case where the misappropriated article is no more intact. But what about the girdle [referred to above],1 in which case the misappropriated article was still intact? - What was meant by 'girdle' was the value of the girdle. But is it really the fact that so long as the misappropriated article was intact our Rabbis did not make this enactment?2 What then about the beam in which case the misappropriated article was still intact and we have nevertheless learnt: [R. Johanan b. Gudgada testified] that if a misappropriated beam has been built into a house, the owner will recover only its value?3 - That matter is different altogether, for since the house would otherwise be damaged. the Rabbis regarded the beam as being no longer intact.4
IF ONE MISAPPROPRIATED A PREGNANT COW WHICH MEANWHILE GAVE BIRTH [TO A CALF] etc. Our Rabbis taught: 'He who misappropriates a sheep and shears it, or a cow which has meanwhile given birth [to a calf], has to pay for the animal and the wool and the calf;5 this is the view of R. Meir. R. Judah says that the misappropriated animal will be restored intact.6 R. Simeon says that the animal will be considered as if it had been insured with the robber for its value [at the time of the robbery].' The question was raised: What was the reason of R. Meir? Was it because he held that a change leaves the article in its existing status?7 Or [did he hold] in general that a change would transfer ownership, but here he imposes a fine [upon the robber], the practical difference being where the animal became leaner?8 - Come and hear: If one misappropriated an animal and it became old, or slaves and they became old, he would still have to pay according to [their value at]9 the time of the robbery, but R. Meir said that in the case of slaves10 [the robber] would be entitled to say to the plaintiff: 'Here, take your own.'11 It thus appears that in the case of an animal [even R. Meir held that] the payment would have to be in accordance with [the value at] the time of the robbery.9 Now, if you assume that R. Meir was of the opinion that a change leaves the article in its previous status,12 why even in the case of an animal [can the robber not say. 'Here, take your own']? Does this therefore not prove that even R. Meir held that a change would transfer ownership, and that [in the case of the wool and the calf] it was only a fine which R. Meir imposed on the robber? - It may, however, be said that R. Meir was arguing from the premises of the Rabbis, thus: According to my view a change does not transfer ownership, so that also in the case of an animal [the robber would be entitled to say. 'Here, take your own'], but even according to your view, that a change does transfer ownership, you must at least agree with me in the case of slaves, who are compared to real property, and, as we know, real property is not subject to the law of robbery.13 The Rabbis, however, answered him: 'No, for slaves are on a par with movables [in this respect].'14
Come and hear: [If wool was handed over to a dyer] to dye it red but he dyed it black, or to dye it black but he dyed it red, R. Meir says that he would have to pay [the owner of the wool] for the value of the wool.15 [It thus appears that] he had to pay only for the original value of the wool but not for the combined value of the wool and the improvement [on account of the colour]. Now, if you suppose that R. Meir held that a change would not transfer ownership, why should he not have to pay for the combined value of the wool and the improvement? Does this therefore not prove that R. Meir held that a change would transfer ownership and that here [in the case of the calf] it was only a fine that R. Meir imposed [upon the robber]? - This could indeed be proved from it. Some even say that this question was never so much as raised; for since Rab transposed [the names in the Mishnah] and read thus: If one misappropriated a cow which became old, or slaves who became old, he would have to pay in accordance with [the value at] the time of the robbery;16 this is the view of R. Meir, whereas the Sages say that in the case of slaves the robber would be entitled to say, Here, take your own',16 it is quite certain that according to R. Meir a change would transfer ownership, and that here [in the case of a calf] it was only a fine that R. Meir imposed [upon the robber]. But if a question was raised, it was this: Was the fine imposed only in the case of wilful misappropriation whereas in the case of inadvertent misappropriation17 the fine was not imposed, or perhaps even for inadvertent misappropriation the fine was also imposed? - Come and hear: Five [kinds of creditors] are allowed to distrain only on the free assets [of the debtor];18 they are as follows: [creditors for] produce,19 for Amelioration showing profits,20 for an undertaking to maintain the wife's son or the wife's daughter,21 for a bond of liability without a warranty of indemnity22 and for the kethubah of a wife where no property is made security.22 Now, what authority have you heard lay down that the omission to make the property security22 is not a mere scribal error23 if not R. Meir?24 And it is yet stated: 'Creditors for produce and Amelioration showing profits [may distrain on free assets in the hands of the debtor].' Now, who [are creditors for Amelioration showing] profits?25 They come in, do they not, where the vendor has misappropriated a field from his fellow and sold it to another who ameliorated it and from whose hands it was subsequently taken away. [The law then is that] when the purchaser comes to distrain
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(1) Supra p. 548.
(2) And the actual article would have to be restored.
(3) Cit. V, 5; 'Ed. VII, 9' and supra p. 385.
(4) And the actual beam would not have to be restored. Its value will, however, be paid on account of the fact that the beam was actually in the house.
(5) [The payment, that is to say, will have to be made for the combined value of the calf and wool and the improvement.] Cf. B.M. 43b.
(6) [I.e., in the state it is at the time of payment. The robber will, however, have to make up in money for the difference in the value of the cow as it stood at the time of the robbery. The difference between R. Simeon and R. Judah will be explained anon.]
(7) And no ownership could thereby be transferred.
(8) Where according to the former consideration the robber would escape further liability by restoring the animal, but according to the latter he would have to pay for the difference.
(9) As the change transferred the ownership to the robber.
(10) Who are subject to the law applicable to immovables.
(11) Mishnah, infra p. 561.
(12) And no ownership could thereby be transferred.
(13) Cf. Suk. 30b and 32a.
(14) Cf. supra 12a.
(15) For by acting against the instructions of the owner he rendered himself liable to the law of robbery; Mishnah infra 100b.
(16) V. infra p. 561.
(17) As in the case of the dyer, supra p. 552.
(18) But not if the landed property is already in the hands of a third party such as a purchaser and the like.
(19) Such as where a field full of produce was taken away in the hands of a purchaser through the fault of the vendor: the amount due to the purchaser for his loss of the actual field could be recovered even from property already in the hands of (subsequent) purchasers, whereas the amount due to him for the value of the produce he lost could be recovered only from property still in the hands of the vendor; cf. Git. V, I and B.M. 14b.
(20) Such as where the purchaser spent money on improving the ground which was taken away from him through the fault of the vendor.
(21) Cf. also Keth. XII, 1.
(22) I.e., where the particular clause making the property security was omitted in the document. V. Keth. 51b.
(23) But has legal consequences.
(24) V. B.M. I, 6 and ibid. 14a.
(25) Lit., 'how is this possible?'he will do so for the principal even on [real] property that has been sold, but for the Amelioration only on assets which are free [in the hands of the vendor]. [But this is certain,] that the owner of the field is entitled to come and take away the field together with the increment. Now, do we not deal here with a purchaser who was ignorant of the law and did not know whether real property is subject to the law of robbery or is not subject to the law of robbery?1 And even in such a case the owner of the field will be entitled to come and take away the land together with the increment. Does not this show that even in the case of inadvertent misappropriation,2 [R. Meir] would impose the fine? - It may however be said that this is not so, [as we are dealing here] with a purchaser who is a scholar and knows very well3 [that real property is not subject to the law of robbery].1
Come and hear: [If wool was handed over to a dyer] to dye it red but he dyed it black, or to dye it black and he dyed it red, R. Meir says that he would have to pay [the owner of the wool] for the value of the wool.4 [It thus appears that he has to pay] only for the original value of the wool but not for the combined value of the wool and the improvement [on account of the colour]. Now, if you assume that R. Meir would impose the fine even in the case of inadvertent misappropriation why should he not have to pay for the combined value of the wool and the improvement? Does this not prove that it is only in the case of wilful misappropriation that the fine is imposed but in the case of inadvertent misappropriation the fine would not be imposed? - This could indeed be proved from it.
'R. Judah says that the misappropriated [animal] will be restored intact. R. Simeon says that the animal be considered as if it had been insured with the robber for its value [at the time of the robbery].' What is the practical difference between them?5 - Said R. Zebid: They differ regarding the increased value [still] attaching to the misappropriated article. R. Judah maintained that this would belong to the plaintiff6 whereas R. Simeon was of the opinion that this would belong to the robber.7 R. papa, however, said that both might agree that an increased value [still] attaching to the misappropriated article should not solely belong to the plaintiff,8 but where they differed was as to whether the robber should be entitled to retain a half or a third or a fourth9 for [his attending to the welfare of the article]. R. Judah maintaining that an increased value [still] attaching to the misappropriated article would belong solely to the robber,10 whereas R. Simeon maintained that the robber would be paid only to the extent of a half, a third or a fourth.
We have learnt: 'BUT IF HE MISAPPROPRIATED A COW WHICH BECAME PREGNANT WHILE WITH HIM AND THEN GAVE BIRTH, OR A SHEEP WHICH WHILE WITH HIM GREW WOOL WHICH HE SHEARED, HE WOULD PAY IN ACCORDANCE WITH [THE VALUE AT] THE TIME OF THE ROBBERY.' That is so only if the cow has already given birth, but if the cow has not given birth yet it would be returned as it is. This accords well with the view of R. Zebid who said that an increased value still attaching to the misappropriated article would according to R. Judah belong to the plaintiff; I [the Mishnah] would then be in accordance with R. Judah. But on the view of R. papa who said that it would belong to the robber,10 it would be in accordance neither with R. Judah nor with R. Simeon? - R. Papa might say to you that the ruling [stated in the text] would apply even where the cow has not yet given birth, as even then he would have to pay in accordance with [the value at] the time of the robbery. For as for the mention of 'giving birth', the reason is that since the earlier clause contains the words 'giving birth', the later clause similarly mentions 'giving birth'. It was taught in accordance with R. papa: 'R. Simeon says that [the animal] is to be considered as if its pecuniary value had been insured with the robber, [who will however be paid] to the extent of a half, a third or a fourth [of the increase In value].'11
R. Ashi said: When we were at the School of R. Kahana, a question was raised with regard to the statement of R. Simeon that the robber will be paid to the extent of a half, a third or a fourth [of the increase in value] whether at the time of his parting with the misappropriated article he can be paid in specie, or is he perhaps entitled to receive his portion out of the body of the misappropriated animal. The answer was found in the statement made by R. Nahman in the name of Samuel: 'There are three cases where increased value will be appraised and paid in money. They are as follow's: [In the settlement of accounts] between a firstborn and a plain son,12 between a creditor and a purchaser.13 and between a creditor13 and heirs.'14 Said Rabina to R. Ashi: Did Samuel really say that a creditor will have to pay the purchaser for increased value? Did Samuel not state15 that a creditor distrains even on the increment?16 - He replied: There is no difficulty, as the former ruling applies to an increment which could reach the shoulders to be carried away.17 whereas the latter ruling deals with an increment which could not reach the shoulders to be carried away.18 He rejoined:19 Do not cases happen every day where Samuel distrains even on an increment which could reach the shoulders to be carried away? - He replied: There is still no difficulty,
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(1) V. p. 552. n. 1.
(2) Such as was the case here with the purchaser.
(3) Also that the field has been misappropriated by the vendor (cf. Shittah Mekubezeth a.l.) and as such is guilty of wilful misappropriation.
(4) V. Mishnah infra 100b.
(5) I.e., R. Judah and R. Simeon.
(6) Since the article has to be restored intact.
(7) [Since the payment is made according to the value at the time of the robbery.]
(8) Lit., 'should belong to the robber', but which means that it will not solely belong to the plaintiff, as will soon become evident in the text.
(9) I.e., in accordance with the definite percentage in the profits fixed in a given province to be shared by a contractor for his care and attendance to the welfare of the article in question; cf. B.M. V, 4-5.
(10) As the expression 'intact' means intact as it was at the time of the robbery.
(11) V. p. 555. n. 4.
(12) As the firstborn son has two portions in the estate as it was left at the time of the death of the father, but only one portion in the increased value due to amelioration after the father's death, so that by taking two portions in the estate the firstborn would have to pay back the other sons their appropriate portions in the increased value of the additional portion taken by him; cf. B.B. 124a.
(13) I.e., a creditor distraining on a field that originally belonged to his debtor but which was subsequently disposed of or inherited by heirs and the purchaser or heirs increased its value by amelioration.
(14) V. B.M. 110b.
(15) B.M. ibid. and 14b; Bk. 42a.
(16) Without paying for it, v. B.M. ibid.
(17) As where the produce is quite ripe and could be separated from the ground in which case it is the property of the purchaser. V. B.B. (Sonc. ed.) p. 183. n. 3.
(18) I.e., which is inseparable from the ground and which is distrained on together with the field by the creditor.
(19) I.e., Rabina to R. Ashi.as this is so only where the amount of the debt owing to the creditor covers both the land and the increment,whereas the former ruling1 applies where [the debt due to him] is only to the extent of the land. He rejoined: I grant you that on the view2 that [even] if the purchaser possesses money he has no right to bar the creditor from land by paying in specie, your argument would be sound, but according to the view that a purchaser possessing money can bar the creditor from the field by paying him in specie, why should he not say to the creditor, 'If I had had money, I would surely have been able to bar you from the whole field [by paying you in specie]; now also therefore I am entitled to be left with a griva3 of land corresponding to the value of my amelioration'?4 - He replied: We are dealing here with a case where the debtor expressly made that field a security, as where he said to him: 'You shall not be paid from anything but from the field.'5
Raba stated: [There is no question] that where the robber improved [the misappropriated article] and then sold it, or where the robber improved [the misappropriated article] and then left it to his heirs, he has genuinely sold or left to his heirs the increment he has created.6 Raba [however] asked: What would be the law where [after having bought the misappropriated article from the robber] the purchaser improved it? After asking the question he himself gave the answer: That what the former sold the latter, was surely all rights7 which might subsequently accrue to him.6
Raba [again] asked: What would be the law where a heathen8 [misappropriated an article and] improved it? - Said R. Aha of Difti to Rabina: Shall we trouble ourselves to make an enactment9 for [the benefit of] a heathen? - He said to him: No; the query might refer to the case where. e.g., he sold it to an Israelite. [But he retorted:] Be that as it may, he who comes to claim through a heathen [predecessor], could surely not expect better treatment than the heathen himself. - No: the query could still refer to the case where, e.g., an Israelite had misappropriated an article and sold it to a heathen who improved it and who subsequently sold it to another Israelite. What then should be the law? Shall we say that since an Israelite was in possession at the beginning and an Israelite was in possession at the end, our Rabbis would also here make [use of] the enactment, or perhaps since a heathen intervened our Rabbis would not make [use of] the enactment? - Let it remain undecided.
R. papa stated: If one misappropriated a palm tree from his fellow and cut it down, he would not acquire title to it even though he threw it from [the other's] field into his own land, the reason being that it was previously called palm tree and is now also called palm tree.10 [So also] where out of the palm tree he made logs he would not acquire title to them, as even now they would still be called logs of a palm tree.10 It is only where out of the logs he made beams that he would acquire title to them.11 But if out of big beams he made small beams he would not acquire title to them,12 though were he to have made them into boards he would acquire title to them.11
Raba said: If one misappropriated a Lulab13 and converted it into leaves he would acquire title to them, as originally it was called Lulab whereas now they are mere leaves.11 So also where out of the leaves he made a broom he would acquire title to it, as originally they were leaves whereas now they form a broom,14 but where out of the broom he made a rope he would not acquire title to it since if he were to undo it, it would again become a broom.
R. papa asked: What would be the law where the central leaf15 of the Lulab became split? - Come and hear: R. Mathon said that R. Joshua b. Levi stated that if the central leaf of the Lulab was removed the Lulab would be disqualified [for ritual purposes].
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(1) Ordering payment for the amelioration.
(2) B.M. 15b and 110b.
(3) The size of a field needed for a se'ah of seed.
(4) Why then should the creditor distrain on the whole field together with the amelioration?
(5) In which case the purchaser can in no circumstance bar the creditor from the field.
(6) So that the purchaser (or heir) will be entitled to the half or third or quarter in profits to which the robber would have been entitled, according to the view of R. Simeon.
(7) Cf. supra p.32.
(8) Who neither respects nor feels bound by Rabbinic enactments.
(9) That according to R. Simeon payment is to be made for amelioration to the extent of a half or third or quarter.
(10) [The change involved does not confer ownership enabling him to make restitution by payment in money.]
(11) V. p. 552. n. 6.
(12) V. p. 552. n. 5.
(13) I.e., a palm branch used for the festive wreath on the Feast of Tabernacles in accordance with Lev. XXIII, 40.
(14) V. p. 543, n. 6.
(15) Cf. Suk. 32a and Rashi.Now, would not the same law apply where it was merely split?1 - No; the case where it was removed is different, as the leaf is then missing altogether. Some [on the other hand] read thus. Come and hear what R. Mathon said, that R. Joshua b. Levi stated that if the central leaf was split it would be considered as if it was altogether removed and the Lulab would be disqualified;1 which would solve [R. papa's question].
R. papa [further] said: If one misappropriated sand from another and made a brick out of it, he would not acquire title to it, the reason being that it could again be made into sand, but if he converted a brick into sand he would acquire title to it. For should you object that he could perhaps make the sand again into a brick, [it may be said that] that brick would be [not the original but] another brick, as it would be a new entity which would be produced.
R. Papa [further] said: If one misappropriated bullion of silver from another and converted it into coins, he would not acquire title to them, the reason being that he could again convert them into bullion, but if out of coins he made bullion he would acquire title to it. For should you object that he can again convert it into coins, [my answer is that] it would be a new entity which would be produced. If [the coins were] blackened and he made them look new he would thereby not acquire title to them,2 but if they were new and he made them black he would acquire title to them, for should you object that he could make them look again new, [it may be said that] their blackness will surely always be noticeable.
THIS IS THE GENERAL PRINCIPLE: ALL ROBBERS HAVE TO PAY IN ACCORDANCE WITH [THE VALUE OF THE MISAPPROPRIATED ARTICLES AT] THE TIME OF THE ROBBERY. What additional fact is the expression. THIS IS THE GENERAL PRINCIPLE intended to introduce? - It is meant to introduce that which R. Elai said: If a thief misappropriated a lamb which became a ram, or a calf which became an ox, as the animal underwent a change while in his hands he would acquire title to it, so that if he subsequently slaughtered or sold it, it was his which he slaughtered and it was his which he sold.3
A certain man who misappropriated a yoke of oxen from his fellow went and did some ploughing with them and also sowed with them some seeds and at last returned them to their owner. When the case came before R. Nahman he said [to the sheriffs of the court]: 'Go forth and appraise the increment [added to the field].' But Raba said to him: Were only the oxen instrumental in the increment, and did the land contribute nothing to the increment?4 - He replied: Did I ever order payment of the full appraisement of the increment? I surely meant only half of it. He, however, rejoined:5 Be that as it may, since the oxen were misappropriated they merely have to be returned intact, as we have indeed learnt: ALL ROBBERS HAVE TO PAY IN ACCORDANCE WITH [THE VALUE] AT THE TIME OF THE ROBBERY. [Why then pay for any work done with them?] - He replied: Did I not say to you that when I am sitting in judgment you should not make any suggestions to me, for Huna our colleague said with reference to me that I and 'King' Shapur6 are [like] brothers in respect of civil law? That person [who misappropriated the pair of oxen] is a notorious robber, and I want to penalise him.
MISHNAH. IF ONE MISAPPROPRIATED AN ANIMAL AND IT BECAME OLD, OR SLAVES AND THEY BECAME OLD, HE WOULD HAVE TO PAY ACCORDING TO [THE VALUE AT] THE TIME OF THE ROBBERY.7 R. MEIR, HOWEVER, SAYS THAT IN THE CASE OF SLAVES8 HE MIGHT SAY TO THE OWNER: HERE, TAKE YOUR OWN. IF HE MISAPPROPRIATED A COIN AND IT BECAME CRACKED, FRUITS AND THEY BECAME STALE OR WINE AND IT BECAME SOUR, HE WOULD HAVE TO PAY ACCORDING TO [THE VALUE AT] THE TIME OF THE ROBBERY.7 BUT IF THE COIN WENT OUT OF USE, THE TERUMAH9 BECAME DEFILED,10 THE LEAVEN FORBIDDEN [FOR ANY USE BECAUSE] PASSOVER HAD INTERVENED,11 OR IF THE ANIMAL [HE MISAPPROPRIATED] BECAME THE INSTRUMENT FOR THE COMMISSION OF A SIN12 OR IT BECAME OTHERWISE DISQUALIFIED FROM BEING SACRIFICED UPON THE ALTAR,13 OR IF IT WAS TAKEN OUT TO BE STONED,14 HE CAN SAY TO HIM: 'HERE, TAKE YOUR OWN.'
GEMARA. R. Papa said: The expression IT BECAME OLD does not necessarily mean that it actually became old, for [the same law would apply] even where it had otherwise deteriorated. But do we not expressly learn. IT BECAME OLD?15 - This indicates that the deterioration has to be equivalent to its becoming old, i.e., where it will no more recover health. Mar Kashisha, the son of R. Hisda, said to R. Ashi: It has been expressly stated in the name of R. Johanan that even where a thief misappropriated a lamb which became a ram, or a calf which became an ox,16 since the animal underwent a change while in his hands he would acquire title to it, so that if he subsequently slaughtered or sold it, it was his which he slaughtered and it was his which he sold.17 He said to him: Did I not say to you that you should not transpose the names of scholars?18 That statement was made in the name of R. Elai.19
R. MEIR, HOWEVER. SAYS THAT IN THE CASE OF SLAVES HE MIGHT SAY TO THE OWNER, 'HERE TAKE YOUR OWN.' R. Hanina b. Abdimi said that Rab stated that the halachah is in accordance with R. Meir. But how could Rab abandon the view of the Rabbis20 and act in accordance with R. Meir? - It may, however, be said that he did so because in the text of the [relevant] Baraitha the names were transposed. But again how could Rab abandon the text of the Mishnah and act in accordance with the Baraitha?21 - Rab, even in the text of our Mishnah, had transposed the names. But still what was the reason of Rab for transposing the names in the text of the Mishnah because of that of the Baraitha? Why not, on the contrary, transpose the names in the text of the Baraitha because of that of our Mishnah? - It may be answered that Rab, in the text of our Mishnah too, was taught by his masters to have the names transposed. Or if you like I may say that [the text of a Mishnah] is not changed [in order to be harmonised with that of a Baraitha] only in the case where there is one against one, but where there is one against two,22 it must be changed [as is indeed the case here]; for it was taught:23 If one bartered a cow for an ass and [the cow] gave birth to a calf [approximately at the very time of the barter], so also if one sold his handmaid and she gave birth to a child [approximately at the time of the sale], and one says that the birth took place while [the cow or handmaid was] in his possession and the other one is silent [on the matter], the former will obtain [the calf or child as the case may be], but if one said 'I don't know', and the other said 'I don't know', they would have to share it. If, however, one says [that the birth took place] when he was owner and the other says [that it took place] when he was owner, the vendor would have to swear that the birth took place when he was owner [and thus retain it], for all those who have to take an oath according to the law of the Torah, by taking the oath release themselves from payment;24 this is the view of R. Meir. But the Sages say that an oath can be imposed neither in the case of slaves nor of real property.25 Now [since the text of our Mishnah should have been reversed,26 why did Rab27 state that] the halachah is in accordance with R. Meir? Should he not have said that the halachah is in accordance with the Rabbis?27 - What he said was this: According to the text you taught with the names transposed, the halachah is in accordance with R. Meir.27
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(1) [Should it be disqualified, it would, if occurring whilst in the possession of the robber, be considered a change and confer ownership.]
(2) V. p. 543. n. 5.
(3) Supra 379.
(4) Why then should the whole amount of the increase due to the amelioration be paid to the plaintiff?
(5) Raba to R. Nahman.
(6) Meaning Samuel, who was a friend of the Persian King Shapur I, and who is sometimes referred to in this way; cf. B.B. 115b. [To have conferred the right of bearing the name of the ruling monarch, together with the title 'tham', 'mighty'. was deemed the highest honour among the Persians, and 'Malka', 'King'. is apparently the Aramaic counterpart of the Persian title 'Malka' (v. Funk, Die Juden in Babylonien. I, 73). On Samuel's supreme authority in Babylon in matters of civil law, v. Bek. 49b.]
(7) As the change transferred the ownership to him.
(8) Who are subject to the law applicable to immovables, where the law of robbery does not apply.
(9) V. Glos.
(10) And thus unfit as food; cf. Shab. 25a.
(11) Cf. Pes. II. 2.
(12) Such as in Lev. XVIII, 23; cf. also supra p. 229.
(13) Such as through a blemish, hardly noticeable, as where no limb was missing; cf. Zeb. 35b and 85b; v. also Git. 56a.
(14) As in the case of Ex. XXI. 28.
(15) In which a temporary deterioration could hardly be included.
(16) [Although there is an inevitable and natural change.]
(17) [And he would be exempt from the threefold and fourfold restitution.]
(18) Lit., 'people'.
(19) And not in that of R. Johanan: supra p. 379.
(20) The representatives of the anonymous view of the majority cited first in the Mishnah.
(21) In accordance with the anonymous view of the majority cited in the Baraitha.
(22) I.e., where two Baraithas are against the text of one Mishnah.
(23) B.M. 100a, q.v. for notes.
(24) Shebu. VII, 1.
(25) Cf. Shebu. VI, 5. It is thus evident that it was the majority of the Rabbis and not R. Meir who considered slaves to be subject to the law of real property.
(26) In which case it was the Rabbis who maintained that slaves are subject to the law of real property.
(27) Meaning that slaves are on the same footing as real property.But did Rab really say that slaves are on the same footing as real property? Did R. Daniel b. Kattina not say that Rab stated that if a man forcibly seizes another's slave and makes him perform some work, he would be exempt from any payment?1 Now, if you really suppose that slaves are on the same footing as real property. why should he be exempt? Should the slave not be considered as still being in the possession of the owner?2 - We are dealing there3 with a case [where he took hold of the slave at a time] when [the owner] usually required no work from him, exactly as R. Abba sent to Mari b. Mar, saying. 'Ask R. Huna whether a person who stays in the premises4 of another without his knowledge must pay him rent or not, and he sent him back reply that 'he is not liable to pay him rent'.5 But what comparison is there? There is no difficulty [in that case]6 as if we follow the view that premises which are inhabited by tenants keep in a better condition,5 [we must say that] the owner is well pleased that his house be inhabited. or again if we follow the view5 that the gate is smitten unto roll,7 [we can again say that] the owner benefited by it. But here [in this case]8 what owner could be said to be pleased that his slave became reduced [by overwork]? - It may, however, be said that here9 also it may be beneficial to the owner that his slave should not become prone to idleness.
Some at the house of R. Joseph b. Hama used to seize slaves of people who owed them money, and make them perform some work. Raba his son said to him: Why do you, Sir, allow this to be done? - He thereupon said to him: Because R. Nahman stated that the [work of the] slave is not worth the bread he eats. He rejoined:10 Do we not say that R. Nahman meant his statement only to apply to one like Daru his own servant who was a notorious dancer in the wine houses, whereas with all other servants who do some work [the case is not so]? - He however said to him: I hold with R. Daniel b. Kattina, for R. Daniel b. Kattina said that Rab stated that one who forcibly seizes another's slave and makes him perform some work would be exempt from any payment, thus proving that this is beneficial to the owner, by preventing his slave from becoming idle. He replied:10 These rulings [could apply] only where he has no money claim against the owner, but [in your case], Sir, since you have a money claim against the owner, it looks like usury, exactly as R. Joseph b. Manyumi said [namely] that R. Nahman stated that though the Rabbis decided that one who occupies another's premises without his consent is not liable to pay him rent, if he lent money to another and then occupied his premises he would have to pay him rent.11 He thereupon said to him: [If so,] I withdraw.
It was stated: If one forcibly seizes another's ship and performs some work with it, Rab said that if the owner wishes he may demand payment for its hire, or if he wishes he may demand payment for its wear and tear. But Samuel said: He may demand only for its wear and tear. Said R. Papa: They do not differ as Rab referred to the case where the ship was made for hire and Samuel to the case where it was not made for hire. Or if you like, I can say that both statements deal with a case where it was made for hire, but whereas [Rab deals with a case] where possession was taken of it with the intention of paying the hire,12 '[Samuel refers to one] where possession was taken of it with the intention of robbery.13
IF HE MISAPPROPRIATED A COIN AND IT BECAME CRACKED etc. R. Huna said: IT BECAME CRACKED means that it actually cracked, [and] IT WENT OUT OF USE means that the Government declared it obsolete. But Rab Judah said that where the Government declared the coin obsolete it would be tantamount to its being disfigured,14 and what was meant by IT WENT OUT OF USE is that the inhabitants of a particular province rejected it while it was still in circulation in another province. R. Hisda said to R. Huna: According to your statement that IT WENT OUT OF USE meant that the Government declared it obsolete, why [in our Mishnah] in the case of fruits that became stale, or wine that became sour, which appears to be equivalent to a coin that was declared obsolete by the Government, is it stated that HE WOULD HAVE TO PAY IN ACCORDANCE WITH [THE VALUE AT] THE TIME OF THE ROBBERY?15 - He replied: There [in the case of the fruits and the wine] the taste and the smell changed, whereas here [in the case of the coin] there was no change [in the substance]. Rabbah on the other hand said to Rab Judah: According to your statement that where the Government declared the coin obsolete it would be tantamount to its having been cracked, why in [our Mishnah in] the case of terumah that became defiled, which appears to resemble a coin that was declared obsolete by the Government16 is it stated that he can say to him, 'HERE, TAKE YOUR OWN'? - He replied: There [in the case of the terumah] the defect17 is not noticeable, whereas here [in the case of the coin] the defect is noticeable.18
It was stated: If a man lends his fellow [something] on [condition that it should be repaid in] a certain coin, and that coin became obsolete, Rab said
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(1) B.M. 64b.
(2) So that payment for work done by him would have to be enforced.
(3) Lit., 'here'.
(4) [Which the owner is not accustomed to let - a case similar to the one where the owner requires no work from the slave.]
(5) V. supra 21a for notes.
(6) Of the house.
(7) Isa. XXIV, 12.
(8) Of the slave.
(9) [Amounting as it does to the taking of interest.]
(10) I.e., Raba to his father, R. Joseph.
(11) So that it should not look like usury.
(12) In which case the hire may be claimed.
(13) In which case no more than compensation for the wear and tear could be enforced.
(14) Since it would nowhere have currency.
(15) As the change transferred the ownership.
(16) For just as the latter case was proscribed by the political realm, the former was proscribed by the spiritual realm.
(17) By becoming defiled.
(18) As the coins which are in circulation have a different appearance.that the debtor would have to pay the creditor with the coin that had currency at that time,1 whereas Samuel said that the debtor could say to the creditor, 'Go forth and spend it in Meshan.'2 R. Nahman said that the ruling of Samuel might reasonably be applied where the creditor had occasion to go to Meshan, but if he had no occasion [to go there] it would surely not be so. But Raba raised an objection to this view of R. Nahman [from the following]: 'Redemption [of the second tithe] cannot be made by means of money which has no currency, as for instance if one possessed koziba-coins,3 of Jerusalem,4 or of the earlier kings;5 no redemption could be made [by these].'6 Now, does this not imply that if the coins were of the later kings, even though analogous [in one respect] to coins of the earlier kings,7 it would be possible to effect the redemption by means of them?8 - He, however, said to him that we were dealing here with a case where the Governments of the different provinces were not antagonistic to one another. But since this implies that the statement of Samuel [as explained by R. Nahman] referred to the case where the Governments of the different provinces were antagonistic to one another, how would it be possible to bring the coins [to the province where they still have currency]?9 - They could be brought there with some difficulty, as where no thorough search was made at the frontier though if the coins were to be discovered there would be trouble.
Come and hear: Redemption [of the second tithe] cannot be effected by means of coins which have currency here10 but which are actually [with the owner] in Babylon;11 so also if they have currency in Babylon but are kept here.10 [But] where the coins have their currency in Babylon and are in Babylon redemption can be effected by means of them. Now, it is at all events stated here [is it not] that no redemption could be effected by means of coins which though having currency here10 are actually [with the owner] in Babylon irrespective of the fact that the owner will have to go up here?12 - We are dealing here with a case where the Governments [of the respective countries] were antagonistic to each other.13 But if so how would coins which have currency in Babylon and are kept in Babylon be utilised as redemption money?14 - They may be utilised for the purchase of an animal [in Babylon]. which can then be brought up to Jerusalem. But was it not taught15 that there was an enactment that all kinds of money should be current in Jerusalem?16 - Said R. Zera: This is no difficulty, as the latter statement refers to the time when Israel had sway [in Eretz Yisrael] over the heathen whereas the former referred to a time when the heathen governed themselves.17
Our Rabbis taught: What was the coin of Jerusalem?18 [The names] David and Solomon [were inscribed] on one side and [the name of] Jerusalem on the other. What was the coin of Abraham our Patriarch? - An old man and an old woman19 on the one side, and a young man and a young woman20 on the other.
Raba asked R. Hisda: What would be the law where a man lent his fellow something on [condition of being repaid with] a certain coin,21 and that coin meanwhile was made heavier?22 - He replied: The payment will have to be with the coins that have currency at that time. Said the other: Even if the new coin be of the size of a sieve? - He replied: Yes, Said the other: Even if it be of the size of a 'tirtia'!23 - He again replied. Yes. But in such circumstances would not the products have become cheaper?24 - R. Ashi therefore said: We have to look into the matter. If it was through the [increased weight of the] coin that prices [of products] dropped we would have to deduct [from the payment accordingly],
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(1) I.e., at the time of the payment.
(2) [Mesene, a district S.E. of Babylon. It lay on the path of the trade route to the Persian Gulf. V. Obermeyer. op. cit., 89 ff.]
(3) Coins struck by Bar Cochba, the leader of the uprising in Eretz Yisrael against Hadrian. [The name Koziba has been explained either as derivation from the city Kozeba, his home, or as 'Son of Lies', a contumelious designation when his failure belied all the hopes reposed in him, v. Graetz, Geschichte, p. 136.]
(4) [Probably the old shekels. According to Rashi render: namely, Jerusalem coins.]
(5) [Either the Seleucidean Kings or former Roman Emperors.]
(6) Tosef. M. Sh. 1, 6.
(7) Such as where they were declared obsolete in a particular province.
(8) Even where one had not occasion to go there, which refutes R. Nahman's view.
(9) Even though one had occasion to go there.
(10) In Jerusalem.
(11) Where they have no currency.
(12) [Lit. 'there'. The text does not read smoothly, and is suspect. MS.M. in fact omits 'Now . . . here.']
(13) To a greater degree, so that thorough searches are made and the transport of coins would constitute a real danger.
(14) Which would have to be spent for certain commodities to be partaken of in Jerusalem.
(15) Cf. I.M. Sh. I. 2.
(16) How then were Babylonian coins not current there?
(17) A euphemism for Israel.
(18) Cf. p. 556. n. 7.
(19) I.e., Abraham and Sarah.
(20) I.e., Isaac and Rebeccah.
(21) V. p. 566, n. 4.
(22) [The question is according to the view of Rab, ibid., that payment has to be made with the coin that had currency at the time.]
(23) A quoit of certain size.
(24) A larger supply being obtained by the heavier coin, and the increase would appear as usury.but if it was through the market supplies1 that prices dropped, we would not have to deduct anything. Still,2 would the creditor not derive a benefit from the additional metal? - [We must] therefore [act] like R. Papa and R. Huna the son of R. Joshua who gave judgment in an action about coins, according to [the information3 of] an Arabian agoran,4 that the debtor should pay for ten old coins [only] eight new ones.5
Rabbah stated: He who throws a coin of another [even] into the ocean6 is exempt, the reason being that he can say to him, 'Here it lies before you, if you are anxious to have it take it.' This applies, however, only where [the water was] clear so that it could be seen, but if it was so muddy that the coin could not be seen this would not be so. Again, this holds good only where the throwing was merely indirectly caused by him,7 but if he took it in his hand he would surely have already become subject to the law of robbery8 and as such would have been liable to make [proper] restitution.8
Raba raised an objection [from the following:] 'Redemption [of the second tithe] cannot be made by means of money not in one's actual possession, such as if he had money in Castra or in the King's Mountain9 or if his purse fell into the ocean; no redemption could then be effected'.10 - Said Rabbah: The case [of redemption] of tithe is different, as it is required there that the money should be [to all intents and purposes] actually in your hand, for the Divine Law says, And bind up the money in thy hand,11 which is lacking in this case.12
Rabbah further said: One who disfigures a coin belonging to another is exempt, the reason being that he did not do anything [to reduce the substance of the coin]. This of course applies only where he knocked on it with a hammer and so made it flat, but where he rubbed the stamp off with a file he certainly diminished its substance [and would thus be liable]. Raba raised an objection [from the following:] 'Where [the master] struck [the slave] upon the eye and blinded him or upon the ear and deafened him the slave would on account of that go out free,13 but [where he struck on an object which was] opposite the slave's eye and he lost his sight or [on an object which was] opposite his ear through which he lost his hearing the slave would [on account of this] not go out free'!14 - Rabbah, however, follows his own reasoning, for Rabbah stated: He who makes his father deaf is subject to be executed,15 for it is impossible to cause deafness without first making a bruise through which a drop of blood falls into the ear.16
And Rabbah [further] stated: He who splits the ear of another's cow17 is exempt, the reason being that [so far as the value of] the cow [is concerned it] remains as it was before, for he did not do anything [to reduce it], since not all oxen are meant to be sacrificed upon the altar.18 Raba raised an objection [from the following]: If he did work with the water of Purification or with the Heifer of Purification he would be exempt according to the judgments of Man but liable according to the judgments of Heaven.19 Now surely this is so only where mere work was done with it,20 in which case the damage [done to it] is not noticeable, whereas in the case of splitting where the damage is noticeable there would also be liability according to the judgments of Man?21 - It may, however, be said that the same law would apply in the case of splitting, where he would similarly be exempt [according to the judgments of Man], and that what we are told here is that even in the case of mere work where the damage is not noticeable there would still be liability according to the judgments of Heaven.
Rabbah further stated: If one destroyed by fire the bond of a creditor he would be exempt, because he can say to him, 'It was only a mere piece of paper of yours that I have burnt.'22 Rami b. Hania demurred: What are the circumstances?
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(1) I.e., through the supply surpassing the demand.
(2) [Even if the drop in the prices was due to the latter cause.]
(3) [That ten old coins had the weight of eight new ones.]
(4) Market commissioner.
(5) If, however, the increase in weight was less than 25%, the new coins paid would have to be equal in number to the old ones; so Rashi; Tosaf. explains differently.
(6) Lit., 'the great sea', the Mediterranean.
(7) [On the principle that damage caused by indirect action is not actionable.]
(8) Cf. Lev. V, 23.
(9) [Har-ha-Melek, also known as Tur Malka. There is still a good deal of uncertainty in regard to the identification of these two localities. Buchler JQR. 1904. 181 ff. maintains that the reference in both cases is to Roman fortifications, access to which was barred to the Jews, the former being simply the Roman Castra, the latter, a fortification situated somewhere in Upper Idumea. For other views, v. Schlatter, Tage Trojans, p. 28, and Neubauer, Geographie, p. 196.]
(10) M.Sh. I, 2. Now, if coins thrown into the ocean are not considered as lost to the owner, as indeed suggested by Rabbah. why should no redemption be effected?
(11) Deut. XIV, 25.
(12) On account of which no redemption could be effected.
(13) In accordance with Ex. XXI, 26-27.
(14) Supra 91a. Does this not prove that even where the substance was not reduced, such as in the case of deafening, still so long as the damage was done there is liability?
(15) As having committed the capital offence of Ex. XXI. 25, v. supra 86a.
(16) [And for the same reason the slave would be set free.]
(17) Rendering her thus disqualified as blemished for the altar; cf. Lev. XXII, 20-25.
(18) Cf. Kid. 66a.
(19) I.e., the 'red heifer' rendering it thus disqualified in accordance with Num. XIX. 2 and 9.
(20) V. supra 56a.
(21) Thus contradicting the view of Rabbah.
(22) V. supra 33b.If there are witnesses who know what were the contents of the bond why not draw up another bond which would be valid? If on the other hand such witnesses are not available, how could we know [what were the contents]?1 - Raba said: [The case could arise] where the defendant takes the plaintiff's word [as to the contents of the bond]. R. Dimi b. Hanina said that [regarding this ruling] of Rabbah there was a difference of opinion between R. Simeon and our [other] Rabbis. According to R. Simeon who held2 that an object whose absence would cause an outlay of money is reckoned in law as money there would be liability,3 but according to the Rabbis who said that an object whose absence would cause an outlay of money is not reckoned in law as money there would be no liability. R. Huna the son of R. Joshua demurred: I would suggest that you have to understand R. Simeon's statement, that an object whose absence would cause an outlay of money is reckoned in law as money, to apply only to an object whose substance is its intrinsic value, exactly as [in another case made Out by] Rabbah, for Rabbah said that where leaven was misappropriated before [the arrival of] Passover and a third person came along and burnt it, if this took place during the festival he would be exempt as at that time all are enjoined to destroy it,4 but if after Passover5 there would be a difference of opinion between R. Simeon and our Rabbis, as according to R. Simeon who held that an object whose absence would cause an outlay of money is reckoned in law as money, he would be liable,6 while according to our Rabbis who said that an object whose absence would cause an outlay of money is not reckoned in law as money, he would be exempt. [But whence could it be proved that even] regarding an object whose substance is not its intrinsic value R. Simeon similarly maintained the same view?
Amemar said that the authority who is prepared to adjudicate liability in an action for damage done indirectly7 would similarly here adjudge damages to the amount recoverable on a valid bill. but the one who does not adjudicate liability in an action for damage done indirectly would here adjudge damages only to the extent of the value of the mere paper. It once happened that in such an action Rafram compelled R. Ashi8 and damages were collected [from him] like a beam fit for decorative mouldings.9
BUT IF . . . THE LEAVEN [HE MISAPPROPRIATED BECAME FORBIDDEN FOR ANY USE BECAUSE] PASSOVER HAD INTERVENED . . . HE CAN SAY TO HIM: HERE, TAKE YOUR OWN. Who is the Tanna who, in regard to things forbidden for any use, allows [the offender] to say, 'Here, take your own'? - R. Hisda said: He is R. Jacob, as indeed taught: If an ox killed [a person], and before its judgment was concluded its owner disposed of it, the sale would hold good; if he pronounced it sacred, it would be sacred; if it was slaughtered its flesh would be permitted [for food]; if a bailee returned it to [the house of] its owner, it would be a legal restoration. But if after its sentence had already been pronounced, the owner disposed of it, the sale would not be valid; if he consecrated it, it would not be sacred; if it was slaughtered its flesh would be forbidden [for any use]; if a bailee returned it to [the house of] its owner, it would not be a legal restoration. R. Jacob, however, says: Even if after the sentence had already been pronounced the bailee returned it to its owner, it would be a legal restoration.10 Now, is not the point at issue between them11 that R. Jacob, in the case of things forbidden for any use, allows the offender to say. 'Here, take your own', whereas the Rabbis disallow this in the case of things forbidden for any use?12 Rabbah said to him:13 No; all may agree that even regarding things forbidden for any use the offender is allowed [in certain circumstances] to say, 'Here, take your own', for if otherwise. why did they11 not differ in the case of leaven during Passover?14 Rabbah therefore said: Here [in the case before us] the point at issue must be whether [or not] sentence may be pronounced over an ox in its absence. The Rabbis hold that sentence cannot be pronounced over an ox in its absence so that the owner may plead against the bailee thus: 'if you had returned it to me [before the passing of the sentence], I would have driven it away to the pastures,15 whereas now you have surrendered my ox into the hands of those against whom I am unable to bring any action.'16 R. Jacob, however, holds that sentence can be pronounced over the ox even in its absence, so that the bailee may retort to the owner thus: In any case the sentence would have been passed on the ox, even in its absence.
R. Hisda came across Rabbah b. Samuel and said to him: Have you been taught anything regarding things forbidden for any use?17 - He replied: Yes, I was taught [the following]: 'He shall restore the misappropriated object.18 What is the point of the additional words, which he violently took away? [It is that] so long as it was intact he may restore it.19 Hence did the Rabbis declare that if one misappropriated a coin and it went out of use, fruits and they became stale, wine and it became sour,20 terumah21 and it became defiled,22 leaven and [it became forbidden for any use because] Passover intervened,23 an animal and it became the instrument for the commission of a sin,24 or an ox and [it subsequently became subject to be stoned,25 but] its judgment was not yet concluded, he can say to the owner, 'Here, take your own.' Now, which authority can you suppose to apply this ruling only where the judgment was not yet concluded, but not where the judgment was already concluded, if not the Rabbis, and it is at [the same time] stated that [if he misappropriated] leaven and [it became forbidden for any use because] Passover intervened26 he can say to him, 'Here, take your own'?27 - He replied:28 If you happen to meet them29 [please] do not tell them anything [of this teaching].30
['If one misappropriated] fruits and they became stale . . . he can say to him: "Here, take your own."' But did we not learn:31 [IF HE MISAPPROPRIATED] FRUITS AND THEY BECAME STALE . . . HE WOULD [CERTAINLY] HAVE TO PAY ACCORDING TO [THE VALUE AT] THE TIME OF THE ROBBERY? - Said R. Papa: The latter ruling32 refers to where the whole of them became stale,33 the former to where only parts of them became stale.
MISHNAH. IF AN OWNER GAVE CRAFTSMEN [SOME ARTICLES] TO SET IN ORDER AND THEY SPOILT THEM, THEY WOULD BE LIABLE TO PAY. WHERE HE GAVE A JOINER A CHEST, A BOX OR A CUPBOARD34 SET IN ORDER AND HE SPOILT IT, HE WOULD BE LIABLE TO PAY. IF A BUILDER UNDERTOOK TO PULL DOWN A WALL AND BROKE THE STONES OR DAMAGED THEM, HE WOULD BE LIABLE TO PAY, BUT IF WHILE HE WAS PULLING DOWN THE WALL ON ONE SIDE ANOTHER PART FELL ON ANOTHER SIDE, HE WOULD BE EXEMPT, THOUGH, IF IT WAS CAUSED THROUGH THE KNOCKING, HE WOULD BE LIABLE.
GEMARA. R. Assi said: The Mishnaic ruling could not be regarded as applying except where he gave a joiner a box, a chest, or a cupboard to knock a nail in and while he was knocking in the nail he broke them. But if he gave the joiner timber to make a chest, a box or a cupboard and after he had made the box, the chest or the cupboard they were broken by him, he would be exempt,35 the reason being that a craftsman acquires title to the increase in [value caused by the construction of] the article.36 But we have learnt: IF AN OWNER GAVE CRAFTSMEN SOME ARTICLES TO SET IN ORDER AND THEY SPOILT THEM THEY WOULD BE LIABLE TO PAY. Does this not mean that he gave them timber to make utensils?37 - No, [he gave them] a chest, a box or a cupboard.38 But since the concluding clause in the text mentions 'chest, box or cupboard' is it not implied that the opening clause refers to timber? - It may, however, be said that [the later clause] only means to expand the earlier [as follows]: 'In the case where an owner gave craftsmen some articles to set in order and they spoiled them, how would they be liable to pay? As, e.g., where he gave a joiner a chest, a box, or a cupboard.' There is also good reason for supposing that the text [of the latter clause] was merely giving an example. For should you assume that the opening clause refers to timber, after we have been [first] told that [even] in the case of timber they would be liable to pay and that we should not say that the craftsman acquires title to the increase in [value caused by the construction of] the article, what necessity would there be to mention afterwards chest, box and portable turret?39 - If only on account of this, your point could hardly be regarded as proved, for the later clause might have been inserted to reveal the true meaning of the earlier clause, so that you should not think that the earlier clause refers to [the case where he gave the joiner a] chest, box and cupboard, whereas [where he gave him] timber the law would not be so; hence the concluding clause specifically mentions chest, box and cupboard38 to indicate that the opening clause refers to timber, and that even in that case the craftsman would be liable to pay.37 May we say that he40 can be supported [from the following]: If wool was given to a dyer
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(1) [To know what liability to impose on him.]
(2) Supra 71b.
(3) Since the creditor has through the destruction of his bond suffered an actual loss of money.
(4) Cf. Pes. II. 2.
(5) When though forbidden to be used for any purpose it is still not under an injunction to be destroyed; cf. Pes. II. 2.
(6) To the robber, since the robber would have been able to restore the leaven to the owner and say. 'Here there is thine before thee', whereas after the leaven was destroyed he would have to pay the full original value if the leaven.
(7) I.e., R. Meir; cf. infra 100a.
(8) [Who in his childhood had destroyed a bond of a creditor.]
(9) A metaphorical expression for 'straight and exact and out of the best of the estate', as supra p. 16; v. Rashi and Sh.M. a.l.
(10) v. supra 45a for notes.
(11) R. Jacob and the Rabbis.
(12) Our Mishnah thus represents the view of R. Jacob.
(13) I.e., to R. Hisda.
(14) Whether a robber would be entitled to restore it and plead 'Here there is thine before thee'.
(15) And no sentence would have been passed on it.
(16) [I.e., the court. This plea would, however, not apply to leaven where the incidence of the prohibition is not due to an act of the robber but to the intervention of the Passover (Rashi).]
(17) [Whether the plea 'Here, take your own' is admissible in their case.]
(18) Lev. V, 23.
(19) Though it meanwhile became valueless.
(20) [MS.M. rightly omits 'wine and it became sour' as in this case payment is according to value at time of robbery; Var. lec. and he poured from it a libation (to an idol).]
(21) V. Glos.
(22) V. p. 561, n. 4.
(23) V. ibid., n. 5.
(24) V. ibid., n. 6.
(25) V. ibid., n. 8.
(26) V. p. 561, n. 5.
(27) Thus confirming the view of Rabbah as against that of R. Hisda.
(28) I.e., R. Hisda to Rabbah b. Samuel.
(29) My colleagues.
(30) For a similar attitude cf. 'Er. 11b where R. Shesheth said so to the same Rabbah b. Samuel, and ibid. 39b where the same R. Shesheth said so to Raba(== Rabbah) b. Samuel.
(31) In our Mishnah.
(32) Where payment must be made.
(33) And the change was definite.
(34) Lit., 'a turret', a cupboard in the form of a turret.
(35) So far as the increase in value caused by the construction of the article is concerned, [for when he parts with it he effects a sale of the improvement of the article and the stipulated sum paid to him is but the purchase money for the same.]
(36) Cf. B.M. 112a.
(37) And their liability would thus extend to the whole value of the utensils made by them.
(38) For some repair, in the performance of which they were broken.
(39) In which case the law is quite evident.
(40) I.e., R. Assi.and it was burnt by the dye, he would have to pay the owner the value of his wool.1 Now, it is only the value of the wool that he has to pay, but not the combined value of the wool and the increase in price.2 Does this not apply even where it was burnt after the dye was put in,3 in which case there has already been an increase in value, which would thus show4 that the craftsman acquires title to the improvement carried out by him on any article? - Said Samuel: We are dealing here with a case where, e.g., it was burnt at the time when the dye was put in,5 so that there has not yet been any increase in value. But what would it be if it were burnt after it was put in?6 Would he really have to pay the combined value of the wool and the increase? Must we not therefore say that Samuel did not hold the view of R. Assi?7 - Samuel might say to you that we are dealing here with a case where e.g., both the wool and the dye belonged to the owner, so that the dyer had to be paid only for the labour of his hands.8 But if so, should it not have been stated that the dyer would have to pay the owner for the value of both his wool and his dye? - Samuel was only trying to point out that a refutation9 would be possible.10 Come and hear:11 If he gave his garment to a craftsman and the latter finished it and informed him of the fact, even if from that time ten days elapsed [without his paying him] he would through that not be transgressing the injunction thou shalt not keep all night.12 But if [the craftsman] delivered the garment to him in the middle of the day, as soon as the sun set [without payment having been made] the owner would through that transgress the injunction. Thou shalt not keep all night.13 Now, if you assume that a craftsman acquires title to the improvement [carried out by him] on any article,14 why should the owner be transgressing15 the injunction. Thou shalt not keep all night? - Said R. Mari the son of R. Kahana: [The work required in this case was] to remove the woolly surface of a thick cloth where there was no accretion.16 But be it as it may, since he gave it to him for the purpose of making it softer, as soon as he made it softer was there not already an improvement? - No; the ruling is necessary [for meeting the case] where he hired him to stamp upon it [and undertook to pay him] for every act of stamping one ma'ah,17 which is but the hire [for labour].
But according to what we assumed previously that he was not hired for stamping,18 [this ruling] would have been a support to [the view of] R. Shesheth, for when it was asked of R. Shesheth19 whether in a case of contracting the owner would transgress20 the injunction, Thou shalt not keep all night, or would not transgress, he answered that he would transgress! But are we [at the same time] to say that R. Shesheth differed from R. Assi?21 - Samuel b. Aha said: [R. Shesheth was speaking] of a messenger sent to deliver a letter.22
Shall we say [that the same difference is found between] the following Tannaim? [For it was taught: If a woman says,] 'Make for me bracelets, earrings and rings,23 and I will become betrothed unto thee,'24 as soon as he makes them she becomes betrothed [unto him];25 this is the view of R. Meir. But the Sages say that she would not become betrothed until something of actual value has come into her possession.26 Now, what is meant by actual value? We can hardly say that it refers to this particular value,27 for this would imply that according to R. Meir [it was] not [necessary for her to come into possession] even of that value. If so, what would be the instrument to effect the betrothal?25 It therefore appears evident that what was meant by 'actual value' was some other value.28 Now again, it was presumed [by the students] that according to all authorities there is continuous [growth of liability for] hire from the very commencement of the work until the end of it,29 and also that according to all authorities if one betroths [a woman] through [foregoing] a debt [owing to him from her], she would not be betrothed.30 Would it therefore not appear that they31 differed on the question whether a craftsman acquires title to the improvement carried out by him upon an article, R. Meir maintaining that a craftsman acquires title to the improvement carried out by him upon an article,32 while the Rabbis maintained that the craftsman does not acquire title to the improvement carried out by him upon an article?33 - No; all may agree that the craftsman does not acquire title to the improvement carried out by him upon an article, and here they differ as to whether there is progressive [liability for] hire from the very commencement of the work until the very end, R. Meir maintaining that there is no liability for hire except at the very end,34 whereas the Rabbis maintained that there is progressive [liability for] hire35 from the commencement until the very end.36 Or if you wish I may say that in the opinion of all there is progressive [liability for] hire35 from the very commencement to the end,36 but here they37 differ [in regard to the law] regarding one who betroths [a woman] by [forgoing] a debt [due from her], R. Meir maintaining that one who betroths [a woman] by [forgoing] a debt [due from her] would thereby effect a legal betrothal, whereas the [other] Rabbis maintained that he who betroths [a woman] by [forgoing] a debt [due from her] would thereby not effect a valid betrothal.38
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(1) Infra 100b.
(2) Caused by the process of dyeing.
(3) Lit., 'after falling in'. i.e. after the dye had already exercised its effect on the wool which thereby increased in value.
(4) Since he has to pay only for the wool and nor for its increase in value.
(5) Lit., 'at the time of falling in', i.e., before the dye has yet exercised any effect on the wool.
(6) V. supra n. 3.
(7) According to whom even then only the original value of the wool would have to be paid for. [Which means that R. Assi's view cannot stand since in civil law we follow the ruling of Samuel?]
(8) In which case the craftsman acquires no title to the increase in value, since the dye which imparts to the wool the increased value is not his.
(9) Of the proof advanced in support of R. Assi.
(10) Without, however, intending to oppose R. Assi.
(11) Cf. B.M. 112a.
(12) Lev. XIX, 13.
(13) V. p. 576, n. 11.
(14) So that when he parts with it he effects a sale of the improvement of the article and the stipulated sum paid to him is but the purchase money for the same.
(15) For surely by not paying purchase money in time a purchaser would not render himself liable to this transgression.
(16) To which the worker should acquire title.
(17) v. Glos.
(18) But for the completion of a certain undertaking, [in which case he would be a contractor and in a sense a vendor and yet the injunction of not delaying the payment of the hire applies.]
(19) V. B.M. 112a.
(20) By not paying the stipulated sum in time.
(21) Who maintained that a craftsman (i.e., a contractor) becomes the owner of the improvement carried out by him upon the article and when parting with it is but a vendor to whom purchase money has to be paid, and to whom the injunction does not apply.
(22) Where there is no tangible accretion to which a title of ownership could be acquired, and to which consequently there applies the injunction.
(23) The woman giving the man the material.
(24) This was spoken by an unmarried woman to her prospective husband.
(25) In accordance with Kid. I,1.
(26) Kid. 48a.
(27) I.e., the bracelets.
(28) I.e., irrespective of the bracelets, earrings and rings made by him. Whereas according to R. Meir these alone suffice.
(29) I.e., that strictly speaking each perutah of the hire becomes due as soon as work for a perutah is completed; a perutah is the minimum value of liability; v. Glos.
(30) As this is not reckoned in law sufficient consideration; cf. Kid. 6b and 47a.
(31) I.e., R. Meir and the Rabbis.
(32) So that when he makes her bracelets, earrings and rings out of her material, the improvement becomes his and could therefore constitute a valid consideration.
(33) But since the improvement was never his he only had an outstanding debt for the hire upon the other party who was in this case his prospective wife, and as the forfeiture of a debt is not sufficient consideration some 'actual value' must be added to make the consideration valid.
(34) I.e., when he restores her the manufactured bracelets etc., in which case the hire had previously never become a debt.
(35) Which thus becomes a debt rising from perutah to perutah (and as such could not constitute valid consideration).
(36) V. p. 578, n. 7.
(37) R. Meir and the Rabbis.
(38) V. p. 578, n. 8.Raba, however, said that all might have been agreed that there is progressive [liability for] hire from the very commencement until the end, and also that one who betroths [a woman] by [forgoing] a debt [due from her] would not thereby effect a valid betrothal, and it was again unanimously held that a craftsman does not acquire title to the improvement carried out by him upon an article,1 and here we are dealing with a case where, e.g., he added a particle out of his own [funds2 to the raw material supplied by her], R. Meir holding that where the [instrument of betrothal] is both [the foregoing of] a debt and [the giving of] a perutah,3 the woman thinks more4 of the perutah,2 whereas the Rabbis held that where the [instrument of betrothal] is both [the foregoing of] a debt and [the giving of] a perutah, she thinks more of the debt [which she is excused].
This was also the difference between the following Tannaim, as taught: [If a man says,] 'In consideration of the hire for the work I have already done for you5 [be betrothed to me],'6 she would not become betrothed,7 but [if he says], 'In consideration of the hire for work which I will do for you [be betrothed to me]', she would become betrothed. R. Nathan said that if he said, 'In consideration of the hire for work I will do for you,' she would thereby not become betrothed; and all the more so in this case where he said, 'In consideration of the hire for work I have already done for you.' R. Judah the Prince, however, says: It was truly stated that whether he said, 'In consideration of the hire for the work I have already done for you,'6 or, 'In consideration of the hire for work I will do for you,' she would not thereby become betrothed, but if he added a particle out of his own funds8 [to the raw material supplied by her], she would thereby become betrothed.9 Now, the difference between the first Tanna and R. Nathan is on the question of the liability for hire [whether or not it is progressive from the very commencement],10 while the difference between R. Nathan and R. Judah the Prince is on the question [what is her attitude when the betrothal is made both by the foregoing of] a debt [and the giving of] a perutah.11
Samuel said: An expert slaughterer who did not carry out the slaughter properly12 would be liable to pay, as he was a damage-doer, [and] he was careless, and this would be considered as if the owner asked him to slaughter for him from one side13 and he slaughtered for him from the other. But why was it necessary for him to say both 'he was a damage-doer [and] he was careless'? - If he had said only he was a damage-doer,I might have said that this ruling should apply only where he was working for a hire,14 whereas where he was working gratuitously this would not be so; we are therefore told, [that there is no distinction as] he was careless. R. Hama b. Guria raised an objection to this view of Samuel [from the following]: If an animal was given to a slaughterer and he caused it to become nebelah,15 if he was an expert he would be exempt, but if an amateur16 he would be liable. If, however, he was engaged for hire, whether he was an amateur or expert he would be liable. [Is this not in contradiction to the view of Samuel?] - He replied:17 Is your brain disordered? Then another one of our Rabbis came along and raised the same objection to his view. He said to him:18 'You surely deserve to be given the same as your fellow.19 I was stating to you the view of R. Meir and you tell me the view of the Rabbis! Why did you not examine my words carefully wherein I said: "For he was a damage-doer [and] he was careless, and this should be considered as if the owner asked him to slaughter for him from one side20 and he slaughtered for him from the other." For surely who reasons in this way if not R. Meir, who said that a human being has to take greater heed to himself?' But what [statement of] R. Meir [is referred to]? We can hardly say the one of R. Meir which we learned: (Mnemonic: KLN)21 'If the owner fastened his ox [to the wall inside the stable] with a cord or shut the door in front of it properly but the ox [nevertheless] got out and did damage, whether it had been Tam or already Mu'ad he would be liable; this is the opinion of R. Meir,'22 for surely, in that case, there they differed as to the interpretation of Scriptural Verses!23 - It therefore seems to be the one of R. Meir which we learned: [If wool was handed over to a dyer] to dye it red but he dyed it black, or to dye it black and he dyed it red, R. Meir says that he would have to pay [the owner] for the value of the wool.24 But did he not there spoil it25 with his own hands?26 - The reference therefore must be to the one of R. Meir which was taught: 'If a pitcher is broken and [the potsherds] are not removed, or a camel falls down and is not raised, R. Meir orders payment for any damage resulting therefrom, whereas the [other] Sages say that no action can be instituted in civil courts though there is liability according to divine justice,'27 and we came to the conclusion28 that they differed as to whether or not stumbling implies negligence.
Rabbah b. Bar Hanah said that R. Johanan stated that an expert slaughterer who did not carry out the slaughter properly29 would be liable to pay, even if he was as skilled as the slaughterer of Sepphoris. But did R. Johanan really say so? Did Rabbah b. Bar Hanah not say that such a case came before R. Johanan in the synagogue of Maon30 and he said to the slaughterer. 'Go and bring evidence that you are skilled to slaughter hens, and I will declare you exempt'? - There is, however, no difficulty, as the latter ruling was [in a case where the slaughterer was working] gratuitously whereas the former ruling applies [where the slaughterer works] for hire,31 exactly as R. Zera said: If one wants the slaughterer to become liable to him,32 he shall give him a dinarius beforehand.31
An objection was raised: If wheat was brought to be ground and the miller omitted to moisten it and he made it into branflour or coarse bran, or if flour [was given] to a baker and he made out of it bread which crumbled, or an animal to a slaughterer and he rendered it nebelah,33 he would be liable, as he is on the same footing as a worker who receives hire.34 [Does this not imply that he was working gratuitously? - No.] read: 'Because he is a worker receiving hire.'31
A case of magrumeta35 was brought before Rab, who declared it trefa and nevertheless released the slaughterer from any payment. When R. Kahana and R. Assi met that man36 they said to him: 'Rab did two things with you.' What was meant by these two things? If you say it meant two things to his36 disadvantage, one that Rab should have declared it kasher in accordance with R. Jose b. Judah,37 whereas he declared it trefa in accordance with the Rabbis,37 and again that since he acted in accordance with the Rabbis,37 he should at any rate have declared the slaughterer liable, is it permitted to say a thing like that? Was it not taught:38 When [a judge] leaves [the court] he should not say, 'I wanted to declare you innocent, but as my colleagues insisted on declaring you liable I was unable to do anything since my colleagues formed a majority against me,' for to such behaviour is applied the verse, A tale-bearer revealeth secrets?39 - It must therefore be said that the two things were to his36 advantage, first that he did not let you eat a thing which was possibly forbidden, secondly that he restrained you from receiving payment which might possibly have been a misappropriation.
It was stated: If a denar was shown to a money changer [and he recommended it as good] but it was subsequently found to be bad, in one Baraitha it was taught that if he was an expert he would be exempt but if an amateur he would be liable, whereas in another Baraitha it was taught that whether he was an expert or an amateur he would be liable. R. Papa stated: The ruling that in the case of an expert he would be exempt refers to such, e.g., as Dankcho and Issur40 who needed no [further] instruction whatever, but who made41 a mistake regarding a new stamp at the time when the coin had just [for the first time] come from the mint.
There was a certain woman who showed a denar to R. Hiyya and he told her that it was good. Later she again came to him and said to him, 'I afterwards showed it [to others] and they said to me that it was bad, and in fact I could not pass it.' He therefore said to Rab: Go forth and change it for a good one and write down in my register that this was a bad business. But why [should he be different from] Dankcho and Issur42 who would be exempt because they needed no instruction? Surely R. Hiyya also needed no instruction? - R. Hiyya acted within the 'margin of the judgment,'43 on the principle learnt by R. Joseph: 'And shalt show them44 means
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(1) V. p. 578, n. 11.
(2) Which could constitute valid consideration.
(3) I.e., a coin which constitutes the minimum of value in legal matters.
(4) V. Sanh. 19b.
(5) The article having been already returned to her.
(6) This was spoken to a prospective wife.
(7) V. p. 578. n. 8.
(8) V. p. 579, n. 7.
(9) Kid. 48b.
(10) [R. Nathan holding that it is, whereas the first Tanna holds that there is no liability except at the very end.]
(11) [R. Nathan maintains that the woman thinks primarily of the debt, while, according to R. Judah the Prince she thinks more of the perutah.]
(12) As required by the ritual, and has thus rendered the animal unfit for consumption according to the dietary laws.
(13) Of the throat.
(14) Where he could be made liable even in the absence of carelessness.
(15) I.e., unfit for consumption through a flaw in the slaughter; v. Glos.
(16) As he had no right to slaughter.
(17) I.e., Samuel to R. Hama.
(18) I.e., Samuel to the other Rabbi.
(19) R. Hama.
(20) V. p. 580, n. 9.
(21) Keyword consisting of the Hebrew initial words of the three teachings that follow.
(22) Supra 45b.
(23) [V. loc. cit. This case cannot accordingly be appealed to as precedent.]
(24) Infra 100b.
(25) Lit., 'burn it'.
(26) Since he intended to dye it in that colour in which he actually dyed it, whereas in the case of the slaughterer, the damage looks more like an accident.
(27) Supra 28b-29a.
(28) [R. Meir holding that a human being must take greater heed to himself.]
(29) V. p. 580, n. 8.
(30) [In Judah, I Sam. XXIII, 24.]
(31) V. p. 580, n. 10.
(32) Were the slaughter not carried out effectively.
(33) V. p. 581, n. 1.
(34) Tosef. B.K. X, 4 and B.B. 93b.
(35) I.e., where the slaughter was started in the appropriate part of the throat but was finished higher up, in which matter there is a difference of opinion between R. Jose b. Judah and the Rabbis in Hul. 1, 3.
(36) I.e., the owner of the animal.
(37) Hul. ibid.
(38) Sanh. 29a.
(39) Prov. XI, 13.
(40) Two renowned money changers in those days.
(41) Lit., 'But where was their mistake; they made, etc.
(42) V. p. 583. n. 8.
(43) For the sake of equity and mere ethical considerations. [On this principle termed lifenim mi-shurath ha-din according to which man is exhorted not to insist on his legal rights. v. Herford, Talmud and Apocrypha, pp. 140, 280. That there was nothing Essenic in that attitude, but that it is a recognised principle in Rabbinic ethics has already been shown by Buchler, Types, p. 37.]
(44) Ex. XVIII, 20; the verse continues, the way wherein they must walk and the work.the source of their livelihood;1 the way means deeds of lovingkindness; they must walk means the visitation of the sick; wherein means burial, and the work means the law; which they must do means within the margin of the judgment.'2 Resh Lakish showed a denar to R. Eleazar who told him that it was good. He said to him: You see that I rely upon you. He replied: Suppose you do rely on me, what of it? Do you think that if it is found bad I would have to exchange it [for a good one]? Did not you yourself state that it was [only] R. Meir who adjudicates liability in an action for damage done indirectly,3 which apparently means that it was only R. Meir who maintained so whereas we did not hold in accordance with his view? - But he said to him: No; R. Meir maintained so and we hold with him. But to what [statement of] R. Meir [was the reference]? It could hardly be the one of R. Meir which we learned: If a judge in giving judgment [in a certain case] has declared innocent the person who was really liable or made liable a person who was really innocent, declared defiled a thing which was levitically clean, or declared clean a thing which was really defiled,4 his decision would stand, but he would have to make reparation out of his own estate,5 for was it not taught in connection with this that R. Elai said that Rab stated6 that [this would be so] only where he personally executed the judgment by his own hand?7 The reference therefore appears to be the one of R. Meir which we learned: [If wool was handed over to a dyer] to dye it red but he dyed it black, or to dye it black and he dyed it red, R. Meir says that he would have to pay [the owner] for the value of his wool.8 But did he not in that case also spoil it with his own hands?9 The reference must therefore be to the one of R. Meir which we learned: He who with [the branches of] his vine covers the crops of his fellow renders them proscribed10 and will be liable for damages.11 But there also did he not do the mischief with his own hands? The reference must therefore be to the one of R. Meir which was taught: 'If the fence of a vineyard [near a field of crops] is broken through,
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(1) Either the means of an honest livelihood, as explained by Rashi on B.M. 30b or the study of the living law, as interpreted by Rashi a.l.
(2) B.M. 30b.
(3) Supra 98b.
(4) And it so happened that that thing was consequently mixed with clean things and this spoiled them all; v. Sanh. (Sonc. ed.) p. 210, nn. 6-8.
(5) Bk. IV, 4.
(6) Bek. 28b.
(7) I.e., where he acted both as judge and executive officer, in which case the damage was directly committed by him personally.
(8) V. next Mishnah.
(9) By dyeing it the wrong colour.
(10) In accordance with Deut. XXII, 9.
(11) Kil. VII, 4.[the owner of the crops] may request [the owner of the vineyard] to repair it;1 so also if it is broken through again he may similarly request him to repair it. But if the owner of the vineyard abandons it altogether and does not repair it he would render the produce proscribed and would incur full responsibility.2
MISHNAH. IF WOOL WAS GIVEN TO A DYER AND THE DYE3 BURNT IT, HE WOULD HAVE TO PAY THE OWNER THE VALUE OF HIS WOOL. BUT IF HE DYED IT KA'UR,4 THEN IF THE INCREASE IN VALUE5 IS GREATER THAN HIS OUTLAY THE OWNER WOULD GIVE HIM ONLY THE OUTLAY, WHEREAS IF THE OUTLAY6 WAS GREATER THAN THE INCREASE IN VALUE HE WOULD HAVE TO PAY HIM THE AMOUNT OF THE INCREASE, [WHERE WOOL WAS HANDED TO A DYER] TO DYE RED AND HE DYED IT BLACK, OR TO DYE BLACK AND HE DYED IT RED, R. MEIR SAYS THAT HE WOULD HAVE TO PAY [THE OWNER] FOR THE VALUE OF HIS WOOL. R. JUDAH, HOWEVER, SAYS: IF THE INCREASE IN VALUE7 IS GREATER THAN THE OUTLAY, THE OWNER WOULD PAY THE DYER HIS OUTLAY, WHEREAS IF THE OUTLAY EXCEEDED THE INCREASE IN VALUE HE WOULD HAVE TO PAY HIM NO MORE THAN THE INCREASE.8
GEMARA. What does KA'UR mean? - R. Nahman said that Rabbah b. Bar Hanah stated: It means that the 'copper'9 dyed it. What is meant by saying that the 'copper' dyed it? - Said Rabbah b. Samuel:
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(1) For otherwise he would have to remove his vines four cubits from the border; cf. B.B. 26a.
(2) V. B.B. (Sonc. ed.) p. 2 and notes.
(3) Lit., 'The cauldron', 'the dyer's kettle'.
(4) Explained in the Gemara.
(5) Resulting from the work done by him.
(6) Incurred by the dyer.
(7) V. p. 585, n. 11.
(8) V. supra 95a-b.
(9) **
