Babylonian Talmud: Tractate Baba Kamma

Folio 9a

and there appeared claimants [questioning the vendor's title], so long as Simeon had not yet taken possession of it he might withdraw; but after he had taken possession of it he could no longer withdraw. What is the reason for that? — Because the vendor may say to him: 'You have agreed to accept a bag tied up with knots.'¹  From what moment [in this case] is possession considered to be taken? — From the moment he sets his foot upon the landmarks [of the purchased field]. This applies only to a purchase without a warranty. But if there is a warranty the law is otherwise. Some, however, say: Even if there is a warranty the same law applies, as the vendor may still say to him: 'Produce the distress warrant²  against you and I will indemnify you.'

R. Huna said: [The payment for damages is] either with money or with the best of the estate.³  R. Nahman objected to R. Huna [from the Baraitha]: He should return⁴  shows that payment in kind is included, even with bran?⁵  — This deals with a case where nothing else is available. If nothing else is available, is it not obvious? — You might have thought that we tell him to go and take the trouble to sell [the bran] and tender the plaintiff ready money. It is therefore made known to us [that this is not the case.].

R. Assi said: Money is on a par with land. What is the legal bearing of this remark? If to tell us what is best, is this not practically what R. Huna said?⁶  It may, however, refer to two heirs⁷  who divided an inheritance, one taking the land and the other the money. If then a creditor⁸  came and distrained on the land, the aggrieved heir could come forward and share the money with his brother. But is this not self-evident? Is the one a son [to the deceased] and the other one not a son? There are some who argue [quite the reverse]: The one brother may say to the other, 'I have taken the money on the understanding that if it be stolen I should not be reimbursed by you, and you also took the land on the understanding that if it be distrained on there should be no restitution to you out of anything belonging to me.' It⁹  will therefore refer to two heirs⁷  who divided lands among themselves after which a creditor⁸  came along and distrained on the portion of one of them.¹⁰  But has not R. Assi already once enunciated this law? For it was stated;¹¹  [In the case of] heirs who divided [the land of the inheritance among themselves], if a creditor⁸  came along and distrained on the portion of one of them, Rab said: The original apportionment becomes null and void. Samuel said: The portion is waived; but R. Assi said: The portion is refunded by a quarter in land or by a quarter in money.¹²  Rab, who said that the partition becomes null and void, maintains that heirs, even after having shared, remain¹³  co-heirs;¹⁴  Samuel, who said that the portion is waived, maintains that heirs, after having shared, stand to each other in the relationship of vendees, each being in the position of a purchaser without a warranty [of indemnity];¹⁵  R. Assi, who said that the portion is refunded by a quarter in land or by a quarter in money, is in doubt as to whether heirs, after having shared, still remain co-heirs¹⁶  or stand in the relationship of vendees;¹⁵  and on account of that [doubt] there must be refunded a quarter in land or a quarter in money.¹⁷  What then is the meaning of 'Money is on a par with land'?¹⁸  — In respect of being counted as 'best'. But if so, is not this practically what R. Huna said? — Read 'And so also said R. Assi …'

R. Zera said on behalf of R. Huna: For [the performance of] a commandment one should go up to a third. A third of what?

1. I.e., you bought it at your own risk; the sale is thus the passing not of ownership but of possession.
2. [H], document conferring the right of seizure of a debtor's property sold after the loan (Jast.).
3. R. Huna refers either to the last clause of the Mishnah on p. 1 or to the problem raised by Abaye on p. 24.
4. Ex. XXI, 34.
5. Cf. supra p. 24.
6. The text should thus run, 'And so also said R. Assi …'
7. Lit. 'brothers'.
8. Of the deceased.
9. I.e., R. Assi's statement.
10. [In which case R. Assi stated that the other can offer in refundment either money or land.]
11. B.B. 107a.
12. Cf. Bek. 48a.
13. In this respect.
14. So that all of them have to share the burden of the debt and if the portion of the one was distrained on, the portion of the other constitutes the whole inheritance which has equally to he distributed accordingly.
15. Who cannot thus be reimbursed for the distress effected upon the portion assigned to any one of them.
16. V. p. 34. n. 11.
17. On the principle that in such and similar matters the two parties should equally have the benefit of the doubt (Rashi, according to one interpretation).
18. Stated above by R. Assi.

You could hardly suggest 'a third of one's possessions,' for if so when one chanced to have three commandments [to perform at one and the same time] would one have to give up the whole of one's possessions? — R. Zera therefore said: For [performing a commandment in] an exemplary manner one should go up to a third of [the ordinary expense involved in] the observance thereof.

R. Ashi queried: Is it a third from within [the ordinary expense]¹  or is it a third from the aggregate amount?²  This stands undecided.

In the West³  they said in the name of R. Zera: Up to a third, a man must perform it out of his own,⁴  but from a third onwards he should perform it in accordance with the special portion the Holy One, blessed be He, has bestowed upon him.⁵

MISHNAH. WHENEVER I AM UNDER AN OBLIGATION OF CONTROLLING [ANYTHING IN MY POSSESSION], I AM CONSIDERED TO HAVE PERPETRATED ANY DAMAGE THAT MAY RESULT.⁶  WHEN I AM TO BLAME FOR A PART OF THE DAMAGE I AM LIABLE TO COMPENSATE FOR THE DAMAGE AS IF I HAD PERPETRATED THE WHOLE OF THE DAMAGE.

THE [DAMAGED] PROPERTY MUST BE OF A KIND TO WHICH THE LAW OF SACRILEGE⁷  HAS NO APPLICATION. THE [DAMAGED] PROPERTY SHOULD BELONG TO PERSONS WHO ARE UNDER [THE JURISDICTION OF] THE LAW.⁸  THE PROPERTY SHOULD BE OWNED. THE PLACE [OF THE DAMAGE] IS IMMATERIAL, WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT OR PREMISES OWNED [JOINTLY] BY THE PLAINTIFF AND THE DEFENDANT. WHENEVER DAMAGE HAS OCCURRED, THE OFFENDER IS LIABLE TO INDEMNIFY WITH THE BEST OF HIS ESTATE.

GEMARA. Our Rabbis taught: 'WHENEVER I AM UNDER AN OBLIGATION OF CONTROLLING [ANYTHING IN MY POSSESSION], I AM CONSIDERED TO HAVE PERPETRATED ANY DAMAGE [THAT MAY RESULT]. How is that? When an ox or pit which was left with a deaf-mute, an insane person or a minor, does damage, the owner is liable to indemnify. This, however, is not so with a fire.' With what kind of case are we here dealing? If you say that the ox was chained and the pit covered, which corresponds in the case of fire to a hot coal, what difference is there between the one and the other? If on the other hand the ox was loose and the pit uncovered which corresponds in the case of fire to a flame, the statement 'This, however, is not so with a fire,' would here indicate exemption, but surely Resh Lakish said in the name of Hezekiah: They⁹  have not laid down the law of exemption unless there was handed over to him¹⁰  a coal which he has blown up, but in the case of a flame there will be full liability, the reason being that the danger is clear!¹¹  — Still, the ox may have been chained and the pit covered and the fire likewise in a coal, yet your contention, 'Why should we make a difference between the one and the other?' could be answered thus: An ox is in the habit of loosening itself; so also a pit is in the nature of getting uncovered; but a hot coal, the longer you leave it alone, the more it will get cooler and cooler. According to R. Johanan, however, who said¹¹  that even when there has been handed over to him¹⁰  a flame the law of exemption applies, the ox here would likewise be loose and the pit uncovered; but why should we make a difference between the one and the other? — There, in the case of the fire, it is the handling of the deaf-mute that causes the damage, whereas here, in the case of the ox and the pit, it is not the handling of the deaf-mute that causes the damage.

Our Rabbis taught: There is an excess in [the liability for] Ox over [that for] Pit, and there is [on the other hand] an excess in [the liability for] Pit over [that for] Ox. The excess in [the liability for] Ox over [that for] Pit is that Ox involves payment of kofer¹²  and the liability of thirty [shekels] for the killing of a slave;¹³  when judgment [for manslaughter] is entered [against Ox] it becomes vitiated for any use,¹⁴  and it is in its habit to move about and do damage, whereas all this is not so in the case of Pit. The excess in [the liability for] Pit over [that for] Ox is that Pit is from its very inception a source of injury and is Mu'ad ab initio which is not so in the case of Ox.¹⁵

1. I.e., 33-1/3 per cent. of the cost of ordinary performance, the cost of the ordinary performance and that of the exemplary performance would thus stand to each other as 3 to 4.
2. I.e., 50 per cent. of the cost of the ordinary performance; the cost of the ordinary performance and that of the exemplary performance would thus stand to each other as 2 to 3.
3. Palestine.
4. I.e., whether he possesses much or little.
5. Cf. Shittah Mekubezeth and Nimmuke Joseph a.l. According to Rashi and Tosaf. a.l.: 'The cost up to a third remains man's loss in this world (as the reward for that will he paid only in the world to come); but the cost from a third onwards (if any) will he refunded by the Holy One, blessed be He, in man's lifetime.'
6. From neglecting the obligation to control.
7. Of consecrated things. cf. Lev. V, 15-16.
8. Lit., 'sons of the Covenant', excluding heathens who do not respect the covenant of the law; v. infra p. 211, n. 6.
9. I.e., the Rabbis of the Mishnah, v. infra 59b.
10. I.e., to a deaf-mute, an insane person or a minor.
11. Infra 59b.
12. Cf. Ex. XXI, 29-30; v. Glos.
13. Ibid. XXI, 32.
14. V. infra p. 255.
15. Cf. supra p. 3, nn. 6-7.