Babylonian Talmud: Tractate Baba Kamma

Folio 10a

There is an excess in [the liability for] Fire over [that for] Pit, and there is [on the other hand] an excess in [the liability for] Pit over [that for] Fire. The excess in [the liability for] Pit over [that for] Fire is that Pit is from its very inception a source of injury; if its owner handed it over to the care of a deaf-mute, an insane person or a minor, he is still responsible [for any damage that may result],²  whereas all this is not so in the case of Fire. The excess in [the liability for] Fire over [that for] Pit is that the nature of Fire is to spread and do damage and it is apt to consume both things fit for it and things unfit for it, whereas all this is not so in the case of Pit.

Why not include in the excess of [liability for] Ox over [that for] Pit [the fact] that Ox is [also] liable for damage done to inanimate objects³  which is not so in the case of Pit?⁴  — The above [Baraitha] is in accordance with R. Judah who enjoins payment for damage to inanimate objects [also] in the case of Pit.⁵  If it is in accordance with R. Judah, look at the concluding clause, 'The excess in [the liability for] Fire over [that for] Pit is that the nature of Fire is to spread and do damage, and it is apt to consume both things fit for it and things unfit for it; whereas all this is not so in the case of Pit.' 'Things fit for it:' are they not 'of wood'? 'Things unfit for it: are they not 'utensils'?⁶  Now 'all this is not so in the case of Pit'. But if the statement is in accordance with R. Judah, did you not say that R. Judah enjoins payment for damage to inanimate objects [also] in the case of Pit? The Baraitha is, therefore, indeed in accordance with the Rabbis, but it mentions [some points] and omits [others].⁷  What else does it omit that it omits that [particular] point?⁸  — It also omits the law of hidden goods.⁹  On the other hand you may also say that the Baraitha can still be reconciled with R. Judah, for 'things unfit for it' do not include utensils,¹⁰  but do include [damage done by fire] lapping his neighbour's ploughed field and grazing his stones.¹¹

R. Ashi demurred: Why not include, in the excess of liability for Ox Over [that for] Pit, [the fact] that Ox is [also] liable for damage done to consecrated animals that have become unfit [for the altar],¹²  whereas this is not so in the case of Pit?¹³  No difficulty arises if you assume that the Baraitha is in accordance with the Rabbis; just as it had omitted that point,¹⁴  it omitted this point too. But if you maintain that the Baraitha is in accordance with R. Judah, what else did it omit that it omits this [one] point? — It omitted [Ox] trampling upon newly broken land.¹⁵  [No! this is no argument,] for as to [Ox] trampling upon newly broken land there is no omission there, for this [is included in that which] has already been stated, 'It is in its habit to move about and do damage.'¹⁶

WHEN I HAVE PERPETRATED A PART OF THE DAMAGE. Our Rabbis taught: 'When I have perpetrated a part of the damage I become liable for the compensation for the damage as if I had perpetrated the whole of the damage. How is that? If one had dug a Pit nine handbreadths deep and another came along and completed it to a depth of ten handbreadths, the latter person is liable.' Now this ruling is not in accordance with Rabbi; for it was taught:¹⁷  If one had dug a pit nine handbreadths deep and another came along and completed it to a depth of ten handbreadths, the latter person is liable. Rabbi says: The latter person is liable in cases of death,¹⁸  but both of them in cases of injury!¹⁹  — R. Papa said: The Mishnaic ruling²⁰  deals with cases of death and is unanimous.²¹  Some read: May we say that the Mishnah is not in accordance with Rabba? — R. Papa thereupon said: It deals with cases of death and is unanimous.

R. Zera demurred: Are there no other instances?²²  Behold there is [the case] where an ox was handed over to the care of five persons and one of them was careless, so that the ox did damage; that one is liable! — But in what circumstances? If without the care of that one, the ox could not be controlled, is it not obvious that it is that one who perpetrated the whole of the damage?²³  If, [on the other hand] even without the care of that one, the ox could be controlled, what, if anything at all, has that one perpetrated?

R. Shesheth, however, demurred: Behold there is [the case] where a man adds a bundle [of dry twigs to an existing fire]! — But in what circumstances?

1. Cf. supra P. 3, nn 6-7.
2. V. p. 37, n. 6.
3. Cf. supra p. 36.
4. Lit., 'utensils'.
5. Cf. supra pp. 17 and 18.
6. V. supra p. 18 and infra 53b.
7. Metal or earthenware.
8. Such as the distinction between Ox and Pit with reference to inanimate objects
9. As a Tanna would not, in enumeration, just stop short at one point.
10. For damage to which, according to the Rabbis, there is no liability in the case of Fire; cf. supra p. 18 and infra 61b.
11. V. p. 38, n. 6.
12. V. supra p. 18.
13. On account of a blemish, cf, Lev. XXII, 20 and Deut. XV, 21-22; such animals have to be redeemed, in accordance with Lev. XXVII, 11-13 and 27.
14. Cf. infra 53b.
15. I.e., with reference to inanimate objects.
16. Which is impossible in the case of Pit.
17. And therefore, if the Baraitha were in accordance with R. Judah, the question, 'What else did it omit etc.', would remain unanswered.
18. Cf. Tosaf, B.K. VI, 3 and infra 51a.
19. As without the additional handbreadth done by him the pit would have been nine handbreadths deep which could not occasion any fatal accident; cf, supra p. 7.
20. For even a pit nine handbreadths deep could occasion injuries.
21. Which declares the latter person 'who perpetrated part of the damage' liable.
22. I.e., is even in accordance with Rabbi.
23. To illustrate the perpetration of a part of the damage involving liability for the whole of the damage.

If without his co-operation the fire would not have spread, is it not obvious [that he is totally to blame]? If [on the other hand] even without his co-operation the fire would have spread, what, if anything at all, has he perpetrated?

R. Papa demurred: Behold there is that case which is taught: 'Five persons were sitting upon one bench and did not break it; when, however, there came along one person more and sat upon it, it broke down; the latter is liable' — supposing him, added R. Papa, to have been as stout as Papa b. Abba.¹  But under what circumstances? If without him the bench would not have broken, is it not obvious [that he is totally to blame]? If, on the other hand, without him it would also have broken, what, if anything at all, has he perpetrated? Be this as it may, how can the Baraitha be justified? — It could hold good when, without the newcomer, the bench would have broken after two hours, whereas now it broke in one hour. They²  therefore can say to him: 'If not for you we would have remained sitting a little while longer and would then have got up.'³  But why should he not say to them: 'Had you not been [sitting] there, through me the bench would not have broken'?⁴  — No; it holds good when he [did not sit at all on the bench but] merely leaned upon them and the bench broke down. Is it not obvious [that he is liable]? — You might have argued '[Damage done by] a man's force is not comparable with [that done directly by] his body.'It is therefore made known to us that [a man is responsible for] his force [just as he] is [for] his body, for whenever his body breaks [anything] his force also participates in the damage.⁵

Are there no other instances? Behold there is that which is taught:⁵  When ten persons beat a man with ten sticks, whether simultaneously or successively, so that he died, none of them is guilty of murder. R. Judah b. Bathyra says: If [they hit] successively, the last is liable, for he was the immediate cause of the death!⁶  — Cases of murder are not dealt with here.⁷  You may also say that controversial cases are not dealt with.⁷  Are they not? Did not we suggest that the Mishnah is not in accordance with Rabbi?⁸  — That the Mishnah is not in accordance with Rabbi but in accordance with the Rabbis, we may suggest;⁹  whereas that it is in accordance with R. Judah b. Bathyra, and not in accordance with the Rabbis, we are not inclined to suggest.⁹

I AM LIABLE TO COMPENSATE FOR THE DAMAGE. 'I become liable for the replacement of the damage' is not stated but '… TO COMPENSATE FOR THE DAMAGE'. We have thus learnt here that which the Rabbis taught elsewhere:¹⁰  '"To compensate for damage" imports that the owners [plaintiffs] have to retain the carcass as part payment'. What is the authority for this ruling? — R. Ammi said: Scripture states, He that killeth a beast yeshallemennah [shall make it good];¹¹  do not read yeshallemennah ['he shall pay for it'], but yashlimennah¹²  ['He shall complete its deficiency']. R. Kahana infers it from the following: If it be torn in pieces, let him bring compensation up to ['ad]¹³  the value of the carcass,' he shall not make good that which was torn.¹⁴  'Up to' the value of the carcass¹⁵  he must pay, but for the carcass itself he has not to pay. Hezekiah infers it from the following: And the dead shall be his own,¹⁶  which refers to the plaintiff. It has similarly been taught in the school of Hezekiah: And the dead shall be his own,¹⁶  refers to the plaintiff. You say 'the plaintiff'. Why not the defendant? You may safely assert: 'This is not the case.' Why is this not the case? — Abaye said: If you assume that the carcass must remain with the defendant, why did not the Divine law, stating He shall surely pay ox for ox,¹⁷  stop at that? Why write at all And the dead shall be his own?¹⁸  This shows that it refers to the plaintiff.

And all the quotations serve each its specific purpose. For if the Divine Law had laid down [this ruling only in] the verse 'He that killeth a beast shall make it good,' the reason of the ruling would have been assigned to the infrequency of the occurrence,¹⁹  whereas in the case of an animal torn in pieces [by wild beasts]'²⁰  which is [comparatively] of frequent occurrence, the opposite view might have been held;²¹  hence special reference is essential.²⁰  If [on the other hand] this ruling had been made known to us only in the case of an animal torn in pieces.²²  it would have been explained by the fact that the damage there was done by an indirect agency,²³  whereas in the case of a man killing a beast, where the damage was done by a direct agency, the opposite view might have been held. Again, were this ruling intimated in both cases, it would have been explained in the one case on account of its infrequency,²⁴  and in the other account of the indirect agency,²⁵  whereas in the damage to which 'And the dead shall be his own'²⁶  refers, which is both frequent and direct,²⁷  an opposite view might have been taken. If [on the other hand] this ruling had been intimated only in the case referred to by 'And the dead shall be his own, it would have been explained by the fact of the damage having been done only by man's possession,²⁸  whereas in cases where the damage resulted from man's person²⁹  an opposite view might have been taken. Hence all quotations are essential.

R. Kahana said to Rab: The reason [for the ruling] is that the Divine Law says 'And the dead shall be his own', and but for this I might have thought that the carcass shall remain with the defendant [yet how can this be]? If, when there are with him³⁰  several carcasses he is entitled to pay him³¹  with them, for the Master stated: He shall return,³²  includes payment in kind, even with bran,³³  what question then about the carcass of his own animal? — No, the verse is required only for the law regarding the decrease of the value of the carcass³⁴

May we say that the decrease of the value of the carcass is a point at issue between Tannaitic authorities? For it has been taught: If it be torn in pieces, let him bring it for witness:³⁵

1. Who was very corpulent, cf. B.M. 84a. [According to Zacuto's Sefer ha-Yuhasin, the reference there is not to R. Papa but to Papa b. Abba]
2. I.e., the five persons that had previously been sitting upon the bench.
3. Therefore he is to he regarded as having perpetrated the whole, and not merely a part, of the damage.
4. And why should he alone be liable?
5. V. infra pp. 79-80.
6. Sanh. 78a and infra p. 139. [Why then was this ruling of R. Judah not taken as a further illustration of the Mishnaic principle?]
7. In the Mishnah before us (which presents the law of civil action and not that of murder).
8. Cf. supra p. 39.
9. As it is the view of the majority that prevails; Ex. XXIII, 2.
10. Tosef. B.K. I. 1.
11. [H] Lev. XXIV, 18.
12. Changing the vowels of the Hebrew verb; [H] into [H]
13. Similarly by changing the vowel; the monosyllable [H] (witness) is read [H] 'up to'.
14. Ex. XXII, 12.
15. I.e., the amount required to make up the deficiency.
16. Ex. XXI, 36.
17. Ex. XXI, 36.
18. Ibid; since it is self-evident that the defendant, having paid for the ox, claims the carcass.
19. For a man to kill a beast with intent to cause damage to his neighbour.
20. Ex. XXII, 12.
21. In the interest of the plaintiff.
22. V. p. 42, n. 11.
23. I.e., not by the bailee himself but by a wild beast.
24. I.e., man killing an animal.
25. I.e., when the animal in charge was torn by beasts.
26. I.e., in the case of a goring ox, Ex. XXI, 36.
27. The ox being his property, makes the owner responsible for the damage as if it were perpetrated by himself,
28. I.e., by his cattle.
29. Such as in Lev. XXIV, 18 and Ex. XXII, 12.
30. I.e., with the defendant.
31. I.e., the plaintiff.
32. EX.XXI, 34.
33. Cf. supra p. 24.
34. That is to he sustained by the plaintiff, since it becomes his from the moment of the goring.
35. Ex.XXII, 12.