Babylonian Talmud: Tractate Baba Kamma

Folio 16a

The whole Mishnah is in accordance with R. Tarfon. The commencing clause deals with premises set aside for the keeping of the plaintiff's fruits whereas both plaintiff and defendant may keep there their cattle. In respect of Tooth the premises are considered [in the eye of the law] the plaintiff's.¹  whereas in respect of Horn they are considered their common premises.²  R. Kahana said: I repeated this statement in the presence of R. Zebid of Nehardea, and he answered me, 'How can you say that the whole Mishnah is in accordance with R. Tarfon? Has it not been stated TOOTH IS MU'AD TO CONSUME WHAT EVER IS FIT FOR IT? That which is fit for it is included,³  but that which is unfit for it is not included.⁴  But did not R. Tarfon say that for the unusual damage done by Horn on the plaintiff's premises full compensation must be paid?' — It must, therefore, still be maintained that the Mishnah is in accordance with the Rabbis, but there are some phrases missing there; the reading should be thus: 'There are five cases of Tam,'⁵  all the five of them may eventually become Mu'ad.⁶  Tooth and Foot are however Mu'ad ab initio, and their liability is confined to damage done on the plaintiff's premises.'⁷  Rabina demurred: We learn later on: What is meant by [the statement] OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES [etc.]?⁸  It is all very well if you say that this damage has previously been dealt with;⁹  we may then well ask 'What is meant by it?' But if you say that this damage has never been dealt with previously, how could it be asked 'What is meant by it?'¹⁰  — Rabina therefore said: The Mishnah is indeed incomplete, but its meaning is this: 'There are five cases of Tam,'⁵  all the five of them may eventually become Mu'ad¹¹  — Tooth and Foot are Mu'ad ab initio.¹²  In this way Ox is definitely Mu'ad. As to Ox doing damage on the plaintiff's premises there is a difference of opinion between R. Tarfon and the Rabbis.¹³  There are other damage-doers which like these cases are similarly Mu'ad, as follows: The wolf, the lion, the bear, the leopard. the panther, and the snake.' This very text has indeed been taught: 'There are five cases of Tam; all the five of them may eventually become Mu'ad. Tooth and Foot are Mu'ad ab initio. In this way Ox is definitely Mu'ad. As to Ox doing damage on the plaintiff's premises there is a difference of opinion between R. Tarfon and the Rabbis. There are other damage-doers which like these are similarly Mu'ad, as follows: The wolf, the lion, the bear, the leopard, the panther and the snake.'

Some arrived at the same interpretation by having first raised the following objection: We learn THERE ARE FIVE CASES OF TAM AND FIVE CASES OF MU'AD; are there no further instances?¹⁴  Behold there are the wolf, the lion, the bear, the leopard, the panther and the snake!¹⁵  — The reply was: Rabina said: The Mishnah is incomplete and its reading should be as follows: There are five cases of Tam; all the five of them may eventually become Mu'ad — Tooth and Foot are Mu'ad ab initio. In this way Ox is definitely Mu'ad. As to Ox doing damage on the plaintiff's premises there is a difference of opinion between R. Tarfon and the Rabbis. There are other damage-doers which like these are similarly Mu'ad, as follows: The wolf, the lion, the bear, the leopard, the panther and the snake.

NOR TO FALL DOWN. R. Eleazar said: This is so only when it falls down on large pitchers, but in the case of small pitchers it is a usual occurrence.¹⁶  May we support him [from the following teaching]: 'Animal is Mu'ad to walk in the usual manner and to break or crush a human being, or an animal, or utensils'? — This however may mean, through contact sideways.¹⁷  Some read: R. Eleazar said: Do not think that it is only in the case of large pitchers that it is unusual, whereas in the case of small pitchers it is usual. It is not so, for even in the case of small pitchers it is unusual. An objection was brought: '… or crush a human being, or an animal or utensils?'¹⁸  — This¹⁹  may perhaps mean through contact sideways.²⁰  Some arrived at the same conclusion by having first raised the following objection: We have learnt: NOR TO FALL DOWN.¹⁸  But was it not taught: '… or crush a human being, or an animal or utensils'?¹⁸  R. Eleazar replied: There is no contradiction: the former statement deals with a case of large pitchers,²¹  whereas the latter deals with small pitchers.²²

THE WOLF, THE LION, THE BEAR, THE LEOPARD AND THE BARDALIS [PANTHER].²³  What is bardalis? — Rab Judah said: nafraza.²⁴  What is nafraza? — R. Joseph said: apa.²⁵  An objection was raised: R. Meir adds also the zabu'a.²⁶  R. Eleazar adds, also the snake.²⁷  Now R. Joseph said that zabu'a means apa!²⁸  — This, however, is no contradiction, for the latter appellation [zabu'a] refers to the male whereas the former [bardalis] refers to the female,²⁹  as taught elsewhere: The male zabu'a [hyena] after seven years turns into a bat,³⁰  the bat after seven years turns into an arpad,³¹  the arpad after seven years turns into kimmosh,³²  the kimmosh after seven years turns into a thorn, the thorn after seven years turns into a demon. The spine of a man after seven years turns into a snake,³³  should he not bow³⁴  while reciting the benediction, 'We give thanks unto Thee'.³⁵

The Master said: 'R. Meir adds also the zabu'a;

1. As nobody else had the right to keep there fruits.
2. Since both plaintiff and defendant had the right to keep there their cattle.
3. In the category of Tooth.
4. In the category of Tooth, but being unusual falls under the category of Horn; cf. supra 15b; infra 16b and 19b.
5. I.e., 'goring', 'colliding', 'biting', 'falling down' and 'kicking'.
6. These constitute the five cases of Mu'ad.
7. Cf. Ex. XXII, 4, and supra, 5b. ['OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES' refers thus to Tooth and not to Horn.]
8. [With reference to damage done by Horn, infra, 24b.]
9. [In Our Mishnah, i.e., the damage of Horn on the plaintiff's premises.]
10. Cf. infra 24b.
11. [The first clause of the Mishnah thus enumerates the five cases of Mu'ad as well as of Tam.]
12. [But are not included in the 'five cases of Mu'ad', the clause being added only in parenthesis.]
13. As infra p. 125.
14. Of Mu'ad.
15. Which are Mu'ad ab initio.
16. And would thus not fall under the category of Horn but under that of Foot; cf, supra p. 4.
17. Whereas to fall down upon pitchers may perhaps in all cases be unusual.
18. Is usual.
19. [So MS.M. Cur. edd, insert 'R. Eleazar said this etc.']
20. V. p. 70. n. 5.
21. Which is unusual.
22. Which is usual.
23. [G]
24. [H] D.S. [H] from [H] 'to run' or 'jump'.
25. [ [H] contraction of [H] (hyena)].
26. [Lit., 'the many-coloured'. Another term for hyena on account of its coloured stripes.]
27. To those which are enumerated in the Mishnah as Mu'ad ab initio.
28. If zabu'a means apa, how could bardalis, which is mentioned independently, also mean apa.
29. So Rashi's second interpretation; others reverse.
30. The male zabu'a is subject to undergo constant and rapid changes in the evolution of its physique, so that on account of these various transformations it has various appellations, such as bardalis, nafraza and apa [For parallels in ancient Greek and Roman literature for this belief, v. Lewysohn. Zoologie, p. 77.]
31. I.e., a species of bat; cf. Targum Jonathan Lev, XI, 19, where Heb. [H] is rendered [H].
32. I.e., a species of thorn (Jast.).
33. Which is the symbol of ingratitude.
34. And thus not appreciate the favours of eternal God bestowed upon mortal man. [This is but a quaint way of indicating the depths into which human depravity, which has its source in ingratitude to the Creator, may gradually sink.]
35. Cf. P.B. p. 51.

R. Eleazar adds also the snake.' But have we not learned: R. ELEAZAR SAYS, IF THEY HAD BEEN TAMED, THEY ARE NOT MU'AD; THE SNAKE, HOWEVER, IS ALWAYS MU'AD?¹  — Read 'the snake'.²

Samuel said: In the case of a lion on public ground seizing and devouring [an animal], there is exemption;³  but for tearing it to pieces and then devouring it there is liability to pay. In 'seizing and devouring there is exemption' on account of the fact that it is as usual for a lion to seize its prey as it is for an animal to consume fruits and vegetables; it therefore amounts to Tooth on public ground where there is exemption.³  The 'tearing' [of the prey into pieces] is however not unusual with the lion.⁴

Should it thus be concluded that the tearing of prey is unusual [with the lion]? But behold, it is written: The lion did tear in pieces enough for his whelps?⁵  — This is usual only when it is for the sake of his whelps. [But the text continues:] And strangled for his lionesses?⁵  — This again is only when it is for the sake of his lionesses. [But the text further states:] And filled his holes with prey?⁵  — [This too is usual only when it is done] with the intention of preserving it in his holes. But the text concludes: And his dens with ravin?⁵  — [This again is only] when the intention is to preserve it in his dens. But was it not taught: 'Similarly in the case of a beast entering the plaintiff's premises, tearing an animal to pieces and consuming its flesh, the payment must be made in full'?⁶  — This Baraitha deals with a case where the tearing was for the purpose of preservation. But behold, it is stated: 'consuming [its flesh]'? — It was by an afterthought that the beast consumed [it]. But how could we know that? Again, also in the case of Samuel why not make the same supposition?⁷  — R. Nahman b. Isaac therefore said: Alternative cases are dealt with [in the Baraitha]: … If it either tears to pieces for the purpose of preservation, or seizes and devours [it], the payment must he in full.' Rabina, however, said that Samuel dealt with a case of a tame lion, and was following the view of R. Eleazar,⁸  that that was unusual [with such a lion] If so, even in the case of seizing there should be liability! — Rabina's statement has, therefore, no reference to Samuel's case but to the Baraitha, which we must thus suppose to deal with a tame lion and to follow the view of R. Eleazar, that that was unusual [with such a lion].⁹  If so, [no more than] half-damages should be paid!¹⁰  — [The lion dealt with] has already become Mu'ad. If so, why has this Baraitha been taught in conjunction with the secondary kinds of Tooth,¹¹  whereas it should have been taught in conjunction with the secondary kinds of Horn? This is indeed a difficulty.

MISHNAH. WHAT IS THE DIFFERENCE [IN LAW] BETWEEN TAM AND MU'AD? IN THE CASE OF TAM ONLY HALF-DAMAGES ARE PAID AND ONLY OUT OF THE BODY [ OF THE TORT-FEASENT CATTLE], WHEREAS IN THE CASE OF MU'AD FULL PAYMENT IS MADE OUT OF ['ALIYYAH]¹²  THE BEST [OF THE ESTATE].

GEMARA. What is 'Aliyyah? — R. Eleazar said: The best of the defendant's estate as stated in Scripture: And Hezekiah slept with his fathers and they buried him [be-ma'aleh] in the best of the sepulchres of the sons of David;¹³  and R. Eleazar said: be-ma'aleh means, near the best of the family, i.e., David and Solomon. [Regarding King Asa it is stated:] And they buried him in his own sepulchres which he had made for himself in the city of David and laid him in the bed which was filled with [besamim u-zenim]¹⁴  sweet odours and divers kinds of spices.¹⁵  What is besamim u-zenim? — R. Eleazar said: Divers kinds of spices. But R. Samuel b. Nahmani said: Scents which incite all those who smell them to immorality.¹⁶

[Regarding Jeremiah it is stated:] For they have digged a ditch to take me and hid snares for my feet.¹⁷  R. Eleazar said: They maliciously accused him of [having illicit intercourse with] a harlot. But R. Samuel b. Nahmani said: They maliciously accused him of having [immoral connections with] another man's wife. No difficulty arises if we accept the view that the accusation was concerning a harlot, since it is written: For a harlot is a deep ditch.¹⁸  But according to the view that the accusation was concerning another man's wife, how is this expressed in the term 'ditch' [employed in Jeremiah's complaint]?¹⁷  — Is then another man's wife [when committing adultery] excluded from the general term of 'harlot'? [On the other hand] there is no difficulty on the view that the accusation was concerning another man's wife, for Scripture immediately afterwards says: Yet Lord, Thou knowest all their counsel against me to slay me;¹⁹  but according to the view that the accusation was concerning a harlot, how did they thereby intend 'to slay him'?²⁰  — [This they did] by throwing him into a pit of mire.²¹

Raba gave the following exposition: What is the meaning of the concluding verse: But let them be overthrown before Thee; deal thus with them in the time of Thine anger?²²  — Jeremiah thus addressed the Holy One, blessed be He: Lord of the Universe, even when they are prepared to do charity, cause them to be frustrated by people unworthy of any consideration so that no reward be forthcoming to them for that charity.²³

[To come back to Hezekiah regarding whom it is stated:] And they did him honour at his death:²⁴  this signifies that they set up a college²⁵  near his sepulchre. There was a difference of opinion between R. Nathan and the Rabbis. One said: For three days,

1. [Which seems to exclude the other animals enumerated in the Mishnah?]
2. Do not read 'also the snake', but 'the snake', i.e. 'only the snake', excluding 'the hyena' introduced by R. Meir, as well as the other animals enumerated.
3. Cf. Ex XXII, 4 and supra 5b.
4. And falls thus under the category of Horn which is not immune even on public ground, cf. supra p. 67 and infra 19b.
5. Nah. II, 13.
6. Cf. infra 19b.
7. [Why then doses he state that, where the lion tore and consumed, there is payment?]
8. Supra p. 68.
9. And comes therefore within the category of Horn, for which there is liability even on public grounds.
10. For in the case of Horn only half-damages are paid on the first three occasions.
11. I.e., infra 19b.
12. [H]
13. II Chron. XXXII, 33. [The word [H] (E.V.: 'ascent') is tendered as 'the best' from [H] 'to go up', 'to excel'.]
14. [H]
15. II Chron. XVI, 14.
16. [Deriving [H] from [H] to commit whoredom'.]
17. Jer. XVIII, 22.
18. Prov. XXIII, 27.
19. Jer. XVIII, 23; referring to the death penalty prescribed for such an offence. See Lev. XX, 10.
20. Since no death penalty is attached to that sin,
21. Jer. XXXVIII, 6.
22. Ibid. XVIII, 23.
23. Cf. however Keth. 68a.
24. II Chron. XXXII, 33.
25. [Of students to study the law.]