Babylonian Talmud: Tractate Baba Kamma

Folio 27a

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

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

Rabbah further said: In the case of one who through a wind of unusual occurrence fell from the top of the roof [upon a human being] and did damage as well as caused degradation, there will be liability for Depreciation⁸  but exemption from the [additional] Four Items:⁹  if, however, [the fall had been] through a wind of usual occurrence and damage as well as degradation was occasioned, there is liability for Four Items⁴  but exemption from Degradation.⁷  If he turned over [while falling]¹⁰  there would be liability also for Degradation for it was taught: From the implication of the mere statement, And she putteth forth her hand,¹¹  would I not have understood that she taketh him? Why then continue in the text and she taketh him?¹²  — In order to inform you that since there existed an intention to injure though none to cause degradation [there is liability even for Degradation].

Rabbah again said: In the case of one placing a live coal on a neighbour's heart and death resulting, there is exemption;¹³  if, however, it was put upon his belongings¹⁴  which were [thereby] burnt, there is liability.¹⁵  Raba said: Both of the two [latter cases] have been dealt with in Mishnah. Regarding the case 'on a neighbour's heart' we learnt:¹⁶  If one man held another fast down in fire or in water, so that it was impossible for him to emerge and death resulted, he is guilty [of murder]. If, however, he pushed him into fire or into water, and it was yet possible for him to emerge but death resulted, there is exemption. Regarding the case 'Upon his belongings' we have similarly learnt:¹⁷  [If a man says to another,] 'Tear my garment;' 'Break my jug;'¹⁸  there is nevertheless liability [for any damage done to the garment or to the jug]. But if he said, '… upon the understanding that you will incur no liability,' there is exemption. Rabbah, however, asked: If a man placed a live coal upon the heart of a slave¹⁹  [and injury²⁰  results therefrom], what should be the law?²¹  Does it come under the law applicable in the case of a coal having been placed upon the body of the master himself,²²  or to that applicable in the case of a coal having been placed upon a chattel of his?²³  Assuming that it is subject to the law applicable in the case of a coal having been placed upon the heart of the master himself,²²  what should be the law regarding a live coal placed upon an ox [from which damage resulted]? — He himself answered the query thus: His slave is on a par with his own body,²²  whereas his ox is on a par with his chattels.²³

CHAPTER III

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

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

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

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

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

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

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

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

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

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