Babylonian Talmud: Tractate Baba Kamma

Folio 29a

that no action can be instituted against him in civil courts though there is liability¹  according to divine justice. The Sages agree however, with R. Meir that, in the case of a stone, a knife and luggage which were left on the top of the roof and fell down because of a wind of usual occurrence²  and did damage, there will be liability.³  R. Meir [on the other hand] agrees with the Sages that, regarding bottles that were placed upon the top of the roof for the purpose of getting dry and fell down because of a wind of unusual occurrence⁴  and did damage, there is exemption.⁵  [Does not this prove that even regarding damages all agree that there is exemption in cases of sheer accident?] — Abaye therefore said: It is on two points that they⁶  differ [in the Mishnah]; they differ regarding damage done at the time of the fall [of the pitcher] and they again differ regarding damage occasioned [by the potsherds] subsequently to the fall. The difference of opinion regarding damage done at the time of the fall of the pitcher arises on the question whether stumbling implies negligence [or not];⁷  one Master⁸  maintaining that stumbling does imply negligence, whereas the other Master⁹  is of the opinion that stumbling does not [necessarily] imply negligence.¹⁰  The point at issue in the case of damage occasioned [by the potsherds] subsequently to the fall, is the law as applicable to abandoned nuisances;¹¹  one Master⁸  maintaining that for damage occasioned by abandoned nuisances there is liability,¹²  whereas the other Master⁹  maintains exemption.¹³  But how can you prove this?¹⁴  — From the text which presents two [independent] cases [as follows]; SOMEONE SLIPPED IN THE WATER OR WAS INJURED BY THE POTSHERD; for indeed is not one case the same as the other,¹⁵  unless it was intended to convey, 'Someone slipped in the water while the pitcher had been falling¹⁶  or was injured by the potsherd subsequently to the fall.'

Now that the Mishnah presents two independent cases, it is only reasonable to assume that the Baraitha¹⁷  similarly deals with the same two problems. That is all very well as regards the 'pitcher' where the two [problems] have application [in the case of damage done] at the time of the fall or subsequently to the fall [respectively]. But how in the case of the 'camel'? For though concerning damage occasioned subsequently to the fall, it may well have application where the carcass has been abandoned,¹⁸  yet in the case of damage done at the time of the fall, what point of difference can be found?¹⁹  — R. Aha thereupon said: [It deals with a case] where the camel was led in water along the slippery shore of a river.²⁰  But under what circumstances? If where there was another [better] way, is it not a case of culpa lata?²¹  If on the other hand there was no other way [to pass through], is it not a case of no alternative? — The point at issue can therefore only be where the driver stumbled and together with him the camel also stumbled.

But in the case of abandoning nuisances,²²  where could [the condition of] intention [laid down by R. Judah] come in? — Said R. Joseph: The intention [in this case] refers to the retaining of the ownership of the potsherd.²³  So also said R. Ashi, that the intention [in this case] refers to the retaining of the ownership of the potsherd.

R. Eleazar said: 'It is regarding damage done at the time of the fall that there is a difference of opinion.' But how in the case of damage done subsequently to the fall? Would there be unanimity that there is exemption? Surely there is R. Meir who expressed [his opinion]²⁴  that there is liability! What else [would you suggest? That in this case] there is unanimity [imposing] liability? Surely there are the Rabbis who stated [their view] that there is exemption! — Hence, what he means [to convey by his statement] 'damage done at the time of the fall', is that there is difference of opinion 'even regarding damage done at the time of the fall', making thus known to us [the conclusions arrived at] by Abaye.²⁵

1. For not having removed the potsherds or the camel that fell down.
2. Which the defendant should have anticipated.
3. For carelessness.
4. Which could hardly have been anticipated.
5. For in this case the defendant is not to blame for carelessness.
6. I.e., R. Judah and the anonymous view which is that of R. Meir.
7. As it was owing to the defendant having stumbled that his pitcher gave way.
8. I.e., R. Meir.
9. I.e., R. Judah.
10. 'INTENTIONALLY' stated in the Mishnah would thus mean where there was intention actually to break the pitcher, for if the intention was merely to bring the pitcher below the shoulder it would come under the term 'UNINTENTIONALLY', the ground advanced by R. Judah is that in the case of stumbling and breaking a pitcher and doing thereby damage, no negligence was necessarily involved.
11. Of which the defendant is no longer the owner.
12. For the liability in the case of Pit is also where it has been dug in public ground and is thus ownerless.
13. For he holds that the liability in the case of Pit is only where the defendant had dug it in his own ground and though he subsequently abandoned it he retained the ownership of the pit itself; cf. supra p. 107; and infra 50a.
14. That the points at issue are twofold.
15. Why then would one case not have sufficed?
16. And the water was still in the process of being poured out.
17. Supra p. 152.
18. The point at issue thus consisting in the law applicable to abandoned nuisances.
19. For the problem whether 'stumbling' implies negligence or not has surely no application where it was not the driver but the camel that stumbled.
20. The stumbling of the camel is thus imputed to the driver.
21. I.e., grave fault, which has nothing to do with the problem of stumbling.
22. Which is the second point at issue between R. Judah and R. Meir.
23. [R. Judah therefore means this: If he had the intention of retaining the shards he is liable; if he had no intention to do so but abandoned them, he is exempt.]
24. Supra p. 152.
25. Supra p. 153.

R. Johanan, however, said: 'It is regarding damage occasioned after the fall [of the pitcher] that there is a difference of opinion.' But how in the case of damage done at the time of the fall? Would there be unanimity [granting] exemption? Surely R. Johanan's statement further on¹  that we should not think that the Mishnah²  [there] follows the view of R. Meir who maintains that stumbling constitutes carelessness, implies that R. Meir imposes liability.³  What else [would you suggest? That there] be unanimity [imposing] liability? Surely the very statement made further on¹  by R. Johanan [himself] that we should not think that the Mishnah²  [there] follows the view of R. Meir, implies that the Rabbis would exempt!³  — Hence what he [R. Johanan] intends to convey to us is that abandoned nuisances have only in this connection been exempted from liability by the Rabbis since the very inception [of the nuisances]⁴  was by accident, whereas abandoned nuisances in other circumstances involve liability [even according to the Rabbis].⁵

It was stated: In the case of abandoned nuisances [causing damage], R. Johanan and R. Eleazar [differ]. One imposes liability and the other maintains exemption. May we not say that the one imposing liability follows the view of R. Meir,⁶  whereas the other, who maintains exemption follows that of the Rabbis?⁶  — As to R. Meir's view no one could dispute [that there should be liability].⁷  Where they differ is as to the view of the Rabbis. The one who exempts does so because of the Rabbis,⁸  while the other who imposes liability can say to you, 'It is I who follow the view even of the Rabbis, for the Rabbis who declare abandoned nuisances exempt do so only in one particular connection, where the very inception [of the nuisances]⁹  had been by accident, whereas abandoned nuisances in other connections involve liability.' May it not be concluded that it was R. Eleazar who imposed liability? For R. Eleazar said in the name of R. Ishmael:¹⁰  There are two [laws dealing with] matters that are really not within the ownership of man but which are regarded by Scripture as if they were under his ownership. They are [the following]: Pit in public ground,¹¹  and Leaven after midday [on Passover eve].¹²  It may indeed be concluded thus.¹³

But did R. Eleazar really say so? Did not R. Eleazar express himself to the contrary? For we have learnt;¹⁴  'If a man turns up dung that had been lying on public ground and another person is [subsequently] injured thereby, there is liability for the damage.' And R. Eleazar thereupon said: This Mishnaic ruling applies only to one who [by turning over the dung] intended to acquire title to it. For if he had not intended to acquire title to it there would be exemption. Now, does not this prove that abandoned nuisances are exempt? — R. Adda b. Ahabah suggested [that the amendment made by R. Eleazar] referred to one who has restored the dung to its previous position.¹⁵  Rabina [thus] said: The instance given by R. Adda b. Ahabah may have its equivalent in the case of one who, on coming across an open pit, covered it, but opened it up again. But Mar Zutra the son of R. Mari said to Rabina: What a comparison! In the latter case, [by merely covering the pit] the [evil] deed of the original [offender] has not yet been undone, whereas in the case before us [by removing the dung from its place] the [evil] deed of the original [offender] has been undone! May it not therefore [on the other hand] have its equivalent only in the case of one who, on coming across an open pit, filled it up [with earth] but dug it out again, where, since the nuisance created by the original [offender] had already been completely removed [by filling in the pit], it stands altogether under the responsibility of the new offender? — R. Ashi therefore suggested [that the amendment made by R. Eleazar] referred to one who turned over the dung within the first three [handbreadths]¹⁶  of the ground [in which case the nuisance created by the original offender is not yet considered in law as abated]. But what influenced R. Eleazar to make the [Mishnaic] ruling¹⁷  refer to one who turned over the dung within the first three [handbreadths of the ground], and thus to confine its application only to one who intended to acquire title to the dung,¹⁸  excluding thereby one who did not intend to acquire title to it? Why not indeed make the ruling refer to one who turned over the dung above the first three handbreadths, so that even where one did not intend to acquire title to it the liability should hold good? — Raba [thereupon] said: Because of a difficulty in the Mishnaic text¹⁷  [which occurred to him]: Why indeed have 'turning up' in the Mishnaic text and not simply 'raising,'¹⁹  if not to indicate that 'turning up' implies within the first three handbreadths [of the ground].

Now [then] that R. Eleazar was the one who maintained liability,²⁰  R. Johanan would [of course] be the one who maintained exemption. But could R. Johanan really maintain this? Surely we have learnt: If a man hides thorns and broken glass [in public ground], or makes a fence of thorns, or if a man's fence falls upon public ground and damage results therefrom to another person, there is liability for the damage.²¹  And R. Johanan thereupon said: This Mishnaic ruling refers to a case where the thorns were projecting into the public thoroughfare. For if they were confined within private premises²²  there would be exemption. Now, why should there be exemption in the case where they were confined within private premises if not because they would only constitute a nuisance on private premises? Does this then not imply that it is only a nuisance created upon public ground that involves liability, proving thus that abandoned nuisances do involve liability? — No, it may still be suggested that abandoned nuisances are exempt. The reason for the exemption in the case of thorns confined to private premises is, as it has already been stated in this connection,²¹  that R. Aha the son of R. Ika said: Because it is not the habit of men to rub themselves against walls.²³

But again, could R. Johanan [really] maintain this?²⁴  Surely R. Johanan stated:²⁵  The halachah is in accordance with anonymous Mishnaic rulings. And we have learnt: If a man digs a pit in public ground, and an ox or ass falls in and dies, there is liability.²⁶  [Does this not prove that there is liability for a pit dug in public ground?] — [It must] therefore [be concluded that] R. Johanan was indeed the one who maintained liability. Now then that R. Johanan was the one who maintained liability, R. Eleazar would [of course] be the one who maintained exemption. But did not R. Eleazar say

1. Infra p. 166.
2. Dealing with the case of the two potters, infra p. 166.
3. For damage done at the time of the fall.
4. I.e., when the pitcher gave way or the camel fell down.
5. The statement made by R. Johanan that it was regarding damage occasioned after the fall (of the pitcher) that there was a difference of opinion would thus mean that the difference of opinion between R. Meir and the other Rabbis was only where the inception of the nuisance was with a fall, i.e. with an accident, as where the nuisance had originally been wilfully exposed to the public there would be liability according to all opinions.
6. V. p. 155, n. 1.
7. For R. Meir imposes liability for abandoned nuisances even where their very inception was by accident; v. Rashi, but also Tosaf. 29a.
8. Supra p. 153.
9. As when the pitcher gave way or the camel fell down.
10. Pes. 6b.
11. Which is not the property of the defendant, but for which he is nevertheless responsible on account of his having dug it.
12. Lit., 'from the sixth hour upwards', when in accordance with Pes. I. 4, it becomes prohibited for any use and is thus rendered ownerless, but for its destruction the original owner is still held responsible.
13. That according to R. Eleazar abandoning nuisances does not release from responsibility.
14. Infra p. 161.
15. In which case the defendant did not aggravate the position.
16. According to the principle of Labud, which is the legal consideration of separated parts as united, one substance is not regarded as removed from another unless a space of not less than three handbreadths separates them.
17. Infra p. 161.
18. Lit., 'and the reason is because he intended', etc.
19. Which would necessarily mean above the first three handbreadths of the ground level.
20. In the case of abandoned nuisances that have caused damage.
21. Infra p. 159.
22. Although he subsequently abandoned it to the public.
23. It is therefore the plaintiff himself who is to blame.
24. That abandoning nuisances releases from responsibility.
25. Shab. 46a.
26. Infra 50b.