Babylonian Talmud: Tractate Baba Kamma

Folio 45a

the sale holds good; if he declares it sacred, it is sacred; if it is slaughtered, its flesh is permitted [for food]; if a bailee returns it to the house of its owner, it is an effective restoration. But if after its sentence had already been pronounced the owner sold it, the sale would not be valid; if he consecrates it, it is not consecrated; if it is slaughtered its flesh is forbidden [for any use]; if a bailee returns it to the house of its owner, it is not an effective restoration. R. Jacob, however, says: Even if after the sentence had already been pronounced the bailee returned it to its owner, it would be an effective restoration. Shall we say that the point at issue¹  is that in the view of the Rabbis it is of no avail to plead²  regarding things which became forbidden for any use, 'Here is your property before you',³  whereas in the view of R. Jacob it can be pleaded even regarding things forbidden for any use, 'Here is your property before you'? — Rabba said: Both parties in fact agree that even regarding things forbidden for any use, the plea, 'Here is your property before you' can be advanced, for if it is as you said,⁴  why did they not differ in the case of leaven⁵  on Passover?⁶  But the point at issue here [in the case before us] must therefore be whether [or not] sentence may be pronounced over an ox in its absence. The Rabbis maintain that no sentence can be pronounced over an ox in its absence, and the owner may accordingly plead against the bailee: 'If you would have returned it to me [before the passing of the sentence], I would have caused it to escape to the pastures, whereas you have allowed my ox to fall into the hands of those⁷  against whom I am unable to bring any action'. R. Jacob, however, maintains that the sentence can be pronounced over the ox even in its absence, and the bailee may accordingly retort to the owner: 'In any case the sentence would have been passed on the ox.' What is the reason of the Rabbis? — [Scripture says]: The ox shall be stoned and its owner also shall be put to death⁸  [implying that] the conditions under which the owner would be subject to be put to death [were he to have committed murder], are also the conditions under which the ox would be subject to be put to death; just as in the case of the owner [committing murder, the sentence could be passed only] in his presence,⁹  so also [the sentence] in the case of an ox [could be passed only] in its presence. But R. Jacob [argues]: That applies well enough to the case of the owner [committing murder], as he is able to submit pleas, but is the ox also able to submit pleas?¹⁰

WHERE AN OWNER HAS HANDED OVER HIS CATTLE TO AN UNPAID BAILEE OR TO A BORROWER etc. Our Rabbis taught: The following four [categories of persons] enter into all liabilities in lieu of the owner, viz., Unpaid Bailee and Borrower, Paid Bailee and Hirer. [If cattle so transferred] kill [a person] if they are Tam, they would be stoned to death, but there would be exemption from kofer,¹¹  whereas in the case of Mu'ad, they would be stoned and the bailees in charge would be liable to pay kofer. In all cases, however, the value of the ox would have to be reimbursed to the owner by all of the bailees with the exception of the Unpaid Bailee. I would here ask with what circumstances are we dealing? If where the ox [was well] guarded, why should all of them¹²  not be exempt [from having to reimburse the owner]? If on the other hand it was not guarded well, why should even the Unpaid Bailee not be liable?¹³  — It might be said that we are dealing here with a case where inferior precautions¹⁴  were taken to control the ox but not really adequate precautions.¹⁵  In the case of an Unpaid Bailee his obligation to control was thereby fulfilled, whereas the others did thereby not yet fulfil their obligation to control. Still I would ask, whose view is here followed? If that of R. Meir

1. I.e. between R. Jacob and the Rabbis.
2. Against a depositor or against a person who was robbed of an article, before it became prohibited for any use.
3. The reason is that, by becoming forbidden for any use, the things, though not undergoing any change in their external size and appearance, do not remain (in the eyes of the law) the same things as were previously deposited with the bailee or misappropriated by the robber, their status then having been different.
4. That R. Jacob and the Rabbis differ on this point.
5. Stolen before the eve of Passover.
6. I.e. whether the leaven might be returned by the robber after the approach of Passover when it became forbidden for any use; cf. infra pp. 561, 572.
7. I.e. the Court of Law.
8. Ex. XXI, 29.
9. For which cf. Num. XXXV, 12.
10. That its presence should be required.
11. Ex. XXI, 28.
12. With the exception, however, of the borrower who is liable even for accidents.
13. For he also is liable for carelessness.
14. Such as e.g. a door which would withstand only an ordinary wind. V. infra 55b
15. So as to withstand a wind of even unusual force.

who maintained¹  that Hirer is subject to the same law as Unpaid Bailee, why is it not taught above 'with the exception of Unpaid Bailee and Hirer'? If [on the other hand the view followed] was that of R. Judah who maintained¹  that Hirer should be subject to the same law as Paid Bailee, why was it not taught 'with the exception of Unpaid Bailee, whereas in the case of Mu'ad they all would be exempt from kofer'?²  — R. Huna b. Hinena thereupon said: This teaching is in accordance with R. Eliezer, who said,³  that the only precaution for it [Mu'ad] is the slaughter knife, and who regarding Hirer might agree with the view of R. Judah that Hirer should be subject to the same law as Paid Bailee. Abaye, however, said: It could still follow the view of R. Meir, but as transposed by Rabbah b. Abbahu who learnt thus: How is the payment [for the loss of the article] regulated in the case of Hirer? R. Meir says: As in the case of Paid Bailee. R. Judah, however, says: As in the case of Unpaid Bailee.⁴

R. Eleazar said: Where an ox had been handed over to an Unpaid Bailee and damage was done by it, the bailee would be liable, but where damage was done to it, the bailee would be exempt. I would here ask what were the circumstances? If where the bailee had undertaken to guard the ox against damage, why even in the case where it was injured should there be no liability? If, on the other hand, where the bailee had not undertaken to guard against damage why even in the case where damage was done by the ox should there not be exemption? — Raba thereupon said: We suppose in fact that the bailee had undertaken to guard the ox against damage, but the case here is one where he had known the ox to be a gorer, and it is natural that what he did undertake was to prevent the ox from going and doing damage to others, but he did not think of the possibility of others coming and injuring it.

MISHNAH. IF THE OWNER FASTENED HIS OX [TO THE WALL INSIDE THE STABLE] WITH A CORD, OR SHUT THE DOOR IN FRONT OF IT IN THE ORDINARY WAY⁵  BUT THE OX GOT OUT AND DID DAMAGE, WHETHER IT HAD BEEN TAM OR ALREADY MU'AD, HE WOULD BE LIABLE; THIS IS THE RULING OF R. MEIR. R. JUDAH, HOWEVER, SAYS: IN THE CASE OF TAM HE WOULD BE LIABLE, BUT IN THE CASE OF MU'AD HE WOULD BE EXEMPT, SINCE IT IS WRITTEN, AND HIS OWNER HATH NOT KEPT HIM IN,⁶  [THUS EXCLUDING THIS CASE WHERE] IT WAS KEPT IN. R. ELIEZER SAYS: NO PRECAUTION IS SUFFICIENT [FOR MU'AD] SAVE THE [SLAUGHTER] KNIFE.

GEMARA. What was the reason of R. Meir? — He Maintained that normally oxen are not kept under control,⁷  and the Divine Law enacted that Tam should involve liability to show that at least moderate precautions were required. Then the Divine Law stated further in the case of Mu'ad, And his owner hath not kept him in,⁶  to show that [for this] really adequate precautions are required;⁸  and the goring mentioned in the case of Tam is now placed on a par with the goring mentioned in the case of Mu'ad.⁹  R. Judah, however, maintained that oxen normally are kept under control, and the Divine Law stated that in the case of Tam there should be payment to show that really adequate precaution is required. The Divine Law, however, goes on to say, And his owner hath not kept him in,⁶  in the case of Mu'ad. [This would imply] that there should be there precaution of a superior degree. [These words, however, constitute] an amplification following an amplification, and as the rule is that an amplification following an amplification intimates nothing but a limitation,¹⁰  Scripture has thus reduced the superior degree of the required precaution. And should you object to this that goring is mentioned in the case of Tam and goring is mentioned in the case of Mu'ad⁹  [for mutual inference,¹¹  the answer is that in this case] the Divine Law has explicitly restricted [this ruling by stating] And his owner hath not kept him in,⁶  [the word 'him' confining the application] to this one¹²  but not to another.¹³  But surely these words are needed for the stated purpose?¹⁴  — [If that were so, the Divine Law should write surely, 'Hath not kept in'. Why does it say, hath not kept him in? To show that the rule applies to this one¹⁵  but not to another.¹⁶

It has been taught: R. Eliezer b. Jacob says: Whether in the case of Tam or in that of Mu'ad, as soon as even inferior precautions have been taken [to control the ox], there is exemption. What is his reason? — He concurs with R. Judah, in holding that in the case of Mu'ad precaution even of an inferior degree is sufficient, and he [extended this ruling to Tam as he] on the strength of [the mutual inference¹⁷  conveyed by] the mention of goring in the case both of Tam and of Mu'ad.¹⁷

R. Adda b. Ahabah said: The exemption laid down by R. Judah applies only to the part of the payment due on account of the ox having been declared Mu'ad,¹⁸  but the portion due on account of Tam remains unaffected.¹⁹  Rab said: Where the ox was declared Mu'ad to gore with the right horn, it would thereby not become Mu'ad for goring with the left horn.²⁰  I would here ask: In accordance with whose view [was this statement made]? If in accordance with R. Meir, did he not say that whether in the case of Tam or in that of Mu'ad, precaution of a superior degree was needed?²¹  If [on the other hand] in accordance with R. Judah,²²  why specify only the left horn? Even in the case of the right horn itself, does not one part of the payment come under the rule of Tam²³  and another under that of Mu'ad? I may say that in fact it is in accordance with R. Judah, and that Rab does not concur in the view. expressed by R. Addah b. Ahabah, and what Rab thus intended to say was that it was only in such an instance²⁴  that there would be in one ox part Tam and part Mu'ad.

1. Cf. infra 57b.
2. For R. Judah maintains that even an inferior precaution in the case of Mu'ad suffices to confer exemption for any damage that has nevertheless resulted.
3. Infra p. 259.
4. V. p. 257, n. 7. [And since R. Meir also holds that Mu'ad requires adequate precaution, he rightly makes the Hirer liable to pay kofer as well as reimburse the owner.]
5. So that it would be perfectly safe in the case of an ordinary wind; cf. infra 55b.
6. Ex. XXI, 36.
7. Cf. supra p. 64.
8. So that it would be safe even in the case of a wind of unusual force.
9. To show that both require really adequate precaution.
10. V. Shebu. (Sonc. ed.) p. 12, n. 3.
11. Cf. supra p. 250. [So that for Tam too an inferior precaution should suffice.]
12. To Mua'd.
13. To Tam.
14. Lit., 'for the negative', that is, that he is liable because be failed to take the necessary precautions.]
15. V. p. 259, n. 7.
16. Ibid. n. 8.
17. Ibid. n. 6.
18. I.e. the half added on account of the ox having been declared Mu'ad.
19. And thus constantly subject to the law of Tam.
20. Damage done by the right horn would thus be subject to the degree of precaution required in the case of Mu'ad while damage done by the left horn would still remain subject to the degree of precaution needed in Tam.
21. Thus so far as precaution is concerned there would in this case be no difference between the right horn and the left horn.
22. Who demands a greater degree of precaution in case of a Tam than in that of a Mu'ad, and accordingly there would be no liability if the ox gored with the right horn after inferior precautions had been taken, whereas there would be liability with the left horn.
23. Requiring on that account adequate precautions, in the absence of which there should be liability.
24. Where the ox gored three times with the right horn and was declared Mu'ad accordingly, remaining thus Tam in respect of the left horn.