Babylonian Talmud: Tractate Baba Kamma

Folio 53a

the fall in each case being into the pit. Rab thus adhered to his own view as [elsewhere]¹  stated by Rab, that the liability in the case of Pit imposed by the Torah²  is for injury caused by the unhealthy air [of the pit] but not for the blow [given by it]. Samuel, however, said that where the ox fell into the pit, whether on its face or on its back, there would always be liability, since Samuel adhered to the view stated by him [elsewhere]¹  that [the liability is] for the unhealthy air, and a plus forte raison for the blow. How then are we to understand [the words 'Where it fell] BACKWARD ON ACCOUNT OF THE NOISE OF DIGGING', in which case [we are told] there should be exemption? — As, for instance, where it stumbled over the pit and fell to the back of the pit, [i.e.,] outside the pit.³

An objection was raised [from the following: If it fell] inside the pit whether on its face or on its back there would be liability. Is not this a contradiction of the statement of Rab? — R. Hisda replied: Rab would admit that in the case of a pit in private ground⁴  there would be liability, as the plaintiff could argue against the defendant: 'Whichever way you take it, if the animal died through the unhealthy air, was not the unhealthy air yours? If [on the other hand] it died through the blow, was not the blow given by your ground?⁵  Rabbah, however, said: We are dealing here⁶  with a case where the animal turned itself over; it started to fall upon its face but [before reaching the bottom of the pit it] turned itself over and finally fell upon its back, so that the unhealthy air which affected it [at the outset] really did the mischief. R. Joseph. however, said that we are dealing here⁶  with a case where damage was done to the pit by the ox, i.e., where the ox made foul the water in the pit,⁷  in which case no difference could be made whether it fell on its face or on its back, as there would always be liability.

R. Hananiah learnt [in a Baraitha] in support of the statement of Rab: [Scripture says] And it fall,⁸  [implying that there would be no liability] unless where it fell in the usual way of falling.⁹  Hence the Sages said: If it fell forward on account of the noise of digging there would be liability, but if it fell backward on account of the noise of digging there would be exemption, though in both cases [it fell] into the pit.

The Master stated: Where it fell forward on account of the noise of digging there would be liability. But why not say that it was the digger who caused it?¹⁰  — R. Shimi b. Ashi thereupon said: This ruling is in accordance with R. Nathan, who stated that it was the owner of the pit who did the actual damage, and whenever no payment can be enforced from one [co-defendant] it is made up from the other¹¹  as indeed it has been taught: 'If an ox pushes another ox into a pit, the owner of the ox is liable, while the owner of the pit is exempt. R. Nathan, however, said that the owner of the ox would have to pay a half [of the damages] and the owner of the pit would have to pay the other half.' But was it not taught: R. Nathan says: The owner of the pit has to pay three-quarters, and the owner of the ox one quarter? — There is no contradiction, as the latter statement refers to Tam¹²  and the former to Mu'ad.¹³  On what principle did he base his ruling in the case of Tam? If he held that this [co-defendant] should be considered [in the eye of the law] as having done the whole of the damage, and so also the other co-defendant as having done the whole of the damage, why should not the one pay half and the other also pay half? If [on the other hand] he held that the one did half the damage and the other one also did half the damage, then let the owner of the pit pay half [of the damages] and the owner of the ox a quarter,¹⁴  while the remaining quarter will be lost to the plaintiff? Raba thereupon said: R. Nathan was a judge, and went down to the depth of the law:¹⁵  He did in fact hold that the one was considered as having done the whole of the damage and so also the other was considered as having done the whole of the damage; and as for your question 'Why should the one not pay half and the other half?' [he could answer] because the owner of the ox¹⁶  could say to the owner of the pit, 'What will this your joining me [in the defence] benefit me?'¹⁷  Or if you wish you may [alternatively] say that R. Nathan did in fact hold that the one did half of the damage and the other did half of the damage, and as for your question, 'Why not let the owner of the pit pay half and the owner of the ox a quarter while the remaining quarter will be lost to the plaintiff?' he might answer, because the owner of the killed ox would be entitled to say to the owner of the pit, 'As I have found my ox in your pit, you have killed it. Whatever is paid to me by the other defendant I do not mind being paid [by him], but whatever is not paid to me by him, I will require to be paid by you.'¹⁸

Raba said: If a man puts a stone near the mouth of a pit [which had been dug by another person] and an ox coming along stumbles over the stone and falls into the pit, we are here brought face to face¹⁹  with the difference of opinion between R. Nathan and the Rabbis.²⁰  But is this not obvious? — You might perhaps have said that [the difference of opinion was confined to that case] where the owner of the pit could say to the owner of the ox, 'Had not my pit been there at all, your ox would in any case have killed the other ox,' whereas in this case the person who put the stone [near the pit] could certainly say to the owner of the pit, 'If not for your pit what harm would my stone have done? Were the ox even to have stumbled over it, it might have fallen but would have got up again.' We are therefore told [by this] that the other party can retort, 'If not for your stone, the ox would not have fallen into the pit at all.'

It was stated:

1. Supra p. 289.
2. Ex. XXI, 33-34.
3. In which case the pit acted only as a secondary cause.
4. Where the ground round about the pit has been abandoned, while the pit itself and the ground of it still remain with the owner.
5. Since the pit and its ground remained yours.
6. Where liability was stated.
7. Cf. Mishnah 47b.
8. Ex. XXI, 33.
9. Cf. supra p. 290.
10. Why then should the owner of the pit be liable? The digger too should also be exempt as he was but a remote cause to the damage that resulted.
11. Cf. supra 13a.
12. In which case the owner of the ox will pay quarter and the owner of the pit three quarters.
13. Where both of them will pay equally.
14. Which is half of the payment in the case of Tam.
15. B.M. 117b; cf. also Hor. 13b.
16. In the case of Tam.
17. If I will have to pay half damages which is the maximum payment in my case.
18. V. p. 307, n. 7. [And similarly in the case of our Mishnah since he cannot claim any damages from the digger, who was but a secondary cause, he is compensated by the owner of the pit.]
19. As to whether the digger of the pit or the one who put the stone should be liable.
20. According to whom the one who put the stone would alone have to pay.

Where an ox [of a private owner] together with an ox that was sacred¹  but became disqualified²  [for the altar], gored [an animal]. Abaye said that the private owner would have to pay half damages,³  whereas Rabina said that he would have to pay quarter damages.³  Both the one and the other are speaking of Tam, but while Rabina followed the view of the Rabbis,⁴  Abaye followed that of R. Nathan.⁵  Or if you wish you may say that both the one and the other followed the view of the Rabbis,⁴  but while Rabina was speaking of Tam⁶  Abaye was speaking of Mu'ad. Some report that Abaye stated half damages and Rabina full damages. The one ruling like the other would refer to the case of Mu'ad, but while one⁷  followed the Rabbis⁸  the other⁹  followed the view of R. Nathan.¹⁰  If you wish you may say that the one ruling like the other followed the view of R. Nathan, but while ones was speaking of Mu'ad, the other⁷  was speaking of Tam.¹¹

Raba said: If an ox along with a man pushes [certain things] into a pit, on account of Depreciation¹²  they would all [three]¹³  be liable, but on account of the four [additional] items¹²  or with respect to compensation for the value of [lost] embryos.¹⁴  Man would be liable¹⁵  but Cattle and Pit exempt;¹⁴  in respect of kofer¹⁶  or the thirty shekels¹⁷  for [the killing of] a slave, Cattle would be liable¹⁸  but Man and Pit exempt;¹⁹  in respect of damage done to inanimate objects or to a sacred ox which had become disqualified [for the altar], Man and Cattle would be liable but Pit exempt, the reason being that Scripture says, And the dead beast shall be his,²⁰  [implying that it was only] in the case of an ox whose carcass could be his²¹  [that there would be liability], excluding thus the case of this [ox] whose carcass could not be his.²²  Does this mean that this last point was quite certain to Raba? Did not Raba put it as a query? For Raba asked; If a sacred ox which had become disqualified²³  [for the altar] fell into a pit, what would be the legal position? Shall we say that this [verse], And the beast shall be his, [confines liability to the case of] an ox whose carcass could be his, thus excluding the case of this ox whose carcass could never be his,²²  or shall we say that the words And the dead beast shall be his are intended only to lay down that the owners [plaintiffs] have to retain the carcass as part payment?²⁴  [The fact is that] after raising the question he himself solved it. But whence [then] would he derive the law that the owners [plaintiffs] have to retain the carcass as part payment? — He would derive it from the clause and the dead shall be his own²⁵  [inserted in the case] of Cattle. What reason have you for rising [the clause] And the dead shall be his own [in the context dealing] with Cattle to derive from it the law that the owners [plaintiffs] have to retain the carcass as part payment, while you rise [the clause] And the dead beast shall be his²⁶  [in the context dealing] with Pit [to confine liability] to an animal whose carcass could be his?²⁷  Why should I not reverse [the implications of the clauses]? — It stands to reason that the exemption should be connected with Pit, since there is in Pit exemption also in the case of inanimate objects.²⁸  On the contrary, should not the exemption be connected with Cattle, since in Cattle there is exemption from half damages [in the case of Tam]? — In any case, exemption from the whole payment is not found [in the case of cattle].

WHERE THERE FELL INTO IT AN OX TOGETHER WITH ITS IMPLEMENTS WHICH THEREBY BROKE etc. This Mishnaic ruling is not in accordance with R. Judah. For it was taught: R. Judah imposes liability for damage to inanimate objects done by Pit. But what was the reason of the Rabbis?²⁹  — Because Scripture says, And an ox or an ass fall therein,³⁰  [implying] 'ox' but not 'man',³¹  'ass' but not 'inanimate objects'. R. Judah, [however, maintained that the word] 'or' [was intended] to describe inanimate objects while the [other] Rabbis

1. Which is not subject to the law of damage; cf. supra pp. 50ff.
2. Through a blemish. [As long as such an ox had not been redeemed, it is regarded as an ox of the sanctuary, v. supra 36b. Cur. edd. add in brackets, 'e.g., a first-born ox which cannot be redeemed.' It is however questionable whether such an ox is not to be considered a common animal, having regard to the fact that being blemished it is entirely the priests, no share thereof being offered up on the altar. MS.M. omits these words.]
3. And the remaining part will be lost to the plaintiff.
4. Maintaining that each defendant is only liable for himself.
5. Who stated that if no payment can be enforced from a defendant, his co-defendant has to make it up.
6. Where quarter damages is half of the maximum payment.
7. Abaye.
8. V. p. 309, n. 6.
9. Rabina.
10. V. p. 309, n. 7.
11. Where half damages is the maximum payment.
12. Cf. supra 26a.
13. I.e. the man, the owner of the pit and the owner of the ox.
14. V. supra 49a.
15. Ex. XXI, 22.
16. Ibid. 29-30.
17. Ibid. 32.
18. Ibid. 28-32.
19. Supra 28b and 35a
20. Ex. XXI, 34.
21. I.e., could be used by him as food for dogs and like purposes.
22. As no use could lawfully be made of a carcass of a sacred animal that died.
23. Through a blemish.
24. Supra 10b.
25. Ex. XXI, 36.
26. V. p. 310. n. 14.
27. V. p. 310. n. 15.
28. V. supra p. 302, n. 2.
29. For maintaining exemption.
30. Ex. XXI, 33.
31. Dying through falling into a pit.