Babylonian Talmud: Tractate Baba Kamma

Folio 56a

where the wall was shaky.¹

The Master stated: 'To bend over a neighbour's corn standing in front of a fire.' Under what circumstances? If we assume that the fire can now reach it in a normal wind, why is he not liable also according to the judgments of Man? — It must therefore be where it would reach them only in an unusual wind. R. Ashi said: What is referred²  to is 'covering' the offender having caused the stalks to become hidden in the ease of Fire.³

The Master stated: 'To hire false witnesses.' Under what circumstances? If we assume for his own benefit,⁴  should he not pay the money⁵  and should he thus not also be liable even in accordance with the judgments of Man? — It therefore must mean for the benefit of his neighbour.⁶

'To know of evidence in favour of another and not to testify on his behalf.' With what case are we dealing here? If with a case where there are two [witnesses], is it not obvious that it is a Scriptural offence,⁷  [as it is written], If he do not utter it then he shall bear his iniquity?⁸  — It must therefore be where there is one [witness].⁹

(Mnemonic: He who does, Deadly poison, Entrusts, His fellow, Broken.)

But are there no more cases [of the same category]? Is there not the case of a man who does work with the Water of Purification¹⁰  or with the [Red] Heifer of Purification,¹⁰  where he is similarly exempt according to the judgments of Man but liable according to the judgments of Heaven?¹¹  Again, is there not the case of one who placed deadly poison before the animal of a neighbour, where he is exempt from the judgments of Man but liable according to the judgments of Heaven?¹²  So also is there not the case of one who entrusts fire to a deaf-mute, an idiot or a minor [and damage results], where he is exempt from the judgments of Man but liable according to the judgments of Heaven?¹³  Again, is there not the case of the man who gives his fellow a fright, where he is similarly exempt from the judgments of Man but liable according to the judgments of Heaven?¹⁴  And finally is there not the case of the man who, when his pitcher has broken on public ground, does not remove the potsherds, who, when his camel falls does not raise it, where R. Meir indeed makes him liable for any damage resulting therefrom, but the Sages hold that he is exempt from the judgments of Man though liable according to the judgments of Heaven?¹⁵  — Yes, there are surely many more cases [to come under the same category], but these four cases were particularly necessary to be stated by him,¹⁶  as otherwise you might have thought that even according to the judgments of Heaven there should not be any liability. It was therefore indicated to us [that this is not so]. In the case of breaking down a fence in front of a neighbour's animal you might have said that since the wall was in any case bound to come down, what offence was committed, and that even according to the judgments of Heaven there should be no liability. It was therefore indicated to us [that this is not so]. In the case of bending over a neighbour's standing corn in front of a fire you might also have said that the defendant could argue, 'How could I know that an unusual wind would come?' and that consequently even according to the judgments of Heaven he should not be liable; it was therefore indicated to us [that this is not the case]. So also according to R. Ashi who said that the reference is to 'covering', you might have said that [the defendant could contend], 'I surely intended to cover and thus protect your property,¹⁷  and that even according to the judgments of Heaven he should not be liable. It was therefore indicated to us [that this is not so]. In the case of hiring false witnesses you might also have said that the offender should be entitled to plead, 'Where the words of the Master¹⁸  are contradicted by words of a disciple,¹⁹  whose words should be followed?'²⁰  and that even according to the judgments of Heaven he should not be liable. It was therefore indicated to us [that this is not so]. In the case where one knows evidence in favour of another and does not testify on his behalf, you might also have said that [the offender could argue], 'Who can say for certain that even had I gone and testified on his behalf, the other party would have admitted [the claim], and would not perhaps have sworn falsely [against my evidence]?'²¹  and that even according to the judgments of Heaven he should not be liable. It was therefore indicated to us [that this is not the case].

IF THE WALL BROKE DOWN AT NIGHT OR IF ROBBERS BROKE IN etc., Rabbah said: This²²  is so only where the animal undermined the wall. What then of the case where it did not undermine the wall?²³  Would there then be liability? Under what circumstances? If it be assumed that the wall was sound, why then even where it did not undermine it²³  should there be liability? What else could the defendant have done? But if, on the other hand, the wall was shaky, why even in the case where the animal undermined it should there be exemption? Is not this a case where there is negligence²⁴  at the beginning but [damage results from] accident²⁵  at the end? Your view is correct enough on the assumption²⁶  that where there is negligence at the beginning [and damage results through] accident at the end there is exemption, but if we take the view²⁶  that where there is negligence at the beginning though [damage results from] accident at the end there is liability, what can be said? — This ruling of the Mishnah therefore refers to a sound wall and even to a case where it did not undermine the wall.²⁷  For the statement of Rabbah was made with reference to [the ruling in] the concluding clause, IF THE OWNER HAD LEFT THEM IN A SUNNY PLACE OR HANDED THEM OVER TO THE CARE OF A DEAF-MUTE, AN IDIOT OR A MINOR AND THEY GOT AWAY AND DID DAMAGE, HE WOULD BE LIABLE. Rabbah thereupon said: This would be so even where it undermined the wall. For there would be no doubt that [this would be so] where it did not undermine the wall²⁸  as there was negligence throughout, but even where it did undermine the wall,²⁹  the ruling³⁰  would also hold good. You might have said [in that case, that where it undermined the wall]²⁹  it should be regarded as a case of negligence at the beginning but accident at the end.³¹  It was therefore indicated to us³²  that [it is regarded as a case of] negligence throughout, the reason being that the plaintiff might say, 'You should surely have realised that since you left it in a sunny place, it will use every possible device for the purpose of getting out.

IF THE ROBBERS TOOK THEM OUT, THE ROBBERS WOULD BE LIABLE [FOR THE DAMAGE].³³

1. And should in any case have been pulled down.
2. By the expression 'bending over'.
3. For which there is no liability according to the view of the Rabbis (v. infra p. 357), and by his act he caused the owner of the corn the loss of all claim to compensation.
4. I.e., to obtain money really not due to him.
5. Which he obtained by false pretenses and by the evidence of the false witnesses whom he hired.
6. I.e. to pay him money not due to him, and it so happened that the neighbour to whom the money was paid could not be made to give back the money he obtained by the false evidence.
7. Why then state it here?
8. Lev. V, 1.
9. Whose evidence would merely entail the imposition of an oath upon the defendant, v. Shebu 40a.
10. Thus disqualifying it from being used for the purpose of purification, Par. IV, 4.
11. Git. 53a, and infra 98a.
12. Supra 47b.
13. Infra 59b.
14. Infra 91a.
15. Supra 28b.
16. R. Joshua.
17. But not to cause you the loss of compensation.
18. Expressed in the Divine Law.
19. I.e. mortal man.
20. Surely the word of the former. The witnesses should therefore be exclusively responsible, as they should not have followed the advice of a man in contradiction to the words of the Law. The law of agency could on this account not apply in matters of transgression; cf. Kid. 42b and supra p. 294.
21. Since one witness could not make the defendant liable for money payment but only for an oath.
22. Exemption.
23. Which fell down of itself.
24. To leave an animal behind a shaky wall which could not withstand a normal wind.
25. Viz., that the animal broke through it.
26. Supra 21b.
27. V. p. 327, n. 6.
28. But managed to escape through the door.
29. Which was very sound.
30. Of liability.
31. V. p. 327, n. 8.
32. By Rabbah.
33. V. p. 324, n. 4.

Is this not obvious, seeing that as soon as they took it out it was placed under their charge in all respects?¹  The ruling was necessary to meet the case where they merely stood in front of it²  [thus blocking any other way for it while leaving open that leading to the corn]. This is on the lines of the statement made by Rabbah on behalf of R. Mattena who said it on behalf of Rab: If a man placed the animal of one person near the standing corn of another, he is liable.³  'Placed', [you say]? Is this not obvious? — The ruling was necessary to meet the case where he merely stood in front of it [blocking thus any other way for it while leaving open that leading to the corn]. Said Abaye to R. Joseph: Did you not explain to us that [the ruling of Rab referred to a case where] the animal was [not actually placed but only] beaten [with a stick and thus driven to the corn]? In the case of robbers also, [the ruling in the Mishnah similarly refers to a case where] they had only beaten it. IF HE HANDED THEM OVER TO THE CARE OF A SHEPHERD, THE SHEPHERD WOULD ENTER INTO ALL THE RESPONSIBILITIES INSTEAD OF HIM. I would here ask: 'Instead of whom?' If you say, instead of the owner of the animal, have we not already learnt elsewhere: 'If an owner hands over his cattle to an unpaid bailee or to a borrower, to a paid bailee or to a hirer, each of them would enter into the responsibilities of the owner'?⁴  It must therefore mean, instead of a bailee,⁵  and the first bailee would be exempt altogether. Would this not be a refutation of Raba? For did Raba not say: One bailee handing over his charge to another bailee becomes liable for all consequences?⁶  — Raba might reply that 'he handed it over to a shepherd' means [the shepherd handed it over] to his apprentice, as it is indeed the custom of the shepherd to hand over his sheep to [the care of] his apprentice. Some say that since the text says, HE HANDED THEM OVER TO THE CARE OF A SHEPHERD and does not say 'he handed them over to another person,'it could from this be proved that the meaning of 'HE HANDED THEM OVER TO THE CARE OF A SHEPHERD' is that the shepherd handed [them] over to his apprentice, as it is indeed the custom of the shepherd to hand over [various things] to [the care of] his apprentice, whereas if [he handed it over] to another person this would not be so. May we say that this supports the view of Raba? For did Raba not say: One bailee handing over his charge to another bailee becomes liable for all consequences?⁶  — It may however be said that this is no support. For the text perhaps merely mentioned the usual case, though the same ruling would apply [to a case where it was handed over] to another person altogether.

It was stated: A person taking charge of a lost article [which he has found],⁷  is according to Rabbah in the position of an unpaid bailee,⁸  but according to R. Joseph in the position of a paid bailee.⁹  Rabbah said: He is in the position of an unpaid bailee, since what benefit is forthcoming to him? R. Joseph said: He is in the position of a paid bailee on account of the benefit he derives from not being required to give bread to the poor [while occupied in minding the lost article found by him];¹⁰  hence he should be considered a paid bailee. Some, however, explain it thus: R. Joseph said that he would be like a paid bailee as the Divine Law put this obligation¹¹  upon him even against his will; he must therefore be considered as a paid bailee.¹²  R. Joseph brought an objection to the view of Rabbah [from the following]:

1. V. p. 325, n. 7.
2. In which case the sheep did not come into the possession of the robbers.
3. Though the animal which did the damage is not his.
4. Supra 44b.
5. I.e. where the sheep has already been in the hands of a bailee who later transferred it to a shepherd. By declaring the shepherd to be liable it is implied that the bailee will become released from his previous obligations.
6. Even for accidents, as he had no right to hand over his charge to another person without the consent of the owner, v. supra 11b.
7. And which he will have to return to the owner.
8. To whom the law of Ex. XXII, 6-8 applies, and who is thus exempt where the article was stolen or lost.
9. Who is subject to Ex. XXII, 9-12 and who is therefore liable to pay where the article was stolen or lost.
10. As while a person is occupied with the performance of one commandment he is not under an obligation to perform at the same time another commandment; cf. Suk. 25a.
11. Of looking after the lost article which he found.
12. Who after receiving the consideration is similarly under an obligation to guard.