Babylonian Talmud: Tractate Gittin

Folio 53a

is practically the same as mixing terumah. What says the other [to this]? — [He says that the penalty for this is of the nature of] a fine,¹  and we do not base rules for imposing fines on mere inference.²  But those who hold that the imposition of fines can be based on mere inference — why do they require all the items to be specified? They are all necessary. For if [the Mishnah] had mentioned only one who renders foodstuffs unclean, then, supposing the food was terumah, I would say that the reason [why compensation has to be made] is because he spoils it completely,³  and if the food was non-sacred, because it is forbidden to cause uncleanness to non-sacred food in Eretz Israel,⁴  but one who mixes ordinary food with terumah I should say need not make compensation. Again, if one who mixes ordinary food with terumah had been mentioned I should say the reason is because this is a common occurrence,⁵  but in the case of one who renders foodstuffs unclean, which is not a common occurrence, I should say the rule does not apply. If again both one who renders unclean and one who mixes had been specified, I should say the reason with them [for requiring compensation] is that no heavier penalty is involved, but I should not apply this rule to one who makes a libation, where a heavier penalty is involved. Therefore we are told [that we apply here] the principle of R. Jeremiah.⁶

But if we accept [the teaching] learnt by the father of R. Abin, 'At first they said, The one who renders unclean and the one who makes a libation, but later they added also the one who mixes,' why do I require all the items?⁷  — They are still necessary. For if only the one who renders unclean had been mentioned, I should have said that the reason is because no greater penalty is involved, but I should not have applied the rule to one who makes a libation, where a greater penalty is involved. If again the one who makes a libation had been mentioned, I should have said this was because the stuff is spoilt entirely, but I should not have applied the rule to one who renders unclean, where the stuff is not spoilt entirely. If again these two had been mentioned, I should say the reason is because the loss involved is considerable, but I should not apply the rule to one who mixes, where the loss involved is small.⁸  Hence all were necessary.

Hezekiah said: The rule of the Torah is that one who commits these offences whether inadvertently or deliberately is liable to pay compensation. The reason is that damage of which there is no visible sign⁹  is legally accounted as damage.¹⁰  Why then did the Rabbis lay down that [if one does these things] inadvertently he is not liable? So that they should tell [the victims].¹¹  If that is the reason, then one who does these things presumptuously should also be quit? — How can you think so? Seeing that he deliberately tries to injure him, will he not certainly tell him?¹²  R. Johanan said that the rule of the Torah is that whether one commits these offences innocently or deliberately he is not liable, the reason being that damage of which there is no visible sign is not legally accounted damage. Why then did the Rabbis ordain that [one who does them] presumptuously is liable? So that it should not become a common thing for a man to go and render unclean the foodstuffs of his neighbour and say, I have no liability.

We have learnt: 'If priests render the sacrifice piggul¹³  in the Sanctuary, if they did so presumptuously they are liable [to make compensation];'¹⁴  and in connection therewith it was taught: 'To prevent abuses.'¹⁵  Now if you hold that damage which is not visible is legally accounted damage, then it should say, 'if they did so innocently they are not liable, to prevent abuses'?¹⁶  — This in fact is what is meant: 'If they act presumptuously they are liable; from which we infer that if they acted innocently they are not liable, to prevent abuses.' R. Eleazar [raised the following as] an objection: 'If one does work with the waters of purification and with the heifer of purification,¹⁷  he is exempt before the earthly court but liable before the heavenly court.'¹⁸  Now if you maintain that damage which is invisible is legally accounted as damage, then he should be liable also before the earthly court? — He raised the objection and he himself answered it, thus: [The work referred to in the case of] the heifer [was] that he brought it into the stall with the intention of letting it suck and then threshing with it;¹⁹  in the case of the water [the work referred to was] that he balanced weights against it.²⁰  But has not Raba said that water of purification

1. Kenas v. Glos. Because the damage done is not visible. This point is discussed infra.
2. But the rule must be stated expressly in each case. Lit., 'we do not derive from Kenas'.
3. I.e., as food for the priest. V. supra p. 236, n. 7.
4. On account of the Perushim. V. p. 236, n. 7.
5. And therefore it was deemed necessary to impose a fine.
6. From which we learn that the lighter penalty stands in this case, v. supra p. 237. n. 4.
7. Surely if there is liability for libation which involves a heavier penalty there must be a penalty for mixing.
8. Because the stuff can still be sold to a priest at no great sacrifice.
9. E.g., here, where the stuff is in exactly the same condition after the offence has been committed as before.
10. And the Torah in the case of damage done by man makes no distinction between innocent and presumptuous, v. B.K. 85b.
11. And so save them from eating terumah etc. unwittingly.
12. Since his whole purpose is to vex him.
13. V. Lev. XIX, 7: And if it (the flesh of the peace-offering) be eaten on the third day, it is an abomination (piggul). The Rabbis derived from the language of the text the rule that the flesh became piggul even if there was merely an intention of eating it on the third day.
14. To the bringer of the sacrifice, who now has to bring a new one.
15. Lit., 'for the good order of the world'. I.e., this is a Rabbinic, not a Scriptural rule.
16. So that they should tell the owners. Because according to the Torah they are liable. V. supra, n. 2.
17. The 'red heifer': v. Num. XIX. It was forbidden to do any work work with it.
18. V. B.K. 56a. I.e., he is punished by the hands of heaven but not with any earthly punishment.
19. I.e., he had not yet done with it any work for which the earthly court could punish him, but he is punished by heaven for his intention.
20. We assume that the exact weight of the water was known to him. In this case he had done no actual work with the water.

against which weights have been balanced is not disqualified? — There is no contradiction; the one [Raba] speaks of weighing against the water, the other of weighing in it.¹  When he weighs in it he is doing work with it,²  and if damage which is intangible is legally accounted damage he should be punishable also in a human court? — We must say therefore that both speak of weighing against the water, and still there is no contradiction: the one [R. Eleazar] speaks of where he forgot for the moment [that it was water of purification]³  and the other of where he did not forget.

R. Papa raised an objection [from the following]: If a man robbed another of a coin which afterwards was withdrawn from circulation,⁴  or terumah which became unclean, or leaven and the Passover intervened,⁵  he can say to him, Here is your property, take it.⁶  Now if you say that damage of which there is no visible sign is legally accounted as damage, this [man] is a robber, and ought to pay the value in full?⁷  — This is a refutation.

May we say that Tannaim also [differ on this point]? [For it was taught:] If one defiles [another's foodstuffs] or mixes terumah with them or pours a libation from his wine, whether inadvertently or deliberately, he is liable [to make compensation]. So R. Meir. R. Judah says: If inadvertently he is not liable, if deliberately he is liable. Is not the point at issue between them this, that the one authority holds that damage of which there is no visible sign is legally accounted damage, while the other holds that it is not legally accounted damage? — R. Nahman b. Isaac said: Both agree that damage of which there is no visible sign is not legally accounted damage, and here the point at issue between them is whether the inadvertent [act] should be penalised on account of the presumptuous one,⁸  one holding that the innocent act is penalised on account of the presumptuous one and the other that it is not so penalised.

A contradiction was now pointed out between two statements of R. Meir, and also between two statements of R. Judah. For it has been taught: 'If one cooks food on Sabbath, if by inadvertence he may eat it, but if deliberately he may not. So R. Meir. R. Judah says: If [it was cooked] inadvertently he may eat it after the expiration of Sabbath, but if deliberately he may never eat it. R. Johanan ha-Sandalar⁹  says: If [it was cooked] inadvertently it may be eaten after the expiration of the Sabbath by others but not by the one who cooked it, if deliberately it may never be eaten either by him or by others'.¹⁰  One statement of R. Meir seems to contradict another¹¹  and one statement of R. Judah seems to contradict another? — Between the two statements of R. Meir there is no contradiction: where he imposes a fine is for [innocently breaking] a regulation of the Rabbis¹²  but not for [breaking] a rule of the Torah.¹³  But pouring a libation is forbidden by the Torah, and yet he imposes a fine for doing so [innocently]? — This is because of the special seriousness of the sin of idolatry. Between the statements of R. Judah there is no contradiction: where he imposes no fine is for [breaking] a rule of the Rabbis, but for [breaking] a rule of the Torah he imposes a fine.¹⁴  But pouring a libation is forbidden by the Torah and he imposes no fine for doing so? — Because of the seriousness of the sin of idolatry people keep clear of it.

But even in respect of rules of the Torah one statement of R. Meir was contrasted with another. For it has been taught: 'If a man plants a tree on Sabbath, if inadvertently, he may keep it, but if deliberately, it must be uprooted. If in the Sabbatical year, however, whether he plants it inadvertently or deliberately, it must be uprooted. This is the ruling of R. Meir.¹⁵  R. Judah says: In the Sabbatical year, if inadvertently, he may keep it,¹⁶  but if deliberately he must uproot it: [if planted] on Sabbath, whether inadvertently or deliberately, he must uproot it'! — While you are looking for contradictions,¹⁷  why not point one out in this statement itself? See now: the one [planting on Sabbath] and the other [planting in the Sabbatical year] are both forbidden by the Torah; why then should there be a difference between them? But the reason for that, you must say, is as was taught: Said R. Meir: Why do I say that [if he plants inadvertently] on Sabbath he may keep it and if deliberately he must uproot it, whereas [if he plants] in the Sabbatical year whether inadvertently or deliberately he must uproot it? Because Israel reckon from the Sabbatical year¹⁸

1. Like butchers, who place meat in water to see how far it will rise, and judge the weight accordingly.
2. And so disqualifying it.
3. Lit., 'he diverted his mind'. And since it says, the water shall be to you for a charge, this disqualifies the water, though it does not render him liable to an earthly court.
4. By the Government.
5. Rendering the leaven forbidden for any use, v. Pes. II, 2.
6. And he has no further liability, although the property has meanwhile become worthless, because the robbed article is deemed to have been all the time in the possession of the owner; v. B.K. 96b.
7. [Since there has been a change in the misappropriated goods they passed into the possession of the robber who should therefore have to make full restitution, Tosaf. V. B.K. 91bff. The words 'this man is a robber' are nevertheless difficult, and best left out with MS.M.]
8. Even though according to strict justice he should not be so penalised.
9. 'The sandal-maker'.
10. B.K. 71a. (Sonc. ed.) pp. 408-9. q.v. for notes.
11. For cooking innocently on the Sabbath he imposes no fine but for defiling foodstuffs he does impose one.
12. Defiling foodstuffs etc. A fine is necessary because people are more careless about Rabbinical ordinances.
13. Breaking the Sabbath.
14. Because the offence is more serious.
15. Which shows that he does impose a fine for breaking a rule of the Torah innocently.
16. Which shows that R. Judah does not impose a fine for innocently breaking a rule of the Torah, so that he also contradicts himself in the same way as R. Meir.
17. Lit., 'on your view'.
18. E.g., for the years of 'uncircumcision' (v. Lev. XIX, 23ff.) Hence they remember if a tree was planted in the Sabbatical year, and if it were allowed to remain they might take it as a precedent, and so it was necessary to impose a fine in this case.