Babylonian Talmud: Tractate Baba Kamma

Folio 13a

why [did Rabina] not reply that the one¹  is in accordance with R. Jose the Galilean, and the other²  in accordance with the Rabbis?³  — It was said in answer: How can you refer to priestly gifts? Priestly gifts are altogether different⁴  as those who are entitled to them enjoy that privilege as guests at the divine table.⁵

[To refer to] the main text: If a soul sin and commit a trespass against the Lord and lie unto his neighbour:⁶  this indicates also minor sacrifices; this is the view of R. Jose the Galilean. Ben 'Azzai says that it indicates [also] peace-offerings. Abba Jose b. Dostai said that Ben 'Azzai meant to include only the firstling.

The Master said:⁶  'Ben Azzai says that it indicates [also] peace-offerings.' What does he mean to exclude? It can hardly be the firstling, for if in the case of peace-offerings which are subject to the laws of leaning,⁷  libations⁸  and the waving of the breast and shoulder,⁹  you maintain that they are private property, what question could there be about the firstling?¹⁰  — R. Johanan therefore said: He meant to exclude the tithe,¹¹  as taught: In the case of the firstling, it is stated, Thou shalt not redeem;¹²  it may, however, if unblemished be sold while alive, and if blemished [it may be sold] alive or slaughtered; in the case of the tithe it is stated, It shall not be redeemed,¹³  and it can be sold neither alive nor slaughtered neither when unblemished nor when blemished.¹⁴  Rabina connected all the above discussion with the concluding clause: 'Abba Jose b. Dostai said that Ben 'Azzai meant to include only the firstling.' What does he mean to exclude? It can hardly be peace-offerings, for if the firstling which is holy from the very moment it opens the matrix,¹⁵  is private property, what question could there be about peace-offerings?¹⁶  — R. Johanan therefore said: He meant to exclude the tithe, as taught:¹⁷  In regard to the firstling it is stated, Thou shalt not redeem;¹⁸  it may, however, if unblemished be sold while alive and if blemished [it may be sold] alive or slaughtered; in regard to the tithe it is stated, It shall not be redeemed,¹⁹  and it can be sold neither while alive nor when slaughtered, neither when unblemished nor blemished. But does he not say, 'The firstling alone'?²⁰  This is a difficulty indeed!

Raba [on the other hand] said: What is meant by 'THE [DAMAGED] PROPERTY MUST BE OF A KIND TO WHICH THE LAW OF SACRILEGE HAS NO APPLICATION' is that the property is not of a class to which the law of sacrilege may have any reference²¹  but is such as is owned privately. But why does not the text say. 'Private property'? — This is a difficulty indeed!

R. Abba said: In the case of peace-offerings that did damage,²²  payment will be made²³  out of their flesh but no payment could be made out of their emurim.²⁴  Is it not obvious that the emurim will go up [and be burnt] on the altar? — No; we require to be told that no payment will be made out of the flesh for the proportion due from the emurim. But according to whose authority is this ruling made? If according to the Rabbis,²⁵  is this not obvious? Do they not maintain that when payment cannot be recovered from one party, it is not requisite to make it up from the other party? If according to R. Nathan,²⁶  [it is certainly otherwise] for did he not say that when no payment can be made from one party, it has to be made up from the other party? — If you wish, you may say: The ruling was made in accordance with R. Nathan; or, if you wish, you may say that it was made in accordance with the Rabbis. You may say that it was made in accordance with the Rabbis, for their ruling is confined to a case where the damage was done by two separate agencies,²⁷  whereas, in the case of one agency,²⁸  the plaintiff may be justified in demanding payment from whatever source he finds it convenient. Alternatively you may say that the ruling was made in accordance with R. Nathan, for it is only there [in the case of an ox pushing another's ox in a pit] that the owner of the damaged ox is entitled to say to the owner of the pit, 'I have found my ox in your pit; whatever is not paid to me by your co-defendant must be made up by you;'

1. Maintaining that a firstling is the private property of the priest.
2. I.e., the statement of R. Nahman that a firstling is not the private property of the priest.
3. The opponents of R. Jose the Galilean.
4. Even R. Jose regards them in no case as the property of the priest; all the Rabbis including R. Jose are thus unanimous on this matter. Hence Rabina was unable to explain the one Baraitha in accordance with R. Jose and the other in accordance with the Rabbis.
5. Even while the firstling is still alive.
6. Lev. V, 21.
7. Ibid. III, 2.
8. Num. XV, 8-II.
9. Lev. VII, 30-34.
10. The sacredness of which is of a lower degree and is not subject to all these rites. Consequently it should thus certainly be considered private property. It, of course, deals with a firstling outside Palestine which is not destined to he sacrificed.
11. Of cattle dealt with in Lev. XXVII, 32-33.
12. Num. XVIII, 17, the text is taken not to include alienation, in which case the sanctity of the firstling is not affected.
13. Lev XXVII, 33; in this case, on account of Gezerah Shawah. i.e. a similarity of phrases between ibid. and verse 28, the right of alienation is included; cf, Bek. 32a.
14. Tem. 8a. Because it is not private property.
15. Ex. XIII, 12.
16. That they should certainly be private property.
17. Tem. 8a.
18. Num. XVIII, 17.
19. Lev. XXVII, 33.
20. Excluding thus everything else, even peace-offerings.
21. I.e. is not holy at all.
22. While still Tam, when the payment must be made out of the body of the doer of the damage, v. infra p. 73.
23. According to R. Jose the Galilean who maintains, supra p. 50, that minor sacrifices are considered private property.
24. The part which has to he burnt on the altar; cf. Lev. III, 3-4.
25. Infra 53a. where in the case of an ox pushing somebody else's animal into a pit, the owner of the pit pays nothing, though the owner of the ox does not pay full damages.
26. Who makes the owner of the pit also pay.
27. I.e., the ox and the pit, v. p. 53. n. 12.
28. Such as in the case of peace-offerings dealt with by R. Abba.

but in the case in hand, could the plaintiff say, 'The flesh did the damage and the emurim did no damage'?¹

Raba said: In the case of a thanksgiving-offering that did damage,²  payment will be made³  out of the flesh but no payment could be made out of its bread.⁴  'Bread'! Is this not obvious?⁵  — He wanted to lead up to the concluding clause: The plaintiff partakes of the flesh,⁶  while he, for whose atonement the offering is dedicated,⁷  has to bring the bread. Is not this also obvious? — You might have thought that since the bread is but an accessory to the sacrifice,⁴  the defendant may be entitled to say to the plaintiff. 'If you will partake of the flesh, why should I bring the bread?' It is therefore made known to us [that this is not the case, but] that the bread is an obligation upon the original owner of the sacrifice.

THE [DAMAGED] PROPERTY SHOULD BELONG TO PERSONS WHO ARE UNDER [THE JURISDICTION OF] THE LAW. What [person] is thereby meant to be excepted? If a heathen,⁸  is not this explicitly stated further on: 'An ox of an Israelite that gored an ox of a heathen is not subject to the general law of liability for damage'?⁹  — That which has first been taught by implication is subsequently explained explicitly.

THE PROPERTY SHOULD BE OWNED. What is thereby excepted? — Rab Judah said: It excepts the case [of alternative defendants] when the one pleads. 'It was your ox that did the damage,' and the other pleads. 'It was your ox that did the damage.' But is not this explicitly stated further on: If two oxen pursue another ox, and one of the defendants pleads. 'It was your ox that did the damage,' and the other defendant pleads, 'It was your ox that did the damage,' no liability could be attached to either of them?¹⁰  — What is first taught by implication is subsequently explained explicitly. In a Baraitha it has been taught: The exception refers to ownerless property.¹¹  But in what circumstances? It can hardly be where an owned ox gored an ownerless ox, for who is there to institute an action? If on the other hand an ownerless ox gored an owned ox, why not go and take possession of the ownerless doer of the damage? — Somebody else has meanwhile stepped in and already acquired title to it.¹²  Rabina said: It excepts an ox which gored and subsequently became consecrated or an ox which gored and afterwards became ownerless.¹²  It has also been taught thus: Moreover said R. Judah:¹³  Even if after having gored, the ox was consecrated by the owner, or after having gored it was declared by him ownerless, he is exempt, as it is said, And it hath been testified to his owner and he hath not kept it in, but it hath killed a man or a woman; the ox shall be stoned.¹⁴  That is so only where conditions are the same at the time of both the manslaughter and the appearance before the Court.¹⁵  Does not the final verdict also need to comply with this same condition? Surely the very verse, The ox shall be stoned, circumscribes also the final verdict! — Read therefore: That is so only when conditions are the same at the time of the manslaughter and the appearance before the Court and the final verdict.¹⁵

WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT: Because he may argue against the plaintiff, 'What was your ox doing on my premises?' OR PREMISES OWNED [JOINTLY] BY PLAINTIFF AND DEFENDANT. R. Hisda said on behalf of Abimi: [Where damage is done] in jointly owned courts, there is liability for Tooth and Foot,¹⁶  and the [Mishnah] text is to be read thus: WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT, where there is exemption. but in the case of PREMISES OWNED [JOINTLY] BY PLAINTIFF AND DEFENDANT, WHENEVER DAMAGE HAS OCCURRED,¹⁷  THE OFFENDER IS LIABLE. R. Eleazar [on the other hand] said: There is no liability there for Tooth and Foot,¹⁶  and the text is to be understood thus: WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT OR [OF] PREMISES OWNED [JOINTLY] BY PLAINTIFF AND DEFENDANT, where there is also exemption. But WHENEVER DAMAGE HAS OCCURRED [otherwise] THE OFFENDER IS LIABLE etc. introduces Horn.¹⁸  This would be in conformity with Samuel,¹⁹  but according to Rab, who affirmed that ox in the Mishnaic text was intended to include all kinds of damage done by ox,²⁰  what was meant to be introduced by the clause, THE OFFENDER IS LIABLE? — To introduce that which our Rabbis have taught: WHENEVER DAMAGE HAS OCCURRED THE OFFENDER IS LIABLE introduces liability in the case of a paid bailee and a borrower, an unpaid bailee and a hirer, where the animal in their charge did damage, Tam paying half-damages and Mu'ad paying full damages. If, however, a wall²¹  broke open at night, or robbers took it by force and it went out and did damage, there is exemption.

The Master said: 'WHENEVER DAMAGE HAS OCCURRED, THE OFFENDER IS LIABLE introduces liability in the case of an unpaid bailee and a borrower, a paid bailee and a hirer'. Under what circumstances? If the ox of the lender damaged the ox of the borrower, why should not the former say to the latter: 'If my ox had damaged somebody else's, you would surely have had to compensate;²²  now that my ox has damaged your own ox, how can you claim compensation from me?' Again, if the ox of the borrower damaged the ox of the lender, why should not the latter say to the former: 'If my ox had been damaged by somebody else's, you would surely have had to compensate me for the full value of the ox,²³  now that the damage resulted from your ox, how can you offer me half damages?²⁴  — It must therefore still be that the ox of the lender damaged the ox of the borrower, but we deal with a case where he [the borrower] has taken upon himself responsibility for the safety of the ox

1. Hence the flesh need not pay for the emurim.
2. While still Tam, in which case the payment must he made out of the body of the damage-doer, as infra p. 73.
3. In accordance with R. Jose the Galilean that minor sacrifices are private property.
4. I.e., accompanying the offering, cf. Lev. VII, 12-13.
5. That the bread need not pay, since the bread did not do any damage.
6. After the offering of the sacrifice.
7. I.e., (as a rule) the defendant.
8. Who does not recognise the covenant of Law, and who does not consider himself bound to control his own cattle from doing damage to others.
9. V. infra p. 211 and note 6.
10. V. infra 35a. 'Owned' thus means 'known to belong to a particular defendant.'
11. Tosef. B.K. I, 1.
12. In which case the plaintiff will recover nothing.
13. Infra p. 254.
14. Ex. XXI, 29.
15. I.e., where the ox is privately owned all through.
16. For which there is no liability in a public thoroughfare; cf. supra p. 17.
17. Even by Tooth and Foot.
18. For which there is liability even in a public thoroughfare
19. Who maintains, supra pp. 9-11, that Mab'eh in the Mishnaic text denotes Tooth, and Ox signifies Foot, whereas Horn has not been dealt with explicitly.
20. Supra p. 10; so that Horn has already been dealt with in the first Mishnah.
21. Of a sound structure, cf. infra 55b-56a
22. The borrower being responsible for the damage done by the ox whilst under his charge. V. infra 44b
23. As laid down in Ex. XXII. 13.
24. I.e., in the case of the borrower's ox having been Tam.