Babylonian Talmud: Tractate Baba Kamma

Folio 18a

the 'hopping' only caused pebbles to fly, so that the point at issue is the same as that between Symmachus and the Rabbis.¹

Come and hear: 'In the case of poultry picking at a cord attached to a pail so that the cord was snapped asunder and the bucket²  broken, the payment must be in full.' Could it not be proved from this [Baraitha] that it is the original cause of the damage that has to be followed? — You may, however, interpret [the liability of full payment] to refer to the damage done to the cord.³  But behold, is not [the damage of] the cord unusual [with poultry⁴  and only half damages ought to be paid]? — It was smeared with dough.⁵  But, does it not say 'and the bucket [was] broken'?⁶  This Baraitha must therefore be in accordance with Symmachus, who maintains that also in the case of Pebbles full payment must be made. But if it is in accordance with Symmachus, read the concluding clause: Were a fragment of the broken bucket to fly and fall upon another utensil, breaking it, the payment for the former [i.e., the bucket] must be in full, but for the latter only half damages will be paid. Now does Symmachus ever recognise half damages [in the case of Pebbles]? If you, however, submit that there is a difference according to Symmachus between damage occasioned by direct force⁷  and that caused by indirect force,⁸  what about the question raised by R. Ashi:⁹  Is damage occasioned by indirect force according to Symmachus subject to the same law¹⁰  applicable to direct force, or not subject to the law of direct force?¹¹  Why is it not evident to him that it is not subject to the law of direct force? Hence the above Baraitha is accordingly more likely to be in accordance with the Rabbis, and proves thus that it is the original cause that has to be followed [as the determining factor]!¹²  R. Bibi b. Abaye, however, said: The bucket [that was broken] was [not rolled but] continuously pushed by the poultry [from one place to another, so that it was broken by actual bodily touch].¹³

Raba [again] queried: Will the half damages in the case of 'Pebbles' be paid out of the body [of the tort-feasant animal]¹⁴  or will it be paid out of the best of the defendant's estate?¹⁵  Will it be paid out of the body [of the tort-feasant animal] on account of the fact that nowhere is the payment of half damages made out of the best of the defendant's estate, or shall it nevertheless perhaps be paid out of the best of the defendant's estate since there is no case of habitual damage being compensated out of the body [of the tort-feasant animal]? —

Come and hear: 'Hopping [with poultry] is not Mu'ad. Some, however, say: It is Mu'ad.' Could 'hopping' be said [in any way not to be habitual with poultry]? Does it not therefore mean: 'Hopping and making [pebbles] fly,' so that the point at issue is as follows: The former view maintaining that it is not [treated as] Mu'ad, requires payment to be made out of the body [of the tort-feasant poultry]¹⁴  whereas the latter view maintaining that it is [treated as] Mu'ad, will require the payment [of the half damages for Pebbles] to be made out of the best of the defendant's estate?¹⁵  — No, the point at issue is that between Symmachus and the Rabbis.¹⁶

Come and hear: In the case of a dog taking hold of a cake [with live coals sticking to it] and going [with it] to a stack of grain where he consumed the cake and set the stack on fire, full payment must be made for the cake,¹⁷  whereas for the stack only half damages will be paid.¹⁸  Now, what is the reason [that only half damages will be paid for the stack] if not on account of the fact that the damage of the stack is subject to the law of Pebbles?¹⁹  It has, moreover, been taught in connection with this [Mishnah] that the half damages will be collected out of the body [of the tort-feasant dog]. [Does not this ruling offer a solution to the problem raised by Raba?] — But do you really think [the law of 'Pebbles' to be at the basis of this ruling]?²⁰  According to R. Eleazar [who maintains²¹  that the payment even for the stack will be in full and out of the body of the tort-feasant dog], do we find anywhere full payment being collected out of the body [of tort-feasant animals]? Must not this ruling²⁰  therefore be explained to refer to a case where the dog acted in an unusual manner in handling the coal,²²  R. Eleazar being of the same opinion as R. Tarfon, who maintains²³  that [even] for the unusual damage by Horn, if done in the plaintiff's premises, the payment will be in full?²⁴  — This explanation, however, is not essential. For that which compels you to make R. Eleazar maintain the same opinion as R. Tarfon, is only his requiring full payment [out of the body of the dog]. It may therefore be suggested on the other hand that R. Eleazar holds the view expressed by Symmachus, that in the case of Pebbles full damages will be paid; and that he further adopts the view of R. Judah who said²⁵  that [in the case of Mu'ad, half of the payment, i.e.] the part of Tam, remains unaffected [i.e., is always subject to the law of Tam]; the statement that payment is made out of the body [of the dog] will therefore refer only to [one half] the part for which even Tam would be liable. But R. Samia the son of R. Ashi said lo Rabina: I submit that the view you have quoted in the name of R. Judah is confined to cases of Tam turned into Mu'ad [i.e. Horn],²⁵  whereas in cases which are Mu'ad ab initio²⁶

1. I.e., whether full or half payment has to be made for damage caused by Pebbles.
2. Probably by rolling to some other place, where it finally broke.
3. Whereas for the bucket only half damages will perhaps be paid.
4. Being thus subject to the law of 'Horn'.
5. In which case it is not unusual with poultry to pick at such a cord.
6. Thus clearly indicating that the payment is in respect of the damage done to the bucket.
7. Such as in the case of a bucket upon which pebbles were thrown directly by an animal.
8. I.e., a second bucket damaged by a fragment that fell from a first bucket, which was broken by pebbles thrown by an animal.
9. Infra 19a.
10. I.e., to full payment.
11. But merely to half damages.
12. I.e., though the bucket rolled to some other place where it broke, the case is still subject to the law of Foot.
13. And coming within the usual category of Foot.
14. As in the case of Tam; cf. supra, p. 73.
15. As in the case of Foot; cf. supra, p. 9.
16. I.e., whether full or half damages are to be paid in the case of Pebbles.
17. Being subject to the law applicable to Tooth, cf. supra p. 68.
18. Infra 21b.
19. Because the damage to the stack was not done by the actual body of the dog but was occasioned by the dog through the instrumentality of the coal, which, after having been put on a certain spot, spread the damage near and far.
20. Of half damages for the stack.
21. In a Baraitha.
22. By taking it in its mouth and applying it to the stack, in which case it is subject to the law of 'Horn'.
23. Supra p. 59 and infra 24b.
24. [Though the payment will still be made out of the body of the tort-feasant animal.)
25. Infra 39a. 45b.
26. Such as Foot (and Pebbles at least according to Symmachus).

you have surely not found him maintaining so! You can therefore only say that R. Eleazar's statement regarding full payment deals with a case where the dog has already become Mu'ad [to set fire to stacks in an unusual manner]¹  and the point at issue will be that R. Eleazar maintains that there is such a thing as becoming Mu'ad [also] regarding [the law of] Pebbles²  whereas the Rabbis maintain that there is no such thing as becoming Mu'ad in the case of Pebbles.³  But If so what about another problem raised [elsewhere]⁴  by Raba: 'Is there such a thing as becoming Mu'ad regarding [the law of] Pebbles,⁵  or is there no such thing as becoming Mu'ad in the case of Pebbles?'⁶  Why then not say that according to the Rabbis there could be no such thing as becoming Mu'ad in the case of Pebbles, whereas according to R. Eleazar there may be a case of becoming Mu'ad even in the case of Pebbles? — Raba, however, may say to you: The problem raised by me [as to the possibility of becoming Mu'ad] is of course based on the view of the Rabbis who differ [in this respect] from Symmachus, whereas here [in the case of the dog] both the Rabbis and R. Eleazar may hold the view of Symmachus who maintains that Pebbles always involve payment in full. The reason, however, that the Rabbis order only half damages [to be paid]⁷  is on account of the fact that the dog handled the coal in an unusual manner⁸  while it had not yet become Mu'ad [for that]. The point at issue between them⁹  would be exactly the same as between R. Tarfon and the Rabbis.¹⁰  But R. Tarfon who took the view that the payment will be in full may perhaps never have intended to make it dependent upon the body [of the tort-feasant cattle]?¹¹  — Cer tainly so, for he derives his view from [the law of] Horn on public ground¹²  and it only stands to reason that Dayyo,¹³  [i.e. it is sufficient] to a derivative by means of a Kal wa-homer¹⁴  to involve nothing more than the original case from which it has been deduced.¹⁵  But behold, R. Tarfon is expressly not in favour of the Principle of Dayyo?¹³  — He is not in favour of Dayyo only when the Kal wa-homer would thereby be rendered completely ineffective,¹⁶  but where the Kal wa-homer would not be rendered ineffective he too upholds Dayyo.¹⁷

To revert to the previous theme:¹⁸  Raba asked: Is there such a thing as becoming Mu'ad regarding [the law of] Pebbles, or is there no such thing as becoming Mu'ad in the case of Pebbles? Do we compare Pebbles to Horn [which is subject to the law of Mu'ad] or do we not do so since the law of Pebbles is a derivative of Foot¹⁹  [to which the law of Mu'ad has no application]?

Come and hear: 'Hopping is not Mu'ad [with poultry]. Some, however, say: It is Mu'ad.' Could 'hopping' be thought [in any way not to be habitual with poultry]? It, therefore, of course means 'Hopping and making thereby [pebbles] fly.' Now, does it not deal with a case where the same act has been repeated three times, so that the point at issue between the authorities will be that the one Master [the latter] maintains that the law of Mu'ad applies [also to Pebbles] whereas the other Master [the former] holds that the law of Mu'ad does not apply [to Pebbles]? — No, it presents a case where no repetition took place; the point at issue between them being the same as between Symmachus and the Rabbis.²⁰

Come and hear: In the case of an animal dropping excrements into dough. R. Judah maintains that the payment must be in full, but R. Eleazar says that only half damages will be paid. Now, does it not deal here with a case where the act has been repeated three times, so that the point at issue between the authorities will be that R. Judah maintains that the animal has thus become Mu'ad whereas R. Eleazar holds that it has not become Mu'ad?²¹  — No, it deals with a case where no repetition took place, the point at issue between them being the same which is between Symmachus and the Rabbis. But is it not unusual [with an animal to do so]?²²  — The animal was pressed for space [in which case it is no more unusual]. But why should not R. Judah have explicitly stated that the Halachah is in accordance with Symmachus and similarly R. Eleazar should have stated that the Halachah is in accordance with the Rabbis?²³  — [A specific ruling in regard to] excrements is of importance, for otherwise you might have thought that since these [excrements formed a part of the animal and] were poured out from its body, they should still be considered as a part of its body,²⁴  it has therefore been made known to us that this is not so.²⁵

Come and hear: Rami b. Ezekiel learned:²⁶  In the case of a cock putting its head into an empty utensil of glass where it crowed so that the utensil thereby broke, the payment must be in full, while R. Joseph on the other hand said²⁶  that it has been stated in the School of Rab that in the case of a horse neighing or an ass braying so that utensils were thereby broken, only half damages will be paid. Now, does it not mean that the same act has already been repeated three times,

1. Being thus subject to the law applicable to Horn whereas in the case of Pebbles not accompanied by an unusual act, R. Eleazar would maintain the view of the Rabbis that the payment will not be in full.
2. When thrown by an unusual act and repeated on more than three occasions; the payment would thus then have to be in full.
3. But that in spite of all repetitions of the damage the payment will never exceed half damages on account of the consideration that the case of Pebbles in the usual way is always Mu'ad ab initio and yet no more than half damages is involved.
4. Cf. infra p. 86.
5. So that in the case of an animal making pebbles fly (by means of an unusual act) on more than three occasions, the payment will be in full, on the analogy with Horn
6. The payment will thus never exceed half damages on account of the fact that the repetition on three occasions renders the act usual and makes it subject to the general laws of Pebbles, requiring half damages in the case of any usual act of an animal making pebbles fly.
7. In the case of the dog.
8. Coming thus within the category of Horn.
9. I.e., between the Rabbis and R. Eleazar.
10. With reference in damage done by Horn (Tam) on the Plaintiff's premises; cf. supra pp. 59. 84; infra p. 125.
11. For since the payment is in full why should it not be out of the best of the defendant's estate? Cf. however supra p. 15, infra p. 180; but also pp. 23, 212.
12. Infra 24b.
13. Lit., 'It is sufficient for it'.
14. Lit. 'From Minor to Major'; v. Glos.
15. Which was Horn on public ground where the payment in the case of Tam is made out of the body of the tort-feasant animal.
16. Such as, e.g., to make on account of Dayyo, the payment in the case of Tam doing damage on the plaintiff's premises only for half damages — a payment which would be ordered even without a Kal wa-homer.
17. The full payment in the case of Tam on the plaintiff's premises which is deduced from the Hal wa-homer, will therefore be collected only out of the body of the tort-feasant animal, on the strength of the Dayyo.
18. Supra p. 85.
19. Cf. supra 3b; v. also p. 85, n. 5.
20. I.e., whether the payment for Pebbles generally be in full or half; cf. supra 17b.
21. And thus the problem propounded by Raba is a point at issue between Tannaim.
22. The case must accordingly come under the category of Horn where only half damages should he paid in the first three occasions.
23. Why deal at all with the specific case of an animal dropping excrements?
24. Any damage done by them should thus be compensated in full on the analogy of any other derivative of Foot proper.
25. I.e., it does not come under the category of Foot proper but under that of Pebbles.
26. Cf. Kid. 24b.