Babylonian Talmud: Tractate Baba Kamma

Folio 23a

done by property,¹  concludes with damage done by the person²  [in order] to declare that Fire implies human agency.

Raba said: The following difficulty confronted Abaye: According to the view maintaining that Fire implies human agency, how [and when] was it possible for the Divine law to make exemption³  for damage done by Fire to hidden things?⁴  He solved it thus: Its application is in the case of a fire which would ordinarily not have spread beyond a certain point, but owing to the accident of a fence collapsing not on account of the fire, the conflagration continued setting alight and doing damage in other premises where the original human agency is at an end.⁵  If so, even regarding unconcealed goods is not the human agency at an end?⁶  — Hence the one maintaining that Fire implies human agency also holds that Fire is chattel,⁷  so that liability for unconcealed goods would arise in the case where the falling fence could have been, but was not, repaired in time [to prevent the further spread of the fire], since it would equal chattel⁸  left unguarded by the owner.⁹  But if the one who holds that fire implies human agency also maintains that Fire is chattel,⁷  what then is the practical point at issue?¹⁰  — The point at issue is whether Fire¹¹  will involve the [additional] Four Items.¹²

[THE OWNER OF THE DOG] PAYS FULL COMPENSATION FOR THE CAKE WHEREAS FOR THE BARN [HE] PAYS [ONLY] HALF DAMAGES. Who is liable [for the barn]? — The owner of the dog. But why should not the owner of the coal also be made liable?¹³  — His [burning] coal was [well] guarded by him.¹⁴  If the [burning] coal was well guarded by him, how then did the dog come to it? — By breaking in. R. Mari the son of R. Kahana thereupon said: This ruling implies that the average door is not beyond being broken in by a dog.¹⁵

Now in whose premises was the cake devoured? It could hardly be suggested that it was devoured in the barn of another party,¹⁶  for do we not require And shall feed in the field of another¹⁷  [the plaintiff], which is not the case here? — No, it applies where it was devoured in the barn of the owner of the cake. You can thus conclude that [the plaintiff's food carried in] the mouth of [the defendant's] cattle

1. I.e., by fire breaking out of itself.
2. As implied in the clause, He that kindled the fire.
3. Since in the case of Man doing damage such an exemption does not exist.
4. V. supra pp. 18 and 39 and infra 61b.
5. It is in this case (where the human agency is at an end) that there is exemption for hidden goods but liability for unconcealed articles.
6. And there should therefore be exemption for damage done to all kinds of property.
7. So that whenever the human agency is at an end, there would still be a possibility of liability being incurred.
8. Lit., 'his ox'.
9. Cf. infra 55b.
10. I.e., what is the difference in law whether the liability for Fire is for the principles of human agency and chattel combined, or only on account of the principle of chattel? The difference could of course be only in the case where the human agency involved in Fire was not yet brought to an end. For otherwise the liability according to both views would only be possible on account of the principle of chattel, a principle which is according to the latest conclusion maintained by all.
11. In cases where the human agency was not yet at an end.
12. I.e., Pain, Healing, Loss of Time and Degradation, which in the case of Man, but not Ox, injuring men are paid in addition to Depreciation which is a liability common in all cases; v. supra p. 12. According to R. Johanan who considers Fire a human agency, the liability will be not only for Depreciation but also for the additional Four Items: whereas Resh Lakish maintains that only Depreciation will be paid, as in the case of damage done by Cattle.
13. Since it was his coal that did the damage.
14. He is therefore not to blame.
15. For if otherwise the breaking in should be an act of unusual occurrence that should be subject to the law applicable to Horn, involving only the compensation of half damages for the consumption of the cake.
16. I.e., a barn not belonging to the owner of the cake.
17. Ex. XXII, 4.

is still considered [kept in] the plaintiff's premises.¹  For if it is considered to be in the defendant's premises why should not he say to the plaintiff: What is your bread doing in the mouth of my dog?²  For there had been propounded a problem: Is [the plaintiff's food carried in] the mouth of [the defendant's] cattle considered as kept in the premises of the plaintiff, or as kept in the premises of the defendant? (Now if you maintain that it is considered to be in the defendant's premises, how can Tooth, for which the Divine Law imposes liability,³  ever have practical application? — R. Mari the son of R. Kahana, however, replied: [It can have application] in the case where [the cattle] scratched against a wall for the sake of gratification [and pushed it down], or where it soiled fruits [by rolling upon them] for the purpose of gratification.⁴  But Mar Zutra demurred: Do we not require, As a man taketh away dung till it all be gone,⁵  which is not the case here?⁶  — Rabina therefore said; [It has application] in the case where [the cattle] rubbed paintings⁷  off [the wall]. R. Ashi similarly said: [It may have application] in the case where the cattle trampled on fruits [and spoilt them completely].⁷  )

Come and hear: If he incited a dog against him [i.e. his fellowman], or incited a serpent against him [to do damage], there is exemption.⁸  For whom is there exemption? — There is exemption for the inciter, but liability upon the owner of the dog. Now if you contend that [whatever is kept in] the mouth of the defendant's cattle is considered [as kept in] the defendant's premises, why should he not say to the plaintiff: What is your hand doing in the mouth of my dog?⁹  — Say, therefore, there is exemption also for the inciter;¹⁰  or if you like, you may say: The damage was done by the dog baring its teeth and wounding the plaintiff.¹¹

Come and hear: If a man caused another to be bitten by a serpent, R. Judah makes him liable whereas the Sages exempt him.⁸  And R. Aha b. Jacob commented:¹²  Should you assume that according to R. Judah the poison of a serpent is ready at its fangs, so that the defendant [having committed murder is executed by] the sword,¹³  whereas the serpent [being a mere instrument] is left unpunished, then according to the view of the Sages, the poison is spitten out by the serpent of its own free will, so that the serpent [being guilty of slaughter] is stoned,¹⁴  whereas the defendant, who caused it, is exempt.¹⁵  Now if you maintain that [whatever is kept in] the mouth of the defendant's cattle is considered [to be in] the defendant's premises, why should not the owner of the serpent say to the plaintiff: 'What is your hand doing in the mouth of my serpent?' — Regarding [the] killing [of the serpent] we certainly do not argue thus. Whence can you derive [this]? — For it was taught: Where a man enters another's premises without permission and is gored there to death by the owner's ox, the ox is stoned,¹⁴  but the owner is exempted [from paying] kofer¹⁶  [for lost life].¹⁷  Now 'the owner is exempted [from paying] kofer.' Why? Is it not because he can say, 'What were you doing on my premises?' Why then regarding the ox should not the same argument be put forward [against the victim]: 'What had you to do on my premises?' — Hence, when it is a question of killing [obnoxious beasts] we do not argue thus.

The goats of Be Tarbu¹⁸  used to do damage to [the fields of] R. Joseph. He therefore said to Abaye: 'Go and tell their owners that they should keep them indoors.' But Abaye said: 'What will be the use in my going? Even if I do go, they will certainly say to me "Let the master construct a fence round his land."' But if fences must be constructed, what are the cases in which the Divine Law imposed liability for Tooth?¹⁹  — [Perhaps only] when the cattle pulled down the fence and broke in, or when the fence collapsed at night. It was, however, announced by R. Joseph, or, as others say, by Rabbah: 'Let it be known to those that go up from Babylon to Eretz Yisrael as well as to those that come down from Eretz Yisrael to Babylon, that in the case of goats that are kept for the market day but meanwhile do damage, a warning is to be extended twice and thrice to their owners. If they comply with the terms of the warning well and good, but if not, we bid them: "Slaughter your cattle immediately²⁰  and sit at the butcher's stall to get whatever money you can."'

MISHNAH. WHAT IS TAM, AND WHAT IS MU'AD? — [CATTLE BECOME] MU'AD AFTER [THE OWNER HAS] BEEN WARNED FOR THREE DAYS [REGARDING THE ACTS OF GORING],²¹  BUT [RETURN TO THE STATE OF] TAM AFTER REFRAINING FROM GORING FOR THREE DAYS; THESE ARE THE WORDS OF R. JUDAH. R. MEIR, HOWEVER, SAYS: [CATTLE BECOME] MU'AD AFTER [THE OWNER HAS] BEEN WARNED THREE TIMES [EVEN ON THE SAME DAY], AND [BECOME AGAIN] TAM WHEN CHILDREN KEEP ON TOUCHING THEM AND NO GORING RESULTS.

GEMARA. What is the reason of R. Judah?²²  — Abaye said: [Scripture states, Or, if it be known from yesterday, and the day before yesterday, that he is a goring ox, and yet his owner does not keep him in …²³]: 'Yesterday', denotes one day; 'from yesterday' — two;²⁴  and 'the day before yesterday' — three [days]; 'and yet his owner does not keep him in' — refers to the fourth goring. Raba said: 'Yesterday' and 'from yesterday'²⁵  denote one day; 'the day before yesterday' — two, 'and he [the owner] does not keep him in,' then, [to prevent a third goring,] he is liable [in full].²⁶  What then is the reason of R. Meir?²⁷  — As it was taught: R. Meir said:

1. And liability for the consumption of the food is not denied.
2. [I.e., why should I be liable for the bread consumed in my (the defendant's) premises?]
3. Ex. XXII, 4.
4. Cf. supra p. 6.
5. I Kings XIV, 10.
6. On account of the fact that the corpus is in any of these cases not being destroyed; v. supra pp. 4-5.
7. In which case there is total destruction of the corpus.
8. Sanh. IX, 1; v. also infra 24b.
9. For which the dog is not much to blame since it was incited to do it.
10. I.e., both inciter and dog-owner will not be made liable.
11. In which case his hand has never been kept in the mouth of the dog.
12. Sanh. 78a.
13. V. Sanh. IX. 1.
14. In accordance with Ex. XXI, 28-29.
15. Being a mere accessory.
16. Lit., 'atonement', v. Glos.
17. Contrary to the ruling of Ex. XXI, 30.
18. A p.n. of a certain family.
19. Ex. XXII. 4.
20. Without waiting for the market day.
21. Committed by his cattle.
22. Making the law of Mu'ad depend upon the days of goring.
23. Ex. XXI, 36.
24. The Hebrew term [H] denoting 'From yesterday' is thus taken to indicate two days.
25. Expressed in the one Hebrew word [H].
26. According to Rashi a.l. even for the third goring. But Tosaf. a.l. and Rashi B.B. 28a explain it to refer only to the goring of the fourth time and onwards.
27. That the number of days is immaterial.