Babylonian Talmud: Tractate Baba Kamma

Folio 26a

But have we ever suggested payment in full? It was only half payment that we were arguing for!¹  — Scripture further says, And they shall divide the money of it²  [to indicate that this³  is confined to] 'the money of it' [i.e.. the goring ox] but does not extend to compensation [for damage caused] by another ox.⁴

But should we not let Tooth and Foot doing damage on the plaintiff's premises involve the liability for half damages only because of the following a fortiori: If in the case of Horn, where there is liability for damage done even on public ground, there is yet no more than half payment for damage done on the plaintiff's premises,⁵  does it not follow that, in the case of Tooth and Foot where there is exemption for damage done on public ground,⁶  the liability regarding damage done on the plaintiff's premises should be for half compensation only? — Scripture says, He shall make restitution,⁷  meaning full⁸  compensation.

But should we not [on the other hand] let Horn doing damage on public ground involve no liability at all, because of the following a fortiori: If in the case of Tooth and Foot where the payment for damage done on the plaintiff's premises is in full there is exemption for damage done on public ground.⁶  does it not follow that, in the case of Horn where the payment for damage done on the plaintiff's premises, is only half, there should be exemption for damage done on public ground? — Said R. Johanan: Scripture says. [And the dead also] they shall divide,⁹  to emphasise that in respect of half payment there is no distinction between public ground and private premises.¹⁰

But should we not let [also] in the case of Man ransom be paid [for manslaughter]¹¹  because of the following a fortiori: If in the case of Ox where there is no liability to pay the [additional] Four Items,¹²  there is yet the liability to pay ransom [for manslaughter,¹³  does it not follow that in the case of Man who is liable for the [additional] Four Items,¹²  there should be ransom [for manslaughter]? — But Scripture states, Whatsoever is laid upon him: upon him¹³  excludes [the payment of ransom] in the case of Man [committing manslaughter].

But should we not [on the other hand] let Ox involve the liability of the [additional] Four Items because of the following a fortiori: If Man who by killing man incurs no liability to pay ransom¹⁴  has, when injuring man, to pay [additional] Four Items,¹⁵  does it not follow that, in the case of Ox where there is a liability to pay ransom [for killing man],¹⁶  there should similarly be a liability to pay the [additional] Four Items when injuring [man]? — Scripture states, If a man cause a blemish in his neighbour,¹⁷  thus excluding Ox injuring the [owner's] neighbour.

It has been asked: In the case of Foot treading upon a child [and killing it] in the plaintiff's premises, what should be the law regarding ransom? Shall we say that this comes under the law applicable to Horn, on the ground that just as with Horn in the case of manslaughter being repeated twice and thrice it becomes habitual with the animal,¹⁸  involving thus the payment of ransom,¹⁹  so also seems to be the case here²⁰  with hardly any distinction; or shall it perhaps be argued that in the case of Horn there was on the part of the animal a determination to injure, whereas in this case the act was not prompted by a determination to injure? — Come and hear: In the case of an ox having been allowed [by its owner] to trespass upon somebody else's ground and there goring to death the owner of the premises, the ox will be stoned, while its owner must pay full ransom whether [the ox was] Tam or Mu'ad. This is the view of R. Tarfon. Now, whence could R. Tarfon infer the payment of full ransom in the case of Tam, unless he shared the view of R. Jose the Galilean maintaining²¹  that Tam involves the payment of half ransom for manslaughter committed on public ground, in which case he²²  could rightly have inferred ransom in full [for manslaughter on the plaintiff's premises] by means of the a fortiori from the law applicable to Foot?²³  This thus proves that ransom has to be paid for [manslaughter committed by] Foot. R. Shimi of Nehardea, however, said that the Tanna²⁴  might have inferred it from the law applicable to [mere] damage done by Foot.²⁵  But [if so] cannot the inference be refuted? For indeed what analogy could be drawn to damage done by Foot, the liability for which is common also with Fire [whereas ransom does not apply to Fire]?²⁶  — [The inference might have been] from damage done to hidden goods [in which case the liability is not common with Fire].²⁷  Still what analogy is there to hidden goods, the liability for which is common with Pit [whereas ransom for manslaughter does not apply to Pit]?²⁸  — The inference might have been from damage done to inanimate objects²⁹  [for which there is no liability in the case of Pit].³⁰  Still what analogy is there to inanimate objects, the liability for which is again common with Fire? — The inference might therefore have been from damage done to inanimate objects that were hidden [for which neither Fire nor Pit involve liability]. But still what comparison is there to hidden inanimate objects, the liability for which is common at least with Man [whereas ransom is not common with Man]?³¹  — Does this therefore not prove that he³²  must have made the inference from ransom [for manslaughter] in the case of Foot,³³  proving thus that ransom has to be paid for manslaughter committed by Foot? — This certainly is proved.

R. Aha of Difti said to Rabina: It even stands to reason that ransom has to be paid in the case of Foot. For if you say that in the case of Foot there is no ransom, and that the Tanna³⁴  might have made the inference from the law applicable to mere damage done by Foot,³⁵  his reasoning could easily be refuted. For what analogy could be drawn to damage done by Foot for which there is liability in the case of Foot [whereas this is not the case with ransom]? Does this [by itself] not show that the inference could only have been made from ransom in the case of Foot,³⁶  proving thus that ransom has to be paid for [manslaughter conmitted by] Foot? — It certainly does show this.

MISHNAH. MAN IS ALWAYS MU'AD WHETHER [HE ACTS] INADVERTENTLY OR WILFULLY, WHETHER AWAKE OR ASLEFP.³⁷  IF HE BLINDED HIS NEIGHBOUR'S EYE OR BROKE HIS ARTICLES, FULL COMPENSATION MUST [THEREFORE] BE MADE.

GEMARA. Blinding a neighbour's eye is placed here in juxtaposition to breaking his articles [to indicate that] just as in the latter case only Depreciation will be indemnified, whereas the [additional] Four Items [of liability]³⁸  do not apply, so also in the case of inadvertently blinding his neighbour's eye only Depreciation will be indemnified, whereas the [additional] Four Items do not apply.

1. On the analogy to Horn where the liability is only for half damages in the case of Tam. The Scriptural text may have been intended to exclude only full compensation.
2. Ex. XXI, 35.
3. I.e., the division of compensation.
4. With the exception of course of damage done by Pebbles according to the Rabbis, who by the authority of a special Mosaic tradition order the payment of half damages; cf. supra p. 80.
5. In accordance with the Rabbis who differ from R. Tarfon; v. supra p. 125.
6. Supra p. 132.
7. Ex. XXII, 4.
8. Lit., 'good', 'perfect'.
9. [Ex. XXI, 35; the phrase being superfluous, as the text could have read, They shall divide the money of it and the dead.]
10. Cf. supra p. 92.
11. V. Supra p. 12.
12. I.e., Pain, Medical Expenses, Loss of Time and Degradation, in addition to Depreciation, when injuring a human being; v. supra ibid.
13. Ex. XXI, 30.
14. V. supra p. 12.
15. V. p. 133, n. 8.
16. V. Ex. XXI, 30.
17. Lev. XXIV, 19.
18. Which becomes Mu'ad; v. supra p. 119.
19. Ex. XXI, 30.
20. With Foot, which is always considered Mu'ad; v. supra p. 11.
21. Supra p. 66 and infra 48b.
22. I.e., R. Tarfon.
23. In the same way as he derived compensation in full for damage done by Horn on the plaintiff's premises, as argued by him, supra p. 125. [Thus: If in the case of Tooth and Foot, where there is no liability at all involved on public ground, there is liability to pay full ransom on the plaintiff's premises, does it not follow that Horn, which does involve at least payment of half ransom on public ground, should on the plaintiff's premises be liable to pay full ransom.]
24. V. p. 134, n. 9.
25. And not from the law applicable to manslaughter committed by Foot, in which case there may be no ransom at all. [Thus: If in the case of Foot, which involves no liability for damage on public ground, there is liability to pay in full in the plaintiff's premises, does it not follow that, in the case of Horn, involving as it does payment of half ransom on public ground, there should be payment of full ransom in plaintiff's premises.]
26. For the person liable for arson may, in such a case, be indicted for manslaughter; cf. supra pp. 37-38 and p. 113.
27. [Thus: If in the case of Foot, which involves no liability at all on public ground, there is full liability for hidden goods on the plaintiff's premises, does it not follow that, in the case of Horn, which involves liability to pay half damages on public ground, there should be payment of full ransom in plaintiff's premises?] Cf. supra p. 18.
28. As stated supra p. 37.
29. Cf. notes 2 and 4.
30. V. supra p. 18.
31. For all civil complaints are merged in the capital accusation of manslaughter; cf. supra, p. 113 and Num. XXXV, 32.
32. I.e., R. Tarfon.
33. V. supra. 134, n. 10.
34. I.e., R. Tarfon
35. V. supra p. 135, n. 2.
36. V, supra p. 134, n. 10.
37. Cf. supra p. 8.
38. I.e., Pain, Medical Expenses, Loss of Time and Degradation; cf. supra p. 133 n. 8.

Whence is this ruling¹  deduced? Hezekiah said, and thus taught a Tanna of the School of Hezekiah: Scripture states, Wound instead of a wound²  — to impose the liability [for Depreciation] in the case of inadvertence as in that of willfulness, in the case of compulsion as in that of willingness. [But] was not that [verse] required to prescribe [indemnity for] Pain even in the case where Depreciation is independently paid? — If that is all,³  Scripture should have stated, 'Wound for a wound',⁴  why state, [wound] instead of a wound,⁵  unless to indicate that both inferences be made from it?

Rabbah said: In the case of a stone lying in a person's bosom without his having knowledge of it, so that when he rose it fell down — regarding damage, there will be liability for Depreciation⁶  but exemption regarding the [additional] Four Items;⁷  concerning Sabbath⁸  [there will similarly be exemption] as it is [only] work that has been [deliberately] purposed that is forbidden by the Law;⁹  in a case of manslaughter¹⁰  there is exemption from fleeing [to a city of refuge];¹¹  regarding [the release of] a slave,¹²  there exists a difference of opinion between R. Simeon b. Gamaliel and the Rabbis, as it was taught:¹³  If the master was a physician and the slave requested him to attend to his eye and it was accidentally blinded, or [the slave requested the master] to scrape his tooth and it was accidentally knocked out, he may now laugh at the master, for he has already obtained his liberty. R. Simeon b. Gamaliel, however, says: [Scripture states] and [he] destroy it,¹⁴  to make the freedom conditional upon the master intending to ruin the eye of the slave.

If the person, however, had at some time been aware of the stone in his bosom but subsequently forgot all about it, so that when he rose it fell down, — in the case of damage there is liability for Depreciation;¹⁵  but though the exemption regarding the [additional] Four Items still holds good,¹⁶  in the case of manslaughter¹⁷  he will have to flee [to a city of refuge], for Scripture says, at unawares,¹⁸  implying the existence of some [previous] knowledge [as to the dangerous weapon] and in the case before us such knowledge did at a time exist: concerning Sabbath,¹⁹  however, there is still exemption; regarding [the release of] a slave the difference of opinion between R. Simeon b. Gamaliel and the Rabbis²⁰  still applies.

Where he intended to throw the stone to a distance of two cubits, but it fell at a distance of four,²¹  if it caused damage, there is liability for Depreciation; regarding the [additional] Four Items there is still exemption;¹⁶  so also concerning Sabbath,¹⁹  for work [deliberately] planned is required [to make it an offence];²²  in the case of manslaughter,²³  And if a man lie not in wait,²⁴  is stated by Divine law, excluding a case where there was mention to throw a stone to a distance of two cubits but which fell at a distance of four.²⁵  Regarding [the release of] a slave, the difference of opinion between R. Simeon b. Gamaliel and the Rabbis²⁰  still applies. Where the intention was to throw the stone to a distance of four²¹  cubits but it fell eight cubits away, — if it caused damage there will be liability for Depreciation; regarding the [additional] Four Items there is still exemption;¹⁶  concerning Sabbath, if there was express intention that the stone should fall anywhere, there is liability for an offence,²¹  but in the absence of such express intention no offence was committed;²⁶  in the case of manslaughter,²⁷  And if a man lie not in wait,²⁸  excludes a case where there was intention to throw a stone to a distance of four cubits, but which fell at a distance of eight. Regarding [the release of] a slave the difference of opinion between R. Simeon b. Gamaliel and the Rabbis²⁹  still applies.

Rabbah again said: In the case of one throwing a utensil³⁰  from the top of a roof and another one coming and breaking it with a stick [before it fell upon the ground where it would in any case have been broken], the latter is under no liability to pay; the reason being that it was only a utensil which was already certain to be broken that was broken by him.

Rabbah further said: In the case of a man throwing a utensil³¹  from the top of the roof while there were underneath mattresses and cushions which were meanwhile removed by another person, or even if he [who had thrown it] removed them himself, there is exemption; the reason being that at the time of the throwing [of the utensil] his agency had been void of any harmful effect.³²

Rabbah again said: In the case of one throwing a child from the top of the roof and somebody else meanwhile appearing and catching it on the edge of his sword, there is a difference of opinion between R. Judah b. Bathyra and the Rabbis.³³  For it was taught: In the case of ten persons beating one [to death] with ten sticks, whether simultaneously or consecutively, none of them

1. That Man is Mu'ad to pay Depreciation for damage done by him under all circumstances.
2. [Literal rendering of Ex. XXI, 25, which is superfluous having regard to Lev. XXIV, 19, If a man maim his neighbour, as he hath done so shall it be done to him.]
3. That one is not merged in the other; cf. infra 85a.
4. Expressed in Hebrew only by two words [H] [H]
5. For which three words are employed in the Hebrew text.
6. For Man is Mu'ad to pay Depreciation even for damage done while asleep.
7. On account of the absence of a purpose to do damage.
8. I.e., if while unaware of the stone in his bosom he carried it with him into the open public thoroughfare, thus violating the Sabbath; cf. Shab. 96b.
9. V. infra 60a; Hag. 10b.
10. I.e., if, when the stone fell down, it killed a human being; v. Num. XXXV. 9-34.
11. Since he never had any knowledge of the stone being in his bosom, he could in no way be made responsible criminally for the accidental manslaughter.
12. I.e., when the stone in falling down destroyed the eye or the tooth of a slave; v. Ex. XXI. 26-27.
13. Kid. 24b.
14. Ex. XXI, 26.
15. For Man is Mu'ad to pay Depreciation even for damage done while asleep.
16. On account of the absence of a will to do damage.
17. I.e., if when the stone fell down, it killed a human being; v. Num. XXXV, 9-34.
18. Num. XXXV, 11, 15.
19. I.e., if while unaware of the stone in his bosom he carried it with him into the open public thoroughfare, thus violating the Sabbath; cf. Shab. 96b.
20. Supra p. 137.
21. For the minimum of distance to constitute the violation of Sabbath by throwing an object in a public thoroughfare is four cubits; v. Shab. 96b.
22. v. supra p. 137, n. 7.
23. I.e., if when the stone fell down, it killed a human being; v. Num. XXXV, 9-34.
24. Ex. XXI, 13.
25. [According to one interpretation of Rashi, this is a case for exile; according to another, a case which is excluded from enjoying the protection of the city of refuge: v. Mak. 7b.]
26. V. p. 137, n. 7.
27. V. p. 138 n. 3.
28. Ex. XXI, 13.
29. V. supra p. 137.
30. Belonging to another. According to the interpretation of Rashi a.l. the utensil was thrown by its owner; cf. however, Rashi, supra 17b.
31. Belonging to another.
32. Lit., 'he had let his arrow off', it had spent its force; i.e., when the act of throwing took place it was by no means calculated to do any damage.
33. According to R. Judah, the latter who caught it on the edge of his sword will be guilty of murder, but according to the Rabbis, no one is guilty of it.