Babylonian Talmud: Tractate Baba Kamma

Folio 28a

: It is true that Ben Bag Bag supports thy view; but he is only one against the Rabbis¹  who differ from him. R. Jannai [even] suggested that 'Break his teeth' may also mean to bring him before a court of justice. But if so, why 'and thou mayest tell him?' Should it not read 'and they²  will tell him'? Again, 'I am taking possession of what is mine'; should it not be 'he is taking possession of what is his'? — This is indeed a difficulty.

Come and hear: In the case of an ox throwing itself upon the back of another's ox so as to kill it, if the owner of the ox that was beneath arrived and extricated his ox so that the ox that was above dropped down and was killed, there is exemption. Now, does not this ruling apply to Mu'ad³  where no irreparable loss is pending? — No, it only applies to Tam⁴  where an irreparable loss is indeed pending. But if so, read the subsequent clause: If [the owner of the ox that was beneath] pushed the ox from above, which was thus killed, there would be liability to compensate. Now if the case dealt with is of Tam,⁵  why liability? — Since he was able to extricate his ox from beneath, which in fact he did not do, [he had no right to push and directly kill the assailing ox].⁶

Come and hear: In the case of a trespasser having filled his neighbour's premises with pitchers of wine and pitchers of oil, the owner of the premises is entitled to break them when going out and break them when coming in. [Does not this prove that a man may take the law into his own hands for the protection of his rights?]⁷  — R. Nahman b. Isaac explained: He is entitled to break them [and make a way]⁸  when going out [to complain] to the Court of Justice, as well as break them when coming back to fetch some necessary documents.

Come and hear: Whence is derived the ruling that in the case of a [Hebrew] bondman whose term of service, that had been extended by the boring of his ear,⁹  has been terminated by the arrival of the Jubilee year¹⁰  if it so happened that his master, while insisting upon him to leave, injured him by inflicting a wound upon him, there is yet exemption? We learn it from the words, And ye shall take no satisfaction for him that is … come again …¹¹  implying that we should not adjudicate compensation for him that is determined to 'come again' [as a servant].¹²  [Does not this prove that a man may take the law into his own hands for the protection of his interests?]⁷  — We are dealing here with a case where the servant became suspected of intending to commit theft.¹³  But how is it that up to that time he did not commit any theft and just at that time¹⁴  he became suspected of intending to commit theft? — Up to that time he had the fear of his master upon him, whereas from that time¹⁴  he is no more subject to his master's control.¹⁰  R. Nahman b. Isaac said: We are dealing with a bondman to whom his master assigned a Canaanite maidservant as wife:¹⁵  up to the expiration of the term this arrangement was lawful¹⁵  whereas from that time this becomes unlawful.¹⁶

Come and hear: IF A MAN PLACES A PITCHER ON PUBLIC GROUND AND ANOTHER ONE COMES AND STUMBLES OVER IT AND BREAKS IT, HE IS EXEMPT. Now, is not this so only when the other one stumbled over it, whereas in the case of directly breaking it there is liability?¹⁷  — R. Zebid thereupon said in the name of Raba: The same law applies even in the case of directly breaking it; for 'AND STUMBLES' was inserted merely because of the subsequent clause which reads, IF THE OTHER ONE WAS INJURED BY IT, THE OWNER OF THE BARREL IS LIABLE TO COMPENSATE FOR THE DAMAGE, and which, of course, applies only to stumbling but not to direct breaking, as then it is of course the plaintiff who is to blame for the damage he caused to himself. It was therefore on this account that 'stumbling' was inserted in the commencing clause.

Come and hear: Then thou shalt cut off her hand,¹⁸  means only a monetary fine. Does not this ruling apply even in a case where there was no other possibility for her to save [her husband]?¹⁹  — No, it applies only where she was able to save [him] by some other means.²⁰  Would indeed no fine be imposed upon her in a case where there was no other possibility for her to save [her husband]? But if so, why state in the subsequent clause: 'And putteth forth her hand,²¹  excludes an officer of the Court of Justice [from any liability for degradation caused by him while carrying out the orders of the Court]'? Could not the distinction be made by continuing the very case²²  [in the following manner]: 'Provided that there were some other means at her disposal to save [him],²⁰  whereas if she was unable to save [him] by any other means there would be exemption'? — This very same thing was indeed meant to be conveyed [in the subsequent clause:] 'Provided that there were some other means at her disposal to save [him],²³  for were she unable to save [him] by any other means, the resort to force in her case should be considered as if exercised by an officer of the Court²⁴  [in the discharge of his duties] and there would be exemption.'

Come and hear:²⁵  In the case of a public road passing through the middle of a field of an individual, who appropriates the road but gives the public another at the side of his field, the gift of the new road holds good, whereas the old one will not thereby revert to the owner of the field. Now, if you maintain that a man may take the law into his own hands for the protection of his interests, why should he not arm himself with a whip and sit there?²⁶  — R. Zebid thereupon said in the name of Raba: This is a precaution lest an owner [on further occasions] might substitute a round- about way²⁷  [for an old established road]. R. Mesharsheya even suggested that the ruling applies to an owner who actually replaced [the old existing road by] a roundabout way.²⁷  R. Ashi said: To turn a road [from the middle] to the side [of a field] must inevitably render the road roundabout, for if for those who reside at that side it becomes more direct, for those who reside at the other side it is made far [and roundabout]. But if so, why does the gift of the new road hold good? Why can the owner not say to the public authorities: 'Take ye yours [the old path] and return me mine [the new one]'? — [That could not be done] because of Rab Judah, for Rab Judah said:²⁸  A path [once] taken possession of by the public may not be obstructed.

Come and hear: If an owner leaves Pe'ah²⁹  on one side of the field, whereas the poor arrive at another side and glean there, both sides are subject to the law of Pe'ah. Now, if you really maintain that a man may take the law into his own hands for the protection of his interests why should both sides be subject to the law of Pe'ah?³⁰  Why should the owner not arm himself with a whip and sit?³¹  — Raba thereupon said: The meaning of 'both sides are subject to the law of Pe'ah' is that they are both exempt from tithing,³²  as taught:³³  If a man, after having renounced the ownership of his vineyard, rises early on the following morning and cuts off the grapes,³⁴  there applies to them the laws of Peret,³⁵  'Oleloth,³⁶  'Forgetting'³⁷  and Pe'ah³⁸  whereas there is exemption from tithing.³⁹

MISHNAH. IF HIS PITCHER BROKE ON PUBLIC GROUND AND SOMEONE SLIPPED IN THE WATER OR WAS INJURED BY THE POTSHERD HE IS LIABLE [TO COMPENSATE]. R. JUDAH SAYS: IF IT WAS DONE INTENTIONALLY HE IS LIABLE, BUT IF UNINTENTIONALLY HE IS EXEMPT.

GEMARA. Rab Judah said on behalf of Rab: The Mishnaic ruling refers only to garments soiled in the water.⁴⁰

1. I.e., the majority of Rabbis.
2. I.e., the Judges.
3. In which case the Court would order compensation in full.
4. Where compensation is only for a half, the plaintiff losing the other half.
5. V. p. 145, n. 9.
6. [Although there was the danger of his losing the full value of his ox.]
7. Thus contradicting the view of Rab Judah.
8. But no more.
9. Ex. XXI, 6.
10. Lev. XXV, 10, and Kid. 14b, 15a.
11. Num. XXXV, 32.
12. According to another rendering quoted by Rashi, it means 'that has to return' to his family, as prescribed in Lev. XXV, 10.
13. In which case an irreparable loss is pending.
14. I.e., the arrival of the Jubilee year.
15. Ex. XXI, 4; Kid. 15a.
16. Cf. Onkelos on Deut. XXIII, 18; hence the Master may use force to eject him.
17. Thus opposing the view of R. Nahman.
18. Deut. XXV, 12.
19. Thus proving that even where irreparable loss is pending, as in this case, it is not permitted to take the law into one's own hands.
20. In which case she acted ultra vires, i.e., beyond the permission granted by law.
21. Deut. XXV, 11.
22. Dealing with a woman coming to rescue her husband.
23. V. p. 147. n. 6.
24. Lit. 'her hand is like the hand of the officer'.
25. B. B. 99b.
26. To keep away intruders; v. p. 147 n. 5.
27. Which is of course not an equitable exchange in accordance with the law.
28. B.B. 12a; 26b; 60b and 100a.
29. I.e., the portion of the harvest left at a corner of the field for the poor in accordance with Lev. XIX. 9; XXIII, 22; v. Glos.
30. Thus proving that even where irreparable loss is pending, as in this case, it is not permitted to take the law into his own hands.
31. I.e., keeping the poor away from the Pe'ah on the former side.
32. But they will by no means belong to the poor, for the portion left on the former side remains the owner's property.
33. Infra 94a; Ned. 44b.
34. So that ownership has been re-established.
35. I.e.. grapes fallen off during cutting which are the share of the poor as prescribed in Lev. XIX, 10.
36. Small single bunches reserved for the poor in accordance with Lev. XIX, 10, and Deut. XXIV, 21.
37. I.e., produce forgotten in the field, belonging to the poor in accordance with Deut. XXIV, 19.
38. I.e., the portion of the harvest left at a corner of the field for the poor in accordance with Lev. XIX, 9; XXIII, 22; v. Glos.
39. V. infra 94a. For the law of tithing applies only to produce that has never been abandoned even for the smallest space of time; v. Rashi and Tosaf. a.l.
40. Rab maintains that the Mishnah deals with a case where the water of the broken pitcher has not been abandoned, so that it still remains the chattel of the original owner who is liable for any damage caused by it

For regarding injury to the person there is exemption, since it was public ground¹  that hurt him.²  When repeating this statement in the presence of Samuel he said to me: 'Well, is not [the liability for damage occasioned by] a stone, a knife or luggage³  derived from Pit?⁴  So that I adopt regarding them all [the interpretation]: An ox⁴  excluding man, An ass⁴  excluding inanimate objects! This qualification⁵  however applies only to cases of killing, whereas as regards [mere] injury, in the case of man there is liability, though with respect to inanimate objects there is [always] exemption?'⁶  — Rab [however, maintains⁷  that] these statements apply only to nuisances abandoned [by their owners],⁸  whereas in cases where they are not abandoned they still remain [their owner's] chattel.⁹

R. Oshaia however raised an objection: 'And an ox or an ass fall therein':⁴  'An ox' excluding man; 'an ass' excluding inanimate objects. Hence the Rabbis stated: If there fell into it an ox together with its tools and they thereby broke, [or] an ass together with its equipment which rent, there is liability for the beast but exemption as regards the inanimate objects.¹⁰  To what may the ruling in this case be compared? To that applicable in the case of a stone, a knife and luggage¹¹  that had been left on public ground and did damage. (Should it not on the contrary read, 'What case may be compared to this ruling?'¹²  — It must therefore indeed mean thus: 'What may [be said to] be similar to this ruling? The case of a stone, a knife and luggage that had been left on public ground and did damage'.) 'It thus follows that where a bottle broke against the stone there is liability.' Now, does not the commencing clause¹³  contradict the view of Rab,¹⁴  whereas the concluding clause¹⁵  opposes that of Samuel?¹⁶  — But [even] on your view, does not the text contradict itself, stating exemption in the commencing clause¹³  and liability in the concluding clause!¹⁵  Rab therefore interprets it so as to accord with his reasoning, whereas Samuel [on the other hand] expounds it so as to reconcile it with his view. Rab in accordance with his reasoning interprets it thus: The [above] statement¹³  was made only regarding nuisances that have been abandoned, whereas where they have not been abandoned there is liability.¹⁷  It therefore follows that where a bottle broke against the stone there is liability. Samuel [on the other hand] in reconciling it with his view expounds it thus: Since you have now decided that a stone, a knife and luggage [constitute nuisances that] are equivalent [in law] to Pit, it follows that, according to R. Judah who orders compensation for inanimate objects damaged by Pit,¹⁸  where a bottle smashed against the stone there is liability.

R. Eleazar said: This ruling¹⁵  refers only to a case where the person stumbled over the stone and the bottle broke against the stone. For if the person stumbled because of the public ground, though the bottle broke against the stone, there is exemption.¹⁹  Whose view is here followed? — Of course not that of R. Nathan.²⁰  There are, however, some who [on the other hand] read: R. Eleazar said: Do not suggest that it is only where the person stumbled upon the stone and the bottle broke against the stone that there is liability, so that where the person stumbled because of the public ground, though the bottle broke against the stone, there would be exemption. For even in the case where the person stumbled because of the public ground, provided the bottle broke against the stone there is liability. Whose view is here followed? — Of course that of Nathan.²⁰

R. JUDAH SAYS: IF IT WAS DONE INTENTIONALLY HE IS LIABLE, BUT IF UNINTENTIONALLY HE IS EXEMPT. What does INTENTIONALLY denote? — Rabbah said: [It is sufficient²¹  if there was] an intention to bring the pitcher below the shoulder.²²  Said Abaye to him: Does this imply that R. Meir²³  imposes liability even when the pitcher slipped down [by sheer accident]? — He answered him:²⁴  'Yes, R. Meir imposes liability even where the handle remained in the carrier's hand.' But why? Is it not sheer accident, and has not the Divine Law prescribed exemption in cases of accident as recorded,²⁵  But unto the damsel thou shalt do nothing?²⁶  You can hardly suggest this ruling to apply only to capital punishment, whereas regarding damages there should [always] be liability, for it was taught:²⁷  If his pitcher broke and he did not remove the potsherds, [or] his camel fell down and he did not raise it, R. Meir orders payment for any damage resulting therefrom, whereas the Sages maintain

1. Lit., 'ground of the world'.
2. Whereas the water was only the remote cause of it.
3. Even when not abandoned; cf. supra p. 7.
4. Ex. XXI, 33.
5. Excluding man.
6. For killing and injury could not be distinguished in the case of inanimate objects. How then could Rab make him liable for soiled garments (and exempt for injury to the person)?
7. The difference in principle between Samuel and Rab is that the former maintains that nuisances of all kinds, whether abandoned by their owners or not, are subject to the law applicable to Pit, in which case there is no liability either for damage done to inanimate objects or death caused to human beings, whereas the view of Rab is that only abandoned nuisances are subject to these laws of Pit, but nuisances that have not been abandoned by their owners are still his chattels, and as such have to be subject to the law applicable to ox doing damage, in which case no discrimination is made as to the nature of the damaged objects, be they men, beasts or inanimate articles; cf. also supra p. 38.
8. In which case they are equal (in law) to Pits dug on public ground.
9. They are thus subject to the law applicable to ox; v. supra p. 18.
10. V. infra 52a.
11. Even when not abandoned; cf. supra p. 7.
12. Since the case of stone, knife and luggage is far less obvious than this case which is explicitly dealt with in Scripture.
13. Making a stone, a knife and luggage subject to the law applicable to Pit.
14. Who maintains that unless they have been abandoned they are subject to the law of Ox.
15. Imposing liability in the case of a bottle having been smashed against the stone.
16. According to whom it should be subject to the law applicable to Pit imposing no liability for damage done to inanimate objects.
17. Even for damage done to inanimate objects, as they are subject not to the law of Pit but to that applicable to Ox.
18. Supra p. 18.
19. Since it was ownerless ground that was the primary cause of the accident.
20. Who holds that where no payment can be exacted from one defendant, the co-defendant, if any, will himself bear the whole liability; cf supra p. 54 and infra 53a
21. To constitute liability.
22. Though there was no intention whatever to break it.
23. Who is usually taken to have been the author of anonymous Mishnaic statements, especially when contradicting those of R. Judah b. Il'ai, his colleague.
24. I.e., Rabbah to Abaye.
25. Deut. XXII, 26.
26. For so far as she is concerned it was a mishap.
27. Infra 55a.