Babylonian Talmud: Tractate Baba Kamma

Folio 33a

— A stranger need not fear the master-smith¹  whereas the apprentice is in fear of his master.²

R. Zebid in the name of Raba referred [the remark of R Jose b. Hanina] to the following: [The verse,] And [it] lighteth [upon his neighbour],³  excludes [a case] where the neighbour brings himself [within the range of the missile]. Hence the statement made by R. Eliezer b. Jacob: If a man lets [fly] a stone out of his hand and another [at that moment] puts out his head [through a window] and receives the blow [and is killed], he is exempt.⁴  [Now, it was with reference to this case that] R. Jose b. Hanina said: He is exempt from having to take refuge,⁵  but he would be liable for the four [additional] items.⁶  He who refers this remark to this [last] case will with more reason refer it to the cases dealt with previously,⁷  whereas he who refers it to those dealt with previously⁷  would maintain that in this [last] case⁸  the exemption is from all [kinds of liability].

Our Rabbis taught: If employees come to [the private residence of] their employer to demand their wages from him and [it so happens that] their employer's ox gores them or their employer's dog bites them, with fatal results, he [the employer] is exempt [from ransom].⁹  Others,¹⁰  however, maintain that employees have the right to [come and] demand their wages from their employer. Now, what were the circumstances [of the case]? If the employer could be found in [his] city [offices], what reason [could be adduced] for [the view maintained by] the 'Others'.¹⁰  If [on the other hand] he could be found only at home, what reason [could be given] for [the anonymous view expressed by] the first Tanna? — No, the application [of the case] is where the employer could [sometimes] be found [in his city offices] but could not [always] be found [there]. The employees therefore called at his [private] door, when the reply was 'Yes'. One view¹¹  maintains that 'Yes' implies: 'Enter and come in.' But the other view¹²  maintains that 'Yes' may signify: 'Remain standing in the place where you are.' It has indeed been taught in accordance with the view¹²  maintaining that 'Yes' may [in this case] signify: 'Remain standing in the place where you are.' For it has been taught: 'If an employee enters the [private] residence of his employer to demand his wages from him and the employer's ox gores him or the employer's dog bites him, he [the employer] is exempt even where the entrance had been made by permission.' Why should there indeed be exemption¹³  unless in the case where he called at the door and the employer said: 'Yes'? This thus proves that 'Yes' [in such a case] signifies: 'Remain standing in the place where you are.

MISHNAH. IN THE CASE OF TWO TAM OXEN INJURING EACH OTHER, THE PAYMENT OF THE DIFFERENCE WILL BE IN ACCORDANCE WITH THE LAW OF HALF-DAMAGES.¹⁴  WHERE BOTH WERE MU'AD THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL.¹⁴  WHERE ONE WAS TAM AND THE OTHER MU'AD THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY MU'AD TO TAM WILL BE ON THE BASIS OF FULL COMPENSATION, WHEREAS THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY TAM TO MU'AD WILL BE IN ACCORDANCE WITH THE LAW OF HALF-DAMAGES. SIMILARLY IN THE CASE OF TWO PERSONS INJURING EACH OTHER, THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL. WHERE MAN HAS DAMAGED MU'AD AND MU'AD HAS INJURED MAN, THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL. BUT WHERE MAN DAMAGED TAM AND TAM INJURED MAN, THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY MAN TO TAM WILL BE ON THE BASIS OF FULL COMPENSATION, WHEREAS THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY TAM TO MU'AD WILL BE IN ACCORDANCE WITH THE LAW OF HALF-DAMAGES. R. AKIBA, HOWEVER, SAYS: EVEN IN THE CASE OF TAM INJURING MAN THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL.¹⁵

GEMARA. Our Rabbis taught: [The words of the Torah] According to this judgement shall be done unto it¹⁶  [imply that] the judgement in the case of Ox damaging ox applies also in the case of Ox injuring man. Just as where Ox has damaged ox half-damages are paid in the case of Tam and full compensation in the case of Mu'ad, so also where Ox has injured man only half damages will be paid in the case of Tam and full compensation in the case of Mu'ad. R. Akiba, however, says: [The words,] 'According to this judgement' refer to [the ruling that would apply to the circumstances described in] the latter verse¹⁷  and not in the former verse.¹⁸  Could this then mean that the [full] payment is to be made out of the best [of the estate]?¹⁹  [Not so; for] it is stated 'Shall it be done unto it [self],' to emphasise that payment will be made out of the body of Tam, but no payment is to be made out of any other source whatsoever.²⁰  According to the Rabbis then, what purpose is served by the word 'this'? — To exempt from liability for the four [additional] items.²¹  Whence then does R. Akiba derive the exemption [in this case] from liability for the four [additional] items? — He derives it from the text, And if a man cause a blemish in his neighbour²²  [which indicates that there is liability only where] Man injures his neighbour but not where Ox injures the neighbour [of the owner]. And the Rabbis?²³  — Had the deduction been from that text we might have referred it exclusively to Pain,²⁴  but as to Medical Expenses and Loss of Time²⁵  we might have held there is still a liability to pay. We are therefore told²⁶  [that this is not the case].

MISHNAH. IF AN OX [TAM] OF THE VALUE OF ONE HUNDRED ZUZ HAS GORED AN OX OF THE VALUE OF TWO HUNDRED ZUZ AND THE CARCASS HAD NO VALUE AT ALL, THE PLAINTIFF WILL TAKE POSSESSION OF THE [DEFENDANT'S] OX [THAT DID THE DAMAGE].²⁷

GEMARA. Who is the author of our Mishnah? — It is R. Akiba, as it has been taught: The ox [that did the damage] has to be assessed by the Court of law;²⁸  this is the view of R. Ishmael. R. Akiba, however, says: The [body of the] ox becomes transferred [to the plaintiff]. What is the point at issue? — R. Ishmael maintains that he [the plaintiff] is but a creditor and that he has only a claim of money against him [the defendant], whereas R. Akiba is of the opinion that they both [the plaintiff and defendant] become the owners in common of the ox²⁹  [that did the damage]. They [thus also] differ as to the interpretation of the verse, Then they shall sell the live ox and divide the money of it.³⁰  R. Ishmael maintains that it is the Court on which this injunction is laid by Divine Law,³¹  whereas R. Akiba is of the opinion that it is the plaintiff and defendant on which it is laid.³²  What is the practical difference between R. Ishmael and R. Akiba? — There is a practical difference between them where the plaintiff consecrated the ox [that did the damage].³³

Raba put the following question to R. Nahman: Should the defendant meanwhile dispose of the ox, what would be the law according to R. Ishmael? [Shall we say that] since R. Ishmael considers the plaintiff to be a creditor whose claim [against the defendant] is only regarding money, the sale is valid, or that

1. Who should thus have borne in mind that the stranger might not yet have left the place. The smith should therefore not yet have allowed the the sparks to fly off.
2. Who should not resonably have expected him to have still been there.
3. Deut. XIX, 5; v. supra, p. 175, n. 3.
4. Cf. Mak. 8a.
5. In the case of manslaughter.
6. Since it was an act of negligence to throw a stone where people are to be found.
7. In the case of the joiner, who at least knew that a newcomer had entered his workshop.
8. Dealt with by R. Eliezer b. Jacob, where the defendant is to blame as he put out his head after the stone had already been in motion.
9. For which cf. Ex. XXI, 30. The vicious beast is, however, stoned; v. supra p. 118.
10. According to Hor. 13b, the views of R. Meir were sometimes quoted thus; cf. however Ber. 9b; Sot. 12a; A.Z. 64b.
11. I.e., that of 'Others'.
12. Put forward by the first Tanna.
13. Where the entrance had been made by permission.
14. Cf. supra p. 73.
15. Cf supra p. 15.
16. Ex. XXI, 31.
17. Ibid. XXI, 29 dealing with Mu'ad.
18. Ibid. XXI, 28 dealing with Tam.
19. As in the case of an injury done by Mu'ad. Cf. supra, p. 73.
20. Cf. supra p. 15.
21. V. supra p. 133.
22. Lev. XXIV, 19.
23. [Wherefore apply 'this' to deduce exemption from the four items, since that is already derived from this latter verse?]
24. The liability for which is not in respect of an actual loss of value.
25. The liability for which is in respect of an actual loss of money sustained.
26. By the expression 'this'.
27. As the full value of it corresponds in this case to the amount of half-damages.
28. And if its value is not less than the amount of the half-damages, the defendant will have to pay that amount in full, whereas where the value of the ox that did the damage is less than the amount of the half-damages, the defendant will have to pay no more than the actual value of the ox that did the damage.
29. Where its value is more than the amount of the half-damages.
30. Ex. XXI, 35.
31. I.e., to sell the live ox which is still the property of the defendant.
32. As the live ox became their property in common where its value had been more than the amount of the half-damages.
33. [According to R. Ishmael the consecration is of no legal effect, whereas R. Akiba would declare it valid.]

since the ox is mortgaged to the plaintiff,¹  the defendant has no right [to dispose of it]? — He replied: The sale is not valid. But has it not been taught: In the case of [the defendant] having disposed of the ox, the sale is valid? — The plaintiff will still be entitled to come forward and distrain on it [from the purchaser].²  But if he is entitled to come forward and distrain on it, to what purpose is the sale valid? — For the ploughing [the ox did with the purchaser].³  Can we infer from this that in the case of a debtor having sold his chattels, a Court of law will distrain on them for a creditor?⁴  — The case there [of the ox]⁵  is altogether different, since the ox is regarded as if [the owner] had mortgaged it [for half-damages]. But did Raba not say⁶  that where a debtor has mortgaged his slave and then sold him [to a third person] the creditor is entitled to distrain on him, whereas where an ox has been mortgaged and then sold [to a third party] the creditor cannot distrain on it?⁷  — Is not the reason in the case of the slave that the transaction has been widely talked about?⁸  So also in the case of this ox; since it gored it has been talked about, and the name 'The ox that gored' given it.

R. Tahlifa the Western⁹  recited in the presence of R. Abbahu: 'Where he sold the ox, the sale is not valid, but where he consecrated it [to the altar], the consecration holds good.' Who sold it? Shall I say the defendant? [In that case the opening clause,] 'Where he sold the ox, the sale is not valid', would be in accordance with the view of R. Akiba that the ox becomes transferred [to the plaintiff], while [the concluding clause.] 'Where he consecrated it, the consecration holds good' could follow only the view of R. Ishmael who said that the ox has to be assessed by the Court. If [on the other hand, it has been disposed of by] the plaintiff, would not [the opening clause.] 'Where he sold the ox, the sale is not valid', be in accordance with the view of R. Ishmael, while [the concluding clause.,] 'Where he consecrated it, the consecration holds good' could follow only the view of R. Akiba? — We may still say that it was the defendant [who disposed of it], and yet [both rulings] will be in agreement with all. 'Where he sold the ox, the sale is valid' [may be explained] even in accordance with R. Ishmael, for the ox is mortgaged to the plaintiff. 'Where he consecrated it, the consecration holds good,' [may again be interpreted] even in accordance with R. Akiba, on account of [the reason given] by R. Abbahu; for R. Abbahu [elsewhere] stated:¹⁰  An extra precaution was taken¹¹  lest people should say that consecrated objects could lose their status even without any act of redemption.¹²

Our Rabbis taught: If an ox does damage while still Tam, then, as long as its case has not been brought up in Court, if it is sold the sale is valid; if it is consecrated, the consecration holds good; if slaughtered and given away as a gift, what has been done is legally effective. But after the case has come into Court,¹³  if it is sold the sale is not valid; if consecrated, the consecration does not hold good; if slaughtered and given away as a gift, the acts have no legal effect; so also where [other] creditors stepped in first and distrained on the ox [while in the hands of the defendant], no matter whether the debt had been incurred before the goring took place or whether the goring had occurred before the debt was incurred, the distraint is not legally effective, since the compensation [for the damage]¹⁴  must be made out of the body of the ox [that did it].¹⁵  But in the case of Mu'ad doing damage there is no difference whether the case had already been brought into Court or whether it had not yet come into Court; if it has been sold, the sale is valid; if consecrated, the consecration holds good; if slaughtered and given away as a gift, what has been done is legally effective, where [other] creditors have stepped in and distrained on the ox, no matter whether the debt had been contracted before the goring took place or whether the goring had taken place before the debt was incurred, the distraint is legally effective, since the compensation is paid out of the best of the general estate [of the defendant].¹⁶

The Master stated: 'If it is sold, the sale is valid'. [This can refer] to ploughing [done by the ox while with the vendee]. 'If consecrated, the consecration holds good'; on account of the reason given by R. Abbahu. 'If slaughtered and given away as a gift, what has been done is legally effective'. We can quite understand that where it has been given away as a gift the act should be legally effective, in respect of the ploughing [meanwhile done by the ox]. But in the case of it having been slaughtered, why should [the claimant] not come and obtain payment out of the flesh? Was it not taught: '[The] live [ox]:¹⁷  this states the rule for when it was alive; whence do we know that the same holds good even after it has been slaughtered? Because it says further: And they shall sell the ox,¹⁷  i.e., in all circumstances'? — R. Shizbe therefore said: What is referred to must be the diminution in value occasioned by its having been slaughtered.¹⁸  R. Huna the son of Joshua thereupon said: This proves that if a man impairs securities mortgaged to his creditor, he incurs no liability. Is this not obvious?¹⁹  — It might perhaps have been suggested that it was only there²⁰  where the defendant could argue, 'I have not deprived you of anything at all [of the quantity]', and could even say, 'it is only the mere breath [of life] that I have taken away from your security' [that there should be exemption], whereas in the case of impairing securities in general there should be liability; we are therefore told [that this is not the case]. But has not this been pointed out by Rabbah? For has not Rabbah stated: 'If a man destroys by fire the documents of a neighbour, he incurs no liability'?²¹  — It might perhaps have been suggested that it was only there where the defendant could contend 'It was only a mere piece of paper of yours that has actually been burnt' [that there should be exemption], whereas in the case [of spoiling a field held as security] by digging there pits, ditches and caves there should be liability; we are therefore told that [this is not so, for] in the case here the damage resembles that occasioned by digging pits, ditches and caves,²²  and yet it is laid down that 'what has been done is legally effective'.

'Where [other] creditors stepped in first and distrained on the ox [in the hands of the defendant] no matter whether the debt had been incurred before the goring took place or whether the goring had taken place before the debt was incurred, the distraint is not legally effective, since the compensation must be made out of the body of the ox [that did the damage].' We understand this where the goring has taken place before the debt was incurred, in which case the plaintiff for damages has priority. But [why should it be so] where the debt has been contracted before the goring took place, [seeing that in that case] the creditor for the debt has priority?

1. For if payment were not forthcoming the plaintiff would be entitled to distrain on the ox to the extent of the amount of the half-damages.
2. V. p. 181, n. 8.
3. Who will thus not have to pay for the use of the animal, [or, who will be permitted to put the ox to such service, v. Wilna Gaon, Glosses.]
4. Whereas according to established law this is usually the case only with immovable property, cf. supra p. 62 but also B.B. 44b.
5. That did damage by goring while still in the state of Tam.
6. Supra p. 47. Cf. also B.B. 44b.
7. Why then distrain on the ox in the case of goring when it had already been sold?
8. V. B.B. loc. cit.
9. The Palestinian.
10. 'Ar. 33a.
11. In the case of one who consecrates property on which there is a lien of a kethubah or a debt.
12. It is therefore a better policy to declare the consecration valid and prescribe a nominal sum for redemption.
13. Since when the ox is legally transferred to the plaintiff.
14. Which will be only half of the actual amount of the loss sustained.
15. Cf. supra p. 73.
16. Cf. Tosef. B.K. V.
17. Ex. XXI. 35.
18. For which the defendant is thus not made responsible.
19. That such an inference could be made; why then the special statement made by R. Huna?
20. In the case of the ox that had been slaughtered.
21. Infra p. 570.
22. Since the damage is visible.