Babylonian Talmud: Tractate Baba Kamma

Folio 4a

nor are the aspects of Tooth, which is not prompted by malicious intention to injure, [of such order of gravity] as those of Horn which is prompted by malicious intention to do damage.¹  But can this not be deduced a fortiori? If Tooth, which is prompted by no malicious intention to injure, involves liability to pay, how much more so should this apply to Horn, which is prompted by malicious intention to do damage? — Explicit [Scriptural] warrant for the liability of Horn is, nevertheless, essential, as otherwise you might have possibly thought that I assume [immunity for Horn on] an analogy to the case of man- and maid-servants. Just as a man- and maid-servant, although prompted by malicious intention to do damage, do not devolve any liability [upon their masters],²  so is the law here [in the case of Horn]. R. Ashi, however, said: Is not the immunity in the case of damage done by man-and maid-servants due to the special reason that, but for this, a servant provoked by his master might go on burning down³  another's crops, and thus make his master liable to pay sums of money day by day?⁴  — The sequence [of the analysis in the Mishnah] must accordingly be [in the reverse direction]: The aspects of Horn, which is actuated by malicious intention to do damage, are not [of such low order of gravity] as those of Tooth, which is not actuated by malicious intention to do damage; again, the aspects of Tooth which affords gratification while doing damage are not [of such low order of gravity] as those of Horn, which affords no gratification from the damage.⁵  But what about Foot? Was it entirely excluded [in the Mishnah]? — [The generalisation,]⁶  Whenever damage has occurred, the offender is liable, includes Foot. But why has it not been stated explicitly? — Raba therefore said: THE OX [stated in the Mishnah] implies Foot,⁷  while MAB'EH stands for Tooth; and this is the sequence [in the Mishnah]: The aspects of Foot, which does frequent damage, are not [of such low order of gravity] as those of Tooth, the damage by which is not frequent: again, the aspects of Tooth, which affords gratification from the damage, are not [of such low order of gravity] as those of Foot, which does not afford gratification from the damage.⁸  But what about Horn? Was it entirely excluded [in the Mishnah]? — [The generalisation,] Whenever damage has occurred, the offender is liable, includes Horn. But why has it not been stated explicitly? — Those which are Mu'ad ab initio are mentioned explicitly [in the Mishnah] but those which initially are Tam,⁹  and [only] finally become Mu'ad, are not mentioned explicitly.

Now as to Samuel, why did he not adopt Rab's interpretation [of the Mishnaic term MAB'EH]? — He may object: If you were to assume that it denotes Man, the question would arise, is not Man explicitly dealt with [in the subsequent Mishnah]: 'Mu'ad cattle and cattle doing damage on the plaintiff's premises and Man'?¹⁰  But why then was Man omitted in the opening Mishnah? — [In that Mishnah] damage done by one's possessions is dealt with, but not that done by one's person.

Then, how could even Rab uphold his interpretation, since Man is explicitly dealt with in the subsequent Mishnah?¹⁰  — Rab may reply: The purpose of that Mishnah is [only] to enumerate Man among those which are considered Mu'ad. What then is the import of [the analysis introduced by] THE ASPECTS ARE NOT etc.? — This is the sequence: The aspects of Ox, which entails the payment of kofer [for loss of human life],¹¹  are not [of such low order of gravity] as those of Man who does not pay [monetary] compensation for manslaughter;¹²  again, the aspects of Man who [in case of human bodily injury] is liable for [additional] four items,¹³  are not [of such low order of gravity] as those of Ox, which is not liable for those four items.¹⁴

THE FEATURE COMMON TO THEM ALL IS THAT THEY ARE IN THE HABIT OF DOING DAMAGE. Is it usual for Ox [Horn]¹⁵  to do damage? — As Mu'ad. But even as Mu'ad, is it usual for it to do damage? — Since it became Mu'ad this became its habit. Is it usual for Man to do damage? — When he is asleep. But even when asleep is it usual for Man to do damage? — While stretching his legs or curling them this is his habit.

THEIR HAVING TO BE UNDER YOUR CONTROL. Is not the control of man's body [exclusively] his own?¹⁶  — Whatever view you take,¹⁷  behold Karna taught: The principal categories of damage are four and Man is one of them. [Now] is not the control of a man's body [exclusively] his own? You must therefore say with R. Abbahu who requested the tanna¹⁸  to learn, 'The control of man's body is [exclusively] his own,'

1. And therefore the liability of Horn could not be derived from that of Tooth.
2. Cf. infra p. 502.
3. But v. infra pp. 47 and 112.
4. Yad. IV, 6; and the suggested analogy is thus untenable.
5. So that neither Horn nor Tooth could he derived from each other.
6. Infra p. 36, v. Tosaf.
7. And not Horn as first suggested.
8. So that neither Foot nor Tooth could he derived from each other.
9. As is the case with Horn.
10. V. infra 15b.
11. Lit., 'Ransom', i.e., monetary compensation for manslaughter, cf Ex. XXI, 30; v. Glos.
12. V. Num. XXXV, 31-32. Hence Man could not be derived from Ox.
13. I.e., Pain, Healing, Loss of Time and Degradation; cf. infra p. 473.
14. Ox is liable only for Depreciation.
15. According to Rab who takes Ox as including Horn.
16. The phrase in the Mishnah is thus inappropriate to man.
17. Even if you take Mab'eh as Tooth.
18. [The term here designates one whose special task was to communicate statements of older authorities to expounding teachers, v. Glos.]

that here also it is to be understood that the control of man's body is his own.¹

R. Mari, however, demurred: Say perhaps MAB'EH denotes water [doing damage], as it is written, As when the melting fire burneth, fire tib'eh [causeth to bubble] water?²  — Is it written, 'Water bubbles'? It is written, Fire causes bubbling.³  R. Zebid demurred: Say then that MAB'EH denotes Fire, as it is fire to which the act of 'tib'eh' in the text is referred? — If this be so what is then the explanation of THE MAB'EH AND THE FIRE? If you suggest the latter to be the interpretation of the former,⁴  then instead of 'FOUR' there will be 'three'? If however, you suggest that OX constitutes two [kinds of damage],⁵  then what will be the meaning of [the Mishnaic text]: NOR ARE THE ASPECTS OF EITHER OF THEM [OX and MAB'EH] IN WHICH THERE IS LIFE? Is there any life in fire? Again, what will be conveyed by [the concluding clause] AS THOSE OF THE FIRE?

R. Oshaia: taught There are thirteen principal categories of damage: The Unpaid Bailee and the Borrower, the Paid Bailee and the Hirer, Depreciation, Pain [suffered]. Healing, Loss of Time, Degradation and the Four enumerated in the Mishnah, thus making [a total of] thirteen. Why did our Tanna mention [only the Four and] not the others? According to Samuel,⁶  this presents no difficulty, as the Mishnah mentions only damage committed by one's possessions and not that committed by one's person, but according to Rab⁷  let the Mishnah also mention the others? — In the mention of Man all kinds of damage committed by him are included. But does not R. Oshaia also mention Man?⁸  — Two kinds of damage could result from Man: Man injuring man is treated as one subject, and Man damaging chattel⁹  as another.

If this be so let R. Oshaia similarly reckon Ox twice, as two kinds of damage could result also from Ox: [i] Ox damaging chattel⁹  and [ii] Ox injuring man? — But is that a logical argument? It is quite proper to reckon Man in this manner as Man damaging chattel pays only for Depreciation, while Man injuring man may also have to pay for four other kinds of damage,¹⁰  but how can Ox be thus reckoned when the liability for damage done by it to either man or chattel is alike and is confined to [only one kind of damage, i.e.] Depreciation?

But behold, are not the Unpaid Bailee and the Borrower, the Paid Bailee and the Hirer, within the sphere of Man damaging chattel and they are nevertheless reckoned by R. Oshaia? — Direct damage and indirect damage are treated by him independently.

R. Hiyya taught: There are twenty-four principal kinds of damage: Double Payment,¹¹  Fourfold or Fivefold Payment,¹²  Theft,¹³  Robbery,¹⁴  False Evidence,¹⁵  Rape,¹⁶  Seduction,¹⁷  Slander,¹⁸  Defilement,¹⁹  Adulteration,²⁰  Vitiation of wine,²¹  and the thirteen enumerated above by R. Oshaia,²²  thus making [the total] twenty-four.

Why did not R. Oshaia reckon the twenty-four? — He dealt only with damage involving civil liability but not with that of a punitive nature. But why omit Theft and Robbery which also involve civil liability? — These kinds of damage may be included in the Unpaid Bailee and the Borrower.²³  Why then did not R. Hiyya comprehend the former in the latter? — He reckoned them separately, as in the one case the possession of the chattel was acquired lawfully,²⁴  while in the other²⁵  the acquisition was unlawful.

[Why did not R. Oshaia]

1. The Mishnaic wording refers to the other categories.
2. Isa. LXIV, 1.
3. Hence the term 'tib'eh' describes not the act of water but that of fire.
4. The Mab'eh and the Fire will thus constitute one and the same kind of damage.
5. And the other two will be: Pit and Fire.
6. Who takes Mab'eh to denote Tooth and not Man; supra p. 9.
7. Who takes Mab'eh to denote Man; supra p. 9.
8. Why does he not include in Man all kinds of damage committed by him?
9. Lit., 'cattle'.
10. I.e., Pain, Healing, Loss of Time and Degradation.
11. As fine for theft; cf. Ex. XXII, 3.
12. Fines for the slaughter or sale of a stolen sheep and ox respectively; cf. Ex. XXI, 37.
13. I.e., the restoration of stolen goods or the payment of their value.
14. I.e., the unlawful acquisition of chattels by violence; cf. Lev, V, 23.
15. Cf. Deut. XIX, 19; v. Mak. I.
16. I.e., fifty shekels of silver; cf. Deut. XXII, 28-29.
17. Cf. Ex. XXII, 15-16.
18. I.e., a defaming husband; v. Deut. XXII, 13-19.
19. Of terumah (v. Glos.) which makes it unfit for human consumption.
20. Of ordinary grain with that of terumah restricting thereby the use of the mixture to priestly families.
21. Through idolatrous application by means of libation which renders all the wine in the barrel unfit for any use whatsoever; the last three heads of damage are dealt with in Git. V, 3.
22. V. p. 13.
23. I.e., when these are guilty of larceny; cf. Ex. XXII, 7.
24. I.e., in the case of the Unpaid Bailee and Borrower.
25. I.e., in the case of Theft and Robbery.