Babylonian Talmud: Tractate Baba Kamma

Folio 43a

or a proselytess the defendant would be the first to acquire title [to all the claims and thus be released from any liability]? — Rabbah thereupon said: We deal [in this latter case] with a divorced woman.¹  So also said R. Nahman [that we deal here] with a divorced woman. [But] I might [here] object: If she was divorced, why should she not also share in the compensation for the value of the embryo?²  — R. Papa thereupon said: The Torah awarded the value of embryos to the husband even where the cohabitation had taken place not in a married state, the reason being that Scripture says: According as the cohabitator³  of the woman will lay upon him.⁴

But why should not Rabbah refer the ruling⁵  to the case where the payment of the compensation had been collected in money, and R. Nahman to the case where it had been collected out of land? For did Rabbah not say⁶  that where an outstanding debt had been collected⁷  out of land, the first-born son would take in it [a double portion],⁸  but where it had been collected in money the first-born son would not [take in it a double portion]?⁹  Or again did R. Nahman not say¹⁰  that [on the contrary] where the debt had been collected in money the first-born would take [in it a double portion],¹¹  but where it has been collected out of land, the first-born son would not [take in it a double portion]?¹²  — It could, however, be answered that these statements were made on the basis of the despatch of the Western Sages according to the view of the Rabbis,¹³  whereas in the case here [where Rabbah and R. Nahman interpreted it to have referred to a divorced woman] they were stating the law as maintained by Rabbi.¹⁴

R. Simeon b. Lakish said: Where an ox killed a slave without purposing to do so, there would be exemption from the payment of thirty shekels, since it is written, He shall give unto their master thirty shekels of silver, and the ox shall be stoned,¹⁵  [implying that] where the ox would be liable to be stoned the owner is to pay thirty shekels, but where the ox would not be liable to be stoned¹⁶  the owner need not pay thirty shekels. Rabbah [similarly] said: Where an ox killed a freeman without purposing to do so there would be exemption from kofer, for it is written¹⁷  The ox should be stoned and its owner also shall be put to death. If there be laid on him a ransom, [implying that] where the ox has to be stoned¹⁶  the owner has not to pay kofer. Abaye raised an objection to this [from the following Mishnah]:¹⁸  If a man says: 'My ox has killed so-and-so' or 'has killed so-and-so's' ox, [in either case] the defendant has to pay in virtue of his own admission. Now, does the payment [in the former case]¹⁹  not mean kofer [though the ox would not become liable to be stoned through the owner's admission]?²⁰  — No; [it means for] the actual value.²¹  If [it means payment for] the pecuniary loss, read the concluding clause: [If he says], 'My ox has killed so-and-so's slave,' the defendant is not liable to pay in virtue of his own admission.²²  Now, if [the payment referred to in the first clause was meant for] the pecuniary loss, why is there no liability [to pay for the pecuniary loss in the case of a slave]?²³  — He, however, said to him: I could have answered you that the opening clause refers to the actual value²⁴  [of the killed person],²⁵  whereas the concluding clause refers to the fixed fine [of thirty shekels]. As, however, I have no intention to answer you by means of forced interpretations, [I will say that] both clauses do in fact refer to the actual value [of the killed person].

1. For otherwise the husband would inherit her claim for damages.
2. Since she was his wife no more.
3. The Hebrew term [H] ('husband' E.V.) is thus understood.
4. Ex. XXI, 22.
5. That the damages will be paid to her heirs and not to the husband.
6. B.B. 124b.
7. After the death of a creditor.
8. In accordance with Deut. XXI. 17.
9. Because the debt collected after the death of the father was not a chose in possession in the lifetime of the creditor, and the first-born takes a double portion only 'of all that' his father 'hath' at the time of death. A husband is in a similar position, as he too has the right to inherit only chooses in possession at the lifetime of his wife.
10. V. p. 243, n. 10.
11. For the money collected is considered in the eye of the law as the money which was lent to the father of the debtor.
12. V. p. 243, n. 13.
13. V. p. 243, n. 10.
14. That debts collected after the death of a creditor whether in species or out of land will be subject to the law of double portion in the case of a first-born and similarly to the law of a husband inheriting his wife. v. B.B. (Sonc. ed.) p. 518.
15. V. Ex. XXI, 32.
16. As e.g., where it killed a human being by accident.
17. Ex. XXI, 29.
18. Keth. III, 9.
19. Where the defendant admitted that his ox killed a man.
20. Without the corroboration of witnesses; v. supra p. 236, n. 8.
21. I.e., the pecuniary loss sustained through the man's death. [It is distinguished from kofer in that the payment of the latter is an act of atonement to be compounded in no circumstance; v. Tosaf. s.v. [H].]
22. As the payment of thirty shekels in the case of a slave is of the nature of a penalty which could not be inflicted on the strength of the word of mouth of the defendant.
23. Does this not prove that in the case of manslaughter committed by cattle no payment for the pecuniary loss would have to be made if you except kofer in the case of a freeman, and the thirty shekels in the case of a slave?
24. I.e. the pecuniary loss sustained through his death.
25. Which has to be paid even where kofer could for some reason or other not be imposed upon the defendant.

But [it is only in the case of] a freeman where kofer may sometimes be paid on the strength of the defendant's own admission — as where witnesses appeared and testified to the ox having killed [a freeman] without, however, knowing whether it was still Tam or already Mu'ad and the owner admits it to have been Mu'ad, in which case kofer would be paid on the strength of his own admission¹  — that [we say] where witnesses are not at all available payment will be made for the actual value [of the loss]. [Whereas] in the case of a slave where the fixed fine could never be paid through the defendant's own admission — since even where witnesses appear and testify to the ox having killed [a slave], without knowing whether it had still been Tam or already Mu'ad, and the owner admits that it had already been Mu'ad, no fine would be paid — [we say] where no witnesses at all are available there will be no payment even for the amount of the value [of the loss].

R. Samuel son of R. Isaac raised an objection [from the following teaching]: Wherever there is liability in the case of a freeman,²  there is liability in the case of a slave both for kofer and for stoning. Now, how could kofer ever be [paid] in the case of a slave?³  Does it therefore not surely mean the payment for the amount of the value [of the loss]?⁴  — Some say that he raised the objection and he himself answered it, others say that Rabbah said to him: What is meant is as follows: Wherever there is liability for kofer [i.e.] in the case of a freeman killed intentionally [by the ox] as testified by witnesses, there is [a similar] liability for the fine in the case of a slave, and wherever there is liability for the amount of the value [of the loss, i.e.,] in the case of a freeman killed unintentionally, as testified by witnesses, there is also liability for the amount of the value [of the loss] in the case of a slave killed unintentionally, as testified by witnesses.⁵  Raba, however, said to him: If so,⁶  why in the case of Fire unintentionally⁷  burning a human being [to death], as testified by witnesses, should there also not be liability to pay the amount of the value [of the loss]? And how did Raba know that no payment would be made [in this case]? Shall we say from the following Mishnah: '[Where fire was set to a barn and] a goat had been bound to it and a slave was loose near by it and all were burnt [with the barn] there would be liability.⁸  But where the slave had been chained to it, and the goat loose near by it and all were burnt with it there would be no liability.'⁹  [But how could Raba prove his point from this case here?]¹⁰  Did Resh Lakish not state that this case here should be explained as one where e.g., the defendant put the actual fire upon the body of the slave so that [no other¹¹  but] the major punishment had to be inflicted? But [it may perhaps be suggested that Raba derived his point] from the following [Baraitha]: For it has been taught: 'The excess in [the liability] for Fire over [that for] Pit is that Fire is apt to consume both things fit for it and things unfit for it, whereas this is not so in the case of Pit.'¹²  It is not, however, said that 'in the case of Fire [where a human being has been burnt to death] unintentionally there is liability to pay for the pecuniary loss, whereas it is not so in Pit'.¹³  But might [the Baraitha] not perhaps have stated [some points] and omitted [others]? — It must therefore have been that Raba himself was questioning whether in the case of Fire [burning a human being] unintentionally there would be payment for the amount of the value [of the loss] or whether there would be none. Should we say that it was only in the case of cattle — where if the manslaughter was unintentional kofer would be paid — that for unintentional manslaughter the amount of the value [of the loss] is to he paid — whereas in the case of Fire — where for intentional manslaughter no kofer would be paid¹⁴  — there should be no payment of the amount of the value [of the loss] for unintentional manslaughter? Or [shall we] perhaps [rather say that] since in the case of Cattle [killing a person] unintentionally where no kofer is paid, the value [of the loss] is nevertheless paid, so should it also be with Fire where no kofer would be paid for intentional manslaughter, that nevertheless the value [of the loss] caused by unintentional manslaughter should be paid? But as no information was available to us [on this matter], it remained undecided.

When R. Dimi arrived [from Palestine] he said on behalf of R. Johanan: [The word] kofer [I understand]. What is taught by [the expression] If kofer?¹⁵  It implies the inclusion of [the payment of] kofer in cases where there was no intention¹⁶  [to kill] just as kofer [is paid] where there was intention. Abaye however said to him: If so, the same could now surely also be argued in the case of a slave: viz.: What is taught by [the expression] If a slave?¹⁵  [It implies] that a slave killed unintentionally is subject to the same law as a slave, killed intentionally? If that is so, why did Resh Lakish say that where an ox killed a slave unintentionally there would be exemption from the thirty shekels? He replied: Would you confute one person's view by citing another?¹⁷

When Rabin arrived [from Palestine] he said on behalf of R. Johanan: [The word] a slave¹⁸  [I understand], What is taught by [the expression] If a slave? [It implied] that a slave [killed] unintentionally is subject to the same law as a slave [killed] intentionally. Now as regards Resh Lakish [who was of a different view in this respect] shall we also assume that just as he drew no lesson from the distinction between 'a slave' and 'if a slave', so he drew no lesson from the distinction between 'kofer' and 'if kofer'? — I may say that this was not so. From the distinction between 'a slave' and 'if a slave' he did not draw a lesson, whereas from the distinction between 'kofer' and 'if kofer' he did draw a lesson. Why this difference? The expressions 'a slave' and 'if a slave' do not occur in the context dealing with payment,¹⁹  whereas the expressions 'kofer' and 'if kofer' do occur in a context dealing with payment.

THE SAME JUDGMENT APPLIES IN THE CASE OF A SON OR IN THAT OF A DAUGHTER. Our Rabbis taught: [The text] Whether it have gored a son or have gored a daughter²⁰  [implies] that there is liability in the case of little ones just as in that of grown-ups. But surely this is only logical! For since there is a liability in the case of Man killing man there is similarly a liability in the case of Cattle killing man, just as where Man has killed man no distinction is made between [the victims being] little ones or grown-ups,²¹  so also where Cattle killed man no distinction should be made between [the victims being] little ones or grown-ups? Moreover there is an a fortiori argument [to the same effect]; for if in the case of Man killing man where the law did no make [murderers who are] minors liable as [it did make] grown-ups,²²  it nevertheless imposed there liability for little ones as for grown-ups,

1. As the ox in this case would be subject to be stoned, [and where the ox is stoned, the owner pays kofer].
2. I.e. kofer.
3. V. p. 244, n. 6.
4. [This shows that pecuniary loss is paid in the case of a slave on his own admission even as in the case of a freeman.]
5. [Though in the case of self-admission there will still be a distinction between the death of a freeman and that of a slave (by an ox) in regard to the payment of pecuniary loss.]
6. [That there is payment of pecuniary loss, even where kofer is not payable.]
7. [If intentionally, the civil liability would merge with the graver capital charge.]
8. For the barn and the goat but not for the slave, as he should have run away.
9. Infra 61b.
10. By not extending the ruling in the second clause to refer also to the barn but confining it to the goat which should have run away, and to the slave, on the alleged ground that no compensation should be paid for the value of the loss occasioned by fire burning a human being to death.
11. The ruling of exemption in the second clause is thus extended even to the barn.
12. Supra p. 38.
13. For which see supra p. 18 and infra 50b.
14. For it merges with the graver capital charge.
15. Ex. XXI, 30; for it is surely neither an optional nor a conditional liability.
16. ['If' [H] implying a case where kofer is imposed, though the ox is not stoned, i.e. where there was no intention (contrary to the view of Rabbah, supra); v. Malbim on Ex. XXI, 30.]
17. As R. Johanan and Resh Lakish might perhaps have differed on this point.
18. In Ex. XXI, 32.
19. It could thus hardly have any bearing on the law of payment.
20. Ibid. 31.
21. Cf. Nid. 44a.
22. See Lev. XXIV, 17 and Mek. on Ex. XXI, 12.