Babylonian Talmud: Tractate Baba Kamma

Folio 48a

what has permission or absence of permission to do with the case?¹  — I will answer; [Where the produce was brought in] with permission, the case would be one of Tooth [doing damage] in the plaintiff's premises,²  and Tooth doing damage in the plaintiff's premises entails liability,³  whereas in the absence of permission it would be a case of Tooth doing damage on public ground,⁴  and Tooth doing damage on public ground entails no liability.⁵

Come and hear: If a man brings his ox into the premises of another person without permission, and an ox from elsewhere comes and gores it, there is no liability. But if he brought it in with permission there would be liability. Now, who would be exempt⁶  and who would be liable?⁷  Does it not mean that it is the owner of the premises who would be exempt⁶  and the owner of the premises who would be liable?⁷  — No, it is the owner of the ox [from elsewhere] who would be exempt⁶  and similarly it is the owner of the ox [from elsewhere] who would be liable.⁷  But if so, what has permission or the absence of permission to do with the case?⁸  — I would answer that this teaching is in accordance with R. Tarfon, who held⁹  that the unusual damage occasioned by Horn in the plaintiff's premises has to be compensated in full: [Where the ox was brought in] with permission the case would therefore be one of Horn doing damage in the plaintiff's premises¹⁰  and the payment would have to be for full damages, whereas in the absence of permission it would amount to Horn doing damage on public ground,⁴  and the payment would accordingly be only for half damages.

A certain woman once entered the house of another person for the purpose of baking bread there, and a goat of the owner of the house came and ate up the dough, from which it became sick and died. [In giving judgment] Raba ordered the woman to pay damages for the value of the goat. Are we to say now that Raba differed from Rab, since Rab said:¹¹  It should not have eaten?¹²  — I may reply, are both cases parallel? There,¹¹  there was no permission and the owner of the produce did not assume any obligation of safeguarding [the property of the owner of the premises], whereas in this case, permission had been given and the woman had accepted responsibility for safeguarding¹³  [the property of the owner of the premises]. But why should the rule in this case be different from [what has been laid down, that] if a woman enters the premises of another person to grind wheat without permission, and the animal of the owner of the premises eats it up, the owner is not liable, and if the animal suffers harm the woman is liable, the reason being that there was no permission, which shows that where permission was granted she would be exempt?¹⁴  — I can answer: In the case of grinding wheat, since there is no need of privacy at all, and the owner of the premises is not required to absent himself, the obligation to take care [of his property] still devolves upon him, whereas in the case of baking where, since privacy is required,¹⁵  the owner of the premises absents himself [from the premises], the obligation to safeguard his property must fall upon the woman.

IF A MAN BRINGS HIS OX INTO THE PREMISES OF ANOTHER PERSON [etc.]. Raba said: If he brings his ox on another person's ground and it digs there pits, ditches, and caves, the owner of the ox would be liable for the damage done to the ground, and the owner of the ground would be liable for any damage resulting from the pit. For though the Master stated:¹⁶  [It says,] If a man shall dig a pit,¹⁷  and not 'if an ox [shall dig] a pit', still here [in this case] since it was the duty of the owner of the ground to fill in the pit and he did not fill it in, he is reckoned [in the eyes of the law] as having himself dug it.¹⁸

Raba further said: If he brings his ox into the premises of another person without permission, and the ox injures the owner of the premises, or the owner of the premises suffers injury through the ox,¹⁹  he is liable, but if it lies down,²⁰  he has no liability. But why should the fact of its lying down confer exemption?²¹  — R. Papa thereupon said: What is meant by 'it lies down' is that the ox lays down its excrements [upon the ground], and thereby soils the utensils of the owner of the premises. [The exemption is because] the excrements²²  are a case of Pit, and we have never found Pit involving liability for damage done to inanimate objects.²³  This explanation is satisfactory if we adopt the view of Samuel who held²⁴  that all kinds of nuisances come under the head of Pit. But on the view of Rab who said²⁴  [that they do not come under the head of Pit] unless they have been abandoned,²⁵  what are we to say? — It may safely be said that excrements as a rule are abandoned.²⁶

Raba said further: If one enters the premises of another person without permission, and injures the owner of the premises,²⁷  or the owner of the premises suffers injury through him²⁸  there would be liability;²⁹  and if the owner of the premises injured him, there would be no liability. R. Papa thereupon said: This ruling applies only where the owner had not noticed him. For if he had noticed him, the owner of the premises by injuring him would render himself liable, as the trespasser would be entitled to say to him: 'Though you have the right to eject me, you have no right to injure me.'³⁰  These authorities³¹  followed the line of reasoning [adopted by them elsewhere], for Raba or, as others read, R. Papa stated:

1. Since the defendant was not the owner of the premises.
2. As the plaintiff obtained a legal right to keep there the object which was subsequently damaged by a stray ox.
3. Ex. XXII, 4.
4. I.e. on premises where the plaintiff has no more right than the owner of the ox, the defendant.
5. Cf. supra p. 17.
6. V. p. 270, n. 4.
7. V. p. 270, n. 5.
8. V. p. 270, n. 7.
9. Supra p. 125.
10. V. p. 270, n. 8.
11. Supra p. 268.
12. And the woman would therefore not have to pay for the damage sustained by the animal of the owner of the premises.
13. V. the discussion that follows.
14. Why then should the woman, the owner of the dough, have to pay?
15. Lit., 'she requires privacy.' As the woman would usually have to uncover her arms.
16. Infra p. 93 and cf. also supra 51a.
17. Ex. XXI, 33.
18. The owner of the ground is therefore liable for any damage resulting from the pit.
19. By stumbling over it
20. And, as it is assumed at present, it did damage thereby.
21. If damage was done by it.
22. As any other nuisance.
23. For Scripture said: Ox and ass'; cf. supra p. 18.
24. Supra p. 150.
25. But where they were not abandoned they would be subject to the law applicable to Cattle, where there is no exemption for damage done to inanimate objects.
26. Cf. B.M. 27a.
27. [Whether with or without intention.]
28. I.e. the trespasser, by stumbling over him.
29. Upon the trespasser.
30. Cf. supra p. 124.
31. I.e. Raba and R. Papa.

Where both of them [plaintiff and defendant] had a right [to be where they were]¹  or where both of them [on the other hand] had no right [to be where they were],²  if either of them injured the other, he would be liable, but if either suffered injury through the other, there would be no liability. This is so only where both of them had a right to be where they were¹  or where both of them [on the other hand] had no right to be where they were,²  but where one of them had a right and the other had no right, the one who had a right would be exempt,³  whereas the one who had no right would be liable.³

IF IT FALLS [THERE] INTO A PIT OF THE OWNER AND MAKES THE WATER IN IT FOUL, THERE WOULD BE LIABILITY. Raba said: This ruling applies only where the ox makes the water foul at the moment of its falling into the pit.⁴  For where the water became foul [only] after it fell in, there would be exemption on the ground that [the damage done by] the ox⁵  should then be [subject to the law applicable in the case of] Pit, and water is an inanimate object, and we never find Pit entailing liability for damage done to inanimate objects.⁶  Now this is correct if we accept the view of Samuel who said⁷  that all kinds of nuisances are subject to the law of Pit. But on the view of Rab who held⁷  [that this is not so] unless they have been abandoned,⁸  what are we to say? — We must therefore suppose that if the statement was made at all, it was made in this form: Raba said: The ruling [of the Mishnah] applies only where the ox made the water foul by [the dirt of] its body.⁴  But where it made the water foul by the smell of its carcass there would be no liability, the reason being that the ox [in this case] was only a [secondary] cause [of the damage], and for a mere [secondary] cause there is no liability.

WHERE [IT KILLS] THE OWNER'S FATHER OR HIS SON [WHO] WAS INSIDE THE PIT, THERE WOULD BE LIABILITY TO PAY KOFER. But why? Was the ox not Tam?⁹  — Rab thereupon said: We are dealing with a case where the ox was Mu'ad to fall upon people in pits. But if so, should it not have already been killed [on the first occasion]?¹⁰  — R. Joseph thereupon said: The ox was looking at some grass [growing near the opening of the pit] and thus fell [into it].¹¹  Samuel, however, said: This ruling is in accordance with R. Jose the Galilean, who held¹²  that [killing by] Tam entails the payment of half kofer. 'Ulla, however, said: It accords with the ruling laid down by R. Jose the Galilean in accordance with R. Tarfon, who said¹³  that Horn doing damage in the plaintiff's premises entails the payment of full damages.¹⁴  So here the liability is for the payment of full kofer.¹⁵  'Ulla's answer satisfactorily explains why the text [of the Mishnah] says, IF HIS FATHER OR HIS SON WAS INSIDE THE PIT.¹⁶  But if we take the answer of Samuel, why [is the ruling stated] only with reference to his father and his son?¹⁶  Why not with reference to any other person? — The Mishnah took the most usual case.¹⁷

IF HE BROUGHT THEM IN WITH PERMISSION, THE OWNER OF THE PREMISES WOULD BE LIABLE etc. It was stated: Rab said: 'The law¹⁸  is in accordance with the first Tanna,' whereas Samuel said, 'The law¹⁸  is in accordance with the view of Rabbi.'¹⁹

Our Rabbis taught: [If the owner of the premises says:] 'Bring in your ox and watch it,' should the ox then damage, there would be liability,²⁰  but should the ox suffer injury there would be no liability.²¹  If, however, [the owner says], 'Bring in your ox and I will watch it,' should the ox suffer injury there would be liability,²¹  but should it do damage²²  there would be no liability.²⁰  Does not this statement contain a contradiction? You say that [where the owner of the premises said:] 'Bring in your ox and watch it,' should the ox do damage there would be liability,²⁰  but should the ox suffer injury there would be no liability.²¹  Now the reason for this is that he expressly said to the owner of the ox 'watch it' — [the reason, I mean,] that the owner of the ox will be liable and the owner of the premises exempt; from which I infer that if no explicit mention was made [as to the watching] the owner of the premises would be liable, and the owner of the ox exempt, indicating that without express stipulation to the contrary the former takes it upon himself to safeguard [the ox].²³  Now read the concluding clause: But [if he said]: 'Bring in your ox and I will watch it', should the ox suffer injury there would be liability,²⁴  but should it do damage there would be no liability, [the reason being that] he expressly said to him 'and I will watch it' — [the reason,] I mean, that the owner of the premises would be liable and the owner of the ox exempt; from which I infer that if there is no express stipulation, the owner of the ox would be liable and the owner of the premises exempt, as in such a case the owner of the premises does not take it upon himself to safeguard [the ox]. This brings us round to the view of Rabbi, who laid down [there would be no liability upon him]²⁴  unless where the owner of the premises had taken upon himself to safeguard. Is then the opening clause in accordance with the Rabbis, and the concluding clause in accordance with Rabbi? — R. Eleazar thereupon said: The contradiction [is obvious]; he who taught one clause cannot have taught the other clause.²⁵  Raba, however, said: The whole [of the Baraitha] can be explained as being in accordance with the Rabbis; since the opening clause required the insertion of the words, 'watch it',²⁶  there were correspondingly inserted in the concluding clause the words 'And I will take care of it'. R. Papa, however, said: The whole [of the Baraitha] is in accordance with Rabbi;²⁷  for he concurred in the view of R. Tarfon who stated²⁸  that Horn doing damage in the plaintiff's premises would entail the payment of full damages. It therefore follows that where he expressly said to him, 'Watch it', he certainly did not transfer a legal right to him to any place in the premises, so that the case²⁹  becomes one of Horn doing damage in the plaintiff's premises, and [as already explained]³⁰  where Horn does damage in the plaintiff's premises the payment must be for full damages. Where, however, he did not expressly say, 'Watch it', he surely granted him a legal right to place in the premises, so that the case is one of [damage done on] premises of joint owners and [as we know] where Horn does damage on premises of owners in common, there is no liability to pay anything but half damages.³¹

MISHNAH. IF AN OX WHILE CHARGING ANOTHER OX [INCIDENTALLY] INJURES A WOMAN WHO [AS A RESULT] MISCARRIES, NO COMPENSATION NEED BE MADE FOR THE LOSS OF THE EMBRYOS. BUT IF A MAN WHILE MEANING TO STRIKE ANOTHER MAN [INCIDENTALLY] STRUCK A WOMAN WHO THUS MISCARRIED HE WOULD HAVE TO PAY COMPENSATION FOR THE LOSS OF THE EMBRYOS.³²  HOW IS THE COMPENSATION FOR [THE LOSS OF] EMBRYOS FIXED? THE ESTIMATED VALUE OF THE WOMAN BEFORE HER MISCARRIAGE IS COMPARED WITH HER VALUE AFTER MISCARRIAGE.

1. Such as e.g. on public ground or on their joint premises.
2. E.g. where they were running on public ground, for which cf. supra p. 172.
3. For incidental damage suffered through him.
4. In which case the damage was direct.
5. By becoming a stationary nuisance.
6. Supra p. 18.
7. V. p. 273, n. 3.
8. V. p. 273, n. 4.
9. In which case no kofer has to be paid.
10. For in a case where the ox threw itself upon a human being in a pit to kill him it could hardly escape being sentenced to death and stoned accordingly. The explanations given supra pp. 232-3 on a similar problem could therefore hardly apply here.
11. Without any intention to kill the human being in the pit. The ox is therefore exempt from being stoned, but the owner is nevertheless liable to pay kofer as this kind of damage comes under the category of Tooth, since the ox did it for its own gratification; cf. supra p. 6.
12. Supra p. 66.
13. V. p. 271, n. 6.
14. Cf. also supra p. 134.
15. Since the ox killed the human being on his own premises.
16. So that he was killed on his own premises.
17. For it is not quite usual that a person not of the household of the owner of the yard should be in the pit which was the private property of the owner.
18. [V.l., 'The halachah is.']
19. Cf. Bez. 40a.
20. Upon the owner of the ox.
21. Upon the owner of the premises.
22. To the belongings of the owner of the premises.
23. [MS.M. adds: This will be in accordance with the Rabbis who hold that in the absence of any express stipulation there is still the duty to watch.]
24. Upon the owner of the premises.
25. Cf. supra p. 268.
26. As otherwise the owner of the premises would by implication, according to the Rabbis, have accepted liability to safeguard.
27. For while the inference from the concluding clause holds good, this is not the case with that of the commencing clause, as even where no mention was made about watching the ox brought in, the owner of the premises would still not be liable for any damage done to it. There may, however, be a difference where it gored an ox of the owner of the premises if Rabbi followed the view of R. Tarfon as will be explained in the text.
28. V. supra p. 125.
29. Where the ox brought in gored an ox of the owner of the premises.
30. V. p. 276, n. 6.
31. Supra. p. 58.
32. Ex. XXI, 22