Babylonian Talmud: Tractate Baba Kamma

Folio 58a

Rab took a particularly strong instance.¹  There can be no doubt that where the benefit was derived from the animal having consumed the fruits payment would have to be made to the extent of the benefit. Regarding, however, [the benefit derived by the animal from the lessening of] the impact, it might have been thought that the fruits served only the purpose of 'preventing a lion from [damaging] a neighbour's property',²  so that no payment should be made even to the extent of the benefit. It is therefore indicated to us [here that even this benefit has to be paid for]. But why not say that this is so?³  — [No payment it is true could be claimed] in the case of preventing a lion from [damaging] a neighbour's property as [the act of driving the lion away] is voluntary, but in this case the act was not voluntary.⁴  Or again, in the case of preventing the lion from [damaging] a neighbour's property, no expenses were incurred [by the act of driving away the lion], but in this case here there was [pecuniary] loss attached to it.

[How did the animal fall]?⁵  — R. Kahana said: It slipped in its own water. Raba, however, said: [The rule would hold good even] where another animal pushed it down. The one who explains the ruling to apply where another animal pushed it down, would certainly apply it where it slipped in its own water.⁶  But the one who explains the ruling to apply where it slipped in its own water [might maintain that] where another animal pushed it down there was negligence, and the payment should be for the amount of damage done by it, as the plaintiff would be entitled to say, 'You should have made them go past one by one.'

R. Kahana said: The Mishnaic ruling applies only to the bed [into which it fell].⁷  If, however, it went from one bed to another bed, the payment⁸  would be for the amount of damage done by it. R. Johanan, however, said that even where it went from one bed to another bed and did so even all day long, [the payment would be made only to the extent of the benefit], unless it left the garden and returned there again with the knowledge [of the owner]. R. Papa thereupon said: Do not imagine this to mean 'unless it left the garden to the knowledge of the owner and returned there again with the knowledge of the owner', for as soon as it left the garden to the knowledge of the owner, even though it returned again without his knowledge [there would already be liability],⁹  the reason being that the plaintiff might [rightly] say: Since it had once become known [to it where it can find fruit, you should have realised that] whenever it broke loose it would run to that place.

IF IT WENT DOWN THERE IN THE USUAL WAY AND DID DAMAGE, THE PAYMENT WOULD HAVE TO BE FOR THE AMOUNT OF DAMAGE DONE BY IT. R. Jeremiah raised the question: Where it had gone down there in the usual way but did damage by water resulting from giving birth,¹⁰  what would be the legal position? If we accept the view that where there is negligence at the beginning but [damage actually results] in the end from sheer accident there is liability,¹¹  no question arises.¹²  Where we have to ask is if we accept the view¹¹  that where there is negligence at the beginning, but [damage actually results] in the end from sheer accident there is exemption. What [in that case is the law]? Should we say that this is a case where there was negligence at first but the final result was due to accident, and therefore there should be exemption, or should we say [on the contrary that] this case is one of negligence throughout, for since the owner could see that the animal was approaching the time to give birth, he should have watched

1. Lit., 'he says there can be no question'.
2. For which no payment could be demanded, this being merely an act of goodwill and kindness, v. B.B. 52a.
3. That he is 'preventing a lion' etc.
4. The owner of the fruit should thus be entitled to compensation.
5. That it should be considered a mere accident and the payment should only be to the extent of the benefit.
6. As this is certainly a matter of accident.
7. Regarding which the whole act is considered an accident.
8. For the beds except the first one.
9. To the full extent of the damage.
10. Which was apparently an accident.
11. V. Supra 21b.
12. That there will be liability in this case too.

it and indeed taken more care of it? — Let this remain undecided.

HOW IS PAYMENT MADE FOR THE AMOUNT OF DAMAGE DONE BY IT? BY COMPARING THE VALUE OF AN AREA IN THE FIELD REQUIRING ONE SE'AH OF SEED AS IT WAS [PREVIOUSLY] WITH WHAT ITS WORTH IS [NOW] etc. Whence is this derived? — R. Mattena said: Scripture says, And shall feed in another man's field¹  to teach that the valuation should be made in conjunction with another field. But was this [verse] and shall feed in another man's field not required to exclude public ground [from being subject to this law]? — If so,²  Scripture would have said 'and shall feed in a neighbour's field' or ['and shall consume] another man's field.' Why then is it said in another [man's] field [unless to teach that] the valuation should be made in conjunction with another field? Let us say then that the whole import [of this verse] was to convey only this ruling, there being thus no authority to exclude public ground? — If so,³  Scripture would have inserted this clause in the section dealing with payment, e.g., 'of the best of his own field and of the best of his own vineyard shall he make restitution [as valued] in conjunction with another field.' Why then did Scripture put it in juxtaposition with and shall feed unless to indicate that the two [rulings] are to be derived from it.⁴

How is the valuation⁵  arrived at? — R. Jose b. Hanina said: [The value of] an area requiring one se'ah of seed [is determined] in proportion to the value of an area requiring sixty se'ahs of seed. R. Jannai said: [The value of] an area requiring one tarkab⁶  of seed [is determined] in proportion to the value of an area requiring sixty tarkabs of seed. Hezekiah said: [The value of] each stalk [consumed is determined] in proportion to the value of sixty such stalks.⁷  An objection was raised [from the following:] If it consumed one kab in two kabs [of grain], it would not be right to ask payment for their full value,⁸  but the amount consumed would have to be considered as if forming a little bed which would thus be estimated. Now, does this not mean that the bed will be valued by itself?⁹  — No; in [the proportion of one to] sixty.¹⁰

Our Rabbis taught: The valuation is made neither of a kab by itself, as this would be an advantage to him,¹¹  nor of an area required for a kor¹²  of seed, as this would be a disadvantage to him.¹¹  What does this mean? — R. Papa said: What is meant is this: Neither is a kab [of grain consumed] valued in conjunction with sixty kabs, as the defendant would thereby have too great an advantage,¹³  nor is a kor valued in conjunction with sixty kors, as this would mean too great a disadvantage for the defendant.¹⁴  R. Huna b. Manoah demurred to this, saying: Why then does it say, 'nor of an area required for a kor of seed'? [According to your interpretation] should it not have been 'nor a kor'?¹⁵  — R. Huna b. Manoah therefore said in the name of R. Aha the son of R. Ika: What is meant is this: The valuation is made neither of a kab by itself, as this would be too great an advantage to the plaintiff, nor of a kab in conjunction with an area required for a kor of seed, as this would be too great a disadvantage for the plaintiff. It must therefore be made only in conjunction with sixty [times as much].

A certain person cut down a date-tree belonging to a neighbour. When he appeared before the Exilarch, the latter said to him: 'I myself saw the place; three date-trees stood close together¹⁶  and they were worth one hundred zuz. Go therefore and pay the other party thirty-three and a third [zuz].' Said the defendant: 'What have I to do with an Exilarch who judges in accordance with Persian Law?' He therefore appeared before R. Nahman, who said to him [that the valuation should be made] in conjunction with sixty [times as much]. Said Raba to him:¹⁷  If the Sages ordained this valuation in the case of chattels doing damage, would they do the same in the case of damage done by Man with his body? — Abaye, however, said to Raba: In regard to damage done by Man with his body, what is your opinion [if not] that which was taught: 'If a man prunes [the berries from] a neighbour's vineyard while still in the budding stage, it has to be ascertained how much it was worth previously and how much it is worth afterwards', but nothing is said of valuation in conjunction with sixty [times as much]? But has it not been taught similarly with respect to [damage done by] Cattle? For it was taught: If [a beast] breaks off a plant, R. Jose says that the Legislators of [public enactments¹⁸  in Jerusalem stated that if the plant was of the first year, two silver pieces¹⁹  [should be paid] but if it was in its second year, four silver pieces [should be paid]. If it consumed young blades of grain, R. Jose the Galilean says that it has to be considered in the light of the future value of that which was left in the field. The Sages, however, say that it has to be ascertained how much it [the field] was worth [previously] and how much it is worth [now].

1. Ex. XXII, 4.
2. I.e., were it intended only for that.
3. V. p. 337, n. 7.
4. I.e. that public ground be excluded and that the valuation be made in conjunction with another field.
5. Of an area requiring one se'ah of seed.
6. I.e. half a se'ah, amounting thus to three kabs, though originally it meant two kabs.
7. The principle underlying this difference of opinion is made clear in the Baraitha that follows.
8. Cf. supra p. 123.
9. And not in proportion to the value of a bigger area. This refutes the views of all the cited authorities.
10. [I.e., either 'se'ahs', 'tarkabs' or 'stalks' as the case may be.]
11. V. the discussion infra.
12. I.e., thirty se'ahs; cf. Glos.
13. As the payment would be very small owing to the fact that the deficiency of one kab in an area required for sixty kabs of seed would hardly be noticed, and so would reduce the general price very little.
14. For the deficiency of one kor, in an area required for sixty times as much, is conspicuous, and reduces the general price too much. The valutation of a se'ah will therefore be made in proportion to sixty se'ahs.
15. Should be valued in this way.
16. Lit., 'in one nest', or 'place'.
17. R. Nahman.
18. [H] Admon and Hanan b. Abishalom, identical with the 'Judges of Civil Law' [H] mentioned in Keth. XIII, 1 (Rashi). Little is known of their functions and power to enable us to explain their designation (Buchler, Das Synedrion, p. 113); cf. also Geiger, Urschrift, p. 119.]
19. I.e., two ma'ahs which were a third of a denar; cf. Glos.