Babylonian Talmud: Tractate Baba Kamma

Folio 62a

These statements apply only to the case where he kindled the fire on his own [premises] whence it travelled and consumed [the stack standing] in the premises of his neighbour; but where he kindled the fire in the premises of his neighbour, all agree¹  that he would have to pay for all that was kept there.²  R. Judah, however, agreed with the Sages that in the case where a man granted his neighbour the loan of a particular place [in his field] for the purpose of piling up a stack, if [the borrower of the place] piled up stacks and hid [some valuable articles there]³  no payment would have to be made except for the value of the stack alone.⁴  [So also where permission was granted] for the purpose of piling up stacks of wheat, and he piled up stacks of barley, or [permission was given for] barley and he piled up wheat, or even where he piled up wheat [for which the permission was granted], but covered it with barley, or again where he piled up barley but covered it with wheat; [in these cases] no payment would be made except for the value of the barley alone.⁵

Raba said: If a man gives a gold denar to a woman and says to her, 'Be careful with it, as it is a silver coin', if she damaged it she would have to pay for a gold denar because he could [rightly] plead against her: 'What business had you to damage it?' But if she was [merely] careless with it,⁶  she would have to pay only for a silver denar, as she could [rightly] plead against him: 'It was only silver that I undertook to take care of, but I never undertook to take care of gold.' Said R. Mordecai to R. Ashi: 'Do you state this in the name of Raba? We derive it quite definitely from the Baraitha [which states]: [If a man piled up] wheat [for which the permission was granted], but covered it with barley, or again [if he piled up] barley but covered it up with wheat, no payment would be made except for the value of the barley alone. Now, does this not prove that he is entitled to plead against the plaintiff: 'It was only barley that I undertook to take care of?' Here too she is surely entitled to plead against the depositor, 'I never undertook to take care of gold.'

Rab said: I have heard a new point with reference to the view of R. Judah [in the Mishnah here], but do not know what it is. Said Samuel to him: Does Abba⁷  really not know what he heard with reference to R. Judah who imposes liability for damage done to Tamun in the case of Fire? It is that the judges must make the ordinance enacted for the benefit of a robbed person⁸  extend also to the case of Fire.

Amemar raised the question: Would they similarly make the ordinance enacted for the benefit of a robbed person extend also to the case of an informer or not? According to the view⁹  that we should not give judgment [against the defendant] in cases where the damage was [not actually done but] merely caused [by him],¹⁰  there could be no question that also against informers we should not give judgment. But the question could still be raised according to the view that we should give judgment [against the defendant even] in cases where the damage was [not actually done but effectively and directly] caused by him.¹⁰  Would the judges make the ordinance enacted for the benefit of a robbed person extend also to the case of an informer so that the plaintiff would by taking an oath [as to the exact amount of his loss] be paid accordingly, or should this perhaps not be so? — Let this remain undecided.

A certain man kicked another's money-box into the river. The owner came [into Court] and said: 'So much and so much did I have in it.' R. Ashi was sitting and pondering on it: What should be the law in such a case? — Rabina said to R. Aha the son of Raba, or, as others report, R. Aha the son of Raba said to R. Ashi: Is this not exactly what was stated in the Mishnah? For we learnt: 'THE SAGES AGREE WITH R. JUDAH IN THE CASE OF ONE WHO SET FIRE TO A CASTLE, THAT PAYMENT SHOULD BE FOR ALL THAT WAS KEPT THEREIN, AS IT IS SURELY THE CUSTOM OF MEN TO KEEP [VALUABLES] IN [THEIR] HOMES. [Is this not equivalent to the case in hand?]¹¹  — He, however, said to him: If he would have pleaded that he had money there, it would indeed have been the same.¹¹  But we are dealing with a case where he pleads that he had jewels there. What should then be the legal position? Do people keep jewels in a money-box or not? — Let this remain undecided.

R. Yemar said to R. Ashi: If he pleads that he had silver cups in the castle [which was burnt], what would be the law? — He answered him: We consider whether he was a wealthy man who was [likely] to have silver cups, or whether he was a trustworthy man with whom people would deposit such things. [If he is,] he would be allowed to swear and be reimbursed accordingly, but if not, he would not be believed [in his allegations without corroborative evidence].

R. Adda the son of R. Iwya said to R. Ashi: What is the [practical] difference between gazlan¹²  and hamsan?¹³  — He replied: A hamsan [one who expropriates forcibly] offers payment [for what he takes], whereas a gazlan does not make payment. The other rejoined: If he is prepared to make payment, how can you call him hamsan? Did R. Huna not say¹⁴  that [even] where the vendor was [threatened to be] hanged [unless he would agree] to sell, the sale would be a valid sale?¹⁵  — This, however, is no contradiction, as in that case, the vendor did [finally]¹⁶  say 'I agree', whereas here [in the case of hamsan] he never said 'I agree'.¹⁷

1. [Tosaf. omits 'all agree that', and take this passage as a continuation of the words of the Sages.]
2. According to Raba this refers only to utensils which are usually kept in stacks.
3. And it so happened that they were all burned down by a fire kindled by the owner of the field.
4. As the owner of the field knew only of the stacks.
5. As where permission was granted for barley the owner of the field could not have expected that wheat would be piled up. Even where permission was given for wheat, if the stacks were covered with barley, the owner of the field can plead that he only noticed barley.
6. And the liability upon her is only because of her undertaking to keep it as an unpaid bailee.
7. Which was the personal name of Rab.
8. That where the amount of the loss cannot be established by proper evidence the plaintiff is entitled to take an oath as to the loss he sustained; v. Shebu. VII, 1.
9. Infra 117b.
10. Such as, e.g., in the case of informers.
11. For just as it is the custom of men to keep valuables in their homes, it is surely the custom of men to keep money in money boxes.
12. I.e. robber.
13. I.e., violent person.
14. B.B. 47b.
15. For since he took the money the sale could not be called forced.
16. After the pressure brought to bear upon him.
17. The sale could therefore not become valid.

MISHNAH. IF A SPARK ESCAPES FROM UNDERNEATH A HAMMER AND DOES DAMAGE, THERE WOULD BE LIABILITY. IF WHILE A CAMEL LADEN WITH FLAX WAS PASSING THROUGH A PUBLIC THOROUGHFARE THE FLAX GOT INTO A SHOP AND CAUGHT FIRE BY COMING IN CONTACT WITH THE SHOPKEEPER'S CANDLE, AND SET ALIGHT THE WHOLE BUILDING, THE OWNER OF THE CAMEL WOULD BE LIABLE.¹  IF, HOWEVER, THE SHOPKEEPER LEFT HIS CANDLE OUTSIDE [HIS SHOP], HE WOULD BE LIABLE.²  R. JUDAH SAYS: IF IT WAS A CHANUKAH³  CANDLE THE SHOPKEEPER WOULD NOT BE LIABLE.⁴

GEMARA. Rabina said in the name of Raba: From the statement of R. Judah we can learn that it is ordained to place the Chanukah candle within ten handbreadths [from the ground]. For if you assume [that it can be placed even] above ten handbreadths, why did R. Judah say that in the case of a Chanukah candle there would be exemption? Why should the plaintiff not plead against him: 'You should have placed it above the reach of the camel and its rider?' Does this therefore not prove that it is ordained to place it within the [first] ten handbreadths? — It can, however, be argued that this is not so. For it could still be said that it might be placed even above the height of ten handbreadths, and as for your argument 'You ought to have placed it above the reach of the camel and its rider', [it might be answered that] since he was occupied with the performance of a religious act, the Rabbis could not [rightly] make it so troublesome to him.⁵  R. Kahana said that R. Nathan b. Minyomi expounded in the name of R. Tanhum:⁶  'If the Chanukah candle is placed above [the height of] twenty cubits it is disqualified [for the purpose of the religious performance],⁷  like a sukkah⁸  and an alley-entry.⁹

CHAPTER VII

MISHNAH. THERE IS MORE FREQUENTLY OCCASION FOR THE MEASURE OF DOUBLE PAYMENT¹⁰  [TO BE APPLIED] THAN THE MEASURE OF FOUR-FOLD OR FIVE-FOLD PAYMENTS,¹¹  SINCE THE MEASURE OF DOUBLE PAYMENT APPLIES BOTH TO A THING POSSESSING THE BREATH OF LIFE AND A THING WHICH DOES NOT POSSESS THE BREATH OF LIFE, WHEREAS THE MEASURE OF FOUR-FOLD AND FIVE-FOLD PAYMENTS¹¹  HAS NO APPLICATION EXCEPT FOR AN OX AND A SHEEP [RESPECTIVELY] ALONE, AS IT SAYS 'IF A MAN STEAL AN OX OR A SHEEP AND KILL IT OR SELL IT, HE SHALL PAY FIVE OXEN FOR AN OX AND FOUR SHEEP FOR A SHEEP.'¹²  ONE WHO STEALS [ARTICLES ALREADY STOLEN] IN THE HANDS OF A THIEF NEED NOT MAKE DOUBLE PAYMENT,¹³  AS ALSO HE WHO SLAUGHTERS OR SELLS [THE ANIMAL] WHILE IN THE POSSESSION OF [ANOTHER] THIEF HAS NOT TO MAKE FOURFOLD OR FIVE-FOLD PAYMENT.

GEMARA. That the measure of double payment applies both in the case of a thief and in the case of [an unpaid bailee falsely] alleging a theft,¹⁴  whereas the measure of four-fold or five-fold payments has no application except in the case of a thief alone — [this, be it noted], is not taught here. This [omission] supports the view of R. Hiyya b. Abba, for R. Hiyya b. Abba stated that R. Johanan said: He who falsely alleges a theft [to account for the absence] of a deposit [entrusted to him], may have to make double payment;¹⁴  so also if he slaughtered or sold it he may have to make four-fold or five-fold payment.¹⁵  Some read as follows: Shall we say that this [omission] supports the view of R. Hiyya b. Abba who said in the name of R. Johanan: He who falsely alleges a theft [to account for the absence] of a deposit [entrusted to him] may have to make double payment; so also if he slaughtered or sold it, he may have to make four-fold or five-fold payment'? — But does your text say, 'There is no difference between [this¹⁶  and that¹⁷  except …]'? What it says is, THERE IS MORE FREQUENT OCCASION. — While some points were stated in the text others were omitted.¹⁸

AS THE MEASURE OF DOUBLE PAYMENT APPLIES BOTH TO A THING POSSESSING THE BREATH OF LIFE AND TO A THING WHICH DOES NOT POSSESS THE BREATH OF LIFE etc. Whence is this derived? As our Rabbis taught: For every matter of trespass¹⁹  is a generalisation; whether it be for ox, for ass, for sheep, for raiment, is a specification; or for any manner of lost thing generalises again. We have thus here a generalisation preceding a specification which is in its turn followed by another generalisation,²⁰  and in such cases we include only that which is similar to the specification. Just as the specification here mentions an object which is movable and which has an intrinsic value, there should therefore be included any object which is movable and which has an intrinsic value. Real estate is thus excluded,²¹  not being movable; slaves are similarly excluded as they are on the same footing [in the eye of the law] with real estate;²²  bills are similarly excluded, as though they are movable, they have no intrinsic value; sacred property is also excluded as the text speaks of 'his neighbour'. But since the specification mentions a living thing whose carcass would cause defilement whether by touching or by carrying,²³  [why not say] there should be included any living thing whose carcass similarly causes defilement whether by touching or by carrying²⁴  so that birds would not be included?²⁵  — How can you seriously say this? Is not raiment²⁶  mentioned here? It may, however, be said that it is only regarding objects possessing life that we have argued.²⁷  Why then not say in the case of objects possessing life that it is only a thing whose carcass causes defilement by touching and carrying that is included, whereas a thing whose carcass does not cause defilement by touching and carrying should not be included,

1. V. supra 22a.
2. As he is to blame for placing his candle outside his shop.
3. Feast of Dedication.
4. As he was entitled to place the Chanukah candle outside.
5. As to make him place his Chanukah candle on a higher level.
6. V. Shab. 21a.
7. As when placed at such a high level it will not be noticed by passersby and publicity will not be given to the miracle.
8. V. Glos. Cf. Suk. I, 1.
9. V. 'Er, I, 1. An alley where a post or a stake would be required to be placed at the entrance for the purpose of enabling the inmates of that area to carry their domestic objects on the Sabbath day.
10. For theft, in accordance with Ex. XXII, 3.
11. For the slaughtering (or selling) of a sheep or ox respectively; cf. ibid. XXI, 37.
12. Ibid.
13. Since the article had in any case already passed out of the possession of the true owner.
14. In accordance with Ex. XXII, 8.
15. Infra p. 369.
16. The measure of double payment.
17. The measure of four-fold or five-fold payment.
18. The omission of a particular point should therefore not be taken as a proof.
19. Ex. XXII, 8.
20. V. supra 54a.
21. From the law of double payment.
22. For which cf. Lev. XXV, 46.
23. Lev. XI 39-40.
24. Ibid. 26-28.
25. As these do not cause defilement either by touching or by carrying.
26. Which is not a living object at all.
27. That they should be such that their carcasses would cause defilement whether by touching or by carrying.