Babylonian Talmud: Tractate Baba Kamma

Folio 7a

who can collect nothing better than the medium quality.¹  If, however, you hold that R. Akiba authorises the payment of all loans out of the best, [the treasurer of the Temple could still hardly avail himself of this privilege as] the analogy between these two kinds of liability could be upset as follows: A private creditor is at an advantage in that for damages he will surely be paid out of the best, but is not the Temple Treasury at a very great disadvantage in this respect?²  — It may still be maintained that it applies to the case where a private ox gored a consecrated ox, and in answer to the difficulty raised by you — that the Divine Law definitely says The ox of one's neighbour, thus exempting for damage done to consecrated property — it may be suggested that R. Akiba shares the view of R. Simeon b. Menasya as taught:³  R. Simeon b. Menasya says: In the case of a consecrated ox goring a private one, there is total exemption; but for a private ox, whether Tam or Mu'ad, goring a consecrated ox, full damages must be paid.⁴  If this is R. Akiba's contention, whence could it be proved that the point at issue between R. Ishmael and R. Akiba is as to the best of the plaintiff's equalling the worst of the defendant's? Why not say that on this point they are both of opinion that the qualities are estimated in relation to the plaintiff's possessions,⁵  whereas the disagreement between them is on the point at issue between R. Simeon b. Menasya and the Rabbis [i.e., the majority against him], R. Akiba holding the view of R. Simeon b. Menasya, and R. Ishmael that of the Rabbis? — If so, what would be the purport of the first clause of R. Akiba, 'Scripture only intended that damages be collected out of the best'?⁶  Again, would not then even the last clause 'And this even more so applies to sacred property' be rather illogically phrased?⁷  Furthermore, R. Ashi said: It was explicitly taught: Of the best of his field and of the best of his vineyard shall he make restitution⁸  refers to the field of the plaintiff and to the vineyard of the plaintiff: this is the view of R. Ishmael. R. Akiba [on the other hand] says: The best of the defendant's field and the best of the defendant's vineyard.

Abaye pointed out to Raba the following contradiction: Scripture records, Out of the best of his field and out of the best of his vineyard shall he make restitution⁸  [thus indicating that payment must be made] only out of the best and not out of anything else; whereas it is taught: He should return,⁹  includes payment in kind,¹⁰  even with bran?¹¹  — There is no contradiction: the latter applies when the payment is made willingly, while the former refers to payments enforced [by law]. 'Ulla the son of R. Elai, thereupon said: This distinction is evident even from the Scriptural term, He shall make restitution,⁸  meaning, even against his will. Abaye, on the other hand, said to him: Is it written yeshullam¹²  ['Restitution shall be made']? What is written is yeshallem¹³  ['He shall make restitution'], which could mean of his own free will! — But said Abaye: [The contradiction can be solved] as the Master¹⁴  [did] in the case taught: An owner of houses, fields and vineyards¹⁵  who cannot find a purchaser [is considered needy and] may be given the tithe for the poor¹⁶  up to half the value of his estate.¹⁷  Now the Master discussed the circumstances under which this permission could apply: If property in general, and his included, dropped in value, why not grant him even the value of more [than the half of his estate's value], since the depreciation is general? If, on the other hand, property in general appreciated, but his, on account of his going about looking here and there for ready money, fell in price,

1. Git. V, 1.
2. On account of the absolute immunity, as stated, for damage done to Temple property.
3. Infra p. 212.
4. R. Akiba thus maintains that the Temple Treasury will, for any damage sustained, be reimbursed out of the best of the defendant's estate.
5. And where the plaintiff's best equals the defendant's worst, the latter will perhaps suffice according to all opinions.
6. Which indicates that the interpretation of the Scriptural verse (Ex. XXII, 4) is the point at issue.
7. As according to the view requiring full payment in all cases, the quality of the payment for damage done to sacred property may he higher than that paid for damage done to ordinary property, and in fact nothing less than the very best of the defendant's estate would suffice.
8. Ex. XXII, 4.
9. Ex. XXI, 34.
10. Otherwise the Scriptural text would be superfluous, as payment in specie is evident in an earlier clause.
11. Infra 9a.
12. [H]
13. [H]
14. Rabbah (Rashi).
15. The value of which amounted to 200 zuz.
16. Cf. Deut. XIV, 28-29; this tithe is distributed among those who possess less than two hundred zuz; Pe'ah VIII, 8.
17. I.e., 100 zuz to enable him to sell his property for half its value which, it is assumed, he can at any time realise.

why give him anything at all?¹  And the Master thereupon said: No; the above law is applicable to cases where in the month of Nisan²  property has a higher value, whereas in the month of Tishri³  it has a lower value. People in general wait until Nisan and then sell, whereas this particular proprietor, being in great need of ready money, finds himself compelled to sell in Tishri at the existing lower price; he is therefore granted half because it is in the nature of property to drop in value up to a half, but it is not in its nature to drop more than that. Now a similar case may also be made out with reference to payment for damage which must be out of the best. If the plaintiff, however, says: 'Give me medium quality but a larger quantity', the defendant is entitled to reply: 'It is only when you take the best quality which is due to you by law that you may calculate on the present price; failing that, whatever you take you will have to calculate according to the higher price anticipated.'⁴  But R. Aha b. Jacob demurred: If so, you have weakened the right of plaintiffs for damages in respect of inferior quality. When the Divine Law states out of the best,⁵  how can you maintain that inferior qualities are excluded?⁶  R — Aha b. Jacob therefore said: If any analogy could he drawn,⁷  it may be made in the case of a creditor. A creditor is paid by law out of medium quality; if, however, he says: 'Give me worse quality but greater quantity,' the debtor is entitled to say, 'It is only when you take that quality which is due to you by law that you may calculate on the present price, failing that, whatever you take you will have to calculate according to the higher price anticipated.' R. Aha, son of R. Ika, demurred: If so, you will close the door in the face of prospective borrowers. The creditor will rightly contend, 'Were my money with me I would get property according to the present low price; now that my money is with you, must I calculate according to the anticipated higher price?' — R. Aha, son of R. Ika, therefore said: If any analogy could be drawn,⁷  it is only with the case of a Kethubah⁸  [marriage settlement]⁹  which, according to the law, is collected out of the worst quality. But if the woman says to the husband: 'Give me better quality though smaller quantity,' he may rejoin: 'It is only when you take the quality assigned to you by law that you may calculate in accordance with the present low price; failing that, you must calculate in accordance with the anticipated higher price.,

But be it as it is, does the original difficulty¹⁰  still not hold good? — Said Raba: Whatever article is being tendered has to be given out of the best [of that object].¹¹  But is it not written: 'The best of his field'?¹²  — But when R. Papa and R. Huna the son of R. Joshua had arrived from the house of study¹³  they explained it thus: All kinds of articles are considered 'best', for if they were not to be sold here they would be sold in another town;¹⁴  it is only in the case of land which is excepted therefrom that the payment has to be made out of the best, so that intending purchasers jump at it.

R. Samuel b. Abba of Akronia¹⁵  asked of R. Abba: When the calculation¹⁶  is made, is it based on his own [the defendant's] property or upon that of the general public? This problem has no application to R. Ishmael's view that the calculation is based upon the quality of the plaintiff's property;¹⁷  it can apply only to R. Akiba's view¹⁷  which takes the defendant's property into account.¹⁸  What would, according to him, be the ruling? Does the Divine Law in saying, 'the best of his field' intend only to exclude the quality of the plaintiff's property from being taken into account, or does it intend to exclude even the quality of the property of the general public? — He [R. Abba] said to him:¹⁹  The Divine Law states, 'the best of his field' how then can you maintain that the calculation is based on the property of the general public?

He²⁰  raised an objection: [It is taught,] If the defendant's estate consists only of the best, creditors of all descriptions are paid out of the best; if it is of medium quality, they are all paid out of medium quality; if it is of the worst quality, they are all paid out of the worst quality. [It is only] when the defendant's possessions consist of both the best, the medium, and the worst [that] creditors for damages are paid out of the best, creditors for loans out of the medium and creditors for marriage contracts out of the worst. When [however] the estate consists only of the best and of the medium qualities, creditors for damages are paid out of the best while creditors for loans and for marriage contracts will be paid out of the medium quality. [Again] if the estate consists only of the medium and the worst qualities, creditors for either damages or loans are paid out of the medium quality whereas those for marriage contracts will be paid out of the worst quality.

1. Since, in reality, his property is worth 200 zuz.
2. It being the beginning of Spring and the best season for transactions in property, both for agricultural and building purposes.
3. I.e., about October, being the end of the season.
4. The scriptural verse, 'He shall return', introducing payment in kind, would thus authorise the calculation on the higher price anticipated whenever the plaintiff prefers a quality different from that assigned to him by law.
5. Ex. XXII, 4.
6. From the option of the plaintiff.
7. To the case made out by the Master regarding the Tithe of the Poor referred to above.
8. V. Glos.
9. Git. V, 1.
10. Raised by Abaye supra p. 24.
11. I.e., when bran is tendered it is the best of it which has to he given.
12. Confining it thus to land, for if otherwise why altogether insert 'of his field'?
13. [H] V. Sanh. (Sonc. ed p. 387, n. 7.
14. And could therefore be tendered.
15. [Or Hagronia, a town near Nehardea, v. Obermeyer, J. Die Landschaft Babylonian, p. 265.]
16. Of the best, medium and worst qualities, out of which to pay creditors for damages, loans and marriage-contracts respectively.
17. Cf. supra p. 22.
18. I.e., his estate is divided into three categories; best, medium and worst, out of which the payments will respectively be made.
19. I.e., to R. Samuel, the questioner.
20. I.e., R. Samuel.