Babylonian Talmud: Tractate Baba Kamma

Folio 91a

[so also all other instruments should be able to be submitted to the consideration of the assembly of the judges and the witnesses], which shows that the inspection¹  [of the instrument] by the Court of Law is essential [before any liability can be imposed]; and in this case where the sentence has already been passed on the ox to be stoned²  it would not be possible to keep the ox for inspection¹  by the Court of Law, as we could not delay³  the execution of the judgment. I said to them: 'You may even say that the teaching follows the view of R. Akiba, for we may have been dealing here with a case where the defendant ran away.'⁴  But if the defendant ran away even in the case where the capital matter has not yet been adjudicated, how would it be possible to deal with the pecuniary matter in the absence of the defendant? — It was only after the evidence of the witnesses had already been accepted that he ran away.⁵  Be that as it may, whence could the payment come⁶  [since the defendant ran away]?⁷  — Out of the hire obtained from ploughing [done by the ox]. But if so, why also in the case of Tam, should the pecuniary matter not be adjudicated first and the payment made out of the hire obtained from ploughing, and then adjudicate the capital matter? — Said R. Mari the son of R. Kahana: This indeed proves that the hire obtained from ploughing forms a part of the general estate of the owner.⁸

The question was raised: Is an inspection [of the instrument] essential also in the case of mere damage, or is no inspection necessary in the case of mere damage? Shall we say that it is only regarding murder⁹  that we have to inspect the instrument, as by means of one instrument life could be taken, while by means of another life could not be taken, whereas regarding mere damage any instrument would be sufficient, or is there perhaps no difference? — Come and hear: 'Just as Pit can cause death because it is usually ten handbreadths [deep], so also [other similar nuisances] should be such as can cause death, [i.e.,] ten handbreadths [deep]. If, however, they were less than ten handbreadths [deep] and an ox or an ass fell into them and died there would be exemption, but if only injured by them there would be liability.'¹⁰  Is not the Tanna here reckoning upwards — so that what he says is that a pit of a depth of from one handbreadth to ten handbreadths could not cause death though it could cause damage, implying that a pit of any depth would involve liability in the case of mere damage and thus indicating that no inspection is necessary regarding mere damage? — No, he reckoned downwards, and thus meant to say that only a pit of ten handbreadths could cause death whereas a Pit a little less than ten handbreadths could cause¹¹  only damage and not death, so that it may therefore still be argued that inspection might be essential even regarding mere damage and that in each case it may be necessary that the instrument be such as would be fit to cause the particular damage done.

Come and hear: If [the master] struck his slave on the eye and blinded him, or on his ear and deafened him, the slave would on account of that go out free,¹²  but if he struck on an object which was opposite the slave's eye through which he lost his sight or on an object which was opposite his ear through which he lost his hearing, the slave would [on account of this] not go out free.¹³  Is not the reason of this that consideration of the instrument is required [before any liability can be imposed],¹⁴  which proves that the inspection of the instrument is essential also in the case of mere damage? — No; the reason is because we say that it was the slave who frightened himself, as taught: If a man frightens another he is exempt according to the judgments of Man but liable according to the judgments of Heaven; thus if he blew into his ear and deafened him he would be exempt, but if he actually took hold of his ear and blew into it and thus deafened him he would be liable.¹⁵

Come and hear: Regarding the Five Items,¹⁶  an estimation will be made and the payment made straight away, though Healing and Loss of Time will have to be estimated for the whole period until he completely recovers. If after the estimation was made his health continued to deteriorate, the payment will not be more than in accordance with the previous estimation. So also if after the estimation was made he recovered rapidly, payment will be made of the whole sum estimated. Does this not show that estimation is essential also in the case of mere damage? — That an estimate has to be made of the length of the illness likely to result from the wound¹⁷  has never been questioned by us, for it is certain that we would have to make such an estimation; the point which was doubtful to us was whether we estimate if the instrument was one likely to do that damage or not. What is indeed the law? — Come and hear: Simeon the Temanite said¹⁸  that just as a fist is a definite object that can be submitted to the consideration of the assembly of the judges and the witnesses, so also all other instruments should be able to be submitted to the consideration of the assembly of the judges and the witnesses. Does this not show that the inspection of the instrument is essential even in the case of mere damage? — It does indeed.

The Master stated: 'So also if after the estimation was made he recovered rapidly payment will be made of the whole sum estimated.' This appears to support the view of Raba. For Raba said: An injured person whose illness was estimated to last the whole day but who, as it happened recovered in the middle of the day and performed his usual work, would still be paid for the whole day, as the unexpected recovery was an act of mercy especially bestowed upon him from Heaven.

IF HE SPAT SO THAT THE SPITTLE REACHED HIM … HE HAS TO PAY FOUR HUNDRED ZUZ. R. Papa said: This Mishnaic ruling applies only where it reached him [his person], but if it reached only his garment this would not be so. But why should this not be equivalent to an insult in words? — It was stated in the West¹⁹  in the name of R. Jose b. Abin that this could indeed prove that where the insult was merely in words, there would be exemption from any liability whatsoever.

ALL DEPENDS UPON THE DIGNITY … The question was raised: Did the first Tanna mean by this to mitigate or to aggravate the penalty? Did he mean to mitigate the penalty, so that a poor man would not have to be paid so much, or did he perhaps mean to aggravate the penalty, so that a rich man would have to be paid more? — Come and hear: Since R. Akiba²⁰  stated THAT EVEN THE POOR IN ISRAEL HAVE TO BE CONSIDERED AS IF THEY ARE FREEMEN WHO HAVE BEEN REDUCED IN CIRCUMSTANCES, FOR IN FACT THEY ALL ARE THE DESCENDANTS OF ABRAHAM, ISAAC AND JACOB, does this not show that the first Tanna meant to mitigate the penalty?²¹  — It does indeed.

IT ONCE HAPPENED THAT A CERTAIN PERSON UNCOVERED THE HEAD OF A WOMAN [IN THE MARKET PLACE … FIXED A TIME FOR HIM]. But is time allowed²²  [in such a case]? Did R. Hanina not say that no time is granted in cases of injury? — No time is granted in the case of injury where there is an actual loss of money,²³  but in the case of Degradation, where there is no actual loss of money, time²²  to pay may be granted.

HE WATCHED UNTIL HE SAW HER STANDING OUTSIDE THE DOOR OF HER COURTYARD [… FOR IF ONE INJURES ONESELF, THOUGH IT IS FORBIDDEN TO DO SO …] But was it not taught: R. Akiba said to him, 'You have dived into the depths and have brought up a potsherd in your hand,²⁴  for a man may injure himself'? — Raba said: There is no difficulty, as the Mishnaic statement deals with actual injury, whereas the other text referred to Degradation. But surely the Mishnah deals with Degradation,

1. Lit., 'estimation'.
2. Lit., 'to be killed'.
3. V. Sanh. (Sonc. ed.) p. 222, and notes.
4. So that in his absence we cannot adjudicate the matter.
5. In which case though judgment could be passed regarding the pecuniary liability it is of no use to do so as the defendant when running away took all available funds with him.
6. Even in the case where the capital matter has not yet been adjudicated.
7. With all his available funds.
8. And could thus not become subject to be paid for damages in the case of Tam, where payment could only be made out of its own body; cf. supra p. 73. [The plaintiff, however, could not take the ox itself in payment as it is to be stoned. V. Tosaf.]
9. Cf. Num. XXXV, 17, 18 and 23.
10. V. supra 50b.
11. I.e., is fit to cause.
12. Cf. Ex. XXI, 26-27.
13. Kid. 24b; infra 88a.
14. And the act of the master in the second case is not considered a cause adequate to effect such a result.
15. Kid. ibid, and cf. supra 56a.
16. Enumerated Mishnah supra p. 473,
17. Lit. 'how long he is likely to suffer … and how long he will not.'
18. Supra pp. 522-3
19. [This usually represents R. Jeremiah.] Cf. Sanh. 17b.
20. [And yet R. Akiba does not impose more than four hundred zuz, the same amount as mentioned by the first Tanna.]
21. [The figure 400 mentioned by him being a maximum whereas R. Akiba would award this amount to all alike.]
22. For the execution of a judgment.
23. Sustained by the plaintiff.
24. I.e., you have gone to a great amount of trouble which could however be of no practical avail.

and it nevertheless says: If one injures oneself, though it is forbidden to do so, he is exempt? — It was this which he¹  said to him: 'There could be no question regarding Degradation, as a man may put himself to shame, but even in the case of injury where a man may not injure himself, if others injured him they would be liable.' But may a man not injure himself? Was it not taught: You might perhaps think that if a man takes an oath to do harm to himself and did not do so he should be exempt. It is therefore stated: 'To do evil or to do good,'²  [implying that] just as to do good is permitted, so also to do evil [to oneself] is permitted; I have accordingly to apply [the same law in] the case where a man had sworn to do harm to himself and did not do harm?³  — Samuel said: The oath referred to was to keep a fast.⁴  It would accordingly follow that regarding doing harm to others⁵  it would similarly mean to make them keep a fast. But how can one make others keep a fast? — By keeping them locked up in a room. But was it not taught: What is meant by doing harm to others? [If one says], I will smite a certain person and will split his skull?³  — It must therefore be said that Tannaim differed on this point, for there is one view maintaining that a man may not injure himself and there is another maintaining that a man may injure himself. But who is the Tanna maintaining that a man may not injure himself? It could hardly be said that he was the Tanna of the teaching, And surely your blood of your lives will I require,⁶  [upon which] R. Eleazar remarked [that] it meant I will require your blood if shed by the hands of yourselves,⁷  for murder is perhaps different. He might therefore be the Tanna of the following teaching: 'Garments may be rent for a dead person⁸  as this is not necessarily done to imitate the ways of the Amorites. But R. Eleazar said: I heard that he who rends [his garments] too much for a dead person transgresses the command,⁹  'Thou shalt not destroy',¹⁰  and it seems that this should be the more so in the case of injuring his own body. But garments might perhaps be different, as the loss is irretrievable, for R. Johanan used to call garments 'my honourers',¹¹  and R. Hisda whenever he had to walk between thorns and thistles used to lift up his garments Saying that whereas for the body [if injured] nature will produce a healing, for garments [if torn] nature could bring up no cure.¹²  He must therefore be the Tanna of the following teaching: R. Eleazar Hakkapar Berabbi¹³  said: What is the point of the words: 'And make an atonement for him, for that he sinned regarding the soul.'¹⁴  Regarding what soul did this [Nazarite] sin unless by having deprived himself of wine? Now can we not base on this an argument a fortiori: If a Nazarite who deprived himself only of wine is already called a sinner, how much the more so one who deprives oneself of all matters?'¹⁵

HE WHO CUTS DOWN HIS OWN PLANTS … Rabbah b. Bar Hanah recited in the presence of Rab: [Where a plaintiff pleads] 'You killed my ox, you cut my plants, [pay compensation', and the defendant responds:] 'You told me to kill it, you told me to cut it down', he would be exempt. He [Rab] said to him. If so you almost make it impossible for anyone to live, for how can you trust him? — He therefore said to him: Has this teaching to be deleted? — He replied: No; your teaching could hold good in the case where the ox was marked for slaughter¹⁶  and so also the tree had to be cut down.¹⁷  If so what plea has he against him? — He says to him: I wanted to perform the precept myself in the way taught: 'He shall pour out … and cover it',¹⁸  implying that he who poured out¹⁹  has to cover it; but it once happened that a certain person performed the slaughter and another anticipated him and covered [the blood], and R. Gamaliel condemned the latter to pay ten gold coins.²⁰

Rab said: A palm tree producing even one kab of fruit may not be cut down. An objection was raised [from the following]: What quantity should be on an olive tree so that it should not be permitted to cut it down? A quarter of a kab.²¹  — Olives are different as they are more important. R. Hanina said: Shibhath²²  my son did not pass away except for having cut down a fig tree before its time. Rabina, however, said: If its value [for other purposes] exceeds that for fruit, it is permitted [to cut it down]. It was also taught to the same effect: 'Only the trees of which thou knowest'²³  implies even fruit-bearing trees;²⁴  That they be not trees for meat, means a wild tree. But since we ultimately include all things, why then was it stated, That they are not trees for food? To give priority²⁵  to a wild tree over one bearing edible fruits.

1. I.e., R. Akiba.
2. Lev. V, 4.
3. Shebu. 27a.
4. But in other ways a man may not injure himself.
5. Dealt with in Shebu 27a.
6. Gen. IX, 5.
7. I.e., for committing suicide.
8. Cf. II Sam. I, 11, and II Kings II, 12. Cf. also Sanh. 52b.
9. According to the text, 'Will be lashed on account of transgressing' which could however hardly be substantiated; Cf. Tosaf. a.l.
10. Deut. XX, 19.
11. Sanh. 94a.
12. Cf. Taan. 23a.
13. A title of some scholars who belonged to the school of R. Judah the prince.
14. Num. VI, 11; E.V.: for that he sinned by the dead.
15. R. Eleazar Hakkapar is thus the Tanna forbidding self-injury.
16. Such as where it killed a human being; cf. Ex. XXI, 28.
17. Such as where it constituted a danger to the public or where it was planted for idolatrous purposes; cf. Deut. XII, 3.
18. Lev. XVII, 13.
19. I.e., he who acted as slaughterer.
20. Hul. 87a.
21. Sheb. IV, 10. [Why then should the palm tree require a bigger quantity?]
22. B.B. 26a. There he is called 'Shikhath'.
23. Deut. XX, 20.
24. [That is where it is known that they no longer produce any fruits, v. Malbim, a.l.]
25. To be cut down.