Babylonian Talmud: Tractate Baba Kamma

Folio 98a

but if it was through the market supplies¹  that prices dropped, we would not have to deduct anything. Still,²  would the creditor not derive a benefit from the additional metal? — [We must] therefore [act] like R. Papa and R. Huna the son of R. Joshua who gave judgment in an action about coins, according to [the information³  of] an Arabian agoran,⁴  that the debtor should pay for ten old coins [only] eight new ones.⁵

Rabbah stated: He who throws a coin of another [even] into the ocean⁶  is exempt, the reason being that he can say to him, 'Here it lies before you, if you are anxious to have it take it.' This applies, however, only where [the water was] clear so that it could be seen, but if it was so muddy that the coin could not be seen this would not be so. Again, this holds good only where the throwing was merely indirectly caused by him,⁷  but if he took it in his hand he would surely have already become subject to the law of robbery⁸  and as such would have been liable to make [proper] restitution.⁸

Raba raised an objection [from the following:] 'Redemption [of the second tithe] cannot be made by means of money not in one's actual possession, such as if he had money in Castra or in the King's Mountain⁹  or if his purse fell into the ocean; no redemption could then be effected'.¹⁰  — Said Rabbah: The case [of redemption] of tithe is different, as it is required there that the money should be [to all intents and purposes] actually in your hand, for the Divine Law says, And bind up the money in thy hand,¹¹  which is lacking in this case.¹²

Rabbah further said: One who disfigures a coin belonging to another is exempt, the reason being that he did not do anything [to reduce the substance of the coin]. This of course applies only where he knocked on it with a hammer and so made it flat, but where he rubbed the stamp off with a file he certainly diminished its substance [and would thus be liable]. Raba raised an objection [from the following:] 'Where [the master] struck [the slave] upon the eye and blinded him or upon the ear and deafened him the slave would on account of that go out free,¹³  but [where he struck on an object which was] opposite the slave's eye and 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'!¹⁴  — Rabbah, however, follows his own reasoning, for Rabbah stated: He who makes his father deaf is subject to be executed,¹⁵  for it is impossible to cause deafness without first making a bruise through which a drop of blood falls into the ear.¹⁶

And Rabbah [further] stated: He who splits the ear of another's cow¹⁷  is exempt, the reason being that [so far as the value of] the cow [is concerned it] remains as it was before, for he did not do anything [to reduce it], since not all oxen are meant to be sacrificed upon the altar.¹⁸  Raba raised an objection [from the following]: If he did work with the water of Purification or with the Heifer of Purification he would be exempt according to the judgments of Man but liable according to the judgments of Heaven.¹⁹  Now surely this is so only where mere work was done with it,²⁰  in which case the damage [done to it] is not noticeable, whereas in the case of splitting where the damage is noticeable there would also be liability according to the judgments of Man?²¹  — It may, however, be said that the same law would apply in the case of splitting, where he would similarly be exempt [according to the judgments of Man], and that what we are told here is that even in the case of mere work where the damage is not noticeable there would still be liability according to the judgments of Heaven.

Rabbah further stated: If one destroyed by fire the bond of a creditor he would be exempt, because he can say to him, 'It was only a mere piece of paper of yours that I have burnt.'²²  Rami b. Hania demurred: What are the circumstances?

1. I.e., through the supply surpassing the demand.
2. [Even if the drop in the prices was due to the latter cause.]
3. [That ten old coins had the weight of eight new ones.]
4. Market commissioner.
5. If, however, the increase in weight was less than 25%, the new coins paid would have to be equal in number to the old ones; so Rashi; Tosaf. explains differently.
6. Lit., 'the great sea', the Mediterranean.
7. [On the principle that damage caused by indirect action is not actionable.]
8. Cf. Lev. V, 23.
9. [Har-ha-Melek, also known as Tur Malka. There is still a good deal of uncertainty in regard to the identification of these two localities. Buchler JQR. 1904. 181 ff. maintains that the reference in both cases is to Roman fortifications, access to which was barred to the Jews, the former being simply the Roman Castra, the latter, a fortification situated somewhere in Upper Idumea. For other views, v. Schlatter, Tage Trojans, p. 28, and Neubauer, Geographie, p. 196.]
10. M.Sh. I, 2. Now, if coins thrown into the ocean are not considered as lost to the owner, as indeed suggested by Rabbah. why should no redemption be effected?
11. Deut. XIV, 25.
12. On account of which no redemption could be effected.
13. In accordance with Ex. XXI, 26-27.
14. Supra 91a. Does this not prove that even where the substance was not reduced, such as in the case of deafening, still so long as the damage was done there is liability?
15. As having committed the capital offence of Ex. XXI. 25, v. supra 86a.
16. [And for the same reason the slave would be set free.]
17. Rendering her thus disqualified as blemished for the altar; cf. Lev. XXII, 20-25.
18. Cf. Kid. 66a.
19. I.e., the 'red heifer' rendering it thus disqualified in accordance with Num. XIX. 2 and 9.
20. V. supra 56a.
21. Thus contradicting the view of Rabbah.
22. V. supra 33b.

If there are witnesses who know what were the contents of the bond why not draw up another bond which would be valid? If on the other hand such witnesses are not available, how could we know [what were the contents]?¹  — Raba said: [The case could arise] where the defendant takes the plaintiff's word [as to the contents of the bond]. R. Dimi b. Hanina said that [regarding this ruling] of Rabbah there was a difference of opinion between R. Simeon and our [other] Rabbis. According to R. Simeon who held²  that an object whose absence would cause an outlay of money is reckoned in law as money there would be liability,³  but according to the Rabbis who said that an object whose absence would cause an outlay of money is not reckoned in law as money there would be no liability. R. Huna the son of R. Joshua demurred: I would suggest that you have to understand R. Simeon's statement, that an object whose absence would cause an outlay of money is reckoned in law as money, to apply only to an object whose substance is its intrinsic value, exactly as [in another case made Out by] Rabbah, for Rabbah said that where leaven was misappropriated before [the arrival of] Passover and a third person came along and burnt it, if this took place during the festival he would be exempt as at that time all are enjoined to destroy it,⁴  but if after Passover⁵  there would be a difference of opinion between R. Simeon and our Rabbis, as according to R. Simeon who held that an object whose absence would cause an outlay of money is reckoned in law as money, he would be liable,⁶  while according to our Rabbis who said that an object whose absence would cause an outlay of money is not reckoned in law as money, he would be exempt. [But whence could it be proved that even] regarding an object whose substance is not its intrinsic value R. Simeon similarly maintained the same view?

Amemar said that the authority who is prepared to adjudicate liability in an action for damage done indirectly⁷  would similarly here adjudge damages to the amount recoverable on a valid bill. but the one who does not adjudicate liability in an action for damage done indirectly would here adjudge damages only to the extent of the value of the mere paper. It once happened that in such an action Rafram compelled R. Ashi⁸  and damages were collected [from him] like a beam fit for decorative mouldings.⁹

BUT IF … THE LEAVEN [HE MISAPPROPRIATED BECAME FORBIDDEN FOR ANY USE BECAUSE] PASSOVER HAD INTERVENED … HE CAN SAY TO HIM: HERE, TAKE YOUR OWN. Who is the Tanna who, in regard to things forbidden for any use, allows [the offender] to say, 'Here, take your own'? — R. Hisda said: He is R. Jacob, as indeed taught: If an ox killed [a person], and before its judgment was concluded its owner disposed of it, the sale would hold good; if he pronounced it sacred, it would be sacred; if it was slaughtered its flesh would be permitted [for food]; if a bailee returned it to [the house of] its owner, it would be a legal restoration. But if after its sentence had already been pronounced, the owner disposed of it, the sale would not be valid; if he consecrated it, it would not be sacred; if it was slaughtered its flesh would be forbidden [for any use]; if a bailee returned it to [the house of] its owner, it would not be a legal restoration. R. Jacob, however, says: Even if after the sentence had already been pronounced the bailee returned it to its owner, it would be a legal restoration.¹⁰  Now, is not the point at issue between them¹¹  that R. Jacob, in the case of things forbidden for any use, allows the offender to say. 'Here, take your own', whereas the Rabbis disallow this in the case of things forbidden for any use?¹²  Rabbah said to him:¹³  No; all may agree that even regarding things forbidden for any use the offender is allowed [in certain circumstances] to say, 'Here, take your own', for if otherwise. why did they¹¹  not differ in the case of leaven during Passover?¹⁴  Rabbah therefore said: Here [in the case before us] the point at issue must be whether [or not] sentence may be pronounced over an ox in its absence. The Rabbis hold that sentence cannot be pronounced over an ox in its absence so that the owner may plead against the bailee thus: 'if you had returned it to me [before the passing of the sentence], I would have driven it away to the pastures,¹⁵  whereas now you have surrendered my ox into the hands of those against whom I am unable to bring any action.'¹⁶  R. Jacob, however, holds that sentence can be pronounced over the ox even in its absence, so that the bailee may retort to the owner thus: In any case the sentence would have been passed on the ox, even in its absence.

R. Hisda came across Rabbah b. Samuel and said to him: Have you been taught anything regarding things forbidden for any use?¹⁷  — He replied: Yes, I was taught [the following]: 'He shall restore the misappropriated object.¹⁸  What is the point of the additional words, which he violently took away? [It is that] so long as it was intact he may restore it.¹⁹  Hence did the Rabbis declare that if one misappropriated a coin and it went out of use, fruits and they became stale, wine and it became sour,²⁰  terumah²¹  and it became defiled,²²  leaven and [it became forbidden for any use because] Passover intervened,²³  an animal and it became the instrument for the commission of a sin,²⁴  or an ox and [it subsequently became subject to be stoned,²⁵  but] its judgment was not yet concluded, he can say to the owner, 'Here, take your own.' Now, which authority can you suppose to apply this ruling only where the judgment was not yet concluded, but not where the judgment was already concluded, if not the Rabbis, and it is at [the same time] stated that [if he misappropriated] leaven and [it became forbidden for any use because] Passover intervened²⁶  he can say to him, 'Here, take your own'?²⁷  — He replied:²⁸  If you happen to meet them²⁹  [please] do not tell them anything [of this teaching].³⁰

['If one misappropriated] fruits and they became stale … he can say to him: "Here, take your own."' But did we not learn:³¹  [IF HE MISAPPROPRIATED] FRUITS AND THEY BECAME STALE … HE WOULD [CERTAINLY] HAVE TO PAY ACCORDING TO [THE VALUE AT] THE TIME OF THE ROBBERY? — Said R. Papa: The latter ruling³²  refers to where the whole of them became stale,³³  the former to where only parts of them became stale.

MISHNAH. IF AN OWNER GAVE CRAFTSMEN [SOME ARTICLES] TO SET IN ORDER AND THEY SPOILT THEM, THEY WOULD BE LIABLE TO PAY. WHERE HE GAVE A JOINER A CHEST, A BOX OR A CUPBOARD³⁴  SET IN ORDER AND HE SPOILT IT, HE WOULD BE LIABLE TO PAY. IF A BUILDER UNDERTOOK TO PULL DOWN A WALL AND BROKE THE STONES OR DAMAGED THEM, HE WOULD BE LIABLE TO PAY, BUT IF WHILE HE WAS PULLING DOWN THE WALL ON ONE SIDE ANOTHER PART FELL ON ANOTHER SIDE, HE WOULD BE EXEMPT, THOUGH, IF IT WAS CAUSED THROUGH THE KNOCKING, HE WOULD BE LIABLE.

GEMARA. R. Assi said: The Mishnaic ruling could not be regarded as applying except where he gave a joiner a box, a chest, or a cupboard to knock a nail in and while he was knocking in the nail he broke them. But if he gave the joiner timber to make a chest, a box or a cupboard and after he had made the box, the chest or the cupboard they were broken by him, he would be exempt,³⁵  the reason being that a craftsman acquires title to the increase in [value caused by the construction of] the article.³⁶  But we have learnt: IF AN OWNER GAVE CRAFTSMEN SOME ARTICLES TO SET IN ORDER AND THEY SPOILT THEM THEY WOULD BE LIABLE TO PAY. Does this not mean that he gave them timber to make utensils?³⁷  — No, [he gave them] a chest, a box or a cupboard.³⁸  But since the concluding clause in the text mentions 'chest, box or cupboard' is it not implied that the opening clause refers to timber? — It may, however, be said that [the later clause] only means to expand the earlier [as follows]: 'In the case where an owner gave craftsmen some articles to set in order and they spoiled them, how would they be liable to pay? As, e.g., where he gave a joiner a chest, a box, or a cupboard.' There is also good reason for supposing that the text [of the latter clause] was merely giving an example. For should you assume that the opening clause refers to timber, after we have been [first] told that [even] in the case of timber they would be liable to pay and that we should not say that the craftsman acquires title to the increase in [value caused by the construction of] the article, what necessity would there be to mention afterwards chest, box and portable turret?³⁹  — If only on account of this, your point could hardly be regarded as proved, for the later clause might have been inserted to reveal the true meaning of the earlier clause, so that you should not think that the earlier clause refers to [the case where he gave the joiner a] chest, box and cupboard, whereas [where he gave him] timber the law would not be so; hence the concluding clause specifically mentions chest, box and cupboard³⁸  to indicate that the opening clause refers to timber, and that even in that case the craftsman would be liable to pay.³⁷  May we say that he⁴⁰  can be supported [from the following]: If wool was given to a dyer

1. [To know what liability to impose on him.]
2. Supra 71b.
3. Since the creditor has through the destruction of his bond suffered an actual loss of money.
4. Cf. Pes. II. 2.
5. When though forbidden to be used for any purpose it is still not under an injunction to be destroyed; cf. Pes. II. 2.
6. To the robber, since the robber would have been able to restore the leaven to the owner and say. 'Here there is thine before thee', whereas after the leaven was destroyed he would have to pay the full original value if the leaven.
7. I.e., R. Meir; cf. infra 100a.
8. [Who in his childhood had destroyed a bond of a creditor.]
9. A metaphorical expression for 'straight and exact and out of the best of the estate', as supra p. 16; v. Rashi and Sh.M. a.l.
10. v. supra 45a for notes.
11. R. Jacob and the Rabbis.
12. Our Mishnah thus represents the view of R. Jacob.
13. I.e., to R. Hisda.
14. Whether a robber would be entitled to restore it and plead 'Here there is thine before thee'.
15. And no sentence would have been passed on it.
16. [I.e., the court. This plea would, however, not apply to leaven where the incidence of the prohibition is not due to an act of the robber but to the intervention of the Passover (Rashi).]
17. [Whether the plea 'Here, take your own' is admissible in their case.]
18. Lev. V, 23.
19. Though it meanwhile became valueless.
20. [MS.M. rightly omits 'wine and it became sour' as in this case payment is according to value at time of robbery; Var. lec. and he poured from it a libation (to an idol).]
21. V. Glos.
22. V. p. 561, n. 4.
23. V. ibid., n. 5.
24. V. ibid., n. 6.
25. V. ibid., n. 8.
26. V. p. 561, n. 5.
27. Thus confirming the view of Rabbah as against that of R. Hisda.
28. I.e., R. Hisda to Rabbah b. Samuel.
29. My colleagues.
30. For a similar attitude cf. 'Er. 11b where R. Shesheth said so to the same Rabbah b. Samuel, and ibid. 39b where the same R. Shesheth said so to Raba (= Rabbah) b. Samuel.
31. In our Mishnah.
32. Where payment must be made.
33. And the change was definite.
34. Lit., 'a turret', a cupboard in the form of a turret.
35. So far as the increase in value caused by the construction of the article is concerned, [for when he parts with it he effects a sale of the improvement of the article and the stipulated sum paid to him is but the purchase money for the same.]
36. Cf. B.M. 112a.
37. And their liability would thus extend to the whole value of the utensils made by them.
38. For some repair, in the performance of which they were broken.
39. In which case the law is quite evident.
40. I.e., R. Assi.