Babylonian Talmud: Tractate Baba Kamma

Folio 14a

but not responsibility for any damage [that it may do]. [1] If so, explain the concluding clause: 'If a wall broke open at night, or if robbers took it by force and it went out and did damage, there is exemption.' From this it may surely be inferred that [if this had happened] in the daytime, the borrower would have been liable. Why so, if he did not take upon himself responsibility for any damage [that it may do]? — The meaning must be as follows: [But] if he has taken upon himself responsibility for damage [that it may do], he would be liable to compensate, yet, if a wall broke open at night, or if robbers took it by force and it went out and did damage there is exemption [in such a case].

Is it really so? [2] Did not R. Joseph learn: In the case of jointly owned premises or an inn, there is liability for Tooth and for Foot? Is not this a refutation of R. Eleazar? — R. Eleazar may answer you as follows: Do you really think so? Are Baraithas not divided [in their opinions] on the matter? [3] For it was taught: [4] 'Four general rules were stated by R. Simeon b. Eleazar to apply to the laws of torts: [In the case of damage done in] premises owned by the plaintiff and not at all by the defendant, there is liability in all; if owned by the defendant and not at all by the plaintiff, there is total exemption; but if owned by the one and the other, e.g., jointly owned premises or a valley, there is exemption for Tooth and for Foot, whereas for goring, pushing, biting, falling down, and kicking, Tam pays half-damages and Mu'ad pays full damages; if not owned by the one and the other, e.g., premises not belonging to them both, there is liability for Tooth and for Foot, whereas for goring, pushing, biting, falling down, and kicking, Tam pays half-damages and Mu'ad pays full damages.' It has thus been taught here that in the case of jointly owned premises or a valley there is exemption for Tooth and Foot. [5]

Do then the two Baraithas contradict each other? — The latter Baraitha speaks of a case where the premises were set aside by the one and the other [6] for the purposes of both keeping fruits and keeping cattle in, whereas that of R. Joseph deals with premises set aside for keeping fruits in but not cattle, in which case so far as Tooth is concerned the premises are in practice the plaintiff's ground. [7] In fact the context points to the same effect. In the Baraitha here [8] the jointly owned premises are put on the same footing as an inn whereas in the Baraitha there [9] they are put on the same footing as a valley. This is indeed proved. R. Zera, however, demurred: In the case of premises which are set aside for the purpose of keeping fruits [of the one and the other]. [10] how shall we comply with the requirement, and it feed in another man's field, [11] which is lacking in this case? — Abaye said to him: Since the premises are not set aside for keeping cattle in, they may well be termed 'another man's field.' [12]

R. Aha of Difti [13] said to Rabina: May we say that just as the Baraithas [14] are not divided on the matter so also are the Amoraim [15] not divided on the subject? [16] He answered him: Indeed, it is so; if, however, you think that they are divided [in their views]. [17] the objection of R. Zera and the answer of Abaye form the point at issue. [18]

[To revert] to the above text: 'Four general rules were stated by R. Simeon b. Eleazar to apply to the laws of torts: [Where damage is done in] premises owned by the plaintiff, and not at all by the defendant, there is liability in all.' It is not stated 'for all' [19] but 'in all', i.e., in the whole of the damage; is it not in accordance with R. Tarfon who maintains that the unusual damage occasioned by Horn in the plaintiff's premises will be compensated in full. [20] Read, however, the concluding clause: 'If not owned by the one and the other, e.g., premises not belonging to them both, there is liability for Tooth and for Foot.' Now, what is the meaning of 'not owned by the one and the other'? It could hardly mean 'owned neither by the one nor by the other, but by somebody else,' for have we not to comply with the requirement, and it feed in another man's field, [21] which is lacking in this case? It means therefore, of course, not owned by them both, but exclusively by the plaintiff,' and yet it is stated in the concluding clause, 'Tam pays half-damages and Mu'ad pays full damages,' which follows the view of the Rabbis who maintain that the unusual damage occasioned by Horn in the plaintiff's premises will still be compensated only by half-damages. [22] Will the commencing clause be according to R. Tarfon and the concluding clause according to the Rabbis? — Yes, even as Samuel said to Rab Judah: Shinena, [23] leave this Baraitha alone, [24] and follow my view that the commencement of the Baraitha is according to R. Tarfon and its conclusion according to the Rabbis. Rabina, however, said in the name of Raba: The whole Baraitha is according to R. Tarfon; what is meant by 'not owned by the one and the other' is that the right of keeping fruits there is owned not by both, the one and the other, but exclusively by the plaintiff, whereas the right of keeping cattle there is owned by both, the one and the other. In the case of Tooth the premises are in practice the plaintiff's ground, [25] whereas in the case of Horn they are jointly owned ground. [26] If so, how are the rules four in number? [27] Are they not only three? — R. Nahman b. Isaac replied:

1. In which case the lender still remains liable for any damage his ox may do.
2. That R. Eleazar exempts Tooth and Foot doing damage in jointly owned premises.
3. And my view is supported by one of them.
4. Tosef. B.K. I, 6.
5. Thus fully supporting the view of R. Eleazar and contradicting the teaching of R. Joseph's Baraitha.
6. I.e., by both plaintiff and defendant.
7. For the defendant had no right to allow his cattle to be there, and is therefore liable for Tooth, etc.
8. I.e., of R. Joseph.
9. Recording the view of R. Simeon b. Eleazar.
10. I.e., by both plaintiff and defendant.
11. Ex. XXII, 4; implying that the field should belong exclusively to the plaintiff.
12. For the defendant had no right to allow his cattle to be there, and is therefore liable for Tooth, etc.
13. [Identified with Dibtha near the famous city of Washit on the Tigris, Obermeyer, op. cit. p. 197].
14. I.e., that of R. Joseph and that of R. Simeon b. Eleazar.
15. R. Hisda and R. Eleazar.
16. R. Hisda deals with a case where the keeping of cattle has not been permitted, while R. Eleazar deals with the case when the premises have been set aside for that also.
17. When the premises have been set aside not for cattle, but for the keeping of fruit.
18. R. Hisda is of Abaye's opinion. whereas R. Eleazar prefers R. Zera's reasoning.
19. Which would mean for all kinds of damage.
20. Cf. infra 24b.
21. Ex. XXII, 4, indicating that the field has to belong to the plaintiff.
22. Cf. infra 24b.
23. [Lit., (i) 'sharp one', i.e., scholar with keen and sharp mind; (ii) 'long-toothed', denoting a facial characteristic; (iii) 'translator', Rab Judah being so called on account of his frequent translation of Mishnaic terms into the vernacular Aramaic, Golomb, D. Targumno I, Introduction, XLVff.]
24. [Give up your attempt to harmonize the two contradictory clauses.]
25. As the right to keep fruits there is exclusively the plaintiff's.
26. For they both may keep cattle there.
27. Since in principle they are only three in number: (a) exclusively the plaintiff's premises. (b) exclusively the defendant's, and (c) partnership premises.

The rules are three in number, but the places to which they apply may be divided into four. [1]

MISHNAH. THE VALUATION [IS MADE] IN MONEY [BUT MAY BE PAID] BY MONEY'S WORTH, IN THE PRESENCE OF THE COURT AND ON THE EVIDENCE OF WITNESSES WHO ARE FREE MEN AND PERSONS UNDER THE JURISDICTION OF THE LAW. WOMEN ARE ALSO SUBJECT TO THE LAW OF TORTS. [BOTH] THE PLAINTIFF AND DEFENDANT ARE INVOLVED IN THE PAYMENT.

GEMARA. What is the meaning of THE VALUATION IN MONEY? Rab Judah said: This valuation must be made only in specie. We thus learn here that which has been taught by our Rabbis elsewhere: [2] In the case of a cow damaging a garment while the garment also damaged the cow, it should not be said that the damage done by the cow is to be set off against the damage done to the garment and the damage done to the garment against the damage done to the cow, the respective damages have to be estimated at a money value.

BY MONEY'S WORTH. [This is explained by what] our Rabbis taught [elsewhere]: [2] 'MONEY'S WORTH' implies that the Court will not have recourse for distraint save to immovable property. Nevertheless if the plaintiff himself seized some chattels beforehand, the Court will collect payment for him out of them.

The Master stated: "'MONEY'S WORTH" implies that the Court will not have recourse for distraint save to immovable property. How is this implied? Rabbah b. 'Ulla said: The article of distress has to be worth all that is paid for it [in money]. [3] What does this mean? An article which is not subject to the law of deception? [4] Are not slaves and deeds also not subject to the law of deception? [4] — Rabbah b. 'Ulla therefore said: An article, title to which is acquired by means of money. [5] Are not slaves [6] and deeds [7] similarly acquired by means of money. [6] R. Ashi therefore said: 'Money's worth' implies that which has money's worth, [8] whereas chattels are considered actual money. [9]

Rab Judah b. Hinena pointed out the following contradiction to R. Huna the son of R. Joshua: It has been taught: 'MONEY'S FORTH implies that the Court will not have recourse for distraint save to immovable property; behold, was it not taught: He shall return [10] includes 'money's worth', even bran? [11] — [In the former Baraitha] we are dealing with a case of heirs. [12] If we are dealing with heirs read the concluding clause: 'If the plaintiff himself seized some chattels beforehand, the Court will collect payment for him out of them.' Now, if we are dealing with heirs, how may the Court collect payment for him out of them? — As already elsewhere [13] stated by Raba on behalf of R. Nahman, that the plaintiff seized [the chattels] while the original defendant was still alive, so here too, the seizure took place while the defendant was still alive.

IN THE PRESENCE OF THE COURT, [14] [apparently] exempts a case where the defendant sold his possessions before having been summoned to Court. May it hence be derived that in the case of one who borrowed money and sold his possessions before having been summoned to Court, the Court does not collect the debt out of the estate which has been disposed of? [15] — The text therefore excepts a Court of laymen. [16]

ON THE EVIDENCE OF WITNESSES, thus excepting a confession of [an act punishable by] a fine for which subsequently there appeared witnesses, in which case there is exemption. That would accord with the view that in the case of a confession of [an act punishable by] a fine, for which subsequently there appeared witnesses, there is exemption; [17] but according to the opposite view that in the case of a confession of [an act punishable by] a fine for which subsequently appeared witnesses, there is liability, [17] what may be said [to be the import of the text]? — The important point comes in the concluding clause:

1. [ I.e.. partnership premises may he subdivided into two: (a) where both have the right to keep fruit, as well as cattle; (b) where the right to keep fruit is exclusively the plaintiff's.]
2. Tosef. B.K., I.
3. 'Money's worth' would thus mean 'property which could not be said to be worth less than the price paid for it,' and is thus never subject to the law of deception. This holds good with immovable property; cf. B.M. 56a.
4. Cf. B.M. ibid.
5. Kid. 26a.
6. Cf. Kid. 23b.
7. [Tosaf. deletes 'deeds' as these are not acquired by money but by Mesirah (v. Glos.). cf. B.B. 76a.]
8. I.e., immovable property.
9. As these could easily be converted into money, v. supra p. 26.
10. Ex. XXI, 34.
11. Supra p. 24.
12. Who have to pay only out of the realty of the estate but not out of the personalty; cf. supra p. 31.
13. Keth. 84b.
14. Is taken to mean 'the payment in kind is made out of the possessions which are in the presence of the Court', i.e., not disposed of.
15. Whereas the law is definitely otherwise as in B.B. X, 8.
16. IN THE PRESENCE OF THE COURT does not refer to payment in kind but to the valuation which has to be made by qualified judges, v. infra 84b.
17. Infra p. 429.