Bava Kamma 10a (י.) — the Talmud in English

The beraita lists the stringencies that apply to an ox [the horn] but not to fire:

There is

a stringency of an ox over fire, and

there is

a stringency of fire over an ox.

A stringency of an ox over fire:

a.

That the ox pays kofer.

If the ox killed a person, its owner must pay kofer to the victim’s heirs.

b.

And likewise, he is liable for the thirty [shekels] of a slave.

If the ox killed a Canaanite slave, its owner must pay thirty shekels to the master.

c. And likewise, if

the ox’s verdict

of death was finalized, it is

forbidden

immediately

to derive benefit from it.

from it.

d. And likewise, if he

gave

his

ox to a deaf-mute, an imbecile, or a minor

and it caused damage, he is

liable.

This is not so with fire,

for when a person kindles a fire, and the fire travels and burns another person, the one who kindled the fire is not liable to the death penalty for burning that person. For if the person who was burned could have escaped, he was obligated to flee; and if he did not flee, the blame rests with him and not with the one who kindled the fire. Likewise, he is not liable to pay kofer; and if the person burned was a slave, the owner of the fire is not liable to pay the thirty [shekels] of a slave. And if the person burned was bound and unable to flee and died, the one who kindled the fire is also exempt from paying damages, since he is liable to the death penalty for killing a person, in accordance with the principle of kim lei bid’rabba minei: when both a death penalty and a monetary payment apply, it suffices that he receive the more severe punishment, death, and he is not also punished with the less severe monetary penalty. Likewise, one who hands over his fire to a deaf-mute, an imbecile, or a minor is exempt, as explained above.

A stringency of fire over an ox:

That fire is deemed forewarned from the outset

to pay full damages,

unlike an ox

[the horn], which is subject to the law of an innocuous animal during its first three goring incidents and pays only half-damages.

The beraita continues by listing the stringencies that apply to fire but not to a pit:

There is

a stringency of fire over a pit, and

there is

a stringency of a pit over fire.

A stringency of a pit over fire: a. That

the pit is

initially created for causing damage,

for from the moment it is made, it stands ready to cause damage.

b. And likewise, if one

hands it over to a deaf-mute, an imbecile, or a minor, he is liable.

As explained above.

This is not so with fire,

which is not initially created for causing damage, and one who hands it over to a deaf-mute is exempt.

A stringency of fire over a pit:

a.

That fire is accustomed to travel

to the injured party

and cause damage.

b.

And

likewise, it

is forewarned to consume

, meaning that the owner of the fire is liable for the damage caused by the fire,

whether

it damages

something fit for it, or whether

it damages

something unfit for it [the meaning of “unfit for it” will be explained below].

[the meaning of “unfit for it” will be explained below].

This is not so with a pit,

which remains fixed in its place while the injured party comes to it, and is forewarned only with regard to something fit for it [the Gemara will explain below what is unfit for a pit].

The Gemara asks about the first part of the beraita:

And let it teach

[that the beraita should teach]

a stringency

that additionally applies

to an ox over a pit: that an ox

[the horn]

is liable for vessels,

as an ox that breaks vessels by kicking or goring is liable; this is a derivative of the horn category.

This is not so with a pit,

for the owner of a pit is exempt for vessels that fell into it and were damaged there, as it is stated: “And an ox or a donkey fall into it”; and we expound: “a donkey,” but not vessels.

The Gemara answers:

Whose opinion is this,

this beraita? It is in accordance with the opinion of

Rabbi Yehuda, who holds one liable for damage to vessels in a pit,

as he expounds the verse “And an ox or a donkey fall into it”: the word “or” comes to include vessels [below, 53b]. Therefore, this is not a stringency of an ox over a pit, since even in the case of a pit one is liable for vessels.

But the Gemara challenges this answer:

If

this beraita is in accordance with the opinion of

Rabbi Yehuda,

,

say the latter part

, meaning that the latter part of the beraita should present a difficulty, for we learned in it:

A stringency of fire over a pit: Fire is accustomed to travel and cause damage, and is forewarned to consume both something fit for it and something unfit for it. This is not so with a pit.

The Gemara infers: The phrase

“something fit for it,”

mentioned by the beraita,

what is it?

It is

wood

and similar materials, which are customarily used for kindling a fire.

And

“something unfit for it,”

mentioned by the beraita,

what is it?

It is something not customarily used for kindling a fire, such as

vessels

and similar objects. Concerning this the beraita said:

This is not so with a pit,

for a pit is forewarned only with regard to something fit for it; but with regard to something unfit, such as vessels, one is exempt.

And if

the beraita is in accordance with the opinion of

Rabbi Yehuda,

,

you have said that Rabbi Yehuda holds one liable for damage to vessels in a pit!

It necessarily follows that this beraita, which exempts one for “something unfit” in the case of a pit—that is, vessels—was not stated according to Rabbi Yehuda, who holds one liable for vessels in a pit.

The question therefore returns: Why did the beraita not teach, “A stringency of an ox over a pit: An ox is liable for vessels, whereas a pit is exempt”?

Therefore, the Gemara says:

Rather, in fact,

this beraita is in accordance with the opinion of

the Rabbis,

who exempt one for damage to vessels in a pit. In fact, the beraita could have taught this additional stringency that applies to an ox over a pit.

But

,

the tanna stated some and omitted some:

the tanna did not intend to teach all the stringencies that exist; he mentioned only some of them and omitted others.

But the Gemara asks:

What additional case did he omit, such that he omitted this one!?

What other stringency did the tanna omit, which he could have taught but did not, besides this stringency? In other words, this answer works if another stringency can be found that the tanna omitted, since at times a tanna does not teach all the stringencies. But if this is the only stringency, it is not the practice of a tanna to omit a single stringency and not teach it.

The Gemara answers:

He omitted

another stringency that applies to an ox and likewise to a pit, but not to fire, namely:

concealed property!

The Torah exempted fire for burning concealed property [as the Sages expounded from “or the standing grain”: liability for fire applies only to burning something exposed, like standing grain], whereas in the case of an ox one is liable even for concealed property—for example, if an ox kicked a sack filled with vessels and broke them, its owner is liable for the vessels. Likewise, in the case of a pit, if a donkey fell into it while carrying a sack filled with produce, the owner of the pit is liable, even though the contents were concealed inside the sack. Thus, the tanna could have taught: “A stringency of an ox over fire: An ox is liable for concealed property, unlike fire.” The tanna omitted this stringency and did not teach it; similarly, he did not teach the stringency of an ox over a pit, namely, that it is liable for vessels.

The Gemara offers another answer to the question of why the beraita did not mention the stringency concerning vessels:

If you wish, say: In fact,

this beraita is in accordance with the opinion of

Rabbi Yehuda

and there is no difficulty concerning why the tanna did not teach the stringency of vessels and the stringency of concealed property, since Rabbi Yehuda holds one liable both for vessels in a pit and for concealed property in the case of fire. As for the objection that the beraita cannot be in accordance with Rabbi Yehuda because its latter part says that fire is liable for something unfit for it while a pit is exempt, and “something unfit for it” apparently refers to vessels—

and

it could be answered that when the beraita says that one is liable in the case of fire for

“something unfit for it,”

for which one is liable in the case of fire, it

it does not come to include vessels

; the beraita did not come to include vessels for which the owner of the fire is liable,

but to include

the case of

fire that singes his plowed field

, where the fire burns and damages his plowed soil [the soil hardens, and he must plow it again],

and scorches his stones

, where the fire spoils and damages his stones—he is liable. And this is not so with a pit, in which such damage cannot occur.

Rav Ashi challenged this

[he raised the following difficulty]:

Let it teach,

why did the tanna of the beraita not teach

a stringency

that additionally applies

to an ox over a pit: that an ox is liable for a consecrated animal disqualified from sacrifice,

an ox that had possessed the sanctity of a sacrifice, developed a blemish, became disqualified for sacrifice, was redeemed, and thereby became unconsecrated? If another ox gored it, its owner is liable, as it is stated: “If an ox of a man gores his fellow’s ox.” Since this ox had been redeemed, it is considered “his fellow’s ox.”

This is not so with a pit,

for if such an ox fell into a pit and died, the owner of the pit is exempt. For regarding a pit it is stated: “The owner of the pit shall pay... and the dead animal shall be his.” The Sages expound from this that when the dead animal belongs to him, the owner of the pit pays. But in this case, since the animal must be treated respectfully because it had once possessed the sanctity of a sacrifice, and it is forbidden to feed its carcass to dogs, it is considered as though the dead animal does not belong to the owner of the pit. Thus, there is an additional stringency of an ox over a pit. Why did the tanna not teach it?

This entire question applies only according to the final answer, as the Gemara proceeds to explain:

Granted, if you say that it is according to the Rabbis,

if you adopt the first answer, that the beraita was stated according to the Rabbis, this is understandable, because according to their opinion the tanna omitted the stringencies of vessels and concealed property; therefore

since he omitted those, he also omitted this one.

Since he omitted those stringencies, he also omitted this stringency.

But if you say

that the beraita is according to

Rabbi Yehuda,

then we do not find that the tanna omitted every stringency that he did not teach, since Rabbi Yehuda holds one liable for vessels in a pit and for concealed property in the case of fire. If so, the difficulty is:

What additional case did he omit, such that he omitted this one!?

What additional stringency did the tanna omit without teaching it, so that we could say that he likewise omitted the stringency concerning consecrated animals disqualified from sacrifice?

The Gemara answers: Even according to Rabbi Yehuda, we find that the tanna omitted another stringency that he did not teach, namely:

he omitted an ox threshing his plowed field.

An ox threshing in another person’s plowed field, intending to thresh, thereby spoiling the plowing, is liable under the horn category, since it intended to cause damage. Thus, we find a stringency of an ox that does not apply to a pit, because damage to land is not possible in the case of a pit.

But the Gemara rejects this:

If

you seek to explain that the tanna omitted the stringency of an ox disqualified from sacrifices

because

he omitted the stringency of

an ox threshing his plowed field,

this cannot be said, because

it is not an omission

; it is not considered something omitted

by the tanna,

since we already learned in the beraita: “A stringency of an ox,

for it is accustomed to travel and cause damage.”

This stringency of an ox threshing his plowed field is also included within that general stringency, because the entire reason it is a stringency relative to a pit is that a pit does not travel and cause damage, and therefore damage to land is not possible in its case. Thus, it is not considered that the tanna omitted this stringency. The question therefore returns: If the beraita is established according to Rabbi Yehuda, why did the tanna not also teach the stringency concerning an ox disqualified from sacrifices? But if it is established according to the Rabbis, this is understandable.

We learned in our Mishna:

“I prepared part of its damage,”

I am liable for payment of its damages as though I had prepared all of its damage.

The Gemara cites a beraita explaining the circumstance in which preparing part of the damage makes one liable for all of it:

The Sages taught: “I prepared part of its damage; I am liable

for payment of its damages as though I had prepared all of its damage.” How?

What is the circumstance in which preparing part of the damage makes one liable for all of it?

One who digs a pit

deep

nine

handbreadths, which is not deep enough to kill,

and

a person

another comes and completes it to

a depth of

ten

handbreadths, and now it is deep enough to kill.

The last one,

who completed the height of ten handbreadths,

is liable,

and he pays full damages, whether an ox fell in and died or whether it was only injured. And this is “one who makes part of the damage possible,” because he dug only one handbreadth, and nevertheless he is liable as though he had made the entire damage possible.

The Gemara assumed that the last one is liable both for death and for injury, and therefore it explains:

And

this is

unlike

the method of

Rabbi.

As it was taught

in a beraita:

One who digs a pit nine

handbreadths,

and another comes and completes it to ten,

and an ox or a donkey fell there, whether it died or was only injured — the

last one

who completed it to ten

is liable.

Rabbi says: Follow the last one with regard to death.

That is, only with regard to the death of the ox is the damage attributed solely to the last one, and the first one is exempt, because a pit nine handbreadths deep is not deep enough to kill. But

follow both of them with regard to injury.

If the ox was injured but did not die, payment for the damage is divided between the two of them, because the first one also dug a pit deep enough to cause injury.

And since our Mishna maintains that even with regard to injury only the last one is liable, it does not follow Rabbi’s method.

But the Gemara rejects this:

Rav Pappa said:

Our Mishna can also be established according to Rabbi’s method, and what the Mishna says—that he is liable as though he had made all the damage possible, implying that only the last one is liable—is speaking

with

regard to

death, and it is the view of all.

For Rabbi too agrees that with regard to death only the last one is liable.

Some say:

There are those who say that this matter was taught in the beit-midrash in the form of a question:

Let us say that it is not

according to Rabbi,

shall we say that our Mishna is not according to Rabbi, who maintains that with regard to injury both of them are liable? And concerning this

Rav Pappa said:

Our Mishna is speaking

with

regard to

death, and it is the view of all

of them.

Rav Zeira challenged this: Is there no other case!?

Are there no other circumstances in which one who makes part of the damage possible is liable as though he had made the entire damage possible?

But there is

another case: for example, one who

entrusted his ox to five people

to guard it,

and one of them was negligent,

leaving and failing to guard it,

and

the ox

caused damage.

Certainly, the law is that the one who was negligent is liable by himself for the entire damage. Here, then, we have a case in which, although he made only part of the damage possible, he

is liable

for the entire damage.

But the Gemara rejects that it can be established this way, because

what are the circumstances,

in what manner can we establish such a possibility?

If we say that without him there would not have been

guarding,

if we establish it as a case in which, without the fifth person’s guardianship, the four guards could not guard the ox, then

it is obvious

that he is liable for everything,

for

he

did it,

he is the one who caused the entire damage, and it is not merely “making part of the damage possible”!

Rather,

if we establish it as a case

in which even without him it would have been guarded,

such that even without his guardianship the ox would have been guarded by the others, then why should he be liable at all?

What did he do!?

What did he accomplish by leaving and failing to guard it? In any event, the ox was guarded, and he should be exempt. Therefore, it is impossible to establish the Mishna in such a manner.

Rav Sheshet challenged this: But there is

another case in which one makes part of the damage possible and is liable for the entire damage—for example, one person ignited a fire, and the second

added to the bundle,

adding bundles of branches to the fire and thereby bringing the fire closer to another person’s grain pile. In such a case, the strict law indicates that the second one should be liable for the entire damage, even though he is not considered to have made the entire damage possible, because he did not ignite the fire.

But the Gemara rejects that this can be established in this manner:

what are the circumstances,

what is the case?