Bava Kamma 10b (י:) — the Talmud in English

If it were not for him,

if not for the second person, who added many bundles,

it would not have proceeded,

the fire would not have reached the stack. If so,

it is obvious

that the last person is liable, since he enabled the entire damage; for without him, the fire would have proceeded and been extinguished.

Rather,

if we say

that without him it would have proceeded,

even without the branches that he placed, the fire would still have reached the stack and burned it, then

what did he do?

What did he accomplish by adding the bundles, when the stack would have burned even without him? He should therefore be exempt. Consequently, the Mishna cannot be explained in this manner.

Rav Pappa challenged this: But there is

a further case

that was taught in a beraita: Five people who sat on one bench and did not break it, and one person came

and joined the five,

sat on it, and broke it—the last person is liable.

And Rav Pappa said:

The beraita is speaking of people who were corpulent when they sat on the bench,

such as Pappa bar Abba,

who was corpulent. But ordinary-sized people who sit on a bench are not liable if it breaks, because an ordinary bench is lent for sitting upon, and its breaking is considered a case of “it died due to the work for which it was borrowed,” for which a borrower is exempt.

It is evident from the beraita that the last person is liable even though the breaking was not completed merely by his sitting down, but only through the joining of the five people who had also been sitting there. Thus, we have another case in which one who causes part of the damage is liable for the entire damage.

The Gemara rejects this possibility:

What are the circumstances?

How are we dealing with this?

If we say that without him it would not have broken, if we say that without the last person’s sitting down the bench would not have broken, then

it is obvious

that the last person alone is liable, since he is considered to have caused the entire damage.

And

rather,

if we say

that even without him it would have broken,

that even without his sitting down the bench would have broken, then

what did he do,

what did the last person accomplish by sitting on the bench, when the bench would have broken even without him? He should therefore be exempt. Consequently, the Mishna cannot be explained in this manner.

But the Gemara asks:

Ultimately, even if we do not explain the Mishna in this manner, there is still a difficulty: where can the beraita be reconciled!?

How can we reconcile the beraita that taught this law? In either case there is a difficulty: either it is obvious that he is liable, or he should be exempt.

The Gemara answers:

It is necessary;

the beraita needed to teach us only a case

in which without him

it would have broken after two hours,

where, without the last person’s sitting down, the bench would have broken after two hours.

But now,

now that the last person came and sat down,

it broke within one hour.

The bench broke within a single hour. The beraita comes to teach us that although the bench would have broken even without him, the last person is nevertheless liable, because

they said to him [ the first people said to him]: Had it not been for you, we would have sat a little longer and then stood.

Had you not come and sat with us, we would have sat for a short while longer and stood up before the bench broke. But now, because you sat with us, the bench broke earlier.

But the Gemara asks:

Let him say to them,

let the last person say to them:

Had it not been for you, it would not have broken due to me!

Had you not been sitting on the bench, it would not have broken because of my sitting on it. Therefore, when I sat down, you should have stood up in order to prevent the bench from breaking. Since you did not stand up, you are partners with me in the breaking and should be liable just as I am!

Why, then, is only the last person liable?

Therefore, the Gemara explains the beraita in another manner: It is necessary; the words of the beraita were necessary only for a case in which, as he leaned against them, it broke. That is, it is indeed speaking of a case in which the bench would not have broken without the last person, and yet it is not obvious that the last person is liable [as we had asked], because the last person did not sit on the bench; rather, he stood on his feet and leaned his body against those who were sitting, and the bench then broke. Therefore, the people sitting are exempt, since they could not stand because he was leaning his body against them, whereas the last person is liable because the bench broke through his force.

The Gemara asks: Even this case

is obvious

that the last person is liable, since the bench broke through his leaning upon it. What, then, does the beraita come to teach us? The Gemara explains:

Lest you say, his force is not considered like his body, without the words of the beraita I would have said that damage caused by his force is not equivalent to damage caused by his body. Since he merely leaned against them, and the damage was caused only through his force, he should be exempt. It teaches us the beraita that his force is considered like his body; wherever his body breaks, his force also breaks. When he breaks something through his force, it is equivalent to breaking it with his body, and he is liable.

The Gemara returns to raise the objection that the Mishna could have been explained in another manner:

Is there no other case!? But there is

another case in which one who causes part of the damage is liable for the entire damage:

the case that was taught

in a beraita:

Ten people struck one person with ten sticks.

Whether

they all struck him

simultaneously, or

whether they struck him

one after the other and he died—

all

are exempt.

Rabbi Yehuda ben Beteira disagrees and says: Only when they struck him simultaneously are they all exempt; but when they struck him one after the other, the last person is liable, because he hastened his death. It was explained in tractate Sanhedrin [78a] that they dispute the interpretation of the verse, “When a man strikes any human life.” According to Rabbi Yehuda, “any life” means even part of a life. Therefore, although the blows of the first people rendered him moribund, so that now there was only “part of a life,” the last person is nevertheless liable. According to the Sages, only one who kills “an entire life” is liable, not one who kills part of it. Thus, according to Rabbi Yehuda, who holds liable even one who kills “part of a life,” there is a case of one who causes part of the damage and is liable for the entire damage. The Gemara answers: We are not dealing with capital cases. The Mishna is not discussing laws involving human life, but only monetary liability for damages; therefore, we did not establish it in this manner.

And the Gemara brings an additional answer,

or, if you wish,

one can say another answer:

It was not discussing a dispute.

Since in the case of ten people who struck him, the Sages disagreed with Rabbi Yehuda, we therefore did not establish the Mishna in that manner.

And the Gemara is astonished:

But

if

not

because of the dispute did we establish it in that manner,

but we established it as not in accordance with Rabbi!

After all, the manner in which we established the Mishna—as referring to one who dug a pit nine handbreadths deep and another came and completed it to ten—is also subject to a dispute, for according to Rabbi both of them are liable, and not only the last one; and we established the Mishna as not in accordance with Rabbi.

And the Gemara answers:

We establish it as not in accordance with Rabbi, but in accordance with the Rabbis.

We establish the Mishna in a manner that follows neither the opinion of Rabbi nor the Rabbis, because the halakha follows the Rabbis. But to establish the Mishna as following the opinion of

Rabbi Yehuda ben Beteira and not that of

the

Rabbis

whose opinion is the halakha,

we do not establish it;

we do not establish it in that manner. Therefore, we established the Mishna as referring to one who dug a pit, and not to ten people who struck him.

And now the Gemara returns to the words of the Mishna and infers from it:

We learned in our Mishna: “If I prepared only part of its damage,”

I am liable for payment of its damage

as if I had prepared all of its damage.

And the Gemara infers:

It does not teach, “I am liable for its damage,”

the tanna in the Mishna did not phrase it as “I am liable for its damage,” which would imply that he must pay the entire damage,

but rather it teaches, “for payment of its damage,”

which implies that he must make up the amount of the damage.

That is, the meaning of the expression “I am liable for its damage” is that if one’s ox gored an ox, he must pay the owner the value of a live ox, and the one who caused the damage takes the carcass for himself. However, the expression “payment of its damage” used by the Mishna means that he need only make up the amount of the damage; that is, the injured party takes the carcass, and the one who caused the damage pays only the amount by which the animal’s death reduced its value.

And the Gemara proves from the words of the Mishna what is stated in the beraita:

We learn this from what the Sages taught:

we therefore learn in the Mishna that which the Sages taught in the beraita:

“Payment of damage”

as stated by the Mishna

teaches that the owners attend to the carcass.

That is, the injured party takes the carcass, and the one who caused the damage pays only the difference in value.

And the Gemara asks:

From where are these matters

derived—that the owners take the carcass?

Rabbi Ami said: For the verse states, “One who strikes an animal shall pay for it,” [

Leviticus 24] and we expound it:

Do not read “shall pay for it”

in the sense of payment, for “shall pay for it” implies that he pays with the animal itself, which is impossible, since the animal has already died,

but

read it as

“shall make up its value,”

in the sense of making up the difference by which the value of the damaged animal was reduced.

And the Gemara brings another source for this law:

Rav Kahana said: From here:

with regard to a paid bailee who was negligent in his safeguarding and the animal was torn apart, it is stated:

“If it is torn apart, he shall bring testimony concerning it; for the torn animal he shall not pay” [

Exodus 22]. The word “torn” is superfluous, and it is expounded both before and after it. And this is how we expound it:

For the torn animal he shall pay.

He shall pay the entire amount of the damage, up to the value of the torn animal. But

for the torn animal itself he shall not pay.

He need not pay the value of the torn animal itself, because the owner—the injured party—is the one who takes the carcass. And the Gemara brings another source for this law:

Hezekiah said: From here:

with regard to a damaging ox it is stated, “He shall surely pay an ox in place of the ox,

and the dead animal shall be his” [

Exodus 21]. The meaning of the verse is that the one who caused the damage shall pay an ox in place of the ox; however, the dead animal shall belong

to the injured party.

And so too, the tanna of the school of Hezekiah

and so they taught in a beraita taught in Hezekiah’s beit-midrash: “

And the dead animal

shall be his,”

to the injured party!

You say

that “shall be his” means

to the injured party?

From where do you know to say this?

Or is it not so,

perhaps it means

only to the one who caused the damage?

You have said: It was not so [

and the Gemara immediately explains].

And the Gemara explains:

What

is the meaning of

“It was not so”?

Abaye said: If it could enter your mind

that “the dead animal shall be his” means that

the carcass belongs to the one who caused the damage,

so that he takes the carcass and also pays its value to the injured party, then

the Merciful One should have written

only, “He shall surely pay

an ox in place of the ox,”

and remained silent,

with no need for the addition; we would then understand that the carcass belongs to the one who caused the damage. Since the one who caused the damage paid the entire value of the injured party’s ox, it is understood that the carcass is his. If so,

why do I need “and the dead animal shall be his”?

Why did the Torah continue to state that “the dead animal shall be his”? Rather, certainly

infer from here

that “the dead animal shall be his” means that the dead animal shall belong

to the injured party,

and the one who caused the damage pays only the difference.

Accordingly, “It was not so,” as stated by the beraita, is phrased as a question: Would the law not have been that the carcass goes to the one who caused the damage even without the words “and the dead animal shall be his”? From this we learn that “shall be his” means—to the injured party.

And now the Gemara explains the need for the three derivations:

And it is necessary,

all three derivations are necessary.

For if the Merciful One had written

that the Torah states only

“One who strikes an animal shall pay for it,”

we would say that this law—that the owners attend to the carcass—was stated by the Torah specifically with regard to a person who damages another’s animal,

because it is uncommon,

since it is uncommon for a person to damage another’s animal; therefore, the Torah was not stringent with him, requiring him to trouble himself with the carcass.

But a torn animal,

an animal damaged when it was torn apart while in the bailee’s custody, since

it is common,

as this is something that commonly occurs,

perhaps not

would we say that in this case the owners do not have to attend to the carcass. Therefore,

it is necessary

to have the verse “If it is torn apart,” to teach us that even in the case of common damage, the owners must attend to the carcass.

And if it had informed us only about a torn animal,

if it had been written only, “If it is torn apart,” we would say that only there do the owners attend to the carcass

because it occurs incidentally,

since the bailee was merely negligent in his safeguarding, and a wolf tore apart the animal; and since the bailee did not intend this, the Torah was lenient and did not require him to attend to the carcass.

But

a person

who strikes an animal, who damages it directly,

would be considered to have caused the damage,

perhaps not

we might say that the Torah was not lenient in this case, and that the one who caused the damage must attend to the carcass. The verse “One who strikes an animal shall pay for it” therefore comes to teach us that even in a case of direct damage, the one who caused the damage does not attend to the carcass; rather, the owners do.

And if it had informed us of these two,

if the verse had stated only these two verses [“If it is torn apart” and “One who strikes an animal shall pay for it”], we would say that only in these two cases was the Torah not stringent, requiring the one who caused the damage to attend to the carcass.

Here, because it is uncommon,

in the case of a person who causes damage, the Torah was not stringent because it is uncommon for a person to damage another’s animal,

and here, because it occurs incidentally.

In the case of bailees, the Torah was not stringent because the damage occurred incidentally, and he did not intend it.

But

in the case of a damaging ox, concerning which the third derivation is stated,

“and the dead animal shall be his,”

which is damage

that is common

because it is common for an ox to damage a person,

and

it is also

direct,

as the ox intended to cause damage,

perhaps not

we might say that the Torah was not lenient in this case, and that the one who caused the damage must attend to the carcass. This is why this derivation, from “and the dead animal shall be his,” is also necessary, to teach us that even in the case of a damaging ox, the owners attend to the carcass.

And if it had informed us

if the verse had stated only, “

and the dead animal shall be his,”

we would say that the Torah was lenient only in the case of a damaging ox

because it causes damage through property,

since the damage is caused only by his property, which caused the damage.

But here, where he causes damage with his body,

in the case of a person who causes damage [“one who strikes an animal”], where the person caused damage with his body, and likewise with regard to bailees, who are liable because of their negligence in safeguarding and are considered as causing bodily damage,

perhaps not;

we might say that the Torah was not lenient, and that in these cases the one who caused the damage must attend to the carcass. Therefore,

it is necessary [

there is a need] for all three derivations.

And now the Gemara challenges the purpose of the derivation that the one who caused the damage pays only the difference:

Rav Kahana said to Rav: Rather, is the reason [for the law] that the Merciful One wrote, “and the dead animal shall be his,”

indeed, the reason for the law—that the carcass belongs to the injured party and the one who caused the damage pays only the difference—is that this is derived from the verse “and the dead animal shall be his” [or from the other two derivations],

but if not for this, we would have said that the carcass belongs to the one who caused the damage?

And he would have to pay the injured party the value of a live ox? But this is not correct!

For

now, if he himself possesses several carcasses, he may give them to him,

if the one who caused the damage has several animal carcasses in his possession, he may give them to the injured party as payment for the damage,

as the master said

in a beraita [above, 7a]: It is stated, “He shall return

he shall restore

to its owner,” and we expound: “He shall restore,”

to include anything of monetary value, even bran,

meaning that one may pay with anything of monetary value, even with bran, and consequently also with animal carcasses. If so, if he can give the carcasses of his own animals,

is there a question that he may give what is his!?

When the carcass belonged to the injured party, is there any doubt that it remains with the injured party, while he pays only the difference? And why is a special derivation necessary?

And the Gemara answers:

It was necessary

indeed, even without the derivation, the one who caused the damage could leave the carcass with the injured party and pay only the difference. The derivation was necessary

only for the

matter of

the depreciation of the carcass,

to teach that the decrease in value from the value of the carcass at the time of death until the time of the court hearing is the loss of the injured party, because the carcass remains in his possession. Without this derivation, although the one who caused the damage could pay with the carcass, he would nevertheless pay according to its lower value at the time of payment. The Torah therefore teaches that the one who caused the damage pays the difference according to the value of the carcass at the time of death.

The Gemara discusses whether this law is agreed upon:

Let us say that the depreciation of the carcass is the subject of a dispute between tanna’im:

shall we say that this law—that any depreciation of the carcass until the time of the court hearing is the loss of the injured party—is not universally accepted, but is the subject of a dispute between tanna’im?

As it was taught

in a beraita: This is what the verse states concerning a paid bailee:

“If it is torn apart, he shall bring testimony concerning it,”

meaning that if the animal entrusted to him for safekeeping was torn apart,