Bava Kamma 10b — 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.

Рав Папа возразил ему: но есть и такой случай,

когда тот, кто создал лишь часть ущерба, обязан возместить весь ущерб, например

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.

Из барайты следует, что последний обязан возместить ущерб, хотя разрушение не произошло только вследствие его посадки, а стало результатом присоединения пятерых, которые уже сидели на скамье. Значит, это ещё один случай, когда тот, кто создал лишь часть ущерба, обязан возместить весь ущерб.

Гемара отвергает это объяснение:

Как именно обстоит дело?

Как следует понимать этот случай?

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.

что и без него скамья всё равно сломалась бы,

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.

для того, чтобы научить нас, что барайта говорит о случае,

когда без него

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,

:

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.

пусть последний скажет первым:

«Если бы не вы, из-за меня скамья не сломалась бы!»

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.

Гемара спрашивает: разве и этот случай не

очевиден,

ведь последний обязан, поскольку скамья сломалась от того, что он опёрся на них? Что же тогда барайта пришла сообщить? Гемара объясняет:

можно было бы сказать, что действие, совершённое его силой, не приравнивается к действию его тела.

Без слов барайты я мог бы сказать, что ущерб, причинённый его силой, не подобен ущербу, причинённому непосредственно его телом. Поскольку он лишь опёрся, а ущерб возник только от его силы, он был бы свободен от ответственности.

Поэтому барайта сообщает нам

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.

«И нет другого случая?! Ведь есть

ещё один случай, когда тот, кто создал лишь часть ущерба, обязан возместить весь ущерб:

случай, о котором учат

в барайте:

десять человек ударили одного человека десятью палками.

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.

«О случаях убийства здесь не говорится».

Мишна говорит не о законах, связанных с человеческой жизнью, а только о денежных выплатах за причинённый ущерб. Поэтому мы не стали истолковывать её таким образом.

And the Gemara brings another answer:

And if you wish,

one can say another answer:

The Mishna is not established in accordance with a dispute.

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

The Gemara asks:

And

if

not

establishing it in that manner was because of the dispute,

but did we not establish the Mishna not in accordance with Rabbi!

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

The Gemara answers:

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

We establish the Mishna in a manner that follows neither Rabbi’s view but rather that of the Sages, since the halakha follows them. But to establish the Mishna as following the view of

Rabbi Yehuda ben Beteira and not that of

the

Sages

whose view the halakha follows—

we do not establish it

in that manner. Therefore, we established the Mishna in the case of one who dug a pit, and not in the case of ten people who struck him.

The Gemara now returns to the words of the Mishna and derives a precise inference from them:

We learned in our Mishna: “When I made part of its damage possible,”

I became liable for payment of its damage

as though I had made all of its damage possible.

The Gemara infers:

It does not teach: ‘I became 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 it teaches: ‘payment of its damage,’

which implies that he must complete the amount of the damage.

In other words, the phrase “I became liable for its damage” means that if his ox gored another ox, he must pay the owner the value of a live ox, while the one who caused the damage takes the carcass for himself. However, the phrase “payment of its damage,” which the Mishna uses, means that he must only complete 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.

The Gemara proves this point from the Mishna’s words by comparison with the beraita:

We have learned in the Mishna what the Sages taught in a beraita,

that is, our Mishna teaches what the Sages taught in the beraita:

“Payment of damage,”

which the Mishna states,

teaches that the owners handle the carcass.

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

The Gemara discusses this:

From where are these matters

derived? From where do we learn this law, that the owners take the carcass?

Rabbi Ami said: It is as the verse states: “One who strikes an animal shall pay for it” [Leviticus 24],

and we interpret it as follows:

Do not read it as “shall pay for it”

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

but

read it as

“shall complete its value,”

in the sense of completing the difference by which the value of the injured animal was reduced.

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 whose animal was torn apart, it is stated:

“If it is torn apart, he shall bring testimony; for the torn animal he shall not pay” [Exodus 22].

The word “torn” is superfluous, and it is expounded both with regard to the words before it and with regard to the words after it. And this is how we expound it:

For the torn animal he shall pay.

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

the torn animal itself he shall not pay.

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

Ḥizkiyya said: From here:

With regard to an ox that caused damage, 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: the one who caused the damage shall pay an ox in place of the ox, but the dead animal shall belong

to the injured party.

And so too, the tanna of the school of Hezekiah

taught in a beraita that was taught in Ḥizkiyya’s house of study: “

And the dead animal

shall be his”—

the injured party’s!

You say

that “shall be his” means

the injured party’s?

From where do you know this?

Or perhaps

it does not mean

anything but the one who caused the damage?

You have said: It could not have been so [A0106]]and the Gemara immediately explains this statement.

and the Gemara immediately explains].

The Gemara explains:

What

is the meaning of

“It could not have been so”?

Abaye said: If it would enter your mind

that “the dead animal shall be his” means that

the carcass belongs to the one who caused the damage,

so that the one who caused the damage 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,

without adding anything further. We would then understand that the carcass belongs to the one who caused the damage, since, once he has paid the entire value of the injured party’s ox, it is clear that the carcass is his. If so,

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

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

learn from this

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, the phrase “It could not have been so,” stated by the beraita, is phrased as a rhetorical question. That is: Without the words “and the dead animal shall be his,” would the law not have been that the carcass goes to the one who caused the damage? From this it follows that “shall be his” means—the injured party’s.

The Gemara now explains why all three derivations are necessary:

And all are necessary;

all three derivations are needed.

For if the Merciful One had written

only

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

we might have said that this law—that the owners handle 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, the Torah did not burden him with handling the carcass.

But in the case of a torn animal,

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

it is common,

as this is a likely occurrence,

we might say no

and conclude that in this case the owners do not have to handle the carcass. Therefore

it is necessary

to have the verse “If it is torn apart,” to teach us that even in a common type of damage, the owners handle the carcass.

And if it had taught us only the case of a torn animal,

if only “If it is torn apart” had been written, we might have said that it is specifically there that the owners handle the carcass

because it happens on its own.

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

But

a person

who strikes an animal, who damages it directly,

would be considered to have caused the damage,

we might say no

and conclude that the Torah was not lenient in this case, and that the one who caused the damage must handle the carcass. The verse “One who strikes an animal shall pay for it” therefore teaches us that even in direct damage, the one who caused the damage does not handle the carcass; rather, the owners do.

And if it had taught us these two cases,

if the Torah had stated only these two verses—“If it is torn apart” and “One who strikes an animal shall pay for it”—we might have said that it is specifically in these two cases that the Torah did not burden the one who caused the damage with handling the carcass.

This one, because it is uncommon,

in the case of a person who causes damage, the Torah did not burden him because it is uncommon for a person to damage another’s animal;

and that one, because it happens on its own.

In the case of bailees, the Torah did not burden them because the damage occurred on its own and they did not intend it.

But

in the case of an ox that causes damage, which is the subject of the third derivation,

“and the dead animal shall be his,”

the damage is

common,

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

and

it is also

direct,

as the ox intended to cause damage,

we might say no

and conclude that the Torah was not lenient in this case, and that the one who caused the damage must handle 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 an ox that causes damage, the owners handle the carcass.

And if it had taught us

only the verse “

and the dead animal shall be his,”

we might have said that the Torah was lenient only in the case of an ox that causes damage

because the damage is caused by 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 damaged it 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,

we might say no

and conclude that the Torah was not lenient in their cases, and that the one who caused the damage must handle the carcass. Therefore

it is necessary [A0185]]to have all three derivations.

there is a need] for all three derivations.

The Gemara now challenges the need for the derivation that the one who caused the damage pays only the difference:

Rav Kahana said to Rav: Rather, is the reason that

the carcass belongs to the injured party and the one who caused the damage pays only the difference because the verse states “and the dead animal shall be his” [or because of the other two derivations],

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

Would we have said that he must pay the injured party the value of a live ox? But that is not correct!

For

now, if he himself has several torn animals, 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]: The verse states, “He shall restore

money

to its owner,” and we expound “he shall restore” to

include items worth money, even bran,

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

is it necessary to teach this concerning his own?

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? Why, then, is a special derivation necessary?

The Gemara answers:

It is necessary only

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 is not needed

except for the

matter of

depreciation of the carcass,

to teach that any decrease in the carcass’s value from the time of death until the time of the court hearing is the injured party’s loss, 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 carcass’s value at the time of death.

The Gemara discusses whether this law is universally agreed upon:

Shall we say that depreciation of the carcass is subject to a dispute between tannaim,

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

As it is taught

in a beraita: With regard to what is stated concerning a paid bailee,

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

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