Bava Kamma 116a (קטז.) — the Talmud in English

Beit Shammai say:

Pour it all out,

and do not leave it, lest this lead to a mishap, causing him to drink it.

And Beit Hillel say: Use it for sprinkling.

Rabbi Yishmael, son of Rabbi Yosei, said: I will decide: If

it became impure

inside the house, use it for sprinkling,

because they will not leave it there,

but in the field, pour it all out,

all of it immediately, because if he leaves it there until he brings it home, there is concern about a mishap, that he may come to drink it.

Some say: If it is old, use it for sprinkling; and if it is new, pour it all out.

They said to him: A third decision is not decisive.

That is to say, you, Rabbi Yishmael, are not issuing an intermediate decision in accordance with the views of both of them. Rather, you are expressing your own view, which differs from theirs. For Beit Shammai and Beit Hillel did not distinguish in their statements between a house and a field. Therefore, the halakha does not follow you against their views. Only if Beit Shammai and Beit Hillel had mentioned a house and a field in their statements, and you had adopted the view of one of them with regard to a house and the view of the other with regard to a field, only then could your view have been combined with the view of one of them in each particular detail, and the halakha could have been decided in accordance with your words on the basis of the majority.

We learned in the Mishna:

If he said to him, “I will save yours,”

and you will give me the value of mine, he is obligated to give it to him.

And we raised a difficulty with this:

But why

should he be obligated to pay him for the wine that he poured out?

Let him say to him,

the owner of the honey to the owner of the wine:

“I was merely stringing you along,”

and I did not genuinely intend to obligate myself to pay you for your wine; rather, I said this so that you would save my honey.

Is it not taught in a beraita: If one was fleeing

from prison,

and there was a ferry

a boat

before him,

and he wished to cross the river so that the prison guards would not catch him.

He said to him,

to the owner of the ferry:

“Take a dinar [

which is a sum far greater than the customary payment for passage on a ferry]

and ferry me

across the river”!

He has no claim

the owner of the ferry

except to his regular wage.

?

Apparently,

he can

say to him: “I was merely stringing you along,”

and I did not intend to give you such a large sum; rather, I said this so that you would agree to ferry me across the river.

Here too,

in the case of one who saves another’s honey,

let him say to him,

the owner of the honey:

“I was merely stringing you along”?

And we answer:

This is not comparable;

the case in our Mishna is not comparable to the first clause of the beraita,

but to the latter clause

of the beraita:

And if he said to him,

to the owner of the ferry:

“Take this dinar as your wage and ferry me,” he gives him his full wage.

He is obligated to pay him the dinar that he promised him.

The Gemara explains:

What is different in the first clause, and what is different in the latter clause?

What is the difference between the first clause and the latter clause, and why may he not say to him in the latter clause, “I was merely stringing you along”?

Rami bar Hama said:

The latter clause is speaking when the owner of the ferry is

a fisherman who pulls fish from the sea. For he can say to him,

meaning that he can claim from him:

“You caused me to lose fish worth a zuz!”

By ferrying you, I lost fish worth a zuz during that time. Since he suffers a loss as a result, he must pay him everything he promised him.

This is the intention of the beraita when it says that he said to him, “Take this dinar as your wage”: that is, in exchange for the wage you are losing because of me. Therefore, he must pay him a full dinar.

The same applies in our case. The owner of the wine suffers a loss by pouring out his wine, and therefore he must pay him for the wine he lost.

We learned in the Mishna:

If a river swept away his donkey and his fellow’s donkey, his being worth one hundred dinars

and his fellow’s being worth two hundred, he receives only his wage. And if he said to him, “I will save yours, and you will give me mine,” he is obligated to give it to him.

And it is necessary

for the tanna of the Mishna to teach us both of the cases stated.

For had he taught us only the first case,

if he had taught only the case in which he poured out his wine to save his fellow’s honey, I would have said:

There, it is only when he expressly stipulated that he gives him the value of all of it

that he pays him the entire value of his wine, when he expressly stipulated this with him,

because he causes the loss directly.

For he poured out his wine with his own hands in order to save the other’s honey.

But here,

when a river swept away his donkey,

since it happened on its own,

as the loss came to him on its own and not through his direct action,

let us say

that even if he expressly stipulated with him that he would pay him for his donkey,

he receives only his wage.

Therefore, the Mishna must teach us that even when a river swept away his donkey, where the loss occurred on its own, he pays him the entire value of his donkey.

And had he taught us only the latter clause,

if the Mishna had taught only the case in which a river swept away his donkey, I would have said:

Here, when no stipulation was made, he receives only his wage.

It is specifically here that he is obligated to pay him only his wage when he did not stipulate anything with him,

because it happened on its own,

as he lost his donkey on its own through the river’s sweeping it away.

But there,

in the case of one who poured out his wine,

since it was done directly,

he did so himself,

I might say

that

even when no stipulation was made,

when he did not stipulate with him that he would pay him for his wine,

he gives him the value of all of it,

paying him the entire value of his wine.

Therefore,

it is necessary

for the Mishna to teach us the case of the wine as well: even when he directly caused his own loss, he gives him only his wage if he did not stipulate anything with him.

Rav Kahana asked Rav:

Two people whose two donkeys were swept away by a river, and one of them

went down

to

save

his fellow’s donkey from the river, but did not save his own donkey. Rather, the rescuer stipulated that his fellow would pay him as the wage for saving his donkey also for the loss of the rescuer’s donkey, which had likewise been swept away by the river.

And

now

his donkey emerged on its own.

In the meantime, the rescuer’s donkey emerged from the river on its own.

What is

the law? Is his fellow obligated to pay him the payment he stipulated with him for the loss of the donkey, even though the donkey subsequently emerged on its own and was not lost, or not?

For one might say that when the rescuer’s donkey was swept away by the river, and they agreed that he would save his fellow’s donkey and refrain from saving his own donkey, and that the other would pay him also for the loss of his donkey, it was already considered lost to its owner, and his fellow became obligated to pay him for it, in exchange for his refraining from saving it in order to labor to save his fellow’s donkey. Subsequently, when the donkey emerged from the river on its own, its owner acquired it from the ownerless property, and his fellow’s obligation to pay remains in force. Or perhaps, since in the end the donkey was nevertheless saved from the flood, his fellow should not be obligated to pay for it?

He said to him

Rav: He is obligated to pay him for the donkey that was swept away, as this is analogous to the donkey having died. And the fact that the donkey emerged afterward is because

Heaven took pity on him.

Heaven had mercy on him and gave him a donkey as a gift.

This is like the incident involving Rav Safra, who was traveling in a caravan.

He was traveling along the road in a caravan.

A certain lion accompanied them.

A lion joined them and accompanied them on the road, guarding their animals from wild beasts and bandits.

Each night, they would send it the donkey of one of them, and it would eat it.

The members of the caravan stipulated among themselves that each night, in turn, one member of the caravan would throw one of his donkeys to the lion, and the lion would eat it.

When Rav Safra’s turn arrived,

when it became Rav Safra’s turn to throw a donkey to the lion,

he sent it a donkey, but it did not eat it.

He threw it a donkey, but the lion did not eat it.

Rav Safra hastened

Rav Safra hurried

and acquired it,

before someone else could acquire it, since this donkey was ownerless.

So too, the donkey that emerged from the river on its own was a miracle from Heaven that occurred for its owner, and this does not exempt his fellow from paying him for it.

Rav Aha of Difti said to Ravina: Why did he need to acquire it?

Why did Rav Safra need to hurry to acquire his donkey?

Granted, when he declared it ownerless, he did so with regard to the lion;

he did not declare his donkey ownerless except for the sake of the lion, but

he did not declare it ownerless with regard to everyone,

he did not render it ownerless to the entire world. And since the lion did not eat it, it remained in Rav Safra’s possession, and he did not need to hurry to acquire it.

He said to him

Ravina:

Rav Safra did so merely to remove any possible objection.

In truth, according to the law Rav Safra did not need to reacquire his donkey; rather, he did so so that there would be no grounds for dispute concerning the matter.

Rav asked Rabbi: If he went down to save it

and stipulated with him that he would pay him for his donkey,

but did not save it,

and ultimately did not succeed in saving his fellow’s donkey,

what is

the law? Is his fellow obligated to pay him or not?

He said to him

Rabbi:

And is this a question?

You have asked well, and I will answer you:

He receives only his wage!