Bava Kamma 116a — the Talmud in English

Beit Shammai say ![](pamud.bmp "

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everything must be poured out,

and he may not leave it, lest he come to a mishap by drinking it.

And Beit Hillel say: He should use it for sprinkling.

Rabbi Yishmael son of Rabbi Yosei said: I shall decide:

if it became impure

in the house, he should use it for sprinkling,

because they will not leave it there,

but in the field, he must pour everything out,

all of it immediately, because if he leaves it until he brings it into his house, there is concern of a mishap, that he will come to drink it.

Some say: With old [wine] he should use it for sprinkling, and with new [wine] he must pour everything out.

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

That is, you, Rabbi Yishmael, are not making an intermediate decision in accordance with the words of both of them; rather, you are stating 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, and therefore the halakha does not follow you against their words. 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 regarding a house and that of the other regarding a field, only then would it have been possible to combine your view with that of one of them in each and every detail, and to decide the halakha in accordance with your words by virtue of the majority.

We learned in the Mishna:

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

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

And we raised an objection concerning it:

And why

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

and let him say to him

let the owner of the honey say to the owner of the wine:

“I am merely playing a trick on you,”

and I did not truly 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 seize him.

He said to him

to the owner of the ferry:

“Take a dinar [

which is a sum much greater than the customary payment for a ferry crossing]

and ferry me across

the river!”

He has no

the owner of the ferry

except his wage

the usual one.

It follows

that he is able

to say to him: “I am merely playing a trick on you,”

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 am merely playing a trick on you?”

And we answer:

This is not comparable,

the case of 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 across,” he gives him his full wage.

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

And 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 in the latter clause can he not say to him, “I am merely playing a trick on you”?

Rami bar Hama said:

the latter clause is speaking of a case in which the owner of the ferry is

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

that he can claim from him:

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

By ferrying you across, I lost at that time fish worth a zuz. And since he has a loss on account of this, he is obligated to pay him everything that he promised him.

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

And the same applies in our case: the owner of the wine has a loss, since he pours out his wine, and therefore he is obligated to pay him for the wine that he lost.

We learned in the Mishna:

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

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

And it is necessary.

The tanna in the Mishna needed to teach us both of the cases stated.

For had he taught us the first [case],

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

There it is that, when he explicitly stipulated, he gives him the value of all of it.

Only there does he pay him the entire value of his wine when he explicitly stipulated this with him,

because he causes the loss with his hands.

For he poured out his wine with his hands in order to save his honey.

But here,

in the case where a river swept away his donkey,

which occurs by itself,

for the loss came to him by itself and not through his hands,

let us say

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

he has only his wage.

Therefore, the Mishna needs to teach us that even when a river swept away his donkey, which is a loss that occurs by itself, he pays him the entire value of his donkey.

And if it had taught us the latter clause,

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

Here it is that, ordinarily, he has only his wage.

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

because it occurs by itself,

for he lost his donkey by itself through the river’s sweeping it away.

But there,

in the case where he poured out his wine,

through his hands

he did so,

let us say

that

even ordinarily,

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

he gives him the value of all of it,

he pays him the entire value of his wine.

Therefore

it is necessary

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

Rav Kahana asked Rav:

Two people whose two donkeys a river swept away, and

one of them descended

one of them

to save

his fellow’s donkey from the river, and 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 rose by itself.

Meanwhile, the rescuer’s donkey rose from the river by itself.

What is [the law]?

Is his fellow obligated to pay him the payment that he fixed with him for the loss of the donkey, even though the donkey now rose by itself and was not lost, or not?

For there is room to say that when the rescuer’s donkey was swept away by the river, and they agreed between themselves that he would save his fellow’s donkey and refrain from saving his own donkey, and the other would pay him also for the loss of his donkey, it was already regarded as lost by its owner, and his fellow became obligated to pay him for it, for his refraining from saving it in order to trouble himself with saving his fellow’s donkey. And afterward, when the donkey rose from the river by itself, its owner acquired it as ownerless property, and his fellow’s payment obligation remains in force. Or perhaps, since in the end the donkey was nevertheless saved from the flooding, his fellow should not be obligated to pay for it?

He said to him

Rav said: He is obligated to pay him for the donkey that was swept away, for this is as though the donkey had died. And the fact that the donkey rose afterward,

the heavens took pity on him.

They took pity on him from Heaven and gave him a donkey as a gift.

As in the case of Rav Safra, who was traveling in a caravan,

he was journeying along the road in a caravan.

A certain lion accompanied them.

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

Every night, he would send it the donkey of one of them, and it would eat.

The members of the caravan stipulated among themselves that every night, according to turn, one of the members of the caravan would throw one of his own donkeys to the lion, and the lion would eat it.

When the turn of Rav Safra arrived,

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

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

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

Rav Safra hastened

Rav Safra hurried

and acquired it,

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

So too, the donkey that rose by itself from the river 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 rendered it ownerless, he rendered it ownerless with regard to the lion.

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

he did not render it ownerless with regard to everyone,

he did not render it ownerless for 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 and acquire it?

He said to him

Ravina:

Rav Safra acted for the sake of removing all doubt.

Indeed, according to the law Rav Safra did not need to go back and acquire his donkey, but he did so in order that there should be no dispute concerning the matter.

Rav asked Rabbi: “He descended to save”

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

“but he did not save,”

and in the end he 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 this is a question!”

You have asked well, and I shall answer you:

He has only his wage!