Bava Kamma 116b (קטז:) — the Talmud in English

He raised an objection to him

Rav, to Rabbi: It is taught in a beraita:

One who hires a laborer

to bring cabbage and dormeskinnin

a type of herb

for a sick person, and he went and found that the sick person had died

or had recovered,

he gives him his full wage.

Here it is evident that although the laborer did not accomplish anything through his agency, nevertheless he must be paid his entire wage; so why here should he not have to pay him because he did not succeed in saving his donkey?

He said to him

Rabbi:

Are the cases comparable!?

The case of the beraita is not comparable to our case. For

there,

in the beraita,

the agent fulfilled his agency.

The agent fulfilled his mission, except that it was no longer necessary. But

here, the agent did not fulfill his agency.

The rescuer did not perform his mission at all, since he failed to save the donkey; therefore, he is entitled only to his wage.

The Sages taught

in a beraita:

A caravan that was traveling in the desert, and a troop rose up against it to plunder it

and they reached an agreement with the troop in exchange for a certain sum of money—

they calculate

each caravan member’s share of the expense

according to wealth,

according to the amount of money each one carries with him, so that one who has more money participates in the expense to a greater degree;

but they do not calculate

each caravan member’s share of the expense

according to

the number of

persons

in the caravan, because the troop came on account of the money, and did not come to take their lives, and therefore the payment made to the troop was for the money; consequently, each person’s share of the expense is calculated according to the money he has with him.

And if they hired a guide who travels before them—

a guide who shows them the way—then

they calculate

each person’s share of the expense for the guide

also according to the number of persons,

because losing one’s way in the desert is a danger to life, and therefore the expense is also incurred on account of the persons.

And they may not deviate

from the manner of payment for the guide

from the custom

of the donkey drivers,

according to the practice followed in that place in this matter. If the guides customarily collect from the members of the caravan according to the amount of money each person brings with him, or according to the number of persons in the caravan, they must pay according to the custom of the donkey drivers.

The donkey drivers

who set out in a caravan

are permitted to stipulate

among themselves

that anyone

among the donkey drivers

whose donkey is lost shall be provided with

by the caravan

another donkey,

so that he will take the donkey and devote himself to guarding with them at night against wild animals and bandits, and their stipulation is valid.

Nevertheless, even if they made this stipulation, if the donkey driver lost his donkey

be-khosya

through negligence—

they do not provide

him with another donkey. But if he lost the donkey

shelo be-khosya

without negligence—

they provide him with

another donkey.

And if

the donkey driver who lost his donkey said,

“Give me

its value, for I do not want an animal,

and I will guard

your donkeys with you”—

they do not heed him,

because when he has a donkey, he helps them guard, whereas when he has no donkey, he does not exert himself to guard the other donkeys. And if he says, “Give me the money and I will acquire a donkey for myself,” they do not heed him, lest he not acquire a donkey.

We ask: Why was it necessary to teach that they do not heed him?

It is obvious

that they need not give him the value of the donkey!

It was necessary

to teach this only in a case

where he has another donkey,

that is, he has another donkey.

Lest you say: He is guarding it,

we might have thought that since he has an additional donkey that he guards, he may demand the value of the lost donkey in place of the donkey itself.

It teaches us

the beraita that

the guarding of one is different from the guarding of two,

for guarding one donkey is different from guarding two, and he devotes himself more fully on behalf of two. Therefore, even if he claims that he guards better when he has only one donkey, they do not heed him, since he will devote himself more fully when he has two.

The Sages taught

in a beraita:

A ship that was traveling at sea, and a wave rose up against it

a wave

to sink it,

and they cast some of the cargo on it into the sea

and lightened its load—

they calculate

the amount each person must cast from his cargo

according to the load,

according to weight,

and they do not calculate according to

the value of the

money

of the cargo. Thus, if one person casts a weight of one hundred liters of gold, another may cast a weight of one hundred liters of iron.

And they may not deviate from the custom of the sailors,

so that if they customarily cast cargo according to the monetary value, they must follow their custom.

And the sailors

who sail together

are permitted to stipulate that anyone whose ship is lost shall be provided with another ship.

And if

his

ship

be-khosya

through negligence is lost—

they do not provide

him with another ship. But if his ship is lost

shelo be-khosya

without negligence—

they provide him with

another ship.

And if he deliberately steered

his ship

to a place where ships do not travel—

they do not provide

him with another ship.

And we ask:

It is obvious

that they do not provide him with another ship, since he was negligent in going to a place where ships do not travel.

And we answer:

It was necessary

to teach this only in a case

of Nisan,

when the river swells from the melting snow and rainwater,

when they keep a distance of one rope,

they keep the ship only one rope-length from the riverbank, since the water is deeper.

And in Tishrei,

when the river is smaller,

they keep a distance of two ropes,

they keep the ship two rope-lengths from the riverbank.

And he proceeded

and traveled in his ship

during the days of Nisan

into the depths of the river,

to the place

to which they travel during the period of

Tishrei,

and because the river is larger and stronger during Nisan, the ship sank.

Lest you say

we might have thought that

he followed his accustomed route,

he proceeded along the route he normally takes, and since he traveled along his usual route, he is not considered negligent;

it teaches us

that this is considered negligence.

The Sages taught

in a beraita:

A caravan that was traveling in the desert, and a troop rose up and plundered it

and robbed it,

and one of them stood up and rescued

the money from the troop—

what he rescued is shared among them,

meaning that they divide among themselves what he rescued, and each one takes his own property.

And if

the rescuer said,

“I will rescue

the money

for myself,”—

he rescued

the money

for himself,

and he need not divide it among the members of the caravan, since he rescued money of which the members of the caravan had despaired, and the money was ownerless.

We inquire about this:

What are the circumstances?

What is the case?

If

the case is one

where each one is able

of the caravan members

to rescue

his money from the troop, then

even the latter clause as well,

when the rescuer says that he is rescuing the money for himself, he must divide the money

among them,

and each one takes his own, because their money is not ownerless.

And if

the case is one

where each one is unable

of the caravan members

to rescue

his money from the troop, and only the rescuer was able to rescue it, then

even the first clause as well,

even if the rescuer said nothing, he may take all the money

for himself,

because their money is ownerless.

Rami bar Hama said: Here

here

we are dealing with partners.

We are dealing with partners. Although ordinarily a jointly owned asset cannot be divided without the consent of all the partners,

and it is such a case

in which the money was about to be lost, in such a case

one partner may divide without the knowledge of his fellow partner.

Therefore, if he

said

that he was rescuing it only for himself—

he divides,

he divides the jointly owned property and retains for himself the share that he rescued ; but if he

did not say

anything at the time he rescued it—

he does not divide,

he does not divide the jointly owned property, because it is customary to toil on behalf of the entire property even when only part of it belongs to him.

Rava said

to reconcile the beraita:

here

it is

with hired laborers

whom they hired to guard the caravan

that we are dealing,

and it is referring to a case where the other people in the caravan are unable to save their property,

in accordance with Rav, as Rav said: A laborer may withdraw

even in the middle of the day.

Therefore,

so long as he has not withdrawn

as long as the laborer has not withdrawn from being a laborer,

it is considered to be in the possession of the employer,

the property he saved is considered to be in the employer's possession.

But when he withdraws

and when he withdraws from being a laborer, he acquires it for himself as ownerless property, because no one else can save the property and it has become ownerless.

The fact that a laborer may withdraw is not because every laborer is not in the employer's possession; rather,

there is another reason:

he may withdraw for another reason,

as it is written:

[Leviticus 25:55]

“For the Children of Israel are servants to Me,”

and they expound: The Children of Israel are servants only to the Lord,

and not

do they become

servants

to servants,

meaning, they do not become servants to others who are servants [of the Lord] . A laborer is not like a slave, and therefore he may withdraw from that point onward.

Rav Ashi said

to reconcile the beraita: It is referring to a case

where each person can

each person

save

his property

with difficulty.

Therefore, if the one who saves

makes his position known

he has made known that he is saving the property for himself—the one who saves takes the property

for himself,

because the fact that the owners heard him and remained silent, and did not exert themselves to save it, indicates that they had diverted their attention from the property and revealed that they had despaired of it and were unwilling to endanger themselves to save it.

But if the one who saves

does not make his position known

that he is saving the property for himself, he has saved it

for the common pool,

and each person takes his own property, since there is no proof that the owners despaired of their property.

But in a case where each person can save his property without difficulty, even if they heard the one who saves say that he is saving the property for himself and remained silent, the one who saves has not acquired their property, since presumably they did not despair of their property.

Mishna:

Our Mishna discusses one who robs land, and others take it from him, or a river washes it away: How does he return the stolen property?

The robbery of land differs from the robbery of movable property, since land cannot be robbed, and it always remains in the possession of its owners. If the robber sold it to another, the owners take it from the purchaser without payment, and the purchaser brings a claim for his money against the robber who sold it to him.

One who robs a field from another, and raiders took it —

bandits robbed it from the robber,

if it is a widespread calamity

such that they also took the fields of others ,

he says to him

the robber says to the owner of the field:

Here is

the field

before you;

if you wish, take it, since even if the field had been in your possession, they would have taken it.

If it was because of the robber,

meaning that gentiles forced him to show them all his fields, and he showed them this stolen field as well,

he is obligated

the robber

to provide him with

for the owner of the field

another field.

Gemara:

Rav Nahman bar Yitzhak said: The one who teaches

the version of the Mishna

“raiders,” is not in error, and the one who teaches

the version of the Mishna

“oppressors” is not

in error.

The one who teaches “oppressors” is not in error, as it is written:

[Deuteronomy 28:53]

“In siege and in oppression .”

And the one who teaches “raiders” is not in error, as it is written:

[Deuteronomy 28:42] “All your trees and the fruit of your soil

the locust shall inherit,”

meaning that the locust will make it its own and rob [the poor] of the fruit.

And we translate it: “The locust shall inherit it,”

which is an expression of “raiders.”

We learned in the Mishna:

“If it was because of the robber”—

the robber is obligated

.

And we raised a difficulty concerning it:

What are the circumstances

of the case in which the robber is obligated to provide another field for the owners?

If we say that they forcibly took his land but did not forcibly take all the land

if the case concerns one in which they robbed only his field but did not rob the fields of others,

you have already learned it from the first clause.

For we already learned from the first clause of the Mishna that he is liable in such a case, as it says in the first clause:

“If it is a widespread calamity,”

meaning that they took the fields of all the city's residents, the robber says to the owner of the field, “Here is your field before you.” The precise implication is that

if not

they took the fields of others, the robber

may not

say to the owner of the field, “Here is what is yours before you”; rather, he must provide the owners with another field.

And we answer:

It is not necessary,

the law in the latter clause was written only to teach that he is liable even in a case of

pointing it out,

where he himself did not steal it; rather, he heard from the king’s officials that they were seeking to seize fields, and he showed them, “Take this field belonging to so-and-so.”

Alternatively: What are we dealing with here?

The latter clause is discussing a case

where gentiles seized him and said to him, “Show us your fields,”

that is, show us your fields,

and he showed them that one together with his own.

He showed them that field belonging to so-and-so along with his own fields.

An incident occurred:

A certain man pointed out the wheat heap belonging to the house of the Exilarch

to the oppressors.

He came before

him

Rab Naḥman

so that he could rule on his case.

Rab Naḥman obligated him to pay

the owners another field.

Rab Yosef was sitting behind Rav Huna bar Ḥiyya, and Rav Huna bar Ḥiyya was sitting before Rav Naḥman. Rav Huna bar Ḥiyya said to Rav Naḥman:

Is the obligation imposed on an informer to pay the owners another field

a legal obligation or a fine ?

He said to him: It is a Mishna!

As we learned: If on account of the robber

the gentiles seized the stolen field

he is obligated to provide him with

the owner of the field

a field

elsewhere.

And we established

this law in the Gemara

as referring to pointing it out,

where he himself did not steal it; rather, he heard from the king’s officials that they were seeking to seize fields, and he showed them, “Take this field belonging to so-and-so.” In such a case, the Mishna obligated him to provide the owner of the field with another field.