Bava Kamma 117a (קיז.) — the Talmud in English

After he left

Rav Naḥman

Rav Yosef said to Rav Huna bar Ḥiyya: What difference does it make to you?

What difference in the law results for you from this?

Is it a matter of law or a fine?

He said to him: If it is a matter of law,

that the moser must pay

we derive from it,

learning from this case involving Rav Naḥman to the other cases of geramei nezikin and other forms of indirect damage.

If it is a fine,

that Rav Naḥman imposed a fine because he was accustomed to doing this—

we do not derive from it.

We do not learn from this case to apply elsewhere.

And from where do you say

from where can you say

that we do not derive from a fine?

As it was taught in a beraita: At first, they would say: One who renders

his fellow’s ritually pure produce impure [for example, teruma], so that it is now fit only to be burned,

or one who pours

his fellow’s wine as an offering to idolatry, thereby prohibiting the wine from benefit—although the damage is not visibly discernible, he is liable to pay for the damage he caused.

After some time,

the Sages returned

and

said: Even one who mixes,

if he mixes his fellow’s non-sacred produce with teruma, thereby reducing the monetary value of the non-sacred produce, since from that point it may be sold only to priests, he must pay his fellow for the damage.

And it is precise from the beraita: Only because

they returned—

yes,

he is liable to pay. But if

they had not returned, he would not

have been liable to pay.

What is the reason

that we would not have derived from the case of one who renders produce impure and one who pours wine that one who mixes produce must pay?

Is it not

the case that

because it is a fine, and we do not derive from a fine?

Rather, only in the specific circumstance for which the Sages imposed a fine do they impose one.

And it is thereby proven from the beraita that one does not derive from an obligation imposed as a fine in one place to impose liability in similar cases as well. We reject this:

And we reject this proof:

No,

one cannot prove from the beraita that an obligation is not derived from a fine. Rather, the reason that we would not have derived the case of mixing from the case of pouring wine is that

at first they thought

that only

a substantial loss was of concern

to the Sages as a basis for imposing a fine, as in the case of one who renders teruma impure, where he caused a substantial loss, since the teruma is no longer fit to be eaten. But

with regard to a minor loss,

such as one who mixes produce, where the produce remains fit to be eaten by priests and is prohibited only to Israelites,

they were not concerned

to impose a fine.

And ultimately they thought

that

a minor loss is also a concern.

And we raise an objection:

Is that so?

You cannot explain it this way—that at first they were not concerned to impose a fine for causing a minor loss, and ultimately they returned to impose a fine for a minor loss.

For

the father of Rabbi Avin taught

a beraita with a slightly different version from the one cited above, and according to his version there is no basis for this explanation. This is his version:

At first they would say: One who renders impure or mixes

is liable to pay for the damage;

they returned to say: Even one who pours

is liable to pay.

But pouring wine causes a greater loss than mixing produce, and nevertheless it was only because

they returned

that the Sages made him liable to pay.

Yes,

he is liable to pay; but if

they had not returned

to make him liable,

he would not

have been liable for the damage caused by pouring the wine.

What is the reason

that we would not have derived the liability of one who pours wine—even though it causes a greater loss—from the case of one who mixes produce? Is it

not because we do not derive from a fine?

We reject this:

No,

this is not the reason that we would not have derived the liability of one who pours wine from the case of one who mixes produce.

Rather, the reason that at first we would not have made one who pours wine liable is that

at first they thought in accordance with Rabbi Avin,

who said that one who pours wine is exempt because kam lei bid’rabba minei—when one act entails both a capital liability and a monetary liability, the capital liability exempts him from payment.

And ultimately they thought in accordance with Rabbi Yirmeya,

who said that the exemption of kam lei bid’rabba minei does not apply to pouring wine as an offering to idolatry.

The Gemara now explains the dispute between Rabbi Avin and Rabbi Yirmeya:

One of the thirty-nine prohibited labors of Shabbat is the labor of carrying. Included in this prohibition is carrying an object four cubits in the public domain. In order to incur liability, two conditions are required: a. lifting the object from the place where it was resting; b. placing the object after it has been carried. If he did not perform both of these acts, he has not violated the labor of carrying.

At first they thought in accordance with Rabbi Avin, for Rabbi Avin said: If one threw

on Shabbat

an arrow

in the public domain

from the beginning of four

cubits

to the end of four

cubits

and it tore

the arrow

silk garments [

clothing ]

as it traveled,—

he is exempt

from paying for the clothing that he tore.

For the lifting

when he lifted the arrow from the place where it was resting

is necessary for the placing, and he incurs a capital liability

for lifting the arrow and placing it four cubits away. Since, between lifting the arrow and placing it, he tore the clothing, the act violating Shabbat and the act of tearing occurred simultaneously, and he is exempt from monetary liability under the principle of kam lei bid’rabba minei: he is exempt from the monetary obligation because of the capital liability that he incurred at that moment. We do not say that from the moment of the tearing, before the arrow came to rest, he incurred a monetary obligation for tearing the garment, while he incurred the capital liability only when the arrow came to rest. The Sha’ar HaMelekh (Laws of Theft 3:2) raises a contradiction within Rambam. Rambam ruled in the Laws of Theft there in accordance with Rabbi Avin that if one threw an arrow on Shabbat and it tore silk garments, he is exempt because the lifting is necessary for the placing. Yet he also ruled there (3:5), regarding the fourfold and fivefold payment, that if one stole and sold on Shabbat, and the purchaser told him that he did not acquire it until it came to rest in the courtyard, the prohibitions of Shabbat and the sale obligation occurred simultaneously, and he is exempt from the fourfold and fivefold payment; but if he acquired the stolen property as soon as it entered the airspace of the courtyard, he is liable for the fourfold and fivefold payment, since the monetary obligation preceded the Shabbat liability. The Sha’ar HaMelekh asks: Since Rambam rules in accordance with Rabbi Avin, there is no need to establish the case where he said, “Do not acquire it until it comes to rest in the courtyard.” Even if the stolen property was acquired before it came to rest in the courtyard, he should be exempt under the principle of kam lei bid’rabba minei. The Gera'nt, the Rashash, and the Kehillot Yaakov cite the Meiri above (70b), who wrote that Rabbi Avin and Rabbi Yirmeya do not actually dispute one another. Specifically with regard to damages, as in the case of tearing silk garments, we say that the lifting is necessary for the placing; but we do not say this with regard to a sale, as in the obligation of the fourfold and fivefold payment. The Shita Mekubetzet similarly wrote above (31b) in the name of an earlier shita. The Gera'nt and the Rashash explain—and the Imrei Moshe wrote similarly (section 31)—that there are two forms of kam lei bid’rabba minei. First, when one performs a single act that entails both a capital liability and a monetary liability, he cannot be made liable for both obligations on account of one act. Second, when he performs two acts whose liabilities take effect at the same moment, such as a non-priest who eats teruma and tears his fellow’s silk garments, as discussed in Ketubot (30b), where the two liabilities cannot take effect simultaneously. In the case of one act, the principle of kam lei bid’rabba minei applies even if the liabilities take effect at different times: one cannot impose both a capital and a monetary liability for the same act. It is on this basis that the one who throws an arrow and tears silk garments is exempt because the lifting is necessary for the placing: since this is one act, he cannot be made liable monetarily for an act that makes him liable capitally. But in the case of “Throw your theft into my courtyard,” the fourfold and fivefold obligation is not because of the act of throwing. Rather, it is because the stolen property is lying in the courtyard and the recipient acquires it there; indeed, if the object entered the courtyard on its own, he would also acquire it. Thus, the Shabbat liability and the fourfold and fivefold liability relate to two different acts: the Shabbat liability is for the act of throwing, while the fourfold and fivefold liability is for the transfer of ownership. With two separate acts, we do not say that the lifting is necessary for the placing. On this basis, the Gera'nt and the Rashash answer the question of the Hafla'a (Ketubot, there): Why did Rabbi Avin state the case of one who threw an arrow and it tore silk garments as it traveled, rather than state the more novel case of one who shot an arrow and, while the arrow was traveling, tore his fellow’s silk garments with his hands? The answer is that we say the lifting is necessary for the placing specifically when the arrow itself tears the garment, since the capital and monetary liabilities result from the same act—the throwing of the arrow. But if the one who shot the arrow tore the garment with his hands, since this was a separate act, there is no exemption of kam lei bid’rabba minei: these are two acts and two liabilities that do not occur at the same moment, since the tearing of the silk garment preceded the Shabbat liability. In his novellae on the Talmud (Ketubot 31a; also cited in Even HaAzel, Laws of Theft 3:2, s.v. veshamati), Rabbi Ḥayyim Soloveitchik answers Rambam by distinguishing between carrying four cubits in the public domain and carrying out from one domain to another. One who carries four cubits is liable for all four cubits; all four cubits contribute to the liability and constitute the prohibited act, since if he carried less than four cubits he would be exempt. In this case, Rabbi Avin said that there is an exemption of kam lei bid’rabba minei from the time of lifting. But regarding “Throw your theft into my courtyard,” which involves carrying from the public domain into the private domain, only the lifting and the placing generate the liability and constitute the prohibited act. If he incurred a monetary obligation in the interim, there is no prohibited act carrying a capital liability that could exempt him from payment. The Kehillot Yaakov (Ketubot, section 32) rejects Rabbi Ḥayyim’s answer based on the Ba’al HaMaor (the beginning of chapter HaZorek, 96b), who explains that the nature of the prohibition against carrying four cubits in the public domain is that a person’s four cubits acquire for him and are considered like a private domain; it is therefore considered as carrying out from a private domain to a public domain. Accordingly, even when carrying four cubits, the prohibited act consists only of the lifting and the placing. However, Rambam’s words (Laws of Shabbat 13:17) indicate that he did not accept the Ba’al HaMaor’s position.

The same applies to one who pours wine as an offering to idolatry. Although he is not worshipping idolatry at the time that he lifts the wine, since lifting the wine is necessary for pouring it, the capital liability for idolatry and the monetary liability for the loss of the wine occur simultaneously, and he is exempt from payment because of the capital liability.

And ultimately

the Sages reconsidered their position and

thought in accordance with Rabbi Yirmeya, for Rabbi Yirmeya said: From the moment of lifting,

when he lifted it with the intention of stealing it,

he acquired

the wine and

became liable monetarily,

but

he incurs a capital liability

because of idolatry

only at the time of pouring.

Since the capital liability does not arise at the time of the monetary liability, he is not exempt from the monetary liability because of the capital liability. The Torat Gittin (there, 52b) likewise asks that the Mishna there says “one who pours,” implying that the case applies even when he does not intend to steal. The Torat Gittin, Pri Yitzḥak (part I, section 58, s.v. venireh), and Shi’urei Rabbi Shmuel (Gittin, section 341) explain Rashi’s intent as follows: He lifted it in order to pour it, and lifting it in order to pour it is itself considered an act of theft. They bring proof from the Gemara above (98a), which says that one who takes his fellow’s coin in order to throw it into the sea is considered a thief. The Oneg Yom Tov also asks: Why did Rashi need to explain that he lifted it with the intention of stealing? Even if he did not intend to steal, he should be liable, as in the case of one who takes a coin in order to throw it into the sea. He answers that the cases differ: There, he lifted the coin with the intention not to return it to its owners, and therefore he is called a thief. In the case of one who pours wine, by contrast, he wants to return it to its owners, and poured wine is considered a return, since the damage is not visibly discernible. Therefore, he is not considered a thief unless he lifted it with the intention of stealing it. The Rashba explains in Gittin that Shmuel disputes Rav and interprets the case as one who mixes, not one who pours, because the Mishna says “one who pours” without qualification and does not even state that he lifted it with the intention of stealing. It is clear from the Rashba that one who lifts it with the intention of stealing is liable, but one who lifts it with the intention of pouring it is exempt. The Terumat HaKeri (386:3) asks from the Gemara above (98a), which proves that one who lifts an object with the intention of destroying it is liable for theft. Rabbi Ḥayyim (Laws of Wounding and Damaging, s.v. ella) likewise wrote that one who lifts it with the intention of pouring it is liable because he lifts it with the intention of destroying it. He distinguished, however, that this law applies only when he himself destroys the object, as in the case of one who pours wine; but if the object will be lost on its own, such as bandits who remove an animal and it runs away and is lost by itself, he is not liable for theft. The Meiri (Gittin 52b) likewise wrote that there is no exemption of kam lei bid’rabba minei because he acted inadvertently. He also offered an additional explanation, like the Gemara here: the capital and monetary liabilities do not occur simultaneously, since from the moment of lifting he is liable monetarily, while he incurs the capital liability only at the time of pouring. It is difficult why Rambam offers a different answer and does not give the answer of the Gemara, especially since Rambam himself, in the Laws of Wounding and Damaging (7:6), gives the answer of the Gemara. The Pri Ḥadash (in his glosses Mayim Ḥayyim to Rambam, Laws of Wounding and Damaging, there) asks that the accepted halakha is that even in an inadvertent act the principle of kam lei bid’rabba minei applies, based on the teaching of the school of Ḥizkiyya, as explained in Ketubot (35a). The Divrei Yeḥezkel (26:10), in the name of Rabbi Yosef of Ponevezh, explains that Rambam found Tosafot’s question difficult (Gittin 52b, s.v. menassekh): What is the Gemara’s answer, “From the moment he lifted it he acquired it”? After all, the lifting was for the purpose of pouring it, and if so, there should be kam lei bid’rabba minei, just as the lifting is necessary for the placing. Rambam therefore answered that one can say that the lifting is necessary for the placing, and that the lifting is necessary for the pouring, only in an intentional act, since the lifting is part of the capital liability. In an inadvertent act, where there is no capital liability, kam lei bid’rabba minei applies only at the time of the pouring itself. Consequently, there is a monetary liability for the lifting, and Rambam is not offering an additional answer beyond the answer of the Gemara. The Meiri, however, understood Rambam as intending to offer a second explanation for why kam lei bid’rabba minei does not apply. Tosafot in Sanhedrin (79a, s.v. umafka) explicitly disagree and hold that even in an inadvertent act we say that the lifting is necessary for the placing.

Rav Huna bar Yehuda happened to come to

a place called

Bei Avioni. He came before Rava, and he said to him

Rav Huna bar Yehuda said to Rava:

Has any case come before you

for adjudication?

He said to him: A Jew whom gentiles coerced and who showed them his fellow’s money came before me, and I held him liable

to pay his fellow for the loss he caused him.

He said to him: Return the case to its owner

—retract the ruling in which you held him liable.

As it was taught

in a beraita:

A Jew whom gentiles coerced and who showed them his fellow’s money—

is exempt; but if he took it and handed it over—

he is liable,

since he saved himself through his fellow’s money. But in the case that you adjudicated, he did not take it and hand it over. The Nimukei Yosef wrote that according to Rashi, the case of one who took the property and handed it over refers to one who was not under coercion, whereas one who was under coercion is exempt. Tosafot Rid, Ḥiddushei Anshei Shem, and Hagahot Ma’aseh Ilfas (in the margin of Rif) likewise wrote that Rashi holds that one who acted under coercion is exempt. They proved this from Rashi’s explanation that if he took the property and handed it over he is liable because he saved himself through his fellow’s money, which implies that he was not required to give his fellow’s money and himself chose to save himself through it.

Rabba said:

If he showed it on his own initiative,

without the coercers forcing him to show it,

it is considered like taking it and handing it over

and he is liable. Tosafot wrote above (5a, s.v. lemalutei) that even one who does not adjudicate dina de-geramei holds a moser liable as a fine, in chapter HaGozel Baḥaron. The Ketzot HaḤoshen (386:1) wrote that their intent is to prove from our passage that Rabba here holds him liable even though he does not hold him liable under dina de-geramei. The Nimukei Yosef writes that according to Rif’s view—that the case of one who took the property and handed it over involves coercion—the case in which he is exempt when he merely showed it also involves coercion. But if he was coerced by gentiles in general and showed his fellow’s property, he is included in the category of one who showed it on his own initiative and is liable.

A case:

A certain man was coerced by gentiles and indicated a barrel of wine

and pointed to his wine,

which belonged to Rav Mari, son of Rav Pinhas, son of Rav Ḥisda. They said to him: Carry it and bring it with us

Carry the wine and bring it with us to the king’s palace,

and he carried it and brought it with them

and he carried and brought the wine with them.

It came

This incident came

before Rav Ashi, and he exempted him

He exempted him from payment.

The Sages said to Rav Ashi:

Why did you exempt him?

But was it not taught in a baraita: If he carried it and handed it over himself—

he is liable!

In this case, too, he himself carried the wine with the coercers to the king’s palace.

He said to them: These words

This ruling applies specifically

where they had not originally stationed him over it

where the coercers did not initially coerce him regarding the property; rather, he went and took it and handed it over to them,

but where they had originally stationed him over it

where the coercers coerced him and stationed him over the wine so that he would show it to them—

it is considered completely burned

the property is considered as though it had been burned, since it was already lost to its owners. At the moment when he showed them the wine and caused its loss, he was exempt; and when he carried the wine with them, he was carrying the coercers’ wine.

Rabbi Abbahu raised an objection to Rav Ashi:

We learned in a baraita:

A coercer said to him: Hand me a bundle

a bundle

of sheaves, or this cluster of grapes, and he handed it to him—

he is liable!

Even though the coercer was standing over the property, since he carried it and handed it over himself, he is liable. It is evident from the baraita that he is liable when he carried and handed it over himself even when they coerced him regarding the property.

And he answers:

What are we dealing with here?—

For example, the coercer was standing

the coercer was standing

on the two banks of the river

on the two banks of the river: The coercer was on one side of the river and the sheaves were on the other. If he did not hand the sheaves to the coercer himself, the coercer could not take them. Therefore, in that case he is liable for handing them to the coercer.

This is also precise, as it teaches: “Hand me”

to me

and it does not teach: “Give”

to me;

learn from this

that it is speaking of a river that requires him to hand the item across the river, and therefore he is liable.

A case:

A certain fishnet

a net for fish or animals

over which two people were quarreling

two people quarreled over it:

This one said, “It is mine,” and that one said, “It is mine,”

this one said it was his, and that one said it was his.

One of them went and handed it over to the king’s treasury

one of them went and handed the net over to the king’s treasury.

Abaye said: He can

that one

say: When I handed it over, I handed over my own

I handed over my own to the king’s treasury.

Rava said to him: Is that claim within his power?

Can he make such a claim? They are disputing ownership of the net, and it is not in his possession, until he proves that it is his.

Rather, Rava said: We excommunicate him

we place him under a ban,

until he brings it and stands for judgment

until they bring it to the court and he stands trial, to determine whether it is his.

A case:

A certain man wished to point out his fellow’s straw

there was a man who wished to hand his fellow’s straw over to coercers,

and he came before Rav, who said to him

Rav said to him:

Do not point it out, and do not point it out

Do not hand it over, and do not hand it over.

He said to him

to Rav:

I will point it out, and I will point it out

I will hand it over, and I will hand it over.

Rav Kahana was sitting before Rav

at that time,

and he broke his neck

his neck

from him,

he broke his neck and killed him.

Rav recited over him:

Isaiah 51:20

“Your sons have fainted

from lack of bread and water, dying of hunger and the sword

They lie at the head of every street

and there is no one to bury them

like a wild ox in a net

like a wild ox caught in a net, which remains where it was caught and cannot move from its place

‘What is this wild ox

the wild ox

once it has fallen into a net

a trapping net

there is no compassion for it; so too, once Jewish property has fallen into the hands of gentiles, there is no compassion for it.’

Rav said to Rav Kahana

who had killed the informer:

Kahana, until now there were Persians here who were not particular about bloodshed

until now there were Persians here who were not particular about bloodshed and did not punish the killer, but

now there are Greeks here who are particular about bloodshed and say, “A murderer must be killed.”

and now there are Greeks here who are particular about bloodshed and say, “A murderer must be killed.”

Therefore

Rise and go up

go up

to the Land of Israel, and accept upon yourself that you will not raise difficulties

and accept upon yourself that you will not raise difficulties

to Rabbi Yoḥanan for seven years.

He went and found

he went and found

Reish Lakish sitting and reviewing the day’s lecture for the Sages

he was repeating to them what Rabbi Yoḥanan had taught that day, because Reish Lakish was a great Sage; after everyone had heard it from the teacher, he would repeat it and establish it in their minds.

He said to them

Rav Kahana said to the Sages:

Where is Reish Lakish?

They said to him: Why?

He said to them: This difficulty and this difficulty, and this answer and this answer,

these are the difficulties that I have to raise and these are the answers that I have to give regarding the lesson.

They told Reish Lakish

Rav Kahana’s words.

Reish Lakish went and said to Rabbi Yoḥanan: A lion has come up from Babylonia; let the master examine the academy’s lesson for tomorrow

so that the teacher would prepare tomorrow’s lesson thoroughly.

The next day they seated him in the first row

they seated Rav Kahana in the first row of those sitting

before Rabbi Yoḥanan,

for there were seven rows of students sitting before Rabbi Yoḥanan, each one farther back than the one before it.

He said

Rabbi Yoḥanan

a teaching

one statement

and Rav Kahana did not raise a difficulty

against it. Rabbi Yoḥanan said

another teaching

another statement

and he did not raise a difficulty.

Each time Rabbi Yoḥanan stated a teaching and Rav Kahana did not raise a difficulty against it,

they moved him back

they moved him back one row, until they moved him

seven rows

rows

until they seated him in the last row

until he was sitting in the last row.

Rabbi Yoḥanan said to Rabbi Shimon ben Lakish: The lion you mentioned

and by which you referred to Rav Kahana

has become a fox!

Rav Kahana said

Rav Kahana said:

May it be the will of Heaven that these seven rows become a substitute for seven years,

may it be the will of Heaven that these seven rows to which they moved me backward be counted as a substitute for the seven years

that Rav told me

for Rav decreed that I not raise difficulties to Rabbi Yoḥanan.

He rose to his feet,

Rav Kahana stood on his feet,

he said to him

Rav Kahana said to Rabbi Yoḥanan:

Let the master go back to the beginning

let the teacher repeat his opening remarks.

He said

Rabbi Yoḥanan

a teaching, and he raised a difficulty

Rav Kahana raised a difficulty, and he raised a difficulty against every teaching that Rabbi Yoḥanan stated, until

they seated him in the first row,

they once again seated him in the first row before Rabbi Yoḥanan.

Rabbi Yoḥanan continued and

said a teaching

and Rav Kahana continued

to raise difficulties.

Rabbi Yoḥanan was sitting on seven cushions

he was sitting on seven cushions.

Because of the difficulty that Rav Kahana raised against him,

they removed one cushion from beneath him

they took one cushion out from under him.

Again,

Rabbi Yoḥanan said

Rabbi Yoḥanan

a teaching, and Rav Kahana raised a difficulty against it

Rav Kahana raised a difficulty against him, and they removed another cushion from beneath him,

until they removed all the cushions from beneath him

until they had removed all the cushions beneath him,

until he sat

on the ground

until Rabbi Yoḥanan was sitting on the ground.

Rabbi Yoḥanan was an old man, and his eyebrows were drooping,

Rabbi Yoḥanan was elderly, and his eyebrows were large and covered his eyes.

He said to them

to his attendants:

Lift my eyes so that I can see him,

lift my eyebrows so that I can see Rav Kahana.

They lifted them with silver tweezers,

they lifted his eyebrows with silver tweezers.

He saw that Rav Kahana’s lips were split,

Rabbi Yoḥanan saw that Rav Kahana’s lips were split; this was due to an injury, which had torn his lip.

He thought

Rabbi Yoḥanan thought that

he was laughing and mocking him,

that Rav Kahana was laughing at him.

His mind was distressed

Rabbi Yoḥanan’s mind was distressed

and his soul departed

Rav Kahana’s soul departed, and he died because of Rabbi Yoḥanan’s indignation.

The next day Rabbi Yoḥanan said to the Sages: Did you see how that Babylonian acted?

Did you see what that Babylonian did to me?

They said to him: That is his way,

that was Rav Kahana’s manner, and it was not laughter.