Bava Kamma 11a (יא.) — the Talmud in English

He must bring

the watchman

witnesses that it was torn apart through circumstances beyond his control, and he is exempt

from payment, since a paid watchman is exempt in cases beyond his control.

Abba Shaul says: He must bring the carcass to the court.

The verse, “He shall bring it as evidence,” teaches a different matter: If the animal was torn apart, the watchman must bring the carcass [called the eduda] to the court, so that they can appraise its value.

And in what do the first tanna and Abba Shaul disagree?

Is it not that they disagree over this:

It appears that they disagree over the law of the depreciation of the carcass. Certainly, the law that Abba Shaul derives from the verse cannot refer to a case in which the animal was torn apart through circumstances beyond the watchman’s control, since a paid watchman is exempt in such circumstances [as it is stated with regard to him: “or it was torn apart or it was taken captive,” Exodus 22:9]. Rather, it must refer to a case in which it was torn apart due to negligence. It is likewise clear that he does not mean that the court appraises the carcass according to its present value at the time of payment, so that he can pay with it, since Abba Shaul did not need to derive this law from the verse; it is already derived from the phrase “he shall return,” which teaches that one may even pay with inferior-quality goods, as stated above:

For he says,

Abba Shaul

holds that the depreciation of the carcass

belongs to the injured party.

It is therefore the injured party’s loss, and he must bring the carcass to the court, where they appraise how much it was worth at the time of death, and the one who caused the damage pays only the difference.

And he says,

the first tanna, who does not expound the verse as Abba Shaul does,

holds

that the depreciation of the carcass

belongs to the one who caused the damage,

and they do not appraise how much the carcass was worth at the time of death and deduct its value from the one who caused the damage’s liability. Rather, they deduct only its present value, when he gives it to the injured party in payment, by virtue of “he shall return.”

But the Gemara rejects this:

No,

Abba Shaul and the first tanna do not disagree on this matter. Rather,

everyone agrees that it belongs to the injured party.

They all hold that the depreciation of the carcass is borne by the injured party.

Here, they disagree over the trouble involved with the carcass.

Their disagreement concerns who bears the trouble of bringing the carcass and returning it to the possession of the injured party. Abba Shaul holds that the one who caused the damage must undertake the effort to bring it, and he derives this from the verse, “He shall bring it as evidence,” whose meaning is that the one who caused the damage must bring the eduda. But the first tanna does not expound the verse in this manner, and holds that the injured party must undertake the effort to bring the carcass.

The Gemara further cites that we find another tanna who holds that the effort of bringing the carcass is the responsibility of the one who caused the damage:

And it was taught

in a beraita [as an uncontested statement]:

Others say: From where

do we know that if an ox fell into a pit and died,

the owner of the pit

must undertake the effort

to raise

the dead

ox

from

his pit?

The verse states: “He shall return money to its owner, and the carcass.”

This implies that in addition to the money he pays the injured party, he must also return the carcass to its owner; that is, he is responsible for the effort of bringing the carcass.

The Gemara now presents Abaye’s question: For what purpose is it necessary to derive from a verse that the effort concerning the carcass is the responsibility of the one who caused the damage?

Abaye said to Rava: This effort concerning the carcass

that the Torah established as the responsibility of the one who caused the damage,

what are the circumstances?

To what case does this refer?

If you say that in the pit it is worth one dinar, while at the edge of the pit it is worth four,

if the case is one in which the carcass is worth one dinar inside the pit, but after it is removed to the edge of the pit it is worth four dinars—and it is reasonable that this is the reality, since when it is at the edge of the pit, where no effort is required to raise it, the carcass is worth more—then it is puzzling why a special derivation is needed for this, since

when he undertakes the effort, he is undertaking it for his own benefit!

The one who caused the damage who undertakes the effort to raise it does so for himself and his own benefit, because now, when the carcass is appraised for the injured party, it will be worth more, and he will have to pay less. If so, why was it necessary for the Torah to teach us this?

Rava said to him,

Rava said to Abaye:

It is necessary

for the verse only in a case

where in the pit it is worth one dinar, and at the edge it is also worth one dinar.

The carcass has the same value inside the pit and at its edge, and therefore the one who caused the damage derives no monetary benefit from raising it.

But the Gemara asks:

Is there such a circumstance?

Is it possible for a carcass to have the same monetary value inside and outside the pit?

The Gemara answers:

Yes—

indeed,

for people say: A beam in the city is worth one zuz; a beam in the field is worth one zuz.

As the common saying goes: A beam worth one zuz in the city is also worth one zuz in the field, despite the fact that it requires the effort of bringing it from the field to the city. So too, a carcass worth one zuz outside the pit is worth one zuz even inside the pit.

The Gemara now explains the law with regard to theft and robbery: Is the carcass appraised for the one from whom it was stolen, just as it is appraised for the injured party, or not?

Shmuel said:

The judges have adopted the practice that

they do not appraise

either for a thief or for a robber.

If a person stole an animal or robbed one and it died, or if he robbed utensils and they broke, they do not appraise the carcass or the broken pieces in order to give them to the owners and have the thief or robber return only the difference caused by the depreciation. Rather, they must pay with a superior animal or utensil, and the broken pieces remain with the thief or robber.

We find no case in which the broken pieces are appraised and only the difference is paid

except with regard to

the matter of

damages,

as we derived above from the verses: The carcass belongs to the owners.

Shmuel adds:

And I say, even for a borrower

the law is so [and the Gemara will immediately explain what the law is],

and Abba

[Rav]

agrees with me

that this is the law with regard to a borrower.

The Gemara discusses Shmuel’s intention:

It was raised as a dilemma:

The scholars in the study hall were uncertain: When Shmuel said, “even for a borrower,” does this refer to cases of damage, and

this is what he is saying:

Shmuel says: I hold that not only in cases of damage do they appraise, but

even for a borrower they appraise

the broken pieces,

and Abba

[Rav]

agrees with me

in this.

Or perhaps “even for a borrower” refers to a thief and a robber, and

this is what

Shmuel

is saying: And I say, even for a borrower they do not appraise. And Abba

[Rav]

agrees with me

in this.

The Gemara attempts to resolve the matter from a ruling issued by Rav:

Come and hear

the following incident:

There was a certain man who borrowed an ax from another,

and

broke it.

A man borrowed an ax from another and broke it.

He came before Rav,

to clarify his law.

Rav said to him:

Rav said to him:

Go and pay him for a superior ax.

Go and pay him the value of a good ax—that is, the value of the entire ax. You may not pay with the broken pieces and deduct their value from the payment.

From this ruling of Rav,

learn from it

that Rav

does not appraise

for a borrower. If so, when Shmuel said, “even for a borrower,” he meant that a borrower has the same law as a thief and a robber, for whom the broken pieces are not appraised, since Shmuel said that Rav agrees with him and holds this way in the matter.

The Gemara rejects this, saying that the incident proves the opposite:

On the contrary, from the fact that Rav Kahana and Rav Asi said to Rav:

Is it so that

this is the law,

that he is obligated to pay for an entire repaired utensil?! We said with regard to damages that the carcass is appraised for the injured party and the one who caused the damage pays only the difference. Logic dictates that here too the broken pieces should be appraised and returned to the lender, and he should pay only the difference.

And he was silent,

and Rav remained silent and did not answer them.

Learn from it

from his silence that he conceded their statement, and Rav held the opposite: that they

do appraise

the broken pieces for a borrower. If so, when Shmuel said, “even for a borrower,” it should be understood as meaning that even for a borrower they appraise, as in cases of damage, since Shmuel said that Rav agrees with him, and this is in fact Rav’s view.

The Gemara now cites a dispute between amoraim concerning Shmuel’s ruling:

It was stated: Ulla said that Rabbi Elazar said: They appraise

even

for a thief and a robber.

This is contrary to Shmuel!

Rav Pappi said: They do not appraise,

in accordance with Shmuel!

And the halakha

[the halakha is]:

They do not appraise either for a thief or for a robber. But for a borrower they do appraise,

and

in accordance with Rav Kahana and Rav Asi,

as they argued before Rav.

Following the statement cited in which Ulla said in the name of Rabbi Elazar, the Gemara cites additional statements that Ulla said in the name of Rabbi Elazar:

And Ulla said that Rabbi Elazar said:

A placenta that emerged

from the woman’s body during a prolonged birth, such that

part of it

emerged

on the first day, and part

emerged

on the second day,

even though no fetus was found in the placenta,

they count for her

the days of impurity

from

the

first day.

For there is no placenta without a fetus inside it, and therefore she is certainly impure with the impurity of childbirth. They count from the first day, because perhaps the fetus was in the part of the placenta that emerged on the first day. However, it is uncertain whether the fetus was male or female, and therefore she counts two weeks of impurity of childbirth, in case it was female.

The Gemara discusses this matter:

Rava said to Ulla:

Rava said to Ulla:

What is your reasoning?

Why did you say to count the fourteen days of impurity of childbirth from the first day on which the placenta emerged, and not from the following day, when the entire placenta emerged, at which point we know with certainty that the fetus was born? Apparently, this is because you ruled

stringently,

in order to be stringent and render impure all pure items with which she came into contact on the first day, due to the uncertainty that perhaps the fetus emerged already on the first day.

But this stringency

is a stringency that leads to leniency!

It is a stringency that leads to leniency, because although with regard to rendering impure the pure items with which she came into contact on the first day it is a stringency, on the other hand it is a leniency,

as it purifies her from the first day.

Since she begins counting the days of impurity of childbirth from the first day, on the fifteenth day after the birth [and after immersing], she has already begun the days of purity, and pure items with which she comes into contact will remain pure. Had she counted only from the second day, that day would still have been among the days of impurity, and she would render the pure items impure. Thus, the count that she begins on the first day is indeed a stringency with regard to the pure items with which she came into contact on the first day, but it is simultaneously a leniency with regard to the fifteenth day.

Therefore, Rava explains the statement of Rabbi Elazar as follows:

Rather, Rava said: As for concern —

she is concerned

from the first day that the fetus may have emerged, and therefore the pure substances that she touched on the first day are impure by uncertainty. However,

with regard to counting, she counts only from the second day.

She begins counting the days of impurity only from the second day, because perhaps the majority of the fetus did not emerge until the second day; and she begins counting the days of purity after completing the count of the days of impurity. Thus, because of the uncertainty, she does not become pure until the sixteenth day from the beginning of the birth.

The Gemara asks:

What does this teach us?

What did Ulla, in the name of Rabbi Elazar, come to teach us with this ruling, that she is concerned with regard to the first day? Did he come to teach us

that there is no partial placenta without a fetus,

and therefore, once part of the placenta emerged, it is certain that some part of the fetus also emerged; the only uncertainty is whether the majority emerged or only part of it, since the fetus is considered born only when the majority of it emerges. Because of the uncertainty, we are concerned that the majority had already emerged on the first day, and we render impure the pure substances that she touched then.

But if there can be part of a placenta without a fetus, we would not be stringent with regard to the first day because of the uncertainty, since there would be two uncertainties, a safek sefeika. The first uncertainty is that perhaps the fetus did not emerge at all with the part of the placenta that emerged on the first day; and the second is that even if the fetus did emerge then, perhaps the majority of it did not emerge.

However, since we hold that part of the fetus certainly emerged with the placenta, we must be concerned that the majority emerged on the first day, in which case it is considered born.

If this is what Ulla came to teach us, it is difficult, for

we already learned it:

we already learned this ruling in the Mishna [Chullin 77a], as we learned:

A placenta that partially emerged is forbidden for consumption.

The placenta of an animal is permitted for consumption through the slaughter of the mother if the placenta did not emerge before the slaughter. If part of it emerged before the slaughter of the mother, the entire placenta is forbidden for consumption, because

a sign of a fetus in a woman is a sign of a fetus in an animal.

The emergence of the placenta from a woman’s body is a sign that a fetus has been born within it, both in the case of a woman and in the case of an animal, because there is no placenta without a fetus; and even if the fetus is not seen within the placenta, we say that it dissolved. Therefore, with regard to that part of the placenta that emerged, we are concerned that the majority of the fetus may have been within it, and once the majority emerged, the fetus is considered born and is no longer permitted through the slaughter of its mother.

It has thus been established in the Mishna that there is no partial placenta without a fetus. If so, it is difficult: What did Ulla come to teach us?