Bava Kamma 11a — the Talmud in English

He shall bring

the guardian

witnesses that it was torn by unavoidable circumstances, and he is exempt

from paying, since a paid guardian is exempt for unavoidable circumstances.

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

The verse, “He shall bring it as a witness,” comes to teach another matter: if the animal was torn, the guardian shall bring the carcass [which is called the carcass] to the court, so that they may assess how much it is worth.

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

Is it not that they disagree in this,

that it appears that they disagree concerning the law of the depreciation of the carcass? For certainly, this law that Abba Shaul learned from the verse does not refer to a case in which the animal was torn through unavoidable circumstances, since a paid guardian is exempt for unavoidable circumstances [as it is stated concerning him, “or it was broken or captured,” Exodus 22:9]. Rather, it refers to a case in which it was torn through negligence. And it is likewise clear that his intention is not to say that the court should assess the carcass according to how much it is worth now, at the time of payment, so that he can pay with it, for Abba Shaul did not need to derive this law from the verse, since it is already learned from “he shall return,” that one may pay even with inferior-quality goods, as above:

For he says,

Abba Shaul

holds: the depreciation of the carcass—

belongs to the injured party.

It is the loss of the injured party, and therefore he shall bring the carcass to the court, so that they may assess how much it was worth at the time of death, and the one who caused the damage shall pay only the difference.

And he says,

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

holds

that the depreciation of the carcass

belongs to the one who caused the damage,

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

But the Gemara rejects:

No,

Abba Shaul and the first tanna did not disagree in this matter. Rather,

everyone agrees that it belongs to the injured party.

Everyone holds that the depreciation of the carcass is borne by the injured party.

And here, they disagree concerning the trouble of the carcass.

Their disagreement concerns upon whom the trouble of bringing the carcass rests, to return it to the possession of the injured party. Abba Shaul holds that the one who caused the damage must take the trouble to bring it, and he learned this from the verse, “He shall bring it as a witness,” whose meaning is that the one who caused the damage shall bring the carcass. But the first tanna does not expound the verse in this manner, and holds that the injured party must take the trouble to bring the carcass.

And the Gemara brings that we have found another tanna who holds that the trouble of bringing the carcass is upon the one who caused the damage:

And it was taught

in a beraita [as a straightforward statement]:

Others say: From where

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

the owner of the pit

must take the trouble

to bring up

the

ox

that died

from his pit?

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

This implies that besides the money that he pays to the injured party, he shall also return the dead animal to its owner; that is, he is responsible for taking the trouble to bring the carcass.

The Gemara now brings Abaye’s question: for what purpose is it necessary to learn from a verse that the trouble of the carcass is upon the one who caused the damage:

Abaye said to Rava: This trouble of the carcass

that the Torah established as being upon the one who caused the damage,

what are the circumstances,

in what case does this refer?

If you say that in the pit it is worth one zuz, and at the edge it is worth four,

if it refers to a case in which the carcass inside the pit is worth one zuz, and after it has been brought up to the edge of the pit it is worth four zuz—and presumably this is the reality, since when it is at the edge of the pit, where there is no need to take the trouble to bring it up, the carcass is worth more—if so, it is puzzling why a special derivation is needed for this, since

when he takes the trouble, he takes the trouble for himself!

The one who caused the damage who takes the trouble to bring it up does so for himself and for his own benefit, because now, when the carcass is assessed for the injured party, it will be worth more, and he will have to pay less; and if so, why did the Torah need to teach us this?

He 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 zuz, and at the edge it is also worth one zuz.

The carcass is worth the same amount both when it is inside the pit and when it is at the edge of the pit, and therefore the one who caused the damage gains no monetary benefit from this.

But the Gemara wondered:

Is there such a case?

Can there really be such a situation in which the carcass has the same monetary value inside the pit and outside it?

The Gemara answers:

Yes—

indeed,

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

As the popular 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 trouble of being brought from the field to the city. So too, a carcass worth one zuz outside the pit is also worth one zuz inside the pit.

The Gemara now brings how the law applies to theft and robbery: do they assess the carcass for the one from whom it was stolen, just as they assess it for the injured party, or not?

Shmuel said:

the judges were accustomed that

they do not assess

either for a thief or for a robber.

If a person stole or robbed an animal and it died, or robbed utensils and they broke, they do not assess the carcass and the fragments in order to give them to the owners, with the thief and the robber returning only the difference of the depreciation. Rather, they must pay a superior animal or utensils, and the fragments remain with the thief and the robber.

And we find that they assess the fragments and pay only the difference

only with regard to

the matter of

damages,

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

And Shmuel adds:

And I say, even for a borrower

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

and my father [

Rav]

agrees with me

that this is the law concerning a borrower.

The Gemara discusses Shmuel’s intention:

They raised a dilemma,

they were uncertain in the beit-midrash: when Shmuel said, “even for a borrower,” does this refer to damages, and

this is what he is saying

Shmuel: I hold that they assess not only concerning damages, but

even for a borrower they assess

the fragments,

and my father [

Rav]

agrees with me

in this.

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

this is what he is saying

Shmuel:

And I say: even for a borrower they do not assess. And my father

[Rav]

agrees with me

in this.

The Gemara attempts to resolve the law from a ruling of Rav:

Come and hear,

come and learn from the following incident:

a certain man borrowed an ax from his fellow,

and

broke it,

an incident occurred with a man who borrowed an ax from his fellow and broke it.

He came before Rav,

he came to Rav to clarify his law.

Rav said to him

Rav said:

Go, pay him a superior ax.

Go, pay him the value of a good ax. That is, the value of the entire ax, and you cannot pay with the fragments and deduct their value from the payment.

And from this ruling of Rav,

infer from it

that Rav

does not assess

for a borrower. And if so, when Shmuel said, “even for a borrower,” this means that the borrower’s law is like that of a thief and a robber, for whom the fragments are not assessed, since Shmuel said that Rav agrees with him and holds like him concerning this law.

The Gemara rejects this: from this incident one can prove the opposite:

On the contrary, since Rav Kahana and Rav Asi said to Rav:

“Is it the case that

the law is so,

that he is obligated to pay for a complete, repaired utensil? But concerning damages we said that the carcass is assessed for the injured party and the one who caused the damage pays only the difference; and logic dictates that here too they should assess the fragments and return them to the lender, and he should pay only the difference.”

And he was silent,

and Rav was silent and did not answer them.

Infer from it

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

they assess

the fragments for a borrower. And if so, what Shmuel said, “even for a borrower,” will be understood as “even for a borrower they assess,” as in the case of damages, for Shmuel said that Rav agrees with him, and this is indeed Rav’s position.

The Gemara now brings a disagreement between amoraim concerning Shmuel’s ruling:

It was stated: Ulla said in the name of Rabbi Elazar: They assess

even

for a thief and for a robber.

And this is not like Shmuel!

Rav Pappi said: They do not assess,

and this is like Shmuel!

And the halakha [

and the law is]

is that they do not assess either for a thief or for a robber. But for a borrower they assess,

and

in accordance with Rav Kahana and Rav Asi,

as they argued before Rav.

Following the statement mentioned that Ulla said in the name of Rabbi Elazar, the Gemara brings additional statements that Ulla said in the name of Rabbi Elazar:

And Ulla said in the name of Rabbi Elazar:

A placenta that emerged

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

part of it

the placenta

emerged on the first day, and part of it

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 it is certainly impure with the impurity of childbirth. And they count from the first day, since perhaps the fetus was in the part of the placenta that emerged on the first day. However, it is uncertain whether this was a male fetus or a female fetus, and therefore she counts two weeks of the days of impurity of childbirth, in case it was female.

The Gemara discusses this matter:

Rava said to Ulla:

to Ulla:

What is your opinion?

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, from the time when the entire placenta emerged, at which point it is certain to us that the fetus was born? Apparently this is because you ruled

stringently,

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

But this stringency

is a stringency that leads to leniency!

It is a stringency that leads to leniency, for although concerning rendering impure the pure items that she handled on the first day it is a stringency, on the other hand it is a leniency,

for it purifies her from the first day.

Since she begins counting the days of impurity of a woman who has given birth from the first day, it follows that on the fifteenth day after the birth [and after she immerses], she has already begun the days of purity, and the pure items with which she comes into contact will be pure. But if she had counted only from the second day, that day would still be among the days of impurity, and she would render the pure items impure. Thus, the counting that she begins on the first day is indeed a stringency concerning the pure items with which she came into contact on the first day, but on the other hand it is a leniency concerning the fifteenth day.

And therefore Rava explains the words of Rabbi Elazar as follows:

Rather, Rava said: To be concerned—

she is concerned

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

to count, she counts only from the second [day].

To count the number of the days of impurity, she begins counting only from the second day, because perhaps the majority of the fetus did not emerge but on the second day; and she begins counting the days of purity at the end of the count of the days of impurity, so that because of the uncertainty she does not become pure until the sixteenth day from the beginning of the birth.

And the Gemara asks:

What does it teach us?

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

that there is no part of a placenta without a fetus,

and therefore, since part of the placenta emerged, certainly a part of the fetus also emerged, but there is uncertainty whether the majority of it emerged or only part of it, and the fetus is considered born only when the majority of it emerges? And because of the uncertainty, we are concerned that its majority already emerged on the first day, and we render impure the pure items that she touched then.

But if there can be part of a placenta without a fetus, we would not have been stringent concerning the first day because of the uncertainty, since there are here 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 uncertainty is that even if the fetus emerged then, perhaps its majority did not emerge.

However, since we hold that certainly a part of the fetus emerged with the placenta, we must be concerned that its majority emerged on the first day, and 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], for it was taught:

A placenta that emerged partially is forbidden for eating.

The placenta of an animal is permitted for eating through the slaughter of the mother if the placenta did not emerge before the slaughter. And if part of it emerged before the slaughter of the mother, the entire placenta is forbidden for eating, and the reason is that

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

The emergence of the placenta from the woman’s body is a sign that there is a fetus inside it that was born, both in a woman and in an animal, for there is no placenta without a fetus; and even if the fetus is not seen inside the placenta, we say that it dissolved. Therefore, concerning that part of the placenta that emerged, we are concerned that perhaps the majority of the fetus was inside it, and since its majority emerged, the fetus is considered born, and it is no longer rendered permitted through the slaughter of the mother.

It has thus been explained in the Mishna that there is no part of a placenta without a fetus; and if so, it is difficult: What did Ulla come to teach us?