Bava Kamma 13b (יג:) — the Talmud in English

But here,

we are dealing with a shelamim animal that caused damage,

can he say, “

only

the meat caused the damage,

whereas

the sacrificial portions did not cause the damage”!?

Could the injured party say that it was only the meat that caused the damage and not the sacrificial portions? That is, is it possible to attribute the damage more to the meat than to the sacrificial portions? And since the damage cannot be attributed to the sacrificial portions more than to the meat, Rabbi Abba maintains that in this case Rabbi Natan concedes that one does not collect from the meat that which cannot be collected from the sacrificial portions.

And now the Gemara cites another statement concerning the law governing consecrated animals that caused damage:

Rava said:

With regard to an animal designated as a

todah offering that caused damage

while it was still an innocuous ox,

the injured party collects

payment for his damage only

from its meat. And

if its meat is not worth enough to cover half the damage,

he does not collect from its loaves;

the injured party cannot collect the balance from the forty loaves that accompany the todah offering.

The Gemara asks: The fact that the injured party does not collect

the bread

from the loaves of the todah offering—is it not

obvious

that this is so? For the bread did not participate in the goring, and the damage caused by an innocuous ox is collected only from the body of the one that caused the damage. What, then, is Rava teaching us? The Gemara answers:

The latter clause was necessary for him;

Rava stated this law because of the conclusion of his statement, which he intended to teach us, namely, that

the injured party eats

the

meat

of the todah offering after the sacrificial portions have been offered, because he can collect it from the owner on account of the damage,

but

the

one who attains atonement,

the owner who designated the offering—that is, the one who caused the damage—is the one who

brings

the

bread [the forty loaves of the todah],

even though he does not eat the meat.

The Gemara nevertheless asks:

Is this too obvious!

This law as well is self-evident, since the injured party need not bring the loaves of the todah offering.

The Gemara answers:

Lest you say,

perhaps one might say,

since the bread enables the offering,

as the loaves enable the todah offering to be brought,

let him say to him:

the one who caused the damage could say to the injured party:

‘You ate the meat, and I should bring the bread?!’

Do you eat the meat, while I must bring the bread?! That is, since the loaves enable the offering to be brought, one might say that it is incumbent upon the injured party, who receives the meat to eat, to bring the loaves. Therefore,

Rava teaches us

that

the obligation to bring the bread rests upon the owner.

Bringing the bread is an obligation imposed upon the one who brings the todah offering, and therefore the one who caused the damage must bring it.

We learned in the Mishna:

“Property that belongs to members of the covenant.”

Liability for damage applies only when one damages property belonging to Jews, who are members of the covenant.

The Gemara analyzes this:

What does this exclude?

What does the Mishna come to exclude?

If it comes to exclude property belonging to gentiles,

if we interpret it as coming to exclude and to say that specifically one who damages Jewish property is liable to pay, whereas one who damages the property of a gentile is exempt, there is a difficulty:

It is taught below,

for this law is explicitly taught in the Mishna below [37b]:

“An ox belonging to a Jew that gored an ox belonging to a gentile is exempt.”

The Gemara answers:

The tanna

in the Mishna teaches this law here only by implication,

and then explains it,

and subsequently returns to explain the law explicitly in the Mishna below.

We learned in the Mishna:

“Property that is specifically identified.”

Liability for damage applies to property that is “specifically identified” as belonging to a particular person.

The Gemara analyzes this:

What does this exclude?

What does the Mishna come to exclude?

Rav Yehuda said:

The Mishna comes

to exclude

a case in which there were several oxen at the site of the damage, and the injured party does not know which of them damaged his ox. In that case,

this one,

the owner of one ox,

says

to the owner of the other ox:

“Your ox

is the one that

caused the damage!

And you are liable to pay for the damage.”

And this one,

the owner of the other ox,

says

to the owner of the first ox: My ox did not cause the damage; rather,

“Your ox caused the damage!”

This is the meaning of the Mishna’s phrase “property that is specifically identified”: The damaging oxen must be specifically identified as belonging to one person, so that there is no uncertainty as to who is the liable party. But in a case of uncertainty such as this, both are exempt.

The Gemara is perplexed:

But

this law

is taught,

as it is stated explicitly in the Mishna

below

[35b], as we learned:

“If there were two

two oxen belonging to two people

pursuing

the ox of one person

and

the ox was injured, but it is unknown by which of them it was injured,

this one,

the owner of one ox,

says

to the owner of the other ox: ‘

Your ox caused the damage.’

And this one,

the owner of the other ox,

says

to the first: ‘No, rather,

“Your ox caused the damage.” Both are exempt.’”

The Gemara answers as above:

The tanna

in the Mishna teaches this law here only by implication,

and then explains it.

He subsequently returns to explain the law in the Mishna below.

The Gemara offers another way to explain the Mishna’s statement:

It was taught in a baraita,

in a baraita, the tanna taught that the Mishna’s statement “property that is specifically identified” refers to property that has an owner,

excluding ownerless property.

The Gemara asks:

What are the circumstances?

In what case does the Mishna exclude ownerless property? Is the case one in which the damaging property was ownerless, or one in which the injured property was ownerless?

The Gemara explains that whichever way one interprets it, there is a difficulty:

If you say that an ox of ours gored an ownerless ox,

if we say that the reference is to an ox belonging to a Jew that gored an ownerless ox, this is puzzling:

Who would sue him!?

Is there anyone who would sue the one who caused the damage, such that the Mishna would need to teach us that he is exempt?

Rather,

if we say that the Mishna intends to exempt the reverse case,

that an ownerless ox gored an ox of ours,

an ownerless ox gored an ox belonging to a Jew, this too is puzzling, for who would sue it in order to collect from the ox?

Let him go and take it!

The injured party should go and acquire the damaging ox for himself, and no one can prevent him, since the ox is ownerless.

The Gemara answers: Indeed, the Mishna intends to exempt the damaging ox in a case where an ownerless ox gored an ox belonging to a Jew. And as for your question—why does the injured party not go and acquire it?—the case can be explained as one

in which another person acquired it first.

That is, after the ownerless ox gored his ox, another person acquired it before the injured party had time to acquire it. The Mishna teaches that although in the case of an innocuous ox that caused damage the injured party has the right to collect his damages from the body of the ox, nevertheless, if the goring ox was ownerless at the time of the goring and another person acquired it, the injured party cannot collect his damages from the body of the ox.

Another way to explain the Mishna’s statement:

Ravina said: The Mishna’s statement “property that is specifically identified” comes

to exclude

a case in which, when the ox

gored

the ox

and afterward,

before the injured party had time to bring it to court,

the owner consecrated

the ox.

Likewise, if the ox

gored

the ox

and afterward the owner declared it ownerless

before the injured party brought it to court, in both these cases one does not collect from the body of the ox. The Mishna’s phrase “property that is specifically identified” means that the ox must be identified as belonging to one person from the time of the goring until the time it is brought to court.

The Gemara notes that this law is also explicit in a beraita:

It was taught likewise in a beraita,

we learned the following in a beraita:

“Moreover,

Rabbi Yehuda said: Even if the ox gored

a person and killed him,

and afterward the owner consecrated

his ox, and likewise if the ox

gored

and killed a person,

and afterward

its owner declared it ownerless,

the owner declared the ox ownerless,

the ox is exempt

from execution, because

it is stated

with regard to an ox that gored a person [Exodus 21]:

‘And it was testified against its owner, and it killed a man;

the ox shall be stoned, and its owner shall also be put to death.’” The Torah juxtaposed “and it killed a man, and the ox shall be stoned” with “its owner shall be put to death,” teaching us that the liability applies only

until there is both the death

of the injured party, namely, “and it killed a man,”

and the bringing to court,

namely, “the ox shall be stoned,”

simultaneously,

under one ownership, since the word “its owner” is stated with regard to both of them together.

The Gemara asks:

Do we not require the conclusion of the judgment as well?!

Is it not necessary for the ox also to remain under a single ownership until the conclusion of the judgment, and is it sufficient for it to remain under a single ownership only until the time of the trial? And

yet

what the verse states,

“The ox shall be stoned,” is written with regard to the conclusion of the judgment!

For the statement that “the ox shall be stoned” refers to the period after the judgment has been rendered. If so, one should say that the ox must remain under a single ownership until the conclusion of the judgment.

Rather,

indeed, one can infer that the ox must remain under a single ownership even until the conclusion of the judgment in order for liability to apply. In truth,

say

this, and emend the beraita as follows:

until the time that the death, the beginning of the trial, and the conclusion of the judgment are all under one ownership.

We learned in the Mishna:

Except for property designated for the one who caused the damage.

Thus, if the act of causing the damage took place within the domain of the owner of the damaging ox, he is exempt.

The Gemara explains the reason for this law:

as the one who caused the damage says

to the injured party:

What is your ox doing in my domain?!

What business does your ox have within my domain? That is, the one who caused the damage says to the injured party: Had your ox not entered my domain, it would not have been damaged.

We learned in the Mishna: “And in every place, except for property designated for the one who caused the damage,”

and property belonging jointly to the injured party and the one who caused the damage

[a courtyard belonging to partners], if it caused damage, the one who caused the damage is liable to pay damages from the best land.

When the Gemara comes to explain the words of the Mishna, “and property belonging jointly to the injured party and the one who caused the damage,” namely, a courtyard belonging to partners, it first cites the amoraim’s opinions regarding the law of such a courtyard and how the words of the Mishna are to be interpreted according to their views:

Rav Chisda said in the name of Avimi: A courtyard belonging to partners—

one is liable there for an animal’s eating and trampling.

If the animal of one of the partners ate the produce of the other partner that was lying in the courtyard, or trampled his utensils that were inside the jointly owned courtyard, the owner of the damaging animal is liable to pay damages. A courtyard belonging to partners is not like the public domain, where one is exempt for eating and trampling; rather, since members of the public have no right to enter it, it is also considered “another’s field,” for which the Torah imposed liability for eating and trampling.

The Gemara explains the words of the Mishna according to his statement:

And this is what it is saying:

Accordingly, this is the interpretation of the Mishna: The owner of the animal is liable for its damage in every place,

except for property designated for the one who caused the damage. If

it caused damage within it, he is

exempt.

But

if it caused damage in the

property

jointly belonging to

the injured party and the one who caused the damage,

in this case,

when it caused damage, the one who caused the damage is liable

to pay the damages.

The Gemara cites another opinion regarding the law of a courtyard belonging to partners:

And Rabbi Eliezer said:

In a courtyard belonging to partners, one is

exempt

there

for an animal’s eating and trampling.

Since the injured party has permission to be in the courtyard, it is not considered “another’s field”; rather, it is like the public domain, where one is exempt for eating and trampling.

The Gemara explains the words of the Mishna according to his view:

And this is what it is saying:

This is the interpretation of the Mishna: The owner of the animal is liable for its damage in every place,

except for property designated for the one who caused the damage, and

likewise,

property belonging jointly to the injured party and the one who caused the damage, too,

also there he is

exempt.

We learned further in the Mishna:

And when it caused damage, the one who caused the damage is liable

to pay damages.

The Gemara explains:

To include,

to bring in and include, the law of

goring,

an ox that gores with its horn, which was not included among the four primary categories mentioned in the Mishna.

The Gemara asks:

This works well according to Shmuel,

for this explanation accords with Shmuel’s view, as he explained above (3b–4a) that the four types of damage mentioned in the Mishna are: trampling, pit, eating, and fire. Accordingly, the law of goring was indeed not mentioned in the Mishna, and therefore the Mishna must include goring.

But according to Rav, who said: The tanna taught “ox” and everything belonging to an ox,

according to Rav, who explains that “the ox” mentioned among the primary categories of damage refers to all the categories that apply to an ox—goring, eating, and trampling—goring has already been taught in the Mishna. If so, his view presents the following difficulty: “When it caused damage, the one who caused the damage is liable”—

to include what?

Why did the Mishna add this statement, and what does it come to include?

The Gemara resolves this by citing a beraita that explains what the Mishna comes to include:

To include that which the Sages taught:

to include what the Sages explained in a beraita, as follows: What the tanna taught in the Mishna,

“When it caused damage, the one who caused the damage is liable,”

comes

to include

[among others]

an unpaid bailee and a borrower, a paid

[bailee,]

bailee and a renter

who accepted an animal for safekeeping,

that

if

it caused damage, the

animal

while in their domains, a tame ox pays half the damage, and a forewarned ox pays the full damage.

All this applies if the bailee did not guard it properly.

But if he properly locked the animal in, and the fence

was breached at night

by itself,

or bandits breached it, and it went out

the animal

and caused damage, he is exempt.

Since he guarded it properly, he is considered an אונס—one prevented by circumstances beyond his control.

The Gemara now discusses the explanation of the beraita:

The Master said

in the beraita:

“When it caused damage, the one who caused the damage is liable,” to include an unpaid bailee and a borrower, a paid bailee and a renter.

What are the circumstances?

In what situation is this referring to, and who damaged whose property?

If you say that the ox of the one who lent it, which was in the borrower’s possession, damaged the borrower’s ox

if you say that the case is one in which the ox of the lender, loaned to the borrower, damaged the borrower’s ox, and this is the case to which the statement “a tame ox pays half the damage” refers, meaning that the lender must pay the borrower for the damage, this is difficult:

Let him say to him,

for the lender can say to the borrower:

Had it damaged another ox,

had my ox damaged the ox of some other person, would you not

have been required to pay,

as you would have had to pay him, since the obligation to guard it rested upon you? If so,

now that it damaged your ox, must I

pay?!

Now that my ox damaged your ox, do I have to pay you?!

Rather,

perhaps you should say that the case is one

in which the borrower’s ox damaged the lender’s ox,

that the borrower’s ox damaged the lender’s ox, and this is the case to which the statement refers: If the damaging ox is tame, the borrower pays the lender only half the damage.

This too is difficult, because

let him say to him,

the lender can say to the borrower:

Had my ox been damaged by another, you would have been required to pay for the entire ox;

had my ox been damaged by the ox of another person, you would have had to pay me the value of the entire ox, because you were obligated to guard it so that it would not be damaged. If so,

now that your ox damaged it, is it only half the damage that you pay me?!

Now that it was your ox that damaged my ox, is it possible that you should pay me only half the damage?!

The Gemara explains the beraita:

Actually, it is referring to a case in which the ox of the lender damaged the ox of the borrower.

Indeed, the beraita is speaking of a case in which the lender’s ox damaged the borrower’s ox, and the tanna teaches us that the lender is liable to pay for the damage. As for the objection that he should be exempt because the borrower is obligated to guard the ox so that it will not cause damage, including damage to the lender’s ox,

and here, what are the circumstances?

The case here is one in which

he accepted upon himself

the borrower accepted only

the guarding of its body

so that it would not be damaged by others.