Bava Kamma 13b — the Talmud in English

But here,

here it is a peace-offering animal that caused damage,

can he say, “

only

flesh caused damage,

whereas

the sacrificial portions did not cause damage”!?

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

And now the Gemara brings another statement concerning the law of consecrated animals that caused damage:

Rava said:

An animal that was designated as a

thanksgiving-offering, which caused damage

while it was still innocuous,

the injured party collects

his damages only

from its flesh. And

if its flesh is not worth half the damage,

he does not collect from its bread,

the injured party does not collect this from the forty loaves that come with the thanksgiving-offering.

And the Gemara wonders: The fact that the injured party does not collect

bread

from the bread of the thanksgiving-offering is

obvious!

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, does Rava come to teach us? The Gemara answers:

The latter clause was necessary for him,

Rava taught us this law because of the conclusion of his words, which he came to teach us, that indeed

the injured party eats

the

flesh

of the thanksgiving-offering after the sacrificial portions have been offered, because he can collect it from the owners on account of the damage,

but

the

one who attains atonement,

the owners who designated the offering, that is, the one who caused the damage, is the one who

brings

the

bread [the forty loaves of the thanksgiving-offering],

despite the fact that he does not eat the flesh.

But the Gemara asks:

This too is obvious!

This law too is obvious: the injured party does not need to bring the bread of the thanksgiving-offering.

And the Gemara answers:

Lest you say,

perhaps you would say,

since bread is what makes the offering fit,

since the loaves are what make the offering of the thanksgiving-offering fit,

let him say to him,

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

You ate flesh, and I shall bring bread?!

You will eat the flesh, and I will have to bring the bread?! That is, since the loaves make the bringing of the offering fit, I might have said that the injured party, who receives the flesh for eating, must bring the loaves. Therefore

he teaches us

Rava

that the bread is the obligation of the owners.

Bringing the bread is an obligation imposed upon the one who brings the thanksgiving-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.

The obligation for damages applies only when one damaged the property of Israelites, who are members of the covenant.

And the Gemara analyzes:

To exclude what?

What does the Mishna come to exclude?

If it comes to exclude the property of a gentile,

if we interpret it as coming to exclude and to say that specifically one who damages the property of Israelites is obligated to pay, but one who damages the property of a gentile is exempt, this is difficult:

It is taught below,

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

An ox belonging to an Israelite that gored an ox belonging to a gentile is exempt.

And the Gemara answers:

The tanna

the tanna in the Mishna teaches this law here only by implication,

and afterward explains it,

and afterward returns and explains the law in the Mishna below.

We learned in the Mishna:

Property that is designated.

The obligation for damages applies to property that is “designated” for a particular person.

And the Gemara analyzes:

To exclude what?

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 place 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 the damages.

And this one,

the owner of the second ox,

says

to the owner of the first ox: It was not my ox that caused the damage; rather,

your ox caused the damage!

And this is the meaning of the Mishna’s phrase “designated property”: the damaging oxen must be designated as belonging to one person, so that there will be no doubt who is the one who caused the damage and is liable. But in a doubtful case such as this, both are exempt.

But the Gemara wonders:

Is this

for this law

taught,

it is explicitly taught in the Mishna

below

[35b], as we learned:

There were two

two oxen belonging to two people

pursuing

the ox of one person

after it,

and the ox was injured, but it was not known through which one it was injured;

this one,

the owner of one ox,

says

to the owner of the second ox: “

Your ox caused the damage.”

And this one,

the owner of the second ox,

says

to the first: Not so, but

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

And the Gemara answers as above:

The tanna

teaches this law in the Mishna here only by implication,

and afterward explains it.

And afterward he returns and explains the law in the Mishna below.

And the Gemara brings another way of explaining the words of the Mishna:

In a baraita it was taught,

in a baraita the tanna taught in explanation of what the Mishna said, “designated property,” that it means property that has owners,

excluding ownerless property.

But the Gemara analyzes:

What are the circumstances?

In what manner does the ownerless property that the Mishna excludes exist? Is it when the damaging property was ownerless, or when the damaged property was ownerless?

And the Gemara explains that whichever way we interpret it, there is a difficulty:

If you say that our ox gored an ownerless ox,

if we say that the reference is to an Israelite’s ox that gored an ownerless ox, this is perplexing:

Who would sue him!?

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

rather,

if we say that the Mishna’s intention is to exempt in the reverse case,

that an ownerless ox gored our ox,

an ownerless ox gored an Israelite’s ox, this too is perplexing, for who will sue it in order to collect from the ox?

Let him go and take it!

Let the injured party go and acquire the damaging ox for himself, and there is no one to prevent him, since the ox is ownerless.

And the Gemara answers: Indeed, the Mishna’s intention is to exempt the damaging ox in a case where an ownerless ox gored an Israelite’s ox. And as for what you asked, why the injured party should not go and acquire it, this can be resolved by saying that the case is

where another person preceded him and acquired it.

That is, after the ownerless ox gored his ox, another person acquired it before the injured party had time to acquire it. And the Mishna teaches us that although with 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.

And another way of explaining the words of the Mishna:

Ravina said, “The ‘designated property’” that the Mishna stated comes

to exclude a case in which the ox

a case in which the ox

gored

and

afterward,

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

the owners consecrated

the ox.

And likewise, if

the ox gored

and

afterward the owners made it ownerless,

before the injured party brought it to court—in both of these cases one does not collect from the body of the ox. And “designated property” stated by the Mishna means that it must remain designated to one person from the time of the goring until the time of bringing it to court.

And the Gemara brings that this law is also explicit in a beraita:

It was taught likewise:

we learned this in a beraita:

Moreover,

Rabbi Yehuda said: Even if it gored

the ox a person and killed him,

and afterward he consecrated

the owner of the ox his ox, and likewise if it

gored

the ox and killed a person,

and

afterward he made it ownerless,

its owner made the ox ownerless,

the ox is exempt

from execution, because it is

stated

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

“It was testified concerning its owner, and it killed a person,”

“the ox shall be stoned and its owner shall also be put to death.” The Torah juxtaposed “and it killed a person, and the ox shall be stoned” to “its owner shall be put to death,” to teach us that the obligation applies only

until there is the death

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

and bringing it to court,

namely, “the ox shall be stoned,”

at the same time,

under one ownership, for “its owner” is stated concerning both of them together.”

The Gemara asks:

“And do we not require the conclusion of the judgment?!”

Is it not necessary that the ox also be under one ownership until the time of the conclusion of the judgment, and is it sufficient that it be under one ownership until the time of being brought to judgment? And

if so,

behold, that which the verse said,

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

For that which it says, “The ox shall be stoned,” is after the conclusion of the judgment; and if so, it may be said that until the conclusion of the judgment there must be one ownership.

Rather,

indeed, it may be learned that even until the conclusion of the judgment there must be one ownership of the ox in order to obligate him, and in truth

say,

this should be said and taught in the beraita:

“Until the death, the bringing to judgment, and the conclusion of the judgment are alike as one.”

We learned in the Mishna:

“Except for a domain designated to the damager.”

For if the act of damage was performed within the domain of the owner of the damaging ox, he is exempt.

And the Gemara explains the reason for the law: because

he says to him

the damager to the damaged party:

“What is your ox doing in my domain?!”

What business does your ox have inside my domain? That is to say, the damager says to the damaged party: Had your ox not entered my domain, it would not have been damaged.

We learned in the Mishna: “And everywhere, except for a domain designated to the damager,”

“and the domain of the damaged party and the damager”

[a partners’ courtyard]; when it caused damage, the damager is liable to pay damage payments from the best of the land.

And the Gemara, when it comes to explain the words of the Mishna, “and the domain of the damaged party and the damager,” namely, a partners’ courtyard, first brings the view of the amoraim concerning the law of a partners’ courtyard, and how the words of the Mishna are to be explained according to their view:

Rav Chisda said in the name of Avimi: “A partners’ courtyard”—

“one is liable in it for tooth and foot.”

If the animal of one of the partners ate the produce of the other partner that was lying in the courtyard, or trampled his vessels that were inside the shared courtyard, the owner of the damaging animal is liable to pay the damages, because a partners’ courtyard is not like the public domain, in which one is exempt for tooth and foot; rather, since people of the public domain do not have permission to walk in it, it too is considered “another’s field,” for which the Torah made one liable for tooth and foot.

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

And this is what it says,

and according to this, this is the meaning of the words of the Mishna: The owner of the animal is liable for its damages everywhere,

“except for a domain designated to the damager. For if

it caused damage within it,

he is exempt.

But

if it caused damage in a

domain

shared by

the damaged party and the damager,

in this case,

“when it caused damage, the damager is liable”

to pay the damage payments.

And the Gemara brings another view concerning the law of a partners’ courtyard:

And Rabbi Eliezer said:

A partners’ courtyard

is exempt

in it

for tooth and foot.

Since the damaged party has permission in the courtyard, it is not considered “another’s field,” and it is like the public domain, in which he is exempt for tooth and foot.

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

And this is what it says,

this is the meaning of the words of the Mishna: The owner of the animal is liable for its damages everywhere,

“except for a domain designated to the damager, and

likewise

the domain of the damaged party and the damager also,”

also in it

he is exempt.

We learned further in the Mishna:

“And when it caused damage, the damager is liable”

to pay damage payments.

And the Gemara explains:

To include,

to bring and include, the obligation of the law of

horn,

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

And the Gemara discusses:

This works well according to Shmuel,

the explanation accords well with the view of Shmuel, who explains above [3b, 4a] that the four damages mentioned in the Mishna are: foot, pit, tooth, and fire. According to this, the law of horn was indeed not mentioned in the Mishna, and therefore the Mishna needs to include horn.

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

according to Rav’s explanation that “the ox” mentioned among the primary categories of damages refers to all the primary categories that are in an ox: horn, tooth, and foot, if so, horn has already been taught in the Mishna, and according to him it is difficult: “‘When it caused damage,

the damager is liable’—to include what?”

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

And the Gemara resolves this by bringing a beraita that explains what the Mishna comes to include:

To include this, as the Sages taught,

to include that which the Sages explained in the beraita, and this is how they explained it: That which the tanna taught in the Mishna,

“When it caused damage, one damager,”

comes

to bring

[to include]

an unpaid bailee and a borrower, a paid

[bailee]

bailee and a renter

who accepted an animal for guarding,

that

if

it caused damage,

the

animal in their domain, an innocuous animal pays half the damage, and a forewarned animal pays full damage.

And all this is if the bailee did not lock it properly.

But if he locked it properly before the animal, and the fence

was breached at night

on its own,

or bandits broke it, and it went out

the animal

and caused damage, he is exempt.

Since he guarded it properly, he is compelled by circumstances beyond his control.

And the Gemara now discusses the explanation of the words of the beraita:

The Master said

in the beraita:

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

What are the circumstances?

In what manner is this speaking—who caused damage to whom?

If you say it is that the ox of the bailor damaged the ox of the borrower

if you say that it is speaking of a case in which the ox of the bailor, which was borrowed by the borrower, damaged the ox of the borrower, and concerning this it was said, “an innocuous animal pays half the damage,” so that the bailor is liable to pay the borrower for the damage, it is difficult:

let him say to him,

for the bailor can say to the borrower:

“If it had caused damage ordinarily,

if my ox had damaged the ox of some person in the world, would you not

have been required to pay it,

you would have been required to pay him, since its guarding was incumbent upon you; and if so,

now, when it damaged your ox, do I need

to pay?!

Now, when my ox damaged your ox, do I need to pay you?!

Rather,

perhaps you will say that it is speaking of a case

in which the ox of the borrower damaged the ox of the bailor,

where the ox of the borrower damaged the ox of the bailor, and concerning this it was said that if the damaging ox is innocuous, the borrower pays the bailor only half the damage.

This too is difficult: for

let him say to him,

the bailor can say to the borrower:

“If it had been damaged by something from the outside, you would have had to pay for the entire ox;

if my ox had been damaged by the ox of another person in the world, you would have had to pay me the value of the entire ox, because the obligation of guarding it so that it would not be damaged was upon you; and if so,

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

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

And the Gemara explains the beraita:

In fact, it is a case in which the ox of the bailor damaged the ox of the borrower.

Indeed, the beraita is speaking of a case in which the ox of the bailor damaged the ox of the borrower, and the tanna teaches us that the bailor is liable to pay the damage. And as for what you objected—that he should be exempt because the obligation of guarding so that it should not cause damage, including to the bailor’s ox, rests upon the borrower—

and here, with what are we dealing,

it is speaking here of a case

in which he accepted upon himself

the borrower only

the guarding of its body

so that it would not be damaged by others.