Bava Kamma 14a — the Talmud in English

And he did not accept upon himself the guarding against its damages,

he did not undertake to guard the ox so that it would not damage others. Therefore, if the lender’s ox caused damage, the obligation of payment is upon the lender, even if it caused damage to the borrower’s ox.

But the Gemara raises a difficulty against the answer:

If so,

if this is so, that the beraita is speaking where the guardian did not accept upon himself the guarding against its damages, then

say

the latter clause,

explain [interpret] the end of the beraita: A pen that

was breached at night, or that robbers breached, and it went out

the animal

and caused damage is exempt.

And it implies that specifically since it was breached at night, he is exempt, because he is under duress.

But

if it was breached

during the day,

the guardian will be

liable.

And why?

But,

for we established that

he did not accept upon himself

the guardian

the guarding against its damages

of the ox?

The Gemara resolves the difficulty: Indeed, the first clause is speaking where the borrower did not accept upon himself the guarding against its damages. But regarding the continuation of the beraita,

this is what the tanna says:

But,

if he accepted upon himself

the borrower

the guarding against its damages

of the ox, and this ox damaged the ox of one of the world,

the borrower is liable. And if the borrower locked it properly, and

the borrower locked it properly, and

it was breached at night or robbers breached it, and it went out and caused damage, he is exempt

the borrower.

Now the Gemara returns to the law of tooth and foot in a jointly owned courtyard, and raises a difficulty according to the view of Rabbi Elazar, who exempts:

Really!?

Is this indeed the law, that in a jointly owned courtyard one is exempt from damages of tooth and foot? But this is not so!

And did not Rav Yosef teach [

Rav Yosef taught a beraita that says]:

A jointly owned courtyard and

also

an inn [

a lodging-house where guests and travelers customarily rent a place for staying and sleeping, and the renters are considered partners], if the animal of one of the partners or the animal of one of those staying in the inn caused damage,

he is liable there for tooth and foot.

For since the members of the public domain have no rights in it, but only those dwelling there do, this place is considered “another’s field.” It is explicitly stated in the beraita not according to Rabbi Elazar’s view. And if so,

a refutation of Rabbi Elazar!

His words have been rejected and disproved by the beraita.

The Gemara answers:

He could say to you,

he can say to you

Rabbi Elazar: And do you understand this? Do the beraitot not disagree!?

And do you think that there is no beraita that disagrees and holds as I do!?

And it was taught

in a beraita:

Rabbi Shimon ben Elazar used to say there are four general principles

[rules]

regarding

liabilities for

damages,

with regard to the place where the damage was carried out:

1.

Every

damage that was done in a place

that is a domain

belonging

to the injured party and not to the damaging party, the damaging party is liable

to pay

for

payment of

all

the damage.

2. If the damage was done in a place that is the domain

of the damaging party

alone,

and not

belonging

to the injured party, he is exempt

the damaging party

from all

payment. 3. If the damage was done in a place where there is a domain also

for this one [

the injured party]

and

also

for that one [

the damaging party],

such as a jointly owned courtyard and an open field

[where both have permission to use it]

he is exempt there for tooth and foot.

Since this field is not designated only for the injured party, it is not considered “he grazed in another’s field,” as the Torah said.

But

for goring and for pushing

[where it pushed with its body]

and for lying down, and for kicking

if it caused damage in one of these ways, since they are derivatives of “horn,” then

an innocuous animal pays half-damage,

and

a forewarned animal pays full damage.

4. A place where there is no domain there

for neither this one nor that one

[neither for the damaging party nor for the injured party],

such as a courtyard that belongs to neither of them

he is liable there for tooth and foot

full damage. And likewise

for goring and for biting and for pushing and for lying down and for kicking,

which are derivatives of horn,

an innocuous animal pays half-damage,

and

a forewarned animal pays full damage.

Таким образом, выясняется, что эта барайта считает, что в общем дворе за зуб и ногу освобождают, и спорит с барайтой Рава Йосефа. Следовательно, раби Элазар придерживается мнения этой барайты.

It is thus explained that this beraita holds that in a jointly owned courtyard one is exempt for tooth and foot, and it disagrees with Rav Yosef’s beraita. And if so, Rabbi Elazar holds according to this beraita.

Now the Gemara discusses whether it is also necessary, according to Rav Chisda’s view, to say that the beraitot disagree:

At any rate, it is taught,

we learn in any event in this beraita:

In a jointly owned courtyard and an open field, he is exempt there for tooth and foot.

And if so,

they are difficult against one another

the beraitot contradict one another! And shall we also say according to Rav Chisda that the beraitot disagree?

The Gemara answers:

When that was taught,

what we learned in the beraita of the “four general principles,” that in a jointly owned courtyard one is exempt for tooth and foot, is speaking

in a courtyard

that is

designated for this one and that one, both for produce

and

both for oxen.

In a courtyard where both are permitted both to place their produce there and to bring their oxen there. And since the oxen have permission to enter there, this is not considered “he grazed in another’s field,” because the damaging party also has permission to enter there; it is like the public domain, where one is exempt for tooth and foot.

However,

that

beraita

of Rav Yosef,

which makes one liable in a jointly owned courtyard, speaks

in a courtyard

that is

designated

indeed for this one and that one, but they are permitted

to

place there only

produce, and it is not designated

for them

to

bring there

oxen.

For

since the injured party has permission to bring in produce, while the damaging party has no permission to bring oxen there,

with regard to tooth, it is considered the courtyard of the injured party,

like the courtyard of the injured party with regard to eating the produce, because it is considered that the ox “grazed in another’s field.” And the Gemara strengthens the answer:

It is also precise,

this distinction can also be inferred from the wording of the beraitot themselves:

For it teaches here,

Rav Yosef’s beraita mentions together “a jointly owned courtyard and an inn”; therefore it is speaking of a jointly owned courtyard that is

similar to an inn,

similar to an inn, and an inn is not intended for the passage of oxen, since there are merchandise and property there, and the oxen can damage and soil them; and in such a manner, even in a jointly owned courtyard, he is liable.

And

if in the beraita of the “four general principles”

it taught there, similar to an open field.

Since the beraita says “a jointly owned courtyard and an open field,” it is speaking of a jointly owned courtyard similar to an open field, and in an open field oxen also have permission, and in such a manner, in a jointly owned courtyard, he is exempt.

The Gemara concludes:

It may be inferred from this,

indeed, it can be proven from the precision of the wording of the beraitot, as in the Gemara’s answer.

Rabbi Zeira raised an objection against it:

Why did the respondent distinguish and say that in a courtyard designated only for produce and not for oxen one is liable there for tooth and foot? For

since it is designated

for both of them

for produce,

for the damaging party just as for the injured party, it cannot be considered the courtyard of the injured party more than the courtyard of the damaging party; so why should there be liability for tooth and foot?

But we require “and he grazed in another’s field,” and this is absent!

For tooth and foot there is liability only when the damage was done in the courtyard of the injured party, which is called “another’s field,” and this is not “another’s field.”

Abaye said to him

to Rabbi Zeira: Indeed, it is designated for both of them for produce, but

since it is not designated

for them

for oxen,

and the damaging party’s ox enters without permission,

“another’s field” we call it.

It is considered that the ox entered and caused damage in “another’s field.”

And following the resolution of the beraitot, which speak of different situations, the Gemara raises the possibility that even Rav Chisda and Rabbi Elazar do not disagree, but spoke of different situations:

Rav Acha of Difti said to Ravina: Shall we say, since the beraitot do not disagree, the amoraim too do not disagree!?

Just as we resolved that the beraitot do not disagree, let us say that the amoraim, Rav Chisda and Rabbi Elazar, also do not disagree; rather, Rav Chisda, who makes one liable in a jointly owned courtyard, speaks of a courtyard designated only for produce and not for oxen, and therefore there is liability, for it is like the courtyard of the injured party. And Rabbi Elazar, who exempts in a jointly owned courtyard, speaks of a courtyard designated both for produce and for oxen, and therefore there is exemption, for this is not “another’s field.”

He said to him

Ravina to Rav Acha of Difti:

Yes,

indeed it is possible to say that they do not disagree.

And if you should say they disagree,

and if you decide to say that they disagree, their dispute cannot be explained as concerning a courtyard designated both for produce and for oxen, for in that case everyone agrees that there is exemption, since this is not “another’s field”; rather, they disagree only concerning a courtyard designated for produce and not designated for oxen, and

they disagree over Rabbi Zeira’s difficulty and Abaye’s resolution.

They disagree in Rabbi Zeira’s question and Abaye’s answer.

Rabbi Elazar holds that a courtyard designated for produce, since it is also designated for the damaging party for produce, is not considered “another’s field,” as Rabbi Zeira raised. Whereas Rav Chisda, who makes one liable, holds as Abaye answered: since the damaging ox has no permission to enter the courtyard, it is considered to have entered and caused damage “in another’s field.”

Now the Gemara returns to explain the beraita of the “four general principles”:

The matter itself,

the body of the beraita:

There are four general principles that Rabbi Shimon ben Elazar used to say regarding damages: Every

damage that was done in a place

that is a domain

belonging

to the injured party and not to the damaging party, he is liable for all.

And the Gemara is precise: he is liable

“for” all—it did not teach

the beraita did not say that he is liable “for” all, which would imply that he becomes liable for every form of damage done in this domain, including tooth and foot and horn.

Rather,

the beraita said

“he is liable for all,”

which implies

for the entirety of the damage,

that every damage done in this domain [including horn] entails liability to pay the entire damage [full damage].

And the Gemara discusses:

Who is it? —

The beraita that holds that in the domain of the injured party one pays full damage for horn—according to whose view is it stated? According to the view of

Rabbi Tarfon, who says: Horn is unusual,

the damages of horn and its derivatives are unusual, for this is not the normal behavior of an animal, and if they caused damage

in the courtyard of the injured party, he pays full damage.

But the Gemara asks: If the beraita is according to Rabbi Tarfon’s view,

say the latter clause,

state the end of the beraita: A domain that is not designated

for neither this one nor that one, such as a courtyard that belongs to neither of them, he is liable there for tooth and foot.

But this requires discussion:

What,

what is meant by saying that the domain is

for neither this one nor that one?

If it is so,

if it is said,

not this one and not that one at all, but another,

that the domain belongs neither to the injured party nor to the one who caused the damage, but to another person, then it is difficult:

but we require “and it shall consume in another’s field,” and that is absent!

for with regard to damage by shen and regel, one is liable only when the damage was done in the field of the injured party, and not in the field of another person.

Rather, it is obvious,

it is obvious that the words of the beraita must be explained as follows:

not this one and not that one.

That is, a courtyard that belongs to neither of them,

but to one,

belongs only to one of them, namely, to the injured party. And the intention of the beraita is a courtyard of the injured party.

And it teaches in the latter clause,

and we learned in the latter clause of the beraita,

an innocuous ox pays half-damages, and a forewarned ox pays full damages.

And since it has been explained that the matter concerns a courtyard of the injured party, and there the beraita said that an innocuous ox pays only half-damages,

we have arrived at the Rabbis,

this is according to the position of the Rabbis,

who say, a horn is unusual,

even

in the courtyard of the injured party it is half-damages that it pays.

And if so, it is difficult: the beraita contradicts itself, for in the

first clause

it stated according to the position of

Rabbi Tarfon,

whereas in the

latter clause it is according to the Rabbis.

The Gemara answers:

No.

Indeed, it is possible to say that the beraita in its first clause stated according to the position of Rabbi Tarfon, and afterward stated according to the position of the Rabbis.

And the Gemara proves that it is possible to say this:

for indeed,

below [15b] the Gemara questioned the Mishna there, which in its first clause adopted the position of Rabbi Tarfon and in its latter clause that of the Rabbis, and

Samuel said to Rav Yehuda: Sharp one

[sharp-toothed one, clever],

abandon the Mishna,

leave the Mishna, that is, do not trouble yourself to reconcile it according to one tanna,

and come after me,

come after me and say as I do, for I established that the Mishna indeed has in its

first clause

according to

Rabbi Tarfon, and its latter clause

according to

the Rabbis.

And so too with this beraita: what it said in its first clause, that in the courtyard of the injured party he pays full damages, is according to the position of Rabbi Tarfon. And in its latter clause, which said that in the courtyard of the injured party an innocuous ox pays half-damages, it is according to the position of the Rabbis.

And the Gemara brings another answer:

Ravina said in the name of Rava:

the beraita

entirely,

is according to the position of

Rabbi Tarfon. And what is “not this one and not that one”

that the beraita stated in the fourth category, and we were forced to explain that it means that it belongs to neither of them but to the injured party alone? The intention of the beraita is:

not this one and not that one for produce, but to one.

With regard to bringing produce into the courtyard, neither of them has permission, but the injured party alone. But

for this one and that one,

for the one who caused the damage and the injured party, there is permission

to

bring

oxen.

For

therefore,

with regard to

damage by

shen, it is a courtyard of the injured party,

since with regard to bringing produce, only the injured party has permission to bring it there.

But

with regard to

damage by

keren, it is the public domain,

since both of them have permission to bring oxen there. Therefore an innocuous ox pays only half-damages even according to Rabbi Tarfon.

But the Gemara asks:

If so,

if this is the intention of the beraita in the fourth category, why did the beraita say that there are

four

categories? After all, there were only

three

categories

there were.

For the fourth category has already been explained in the preceding categories: this law—that if only the injured party has permission to bring produce there, it is a courtyard of the injured party and one is liable for shen and regel—we have already heard in the first category, “Everything that is a domain of the injured party and not of the one who caused the damage.” And that one is liable for keren in a place where both of them have permission to bring oxen there was also already explained in the third category: if both this one and that one have permission, an innocuous ox pays half-damages and a forewarned ox pays full damages.

The Gemara replies:

Rav Naḥman bar Yitzḥak said: