Bava Kamma 18b (יח:) — the Talmud in English

However,

in

the case of an animal that is

forewarned from its outset,

such as these pebbles, which are its usual manner of causing damage.

does he hold

that the aspect of tamut remains in its place?

But these pebbles never had the status of tamut at all! Therefore, once again, it is impossible to establish the beraita as referring to pebbles that are the animal’s usual manner of causing damage, and thereby resolve Rava’s uncertainty by concluding that he pays from the animal’s body. For if so, Rabbi Elazar’s position would be difficult for you, as he maintains that he pays full damages from the animal’s body. For we have not found a case of full damages paid from the animal’s body.

Rather,

if you wish to establish the beraita as referring to pebbles that are the animal’s usual manner of causing damage, and to resolve Rava’s question by concluding that he pays from the animal’s body, we must explain Rabbi Elazar’s position, who maintains that he pays full damages from the animal’s body, as follows: In fact, both agree that pebbles entail payment of half-damages.

And

when Rabbi Elazar says that full damages

are paid, he is referring to

a case where it was forewarned

with regard to pebbles—for example, where the dog caused damage three times by means of pebbles in its usual manner.

And here they disagree: One Sage maintains that there is forewarning with regard to pebbles, and one Sage maintains that there is no forewarning with regard to pebbles.

The Rabbis maintain that there is no forewarning with regard to pebbles, and therefore one always pays only half-damages. Rabbi Elazar, however, maintains that the law of forewarning applies even to pebbles, like it applies to the other cases of half-damages [such as keren], which become full damages through forewarning. Likewise, pebbles, which initially entail half-damages, become full damages once the animal has been forewarned. And the reason that, according to Rabbi Elazar, he pays from the animal’s body is that he holds in accordance with Rabbi Yehuda, who maintains that the aspect of tamut remains in its place; therefore, even once the animal has been forewarned, the law of tamut has not departed from it. For the half-damages he pays only from the animal’s body [this is Rashi’s interpretation of the Gemara according to one explanation].

And we challenge this:

Rather,

if so, since they disagree with regard to the law of forewarning for pebbles, it is not understood

that

which

Rava asked

:

Is there forewarning with regard to pebbles?

Rava was uncertain: Since the first time an animal causes damage by means of pebbles it pays half-damages, like keren, it is reasonable to compare pebbles to keren also with regard to forewarning, so that after three occurrences it pays full damages for pebbles.

Or

perhaps

there is no forewarning with regard to pebbles,

and it always pays half-damages, since pebbles are a derivative of regel, and it is the animal’s usual manner, so the concept of forewarning does not apply to them. For the animal is already forewarned from the first occurrence with regard to pebbles, as is the case with regel [for we find tamut only with keren], and nevertheless it pays only half-damages. If so, what difference is there with regard to forewarning when it causes damage additional times?

And if you say that the Rabbis and Rabbi Elazar in the beraita disagree with regard to forewarning for pebbles, this is difficult: According to whom was Rava uncertain?

If it is according to the Rabbis,

they maintain

that there is no forewarning with regard to pebbles.

And

if

it is according to

Rabbi Elazar,

he maintains

that there is forewarning with regard to pebbles.

And we answer:

Rava could say to you: My question, whether there is forewarning with regard to pebbles,

was asked only

according to the Rabbis, who disagree with Sumakhos,

and maintain that one pays half-damages.

But here, both the Rabbis and Rabbi Elazar hold in accordance with Sumakhos, who says: For pebbles, one pays full damages!

The case never involved an animal that was forewarned with regard to pebbles.

And what is the reason, say the Rabbis, that half-damages

are paid? It is because the case involves

an unusual act

with a live coal: The dog threw the live coal in its mouth onto a stack of grain. This is unusual, and is a derivative of keren,

and the animal was not forewarned. And the Rabbis and Rabbi Elazar disagree in the dispute between Rabbi Tarfon and the Rabbis

: The Rabbis maintain that an animal that is tam always pays half-damages from its body, while Rabbi Elazar maintains in accordance with Rabbi Tarfon that an unusual act in the courtyard of the injured party entails full damages, paid from the animal’s body.

Since this is the case, this beraita cannot resolve the uncertainty whether payment for pebbles is made from the animal’s body, nor can it resolve the uncertainty whether there is forewarning with regard to pebbles.

And we challenge this:

Granted, you have heard that Rabbi Tarfon maintains

that keren in the courtyard of the injured party

entails full damages,

which are paid.

But have you heard that he maintains that they are paid

from the animal’s body!?

Perhaps Rabbi Tarfon maintains that in the courtyard of the injured party, where full damages are paid, they are paid from the upper level and not from the animal’s body. How, then, can Rabbi Elazar, who says that in the case of a dog that took a live coal, full damages are paid from the animal’s body, be established as following the view of Rabbi Tarfon with regard to an unusual act? According to Rabbi Tarfon, payment is made from the upper level! And we answer:

Yes!

Certainly, according to Rabbi Tarfon, payment is made from the animal’s body.

For

from where does he derive it [from where did Rabbi Tarfon learn]

that an unusual act in the courtyard of the injured party entails full damages? He learned it by means of a

kal va-chomer from keren in the public domain. Just as in the public domain, where the Torah was lenient with regard to payments for shen and regel, for which one is exempt, the Torah was stringent with regard to keren that caused damage there, so that one pays half-damages, so too, in the domain of the injured party, where the Torah was stringent with regard to shen and regel, requiring payment of full damages, all the more so should it be stringent with regard to keren, requiring payment of full damages.

Therefore, let us say:

The principle of dayyo for that which is derived [through a kal va-chomer]

is that it be like the subject from which it is derived,

from which you are learning:

Just as keren in the public domain, whose stringency in the public domain you derive, is paid for only from the animal’s body,

so too, in the domain of the injured party, where full damages are paid, they are paid only from the animal’s body.

And we challenge this:

But Rabbi Tarfon

disagrees with the Rabbis, and

does not accept

this principle of

dayyo,

“that which is derived be like the subject from which it is derived”!

For if he accepts the principle of dayyo, he should require only half-damages in the domain of the injured party, as with keren in the public domain, since the derivation is made from keren in the public domain, where only half-damages are paid.

And we answer:

When Rabbi Tarfon does not accept

the principle of

dayyo,

that is specifically

where

applying “dayyo”

would entirely refute the kal va-chomer,

such as if we were to say, “The subject derived should be like the subject from which it is derived,” and therefore keren in the domain of the injured party should entail only half-damages. In that case, “dayyo” would render the kal va-chomer entirely ineffective, since half-damages are paid in the domain of the injured party in any event [even without the kal va-chomer, since the Torah did not distinguish between the public domain and the domain of the injured party with regard to payments for keren].

But

where the kal va-chomer is not refuted,

as here, where we apply dayyo only to the fact that payment is made from the animal’s body, while the kal va-chomer is still effective in teaching that full damages are paid in the domain of the injured party, it is properly the case that he

does accept

dayyo.

It follows that even according to Rabbi Tarfon, who maintains that an unusual act in the domain of the injured party entails full damages, nevertheless payment is made only from the animal’s body and not from the upper level. Accordingly, Rabbi Elazar, who says that full damages are paid from the animal’s body, can properly be established as following his view.

The substance of the matter: Rava asked:

In a case where an animal caused damage by means of pebbles three times,

is there forewarning with regard to pebbles, or is there no forewarning with regard to pebbles?

The sides of the uncertainty are:

Do

we compare it to keren,

since payment for pebbles is half-damages, like keren, and therefore once the animal has been forewarned it pays full damages, like a forewarned keren,

or perhaps,

since even the first time, pebbles are

a derivative of regel,

for it is its usual manner,

it is

common for the animal to cause this damage, and it is forewarned from its outset, yet it pays only half-damages, therefore even after three occurrences it pays only half-damages.

And we seek to resolve this question:

Come and hear:

We find that the tanna’im disagree about this in a beraita.

As it was taught:

The stomping [the rooster’s dancing] on utensils

does not render it forewarned,

and it pays half-damages.

And some say: This renders it forewarned.

And this is difficult: Is it conceivable that merely for

stomping

alone

it would enter your mind

that there is an authority who says that the animal pays half-damages?

But it caused damage with its body, and this is full-fledged regel.

Rather,

say:

stomping and propelling,

where, through its stomping, it propelled pebbles onto utensils and they broke, which is therefore a case of pebbles.

Is it not,

referring

to a case where it did

so

three times? And here they disagree

in the beraita:

One

who says that stomping and propelling renders the animal forewarned

maintains that there is forewarning

with regard to pebbles, and therefore it pays full damages.

And the other

who says that it does not render the animal forewarned

maintains that there is no forewarning

with regard to pebbles; therefore, even though it did so three times, it is not forewarned and pays half-damages.

And we reject this:

No,

the case does not involve

a

n animal that did so three times, but only

once, and they disagree in the dispute between Sumakhos and the Rabbis.

The one who says that it is not forewarned holds in accordance with the Rabbis, who maintain that payment for pebbles is half-damages. And the one who says that it is forewarned holds in accordance with Sumakhos, who maintains that payment for pebbles is full damages. Therefore, this cannot resolve the question whether there is forewarning with regard to pebbles.

Come and hear:

As it was taught:

An animal that released dung onto dough [and this damage is pebbles, as it caused damage through its force and not with its body]

Rabbi Yehuda says:

It

pays full damages, whereas Rabbi Elazar says: half-damages

it pays.

Is it not,

referring

to a case where it did

so

three times, and Rabbi Yehuda and Rabbi Elazar disagree here

:

One [

Rabbi Yehuda]

maintains that there is forewarning

with regard to pebbles, and therefore it pays full damages.

And the other [

Rabbi Elazar]

maintains that there is no forewarning

with regard to pebbles, and therefore even after three occurrences it pays half-damages. It follows that the tanna’im disagree with regard to Rava’s question.

And we reject this:

No,

this is not the subject of their dispute. Rather, the case involves an animal that released dung only

once.

And they disagree in the dispute between Sumakhos and the Rabbis,

who disagree whether payment for pebbles is half-damages or full damages.

And we challenge this:

But

the release of dung onto dough

is an unusual act,

as this is not its usual manner, and it is a derivative of keren. According to everyone, it should therefore pay only half-damages, as is the law of keren. Why, then, does Rabbi Yehuda maintain that it pays full damages?

And we answer: Here, the case involves

a situation in which the world is constricted for it.

The animal is standing in a confined place, and it is not unusual for it to release its dung onto the dough, since it has no possibility of moving from there. It is therefore properly considered pebbles in the animal’s usual manner.

And we ask: If Rabbi Yehuda and Rabbi Elazar disagreed in the dispute between Sumakhos and the Rabbis, this is difficult:

Let Rav Yehuda say: The halakha is in accordance with Sumakhos! And let

Rabbi Elazar say: The halakha is in accordance with the Rabbis!

Why did they formulate their dispute using the case of an animal that released dung onto dough?

And we answer: The law of

dung is what was necessary to teach us,

namely,

it might enter your mind to say, since

dung

is dragged along with its body,

the animal’s body,

being drawn along

since the animal carries it on its body,

it is like

damage caused with

its body

and is not pebbles at all, so according to everyone it should entail full damages.

It teaches us

that even dung is pebbles, and therefore it is included in the dispute between Sumakhos and the Rabbis.

The Gemara brings another proof to resolve Rava’s question whether there is forewarning with regard to pebbles:

Come and hear: For Rami bar Yeḥezkel taught: A rooster that extended its head into the airspace of a glass vessel and crowed in it

with its voice

and broke it,

as the vessel cracked because of the sound, which is pebbles, since it caused damage through its force,

pays full damages.

And

conversely, we find that

Rav Yosef said: They said in Rav’s study hall:

[in Rav’s academy]

A horse that neighed

[vocalized with its voice]

and a donkey that brayed and broke utensils

with its voice

pay half-damages.

Is it not that

both are speaking

of a case where it did so,

having thrust

three times.