Bava Kamma 19a — the Talmud in English

And in this do they disagree:

One Master

Rami bar Yehezkel]

holds that there is forewarning

for pebbles; therefore, he pays full damages,

whereas the other Master

the scholars of the academy]

holds that there is no forewarning

for pebbles, and therefore even after three occurrences he pays half damages.

And we reject this:

No,

this is not what it is speaking about; rather,

they disagree in a single occurrence, and they disagree in the dispute between Sumakhos and the Rabbis.

And we ask: How did Rami bar Yehezkel hold that he pays full damages,

but

this act

is unusual,

for it is not the way of a rooster to thrust its head into a vessel, and it is a derivative of Horn, for which one pays half damages?

And we answer: It is speaking

where there are

in the vessel

seeds [

and in such a case it is its ordinary manner to put its head into the vessel and eat; and since it is its manner to eat, it is likewise its manner to peck inside it]. The Rashba wrote: It is possible that according to the conclusion, when we establish the case as one in which there are seeds in the vessel, so that this is the rooster’s ordinary manner, it is not considered pebbles, but is considered as though it broke it with its body, since it put its head inside it. And so it appears to him from Rif’s words, who ruled accordingly: if there are no seeds in it, he pays half damages, and if there are seeds in it, he pays full damages. One cannot say that he pays full damages because of pebbles and according to Sumakhos, for the halakha is not in accordance with him. Rather, one must say that he pays damages even according to the Rabbis, and it is not because of pebbles, but as he explained. Maimonides wrote [Laws of Monetary Damages 2:9]: “A rooster that put its head into the airspace of a glass vessel and pecked in it and broke it: if there were spices or the like inside it, for which it put its head in order to eat them, for the spices he pays full damages, and for the vessel he pays half damages, like half damages for pebbles, for this is its manner. But if the vessel was empty, this is unusual, and he pays half damages like all penalties.” The Ra’avad objected to him: “This is an error, for pebbles through an unusual act are in question whether there is a reduced payment for one-quarter damages or not.” The Maggid Mishne explained Maimonides’ view: He holds that according to the Rabbis, although it is uncertain to us whether there is a reduced payment for unusual pebbles, this applies specifically where there is an unusual act in the body of the deed, such as scattering pebbles by kicking. But where there is no unusual act in the body of the deed, such as the rooster’s pecking, although it is not its ordinary manner to put its head into the airspace of the vessel, this is not an unusual act concerning pebbles, but is a derivative of Horn. The reason Maimonides did not include the law of the vessel in a single ruling—whether there are seeds in it or whether there are no seeds in it, he pays half damages for it—is that there is a distinction between them: whether it is considered a derivative of Horn, in which case he is liable in the public domain, or whether it is considered pebbles of Foot, in which case he is exempt in the public domain. In Derisha [section 390] he brought an additional distinction between them concerning whether he pays from his body or from the superior property. The Or Sameaḥ explained Maimonides’ view as follows: The pecking into the vessel is not unusual; only the extending of the head into the airspace of the vessel is considered unusual. And since the extending is unusual, the damage caused by its voice, which itself is not unusual, is also considered unusual, since it came through the cause of the preceding unusual act. Nevertheless, it is impossible that he should pay only one-quarter damages according to the possibility that there is a reduced payment for pebbles, for if we follow the damage that was through its force—through the rooster’s voice—then pecking into the vessel is its ordinary manner, and its law is half damages, like the law of pebbles. And if we follow the cause of the damage, namely that the owners did not guard it from an unusual act, the unusual act was the extension of its head with its body; had it damaged by breaking the vessel through extending its head, it would have paid half damages, since that is its body. And if we follow the damage caused through its force, its ordinary manner is involved. How then can one hold the rope from both ends and say that it is pebbles through an unusual act? It is possible, however, to say that we follow the cause of the damage, which is considered unusual, and the owners were not required to anticipate guarding it from something unusual. If so, the half damages that he pays are the law of half damages as a penalty, and if he admits, he is exempt; it is not like half damages for pebbles, which is a monetary obligation.

Rav Ashi raised a question:

According to the Rabbis, who hold that for pebbles one pays half damages, in a case where she acted unusually with pebbles—for example, the animal kicked with its foot, which is unusual, and because of the kick it scattered pebbles and broke vessels—what is the law? Shall we say

there is

a rule of

an unusual act concerning pebbles, so that he pays

half

damages,

since it is considered unusual and he pays only one-quarter damages? For with pebbles in the ordinary manner he pays half damages; therefore, when it is unusual he pays one-quarter damages.

Or

perhaps

there is no

rule of

an unusual act concerning pebbles, so that he pays

half

damages,

and even where it was pebbles through an unusual act he pays half damages, for there are no categories of tam and forewarned concerning pebbles, since we have not found a tam that pays less than half damages? In the Shita Mekubetzet he brought the difficulty of Ribba, who asked: What is the basis for the possibility that he pays only one-quarter damages for pebbles through an unusual act? If there is a halakha given to Moses at Sinai even when it acts unusually, then he should pay half damages; and if it is not included in the halakha given to Moses at Sinai, then he should pay half damages according to the fundamental law, for above [17b] they said that, logically, its force is like its body. If so, when it acts unusually it is considered a derivative of Horn, whose law is half damages. He answered that Rav Ashi was uncertain whether the halakha was taught only to establish that for pebbles one pays only half of the payment of its primary category. If so, when it is not unusual he pays half damages, since it is a derivative of Foot, whose law is full damages; and when it is unusual he pays one-quarter damages, since it is a derivative of Horn, whose law is half damages as long as it has not been forewarned.

And we say:

Resolve it

for this question

from Rava:

For

this is what

Rava raised as a question:

whether

there is forewarning for pebbles

and after three occurrences he pays full damages,

or there is no forewarning for pebbles

and he always pays half damages.

And from the fact that Rava was uncertain, when there was forewarning concerning pebbles, whether he pays full damages,

by inference,

that he

holds that there is no unusual act

for one-quarter damages. For if there is an unusual act concerning unusual pebbles, so that he pays one-quarter damages, then their forewarning is half damages; if so, what is the possibility that when they become forewarned they will pay full damages?

And we answer Rav Ashi: From this there is no way to resolve it.

For

perhaps Rava said it as an “if you should conclude.”

That is to say, he was uncertain concerning both, and this is what he was asking:

a. Whether there is an unusual act for one-quarter damages or not?

If

you should conclude that there

is no unusual act

for one-quarter damages, and in its tam state he pays half damages, there is still a question whether

there is forewarning

for this tam state, so that he pays full damages,

or there is no forewarning? The Yam Shel Shlomo wrote that according to Rif’s reasoning for omitting the question of forewarning, this question applies only according to the position that for pebbles one pays from his body. But according to what we hold—that he pays from the superior property—it resembles all twenty-four primary categories of damages, which are paid from the superior property, and forewarning does not apply to them, since they are forewarned from the outset, like Foot. It is impossible to say that it is considered a derivative of Horn, for we have not found a tam Horn for which one pays from the superior property. Even in those cases where a tam Horn pays full damages, such as a tam in the courtyard of the injured party according to Rabbi Tarfon, and a tam that injures a person according to Rabbi Akiva, nevertheless they pay only from the superior property. [In a similar manner Even HaAzel wrote in Laws of Monetary Damages 2:5, and brought that this essential resolution was already cited in Meiri, whose wording is: “For all those questions revolve around whether pebbles are derivatives of Horn or derivatives of Foot; and once it has been clarified that they are a derivative of Foot, we have in them neither forewarning nor an unusual act.”] In the novellas of Rabbi Aryeh Leib Malin [section 2] he explained that all the questions concerning pebbles—whether he pays from his body, whether there is forewarning, and whether there is an unusual act—apply only according to the possibility that the obligation of pebbles is a new obligation from a halakha given to Moses at Sinai, differing in its obligation from the other obligations of Foot stated in the Torah. But according to Rav Pappa, who says at the beginning of the tractate that the statement “their derivatives are not like them” was said concerning pebbles, which are a derivative of Foot, one must necessarily hold that the obligation of pebbles is among the obligations of Foot, and the halakha is only an exemption from half damages. It follows that according to our method, in which we hold like Rav Pappa, there is no need to raise any of these doubts. Other explanations of Rif’s view were brought in Or Sameaḥ [Laws of Monetary Damages, chapter 2], in Tumim, Kuntres Tefisato Kohen [sections 9 and 10], and in Naḥalat David.

And we conclude:

teyku!

Rav Ashi raised a question:

According to Sumakhos, who holds that for pebbles he pays full damages, and does not hold of the halakha given to Moses at Sinai that anyone who causes damage through his force pays half damages, does

the force of his force, according to Sumakhos, [

for example, an animal threw a pebble at a vessel and the vessel broke, and a fragment from it ricocheted onto another vessel and broke it; this damage comes through the force of its force]

have the status of his force

and he pays full damages,

or not,

so that in this case he concedes that he pays only half damages? The Rivash objected to him: If, according to the fundamental law, the force of his force exempts him entirely, and Rav Ashi was uncertain according to Sumakhos only in order to uphold the halakha, then he should have raised the question in this form: Is the force of his force not like his force, so that he is entirely exempt according to the Rabbis, or is he liable for half in order to uphold the halakha given to Moses at Sinai? Further, according to his words, it emerges that according to Sumakhos the halakha given to Moses at Sinai comes to add a payment upon him, which is not correct, for the halakha comes to reduce the payment. Therefore, the Rivash explained the opposite: According to the Rabbis it is obvious that just as his force is like his body according to the fundamental law, so too the force of his force is like his body, and according to the fundamental law he would be liable for full damages. Rather, the halakha given to Moses at Sinai reduces the payment to half damages for every damage that is not done by his actual body, namely, through his force and through the force of his force. But according to Sumakhos, who does not accept the halakha given to Moses at Sinai concerning his force, one must raise the possibility that concerning the force of his force he concedes that there is a halakha given to Moses at Sinai to reduce the payment to half damages. And so too wrote the Rosh.

And the formulation of the uncertainty is:

Do

we say that even Sumakhos

learned the halakha

given to Moses at Sinai, concerning half damages for pebbles,

and

only

establishes it with the force of his force

and not with his force; therefore, through the force of his force he pays half damages,

or perhaps he did not learn

Sumakhos at all the

halakha

given to Moses at Sinai concerning half damages for pebbles, and therefore even through the force of his force he pays full damages?

And we establish it with

teyku!

We learned in our Mishna:

If

the animal

was kicking, or pebbles were being scattered from beneath its feet and it broke vessels,

then it

pays half damages.

They raised a question before them: How is it stated—“

it was kicking”

and caused damage through its kick,

without pebbles. This is Horn. “

Or

there were

pebbles

being scattered from beneath its feet,”

in its ordinary manner,

and therefore “

it pays half damages,”

and

so

it is according to the Rabbis,

who hold that for pebbles one pays half damages,

or perhaps this is what our Mishna is saying: “

It was kicking and caused damage through its kick,”

without pebbles and it is a derivative of Horn, “

or

there were

pebbles

being scattered from beneath its feet”

because of

the

kick

that it kicked, and in this case it

pays half damages,

for it is unusual,

but if pebbles were scattered in

its ordinary manner, it pays full damages. And whose is it?

It is Sumakhos,

who holds this way?

Come and hear from the end:

for it teaches at the end of our Mishna: “

It stepped on a vessel and broke it, and the fragment fell onto another vessel and broke it: for the

vessel

first it pays full damages,

for it broke through its body.

And for

the vessel

last

it

pays

half damages,”

for it broke through pebbles.

And from the fact that it obligates half damages for pebbles, infer from it that our Mishna is not Sumakhos.

For,

and if it is Sumakhos,

it is,

does he hold of

a payment of

half damages

for pebbles? It must be that our Mishna is according to the Rabbis, and our Mishna is speaking of pebbles in their ordinary manner, not of pebbles that came because of a kick.

And if you would say: Let us establish it according to Sumakhos, and say that when it teaches “first” and “last,” it does not mean the first vessel, which was broken through its stepping, and the last one, which was broken through the scattering of the fragments of the vessel, but rather

the first, first in the scattering

—that is, the second vessel, which was broken because of the scattering of the fragments of the vessel upon which it stepped, is called by the tanna “first,” since it is the first one broken through the scattering, and for it he pays full damages, although they are pebbles and this is according to Sumakhos,

and the second, second in the scattering.

And that which it teaches, that for the last one he pays half damages, likewise means the last one in the scattering—for example, fragments scattered from that vessel which was broken through the pebbles and broke a third vessel. This last vessel was broken only through the force of the animal’s force, and in this case even according to Sumakhos he pays only half damages.

And when it teaches that for the last vessel the animal pays half compensation, this too refers to the last vessel with regard to the propulsion—for example, shards flew from the vessel that was broken through fragments and broke a third vessel. This last vessel was broken only through the animal’s force of force, and in this case even Sumakhos agrees that the animal pays only half compensation.

Since

and he distinguishes for Somchos between his force and the force of his force.

If so, it is difficult:

but concerning that which Rav Ashi asked

above, whether

the force of his force is considered like his force according to Somchos

and he pays full damages,

or not

considered like his force and he pays half-damages—let him resolve it from our Mishna:

that it is not considered like his force.

For this is why the Mishna exempts him from paying full damages for the last utensil?

Rather, necessarily, our Mishna is according to the Rabbis, and he is liable for the first [utensil] for full damages, namely, the first utensil upon which she trod, which she damaged with her body, and for the last [utensil] for half-damages, namely, the second utensil that was broken through the splashing of the fragment, which is pebbles. And from it you can resolve the first clause of our Mishna, which teaches, “or pebbles were being splashed,” that it is speaking of its ordinary manner and not because of kicking, and according to the Rabbis.

And we reject [this]:

Rav Ashi establishes it according to the Rabbis

for our Mishna.

And concerning his question above, whether there is a deviation with regard to pebbles, so that for the first three times he pays a quarter-damages, he asked it concerning this Mishna.

And he asked it as follows:

Does our Mishna say this:

she was kicking and caused damage

with her kicking, not through pebbles,

or

that

pebbles

were being splashed from beneath her feet

in its ordinary manner

and not because of kicking, he pays

half-damages;

and if so, it should be inferred from here:

here

if she splashed pebbles

because of kicking, a quarter-damages

is what he pays,

and

it is proven that

there is a deviation

with regard to a quarter-damages,

or perhaps

this is what it says:

she was kicking and caused damage through her kicking, or

that

pebbles

were splashed

because of kicking; he pays

half-damages, and it is proven

that

there is no deviation

with regard to pebbles for a quarter-damages, and therefore even for pebbles involving a deviation he pays half-damages?

with regard to pebbles resulting in payment of one-quarter of the damages. Therefore, even for pebbles propelled in an unusual manner, the owner pays half-damages?

And he concludes:

teiku!

Rabbi Abba bar Memel asked Rabbi Ami—and some say that Rabbi Hiyya bar Abba asked it: She was

the animal

walking

in the courtyard of the injured party

in a place

filled with pebbles,

such that she cannot

walk

unless she splashes

pebbles, but she did not walk in her ordinary manner

and

splash them, but rather

she kicked and splashed

a pebble with her kicking

and caused damage—what is [the law]?

Do we say:

since she cannot

walk without splashing, therefore even the pebbles that were splashed through kicking

are its ordinary manner,

and he pays half-damages, as is the law of pebbles,

or perhaps

even though, without the kicking as well, pebbles would have been splashed through her walking, nevertheless

now, in any event, it is because of kicking that she is splashing pebbles,

and it is considered pebbles through a deviation.

And the law of its payment depends upon Rav Ashi’s uncertainty as to whether there is a deviation with regard to pebbles for a quarter-damages, for if there is a deviation for a quarter-damages, here too he pays only a quarter-damages. [And according to the side that there is no deviation for a quarter-damages, there is no room at all for this uncertainty].

And we conclude:

teiku!

It was explained above that the payments for damages of tooth and foot were stated only when they caused damage in the domain of the injured party, as it is written, “and it shall consume in another’s field.” But the payments for the horn apply even to damages that occurred in the public domain,

Rabbi Yirmeya asked Rabbi Zeira: She was walking in the public domain, [

and she kicked]], ,

and she splashed

pebbles,

and caused damage

through their splashing,

what is [the law]?

Do we

compare it to the horn

since the liability for pebbles too is half-damages, like the horn,

and

therefore she is

liable

for damage from pebbles that occurred in the public domain,

or perhaps

all pebbles in their ordinary manner are

a derivative of the foot, and she is exempt

in the public domain, like the foot?

He said to him,

Rabbi Zeira:

it is logical

that pebbles are

a derivative of the foot

and she is exempt in the public domain.

Rabbi Yirmeya again asked Rabbi Zeira: The animal was walking and

splashed

pebbles

in the public domain

and

caused damage in the private domain,

for the pebbles went into the domain of the injured party and broke utensils,

what is [the law]?

Is its law like pebbles in the domain of the injured party, for which he is liable, or like pebbles in the public domain, for which he is exempt?

He said to him,

Rabbi Zeira: If

the taking up

of liability

is not here,

for the taking up of the pebble occurred in a place of exemption, then

is there setting down here?!

That is, he is certainly exempt, for since the taking up did not occur in a place of liability, it no longer matters to us where the setting down occurs.

He challenged him

Rabbi Yirmeya to Rabbi Zeira, concerning that which he said above, that we compare pebbles to the foot and he is exempt in the public domain:

It teaches:

she was walking on the road and splashed

pebbles

whether in the private domain or in the public domain,

it is

liable.

Is it not

that which it teaches,

“she splashed in the public domain,”

means that she also

caused damage in the public domain,

and it teaches that she is liable? Thus, pebbles that cause damage in the public domain are also subject to liability, because we compare it to the horn, and this is difficult for Rabbi Zeira!?

And Rabbi Zeira rejects: That which it teaches, “she splashed in the public domain,”

does not

speak of a case in which she caused damage in the public domain—for in that case she is exempt—but rather,

she splashed in the public domain

and caused damage in the private domain.

And it is in this case that she is liable, since the damage occurred in the domain of the injured party.

Rabbi Yirmeya again challenges: How can you say that she splashed in the public domain and caused damage in the private domain, and she is liable?

But you said “

the taking up is not here, the setting down is here,”

for since the taking up was in a place of exemption, the place of the damage where the pebble came to rest has no significance?

He said to him,

Rabbi Zeira:

I retract my position [I retracted my position] from this reasoning, and I said that since there is no taking up that creates liability, he is exempt; rather, on the contrary, since it came to rest and caused damage in the domain of the injured party, he is liable, even though the taking up was in the public domain.

this reasoning. I said that since there is no initial displacement that creates liability, the owner is exempt. But, on the contrary, since the pebble came to rest and caused damage in the domain of the injured party, the owner is liable, even though the initial displacement occurred in the public domain.”

Again

he challenged him

Rabbi Yirmeya to Rabbi Zeira concerning that which he exempted pebbles in the public domain like the foot:

We learned in our Mishna:

she trod upon the utensil and broke it, and the fragment fell upon another utensil and broke it; for the first utensil

that was broken,

he pays full damages,

for it is the foot, since she caused damage with her body,

and for

the

last

utensil, which was damaged through the splashing of the fragment,

he pays half-damages,

for it is pebbles,

and it teaches concerning it

in a beraita:

In what case are these words stated,

that he is liable when she caused damage

in the domain of the injured party? But

if she caused damage

in the public domain, for

the

first utensil she is exempt,

as is the law of the foot in the public domain,

but for the last

utensil, which was damaged through pebbles,

she is liable,

And we say: That which it teaches that for the last [utensil] she is liable even in the public domain,

is it not

that it is speaking of

she splashed in the public domain and caused damage in the public domain,

and it is proven that there is liability for pebbles in the public domain, because we compare it to the horn? And this is difficult for Rabbi Zeira?

And Rabbi Zeira rejects:

not

does it speak of this.

Rather, of

she splashed in the public domain and caused damage in the private domain,

and indeed, when she caused damage in the public domain, she is exempt.

Rabbi Yirmeya returned and challenged:

But you said, “the taking up is not here, the setting down is here”?

He said to him,

Rabbi Zeira:

I retract my position

from this reasoning, and indeed we follow the place of the damage.

And again we raise an objection against Rabbi Zeira:

Is that so?!