Bava Kamma 19b — the Talmud in English

But did Rabbi Yohanan not say

below

there are no

payments of

half-damages divided neither between the private domain nor the public domain

—for even in the public domain he is liable to pay,

What, is it not

that it is speaking of

[an animal] projected

pebbles

in the public domain and caused damage in the public domain?

And it is thereby proven that there is liability for pebbles in the public domain

?

No!

And it is speaking of one who

projected [pebbles] in the public domain and caused damage in the private domain.

But if it caused damage in the public domain, he is exempt.

And he challenges:

But did you not say: “There is no lifting here; there is placing here”?

He said to him: I retract

from this reasoning.

If you wish, say:

There is no difficulty at all from the words of Rabbi Yohanan, for

when Rabbi Yohanan said “

There are no divided half-damages

” with regard to the horn

alone is what he said, and he came to make known that a docile ox that caused damage always pays half-damages, whether it caused damage in the injured party’s domain or in the public domain

. And this excludes the opinion of Rabbi Tarfon, who says below that a docile ox that caused damage in the injured party’s domain pays full damages.

But with regard to payments of half-damages for pebbles, he is always exempt in the public domain.

Rabbi Yehuda Nesia and Rabbi Oshaya were sitting in the guest chamber of Rabbi Yehuda

—in the corridor before the entrance to Rabbi Yehuda’s house—and while they were occupied with Torah

this matter emerged between them:

An animal that

wags its tail

and thereby causes damage—

what

is the law? Is it considered its normal manner and therefore like tooth and foot, and is it exempt if it did so in the public domain, or not?

The other said to him:

How could it enter your mind to make one liable for tail-wagging in the public domain? For there is no way to guard against such a thing. For

would its owner hold it

by

its tail

in the public domain

and walk?

Rather, certainly he is exempt when it did so in the public domain.

And we challenge:

If so,

that your claim, “Would its owner hold it by its tail and walk,” is a reason for exemption, this is difficult: should we not also say this with regard to

every horn

as follows:

“Would he hold it by its horn and walk,”

and it should be exempt? But since it is proven that when it caused damage with its horn in the public domain he is liable to pay, it is proven that this claim is not a reason for exemption

?

Is this comparable?!

An animal that caused damage with

a horn

is

not its normal manner,

and therefore it is liable even in the public domain. But

this,

when it wags its tail, is

its normal manner

in doing so, and it is a derivative of foot. Therefore, it is indeed appropriate to exempt it when it caused damage in the public domain.

And we challenge:

But since

you said

that

tail-wagging is

its normal manner,

then

what is his question

whether it is exempt or liable in the public domain? Since it is its normal manner, certainly it is like foot and is exempt in the public domain

.

He is asking about excessive tail-wagging

—whether that too is its normal manner and it is exempt in the public domain, or whether it is not its normal manner and it is liable.

The explanation is: If it caused damage through extensive wagging, and if it had wagged only in the manner of other animals, the vessel would not have broken. SMa, section 390, subsection 6. The Ro”sh explained the passage as follows: The respondent said, “Would he hold it by its tail,” and therefore he is under duress. The Gemara challenged: If so, let us also say with regard to the horn that he is under duress. It answered that with regard to the horn this is not the animal’s manner, and therefore he is liable in the public domain; whereas with regard to tail-wagging, this is its manner, and he is exempt in the public domain. The Gemara challenged: Since it is the animal’s manner to wag its tail, what was the questioner uncertain about, such that the respondent answered him, “Would he hold it by its tail”? He should have resolved for him that it is the animal’s manner to wag its tail. The Gemara explained that the questioner was uncertain about excessive tail-wagging. His uncertainty was as follows: The law is clear that foot in the public domain is exempt, but with regard to excessive tail-wagging one may be uncertain that perhaps he is liable, since the owner is considered negligent when he saw it performing excessive wagging and did not restrain it. The respondent answered him: What could he have done? Would he hold it by its tail and walk? It is apparent from the words of the Ro”sh that even with regard to excessive tail-wagging the question was resolved, and he is exempt in the public domain. This is likewise apparent from the words of the Raavad and the Rashba, and so the Ro”sh ruled, in section 2. But the Rambam wrote, in Damages to Property 1:11, that if the injured party seized property, he collects half-damages from what he seized, since excessive tail-wagging is uncertain whether it is considered a derivative of horn, for which he is liable in the public domain, or a derivative of foot, for which he is exempt in the public domain. The Maggid Mishne explained that the Rambam holds that the respondent who said, “Would he hold it, and so on,” thought that he was asking about ordinary wagging. Therefore, the Rambam ruled that if he seized, we do not remove it from his possession, as is the case with every teyku involving monetary liability. This is likewise explained by the Rif, who says that this question remains unresolved, and so the Meiri wrote. In the Shulhan Arukh, section 390:2, he ruled according to the view of the Rambam. Rav Eina asked: If it wagged its organ

in the public domain

what

is the law? Is it like horn and liable, or like tooth and foot and exempt?

Do we say: It is comparable to horn; does not the impulse overpower the horn?!

Is it not certainly butting because its impulse overpowers it?

Here too,

the animal wags its organ because its impulse overpowers it for this purpose, and therefore

there is no difference

between wagging its organ and horn, and it is liable in the public domain, as with horn.

Or perhaps

it is not comparable to horn, for when an animal butts with

a horn, its intention is to cause damage,

whereas

this,

when it wags its organ,

its intention is not to cause damage,

and therefore its law should not be like horn but like foot, and it should be exempt in the public domain.

Rabbi Yeshaya, of blessed memory, in the Shita Mekubetzet, and a student of Rabbi Peretz proved that if something is not its manner, it is considered horn even when its intention is not to cause damage, from the case of a chicken that extended its head into a vessel and from a lion that seized and ate. Accordingly, they challenged the Gemara: Why was it uncertain about wagging the organ? It appears that the question was whether it is the animal’s manner to wag or not. If it is its manner, it is foot, and it is obvious that it is exempt in the public domain; and if it is not its manner, it is horn, even though its intention is not to cause damage. They answered that wagging the organ is considered its manner through its impulse, and the uncertainty of the Gemara was whether it is considered like a forewarned horn, which pays full damages because it is its manner through its impulse, or whether it is not comparable to a forewarned horn, since a forewarned horn intends to cause damage whereas this one does not intend to cause damage. But the Ro”sh wrote: The Gemara is uncertain whether it is considered a deviation, since it is not its manner except sometimes, when its impulse overpowers it; or perhaps, since its intention is not to cause damage, it is not comparable to horn, and for that reason it is considered foot. For since its intention is not to cause damage, why does it perform this wagging? Rather, one must say that it does so because it is its manner. And we conclude:

Teyku!

We learned in our Mishna:

Chickens are forewarned to walk in their usual manner and break,

but if a cord was tied to their feet, or if they fluttered and broke vessels, they pay half-damages.

Rav Huna said: They taught

that it pays only half-damages

when it became tied

to the chicken’s feet

by itself. But if a person tied it, he is liable

—the one who tied it pays full damages, for it is a pit, and if a person encounters it, he is liable for the damage it causes.

And we consider Rav Huna’s words, by which he established that the law of our Mishna, which says that he is liable for half-damages, applies when it became tied by itself:

“It became tied by itself”

and caused damage—

who

is it that we say

is liable

for half-damages?

If we say it is the owner of the cord,

who is not the owner of the chicken, who is liable,

what are the circumstances?

The Penei Yehoshua wrote that the Gemara could also have challenged: Why is he liable, for a pit is exempt with regard to vessels, whereas our Mishna says, “and broke the vessels”? Rather, they could have answered this challenge with difficulty, saying that “broke the vessels” refers to fluttering, or they could have established our Mishna according to Rabbi Yehuda, who holds one liable for vessels in a pit. Therefore, they preferred to challenge, “Who is liable?” A student of Rabbi Peretz wrote that the case is one in which he did not renounce ownership of the cord, and Rav Huna, who was a student of Rav, follows Rav’s view that every obstacle whose ownership was not renounced is learned from ox, and one is liable for vessels. If we say that he concealed it

—the owner of the cord hid the cord in his house, and the chicken took it out of his house—then the owner of the cord

is under duress,

so why is he liable?

And if he did not conceal it

in his house, then

he is negligent

in this, and he must pay the entire damage, for it is a pit that he cast into the public domain; whereas our Mishna teaches that he is liable to pay only half-damages.

Rashi explained: He must pay the entire damage, since it is his pit that he cast into the public domain. The Shita Mekubetzet challenged this: The owner of the chickens was also negligent, since he did not guard his chicken. One cannot say that chickens do not normally walk in another courtyard, for we learned in the Mishna, “Chickens are forewarned to walk in their usual manner and break, and so on.” He answered that although both were negligent, logic dictates that the owner of the cord should be made more liable, since the owner of the chicken is exempt because of the principle, “a person’s pit, but not an ox’s pit,” and this passage follows Rabbi Natan, who holds that when one cannot collect from one damager, one collects the entire amount from the other damager. He further answered that even according to the Rabbis, who disagree with Rabbi Natan, here they agree that the owner of the cord pays the entire damage, since he was more negligent: a cord normally winds around the feet of chickens, and this is like one’s stone, knife, or burden that fell because of an ordinary wind, for which he pays full damages even though the wind assisted. We do not say that because one cannot collect from the wind, one should not collect the wind’s share from the owner of the stone; it is difficult to explain that one collects the wind’s share from the owner of the stone because the wind is not capable of paying. See Imrei Moshe 36:1, which adds an explanation to the words of the Shita Mekubetzet. Rather,

necessarily

the one liable

that is taught in our Mishna is

the owner

of the

chicken

—that is what it refers to. Nevertheless, this too is difficult:

Why is it different that the entire damage he does not

pay? Why do we not obligate the owner of the chicken to pay? It is because

it is written:

“When a man opens a pit.”

And we expound: A man who digs a pit is liable to pay

but not an ox

that digs

a pit,

for it is exempt. Therefore, we exempt the owner of the chicken for the pit that the chicken made by carrying the cord into the public domain, because it is “an ox that digs a pit.”

And if so,

half-damages also

he should not pay. For only

a man

who digs

a pit

is liable,

but not an ox

that digs

a pit.

Rather,

necessarily,

the Mishna

is not speaking of a person who was injured by encountering the cord. Rather, our Mishna is established

as one who threw it,

meaning that the chicken threw the cord and broke vessels by its throwing. This is like pebbles projected from beneath its feet, and therefore it pays only half-damages. In such a case, even if a person tied it, the owner of the chicken would pay only half-damages, and the one who tied it is exempt, for no person encountered his pit.

Rashi explained that the chicken threw the cord. But Rabbeinu Hananel explained here: “The chicken dragged the vessel with the cord on its foot and broke it, which is an unusual act.” The reason it is liable for half-damages is explained by Rabbeinu Hananel as being that it is unusual. The Raavad likewise wrote this. But Rashi and other early authorities explained that it is liable for half-damages because of pebbles. And when

Rav Huna’s

statement was said, it was said generally,

and not with reference to our Mishna.

Rashi explained that Rav Huna’s words should not be applied to the Mishna, because in the case of throwing, the one who tied it would be exempt, since no person encountered his pit. Tosafot challenged him: Why should he not be liable on account of his fire? The chicken is considered an ordinary wind, and this is like one’s stone, knife, or burden that one placed at the top of one’s roof and that fell because of an ordinary wind and caused damage in its fall, for which one is liable on account of fire. Tosafot explained that the one who tied it is liable, but not for full damages, since the owner of the chicken is also liable, whereas the expression “a person tied it” implies that he is liable for everything. Nahalat David answered Tosafot’s challenge to Rashi: This is not comparable to fire, because with fire the fire itself is the damager without the assistance of another thing, and the wind’s action merely brings the fire closer to the damaged object. Likewise, with one’s stone, knife, or burden, the stone itself is a damager because it has weight, and likewise the knife through its sharpness; the wind merely brings them closer to the damaged object. This is not so with pebbles, which have no capacity to cause damage at all without the force of projection. If the pebble had approached the vessel without the force of projection, it would not have caused any damage at all. It follows that the principal damage was done by the force of projection, while the pebble is merely like an axe in the hand of the woodcutter. Therefore, there is no liability for it on account of fire at all. And

this is how it was stated:

an ownerless cord

tied to the chicken’s foot, which a person encountered and was injured by

Rav Huna said:

Its law is as follows: If it

became tied by itself, he is exempt.

For who is liable for this pit? The cord has no owner, and the owner of the chicken is also exempt, since it is like an ox that digs a pit, whose owner is exempt.

The Ro”sh wrote, at the end of section 2: The reason Rav Huna specified an ownerless cord is that he wished to innovate that when it becomes tied by itself he is exempt; but when the cord has an owner and he did not conceal it, the owner of the cord is liable. But if

a person tied it, he is liable

—the one who tied it, since he acquired the cord by lifting it, and consequently this cord has an owner and it is his pit. And we challenge Rav Huna’s statement:

Because of what is he liable

—the owner of the cord? For it is not a complete pit, since it did not cause damage where it was tied; the chicken dragged it to another place.

Rashi explained that the one who tied it is liable because he acquired the cord by lifting it when he tied it. Tosafot challenged Rashi: Even without acquiring the cord, he is liable for it as a pit, since he placed an obstacle in the public domain. Therefore, they explained that “a person tied it” is not specifically stated; rather, even if it was in a concealed place and he placed it in an exposed place, he is liable, since he was negligent with it, even though he neither lifted it nor acquired it. Imrei Moshe, 36:8, explains Rashi’s interpretation: Rashi had to explain in this manner because the passage implies that the cord had already been lying in the public domain. If so, by tying it to the chicken’s feet he had still not removed the effect of the initial act. Therefore, Rashi explained that he acquired it by lifting it, and now he is obligated to guard his property so that a pit will not be made through its being dragged. This is learned by a tzad ha-shaveh from pit and ox. The Rambam wrote, in Laws of Damages to Property 2:10: “Chickens are forewarned to walk in their usual manner and break. If there was a thread or strap tied to their feet, and a vessel became entangled in that thread and was dragged and broken, he pays half-damages. When does this apply? When a person tied it. But if it became tied to their feet by itself, the owner of the chickens is exempt. If the thread had an owner and the thread was not ownerless, the owner of the thread pays half-damages, for it is like a rolling pit. If the owner of the thread concealed the thread, and the chickens stepped on it, brought it out, and it became tied to their feet, and they broke vessels with it, even the owner of the thread is exempt, for he is under duress.” On the beginning of the Rambam’s words, the Raavad explains in his glosses that the case is one in which they caused damage through their walking. What the Rambam wrote, “a person tied it,” refers to the owner of the chicken. The reason he pays only half-damages and not full damages, as in the case where it caused damage with a burden on it, is that the vessel was not broken by the cord; rather, the vessel became entangled in the cord, was dragged, and broke. The Rambam follows Rava, who was uncertain whether, when it stepped on the vessel and it was dragged and broke, it is considered pebbles or its body. In Even HaAzel, the author challenged the Raavad: If his words are correct, the Rambam should have written that if the injured party seized full damages, they are not removed from his possession, as he ruled with regard to all uncertainties. Concerning what the Rambam wrote, that when it became tied by itself the owner of the chickens is exempt, the Raavad challenged: Why is he exempt? This is the chicken’s pebbles, and even with an ownerless thread he is liable. Concerning what the Rambam wrote, that if the thread had an owner he pays half-damages, the Raavad challenged that necessarily his intention is that the owner of the chicken also pays half-damages, since we do not find a payment of half-damages with regard to a pit. This is difficult in either case: If it is speaking of damage caused after the thread had come to rest, then the owner of the thread pays full damages, since it is his pit that caused damage, and the owner of the chicken is exempt. But if it is speaking of a vessel that broke through being dragged, the owner of the pit should be exempt, since it is not a pit but the chicken’s pebbles and its force. The later authorities wrote explanations and reconciliations of the Rambam’s method: What the Rambam wrote, that when a person tied it the owner of the chickens pays only half-damages, is because it is considered pebbles, as the Raavad wrote, that the vessel was dragged. And what the Rambam wrote concerning its becoming tied by itself—that he is exempt—the Hidushei Rabbi Meir Simha explained, below 24b, as follows: There is no obligation of guarding in this matter upon the owner of the chicken, because it is close to duress: the owner of the chicken might think that a cord would become tied to it and that a vessel would become entangled in a connection made by itself. Therefore, he is liable only when the owner tied it or knew of the tying. In Even HaAzel it is written that since the cord became tied by itself and is not considered its body, and it did not intend at all that an object be dragged by means of the cord, what was done through the cord is not called an act of the chicken at all; and whenever the principal act was done unintentionally, he is exempt. What the Rambam wrote, that if the thread has an owner he is liable for half-damages, the Hidushei Rabbi Meir Simha and Even HaAzel explained that the liability of the owner of the thread is on account of fire, and he pays only half-damages because he did not cause the entire damage, since the chicken also participated in the damage. See there, where they explain why we do not say here, “When one cannot collect from this one, one collects from that one.” See further Imrei Moshe, section 36, for what he wrote in explanation of the Rambam. The Vilna Gaon wrote, in Collected Innovations and Explanations on the Rambam, printed at the end of the Rambam, that the Rambam’s words are entirely incomprehensible, and it appears that the matter is as follows: A. If the cord was ownerless, or belonged to a person who concealed it, and the chicken dragged it in its usual manner and broke vessels, he pays full damages; if it threw it, he pays half-damages; and if it caused damage after it came to rest, he is entirely exempt because of “a person’s pit, but not an ox’s pit.” B. If the chicken was ownerless and the cord belonged to a person who did not conceal it, or who concealed it and another came and placed it in an exposed place, or if it was ownerless and a person tied it, the owner of the cord, the one who placed it, or the one who tied it pays full damages if it broke vessels in its usual manner; if it threw it, he pays half-damages; and if it caused damage after it came to rest, he is entirely exempt. C. If the chicken was not ownerless and a person tied the cord, or he did not conceal it, or he concealed it and another came and placed it in an exposed place, then if it broke vessels in its usual manner, the owner of the chicken pays half-damages, and the owner of the cord, or the one who tied it or placed it, pays half-damages. If the chicken threw it, the owner of the chicken pays one-quarter damages, since the damage was done through pebbles and by both of them, while the owner of the cord, or the one who tied it or placed it, pays three-quarters, in accordance with Rabbi Natan: whatever cannot be collected from this one is collected from that one. Since he was negligent in this matter, he pays three-quarters. If it caused damage after it came to rest, all are exempt. And we explain:

Rav Huna bar Menaḥem said: Because of his rolling pit, which was rolled by the feet of a person or by the feet of

an animal.

For the Gemara above [6a] derived by a common element from a pit and an ox that if one placed a stone in the public domain, and it was rolled by a person or an animal to another place and caused damage there, even though the stone did not cause damage where he placed it, nevertheless the one who placed it is liable. So too here: even though the cord did not cause damage where he tied it, nevertheless he is liable by the law of a “rolling pit.”

Mishna:

How

and in what way is

the tooth forewarned

to pay full damages? It is forewarned

to eat what is fitting for it.

When an animal eats things that are fitting for it, it is forewarned and accustomed to this; therefore its owner pays full damages.

And the Mishna explains what is something fitting for it and what is not fitting for it:

An animal is forewarned to eat fruits and vegetables,

and this is fitting for it, but

if it ate clothing or vessels,

this is not fitting for it, and it is unusual; therefore he is not liable for this because of the tooth, but because of an unwarned horn, and

he pays half the damage.

When are these words said?

When it caused damage

in the domain

of the injured party, but

if it caused damage

in the public domain,

then he is

exempt,

for we derive from the verse, as it is written, “and it shall consume in another’s field,” that there is liability for tooth and foot only when it caused damage in “another’s field,” that is, in the courtyard of the injured party. And even if it ate clothing or vessels in the public domain, he is exempt, for the reason that will be explained below in the Gemara.

And

even though we say that tooth and foot are exempt in the public domain, nevertheless,

if it benefited

from what it ate,

it pays

that is, its owner pays

that is, its owners pay what it benefited,

that is, what the owners benefited through its eating [and the Gemara explains how much this amount is].

And we explain

how

and in what manner this law is stated, that it does not

pay

except

what it benefited:

If it ate from the open area

of the public domain—

it pays

only

what it benefited,

but if it ate

from the sides of the open area, it pays what it damaged,

according to the law of an unwarned horn, which pays half the damage, and a forewarned one pays full damages [and the Gemara explains the reason for the matter].

And likewise, if it ate

from the entrance of a shop,

it does not

pay

except

what it benefited,

for the entrance of a shop is considered like the public domain. But if it ate

from inside the shop,

which is the courtyard of the injured party,

it pays

all

that it damaged.

Gemara:

The Sages taught: The tooth is forewarned to eat what is fitting for it;

how?

An animal that entered the courtyard of the injured party and ate foods fitting for it,

or

drank beverages fitting for it, pays full damages. And likewise, an animal that entered the courtyard of the injured party, preyed upon an animal, and ate meat pays full damages.

For these things are fitting for an animal.

And

likewise,

a cow that ate barley,

which is the food of a donkey,

and a donkey that ate vetch,

which is the food of a cow,

and a dog that licked oil, and a pig that ate a piece of meat,

for all these are foods fitting for them in a time of distress; nevertheless, the law is that they

pay full damages,

since in any event this is not unusual.

Rav Pappa said: Now that you have said that any matter that is not its usual manner, but it ate it under duress, is called eating,

and even when it ate it under duress it is liable for full damages, I will say that the same is true of

this cat

a cat

that ate dates, and a donkey that ate fish,

a fish; since they eat these in a time of distress, they are therefore considered food fitting for them, and

it pays full damages

even when they did so not under duress.

There was a certain donkey that ate bread

bread

and crushed

chewed

the basket,

for the bread was inside the basket, and in order to reach it the donkey chewed the basket, and thus reached the bread;

Rav Yehuda made him liable

the owner of the donkey

to pay full damages for the bread

for the bread. But

for the basket

he made him liable only for

half the damage,

since it was unusual, for it is not the manner of a donkey to chew baskets.

And we raise an objection:

But why

did Rav Yehuda consider chewing the basket unusual?

Is it not that

since it is the manner

of a donkey

to eat bread, it is likewise its manner to crush the basket

in order to reach the bread?

And we answer: Indeed, if the donkey had chewed the basket in order to reach the bread inside, Rav Yehuda would have made him liable to pay full damages, for this is its manner.

But this case is speaking of one in which it

ate

the bread

and afterward crushed

and afterward chewed the basket; and if so, the chewing of the basket was not in order to reach the bread. Therefore, it is certainly unusual, and he pays only half the damage.

And we raise an objection to this, that Rav Yehuda made him liable for full damages for the bread because it is the manner of a donkey to eat bread:

But is bread its usual manner?!

And we refute this

as a contradiction to this, from the fact that it is taught in a beraita:

If it ate bread, meat, or a cooked dish, it pays half the damage; is it not

that this beraita is speaking

of an animal,

and it proves that it is not the manner of an animal to eat bread?

And we reject this: This beraita

does not

speak of an animal, but rather

of an animal of prey,

and indeed it is not the manner of an animal of prey to eat bread, but it is the manner of a donkey to eat bread.

And we raise an objection: If it is speaking of

an animal of prey,

it is difficult from the fact that this beraita teaches that for meat it pays half the damage; and why? Is the eating of

meat its usual manner

for an animal of prey?

And we answer:

It was roasted,

for the meat was roasted, and it is not the manner of an animal of prey to eat roasted meat.

And if you wish, say

this beraita is speaking

of a deer,

a deer, whose manner is not to eat meat.

And if you wish, say: In fact

this beraita is speaking

of an animal.

And the reason that it pays only half the damage for the bread is that it is speaking

of a table,

a table, with the bread placed on the table, for this certainly is not the manner of an animal to eat bread from atop a table.