Bava Kamma 20a (כ.) — the Talmud in English

There was a certain goat [

a goat ]

that saw a turnip at the mouth of a barrel [

that saw a turnip at the opening of the barrel ]

clung to it and climbed up,

and

ate the turnip [

it clung to the barrel, climbed onto it, and ate the turnip ]

and broke the barrel [

and also broke the barrel ].

Rava held the owner of the goat liable

to pay the owner of the barrel

for the turnip and the barrel, full damages,

even though goats do not generally climb onto barrels, and this is therefore an unusual act. In this case, however, it is different.

What is the reason?

Since it is its usual manner to eat turnips, it is also its usual manner to cling and climb

onto the barrel in order to eat the turnip.

Ilfa said: If an animal

that was walking

in the public domain stretches out its neck and eats from on top of another animal, it is liable,

What is the reason?

Because

the area on top of its fellow

is considered like the courtyard of the injured party,

even though the other animal is standing in the public domain.

And we said:

Let us say that this supports him

from what we learned in a beraita:

If one’s basket was slung behind him, and an animal stretched

its

neck and ate from it, it is liable.

This proves that the area on top of the person from whom the animal ate is considered like his courtyard, for otherwise this would be shen in the public domain, for which one is exempt.

And the same applies to the area on top of an animal: it is considered like the courtyard of its owner. Therefore, if an animal eats from there, it is considered as though it ate in the domain of the injured party, and it is liable.

We reject this: This does not prove that the area on top of an animal is considered like the courtyard of its owner, because it can be established

as Rava said [

in another context, as follows ], that the case concerns

an animal that jumps; here too

the case

concerns an animal that jumps

onto the neck of the other animal. Since this is not its usual manner, it is a derivative of keren, and therefore, even though it is in the public domain, it is nevertheless liable according to the law of keren. [

And when Ilfa said that it is liable, he did not mean full damages; rather, he meant payment of half-damages, as is the law concerning an innocuous keren. ]

And where was Rava’s statement

that he said: “an animal that jumps”?

It was concerning that which Rabbi Oshaya said: If an animal

that is

in the public domain walks and eats, it is exempt,

but if it

stops and eats, it is liable.

We raised a difficulty concerning this:

What is different about walking

that it is exempt, since

this is its usual manner?

If so,

stopping also

should have been exempt, since

this is its usual manner?

And

Rava said

concerning this: The stopping mentioned by Rabbi Oshaya does not mean an ordinary stop; rather, it means

an animal that jumps.

Since this is unusual, it is liable even in the public domain.

Rabbi Zeira raised a dilemma: What is the status of an object that rolls?

The Gemara explains his dilemma:

What are the circumstances? For example, a bundle of straw [

a bundle of straw ]

is standing in the private domain,

while the animal is in the public domain,

and the bundle is rolling

out

from the private domain into the public domain

because of the animal. The animal then eats the bundle in the public domain:

What is the halakha?

Do we follow the place of eating, and since the eating took place in the public domain, it is exempt? Or do we follow the place of taking, and since the animal took the bundle from the domain of the injured party, it is liable?

Come and hear, as Rabbi Hiyya taught: With regard to a load [

and at this point the Gemara understood this to mean a sack full of barley ]

part of which is inside

the domain of the injured party

and part of which is outside

in the public domain, the law is as follows:

If it ate the part inside, it is liable; if it ate the part outside, it is exempt,

Is it not

a case in which it ate the entire load, and the load was

rolling and coming

out? And this is what he is saying: If it ate it inside—for example, it rolled the entire load inside, into the private domain, and ate it there—it is liable; but if it ate it outside, meaning that it rolled it outside, into the public domain, it is exempt.

Thus, evidently, we follow the place of eating.

We reject this:

No,

rather,

say

this: It makes no difference whether it rolled the entire load inside or whether it rolled the entire load outside.

In fact, when it

ate—it ate

what had been

originally

inside—it is

liable;

and

it ate

what had been

originally

outside,

it is

exempt.

Alternatively, one can say: Reject this and say as follows: In fact, the meaning is that if it ate the entire load inside, it is liable for all of it, and if it ate the entire load outside, it is exempt for all of it. Nevertheless, one cannot resolve from here that we follow the place of eating. The reason is that Rabbi Hiyya was not speaking of a sack of barley. Rather,

the rejection can be stated as follows: The meaning is indeed that if the animal ate the entire load inside, the owner is liable for all of it, and if it ate the entire load outside, the owner is exempt for all of it. Nevertheless, this does not resolve the question in favor of following the place where the animal ate.

This is because Rabbi Hiyya was not actually discussing a sack of barley. Rather,

when Rabbi Hiyya spoke, he was speaking of a bundle of alfalfa,

which is a load of hay whose strands are long, with one end inside and the other end outside. Since it is all one object, when the animal eats from one side, the other side is also drawn toward the place where the animal is standing. Therefore, in this case we certainly follow the place where the animal is standing.

But our dilemma concerns a load of barley, in which part of the barley is entirely inside and part is entirely outside. When the animal eats this load of barley, the rest does not roll toward it; rather, it rolled the entire load toward itself. Therefore, it is possible that we follow the place where the barley was originally located and hold the animal liable for the time of the rolling. Consequently, Rabbi Hiyya’s teaching cannot resolve Rabbi Zeira’s dilemma concerning a rolling object.

We learned in our Mishna: “How is shen forewarned to eat that which is suitable for it, etc.?”

If it ate garments

or utensils, one pays half-damages. And afterward we learned: “In what case is this statement said? In the domain of the injured party; but in the public domain, one is exempt.”

We raise a difficulty concerning what we learned: “In what case is this statement said? In the domain of the injured party.”

To which law

is this stated with reference? To which law does this refer? Is it only with reference to the law that “shen is forewarned to eat that which is suitable for it,” and the Mishna states concerning this: In what case is shen liable? In the domain of the injured party?

Or does it also refer to the law concerning “if it ate garments or utensils,” for which it is liable for half-damages, teaching that this law too applies only in the courtyard of the injured party?

Rav said: The phrase “In what case is this statement said,”

which the Mishna teaches,

refers to all of them

—it applies to all the preceding laws.

And

what is the reason

that if it ate garments or utensils in the public domain, it is exempt? Is this not an unusual act, for which it should be liable under the law of keren, and keren in the public domain entails liability?

Because

anyone who acts unusually,

such as one who places his utensils in the public domain,

and another comes and acts unusually with regard to them,

such as this animal that ate them, is

exempt.

And Shmuel said: The statement was taught only

that one is liable only in the domain of the injured party

but

when it ate

fruits and vegetables,

which is shen, and shen in the public domain is exempt.

But

if it ate

garments

or

utensils,

which is keren, it is

liable

even if it ate them in the public domain.

And Reish Lakish likewise said

in accordance with Rav:

all of them

are included in the Mishna’s statement that one is liable only in the domain of the injured party, based on the principle that anyone who acts unusually, and another comes and acts unusually with regard to it, is exempt.

And Reish Lakish followed

in this matter

his own approach [

his method ].

For Reish Lakish said: If there are two cows

that are

in the public domain, one

of them

is crouching, and one

of them

is walking

in its ordinary manner, and if

the walking one kicks

the

crouching one, it is

exempt,

because the crouching cow should not have crouched in the public domain. Anyone who acts unusually, and another comes and acts unusually with regard to it, is exempt.

since the crouching cow should not have been lying in the public domain. Anyone who acts unusually, and another comes and acts unusually with regard to it, is exempt.

But if

the crouching one kicks the walking one, it is

liable,

because

kicking is a derivative of keren, and keren in the public domain entails liability.

It follows that Reish Lakish holds that anyone who acts unusually, and another comes and acts unusually with regard to it, is exempt. Therefore, he likewise holds that if an animal ate garments or utensils in the public domain, it is exempt.

And Rabbi Yohanan said

with regard to the interpretation of our Mishna:

The statement was taught only

when it ate

fruits and vegetables,

in which case it is exempt in the public domain.

But

if it ate

garments

or

utensils,

which is keren, it is

liable,

even if it ate them in the public domain.

And we say: Since it is evident that Rabbi Yohanan disputes Reish Lakish concerning the law of an animal that eats garments or utensils in the public domain, he evidently does not accept the principle that “anyone who acts unusually, and another comes and acts unusually with regard to it, is exempt.” If so,

shall we say that Rabbi Yohanan does not accept

the law

of Reish Lakish even with regard to two cows

that are in the public domain, and holds that even if the walking cow kicks the crouching one, it is liable?

We reject this:

No. In fact, he does accept

the law of Reish Lakish, that when the walking cow kicks the crouching one, it is exempt, based on the principle that anyone who acts unusually, and another comes and acts unusually with regard to it, is exempt. One cannot bring proof from Rabbi Yohanan’s ruling concerning garments and utensils to the case of two cows, because

garments

lying in the public domain are different: placing them there is not considered acting unusually, since

people do

[

it is people’s practice ]

to spread out garments and rest [

they place their garments down in order to rest from the exertion of the road ]. They have permission to do so, and therefore an animal that damages them is liable.

But an animal—it is not its usual manner to crouch in the public domain, and therefore this is an unusual act. If the walking cow acts unusually by kicking it, it is exempt.

Introduction to the sugya of “This one benefits and that one does not suffer a loss”

There are many circumstances in which a person benefits from another’s property without having arranged in advance with him to pay for the benefit.

One circumstance is when someone benefits from another’s property in a manner that actually increases his own assets—not merely by saving himself an expenditure—and it is consequently as though he now possesses the other’s property.

In such a case, there is no doubt that he must pay the other person full compensation for the increase in his assets resulting from the benefit he received.

A second circumstance is when someone derives a temporary benefit by diminishing another’s property, such as one who eats another’s property, and now nothing remains in his possession from that benefit [and in a case in which he cannot be held liable either under the law of one who causes damage or under the law of a robber].

In such a case, he must pay “at a discount,” meaning two-thirds of the customary price for that benefit.

In both of these circumstances, everyone agrees that he must pay; there is no dispute concerning the matter. The sugya before us, however, discusses a case in which a person benefits from another’s property without diminishing the other’s property: Is he required to pay for this benefit? This type of benefit is called “this one benefits and that one does not suffer a loss,” and the amoraim dispute whether he must pay for this benefit.

This type of benefit has four forms. The first: The beneficiary is not accustomed to paying for such a benefit, and the provider is likewise not accustomed to accepting payment for such a benefit.

The second: Both the beneficiary and the provider ordinarily engage in this in return for payment.

The third: The beneficiary is not accustomed to paying, while the provider is accustomed to accepting payment.

The fourth: The beneficiary is accustomed to paying, but the provider is not accustomed to accepting payment.

When neither of them ordinarily pays for the benefit, it is obvious that no payment is due for it.

And when both ordinarily pay for the benefit, or even when only the provider is accustomed to accepting payment for it, the beneficiary must pay for the benefit.

The entire discussion concerns the fourth form, in which the beneficiary is accustomed to paying and the provider is not accustomed to accepting payment: Is payment nevertheless required in such a case, when they did not arrange it at the outset?

The case discussed by the Gemara concerns one who resides in another’s courtyard [house] without the owner’s knowledge. The resident is accustomed to renting a house and living in it, whereas the owner of the courtyard is not accustomed to rent it out. The resident benefits from living in the house, since if he had not rented this house he would have rented another, while the owner suffers no loss, since he is not accustomed to rent it out.

The amoraim dispute the meaning of Rabbi Yohanan’s view: Must the resident subsequently pay him rent?

The reasoning for exempting him is: “What has he done to him [the resident to the owner of the courtyard], and what loss has he caused him, and what damage has he done to him?”

That is, according to this view, there is no obligation to pay for benefit alone unless it also involved a financial loss to the owner of the courtyard, [Hiddushei Rabbi Shimon Shkop, section 19].

The Penei Yehoshua explains that, according to Tosafot, this law derives from “coercion with regard to the attribute of Sodom”—that is, a person can be compelled to allow another to benefit from him when this causes him no financial loss, [and this is likewise implied by Tosafot in tractate Bava Batra 12b, s.v. “for example,” and by Maimonides, Laws of Neighbors 7:8].

There are amoraim who exempt him from payment because the homeowner benefits when the house is inhabited and is not left desolate and empty, as will be explained below.

The Rishonim nevertheless dispute whether these amoraim disagree with the principle that “this one benefits and that one does not suffer a loss—the beneficiary is exempt,” and therefore offered a different reason here, or whether they too agree that he is exempt and stated this reason only as support—namely, that he even did the homeowner a favor by living in his house—or in order to exempt him from payment for the slight loss caused by his use of the house.

We learned in the Mishna:

And if you benefited, you pay

according to the benefit you received.

The Gemara explains: From the fact that it teaches, “you pay according to the benefit you received,” it follows that the owners do not pay the entire value of what the animal ate, but rather only the value of its benefit—

And how much

is the value of its benefit?

Rabba said: The value of straw [

straw and hay ] alone is what one pays, even if it ate barley, which is more suitable for it than straw. This is because the owner of the animal can say to the owner of the barley: “I do not wish to feed it barley, but only straw and hay.”

Rava said: It is not sufficient for him to pay the value of straw if it ate barley; rather, he pays

If the animal ate barley, it is not enough for its owner to pay the value of straw. Rather, he pays

the value of barley —

for barley is the food suitable for an animal, and it is better for it than straw—

at a discount,

meaning that he does not pay its market value, but two-thirds of the value of the barley.

A beraita was taught in accordance with Rabba’s opinion [

we found a beraita that supports Rabba ], and

another beraita was taught

in accordance

with Rava’s opinion.

The Gemara explains:

A beraita was taught in accordance with Rabba’s opinion: Rabbi Shimon ben Yohai says: She pays only the value of straw.

A beraita was taught in accordance with Rava’s opinion,

in a beraita that explains the law of our Mishna: “

And if you benefited, you pay according to the benefit you received,”

how?

If it ate a kav or two kav, we do not say that it should pay

their value. Rather, we assess: How much would a person wish to feed his animal

of something suitable for it,

such as barley for a donkey,

even though he is not accustomed

to feed it this, and this amount is two-thirds of the value of the food suitable for it. For it is reasonable to assume that at such a price he would be willing to purchase barley and feed it to the animal, even though he is not accustomed to spend so much on its food.

And

therefore,

since the assessment is made with regard to food suitable for it, if

it ate wheat or something harmful to it,

it is

exempt,

since it did not benefit.

Rav Hisda said to Rami bar Hama: You were not with us last night in the outlying area, when we raised excellent matters [

you were not near enough to come to us, in order to hear the important dilemmas that we raised ]!

Rami bar Hama said

to Rav Hisda:

What are these excellent matters [

what were those important dilemmas ]?

He said—

Rav Hisda

replied to him

Rami bar Hama:

We raised a dilemma concerning the law of

one who resides in another’s courtyard without

his knowledge,

the knowledge of the owner of the courtyard, whether

the resident

in the courtyard

must pay him rent, or whether he need not.

The Gemara is surprised by the dilemma:

What are the circumstances [

in what case did they raise the dilemma ]?

If we say it concerns a courtyard that is not ordinarily rented [

a courtyard that is not intended for rental ], and his residence did not prevent the owner from renting it to someone else,

and

the case is one of

a person who is not accustomed to rent [

a person who does not generally rent dwellings ], because he has many dwellings available to him free of charge, or because he has a dwelling of his own—then it is impossible to say that:

What room is there to question whether he must pay? After all,

this one—

the resident—

did not benefit,

since he has somewhere else to live;

and

also

this one,

the owner of the courtyard,

did not suffer a loss

through this person’s residence, and in such a case there is no doubt that the resident is exempt.

Rather,

it must be stated that the uncertainty concerns a case in which he lived

in a courtyard that is fit to be rented [the courtyard is intended for rental],

the courtyard is fit for rental ,

and the person is one who normally rents [the person living there needs to rent a dwelling for himself, and has nowhere else to live]. Even so, this cannot be said, because:

the person living there needs to rent a dwelling for himself and has nowhere else to live. Even in this case, however, it is impossible to say that there is no obligation to pay, because:

What uncertainty is there here!? Surely,

this one—

the resident—

benefited, and

also

this one—

the owner of the courtyard—

suffered a loss,

as he was prevented from renting it to others, and it is obvious that he must pay.

The Gemara explains the question:

It is necessary:

Rav Ḥisda was uncertain only in a case in which he lived

in a courtyard that is not fit to be rented, and the person is one who normally rents [the courtyard is not intended for rental, whereas the resident would have needed to rent a dwelling], and the uncertainty is

the courtyard is not fit for rental, whereas the person living there would have needed to rent a dwelling. In this case the uncertainty is

what

the law of the payment is. Perhaps

he can say to him—

the resident to the owner of the courtyard:

“What have I deprived you of

[what have I deprived you of] by living in your courtyard?”

Or perhaps he can say

the owner of the courtyard to the resident: