Bava Kamma 20a — the Talmud in English

That goat [

goat]

that saw a turnip at the mouth of a barrel [

that saw a turnip at the mouth of the jug]

clung, climbed,

and

ate the turnip [

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

and broke the barrel [

and it also broke the barrel].

Rava obligated him

the owner of the goat to pay

for the turnip and the barrel full damage,

even though it is not the way of goats to climb onto barrels, and it is unusual. Here it is different.

What is the reason?

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

onto the barrel for the purpose of eating the turnip.

Ilfa said: An animal

that was walking

in the public domain and stretched out its neck and ate from atop its fellow, is liable,

What is the reason?

Because

“atop its fellow”

is considered like the courtyard of the injured party,

even though it is standing in the public domain.

And we said:

Let us say that this supports him

from what we learned in a beraita:

If his basket was slung behind him, and [the animal] stretched

the animal its

neck and ate from it, it is liable.

And it is proven that the area atop the person from whom the animal ate is considered like his courtyard, for if not, it would be shेन in the public domain, and it would be exempt.

And the same applies: the area atop an animal is considered like the courtyard of its owner; therefore, if an animal ate from there, it is as though it ate in the domain of the injured party, and it is liable.

And we reject this: From this one cannot prove that the area atop an animal is considered like the courtyard of its owner, because it can be established

as Rava said [

in another matter, as follows], that it is speaking

of jumping; here too

it is speaking

of jumping

onto the neck of the animal, which is not its usual way, and it is a derivative of keren; therefore, even though it is the public domain, nevertheless it is liable according to the law of keren. [

And what Ilfa said, “is liable,” does not mean full damage, but rather to pay half-damage, according to the law of a harmless keren.]

And where was Rava’s statement

that he said: “of jumping”?

Regarding that which Rabbi Oshaya said: An animal

that is found

in the public domain, if it walked and ate it is exempt,

but if it

stood and ate, it is liable.

And we raised a difficulty concerning it:

What is different about walking

that it is exempt, since

it is its usual way;

if so,

standing also

it should have been exempt, for

is it not its usual way?

And

Rava said

concerning this: The “standing” that Rabbi Oshaya stated does not mean standing ordinarily, but rather

jumping. And since it is unusual, therefore it is liable in the public domain.

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

Rabbi Zeira raised a question: What is the law of rolling?

And we explain his question:

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

a bundle of straw]

in the private domain

and the animal is in the public domain,

and the bundle is rolling

the bundle of straw

and comes from the private domain into the public domain

through the animal. And afterward the animal ate the bundle of straw in the public domain

, what

is the law? Do we follow the place of eating, and the eating was in the public domain, and it is exempt; or do we follow the taking, and the animal took the bundle of straw from the domain of the injured party, and it is liable?

Come and hear: For Rabbi Hiyya taught: A load [

and now the Gemara understood that this means a sack full of barley] that

part of it is inside

the domain of the injured party,

and part of it is outside

in the public domain, its law is as follows:

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

Is it not

speaking of a case in which it ate all of it, and it is speaking of a case in which it

was rolling and coming,

and this is what it says: If it ate it inside, for example, it rolled all of it inside into the private domain and ate it there, it is liable; but if it ate it outside, that is, it rolled it outside into the public domain, it is exempt.

It follows that we follow the place of eating.

And we reject this:

No,

but

say

as follows: It makes no difference whether it rolled everything inside or whether it rolled everything outside.

Always, when it

ate—

what was

originally

inside—

it is

liable,

and

what was

originally

outside,

it is

exempt.

Alternatively, if you wish,

reject it and say as follows: Indeed, the meaning is that if it ate it inside, it is liable for all of it, and if it ate it outside, it is exempt from all of it; nevertheless, you cannot resolve from this that we follow the place of eating.

Because Rabbi Hiyya was not speaking of a sack of barley, but rather

when Rabbi Hiyya said this, he was speaking of a stalk of alfalfa,

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

But our question is in a case such as a load of barley, part of which is entirely inside and part of which is entirely outside. When it ate this load of barley, the rest does not roll toward it, but it rolled everything toward itself. Therefore one must inquire: perhaps we follow the place where it was initially located and obligate it for the time of rolling. Therefore, one cannot resolve Rabbi Zeira’s question concerning rolling from the teaching of the school of Rabbi Hiyya.

We learned in our Mishna: “How is shן forewarned? To eat that which is suitable for it, and so on.”

If it ate clothing

or vessels, it pays half-damage. And we learned afterward: In what case is this said? In the domain of the injured party; but in the public domain it is exempt.

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

To which

did it state this? To what did we apply this? Is it only to the law “shן is forewarned to eat that which is suitable for it,” and the Mishna said concerning this: In what case is it said that shן is liable? In the domain of the injured party?

Or does it also refer to the law “if it ate clothing or vessels,” for which it is liable for half-damage, to say that this law too was stated only in the courtyard of the injured party?

Rav said: The “in what case is this said” that it teaches

stands

with regard to all of them!

and applies to all the preceding laws.

And

what is the reason

that if it ate clothing or vessels in the public domain it is exempt? But this is unusual, and it should be liable for it by the law of keren, and keren in the public domain is liable?

Because

whoever acts unusually,

such as this person who placed his vessels in the public domain,

and another came and acted unusually with it,

such as this one who ate them, is

exempt.

And Shmuel said: They taught only

that it is liable only in the domain of the injured party,

but

when it ate

fruits and vegetables,

which is shן, and shן in the public domain is exempt;

but

if it ate

clothing

or

vessels,

which is keren, it is

liable

even if it ate them in the public domain.

And likewise Reish Lakish said

in accordance with Rav:

“with regard to all of them”

is what the Mishna says: It is liable only in the domain of the injured party, on the grounds that whoever acts unusually, and another comes and acts unusually with it, is exempt.

And Reish Lakish proceeded

in this law

according to his own reasoning [

according to his method].

For Reish Lakish said: Two cows

that are found

in the public domain, one

of them

lying down, and one

of them

walking

in its ordinary manner: If

the walking one kicked

the

lying one, it is

exempt,

since the lying one should not have lain in the public domain. And whoever acts unusually, and another comes and acts unusually with 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 lying one kicked the walking one, it is

liable,

because

a kick is a derivative of keren, and keren in the public domain is liable.

Thus Reish Lakish held that whoever acts unusually, and another comes and acts unusually with it, is exempt; therefore he likewise held that if it ate clothing or vessels in the public domain, it is exempt.

And Rabbi Yohanan said

in explaining our Mishna:

They taught only

when it ate

fruits and vegetables,

for then, in the public domain, it is exempt,

but

if it ate

clothing

or

vessels,

which is keren, it is

liable.

Even if it ate them in the public domain.

And we said: Since it is evident that Rabbi Yohanan disputes Reish Lakish concerning the law of eating clothing or vessels in the public domain, it follows that he holds that we do not apply the principle “whoever acts unusually, and another comes and acts unusually with it, is exempt.” If so,

shall we say that Rabbi Yohanan does not hold

his law,

that of Reish Lakish, even with regard to two cows

found in the public domain? And he holds that even if the walking one kicked the lying one, it is liable.

And we reject this:

No. Indeed, he does hold

Reish Lakish’s law, that if the walking one kicked the lying one, it is exempt, on the grounds that whoever acts unusually, and another comes and acts unusually with it, is exempt. And one cannot bring proof from Rabbi Yohanan’s statement concerning clothing and vessels to the law of the two cows. For

clothing

lying in the public domain is different, since placing it there is not considered acting unusually, for

people do [

it is people’s practice]

place garments and rest [

they place their garments in order to rest from the exertion of the journey], and they have permission to do so. Therefore, if an animal damages them, it is liable.

But an animal—it is not its usual way

to lie in the public domain, and therefore it is acting unusually; and if the walking one acted unusually by kicking it, it is exempt.

Introduction to the discussion of “this one benefits and that one does not suffer”

There are many forms in which a person benefits from his fellow’s property without making an advance agreement with his fellow concerning payment for the benefit.

One form is this: One who benefits from his fellow’s property in a manner that actually increases his own property [and not merely in a manner that saves him from an expenditure of money], so that it is as though his fellow’s property is now in his possession.

In such a case, there is no doubt that he is obligated to pay his fellow full payment for the increase by which his property increased because of the benefit he received from it.

The second form is this: One who enjoys a temporary benefit through damage that he caused to his fellow’s property, such as one who ate his fellow’s property, and now nothing from that benefit remains in his possession [and in a manner in which he cannot be obligated either by the law of a damager or by the law of a robber].

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

In both of these forms he is obligated to pay according to everyone, and there is no dispute concerning the matter. But in the discussion before us, the Gemara discusses a case in which a person benefits from his fellow’s property when he has not diminished his fellow’s property: Is he obligated to pay in return for this benefit? Such a form of benefit is called “this one benefits and that one does not suffer,” and the amoraim dispute whether he must pay for this benefit or not.

This form of benefit has four varieties. The first: The beneficiary is not accustomed to pay for such a benefit, and the benefactor is also not accustomed to take payment for such a benefit.

The second: The beneficiary and the benefactor do this in return for payment.

The third: The beneficiary is not accustomed to pay, but the benefactor is accustomed to take payment.

The fourth: The beneficiary is accustomed to pay, but the benefactor is not accustomed to take payment.

When neither of them conducts himself by payment for the benefit, it is obvious that there is no payment for the benefit.

And when both of them conduct themselves by payment for the benefit, or even when only the benefactor is accustomed to take payment for the benefit, the beneficiary must pay for the benefit.

The entire discussion is regarding the fourth form: The beneficiary is accustomed to pay, and the benefactor is not accustomed to take payment. Is there, in such a case, an obligation to pay when they did not agree to it initially?

The case discussed in the Gemara is one who resides in his fellow’s courtyard without his fellow’s knowledge, where the one who resides there is accustomed to rent a house and live in it, whereas the owner of the courtyard is not accustomed to rent it out. Thus, the resident benefits from living in the house, for if he did not rent this house he would rent another house, while the owner of the house does not suffer a loss, since he is not accustomed to rent it out.

The amoraim dispute Rabbi Yohanan’s view as to whether afterward he must pay him rent.

The reasoning for exempting him is: “What did he do to him [the one residing in the courtyard to the owner of the courtyard], and what did he diminish for him, and what harm did he cause him?”

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

And the Pnei Yehoshua explains the view of Tosafot: This law is based on “coercion concerning the measure of Sodom,” meaning that a person is compelled to permit his fellow to benefit from him when this does not cause him monetary loss, [and this is also implied by the words of Tosafot in tractate Bava Batra 12b, s.v. “for example,” and by the words of Maimonides, Laws of Neighbors 7:8].

And there are amoraim who exempt him from payment because the owner of the house benefits when it is inhabited and does not remain desolate and empty, as will be explained below.

However, the early authorities dispute whether these amoraim disagree with the principle that “this one benefits and that one does not suffer is exempt,” and therefore gave a new reason here, or whether they too agree that he is exempt, and stated this reason only as support: He even did him a favor by residing in his house, or in order to exempt him from the small loss that he caused through his use of the house.

We learned in the Mishna:

And if you benefited, you pay

what you benefited:

And we explain: From the fact that it teaches, “you pay what you benefited,” it implies that the owners do not pay the full value of what it ate, but rather according to the value of its benefit—

And how much

is the value of its benefit?

Rabba said: The value of straw [

straw and hay] alone he pays, even if it ate barley, which is more suitable for it than straw. This is because the owner of the animal says to the owner of the barley: “I have no desire 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

the value of barley —

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

at a discount,

that is, he does not pay according to its market value, but rather 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 also

a beraita was taught

another beraita

in accordance with Rava’s opinion.

And the Gemara explains:

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

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 what you benefited,”

how?

If it ate a kav or two kav, we do not say, “Let it pay

their value,” but rather we assess: How much would a person wish to feed his animal

that which is suitable for it

such as barley for a donkey,

even though he is not accustomed

to feed it this way, and this measure is two-thirds of the value of the thing suitable for it, for it may be assumed that at such a price he would be willing to purchase barley and feed it, even though he is not accustomed to spend so much on its food.

And

therefore,

since we assess according to something suitable for it, if

it ate wheat, or something harmful to it,

then it is

exempt,

for it did not benefit.

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

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

He said

Rami bar Hama to Rav Hisda:

What are the excellent matters [

what are those important doubts]?

He said

he answered

him

Rav Hisda to Rami bar Hama:

We raised a doubt concerning the law of

one who resides in his fellow’s courtyard without

his knowledge

of the owner of the courtyard, whether

the one who resides

in the courtyard

must pay him rent, or does he not need to?

The Gemara is astonished at the question: But

what are the circumstances [

in what case did they raise the doubt]?

If we say it is a courtyard that is not designated for rent [

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

and

in the case of

a person who is not accustomed to rent [

a person who is not in the habit of renting dwellings], because dwellings are abundantly available to him for free, or because he has his own dwelling—then it is impossible to say that:

What room is there for doubt whether he is obligated to pay? But

this one

the resident

did not benefit,

because he has a place to live;

and

even

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 he is exempt.

Rather

it was said that the doubt is in a case where he resided

in a courtyard that stands for rent

the courtyard stands for rent],

and the person is one who is accustomed to rent

the one residing in it needs to rent an apartment for himself] [and he has nowhere to reside]; even so, it is impossible to say this, for:

What doubt is there here!? For

this one—

the resident—

benefited, and

also

this one—

the owner of the courtyard—

suffered a loss,

since he was prevented from renting it to others, and it is obvious that he is obligated to pay.

And the Gemara explains the ibaya:

It is not necessary,

Rav Hisda was in doubt only in a case where he resided

in a courtyard that does not stand for rent, and the person is one who is accustomed to rent

the courtyard does not stand for rent, whereas the one renting needed to rent an apartment], and in this there is a doubt:

what

is the law of the payment? Is it the case that

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 residing in your courtyard?

Or perhaps he can say

the owner of the courtyard to the resident: