Bava Kamma 23b (כג:) — the Talmud in English

If so,

resolve

[prove it] from here—from the fact that he pays for the consumption of the ḥararah,

meaning

[that the mouth] of the

cow

that caused the damage, which eats in the courtyard of the injured party,

is considered like the courtyard of the injured party

[and the mouth is considered] and is called “another field”; therefore, he pays for the consumption of the ḥararah.

For if

[that is, if]

it is considered like the courtyard of the tortfeasor

[and] the mouth of the tortfeasor’s animal is considered so,

he could say to him

[the tortfeasor could say to the injured party]:

“What is your bread doing in the mouth of my dog?”

[which is my domain, and I am not liable for damage caused by shen in my domain].

The amoraim raised the following dilemma

[they were uncertain]: Is

the mouth of the cow considered like the courtyard of the injured party

[and the damaging consumption takes place in the courtyard of the injured party],

or is it considered like the courtyard of the tortfeasor

[and the animal’s mouth is considered so, meaning that the damaging consumption does not take place in the injured party’s domain]?

The question may be resolved from here: The mouth of an animal located in the injured party’s domain is considered like the injured party’s domain, and one is liable under the category of shen for what the animal consumed in the injured party’s domain.

The Gemara raises an objection: How could they have been uncertain whether the animal’s mouth is considered the tortfeasor’s domain?

And if you say

the animal’s mouth

is considered like the courtyard of the tortfeasor,

the following difficulty arises:

How is the shen for which the Torah made one liable

[the verse]

ever found?

[How can we find such a case?] For every instance of damage by shen is brought about through eating; and if the animal’s mouth is considered the tortfeasor’s domain, there is no case in which one would be liable for shen when the animal eats in the injured party’s domain.

And we answer:

Rav Mari, son of Rav Kahana, said:

Even if we say that the animal’s mouth is considered the tortfeasor’s domain, we can find a case in which one is liable for damage by shen in the injured party’s domain,

for example, when the animal rubbed itself against a wall for its pleasure, and soiled produce for its pleasure

by rolling over it, as horses and donkeys do. These are derivatives of shen. [But we cannot find an actual case of damage by shen for which one is liable, because the tortfeasor can say to the injured party: “The mouth of my cow is my domain, and it did not damage you in your domain.”]

Mar Zutra raised an objection

to the words of Rav Mari, son of Rav Kahana: How can it be said that rubbing against a wall for its pleasure and soiling produce for its pleasure are considered derivatives of shen?

But we require

[does one not require], in order to hold him liable for damage by shen,

“as when a tooth consumes completely”

that the principal of the damaged object be consumed through the damage, as was explained above [2a]: From this verse we learn that “and it consumed” refers to shen, and one is not liable for shen until the principal is consumed,

and this is not so!

[There is] no consumption of the principal of the damaged object when the animal rubbed against a wall or soiled produce, since the stones and the produce still exist.

Ravina said:

There is a case in which the principal is consumed through rubbing against a wall, for example,

when it rubbed away an image

[a figure] that had been on the wall, and the image was destroyed. In such a case, he is liable under the category of shen.

Rav Ashi said:

There is a case in which the principal is consumed through soiling produce, for example,

when it trampled it repeatedly

[when it pushed it into water, making it impossible to gather it]. [Another version: For example,

when it trampled it repeatedly

[when it spilled liquid over it while rolling, thereby consuming and destroying the principal].] If so, we have found a case in which one is liable under the category of shen, even if the animal’s mouth is considered the tortfeasor’s domain.

The Gemara attempts to resolve the dilemma—whether the mouth of an animal in the injured party’s domain is considered the tortfeasor’s domain or is considered the injured party’s actual domain—from a Mishna:

Come and hear:

We learned in a Mishna in tractate Sanhedrin [76b]:

If one incited a dog against another person,

he incited a dog against another person, and the dog bit him and he died, or

if he incited a snake against him

and he died from its bite,

he is exempt

from execution by the court, as the inciter merely caused the death of another, and he is liable for execution only if he killed him directly with his hands.

And we raise a difficulty concerning this: It is precise from the Mishna that

who

[is the one who]

is exempt?

Only

the inciter is exempt,

but

the owner of the dog is liable

because his dog bit a person.

And if you say

[that] the animal’s mouth

is considered like the courtyard of the tortfeasor

[and is considered so], why is the owner of the dog liable for what his dog bit with its mouth?

He could say to him

[the owner of the dog could say to the bitten person]:

“What is your hand doing in the mouth of my dog?”

[which is my domain, and I am not liable for what my dog damaged in my domain].

And we answer:

Say

[that the Mishna means] that what it states,

“he is exempt,”

means

even the inciter

is exempt; it is not only the inciter who is exempt, and therefore the owner of the dog is also included in the exemption.

Alternatively, if you wish, say

[another answer]: The owner of the dog is liable because the case is

that it exposed its fangs and scratched him

[that it extended its teeth and scratched him]. The person did not place his hand inside its mouth; rather, the dog damaged him outside its mouth, where it is certainly the injured party’s domain.

The dilemma cannot be resolved from this Mishna, as to whether the animal’s mouth is considered the tortfeasor’s domain.

The Gemara attempts to resolve the dilemma from the continuation of that Mishna:

Come and hear:

If one brought a snake against another,

if he brought the snake by hand close to another person’s body, until the snake’s teeth reached his flesh, and it bit him and he died,

Rabbi Yehuda holds him liable

for death, as a murderer,

and the Sages exempt him

from liability for death.

And

concerning this,

Rav Aḥa bar Ya’akov

said in the Gemara there [Sanhedrin 78a]:

When you reach the matter,

Rabbi Yehuda and the Sages do not disagree about the law governing one who causes death; rather, they disagree as follows:

According to Rabbi Yehuda,

the snake’s venom is situated between its teeth,

and therefore this is like driving a knife into a person’s abdomen, which is not merely indirect causation, since the instrument of destruction is in his hand.

Therefore, the one who brought the snake to bite

is executed

by the sword

as a murderer.

And the snake is exempt

from stoning, because the snake itself did nothing; it is like an axe in the hand of the woodchopper.

But

according to the Sages,

the snake expels its venom on its own

through its bite. When the person caused it to bite, the bite itself was still insufficient to kill; therefore, what the person did is considered merely indirect causation. Even though he knows that the snake will ultimately expel its venom, he is nevertheless not considered to have killed the victim through the snake’s bite, since the victim dies not from the force of the bite but from the force of the venom that the snake expels afterward.

Therefore, the snake

is executed

by stoning, and the one who caused it to bite,

who merely caused the snake to expel its venom,

is exempt.

And if you say

[that]

the cow’s mouth is considered like the courtyard of the tortfeasor

[and is considered so], why, according to the Sages, is the snake liable for execution?

The owner of the snake could say to him

[the owner could say to the person who was bitten]:

“What is your hand doing in the mouth of my snake?”

[and I am not liable to have the snake executed because it killed you in my domain].

And we reject this:

With regard to execution,

[the killing of the snake],

we do not say

: “What is your hand doing in the mouth of my snake?” For even if the snake’s mouth is considered the tortfeasor’s courtyard, this exempts him only with regard to damages; the snake is nevertheless executed. Only with regard to damages do we say that one is exempt if the animal caused damage in the tortfeasor’s domain.

And from where do you say

[how can you say] that with regard to death, one is liable even when the killing occurred in the tortfeasor’s domain?

As it was taught

in a beraita:

If one entered another’s courtyard without permission, and the owner’s ox gored him and he died,

the ox

is executed

by stoning, and the owners are exempt from the ransom.

And we raise a difficulty concerning this:

“The owners are exempt from the ransom”—

what is the reason

[why] are they exempt from the ransom?

It is because

the owner of the courtyard could say to him

[to the person who entered his courtyard]:

“What were you doing in my domain?”

[what are you doing here].

And we object:

The ox as well

[also]—why is it executed?

The owner of the ox could say to him

[to the person who entered his courtyard]:

“What were you doing

in

my domain!”

Rather,

it is evident that

with regard to execution

[the killing of the ox],

we do not say

that the owner is exempt because the killing occurred in the tortfeasor’s domain.

There was an incident involving

certain goats of the household of

[the family of]

Tarbu, which were causing damage

[causing him loss and damaging his property] to

Rav Yosef.

He said to

Rav Yosef

Abaye,

his student:

“Go and tell their owners to keep them confined.”

[Go tell the owners to put their goats away.]

Abaye said to him

:

“Why should I go

[to warn them]?

For if I go

[and warn them],

they will say

[to me]:

‘Let the master build a fence around his property,’

since it is incumbent upon the injured party to fence his domain so that animals will not enter it and cause damage.

And we object:

And if

[the injured party] must fence his domain against damaging animals, then

how is the shen for which the Torah made one liable

[the verse]

ever found

[how can we find such a case]? For if the injured party did not fence his domain, he is at fault for having been damaged; and if he did fence his domain, then there is no possibility for an animal to enter and damage him.

And we answer: We can find a case of damage by shen

when it tunneled beneath the fence,

because in such a case the tortfeasor is at fault for his animal’s eating in the injured party’s domain.

Alternatively,

another answer:

when the fence fell at night

and the injured party did not know of it. He is not at fault for failing to rebuild the fence, since he did not know that it was necessary to do so; in such a case, the owner of the animal is liable to pay for what it damaged in the injured party’s domain.

Rav Yosef would announce, and some say

[it was]

Rabba

who made this announcement, that

those who ascend upward and those who descend downward

[those who ascend from Babylonia to Eretz Yisrael and those who descend from Eretz Yisrael to Babylonia] were familiar with this ruling:

These are the market goats

[the goats belonging to butchers and intended for slaughter, although they are kept until market day].

That cause damage

[that cause loss and damage to others].

We warn their owners two or three times

[we warn the owners two or three times] to guard their goats so that they will not cause damage.

If he obeys

[if he obeys the warning and guards the goats so that they do not cause damage]—

he has obeyed

[he is left alone and nothing is done to him].

But

if he does not

obey the warning and does not guard his goats so that they will not cause damage,

they say to him

:

“Sit at the butcher’s stall

[sit at the place where the butchers stand, where the meat is sold]

and take your money,”

for the meat, even though market day has not yet arrived.

Since he does not heed the warning that was issued to him to guard his goats, they compel him to slaughter his goats so that they will not cause damage.

Mishna:

Which

ox that gored and became forewarned returns and becomes

innocent? And

which

ox that became

forewarned

through its goring?

Forewarned

—

any ox concerning which testimony was given that it gored three times, on

three days.

And it

returns and becomes

innocent when it changes its behavior,

and does not gore for

three days; this is the statement of Rabbi Yehuda.

Rabbi Meir

disagrees and

says:

An ox is forewarned whenever testimony was given

concerning it

that it gored

three times,

even if it gored all three times on a single day.

And it

returns to being

innocent

—

whenever children feel their way along it,

and it does not

gore.

Gemara:

And we raise a difficulty concerning this:

What is the reason of Rabbi Yehuda,

who holds that the ox becomes forewarned only through goring over the course of three days?

Abaye said,

because the verse states [Exodus 21:29]: “But if the ox was a goring ox from yesterday and the day before, and its owner was warned but did not guard it.”

And we expound: Since it is written

“yesterday,”

this indicates the first day,

one

; and from the fact that it is written

“from yesterday,”

this indicates

two;

“and the day before,”

this indicates

three. And the verse states

“but did not guard it”

—

“and its owner was warned”: this refers to the fourth goring,

at which point it is called forewarned, and he pays full damages for the fourth goring.

Rava said: “Yesterday—from yesterday”—one.

And this is how we expound it: Since it is written “from yesterday,” rather than “yesterday,” we derive from the superfluous letter mem in the word “from yesterday” that it refers to the goring on the first day.

And since it is written

“and the day before,”

we derive that it refers to the goring that occurred on the second day.

“And its owner did not guard it,”

the verse comes to teach that

now,

with regard to this third goring, he is

liable

for full damages, since through this goring the ox became forewarned.

The Gemara now explains the reasoning of Rabbi Meir:

And Rabbi Meir,

who holds that the ox becomes forewarned after three gorings even if they occurred on one day,

what is his reasoning?

As it was taught: Rabbi Meir said,

is it not a kal va-chomer: If an ox gored three times,