Bava Kamma 23b — the Talmud in English

If so,

resolve

[prove] from here: from the fact that he pays for the eating of the cake,

the mouth

of the

cow ![](pamud.bmp "

precise page location") that causes damage, eating in the courtyard of the injured party,

is deemed like the courtyard of the injured party

[the mouth is considered] and is called “another field”; therefore he pays for the eating of the cake.

For if

[but if]

it is deemed like the courtyard of the tortfeasor

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

let him say to him

[the tortfeasor to the injured party]:

What is your bread doing in the mouth of my dog

[which is my domain]? I am not liable for the shen of the tortfeasor in my domain.

It was asked of them

[the amoraim were uncertain]: Is

the mouth of a cow deemed like the courtyard of the injured party

[considered so], and the damaging eating takes place in the courtyard of the injured party,

or is it deemed like the courtyard of the tortfeasor

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

And from here it is possible to resolve that the mouth of an animal in the domain of the injured party is considered like the domain of the injured party, and he is liable for what it ate in the domain of the injured party by the law of shen.

The Gemara raises an objection: How could they be uncertain whether the animal’s mouth is considered like the domain of the tortfeasor? For

if you say

the animal’s mouth

is deemed like the courtyard of the tortfeasor,

then this is difficult:

the shen for which the Merciful One made one liable

[the verse]

how can you find it

[how have we found it]? For every damage of shen is done through eating, and if the animal’s mouth is considered the domain of the tortfeasor, we find no case in which one is liable for shen eating in the domain of the injured party.

And we answer:

Rav Mari, son of Rav Kahana, said:

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

for example, when it rubbed itself against a wall for its pleasure, and soiled fruits for its pleasure

by rolling over them, in the manner in which horses and donkeys do. These are the derivatives of shen, [but we find no case of actual shen damage for which he is liable, because he can say to him: “The mouth of my cow is my domain, and it did not damage you in your domain”].

Mar Zutra challenged him

concerning the words of Rav Mari, son of Rav Kahana: How can one say that when it rubbed itself against a wall for its pleasure and soiled fruits for its pleasure this is considered a derivative of shen?

But we require

[and surely it is necessary], in order to make him liable for damage of shen,

“as when a flame consumes the stubble completely”

that the principal of the damaged object be consumed through the damage, as was explained above [2a], that from this verse we learn that “and it consume” means shen, and he is not liable for shen until the principal is consumed,

and there is none!

[there is no] consumption of the damaged principal in rubbing against a wall and soiling fruits, since the stones and the fruits still exist.

Ravina said:

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

when it scraped off an image

[which was on the wall], and the image was consumed; in this case he is liable by the law of shen.

Rav Ashi said:

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

when it trampled them

[pushed them into water] and it is impossible to gather them, [another version: for example,

when it scattered them by trampling

[spilled liquid while rolling], thereby consuming and destroying the principal]; if so, we find a case in which he is liable by the law of shen even if the animal’s mouth is considered the domain of the tortfeasor.

The Gemara attempts to resolve the uncertainty whether the mouth of an animal in the domain of the injured party is considered the domain of the tortfeasor or actually the domain of the injured party, from a Mishna:

Come and hear:

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

If one incited a dog against him

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

if one incited a snake against him—

and he died from its bite—

he is exempt

the one who incited it is exempt from judicial execution, for he merely caused his fellow’s death, and he is liable to death only if he killed him with his hands.

And we discuss it: It is precise from the Mishna that

who

[is the one who]

is exempt?

Only

the one who incited it is exempt,

but

the owner of the dog is liable

for the fact that his dog bit a person.

And if you say

[and if you say] that the animal’s mouth

is deemed like the courtyard of the tortfeasor

[is considered so], why is the owner of the dog liable for the fact that his dog bit a person with its mouth?

Let him say to him

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

What is your hand doing in the mouth of my dog

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

And we answer:

Say

[state] in the Mishna that what is said in it,

“exempt”

means

even the one who incited it

is exempt; it is not only the one who incited it who is exempt, and if so, the owner of the dog is also included in the exemption.

Alternatively, if you wish, say

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

that it brought out its fang and scratched him

[it brought out its teeth and scratched him], meaning that he did not put his hand inside its mouth, but it damaged him outside its mouth, where it is certainly the domain of the injured party.

And one cannot resolve from this Mishna the uncertainty whether the animal’s mouth is considered the domain of the tortfeasor.

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

Come and hear:

If one brought a snake against him,

if a person brought the snake with his hands close to his fellow’s body until the snake’s teeth reached his flesh, and it bit him and he died,

Rabbi Judah holds him liable

the one who brought it is liable for death like a murderer,

and the Sages exempt him

from liability to death.

And

concerning this

Rav Aḥa bar Yaakov

said in the Gemara there [Sanhedrin 78a]:

When you come to say

that Rabbi Judah and the Sages do not disagree about the law of one who causes death, but rather they disagree as follows:

according to the words of Rabbi Judah—

the snake’s venom is standing between its teeth,

and it is like driving a knife into his abdomen, which is not indirect causation, since his destructive instrument is in his hand.

Therefore, the one who causes the bite

his law is that he is executed

by the sword

like a murderer.

And the snake is exempt

from stoning, because the snake did nothing; rather, it is like an ax in the hand of the woodcutter.

But

according to the words of the Sages—

the snake expels its venom by itself

with its bite, and when the person caused it to bite, the bite still did not contain enough to kill. Therefore, what the person did is considered mere indirect causation; and even though he knows that in the end it will expel the venom, nevertheless he is not considered to have killed him through the snake’s bite, since he dies not by the force of the bite but by the force of the venom that the snake expelled afterward.

Therefore, the snake

is executed

by stoning, and the one who caused the bite

who merely caused the snake to expel the venom

is exempt.

And if you say

[and if you say] that

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

[is considered so], why, according to the Sages, is the snake liable to death?

Let the owner of the snake say to him

[to the person who was bitten]:

What is your hand doing in the mouth of my snake

[which is my domain]? I am not liable to have the snake killed 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 courtyard of the tortfeasor, it is exempt only with regard to damages; it is nevertheless executed, and only with regard to damages do we say that it is exempt if it caused damage in the domain of the tortfeasor.

And from where do you say this

[and from where can you say] that with regard to death, it is liable even when it killed in the domain of the tortfeasor?

For it was taught

in a beraita:

If one entered the courtyard of the homeowner without permission, and the homeowner’s ox gored him and he died—

the ox

is executed

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

And we discuss it:

“The owners are exempt from the ransom”—

what is the reason

[why are they exempt from the ransom]!

Because

he said to him

the homeowner to the person who entered his courtyard:

“What are you doing in my domain?”

[what are you doing there]?

And we raise an objection:

The ox also

[as well]—why is it executed?

Let the owner of the ox say to him

[to the person who entered his courtyard]:

“What are you doing

[what are you doing]

in my domain!”

Rather,

it is proved that

with regard to execution

[the killing of the ox]

we do not say

that it is exempt because it killed in the domain of the tortfeasor.

A deed:

Those goats of the house of

[those goats belonging to the family of the house of]

Tarbu, which were causing damage

[which were causing him loss and damage]

to Rav Yosef.

He said to him

Rav Yosef

to Abaye

his student:

Go tell their owners to keep them confined

[go tell their owners to put their goats away].

He said to him

Abaye:

Why should I go

[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 in his property,”

for it is incumbent upon the injured party to fence in his domain so that animals should not enter there and cause damage.

And we raise an objection:

And if he fenced

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

the shen for which the Merciful One made one liable

[the verse]

how can you find it

[how have we found it]? For if the injured party did not fence in his domain, he is at fault for being damaged; and if he fenced in his domain, then there is no possibility for an animal to enter and damage him.

And we answer: We find a case of the tortfeasor’s shen

when it dug beneath

the fence, for in this case the tortfeasor is at fault that his animal ate in the domain of the injured party.

Alternatively,

another answer:

when the fence fell at night

[and the injured party did not know of it], so he is not at fault for not fencing, since he did not know that he needed to fence; and in this case the owner of the animal is liable to pay for what it damaged in the domain of the injured party.

Rav Yosef proclaimed, and some say

[it may be said] that

Rabba

was the one who proclaimed,

that those who go up above and those who go down below

[those who go up from Babylonia to the Land of Israel and those who go down from the Land of Israel to Babylonia] were expert in this law:

These market goats

[these goats in the marketplace] belonging to butchers and designated for slaughter, except that they keep them until market day.

That cause damage

[which cause loss] and damage to others.

We warn their owners two or three times

[we warn their owners two or three times] to guard their goats so that they should not cause damage;

if he obeys

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

he obeys

[he has obeyed], and nothing is done to him.

But

if he does not

obey the warning and does not guard his goats so that they should not cause damage—

they say to him

[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 coins”

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

For since he does not heed the warning with which they warned him to guard his goats, they compel him to slaughter his goats so that they should not cause damage.

Mishna:

What is

an ox that gored and became forewarned, then returns and becomes

innocent , and

what is

an ox that becomes

forewarned

through its goring?

Forewarned—

any one concerning which witnesses testified

that it gored three times, on

three days.

And

returns and becomes

innocent, when it returns from it,

and does not gore

for three days, the words of Rabbi Judah.

Rabbi Meir

disagrees, and

says:

An ox is forewarned whenever

witnesses testified concerning it

that it gored

three times,

even if it gored the three goring incidents on one day.

And

it returns to being

innocent—

whenever children fondle it,

provoke it,

and it does not

gore.

Gemara:

And we discuss it:

What is the reason of Rabbi Judah,

that it becomes forewarned only through goring over the course of three days?

Abaye said,

for the verse says [Exodus 21]: “And if it is an ox that has gored from yesterday and the day before yesterday, and its owner was warned and did not guard it.”

And we expound: Since it is written

“yesterday”

it is one day,

one, and from that which is written

“from

yesterday”

it is

two,

“the day before yesterday”

is

three, and the verse says

“

and he did not guard it”—

“and its owner was warned”; this comes to the fourth goring,

when 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: Since it is written “from yesterday,” and it is not written “yesterday,” we expound from the superfluous letter mem in the word “from-yesterday” that there was a goring on the first day.

And since it is written

“the day before yesterday,”

we derive a goring that occurred on the second day.

“And its owner did not guard it,”

the verse comes to say that

now,

for this third goring, he is

liable

for full damages, for through it the ox became forewarned.

And now the Gemara 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 reason?

For it was taught: Rabbi Meir said,

Is this not a kal va-chomer: If an ox gored three times,