Bava Kamma 26a (כו.) — the Talmud in English

And we challenged this:

Are we speaking of

the entire

damage [that is, did we come to learn that there is liability to pay full damages for Shen and Regel in the public domain]?

But

half-damages

alone

are what we are saying.

And if so, one may say that the verse indeed excludes the public domain from liability to pay full damages, but not from liability to pay half-damages?!

And we answer: It is impossible that Shen and Regel in the public domain should be liable for half-damages, because

the verse says

with regard to a Keren Tama: “

And they shall divide its money”

[that is, the money of the living ox; in other words, he pays half-damages from its body], and we learned:

the money of

this

ox

that caused damage by Keren shall be divided,

but not the money of

this

ox

that caused damage by Shen and Regel.

b. We raise another objection:

Should Shen and Regel not be liable in the domain of the injured party for only half-damages, by means of a kal va-chomer from Keren:

Just as Keren, which is liable in the public domain, pays only half-damages in the domain of the injured party, so Shen and Regel, which are exempt in the public domain, should surely, in the domain of the injured party,

not

pay

the owners only

half-damages?!

And we answer: It is impossible that Shen and Regel in the courtyard of the injured party should pay only half of the Keren, for

the verse says

with regard to Shen and Regel in the domain of the injured party: “And he shall consume in another’s field; from the best of his field and the best of his vineyard

he shall pay.”

We thus learn that he shall pay

a proper payment,

that is, full damages.

c. We raise another objection:

Should Keren in the public domain not be liable

at all,

by means of a kal va-chomer:

Just as Shen and Regel, in the domain of the injured party,

are liable for

full damages, but are exempt in the public domain, whereas Keren, in the domain of the injured party,

is liable only for

half-damages, should it not follow that it is exempt in the public domain?!

Said

the refuter,

Rabbi Yohanan:

The reason that a Keren Tama in the public domain pays half-damages is that

the verse says

with regard to a Keren Tama: “And they shall sell the living ox and divide its money, and also the dead one

they shall divide.”

The word “they shall divide” is superfluous, for it could have said: “And they shall divide its money, and also the dead one.” Rather, it comes to teach:

Half-damages are not divided, neither in the public domain nor

in the private domain

—that is, there is no distinction in the law of half-damages between the public domain and the private domain. Just as in the domain of the injured party the owners pay half-damages, so in the public domain the owners pay half-damages.

d. We raise another objection:

Should a person

who kills another person

be liable for Kofer,

by means of a kal va-chomer:

Just as an ox, which is not liable

even

for the four forms of compensation

when it injures a person, but only for damages,

is liable for Kofer

when the ox kills a person,

a person, who is liable for the four forms of compensation

[pain, medical expenses, loss of work, and humiliation, in addition to damages] when he injures a person,

should surely be liable for Kofer

when he kills a person?!

And we answer: The reason that a person is not liable for Kofer is that

the verse says

with regard to an ox that killed a person: “And he shall give the redemption of his life,

according to whatever is imposed upon him.”

We thus learn: “upon him” [upon the owner of the ox that killed] shall Kofer be imposed,

but not upon a person

who himself killed another person.

e. We raise another objection:

Should an ox be liable for the four

forms of compensation

[in addition to damages] when it injures a person,

by means of a kal va-chomer:

Just as a person, who is not liable for Kofer

when he kills a person,

is liable for the four forms of compensation

when he injures a person,

an ox

that is

liable for Kofer

when it kills a person,

should surely

be

liable for the four forms of compensation

when it injures a person?!

And we answer: The reason that an ox is not liable for the four forms of compensation when it injures a person is that

the verse says

[Leviticus 24:19]: “And if a man inflicts a blemish upon his fellow, as he has done, so shall it be done to him.” We thus learn:

a man against his fellow

is included in the law of inflicting blemishes, making him liable for the four forms of compensation,

but not an ox against his fellow

[the fellow of its owner] in the law of inflicting blemishes, making it liable for the four forms of compensation.

It is written [Exodus 21:28–29]: “And when an ox gores a man or a woman, and he dies, the ox shall surely be stoned … And if the ox was wont to gore from yesterday and the day before, and this was testified to its owner, and he did not guard it, and it killed a man or a woman, the ox shall be stoned, and its owner shall also be put to death. If Kofer is imposed upon him, he shall give the redemption of his life according to whatever is imposed upon him.” We thus learn that when a Keren gores a person and kills him, the owner of the ox is liable for Kofer.

The Torah imposed this liability only for an ox that killed a person. But a person who killed a person is not liable for Kofer, for it says “upon him,” and we expound: “but not upon the person.” From this same exclusion we learn that a pit and fire do not render their owners liable for Kofer when they kill a person, for it says “upon him,” meaning the owners of the ox, but not the owners of a pit or fire.

However,

they raised a dilemma

among the scholars of the yeshiva:

What is the law concerning a Regel that trampled a baby in the courtyard of the injured party

in the course of its normal walking, which is the primary category of Regel,

as to whether it pays Kofer

and likewise, if an animal killed a person through Shen, what is the law as to whether it pays Kofer?!

The sides of the dilemma are:

Perhaps we say: Just as is the case with—

Shen and Regel—

with regard to Keren. For

when

the Keren has acted two or three times

[after it has done so two or three times],

it is its manner

[the ox’s habitual behavior],

and it pays Kofer.

And if so,

here too,

with regard to Shen and Regel, which are the ox’s normal behavior,

there is no difference.

Or perhaps: Keren intends to cause damage,

and it is only in this case that the Torah imposed liability for Kofer. But

this—

Shen and Regel—

does not intend to cause damage,

and it is exempt from Kofer.

Come and hear

that there is Kofer for Shen and Regel, from the following beraita:

If one brought

his

ox into the courtyard of the homeowner without permission, and it gored the homeowner, and he died,

then

the ox is stoned, and its owner—

whether

the ox was

tam,

or

whether

the ox was

muad—

pays full Kofer,

in full. These are

the words of Rabbi Tarfon.

But here is

full Kofer for a Tam

that killed in the courtyard of the injured party, even though a Keren Tama pays only half—

from where does Rabbi Tarfon derive this

[that is, from where does he derive it]?!

And is it not

because Rabbi Tarfon agrees

with

Rabbi Yosei HaGelili, who says: A Tam pays half-Kofer in the public domain,

and not with the Sages, who exempt a Tam entirely from Kofer—

and

again

he derives it

—that a Keren Tama in the courtyard of the injured party pays full Kofer—

by means of a kal va-chomer from Regel:

Just as in a case where the Torah was lenient with regard to Shen and Regel in the public domain, exempting them from Kofer, it was stringent with regard to them in the domain of the injured party, requiring them to pay full Kofer; in a case where it was stringent with regard to Keren in the public domain, requiring it to pay half-Kofer, should it not surely be stringent with regard to it in the domain of the injured party, requiring it to pay full Kofer? This is the same kal va-chomer that he teaches in our Mishna with regard to damages caused by a Keren Tama in the courtyard of the injured party.

Thus,

it is evident that

there is Kofer for Regel,

for if this were not so, Rabbi Tarfon would have no source for obligating a Keren Tama that killed in the courtyard of the injured party to pay more than half-Kofer.

Said

the refutation of this proof,

Rav Shimi of Nehardea:

Actually, there is no Kofer for Shen and Regel, and the

tanna—

that is, Rabbi Tarfon—

derives it from the damages of Regel

[from Regel’s liability for damages in the courtyard of the injured party];

he derives it

for a Keren Tama that it is liable for full Kofer in the courtyard of the injured party. And this is how he reasons:

Just as Regel, which is exempt from payments for damages in the public domain, is liable in the domain of the injured party for full damages, so Keren, which is liable in the public domain for half-Kofer, should surely be liable in the domain of the injured party for full Kofer.

And we challenge this:

Let us refute

the kal va-chomer:

What is distinctive about the damages of Regel,

that is, what is distinctive about payments for damages,

is that they apply to fire

and therefore the Torah was stringent with regard to it, requiring full damages in the domain of the injured party. Can you say the same concerning Kofer, which does not apply to fire?!

And we answer: Rabbi Tarfon derives the kal va-chomer

from

the damages of

concealed property,

for fire is not liable for them [since fire is exempt for concealed property], whereas Regel is liable for them in the domain of the injured party for full damages.

We nevertheless challenge this:

What is distinctive about

the damages of

concealed property, is that they apply to a pit

whereas you cannot say the same concerning Kofer, which does not apply to a pit.

Rather, we derive it

from

the damages of

vessels,

for one is not liable for them in the case of a pit [since a pit is exempt for vessels].

And we challenge this: But

what is distinctive about vessels is that

they

apply to fire,

whereas you cannot say the same concerning Kofer, which does not apply to fire.

And we answer: We derive it

from

the damages of

concealed vessels.

We derive the matter from them.

We nevertheless challenge this:

What is distinctive about

the damages of

concealed vessels is that they apply to a person,

whereas you cannot say the same concerning Kofer, which does not apply to a person?!

Indeed, on the basis of this refutation we reject Rav Shimi of Nehardea’s proposed resolution, and the Gemara concludes:

Rather, is it not evident from here: He derives it from the Kofer of Regel!

And

thus, there is Kofer for Regel.

And we conclude: Indeed,

learn from this

that there is Kofer for Regel.

Rav Aḥa of Difti said to Ravina:

This too is logical, that

we derive it from the Kofer of Regel, and it consequently follows that

there is Kofer for Regel,

and not as Rav Shimi of Nehardea proposed, that we derive it from the damages of Regel—

If it should enter your mind

that in fact

there is no Kofer for Regel, and the tanna derives it from the damages of Regel

as Rav Shimi proposed:

Let us refute

this kal va-chomer:

What is distinctive about the damages of Regel is that they apply to Regel,

that is, how can you derive Kofer from damages? Damages are distinctive in that they also apply to Regel, whereas you cannot say the same concerning Kofer, which does not apply to Regel.

Rather, is it not evident from here: He derives it from the Kofer of Regel

for Kofer in the case of a Keren Tama in the courtyard of the injured party, and

thus there is Kofer for Regel—learn from this!

Mishna:

A person—

whom we learned above, on page 14b, is one of the five muadim—

is muad

[he pays full damages]

always:

Whether unintentionally

when he was mistaken and caused damage,

or

when he caused damage

intentionally, [

whether

he caused damage

under duress,

such as when he fell because of an uncommon wind,

or

he caused damage

willingly ];

whether

he caused damage while

awake, or

while

asleep,

such as when he broke vessels lying near him opposite his feet while extending his hands and legs, or when he injured another person sleeping beside him— and if he

blinded his fellow’s eye,

even unintentionally or under duress,

and broke

[or broke]

the vessels,

even unintentionally or under duress, then he

pays full damages.

Gemara:

We learned in the Mishna: If he blinded his fellow’s eye and broke vessels, he pays full damages.

It is written [Exodus 21:22–25]: “And when men quarrel … eye for eye [that is, the value of an eye, and likewise in all the other cases], tooth for tooth, hand for hand, foot for foot; burn for burn, wound for wound, bruise for bruise.” We learned from this that a person who injures his fellow pays damages. It is further written [Leviticus 24:19–20]: “And if a man inflicts a blemish upon his fellow, as he has done, so shall it be done to him [that is, he shall pay money, and likewise in all the other cases]: fracture for fracture, eye for eye, tooth for tooth; as he has inflicted a blemish upon a person, so shall it be inflicted upon him.”

And from what the verse says, “burn for burn” and “wound for wound,” the Sages learned [as cited here on page 26b; see below, 85b] that he pays for pain.

And it is written [Exodus 21:18–19]: “And when men quarrel, and one strikes his fellow with a stone or with his fist … he shall give only for his loss of work, and he shall surely provide for his healing.” We learn from here that a person who injures another person pays for medical expenses and loss of work.

And it is written [Deuteronomy 25:11–12]: “When men fight together, a man and his brother, and the wife of one approaches to rescue her husband from the hand of the one striking him, and she extends her hand and grasps his private parts [and thereby humiliates him] … then you shall cut off her hand; your eye shall not have pity.” The Sages received the tradition that this refers to payment for humiliation, and we learn that a person who humiliates another pays for humiliation.

We have therefore learned: A person who injures his fellow pays for five matters: damages, pain, medical expenses, loss of work, and humiliation.

The Gemara infers this from the juxtaposition of the laws in the Mishna:

It teaches

in our Mishna,

“If he blinded his fellow’s eye”

unintentionally or under duress,

analogous to “

and broke the vessels,”

and we learn:

Just as there,

with regard to “and broke the vessels”:

damages—

yes,

he indeed pays damages, but

the four forms of compensation

[pain, medical expenses, loss of work, and humiliation]

not

does he pay, since this payment is inapplicable to damage to vessels—

so too, “

if he blinded his fellow’s eye”

unintentionally or under duress:

damages—yes,

he indeed pays damages, but

the four forms of compensation—not

does he pay when he acted unintentionally or under duress, since the Torah imposed liability for the four forms of compensation only when he acted intentionally or was close to intentional.