Bava Kamma 26a — the Talmud in English

And we challenged this:

Did we say all the

damage

we said:

[Did we come to learn that it pays full damage for Shen and Regel in the public domain?] But

half-damage

only

we said;

and if so, one may say that the verse indeed excludes the public domain from full damage, but not from half-damage!?

And we resolve: For this reason it is impossible that Shen and Regel in the public domain should be liable for half-damage, because

the verse says concerning a non-accustomed Keren:

with regard to an innocuous horn: “

“And they shall divide his money” [

of the living ox; that is, he pays half-damage from its body, and we learned]:

the money of

this

ox

that caused damage with its horn—you shall divide that,

but not the money of

this

ox

that caused damage with Shen and Regel.

B. We further challenge:

And should Shen and Regel not be liable in the injured party’s domain for anything more than half-damage, by a kal va-chomer from Keren:

And just as Keren, which in the public domain is liable, in the injured party’s domain pays only half-damage, Shen and Regel, which in the public domain are exempt, is it not logical that in the injured party’s domain

does not

pay

the owner anything but

half-damage!?

And we resolve: For this reason it is impossible that Shen and Regel in the injured party’s courtyard should pay only half-Keren, for

the verse says concerning Shen and Regel in the injured party’s domain: “And he shall consume in another’s field; the best of his field and the best of his vineyard

with regard to eating and trampling in the property of the injured party: “He shall consume the other’s field, and the best of his field and the best of his vineyard

he shall pay,”

and we learn that he shall pay

proper payment,

that is, full damage.

C. We further challenge:

And should Keren in the public domain not be liable

at all,

by a kal va-chomer:

And just as Shen and Regel in the injured party’s domain

are liable

for full damage, in the public domain are exempt; Keren in the injured party’s domain

is liable only for

half-damage—is it not logical that in the public domain it should be exempt!?

Said

the one who answered,

Rabbi Yohanan:

For this reason a non-accustomed Keren in the public domain pays half-damage, because

the verse says concerning a non-accustomed Keren: “And they shall sell the living ox and divide its money, and also the dead one

with regard to an innocuous horn: “They shall sell the living ox and divide its money, and the dead ox

they shall divide.”

And the word “they shall divide” is superfluous, for it could have said: “And they shall divide his money, and also the dead one”; rather, it comes to teach:

Half-damage is not divided, neither in the public domain nor

in the private domain,

that is, there is no distinction in the law of half-damage between the public domain and the private domain: just as in the injured party’s domain the owner pays half-damage, so in the public domain the owner pays half-damage.

D. We further challenge:

And should a person

who kills a person

be liable for kofer,

by a kal va-chomer:

And just as an ox, which is not liable

even

for the four matters

when it injures a person, except for damage,

is liable for kofer

when the ox kills a person;

a person who is liable for the four matters [

pain, healing, loss of work, and humiliation, besides damage, when he injures a person,

is it not logical that he should be liable for kofer

when he kills a person!?

And we resolve: For this reason a person is not liable for kofer, because

the verse says concerning an ox that killed a person: “And he shall give the redemption of his life

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

according to whatever shall be imposed upon him,”

and we learn: “Upon him”—upon the owner of the ox that killed—a kofer shall be imposed,

but not upon the person

who himself killed the person.

E. We further challenge:

And should an ox be liable for the four

matters [

besides damage, when it injures a person,

by a kal va-chomer:

And just as a person who is not liable for kofer

when he kills a person,

is liable for the four matters

when he injures a person;

an ox

which is

liable for kofer

when it kills a person,

is it not logical that it

should be

liable for the four matters

when it injures a person!?

And we resolve: For this reason an ox is not liable for the four matters when it injures a person, because

the verse says [Leviticus 24:19]: “And a man who gives a blemish to his fellow, as he did, so shall it be done to him,”

and we learn:

a man against his fellow

is included in the law of inflicting blemishes, to make him liable for the four matters,

but not an ox against his fellow [

of its owner, as included in the law of inflicting blemishes, to make it liable for the four matters.

It is written [Exodus 21:28–30]: “And when an ox gores a man or a woman and he dies, the ox shall surely be stoned … And if the ox was a goring ox from yesterday and the day before, and its owner was warned but did not guard it, and it killed a man or a woman, the ox shall be stoned and also its owner shall be put to death. If a kofer is imposed upon him, he shall give the redemption of his life according to whatever shall be imposed upon him.” We learn that when a Keren gores a person and kills him, the owner of the ox is liable for kofer.

The Torah made liable only an ox that killed a person. But a person who killed a person is not liable for kofer, for it is stated “upon him,” and we expound: “but not upon the person.” From this same exclusion we learn that a pit and fire do not make their owners liable for kofer when they kill a person, for it is stated “upon him”—that is, the owners of an ox, and not the owners of a pit and fire.

However,

they posed the question to them

to the students of the academy:

An animal’s Regel that stepped upon a baby in the injured party’s courtyard

in the course of its walking—and this is a primary category of Regel,”

what is the law: does it pay kofer

and likewise, an animal that killed a person through Shen: what is the law—does it pay kofer!?

And the sides of the uncertainty are:

Do we say: just as —

Shen and Regel —

are like Keren,

for

once Keren has done so two or three times [

after it has done so two or three times, then

it is its manner [

the ox’s way of behaving]

and it pays kofer,

and if so,

here too—Shen and Regel, whose manner it is for the ox to do this—

with regard to eating and trampling, which are ordinary conduct for the ox,

there is no difference.

Or perhaps: Keren intends to cause damage

and only in this did the Torah make it liable for kofer, but

this one—

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 what was taught in a beraita:

He brought

his

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

then

the ox is stoned, and its owner—

whether

the ox was

non-accustomed,

and

whether

the ox was

forewarned—

pays kofer

full,

the words of Rabbi Tarfon.

But

full kofer for a non-accustomed ox

that killed in the injured party’s courtyard, although a non-accustomed Keren pays only half—

from where does Rabbi Tarfon derive this [

where does he have it]!?

And is it not

because Rabbi Tarfon agrees

Rabbi Tarfon

with Rabbi Yosei the Galilean, who says: A non-accustomed ox pays half-kofer in the public domain,

and not with the Sages, who exempted a non-accustomed ox from kofer entirely—

And

again

he derives it

Rabbi Tarfon derives that a non-accustomed Keren in the injured party’s courtyard pays full kofer—

by a kal va-chomer from Regel:

And just as in a situation where He was lenient with regard to Shen and Regel in the public domain, so that it is exempt from kofer, He was stringent with regard to them in the injured party’s domain, requiring full kofer; in a situation where He was stringent with regard to Keren in the public domain, requiring half-kofer, is it not logical that He should be stringent with regard to it in the injured party’s domain, requiring full kofer? And just as he applies this kal va-chomer in our Mishna concerning the damage of a non-accustomed Keren in the injured party’s courtyard.

Therefore,

it is proven that

there is kofer for Regel,

for if not, Rabbi Tarfon would have no source to make a non-accustomed Keren that killed in the injured party’s courtyard liable for more than half-kofer.

Said

the one who rejected,

Rav Shimi of Nehardea:

In truth, there is no kofer for Shen and Regel, and

the tanna—

that is, Rabbi Tarfon—

from the damages of Regel [

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

derives it

for the non-accustomed Keren, which is liable for full kofer in the injured party’s courtyard, and this is how he learns:

Just as Regel, which is exempt from payments for damages in the public domain, is liable in the injured party’s courtyard for full damage, so Keren, which in the public domain is liable for half-kofer, is it not logical that in the injured party’s courtyard it should be liable for full kofer?

And we challenge this:

And let us refute

the kal va-chomer:

What is true of the damages of Regel,

that is, what is true of payments for damages,

which also apply to fire

and therefore the Torah was stringent in its regard, requiring full damage in the injured party’s courtyard—can you say this concerning kofer, which does not apply to fire!?

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

from

the damages of

hidden property,

for with fire one is not liable for them—for fire is exempt concerning hidden property—while with Regel one is liable for them in the injured party’s courtyard for full damage.

And we still challenge this:

What is true of

the damages of

hidden property, which also apply to a pit,

can you say this 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 concerning vessels].

And we challenge this: But

what is true of vessels, which

so

also apply to fire,

can you say this concerning kofer, which does not apply to fire?

And we resolve:

From

the damages of

hidden vessels

we derive it.

And we still challenge this:

What is true of

the damages of

hidden vessels, which also apply to a person,

can you say this concerning kofer, which does not apply to a person!?

Indeed, on the basis of this refutation we reject the rejection of Rav Shimi of Nehardea, and the Gemara concludes:

Rather, is it not to be concluded from this that he derives it from the kofer of Regel!

And

therefore, there is kofer for Regel.

And we conclude: Indeed,

conclude from this

that there is kofer for Regel.

Rav Aḥa of Difti said to Ravina:

It is likewise reasonable that

we derive it from the kofer of Regel, and it follows that

there is kofer for Regel,

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

For if it enters your mind:

in truth

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

as Rav Shimi rejected:

Let us refute

this kal va-chomer:

What is true of the damages of Regel, which also apply to Regel,

that is, how can you derive kofer from damages? What is true of damages, which also apply to Regel—can you say this concerning kofer, which does not apply to Regel?

Rather, is it not to be concluded from this that he derives it from the kofer of Regel

for the kofer of a non-accustomed Keren in the injured party’s courtyard, and

therefore there is kofer for Regel—conclude from this!

Mishna:

A person—

whom we learned above, on 14b, is among the five forewarned categories—

is forewarned

he pays full damage]

always:

Whether unintentional,

where he was mistaken and caused damage, and

whether

he caused damage

intentionally, [

whether

he caused damage

under duress,

for example, he fell because of an uncommon wind,

whether

he caused damage

willingly];

whether

he caused damage while

awake, whether

he caused damage while

asleep,

for example, he broke vessels situated near him opposite his feet by stretching out his hands and feet, or he injured another person who was 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 this person

pays full damage.

Gemara:

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

It is written [Exodus 21:22]: “And when men strive … eye for eye”—that is, the value of an eye, and likewise all of them—“tooth for tooth, hand for hand, foot for foot; burning for burning, wound for wound, bruise for bruise.” And we learn that a person who injures his fellow pays damage. And it is further written [Leviticus 24:19]: “And a man who gives a blemish to his fellow, as he did, so shall it be done to him”—that is, he shall pay money, and likewise all of them—“fracture for fracture, eye for eye, tooth for tooth; as he gives a blemish to a person, so shall it be given to him.”

And from what the verse said, “burning for burning” and “wound for wound,” the Sages learned [brought here on the next side, and see below 85b] that he pays pain.

And it is written [Exodus 21:18]: “And when men quarrel, and one man strikes his fellow with a stone or with a fist … only his loss of work shall he give, and he shall surely heal him.” And we learn from here that a person who injures a person pays healing and loss of work.

And it is written [Deuteronomy 25:11]: “When men strive 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 sends forth her hand and grasps his shame” [and humiliates him through this], “then you shall cut off her palm; your eye shall not pity.” And the Sages received that the intention is payment for humiliation, and we learn that a person who humiliates a person pays humiliation.

We have learned: A person who injures his fellow pays five matters: damage, pain, healing, loss of work, and humiliation.

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

It teaches

in our Mishna

“he blinded his fellow’s eye”

unintentionally or under duress,

analogous to “

he broke the vessels,”

and we learn:

Just as there,

concerning “he broke the vessels”:

damage—

yes,

he indeed pays damage, but

the four matters [

pain, healing, loss of work, and humiliation]

not

does he pay, for this payment is not applicable to damage to vessels—

so too, “

he blinded his fellow’s eye”

unintentionally or under duress:

damage, yes,

he indeed pays, but

the four matters, no,

does he pay when unintentional or under duress, for the Torah made him liable for the four matters only when intentional, or when he was close to intentional.