Bava Kamma 27b (כז:) — the Talmud in English

Therefore,

this teaches us

that the tanna does not consider it necessary to be concerned about this, because monetary matters are not decided according to the majority.

We learned in the Mishna:

“And another person came, encountered it, and broke it; he is exempt.”

The Gemara asks:

Why?

Why is one who encounters a barrel and damages it

exempt?

After all,

he should have

looked,

looked along his path

, and proceeded,

and then continued walking, and if he did not look before proceeding, he is a damager and must pay the value of the barrels that he broke.

The Gemara offers several answers.

1.

The students

of

the school

of

Rav

said, to explain

in the name of Rav:

Our Mishna is discussing

a

person who

fills

the

entire public domain

with

barrels,

in a manner that makes it impossible to pass through the public domain without encountering the barrels. Therefore, one who encounters these barrels and breaks them is exempt, since the owner of the barrels was negligent and caused his own damage. 2.

Shmuel said:

There is no need to establish the case as one in which the public domain was filled with barrels. Rather, even if there was only one barrel, if it was located in the public domain

in darkness,

so that it could be discerned only through extensive scrutiny, in this case

they taught

in the Mishna that the one who encountered it is exempt, because he was forced into the encounter.

3.

Rabbi Yohanan said:

The Mishna is discussing a barrel located

at the corner

of the public domain, where the person who encountered it was forced into the encounter and is exempt for breaking it.

Rav Pappa said: The Mishna is not precise,

the wording of the Mishna does not support Rav's interpretation, which explains it as referring to one who encounters barrels filling the public domain, because it is impossible to discern such barrels when a person emerges from one side of the public domain and turns around a corner to the side, whether to his right or to his left.

Rather,

the Mishna can be explained only

according to Shmuel,

who explains it as referring to one who encounters a barrel located in darkness,

or according to Rabbi Yohanan,

who establishes it as referring to a barrel located at the corner.

This is because

if

we explain that our Mishna is discussing one who encounters barrels filling the public domain,

according to

the interpretation of

Rav,

the wording of the Mishna, “And another person came and encountered it,” is difficult:

why specifically

did the tanna need to say

“encountered,”

when

even

if he

broke

it intentionally,

also

he would be exempt, since the people using the public domain are permitted to clear a path for themselves to walk through.

Rav Zevid said in the name of Rava:

There is no proof from the fact that the Mishna mentions “encountered” rather than “broke” that it does not follow

Rav's interpretation; the same law applies even

if he

broke

it intentionally, he is exempt.

And this that

is difficult for you—why

does it teach

that another person came and

“encountered”

it, rather than “broke” it?

The

answer to this is:

Since he needed

the tanna

to teach

the law stated in

the latter clause, “And if the owner of the barrel was injured by it, he is liable for his injury,”

and in this law the rule is

specifically that the

person who

encountered

the barrel involuntarily is liable for the owner's injury,

but

if he

broke

it intentionally—even though he broke it permissibly, such as when the public domain was filled with barrels—nevertheless, if he was injured by the fragments while breaking the barrel,

he does not

become liable for the owner's injury.

What is the reason?

Because the one who broke the barrel

damaged himself.

Therefore,

it teaches

also in

the first clause, “encountered,”

rather than that he broke it intentionally.

Rabbi Abba said to Rav Ashi: This is what they said in the West

—this is what they said in the Land of Israel—

in the name of Rabbi Ulla:

What is the reason that one who encounters a barrel placed in the public domain is exempt?

Because

it is not the way of people to inspect the roads.

Therefore, one who places his barrel in the public domain is considered negligent, and the one who breaks it is exempt.

There was an incident

that occurred

in Nehardea:

a person tripped over a barrel that had been placed in the public domain and broke it,

and Shmuel held

the person who tripped liable to pay the value of the barrel.

And the same thing also happened

in Pumbedita, and Rava held

the person who tripped liable to pay the value of the barrel.

The Gemara now discusses this:

Granted, as for Shmuel,

he held the person who tripped liable because he interprets the statement cited in the Mishna, “And another person came, tripped over it, and broke it, he is exempt,”

in accordance with his own teaching,

according to his view, that our Mishna is speaking of a barrel placed in darkness, in which case the person who tripped over it is an אונס, one prevented from avoiding the damage through circumstances beyond his control.

But as for Rava,

who held the person who tripped over the barrel and broke it liable to pay the value of the barrel,

shall we say that he holds in accordance with Shmuel’s opinion,

and can it be inferred from this that Rava’s view is in accordance with Shmuel, and not with Ulla, who exempts the person who tripped in every case?

Rav Pappa said:

No! Rava held in accordance with Ulla, that people do not ordinarily look carefully at the roads.

And as for the incident in which Rava held the person liable for the value of the barrel, that incident involved a barrel that stood at

the corner of the oil press;

at a street corner adjacent to the oil press,

because, since they were operating there with permission,

that was their customary practice: When it was not possible to bring the barrels into the oil press, those arriving would leave their barrels in the public domain outside the oil press. Since this was their established practice, the barrel was placed there with permission. And

he should have

the person walking in the area of the oil press

look carefully

at the road

and

to

proceed.

Since he did not take care, Rava held him liable.

Rav Ḥisda sent the following question to Rav Naḥman: They said,

the Sages, that

one who

strikes his fellow with

his knee,

the knee of the one delivering the kick, must pay

three

sela for his embarrassment.

And one who

gives his fellow

a kick

with his foot was assigned a payment of

five

sela, because the embarrassment caused by a kick is greater than the embarrassment caused by a blow with the knee.

And one who

strikes his fellow with

a slap,

a donkey’s saddle, was assigned a payment of

thirteen

sela.

But

one who

strikes his fellow with

the handle of a hoe,

the wooden handle of the hoe used for digging in the ground,

and one who

strikes him with

the blade of a hoe,

the metal part into which the handle is inserted, the Sages did not assign a fixed amount that the striker must pay. Rav Ḥisda was uncertain:

What

is the amount he is required to pay?

He sent him a reply:

Rav Naḥman said:

Ḥisda, Ḥisda,

is it the case that

a fine

is being collected in Babylonia!?

The payment for embarrassment is in the category of a “fine,” since it is paid in addition to payment for the damage, and we have an established principle that a fine may be collected only by a court of ordained judges, and such judges existed only in Eretz Yisrael, not in Babylonia. If so, this question has no practical halakhic application.

Tell me

tell me

the particulars of the incident—how did it occur,

how did this incident occur, in which one person struck his fellow with the handle and blade of a hoe, so that I will know how to rule in this matter?

Rav Ḥisda sent him a reply:

This is how the incident occurred:

There was a certain water pit

a water pit

belonging to two people,

which was jointly owned by two people,

for every day one of them would draw water,

each day one of them would take turns drawing water from the pit.

One of them came and drew water on the day that was not his,

one of them drew water on the day designated for his fellow.

His fellow said to him:

his fellow said:

It is my day,

this day is my turn to use the pit, and you have no permission to draw water.

Nevertheless, the other continued drawing water, and

he paid no attention to him,

to his fellow’s protest.

In response,

he took the handle of a hoe,

he took a hoe handle and

struck him,

striking him so that he would stop drawing water.

He said to him:

Rav Naḥman said: In this case, the striker is not liable to pay for the embarrassment he caused his fellow. On the contrary, even if he wished to strike him

with a hundred pandei using the handle of a hoe, to strike him,

he would be permitted to do so from the outset!

For

even according to the one who says, “A person may not take the law into his own hands,”

meaning that a person is forbidden to adjudicate his own case, this applies only when waiting for a court ruling in his case will not cause him a loss.

But

where

if he waits until the court rules in his favor, he will come to suffer

a loss,

according to everyone,

a person may take the law into his own hands,

and he is permitted to adjudicate his own case.

For this reason, it was permitted to strike the person who drew water on the day when the right to draw belonged to his fellow, since if his fellow had been required to wait until the court compelled him to stop, the water might have run out of the pit and he would have suffered a loss.

And we find a dispute between amoraim concerning this matter:

For it was stated: Rav Yehuda said: A person may not enforce the law for himself.

Whereas

Rav Naḥman said: A person may enforce the law for himself.

The Gemara explains:

Where there is a loss,

in a case where, if he does not enforce the law for himself, he will suffer a monetary loss,

everyone agrees

that there is no dispute about this:

a person may enforce the law for himself

and is not required to sue the wrongdoer in court.

When they disagree

is with regard to what Rav Yehuda and Rav Naḥman dispute:

where

if he sues the wrongdoer in court

there is no loss,

the injured party will not come to suffer a loss.

Rav Yehuda said,

in this case

a person may not enforce the law for himself,

and the reason is:

since there is no loss

from waiting, he must

go before the judge

and go and sue the wrongdoer in court, rather than enforce the law for himself.

And

Rav Naḥman said:

even when waiting does not cause the injured party a loss,

a person may enforce the law for himself, since

the injured party knows that the decision will be in his favor, and

when he is acting lawfully, he need not trouble himself

with the burden of troubling himself to sue the wrongdoer in court.

Rav Kahana raised an objection: Ben Bag Bag says:

one who sees his vessels in his fellow’s courtyard and wishes to enter the courtyard to take them, is told:

Do not enter your fellow’s courtyard to take what is yours,

secretly,

without permission

of the owner of the courtyard

, lest you appear to him as a thief. Rather,

enter openly and forcefully and

break his teeth,

and say to him:

“The vessels

that are mine I am taking!”

It is evident from Ben Bag Bag’s words that a person may enforce the law for himself even where he will suffer no loss by waiting for a court ruling, in accordance with Rav Naḥman.

He said to him

Rav Yehuda to Rav Kahana: