Bava Kamma 28a — the Talmud in English

“With you”? —

Do you really think that a proof for Rav Nahman’s position can be brought from the words of Ben Bag Bag?

Behold,

Ben Bag Bag is an individual opinion,

his is the opinion of a single individual,

and the Rabbis dispute him,

and their opinion is that a person may not administer justice for himself where he has no monetary loss if he waits for the ruling of the court.

Rabbi Yannai said:

There is no proof from Ben Bag Bag’s words that a person may administer justice for himself. And

what

did Ben Bag Bag mean when he said

“Break his teeth,”

namely, by bringing him to court

through a legal proceeding,

and proving before the court that you own the utensils—then you have “broken his teeth.” The Gemara raises an objection:

If so,

why did Ben Bag Bag state in his words: “Break his teeth”

“and say to him”

“I am taking what is mine”?

And

if the matter concerns the robbed person bringing him to court,

“and the judges say to him

the judges,”

it should have said

“and say to him”! For the judges determine who owns the utensils!?

And likewise difficult are the continuation of Ben Bag Bag’s words, “Say to him”

“I am taking what is mine,”

for the court states the decision to whom the utensils belong, and

“He is taking what is his—it should have said

that.”

And we conclude:

It is difficult.

Come and hear,

a proof from a beraita in accordance with Rav Nahman, from that which was taught:

An ox that climbed upon its fellow

in order

to kill it, and the owner

of the

lower

ox came to save his ox

and pulled away his own

from beneath the upper ox,

and

because of this

the

ox

upper

fell to the ground

, and died, he is exempt

the owner of the lower ox from paying for the damage caused by the upper ox, because he is permitted to administer justice for himself in order to save his ox.

And the Gemara infers:

Is it not that

the beraita is speaking also

of

an

attested

ox that climbed upon its fellow, and it is explained that the owner of the lower ox is permitted to administer justice for himself even where

there is no loss,

for if the attested ox kills his ox, its owner will have to pay full damages, so that the owner of the lower ox will not lose if his ox is killed? And it follows that the beraita holds like Rav Nahman, that a person is permitted to administer justice for himself even when he would not come to suffer a loss were he to bring a claim in court.

The Gemara rejects this:

No.

There is no proof from the beraita for Rav Nahman’s words, because the beraita can be established as speaking

of

an

unattested

ox that climbed upon its fellow. In that case, the owner of the lower ox can pull away the upper one and administer justice for himself in order that his ox not be damaged, because if he refrains from saving his ox and merely brings a claim against the owner of the unattested ox in court, it turns out

that there is a loss

to the owner of the lower ox, since an unattested ox pays only half-damages. For this reason the beraita permitted him to administer justice for himself, so that he would not come to suffer a monetary loss. But where the injured party will not lose if he does not administer justice for himself and waits for the court’s ruling—for example, where an attested ox climbed upon his ox—it is forbidden to administer justice for himself.

The Gemara raises a difficulty:

If so,

if indeed the beraita is speaking of an unattested ox,

say the latter clause:

how is the latter clause to be understood:

He pushed it,

the owner of the lower ox

the

ox

upper, and it died

because of his pushing it, the owner of the lower ox

is liable

because he killed the upper ox directly?

And if

it is speaking

of

an ox

unattested

that climbed upon its fellow,

why

is the owner of the lower ox

liable

for killing it? According to everyone, he is permitted to administer justice for himself and even to kill the upper ox directly, so that he will not come to suffer a loss.

The Gemara answers: The liability of the owner of the lower ox who pushed away the upper ox is not because he caused the upper one’s death directly, but because

he had

the owner of the lower ox

to pull it away,

to pull his own ox out from beneath the upper one, and thereby the upper one could descend without being damaged,

but he did not pull it away,

rather, he pushed away the upper one. A person is forbidden to administer justice for himself and damage his fellow when he has the possibility of saving what is his without damaging his fellow.

Ta shma:

a proof from a beraita for the words of Rav Naḥman:

One who fills

the

courtyard of his fellow

with

wine-jugs and oil-jugs,

if

the owner of the courtyard

wishes to pass through his courtyard, he is not obligated to arrange them one upon the other; rather,

he breaks and goes out, breaks and enters

the jugs that obstruct his way, and he is not obligated to arrange them one upon the other. It follows that a person may enforce justice for himself even in a place where he will not come to monetary loss if he waits until he clarifies his case in the court.

Rav Naḥman bar Yitzḥak said:

There is no proof from this beraita for the words of Rav Naḥman, because the beraita speaks of a case in which the owner of the barrels claims that the courtyard is his. In that case, the owner of the courtyard

breaks and goes out

in order to go

to the court

to present his claims, and likewise he

breaks and enters in order to bring

the document of his

rights

to the courtyard. It follows that the owner of the courtyard may come to a loss if he cannot pass through his courtyard, and as a result will be unable to present his claims to the court. Even Rabbi Yehuda concedes that a person may enforce justice for himself in a place where he has a loss.

Ta shma:

a proof from a beraita like Rav Naḥman and not like Rav Yehuda:

From where do we derive concerning

a Hebrew slave who

has his ear pierced

after he served six years for his master,

that his days have ended

when the Jubilee arrived, and he must complete his servitude with his master,

and his master urges him to leave

for freedom, but the pierced slave refuses to leave,

and

as a result

his master injures

him

and makes a wound in him,

so that he will go and leave his authority,

that he is exempt

from paying the cost of the injury?

The verse states: [Numbers 35]

“You shall not take a ransom for returning.”

And the Sages expounded:

“You shall not take

payments of

ransom for

the purpose of

the one returning,”

for one whose law is to return to his family but does not return—that is, the slave. It is explained that the master may enforce justice for himself and strike his slave so that he will go out to freedom, even though he suffers no loss if he remains in his authority.

The Gemara rejects this: There is no proof from this beraita for Rav Naḥman, and

here, with what are we dealing? With a thief-slave,

a slave who steals, so that if he remains under his master’s authority, his master may be harmed by his thefts. Therefore, it is permitted for his master to enforce justice for himself and strike him so that he will go out to freedom, even according to Rabbi Yehuda. The Gemara wonders: Is it so that

until now

throughout all the time that he was with his master he

was not

a

thief,

as evidenced by the fact that until today his master did not wish to set him free,

and now

when the Jubilee arrived he became a

thief?

The Gemara answers:

Until now

he did not steal because

there was

for the slave

fear of his master upon him,

the fear of his master was upon him. But

now,

when the Jubilee arrived and he is in any event freed,

he has no fear of his master upon him,

and therefore it is permitted for his master to strike him so that he will leave his authority and his master will not be harmed by his thefts.

Rav Naḥman bar Yitzḥak said:

The beraita deals

with a slave to whom his master gave a Canaanite maidservant

as a wife. And

until now,

until the time of his release arrived, she was his wife in

permitted status,

since a Hebrew slave is permitted to take his master’s maidservant as a wife for as long as he is under his master, as it is written [Exodus 21]: “If his master gives him a wife.”

But

now,

now,

when the Jubilee arrived and he was freed, this maidservant was for him

forbidden,

because an Israelite is forbidden to have relations with a maidservant. And because of this, it is permitted for his master to strike him in order to separate him from a prohibition.

Ta shma,

a question from our Mishna against Rav Yehuda and Rav Naḥman.

A person

who places a jug in the public domain, and

another person comes

and stumbles over it and breaks it,

the one who stumbled

is exempt,

and in the Gemara above, Rav established the Mishna as referring to a case in which the entire public domain was full of barrels.

It is precise from the wording of the Mishna that

the reason

for the exemption is because

he stumbled over it

without intending this, and he is compelled by circumstances in breaking the barrel.

It follows from this,

if he broke it

intentionally,

he is liable,

even though the barrels prevent him from passing through the public domain, and he may come to a loss if he does not break them. It is proven that a person is forbidden to enforce justice for himself even in a place where he has a loss.

Whereas it is explained in the Gemara above that, in a place where a loss is liable to be caused if they wait for the ruling of the court, everyone agrees that it is permitted to administer justice for oneself.

The Gemara answers:

Rav Zevid said in the name of Rava:

this inference is not necessary; rather,

the same law applies

even

if

he broke it

the one who encountered it intentionally; he is exempt.

And this that it teaches

in the Mishna

“he encountered it”—since it wished to teach in the latter clause

since the tannai wished to teach in the latter clause

“if he was injured

the one who encountered the fragments of the barrel,

“the owner of the barrel is liable for his damage,”

because the barrel is considered a pit in the public domain.

And this law is correct only if the injured party encountered it, and not if the injured party intentionally broke the jug.

Because

specifically

if

he encountered it

it is applicable to hold the owner of the barrel liable, since he placed the obstacle in the public domain,

but

if

he broke it

the one who was traveling in the public domain,

it is not

applicable to hold the owner of the barrel liable for payment of his damage, because

he damaged himself

for he caused the damage to himself by breaking the barrel, and the owner of the barrel is exempt.

It follows that the law of the latter clause applies only when he encountered it and not when he broke it, and since this is so

it teaches

also in

the first clause, “he encountered it,”

although the law of the first clause also applies when he broke it.

Come and hear:

a question from a beraita against Rav Yehuda and Rav Nahman. For it was taught: It is stated in the Torah [Deuteronomy 25]: “When men fight together, 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,

“then you shall cut off her hand.”

And the Sages expounded that the intention of the verse is not to say that her hand is cut off, but rather to obligate her in

money

as the payment for his shame.

Is it not

the case that the plain meaning of the language of the beraita implies that in every case she must pay money, and even

when

at the time

when she cannot rescue

her husband from the hand of the one striking him

by means of another thing,

and she had no choice but to rescue him by shaming the one striking him. And nevertheless the beraita obligated the woman to pay the payment for the shame of the one striking him, and it is proven that even in a place of loss, such as here, where she came to rescue her husband from the hand of the one striking him, a person does not administer justice for himself. And this is difficult from here against what was stated above, that in a place of loss everyone agrees that a person administers justice for himself. The Gemara rejects:

No,

there is no proof from this beraita, because the beraita speaks of a woman

who can rescue

her husband

by means of another thing.

And since this is so, she has no permission to shame the one striking him and administer justice for herself; and if she shamed him, she must pay the payment for his shame.

But

if

she cannot rescue

her husband

by means of another thing,

but only if she shames his fellow,

she is exempt.

For it is permitted for a person to administer justice for himself in a place where he has a loss.

The Gemara asks:

If so,

if indeed the beraita obligates the woman in the payment for shame only when she can rescue her husband by means of another thing,

instead of teaching in the latter clause,

before the beraita teaches in the latter clause:

“and she extends her hand,”

from this we learn

“excluding an agent of the court,”

who shames the one striking him, that he is exempt from the payment for shame,

let it distinguish and teach concerning her herself,

for it is possible to distinguish with regard to the woman herself who rescues her husband, between one who can rescue by means of another thing and one who cannot. And let us expound the verse as follows: “And she extends her hand ... then you shall cut off her hand”:

in what case are these words said,

that she is obligated to pay the payment for his shame,

When

at the time

when she can rescue

her husband

by means of another thing, but

if

she cannot rescue

her husband

by means of another thing,

it follows that she has no choice but to shame the one striking him,

she is exempt.

And if so, why did the beraita exclude from the verse “and she extends her hand” an agent of the court who shamed, and did not exclude the woman herself who shamed when she had no possibility of rescuing by means of another thing, that she is exempt?

The Gemara answers:

This too is what it says:

indeed, this is the intention of the tannai in the latter clause,

in what case are these words said,

that the woman is obligated to pay the payment for the shame of the one striking him,

when she can rescue

her husband

by means of another thing,

even without shaming him.

But

if

she cannot rescue

her husband

by means of another thing, her hand becomes like the

hand

of an agent of the court,

and

just as an agent of the court who shamed is exempt, so too she

is exempt.

Darkei David referred to the words of the Rosh in the first chapter [20], that a person may enforce his own rights and even seize a fine in Babylonia, where courts do not adjudicate fines. It follows that the permission to enforce one's own rights is based on the fact that he has the authority of a court from the Torah for this purpose. In the lectures of Rabbi Aryeh Leib [75], it was written that there is a distinction between the court's permission to strike and the permission of one who enforces his own rights. A court is permitted to strike in order to compel the defendant to fulfill the court's ruling. But one who enforces his own rights is not permitted to compel the robber to pay him. The nature of his right is that he may take what belongs to him for himself; and even if he needs to strike the robber, he may strike him within the scope of the permission to take his own property, because if he needs to strike the person who took his property, this is the only form of taking available to him. But he has no general permission to strike, as a court does. It remains to examine whether one who enforces his own rights becomes like an agent of the court because he is the owner of the money and is, in effect, the court himself, or whether the essential authority is entrusted to the court and he merely acts in its place. The Maharshakh maintained that even according to Rav Naḥman, one is permitted to strike the other person only when there is a loss. Apparently, the reason is that when there is a loss, he himself is the court, and he may strike even if the court would have recovered the property without striking. But when there is no loss, he merely stands in place of the court, and since the court could recover the property without striking, he too may not strike.

Ta shma

an objection from a Mishna to Rav Yehuda and Rav Naḥman:

For we learned:

“If there was a public thoroughfare passing through his field,”

because the public had held it from long before, or because he himself had given it to them, and now he wants to retract and abolish the public thoroughfare.

And therefore he went and

took

the road away from them,

and gave them

another road that passes

from the side

at the edge of the field.

“What he gave, he gave.”

And behold, they are holding the new road.

And

if the old road that he wanted to be

his had not reached them,

he did not acquire it; rather, it is still presumed to belong to the public.

It follows that the homeowner suffers a loss, and the public has two roads within his field.

And if

so

you say,

that where there is a loss, according to everyone

a person takes the law into his own hands,

then why does the old road belong to the people of the public thoroughfare, and why can the owner of the courtyard not take the law into his own hands,

take a club and sit,

take a stick and guard it so that they do not pass along his road?

The Gemara answers:

Rav Zevid said in the name of Rava,

even though a person is permitted to take the law into his own hands when he has a loss, the Sages prohibited the owner of the courtyard from preventing the public from passing along the old road,

as a decree lest he give them a crooked road

that is not as convenient as the first road; therefore, the public was permitted to continue walking along the old road.

Rav Mesharsheya said:

The Mishna is speaking

of

the owner of the courtyard

giving them a crooked road

in place of the old road. Therefore the Sages decreed that what he has already given, he has given, and his old road shall remain presumed to belong to the public.

But if he gives the public a new road as convenient as the first road, the public has no right to continue walking along the old road. If they do so, the homeowner can take the law into his own hands and prevent them from walking on it, and the Sages did not decree that the old road should be theirs lest he give them a crooked road.

Rav Ashi said:

Even if he gave them another road as convenient as the old road, he cannot prevent the public from passing along the old road, because

every

road that is

from the side

of the field,

a road

of crookedness it is,

because although it is

close to this one

who is located adjacent to this side,

and

on the other hand it is

far from that one

those who live on the other side, for whom the old road is more convenient. And concerning those from whom the new road is far, he is acting unlawfully, and therefore he does not acquire the old road.

The Gemara is astonished:

If so,

as you said, that the new road is not as good as the old road and does not constitute a replacement for the first road,

why

does the new road that he gave remain theirs, while the old road

“his did not reach them; let us say to them”

to the people of the public thoroughfare,

“Take what is yours,”

the old road that is yours,

“and give me what is mine,”

return the new road to me?

The Gemara answers: Indeed so, the new road that he gave them cannot serve as a replacement for the old road, and nevertheless the new road belongs to the people of the public thoroughfare,

because of Rav Yehuda.

For Rav Yehuda said: “A passageway that the public has taken possession of,”

a private domain that the public became accustomed to using and prepared for this purpose, and the homeowner did not protest against them,

it is forbidden

for the homeowner

to damage it

by removing it from the public’s use and returning it to a private domain, since he knew that the public was walking within his field and remained silent; certainly he waived his right.

And all the more so in the case of our Mishna, where the owner of the field himself gave it to the public: he has no claim of an erroneous transaction, and what he gave, he gave.

Ta shma

an objection from a beraita against Rav Yehuda and Rav Naḥman, from this: For it was taught:

“A homeowner who left

pe'a on one side

of his field,

and poor people came and took

the pe'a

from the other side.”

“Both this and that,”

both what they took and what he separated but they had not yet taken, has the status of

pe'a,

and he must make it ownerless for the poor.

“And if you say that a person takes the law into his own hands, why ‘both this and that are pe'a’?”

Why is he required to make what he separated ownerless, and why can he not

take a club,

take a stick,

and sit,

sit and guard at the entrance to his field so that the poor will not acquire the pe'a that he separated, since he certainly did not separate pe'a for the poor twice?

Rava said: “What

we say

‘both this and that are pe'a,’

does not mean that he must leave everything for the poor; rather, each has the status of pe'a,

to exempt them from tithing.”

And even if afterward he returns and acquires for himself what he left for the poor, he is exempt from tithing.

As it was taught: “One who makes

his vineyard ownerless for the public,

and

the next day

rose early in the morning and harvested it,

and acquired for himself the ownerless vineyard,

is liable for the single clusters, the incompletely formed clusters, the forgotten produce, and the pe'a,

and even though ownerless produce is exempt from all of these, since he returned and acquired the fruits, he is again liable for these gifts to the poor.”

and is exempt from tithing,

because ownerless property is exempt from tithing even after others have acquired it, and the same law applies if he acquired the ownerless property for himself: he is exempt from tithing.

And this is what the beraita taught: “A landowner who left pe'a on one side, and poor people came and took pe'a on the other side, both this and that are pe'a,” to say that both what the poor acquired for themselves and the portion that he designated but which they have not yet taken, which he can acquire for himself, are all exempt from tithing.

Mishnah:

A person walking with a jug of water stumbled on the ground and fell, and as a result

his jug was broken in the public domain,

and the water spilled out and the shards were scattered on the ground,

and

as a result

one slipped

in the water, or an injured party was struck

by the shards.

The owner of the jug

is liable

for payment of the damage, because he should have been careful and prevented the stumbling; the falling of the jug is considered negligence, and his status is like that of one who dug a pit in the public domain.

Rabbi Yehuda says:

One who stumbles along his way is not considered negligent with regard to breaking the jug, and is exempt for damage caused at the time of the fall.

And the law concerning the shards that remained in the public domain is: if he

intended

to acquire them,

the obstacle is his, and he

is liable

for their damages.

.

But if he

did not intend

to acquire them, he

is exempt,

because one who renders his damaging objects ownerless in the public domain is exempt.

Gemara:

It is stated in the Torah [Exodus 21:33–34]: “And when a person opens a pit, or when a person digs a pit, and does not cover it, and an ox or a donkey falls there. The owner of the pit shall pay; he shall return money to its owner, and the dead animal shall be his.”

And above [3b] it is explained that the pit mentioned in the Torah is a pit dug in the ground of the public domain. And the derivative of a pit is an object placed in the public domain in a manner that is liable to cause an obstacle.

And below, in the Gemara [50b], the amoraim dispute what the liability of the owner of the pit is:

According to Rav, the owner of the pit is liable for the damage to or death of an ox caused by the foul air found in the pit, but he is not liable for damage caused by the impact against the bottom of the pit, because other ground [that is not his] damaged it, and one is exempt for indirect causation of damage.

Whereas according to Shmuel, the owner of the pit is liable for every damage caused by the pit. Therefore, whether the one who stumbled died because of the foul air, or died because of the impact, he is liable.

And there is another dispute concerning the law of a pit. Below [49b], Rabbi Yishmael and Rabbi Akiva dispute it, and in our sugya Rav and Shmuel dispute it.

According to Rav, the Torah made the owner of the pit liable for the damages of his pit only in a case where he dug a pit in the public domain, or placed an object in a manner that could cause an obstacle in the public domain and rendered it ownerless. But if he placed an obstacle in the public domain and did not render it ownerless, he is not liable for its damages by the law of a pit; rather, he is liable by the law of his property that causes damage [which is learned from the fact that the Torah made a person liable for the damages of his ox].

And according to Shmuel, a person’s liability for the damages of his pit applies whether he rendered it ownerless or did not render it ownerless.

At this stage, the Gemara understood that our Mishna speaks of a person who stumbled in the public domain and whose jug broke, and who did not render the water and the shards ownerless.

Rav Judah said in the name of Rav: They taught only

in the Mishna that if one slipped in the water or was struck by the shards, the owner of the jug is liable,

but

when

his garments became soiled,

the clothing of the one who stumbled

by the water

through his slipping.