Bava Kamma 28a (כח.) — the Talmud in English

“With you?” —

Do you really think that a proof can be brought from the statement of Ben Bag Bag in support of Rav Naḥman’s view?

Behold,

Ben Bag Bag is an individual authority,

his view is that of a single sage,

and the Rabbis dispute him,

holding that a person may not enforce the law himself in a case where he will suffer no monetary loss by waiting for a ruling of the court.

Rabbi Yannai said:

There is no proof from Ben Bag Bag’s words that a person may enforce the law himself.

What

does Ben Bag Bag mean when he says,

“Break his teeth,”

namely, by suing him

in court,

and proving to the court that the utensils belong to you? In that way you “break his teeth.” The Gemara asks:

If so,

why did Ben Bag Bag phrase his statement: “Break his teeth”

“and say to him”

“I am taking what is mine”?

And

if the matter concerns a victim who sued him in court,

“and the judges say to him,”

the judges

should have said

that! For it is the judges who determine to whom the utensils belong!?

A similar difficulty arises with the continuation of Ben Bag Bag’s statement: “Say to him

‘I am taking what is mine,’”

for the court declares to whom the utensils belong, and

“He is taking what is his” should have been said

instead?

And we conclude:

The matter remains difficult.

Come and hear,

a proof from a beraita in support of Rav Naḥman, as it was taught:

If an ox climbed upon another ox

in order

to kill it, and the owner

of the

lower

ox came to save his ox

and pulled his own ox away

from beneath the upper ox,

and

as a result

the

upper

ox

fell to the ground

, and died, he is exempt

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

The Gemara infers:

Is it not

that the beraita is speaking also

of a

ox that was

forewarned

and climbed upon another ox? It is thus established that the owner of the lower ox may enforce the law himself even in a case

where there is no loss,

for if the forewarned ox killed his ox, its owner would have to pay full damages, so the owner of the lower ox would not suffer a loss if his ox were killed. It follows that the beraita agrees with Rav Naḥman, who holds that a person may enforce the law himself even when he would not suffer a loss by suing in court.

The Gemara rejects this:

No.

The beraita does not prove Rav Naḥman’s position, because the beraita may be established as referring

to a

ox that was

unforewarned

and climbed upon another ox. In that case, the owner of the lower ox may pull away the upper ox and enforce the law himself in order to prevent his ox from being damaged, because if he refrains from saving his ox and merely sues the owner of the unforewarned ox in court, it will turn out

that there is a loss

for the owner of the lower ox, since an unforewarned ox that causes damage pays only half-damages.

For this reason, the beraita permitted him to enforce the law himself, so that he would not suffer a monetary loss. But in a case where the victim will not suffer a loss if he does not enforce the law himself and waits for the court’s ruling—for example, when a forewarned ox climbed upon his ox—it is forbidden to enforce the law oneself.

If so,

if the beraita is indeed speaking of an unforewarned ox,

consider the latter clause:

How is the latter clause to be understood:

If he pushed

the owner of the lower ox

the

upper

ox, and it died

because of his push, the owner of the lower ox

is liable,

because he killed the upper ox directly.

But if

And if

the matter concerns

an ox that was

unforewarned

and climbed upon another ox,

why is the owner of the lower ox

liable

for killing it? Surely everyone agrees that he may enforce the law himself, and may even kill the upper ox directly, so that he will not 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 ox’s death directly, but because

The Gemara answers: The liability of the owner of the lower ox who pushed the upper ox is not because he caused the upper ox’s death directly. Rather, it is because

it was incumbent upon him

upon the owner of the lower ox

to pull it away,

to pull his own ox out from beneath the upper ox, thereby allowing the upper ox to descend without being injured,

but he did not pull it away;

rather, he pushed away the upper ox. A person is forbidden to enforce the law himself and damage another person when he has the option of saving what is his without damaging the other person.

Ta shma

a proof from a beraita supporting Rav Naḥman:

One who fills

the

courtyard of another

with

wine barrels and oil barrels,

if

the owner of the courtyard

wishes to pass through his courtyard, he is not required to arrange them one on top of the other. Rather, he

breaks them and goes out, breaks them and enters,

breaking the barrels obstructing his way, and he is not required to arrange them one on top of the other. It follows that a person may administer justice for himself even in a place where he will not suffer monetary loss if he waits until he clarifies his case in beit din.

Rav Naḥman bar Yitzḥak said:

This beraita is not a proof of Rav Naḥman’s opinion, because the beraita is speaking of a case in which the owner of the barrels claims that the courtyard belongs to him. In that case, the owner of the courtyard

breaks them and goes out

in order to go

to beit din

to present his claims, and likewise he

breaks them and enters to bring

the document of

his rights

to the courtyard. It follows that the owner of the courtyard may suffer a loss if he cannot pass through his courtyard, since he would thereby be unable to present his claims to beit din. Even Rabbi Yehuda agrees that a person may administer justice for himself where he suffers a loss.

Ta shma

a proof from a beraita in accordance with Rav Naḥman and not in accordance with Rav Yehuda:

From where do we derive that

a Hebrew slave who

has his ear pierced

after he has served his master for six years,

when his years have ended

when the Jubilee arrives, 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 inflicts a wound upon him,

so that he will go out and leave his master’s authority,

he is exempt

from paying the compensation for the injury?

The verse states: [Numbers 35]

“You shall not take a ransom for returning.”

And the Sages interpreted this:

“You shall not take

payment of

a ransom for

the sake of

the one who returns,

the one whose legal status requires him to return to his family but who does not return, namely, the slave.” It is thus clear that the master may administer justice for himself and strike his slave so that he will go free, even though the master suffers no loss if the slave remains under his authority.

The Gemara rejects this: This beraita is not a proof of Rav Naḥman, and

what are we dealing with here? With a thieving slave,

a slave who steals, so that if he remains under his master’s authority, the master may suffer damage from his thefts. Therefore, his master may administer justice for himself and strike him so that he will go free, even according to Rabbi Yehuda. The Gemara asks: Is it possible 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 now his master did not wish to set him free, but

now,

when the Jubilee arrived and he must go free, 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

—he feared his master. But

now,

when the Jubilee arrived and he is automatically freed,

he no longer has fear of his master upon him,

and therefore his master may strike him so that he will leave his authority and the master will not suffer damage from his thefts.

Rav Naḥman bar Yitzḥak said:

The beraita is dealing

with a slave whose master gave him a Canaanite maidservant

as a wife. And

until now,

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

permissibly,

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

But

now,

now,

when the Jubilee arrived and he is free, this maidservant is, for him,

forbidden,

because an Israelite is forbidden to have relations with a maidservant. Therefore, his master may strike him in order to separate him from a prohibition.

Ta shma,

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

A person

who places a barrel in the public domain, and another person comes

and

stumbles over it and breaks it,

the person who stumbled

is exempt,

and earlier in the Gemara Rav established the Mishna as referring to a case in which the entire public domain was filled with barrels.

It is precise from the wording of the Mishna that

the reason

for the exemption is because

he stumbled over it

without intending to do so, and he is therefore compelled by circumstance to break the barrel.

It follows

that if he broke it

intentionally,

he is liable,

even though the barrels prevent him from passing through the public domain, and he may suffer a loss if he does not break them. This proves that a person is forbidden to administer justice for himself even in a place where he suffers a loss.

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.

Come and hear:

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

as we learned in the Mishna:

If the public thoroughfare passed through his field, because the public had long established their use of it, or because he himself had given it to them, and now he wishes to retract and abolish the public thoroughfare.

because the public had long established the right to use it, or because he himself had given it to them, and now he wishes to retract and cancel the public thoroughfare.

And therefore he went and

took

the road away from them,

and gave them

another road that passes

along the side

at the edge of the field.

What he gave, he gave. They have possession of the new road.

They are now in possession of the new road.

But had

the old road, which he wanted to be

his, not reached them, he would not have acquired it; rather, it would still be presumed to belong to the public.

he did not acquire it; rather, it remains in the possession of the public.

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

And if

as

you say that where there is a loss, according to everyone

that where there is a loss, according to everyone a person

a person may take the law into his own hands, then why does the old road belong to the members of the public domain, and why can the owner of the courtyard not take the law into his own hands,

why does the old road belong to the people who have the right to use the public domain, so that the courtyard owner cannot enforce his rights himself

take a club and sit down, to prevent them from passing along his road?

to take a stick and guard the road so that they will not pass along his road?

The Gemara answers:

Rav Zevid said in the name of Rava: Although a person is permitted to take the law into his own hands when he suffers a loss, the Sages prohibited the owner of the courtyard from preventing the public from passing along the old road,

Although a person is permitted to enforce his rights himself when he would otherwise suffer a loss, the Sages prohibited the courtyard owner from preventing the public from using the old road,

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.

that is less convenient than the first road. Therefore, the public was permitted to continue using the old road.

Rav Mesharsheya said:

The Mishna speaks

of

the owner of the courtyard who

gives them a crooked road in place of the old road. Therefore, the Sages enacted that what he already gave, he gave, while his old road remains presumed to belong to the public.

in place of the old road. Therefore, the Sages enacted that what he has already given remains theirs, while the old road remains in the possession of 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 owner may take the law into his own hands and prevent them from walking there. The Sages did not decree that the old road should belong to them, lest he give them a crooked road.

Rav Ashi said: Even if he gave them another road as convenient as the old road, he may not prevent the public from passing along the old road, because

Even if he gave them another road that is as convenient as the old road, he may not prevent the public from using the old road, because

every

road that is

along the side

of the field

is a

crooked road, because although it is

because although it is

close to this one

who is located near this side,

yet on the other hand it is

on the other hand it is

far from that one

for those who live on the opposite side, for whom the old road is more convenient. As for those for whom the new road is farther away, he is acting unlawfully, and therefore he does not acquire the old road.

The Gemara asks:

If so, if, as you say, the new road is not as good as the old road and does not constitute a replacement for the first road,

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

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

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

“his did not reach him”—let us say to them the members of the public domain:

—to the people who have the right to use the public domain—

“Take what is yours, the old road, which is yours,

the old road, which is yours,

and give me what is mine, return the new road to me.

return the new road to me.

The Gemara answers: Indeed, the new road that he gave them cannot serve as a replacement for the old road; nevertheless, the new road belongs to the members of the public domain,

because of Rav Yehuda’s ruling.

As Rav Yehuda said: A road that the public has taken possession of, a private domain that many people have become accustomed to using and have arranged for this purpose, while the owner of the property did not protest,

a private area that the public became accustomed to using and adapted for that purpose, while the homeowner did not protest,

it is forbidden

for the owner of the property

to damage it, removing it from public use and returning it to the private domain, since he knew that the public was walking through his field and remained silent; certainly, he waived his right.

it by ending the public's use of it and returning it to private ownership. Since he knew that the public was walking through his field and remained silent, he certainly 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 cannot claim mistaken transaction, and what he gave, he gave.

Come and hear:

an objection from a beraita to Rav Yehuda and Rav Naḥman, from the following: as it was taught:

A homeowner who placed

pe’a on one side

of his field,

and poor people came and took pe’a

the pe'a

from the other side.

Both this and that, both what they took and what he set aside but which they have not yet taken, have the status of

both what they took and what he set aside but they had not yet taken, have the status of

pe’a, and he must make it available to the poor.

and he must make it ownerless for the poor.

And if you say that a person may take the law into his own hands, why is “both this and that pe’a”? Why must he make available what he set aside, and why can he not

Why must he make what he set aside ownerless, and why can he not

“take a club,”

take a stick

“and sit,” sit and guard the entrance to his field so that the poor will not acquire the pe’a he set aside? Surely he did not set aside pe’a for the poor twice.

sitting and guarding the entrance to his field so that the poor will not acquire the pe'a that he set aside? Surely he did not intend to set aside 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,

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

to exempt them from tithing. Even if afterward he retakes for himself what he had set aside for the poor, it remains exempt from tithing.

Even if he later takes back for himself what he had set aside for the poor, it remains exempt from tithes.

As it was taught: One who declares

to the public

his vineyard ownerless, and

the next day

rises early in the morning and harvests it, thereby reacquiring the ownerless vineyard for himself,

and acquires the ownerless vineyard for himself,

is obligated in peret, olelot, shikḥa, and pe’a, even though ownerless produce is exempt from all of these; since he reacquired the produce, he is once again obligated in these gifts to the poor.

and although ownerless produce is exempt from all of these, once he reacquires the produce, he again becomes liable for these gifts to the poor.”

and is exempt from tithes,

because ownerless property is exempt from tithes even after others have acquired it; and the same applies if he acquired the ownerless property for himself: it remains exempt from tithes.

This is what the beraita taught: “A landowner who left pe'a on one side, and poor people came and took pe'a from the other side, both this and that are pe'a,” meaning that both what the poor acquired for themselves and the portion that he set aside but which they had not yet taken, which he could acquire for himself, are exempt from tithes.

MISHNA:

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

his jug broke in the public domain,

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

and

as a result

one slipped

on the water, or an injured party was hurt

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 jug's fall is considered negligence, and his legal status is 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.

The law concerning the shards that remained in the public domain is as follows: if he intended

to acquire them,

they are his obstacle, and he is

liable

for the damage they cause

.

But if he did not intend

to acquire them,

he is

exempt,

because one who declares his damaging property ownerless in the public domain is exempt.

GEMARA:

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

It was explained above [3b] that the pit mentioned in the Torah is an excavation in the ground of the public domain. The derivative category of a pit is an object placed in the public domain in a manner liable to cause an obstacle.

And below, in the Gemara [50b], the amoraim disputed the liability of the owner of a pit:

According to Rav, the owner of a pit is liable for injury to or the death of an ox caused by the foul air present in the pit, but he is not liable for damage caused by impact with the floor of the pit, because another ground [not his] caused the damage, and one is exempt for indirectly caused damage.

According to Shmuel, by contrast, the owner of a pit is liable for every type of damage caused by the pit. Consequently, whether the person who stumbled died because of the foul air or because of the impact, he is liable.

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

According to Rav, the Torah made the owner of a pit liable for damage caused by his pit only when he dug a pit in the public domain, or placed an object in a manner capable of causing an obstacle in the public domain and declared it ownerless. But if he placed an obstacle in the public domain without declaring it ownerless, he is not liable for the damage it causes under the law of a pit. Rather, he is liable under the law of his property that causes damage [which is derived from the Torah's making a person liable for damage caused by his ox].

According to Shmuel, a person's liability for damage caused by his pit applies whether or not he declared it ownerless.

At this stage, the Gemara understood that our Mishna is speaking of a person who stumbled in the public domain, causing his jug to break, but did not declare the water and shards ownerless.

Rav Yehuda said in the name of Rav: The Mishna taught

that if someone slipped on the water or was injured by the shards, the owner of the jug is liable,

only

when

his garments became soiled

—the garments of the person who stumbled—

by the water

as a result of his slipping.