Bava Kamma 28b — the Talmud in English

But

if

he,

the one who encountered it

himself

was injured, for example, he struck the ground because he slipped on the water, the owner of the jug

is exempt,

because it was not his property that injured the one who encountered it, but rather

the ground

of

the world injured him,

whereas the water and the shards belonging to the owner of the jug merely caused him to be injured by the ground, and one who causes injury indirectly is exempt. And Rav follows his own position, for he said: the pit for which the Torah imposed liability is for its vapor, but not for its impact.

Rav Yehuda further added and said:

When I said it,

when I stated this report

before Samuel, he said to me: Since,

after all,

a person’s stone, knife, and load

that are lying in the public domain and caused damage: their owners are liable for the damage they caused, under the law of a pit in the public domain.

For

from

the fact that the Torah imposed liability upon a person for damage caused by

his pit, we learn

that for every object that causes an obstacle in the public domain, its owner is liable for the damage of those who encounter it.

And

since the owner of the jug is liable under the law of a pit, and

in all of them,

in all the obstacles for whose damage their owners are liable under the law of a pit,

I apply to them

the exposition stated concerning the law of a pit, regarding the verse: “When a person opens a pit, or when a person digs a pit, and an ox or a donkey falls there”:

“An ox,” but not a person; “a donkey,” but not vessels.

The Torah imposed liability upon the owner of the pit for the falling of an ox and a donkey, but not for the falling of a person or vessels. It follows that the owner of the jug is liable for the obstacle he caused only if an ox encountered his pit; but if a person encountered the shards and struck the ground and died, and likewise if the vessels of the one who encountered it were damaged, the owner of the jug is exempt.

And these words,

this exposition was stated only

concerning

a pit that caused

death

to the one who encountered it, since at the end of the verse it says: “And the dead shall belong to him,” implying that it is speaking of a pit that causes death.

But concerning damages,

if the obstacle caused only damage to

the person

who encountered it, the owner of the pit

is liable.

For the exclusion “an ox, but not a person” was stated only concerning the death of a person in a pit, but not concerning his damages.

And

in any event, concerning

vessels

that were damaged, in every case the owners of the pit

are exempt,

because with vessels it is impossible to distinguish between damages and death, and consequently the exposition “a donkey, but not vessels” was stated for every form of damage to vessels, and the owner of the pit is exempt. Accordingly, that which is stated in the Mishna, “If one was injured by the water or struck by the shards, he is liable,” according to Samuel refers to a person who encountered the water or the shards and whose body struck the ground; and for this the Mishna imposed liability upon the owner of the jug to pay his damages.

And Samuel follows his own position, for he held that the pit for which the Torah imposed liability includes even when the victim was struck because of the pit against the ground; consequently, it is possible to impose liability upon the owner of the jug for the impact of the one who encountered it against the ground, which was caused by the water or the shards of the jug.

But if his clothing became soiled with water, he is exempt, because it is stated: “and it fell there ... a donkey,” and the Sages expounded: “a donkey,” but not vessels.

And the Gemara explains: specifically according to Samuel, the owner of the jug is exempt for damage to the vessels of the one who encountered it under the law of “a donkey, but not vessels,” since Samuel holds that a person is liable for his property that causes an obstacle under the law of a pit, and this exposition was stated concerning a pit.

And

if according to

Rav,

that which the Torah imposed upon a person for his pit,

these words apply where he declared them ownerless,

where he declared them ownerless to the public,

but where he did not declare them ownerless,

as in the case of the Mishna, where a jug fell in the public domain and its owner did not declare its water and shards ownerless,

it is his property,

the Torah did not impose liability upon the owner of the water and shards under the law of a “pit.”

And the reason the owner of the jug is liable for the obstacle he caused is under the law of his property that caused damage [learned from the fact that the Torah imposed liability upon a person, the owner of the ox, for damage caused by his ox, both for damage to a person and for damage to vessels]. Therefore Rav holds that the Mishna is speaking of an obstacle that caused damage to the vessels of the one who encountered it, and the owner of the jug is liable under the law of an “ox.” The explanation of the Mishna is therefore as follows: His jug broke in the public domain [and he did not declare the water ownerless], and one slipped on the water or was struck by the shards; he is liable. According to Rav, under the law of an ox; according to Samuel, under the law of a pit. Rabbi Yehuda says: If he acted intentionally, he is liable; if he did not act intentionally, he is exempt.

Rav Oshaya raises an objection from

a beraita:

As it is taught: It is stated in the passage concerning a pit,

“and an ox or a donkey falls there”

and the Sages expounded: Since the verse came to exclude, the Torah made one liable specifically for the falling of an

ox

into the pit,

but not

for the falling of an

person,

and likewise specifically for the falling of a

donkey, but not

for

vessels.

From here they said:

A pit into which

an ox and its vessels fell

[such as the yoke upon it] and the ox died

and its vessels broke.

Or into which

a donkey and its vessels fell

[the donkey’s leather saddle blanket] and the donkey died

and its vessels were torn,

the owner of the pit

is liable for the animal, and

exempt for the vessels,

because the Sages expounded: “A donkey, but not vessels.”

In the Kovetz Shiurim [II, 41] discussed the following question, based on what is explained below [55b], that there is no distinction between bringing an object near a fire and bringing a fire near an object: in both cases one is liable under the law of one’s fire that caused damage. What is the law if one places a stone in a place where he is forbidden to place it, such as at the top of a roof, and an ordinary wind blows vessels onto the stone, and the vessels break because of the stone? Can one say that just as one who brings a fire near an object is liable for damage caused by the fire, so too one who causes vessels to collide with his stone is liable, since we maintain that one who causes damage through an ordinary wind is considered as though he did it with his hands? If so, the owner of the stone is considered as though he threw the vessels with his hands onto the stone—or not? And seemingly, if indeed the owner of the stone is liable, it is difficult: why, when one digs a pit and an ox and its vessels fall into it, is he exempt for the vessels? After all, the owner of the pit caused objects to collide with his pit; and just as the owner of a fire is liable even when he brought an object near the fire, so too the owner of a pit should be liable when he caused objects that came near his pit to be damaged. He explained that it is possible to impose liability under the law of fire only for something capable of moving and causing damage. But a stone and a pit, whose manner is not to move and cause damage, entail liability only under the law of a pit; and concerning a pit the Torah excluded: an ox, but not a person; a donkey, but not vessels. To what is this comparable?

What the Torah made the owner of the pit liable for is

, to his stone, his knife, and his burden that he placed in the public domain and they caused damage,

for the one who placed them is liable for payment of their damage.

The Gemara is astonished at the wording of the beraita: The source for the rule that when one’s stone, knife, or burden that he placed in the public domain causes damage, its owner is liable for payment, is that the Torah made the owner of a pit liable for damage caused by his pit.

If so, the beraita should not have said that the liability of the owner of the pit is comparable to the liability of one who places his stone, knife, or burden. Rather,

on the contrary,

the beraita should have said:

“What is comparable to this,” it should have said—what is comparable to the law of a pit for which the Torah made one liable? His stone, knife, and burden.

What is comparable to the case of a pit for which the Torah imposed liability? His stone, knife, or burden.

Rather,

this is the version of the beraita:

“What is comparable to this”—to the law of a pit—

his stone, knife, and burden

that he placed in the public domain and they caused damage;

the one who placed them is liable for payment of their damage under the law of his pit that caused damage.

The beraita concludes: Since his stone, knife, and burden are comparable to a pit,

therefore, if

a person placed a stone in the public domain and a person came with a flask in his hand, tripped over it, and as a result

smashed

his

flask against the stone,

and the flask broke, the owner of the stone

is liable,

like his pit that caused damage.

Rav Oshaya now raises the following objection:

The

first clause,

which equates the law of his stone, knife, and burden with that of a pit,

is difficult according to Rav,

for according to him, his stone, knife, and burden that he did not abandon are comparable to an ox and not to a pit.

And

the

final clause,

which states that if he smashed his flask against the stone he is liable,

is difficult according to Shmuel,

for according to him, one who places a stone in the public domain is exempt for damage to vessels, as we expound: “A donkey, but not vessels.”

The Gemara is astonished at Rav Oshaya’s objection:

But according to your reasoning,

even without their dispute,

this itself should be difficult for you:

in the

first clause

it is explained that a pit

is exempt

for vessels,

and in the

in the

final clause

it is stated that one who smashes a vessel against a stone

is liable?

Rather,

it is necessarily not an objection to Rav and Shmuel, and the objection from the beginning of the beraita to its end is resolved as follows:

Rav explains it according to his position,

according to his view,

and Shmuel explains it according to his position.

The Gemara explains:

Rav explains it according to his position,

for the beraita must be emended, with the following addition:

What is comparable to a pit is his stone, knife, and burden that he placed in the public domain and they caused damage;

when does this statement apply? When he abandoned them,

and they are not his property. Their law is then like that of a pit: if a person was injured by them, he is liable, but if vessels were damaged by them, he is exempt.

But

his stone, knife, and burden that

he did not abandon entail liability

for the damage they cause, like his property that caused damage, and there is no distinction whether they damaged a person or vessels.

Therefore,

if the one who tripped

smashed

his

flask against the stone,

the one who placed the stone

is liable

to pay for what it damaged.

And Shmuel explains

the beraita

according to his position:

Now that you have said

[since it has been explained] that

his stone, knife, and burden

that he placed in the public domain entail liability because

they are considered like his pit,

it follows that if vessels broke because of his obstacle, he is exempt, since vessels were excluded by “a donkey, but not vessels.”

But

according

to

Rabbi Yehuda, who imposes liability for damage to vessels in a pit,

it follows that one who places his stone, knife, and burden in the public domain and they damage vessels is also liable.

Therefore,

one who places a stone in the public domain, and a person trips over it and

smashes

his

flask against the stone, is liable.

Rabbi Elazar said:

What we learned: “If he smashed his flask against the stone, he is liable”

was taught only

at a time

when

the owner of the vessel

tripped over the stone, and

as a result

was struck,

the vessel too was struck

against the stone.

It follows that the stone caused both the obstacle and the damage.

But

if the owner of the vessel

tripped

because of another thing

on the ground, and

as a result

was struck,

the vessel was struck

against the stone,

the owner of the stone

is exempt.

Since the ground caused him to have the vessel collide with the stone, it follows that although the stone broke the vessel, it was the ground that caused this, and therefore the owner of the stone is exempt.

Below [53a] it is stated: An ox that pushed another ox into a pit—the owner of the ox is liable and the owner of the pit is exempt. Rabbi Natan says: The owner of the ox pays half, and the owner of the pit pays half.

The Gemara explains that according to the Rabbis, the owner of the pit is exempt. For had the ox not pushed the other ox, the pit would not have damaged it. It follows that the pit did not cause the one who fell into it to stumble; and one who digs a pit is not liable until the pit causes the one who falls into it to stumble and injures him.

And Rav Natan maintains that although the owner of the pit did not cause the damage, nevertheless he became a partner in the damage, and each of them pays half.

And the Gemara there brought a beraita in which the following was stated: If the damaging ox was innocuous, according to the Rabbis the one who pushed it pays half the damage; and according to Rav Natan, the owner of the ox pays one quarter, which is half of what he would have been obligated to pay had he damaged it alone, while the owner of the pit pays all the remaining three quarters. The Gemara explains that the reason is: “If payment cannot be collected from this one, it is collected from that one.”

Accordingly, the Gemara now asks: Rabbi Elazar, who said that when one trips on the ground and is struck against a stone, the owner of the stone is exempt because he did not cause the obstacle,

according to whom

does he hold?

It must be that Rabbi Elazar holds like the Rabbis, who exempt the owner of the pit when an ox pushed another ox into his pit. Here too, when the ground “pushed” the one who tripped toward the obstacle, the owner of the obstacle is exempt.

And

not like Rabbi Natan,

who said: Wherever payment cannot be collected from this one, it is collected from that one..

There are those who say:

Rabbi Elazar

said as follows: Do not say

only

when one trips over a stone and is struck against the stone is he liable

under the law of a pit,

but when he trips on the ground and is struck against the stone, he is exempt,

because the ground caused this for him.

Rather, even when he trips on the ground and is struck against the stone,

the owner of the stone

is liable

under the law of a pit.

According to whom? According to Rabbi Natan,

just as Rabbi Natan obligated the owner of the pit to pay what the owner of the ox who pushed the other ox into his pit would not pay, so Rabbi Elazar obligates the owner of the obstacle to pay the entire amount of the damage, since there is no possibility of collecting from anyone else.

We learned in the Mishna: If his jug broke in the public domain, and one slipped on the water or was injured by the shards, he is liable. And in the Gemara it is explained that this is the view of Rabbi Meir.

Rabbi Yehuda says: If he intended, he is liable;

if he did not intend, he is exempt.

The Gemara explains:

What are the circumstances?

How did the act occur in a case of

intention,

for which Rabbi Yehuda makes him liable?

Rabba said: In

a case where the owner of the barrel carried it on his shoulder in the public domain and was

intending to lower it below his shoulder,

but, because he did not take proper care, he tripped on the ground, and the barrel was thrown against a wall and broke, and its fragments were scattered in the public domain.

And Rabbi Yehuda reasoned that the owner of the barrel became negligent by not being careful when he lowered the barrel from his shoulder, and if a person is injured by the shards of the barrel, the owner of the barrel is liable. But if he did not intend to lower the barrel from his shoulder, and in the course of his walking the barrel fell through unavoidable circumstance and broke in the public domain, he is not liable for the damage caused by the shards, because he was under unavoidable circumstance.

And even if he had time to clear away the shards, he is not liable to clear them away, since it is the way of people to abandon their shards at the time of the fall, and since at the time of the fall he was under unavoidable circumstance, and afterward the shards are no longer his, he is not liable to clear them away.

Abaye said

to Rabbah: According to your words, according to Rabbi Yehuda the owner of the barrel is liable only when he intends to lower it from his shoulders, whereas if the barrel fell through unavoidable circumstance, he is exempt; it is implied

by inference

so,

that

the first tanna [he is Rabbi Meir, as explained below], who did not distinguish between intending and not intending, maintains that the owner of the barrel is liable even if he did not intend to lower it from his shoulder, but the barrel fell from his hand through unavoidable circumstance.

And there is reason to wonder about this: Is it so that

Rabbi Meir holds liable

the owner of the barrel

even

if

it melted

—the barrel dissolved and liquefied in his hand?

Rabbah said

to Abaye:

Yes,

indeed so,

Rabbi Meir

would hold liable

the owner of the barrel

even

if he was not negligent at all, for example, the barrel broke on its own and

its handle

remained

in the hand,

of the owner of the barrel.

And not only this, but even if he did not have time to clear away the shards of the barrel, and a person stumbled on the shards, the owner of the barrel is liable.

And Abaye wondered:

Why,

why is the owner of the barrel liable if the handle of the barrel remained in his hand? Surely

he is under unavoidable circumstance, and

it is established for us

that the Torah exempted one who is under unavoidable circumstance,

that according to Torah law an act performed under unavoidable circumstance does not create liability,

as it is written

concerning a betrothed maiden who was violated in the field [Deuteronomy 22,

“But to the maiden you shall do nothing.”]]

From here the Sages expounded that one who transgresses under unavoidable circumstance is considered as though the act was not performed by him.

And there is a difficulty against Rabbah, who said: “Rabbi Meir would hold him liable even when its handle was in his hand.”

And should you say,

if you say that the principle, “the Torah exempted one who is under unavoidable circumstance,” was not said everywhere,

these words

only

with regard to

an act that creates liability for

capital punishment,

death.

But

with regard to damage,

one who causes damage under unavoidable circumstance

is liable.

It is not possible to distinguish between death and damages, because

and was it not taught: His jug broke,

in the public domain,

and he did not remove it,

although he had leisure to do so, and the shards of the jug became an obstacle in the public domain.

And likewise if

his camel fell

in the public domain

and he did not raise it,

and a person came, stumbled over it, and was injured.

Rabbi Meir holds him liable for the damage they caused.

And the Sages say: