Bava Kamma 28b (כח:) — the Talmud in English

However

if

he,

the person 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 person who encountered it; rather,

the ground

of

the world injured him,

while the owner’s water and shards merely caused him to be injured by the ground, and one who causes damage indirectly (grama) is exempt in cases of damages. And Rav follows his own position, as he said: For a pit for which the Torah made one liable, the liability is for its vapor, but not for impact against it.

Rav Yehuda further added and said:

When I stated it,

when I related this teaching

before Shmuel, he said to me: Since

it is the case that

a person’s stone, knife, or load

that are left in the public domain and cause damage render their owners liable for the damage, under the law of a pit in the public domain,

for

from

the fact that the Torah made a person liable for damage caused by

his pit, we learn

that whenever an object causes an obstacle in the public domain, its owner is liable for damage suffered by 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 obstacles whose owners are made liable for their damage under the law of a pit,

I apply to them

the exposition stated with regard to a pit, concerning the verse, “When a person opens a pit, or when a person digs a pit, and an ox or a donkey falls into it”:

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

The Torah made the owner of the pit liable for the fall of an ox or a donkey, but not for the fall 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, struck the ground, and died, or if the vessels of the person who encountered them were damaged, the owner of the jug is exempt.

And these matters,

this exposition was stated only

with regard to

a pit that caused

death

to the person who encountered it, since at the end of the verse it says, “and the dead animal shall be his,” indicating that the verse concerns a pit that causes death.

But with regard to 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 with regard to the death of a person in a pit, but not with regard to damage he suffered.

And

nevertheless, with regard to

vessels

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

are exempt,

because in the case of vessels it is impossible to distinguish between damage and death; consequently, the exposition “a donkey, but not vessels” applies to every form of damage to vessels, and the owner of the pit is exempt. Accordingly, when the Mishna states, “If one was injured by the water or damaged by the shards, he is liable,” according to Shmuel it is speaking of a person who encountered the water or shards and whose body struck the ground; for this the Mishna made the owner of the jug liable to pay for his damage.

And Shmuel follows his own position, for he holds that a pit for which the Torah made one liable includes a case in which the victim struck the ground because of the pit. Consequently, it is possible to make the owner of the jug liable for the person’s impact against the ground, which was caused by the water or the shards of the jug.

But if his garments became soiled by the water, he is exempt, because it is stated, “and an animal shall fall there,” and the Sages expounded: “a donkey,” but not vessels.

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

And

according to

Rav,

the Torah’s making a person liable for his pit

applies only where he declared it ownerless,

making it ownerless for the public,

but where he did not declare it ownerless,

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

it is his property,

and the Torah did not make the owner of the water and shards liable under the law of a “pit.”

The reason the owner of the jug is liable for the obstacle he caused is under the law of his property that caused damage [derived from the fact that the Torah made a person liable for an ox’s owner for damage caused by his ox, both damage to a person and damage to vessels]. Therefore, Rav holds that the Mishna is speaking of an obstacle that caused damage to the vessels of the person who encountered it, and that 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 person slipped on the water or was injured by the shards—he is liable. According to Rav, this is under the law of an ox; according to Shmuel, 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 raised an objection

from a beraita against Rav and Shmuel:

As it is taught: It is stated in the passage concerning a pit [Exodus 21

“and an ox or a donkey falls there”

and the Sages expounded that the verse came to exclude: It is specifically for the falling of an

ox

into a pit that the Torah imposed liability,

but not

for the falling of a

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

[for example, 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] 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.”

To what is this comparable?

The Torah’s imposition of liability upon the owner of a pit

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

for the one who placed them is liable to pay for the damage they caused.

The Gemara wonders about the wording of the beraita: The source for the principle that when one places his stone, knife, or burden in the public domain and they cause damage, their owner is liable for payment is the Torah’s imposition of liability upon the owner of a pit for damage caused by his pit.

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

Rather,

the beraita should have said:

“What is comparable to this”—that is what it should have said

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

Rather,

this is the reading of the beraita:

“What is comparable to this?”

to the case of a pit:

“His stone, knife, or burden that he placed in the public domain and which caused damage;”

the one who placed them is liable to pay for the damage they caused, under the law of his pit that caused damage.

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

therefore, if

a person placed a stone in the public domain, and another person carrying a flask in his hand came along, stumbled over it, and as a result

dashed

his

flask against the stone,

and the flask broke, the owner of the stone

is liable,

as in the case of his pit that caused damage.

Rav Oshaya now raises the following difficulty:

The

first clause,

which compares the law of his stone, knife, or burden to that of a pit,

is difficult according to Rav,

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

And

the

final clause,

which states that one who dashed his flask against a stone 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 difficulty.

But according to your reasoning,

even without the dispute between Rav and Shmuel,

the matter itself should be difficult for you:

in the

first clause

it is stated that a pit

is exempt

for vessels,

whereas

in the

final clause

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

is liable?

Rather,

it is necessarily not a difficulty against Rav and Shmuel; rather, the difficulty from the beginning of the beraita to its end is resolved as follows:

Rav explains it in accordance with his position,

according to his approach,

and Shmuel explains it in accordance with his position.

The Gemara explains:

Rav explains it in accordance with his position,

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

“What is comparable to a pit? His stone, knife, or burden that he placed in the public domain and which caused damage.”

When are these words said? When he abandoned them,

so that they are no longer his property. In that case, their law is equivalent to that of a pit: If a person is injured by them, he is liable, but if vessels are damaged by them, he is exempt.

But

his stone, knife, or burden that he

did not abandon—he is liable

for the damage they cause, under the law of his property that caused damage; there is no distinction between whether they damaged a person or vessels.

Therefore,

if the person who stumbled

dashed

his

flask against the stone,

the one who placed the stone

is liable

to pay for the damage it caused.

And Shmuel explains

the beraita

in accordance with his position:

Now that you have said

[once it has been explained] that

his stone, knife, or burden

that he placed in the public domain entails liability because it

is considered like his pit,

it follows that if vessels broke because of the obstacle he created, he is exempt, since vessels were excluded by the exposition “A donkey, but not vessels.”

But

according

to

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

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

Therefore,

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

dashes

his

flask against the stone, is liable.

Rabbi Elazar said:

The statement that we learned, “If he dashed his flask against a stone, he is liable,”

was stated only

when

the

owner of the vessel

stumbled over the stone, and

as a result

was thrown forward,

so that the vessel too struck

the stone.

Thus, the stone caused both the obstacle and the damage.

But

if the owner of the vessel

stumbled

because of something else

on the ground, and

as a result

was thrown forward,

and the vessel struck

the stone,

the owner of the stone

is exempt.

Since the ground caused him to stumble into the stone, it follows that although the stone broke the vessel, it was the ground that caused this to happen; therefore, the owner of the stone is exempt.

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 fallen ox to stumble, and one who digs a pit is not liable until the pit causes the one who falls into it to stumble and be damaged.

Rabbi 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.

The Gemara there cited a beraita that stated as follows: If the damaging ox was innocuous, according to the Rabbis the one who pushed it pays half the damage; according to Rabbi Natan, the owner of the ox pays one-quarter, which is half of what he would have been required to pay had he damaged it alone, and the owner of the pit pays the remaining three-quarters. The Gemara explains that the reason is: “If payment cannot be collected from this one, it is collected from the other.”

Accordingly, the Gemara now asks: Rabbi Elazar, who said that when one stumbles over the ground and is thrown forward onto a stone, the owner of the stone is exempt because he did not cause the obstacle,

in accordance with whom

does he hold?

Necessarily, Rabbi Elazar holds in accordance with 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 person who stumbled onto the obstacle, the owner of the obstacle is exempt.

And

not in accordance with Rabbi Natan,

who says: Whenever payment cannot be collected from this one, it is collected from the other.

There are those who say:

Thus

Rabbi Elazar said: “Do not say”

only that

it is when one stumbles over a stone and is thrown forward onto a stone that he is liable

under the category of pit,

but when one stumbles over the ground and is thrown forward onto a stone, he is exempt,

because the ground caused him to do so.

Rather, even when one stumbles over the ground and is thrown forward onto a stone,

the owner of the stone

is liable

under the category of pit.

In accordance with whom? In accordance with Rabbi Natan,

just as Rabbi Natan required 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 too Rabbi Elazar requires the owner of the obstacle to pay the entire amount of the damage, since it is impossible to collect it from anyone else.

We learned in the Mishna: If one’s jug broke in the public domain and one person slipped on the water or was injured by the shards, he is liable. The Gemara explains that this is the view of Rabbi Meir.

Rabbi Yehuda says: If he intended to cause it, he is liable;

if he did not intend to cause it, he is exempt:

The Gemara explains:

What are the circumstances?

How did the incident occur in a manner of

intention

for which Rabbi Yehuda holds him liable?

Rabba said: In a case

where the owner of the jug was carrying it on his shoulder in the public domain and

intended to lower it from his shoulder,

but because he did not take adequate care, he stumbled on the ground, the jug was dashed against a wall and broke, and its shards scattered in the public domain.

And Rabbi Yehuda understood that the owner of the barrel was negligent in that he did not take care when he lowered the barrel from his shoulders; and if a person were injured by the shards of the barrel, the owner of the barrel would be liable. But if he had not intended to lower the barrel from his shoulder, and in the course of walking the barrel fell involuntarily and broke in the public domain, he is not liable for damage caused by the shards, because he was compelled.

And even if he had time to clear away the shards, he is not obligated to clear them away, since it is customary for people to abandon their shards when they fall, and since at the time of the fall he was compelled, while afterward the shards were no longer his, he is not obligated to clear them away.

Abaye said

to Rabba: According to your statement, according to Rabbi Yehuda the owner of the barrel is liable only when he intended to lower it from his shoulders, whereas if the barrel fell involuntarily he is exempt. It follows

by inference

that

the

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

And this is difficult: Is it really the case that

Rabbi Meir holds liable

the owner of the barrel

even

if

it melted

—that is, the barrel dissolved and liquefied—in his hand?

He said to him

Rabba to Abaye:

Yes,

that is indeed so.

Rabbi Meir would hold

him liable

the owner of the barrel

even

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

its handle

the vessel’s handle

remained in his hand,

that of the owner of the barrel.

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

And Abaye was astonished:

Why,

why is the owner of the barrel liable if the barrel’s handle remained in his hand? Is he not

compelled, and

as we have established,

the Merciful One exempts one who is compelled,

meaning that, according to Torah law, an act performed under compulsion does not entail liability,

as it is written

with regard to the betrothed maiden who was raped in the field [Deuteronomy 22]:

“But to the maiden you shall do nothing.”

From here the Sages derived that one who commits a transgression under compulsion is considered as though the act had not been performed by him.

And this is difficult concerning Rabba, who said: “Rabbi Meir would hold him liable even when its handle remained in his hand.”

And if you would say

that the principle “the Merciful One exempts one who is compelled” does not apply everywhere,

this applies

only

with regard to

an act that entails

execution,

death.

But

with regard to damages,

one who causes damage under compulsion is

liable.

It is impossible to distinguish between death and damages, because

it was taught: “His jug broke,”

in the public domain,

“and he did not remove it,”

although he had time to do so, and the broken pieces 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: