Bava Kamma 31a — the Talmud in English

And the Gemara is astonished:

Is that so!

Did Rav Huna really hold that one may not instruct in this manner,

but Rav Huna declared ownerless chushlei,

instructing the public that it was possible to acquire barley belonging to a person who had left it in the public domain, and likewise

Rav Adda bar Ahava declared ownerless ![](pamud.bmp "

precise page location")

salikusta,

instructing the public that it was possible to acquire date refuse that had been placed in the public domain for animals.

Granted, Rav Adda bar Ahava

instructed in this manner

in accordance with his teaching,

for he said: The halakha is so, and one may instruct in this manner.

But Rav Huna—shall we say that he retracted?

And the Gemara answers: Rav Huna always held that the halakha is so, but one may not instruct in this manner; and there he instructed that the barley be declared ownerless because

those,

the ones who had left it in the public domain,

were permitted,

for they had been warned several times to clear the public domain. And since they did not do so, Rav Huna instructed the public that it was permitted to acquire them.

Mishna:

Two potters,

owners of pots,

who were walking one behind the other, and the first stumbled

on the ground

and fell,

and as a result

the second stumbled over the first

and the second was injured and his pots broke,

the first is liable for the damage of the second.

And the Gemara explains for which damages and for what reason the first potter is liable for the damage of the second.

Gemara:

The Gemara brings a dispute among amoraim as to the reason for the first potter’s liability.

Rabbi Yohanan said: Do not say that our Mishna is Rabbi Meir’s, who said

[29a]

“One who stumbles is negligent,” and

therefore the first

is liable

for the damage of the second.

Rather, even according to the Rabbis, who say

that one who stumbles

is coerced and exempt,

here

the one who stumbled

is liable

for the damage of the second, because the case concerns one in which the second stumbled over the first after some time,

for he had

the one who stumbled had the possibility

to stand

but did not stand.

Rav Naḥman bar Yitzḥak said: You may even say

that the case concerns one in which

he did not have

the one who stumbled had the possibility

to stand; he should have warned

the one who was walking behind him not to stumble over him,

but he did not warn,

and the Sages agree that the first one who stumbled is liable for not warning.

And

if

Rabbi Yohanan said,

you are compelled to say that the first one’s liability is because he should have stood but did not stand, since in a case in which he could not stand,

since he did not have

the possibility

to stand,

he also

did not have

an obligation

to warn,

because

he was preoccupied.

And the Gemara brings a proof for the words of Rav Naḥman bar Yitzḥak:

We learned:

A person carrying a beam and another person carrying a barrel were walking in the public domain. If

the owner of the beam

was walking

first and the owner of the barrel last,

and the owner of the barrel hastened his walking until he stumbled against the beam and

the barrel broke against the beam,

the owner of the beam

is exempt,

because the owner of the barrel injured himself.

But if the owner of the beam stood

and stopped without informing the owner of the barrel beforehand, and as a result the barrel broke against the beam, the owner of the beam

is liable.

Is it not the case

that the Mishna apparently speaks of a case

in which

the owner of the beam

stood

in order

to shoulder,

to arrange the load on his shoulder,

for it is his manner,

as it is the way of bearers of loads to stop and arrange their loads,

and

even so

it teaches

that the owner of the beam

is liable.

It follows that even though he was not negligent in the very act of stopping, he is obligated to prevent damage to the owner of the barrel, and if he caused damage he is liable. You must therefore say that the reason for this is only because

he should have warned,

and it is not appropriate to make him liable for the very act of stopping [like one who stumbled, who should have stood], since it is the way of owners of beams to stop in order to shoulder the load.

The Gemara rejects:

No,

one cannot prove from the Mishna according to Rav Naḥman bar Yitzḥak; rather, the case is one in which he can do nothing but warn, and he is exempt because he is preoccupied, in accordance with Rabbi Yohanan.

And the Mishna below speaks of a case in which the owner of the beam deviated

by standing to rest,

and it is not the way of bearers of loads to stop to rest in the public domain; therefore, if he stopped without warning and the owner of the barrel stumbled over him and was injured, the owner of the beam is liable.

And the Gemara infers: From the fact that the Mishna speaks only of one who stood to rest, in which case the owner of the beam is liable, it follows

but if he stood

the owner of the beam

to shoulder the load,

which is his normal practice,

what—

is he exempt,

since the owner of the barrel must take care because of the owner of the beam’s stopping to shoulder the load?

And if so, it is difficult:

rather than teach

in the

latter clause

of the first clause of our Mishna: “The owner of the beam was first and the owner of the barrel last; if the owner of the beam stood, he is liable,”

and if he said to him

the owner of the beam

to the owner of the barrel, ‘Stand,’

the owner of the beam

is exempt,

because he warned him,

the tanna should have distinguished and taught the matter itself,

and taught in it:

“If the owner of the beam stood, he is liable,”

, in what circumstance

when he stood

the owner of the beam

to rest,

which he has no permission to do,

but

if

he stood

the owner of the beam in order

to shoulder the load, he is exempt.

The Gemara answers:

This teaches us

that even though one stopped to rest,

when he said to him

the owner of the beam

to the owner of

the

barrel, “Stop,” he is exempt.

Come and hear

support from a beraita, a tannaitic source not included in the Mishna, for Rav Naḥman bar Yitzḥak:

Potters

[sellers of earthenware]

and glassmakers

[sellers of glassware]

who were walking

in the public domain

one after another. The first stumbled

on the ground while walking,

and fell. And the second stumbled over the first

because of his fall

, and the third

who was walking behind the second stumbled

over the second

and fell as well.

The first is liable for the damage caused to the second,

because he caused him to stumble.

And the second is liable for the damage caused to the third.

The Gemara will later explain what the first person’s liability toward the second is and what the second person’s liability toward the third is.

And if

the second and third did not fall one after the other, but rather

because of

the

first they fell,

for example, both stumbled over the first person at the same time. [As explained in the Gemara below, at the end of the second side.]

The first is liable for the damage caused to all of them,

while the second is not liable for anything caused to the third, since he did not cause him to stumble.

And if they warned one another

so that they would not stumble over one another,

they are exempt. [The continuation of the beraita is brought below, on the second side: “And all of them are liable for damage caused by their bodies, but exempt for damage caused by their property.”]

Продолжение барайты приводится ниже, на странице 31б: «И все они несут ответственность за ущерб, причинённый их телами, но освобождаются от ответственности за ущерб, причинённый их имуществом».]

Is it not

the meaning of the beraita that those who fell are liable even when

they did not have

the opportunity

to stand,

and nevertheless they are liable because they should have warned one another, in accordance with Rav Naḥman bar Yitzḥak?

The Gemara rejects this:

No,

there is no proof that the beraita is discussing a case in which they had no opportunity to stand and that their liability is because they were obligated to warn one another. It is possible that the beraita is discussing a case in which

they had

the opportunity

to stand,

but since they did not stand, they are liable.

The Gemara infers: If the beraita indeed holds the fallen people liable only in a case in which they had the opportunity to stand but did not stand,

but if they did not have to stand, what

is their status

, are they exempt!?

If so, instead of teaching

in

the latter clause

of the beraita:

“If they warned one another, they are exempt,”

let it distinguish within that clause,

as the Gemara suggested regarding the first clause, and say:

“When is this statement applicable?”

When the first person is liable for the damage caused to the second, or for the damage caused to all of them? When

they should have stood

but did not stand;

but

if

they did not

remain for the amount of time that

they should have stood, they are exempt,

and they are not obligated to warn one another.

And why did the beraita distinguish between a case in which they warned one another and one in which they did not, when it could have distinguished between a case in which they should have stood and one in which they should not have stood?

The Gemara answers: The beraita preferred to distinguish between a case in which they warned one another and one in which they did not, because

this teaches us that even though they had

time

to stand

but did not stand,

once they warned one another, they are exempt.

The beraita states: “The first is liable for the damage caused to the second, and the second is liable for the damage caused to the third.” The Gemara now comes to explain what the second and third stumbled over—whether over the body of the fallen person or over his property—and how they were injured, whether physically or through damage to their property. [This explanation follows Rashi’s version and interpretation.]

Rava said:

The

first,

who stumbled on the ground and fell,

is liable for the damage caused to

the

second, both for damage

caused by

his body

of the first—for example, the second’s feet struck the first person’s body, in which case he is considered a person who causes damage—

and

both for damage

caused by

his property

of the first—for example, the first fell together with his utensils, and the second stumbled over them and fell; in that case, he is liable under the law of a pit.

Thus, if the second stumbled over the first person’s body, the first is liable whether the second was injured physically or his property was damaged. But if the second stumbled over the first person’s utensils, for which he is liable under the law of a pit, the first is liable for the second’s physical injury, but not for damage to his utensils, since we derive above: “an animal, but not utensils.”

This is the law governing the first person’s liability for the damage caused to the second.

But the

second,

who did not fall on his own, for if he fell because of the first person,

is liable for the damage caused to

the

third,

only

for damage

caused by

his body

of the second—for example, the third’s feet struck the second person’s body and he fell; in that case, the second is treated as a person who causes damage.

But

the second

is not

liable

for damage

caused by

his property,

for example, while he was falling, his utensils scattered on the ground and the third stumbled over them. The Gemara below explains that the reason is that the second can say: “I did not dig this pit.”

There is no distinction between whether the third was physically injured or his property was damaged; in either case, the second is exempt, as the Gemara explains below.

The Gemara asks: What is the distinction between the first person’s property, which caused damage and for which Rava imposes liability under the law of a pit, and the second person’s property, which caused damage and for which he is entirely exempt?

Indeed,

in either event,

the question arises:

if

Rava holds that every

person who stumbles is negligent [as Rabbi Meir states, on 29a], and therefore the first person is liable for damage caused by his utensils, as one who negligently digs a pit, then

если так,

the second

who stumbled over the first person

should also be liable

for the damage caused to the third, under the law that one who stumbles is negligent, and he should be liable for the damage caused by his property under the law of a pit.

And

if

Rava holds that

a person who stumbles is not negligent,

and therefore the second is exempt for damage caused by his property to the third’s body, then

even the first

who physically injured the second’s body

should also be exempt,

since he is the victim of an unavoidable accident!?