Bava Kamma 35a (לה.) — the Talmud in English

It too

that set fire to a stack of grain,

also

is referring to a fire

that he does not need,

as he has no use for it.

And

nevertheless

it teaches

that the person who set the fire

is exempt

from liability for the damage

because he is subject to a capital penalty,

meaning that he is liable to receive the death penalty.

And it is thereby demonstrated that one who kindles a fire without need is liable, in accordance with the opinion of Rabbi Abbahu, and not in accordance with Rabbi Yoḥanan, who said: All those who perform destructive acts are exempt.

Rabbi Yoḥanan rejected the proof from the Mishna:

No,

the tanna did not intend to equate the person with the ox, to make him liable to receive the death penalty and exempt him from monetary liability in the same case in which the ox is liable monetarily. In fact, the halakha of a person who kindles a fire is not comparable to that of an ox, since a person is liable to receive the death penalty and exempt from monetary liability only when he kindles the fire for a purpose, whereas an ox is liable even when it kindles a fire without a purpose.

Rather, on the contrary, the Mishna intends to compare the halakha of the ox to the halakha of the person; that is, the owner of the ox is liable even in a case in which

his ox

set fire to the stack of grain

in a manner comparable to him

in which the person who kindles the fire would be liable.

And this is the comparison:

Just as he,

the person himself, is not liable to receive the death penalty for kindling the fire except when

he needs it,

as he wants the fire for its ashes,

so too, his ox:

the statement in the Mishna that his ox, which set fire to the stack of grain, is liable, is referring [even] to an ox that sets fire to the stack in a case

in which he needs it,

as he requires the ashes.

And the Gemara raises a difficulty:

How can you find a case involving his ox,

for what purpose would the ox need to set fire to a stack of grain?

Rav Avya said to him: Here we are dealing with an intelligent ox,

clever,

that developed an itch [

a wound]

on its back, and it wants to burn it

it wants to burn a stack of grain

and roll in the ashes

so that it can rub itself against the ashes at the site of the itch.

And from where do we know

how it is possible to know that an ox that kindles a fire intended to do so?

Once it has burned it

after it burned the stack of grain,

it rolls in the ashes

it went to rub itself against the ashes, and in this case it is possible to assume that initially it burned the stack for that purpose.

And the Gemara wonders:

Is there

an intelligent ox

of this sort,

that knows how to prepare such a remedy for itself?

And the Gemara answers:

Yes!

Indeed, we find a case of an intelligent ox that healed itself.

There was a certain ox that was in the house of Rav Pappa

an ox that was in Rav Pappa’s house,

whose teeth were aching

as it suffered from tooth pain,

and it entered, pushed aside the lid of a vessel, and drank beer

it pushed away with its feet the cover of the vessel containing the beer and drank from the beer,

and it was healed

it was cured of its toothache.

Thus, we find a case in which the ox knew how to obtain a remedy for itself.

The Gemara discusses Rabbi Yoḥanan’s statement that all the types of damage caused by the ox that are mentioned in the Mishna are in the same manner as the types of damage caused by the person.

The Sages said before Rav Pappa:

Can you say

that the Mishna is to be explained in a manner in which the damage caused by

his ox

is

comparable

to the damage caused by

himself,

the person himself?

But it teaches: “His ox that shamed another is exempt, whereas he who shamed another is liable.”

And if it is said that the tanna establishes the case of his ox that caused damage in a manner comparable to that of a person who causes damage, this presents a difficulty:

How can we explain the case of his ox that shamed another as comparable to the case of him, the person himself, who shames another? A person is liable for humiliation when he intends to humiliate, but as for an ox intending to humiliate, how can you find such a case? How can one find a situation in which an ox intends to humiliate, when it has no awareness for such a purpose?

Rav Pappa said to them: Our Mishna is speaking of a person who does not intend to humiliate, but only intends to cause damage. Likewise, in the case of the ox that shamed another, it is not speaking of an ox that intended to humiliate, but only

for example, it intended

the ox

to cause damage.

For a person is liable to pay compensation for humiliation even when he did not intend to humiliate, provided that he intended to cause damage. Likewise, the ox that shamed another is referring to an ox that intended only to cause damage. The difference is that the person is liable for humiliation, whereas the ox is not.

As the Master said,

a person who

intended to cause damage

and humiliated another

, even though he did not intend to humiliate,

is liable for the humiliation.

The Gemara presents another answer as to how the statement in the Mishna—“If he set fire to the stack on Shabbat, he is exempt [from payment] because he is subject to a capital penalty”—can be reconciled with Rabbi Yoḥanan’s statement that one who kindles a fire and performs a destructive act on Shabbat is exempt.

Rava said:

The Mishna is in fact speaking of an ox that set fire to the stack without a purpose, and likewise, in the corresponding case concerning a person who sets fire to a stack, it is speaking of one who set fire to it without a purpose. He is entirely exempt from the death penalty, since all those who perform destructive acts are exempt.

And as for what is stated in the Mishna, “He is exempt [from payment] because he is subject to a capital penalty,” which implies that he is liable to receive the death penalty—for otherwise, why would he be exempt from payment?—and furthermore, the expression “he is subject to a capital penalty” implies that he is liable to receive the death penalty,

this is because

the Mishna

is speaking of an ox and a person who set fire to a stack

unintentionally,

and concerning this the Mishna states that when an ox sets fire to a stack unintentionally, its owner is liable to pay, whereas a person who set fire to a stack unintentionally is exempt from payment. [Although he is exempt from the death penalty for two reasons: a. He did not kindle the fire for a purpose. b. He kindled it unintentionally].

And

the reason for this is

as taught in the school of Ḥizkiya:

For it was taught in the school of Ḥizkiya:

It is stated in Leviticus [24:21]: “One who strikes an animal shall pay for it, and one who strikes a person shall be put to death.” Meaning, one who strikes an animal is liable to pay, but one who strikes a person and kills him does not pay the value of the one killed; rather, he is subject to a capital penalty.

The Sages derived from the fact that the following are stated together in the same verse,

“one who strikes a person and one who strikes an animal,”

that there is a juxtaposition between them with regard to several halakhot.

Just as

with regard to a person who

strikes an animal, no distinction was made,

the Torah did not mention a distinction between the various manners of striking. This indicates that

whether

he struck the animal

unintentionally

or

whether

he struck it

intentionally,

in every case he is liable.

Likewise, the verse made no distinction

between

one who strikes an animal

intending to strike

and one who strikes it accidentally,

without intending

to do so,

which indicates that even one who strikes an animal unintentionally is liable.

Likewise, the verse made no distinction

between

one who strikes the animal by

“way of descent,”

when he lowers the hand holding the axe from above downward [which is the usual manner of striking],

and

one who strikes an animal by

“way of ascent,”

when he raises his hand upward and strikes the animal in an unusual manner,

which indicates that he is liable even by way of ascent.

For we find no source in the Torah

to exempt him

from paying

money

if he struck an animal unintentionally, without intent, or by way of descent.

Rather,

on the contrary, since we find no source to exempt him in any of these cases, it is reasonable that the Torah intends

to obligate him monetarily

despite the fact that he acted unintentionally, without intent, or by way of descent.

And just as one who strikes an animal is liable for every manner of striking,

so too, one who strikes a person,

who is liable to receive the death penalty and exempt from monetary payments, is exempt from monetary payments in every manner of striking.

And

you shall not distinguish between

one who struck another

unintentionally and

one who struck him

intentionally,

or

between one who intended and one who did not intend,

or

between way of descent and way of ascent.

For even if he struck him unintentionally, without intent, or by way of ascent, it is impossible

to obligate him monetarily,

since the striking of a person was juxtaposed to the striking of an animal in order to equate unintentional action with intentional action, action with and without intent, and way of descent with way of ascent.

Rather,

just as in the case of striking an animal he is liable in every circumstance, so too, in the case of striking a person the Torah stated in every circumstance

to exempt him monetarily.

It follows that one who strikes another unintentionally, although he is not liable to receive the death penalty as one who acts unintentionally, is nevertheless exempt from payment, since the verse made no distinction between unintentional and intentional action, and in every case he is exempt from payment.

From here it follows that whenever one is liable for a transgression whose punishment is death, if he violates it inadvertently, he is not liable to pay the monetary obligation incurred by that act.

Therefore, Rava established that which is stated in the Mishna, “It is he who ignited the stack on Shabbat who is exempt, because he is liable for his life,” as referring to a case in which he ignited the stack inadvertently. He is exempt from payment because, with regard to this transgression of igniting a stack on Shabbat, one who commits it intentionally is exempt from payment, and there is no distinction between an intentional and an inadvertent act with regard to exemption from payment.

In this way, Rava resolves Rabbi Abbahu’s question against Rabbi Yohanan: According to Rabbi Yohanan, one who performs a destructive act by kindling is exempt, whereas the Mishna states that one who ignites the stack on Shabbat is liable to receive the death penalty?!

For indeed, the statement in the Mishna, “is liable for his life,” means that in igniting a stack there is some manner in which one can become liable for his life—for example, if he ignited it intentionally and needed its ashes. And one who commits a transgression for which there is a possibility of liability for the death penalty is exempt from payment even if he violated that transgression without becoming liable to receive the death penalty.

For this reason, the Mishna exempted one who ignites a stack without a needed purpose, because this is a transgression for which there is a possibility of liability to the death penalty.

The Sages said to Rava: Can you really establish it as referring to an inadvertent act?!

Is it possible to interpret our Mishna as referring to one who ignites the stack inadvertently?

But

in our Mishna it is stated that the one who ignited the stack is exempt

“because he is judged for his life,” it teaches,

demonstrating that it is referring to one who ignited it intentionally and became liable to the death penalty.

And Rava explains that the tanna of our Mishna

said this: Since

if he had ignited the stack

intentionally,

he would have been

judged for his life—and what are the circumstances,

how is it possible that one who ignites a stack becomes liable for the kindling,

when he needs its ashes,

as he is igniting it for the sake of the ashes that he requires,

now,

now that he ignited the stack

inadvertently,

or that he does not need its ashes, although he is not liable to the death penalty, nevertheless he is

exempt

from payment.

.

Mishna:

a.

An ox

belonging to one person

that was pursuing another ox

belonging to another person

and was injured,

the pursued ox.

This one,

the injured party,

says: Your ox caused the injury. And this one,

the owner of the pursuing ox,

says: No,

rather, it was injured against a rock,

as it rubbed against a wall on its own and was injured.

.

The burden of proof rests upon the one who seeks to collect from his fellow.

b.

There were two,

two oxen belonging to two people

pursuing

one

ox

belonging to a third person,

and the injured party sued them;

this one says: Your ox caused the injury, and this one says: Your ox caused the injury.