Bava Kamma 36b — the Talmud in English

This “

there is a surplus in it”! ![](pamud.bmp "

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he shall return it to the one before him”?

Is the law that from what remains in the ox after the last injured party’s collection, the injured party before him collects what is due to him, even at the expense of the injured parties and the previous owners?

But concerning the remainder,

it should have been necessary for the tan to say: He shall return it to everyone!

That is, the surplus belongs to everyone [to the owners and to the injured parties who preceded the last injured party], according to their relative values in the ox before this last damage [as is explained in the Mishna according to Rabbi Shimon, who holds like Rabbi Akiva].

He said,

explained

Rava

Rabbi Meir’s view:

Indeed,

Rabbi Meir holds

like Rabbi Yishmael, who says: They are creditors, and what is difficult for you:

Why

“the last, last profits”, when

“the first, first profits”

«

it should have been necessary to say?! I will say to you:

бы сказать!? Я отвечу тебе:

In what case are we speaking,

for example, the first injured party seized it

first

in order to collect from it [

and likewise each of the injured parties after him seized the ox],

and it became for him—

for each injured party at the time of his seizure—

a paid guardian

for damages.

That is, from the time he seized it, his law is that of a paid guardian, who is liable for the ox’s damages,

whereas the owners are exempt from payment of its damages; therefore:

a. The owners lose from their ownership of the ox only with respect to the first injured party, for they are responsible only for the damages of the first, which occurred while the ox was under their control.

b. The lien that the first injured party acquired in the body of the ox is no longer his, but belongs to the last one, since the first person who seized it is liable for the damages of the injured party who came after him, and must pay him that which he has in the body of the ox.

And so too the one who came after him: once he seized it, he must pay the one who came after him that which he has in the ox, because he too seized it and became liable for payment of his damage.

The explanation of the Mishna according to this resolution is clarified later in the discussion by way of an objection and a resolution.

If so,

how did we learn: “He shall pay the last of them, and if

there is a surplus in it, he shall return it to the one before him,” when

“and if there is a surplus in it,

he should have returned it to its owners,”

it should have been necessary

for Rabbi Meir to say?!

That is: Granted, what we learned, “he shall pay [first] the last of them,” is indeed consistent when the injured parties seized it, and one need not object: Why should the last one acquire first, when the first preceded him? For whatever the first has in the ox, he becomes obligated to give to the one who comes after him, since the latter seized it and the first became responsible for his damages, and so on, as explained.

But nevertheless there remains an objection: How did we learn in the Mishna that if there is a surplus in the ox—that is, the ox was worth more than the value of the last one’s damage—then with this surplus they pay the damages of the one before the last? For once they seized it, the owners are no longer responsible for its damages, and their entire liability is only according to the value of the first one’s damage. And that value has already been collected by the last one. If so, the surplus in the ox belongs to none of the injured parties, but only to the owners of the ox?!

He said

he answered

Ravina: This is how it is taught in our Mishna, that is, what we learned: “And if there is surplus in it, he shall return it to the one before him”—the intention is not that if something remained in the ox after the last injured party collected, the preceding injured party should collect it, but rather this is the intention of the Mishna:

If there is surplus in it beyond his damages, he shall return it to the one before him.

That is, if the value of all the damages was not equal, but the injured party preceding the last injured party had a greater value of damages than the last one, then he is entitled to receive payment for the remainder of his damages after the last one collects. For just as the last one is entitled first, before all those preceding him, because those preceding him became liable to one another on account of their taking possession of the ox, and the one preceding him became liable to him, so too with the remainder of the damages—in which the last one has no right, since it is greater than the value of his damages—the last among the injured parties is entitled

And likewise, what we learned: “And if there is surplus in it, he shall return it to the one before the one before him,” means that if the value of the damages of the one before the one before him was greater than that of those after him, he shall collect it. And this is what we learned: “The last last one profits”: if there were several injured parties whose damages were greater in value than those of the last one, the later one will always be entitled. For the one preceding him became liable to pay him his rights in the ox, because he was a paid bailee liable for damages. ; For in this case the fourth will not be entitled to the surplus of the damages, since the second preceded him, and he did not lose his right to collect except according to the value of the damages of the third [which are equal to those of the last], since only the damage of the third occurred while the second was responsible for the damages of the ox. For after the damage of the third, the third had already taken possession of the ox, and the ox left the responsibility of the second. It follows that the second loses from his rights in the ox according to the value of the damage of the third [and the last], and no more. If so, the surplus of the damages must be given to the second and not to the fourth, since the second preceded the fourth; and see carefully also in the “Tosafot of Rabbenu Peretz.” Expansion concerning the law of the injured party’s right to collect from the ox of the owners when the ox was in the possession of a bailee or was seized by an injured party: A. The plain meaning of the language of Rashi and Tosafot is [as will be explained in section C] that the owners are not liable at all for damages incurred after the first injured party seized it, and those after him, and on this basis the sugya was explained in the main text; but the later authorities [see Maharsha here, and “Ketzot Ha-Choshen,” section 401] proved that the injured party has the right to collect from the owners’ ox even when there is a bailee who is responsible for the damages, and even when the owners are under duress and unable to guard their ox. And when the injured party collects from the owners’ ox, the owners return to the bailee, demanding that he pay them their loss in the ox, for since they are bailees, and their ox was lost to the injured party while the ox was under their responsibility and guardianship, the bailee is responsible to compensate the owners for this, just as he would have had to compensate them had the ox been stolen. B. And according to their view, the explanation of what they said in our sugya, that if there is surplus he shall return it to the owners is not because the owners are not responsible for the damages of the one preceding the last, but because the preceding injured party is responsible toward the owners, by the law of “guarding its body,” for every loss that comes to the owners on account of the damage of the last one. Therefore, he cannot collect anything from the owners after the last one has collected his damages from the ox. C. And there is a practical legal difference between the views when the damages are not equal, and the damage of one of the four injured parties who preceded the last is less than the amount of the last one’s damage ; according to the plain meaning of the language of Rashi and Tosafot, it appears that in such a case the last one collects only up to the amount of the smaller damage [even though the amount of the last one’s damage is greater than his], because the last one has no claim against the owners, and all his right in the ox is by virtue of the injured party preceding him, and that one by virtue of the one preceding him. If so, when one of the damages was smaller, that injured party acquired in the ox only up to the amount of half his damage, and he cannot give the one who comes after him more than what he has in the ox. It follows that the last one has only up to the amount of half his damage ; but according to the Maharsha, the last injured party is not dependent at all on the injured parties preceding him, and what he cannot take by virtue of the injured party preceding him, he will take from the owners. Thus the last one will never collect less than the amount of half his damage, provided that the ox contains enough for the amount of half his damage. D. And behold Rashi’s language in the commentary beginning “[And if there is surplus in it], he should return it to the owners”—it should have said so—is: “For the owners need not lose a maneh that they had in it from the time of the first damage, since its guarding was not upon them but upon the injured party.” Thus it is plainly explained from his words that the owners are not responsible for the damage suffered by the four last injured parties, except for the damage of the first one. E. And so it also appears plainly from the words of the Tosafot, who wrote: “And even the fifth one as well—there are times when he does not have all his damages, if his damages exceed those of the fourth, for he takes only the share of the fourth [since only the fourth injured party is responsible for the damages of the fifth, and the fifth injured party cannot take more than what the fourth injured party had; therefore, if his damage is greater than that of the fourth, he takes only what the fourth had in the ox, and no more]. However, when all the damages are equal, they all lose and the last one profits [for each injured party caused the one after him to lose his entire share, and the last one gains].” F. And the Maharsha indeed was perplexed by their words: Why should the last one not collect? And the Shakh, in section 401, wrote that there is no difficulty at all—see there. And in “Ketzot Ha-Choshen,” there, he rejected the words of the Shakh and did not resolve the Tosafot. [And the later authorities posed their difficulty only concerning the words of the Tosafot, whereas they did not mention it concerning the words of Rashi; this requires examination.] G. And in the “ Innovations of Rabbi Shimon” section 32, he explained the words of the Tosafot: their intention is not to say that if the damage of the fourth is smaller than that of the fifth, the fifth loses. Rather, their intention is a case in which the damage of the fifth and the third are equal, and the damage of the fourth is smaller than both; in such a case, the fifth collects up to the amount of the fourth’s damage, whereas the excess from the owners’ ox is taken by the third and not by the fifth, since he preceded him ; and although it is explained in the sugya that the last one takes precedence, this is specifically because the first is responsible for the damages of the second and takes his rights from him, and the second for the third, and so on; it follows that the last one is the one who takes ; but when there was a small damage between the third injured party and the fifth, the third caused the fourth to lose only the amount of half the fourth’s damage, whereas he need not cause the fifth to lose, since at the time of the fifth’s damage the ox was not under his guardianship—for the fourth had seized it—and therefore he automatically precedes the fifth, since he preceded him in damage. And this accords with the words of “ the Tosafot of Rabbenu Peretz,” for it is evident from his words that this is his explanation of the words of the Tosafot. H. However, in the language of his question the Maharsha asked that he should also take from the share of the third and the second. But see the “Innovations of Rabbi Shimon,” there, which proved that they are not obligated to give from their share when they are not guardians; perhaps the Maharsha agrees to this, but he holds that when the second injured party seized it, the first was not released from his guardianship. I. And Rabbi Meir Simcha, in his innovations, wrote to resolve the words of the Tosafot: they said that one takes from the body of the ox only where the owners will not lose, because the bailee will pay them. But here, when he seized it, although he became a paid bailee with respect to damages, he did not become a paid bailee toward the owners to pay them their loss ; and see further what the “Chazon Ish” wrote in resolving the difficulty and in explaining the words of the Shakh. J. And in “ Even Ha-Ezel” [“Monetary Damages,” 4:8, beginning “However, in truth it appears”] he wrote to resolve it: this matter depends on the dispute between Rabbi Ishmael and Rabbi Akiva. Only according to Rabbi Akiva does the injured party have the right to take from the ox even without there being an obligation upon the owners. But according to Rabbi Ishmael, that the payment obligation in the case of an innocuous ox is a debt of the damager, and the ox becomes an apotiki for this debt, if so, one does not collect from the owners’ ox when there is no payment obligation upon the owners themselves—for example, when the injured party seized it and they are under duress. And our sugya is according to Rabbi Ishmael. And likewise, when Ravin came, Rabbi Yohanan said

And this is what we learned: “The later one is the one who benefits.” If there were several injured parties whose damages were greater than those of the last one, the later one will always be entitled to the payment. For the one before him became obligated to pay him what he was entitled to from the ox, because that earlier person was a paid bailee, who is liable for damage.

to explain Rabbi Meir’s view:

They dealt with it on account of the negligence of bailees

to obligate the first injured parties to lose for the benefit of the last injured party.

And we challenge this:

In what manner did you establish

this statement of Rabbi Meir

as according to Rabbi Ishmael!?

If so, say the final clause: Rabbi Shimon says: An ox worth two hundred that gored an ox worth two hundred, and the carcass was worth nothing—this one takes a maneh and that one takes a maneh; it then gored another ox worth two hundred, the last one takes a maneh, and the one before him takes fifty

zuz, and this one takes fifty zuz; it then gored an ox worth two hundred, the last one takes a maneh, and the one before him takes fifty zuz, while the first two take a gold dinar—

and this law

is according to Rabbi Akiva, who says: It is a partnership ox!

And if so, the difficulty is: Is the

first clause

Rabbi Ishmael

?

And the final clause is Rabbi Akiva

!?

They said

the scholars of the academy:

Yes,

that is indeed so.

For Shmuel said to Rav Yehuda: Sharp-toothed one!

Abandon the Mishna and come after me

[leave the Mishna and come after me], that is: leave the Mishna and do not trouble yourself to establish it as the teaching of one tanna, but say as I do:

the first clause is Rabbi Ishmael

,

and the final clause is Rabbi Akiva

.

We learned there,

we learned below, on page 90a:

The one who strikes his fellow, who strikes his fellow on his ear, gives him a sela as payment for his humiliation, which is the measure of humiliation for an average person. Rabbi Yehuda says in the name of Rabbi Yose the Galilean: a maneh [one hundred zuz] gives him as payment for his humiliation. There was an incident involving a certain man who blew at his fellow [an incident involving a man who blew at his fellow], Rav Tuvya bar Matana sent him before Rav Yosef,

in order that they should ask him:

There are two kinds of coins:

as payment for his humiliation, which is the amount assessed as humiliation for an average person.

Tyrian coins and provincial coins,

and the difference between them was in the quantity of silver in them: in a Tyrian sela there was eight times as much silver as in provincial coins, and therefore its value too was eight times greater.

gives him as payment for his humiliation.

There was a certain man who struck his fellow

All types of coins [ma’ot, zuz, dinars, and manehs] mentioned in the Talmud certainly refer to Tyrian coins,

but concerning selas and shekels [half a sela] mentioned in the Torah and in the Talmud, the Gemara discusses here whether the intention is to Tyrian selas or provincial selas.

The value of a Tyrian sela is approximately four Tyrian dinars, while that of a provincial sela is four provincial dinars, or half a Tyrian dinar. Is

a Tyrian sela [which is four Tyrian zuz]

what we learned, that he gives him as payment for his humiliation, according to the first tanna, whose ruling is the halakha—or perhaps a provincial sela [which is half a Tyrian zuz] is what we learned? He said to him, Rav Yosef: You have learned it,

it can be learned from our Mishna that the tanna teaches only a Tyrian sela and not a provincial sela:

For we learned in our Mishna:

and the first two

take, each one,

a gold dinar,

which is twenty-five silver zuz. And the tanna could have taught another damage that occurred, in which case it would emerge that the first two each take twelve and a half zuz. But certainly the tanna did not teach this for that reason: he does not wish to teach halves—

[end of fragment]

perhaps is it

a provincial sela

[which is half a Tyrian zuz] that

we learned?

He said to him,

Rav Yosef:

You have learned it:

It can be derived from our Mishna that the tanna teaches only a Tyrian sela, and not a provincial sela:

For we learned in our Mishna:

And the first two

take, each,

a gold dinar,

which is twenty-five silver zuz. The tanna could have taught that another damage occurred, in which case it would emerge that each of the first two takes twelve and a half zuz. Rather, it is certainly because of this that the tanna did not teach such a case: he does not wish to teach amounts that are halves.

And

who is it,

if it enters your mind: the tanna teaches a medina sela

—the tanna’s practice is to teach a medina sela—then, since half a zuz is a whole medina sela, it is still difficult:

let us divide and teach: until twelve and a sela

—let the tanna add one more damage, until twelve Tyrian zuz and another medina sela [which is half a Tyrian zuz] remain for the first injured party and for the owners, for each of them, since the sela is a whole thing—!?

Rather, certainly the tanna does not teach a medina sela at all, while with regard to zuz: these are halves that the tanna does not teach.

He said

He rejected

it

the proof:

And is it so that

the tanna must enumerate like a peddler and proceed

—is it the tanna’s practice to specify all the possibilities, like a peddler who recounts his merchandise in the minutest detail? That is to say: indeed, the tanna could have said so, but what he said was sufficient for him, and he did not need to add another damage and the division of the ox after this damage.

The Gemara asks: since Rav Yosef’s proof that everywhere we teach a Tyrian sela has been rejected, then

what came of it

—what is the resolution of the question—whether, with regard to one who struck his fellow, we teach a Tyrian sela, or whether it is a medina sela that we teach?

They resolved it

the members of the academy,

from that which Rav Yehuda said in the name of Rav:

Every silver mentioned in the Torah is Tyrian silver

and likewise, when the Sages mention a measure from the Torah [such as fifty sela for one who violates and one who seduces], their intention is to Tyrian silver; whereas the measure

of their words

such as a sela for humiliation, whose measure was established by the Sages, the measure is in

medina silver.

Since Rav Yosef ruled for them that the one who struck need give only a medina sela, which is half a Tyrian zuz,

that man said

the injured party—to Rav Yosef:

Since

only

it is half a zuz, I do not want it

I do not want it! Rather,

give it to the poor

—since he is required to pay me only half a zuz, I am embarrassed to take it, so let the one who struck give the half-zuz to the poor—!

He subsequently said to him

the injured party again retracted and said to Rav Yosef:

Give it to me; I will go and revive myself with it

—let him give me the half-zuz, and I will go and revive myself with it—that is to say: I will buy something with which to taste.

Rav Yosef said to him

to the injured party:

You cannot retract, for

the poor have already acquired it; and although there are no poor here

—and although there are no poor before us—

we

I, who am a charity collector—

are the hand of the poor

and it is as though the poor had already acquired it.

For Rav Yehuda said in the name of Shmuel:

Although the Sabbatical year cancels the debt, unless they wrote a prozbol, that is: “I hand over to you, so-and-so and so-and-so, the judges in such-and-such a place [my documents, so that you will be collectors, and I will not collect], every debt that I have, so that I may collect it whenever I wish,” and the judges or the witnesses sign it; nevertheless: