Bava Kamma 48b (מח:) — the Talmud in English

Both [two people] who were in one place

two people who were in one place

with permission, or

who were

both

in one place

without permission:

A. Rashi explained: that "be-reshut" is, for example, in the public domain, or in the partners' courtyard, or that the homeowner gave him permission to enter; ;

If

they injured one another

directly, even unintentionally,

they are liable;

but if

they were injured by one another [if they collided with one another],

when they collided with one another,

they are exempt.

And it follows:

The reason

that we exempt them when they injured one another directly

is that both were there with permission or both were there without permission; but if one was there with permission and the other without permission,

the one

who was there with permission is exempt

if he injured the other unintentionally, because he did not know of him; while the one

who was there without permission is liable

if he injured the other, even unintentionally.

We learned in the Mishna:

If [the ox] fell

into a pit

and fouled its water, he is liable:

Rava said:

They taught this only when it fouled

the water

at the time of its fall,

for in that case the ox itself is considered a genuine damager, and this is not analogous to a pit;

but

if the ox caused the damage

after its fall,

this

is exempt.

And we explain:

What is the reason?

Because

it becomes an

a

ox that is a

pit,

and water

is considered like

vessels,

and we do not find a pit for which the Torah imposed liability for vessels.

Rashi wrote: “And water is property: all objects are considered property, because the Torah made one liable for death caused by a pit only in the case of an animal, while the damage to other objects is equivalent to their death ;

We challenge this:

This works well according to Shmuel, who said

above, 28b:

Every obstacle is a

pit

,

even though its owner did not renounce ownership of it.

But according to Rav, who said: Until he renounces ownership of it,

it is not a “pit” but an “ox,”

what can be said!? Why should he be exempt for vessels?

Why should he be exempt for damage to property?

Rather, if it was stated, it was stated as follows: Rava said:

They taught this only when it fouled

the water

with its body,

because it was soiled with mud;

but if it fouled it with its odor [the odor of the carcass],

the smell of the carcass,

he is exempt.

And we explain:

What is the reason?

Because

it is merely an indirect cause,

for the odor of the carcass is not the ox’s actual body; the stench develops on its own, and the carcass merely causes the stench to arise.

And merely an indirect cause

of the ox

does not impose liability.

We learned in the Mishna:

If his father or his son was inside it, he pays the ransom:

The Rif did not bring this ruling, and the "Nemukei Yosef" wrote that its reason is that in truth this is considered "causal," except that the Rabbah, in his view, does not obligate for a grama, but according to them he is liable; ;

We challenge this:

But why

does he pay the ransom?

He is an innocuous ox,

and an innocuous ox does not pay ransom!?

Rav

answered

:

We are dealing

with an ox accustomed to fall intentionally upon people in pits

,

in our Mishna.

We challenge this:

If so, it is liable to be put to death

[the ox is liable to death] after the first attacks, and how could it have become an accustomed ox!?

Rav Yosef said:

For example,

it saw

the

greenery

at the edge of the pit

and fell,

and it did this four times. It is liable for the fourth occurrence, and it was not stoned after the first occurrences, since it acted unintentionally and is not liable to be stoned.

Shmuel said

to resolve the question, “He is an innocuous ox”:

Whose opinion is this?

Our Mishna—which imposes ransom even though the ox is innocuous—

is the opinion of Rabbi Yosei HaGelili, who says that an innocuous ox pays half the ransom,

and what our Mishna teaches, “he pays the ransom,” means half the ransom.

Ulla said

to resolve the question, “He is an innocuous ox”:

Actually, what our Mishna teaches, “he pays the ransom,” means the full ransom, and our Mishna

is the opinion of Rabbi Yosei HaGelili, who follows Rabbi Tarfon.

That is, our Mishna follows Rabbi Yosei HaGelili, who holds that the Torah did not exempt an innocuous ox from ransom. The reason it pays the full ransom rather than half is that the tanna of our Mishna follows Rabbi Tarfon,

who says: The Horn,

an innocuous ox—which in the public domain pays half-damages—when it caused damage

in the courtyard of the injured party, pays full damages; here too

—with regard to ransom—

it pays the full ransom,

since this occurred in the courtyard of the injured party.

We challenge this:

This is understandable according to Ulla,

whose essential reason for saying that it pays ransom is that the event occurred in the domain of the injured party.

This is why he teaches:

“If his father or his son”—

of the owner of the courtyard—

was inside it,”

for his father and son were there with the permission of the owner of the courtyard, and their killing is considered killing in the courtyard of the injured party—

But according to Shmuel,

there is a difficulty:

Why specifically

[did our Mishna mention]

“his father or his son”?

After all,

even

if it were

another person

found in the pit,

also

he would pay ransom!?

We answer: Indeed, it is not specifically “his father or his son”; rather,

it states the ordinary circumstance,

since presumably the father or son of the owner of the pit would be in his pit, and not a stranger.

We learned in the Mishna:

And if he brought it in with permission, the owner of the courtyard is liable;

Rabbi says: In all of these cases, he is not liable until he accepts responsibility to guard it:

It was stated:

Rav said: The halakha is in accordance with the First Tanna.

And Shmuel said: The halakha is in accordance with Rabbi.

The Sages taught:

The owner of the courtyard who said to another:

“Bring in your ox and guard it

[you guard your ox],” and

it caused damage,

the ox

he is liable;

but if

the ox was injured,

the owner of the courtyard is exempt

.

And if he said to him:

“Bring in your ox, and I will guard it,”

if

it was injured, he is liable

the owner of the courtyard; and if

it caused damage, he is exempt.

If the damaged party was harmed by the homeowner's ox; ;

We challenge this:

This itself is difficult,

[for the beraita contradicts itself from its beginning to its end]:

For when

you say

at the beginning:

“Bring in your ox and guard it; if it caused damage, he is liable; if it was injured, he is exempt,”

and it follows:

The reason is that he said to him

“Guard it”;

it

is [only] then that the owner of the ox is liable

if it caused damage,

and the owner of the courtyard is exempt

if it was injured.

But by implication, when he merely said

“Bring in your ox,”

the owner of the courtyard is liable

if it was injured,

and the owner of the ox is exempt

if it caused damage, because

by implication he accepts

the owner of the courtyard

responsibility for guarding it; this is the position of the Sages in our Mishna.

and this is like the Rabbis in our Mishna.

But

consider the latter clause:

“Bring in your ox and I will guard it; if it was injured, he is liable; if it caused damage, he is exempt,”

and it follows:

The reason is that he said to him

“I will guard it”;

it is [only] then that the owner of the courtyard is liable

if it was injured,

and the owner of the ox is exempt

if it caused damage.

But by implication, when he merely said so, the owner of the ox is liable

if it caused damage,

and the owner of the courtyard is exempt

if it was injured, because

by implication he does not accept

the owner of the courtyard

responsibility for guarding it; this brings us

the latter clause

in accordance with Rabbi

of our Mishna,

who says: The owner of the property is not liable until he accepts responsibility for guarding it.

It is apparent from the Gemara that regarding the anonymous case of the ox-owner's liability, the Sages and Rabbi disagreed; therefore in the beginning — where it comes like the Rabbis — the ox-owner is exempt in the anonymous case, and in the end — where it comes like Rabbi — the ox-owner is liable in the anonymous case. Now what we say that the Rabbis hold that in the anonymous case the ox-owner is exempt depends on the dispute of Rabbi Zira and Rava above, where according to Rabbi Zira in the anonymous case he is liable, for just as in the anonymous case the homeowner accepts guarding upon himself so that he will not harm, likewise the ox-owner accepts guarding upon himself that he will not harm; whereas according to Rava indeed the ox-owner does not accept guarding upon himself. But that the Gemara says that according to Rabbi in the anonymous case the ox-owner is liable if he damaged, needs explanation from where the Gemara derived this. ;

And it emerges that the

first clause

is according to

the Rabbis, and the latter clause

is according to

Rabbi!?

Rabbi Elazar said: It is a refuted teaching! Whoever taught this [the

first clause]

did not teach this [the

latter clause]; that is, indeed, the first clause is according to the Rabbis, and the latter clause is according to Rabbi.

Rava said [he

explained]:

In fact,

the entire

beraita

is according to the Rabbis, and the ruling of the latter clause applies even when he did not say, “And I will guard it,” but merely said so without qualification. However,

since the first clause began: “

Guard it,”

the tanna taught the latter clause: “

And I will guard it.”

I will guard it.”

Rav Pappa said [he

explained]:

The entire

beraita

is according to Rabbi, and the latter clause is readily understood, as it implies that when he caused damage without qualification he is liable, whereas when he was harmed he is exempt. But as for what is difficult for you from the first clause, which teaches: “Take your ox inside and guard it; if it caused damage, he is liable; if it was harmed, he is exempt,” implying that when he said so without qualification the law is not so—

!?

Do not infer this. The same law indeed applies when he spoke without qualification. Rather, when he spoke without qualification, a non-violent ox pays only half the damage; and in order to make the entering ox liable for the full damage when it injured the ox of the courtyard’s owner, even though it was a non-violent ox, the first clause therefore stated: “And guard it”—

And

because

he follows—

the tanna of the beraita—

the opinion of Rabbi Tarfon, who says: A goring in the courtyard of the injured party is paid in

full; therefore:

if

he said to him,

the owner of the courtyard to the owner of the ox: “

Guard it,”

the owner of the courtyard does not grant him

the owner of the ox

a place in the courtyard,

and the courtyard remains solely under the authority of the courtyard’s owner,

and it is—

the damage caused by the entering ox to the courtyard owner’s ox—

a goring in the courtyard of the injured party, and a goring in the courtyard of the injured party is paid in full.

But if

he did not say to him, “

Guard it,”

then

he does grant him a place in the courtyard, and it becomes a courtyard belonging to partners; and a goring in a courtyard belonging to partners—

when the ox of one partner injures that of the other—

is paid only at half the damage,

even according to Rabbi Tarfon.

Mishna:

It is written: “When men fight and one strikes a pregnant woman and her children emerge, but there is no fatality, he shall be punished with a fine, as the woman’s husband shall impose upon him, and he shall give it through the judges.” This is the law of “compensation for unborn children.”

An ox that intended to gore its fellow

the ox with which it was fighting,

and struck the woman, causing her children to emerge, is exempt from paying compensation for unborn children.

But if

And

if

it were a person who intended to strike his fellow,

and struck the woman, causing her children to emerge,

that is, even if he had intended to strike his fellow, he

pays compensation for unborn children.

The woman’s value is assessed—how much she would be worth

How does one pay compensation for unborn children?

The woman is assessed as to how much she would be worth—

to be sold in the marketplace as a slave—

before she gave birth, and how much she would be worth after she gave birth

[after she miscarried], and he pays the diminution [the Gemara will explain this further] and gives it to the husband.