Bava Kamma 48b — the Talmud in English

Both

two people who were in one place

with permission, or

who were

both

in one place

without permission:

If

they injured one another

with their hands, even unintentionally,

they are liable;

but if

they were injured by one another

when they collided with one another,

they are exempt.

This implies:

the reason

that we exempt them when they caused injury with their hands

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 unintentionally injured the other, because he did not know of him; whereas

the one who was there without permission is liable

if he injured the other, even unintentionally.

We learned in the Mishna, the section of the early rabbinic code:

If the ox

fell

into a pit and made its water foul, its owner is liable:

Rava said:

They taught this only when the ox made the water foul

at

the time of its fall,

because in that case it is considered an actual damaging ox, and is not comparable to a pit;

but

if the ox caused the damage

after its fall,

that is

exempt.

And we explain:

What is the reason?

Because

it is

a

“damaging ox” that is a

“pit,”

and the water

is therefore like

property,

and we do not find a pit for which one is liable for damage to property.

An objection is raised against this:

This works well according to Shmuel, who said

above, on page 28b:

Every obstacle is a

“pit”

even

though its owner did not declare it ownerless.

But according to Rav, who said: Until he declares it ownerless,

it is not a “pit” but an “ox,”

what can be said?

Why should he be exempt for damage to property?

Rather, if this statement was reported, it was reported as follows: Rava said:

They taught this only when the ox made

the water foul

through its body,

because it was covered with mud;

but when it made the water foul through its smell

the smell of the carcass,

it is exempt.

And we explain:

What is the reason?

Because

it is merely an indirect cause,

for the smell of the carcass is not the actual body of the ox. The foulness comes to it on its own, and the carcass merely causes the foul smell to arise;

and a mere indirect cause

by the ox

does not create liability.

We learned in the Mishna:

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

An objection is raised:

But why

does he pay the ransom?

Is it not a non-accustomed ox?

And a non-accustomed ox does not pay ransom!?

Rav

answered

the question:

We are dealing with an ox accustomed to falling upon people in pits

intentionally—

this

is the case discussed in our Mishna.

An objection is raised against this:

If so, it should be liable to execution

for having killed a person during its earlier falls; how, then, did it become an accustomed ox?

Rav Yosef said:

For example,

the ox saw

a

green vegetable

at the edge of the pit

and fell. It did this four times, and it is liable for the fourth fall. It was not executed after the earlier falls, since they were unintentional, and an ox is not liable to execution for an unintentional killing.

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 answer the question, “Is it not a non-accustomed ox?”:

Whose opinion is this?

Our Mishna—which imposes ransom even though the ox is non-accustomed—

is the opinion of Rabbi Yosei HaGelili, who says that a non-accustomed ox pays half-ransom;

when our Mishna says “he pays the ransom,” it means half-ransom.

Ulla said

to answer the question, “Is it not a non-accustomed ox?”:

Actually, when our Mishna says “he pays the ransom,” it means 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 a non-accustomed ox from ransom. The reason it pays full ransom rather than half-ransom is that the anonymous tan­nnaitic author of our Mishna follows Rabbi Tarfon,

who says: A non-accustomed horn,

which ordinarily pays half-damages in the public domain,

that causes damage in the courtyard of the injured party pays full damages; here too—

with regard to ransom—

it pays full ransom,

since this occurred in the courtyard of the injured party.

An objection is raised:

According to Ulla, this is understandable:

the primary reason that he pays ransom is that the incident took place in the domain of the injured party.

This is why it teaches:

“If his father or his son”—

the owner of the courtyard’s father or son—

was inside it,”

because the owner’s father and son were there with the courtyard owner’s permission, and their killing is considered like killing in the courtyard of the injured party—

But according to Shmuel,

there is a difficulty:

Why specifically

does our Mishna mention

“his father or his son”?

After all,

even if it were

if it were

another person

found in the pit,

as well

he would pay ransom!?

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

it states the ordinary case, since presumably the owner’s father or son would be in his pit, and not another person.

We learned in the Mishna:

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

;”

Rabbi says: “In all 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, anonymous opinion.

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

The Sages taught:

If the owner of the courtyard said to another person:

“Bring in your ox and guard it

yourself,” and

it caused damage,

the ox

is liable;

but if

the ox was injured,

the owner of the courtyard is exempt

from liability.

And if he said to him:

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

if

it is injured, he is liable —

the owner of the courtyard; and if

it causes damage, he is exempt.

An objection is raised:

This itself is contradictory

—the beraita contradicts itself from its first clause to its latter clause:

For

when you say in the first clause:

at the beginning:

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

this implies:

The reason is that he said to him

“Guard it”;

it

is then that the owner of the ox is liable

if it causes damage,

and the owner of the courtyard is exempt

if it is injured.

But if he merely

said to him, “Bring in your ox,”

»,

if it is injured,

and the owner of the ox is exempt

if it causes damage, because

ordinarily he accepts responsibility for guarding it

the owner of the courtyard

accepts the guarding; this is in accordance with the Rabbis, the first opinion in our Mishna.

а это соответствует мнению мудрецов нашей Мишны.

But

consider the latter clause:

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

This implies:

The reason is that he said to him

“I will guard it”;

it is then that the owner of the courtyard is liable

if it is injured,

and the owner of the ox is exempt

if it causes damage.

But ordinarily, the owner of the ox is liable

if it causes damage,

and the owner of the courtyard is exempt

if it is injured, because

ordinarily he does not accept responsibility for guarding it

the owner of the courtyard

does not accept the guarding; this brings

the latter clause

to the opinion of Rabbi

in our Mishna,

who says: Until the owner of the house accepts responsibility for guarding it.

And it follows that

the first clause

according to

the Sages, and the latter clause

according to

Rabi!?

Rabi Elazar said: It is broken apart! The one who taught this [

the first clause]

did not teach this [

the latter clause], that is: indeed, the first clause is according to the Sages and the latter clause is according to Rabi].

Rava said [

he answered]:

In fact,

the entire

baraita

is according to the Sages, and the law of the latter clause is even when he did not say, “And I will guard it,” but merely [said so] without specification; however,

because he began the beginning

since he began the first clause: “

Guard it,”

he taught in the latter clause: “

And I will guard it.”

Rav Pappa said [

he answered]:

The entire

baraita

is according to Rabi, and the latter clause is understandable, for it is inferred from it that when [he said so] without specification, if it caused damage he is liable, and if it was damaged he is exempt; but what is difficult for you from the first clause, which teaches: “Gather your ox and guard it; if it caused damage, he is liable, and if it was damaged, he is exempt,” and it implies that when [he said so] without specification, the law is not so!?

Do not infer this. In fact, when he spoke without specifying, this is also the law. Rather, when he spoke without specifying, a non-accustomed ox pays only half the damage. Therefore, in order to make the entering ox liable for the full damage when it damaged the courtyard owner’s ox, even when it was a non-accustomed ox, the beginning stated: “And guard it”—

Do not infer this, for the law is in fact so when [he said so] without specification; rather, when [he said so] without specification, the ox, when it is an innocuous ox, pays only half the damage, and in order to make the entering ox liable, when it damaged the courtyard-owner’s ox, for full damage even when it is innocuous, therefore he stated in the first clause, “And guard it” -

And

because

he holds -

the baraita’s tanna -

like Rabi Tarfon, who says: Keren in the injured party’s courtyard [pays]

full damage; therefore:

if

the courtyard owner said to him,

the courtyard owner to the ox owner: “

Guard it,”

the courtyard owner does not grant the ox owner

the ox’s owner

a place in the courtyard,

and it follows that the courtyard owner’s domain belongs to him alone,

and it becomes for him -

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

keren in the injured party’s courtyard, and keren in the injured party’s courtyard pays full damage.

And if

he did not say to him, “

Guard it,”

then

he grants him a place in the courtyard, and it becomes a partners’ courtyard, and keren in a partners’ courtyard -

when the partners’ oxen damaged one another -

pays only half the damage

even according to Rabi Tarfon.

Mishna:

It is written: “And when men fight and they strike a pregnant woman, and her children emerge, but there is no fatality, he shall surely be punished, as the woman’s husband shall impose upon him, and he shall give through the judges,” and this is the law of “the value of offspring.”

An ox that was intending [to strike] its fellow

the ox with which it was quarreling,

and it struck the woman and her children emerged, it is exempt from the value of offspring.

But if

And

if

a person was intending [to strike] his fellow,

and he struck the woman and her children emerged,

that is: even if he was intending [to strike] his fellow, he

pays the value of offspring.

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

How does he pay the value of offspring:

We assess how much the woman is worth -

to be sold in the marketplace as a maidservant -

before she gave birth, and how much she is worth after she gave birth [

after she miscarried], and he pays the difference [and in the Gemara this will be explained further] and gives it to the husband.