Bava Kamma 4b — the Talmud in English

And just as we reconciled the beraita,

so too,

we will say with regard to our Mishna, according to Rav:

teach [

you should teach it as follows]:

a person—the guarding of his body is incumbent upon him,

and what the Mishna said, “and their guarding is upon you,” refers to the other principal categories of damage.

And now the Gemara returns to the interpretation of “mav'eh” in our Mishna, and raises an objection:

He challenged it [

he objected]

Rav Mari:

Since it was explained above [3b] that both the verse that Rav brought to support his interpretation that mav'eh means a person and the verse that Shmuel brought to support his interpretation that mav'eh means a tooth do not correspond exactly to their interpretations, if so, one should ask,

and say [

let us say] that the interpretation of

mav'eh

that we learned in our Mishna is neither a person nor a tooth, but rather

this is water.

For if a person poured his water into the public domain, and another person came and his garments became soiled by these waters, the one who poured them is liable to pay for the damage. And the proof for this interpretation is

as it is written

in the Book of Isaiah [

As the fire burns melting things [

just as fire burns a thing that melts]

water makes fire bubble” [

like water that produces bubbles when placed upon the fire ]. Thus, the expression “makes bubble” is stated with regard to water.

And the Gemara answers:

Is it written [

is it written]

“waters bubbled”

in the plural, so that it would be understood that the word “bubbled” refers to the waters that make the fire bubble? But it is not written so; rather,

“fire made bubble” is written,

in the singular and feminine form, whose meaning refers to the fire, which makes the water bubble. The Gemara raises the objection again:

He challenged it [

he objected]

Rav Zevid: And

if so,

say [

let us say],

mav'eh

that we learned in our Mishna

is this “fire”!?

For

indeed,

when “made bubble” is written, it is with regard to “fire” that it is written,

for “made bubble” refers to “fire,” as was explained.

And the Gemara resolves: It is impossible to say that mav'eh is fire, because

if so,

if you say so, the following difficulty arises:

what is “the mav'eh and the kindling”

what is the explanation of what we learned in the Mishna, “the mav'eh and the kindling”? For if you say that mav'eh is fire, what is “the kindling”? Rather, certainly “kindling” is fire, and mav'eh is either a person or a tooth, according to Rav and Shmuel.

And if you will say,

perhaps you will say that it is possible to interpret mav'eh as fire, and that the reason the Mishna also mentions kindling is in the category of

explaining the interpretation

that mav'eh is kindling,

this too cannot be said,

for if so,

if you say so, the following difficulty arises: Were

four

principal categories of damage taught in the Mishna? According to your words, there were only

three

principal categories,

namely,

the ox, the pit, and the fire. Yet the tanna of the Mishna opened and said, “Four principal categories of damage.”

And if you will say,

perhaps you will say that mav'eh is fire, and resolve that the tanna indeed teaches four principal categories of damage, because

the tanna taught an ox that contains two,

what the tanna taught as “ox” includes the two principal categories, “tooth” and “foot,” and together with the pit and the fire they are four.

This too cannot be said! For

if so,

if you say so, there is no understanding of the necessity stated by the Mishna: “

and neither this nor that [

neither the ox nor the mav'eh]

which have the breath of life,”

and if mav'eh is

fire, what breath of life is there in it!?

What breath of life is there in fire?

Furthermore [

and additionally], even the continuation of the necessity is not understood according to this, for the Mishna explains that the ox and the mav'eh are not “like fire, which has no breath of life” [if it had written “ox and mav'eh,” I would not have known fire], and if mav'eh is fire,

what [

what is the meaning of] “

like fire,”

from which fire cannot be derived through mav'eh? Yet mav'eh is fire itself! Therefore, it is impossible to say that mav'eh is fire; rather, it is either a person [according to Rav] or a tooth [according to Shmuel].

And now the Gemara brings a beraita that enumerates thirteen principal categories of damage, unlike our Mishna, which enumerates only four:

Rabbi Oshaya taught

in a beraita:

There are thirteen principal categories of damage

:

The first four that the beraita enumerates are the four custodians, who are liable for damage to a deposit when they did not guard it properly, and they are:

a.

an unpaid custodian,

one who undertook to guard his fellow’s objects without compensation, and who must pay the depositor if the deposit was damaged because of his negligence in guarding it.

b.

and a borrower,

one who receives an object from his fellow to use it for free, and who must pay for damage to the deposit even if it occurred through circumstances beyond his control.

c.

a paid custodian—

one who undertook to guard his fellow’s objects in return for payment [“a paid custodian”], and who must pay if the deposit was stolen or lost, and all the more so if it was damaged because of his negligence in guarding it.

d.

and a renter,

one who receives an object from his fellow to use it in return for payment of rental fees, and whose law is that of a paid custodian.

The beraita also enumerates the five types of payments for damage for which a person who injures his fellow is liable:

e.

damage,

one who injures his fellow’s body pays the injured person for the amount by which he is now worth less than he was at first.

f.

pain,

he pays the injured person for the pain that he suffered.

g.

and healing,

he pays for the expenses of healing.

h.

loss of work,

he pays him compensation for the days during which the injured person fell ill and was unable to work and earn money.

i.

and humiliation,

payment for the humiliation with which he humiliated him.

And

Rabbi Oshaya likewise enumerated in the beraita the

four

principal categories of damage

of the Mishna [

which are enumerated in our Mishna], and they are:

j. The ox

k. The pit

l. The mav'eh

m. And the kindling

These are thirteen

together, thirteen principal categories of damage.

And the Gemara analyzes:

And our tanna,

the tanna of our Mishna,

for what reason does he not teach these,

why does he not also teach the nine additional principal categories of damage that Rabbi Oshaya taught in his beraita?

And the Gemara explains that its question is only according to Rav, and not according to Shmuel:

Granted, according to Shmuel,

who interprets mav'eh as tooth, this is satisfactory, because only

with regard to damage to property is he speaking,

our Mishna speaks only of damage caused by his property, but

with regard to damage to the person, he is not speaking.

Our Mishna does not speak of damage caused by the person himself; therefore, the Mishna did not mention the five payments for which a person who injures his fellow is liable, nor the liability of the four custodians, since their liability is because they did not guard properly, and therefore the damage is considered as though the custodians themselves caused it.

But according to Rav,

who said that mav'eh is a person who causes damage, and our Mishna also speaks of damage to the person, the difficulty arises:

let him teach,

why does the tanna not also teach in the Mishna these nine principal categories of damage?

And the Gemara answers:

The tanna taught

in our Mishna the “mav'eh,” whose interpretation is

a person, and

included within it

all matters of a person,

all forms of damage caused by a person, among which these nine principal categories of damage are also included, and he did not enumerate them separately.

And from here the Gemara asks concerning Rabbi Oshaya:

And according to Rabbi Oshaya as well, he has already taught a person,

which includes all the damage caused by a person; for what purpose, then, does he teach the nine additional categories separately in the beraita? And the Gemara answers: Rabbi Oshaya taught in his beraita

two types of person,

for there are two types of liability of a person who causes damage: a person who damages the body of his fellow, and a person who damages the property of his fellow. Therefore,

he taught

Rabbi Oshaya taught

a person who damaged a person,

the liabilities of a person who damages a person, namely, damage, pain, healing, loss of work, and humiliation.

And he taught

and he also taught the liability of

a person who damaged an ox.

But our Mishna, which mentions a person [“mav'eh”], means a person who damaged an ox, for just as with the “pit” mentioned in our Mishna, it speaks only of damage caused to an ox that fell into a pit, since a pit is exempt for the death of a person, so too, the person who damages mentioned in our Mishna speaks of a person who damages an ox.

The Gemara asks:

If so,

if Rabbi Oshaya distinguishes between a person who damages an ox and a person who damages a person, in order to mention them separately, if so,

with regard to an ox as well, let him teach two types of ox

so that Rabbi Oshaya would likewise divide an ox that causes damage into two forms of damage:

let him teach an ox that damaged an ox, and let him teach an ox that damaged a person,

and why did he not mention them separately, but included them all under “ox”?

The Gemara answers:

What is this!?

What need is there to divide this distinction?

Granted,

the division into the two types of a person who damages should be taught, since they differ in their laws, for

a person who damaged an ox

only

damage is what he pays,

and no more, whereas

a person who damaged a person pays

in addition to the damage

four matters;

therefore, there is reason to mention them separately.

But an ox,

what need is there to mention separately the legal distinctions of an ox?

What difference is there to me whether an ox damaged an ox, and what difference is there to me whether an ox damaged a person?

What distinction is there if the ox damaged an ox or damaged a person, when

in either case, it is damage that he pays.

The law of both is equal: he pays only damage. And since their laws are equal, what need is there to divide them?

The Gemara returns to discuss Rabbi Oshaya’s statement, in which he added to the statement of our Mishna the person who damaged another person:

But the unpaid bailee and the borrower, the paid bailee and the renter, are a person who damaged an ox, and he teaches them!?

The four bailees who are liable to pay for the deposit that was damaged are “a person who damaged an ox.” If so, why did Rav Oshaya teach them separately, when they are included in the person mentioned in the Mishna?

The Gemara answers: Even with regard to a person who damaged an ox, there are two forms, and therefore Rabbi Oshaya

teaches damage by hand,

a person who damaged an ox by hand [that is, through his action],

and teaches damage that occurs by itself,

Rabbi Oshaya in the beraita added to the statement of the Mishna the liability of the bailees, who did not actually cause the damage; rather, the damage occurred by itself, because of their failure to guard it.

Now the Gemara brings another beraita, which enumerates twenty-four principal categories of damage:

He taught

[“he taught”]

Rabbi Hiyya

in a beraita:

There are twenty-four principal categories of damage

:

a.

Payments of double:

One who secretly steals another person’s property, with the owners not seeing the act of theft, is called a “thief,” and must pay double to the owners if witnesses testified against him in the court that he stole.

b.

And payments of four and five:

One who steals a sheep and slaughters or sells it pays the owner of the sheep payment of four [four times its value]. And if he stole an ox and slaughtered or sold it, he pays payment of five [five times its value].

c.

And a thief:

One who pays only the principal, such as one who admitted on his own that he stole, in which case he is exempt from payment of the double and pays only the principal, because the double is a fine, and one who admits to a fine is exempt.

d.

And a robber:

One who robs another person’s property by force, openly and publicly, must return the robbery or its value [the principal alone].

e.

And conspiring witnesses:

Two false witnesses who testified in court to make a person liable for money, and two others came and refuted them [saying to the witnesses: “You were with us at that time, and you did not see the act about which you testify, for at that time you were elsewhere”], the conspiring witnesses must pay that person the money that they plotted to make him liable for.

f.

And the rapist

of the virgin, who pays a fine of fifty silver pieces to her father.

g.

And the seducer

of the virgin, who likewise pays a fine of fifty silver pieces to her father.

h.

And the one who spreads a bad name

about his wife, [claiming] that she committed adultery before the marriage, who pays a fine of one hundred silver pieces.

i.

And the one who renders impure

his fellow’s pure items, such as one who touches them together with a creeping creature in the teruma of a koen, and renders it forbidden to eat.

j.

And the one who mixes

teruma produce with his fellow’s non-sacred produce, thereby causing him a loss, because he renders the produce forbidden for consumption by non-koanim, and he must sell it to koanim cheaply.

k. And the one who pours

his fellow’s wine for idolatry, and renders it forbidden to derive benefit from.

And

he likewise enumerates

these thirteen

[thirteen] principal categories of Rabbi Oshaya.

Here,

we have together

twenty-four

principal categories of damage.

And the Gemara discusses:

And Rabbi Oshaya,

who enumerates only thirteen principal categories,

what is the reason that he did not teach these

—why did he not also add to the enumeration the principal categories enumerated by Rabbi Hiyya? The Gemara answers:

He deals with monetary liability; he does not deal with fines.

The Torah’s payment liabilities are divided into two: monetary payments and fine payments. Monetary payments are payments whose measure of liability is according to what he damaged or deprived his fellow of. Whereas fine payments are, for example, payments whose measure of liability is fixed, such as those of the rapist and the seducer, or payments whose measure of liability is greater than what he damaged, such as payments of double and of four and five. Rabbi Oshaya enumerated only those cases of damage in which the Torah’s liability is a “monetary liability,” and not those cases of damage in which the liability is by virtue of a fine. Therefore, he did not enumerate the additional principal categories enumerated by Rabbi Hiyya, because they involve fine liabilities.

But the Gemara continues to discuss:

A thief and a robber involve monetary liability

a thief who admitted, paying only the principal according to what he stole, and likewise a robber paying the principal according to what he robbed, whose liabilities are not fines but “monetary liability,”

let him teach them;

why did Rabbi Oshaya not teach them among the principal categories of damage?

The Gemara answers:

He already taught it through the unpaid bailee and the borrower.

Rabbi Oshaya already taught among the principal categories of damage the unpaid bailee, whose liability includes as well a form of theft and robbery, such as when the bailee claimed that the deposit had been stolen from him and was exempt from payment, and afterward the theft was found in his possession, in which case the bailee’s law with regard to payments is the law of a thief [as explained below, 63b]; and likewise, if the bailee falsely claimed that it had been robbed, his law is that of a robber. Therefore, Rabbi Oshaya did not teach them separately.

But according to this, the Gemara asks concerning Rabbi Hiyya:

And Rabbi Hiyya as well—he already taught the unpaid bailee and the borrower!

He too taught the law of the “unpaid bailee,” so why, then, did he teach the law of the thief and the robber again, separately?

The Gemara answers:

He taught monetary property that came into his possession permissibly

Rabbi Hiyya divided and taught the “unpaid bailee,” which includes within it a form of theft and robbery that came into his possession permissibly [for at first the bailee received it into his possession permissibly, for safekeeping, and only afterward, when he lied and claimed that it had been stolen from him, did his law become that of a thief],

and he taught monetary property that came into his possession through prohibition

and he also taught the thief and the robber, whose theft and robbery came into their possession through prohibition.