Bava Kamma 55b (נה:) — the Talmud in English

Mishna:

The Mishna before us is divided into two parts:

The first part explains what level of guarding a person must provide for his property so that it will not cause damage. It also explains the obligation of a robber or a bailee to pay in place of the owners for damage caused by the animal.

The second part explains how the damage is assessed.

The first part:

1.

One who brings sheep into a pen,

which is an enclosed place,

and properly locks the door before them,

with a door capable of withstanding an ordinary wind,

and they went out

the animal

and caused damage

through eating or trampling,

he is exempt

the owner of the sheep from paying for the damage, since he guarded them properly, because he was not required to do anything further in order to guard them.

However, if

he did not properly lock the door before them,

meaning that he locked it with a door incapable of withstanding even an ordinary wind,

and they went out and caused damage, he is liable

to pay for the damage, since he was negligent in guarding the sheep.

2.

The wall

of the pen

was breached at night,

for example, the wall collapsed, or the animal dug beneath the wall and caused it to fall.

Or bandits breached

the door of the pen,

and it went out and caused damage.

The owner of the sheep is exempt,

since he had properly locked the pen before them.

3.

If bandits led it out

of the pen, and it went and caused damage,

the bandits are liable

for the damage, because they acquired the animal for themselves through an act of robbery, which obligates them to pay for the damage it causes, as will be explained in the Gemara.

5.

If he left it,

meaning that the owner left the animal

in the sun,

in an enclosed place without a roof, and because of its distress from the heat of the sun the animal broke through the door, which had been properly locked,

or if he handed it over

the animal

to a deaf-mute, an imbecile, or a minor,

and it went out and caused damage, he is liable

the owner of the sheep, since he was negligent in guarding it when he left it in the sun, and its distress from the sun caused it to break out and escape; or when he entrusted it to a deaf-mute, an imbecile, or a minor, since they lack the requisite understanding and are unable to guard it.

6.

If he handed it over to a shepherd, the shepherd enters in his place

of the owner of the sheep with regard to the obligation to guard the animal so that it will not cause damage. Therefore, if it caused damage, the bailee is liable to pay for the damage.

7.

If the animal fell

into

a garden

due to circumstances beyond the owners’ control—for example, it fell from the owners’ roof into the neighbor’s garden, or it fell from a public domain that was higher than the garden into the garden—

and benefited,

by eating the produce of the garden, or by benefiting from falling upon the vegetables, which saved it from striking the ground, although the vegetables themselves were crushed,

it pays for the benefit it received.

The owners pay only according to the benefit the animal received, and not according to the damage it caused.

8.

If the animal descended

into

the ordinary manner

into the garden,

and caused damage, it pays for the damage it caused.

The owners pay the full amount of the damage, since they were negligent in guarding it.

The Mishna now explains in its second part how the damage is assessed in the case of damage to a field.

It is explained in the Gemara that the Sages derived from that which is stated [Exodus 22:4], “And it consumes in another’s field,” that the verse teaches that the damage to the injured field is assessed “on the basis of another field.”

That is, the value of the damage is not assessed in the individual garden bed, by determining the loss represented by what the animal ate or damaged. Rather, the loss is assessed according to the overall value of the field in which the damaged garden bed is located. This assessment of the loss is smaller than an assessment of the garden bed itself, because in terms of the field’s overall value, the loss is not as great as the loss of the garden bed considered by itself.

How does it pay for the damage it caused?

They assess a bet se’a,

an area suitable for sowing a se’a of wheat seeds,

in that field: How much was it worth,

the value of the entire field before this garden bed was eaten from it,

and how much is it worth,

its value now. The owner of the animal pays the difference.

It follows that the one who caused the damage does not pay the full value of the garden bed. For one who purchases a bet se’a of a field while the produce is growing in it reduces the payment only slightly on account of the missing garden bed.

Rabbi Shimon

disagrees with this and

says:

This assessment is made only when the animal ate produce that had not yet fully ripened.

But if it

ate fully ripened produce,

that had completely ripened,

it pays fully ripened produce!

The full amount of the damage.

That is,

if

it ate

a se’a,

it pays

a se’a.

And

if

it ate

two se’ah,

it pays

two se’ah.

Gemara:

The Sages taught: What is “

properly”

and what is “

not properly,”

as mentioned in our Mishna, which states that if he properly locked the door before the sheep he is exempt, while if he did not lock it properly he is liable?

A door capable of withstanding an ordinary wind —

this is “

properly.”

And

one incapable of withstanding an ordinary wind —

this is “

not properly.”

Rabbi Mani bar Patis said: Who is

the

tanna

in our Mishna who maintains that our Mishna, which deals with the liability of a

“forewarned”

animal, maintains

that lesser guarding is sufficient for it?

For our Mishna speaks of sheep, which are animals that cause damage only through eating and trampling, and not through goring. Eating and trampling are forms of damage to which an animal is forewarned from the outset, and nevertheless the Mishna says that it is sufficient to guard them by locking them behind a door capable of withstanding only an ordinary wind—that is, lesser guarding.

Thus, our Mishna maintains that a forewarned animal requires only lesser guarding. And who is the tanna who maintains this?

It is Rabbi Yehuda!

As we learned

at the end of the fourth chapter:

If its owners tied

their ox

with a rope,

or

locked a door before it properly,

with a door capable of withstanding an ordinary wind—that is, lesser guarding—

and it went out

the ox

and caused damage, whether an innocuous ox or a forewarned one,

whether the ox was innocuous or forewarned,

the owners are liable

for the damage it caused,

the words of Rabbi Meir,

who maintains that lesser guarding is insufficient; rather, the owners must provide optimal guarding [that is, tie it with an iron chain or lock a door before it that can withstand even an extraordinary wind].

Rabbi Yehuda says:

If the ox was

innocuous,

then it is

liable,

because an innocuous ox requires optimal guarding. But if the ox was

forewarned,

then it is

exempt,

because lesser guarding is sufficient for a forewarned ox.

As it is stated

with regard to a forewarned ox: “

And its owner did not guard it.”

This implies that he becomes liable for the damage it causes specifically because he did not guard it at all;

but this one is guarded!

For lesser guarding is also considered guarding. [The Gemara there explains this exposition.]

Rabbi Eliezer says: There is no guarding

for a forewarned ox

except a knife!

That is, its owner must slaughter it. Even if he provided optimal guarding and the ox knocked down the wall, escaped, and caused damage, the owner is liable for it.

We have learned that there are three disputes concerning the required guarding of a forewarned ox:

a. According to Rabbi Meir, it requires optimal guarding.

b. According to Rabbi Yehuda, lesser guarding is sufficient.

c. According to Rabbi Eliezer, even optimal guarding is insufficient for a forewarned ox.

Thus, Rabbi Yehuda is the tanna who maintains that lesser guarding is sufficient for a forewarned animal. The Gemara now assumes that all forewarned animals have the same law with regard to the level of guarding required of them; accordingly, our Mishna follows Rabbi Yehuda.

And we reject this:

You may even say

that our Mishna can be understood even according to

Rabbi Meir!

Although he maintains that a forewarned ox requires optimal guarding, this applies only to damage through goring, for which it becomes forewarned after three acts of goring.

But with regard to damage through eating and trampling, which are the subjects of the Mishna and to which an animal is forewarned from the outset,

Rabbi Meir agrees that optimal guarding is not required.

For

eating and trampling are different, as the Torah reduced the guarding required for them.

The Torah explicitly revealed that lesser guarding is sufficient for them.

As Rabbi Elazar said—and some say that it was taught in a beraita: The Torah reduced the guarding required for four matters.

And these are: pit, fire, eating, and trampling.

And where do we find that the Torah reduced the guarding required for them?

a.

Pit —

as it is written: “

If a person opens a pit, or if a person digs a pit, and he does not cover it.”

This implies that he is liable only when he did not cover the pit at all.

If he covered it,

even with merely a cover,

he is exempt

from liability for it. The Torah did not require him to seal the pit with earth [which would be optimal guarding]; it sufficed with merely covering it, that is, with limited guarding.

b.

Fire —

as it is written: “

The one who kindles the fire shall surely pay, the one who kindles the conflagration.”

This implies that he is not liable for damage caused by fire

until he acts

“like one who kindles,”

meaning that the owner was completely negligent in guarding the fire, so that it is as though he himself kindled the conflagration. But if he guarded the fire even slightly, he is not liable for the damage it caused.

c.

Eating —

as it is written: “

When a person consumes a field or vineyard and sends forth his animal,

and it consumes in another’s field.” [The end of the verse speaks of damage through eating, as the Gemara will explain below.] This implies that he is not liable for damage caused by his ox through eating another’s field

until he acts like

“and it consumes,”

meaning that he was negligent in guarding it, so that it is as though he fed it by hand from another’s field. But if he guarded it, even slightly, he is not liable for damage through eating.

d.

Trampling —

as it is written: “

And he sends forth

his animal” [which refers to damage through trampling, as follows]. This implies that he is not liable for damage through trampling

until he acts like

“and he sends forth,”

meaning that he was negligent in guarding it, as though he himself led the animal into another’s field and it damaged the field. But if he guarded it even slightly, he is no longer liable for damage through trampling.

The Gemara explains how we learn from the above verse the laws of damage through eating and trampling.

And it was taught: “

And he sends forth” —

this is trampling.

And similarly it says

in Isaiah [32:20]: “

Those who send forth the foot of the ox and the donkey.”

Thus, “sending forth” is an expression referring to the foot of an animal. “

And it consumes” —

this is eating.

And similarly it says

in I Kings [14:10]: “

As a dung heap is consumed

[the tooth, which is sometimes exposed and sometimes covered; or from the word “dung,” which is produced through eating with the tooth]

to its entirety.”

Thus, “consumption” refers to an animal’s eating.

The Gemara returns and says:

The reason

that he is liable for eating and trampling is

because he acts like

“

and he sends forth” and “

and

it consumes,”

meaning that he was negligent in guarding.

If he did not act

like “and he sends forth” and “and it consumes,” but guarded it slightly,

no!

He is not liable for damage through them.

Rabba said: Our Mishna also supports this precisely,

that lesser guarding is sufficient only for eating and trampling, and not according to Rabbi Yehuda’s view that lesser guarding is sufficient for every forewarned ox.

For it teaches

in our Mishna: “One who brings in

sheep.”

And apparently one could object:

Since we have been dealing with and proceeding with an ox,

as the entire tractate until now has spoken of an ox, if so,

let it teach

also in our Mishna

“ox.”

What is different,

and why did the tanna change the wording by

teaching

in our Mishna

“sheep”

instead of “ox”?

Is it not

because

the Torah reduced the guarding required for them,

for eating and trampling?

And the source for this is:

Is it not

because

here,

with regard to sheep,

goring is not written concerning it?

That is, a sheep does not cause damage through goring; rather,

eating and trampling are what is written concerning it,

and it causes damage only through eating and trampling.

Therefore the Mishna specifically changed its wording here to “sheep,”

and it teaches us this: Eating and trampling

alone require only lesser guarding, because

they are forewarned,

and from the first damage they cause they pay the full amount of the damage. But with regard to goring, to which the animal is not forewarned from the outset, lesser guarding is insufficient; it requires optimal guarding.

And we conclude: Indeed,

you may infer it!

It was taught: Rabbi Yehoshua said: There are four matters for which one who performs them is exempt under human law,

meaning that a court does not obligate him to pay for the damage he caused, since he merely caused the damage indirectly and did not perform it directly, and indirect causation in cases of damage does not create liability under human law,

but he is liable under the laws of Heaven.

And these are:

a.

One who breaches a fence before another’s animal,

and the animal flees and is lost to its owner.

b.

And one who bends down another’s standing grain before a conflagration,

meaning that he tilts the grain toward the fire so that it will burn when the fire reaches it.

c.

And one who hires false witnesses to testify

against another and cause him a loss.

d.

And one who knows testimony on behalf of another

that could help him in monetary litigation

but does not testify for him.

The Master said: One who breaches a fence before another’s animal.

And we inquire about this:

What are the circumstances

in which this is speaking?

If you say

that we wish to say

that it was a sound wall,

meaning, that the wall he breached was sturdy—if so,

he should also be liable in human courts

to pay for the wall that he broke with his own hands?