Bava Kamma 5a (ה.) — the Talmud in English

The Gemara returns and asks Rabbi Oshaya:

Below [15b] it is explained that knas payments are payments that the Torah imposed and assigned a fixed amount, or payments that are greater than the amount of the damage, such as double payment and fourfold and fivefold payment for a thief, or payments that are less than the amount of the damage, such as half-damages for a tam ox. But all other payments are monetary payments.

And if so,

false witnesses, which is a monetary matter,

since they are considered liable for monetary payment, as their liability is only in accordance with the money that they plotted to cause him to lose,

let him teach them!

Why, then, did Rabbi Oshaya not teach them among the primary categories of damages?

The Gemara answers: Rabbi Oshaya

agrees

with regard to this law

with Rabbi Akiva,

who maintains that payments imposed upon false witnesses are knas payments,

as he said: They do not

the false witnesses

pay on the basis of

their own

admission.

This implies that he maintains that their liability is a knas, and therefore they are exempt through their admission, in accordance with the law concerning one who admits liability for a knas, who is exempt.

The Gemara returns and raises a question that arises again in light of the answer:

Above [2b], the Gemara asked why Rabbi Oshaya did not distinguish and count separately an ox that damaged an ox and an ox that damaged a person, just as he distinguished with regard to a person who causes damage. It answered that with regard to an ox that causes damage, there is no difference in payment between one that damaged a person and one that damaged an ox; therefore, he counted them as one. However,

if Rabbi Oshaya

agrees with Rabbi Akiva,

the question arises again:

let him teach two forms of ox

—let him count separately two cases involving an ox that causes damage:

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

an ox that damaged a person,

because according to Rabbi Akiva their laws are not identical,

as we learned

[as we learned in the Mishna below, 33a, concerning an ox that gored],

Rabbi Akiva says: Even a tam ox that injured a person

—if a tam ox injured a person, and the person also injured the ox—

pays full damages from the surplus.

If the ox damaged the person to a greater extent than the person damaged the ox, the owner of the ox pays the entire difference between the two amounts of damage, since even a tam ox that injured a person pays full damages.

Thus, according to Rabbi Akiva, there is a distinction between an ox that damaged an ox, for which a tam ox pays only half-damages, and an ox that damaged a person, for which even a tam ox pays full damages. If Rabbi Oshaya maintains the view of Rabbi Akiva, he should have counted them separately.

The Gemara answers:

Rabbi Akiva himself broke the force of his own statement,

for Rabbi Akiva himself weakened the force of his own fist. That is, he weakened the strength and validity of this halakha, that even a tam ox that damaged a person pays full damages:

as it was taught

in a beraita,

Rabbi Akiva says: One might have thought that even a tam ox that injured a person

—which pays full damages like a forewarned ox—

shall pay

this payment even

from the superior property

[that is, from other assets, and not specifically from the body of the damaging ox [unclear: the source text is corrupt here]] like a forewarned ox, and not like a tam ox that damaged an ox, which pays only from the body of the ox]—

the verse states: “According to this law

shall be done to it”

[Exodus 21]. The Gemara [below, 33a] explains that this verse comes to impose liability for an ox that damaged a person. Rabbi Akiva interprets “shall be done to it” as referring to the body of the ox, and the verse teaches us that only

from its body shall he pay,

only from the body of the damaging animal,

and he does not pay from the superior property,

and if the ox is not worth as much as the damage, the injured party suffers the loss.

Since at times he does not pay full damages, but only up to the value of the damaging animal’s body, Rabbi Oshaya therefore did not count it as a separate category.

The Gemara asks Rabbi Oshaya another question:

The rapist, the seducer, and one who defames his wife, which is a monetary matter—let him teach them!

Above [on the preceding page] it was explained that Rabbi Oshaya did not teach damages whose liability is by virtue of a knas. Yet one may still ask why he did not also teach the laws of payment imposed upon the rapist and the seducer. Their liability is indeed fixed by the Torah and is a knas, but nevertheless, they must also pay payments for the humiliation they caused, and payments for the diminished value [the woman is now worth less], and these are monetary payments [as explained in the Mishna, Ketubbot 39a]. If so, why did he not teach them?

The Gemara answers:

Whatever way you look at it,

whatever payment you might say they are liable to pay, Rabbi Oshaya should not have taught them, since

if it is damage,

if it is payment for the damage, then

he already taught it,

as he already taught “damage” separately.

If it is pain,

if it is payment for the pain that the rapist must pay,

he already taught it,

as he already taught “pain” separately.

If it is humiliation,

if it is payment for humiliation,

he already taught it,

as he already taught “humiliation” separately.

If it is diminished value,

if it is payment for diminished value,

that is damage—this is the payment he makes for the damage she suffered, through which she is now worth less. He already taught “damage” separately.

Rather,

what can you say—what remains for you to say, that Rabbi Oshaya should have taught them on account of the

knas—the knas of fifty silver coins paid by the rapist and the seducer, which he did not count? But it was already explained above that Rabbi Oshaya

does not deal with knas payments.

He did not discuss [or teach] payments whose liability is by virtue of a knas.

The Gemara adds another question concerning Rabbi Oshaya:

One who renders impure

his fellow’s ritually pure produce,

one who mixes

teruma with his fellow’s non-sacred produce, forcing him now to sell it cheaply to a koen,

and one who pours

his fellow’s wine as a libation for idolatry, thereby rendering it prohibited for benefit,

which is a monetary matter

—the liability of all these is payment of money, since they caused damage and pay according to the amount of damage they caused—if so,

let him teach them

—why did Rabbi Oshaya not teach them?

The Gemara answers:

Whatever way you look at it,

whatever approach you take regarding Rabbi Oshaya’s position, this is not difficult. For

if damage that is not perceptible is considered damage

—these damages are defined as “damage that is not perceptible,” since the produce remains as it was, and neither the impurity nor the libation is perceptible in it; likewise, the damage to his fellow’s produce in the case of mixing is not perceptible. The amoraim disagreed [Gittin 53a] whether this is considered damage by Torah law, rendering him liable, or whether his liability is only rabbinic, on account of a knas, so that no one will go about rendering his fellow’s pure produce impure.

And if you would say that Rabbi Oshaya maintains that damage that is not perceptible is considered damage by Torah law, then

he already taught damage,

as he already taught “damage” separately, and these cases too are included within damage.

And

if

you would say that he maintains that

damage that is not perceptible is not considered damage

—it is not called damage by Torah law—then

it would be a knas

—the liability exists only by virtue of a knas, so that no one will go about rendering his fellow’s pure produce impure—

and

this has already been explained: Rabbi Oshaya

does not deal with knas payments

—he does not discuss payments whose entire basis of liability is a knas—and therefore he did not teach them.

The Gemara asks whether we can infer from here Rabbi Hiyya’s position concerning damage that is not perceptible:

Shall we say that he maintains

—shall we say, can we infer, that he maintained that

Rabbi Hiyya,

who taught one who renders impure, one who mixes, and one who pours as separate categories,

that damage that is not perceptible is not considered damage,

and as a matter of fundamental law one is not liable for it; his liability exists only by virtue of a knas. Therefore Rabbi Hiyya taught them separately, because they are not included within the general category of damage.

For if it is considered damage

—if we say that Rabbi Hiyya maintains that it is considered damage by Torah law—

he already taught damage

—he already taught “damage” separately [because he also taught all of Rabbi Oshaya’s primary categories]. Why, then, did he teach one who renders impure, one who mixes, and one who pours separately?

The Gemara rejects this: Rabbi Hiyya indeed holds that it is damage by Torah law, and nevertheless he divided them, because

the tanna taught the damage that is discernible—

he taught separately the liability for damage that is discernible in the substance of the object,

and the tanna taught the damage that is not discernible,

and he taught separately the liabilities for damage that is not discernible in the substance of the object, where the harm affects only its use and its value.

The Gemara asks according to Rabbi Hiyya:

Granted, according to our tanna,

according to the tanna of our Mishna, it is understandable why

the tanna stated a number,

why he explicitly stated the number [four] of the primary categories that he intended to enumerate: He wished thereby

to exclude Rabbi Oshaya’s list,

to teach us that he did not intend to enumerate all the primary categories of damages listed by Rabbi Oshaya, but only these.

And

it is likewise understandable why

Rabbi Oshaya stated a number,

enumerating the [thirteen] primary categories that he intended to list: He wished thereby

to exclude Rabbi Hiyya’s list,

to teach us that he did not intend to enumerate all the primary categories of damages listed by Rabbi Hiyya, but only these.

But Rabbi Hiyya’s number,

the number of the twenty-four primary categories of damages that Rabbi Hiyya enumerated,

to exclude what?

What did he intend to exclude by enumerating only these and not the others? Since he enumerated everything, why did he state the number?

The Gemara answers: Rabbi Hiyya stated this number to teach us that he counts only these among the primary categories,

to exclude the informer,

excluding a person who harms another by informing a gentile about his property, whereupon the gentile comes and takes it, in which case the informer is liable to pay for the damage.

And

he likewise came to exclude the

mefagel,

the priest who slaughters a sacrifice with a disqualifying intention, intending to eat it or offer it outside its appointed time [or who slaughters a sin-offering for the sake of a peace-offering, instead of slaughtering it for the sake of a sin-offering], thereby disqualifying the sacrifice, so that the owner must bring another sacrifice [as explained in the opening Mishna of tractate Zevahim]], the priest is liable to pay the owners for what he caused them to lose. Rabbi Hiyya intended to exclude these, in that he does not teach them.

The Gemara asks:

Then let him teach it!

Why does he not also teach the informer?

Granted, the mefagel,

it is understandable why he does not teach it, because

he is not discussing consecrated property,

he is not discussing damages involving consecrated property.

But [

however,]

the informer—

what is the reason he does not teach him?

What is the reason Rabbi Hiyya does not teach the informer among the primary categories of damages?

The Gemara answers:

The informer is different, as his act is speech.

The “informer” is different because he causes damage through speech alone, without an action,

and he does not discuss damage caused through speech.

Rabbi Hiyya does not enumerate damages caused through speech alone, and therefore he does not teach the informer.

But the Gemara challenges this answer:

But the one who gives a bad report involves speech,

for all the damage caused by one who gives a bad report is done through speech alone, by spreading the bad report

, and he teaches it—

Rabbi Hiyya taught it, which shows that he also taught categories of damages caused through speech. The question therefore returns: Why did he not teach the informer? The Gemara answers: The one who gives a bad report is different, because

it is speech that also involves an action—

one who gives a bad report is not liable for one hundred silver pieces unless there was also an action: According to Rabbi Eliezer ben Yaakov, if he had lived with her [Ketubot 46a], and according to Rabbi Yehuda, only if he hired false witnesses. Since this case also involves an action, Rabbi Hiyya enumerated it.

The Gemara asks further:

But conspiring witnesses involve speech without an action;

for conspiring witnesses, who are liable for what they plotted to cause him to suffer, cause the entire damage through their speech alone, and no action on their part is required for their liability,

and he teaches them,

yet Rabbi Hiyya enumerates them. This shows that he also taught categories of damage caused through speech alone.

The Gemara answers:

There,

with regard to conspiring witnesses,

even

though there is no action, the Torah called it an action.

Although in practice the damage was caused through speech alone, nevertheless the Torah regarded their speech as an action,

as it is written: “

And you shall do to him as he plotted to do to his brother” [Deuteronomy 19:19]. Since the Torah used the expression “to do to his brother,” this indicates that it regarded this as an action.

The Gemara asks concerning Rabbi Hiyya and Rabbi Oshaya:

Granted, according to our tanna, he taught primary categories—

the tanna of our Mishna; it is understandable why he called the damages he enumerated “primary categories,” which implies

that there are secondary categories—

that each of them has secondary categories. The designation “primary category” is appropriate only for a damaging force that has secondary categories, and indeed the four primary categories in our Mishna have secondary categories, as was explained earlier in the Gemara.

But [

however,

according to Rabbi Hiyya and Rabbi Oshaya,

who also call all the categories of damages they taught

primary categories,

which implies

that there are secondary categories—

that all these categories of damages that they enumerated also have secondary categories, there is a question:

What are their secondary categories?

What, then, are the secondary categories of the primary categories they enumerated?

The Gemara answers:

Rabbi Abbahu said:

Indeed, these primary categories have no secondary categories. Rabbi Hiyya and Rabbi Oshaya called them “primary categories” to say that

all of them

have the status

of primary categories

with regard

to paying from the best property.

If the damager does not pay the entire amount in money but pays from his real estate, he must pay from the highest-quality land.

The Gemara explains the source of this law:

And

what is the reason,

what is the reason [and what is the source] that payment for all these damages is made from the best property?

It is derived—

they are all derived by means of a gzera shava from the words

“instead of,” “giving,” “he shall pay,” and “money.”

The law of the best property is stated with regard to Tooth and Foot: “From the best of his field and the best of his vineyard he shall pay” [Exodus 22:4], and from them we derive the law for the four primary categories of damages. With regard to these primary categories of damages, the four words mentioned above appear [as follows], and from them we derive by means of a gzera shava the law for all the remaining twenty-four primary categories of damages. “

Instead of” is written with regard to a goring ox: “An ox

instead of

an ox” [Exodus 21:36]. “

Giving” is written with regard to an ox that gored a slave: “Thirty shekels

shall he give

to his master” [Exodus 21:32]. “ He shall pay” is written with regard to Tooth and Foot: “From the best of his field and the best of his vineyard he

shall pay” [

Exodus 22:4]. “

Money” is written with regard to Pit: “He shall return

money

to its owner” [Exodus 21:34]. The Gemara returns to explain the words of the Mishna:

We learned in our Mishna:

“The ox is not like the maveh,”

“and the maveh is not like the ox.”

And the Gemara asks:

“What is he saying?!”

What is the tanna of the Mishna coming to say by this?

And the Gemara answers:

Rav Zevid said in the name of Rava: This is what he is saying:

This was the tanna’s difficulty:

“Let the Merciful One write only one, and let the other be derived from it.”

Why did the Torah write both the ox and the maveh? It would have been sufficient for the Torah to write one of them, from which the other could be derived by the principle of “what we find,” just as the ox, which causes damage, is liable, so too the maveh, which causes damage, should be liable.

He then said: One cannot be derived from the other,

therefore the tanna [returned, added] and said, “The one is not like the other,” for the ox is more stringent. Therefore, had the maveh not been written, it would not have been possible to derive it from the ox.

And the Gemara continues to explain the words of the Mishna:

We learned in our Mishna:

“Nor these two, which possess the spirit of life,”

are like the fire, which does not possess the spirit of life.

And the Gemara asks:

“What is he saying?”

What is the tanna of the Mishna coming to say by this?

The Gemara answers:

Rav Mesharsheya said in the name of Rava: This is what he is saying,

this is what the tanna intended to say: