Bava Kamma 5a — the Talmud in English

And the Gemara returns and asks about Rabbi Oshaya:

It is explained below [15b] that “fine” payments are payments for which the Torah imposed liability and set a fixed amount, or payments that are higher than the amount of the damage, such as double payment and fourfold and fivefold payment by a thief, or that are lower than the amount of the damage, such as half-damage payment for an innocuous ox. But all other payments are monetary payments.

And if so,

conspiring witnesses, which is a monetary payment,

since they are considered liable for a monetary payment, because the liability is only according to the money that they plotted to cause him to lose,

let him teach them!?

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

The Gemara answers: Rabbi Oshaya

holds [

holds in this law]

like Rabbi Akiva,

who holds that the payments of conspiring witnesses are payments of a fine,

for he said: No,

the conspiring witnesses

are paid on the basis of

their own

admission.

And it is implied that he holds that their liability is by the law of a fine, and therefore they are exempt through their admission, as is the law with one who admits to a fine, who is exempt.

And the Gemara returns and asks a question that arises again according to the answer:

The Gemara above [4b] asked why Rabbi Oshaya did not divide and count separately an ox that damaged an ox and an ox that damaged a person, as he divided with regard to a person who causes damage. And it answered that with regard to an ox that causes damage, there is no difference concerning the payment between whether it damaged a person or an ox; therefore, he counted them as one. However,

if Rabbi Oshaya

holds

like Rabbi Akiva,

the question arises again:

let him teach two forms of ox—

that he should count separately two cases of 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 equal,

as we learned [

as we learned in the Mishna below, “The One Who Is Placed,” 33a],

Rabbi Akiva says: Even an innocuous ox that injured a person

if an innocuous ox damaged the person, and the person also damaged the ox,

pays full damage from the surplus.

If the ox damaged the person more than the person damaged it, the owner of the ox pays the entire difference between their damages, since even an innocuous ox that injured a person pays full damage.

And it follows according to Rabbi Akiva that there is a distinction between the law of an ox that damaged an ox, where an innocuous ox pays only half-damage, and an ox that damaged a person, where even an innocuous ox pays full damage. And if Rabbi Oshaya holds like Rabbi Akiva, he should have counted them separately.

And the Gemara answers:

Here Rabbi Akiva broke his fist,

for Rabbi Akiva himself weakened the force of his own position. That is, he weakened the strength and force of this law, that even an innocuous ox that damaged a person pays full damage:

as it was taught

in a beraita,

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

which pays full damage like a forewarned ox

shall pay

this even

from the upper property [

that is, from other places, and not specifically from the body of the ox that caused the damage], like a forewarned ox, and not like an innocuous 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]. And the Gemara [below, 33a] explains that this verse comes to impose liability for an ox that damaged a person. And Rabbi Akiva expounds that “shall be done to it” means to its body, and the verse teaches us that only

from its body shall he pay,

only from the body of the one that caused the damage,

and he does not pay from the upper property,

and if the ox is not worth the value of the damage, the injured party suffers the loss.

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

And since at times it does not pay full damage, but only up to the value of the body of the one that caused the damage, therefore Rabbi Oshaya did not count it as a separate category.

And the Gemara asks Rabbi Oshaya another question:

The rapist, the seducer, and the one who spreads an evil report, which is a monetary payment—let him teach them!

It was explained above [on the preceding page] that Rabbi Oshaya did not teach damages whose liability is by the law of a fine. Yet it must still be asked why he did not also teach the law of the payments of the “rapist” and the “seducer.” Indeed, their liability is fixed by the Torah, and it is a fine, nevertheless, they must also pay payments for “humiliation” that they caused, and payments for “blemish” [for which she is now worth less], and these are monetary payments [as explained in the Mishna, Ketubot 39a]. If so, why did he not teach them?

And the Gemara answers:

Whichever way you look at it,

whatever payment you might say that they contain, Rabbi Oshaya should not have taught them, for

if damage,

if because of the payment for the damage, behold,

he taught it,

he already taught “damage” separately.

If pain,

if because of the payment for the pain that the rapist is liable to pay,

he taught it,

he already taught “pain” separately.

If humiliation,

if because of the payment for humiliation,

he taught it,

he already taught “humiliation” separately.

If blemish,

if because of the payment for the blemish,

that is damage—

this is the payment that he pays for the damage that she suffered, whereby she is now worth less. And he already taught “damage” separately.

Rather,

what can you say—

what remains for you to say, that Rabbi Oshaya should have taught them because of the

fine—

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

does not deal with fines.

He did not speak about payments that are by the law of a fine [he did not teach them].

And the Gemara adds to ask Rabbi Oshaya:

The one who renders impure—

his fellow’s pure objects;

and the one who mixes—

he mixes teruma with his fellow’s non-sacred produce, which he is now forced to sell cheaply to a priest;

and the one who pours

his fellow’s wine for idolatry and thereby forbids it for benefit,

which is a monetary payment—

the liability of all these is a monetary payment, for they caused damage, and they pay according to what they damaged. If so,

let him teach them—

why did Rabbi Oshaya not teach them?

The Gemara answers:

Whichever way you look at it,

in whatever manner you explain Rabbi Oshaya’s position, this is not difficult. For

if damage that is not perceptible is called damage—

these damages are defined as “damage that is not perceptible,” for the produce remained as it was, and neither the impurity nor the pouring is perceptible in it; likewise, the damage in his fellow’s produce is not perceptible in the case of mixing. And the amoraim disputed [Gittin 53a] whether this is considered damage by Torah law, and he is liable, or whether his liability is only by rabbinic law, on account of a fine, so that everyone will not go and render his fellow’s pure objects impure.

And if you say that Rabbi Oshaya holds that damage that is not perceptible is considered damage by Torah law, if so,

he already taught damage,

he already taught damage separately, and these too are included in damage.

And

if—

if you say that he holds

damage that is not perceptible is not called damage—

it is not called damage by Torah law, if so,

it would be a fine—

the liability is only on account of a fine, so that everyone will not render his fellow’s pure objects impure,

and

this has already been explained: Rabbi Oshaya

does not deal with fines—

he does not speak about payments whose entire liability is only on account of a fine, and therefore he did not teach them.

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

Shall we say that he holds [

shall we say, shall we prove, that he holds]

Rabbi Hiyya,

who teaches separately the one who renders impure, the one who mixes, and the one who pours,

that damage that is not perceptible is not called damage

and by the fundamental law one should not obligate him, but his liability is only on account of a fine; therefore Rabbi Hiyya taught them separately, because they are not included in the category of damage.

For if it is called damage—

for if we say that Rabbi Hiyya holds 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 principal categories], and for what purpose did he also teach the one who renders impure, the one who mixes, and the one who pours separately?

The Gemara rejects this: Rabbi Hiyya truly holds that it is damage from the Torah, and nevertheless he divided them, because

the tanna taught the damage that is recognizable—

he taught separately the liability for damage that is recognizable in the body of the object,

and the tanna taught the damage that is not recognizable,

and he taught separately the liabilities for damage in which the damage is not recognizable in the body of the object, and the harm is only in its use and its value.

The Gemara asks Rabbi Hiyya:

Granted, according to our tanna,

according to the tanna of our Mishna it is understandable why

the tanna taught a number,

why did he teach [enumerate] the number [of the four] fathers that he came to enumerate? Because he wished thereby

to exclude Rabbi Oshaya’s [list],

to inform us that he did not come to teach all the fathers of damages that Rabbi Oshaya enumerated, but only these alone.

And

so too it is understandable why

Rabbi Oshaya taught a number,

he enumerated the number [of thirteen] fathers that he came to enumerate, because he wished thereby

to exclude Rabbi Hiyya’s [list],

to inform us that he did not come to teach all the fathers of damages that Rabbi Hiyya enumerated, but only these alone.

But Rabbi Hiyya’s number,

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

to exclude what?

What does he come to exclude by the fact that he enumerated only these and not the others? Since he enumerated everything, for what purpose did he state the number?

And the Gemara answers: Rabbi Hiyya stated this number to inform us that only these he enumerates among the fathers,

to exclude the informer,

to exclude a person who damages his fellow by informing a gentile about his property, and the gentile comes and takes it, in which case the informer is liable to pay for the damage.

And

he also came to exclude the

piggeler,

the priest who slaughters a sacrifice with a piggul intention, to eat it or offer it not in its proper 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], and thereby the priest invalidates the sacrifice, and the owners must bring another sacrifice [as explained in the Mishna at the beginning of Zevahim], the priest is liable to pay the owners for what he caused them to lose. And Rabbi Hiyya comes to exclude them, that he does not teach them.

The Gemara asks:

And let him teach it!

Why does he not also teach the informer?

Granted, the pigguler,

it is understandable why he does not teach it, because

he does not discuss consecrated property,

he does not discuss damages involving consecrated property.

But

[however,]

the informer—

what is the reason that he does not teach it?

What is the reason that Rabbi Hiyya does not teach the informer among the fathers of damages?

And the Gemara answers:

The informer is different, for it is speech.

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

and he does not discuss speech.

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

But the Gemara asks about the answer:

But the one who spreads an evil report, it is speech,

for with one who spreads an evil report all the damage is caused only through speech, when he spread an evil report,

, and he teaches it—

and Rabbi Hiyya taught it; thus he also taught types of damages caused through speech, and the question therefore returns: why did he not teach the informer? The Gemara answers: The one who spreads an evil report is different, for

it is speech in which there is an act—

one who spreads an evil report is liable for one hundred silver pieces only if there was also an act: according to Rabbi Eliezer ben Yaakov, if he had intercourse [Ketubot 46a], and according to Rabbi Yehuda, only if he hired false witnesses. Since there is also an act in this, Rabbi Hiyya therefore enumerated it.

The Gemara asks further:

But conspiring witnesses are speech in which there is no act;

for conspiring witnesses, who are liable for what they plotted to impose upon him, cause the entire damage only through their speech, and no act on their part is required for their liability,

and he teaches them,

and Rabbi Hiyya enumerates them; thus he also taught types of damages caused through speech alone?

And the Gemara answers:

There,

with conspiring witnesses,

even

though there is no act in it, the Torah called it an act,

although in practice the damage is caused only through speech, nevertheless the Torah regarded their speech as an act,

as it is written, “

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

The Gemara asks Rabbi Hiyya and Rabbi Oshaya:

Granted, according to our tanna, the tanna called them fathers—

the tanna of our Mishna: it is understandable why he called the damages that he enumerated by the name “fathers,” from which it follows

that there are derivatives—

that each of them has derivatives. The name “father” is appropriate only for a damaging agent that has derivatives, and indeed the four fathers in our Mishna have derivatives, as was explained earlier in the Gemara.

But

[however,]

for Rabbi Hiyya and Rabbi Oshaya,

who also call all the damages that they taught by the name

“fathers,”

whose meaning is:

that there are derivatives—

that all these damages that they enumerated also have derivatives—there is a question:

what are their derivatives?

What, then, are the derivatives of the fathers that they enumerated?

The Gemara answers:

Rabbi Abahu said:

Indeed, these fathers do not have derivatives. Rabbi Hiyya and Rabbi Oshaya called them “fathers” in order to say that

all of them

have the law

of fathers

with regard to

paying from the best property.

If the damaging party does not pay the entire damage with money, but pays from his real estate, he must pay from the very best land.

And the Gemara explains from where we know this law:

And

what is the reason,

what is the reason [from where do we know] that all these damages are paid from the best property?

It is derived:

they are all derived through a gezerah shavah from the words:

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

The law of the best property is stated with regard to tooth and foot: “He shall pay from the best of his field and the best of his vineyard” [Exodus 22:4], and from them we learn it for the four fathers of damages. And in these fathers of damages these four words are stated [as follows], and from them we learn through a gezerah shavah for all the other twenty-four fathers of damages. “Instead of” is written concerning the goring ox: “An

ox

instead of

an ox” [Exodus 21:36]. “Giving” is written concerning an ox that gored a slave: “Thirty shekels

shall be

given

to his master” [Exodus 21:32]. “He shall pay” is written concerning tooth and foot: “From the best of his field and the best of his vineyard he shall

pay” [Exodus 22:4]. “Money” is written concerning the pit—“

Exodus 22:4]. “

Money

he shall return to its owner” [Exodus 21:34].

The Gemara returns to explain the words of the Mishna:

We learned in our Mishna, the primary compilation of early halakhic teachings:

“The ox is not like the mav'eh,

and the mav'eh is not like the ox.”

The Gemara, the Talmudic discussion of the Mishna, asks:

“What is it saying?”

What is the Mishna’s tanna, a sage of the Mishnaic era, coming to say by this?

The Gemara answers:

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

This is what the tanna intended to say: It was difficult for him:

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

Why did the Torah write about both the ox and the mav'eh? It would have been sufficient for the Torah to write about only one of them, and we could have learned the law of the other from it through the principle of “what do we find,” meaning: Just as the ox, which causes damage, is liable, so too the mav'eh, which causes damage, should be liable.

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

and therefore the tanna went back and added: “This is not like that,” because the ox is more severe. Therefore, had the mav'eh not been written, it could not have been derived from the ox.

The Gemara continues to explain the words of the Mishna:

We learned in our Mishna:

“Nor is this and that, which have a living spirit,”

like fire, which does not have a living spirit.

The Gemara asks:

“What is it saying?”

What is the Mishna’s tanna coming to say by this?

The Gemara answers:

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

this is what the tanna intended to say: