Bava Kamma 6b (ו:) — the Talmud in English

Rather, it can be refuted:

The ox proves it!

An ox moves in the public domain, which is under the authority of the court; nevertheless, if it causes damage, its owner is liable. But this proof too can be refuted:

What is noteworthy about an ox

that it is a more stringent case,

since it is its manner to walk about and cause damage;

can you say the same with regard to these, which cause damage while remaining in their place? This can be answered:

The pit proves it!

One is liable for it even though it does not move about and cause damage.

And the argument returns to its starting point;

the arguments recur, and once again one can refute the proof: What is noteworthy about a pit is that it was created without authorization, and so on.

Rather, it is proven that neither the stringency of the ox causes the law, nor does the stringency of the pit cause the law. Rather, the common denominator between them is that they are ordinarily capable of causing damage, and so on. I too will bring into the rule those things that were made with authorization, that are ordinarily capable of causing damage, are his property, and whose safeguarding is incumbent upon him.

According to Rav Adda bar Ahava, this is the law that the Mishna intended to include when it said, “The common denominator between them,” and so on.

The Gemara brings another answer as to what the Mishna intended to include:

Ravina said:

The “common denominator” stated by the Mishna comes

to include that which we learned—

to include this liability that we learned in a Mishna [Bava Metzia 117b]:

A wall and a tree

belonging to a person

that fell into the public domain and caused damage:

the owners

are exempt from paying

for the damage, since they were victims of circumstances beyond their control. But if

the court gave

the owners

to him

a period of time

to cut down the tree and demolish the wall,

because the court saw that they were liable to fall and instructed him to cut down or demolish them,

and they fell within the period

that it had allotted him

and caused damage, he is exempt,

since he too was a victim of circumstances beyond his control. But if they fell

after the period

that it had allotted him, he is

liable,

since he was negligent.

The Gemara discusses why this liability must be derived through the common denominator:

What are the circumstances?

What case is being discussed?

If he renounced ownership of them,

if the owners renounced ownership of the fallen wall and tree, then

whether according to Rav

or

whether according to Shmuel,

who disagree with regard to an obstacle whose ownership was not renounced, nevertheless, according to everyone, if its ownership was renounced,

that is

a derivative of

a pit,

and its liability can be derived from the law of a pit. For

what difference is there

between this and

a pit whose damage is common,

as it is common for animals to fall into it and be injured,

and

the obligation to

safeguard it is incumbent upon you?

Here too,

these as well,

the wall and tree after they fell into the public domain,

their damage is common,

as it is common for people or animals to trip over them and be injured by them.

And

the obligation to

safeguard them is incumbent upon you. Therefore, just as one is liable for damage caused by a pit, so too one is liable for damage caused by these, and there is no need to derive their liability through the common denominator.

Therefore, just as one is liable for damage caused by a pit, one is liable for damage caused by these objects as well, and there is no need to derive their liability through the common element.

And

if—

if the case concerns something

whose ownership he did not renounce

[which he did not declare ownerless]—nevertheless, it is difficult

for

the method of

Shmuel, who said that all

[even an obstacle whose ownership was not renounced]

we learned from his pit

in order to hold him liable. If so,

this is a pit;

this too is a derivative of a pit, and its liability is derived from the law of a pit, so there is no need to derive it through the common denominator.

The Gemara answers why this liability must be derived through the common denominator:

Actually, it is a case where he renounced ownership of them;

the case is indeed one in which he renounced ownership of them. Nevertheless, their liability must be derived through the common denominator, since

it is not comparable to a pit.

It is not entirely similar to a pit, such that its liability could be derived from the law of a pit, because it can be refuted:

What is noteworthy about a pit is that its initial creation

was

for the purpose of causing damage; can you say the same of these, whose initial creation was not for the purpose of causing damage?

The construction of a wall and the planting of a tree are not undertaken from the outset for the purpose of causing damage.

Rather, it can be answered:

The ox proves it;

an ox that causes damage proves that its owner is liable even though its initial creation was not for the purpose of causing damage.

But this proof too can be refuted:

What is noteworthy about an ox,

that it is a more stringent case,

since it is its manner to walk about and cause damage;

can you say the same of a wall and tree, which cause damage while remaining in their place?

And this can be answered:

The pit proves it!

One is liable for it even though it does not move about and cause damage.

And the argument returns to its starting point;

the arguments recur, and once again one can refute the proof: What is noteworthy about a pit is that its initial creation was for the purpose of causing damage, and so on.

Rather, it is proven that neither the stringency of the law of a pit nor the stringency of the law of an ox causes the law. Rather, it is their common denominator. I too will bring a wall and tree that fell.

According to Ravina, this is the law that the Mishna intended to include when it said, “The common denominator between them,” and so on.

The Gemara continues to explain the words of our Mishna:

We learned in the Mishna:

When it caused damage, the one who caused the damage is liable

to pay compensation for the damage, and so on.

The Gemara discusses the wording of the Mishna:

“The one who caused the damage is liable”!?

This wording is imprecise! Rather, it should have said,

“The one who caused the damage is obligated”!

The tanna of the Mishna should have stated, “The one who caused the damage is obligated.”

Rav Yehuda said in the name of Rav: This tanna

[the tanna of our Mishna]

was a Jerusalemite, for he taught in an abbreviated manner,

as the people of Jerusalem were accustomed to using concise language ; therefore, he used “liable” in place of “obligated.”

The Gemara continues to explain the words of our Mishna:

We learned in the Mishna: When it caused damage, the one who caused the damage is liable

to pay compensation for the damage

from the best land.

The Gemara explains the law requiring payment from the best land:

The Sages taught

in a beraita: With regard to what the Torah said concerning payments for damages:

“He shall pay from the best of his field and the best of his vineyard”

[Exodus 22], the intention is that he pay from

the best field of the injured party, and

from

the best vineyard of the injured party.

That is, if the animal ate any particular vegetable bed, even one of low value, the value of the injured party’s better vegetable bed is assessed: how much it is worth with its produce and how much it would be worth without the produce, and he pays the injured party the difference,

the statement of Rabbi Yishmael.

Rabbi Akiva says:

The damage is assessed only according to the bed that the animal ate, and not according to a better bed, because

the verse did not come

to impose upon him payment greater than the damage he caused,

but to collect payment for damages from the superior-quality land.

Thus, if he has no money and wishes to pay with land, he must give the injured party the finest land in his possession.

Rabbi Akiva adds:

And it follows by a kal va-chomer

that one must pay from superior-quality land when he pays

to the sacred property.

The Gemara will later explain which payment to sacred property is under discussion.

The Gemara discusses Rabbi Yishmael’s statement:

And Rabbi Yishmael—

what is the reason for his statement? Granted, if

he ate a superior-quality bed

[a vegetable bed full of produce and worth a great deal], it is certainly reasonable that

he pays for a superior-quality bed,

as he ate. But if

he ate an inferior-quality bed

[a sparse vegetable bed worth little],

he pays for a superior-quality bed?!

Why should he pay more than the damage he caused?!

The Gemara answers:

Rav Idi bar Avin said: What are the circumstances here?

The case is one

where, for example, he ate a vegetable bed among

the vegetable beds,

as the field contained both superior-quality and inferior-quality beds, and the ox ate one bed,

and we do not know

[it is unclear to us]

whether it ate an inferior-quality bed or whether it ate a superior-quality bed. In this case, the Torah innovated

that he

pays

the value of the vegetable bed based on the doubt, as though it were a

superior-quality bed.

plot, because of the uncertainty.

But the Gemara rejects this answer:

Rava said: And what if we knew

that if we knew

that

the vegetable bed was certainly

an inferior-quality one that it ate,

then it

would not

have

paid more than the value of an inferior-quality bed.

If so,

now that we do not know,

now, because we do not know

whether it ate an inferior-quality bed or whether it ate a superior-quality bed,

is it possible to say

that he pays for a superior-quality bed?!

We have an established principle:

one who seeks to extract from another

one who wishes to extract money from his fellow, who is in possession of it,

upon him

rests the obligation of

proof,

to establish the certainty of his claim. Without bringing proof for his claim, he cannot extract the money from his fellow. Since here there is doubt whether the ox ate a superior-quality or inferior-quality bed, the owner of the ox should be liable to pay only according to the value of the inferior-quality bed, since only that much is certain.

Therefore, the Gemara explains Rabbi Yishmael’s statement differently:

Rather, Rav Aḥa bar Yaakov said:

In fact, Rabbi Yishmael also agrees with Rabbi Akiva that one pays only according to the damage he certainly caused.

And what are the circumstances here?

The disagreement in the beraita concerns a case

where, for example, the superior-quality land of the injured party

was equal in value and status

to the inferior-quality land of the one who caused the damage,

like the worst land among the lands of the one who caused the damage.

And it is with regard to this that they disagree;

this is the subject of their dispute:

Rabbi Yishmael maintains

that when the Torah said that the one who caused the damage must pay from “the best,”

we assess according to the injured party’s land,

the Torah’s intention is according to the injured party’s best land. That is, the one who caused the damage must pay with land equal in value and status to the finest land of the injured party. In this case, he pays with the inferior-quality land in his possession, since it is equal in status to the finest land of the injured party.

And Rabbi Akiva maintains that we assess according to the land of the one who caused the damage.

When the Torah said that he must pay from “the best,” it meant the best land of the one who caused the damage: he must pay with the finest land among his lands. Therefore, even in this case he cannot pay with the inferior-quality land in his possession, as Rabbi Yishmael maintains; rather, he must pay with the finest land in his possession.

The Gemara explains the reason for the dispute:

What is the reason for Rabbi Yishmael

—what is Rabbi Yishmael’s rationale?

“Field” is stated below;

at the end of the passage concerning shen and regel, it says, “He shall pay from the best of his field and the best of his vineyard.”

And “field” is stated above;

at the beginning of the passage concerning shen and regel, it says, “When he consumes a field belonging to another.” We derive a gzera shava, “field” from “field”:

Just as the “field” mentioned above,

“When he consumes a field belonging to another,” refers to a

field belonging to the injured party,

because it is the field that suffered the damage,

so too the “field” mentioned below,

at the end of the passage, “the best of his field and the best of his vineyard,” refers to a field

belonging to the injured party,

so that the one who caused the damage pays according to the quality of the injured party’s land.

And

the rationale of

Rabbi Akiva,

who disagrees and maintains that we assess according to the land of the one who caused the damage, is as follows: It says,

“From the best of his field and the best of his vineyard he shall pay.”

The wording “his field—he shall pay” indicates that the reference is to

the best of the one who is paying,

the best of the payer’s field, namely, the best land of the one who caused the damage. Since this is the plain meaning of the verse, a gzera shava cannot come and uproot the meaning of the verse.

The Gemara asks:

And Rabbi Yishmael—

what will he answer? Since this is the meaning of the verse, how can a gzera shava uproot the meaning of the verse?

The Gemara answers:

The gzera shava is effective, and the verse is effective.

Rabbi Yishmael maintains that the gzera shava, which teaches that the assessment is made according to the best land of the injured party, does not nullify the derivation from the plain meaning of the verse, which indicates the best land of the one who caused the damage. Rather, both are true, as the Gemara continues to explain:

The gzera shava is effective, as I said;

the gzera shava of “field” from “field” teaches, as explained, that when the superior-quality land of the injured party is equal in status to the inferior-quality land of the one who caused the damage, the assessment is made according to the best land of the injured party, and the one who caused the damage pays with his inferior-quality land, which is equal to the injured party’s superior-quality land.

The verse is effective;

the verse “he shall pay from his field,” which teaches that the assessment is made according to the best land of the one who caused the damage, teaches the following case:

For example, the one who caused the damage possesses superior-quality and inferior-quality land,

the one who caused the damage has both fine and poor land,

and the superior-quality land of the injured party is not equal to the superior-quality land of the one who caused the damage, and the inferior-quality land of the one who caused the damage is not equal to the superior-quality land of the injured party —

the superior-quality land of the injured party is not equal in status either to the inferior-quality land or to the superior-quality land of the one who caused the damage. In other words, the one who caused the damage possesses either land superior to the injured party’s best land or land inferior to it. With regard to such a case, the verse teaches

that he pays him from his best land;

in such a case, the one who caused the damage must give his finest land. The innovation is

that he cannot say to him: “Come, collect from the inferior-quality land!”

The one who caused the damage cannot tell the injured party, “Come and collect from the inferior-quality land.”

For without the verse, we would have said that the Torah did not obligate the one who caused the damage to pay with land better than the injured party’s superior-quality land. Since the superior-quality land of the one who caused the damage is better, he would have had to give only his inferior-quality land. The verse therefore teaches that he cannot say this,

but he collects from the best land.

The injured party collects from the finest land of the one who caused the damage.

The Gemara proceeds to the continuation of Rabbi Akiva’s statement:

We learned in a beraita:

Rabbi Akiva says: The verse came only

to

collect payment for damages from consecrated property, and by a kal va-chomer, for consecrated property,

that he pays it from the best-quality property.

The Gemara asks:

What is the kal va-chomer for consecrated property?

To what case involving consecrated property is Rabbi Akiva referring, whose obligation to pay from the best-quality property is derived by a kal va-chomer?

The Gemara explains its question by presenting the difficulty inherent in every possible explanation:

If we say that our ox gored the ox belonging to consecrated property,

if we explain that the case concerns an ox belonging to an ordinary person that gored an ox belonging to consecrated property, and that Rabbi Akiva said in this regard that the owner of the damaging ox must pay the Temple treasury from the best-quality property, this cannot be said, because it is stated in the verse: “When an ox gores a man’s ox,” and we derive from this [below, 37b] that the Torah came to exclude

“the ox of his fellow,” the Merciful One said, and not “an ox belonging to consecrated property.”

The Torah imposed liability only when his ox gored the ox of his fellow, and exempted him when it gored an ox belonging to consecrated property. Therefore, it is impossible to say that Rabbi Akiva is speaking of this case and obligates payment from the best-quality property.

And

rather,

perhaps you will say that Rabbi Akiva’s ruling applies

to one who says: “I hereby obligate myself to give a maneh for the maintenance of the Temple”

and if a person made a vow and obligated himself to give a maneh to consecrated property for the maintenance of the Temple, we derive by a kal va-chomer

that the treasurer comes

and collects from the best-quality property,

meaning that the treasurer who comes to collect the debt owed to consecrated property collects it from the best-quality property. This, too, cannot be said, because

he is nothing more than a creditor.

The consecrated property, which is owed money by this person who obligated himself by his words alone, is no better than an ordinary creditor who is owed money by another person as a result of a loan or the like.