Bava Kamma 6b — the Talmud in English

Rather, it can be refuted:

The ox proves it!

It walks in the public domain with the authorization of the court; nevertheless, if it causes damage, its owner is liable. But this proof too can be refuted:

What is different about the ox

which is more stringent,

since its way is to walk and cause damage;

can you say this about these, which cause damage in their place? To this one can respond:

The pit proves it!

For one is liable for it even though it does not walk and cause damage.

And the matter returns to its starting point:

the arguments repeat themselves; again one can refute: What is different about the pit, since its creation was done without authorization, etc.

Rather, it is proven that neither this stringency of the ox causes the law, nor the stringency of the pit causes the law; rather, the common factor between them is that their way is to cause damage, etc. I too will bring these that were made with authorization, whose way is to cause damage, and which are your property, with their safeguarding incumbent upon you.

This law is what the Mishna came to include, according to Rav Adda bar Ahava, in what it said: “the common factor between them,” etc.

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

Ravina said: “The ‘common factor’ that the Mishna said comes

to include what we learned

in the Mishna:

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

the wall and the 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 are compelled. But if the court

gave

set]

him

a period of time for the owners

to cut down the tree and demolish the wall,

because they saw that they were inclined to fall, and told him to cut down or demolish them,

and they fell within the period

that it allotted him

and caused damage, he is exempt,

since he too is compelled. But if they fell

after the period

that they allotted him, he is

liable,

because he is negligent.

And the Gemara discusses why this liability is necessary to learn from the common factor:

What are the circumstances?

How is this stated?

If he rendered them ownerless,

if the owners rendered the fallen wall and tree ownerless, then

both according to Rav

and

both according to Shmuel,

who disagree concerning a hazard that was not rendered ownerless, nevertheless, according to everyone, if he rendered it ownerless,

that is

it is a derivative of]

a pit,

and its liability is learned from the pit. For

what is different

in what way is it different]

about a pit, whose damage is prevalent,

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

and

the obligation of

safeguarding it is incumbent upon you;

then

these too,

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

their damage is prevalent,

as it is common for people to stumble over them and be injured by them.

And

likewise the obligation of

safeguarding 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 learn them from the common factor.

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 it concerns a case

where he did not render them ownerless

that he did not render them ownerless], nevertheless it is difficult

for

the method of

Shmuel, who said: all of them

even a hazard that he did not render ownerless]

we learned from his pit

to make him liable; if so,

that is a pit,

this too is a derivative of a pit, and its liability is learned from the pit, and there is no need to learn it from the common factor.

And the Gemara answers why its liability must be learned from the common factor:

In fact, it is a case where he rendered them ownerless,

it truly concerns a case where he rendered them ownerless. Nevertheless, it is necessary to learn their liability from the common factor, since

it is not similar to a pit;

it is not entirely similar to a pit, so that its liability could be learned from the pit, for it can be refuted:

What is different about a pit, since the beginning of its making

was

for damage; can you say this about these, whose beginning of their making was not for damage?

The building of the wall and the planting of the tree were not intended from the outset to cause damage.

Rather, it can be answered:

The ox proves it,

the damaging ox proves that its owner is liable even though the beginning of its making was not for damage.

But this proof too can be refuted:

What is different about the ox

which is more stringent,

since its way is to walk and cause damage;

can you say this about the wall and the tree, which cause damage in their place?

And to this one can answer:

The pit proves it!

For one is liable even though it does not walk and cause damage.

And the matter returns to its starting point,

the arguments repeat themselves, and again one can refute: What is different about the pit, since the beginning of its making was, and so forth.

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

This law is what the Mishna came to include, according to Ravina, in what it said: “the common factor between them,” etc.

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

We learned in the Mishna:

When it caused damage, the damager is obligated

to pay payments for damage, etc.

And the Gemara discusses the wording of the Mishna:

“The damager is obligated”!?

This wording is not precise! Rather,

“the damager is liable” is required!

The tanna in the Mishna should have stated, “the damager is liable.”

Rav Yehuda said in the name of Rav: This tanna

the tanna of our Mishna]

was a Jerusalemite, for he taught in abbreviated language,

as the people of Jerusalem were accustomed to use brief [shortened] language; therefore he stated “obligated” instead of “liable.”

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

We learned in the Mishna: When it caused damage, the damager is obligated

to pay payments for damage

from the best land.

And the Gemara explains the law of payment from the best land:

The Sages taught

in a beraita: What the Torah said concerning payments for damages:

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

[Exodus 22] means that he shall pay from

the best field of the injured party, and

from

the best vineyard of the injured party.

That is, if it ate any flowerbed, even one of lesser value, the better flowerbed of the injured party is assessed: how much it is worth and how much it would be worth without the produce, and he pays the injured party the difference,

the words of Rabbi Yishmael.

Rabbi Akiva says:

the assessment of the damage is made only according to the flowerbed that it ate, and not according to a flowerbed better than it, because

the verse did not come

to make him pay more than what he damaged,

but to collect for damages from the choicest.

For if he has no money and wishes to pay from land, he must give the injured party the choicest land in his possession.

And Rabbi Akiva adds:

And it is a kal va-chomer

that one should pay from choicest land when he pays

to the Temple treasury.

The Gemara will later explain which payment to the Temple treasury is meant.

And the Gemara discusses Rabbi Yishmael’s words:

And Rabbi Yishmael—

what is the reason for his words? Granted, if

it ate a lush one [a flowerbed full of produce and worth much], certainly the law is that it

[a plot full of produce and worth a great deal], it is certainly correct that

pays for a lush one,

according to what it ate. But if

it ate a sparse one [a thin flowerbed worth little],

[a sparse plot worth little],

does it pay for a lush one?!

Why should he pay more than what he damaged?!

The Gemara answers:

Rav Idi bar Avin said: Here, with what are we dealing,

here it concerns

a case where it ate a flowerbed among

the flowerbeds,

there being lush and sparse flowerbeds in the field, and the ox ate one flowerbed,

and we do not know

it is not clear to us]

whether it ate a sparse one or whether it ate a lush one; and here the Torah teaches

. In this case, the Torah teaches

that it pays

the value of a flowerbed

lush by uncertainty.

plot, because of the uncertainty.

But the Gemara rejects this answer:

Rava said: And if we knew,

for if we knew

that

the flowerbed was certainly

sparse that it ate,

then it

would not

have

paid anything but for a sparse one.

If so,

now that we do not know,

now, because we do not know

whether it ate a sparse one or whether it ate a lush one,

it is possible to say

that it pays for a lush one?!

For we have a principle:

one who takes money from his fellow,

one who seeks to take money from his fellow who possesses it,

upon him

rests the obligation of

proof,

to establish the certainty of his claim. Without bringing proof for his words, he cannot take the money from his fellow; and since here it is uncertain whether the ox ate a lush or sparse flowerbed, the law is that the owner of the ox is obligated to pay only according to the value of the sparse flowerbed, for only this is certain that he owes.

Therefore the Gemara explains Rabbi Yishmael’s words in another manner:

Rather, Rav Aḥa bar Yaakov said:

in fact, Rabbi Yishmael too agrees with Rabbi Akiva that he pays only according to what he certainly damaged. And

here, with what are we dealing,

and the disagreement in the beraita concerns

a case where the choicest land of the injured party

the injured party’s superior land was equal in its level of importance

to the lowest-quality land of the damager,

like the worst land among the damager’s lands.

And in this they disagree,

this is their disagreement:

Rabbi Yishmael holds:

what the Torah said, that the damager must pay from land that is “best,”

we assess according to the injured party,

the Torah’s intention is according to the best of the injured party. That is, the damager pays land equal in importance to the injured party’s choicest land. In this case, he pays the lowest-quality land in his possession, since it is equal in importance to the injured party’s choicest land.

And Rabbi Akiva holds that we assess according to the damager,

what the Torah said, that he shall pay from “the best,” means the best of the damager: he must pay with the choicest land among his lands. Therefore, even in this case he cannot pay with the lowest-quality land in his possession, as Rabbi Yishmael maintains, but from the choicest land in his possession.

And the Gemara explains the reason for the dispute:

What is Rabbi Yishmael’s reason,

what is Rabbi Yishmael’s reason?

“Field” is stated below,

at the end of the section of tooth and foot it says, “From the best of his field and from the best of his vineyard he shall pay.”

And “field” is stated above,

at the beginning of the section of tooth and foot it says, “and it consumes in another’s field.” And we learn a gzera shava, “field-field”:

Just as the “field” stated above, “and it consumes in another’s field,” concerns a field

—“and it consumed in another’s field”—refers to the field

of the injured party,

because it is the field that was damaged,

so too the “field” stated below,

at the end of the section, “from the best of his field and from the best of his vineyard,” means the field

of the injured party,

so that the damager pays according to the level of importance of the injured party’s lands.

And

the reason of

Rabbi Akiva,

who disagrees and holds that we assess according to the damager, is: it says,

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

And from the implication of the wording, “his field, he shall pay,” it implies that the intention is

the best of the one who is paying,

the best of the payer’s field, that is, the best of the damager. Since this is the meaning of the verse, the gzera shava cannot 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 does the gzera shava come and uproot the meaning of the verse?

The Gemara answers:

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

Rabbi Yishmael holds that the gzera shava, which teaches that one assesses according to the best of the “injured party,” does not reject the teaching from the meaning of the verse, that the intention is the best of the “damager”; rather, both are true, as the Gemara continues and explains:

The gzera shava is effective, as I said,

the gzera shava “field-field” comes to teach, as explained, in a case where the choicest land of the injured party is equal in importance to the lowest-quality land of the damager: in such a case one assesses according to the best of the injured party, and the damager pays his lowest-quality land, which is equivalent to the best of the injured party.

The verse is effective,

the verse “his field he shall pay,” which teaches us that one assesses according to the best of the damager, comes to teach in this case:

for example, where the damager has choicest and lowest-quality land,

the damager has superior land and inferior land,

and the choicest land of the injured party is not equal to the choicest land of the damager, and the lowest-quality land of the damager is not equal to the choicest land of the injured party —

the injured party’s choicest land is not equal in importance either to the damager’s lowest-quality land or to the damager’s choicest land. That is, the damager has either land superior to the best of the injured party or land inferior to the best of the injured party; and concerning such a case the verse teaches us

that he pays him from his best,

that in such a case the damager must give his choicest land. And the innovation is

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

The damager cannot say to the injured party, “Come and collect from the lowest-quality land.”

For without the verse, we would have said that the Torah did not obligate the damager to pay land more superior than the injured party’s choicest land; and since the damager’s choicest land is superior, he would have had to give only the lowest-quality land. The verse teaches us that he cannot say this,

but rather he collects from the best.

The injured party collects from the damager’s choicest land.

The Gemara moves to the continuation of Rabbi Akiva’s words:

We learned in a beraita:

Rabbi Akiva says: The verse came only

to

collect payment for damages from consecrated property, and by 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,

that is, with regard to which case involving consecrated property is Rabbi Akiva speaking, whose obligation to pay from the best-quality property is learned by means of a kal va-chomer?

And the Gemara explains its question, by bringing the difficulty that exists with every possible explanation:

If we say that our ox gored the ox of consecrated property,

if we explain that it is speaking of our ox [of an ordinary person] which gored an ox of consecrated property, and concerning this Rabbi Akiva said that the owner of the damaging ox is obligated to pay consecrated property from the best-quality property, this cannot be said, for it is stated in the verse, “When an ox gores a man’s ox,” and we expound from this [below, 37b] that the Torah came to exclude:

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

The Torah obligated only when his ox gored the ox of his fellow, and exempted when it gored an ox of consecrated property. Therefore, it is impossible to say that Rabbi Akiva is speaking about this case, in which he obligates him to pay from the best-quality property.

And

rather,

perhaps you will say that Rabbi Akiva’s ruling is

with regard to one who says, “It is incumbent upon me to give one hundred dinars for the Temple maintenance fund,”

that if a person made a vow and obligated himself to give one hundred dinars to consecrated property for the Temple maintenance fund, we learn by means of a kal va-chomer

that there comes

a treasurer and collects from the best-quality property,

that the treasurer who comes to collect his debt to consecrated property collects this from the best-quality property, this too cannot be said, for

it is no more than an ordinary creditor,

for consecrated property, which is a creditor of this person who obligated himself by his speech alone, is no better than an ordinary creditor who is a creditor of his fellow as a result of a loan, and the like.