Bava Kamma 91a — the Talmud in English

It follows -

Rabbi Shimon the Temanite holds -

we require an assessment by the court [

an assessment by the court] to know whether the ox’s goring is capable of causing damage, -

And

therefore:

this [

this ox, whose capital case had preceded and been judged],

once its judgment had been completed for stoning, we do not delay it for an assessment by the court, and we do not afflict its judgment [

once its judgment had been completed for stoning, we do not delay carrying out the sentence until the court assesses it, so as not to afflict its judgment]; and this is what we learned: “If its capital case preceded and was judged, one does not return and judge it in monetary cases,” because the court cannot assess it.

Rava added - he had stated this interpretation in the name of the scholars of the academy of Rav -

and I said to them [

I said to them]:

The matter is not as you think, but

even say

that this

Rabbi Akiva’s

beraita is, who holds that an assessment by the witnesses is sufficient; for the reason of the beraita is not that one does not judge the muad in monetary cases after capital cases because it requires an assessment, but rather,

what are we dealing with here:

For example, [the owner] fled,

and there is nothing from which to pay except the ox, meaning that they rent it out to plow with it, the injured party collects from it, and afterward returns it; therefore, if its capital case had not yet been judged, he does this and afterward judges it and stones it, but if its capital case had already been judged, he can no longer collect from the ox, because one does not afflict its judgment by delaying it for plowing.

And we challenge this:

If it fled,

if so, even

when its capital case had not been judged, how do we judge it in monetary cases without the owner [

how can we judge it without the owner], since one may not impose a liability upon a person in his absence?

And we answer:

the witnesses had been accepted [

the court had accepted witnesses concerning the goring],

and

afterward

he fled.

And we still raise another objection:

in the end -

when its capital case had not yet been judged -

from where does he collect [

from where does the injured party collect]? Surely

from its plowing [

from plowing with it] he collects -

if so, the tam -

which we learned in the beraita, that one does not judge it in monetary cases at all, because one collects only from its body, while it is to be stoned -

let us judge it in monetary cases first [

let them judge it in monetary cases first]

and let him collect from its plowing [

and let him collect from the plowing], since even plowing comes from its body,

and afterward let us judge it [

and afterward let them judge it]

in capital cases!?

Rav Mari, son of Rav Kahana, said:

This indicates,

this beraita teaches us:

plowing is the superior property of its owner [

plowing is the owner’s superior property], meaning: renting the tam ox for plowing, without the injured party collecting it, is not considered payment from its body, but rather as though he collected from the superior property; and a tam does not pay from the superior property. Therefore, in the case of a tam ox, there is no possibility of collecting from it at all.

They raised a dilemma [

the members of the academy were uncertain]:

It is written [Numbers 35:23] concerning one who kills a person unintentionally: “Or with any stone by which he may die [he struck him] without seeing ... and the congregation shall rescue the manslayer from the hand of the blood-avenger, and the congregation shall return him to his city of refuge.” We have learned - from what Scripture said, “by which he may die” - that there is an assessment for death, and they must assess the stone whether it is capable of killing, and only then does the manslayer go into exile -

But there is a doubt: Does

an assessment apply also

to

damages,

and must one assess the object that caused the damage, whether it is capable of causing damage,

or

perhaps

there is no assessment for damages,

but even if the object with which he struck him was not capable of causing damage, he is nevertheless liable?

And the Gemara explains:

Perhaps we say: For killing [

for death], that is, when the victim died,

it is only then that we assess

the lethal object, and we weigh:

with this the soul departs; with this the soul does not depart, [

with this object the soul is capable of departing, whereas with this object it is not capable].

But for damages,

even

any amount

of an object with which he was struck makes him liable, because sometimes a person is injured even by the slightest amount.

Or perhaps: it makes no difference,

and just as one assesses the lethal object, so one assesses the damaging object, and if it is not capable of causing damage, he is not liable.

Come and hear

from a Mishna above, 50b, that there is no assessment for damages:

For we learned: “One who digs a pit in the public domain, and an ox or a donkey fell into it, is liable. Whether one dug a pit, a ditch, a cavern, trenches, or grooves, he is liable. If so, why was ‘pit’ stated [in the Torah]? [To teach]:

Just as a pit that is capable of killing,

that is, one that is deep

ten handbreadths,

for that is the measure of an ordinary pit,

so too every

other one is not liable for them - if the ox died in them - except one

that is capable of killing,

that is, one that is deep

ten handbreadths.

But if

they were -

all those listed in the Mishna -

less than ten handbreadths, and an ox or a donkey fell into it and died,

then the owner of the pit

is exempt

from payment.

However, if

an ox or donkey was injured in it - in a pit and in all the others that are less than ten handbreadths - then the owner of the pit

is liable

to pay.

And the Gemara learns from this Mishna that there is no assessment for damages, because:

Is it not that he counts from the bottom upward,

meaning: beginning with their lesser measure and upward, it is included among the “lesser ones,” for whose damages he is liable,

and this is what he says

the tanna of the Mishna:

From

a depth of

one handbreadth and up to

a depth of

ten, there is no death,

meaning: if the ox died in them, he is not liable, because they are not capable of killing, whereas

there are damages,

meaning: if the ox was injured in them, its owner is liable for payments.

It follows that for damages,

even by

any amount

he is liable, since he is liable for the ox’s damages even for a pit one handbreadth deep;

learn from this: there is no assessment for damages,

because an ordinary pit containing a measure of one handbreadth is not capable of causing damage, and nevertheless he is liable for its damages.

And we reject this:

No, he counts from the top downward,

meaning: the category of “lesser ones,” for whose damages one is liable without an assessment, includes only those whose measure is almost equal to a pit of ten,

and this is what he says:

своего раба, и тот не слышит

If it was ten handbreadths deep,

there is death,

when the ox died in it, he is liable for it.

And if it was

slightly less than ten [

a little],

there are damages, there is no death, and I can always tell you: there is an assessment for damages, and for each and every matter we require [an assessment] according to how it causes damage [

and each pit is not liable for its damages unless it was assessed that it has sufficient depth to cause the particular damage through which the ox was injured].

Come and hear

from a beraita that there is an assessment for damages:

For it was taught:

If he struck

his slave-master his slave

on his eye and blinded him,

or he struck him

on his ear and deafened him,

then the

slave goes out through them to freedom.

поскольку именно сам пострадавший испугал себя, а действие напугавшего было лишь косвенной причиной

But if the master struck the wall

opposite

his slave’s eye,

and he does not see

as a result of this blow, or the master struck the wall

opposite

his slave’s ear,

and he does not hear

as a result of this blow,

the slave does not go out through them to freedom.

And behold,

what is the reason, when he struck opposite his eye does he not go out to freedom? Is it not

because

because we require an assessment,

and when he struck the wall opposite his eye or ear, it was not capable of blinding or deafening him, but his fortune caused the slave to become blind or deaf,

and learn from this

from this beraita:

there is an assessment for damages.

пять видов выплат [которые обязан выплатить всякий причинивший вред] оценивают его —

And we reject this:

No, not as you explained, that he is exempt because of an assessment, but

it is not as you explained, that he is exempt because an assessment is required. Rather,

because we say:

since he is a rational person,

he himself frightened himself [

he frightened himself], he became terrified on his own, because he directed his attention to fear of the sound that suddenly came.

As it was taught:

One who frightens his fellow,

that person is

exempt under human law, but liable under the law of Heaven,

because he himself frightened himself, and this is merely the frightener’s indirect causation

; how so:

A person blew [

shouted]

into

his fellow’s ear,

and deafened him,

that person is

exempt

from payment of damages; but if

he seized his ear and deafened him, he is liable,

for this is an act performed directly with his hands.

Come and hear

from a beraita that there is an assessment for damages:

For it was taught: One who injures his fellow:

five matters [

for which every one who injures is liable]

are assessed -

how much he must pay -

and they give him [

to the injured party]

immediately -

and healing

and loss of work until he recovers,

meaning: the court must immediately assess how much healing, sustenance, and loss of work the injured party will require until he recovers, and for all this they obligate the defendant to give the injured party payment immediately.

They assessed him

to give him healing and loss of work for a certain period,

and he continued to waste away [

for his illness lasted longer]

they give him only according to what they assessed for him.

And likewise if

they assessed him, and he recovered

within the period,

they give him everything that they assessed for him.

This

indicates

from the assessment of healing that

there is an assessment for damages.

And we reject it:

to assess a person, how long this blow will shorten [his life], how much it will shorten [it] [A0003]to assess the injured person, how long he is expected to be ill,

[to assess how long the injured person is expected to remain ill]

there is no need to ask this, for certainly we assess it [A0005]there is no doubt concerning this assessment, for certainly assessments are made.

[there is no doubt that this assessment is made].

For what we ask is: to assess the object, whether this object is capable of causing this damage or not [A0008]to assess the damaging object, whether it is fit to cause this damage; this is what we ask:

[to assess the damaging object, whether it was fit to cause this injury]; this is what the question is about:

what [A0010]whether we assess or not.

[do we make an assessment or not].

Come and hear from a beraita—which was brought above, 90b—in which we learned explicitly that there is an assessment for damages: for it was taught:

a beraita says:

Shimon the Timnite says: Just as a fist is distinctive, being entrusted

to it

to the congregation and to the witnesses

to assess whether it was capable of causing the injury that was caused,

so too every

thing with which he injured him,

that is distinctive, being entrusted to the congregation and to the witnesses,

excluding a stone that was lost from the hands of the witnesses, which the court cannot assess; he is not liable.

Behold,

infer from it

explicitly:

there is an assessment for damages.

And we conclude: indeed,

infer from it

that there is an assessment for damages.

The Master said

in the beraita:

They assessed him

for a certain period of illness,

and he recovered

before the time for which they had assessed him,

they give him all that for which they assessed him—

It supports

this beraita

for Rava, for Rava said:

If they assessed this one for the entire day, and he recovered by midday and is performing work [A0039]one whom they assessed as being ill and refraining from work for an entire day, and he recovered in the middle of the day and is doing his work, nevertheless

[if they assessed him as ill and unable to work for an entire day, but he recovered halfway through the day and is performing his work], nevertheless

we give him

the injured person compensation for loss of work

for the entire day [A0043]they give him compensation for the entire day, because

[we give him payment for lost work time for the entire day], because

it is from Heaven that they took pity upon him [A0045]Heaven took pity upon him,

but at the outset he was indeed expected to refrain from work for an entire day.

We learned in the Mishna:

He spat and the spittle reached him, and he removed

his garment from him, or he uncovered a woman’s head in the marketplace—he gives him four hundred zuz:

Rav Pappa said: They taught

that if he spat and the spittle reached him, he pays—

only

when the spittle reached

him

himself,

but

if the spittle reached

his garment

only,

he does not

the one who spat have to pay him compensation for humiliation.

And we challenge this:

Then let it be like one who humiliated him with words,

for even if the spittle did not reach him himself, this humiliation is no less than humiliation with words, and the one who spat should be liable!?

They say in the West [A0067]they say in the Land of Israel, to resolve this,

[the Sages in Eretz Yisrael say], to explain this

in the name of Rabbi Yose bar Avin:

This says, that is,

from our Mishna—for we learned “and the spittle reached him,” which implies specifically him and not his garment— one may learn:

if he humiliated

a person’s fellow

with words,

then this person is

exempt from anything.

We learned in the Mishna: He gives him four hundred zuz; this is the general rule:

everything is according to his honor:

They raised a question before them

the members of the academy: “

‘Everything is according to his honor,’ which

the first tanna

said: does he

say this leniently—

to ease the burden upon the one who injured him—

say

as he explains and proceeds,

or

perhaps

does he say it stringently?”

And we explain the question:

Does he

say it leniently,

and this is what he says:

there is a poor person who does not wish to take all this [A0098]there is a poor person whose honor is not so great, and he does not take four hundred zuz as compensation for his humiliation, and it turns out that we have eased the burden upon the one who injured such a poor person.

[there is a poor person whose honor is not so great, and he does not receive four hundred dinars as compensation for his humiliation], so in the case of such a poor person we have eased the burden on the one who caused the injury?

Or perhaps he says it stringently,

and this is what he says:

there is a wealthy person who wishes to give him more [A0102]there is a wealthy person whose honor is great, and his compensation for humiliation should be paid to him in an amount greater than four hundred zuz, and it turns out that we have imposed stringency upon the one who injured him.

[there is a wealthy person whose honor is great, and he should be paid more than four hundred dinars as compensation for his humiliation], so we have imposed a greater burden on the one who caused the injury?

Come and hear

that the first tanna says it leniently,

as Rabbi Akiva says

later in the Mishna:

Even the poor among Israel are regarded as though they were free people who had descended from their possessions, for they are the sons of Abraham, Isaac, and Jacob,

and there was an incident involving one who uncovered a woman’s head; she came before Rabbi Akiva, and he obligated him to give her four hundred zuz.”

Behold,

infer from it

that

the first tanna says it leniently,

to teach that there is a poor person for whom they reduce the amount below four hundred zuz. And because according to this interpretation Rabbi Akiva’s words are understandable, and so too why he obligated him to give the woman four hundred zuz: although according to the first tanna it would have been proper to give her less than four hundred zuz, Rabbi Akiva disagrees and holds that even for the poorest person in Israel it is not proper to reduce the amount below four hundred zuz. But if we say that according to the first tanna as well there is no poor person for whom they reduce the amount below four hundred zuz, but there is a wealthy person for whom they add to four hundred zuz, then necessarily Rabbi Akiva came to say that even for the poorest person in Israel they add to four hundred zuz; and if so, Rabbi Akiva should have obligated the one who uncovered her head to pay more than four hundred zuz.

And we conclude: indeed,

infer from it

that the first tanna says it leniently.

We learned in the Mishna:

And there was an incident involving one who uncovered a woman’s head,

she came before Rabbi Akiva, and he obligated him to give her four hundred zuz. He said to him: “Rabbi, give me time,” and he gave him time:

And we challenge:

Do they give time [A0122]do they give the one who injured another time to make payment!?

[do they give the one who caused the injury time to pay]!?

But Rabbi Hanina said: They do not give time for injuries!?

And we answer:

When do we not give him time? For an injury that deprived him of money [A0126]for an injury involving monetary loss to the injured person, they do not give time,

[for an injury involving a monetary loss to the injured person, they do not give time],

but for humiliation, which did not deprive him of money, we do give

time [but for payment of humiliation, where the humiliated person did not suffer monetary loss, they give time].

We learned in the Mishna:

She was standing at the entrance of her courtyard

and he broke the jug before her, which contained an issar’s worth of oil; she uncovered her head, and so on; and she came before Rabbi Akiva, and so on. He said to him: “You have said nothing. One who injures himself, even though he is not permitted [to do so], is exempt; others who injure him are liable.”

And we refute this:

But it was taught

in a beraita:

Rabbi Akiva said to him: You have dived into mighty waters

and brought up a potsherd in your hand,

that is, you exerted yourself to exempt yourself, but brought up nothing in your hand, like potsherds that are fit for nothing. For

a person is permitted to injure himself,

but others are not permitted to injure him; therefore you are liable to pay her for uncovering her head, even though she too uncovered her head, for she is permitted to do this to herself, but you are not.

And now one must raise a difficulty: behold, it is explained in the Mishna that a person is forbidden to injure himself, whereas the beraita says that a person is permitted to injure himself!?

He said [A0147]he resolved it:

[he answered]:

Rava said: It is not difficult!

For the Mishna and the beraita are dealing with two different matters.

Here,

the Mishna,

with injury

and damage, and a person is not permitted to injure himself.

Here,

the beraita,

with humiliation,

where a person is permitted to humiliate himself.

And we are astonished:

But this Mishna is concerning humiliation,

for it is speaking of uncovering the woman’s head, which is not damage but humiliation.