Bava Kamma 93a — the Talmud in English

“Behold, I am sending an angel before you to guard you on the way,”

thus, when the Children of Israel were at the beginning of their journey, they were considered young and insignificant, and the supervision of God was discernible over them; but in the end they declined in their stature, and an angel led them.

16.

Rava said to Rabbah bar Mari: From where is this matter that people say: After a master of possessions, a strip of fat is drawn

[after a wealthy man—a rich person—a strip of fat is drawn ]. That is, one who goes with a wealthy man also becomes wealthy through him.

He said to him,

Rabbah bar Mari:

as it is written

[Genesis 13:5]:

“And Lot also, who went with Abram, had sheep, cattle, and tents,”

and since it does not say, “And Lot had sheep and cattle,” but rather attaches the matter to his going with Abram, learn from it: his going caused him all this.

Rabbi Hanan said: One who brings judgment against his fellow

to Heaven,

he is punished first,

because this matter causes his sins to be mentioned. For when he brings judgment against his fellow to Heaven, they say in Heaven: His deeds must be examined—whether he is indeed worthy that his fellow should be punished on his account.

As it is stated

[Genesis 16:5]:

“And Sarai said to Abram: My wrong is upon you, let God judge between me and you,”

thus Sarai brought what she had as a legal claim and demand against Abram—to Heaven.

And it is written

[there 23:2]:

“And Abraham came to mourn

for Sarah and to weep for her,”

thus he buried her, because she brought her judgment to Heaven and was punished by dying before him.

And these words

[that they punish one who brings his judgment to Heaven]

apply when he has a legal case on earth,

and since it is possible for him to bring his claim before an earthly court, he is forbidden to bring his judgment to Heaven first; and if he did bring it, he is punished.

Rabbi Yitzhak said: Woe to one who cries out

and brings his judgment to Heaven,

more than to the one against whom the cry is made,

the one against whom they cry concerning a wrong that he committed. For although the one against whom the cry is made is also punished, nevertheless they hasten to punish the one who cries out first, as we find with Sarah.

It was also taught so

[in accordance with the words of Rabbi Yitzhak]: It is written [Exodus 22:21–23]: “You shall not afflict any widow or orphan. If you surely afflict him, for if he surely cries out to Me, I shall surely hear his cry. And My anger will be kindled, and I shall kill you by the sword, and your wives will be widows and your children orphans.”

And that which the verse said, “And My anger will be kindled, and I shall kill you,” in the plural,

one who cries out

[who brings his judgment] to Heaven

and one against whom the cry is made are included; except that they hasten to

punish the

one who cries out more than the one against whom the cry is made,

as we find with Sarah.

And Rabbi Yitzhak said: Let the curse of an ordinary person never be

light in your eyes,

and do not treat it lightly,

for Abimelech cursed Sarah and

even though his curse was not fulfilled against Sarah herself,

it was fulfilled against her descendants.

As it is stated

[Genesis 20:16]:

“Behold, it is for you a covering of the eyes,” he said to her,

Abimelech said to Sarah:

Since you covered

[concealed]

from me and did not reveal

to me

that he was your husband, and you caused me

this

distress, may it be the will [of God] that there be for you

coverings of the eyes

[blindness].

And the curse was fulfilled

against

her descendants

of Sarah,

as it is written

[there 27:1]:

“And it came to pass when Isaac was old that his eyes became dim from seeing.”

Rabbi Abbahu said: Let a person always be among the pursued,

and not among the pursuers, for

behold

there is no

bird more pursued than turtledoves and young pigeons, and

they merited that

the verse permitted them for the altar,

while it did not permit other birds; thus, it is good to be among the pursued.

We learned in the Mishna:

“One who says: Blind my eye,

cut off my hand, break my leg—is liable; [if he does so] on condition that he be exempt—he is liable.”

And we further learned: Tear my garment, break my jug

—liable; [if he does so] on condition that he be exempt—exempt.

Rav Asi bar Hama

[asked]

Rabbah:

What is different in the first clause,

in the case of one who says, “Blind my eye,” and so on, for even if he said to him, “On condition that you be exempt,” he is liable?

And what is different in the final clause,

in the case of one who says, “Tear my garment,” and so on, that if he said to him, “On condition that you be exempt,” he is exempt? Are the cases not equal, and why in the first clause is he liable, while in the final clause he is exempt!?

He said to him,

Rabbah: The reason for the law of the

first clause

is:

because a person does not waive

[a person is not accustomed to waive]

his principal limbs

of his own, therefore, even if he said to him, “On condition that you be exempt,” he said this out of his pain or anger and not with full intent, and therefore, if he injured him, he pays as though he had not said to him, “On condition that you be exempt.”

But the final clause is dealing with a person’s property, and a person is accustomed to waive damage to his property. And if he said to him, “Tear my garment,” and so on, “on condition that you be exempt,” he may do as he told him, and he is not obligated to pay him.

He said

[asked]

to him,

Rav Asi bar Hama said to Rabbah:

But does a person waive his pain

[the pain of his wound]? For just as a person does not waive and grant permission to diminish his limbs, so a person is not accustomed to grant permission to strike him and wound his body. And according to your words, one who says to his fellow, “Strike me and wound me,” is liable, even if he said to him, “On condition that you be exempt.”

If so, one can prove from a beraita not in accordance with your words:

For it was taught

in a beraita: One who says to his fellow:

Strike me

and

wound me, on condition that you be exempt,

he is

exempt.

And just as he is exempt for striking and wounding, so he should be exempt for injury and damage. And again the question arises: What is different in the first clause and what is different in the final clause!?

Rabbah was silent,

and agreed with the words of Rav Asi bar Hama.

He said,

Rabbah asked Rav Asi

“Have you heard anything concerning this,”

have you heard any explanation of this Mishna?

He said to him,

Rav Asi:

Thus said Rav Sheshet:

One who says to his fellow, “Blind my eye,” even if he said to him, “On condition that you be exempt,” he is liable to pay,

because of

the fact that there is in the matter

a blemish

to the

family

of the injured person, and therefore his waiver is not a waiver.

It was stated: Rabbi Oshaya said:

One who says, “Blind my eye,” on condition that he be exempt, is liable,

because of the blemish to the family.

Rava

said: Because a person does not waive his principal limbs.

But concerning his pain, a person sometimes waives it.

Rabbi Yohanan said:

A person waives everything, and there is no distinction between injury to his body and loss of his property; in both cases, if he waived it for him, he is exempt.

Except that sometimes

there

are cases where a person says:

“Yes, that

is

he, as

though he had said:

‘No.’

And

so, to the contrary,

there is

a person who says:

“Is it not so that”

behold,

he is like

if he had said:

“Yes.”

How so? If a person said to his fellow: “Cut off my hand.” And the assailant said to him: “On the condition that I be exempt,” meaning: I want you to say to me explicitly, “on the condition that I be exempt.” And the injured man said to him: “Yes.”

If the injured man said this as a question, the assailant is liable, for we interpret his statement as though he had said: “No,” meaning: Do you really think that I want you to injure me and be exempt!? Behold: there is a “yes” that is like a “no.”

But if the injured man said this in a language of acquiescence, the assailant is exempt, for this “yes” is agreement and granting of permission.

And from now on, the question is not difficult: What is different in the first clause and what is different in the latter clause? For the first clause speaks when he answered him “yes” in a language of agreement and acquiescence, and therefore he is exempt; whereas the latter clause speaks when he answered him “yes” as a question, and then—if he injured him—he is liable.

Indeed, the Mishna could have spoken both in the first clause and in the latter clause of a case in which he told him to injure his body; and the Mishna could have spoken both in the first clause and in the latter clause of a case in which he told him to damage his property. For both with regard to injury to his body and with regard to damage to his property, if the injured party granted him permission, he is exempt; and if not, he is liable.

And what the Mishna said in the first clause with regard to injury to his body and in the latter clause with regard to damage to his property was not because there is a difference between them, but the tanna adopted the “ordinary course of the matter”—the way of people—for people are accustomed to waive their property more readily than their bodies.

It was taught

in a beraita

also so,

in accordance with the words of Rabbi Yohanan:

One who says to his fellow:

“Strike me, wound me,”

and his fellow said to him: Say that

“on the condition that I be exempt”

is what you are saying to me,

and he said to him

the injured man:

“Yes.”

If he said this “yes” as a question,

behold, there is a “yes” that is like a “no,”

and he is liable.

And if he said to his fellow:

“Tear my garment,”

and his fellow said to him:

“On the condition that I be exempt,” and the injured party said to him

the injured party:

“No,”

if he said this “no” as a question,

behold

there is

a “no” that is like a “yes.”

We learned in the Mishna that one who says to his fellow

“Break my jug”

or

“Tear my garment” is liable,

but if he said “on the condition that I be exempt,” he is exempt.

And we challenged:

But it was raised against it,

meaning, one can raise a contradiction from our Mishna against what the beraita said:

It is stated in the Torah [Exodus 23:6]: “When a person gives money or vessels to his fellow to guard, and it is stolen from the person’s house,” and so forth; and this is the section concerning custodians. An unpaid custodian is liable if he was negligent in his guarding, and a paid custodian is liable even for theft and loss, and so forth.

And we expound:

“To guard”—

specifically, if he deposited it with him to guard the object, the custodian is liable for negligence,

but not

when he deposited it with him “on the condition

to destroy,”

so that the custodian would have permission to destroy the object.

And likewise: specifically if he deposited it with him on the condition

to guard

is he liable,

but not

if he deposited it with him on the condition

to tear

the object and ruin it.

And likewise: specifically if he deposited it with him on the condition

to guard

the object and return it to the owners,

but not

if he deposited it with him on the condition

to distribute to the poor.

For when the depositor said to the custodian, “Distribute it to the poor,” the money is no longer the depositor’s, and it must be given to the poor. And if the money was lost, the custodian is exempt, since this money is “property without claimants,” for the poor cannot claim it from the custodian, since to anyone who comes he can say: “I will give it not to you but to others.”

And property without claimants has no obligation of payment.

And from the fact that it teaches “to guard” and not “to tear,” it follows that he is not liable for tearing it, even if the owner did not tell him “on the condition that I be exempt.”

And the words of the Mishna are difficult: It is clear from the Mishna that if the owner did not tell him “on the condition that I be exempt,” he is liable for tearing it!?

Said [

he answered]

Rav Huna: It is not difficult!

This

is the Mishna,

where it came into his possession [

the object came into his domain], and therefore he has no permission to tear and break it unless the owner told him: “On the condition that I be exempt.”

This

is the beraita,

where it did not come into his possession,

and while it was still lying on the ground, he tore it; he is exempt, even though the owner told him only: “Tear my garment,” and did not tell him: “On the condition that I be exempt.”

But if he took the garment in his hand, he became a custodian over it and became liable for guarding it, and he is liable for it as long as the owner did not tell him: “On the condition that I be exempt.”

Said [

he asked]

Rabba to him:

Behold, the wording of the verse is: “And when a person gives money or vessels to his fellow

to guard”—

does this imply that it came into his possession!?

For “when he gives” teaches that there was a giving into the hand of the custodian, and even in such a case the verse excluded him from liability if he gave him the object on the condition that he tear it.

And again the words of the Mishna, which makes him liable if he did not tell him “on the condition that I be exempt,” will be difficult against the words of the beraita, which exempts him!?

Rather, said [

he answered]

Rabba:

Indeed,

both this and that,

both the Mishna and the beraita, speak of a case

where it came into his possession.

And

even so

it is not difficult!

This

is the Mishna, which speaks of a case

where it came into his possession under the law of guarding,

and in such a case it is not his intention to waive liability for its damage unless he explicitly said to him: “On the condition that I be exempt.”

And

this,

the beraita speaks of a case

where it came into his possession

from the outset

under the law of tearing,

for if the object was initially handed over to him on the condition that he tear it, the obligations of guarding do not take effect upon him, and he has waived liability for its damage in every manner.

Rav Yosef was a collector and appointee over charity for the poor.

That charity purse that came to Pumbedita [

an incident involving a purse, a sum of money, which came to Pumbedita in order to distribute it to the poor].

Rav Yosef deposited it with a certain man [

Rav Yosef, who was the collector for the poor, instructed that the money be deposited with a certain person].

Was negligent

that person

with it,

with the charity purse;

there came [

they came]

thieves

and

stole it.

Rav Yosef obligated him

that person to pay for the deposit that was lost, since he was negligent in guarding it.

Said [

he asked]

Abaye to him: But

it

was taught

in a beraita:

“To guard,”

if a person deposited an object with his fellow to guard it, and he was negligent with it and it was lost, he is liable to pay,

but not

if he deposited charity funds with him in order

to distribute to the poor,

so why did you make that person liable for payment!?

He said to him

Rav Yosef: This person is not to be exempted on account of “to guard”—but not to distribute, because

the poor of Pumbedita have a fixed allocation,

how much money each one receives per week. If so, this charity money, which is designated for the poor of Pumbedita, is “property with claimants,” and the depositary cannot say to them: “I will give it not to you but to others.”

And “to guard” it is,

behold, this custodian is like all custodians, and he is not to be exempted because the funds are charity funds.

We shall return to you, chapter “The Assailant.”

Mishna: