Bava Kamma 93a (צג.) — the Talmud in English

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

This indicates that when the Children of Israel were at the beginning of their journey, they were of lesser stature, yet they were considered important, and God’s providence over them was evident; but ultimately they declined in stature, and an angel guided them.

16.

Rava said to Rabba bar Mari: From where is this matter that people say derived: “After a wealthy man, fat is drawn”?

[After a property owner—a wealthy person—fat is drawn.] That is, one who associates with a wealthy person also becomes wealthy through him.

He said to him:

Rabba bar Mari:

As it is written

[Genesis 13:5]:

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

Since it does not say, “And Lot had flocks, cattle, and tents,” but attributes the matter to his going with Abram, conclude from this that his going with him caused him to acquire all this.

Rabbi Ḥanan said: One who brings a judgment against another person

before Heaven

is punished first,

because this causes his sins to be recalled. When he brings a judgment against another person before Heaven, they say in Heaven: His deeds must be examined—does he indeed deserve that the other person should be punished through him?

As it is stated

[Genesis 16:5]:

“And Sarai said to Abram: My wrong is upon you,

“may the Lord judge between me and you.” Thus, Sarai brought before Heaven the matter in which she had a case and a claim against Abram.

And it is written

[ibid. 23:2]:

“And Abraham came to eulogize

Sarah and to weep for her.”

Thus, he buried her, because she had brought her case before Heaven and was punished by dying before him.

And this applies

[that the one who brings his case before Heaven is punished]

when he has a case in the earthly court,

and since he is able to present his claim in an earthly court, he is forbidden to precede this by bringing his case before Heaven; and if he does so, he is punished.

Rabbi Yitzḥak said: Woe to one who cries out

and brings his case before Heaven

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

the one against whom they cry because of a wrong that he committed. For although the one against whom the cry is directed is also punished, nevertheless they hurry to punish the one who cries out first, as we find in the case of Sarah.

It was taught likewise

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

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

both the one who cries out

[the one who brings his case] before Heaven

and the one against whom the cry is directed are included; but they hurry to

punish the

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

as we find in the case of Sarah.

And Rabbi Yitzḥak 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

although his curse was not fulfilled upon Sarah herself,

it was fulfilled upon 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

[you concealed]

from me and did not reveal

to me

that he was your husband, and caused me

this

distress, may it be God’s will that you have

a covering of the eyes

[blindness].

And

the curse

was fulfilled in her descendants,

Sarah’s descendants,

as it is written

[ibid. 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 those who are pursued,

and not among those who pursue, for

indeed

you have no

more pursued among birds than turtledoves and young pigeons, yet

they merited that

the Torah declared them fit for the altar,

while it did not declare other birds fit; thus, it is good to be among those who are pursued.

We learned in the Mishna:

“One who says: Blind my eye,

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

We also learned: Tear my garment or break my jug—

he is liable; [if he does so] on the condition that he will be exempt, he is exempt.

He said

[he asked]

Rav Asi bar Ḥama said to Rabba:

What is different in the first clause,

concerning one who says, “Blind my eye,” and so forth, for even if he says to him, “On the condition that you will be exempt,” he is liable?

And what is different in the latter clause,

concerning one who says, “Tear my garment,” and so forth, for if he says to him, “On the condition that you will be exempt,” he is exempt? Are the cases not equivalent, and why in the first clause is he liable, while in the latter clause he is exempt!?

He said to him,

Rabba: The reason for the law in the

first clause

is:

because a person does not waive

[a person is not accustomed to waive]

his limbs

of his own body. Therefore, even if he said to him, “On the condition that you will be exempt,” he said this out of pain or anger, and not with full intent; consequently, if he injures him, he must pay as though he had not said to him, “On the condition that you will be exempt.”

But the latter clause deals with a person’s property, and a person is accustomed to waive damage to his property. If he says to him, “Tear my garment,” and so forth, “on the condition that you will be exempt,” he may do as he said, and will not be obligated to pay him.

He said

[he asked]

him,

Rav Asi bar Ḥama said to Rabba:

But does a person waive his pain

[the pain of his wound]? Just as a person does not waive and grant permission to remove his limbs, so too a person is not accustomed to grant permission for another to strike him and wound his body. According to your words, one who says to his fellow, “Strike me and wound me,” is liable even if he says to him, “On the condition that you will be exempt.”

If so, a beraita can prove that your words are incorrect:

For it was taught

in a beraita: One who says to his fellow:

“Strike me

and

wound me on the condition that you will be exempt,”

he is

exempt.

Just as he is exempt in the case of striking and wounding, so too he should be exempt in the case of bodily injury and damage. The question therefore returns: What is different in the first clause and what is different in the latter clause!?

Rabba remained silent

and agreed with the words of Rav Asi bar Ḥama.

He said,

Rabba asked Rav Asi:

“Have you heard anything concerning this matter?”

Have you heard any explanation of this Mishna?

He said to him,

Rav Asi:

“This is what Rav Sheshet said:”

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

because

there is in this

a blemish to the

to the

family

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

It was stated: Rabbi Oshaya said:

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

because of the blemish to the family.

Rava

said: Because a person does not waive his limbs.

But sometimes a person waives his pain.

Rabbi Yoḥanan said:

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

Rather, sometimes

there is

a person who says:

“Yes, for

he

is as

though he had said:

‘No.’”

And

vice versa,

there is

a case where a person says:

“No, for

behold,

he is as

though he had said:

“Yes.”

For example: If one person said to another: “Cut off my hand.” And the assailant said to him: “On the condition that I be exempt”—that is, I want you to say explicitly that I will be exempt—and the injured party said to him: “Yes.”

If the injured party said this as a question, the assailant is liable, because we interpret his statement as though he had said: “No”—that is: 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 party said this as an expression of acquiescence, the assailant is exempt, because this “yes” expresses agreement and the granting of permission.

And from now on, the difficulty is no longer raised: What is the difference between the first clause and the latter clause? For the first clause speaks of a case in which he answered “yes” as an expression of agreement and acquiescence, and therefore he is exempt; while the latter clause speaks of a case in which he answered “yes” as a question, in which case, if he injured him, he is liable.

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

And that which the Mishna spoke in the first clause of injuring his body and in the latter clause of damaging his property is not because there is a difference between them. Rather, the tanna adopted the ordinary manner of expression (orḥa de-milta)—the way people ordinarily act—for people are more accustomed to waive their property than to waive injury to their bodies.

It was taught

in a beraita

also so,

in accordance with the statement of Rabbi Yoḥanan:

One who says to another:

“Strike me, wound me,”

and the other said to him: Say

“on the condition that I be exempt”

you are telling me,

and he said to him,

the injured party:

“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 another:

“Tear my garment,”

and the other said to him:

“On the condition that I be exempt,” and he 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 another:

“Break my jug”

or

“Tear my garment” is liable,

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

And we challenge:

But it was contradicted,

meaning, a contradiction is raised from our Mishna against what the beraita stated:

It is stated in the Torah [Exodus 22:6]: “When a man gives his fellow money or vessels to guard, and it is stolen from the man’s house,” and so on. This is the passage concerning bailees; an unpaid bailee is liable if he was negligent in guarding the item, and a paid bailee is liable even for theft and loss, and so on.

And we derive:

“To guard”

—specifically, if he deposited it with him to guard the item, the bailee is liable for negligence,

but not

when he deposited it with him “on the condition

that it be lost,”

so that the bailee has permission to lose the item.

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

“to guard”

is he bound,

but not

if he deposited it with him on the condition

“to tear”

the item and destroy it.

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

“to guard”

the item and return it to its owners,

but not

if he deposited it with him on the condition

“to distribute to the poor.”

For when the depositor told the bailee, “Distribute it to the poor,” the money is no longer the depositor’s, and it must be given to the poor. If the money is lost, the bailee is exempt, since this money is “property without claimants”: the poor cannot demand it from the bailee, because to anyone who comes, the bailee can say: “I will give it not to you, but to others.”

And property without claimants carries 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 you be exempt.”

But this is difficult: Is it not explicit in the Mishna that if the owner did not tell him “on the condition that you be exempt,” he is liable for tearing it?!

He said

[he answered]

Rav Huna: It is not difficult!

Here,

the Mishna,

is where it came into his possession

[the item entered his possession], and therefore he has no permission to tear or break it unless the owner told him: “On the condition that you be exempt.”

Here,

the beraita,

is 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 only told him: “Tear my garment,” and did not tell him: “On the condition that you be exempt.”

But if he took the garment in his hand, he became its bailee and became obligated to guard it, and he is therefore liable for it as long as the owner did not tell him: “On the condition that you be exempt.”

He said

[he asked]

Rabba

: But the wording of the verse is: “When a man gives his fellow money or vessels

to guard”

—does this not imply that it came into his possession?!

For “when he gives” teaches that the item was given into the bailee’s possession, and even in such a case the verse excludes him from liability if the item was given to him on the condition that he tear it.

The words of the Mishna, which imposes liability if he did not tell him “on the condition that you be exempt,” will again conflict with the words of the beraita, which exempts him?!

Rather, Rabba said

[he answered]

Rabba:

Indeed,

both here and there,

both the Mishna and the beraita speak of a case

where it came into his possession.

And

even so,

it is not difficult!

Here,

the Mishna speaks of a case

where it came into his possession as a bailee,

and in such a case he does not intend to waive liability for the damage unless he explicitly told him: “On the condition that you be exempt.”

And

here,

the beraita speaks of a case

where it came into his possession,

from the outset,

for the purpose of tearing,

so that if the item was given to him from the outset on the condition that he tear it, the obligations of a bailee do not apply to him, and he has waived liability for the damage in any event.

Rav Yosef was a collector and administrator of charity for the poor.

There was this charity purse that arrived in Pumbedita

[an incident involving a purse—a sum of money—that arrived in Pumbedita for distribution 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].

The man was negligent

with it,

in it,

in the charity purse;

there came

[there came]

thieves

and

stole it.

Rav Yosef obligated him

to pay for the lost deposit, since he had been negligent in guarding it.

He said

[he asked]

Abaye to him: But

indeed,

it was taught

in a beraita:

“To guard,”

if a person deposited an item with another to guard, and he was negligent with it and it was lost, he is liable to pay,

but not

if he deposited charity funds with him

to distribute to the poor.

Why, then, did you obligate that person to pay?!

Rav Yosef said to him:

There is no basis for exempting this person on the grounds of “to guard” but not “to distribute,” because

the poor of Pumbedita have a fixed allocation,

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

And it is ‘to guard,’

so this bailee is like all other bailees, and he cannot be exempted on the grounds that the money is charity funds.

We shall return to you, chapter “The One Who Injures.”

Mishna: