Gittin 49a (מט.) — the Talmud in English

Here—

in the dispute between Rabbi Yishmael and Rabbi Akiva—

with what are we dealing

in what circumstance is the matter stated?

For example, if

the damaged party’s field was worth

the best-quality land of the damaged party, like

the field of

the inferior land of the one who caused the damage.

Rabbi Yishmael holds: From the

land

of the damaged party is assessed;

we assess the “best of his field” stated by the Torah to mean that the one who caused the damage pays with land considered equivalent to the damaged party’s best-quality land, even though the one who caused the damage has land superior to it.

And Rabbi Akiva holds: From the

fields

of the one who caused the damage is assessed.

Therefore, if the damaged party’s best-quality land was equal in value to the one who caused the damage’s inferior land, according to Rabbi Yishmael the one who caused the damage pays from his inferior land, since it is “the best of the damaged party.” But Rabbi Akiva is more stringent and says: The verse did not come to be lenient with him,

to exempt him with the damaged party’s best-quality land, which is equivalent to the one who caused the damage’s inferior land; rather, it came to obligate him to pay from his own best-quality land.

The Gemara explains the reason for the dispute between the tannaim:

What is the reason of Rabbi Yishmael,

who says that the damaged party’s property is assessed? Because Rabbi Yishmael derived this through a gzera shava. For it is stated: “And he sends his animal, and it grazes in another’s field; he shall pay from the best of his field and the best of his vineyard.”

“It is stated”

For it is stated: “He shall send out his animal and it shall graze in another’s field; he shall pay from the best of his field and the best of his vineyard.”

“field”

with regard to the damage

above, “and it consumes the field of another,”

“and it consumes the field of another,”

and it is stated

“field”

with regard to payment

below

at the end of the verse: “He shall pay from the best of his field.” And we can derive through a gzera shava:

What

just as

“field”

mentioned above

is the field

of the injured party,

since the verse is speaking about it,

so too

“field”

mentioned below,

with regard to payment for the damage from the best of his field, is speaking about the field

of the injured party,

as the verse is speaking about it. We thus learn that he pays from the best field of the injured party.

And Rabbi Akiva held:

This gzera shava cannot be derived, since the verse

“He shall pay from the best of his field”

is speaking of “his field,”

from which he is paying,

that of the one who is paying, namely, the one who caused the damage; and a gzera shava cannot come and uproot the verse.

And Rabbi Yishmael

said to you:

The gzera shava is effective, and

also

the verse is effective.

That is, we derive both from the gzera shava and from the plain implication of the verse.

The gzera shava is effective

it is effective

as we said

for what we stated: that the one who caused the damage pays from the superior-quality land of the injured party, and that is indeed the primary rule governing his obligation.

And

so

the verse is effective—

which implies the best land of the one who caused the damage—to teach us

that if he has

if he has

the one who caused the damage

superior-quality land and inferior-quality land, and his inferior-quality land

that of the one who caused the damage

is not equal to the superior-quality land of the injured party

is not worth as much as the injured party’s superior-quality land, and it is impossible to fulfill “the best of the injured party,”

then

at that point

he pays him

the one who caused the damage

from the best

of his own.

We learned in a beraita:

Rabbi Akiva says: The verse came only to enable the injured parties to collect from superior-quality land.

And by a kal va-chomer, for sacred property

which collects from superior-quality land:

And we explain:

What

in what manner is this stated

“by a kal va-chomer, for sacred property?”

If you say

if it is stated

that our ox gored an ox belonging to sacred property

our ox—the ordinary person’s ox—gored an ox belonging to sacred property, and Rabbi Akiva said concerning this that he pays from the best land.

This cannot be said, because one who damages sacred property is exempt from payment for its damage and pays nothing at all, as it is stated [Exodus 21:35]: “If one man’s ox injures his fellow’s ox and it dies, they shall sell the live ox and divide its money. Or it becomes known that it is a goring ox; he shall surely pay ox for ox, and the dead one shall be his.”

“Ox”

“of his fellow”

the Merciful One said,

and the verse excludes “his fellow”:

but not an ox belonging to sacred property,

for one who damages the property of sacred property is entirely exempt!?

Rather,

perhaps you will say that the beraita refers

to

a person who

says: “It is incumbent upon me to give a maneh for the maintenance of the Temple,”

and he became obligated through his statement; and it was concerning this that Rabbi Akiva said, “a kal va-chomer for sacred property,” meaning

that the treasurer comes

of sacred property

and takes

collects

from superior-quality land.

This too cannot be said, because

this person would be

nothing more than

a creditor

to sacred property,

and a creditor

has no

law

other than

to collect from intermediate-quality land!

And if you would say, to resolve this, that

you might establish it as follows:

Rabbi Akiva holds

that every

creditor

of an ordinary person

collects from superior-quality land, like

the

injured parties,

whose law is to collect from superior-quality land, and from the case of an ordinary person’s creditor one can derive by a kal va-chomer the case of sacred property’s creditor.

The difficulty still remains:

there is room to refute

the kal va-chomer and say:

What is distinctive about an ordinary creditor

of an ordinary person,

that

we find that

his power is stronger

than that of an ordinary person

with regard to the injured parties,

for he pays him in accordance with the damage he suffered; therefore, it is logical that his creditor should pay him from superior-quality land.

Can you say that with regard to sacred property, where

we find that

its power is weaker with regard to the injured parties,

since one who damages sacred property is exempt; therefore, even its creditor should not pay sacred property from superior-quality land!?

And we conclude:

In fact,

as we originally said,

that our ox gored an ox belonging to sacred property.

And

as for what you found difficult—that one who damages sacred property is exempt—we can say to you:

Rabbi Akiva—

who derived by a kal va-chomer that the owner of the ox must pay, and from superior-quality land—

holds in accordance with Rabbi Shimon ben Menasya.

As it is taught in a beraita: Rabbi Shimon ben Menasya says: An ox belonging to sacred property that gored an ordinary person’s ox is exempt,

because we expound “his fellow’s ox” to mean that he pays for an ordinary person’s ox, but not for an ox belonging to sacred property.

And

however, an ox

belonging to an ordinary person that gored an ox belonging to sacred property, whether

the goring ox

was innocuous, or whether

it was

forewarned,

its owner

pays full damages,

for the Torah exempted an innocuous ox from half-damages only when it damaged “his fellow’s ox,” and not an ox belonging to sacred property.

And concerning this Rabbi Akiva said: “A kal va-chomer for sacred property.” For Rabbi Yishmael holds like the Sages, who exempt one who damages sacred property, whereas Rabbi Akiva holds him liable to pay, and he pays from superior-quality land, by a kal va-chomer from an ordinary person.

And we refute this:

If so—that Rabbi Yishmael and Rabbi Akiva disagree in the dispute between the Sages and Rabbi Shimon ben Menasya—

that is, that they disagree only concerning whether one who damages sacred property is liable—

from where

do you know

that they also disagree whether the injured party’s superior-quality land is like the one who caused the damage’s inferior-quality land,

as well,

do they disagree,

with Rabbi Yishmael holding that he pays from the inferior-quality land because it is equivalent to the injured party’s superior-quality land, while Rabbi Akiva holds that he pays from the superior-quality land of the one who caused the damage!?

But

perhaps everyone

—Rabbi Yishmael and Rabbi Akiva—

assesses the matter according to the injured party,

as Rabbi Yishmael said, “the best of the injured party’s field,”

and here,

in the beraita,

they disagree only in the dispute between Rabbi Shimon ben Menasya and the Sages

alone

are they disagreeing:

For Rabbi Akiva holds in accordance with Rabbi Shimon ben Menasya,

that even one who damages an ox belonging to sacred property pays full damages, and from superior-quality land,

while Rabbi Yishmael holds in accordance with the Sages,

and is entirely exempt.

And we answer:

If so,

if the tanna’im did not disagree concerning the interpretation of what is written, “the best of his field,”

what

does Rabbi Akiva mean when he says:

“The verse came,”

which implies that they disagree over the verse itself, and Rabbi Akiva says that the verse came not for this purpose but for that purpose!?

Furthermore,

if what you say is correct—that Rabbi Akiva agrees with the leniency stated by Rabbi Yishmael, that the injured parties collect not from the superior-quality land of the one who caused the damage, but from the superior-quality land of the injured party—then

what is the kal va-chomer for sacred property

that Rabbi Akiva states? Does this not imply that he came to be lenient? Did Rabbi Akiva also come to be lenient with regard to sacred property!?