Gittin 49a — the Talmud in English

Here—

in the dispute between Rabbi Yishmael and Rabbi Akiva—

with what are we dealing

[in what situation is it speaking]?

For example, there was

a field equal to

the best-quality land of the injured party, as

the field

of the inferior land of the one who caused the damage.

Rabbi Yishmael holds: from the

land

of the injured party is the assessment made,

we assess the “best of his field” that the Torah stated as meaning that the one who caused the damage should pay with land considered like the injured 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 the assessment made.

Therefore, if the injured party’s best-quality land was equal to the one who caused the damage’s inferior land, then according to Rabbi Yishmael the one who caused the damage pays from his inferior land, since it is “the injured party’s best.” But Rabbi Akiva is more stringent and says: the verse did not come to make it easier for him,

to exempt him with the injured 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 of the tannaim:

What is the reason of Rabbi Yishmael,

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

“Was 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 damage

above,

“and he lets his animal graze in another’s field,”

and was stated

“field”

with regard to payment

below

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

What

just as

“field”

mentioned above

is a field

of the injured party,

for 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 a field

of the injured party

that the verse is speaking about. And we thereby learn that he pays from the best field of the injured party.

And Rabbi Akiva held:

this gzera shava cannot be learned, for the verse

“He shall pay from the best of his field”

is speaking about “his field”

from which he is paying, [that is, the field] of the one who is paying, namely, the injurer, and the gzera shava cannot come and uproot the verse.

that is, of the one who is paying, namely the one who caused the damage, and a derivation based on identical wording 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 learn from both of them: both from the gzera shava and from the meaning of the verse.

It is effective

[it benefited]

the gzera shava, as we said

[as we stated], that the injurer pays from the superior-quality property of the injured party, and indeed this is the principal rule of his law.

And

so

the verse is effective—

for it implies the best of the injurer—to teach us

that if he has

[if he has]

the injurer

superior-quality and inferior-quality property, and his inferior-quality property

[that of the injurer]

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

[is not worth as much as the superior-quality property of the injured party], and it is impossible to fulfill “the best of the injured party,”

then

at that point

he pays him

the injurer

from the best

of his.

We learned in a beraita:

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

And by a kal va-chomer, to the property of the Sanctuary

which collects from superior-quality property:

And we explain:

what

[in what manner is it stated]

is the kal va-chomer to the property of the Sanctuary?

If you say

[if it is stated]

that our ox gored an ox belonging to the Sanctuary

[our ox—the property of an ordinary person—gored an ox belonging to the Sanctuary], and concerning this Rabbi Akiva said that he pays from the best,

It is impossible to say this, because one who damages property belonging to the Sanctuary is exempt from payment for his damage and does not pay at all, for it is stated [Exodus 21:35]: “When a man’s ox injures his fellow’s ox and it dies, they shall sell the living ox and divide its money. Or it became known that it is a goring ox. He shall surely pay ox for ox, and the dead one shall be his.”

“Ox”

“his fellow”

the Merciful One said,

and the verse excludes “his fellow”:

but not an ox belonging to the Sanctuary,

for one who damages property belonging to the Sanctuary is entirely exempt?!

Rather,

perhaps you will say that the intention of the beraita is

to

a person who

says: It is incumbent upon me to give a maneh for the repair of the House,

and he became obligated through his speech, and it is concerning this that Rabbi Akiva said, “a kal va-chomer to the property of the Sanctuary,” meaning

that the treasurer comes

of the Sanctuary

and takes

[collects]

from superior-quality property.

This too cannot be said, because

this person will not be

this person

anything but a creditor

to the Sanctuary,

and a creditor

has no

law

except

to collect from intermediate-quality property!

And if you should say,

to resolve this, that

Rabbi Akiva holds

that every

creditor

of an ordinary person

collects from superior-quality property, as

just as

injured parties

whose law is to collect from superior-quality property, and from the creditor of an ordinary person one can learn by a kal va-chomer to the property of the Sanctuary.

It is still difficult: but

there is room to refute

the kal va-chomer and say:

What is distinctive about a creditor

of an ordinary person,

for

we find that

his power is stronger

of an ordinary person

with regard to damages,

to pay him when he has been damaged, and therefore it is appropriate that his creditor pay him from the best.

Say concerning the property of the Sanctuary: what is distinctive about it, for

we find that

its power is weakened with regard to damages,

for one who damages the property of the Sanctuary is exempt; therefore, even its creditor should not pay the Sanctuary from superior-quality property?!

See below in the notes, where the Rashba’s question is brought: what basis is there for distinguishing between property belonging to the Most High and an ordinary person, so that we would need to learn it by a kal va-chomer? And consequently, a refutation of the kal va-chomer is likewise inapplicable?! And according to the Meiri’s words in the preceding note, it is resolved, for he did not receive money from the Sanctuary, and if so, a creditor of the Sanctuary is not included by logical reasoning in the law of an ordinary creditor; it is so only because of the kal va-chomer, and thus we properly refute it. And we conclude:

always

as we said initially,

that our ox gored an ox belonging to the Sanctuary.

And

as for what is difficult for you—that one who damages the property of the Sanctuary is exempt—let me say to you:

Rabbi Akiva—

who expounded a kal va-chomer to obligate the owner of the ox to pay, and to pay from the best—

holds in accordance with Rabbi Shimon ben Menasya.

For it was taught: Rabbi Shimon ben Menasya says: An ox belonging to the Sanctuary that gored an ox belonging to an ordinary person is exempt,

for we expound “his fellow’s ox”: it pays, but not an ox belonging to the Sanctuary.

And

however, an ox

belonging to an ordinary person that gored an ox belonging to the Sanctuary, whether

the goring ox

is innocuous, and whether

it is

forewarned,

its owner

pays the full damage,

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

And concerning this Rabbi Akiva said: “a kal va-chomer to the property of the Sanctuary.” For Rabbi Yishmael holds like the Sages, who exempt one who damaged the property of the Sanctuary, whereas Rabbi Akiva obligates him to pay, and he pays from the best, by a kal va-chomer from an ordinary person.

And we refute:

if so

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

from where

[from where do you know]

that they also disagree concerning the superior-quality property of the injured party being like the inferior-quality property of the injurer,

also

they disagree,

for Rabbi Yishmael holds that he pays from the inferior-quality property, since it is like the superior-quality property of the injured party, while Rabbi Akiva holds that he pays from the superior-quality property of the injurer?!

But

perhaps everyone—

Rabbi Yishmael and Rabbi Akiva—

assesses according to the injured party,

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

and here,

in the beraita,

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

only

they disagree:

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

that even one who damages an ox belonging to the Sanctuary pays full damage, and from the best,

and Rabbi Yishmael holds in accordance with the Sages,

and is entirely exempt.

And we answer:

if so,

that the tannaim did not disagree in explaining what is written, “the best of his field,”

what

does Rabbi Akiva mean by saying:

“The verse did not come”,

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

Furthermore,

if it is as you say—that Rabbi Akiva agrees with the leniency stated by Rabbi Yishmael, that the injured parties collect not from the best of the injurer but from the best of the injured party—then

what is the kal va-chomer to the property of the Sanctuary

that Rabbi Akiva states? Does it not imply that he came to be lenient—and did Rabbi Akiva come to be lenient concerning the property of the Sanctuary as well?!