Babylonian Talmud: Tractate Baba Kamma

Folio 11a

Let him¹  bring witnesses that it had been torn by sheer accident and free himself. Abba Saul says: Let him²  [in all cases] bring the torn animal³  to the Court. Now is not the following the point at issue: The latter maintains that a decrease in value of the carcass will be sustained by the plaintiff,⁴  whereas the former view takes it to be sustained by the defendant? — No, it is unanimously held that the decrease will be sustained by the plaintiff. Here, however, the trouble of [providing⁵  for bringing up] the carcass [from the pit] is the point at issue,⁶  as [indeed] taught: Others say, Whence [could it be derived] that it is upon the owner of the pit to bring up the [damaged] ox from his pit? We derive it from the text, 'Money shall he return unto to the owner. And the dead beast'…⁷  Abaye said to Raba: What does this trouble about the carcass mean? If the value of the carcass in the pit is one zuz,⁸  whereas on the banks⁹  its value will be four [zuz], is he not taking the trouble [of bringing up the carcass] solely in his own interests? — He [Raba], however, said: No, it applies when in the pit its value is one zuz, and on the banks its value is similarly one zuz. But is such a thing possible? Yes, as the popular adage has it, 'A beam in town costs a zuz and a beam in a field costs a zuz'.

Samuel said: No assessment is made in theft and robbery¹⁰  but in cases of damage;¹¹  I, however, maintain that the same applies to borrowing,¹²  and Abba¹³  agrees with me. It was therefore asked: Did he mean to say that 'to borrowing the law of assessment does apply and Abba agrees with me,' Or did he perhaps mean to say that 'to borrowing the law of assessment does not apply and Abba agrees with me'? — Come and hear: A certain person borrowed an axe from his neighbour and broke it. He came before Rab, who said to him, 'Go and pay [the lender] for his sound axe.'¹⁴  Now, can you not prove hence¹⁵  that [the law of] assessment does not apply [to borrowing]?¹⁶  — On the contrary, for since R. Kahana and R. Assi [interposed and] said to Rab, 'Is this really the law?' and no reply followed, we can conclude that assessment is made. It has been stated: 'Ulla said on behalf of R. Eleazar: Assessment is [also] made in case of theft and robbery; but R. Papi said that no assessment is made [in these cases]. The law is: No assessment is made in theft and robbery, but assessment is made in cases of borrowing, in accordance with R. Kahana and R. Assi.

'Ulla further said on behalf of R. Eleazar: When a placenta comes out [from a woman] partly on one day and partly on the next day, the counting of the days of impurity¹⁷  commences with the first day [of the emergence]. Raba, however, said to him: What is in your mind? To take the stricter course? Is not this a strictness that will lead to lenience, since you will have to declare her pure¹⁸  by reckoning from the first day? Raba therefore said: 'Out of mere apprehension, notice is taken of the first day [to be considered impure], but actual counting commences only with the second day.' What is the new point made known to us? That even a part of an [emerging] placenta contains a fetus. But have we not learnt this elsewhere:¹⁹  'A placenta coming partly out of an animal²⁰  renders [the whole of] it unfit for consumption,²¹  as that, which is a sign of a fetus in humankind is similarly a sign of a fetus in an animal'? — As to this Mishnaic statement I might still have argued

1. I.e., the paid bailee who is defending himself against the depositor.
2. V. p 43 n. 15.
3. [ [H]: [H] being an unaugmented passive participle from the root [H], v. Halpern, B. ZAW, XXX, p. 57.]
4. I.e., when the deposited animal has been torn not by accident, in which case the paid bailee has to indemnify. The torn animal is thus brought at once to the Court to ascertain its value at the time of the mishap.
5. I.e., the expenses involved.
6. Abba Saul maintains that the defendant has to do it, whereas the other view releases him from this.
7. Ex. XXI, 34; the subject of the last clause is thus joined to the former sentence as a second object.
8. A coin; V. Glos.
9. Of the pit.
10. In which case payment must b e made in full for the original value of the damaged article.
11. Where the carcass may he returned to the plaintiff.
12. Treated in Ex. XXII, 13.
13. [I.e., Rab whose full name was Abba].
14. B.M. 96b.
15. When the value of the broken axe vas not taken into account, but full payment for the axe in its original condition was ordered.
16. Since Rab ordered the borrower to pay in full for the original value of the axe.
17. Which are seven for a male child and fourteen for a girl; cf. Lev. XII. 2 and 5.
18. I.e., after the expiration of the 7 or 14 days for a male or female child respectively, when there commence 33 or 66 days of purity for a boy or girl respectively; cf. Lev. ibid. 4-5.
19. Hul. 68a.
20. Before the animal was slaughtered.
21. As it is considered to contain a fetus which when born is subject to the law of slaughtering on its own accord.

that it is quite possible for a part of a placenta to emerge without a fetus, but that owing to a [Rabbinic] decree a part of a placenta is in practice treated like the whole of it;¹  it is therefore made known to us²  that this is not the case.

'Ulla further said on behalf of R. Eleazar: A first-born son who has been killed within thirty days [of his birth] need not be redeemed.³  The same has been taught by Rami b. Hama: From the verse, Shalt thou surely redeem⁴  one might infer that this would apply even when the firstborn was killed within thirty days [of his birth]; there is therefore inserted the term 'but'⁵  to exclude it.

'Ulla further said on behalf of R. Eleazar: [Title to] large cattle is acquired by 'pulling'.⁶  But did we not learn, … by 'delivery'?⁷  — He⁸  follows another Tanna; for it has been taught:⁹  The Rabbis say: Both one and the other¹⁰  [are acquired] by 'pulling'. R. Simeon says: Both one and the other by 'lifting up'.

'Ulla further said on behalf of R. Eleazar: In the case of heirs¹¹  who are about to divide the estate among themselves, whatever is worn by them will [also] be assessed [and taken into account], but that which is worn by their sons and daughters is not assessed [and not taken into account].¹²  R. Papa said: There are circumstances when even that which is worn by the heirs themselves is not assessed. This exception applies to the eldest of the heirs,¹³  as it is in the interest of them all that his words should be respected.

'Ulla further said on behalf of R. Eleazar: One bailee handing over his charge to another bailee does not incur thereby any liability.¹⁴  This ruling unquestionably applies to an unpaid bailee handing over his charge to a paid bailee in which case there is a definite improvement in the care; but even when a paid bailee hands over his charge to an unpaid bailee where there is definitely a decrease in the care, still he thereby incurs no liability, since he transfers his charge to a responsible person.

Raba, however, said: One bailee handing over his charge to another bailee becomes liable for all consequences. This ruling unquestionably holds good in the case of a paid bailee handing over his charge to an unpaid bailee where there is a definite decrease in the care; but even when an unpaid bailee hands over his charge to a paid bailee, where there is definitely an improvement in the care, still he becomes liable for all consequences, as the depositor may say [to the original bailee]: You would be trusted by me [should occasion demand] an oath [from you], but your substitute would not be trusted by me in the oath [which he may be required to take].¹⁵

'Ulla further said on behalf of R. Eleazar: The law is that distraint may be made on slaves.¹⁶  Said R. Nahman to 'Ulla: Did R. Eleazar apply this statement even in the case of heirs¹⁷  [of the debtor]? — No, Only to the debtor himself. To the debtor himself? Could not a debt be collected even from the cloak upon his shoulder?¹⁸  — We are dealing here with a case where a slave was mortgaged,¹⁹  as in the case stated by Raba, for Raba said:²⁰  Where a debtor mortgaged his slave and then sold him [to another person], the creditor may distrain on him [in the hands of the purchaser]. But where an ox was mortgaged and afterwards sold, the creditor cannot distrain on it [in the hands of the purchaser], the reason [for the distinction] being that in the former case the transaction of the mortgage aroused public interest²¹  whereas in the latter case no public interest was aroused.²²

1. On account of mere apprehension, lest no distinction will he made between the emergence of the whole of the placenta and a part of it.
2. In the statement of 'Ulla on behalf of R. Eleazar,
3. Notwithstanding Num. XVIII, 15-16.
4. Ibid. 15.
5. Hebrew 'Ak [H] being a particle of limitation.
6. I.e., by the buyer; v, Glos. s.v. Meshikah.
7. l.e., by the seller handing over the bit to the buyer; Kid. 25b.
8. I.e., 'Ulla on behalf of R. Eleazar.
9. Cf. Kid. 25b and B.B. 86b.
10. I.e. Large and small cattle.
11. Lit., 'brothers'.
12. As it would be a degradation to them to be forced to appear before the court.
13. In charge of the administration of the affairs of the heirs.
14. Cf.B.M. 36a.
15. The original bailee has thus committed a breach of the trust.
16. Cf. B.B. 128a.
17. Who inherited the slaves; v. supra p. 31.
18. Why then speak about slaves?
19. By the debtor who had meanwhile died.
20. Infra 33b and B.B. 44b.
21. So that the purchaser was no doubt aware of it and should consequently not have bought it.
22. So that the purchaser is not to blame.