Babylonian Talmud: Tractate Baba Kamma

Folio 116a

that the whole of it must immediately be poured out, whereas Beth Hillel maintain that it could be used for sprinkling purposes. R. Ishmael b. Jose¹  said: I will suggest a compromise: [If it was already] in the house it might be used for sprinkling purposes, but [if it was still] in the field it would have to be poured out entirely,²  or as some say: If it was old it might be used for sprinkling purposes, but if it was fresh it should be poured out entirely. They rejoined to him:³  A compromise based on an independent⁴  reasoning cannot be accepted.⁵

BUT IF HE SAID [AT THE OUTSET], I AM GOING TO RESCUE YOUR HONEY AND I EXPECT TO BE PAID THE VALUE OF MY WINE, THE OTHER HAS TO PAY HIM [ACCORDINGLY]. But why should the other party not say to him [subsequently], 'I am merely jesting with you'?⁶  Surely it was taught: If a man running away from prison came to a ferry and said to the boatman, 'Take a denar to ferry me across,' he would still have to pay him not more than the value of his services.⁷  This shows that he is entitled to say, 'I was merely jesting with you'? Why then also here should he not be entitled to say to him, 'I was merely jesting with you'? — The comparison is rather with the case dealt with in the concluding clause: But if he said to him, 'Take this denar as your fee for ferrying me across,' he would have to pay him the sum stipulated in full. But why this difference between the case in the first clause and that in the second clause? — Said Rami b. Hama: [In the second clause] the other party was a fisher catching fishes from the sea in which case he can surely say to him, 'You caused me to lose fish amounting in value to a zuz.'⁸

SO ALSO IF A RIVER SWEPT AWAY HIS ASS AND ANOTHER MAN'S ASS, HIS ASS BEING WORTH A MANE HAND THE OTHER'S ASS TWO HUNDRED ZUZ, etc. [Both cases] had to be [stated]. For had we only the former case,⁹  we might think that it was only there where a stipulation was made that the payment should be for the whole value [of the wine], since its owner sustained the loss by direct act of his own hands,¹⁰  whereas here¹¹  where the loss came of itself¹²  it might have been said that [in all circumstances] he would have no more than the value of his services. So also if we had had only the second case, we might have thought that it was only here,¹¹  where no stipulation was made, that he would have no more than the value of his services, since the loss came of itself,¹²  whereas in the other case,¹³  where the loss was sustained through his own act,¹⁰  I might have said that even where no stipulation was made the payment would have to be for the whole value [of the honey]. It was therefore necessary [to state both cases].

R. Kahana asked Rab: What would be the law if the owner [of the inferior ass] went down to rescue the other's ass [with the stipulation of being paid the value of his own ass], and it so happened that his own ass got out by itself? — He replied: This was surely an act of mercy towards him on the part of Heaven.¹⁴  A similar case happened with R. Safra when he was going along with a caravan. A lion followed them¹⁵  and they had every evening to abandon to it [in turn] an ass of each of them which it ate. When the turn¹⁶  of R. Safra came and he gave it his ass, the lion did not eat it. R. Safra immediately hastened to take possession of it. Said R. Aha of Difti to Rabina: Why was it necessary for him to take possession of it again? For though he had [implicitly] abandoned it, he surely had abandoned it only with respect to the lion, whereas with respect to anybody else in the world he certainly had not abandoned it at all.¹⁷  He replied: R. Safra did it as an extra precaution.¹⁸

Rab asked Rabbi: What would be the law where he went down to rescue [the more valuable ass] but did not succeed in rescuing it? — He replied: Is this a question? He would surely have no more than the value of his services. An objection was raised: 'If a labourer was hired

1. Who lived in a much later period than Shammai and Hillel; Rashi, Pes. 20b.
2. For while bringing it home it might inadvertently be partaken of.
3. I.e., his contemporaries; Rashi, Pes. ibid.
4. Lit., 'third'.
5. Having no basis in either of the conflicting views, but constituting an opinion by itself, and thus being in principle opposed to both of them. V. Pes. 21a.
6. To urge you to help.
7. Yeb. 106a.
8. I.e., the denar you offered me; in the case in the Mishnah the same argument holds good, hence the same ruling.
9. Regarding the wine and honey.
10. As he directly spilt his wine.
11. In the case of the two asses.
12. I.e., his ass was drowned by accident.
13. Regarding the wine and honey.
14. Which should therefore not affect in any way the stipulation made that the full amount be paid.
15. To guard them against robbers and beasts.
16. Lit., time.
17. Why then was it necessary for him to take possession of it again? The ass would in any case have remained his.
18. So that there should be no argument in the matter.

to bring cabbage or damascene¹  plums for a sick person, and by the time he arrived he found him already dead or fully recovered, his hire²  would have to be paid in full'?³  — He replied: What comparison is there? In that case the messenger performed his errand,⁴  whereas here the messenger did not perform his errand.⁵

Our Rabbis taught: If a caravan was travelling through the wilderness and a band of robbers threatened to plunder it, the contribution to be paid by each [for buying them off] will be apportioned in accordance with his possessions [in the caravan,] but not in accordance with the number of persons there.⁶  But if they hire a guide to go in front of them, the calculation will have to be made also⁷  according to the number of souls in the caravan,⁸  though they have no right to deviate from the general custom of the ass-drivers.⁹  The ass-drivers are entitled to stipulate that one who loses his ass should be provided with another ass.¹⁰  [If, however, this was caused] by negligence, they would not have to provide him with another ass; where this was done without any negligence [on his part], he is provided with another ass. If he said: Give me the money for the ass and I will [buy it myself and]¹¹  in any case guard the asses,¹²  we do not listen to him.¹³  Is this not obvious? — No; this is a case where he possesses another ass, and where therefore I might have said that since he has in any case to guard it¹⁴  [his request should be complied with]: we are therefore told that there is a difference between guarding one and guarding two.¹⁵

Our Rabbis taught: If a boat was sailing on the sea and a gale arose threatening to sink it so that it became necessary to lighten the cargo, the apportionment [of the loss of each passenger] will have to be made according to the weight of the cargo¹⁶  and not according to the value of the cargo, though they should not deviate from the general custom of mariners.⁹  The mariners are entitled to stipulate that one who loses his boat should be provided with another boat. If this was caused by his fault, they would not have to provide him with another boat, but if without negligence he is provided with another boat. So also if he sailed to a place where boats should not go [and thus lost his boat] they would not have to provide him with another one.¹⁷  But is this not obvious? — No; [there may be a place where] during Nisan¹⁸  they generally sail one rope's length away from the shore, whereas during Tishri¹⁸  they sail two ropes' length away from the shore,¹⁹  and it so happened here that during Nisan²⁰  he sailed in the place fit for sailing during Tishri.²¹  In this case it might be argued that [as] he took his wanted course in sailing,²²  [he should still be provided with another boat]; we are therefore told [that this is not the case].

Our Rabbis taught: If a caravan was travelling in the desert and a band of robbers threatened to plunder it, and one member of the caravan rose and rescued [some of their belongings], whatever he rescued will go to the respective owners,²³  whereas if he said at the beginning, 'I am going to rescue for myself', whatever he rescued would belong to himself.²⁴  What are the circumstances? If [the other owners were] able to rescue their belongings,²⁵  why even in the second case should the rescued belongings not go to the respective owners?²⁶  If on the other hand no [other owner was] able to rescue [anything],²⁷  why even in the first case should they not belong to the man himself?²⁸  — Said Rami b. Hama: We are dealing here with partners, and [in an emergency] like this,²⁹  a partner may dissolve partnership even without the knowledge of his fellow: so that where he made a stipulation [as in the concluding clause], the partnership has been dissolved,³⁰  whereas if no stipulation was made [as in the first clause] the partnership has not yet been dissolved.³¹  Raba, however, said that we are dealing here with labourers,³²  and the ruling follows the view of Rab, for Rab said that a labourer³³  is entitled to withdraw even in the middle of the day.³⁴  Hence so long as he did not withdraw, [whatever he rescues is regarded] as being in the possession of the employer, whereas after he had already withdrawn it is a different matter altogether,³⁵  as it is written: For unto me the Children of Israel are servants; they are my servants,³⁶  but not servants to servants.³⁷  R. Ashi said: [We are dealing here with a case] where [any other owner would be] able to rescue [the property] only with great difficulty, so that where he [the one who did the work of rescue] declared his intention,³⁸  the belongings rescued will go to him, whereas where he did not declare his intention they will go to their respective owners.³⁹

MISHNAH. IF A MAN ROBBED ANOTHER OF A FIELD AND BANDITTI [MASSIKIN]⁴⁰  CONFISCATED IT, IF THIS BLOW BEFELL THE WHOLE PROVINCE⁴¹  HE MAY SAY TO HIM, 'HERE IS THINE BEFORE THEE'; BUT IF IT WAS CAUSED THROUGH THE ROBBER HIMSELF HE WOULD HAVE TO PROVIDE HIM WITH ANOTHER FIELD.

GEMARA. R. Nahman b. Isaac said: One who reads here MASSIKIN⁴²  is not in error, while one who reads 'Mezikin' is similarly not in error: One who reads 'Mezikin' is not in error as it was written:⁴³  In the siege and mazok [straitness];⁴⁴  so also he who reads MASSIKIN is not in error as it is written: The locust [shall] consume,⁴⁵  which is translated,⁴⁶  'The sakkah [sack-carrier]⁴⁷  shall inherit⁴⁸  it.'

BUT IF IT WAS CAUSED THROUGH THE ROBBER HIMSELF, HE WOULD HAVE TO PROVIDE HIM WITH ANOTHER FIELD. How are we to understand this? If only this field was confiscated, while all the other fields were not confiscated, could this not be derived from the earlier clause which says: IF THIS BLOW BEFELL THE WHOLE PROVINCE [HE MAY SAY TO HIM 'HERE IS THINE BEFORE THEE'], which implies that if this was not so, the ruling would be otherwise? — No; it is necessary to state the law where he [did not actually misappropriate the field but merely] pointed it out⁴⁹  [to the banditti to confiscate it]. According to another explanation we are dealing here with a case where e.g. heathens demanded of him⁵⁰  with threats to show them his fields and he showed them also this field among his own. A certain person showed [to robbers] a heap of wheat that belonged to the house of the Exilarch. He was brought before R. Nahman and ordered by R. Nahman to pay. R. Joseph happened to be sitting at the back of R. Huna b. Hiyya, who was sitting in front of R. Nahman. R. Huna b. Hiyya said to R. Nahman: Is this a judgment or a fine? — He replied: This is the ruling in our Mishnah, as we have learnt: IF IT WAS CAUSED THROUGH THE ROBBER HIMSELF HE WOULD HAVE TO PROVIDE HIM WITH ANOTHER FIELD, which we interpreted to refer to a case where he showed [the field to bandits]. After R. Nahman had gone, R. Joseph said to R. Huna b. Hiyya: 'What difference does it make

1. [G]; Lat. 'Damascina'.
2. Which owing to the need of the occasion was above the ordinary; cf. Tosaf. a.l.
3. Tosef. B.M. VII 2. Does this not prove that even where the efforts proved unsuccessful the payment must still be in full?
4. As he indeed fetched the required objects.
5. For he did not rescue the ass.
6. For the robbers came originally for the possessions and not necessarily for souls.
7. 'Also' is missing in J. B.M. VI, 4.
8. For a guide is vital also to safeguard life; as to possessions cf. the difference in reading between the text here and J. B.M. VI, 4.
9. Tosef. B.M. VII; cf. B.B. 7b, 8b.
10. I.e., a kind of insurance.
11. [So MS.M.]
12. In accordance with the custom that each ass-driver had in turn to look after all the asses together with his own.
13. For he might not buy another ass and thus have no longer any interest in looking after the other asses. Tosef. B.M. XI.
14. Together with the asses of the other drivers.
15. As when he has two asses of his own among those of the other drivers he will put more heart into his work.
16. Though one might be asked to throw away gold and another a similar weight of copper.
17. Tosef. B.M. XI, 12.
18. V. p. 25, nn, 6-7.
19. On account of the shallowness of the water soon after the hot summer period.
20. When there is an abundance of water in the river.
21. I.e., far away from the shore; for a transposed text v. Shittah Mekubezeth.
22. He should not be considered careless.
23. Lit., 'to the common fund' which will indeed be so according to the interpretation of Rami b. Hama which follows on.
24. Tosef. B.M., VIII.
25. In which case they certainly did not give them up.
26. For how did he acquire title to them.
27. In which case they surely gave up any hope of retaining their belongings and thus abandoned them, as supra p. 686.
28. As he became possessed of ownerless property.
29. Where a loss of property is imminent.
30. He may thus retain the property he rescued to the extent of his part.
31. And whatever he rescued will go to the common fund.
32. Who were hired by the caravan and who rescued the threatened property.
33. I.e., a day labourer.
34. B.M. 10a.
35. For then he works for himself and since the owners were unable to rescue their property it became abandoned so that when rescued by the labourer he acquired title to it.
36. Lev. XXV, 55.
37. Unlike in the case of the Hebrew servant of Ex. XXI, 2 the employer has no right in rem with reference to his labourers; cf. Kid. 16a and also 22b.
38. I.e., that he does it for himself; and as the owner who was present there neither contradicted him nor made any exertion to rescue it, the property became ownerless.
39. For under such circumstances there could not be traced there any implied Renunciation on their part.
40. [H] V. B.M. (Sonc. ed.) p. 576, n. 5.
41. I.e., they confiscated other's fields too.
42. Cf. supra p. 694, n. 12.
43. Deut. XXVIII, 57.
44. I.e., oppression.
45. Ibid. 42.
46. In Targum Onkelos a.l.; cf. however Rashi there.
47. So Jast. The name of a locust or a beetle; v. Ta'an. 6a; according however to R. Tam it refers to the enemy.
48. V. Isa. XXXIV, 11.
49. Lit., 'showed it'.
50. I.e., of an actual robber.