Babylonian Talmud: Tractate Baba Kamma

Folio 15a

FREE MEN AND PERSONS UNDER THE JURISDICTION OF THE LAW. 'FREE MAN' excludes slaves;¹  'PERSONS UNDER THE JURISDICTION OF THE LAW'²  excludes heathens. Moreover, it was essential to exclude each of them. For if the exemption had been stated only in reference to a slave, we would have thought it was on account of his lack of [legal] pedigree³  whereas a heathen who possesses a [legal] pedigree⁴  might perhaps have been thought not to have been excluded. Had, on the other hand, the exemption been referred only to a heathen, we should have thought it was on account of his not being subject to the commandments [of the Law], whereas a slave who is subject to the commandments⁵  might have been thought not to have been excluded. It was thus essential to exclude each of them independently.

WOMEN ARE ALSO SUBJECT TO THE LAW OF TORTS. Whence is derived this ruling? — Rab Judah said on behalf of Rab, and so was it also taught at the school of R. Ishmael:⁶  Scripture states, When a man or woman shall commit any sin.⁷  Scripture has thus made woman and man equal regarding all the penalties of the Law. In the School of Eleazar it was taught: Now these are the ordinances which thou shalt set before them.⁸  Scripture has thus made woman and man equal regarding all the judgments of the Law. The School of Hezekiah and Jose the Galilean taught: Scripture says. It hath killed a man or a woman.⁹  Scripture has thus made woman and man equal regarding all the laws of manslaughter in the Torah. Moreover, [all the quotations] are necessary: Had only the first inference¹⁰  been drawn, [I might have said that] the Divine Law exercised mercy towards her so that she should also have the advantage of atonement, whereas judgments which concern as a rule man who is engaged in business, should not include woman. Again, were only the inference regarding judgments to have been made, we might perhaps have said that woman should also not be deprived of a livelihood, whereas the law of atonement should be confined to man, as it is he who is subject to all commandments, but should not include woman, since she is not subject to all the commandments.¹¹  Moreover, were even these two inferences to have been available, [we might have said that] the one is on account of atonement and the other on account of livelihood, whereas regarding manslaughter [it might have been thought that] it is only in the case of man, who is subject to all commandments, that compensation for the loss of life must be made, but this should not be the case with woman. Again, were the inference only made in the case of compensation for manslaughter, [it might have been thought to apply] only where there is loss of human life, whereas in the other two cases, where no loss of human life is involved, I might have said that man and woman are not on the same footing. The independent inferences were thus essential.

THE PLAINTIFF AND DEFENDANT ARE INVOLVED IN THE PAYMENT.

It has been stated:¹²  The liability of half-damages¹³  is said by R. Papa to be civil, whereas R. Huna the son of R. Joshua considers it to be penal.¹⁴  R. Papa said that it is civil, for he maintains that average cattle cannot control themselves not to gore.¹⁵  Strict justice should therefore demand full payment [in case of damage].¹⁶  It was only Divine Law that exercised mercy [and released half payment] on account of the fact that the cattle have not yet become Mu'ad. R. Huna the son of R. Joshua who said that it is penal, on the other hand maintains that average cattle can control themselves not to gore.¹⁷  Justice should really require no payment at all.¹⁸  It was Divine Law that imposed [upon the owner] a fine [in case of damage] so that additional care should be taken of cattle.

We have learnt: THE PLAINTIFF AND THE DEFENDANT ARE INVOLVED IN PAYMENT. That is all very well according to the opinion which maintains that the liability of half-damages is civil. The plaintiff [who receives only half his due] is thus indeed involved in the payment. But according to the opinion that the liability of half-damages is penal, in which case the plaintiff is given that which is really not his due, how is he involved in the payment? — This may apply to the loss caused by a decrease in the value of the carcass [which is sustained by the plaintiff].¹⁹  'A decrease in the value of the carcass'! Has not this ruling been laid down in a previous Mishnah: 'To compensate for the damage'²⁰  implying that the owners [plaintiffs] have to retain the carcass as part payment?²¹  — One Mishnah gives the law in the case of Tam whereas the other deals with Mu'ad. Moreover these independent indications²²  are of importance: For were the ruling laid down only in the case of Tam, it might have been accounted for by the fact that the animal has not yet become Mu'ad, whereas in the case of Mu'ad I might have thought that the law is different; if on the other hand the ruling had been laid down only in the case of Mu'ad, it might have been explained as due to the fact that the damage is compensated in full, whereas in the case of Tam I might have thought that the law is otherwise. The independent indications were thus essential.

Come and hear: What is the difference [in law] between Tam and Mu'ad? In the case of Tam, half-damages are paid, and only out of the body [of the tort-feasant cattle], whereas in the case of Mu'ad full payment is made out of the best of the estate.²³  Now, if it is so [that the liability of half-damages is penal] why not mention also the following distinction, 'That in the case of Tam no liability is created by mere admission,²⁴  while in the case of Mu'ad liability is established also by mere admission'? — This Mishnah stated [some points] and omitted [others]. But what else did it omit that the omission of that particular point should be justified?²⁵  — It also omitted the payment of half-kofer [for manslaughter].²⁶  The absence of half-kofer [for manslaughter], however, is no omission, as the Mishnah may be in accordance with R. Jose the Galilean who maintains that Tam is not immune from half-liability for kofer [for manslaughter].²⁷

Come and hear:

1. From giving evidence,
2. V. supra p. 36. n. 3.
3. As his issue were considered the property of the owner, there being no parental relationship between him and them; cf. infra p. 508.
4. Of free descent; cf. Yeb. 62a.
5. Applicable to females; v. Hag. 4a.
6. Cf. Kid. 35a.
7. Num. V, 6. This quotation deals with certain laws of atonement.
8. Ex. XXI. I.
9. Ibid. XXI, 29.
10. Dealing with atonement.
11. Positive precepts prescribed for a definite time or certain periods do not as a rule apply to females; cf. Kid. 29a.
12. Keth. 41a.
13. Paid for damage done by (Horn of) Tam
14. [H] Kenas, v. Glos.
15. Lit. 'are not presumed to he safe'.
16. As it was the effect of carelessness on the part of the owner.
17. Lit., are presumed to be safe'.
18. Since the owner could not have expected that his cattle would start goring.
19. Who is in this way involved in the payment.
20. Supra p. 36.
21. Supra, p. 42.
22. That it is the plaintiff who has to sustain any loss occasioned by a decrease in the value of the carcass.
23. Mishnah, infra 16b.
24. As penal liabilities are not created by admission; v. supra 5a.
25. V. supra p. 39, n. I.
26. [While a Mu'ad has to pay full compensation (Kofer, v. Glos.) for manslaughter. Ex XXI, 25-30, a Tam does not compensate even by half; v. infra 41b.]
27. infra 26a.

'My ox committed manslaughter on A'; or 'killed A's ox' '[in either case] a liability to compensate is established by this admission.¹  Now does this Mishnah not deal with the case of Tam?²  — No, only with Mu'ad. But what is the law in the case of Tam? Would it really be the fact that no liability is established by admission?³  If this be the case, why state in the concluding clause, 'My ox killed A's slave,'⁴  no liability is created by this admission?⁵  Why indeed not indicate the distinction in the very same case by stating: 'the rule that liability is established by mere admission is confined to Mu'ad, whereas in the case of Tam no liability is created by mere admission'?⁶  — The Mishnah all through deals with Mu'ad.

Come and hear: This is the general rule: In all cases where the payment is more than the actual damage done, no liability is created by mere admission.⁵  Now does this not indicate that in cases where the payment is less than the damage,⁷  the liability will be established even by mere admission?⁸  — No, this is so only when the payment corresponds exactly to the amount of the damages. But what is the law in a case where the payment is less than the damage? Would it really be the fact that no liability is established by admission? If this be the case, why state: 'This is the general rule: In all cases where the payment is more than the actual damage done, no liability is created by mere admission'?⁹  Why not state simply: 'This is the general rule: In all cases where the payment does not correspond exactly to the amount of the damages …' which would [both] imply 'less' and imply 'more'?¹⁰  This is indeed a refutation.¹¹  Still the law is definite that the liability of half-damages is penal. But if this opinion was refuted, how could it stand as a fixed law? — Yes! The sole basis of the refutation is in the fact that the Mishnaic text⁹  does not run '… where the payment does not correspond exactly to the amount of the damages'. This wording would, however, be not altogether accurate, as there is the liability of half-damages in the case of pebbles¹²  which is, in accordance with a halachic tradition, held to be civil. On account of this fact the suggested text has not been adopted.

Now that you maintain the liability of half-damages to be penal. the case of a dog devouring lambs, or a cat devouring hens is an unusual occurrence,¹³  and no distress will be executed in Babylon¹⁴  — provided, however, the lambs and hens were big; for if they were small, the occurrence would be usual?¹⁵  Should, however, the plaintiff¹⁶  seize chattels belonging to the defendant, it would not be possible for us to dispossess him of them. So also were the plaintiff to plead 'fix me a definite time for bringing my case to be heard in the Land of Israel,' we would have to fix it for him; were the other party to refuse to obey that order, we should have to excommunicate him. But in any case, we have to excommunicate him until he abates the nuisance, in accordance with the dictum of R. Nathan. For it was taught:¹⁷  R. Nathan says: Whence is it derived that nobody should breed a bad dog in his house, or keep an impaired ladder in his house? [We learn it] from the text, Thou bring not blood upon thine house.¹⁸ MISHNAH. THERE ARE FIVE CASES OF TAM AND FIVE CASES OF MU'AD. ANIMAL IS MU'AD NEITHER TO GORE, NOR TO COLLIDE, NOR TO BITE, NOR TO FALL DOWN NOR TO KICK.¹⁹  TOOTH, HOWEVER, IS MU'AD TO CONSUME WHATEVER IS FIT FOR IT; FOOT IS MU'AD TO BREAK [THINGS] IN THE COURSE OF WALKING; OX AFTER BECOMING MU'AD; OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES; AND MAN,²⁰  SO ALSO THE WOLF, THE LION, THE BEAR, THE LEOPARD, THE BARDALIS [PANTHER] AND THE SNAKE ARE MU'AD. R. ELEAZAR SAYS: IF THEY HAVE BEEN TAMED, THEY ARE NOT MU'AD; THE SNAKE, HOWEVER, IS ALWAYS MU'AD.

GEMARA. Considering that it is stated TOOTH IS MU'AD TO CONSUME … it must be assumed that we are dealing with a case where the damage has been done on the plaintiff's premises.²¹  It is also stated²²  ANIMAL IS MU'AD NEITHER TO GORE … meaning that the compensation will not be in full, but only half-damages will be paid, which is in accordance with the Rabbis who say that for the unusual damage done by Horn [even] on the plaintiff's premises only half-damages will be paid.²³  Read now the concluding clause: OX AFTER HAVING BECOME MU'AD, OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES, AND MAN, which is in accordance with R. Tarfon who said that for the unusual damage done by Horn on the plaintiff's premises full compensation must be paid.²³  Is the commencing clause according to the Rabbis and the concluding clause according to R. Tarfon? — Yes, since Samuel said to Rab Judah, 'Shinena,²⁴  leave the Mishnah alone²⁵  and follow my view: the commencing clause is in accordance with the Rabbis, and the concluding clause is in accordance with R. Tarfon.' R. Eleazar in the name of Rab, however, said:

1. Keth. 41a.
2. And if the liability is created by admission it proves that it is not penal but civil.
3. On account of its being penal.
4. And the fine of thirty shekels has to he imposed; v, Ex. XXI, 32.
5. Keth. 41a.
6. Because it is considered penal.
7. Such, e.g., as in the case of Tam.
8. This proves that the penalty is not penal but civil, and this refutes R. Huna b. R. Joshua.
9. Keth. 41a.
10. Not to be civil.
11. Of the view maintaining the liability of Tam to be penal.
12. Kicked from under an animal's feet and doing damage; cf. supra p. 8.
13. Falling thus under the category of Horn; as supra p. 4.
14. As penal liabilities could be dealt with only in the Land of Israel where the judges were specially ordained for the purpose; Mumhin, v. Glos. s. v. Mumhe; cf. infra. 27b, 84a-b.
15. And would come within the category of Tooth, the payment for which is civil.
16. Even in Babylon.
17. Infra 46a and Keth. 41b.
18. Deut. XXII, 8.
19. These are the five cases of Tam, v. supra p. 3.
20. These are the five cases of Mu'ad, v. Glos.
21. For if otherwise there is no liability in the case of Tooth; cf. Ex. XXII, 4, and supra, 5b.
22. In the commencing clause of the Mishnah.
23. Cf. supra 14a; infra 24b.
24. V. supra p. 60, n. 2.
25. Cf. supra p. 60, n. 3.