Babylonian Talmud: Tractate Baba Kamma

Folio 5a

deal with False Evidence, the liability for which is also civil? — He holds the view of R. Akiba who maintains that the liability for False Evidence [is penal in nature and] cannot [consequently]¹  be created by confession.²  But if R. Oshaia follows R. Akiba why does he not reckon Ox as two distinct kinds of damage: Ox damaging chattel and Ox injuring men, for have we not learnt that R. Akiba said: A mutual injury arising between man and [ox even while a] Tam is assessed in full and the balance paid accordingly?³  This distinction could, however, not be made, since it is elsewhere⁴  taught that R. Akiba himself has qualified this full payment.⁵  For R. Akiba said: You might think that, in the case of Tam injuring man, payment should be made out of the general estate; it is therefore stated, [This judgment] shall be done unto it,⁶  to emphasise that the payment should only be made out of the body of the Tam and not out of any other source whatsoever.

Why did R. Oshaia omit Rape, Seduction and Slander, the liabilities for which are also civil?⁷  — What particular liability do you wish to refer to? If for actual loss, this has already been dealt with under Depreciation; if for suffering, this has already been dealt with under Pain; if for humiliation, this has already been dealt with under Degradation; if again for deterioration, this is already covered by Depreciation. What else then can you suggest? The Fine.⁸  With this [type of liability] R. Oshaia is not concerned.

Why then omit Defilement, Adulteration and Vitiation of wine, the liabilities for which are civil? — What is your view in regard to intangible damage?⁹  If [you consider] intangible damage a civil wrong, defilement has then already been dealt with under Depreciation; if on the other hand intangible damage is not a civil wrong, then any liability for it is penal in nature, with which R. Oshaia is not concerned.

Are we to infer that R. Hiyya considers intangible damage not to be a civil wrong? For otherwise would not this kind of damage already have been reckoned by him under Depreciation? — He may in any case have found it expedient to deal with tangible damage and intangible damage under distinct heads.

It is quite conceivable that our Tanna¹⁰  found it necessary to give the total number [of the principal kinds of damage] in order to exclude those of R. Oshaia;¹¹  the same applies to R. Oshaia who also gave the total number in order to exclude those of R. Hiyya;¹²  but what could be excluded by the total number specified by R. Hiyya? — It is intended to exclude Denunciation¹³  and Profanation of sacrifices.¹⁴

The exclusion of profanation is conceivable as sacrifices are not here reckoned; but why is Denunciation omitted? — Denunciation is in a different category on account of its verbal nature with which R. Hiyya is not concerned. But is not Slander of a verbal nature and yet reckoned? — Slander is something verbal but dependent upon some act.¹⁵  But is not False Evidence a verbal effect not connected with any act and yet it is reckoned? — The latter though not connected with any act is reckoned because it is described in the Divine Law as an act, as the text has it: Then shall ye do unto him as he had purposed to do unto his brother.¹⁶

It is quite conceivable that the Tanna of the Mishnah characterises his kinds of damage as Principals in order to indicate the existence of others which are only derivatives: but can R. Hiyya and R. Oshaia characterise theirs as Principals in order to indicate the existence of others which are derivatives? If so what are they? — Said R. Abbahu: All of them are characterised as Principals for the purpose of requiring compensation out of the best of possessions.¹⁷  How is this uniformity [in procedure] arrived at? — By means of a uniform interpretation of each of the following terms: 'Instead',¹⁸  'Compensation',¹⁹  'Payment',²⁰  'Money'.²¹

THE ASPECTS OF THE OX ARE [IN SOME RESPECTS] NOT [OF SUCH LOW ORDER OF GRAVITY] AS THOSE OF THE 'SPOLIATOR' [MAB'EH]. What does this signify? — R. Zebid in the name of Raba said: The point of this is: Let Scripture record only one kind of damage²²  and from it you will deduce the liability for the other!²³  In response it was declared: One kind of damage could not be deduced from the other.²⁴

NOR ARE THE ASPECTS OF EITHER OF THEM IN WHICH THERE IS LIFE. What does this signify? R. Mesharsheya in the name of Raba said: The point of it is this:

1. Penal liabilities are created only by means of impartial evidence and never by that of confession; cf. infra 64b.
2. Mak. 2b.
3. V. infra p. 179.
4. Infra pp. 180 and 240.
5. Lit., 'broke the [full] force of his club' (Jast.); Rashi: 'of his fist'.
6. Ex. XXI. 31.
7. Cf. Keth. 40a.
8. V. Deut, XXII, 29; Ex. XXII, 6; and Deut. XXII, 19.
9. Cf. Git. 53a.
10. Opening the Tractate.
11. I.e., the additional nine kinds enumerated by him supra p. 13.
12. I.e., the eleven added by him supra. p. 14.
13. Cf. infra 62a and 117a.
14. Cf. Lev. VII, 18 and Zeb. I, 1 and II, 2-3.
15. The consummation of the marriage rite according to R. Eliezer, or the bribery of false witnesses according to R. Judah; cf. Keth. 46a.
16. Deut. XIX, 19.
17. Cf. Ex. XXII, 4.
18. I.e., for occurring in Ex. XXI, 36, and elsewhere.
19. I.e., an expression such as, He shall give, cf. EX XXI, 32 and elsewhere.
20. As in Ex. XXII, 8 and elsewhere.
21. Such as, e.g., in Ex. XXI, 34 and elsewhere. [One of these four terms occurs with each of the four categories of damage specified in the Mishnah and likewise with each of the kinds of damage enumerated by R. Oshaia and R. Hiyya, thus teaching uniformity in regard to the mode of payment in them all.]
22. I.e., Ox.
23. I.e., Mab'eh.
24. V. supra pp. 11-12.

Let Scripture record only two kinds of damage¹  and from them you will deduce a further kind of damage?²  In response it was declared: Even from two kinds of damage it would not be possible to deduce one more.³

Raba, however, said: If you retain any one kind of damage along with Pit [in Scripture], all the others but Horn will be deduced by analogy;⁴  Horn is excepted as the analogy breaks down, since all the other kinds of damage are Mu'ad ab initio.⁵  According, however, to the view that Horn on the other hand possesses a greater degree of liability because of its intention to do damage,⁶  even Horn could be deduced. For what purpose then did Scripture record them all? For their [specific] laws: Horn, in order to distinguish between Tam and Mu'ad;⁷  Tooth and the Foot, to be immune [for damage done by them] on public ground;⁸  Pit, to be immune for [damage done by it to] inanimate objects;⁹  and, according to R. Judah who maintains liability for inanimate objects damaged by a pit,¹⁰  in order still to be immune for [death caused by it to] man;¹¹  Man, to render him liable for four [additional] payments [when injuring man];¹²  Fire, to be immune for [damage to] hidden goods;¹³  but according to R. Judah, who maintains liability for damage to hidden goods by fire,¹³  what [specific purpose] could be served?

1. I.e., Ox and Mab'eh.
2. I.e., Fire.
3. For the reason stated in the Mishnah.
4. To the feature common in Pit and the other kind of damage.
5. I.e., it is usual for them to do damage, whereas Horn does damage only through excitement and evil intention which the owner should not necessarily have anticipated; cf. infra p. 64.
6. Cf. supra p. 11 and infra p. 64.
7. Infra p. 73.
8. Infra p. 94.
9. Infra 52a.
10. Infra 53b.
11. Infra 54a.
12. Infra p. 473; cf. also supra pp. 12 and 13.
13. Infra 61b.