Babylonian Talmud: Tractate Baba Kamma

Folio 6a

— To include [damage done by fire] lapping his neighbour's ploughed field and grazing his stones.¹

THE FEATURE COMMON TO THEM ALL … What else is this clause intended to include? — Abaye said: A stone, a knife and luggage which, having been placed by a person on the top of his roof, fell down through a normal wind and did damage.²  In what circumstances [did they do the damage]? If while they were in motion, they are equivalent to Fire! How is this case different? Just as Fire is aided by an external force³  and, being your possession, is under your control, so also is the case with those which are likewise aided by an external force and, being your possessions are under your control. If [on the other hand, damage was done] after they were at rest, then, if abandoned, according to both Rab and Samuel, they are equivalent to Pit.⁴  How is their case different? Just as Pit is from its very inception a source of injury, and, being your possession is under your control, so also is the case with those⁵  which from their very inception [as nuisances] are likewise sources of injury, and, being your possession are under your control.⁶  Furthermore, even if they were not abandoned, according to Samuel who maintains that we deduce [the law governing] all nuisances from Pit,⁴  they are [again] equivalent to Pit? — Indeed they were abandoned, still they are not equivalent to Pit. Why [is liability attached] to Pit if not because no external force assists it? How then can you assert [the same] in the case of those⁵  which are assisted by an external force? — Fire,⁷  however, will refute [this reasoning]. But [you may ask] why [is liability attached] to Fire if not because of its nature to travel and do damage?⁸  — Pit, however, will refute [this reasoning]. The argument is [thus endlessly] reversible [and liability⁹  can be deduced only from the Common Aspects].¹⁰

Raba said: [This clause is intended] to include a nuisance which is rolled about [from one place to another] by the feet of man and by the feet of animal [and causes damage]. In what circumstances [did it do the damage]? If it was abandoned, according to both Rab and Samuel,¹¹  it is equivalent to Pit! How does its case differ? Just as Pit is from its very inception a source of injury, and is under your control, so also is the case with that which from its very inception [as a nuisance] is likewise a source of injury, and is under your control. Furthermore, even if it were not abandoned, according to Samuel,¹¹  who maintains that we deduce [the law governing] all nuisances from Pit, it is [again] equivalent to Pit? — Indeed it was abandoned, still it is not equivalent to Pit: Why [is liability attached] to Pit if not because the making of it solely caused the damage? How then can you assert [the same] in the case of such nuisances,¹²  the making of which did not directly cause the damage?¹³  — Ox, however, will refute [this reasoning]. But [you may ask] why [is liability attached] to Ox if not because of its habit to walk about and do damage? — Pit will refute [this reasoning]. The argument is [thus endlessly] reversible as the aspect of the one is not comparable to the aspect of the other, [and liability¹⁴  therefore can be deduced only from the Common Aspects].

R. Adda b. Ahabah said: To include that which is taught:¹⁵  'All those who open their gutters or sweep out the dust of their cellars [into public thoroughfares] are in the summer period acting unlawfully, but lawfully in winter; [in all cases] however, even though they act lawfully, if special damage resulted they are liable to compensate.' But in what circumstances? If the damage occurred while [the nuisances were] in motion, is it not man's direct act?¹⁶  If, on the other hand, it occurred after they were at rest, [again] in what circumstances? If they were abandoned, then, according to both Rab and Samuel,¹⁷  they are equivalent to Pit! How does their case differ? Just as Pit is from its very inception a source of injury, and, being your possession, is under your control, so also is the case with those which are likewise from their very inception [as nuisances] sources of injury and, being your possession, are under your control. Furthermore, even if they were not abandoned, according to Samuel,¹⁷  who maintains that we deduce [the law governing] all nuisances from Pit, they are [again] equivalent to Pit? — Indeed they were abandoned, still they are not equivalent to Pit: Why [is liability attached] to Pit if not because of its being unlawful?¹⁸  How then could you assert [the same] in the case of those which [in winter] are lawful? —

1. As this damage is rather an unusual effect from fire and special reference is therefore essential.
2. Cf. supra p. 8.
3. I.e., the blowing wind.
4. Infra 28b; v. supra p. 7.
5. I.e., stone, knife and luggage referred to above.
6. Cf. supra p. 7.
7. Which is also assisted by an external force, i.e. the wind, but nevertheless creates liability to pay.
8. Which cannot he said of stone, knife and luggage.
9. Even when the nuisance has, like Fire, been assisted by an external force and is, like Pit, unable to travel and do damage.
10. Referred to in the Mishnaic quotation.
11. Infra 28b and supra p. 7.
12. Which have been rolling about from one place to another.
13. But the rolling by man and beast.
14. Even in the case of nuisances that roll about.
15. Cf. infra 30a.
16. The liability for which is self-evident under the category of Man.
17. Infra 28b and supra p. 7.
18. It being unlawful to dig a pit in public ground.

Ox,¹  however, will refute [this reasoning]. But, you may ask, why [is liability attached] to Ox if not because of its nature to walk about and do damage? — Pit will refute [this reasoning]. The argument is [thus endlessly] reversible [and liability²  can be deduced only from the Common Aspects].

Rabina said: To include that which we have learnt: 'A wall or a tree which accidentally fell into a Public thoroughfare and did damage, involves no liability for compensation. If an order had been served [by the proper authorities] to fell the tree and pull down the wall within a specified time, and they fell within the specified time and did damage, the immunity holds goods, but if after the specified time, liability is incurred.'³  But what were the circumstances [of the wall and the tree]? If they were abandoned, then according to both Rab and Samuel,⁴  they are equivalent to Pit! How is their case different? Just as Pit does frequent damage and is under your control, so also is the case with those which likewise do frequent damage and are under your control. Furthermore, even if they were not abandoned, according to Samuel.⁴  who maintains that we deduce [the law governing] all nuisances from Pit, they are [again] equivalent to Pit? — Indeed they were abandoned, still they are not equivalent to Pit: Why [is liability attached] to Pit if not because of its being from its very inception a source of injury? How then can you assert [the same] in the case of those which are not sources of injury from their inception? — Ox, however, will refute [this reasoning]. But [you may ask] why [is liability attached] to Ox if not because of its nature to walk about and do damage? — Pit will refute [this reasoning]. The argument is [thus endlessly] reversible [and liability⁵  can be deduced only from Common Aspects].

WHENEVER ANYONE OF THEM DOES DAMAGE THE OFFENDER IS [HAB] LIABLE. 'The offender is HAB!' — 'The offender is HAYYAB'⁶  should be the phrase? — Rab Judah, on behalf of Rab, said: This Tanna [of the Mishnaic text] was a Jerusalemite who employed an easier form.⁷

TO INDEMNIFY WITH THE BEST OF HIS ESTATE. Our Rabbis taught: Of the best of his field and of the best of his vineyard shall he make restitution⁸  refers to the field of the plaintiff and to the vineyard of the plaintiff, this is the view of R. Ishmael. R. Akiba says: Scripture only intended that damages should be collected out of the best,⁹  and this applies even more so to sacred property.¹⁰

Would R. Ishmael maintain that the defendant, whether damaging the best or worst, is to pay for the best? — R. Idi b. Abin said: This is so where he damaged one of several furrows and it could not be ascertained whether the furrow he damaged was the worst or the best, in which case he must pay for the best. Raba, however, [demurred] saying: Since where we do know that he damaged the worst, he would only have to pay for the worst, now that we do not know whether the furrow damaged was the best or the worst, why pay for the best? It is the plaintiff who has the onus of proving his case by evidence. R. Aha b. Jacob therefore explained: We are dealing here with a case where the best of the plaintiff's estate equals in quality the worst of that of the defendant;¹¹  and the point at issue is [as follows]: R. Ishmael maintains that the qualities are estimated in relation to those of the plaintiff's estate;¹²  but R. Akiba is of the opinion that it is the qualities of the defendant's possessions that have to be considered.¹³

What is the reason underlying R. Ishmael's view? — The term 'Field' occurs both in the latter clause¹⁴  and the earlier clause of the verse;¹⁵  now just as in the earlier clause it refers to the plaintiff's possessions, so also does it in the latter clause. R. Akiba, however, maintains that [the last clause,] Of the best of his field and of the best of his vineyard shall he make restitution¹⁶  clearly refers to the possessions of the one who has to pay. R. Ishmael [on the other hand,] contends that both the textual analogy¹⁷  of the terms and the plain textual interpretation are complementary to each other. The analogy of the terms is helpful towards establishing the above statement¹⁸  while the plain textual interpretation helps to qualify [the application of the above¹⁸  in] a case where the defendant's estate consists of good and bad qualities, and the plaintiff's estate likewise comprises good quality, but the bad of the defendant's estate is not so good as the good quality of the estate of the plaintiff;¹⁹  for in this case the defendant must pay out of the better quality of his estate, as he cannot say to him, 'Come and be paid out of the bad quality' [which is below the quality of the estate of the plaintiff], but he is entitled to the better quality [of the defendant].

R. Akiba said: Scripture only intended that damages be collected out of the best, and this applies even more so to sacred property.' What is the import of the last clause? It could hardly be suggested that it refers to a case where a private ox gored an ox consecrated [to the Sanctuary], for does not the Divine Law distinctly say, The ox of one's neighbour,²⁰  excluding thus [any liability for damage done to] consecrated chattel? Again, it could hardly deal with a personal undertaking by one to pay a maneh to the Treasury of the Temple, thus authorising the treasurer to collect from the best; for surely he should not be in a better position than a private creditor

1. Which it is similarly lawful to keep, but which when doing damage creates nevertheless a liability to pay.
2. Even in the cases referred to by R. Adda b. Ahabah.
3. B.M. 117b.
4. Infra 28b.
5. Even in the case of the wall and the tree.
6. A slight variation in the Hebrew text: a disyllable instead of a monosyllable.
7. Preferred a contracted form.
8. Ex. XXII, 4.
9. Of the defendant's estate.
10. I.e., property dedicated to the purposes of the sanctuary.
11. The amount of damages, however, would never be more than could be proved to have been actually sustained.
12. I.e., the quality of the field paid by the defendant as damages need not exceed the best quality of the plaintiff's estate. Hence, in the case in hand, the worst of the defendant's will suffice.
13. The quality of the payment must therefore always he the best of the defendant's estate,
14. I.e., of the best of his field … Ex, XXII, 4.
15. If a man shall cause a field or a vineyard to be eaten, ibid.
16. Ex. XXII, 4.
17. The (Gezerah Shawah, v. Glos.
18. 'That the qualities are estimated in relation to those of the plaintiff's estate.'
19. The bad quality could not thus be tendered.
20. Ex. XXI, 35.