# snc

lvr: 41
dfh: a
notes:
 ntes={k89a_1:" I.e., that particular person who was her husband, as he had never divorced her."
,k89a_2:" In retaliation, as required in Deut. XIX, 19."
,k89a_3:" Since it was but a conditional liability, i.e., becoming mature either through her being divorced or through her remaining a widow."
,k89a_4:" And there would then be no occasion for the payment of the <I>kethubah</I> (cf. Mak. 3a)."
,k89a_5:" If the husband would have no right to recover the possessions thus alienated. Why then should the witnesses not pay the woman the full amount of the <I>kethubah</I>?"
,k89a_6:" By R. Jeremiah against Rab Judah, thus ignoring the enactment of Usha."
,k89a_7:" In which the husband had only the right of usufruct while the substance belonged to the wife; v. <a href=\"../tglossary.html\">Glos.</a>"
,k89a_8:" [That the woman should be able to sell outright.]"
,k89a_9:" As absolutely his own property."
,k89a_10:" By him on his general estate to pay her for them her <I>Kethubah</I> in case she would become a widow or divorced."
,k89a_11:" Zon barzel. I.e., 'flocks' sold on credit and the payment made secure as 'iron', v. B.B. (Sonc. ed.) p. 206, n. 3."
,k89a_12:" As it is also for her benefit that the income of her husband increases."
,k89a_13:" Out of the substance belonging to her. Cf. Keth. 47b and 79b."
,k89a_14:" Such as here in the case of the purchase money."
,k89a_15:" V. <i>supra</i> p. 502, n. 1."
,k89a_16:" V. <a href=\"../tglossary.html\">Glos.</a>"
,k89a_17:" I.e., that the purchaser should stand in her place and become entitled to it in case she should become a widow or divorced."
,k89a_18:" Keth. 57a."
,k89a_19:" Lit., 'words', 'an order for payment'."
,k89a_20:" B.M. 20a; B.B. 147b."
,k89a_21:" It would therefore not be practical to compel her to sell her <I>kethubah</I>, for she might subsequently release the husband from the liability of the <I>kethubah</I>. "
}

txt:
<p>
while the woman in question was still with him<a id="k89a_1"><sup>1</sup></a>&nbsp; and in fact looking after him, and the witnesses were subsequently proved <i>zomemim</i>, it would not be right to say that they should pay [the woman]<a id="k89a_2"><sup>2</sup></a>&nbsp; the whole amount of her <I>kethubah</I>, [as she did not lose anything] but the satisfaction of the benefit of [being provided with] her <I>kethubah</I>.<a id="k89a_3"><sup>3</sup></a>&nbsp; How could [the value of] the satisfaction of the benefit of her <I>kethubah</I> be arrived at?<a id="k89a_3"><sup>3</sup></a>&nbsp; An estimate will have to be made of how much a man would be prepared to pay as purchase money for the <I>kethubah</I> of this [particular woman] which can mature only after she is left a widow or divorced, since, were she [previously] to die her husband would inherit her.<a id="k89a_4"><sup>4</sup></a>&nbsp; Now, if you assume that this enactment of Usha is of no avail, why is it certain that her husband would inherit her? Why should she be unable to sell her <I>kethubah</I> outright?<a id="k89a_5"><sup>5</sup></a>&nbsp; Abaye said: If all this could be said<a id="k89a_6"><sup>6</sup></a>&nbsp; regarding <i>melog</i> possessions,<a id="k89a_7"><sup>7</sup></a>&nbsp; can it also be said<a id="k89a_8"><sup>8</sup></a>&nbsp; regarding the possessions [placed in the husband's hands<a id="k89a_9"><sup>9</sup></a>&nbsp; and secured<a id="k89a_10"><sup>10</sup></a>&nbsp; as if they were] 'iron flocks'?<a id="k89a_11"><sup>11</sup></a>
</p><p>
	Abaye further said: Since the subject of the [mere] satisfaction of a benefit has been raised, let us say something on it. The [purchase money of this] satisfaction of the benefit would belong solely to the woman. For if you assume that it should be subject to [the rights of] the husband, why could the witnesses not argue against her: 'What loss did we cause you, for should you even have sold the satisfaction of the benefit, the husband would have taken away [the purchase money] from you'? &mdash; R. Shalman, however, said: Because [even then] there would have been ample domestic provision.<a id="k89a_12"><sup>12</sup></a>
</p><p>
	Raba stated: 'The law is that the purchase money for the satisfaction of the benefit belongs solely to the woman, and the husband will have no right to enjoy any profit [that may result from it], the reason being that it was only profits that the Rabbis assigned to him,<a id="k89a_13"><sup>13</sup></a>&nbsp; whereas profits out of profits<a id="k89a_14"><sup>14</sup></a>&nbsp; were not assigned to him by the Rabbis.
</p><p>
	When R. Papa and R. Huna the son of R. Joshua came from the College they said: We have learnt to the same effect as the enactment of Usha [in the following Mishnah]: A SLAVE AND A WOMAN ARE AWKWARD TO DEAL WITH, AS HE WHO INJURES THEM IS LIABLE [TO PAY], WHEREAS IF THEY HAVE INJURED OTHERS THEY ARE EXEMPT.<a id="k89a_15"><sup>15</sup></a>&nbsp; Now, if you assume that the enactment of Usha is not effective why should she not sell her <i>melog</i><a id="k89a_16"><sup>16</sup></a>&nbsp; property and with the purchase money pay the compensation? &mdash; But even according to your reasoning, granted that the enactment of Usha is effective, in which case she would be powerless to alienate altogether her <i>melog</i> possessions, yet let her sell the <i>melog</i> estate for what the satisfaction of the benefit would fetch<a id="k89a_17"><sup>17</sup></a>&nbsp; and with his purchase money pay the compensation? It must therefore Surely be said that the ruling applies where she had no <i>melog</i> property; so also [according to the other view] the ruling would apply only where she possessed no <i>melog</i> property. But why should she not sell her <I>kethubah</I> for as much as the satisfaction of the benefit will fetch<a id="k89a_17"><sup>17</sup></a>&nbsp; and thus pay compensation? &mdash; The ruling is based on the view of R. Meir, who said that it is prohibited for any man to keep his wife without a <I>kethubah</I> even for one hour.<a id="k89a_18"><sup>18</sup></a>&nbsp; But what is the reason of this? So that it should not be an easy matter in his eyes to divorce her. In this case too he will surely not divorce her, for if he were to divorce her those who purchased the <I>kethubah</I> would certainly come and collect the amount of the <I>kethubah</I> from him. [Why then should she not be compelled by law to sell her <I>kethubah</I> and pay her creditors?] &mdash; We must therefore say that the satisfaction of such a benefit is a value of an abstract nature<a id="k89a_19"><sup>19</sup></a>&nbsp; and abstract values are not considered mortgaged [for the payment of liabilities]. But why not? Could these abstract values not be sold for actual <i>denarii</i>? &mdash; We must therefore [say that it would not be practical to compel her to sell her <I>kethubah</I>] on account of the statement of Samuel. For Samuel said:<a id="k89a_20"><sup>20</sup></a>&nbsp; Where a creditor assigns a liability on a bill to another and subsequently releases the debtor from payment, the debt is considered cancelled. Moreover, the creditor's heir may cancel the liability.<a id="k89a_21"><sup>21</sup></a>&nbsp; I would, however, ask: Why should she not be compelled to sell it and pay with the proceeds the compensation, though if she should subsequently release her husband from the obligation the release would be legally valid? &mdash; It may be replied that since it is quite certain that where there is an obligation on the husband the wife will release him, it would not be right to make a sale which will straight away be nullified. Should you say, why should she not assign her <I>kethubah</I> to the person whom she injured, thus letting him have the satisfaction of the benefit,
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k89b_1:" I.e., the injured person."
,k89b_2:" Tosaf. B.K. IX, 8."
,k89b_3:" V. <i>supra</i>, p. 515, n. 6."
,k89b_4:" [I.e., the difference between the large amount of the <I>kethubah</I> and the amount due to him as compensation.]"
,k89b_5:" The Bible, i.e., two hundred <i>zuz</i> where she was a virgin at the time of the marriage. Cf. Ex. XXII, 16; Keth. I, 2."
,k89b_6:" [To provide against the prohibition in the view of R. Meir.]"
,k89b_7:" = 100 <i>zuz</i>, which is the minimum amount of a <I>kethubah</I> even in the case of a non-virgin; v. Keth. I, 2."
,k89b_8:" [For any damage done to others (Tosaf.).]"
,k89b_9:" [For any damage done by her to her husband (Tosaf.) V. Tosaf. B.K. IX.]"
,k89b_10:" Which runs as follows: 'The male children which you will have with me shall inherit the amount of your <I>kethubah</I> over and above their appropriate portions due to them together with their brothers (if any of another mother).' V.B.B. (Sonc. ed.) p. 546, n. 16."
,k89b_11:" Cf. Ex. XXI, 26-27."
,k89b_12:" Who possesses the ownership of their substance."
,k89b_13:" Who has in them but the right of usufruct."
,k89b_14:" According to which the wife would not be able to impair the right of the husband, [nor would the husband on the other hand be able to impair the right of the wife to the slaves whose substance is actually hers.] "
}

txt:
<p>
for even if she should subsequently release her husband from the obligation, the purchaser<a id="k89b_1"><sup>1</sup></a>&nbsp; would lose nothing as now too she pays him nothing on account of the compensation, [my answer is that] as it is in any case quite certain that where there is an obligation on the husband the wife will release him, it would not be proper to trouble the Court of Law so much for nothing. But seeing that it was taught: 'So also if she injures her husband she does not forfeit her <I>kethubah</I>'.<a id="k89b_2"><sup>2</sup></a>&nbsp; why should she in this case not assign her <I>kethubah</I> to the husband and thus let him have the satisfaction of the benefit as compensation for the injury, for even if she releases her husband from the obligation no loss will result therefrom? &mdash; This teaching is surely based on the view of R. Meir who said<a id="k89b_3"><sup>3</sup></a>&nbsp; that it is prohibited for any man to keep his wife without a <I>kethubah</I> even for one hour, the reason being that it should not be an easy matter in the eyes of the husband to divorce a wife. So also here if the <I>kethubah</I> be assigned to him he might easily divorce her and have her <I>kethubah</I> for himself as compensation for the injury. But if so [even now that the <I>kethubah</I> remains with her] would he just the same not find it easy to divorce her, as he would retain the amount of her <I>kethubah</I> as compensation for the injury? [This however would not be so where] e.g., the amount of her <I>kethubah</I> was much more than that of the compensation as on account of the small amount of the compensation he would surely not risk losing more.<a id="k89b_4"><sup>4</sup></a>&nbsp; But again if the amount of her <I>kethubah</I> exceeded that of an ordinary <I>kethubah</I> as fixed by the Law,<a id="k89b_5"><sup>5</sup></a>&nbsp; why should we not reduce the amount to that of the ordinary <I>kethubah</I> fixed by the Law,<a id="k89b_6"><sup>6</sup></a>&nbsp; and she should assign the difference to the husband as compensation for the injury? [This could not be done where,] e.g. the amount of her <I>kethubah</I> did not exceed that of the ordinary <I>kethubah</I> fixed by the Law and the compensation for the injury was assessed to be four <i>zuz</i>, as it is pretty certain that for four <i>zuz</i> he will not risk losing twenty-five [<i>sela'</i>].<a id="k89b_7"><sup>7</sup></a>&nbsp; But what of that which was taught: 'Just as she cannot [be compelled to] assign her <I>kethubah</I><a id="k89b_8"><sup>8</sup></a>&nbsp; so long as she is with her husband, so also she cannot [be compelled to] remit [anything of] her <I>kethubah</I> so long as she is with her husband'?<a id="k89b_9"><sup>9</sup></a>&nbsp; Are there not times when she would be forced to remit, as, for example where the amount of her <I>kethubah</I> exceeded the amount of an ordinary <I>kethubah</I> fixed by the Law? &mdash; Said Raba: This concluding paragraph refers to the clause inserted in the <I>kethubah</I> regarding the male children,<a id="k89b_10"><sup>10</sup></a>&nbsp; and what was meant was this: Just as in the case of a wife assigning her <I>kethubah</I> to others she does thereby not impair the clause in the <I>kethubah</I> regarding the male children, the reason being that she might have been compelled to do it on account of a pressing need for money, so should also be the case where a wife assigns her <I>kethubah</I> to her own husband, that she would thereby not impair the clause in the <I>Kethubah</I> dealing with male children on the ground that she might have been compelled to do this for lack of funds.
</p><p>
	May we say that the enactment of Usha was a point at issue between the following Tannaim? For one [Baraitha] teaches that <i>melog</i> slaves are to go out free for the sake of a tooth or an eye<a id="k89b_11"><sup>11</sup></a>&nbsp; if assaulted by the wife,<a id="k89b_12"><sup>12</sup></a>&nbsp; but not if assaulted by the husband,<a id="k89b_13"><sup>13</sup></a>&nbsp; whereas another [Baraitha] teaches that [they are not to go out free] when assaulted either by the husband or by the wife. Now it was thought that all authorities agree that a right to usufruct does not constitute in law a right to the very substance. Are we not to suppose then that the point at issue between them was that the one who held that they are to go out free if assaulted by the wife did not accept the enactment of Usha, while the one who held that they are not to go out free when assaulted either by the husband or by the wife accepted the enactment of Usha?<a id="k89b_14"><sup>14</sup></a>&nbsp; &mdash; No; it is quite certain that the enactment of Usha was unanimously accepted, but the former Baraitha was formulated before the passing of the enactment while the other one was formulated after. Or if you like I may say that both the one Baraitha and the other dealt with conditions prevailing after the enactment, and also that both accepted the enactment of Usha, but the authority who held that the slaves are to go out free if assaulted by the wife and not by the husband did so on account of a reason underlying a statement of Raba, for Raba said:
</P>


lvr: 41
dfh: a
notes:
 ntes={k30a_1:" That there is liability for a pit dug in public ground, though it is ownerless."
,k30a_2:" That abandoning nuisances releases from responsibility."
,k30a_3:" That abandoning nuisances does not release from responsibility."
,k30a_4:" <i>Supra</i> p. 158."
,k30a_5:" Which, according to Rab, deals with a case where the water has not been abandoned, but remained still the chattel of the original owner."
,k30a_6:" Those of the person who was injured."
,k30a_7:" Whereas the water was but the remote cause of it."
,k30a_8:" Lit., 'his clay'. i.e., of the owner of the water."
,k30a_9:" The one here and the other <i>supra</i> p. 149."
,k30a_10:" Expounded by Rab here as well as <i>supra</i> pp. 149-150."
,k30a_11:" <i>Supra</i> pp. 19-20."
,k30a_12:" V. p. 159, n. 3."
,k30a_13:" Which was likely to be pulled down."
,k30a_14:" For not having taken proper care to safeguard the public."
,k30a_15:" As stated in the Baraitha quoted."
,k30a_16:" Why then had Rabina to make it explicit?"
,k30a_17:" Failing that, the sole responsibility should then fall upon him."
,k30a_18:" But that the responsibility lies upon the owner of the pit."
,k30a_19:" Who was stricken with blindness; cf. Ber. 58a."
,k30a_20:" V. Nid. 17a."
,k30a_21:" [By being careful in matters that may cause damage.]"
,k30a_22:" [Matters affecting ethics and right conduct. <i>Var. lec</i>., 'Rabina'.]"
,k30a_23:" [The Tractate wherein the benedictions are set forth and discussed.]"
,k30a_24:" Imposing liability in the commencing clause."
,k30a_25:" B.M. 118b. Why then liability for the damage caused thereby during the specified period permitted by law?"
,k30a_26:" Placed outside a shop and setting aflame flax that has been passing along the public road."
,k30a_27:" <i>Infra</i> p. 361."
,k30a_28:" A permission which has similarly been extended in the case of the dung during the specified period and should accordingly effect exemption."
,k30a_29:" Which is of course absent in the case of removing dung to the public ground, where liability must accordingly be imposed for special damage."
,k30a_30:" Does not this prove that mere authorization suffices to confer exemption? Cf. n. 2."
,k30a_31:" V. p. 161, n. 5. "
}

txt:
<p>
in the name of R. Ishmael etc.<a id="k30a_1"><sup>1</sup></a>&nbsp; [which proves that abandoned nuisances do involve liability]? &mdash; This presents no difficulty. One view<a id="k30a_2"><sup>2</sup></a>&nbsp; is his own whereas the other<a id="k30a_3"><sup>3</sup></a>&nbsp; is that of his master.
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN POURS OUT WATER INTO PUBLIC GROUND AND SOME OTHER PERSON IS INJURED BY IT, THERE IS LIABILITY FOR THE DAMAGE. IF HE HIDES THORNS AND BROKEN GLASS, OR MAKES A FENCE OF THORNS, OR, IF A FENCE FALLS INTO THE PUBLIC GROUND AND DAMAGE RESULTS THEREFROM TO SOME OTHER PERSONS, THERE IS [SIMILARLY] LIABILITY FOR THE DAMAGE.<a id="k30a_4"><sup>4</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. Rab said: This Mishnaic ruling<a id="k30a_5"><sup>5</sup></a>&nbsp; refers only to a case where his garments<a id="k30a_6"><sup>6</sup></a>&nbsp; were soiled in the water. For regarding injury to himself there should be exemption, since it was ownerless ground that hurt him.<a id="k30a_7"><sup>7</sup></a>&nbsp; [But] R. Huna said to Rab: Why should not [the topmost layer of the ground mixed up with private water] be considered as private clay?<a id="k30a_8"><sup>8</sup></a>&nbsp; &mdash; Do you suggest [the ruling to refer to] water that has not dried up? [No.] It deals with a case where the water has already dried up. But why [at all] two [texts<a id="k30a_9"><sup>9</sup></a>&nbsp; for one and the same ruling]?<a id="k30a_10"><sup>10</sup></a>&nbsp; &mdash; One [text] refers to the summer season whereas the other deals with winter, as indeed [explicitly] taught [elsewhere]: 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] even though when acting lawfully, if special damage resulted, they are liable to compensate.<a id="k30a_11"><sup>11</sup></a>
</p><p>
	IF HE HIDES THORNS etc., R. Johanan said:<a id="k30a_4"><sup>4</sup></a>&nbsp; This Mishnaic ruling refers only to a case where the thorns were projecting into the public ground. For if they were confined within private premises there would be no liability. On what account is there exemption [in the latter case]? &mdash; R. Aha the son of R. Ika [thereupon] answered:<a id="k30a_12"><sup>12</sup></a>&nbsp; Because it is not the habit of men to rub themselves against walls.
</p><p>
	Our Rabbis taught: If one hid thorns and broken glasses in a neighbour's wall and the owner of the wall came and pulled his wall down, so that they fell into the public ground and did damage, the one who hid them is liable. R. Johanan [thereupon] said: This ruling refers only to an impaired wall.<a id="k30a_13"><sup>13</sup></a>&nbsp; For in the case of a strong wall the one who hid [the thorns] should be exempt while the owner of the wall would be liable.<a id="k30a_14"><sup>14</sup></a>&nbsp; Rabina commented: This ruling<a id="k30a_15"><sup>15</sup></a>&nbsp; proves that where a man covers his pit with a neighbour's lid and the owner of the lid comes and removes his lid, the owner of the pit would be liable [for any damage that may subsequently be caused by his pit]. Is not this inference quite obvious?<a id="k30a_16"><sup>16</sup></a>&nbsp; &mdash; You might perhaps have suggested this ruling<a id="k30a_15"><sup>15</sup></a>&nbsp; [to be confined to the case] there, where the owner of the wall had no knowledge of the identity of the person who hid the thorns in the wall, and was accordingly unable to inform him of the intended pulling down of the wall, whereas in the case of the pit, where the owner of the lid very well knew the identity of the owner of the pit, [you might have argued] that it was his duty to inform him [of the intended removal of the lid].<a id="k30a_17"><sup>17</sup></a>&nbsp; It is therefore made known to us [that this is not the case].<a id="k30a_18"><sup>18</sup></a>
</p><p>
	Our Rabbis taught: The pious men of former generations used to hide their thorns and broken glasses in the midst of their fields at a depth of three handbreadths below the surface so that [even] the plough might not be hindered by them. R Shesheth<a id="k30a_19"><sup>19</sup></a>&nbsp; used to throw them into the fire.<a id="k30a_20"><sup>20</sup></a>&nbsp; Raba threw them into the Tigris. Rab Judah said: He who wishes to be pious must [in the first instance particularly] fulfil the laws of [Seder] Nezikin.<a id="k30a_21"><sup>21</sup></a>&nbsp; But Raba said: The matters [dealt with in the Tractate] Aboth;<a id="k30a_22"><sup>22</sup></a>&nbsp; still others said: Matters [dealt with in] Berakoth.<a id="k30a_23"><sup>23</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN REMOVES HIS STRAW AND STUBBLE INTO THE PUBLIC GROUND TO BE FORMED INTO MANURE, AND DAMAGE RESULTS TO SOME OTHER PERSON, THERE IS LIABILITY FOR THE DAMAGE, AND WHOEVER SEIZES THEM FIRST ACQUIRES TITLE TO THEM. R. SIMEON B. GAMALIEL SAYS: WHOEVER CREATES ANY NUISANCES ON PUBLIC GROUND CAUSING [SPECIAL] DAMAGE IS LIABLE TO COMPENSATE, THOUGH WHOEVER SEIZES OF THEM FIRST ACQUIRES TITLE TO THEM. IF HE TURNS UP DUNG THAT HAD BEEN LYING ON PUBLIC GROUND, AND DAMAGE [SUBSEQUENTLY] RESULTS TO ANOTHER PERSON, HE IS LIABLE FOR THE DAMAGE.
</p><p>
	<B><I>GEMARA</I></B>. May we say that the Mishnaic ruling<a id="k30a_24"><sup>24</sup></a>&nbsp; is not in accordance with R. Judah? For it was taught: R. Judah says: When it is the season of taking out foliage everybody is entitled to take out his foliage into the public ground and heap it up there for the whole period of thirty days so that it may be trodden upon by the feet of men and by the feet of animals; for upon this understanding did Joshua make [Israel]<a id="k30a_25"><sup>25</sup></a>&nbsp; inherit the Land. &mdash; You may suggest it to be even in accordance with R. Judah, for R. Judah [nevertheless] agrees that where [special] damage resulted, compensation should be made for the damage done. But did we not learn that R. Judah maintains that in the case of a Chanukah candle<a id="k30a_26"><sup>26</sup></a>&nbsp; there is exemption on account of it having been placed there with authorization?<a id="k30a_27"><sup>27</sup></a>&nbsp; Now, does not this authorization mean the permission of the <i>Beth din</i>?<a id="k30a_28"><sup>28</sup></a>&nbsp; &mdash; No, it means the sanction of [the performance of] a religious duty<a id="k30a_29"><sup>29</sup></a>&nbsp; as [indeed explicitly] taught: R. Judah says: In the case of a Chanukah candle there is exemption on account of the sanction of [the performance of] a religious duty.
</p><p>
	Come and hear: In all those cases where the authorities permitted nuisances to be created on public ground, if [special] damage results there will be liability to compensate. But R. Judah maintains exemption!<a id="k30a_30"><sup>30</sup></a>&nbsp; &mdash; R. Nahman said: The Mishnah<a id="k30a_31"><sup>31</sup></a>&nbsp; refers to the time when it is not the season to take out foliage and thus it may be in accordance with R. Judah. &mdash; R. Ashi further [said]:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k30b_1:" While on public ground."
,k30b_2:" Which thus still remains the property of the original owner."
,k30b_3:" I.e., what is the principle underlying it?"
,k30b_4:" This clause, if omitted purposely, would thus tend to prove that the penalty attaches only to straw and stubble and their like, which improve while lying on public ground, but not to dung placed on public ground, apparently on account of the fact that in this case there is neither increase in quantity nor improvement in quality while lying on public ground. This distinction appears therefore to be not in accordance with the view of Rab, maintaining that the penalty extend not only to the increase but also to the corpus of the object of the nuisance."
,k30b_5:" I.e. in connection with the latter clause."
,k30b_6:" Which shows that the penalty does not extend to the corpus."
,k30b_7:" Even to straw and stubble."
,k30b_8:" [V. D.S. a.l.]"
,k30b_9:" According to the view of Rab."
,k30b_10:" For, since there is no gain, nobody is likely to be tempted to place dung on public ground."
,k30b_11:" Even before any gain accrued."
,k30b_12:" Although no increase will ever accrue there, thus proving that according to Rab the penalty is imposed on the corpus even before it had yielded any gain."
,k30b_13:" That there is no penalty at all with regard to an object that yields no increase; whereas the query is based on the principle laid down by R. Nahman."
,k30b_14:" Where no increase will ever accrue."
,k30b_15:" Which is against the biblical prohibition of Ex. XXII, 24."
,k30b_16:" Cf. B.M. 72a."
,k30b_17:" Extending the penalty also to the corpus."
,k30b_18:" I.e., the Sages who maintain that the penalty attaches only to the increase."
,k30b_19:" For R. Simeon b. Gamaliel is certainly against his view."
,k30b_20:" To extend the penalty to the corpus."
,k30b_21:" As to whether people should be encouraged to avail themselves of it, or not."
,k30b_22:" For the sake of not disturbing public peace. "
}

txt:
<p>
The Mishnah states, HIS STRAW AND STUBBLE which are slippery [and may never be removed into public ground even according to R. Judah].
</p><p>
	WHOEVER SEIZES THEM FIRST ACQUIRES TITLE TO THEM. Rab said: Both to their corpus and to their increase [in value],<a id="k30b_1"><sup>1</sup></a>&nbsp; whereas Ze'ire said: Only to their increase but not to their corpus.<a id="k30b_2"><sup>2</sup></a>&nbsp; Wherein is the point at issue?<a id="k30b_3"><sup>3</sup></a>&nbsp; &mdash; Rab maintains that they [the Rabbis] extended the penalty to the corpus on account of the increase thereof, but Ze'ire is of the opinion that they did not extend the penalty to the corpus on account of the increase thereof.
</p><p>
	We have learnt: IF HE TURNS UP DUNG THAT HAD BEEN LYING ON PUBLIC GROUND AND DAMAGE [SUBSEQUENTLY] RESULTS TO ANOTHER PERSON, HE IS LIABLE FOR THE DAMAGE. Now, [in this case] it is not stated that 'Whoever seizes it first acquires title to it.'<a id="k30b_4"><sup>4</sup></a>&nbsp; &mdash; [This ruling has been] inserted in the commencing clause, and applies as well to the concluding clause. But has it not in this connection<a id="k30b_5"><sup>5</sup></a>&nbsp; been taught [in a Baraitha]: They are prohibited [to be taken possession of] on account of [the law of] robbery?<a id="k30b_6"><sup>6</sup></a>&nbsp; &mdash; When [the Baraitha] states 'They are prohibited on account of robbery' the reference is to all the cases [presented] in the Mishnaic text<a id="k30b_7"><sup>7</sup></a>&nbsp; and [is intended] to [protect] the one who had seized [of them] first, having thereby acquired title [to them]. But surely it was not meant thus, seeing that it was taught:<a id="k30b_8"><sup>8</sup></a>&nbsp; 'If a man removes straw and stubble into the public ground to be formed into manure and damage results to another person, he is liable for the damage, and whoever seizes them first acquires title to them, as this may be done irrespective of [the law of] robbery. [However] where he turns up dung on public ground and damage [subsequently] results to another person, he is liable [to compensate] but no possession may be taken of the dung on account of [the law of] robbery'?<a id="k30b_6"><sup>6</sup></a>&nbsp; &mdash; R. Nahman b. Isaac [thereupon] exclaimed: What an objection to adduce from the case of dung! [It is only in the case of] an object that is susceptible to increase [in value] that the penalty is extended to the corpus<a id="k30b_9"><sup>9</sup></a>&nbsp; for the purpose of [discouraging any idea of] gain, whereas with regard to an object that yields no increase there is no penalty [at all].<a id="k30b_10"><sup>10</sup></a>
</p><p>
	The question was asked: According to the view that the penalty extends also to the corpus for the purpose of [discouraging the idea of] gain,<a id="k30b_9"><sup>9</sup></a>&nbsp; is this penalty imposed at once<a id="k30b_11"><sup>11</sup></a>&nbsp; or is it only after some gain has been produced that the penalty will be imposed? &mdash; Come and hear: An objection was raised [against Rab] from the case of dung!<a id="k30b_12"><sup>12</sup></a>&nbsp; But do you really think this [solves the problem]? The objection from the case of dung was raised only before R. Nahman expounded the underlying principle;<a id="k30b_13"><sup>13</sup></a>&nbsp; for after the explanation given by R. Nahman what objection indeed could there be raised from the case of dung?<a id="k30b_14"><sup>14</sup></a>
</p><p>
	Might not one suggest [the argument between Rab and Ze'ire to have been] the point at issue between [the following] Tannaim? For it was taught: If a bill contains a stipulation of interest,<a id="k30b_15"><sup>15</sup></a>&nbsp; a penalty is imposed so that neither the principal nor the interest is enforced; these are the words of R. Meir, whereas the Sages maintain that the principal is enforced though not the interest.<a id="k30b_16"><sup>16</sup></a>&nbsp; Now, can we not say that Rab adopts the view of R. Meir<a id="k30b_17"><sup>17</sup></a>&nbsp; whereas Ze'ire follows that of the Rabbis?<a id="k30b_18"><sup>18</sup></a>&nbsp; &mdash; Rab may explain [himself] to you [as follows]: 'I made my statement even according to the Rabbis: for the Rabbis maintain their view only there, where the principal as such is quite lawful, whereas here in the case of nuisances the corpus itself is liable to do damage.' Ze'ire [on the other hand] may explain [himself] to you [thus]: 'I made my statement even in accordance with R. Meir; for R. Meir expressed his view only there, where immediately, at the time of the bill having been drawn up, [the evil had been committed] by stipulating the usury, whereas here in the case of nuisances, who can assert that [special] damage will result?'
</p><p>
	Might not one suggest [the argument between Rab and Ze'ire to have been] the point at issue between these Tannaim? For it was taught: If a man removes straw and stubble into the public ground to be formed into manure and damage results to another person, he is liable for the damage, and whoever seizes them first acquires title to them. They are prohibited [to be taken possession of] on account of [the law of] robbery. R. Simeon b. Gamaliel says: Whoever creates any nuisances on public ground and causes [special] damage is liable to compensate, though whoever takes possession of them first acquires title to them, and this may be done irrespective of [the law of] robbery. Now, is not the text a contradiction in itself? You read, 'Whoever seizes them first acquires title to them,' then you state [in the same breath], 'They are prohibited [to be taken possession of] on account of [the law of] robbery'! It must therefore mean thus: 'Whoever seizes them first acquires title to them,' viz., to their increase, whereas, 'they are prohibited to be taken possession of on account of [the law of] robbery,' refers to their corpus. R. Simeon b. Gamaliel thereupon proceeded to state that even concerning their corpus, 'whoever seizes them first, acquires title to them.' Now, according to Ze'ire, his view must unquestionably have been the point at issue between these Tannaim,<a id="k30b_19"><sup>19</sup></a>&nbsp; but according to Rab, are we similarly to say that [his view] was the point at issue between these Tannaim? &mdash; Rab may say to you: 'It is [indeed] unanimously held that the penalty must extend to the corpus for the purpose [of discouraging the idea] of gain; the point at issue [between the Tannaim] here is whether this <i>halachah</i><a id="k30b_20"><sup>20</sup></a>&nbsp; should be made the practical rule of the law'.<a id="k30b_21"><sup>21</sup></a>&nbsp; For it was stated: R. Huna on behalf of Rab said: This <i>halachah</i><a id="k30b_20"><sup>20</sup></a>&nbsp; should not be made the practical rule of the law,<a id="k30b_22"><sup>22</sup></a>&nbsp; whereas R. Adda b. Ahabah said: This <i>halachah</i><a id="k30b_20"><sup>20</sup></a>&nbsp; should be made the practical rule of the law. But is this really so? Did not R. Huna declare barley [that had been spread out on public ground] ownerless, [just as] R. Adda b. Ahabah declared
</P>


lvr: 41
dfh: a
notes:
 ntes={k2a_1:" Explicitly dealt with in Scripture."
,k2a_2:" Ex. XXI, 35."
,k2a_3:" Ibid. 33."
,k2a_4:" Cf. p. 9."
,k2a_5:" Ex. XXII. 5."
,k2a_6:" Hence the latter, if not specifically dealt with, would not have been derived from the former."
,k2a_7:" When money is not tendered; cf. <i>infra</i> p. 33."
,k2a_8:" Shab. VII, 2."
,k2a_9:" Cf. Lev. IV, 27-35."
,k2a_10:" Num. XV, 32-36."
,k2a_11:" Shab. 75a."
,k2a_12:" On account of their being stated in juxtaposition in Scripture; v. Ex. XXXV, 2-XXXVI, 7."
,k2a_13:" Kel. I, 1."
,k2a_14:" Lev. XI, 29-32."
,k2a_15:" Ibid. XV, 17. "
}

txt:
<p>
      <H2 ALIGN="Center">
	<A NAME="chapter_i">CHAPTER I</A>
      </H2>
</p><p>
	<B><I>MISHNAH</I></B>. THE PRINCIPAL CATEGORIES OF DAMAGE<a id="k2a_1"><sup>1</sup></a>&nbsp; ARE FOUR: THE OX,<a id="k2a_2"><sup>2</sup></a>&nbsp; THE PIT,<a id="k2a_3"><sup>3</sup></a>&nbsp; THE 'SPOLIATOR' [<I>MAB'EH</I>]<a id="k2a_4"><sup>4</sup></a>&nbsp; AND THE FIRE.<a id="k2a_5"><sup>5</sup></a>&nbsp; THE ASPECTS OF THE OX ARE [IN SOME RESPECTS] NOT [OF SUCH LOW ORDER OF GRAVITY] AS THOSE OF THE 'SPOLIATOR';<a id="k2a_6"><sup>6</sup></a>&nbsp; NOR ARE [IN OTHER RESPECTS] THOSE OF THE 'SPOLIATOR' [OF SUCH LOW ORDER OF GRAVITY] AS THOSE OF THE OX;<a id="k2a_6"><sup>6</sup></a>&nbsp; NOR ARE THE ASPECTS OF EITHER OF THEM, IN WHICH THERE IS LIFE, [OF SUCH LOW ORDER OF GRAVITY] AS THOSE OF THE FIRE WHICH IS NOT ENDOWED WITH LIFE;<a id="k2a_6"><sup>6</sup></a>&nbsp; NOR ARE THE ASPECTS OF ANY OF THESE, THE HABIT OF WHICH IS TO BE MOBILE AND DO DAMAGE, [OF SUCH LOW ORDERS OF GRAVITY] AS THOSE OF THE PIT OF WHICH IT IS NOT THE HABIT TO MOVE ABOUT AND DO DAMAGE.<a id="k2a_6"><sup>6</sup></a>&nbsp; THE FEATURE COMMON TO THEM ALL IS THAT THEY ARE IN THE HABIT OF DOING DAMAGE; AND THAT THEY HAVE TO BE UNDER YOUR CONTROL SO THAT WHENEVER ANY ONE [OF THEM] DOES DAMAGE THE OFFENDER IS LIABLE TO INDEMNIFY WITH THE BEST OF HIS ESTATE.<a id="k2a_7"><sup>7</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. Seeing that PRINCIPAL CATEGORIES are specified, it must be assumed that there are derivatives. Are the latter equal in law to the former or not?
</p><p>
	Regarding Sabbath we learnt: The principal classes of prohibited acts are forty less one.<a id="k2a_8"><sup>8</sup></a>&nbsp; 'Principal classes' implies that there must be subordinate classes. Here the latter do in law equal the former; for there is no difference between a principal and a subordinate [prohibited act] with respect either to the law of sin-offering<a id="k2a_9"><sup>9</sup></a>&nbsp; or to that of capital punishment by stoning.<a id="k2a_10"><sup>10</sup></a>&nbsp; In what respect then do the two classes differ? &mdash; The difference is that if one simultaneously committed either two principal [prohibited] acts or two subordinate acts one is liable [to bring a sin-offering] for each act, whereas if one committed a principal act together with its respective Subordinate, one is liable for one [offering] only. But according to R. Eliezer who imposes the liability [of an offering] for a subordinate act committed along with its Principal,<a id="k2a_11"><sup>11</sup></a>&nbsp; to begin with why is the one termed 'Principal' and the other 'Subordinate'? &mdash; Such acts as were essential in the construction of the Tabernacle are termed 'Principal',<a id="k2a_12"><sup>12</sup></a>&nbsp; whereas such as were not essential in the construction of the Tabernacle are termed 'Subordinate.'
</p><p>
	Regarding Defilements we have learnt:<a id="k2a_13"><sup>13</sup></a>&nbsp; The Primary Defilements: The [Dead] Reptile,<a id="k2a_14"><sup>14</sup></a>&nbsp; the Semen Virile<a id="k2a_15"><sup>15</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k2b_1:" Num. XIX, 11-22."
,k2b_2:" I.e., the objects rendered defiled by coming in contact with any Primary Defilement."
,k2b_3:" Such as any one of these three and the others enumerated in Kelim I."
,k2b_4:" Cf. Lev. XI, 32-33."
,k2b_5:" V. ibid. 34."
,k2b_6:" Ex. XXI, 28."
,k2b_7:" I Kings XXII, 11."
,k2b_8:" Deut. XXXIII, 17."
,k2b_9:" [ [H] 'words of tradition'; i.e. the teachings received on tradition from the prophets, a designation for non-Pentateuchal, primarily prophetic, texts. V. Bacher, <i>op. cit</i>., I, 166, II, 185.] The meaning of Ex. XXI, 28, should therefore not he deduced from I Kings XXII, 11."
,k2b_10:" Which might surely he obtained even from post- Pentateuchal texts."
,k2b_11:" Hence again why that 'further' citation?"
,k2b_12:" 'Innocuous,' i.e., an animal not having gored on more than three occasions; the payment for damage done on any of the first three incidents (of goring] is half of the total assessment and is realised out of the body of the animal that gored, cf. Ex. XXI, 35 and <i>infra</i> 16b."
,k2b_13:" 'Cautioned,' i.e., after it had already gored three times, and its owner had been duly cautioned, the payment is for the whole damage and is realised out of the owner's general estate; v. Ex. XXI, 36, and <i>infra</i> 16b."
,k2b_14:" As was the case in the first quotation from Kings."
,k2b_15:" V. p. 2, n. 13."
,k2b_16:" Ex. XXI, 35."
,k2b_17:" Ibid. 36."
,k2b_18:" V. p. 2, n. 13."
,k2b_19:" V. p. 3; n. 10."
,k2b_20:" As it is more difficult to injure a man than an animal."
,k2b_21:" Cf. <i>infra</i> 205."
,k2b_22:" Ex. XXII, 4."
,k2b_23:" Isa. XXXII, 20. "
}

txt:
<p>
and the Person who has been in contact with a human corpse.<a id="k2b_1"><sup>1</sup></a>&nbsp; [In this connection] their Resultants<a id="k2b_2"><sup>2</sup></a>&nbsp; are not equal to them in law; for a primary defilement<a id="k2b_3"><sup>3</sup></a>&nbsp; contaminates both human beings and utensils,<a id="k2b_4"><sup>4</sup></a>&nbsp; while Resultants defile only foods and drinks,<a id="k2b_5"><sup>5</sup></a>&nbsp; leaving human beings and utensils undefiled.
</p><p>
	Here [in connection with damages] what is the [relationship in] law [between the principal and the secondary kinds]? &mdash; Said R. Papa: Some of the derivatives are on a par with their Principals whereas others are not.
</p><p>
	Our Rabbis taught: Three principal categories [of damage] have been identified in Scripture with Ox: The Horn, The Tooth, and The Foot. Where is the authority for 'Horn'? For our Rabbis taught: If it will gore.<a id="k2b_6"><sup>6</sup></a>&nbsp; There is no 'goring' but with a horn, as it is said: And Zedekiah the son of Chenaanah made him horns of iron, and said, Thus saith the Lord, With these shalt thou gore the Arameans;<a id="k2b_7"><sup>7</sup></a>&nbsp; and it is further said, His glory is like the firstling of his bullock, and his horns are like the horns of a unicorn: with them he shall gore the people together etc.<a id="k2b_8"><sup>8</sup></a>
</p><p>
	Why that 'further' citation? &mdash; Because you might perhaps say that Pentateuchal teachings cannot be deduced from post-Pentateuchal texts;<a id="k2b_9"><sup>9</sup></a>&nbsp; come therefore and hear: His glory is like the firstling of his bullock, and his horns are like the horns of a unicorn etc.<a id="k2b_8"><sup>8</sup></a>&nbsp; But is that a [matter of] deduction? Is it not rather merely an elucidation of the term 'goring'<a id="k2b_10"><sup>10</sup></a>&nbsp; as being effected by a horn?<a id="k2b_11"><sup>11</sup></a>&nbsp; &mdash; [Were it not for the 'further' citation] you might say that the distinction made by Scripture between [the goring of a] <i>Tam</i><a id="k2b_12"><sup>12</sup></a>&nbsp; and [that of a] <i>Mu'ad</i><a id="k2b_13"><sup>13</sup></a>&nbsp; is confined to goring effected by a severed horn,<a id="k2b_14"><sup>14</sup></a>&nbsp; whereas in the case of a horn still naturally attached, all goring is [habitual and consequently treated as of a] <i>Mu'ad</i>; come therefore and hear: His glory is like the firstling of his bullock, and his horns are like the horns of a unicorn, etc.<a id="k2b_8"><sup>8</sup></a>
</p><p>
	What are the derivatives of Horn? &mdash; Collision, Biting, [malicious] Falling and Kicking.
</p><p>
	Why this differentiation? If Goring is termed Principal because it is expressly written, If it will gore,<a id="k2b_15"><sup>15</sup></a>&nbsp; why should this not apply to Collision, as it is also written, If it will collide?<a id="k2b_16"><sup>16</sup></a>&nbsp; &mdash; That collision denotes goring, as it was taught: The text opens with collision<a id="k2b_16"><sup>16</sup></a>&nbsp; and concludes with goring<a id="k2b_17"><sup>17</sup></a>&nbsp; for the purpose of indicating that 'collision' here denotes 'goring'.
</p><p>
	Why the differentiation between injury to man, regarding which it is written <I>If it will gore</I>,<a id="k2b_18"><sup>18</sup></a>&nbsp; and injury to animal regarding which it is written <I>if it will collide</I>?<a id="k2b_19"><sup>19</sup></a>&nbsp; &mdash; Man who possesses foresight is, as a rule, injured [only] by means of [wilful] 'goring',<a id="k2b_20"><sup>20</sup></a>&nbsp; but an animal, lacking foresight, is injured by mere 'collision'. A [new] point is incidentally made known to us, that [an animal] <i>Mu'ad</i> to injure man is considered <i>Mu'ad</i> in regard to animal,<a id="k2b_21"><sup>21</sup></a>&nbsp; whereas <i>Mu'ad</i> to injure animal is not considered <i>Mu'ad</i> in regard to man.<a id="k2b_20"><sup>20</sup></a>
</p><p>
	'Biting': is not this a derivative of Tooth? &mdash; No; Tooth affords the animal gratification from the damage while Biting affords it no gratification from the damage.
</p><p>
	'Falling and Kicking'; are not these derivatives of Foot? &mdash; No; the damage of foot occurs frequently while the damage of these does not occur frequently.
</p><p>
	But what then are the derivatives which, R. Papa says, are not on a par with their Principals? He can hardly be said to refer to these, since what differentiation is possible? For just as Horn does its damage with intent and, being your property, is under your control, so also these [derivatives] do damage with intent and, being your property, are under your control! The derivatives of Horn are therefore equal to Horn, and R. Papa's statement refers to Tooth and Foot.
</p><p>
	'Tooth' and 'Foot'- where in Scripture are they set down? &mdash; It is taught: And he shall send forth<a id="k2b_22"><sup>22</sup></a>&nbsp; denotes Foot, as it is [elsewhere] expressed, That send forth the feet of the ox and the ass.<a id="k2b_23"><sup>23</sup></a>&nbsp; And it shall consume<a id="k2b_22"><sup>22</sup></a>&nbsp; denotes Tooth as [elsewhere] expressed, As the tooth consumeth
</P>


lvr: 41
dfh: a
notes:
 ntes={k17a_1:" Cf. M.K. 27b."
,k17a_2:" This figure was arrived at by the numerical value of [H] occurring here in the text."
,k17a_3:" [As sign of mourning for a righteous man and scholar.]"
,k17a_4:" [Although he was an evil doer.] See <i>Targum</i> on Zech. XII, 11, and Meg. 3a."
,k17a_5:" Cf., e.g., M. K. 25a and Men. 32b."
,k17a_6:" V. P.B. p. 4."
,k17a_7:" Meg. 27a; Kid. 40b; thus indicating that the practice of the law is superior to its study."
,k17a_8:" V. A.Z. 5b."
,k17a_9:" Isa. XXXII, 20."
,k17a_10:" [Joseph and Issachar: the former is compared to an ox (Deut. XXXIII, 17) and the latter to an ass (Gen. XLIX, 14).]"
,k17a_11:" Hos X, 12."
,k17a_12:" Isa. LV, 1."
,k17a_13:" So MS.M. The printed editions have 'canopy'. [Rashi connects it with the descriptions of 'branches running over the wall.']"
,k17a_14:" Gen XLIX, 22."
,k17a_15:" Ibid. 14."
,k17a_16:" Deut. XXXIII, 17."
,k17a_17:" I Chron. XII, 32."
,k17a_18:" Referring to <i>supra</i> p. 68."
,k17a_19:" As it is subject to the law of 'Foot'."
,k17a_20:" Since it was broken not by the actual body of the animal (or poultry) but by its agency and force in some other object, it comes within the purview of the law of 'Pebbles'; v. Glos, Zeroroth"
,k17a_21:" Lit. 'The cocks'. "
}

txt:
<p>
and the other said: For seven days. Others, however, said: For thirty days.<a id="k17a_1"><sup>1</sup></a>
</p><p>
	Our Rabbis taught: <I>And they did him honour at his death</I>, in the case of Hezekiah the king of Judah, means that there marched before him thirty-six<a id="k17a_2"><sup>2</sup></a>&nbsp; thousand [warriors] with bare shoulders;<a id="k17a_3"><sup>3</sup></a>&nbsp; this is the view of R. Judah. R. Nehemiah, however, said to him: Did they not do the same before Ahab?<a id="k17a_4"><sup>4</sup></a>&nbsp; [In the case of Hezekiah] they placed the scroll of the Law upon his coffin and declared: 'This one fulfilled all that which is written there.' But do we not even now do the same [on appropriate occasions]?<a id="k17a_5"><sup>5</sup></a>&nbsp; &mdash; We only bring out [the scroll of the Law] but do not place [it on the coffin].<a id="k17a_5"><sup>5</sup></a>&nbsp; It may alternatively be said that sometimes we also place [it on the coffin] but do not say. 'He fulfilled [the law]&nbsp;&hellip;'
</p><p>
	Rabbah b. Bar Hanah said: I was once following R. Johanan for the purpose of asking him about the [above] matter. He, however, at that moment went into a toilet room. [When he reappeared and] I put the matter before him, he did not answer until he had washed his hands, put on phylacteries and pronounced the benediction.<a id="k17a_6"><sup>6</sup></a>&nbsp; Then he said to us: Even if sometimes we also say. 'He fulfilled [the law]&nbsp;&hellip;' we never say. 'He expounded [the law]&nbsp;&hellip;' But did not the Master say: The importance of the study of the law is enhanced by the fact that the study of the law is conducive to [the] practice [of the law]?<a id="k17a_7"><sup>7</sup></a>&nbsp; &mdash; This, however, offers no difficulty; the latter statement deals with studying [the law], the former with teaching [the law].
</p><p>
	R. Johanan said in the name of R. Simeon b. Yohai:<a id="k17a_8"><sup>8</sup></a>&nbsp; What is the meaning of the verse: <I>Blessed are ye that sow beside all waters, that send forth thither the feet of the ox and the ass</I>?<a id="k17a_9"><sup>9</sup></a>&nbsp; Whoever is occupied with [the study of] the law and with [deeds of] charity, is worthy of the inheritance of two tribes,<a id="k17a_10"><sup>10</sup></a>&nbsp; as it is said: <I>Blessed are ye that sow</I> &hellip; Now, sowing [in this connection] signifies 'charity', as stated, <I>Sow to yourselves in charity, reap in kindness</I>;<a id="k17a_11"><sup>11</sup></a>&nbsp; again, water [in this connection] signifies 'the law' as stated, <I>Lo, everyone that thirsteth, come ye to the waters</I>.<a id="k17a_12"><sup>12</sup></a>
</p><p>
	'He is worthy of the inheritance of two tribes:' He is worthy of an inheritance<a id="k17a_13"><sup>13</sup></a>&nbsp; like Joseph, as it is written: <I>Joseph is a fruitful bough</I>&nbsp;&hellip; whose branches run over the wall;<a id="k17a_14"><sup>14</sup></a>&nbsp; he is also worthy of the inheritance of Issachar, as it is written: <I>Issachar is a strong ass</I>.<a id="k17a_15"><sup>15</sup></a>&nbsp; There are some who say, His enemies will fall before him, as it is written: <I>With them he shall push the people together, to the ends of the earth</I>.<a id="k17a_16"><sup>16</sup></a>&nbsp; He is worthy of understanding like Issachar, as it is written: <I>And of the children of Issachar which were men that had understanding of the times to know what Israel ought to do</I>.<a id="k17a_17"><sup>17</sup></a>
</p><p>
      <H2 ALIGN="Center">
	<A NAME="chapter_ii">CHAPTER II</A>
      </H2>

</p><p>
	<B><I>MISHNAH</I></B>. WITH REFERENCE TO WHAT IS FOOT <I>MU'AD</I>?<a id="k17a_18"><sup>18</sup></a>&nbsp; [IT IS <I>MU'AD</I>:] TO BREAK [THINGS] IN THE COURSE OF WALKING. ANY ANIMAL IS <I>MU'AD</I> TO WALK IN ITS USUAL WAY AND TO BREAK [THINGS]. BUT IF IT WAS KICKING OR PEBBLES WERE FLYING FROM UNDER ITS FEET AND UTENSILS WERE [IN CONSEQUENCE] BROKEN, [ONLY] HALF-DAMAGES WILL BE PAID. IF IT TROD UPON A UTENSIL AND BROKE IT, AND A FRAGMENT [OF IT] FELL UPON ANOTHER UTENSIL WHICH WAS ALSO BROKEN, FOR THE FIRST UTENSIL FULL DAMAGES MUST BE PAID,<a id="k17a_19"><sup>19</sup></a>&nbsp; BUT FOR THE SECOND, [ONLY] HALF-DAMAGES WILL BE PAID.<a id="k17a_20"><sup>20</sup></a>
</p><p>
	POULTRY<a id="k17a_21"><sup>21</sup></a>&nbsp; ARE <I>MU'AD</I> TO WALK IN THEIR USUAL WAY AND TO BREAK [THINGS]. IF A STRING BECAME ATTACHED TO THEIR FEET, OR WHERE THEY HOP ABOUT AND BREAK UTENSILS, [ONLY] HALF-DAMAGES WILL BE PAID.<a id="k17a_20"><sup>20</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k17b_1:" Wherefore then this redundancy?"
,k17b_2:" I.e. damage done by the actual foot."
,k17b_3:" I.e. damage done by other parts of the body of the animal, cf. <i>supra</i> p. 6."
,k17b_4:" [<I>Infra</I> 19b."
,k17b_5:" For both clauses deal with actual 'eating'."
,k17b_6:" Ex. XXII, 4. [ [H], [H] in Aramaic denotes, 'a grazing animal', 'cattle' (Rashi).]"
,k17b_7:" Which is more obvious."
,k17b_8:" I.e. damage done by other parts of the body of the animal."
,k17b_9:" 'Foot' is therefore put in the first place."
,k17b_10:" <i>Supra</i> p. 68."
,k17b_11:" CF. <i>supra</i>, p. 6."
,k17b_12:" See <i>supra</i> p. 8."
,k17b_13:" Why then was it deemed necessary to give it explicit treatment?"
,k17b_14:" As this kind of damage is subject to the law of Pebbles."
,k17b_15:" For he maintains that even in the case of Pebbles full payment has to be made."
,k17b_16:" Who hold that in the case of Pebbles only half payment is made."
,k17b_17:" Such as in the case of Pebbles."
,k17b_18:" Which is subject to the law of 'Foot'."
,k17b_19:" See also <i>supra</i> 8."
,k17b_20:" I.e., one afflicted with gonorrhoea who is subject to the laws of Lev. XV, 1-15; 19-24. Defilement is caused by him both by actual bodily touch and indirectly."
,k17b_21:" E.g when the <i>zab</i> throws some article on a person levitically clean."
,k17b_22:" Is not this obvious?"
,k17b_23:" Lit. 'calf'."
,k17b_24:" That there is in such a case full payment, because if a <i>zab</i> were to sit in a waggon that passed over clean objects, defilement would have been extended to them &mdash; the damage and the defilement respectively being regarded as having been caused by the body and not by its force."
,k17b_25:" Being therefore subject to the law of 'Foot'."
,k17b_26:" Who was a predecessor of Raba."
,k17b_27:" Cf. <i>infra</i> 26b."
,k17b_28:" Seeing that the latter is under no obligation to compensate, but the whole liability to pay is upon the one who threw the utensil from the top of the roof."
,k17b_29:" The payment for damage will therefore not be in full."
,k17b_30:" Payment will thus be in full."
,k17b_31:" Thus constituting Pebbles, for which payment will not be in full. "
}

txt:
<p>
	<B><I>GEMARA</I></B>. Rabina said to Raba: Is not FOOT [Mentioned in the commencing clause] identical with ANIMAL [mentioned in the second clause]?<a id="k17b_1"><sup>1</sup></a>&nbsp; &mdash; He answered him: [In the commencing clause the Mishnah] deals with Principals<a id="k17b_2"><sup>2</sup></a>&nbsp; whereas [in the second clause] derivatives are introduced.<a id="k17b_3"><sup>3</sup></a>&nbsp; But according to this, the subsequent Mishnah stating, 'Tooth is <I>Mu'ad</I>&nbsp;&hellip; Any animal is <I>Mu'ad</I>&nbsp;&hellip;'<a id="k17b_4"><sup>4</sup></a>&nbsp; what Principals and what derivatives could be distinguished there?<a id="k17b_5"><sup>5</sup></a>&nbsp; &mdash; Raba, however, answered him humorously, 'I expounded one [Mishnah], it is now for you to expound the other.' But what indeed is the explanation [regarding the other Mishnah]? &mdash; R. Ashi said: [In the first clause, the Mishnah] speaks of 'Tooth' of beast, whereas [in the second place] 'Tooth' of cattle is dealt with. For it might have been thought that since he shall put in be'iroh [his cattle]<a id="k17b_6"><sup>6</sup></a>&nbsp; is stated in Scripture, the law concerning Tooth should apply only to cattle, but not to beast; it is therefore made known to us that beast is included in the term 'animal'. If so, cattle<a id="k17b_7"><sup>7</sup></a>&nbsp; should be dealt with first! &mdash; Beast, which is deduced by means of interpretation, is more important [to the Mishnah which thus gives it priority]. If so, also in the opening Mishnah [dealing with FOOT, the same method should have been adopted] to state first that which is not recorded [in Scripture]?<a id="k17b_8"><sup>8</sup></a>&nbsp; &mdash; What a comparison! There [in the case of Tooth] where both [beast and cattle] are Principals, that which is introduced by means of interpretation is preferable; but here [in the case of Foot], how could the Principal be deferred and the derivative placed first?<a id="k17b_9"><sup>9</sup></a>&nbsp; You may alternatively say: Since [in the previous chapter the Mishnah] concludes with 'Foot',<a id="k17b_10"><sup>10</sup></a>&nbsp; it commences here with 'Foot'.
</p><p>
	Our Rabbis taught: An animal is <I>Mu'ad</I> to walk in its usual way and to break [things]. That is to say, in the case of an animal entering into the plaintiff's premises and doing damage [either] with its body while in motion, or with its hair while in motion, or with the saddle [which was] upon it, or with the load [which was] upon it, or with the bit in its mouth, or with the bell on its neck,<a id="k17b_11"><sup>11</sup></a>&nbsp; similarly in the case of an ass [doing damage] with its load, the payment must be in full. Symmachus says: In the case of Pebbles<a id="k17b_12"><sup>12</sup></a>&nbsp; or in the case of a pig burrowing in a dunghill and doing damage. the payment is [also] in full.
</p><p>
	[In the case of a pig] actually doing damage, is it not obvious [that the payment must be in full]?<a id="k17b_13"><sup>13</sup></a>&nbsp; &mdash; Read therefore: 'When it had caused [something of the dunghill] to fly out so that damage resulted therefrom, the payment will be in full.' But have Pebbles ever been mentioned [in this Baraitha, that Symmachus makes reference to them]? &mdash; There is something missing [in the text of the Baraitha where] the reading should be as follows: Pebbles, though being quite usual [with cattle, involve nevertheless] only half-damages; in the case of a pig digging in a dunghill and causing [something of it] to fly out so that damage resulted therefrom, only half-damages will therefore be paid. Symmachus, however, says: In the case of Pebbles, and similarly in the case of a pig digging in a dunghill and causing [something of it] to fly out so that damage resulted therefrom, the payment must he in full.
</p><p>
	Our Rabbis taught: In the case of poultry flying from one place to another and breaking utensils with their wings. the payment must be in full: but if the damage was done by the vibration that resulted from their wings, only half-damages will be paid.<a id="k17b_14"><sup>14</sup></a>&nbsp; Symmachus. however, says: [In all cases] the payment must be in full.<a id="k17b_15"><sup>15</sup></a>
</p><p>
	Another [Baraitha] taught: In the case of poultry hopping upon dough or upon fruits which they either made dirty or picked at, the payment will be in full; but if the damage resulted from their raising there dust or pebbles, only half damages<a id="k17b_14"><sup>14</sup></a>&nbsp; will be paid. Symmachus. however, says: [In all cases] the payment must be in full.
</p><p>
	Another [Baraitha] taught: In the case of poultry flying from one place to another, and breaking vessels with the vibration from their wings, only half-damages will be paid. This anonymous Baraitha records the view of the Rabbis.<a id="k17b_16"><sup>16</sup></a>
</p><p>
	Raba said: This fits in very well with [the view of] Symmachus who maintains that [damage done by an animal's] force<a id="k17b_17"><sup>17</sup></a>&nbsp; falls under the law applicable to [damage done by its] body;<a id="k17b_18"><sup>18</sup></a>&nbsp; but what about the Rabbis? If they too maintain that [damage done by an animal's] force is subject to the same law that is applicable to [damage done by its] body, why then not pay in full? If on the other hand it is not subject to the law of damage done by a body, why pay even half damages? &mdash; Raba [in answer] said: It may indeed be subject to the law applicable to damage done by a body, yet the payment of half damages in the case of Pebbles is a halachic principle based on a special tradition.<a id="k17b_19"><sup>19</sup></a>
</p><p>
	Raba said: Whatever would involve defilement in [the activities of] a <i>zab</i><a id="k17b_20"><sup>20</sup></a>&nbsp; will in the case of damage involve full payment, whereas that which in [the activities of] a <i>zab</i> would not involve defilement,<a id="k17b_21"><sup>21</sup></a>&nbsp; will in the case-of damage involve only half damages. Was Raba's sole intention to intimate to us [the law of] Pebbles?<a id="k17b_22"><sup>22</sup></a>&nbsp; &mdash; No, Raba meant to tell us the law regarding cattle<a id="k17b_23"><sup>23</sup></a>&nbsp; drawing a waggon [over utensils which were thus broken].<a id="k17b_24"><sup>24</sup></a>&nbsp; It has indeed been taught in accordance with [the view expressed by] Raba: An animal is <I>Mu'ad</I> to break [things] in the course of walking. How is that? In the case of an animal entering into the plaintiff's premises and doing damage either with its body while in motion, or with its hair while in motion, or with the saddle [which was] upon it, or with the load [which was] upon it, or with the bit in its mouth, or with the bell on its neck, similarly in the case of an ass [doing damage] with its load, or again, in the case of a calf drawing a waggon [over utensils which were thus broken], the payment must be in full.
</p><p>
	Our Rabbis taught: In the case of poultry picking at a cord attached to a pail so that the cord was snapped asunder and the bucket broken, the payment must be in full.
</p><p>
	Raba asked: In the case of [cattle] treading upon a utensil which has not been broken at once, but which was rolled away to some other place where it was then broken, what is the law? Shall we go by the original cause [of the damage in our determination of the law], which would thus amount to damage done by the body,<a id="k17b_25"><sup>25</sup></a>&nbsp; or shall only [the result, i.e.] the breaking of the utensil be the determining factor, amounting thus to Pebbles? &mdash; But why not solve the problem from a statement made by Rabbah?<a id="k17b_26"><sup>26</sup></a>&nbsp; For Rabbah said:<a id="k17b_27"><sup>27</sup></a>&nbsp; If a man threw [his fellow's] utensil from the top of a roof and another one came and and broke it with a stick [before it fell upon the ground. where it would in any case have been broken], the latter is under no liability to pay, as we say. 'It was only a broken utensil that was broken by him.' [Is not this the best proof that it is the cause of the damage which is the determining factor?]<a id="k17b_28"><sup>28</sup></a>&nbsp; &mdash; To Rabbah that was pretty certain, whereas to Raba it was doubtful.
</p><p>
	Come and hear: 'Hopping [with poultry] is not <I>Mu'ad</I>.<a id="k17b_29"><sup>29</sup></a>&nbsp; Some however say: It is <I>Mu'ad</I>.'<a id="k17b_30"><sup>30</sup></a>&nbsp; 'Could 'hopping' [in itself] be thought [in any way not to be habitual with poultry]? Does it not therefore mean: 'Hopping that results in making [a utensil] fly [from one place to another so that it is broken]&nbsp;&hellip; 'so that the point at issue is this: The latter view maintains that the original cause [of the damage] is the determining factor<a id="k17b_30"><sup>30</sup></a>&nbsp; but the former maintains that only [the result, i.e.,] the breaking of the utensil is the determining factor?<a id="k17b_31"><sup>31</sup></a>&nbsp; &mdash; No,
</P>


lvr: 41
dfh: a
notes:
 ntes={k27a_1:" Cf. <i>supra</i> p. 41."
,k27a_2:" <i>Infra</i> pp. 224-5. According to R. Ishmael compensation for manslaughter will have to be made by the owner of the ox, but according to the Rabbis there will be no payment, as the child at the time of the fatal fall was devoid of any value."
,k27a_3:" Ex. XXI, 30."
,k27a_4:" For since the falling down was caused by a wind of usual occurrence, it is considered wilful."
,k27a_5:" V. Deut. XXV, 5, and Yeb. VI, 1."
,k27a_6:" Cf. Kid. I, 1, and Yeb. 56a."
,k27a_7:" <i>Infra</i>, 86b."
,k27a_8:" For Man is <i>Mu'ad</i> to pay Depreciation even for damage done while asleep."
,k27a_9:" On account of the absence of a will to do damage."
,k27a_10:" Intending thus to fall upon a human being standing below so as to escape the worst effects of his falling, but without intention to degrade."
,k27a_11:" Deut. XXV, 11."
,k27a_12:" Ibid."
,k27a_13:" Since the person upon whose heart the live coal had been placed was able to remove it."
,k27a_14:" Lit., 'garment'."
,k27a_15:" [In this case, the failure of the owner to remove the coal could be explained as due to his belief that he could claim compensation.]"
,k27a_16:" Sanh. 76b."
,k27a_17:" <i>Infra</i> p. 531."
,k27a_18:" This does not imply release from liability, as he might have meant, 'You may tear, if you wish it,' with all the consequences it involves."
,k27a_19:" In the presence of his master; cf. Tosaf. a.l."
,k27a_20:" Not death."
,k27a_21:" Regarding compensation, as he could have removed it."
,k27a_22:" In which case there is exemption."
,k27a_23:" Where there is liability."
,k27a_24:" Heb. Kad."
,k27a_25:" Heb. Habith."
,k27a_26:" <i>Infra</i> p. 169."
,k27a_27:" V. <i>infra</i> p. 685."
,k27a_28:" How can it affect law."
,k27a_29:" The two terms may be interchanged in contracts as they are synonyms."
,k27a_30:" Regulating technical terms in contracts of sale."
,k27a_31:" Who keep the two terms distinct. "
}

txt:
<p>
is guilty of murder: R. Judah b. Bathyra, however says: If consecutively the last is liable, for he was the immediate cause of the death.<a id="k27a_1"><sup>1</sup></a>&nbsp; In the case where an ox meanwhile appeared and caught the [falling] child on its horns there is a difference of opinion between R. Ishmael the son of R. Johanan b. Beroka and the Rabbis.<a id="k27a_2"><sup>2</sup></a>&nbsp; For it was taught: Then he shall give for the redemption of his life<a id="k27a_3"><sup>3</sup></a>&nbsp; [denotes] the value of the [life of] the killed person. R. Ishmael the son of R. Johanan b. Beroka interprets it to refer to the value of the [life of] the defendant.<a id="k27a_2"><sup>2</sup></a>
</p><p>
	Rabbah further said: In the case of one falling from the top of the roof and [doing damage by] coming into close contact with a woman, there is liability for four items,<a id="k27a_4"><sup>4</sup></a>&nbsp; though were she his deceased brother's wife<a id="k27a_5"><sup>5</sup></a>&nbsp; he would thereby not yet have acquired her for wife.<a id="k27a_6"><sup>6</sup></a>&nbsp; The Four Items [in this case] include: Depreciation, Pain, Medical Expenses and Loss of Time, but not Degradation. for we have learnt:<a id="k27a_7"><sup>7</sup></a>&nbsp; There is no liability for Degradation unless there is intention [to degrade].
</p><p>
	Rabbah further said: In the case of one who through a wind of unusual occurrence fell from the top of the roof [upon a human being] and did damage as well as caused degradation, there will be liability for Depreciation<a id="k27a_8"><sup>8</sup></a>&nbsp; but exemption from the [additional] Four Items:<a id="k27a_9"><sup>9</sup></a>&nbsp; if, however, [the fall had been] through a wind of usual occurrence and damage as well as degradation was occasioned, there is liability for Four Items<a id="k27a_4"><sup>4</sup></a>&nbsp; but exemption from Degradation.<a id="k27a_7"><sup>7</sup></a>&nbsp; If he turned over [while falling]<a id="k27a_10"><sup>10</sup></a>&nbsp; there would be liability also for Degradation for it was taught: From the implication of the mere statement, And she putteth forth her hand,<a id="k27a_11"><sup>11</sup></a>&nbsp; would I not have understood that she taketh him? Why then continue in the text and she taketh him?<a id="k27a_12"><sup>12</sup></a>&nbsp; &mdash; In order to inform you that since there existed an intention to injure though none to cause degradation [there is liability even for Degradation].
</p><p>
	Rabbah again said: In the case of one placing a live coal on a neighbour's heart and death resulting, there is exemption;<a id="k27a_13"><sup>13</sup></a>&nbsp; if, however, it was put upon his belongings<a id="k27a_14"><sup>14</sup></a>&nbsp; which were [thereby] burnt, there is liability.<a id="k27a_15"><sup>15</sup></a>&nbsp; Raba said: Both of the two [latter cases] have been dealt with in Mishnah. Regarding the case 'on a neighbour's heart' we learnt:<a id="k27a_16"><sup>16</sup></a>&nbsp; If one man held another fast down in fire or in water, so that it was impossible for him to emerge and death resulted, he is guilty [of murder]. If, however, he pushed him into fire or into water, and it was yet possible for him to emerge but death resulted, there is exemption. Regarding the case 'Upon his belongings' we have similarly learnt:<a id="k27a_17"><sup>17</sup></a>&nbsp; [If a man says to another,] 'Tear my garment;' 'Break my jug;'<a id="k27a_18"><sup>18</sup></a>&nbsp; there is nevertheless liability [for any damage done to the garment or to the jug]. But if he said, '&hellip; upon the understanding that you will incur no liability,' there is exemption. Rabbah, however, asked: If a man placed a live coal upon the heart of a slave<a id="k27a_19"><sup>19</sup></a>&nbsp; [and injury<a id="k27a_20"><sup>20</sup></a>&nbsp; results therefrom], what should be the law?<a id="k27a_21"><sup>21</sup></a>&nbsp; Does it come under the law applicable in the case of a coal having been placed upon the body of the master himself,<a id="k27a_22"><sup>22</sup></a>&nbsp; or to that applicable in the case of a coal having been placed upon a chattel of his?<a id="k27a_23"><sup>23</sup></a>&nbsp; Assuming that it is subject to the law applicable in the case of a coal having been placed upon the heart of the master himself,<a id="k27a_22"><sup>22</sup></a>&nbsp; what should be the law regarding a live coal placed upon an ox [from which damage resulted]? &mdash; He himself answered the query thus: His slave is on a par with his own body,<a id="k27a_22"><sup>22</sup></a>&nbsp; whereas his ox is on a par with his chattels.<a id="k27a_23"><sup>23</sup></a>
</p><p>

      <H2 ALIGN="Center">
	<A NAME="chapter_iii">CHAPTER III</A>
      </H2>
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN PLACES A [KAD] PITCHER ON PUBLIC GROUND AND ANOTHER ONE COMES AND STUMBLES OVER IT AND BREAKS IT, HE IS EXEMPT. IF THE OTHER ONE WAS INJURED BY IT, THE OWNER OF THE [HABITH] BARREL IS LIABLE TO COMPENSATE FOR THE DAMAGE.
</p><p>
	<B><I>GEMARA</I></B>. To commence with PITCHER<a id="k27a_24"><sup>24</sup></a>&nbsp; and conclude with BARREL!<a id="k27a_25"><sup>25</sup></a>&nbsp; And we have likewise learnt also elsewhere:<a id="k27a_26"><sup>26</sup></a>&nbsp; If one man comes with his [habith] barrel and another comes with his beam and [it so happened that] the [kad] pitcher of this one breaks by [collision with] the beam of that one, he is exempt.<a id="k27a_26"><sup>26</sup></a>&nbsp; Here [on the other hand] the commencement is with barrel<a id="k27a_25"><sup>25</sup></a>&nbsp; and the conclusion with pitcher!<a id="k27a_24"><sup>24</sup></a>&nbsp; We have again likewise learnt elsewhere: In the case of this man coming with a [habith] barrel of wine and that one proceeding with a [kad] pitcher of honey, and as the [habith] barrel of honey cracked, the owner of the wine poured out his wine and saved the honey into his barrel, he is entitled to no more than his service.<a id="k27a_27"><sup>27</sup></a>&nbsp; Here again the commencement is with pitcher<a id="k27a_25"><sup>25</sup></a>&nbsp; and the conclusion with barrel!<a id="k27a_25"><sup>25</sup></a>&nbsp; R. Papa thereupon said: Both kad and habith may denote one and the same receptacle. But what is the purpose in this observation?<a id="k27a_28"><sup>28</sup></a>&nbsp; &mdash; Regarding buying and selling.<a id="k27a_29"><sup>29</sup></a>&nbsp; But under what circumstances? It could hardly be thought to refer to a locality where neither kad is termed habith nor habith designated kad, for are not these two terms then kept there distinct? &mdash; No, it may have application in a locality where, though the majority of people refer to kad by the term kad and to habith by the term habith, yet there are some who refer to habith by the term kad and to kad by the term habith. You might perhaps have thought that the law<a id="k27a_30"><sup>30</sup></a>&nbsp; follows the majority.<a id="k27a_31"><sup>31</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k27b_1:" Cf. <i>infra</i> p. 263 and B.B. 92b."
,k27b_2:" As the defendant is entitled to plead that he belongs to the minority."
,k27b_3:" Such a public nuisance may thus be abated."
,k27b_4:" The defendant is thus not to blame."
,k27b_5:" I.e., in Eretz Yisrael, which is West of Babylon."
,k27b_6:" For breaking the pitcher."
,k27b_7:" Probably because the roads in Eretz Yisrael were in better condition than in Babylon; v. Shab. 33b; A. Z. 3a."
,k27b_8:" A town in Babylon."
,k27b_9:" That were the pitcher to have been in a visible place there would be liability."
,k27b_10:" The defendant."
,k27b_11:" And was thus to blame for the damage he had done."
,k27b_12:" Cf. <i>infra</i> 90a, dealing with some other fixed fines."
,k27b_13:" <i>Sela'</i> is a coin equal to one sacred or two common <i>shekels</i>; v. <a href=\"../tglossary.html\">Glos.</a>"
,k27b_14:" For the judicial right to impose fines is confined to Palestinian judges; cf. <i>supra</i> p. 67 and <i>infra</i> 84b."
,k27b_15:" R. Hisda."
,k27b_16:" Cf. B.B. 13a."
,k27b_17:" I.e., resort to force."
,k27b_18:" As where there is apprehension that the Court will be unable to redress the wrong done, e.g., in case all the water in the well will be used up."
,k27b_19:" V. Ab. (Sonc. ed.) p. 76. n. 7."
,k27b_20:" Cf. Tosef. B.K. X."
,k27b_21:" Since it is definitely stated that he may break his teeth&nbsp;&hellip; [The case dealt with here is where the loss is not irreparable, otherwise, as stated above, he would be allowed to enter even without permission.]"
,k27b_22:" Thus contradicting the view of Rab Judah."
,k27b_23:" Rab Judah. "
}

txt:
<p>
It is therefore made known to us that we do not follow the majority<a id="k27b_1"><sup>1</sup></a>&nbsp; in [disputes on] matters of money.<a id="k27b_2"><sup>2</sup></a>
</p><p>
	AND ANOTHER ONE COMES AND STUMBLES OVER IT AND BREAKS IT, HE IS EXEMPT. Why exempt? Has not one to keep one's eyes open when walking? &mdash; They said at the school of Rab, even in the name of Rab: The whole of the public ground was filled with barrels.<a id="k27b_3"><sup>3</sup></a>&nbsp; Samuel said: It is with reference to a dark place that we have learnt [the law in the Mishnah]. R. Johanan said: The pitcher was placed at the corner of a turning.<a id="k27b_4"><sup>4</sup></a>&nbsp; R. Papa said: Our Mishnah is not consistent unless in accordance with Samuel or R. Johanan, for according to Rab why exemption only in the case of stumbling [over the pitcher]? Why not the same ruling even when one directly broke it? &mdash; R. Zebid thereupon said in the name of Raba: The same law applies even when the defendant directly broke it; for AND STUMBLES was inserted merely because of the subsequent clause which reads, IF THE OTHER ONE WAS INJURED BY IT, THE OWNER OF THE BARREL IS LIABLE TO COMPENSATE FOR THE DAMAGE; and which of course applies only to 'stumbling' but not to direct breaking, in which case it only stands to reason that it is the plaintiff who is to blame for the damage he caused to himself. It was therefore on this account that 'stumbling' was inserted in the commencing clause.
</p><p>
	R. Abba said to R. Ashi: In the West<a id="k27b_5"><sup>5</sup></a>&nbsp; the following [explanation] is stated in the name of R. 'Ulla: [The exemption<a id="k27b_6"><sup>6</sup></a>&nbsp; is] because it is not the habit of men to look round while walking on the road.<a id="k27b_7"><sup>7</sup></a>&nbsp; Such a case occurred in Nehardea<a id="k27b_8"><sup>8</sup></a>&nbsp; where Samuel ordered compensation [for the broken utensil] and so also in Pumbeditha<a id="k27b_8"><sup>8</sup></a>&nbsp; where Raba similarly ordered compensation to he paid. We understand this in the case of Samuel who abided by the dictum he himself propounded,<a id="k27b_9"><sup>9</sup></a>&nbsp; but regarding Raba are we to say that he [also] embraced the view of Samuel? &mdash; R. Papa thereupon said: [In the case of Raba] the damage was done at the corner of an oil factory; and since it was usual to keep there barrels, he<a id="k27b_10"><sup>10</sup></a>&nbsp; ought to have kept his eyes open while walking there.<a id="k27b_11"><sup>11</sup></a>
</p><p>
	R. Hisda dispatched [the following query] to R. Nahman: As there has already been fixed a fine<a id="k27b_12"><sup>12</sup></a>&nbsp; of three sela's<a id="k27b_13"><sup>13</sup></a>&nbsp; for kicking with the knee; five for kicking with the foot; thirteen for a blow with the saddle of an ass &mdash; what is the fine for wounding with the blade of the hoe or with the handle of the hoe? &mdash; The reply was forwarded [as follows]: 'Hisda, Hisda! Is it your practice in Babylon to impose fines?<a id="k27b_14"><sup>14</sup></a>&nbsp; Tell me the actual circumstances of the case as it occurred.' He<a id="k27b_15"><sup>15</sup></a>&nbsp; thereupon dispatched him thus: There was a well belonging to two persons. It was used by them on alternate days.<a id="k27b_16"><sup>16</sup></a>&nbsp; One of them, however, came and used it on a day not his. The other party said to him: 'This day is mine!' But as the latter paid no heed to that, he took a blade of a hoe and struck him with it. R. Nahman thereupon replied: No harm if he would have struck him a hundred times with the blade of the hoe. For even according to the view that a man may not take the law in his own hands<a id="k27b_17"><sup>17</sup></a>&nbsp; for the protection of his interests, in a case where an irreparable loss is pending<a id="k27b_18"><sup>18</sup></a>&nbsp; he is certainly entitled to do so.
</p><p>
	It has indeed been stated: Rab Judah said: No man may take the law into his own hands for the protection of his interests, whereas R. Nahman said: A man may take the law into his own hands for the protection of his interests. In a case where an irreparable loss is pending, no two opinions exist that he may take the law into his own hands for the protection of his interests: the difference of opinion is only where no irreparable loss is pending. Rab Judah maintains that no man may take the law into his own hands for the [alleged] protection of his interests, for since no irreparable loss is pending let him resort to the Judge; whereas R. Nahman says that a man may take the law into his own hands for the protection of his interests, for since he acts in accordance with [the prescriptions of the] law, why [need he] take the trouble [to go to Court]?
</p><p>
	R. Kahana [however] raised an objection; Ben Bag Bag said;<a id="k27b_19"><sup>19</sup></a>&nbsp; Do not enter [stealthily] into thy neighbour's premises for the purpose of appropriating without his knowledge anything that even belongs to thee, lest thou wilt appear to him as a thief. Thou mayest, however, break his teeth and tell him, 'I am taking possession of what is mine.'<a id="k27b_20"><sup>20</sup></a>&nbsp; [Does not this prove that a man may take the law into his own hands<a id="k27b_21"><sup>21</sup></a>&nbsp; for the protection of his rights?<a id="k27b_22"><sup>22</sup></a>] &mdash; He<a id="k27b_23"><sup>23</sup></a>&nbsp; thereupon said
</P>


lvr: 41
dfh: a
notes:
 ntes={k36a_1:" [Identified with Faransag, near Bagdad, v. Obermeyer, <i>op. cit</i>., p. 269.]"
,k36a_2:" In which case the whole estate of the defendant can be distrained upon for the payment of damages; <i>supra</i> p. 73."
,k36a_3:" Cf. <i>supra</i> p 181."
,k36a_4:" So that there is no warrant for Raba of Parazika's inference."
,k36a_5:" Against the plaintiff."
,k36a_6:" And not the other ox that has been lost."
,k36a_7:" In the body of the ox."
,k36a_8:" Lit., 'the later always profits' as it is he who has the right of priority."
,k36a_9:" As explained <i>supra</i> pp. 187-8."
,k36a_10:" For the reason v. Gemara, <i>infra</i> p. 203."
,k36a_11:" As the defendant and the first claimant became the owners of the ox in common."
,k36a_12:" I.e., the defendant and the first claimant."
,k36a_13:" I.e., twenty-five <i>zuz</i>."
,k36a_14:" For which cf. <i>supra</i> p. 181."
,k36a_15:" As is usually the case with other creditors: v. p. 185."
,k36a_16:" V.p. 201, n. 1. "
}

txt:
<p>
The plaintiff is entitled to get paid [only where he produces evidence to substantiate the claim] but [failing that he] will have nothing at all. But has it not been taught: He will be paid for [the injury done to] the little one in accordance with the regulations applying to <i>Mu'ad</i> and for [the injury done to] the big one out of the body of the <i>Tam</i>? &mdash; Only where he had already seized them.
</p><p>
	BUT WHERE BOTH OF THE [PURSUING] OXEN BELONGED TO THE SAME OWNER, LIABILITY WILL ATTACH TO BOTH OF THEM. Raba of Parazika<a id="k36a_1"><sup>1</sup></a>&nbsp; said to R. Ashi: It can be concluded from this that where oxen in the state of <i>Tam</i> [belonging to the same owner] did damage, the plaintiff has the option to distrain either on the one or the other! &mdash; [No, replied R. Ashi, for] we are dealing here [in the Mishnah] with a case where they were <i>Mu'ad</i>.<a id="k36a_2"><sup>2</sup></a>&nbsp; If where they were <i>Mu'ad</i> how do you explain the concluding clause: WHERE, HOWEVER, ONE [OF THE OXEN] WAS BIG AND THE OTHER LITTLE AND THE CLAIMANT MAINTAINS THAT THE BIG ONE DID THE DAMAGE WHILE THE DEFENDANT PLEADS 'NOT SO, FOR IT WAS THE LITTLE ONE THAT DID THE DAMAGE' THE BURDEN OF PROOF FALLS ON THE CLAIMANT. For indeed where they were <i>Mu'ad</i> what difference could there be [whether the big one or the little one did the damage] since at all events he has to pay the full value of the ox? &mdash; He thereupon said to him: The concluding clause presents a case where they were <i>Tam</i>, though the opening clause deals with a case where the oxen were <i>Mu'ad</i>. Said R. Aha the Elder to R. Ashi: If the commencing clause deals with a case where the oxen were <i>Mu'ad</i>,<a id="k36a_2"><sup>2</sup></a>&nbsp; what is the meaning of 'LIABILITY WILL ATTACH TO BOTH OF THEM'? Should not the text run, 'The owner will be liable'? Again, what is the meaning of 'BOTH OF THEM'? &mdash; [The commencing clause also] must therefore deal with a case where the oxen were <i>Tam</i>, and the ruling stated follows the view of R. Akiba, that plaintiff and defendant become the owners in common [of the attacking ox].<a id="k36a_3"><sup>3</sup></a>&nbsp; Now this is so where 'BOTH OF THEM' [the oxen] are with the owner, in which case he cannot possibly shift the claim [from one to the other].<a id="k36a_4"><sup>4</sup></a>&nbsp; But if 'BOTH OF THEM' are not with him he may plead,<a id="k36a_5"><sup>5</sup></a>&nbsp; 'Go and produce evidence that it was this ox [which is still with me]<a id="k36a_6"><sup>6</sup></a>&nbsp; that did the damage, and then I will pay you.'
</p><p>

      <H2 ALIGN="Center">
	<A NAME="chapter_iv">CHAPTER IV</A>
      </H2>
</p><p>
	<B><I>MISHNAH</I></B>. IF A [<I>TAM</I>] OX HAS GORED FOUR OR FIVE OXEN ONE AFTER THE OTHER, COMPENSATION SHOULD IN THE FIRST INSTANCE BE MADE [OUT OF THE BODY OF THE OX] FOR THE LAST OFFENCE. SHOULD THERE BE A SURPLUS,<a id="k36a_7"><sup>7</sup></a>&nbsp; COMPENSATION IS TO BE PAID ALSO FOR THE PENULTIMATE OFFENCE; SHOULD THERE STILL BE A SURPLUS, COMPENSATION IS TO BE MADE TO THE ONE BEFORE; THE LATER THE LIABILITY THE PRIOR THE CLAIM.<a id="k36a_8"><sup>8</sup></a>&nbsp; THIS IS THE OPINION OF R. MEIR. R. SIMEON SAYS: IF AN OX OF THE VALUE OF TWO HUNDRED [<I>ZUZ</I>] HAS GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [<I>ZUZ</I>] AND THE CARCASS HAS NO VALUE AT ALL, THE PLAINTIFF WILL GET A HUNDRED <I>ZUZ</I> AND THE DEFENDANT WILL GET A HUNDRED <I>ZUZ</I> [OUT OF THE BODY OF THE OX THAT DID THE DAMAGE].<a id="k36a_9"><sup>9</sup></a>&nbsp; SHOULD THE SAME OX HAVE GORED ANOTHER OX OF THE VALUE OF TWO HUNDRED [<I>ZUZ</I>], THE SECOND CLAIMANT WILL GET A HUNDRED <I>ZUZ</I>, WHILE THE FORMER CLAIMANT WILL GET ONLY FIFTY <I>ZUZ</I><a id="k36a_10"><sup>10</sup></a>&nbsp; AND THE DEFENDANT WILL HAVE FIFTY <I>ZUZ</I> [IN THE BODY OF HIS OX].<a id="k36a_11"><sup>11</sup></a>&nbsp; SHOULD THE OX HAVE GORED YET ANOTHER OX OF THE VALUE OF TWO HUNDRED [<I>ZUZ</I>], THE THIRD CLAIMANT WILL GET A HUNDRED [<I>ZUZ</I>] WHILE THE SECOND WILL GET ONLY FIFTY [<I>ZUZ</I>]<a id="k36a_10"><sup>10</sup></a>&nbsp; AND THE FIRST TWO PARTIES<a id="k36a_12"><sup>12</sup></a>&nbsp; WILL HAVE A GOLD <I>DENAR</I><a id="k36a_13"><sup>13</sup></a>&nbsp; [EACH IN THE BODY OF THE OX THAT DID THE DAMAGE].<a id="k36a_11"><sup>11</sup></a>
<P>
	<B><I>GEMARA</I></B>. Who is the author of our Mishnah? It is in accordance neither with the view of R. Ishmael nor with that of R. Akiba!<a id="k36a_14"><sup>14</sup></a>&nbsp; For if it is in accordance with R. Ishmael, who maintains that they [the claimants of damages] are like any other creditors, how can it be said that THE LATER THE LIABILITY THE PRIOR THE CLAIM? Should it not be, the earlier the liability the prior the claim?<a id="k36a_15"><sup>15</sup></a>&nbsp; If, on the other hand, it is in accordance with R. Akiba who maintains that the ox becomes the common property [of the plaintiff and the defendant], how can it be said that, IN THE CASE OF THERE BEING A SURPLUS<a id="k36a_16"><sup>16</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k36b_1:" As <i>supra</i> p. 57, and <i>infra</i> p. 255."
,k36b_2:" Since it is not the owner but the claimant in regard to the penultimate offence who has to he liable in respect of the last offence."
,k36b_3:" I.e., to the penultimate plaintiff."
,k36b_4:" As e.g. where an ox of the value of a hundred <i>zuz</i> gored successively the ox of A the ox of B and the ox of C, and the damages amount to fifty, thirty and twenty <i>zuz</i> respectively, C will be paid the sum of twenty, B only ten, which is the difference between the compensation due to him and that due from him to C, and A will get twenty, which again is the difference between the compensation due to him from the owner (of the ox that did the damage) and that owing from him to B. All the payments together, which are twenty to A, ten to B and twenty to C, make only fifty, so that the balance of the value of the ox will go to its owner."
,k36b_5:" For if otherwise, why should the first two parties (the owner and the first claimant) always be treated alike?"
,k36b_6:" Cf. <i>supra</i> p. 60, n. 2."
,k36b_7:" And do not try to make it self-consistent."
,k36b_8:" V. <i>supra</i> p. 181. [This bracketed passage is to be deleted with Rashi, v. D.S. a.l.]"
,k36b_9:" <i>Infra</i> p. 520"
,k36b_10:" A Palestinian coin, v. <a href=\"../tglossary.html\">Glos.</a>"
,k36b_11:" Four <i>zuz</i>, v. <i>infra</i> p. 521, n. 6."
,k36b_12:" As stated by the anonymous view."
,k36b_13:" Half a <i>zuz</i>."
,k36b_14:" I.e. where the last claimant will have a <i>maneh</i>, the next fifty <i>zuz</i>, the rest one gold <i>denar</i>, and the first claimant and the owner 12 <i>zuz</i> and one <i>sela'</i> each."
,k36b_15:" Who cries the whole list of his wares. Cf. Git. 33a."
,k36b_16:" As to the exact meaning of <i>sela'</i>."
,k36b_17:" Cf. Kid. 11b and Bek. 50b."
,k36b_18:" [Lit., 'silver'. The market value of silver coinage was determined by Tyre, v. Krauss, <i>op. cit</i>., II, 405]"
,k36b_19:" Lit., 'the country'."
,k36b_20:" Lit., 'hand'."
,k36b_21:" Git. 37a. >"
}

txt:
<p>
COMPENSATION WILL BE MADE FOR THE PENULTIMATE OFFENCE? Should it not be 'Compensation will be made [proportionately] for each offence'? &mdash; Raba replied: The Mishnah is indeed in accordance with R. Ishmael, who holds that claimants [of damages] are like any other creditors; and as to your objection to the statement 'THE LATER THE LIABILITY THE PRIOR THE CLAIM', which you contend should be 'The earlier the liability the prior the claim', [it can be argued] that we deal here with a case where each plaintiff has [in turn] seized the goring ox for the purpose of getting paid [the amount due to him] out of its body, in which case each has in turn acquired [in respect of the ox] the status of a paid bailee, liable for subsequent damages done by it.<a id="k36b_1"><sup>1</sup></a>&nbsp; But if so, why does it say. SHOULD THERE BE A SURPLUS COMPENSATION IS TO BE PAID ALSO FOR THE PENULTIMATE OFFENCE? Should it not be: 'The surplus will revert to the owner'?<a id="k36b_2"><sup>2</sup></a>&nbsp; &mdash; Rabina therefore said: The meaning is this: Should there be an excess in the damage done to him<a id="k36b_3"><sup>3</sup></a>&nbsp; over that done to the subsequent plaintiff, the amount of the difference will revert to the plaintiff in respect of the preceding damage.<a id="k36b_4"><sup>4</sup></a>&nbsp; So too, when Rabin returned [from Eretz Yisrael] he stated on behalf of R. Johanan that it was for the failure [to carry out their duty] as bailees that liability was incurred [by the earlier plaintiffs to the later].
</p><p>
	How then have you explained the Mishnah? As being in accordance with R. Ishmael! If so, what of the next clause: R. SIMEON SAYS: WHERE AN OX OF THE VALUE OF TWO HUNDRED [<I>ZUZ</I>] HAS GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [<I>ZUZ</I>] AND THE CARCASS HAD NO VALUE AT ALL, THE PLAINTIFF WILL GET A HUNDRED <I>ZUZ</I> AND THE DEFENDANT WILL SIMILARLY GET A HUNDRED <I>ZUZ</I> [OUT OF THE BODY OF THE OX THAT DID THE DAMAGE]. SHOULD THE SAME OX HAVE GORED ANOTHER OX OF THE VALUE OF TWO HUNDRED [<I>ZUZ</I>], THE SECOND CLAIMANT WILL GET A HUNDRED <I>ZUZ</I>, WHILE THE FORMER CLAIMANT WILL GET ONLY FIFTY <I>ZUZ</I>, AND THE DEFENDANT WILL HAVE FIFTY <I>ZUZ</I> [IN THE BODY OF THE OX]. SHOULD THE OX HAVE GORED YET ANOTHER OX OF THE VALUE OF TWO HUNDRED [<I>ZUZ</I>], THE THIRD PLAINTIFF WILL GET A HUNDRED [<I>ZUZ</I>], WHILE THE SECOND PLAINTIFF WILL GET FIFTY [<I>ZUZ</I>] AND THE FIRST TWO PARTIES WILL HAVE A GOLD <I>DENAR</I> [EACH IN THE BODY OF THE OX THAT DID THE DAMAGE]. This brings us back [does it not] to the view of R. Akiba, who maintains that the ox becomes the common property [of the plaintiff and the defendant].<a id="k36b_5"><sup>5</sup></a>&nbsp; Will then the first clause be in accordance with R. Ishmael and the second clause in accordance with R. Akiba? &mdash; That is so, since even Samuel said to Rab Judah, 'Shinena,<a id="k36b_6"><sup>6</sup></a>&nbsp; leave this Mishnah alone<a id="k36b_7"><sup>7</sup></a>&nbsp; and accept my explanation. that its first clause is [in accordance with] R. Ishmael and its second clause [in accordance with] R. Akiba.' (It was also stated that R. Johanan said: An actual case in which they would differ is where the plaintiff consecrates the goring ox [to the Temple].)<a id="k36b_8"><sup>8</sup></a>
</p><p>
  	We have learnt elsewhere:<a id="k36b_9"><sup>9</sup></a>&nbsp; If a man boxes another man's ear, he has to give him a <i>sela'</i><a id="k36b_10"><sup>10</sup></a>&nbsp; [in compensation]. R. Judah in the name of R. Jose the Galilean says: A hundred <i>zuz</i>. A certain man having [been summoned for] boxing another man's ear, R. Tobiah b. Mattena sent an inquiry to R. Joseph, as to whether a Tyrian <i>sela'</i><a id="k36b_11"><sup>11</sup></a>&nbsp; is meant in the Mishnah<a id="k36b_12"><sup>12</sup></a>&nbsp; or merely a <i>sela'</i> of [this] country.<a id="k36b_13"><sup>13</sup></a>&nbsp; He sent back a reply: You have learnt it: AND THE FIRST TWO PARTIES WILL HAVE A GOLD <I>DENAR</I> [EACH]. Now, should you assume that the Tanna is calculating by the <i>sela'</i><a id="k36b_13"><sup>13</sup></a>&nbsp; of [this] country, [we may ask,] why does he not continue the division by introducing a further case where the amount [left for the first two] will come down to twelve [<i>zuz</i>] and one <i>sela'</i>?<a id="k36b_14"><sup>14</sup></a>&nbsp; To which R. Tobiah replied: Has then the Tanna to string out cases like a peddler?<a id="k36b_15"><sup>15</sup></a>&nbsp; What, however, is the solution?<a id="k36b_16"><sup>16</sup></a>&nbsp; &mdash; The solution was gathered from the statement made by Rab Judah on behalf of Rab:<a id="k36b_17"><sup>17</sup></a>&nbsp; 'Wherever money<a id="k36b_18"><sup>18</sup></a>&nbsp; is mentioned in the Torah, the reference is to Tyrian money, but wherever it occurs in the words of the Rabbis it means local<a id="k36b_19"><sup>19</sup></a>&nbsp; money.' The plaintiff upon hearing that said to the judge: 'Since it will [only] amount to half a <i>zuz</i>,<a id="k36b_12"><sup>12</sup></a>&nbsp; I do not want it; let him give it to the poor.' Later, however, he said; 'Let him give it to me, as I will go and obtain a cure for myself with it.' But R. Joseph said to him: The poor have already acquired a title to it, for though the poor were not present here, we [in the Court, always] act as the agents<a id="k36b_20"><sup>20</sup></a>&nbsp; of the poor, as Rab Judah said on behalf of Samuel:<a id="k36b_21"><sup>21</sup></a>&nbsp; Orphans
</P>


lvr: 41
dfh: a
notes:
 ntes={k46a_1:" Ex. XXI, 29."
,k46a_2:" Ibid. 33"
,k46a_3:" <i>Infra</i> 52a."
,k46a_4:" <i>Supra</i> p. 67."
,k46a_5:" Deut. XXII, 8. The same prohibition applies to a goring ox."
,k46a_6:" In which case the death of the calf could not he imputed to the goring of the ox."
,k46a_7:" So that the miscarriage of the calf was a result of the goring."
,k46a_8:" In the case of <i>Tam</i>."
,k46a_9:" As these have certainly resulted from the goring of the ox."
,k46a_10:" On account of the doubt."
,k46a_11:" In which case the calf did not participate in the goring."
,k46a_12:" So that the calf while it was still an embryo took part in the act of the cow."
,k46a_13:" V. Gemara, <i>infra</i> p. 264."
,k46a_14:" Cf. also <i>supra</i> p. 196."
,k46a_15:" B.B. 92a."
,k46a_16:" At the instance of the vendee."
,k46a_17:" As Samuel follows his own view that this grand principle in law accepted by the Sages has to he applied in all cases and in all circumstances, as the Gemara proceeds to explain."
,k46a_18:" Would this consideration not be a piece of good circumstantial evidence?"
,k46a_19:" As indeed maintained by R. Judah in a similar case dealt with in B. B. 77b; as to the other view, cf. Tosaf. a.l. "
}

txt:
<p>
But in the case of an ox which was altogether <i>Mu'ad</i> no element of <i>Tam</i> could be found in it at all.
</p><p>
	R. ELIEZER SAYS: NO PRECAUTION IS SUFFICIENT [FOR MU 'AD] SAVE [THE SLAUGHTER] KNIFE. Rabbah said: What was the reason of R. Eliezer? Because Scripture says: And his owner hath not kept him in,<a id="k46a_1"><sup>1</sup></a>&nbsp; [meaning] that precaution would no more be of any avail for such a one. Said Abaye to him: If that is so, why not similarly say on the strength of the words, And not cover it<a id="k46a_2"><sup>2</sup></a>&nbsp; that a cover would no more be of any avail for such a [pit]? And if you say that this is indeed the case, have we not learnt, 'Where it had been covered properly and an ox or an ass has [nevertheless] fallen into it there is exemption'?<a id="k46a_3"><sup>3</sup></a>&nbsp; &mdash; Abaye therefore said: The reason of R. Eliezer was as taught [elsewhere]:<a id="k46a_4"><sup>4</sup></a>&nbsp; R. Nathan says: Whence do we learn that a man should not bring up a vicious dog in his house, or keep a shaky ladder in his house? Because it is said: Thou bring not blood upon thy house.<a id="k46a_5"><sup>5</sup></a>
</p><p>

      <H2 ALIGN="Center">
	<A NAME="chapter_v">CHAPTER V</A>
      </H2>
</p><p>
	<B><I>MISHNAH</I></B>. IF AN OX HAS GORED A COW AND ITS [NEWLY-BORN] CALF IS FOUND [DEAD] NEAR BY, AND IT IS UNKNOWN WHETHER THE BIRTH OF THE CALF PRECEDED THE GORING<a id="k46a_6"><sup>6</sup></a>&nbsp; OR FOLLOWED THE GORING,<a id="k46a_7"><sup>7</sup></a>&nbsp; HALF DAMAGES<a id="k46a_8"><sup>8</sup></a>&nbsp; WILL BE PAID FOR [THE INJURIES INFLICTED UPON] THE COW<a id="k46a_9"><sup>9</sup></a>&nbsp; BUT [ONLY] QUARTER DAMAGES WILL BE PAID FOR [THE LOSS OF] THE CALF.<a id="k46a_10"><sup>10</sup></a>&nbsp; SO ALSO WHERE A COW GORED AN OX AND A [LIVE] CALF WAS FOUND NEAR BY, SO THAT IT WAS UNKNOWN WHETHER THE BIRTH OF THE CALF PRECEDED THE GORING<a id="k46a_11"><sup>11</sup></a>&nbsp; OR FOLLOWED THE GORING,<a id="k46a_12"><sup>12</sup></a>&nbsp; HALF DAMAGES CAN BE RECOVERED OUT OF THE COW, AND QUARTER DAMAGES OUT OF THE CALF.<a id="k46a_13"><sup>13</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. Rab Judah on behalf of Samuel said: This ruling is the view of Symmachus who held that money, the ownership of which cannot be decided has to be shared [by the parties].<a id="k46a_14"><sup>14</sup></a>&nbsp; The Sages, however, say that it is a fundamental principle in law that the onus probandi falls on the claimant. Why was it necessary to state 'this is a fundamental principle in law'? &mdash; It was necessary to imply that even where the plaintiff is positive and the defendant dubious<a id="k46a_14"><sup>14</sup></a>&nbsp; it is still the plaintiff on whom falls onus probandi. Or [we may say] it is also necessary in view of a case of this kind: For it has been stated:<a id="k46a_15"><sup>15</sup></a>&nbsp; If a man sells an ox to another and it is found to be a gorer, Rab maintained that the sale would be voidable,<a id="k46a_16"><sup>16</sup></a>&nbsp; whereas Samuel said that the vendor could plead 'I sold it to be slaughtered'.<a id="k46a_17"><sup>17</sup></a>&nbsp; How so? Why not see whether the vendee was a person buying for field work or whether he was a person buying to slaughter?<a id="k46a_18"><sup>18</sup></a>&nbsp; &mdash; Samuel's view can hold good where he was a person buying both for the one and the other. But why not see if the money paid corresponded to the value of an ox for field work, then it must have been purchased for field work; if, on the other hand it corresponded to that of an ox to be slaughtered, then it must have been purchased for slaughter?<a id="k46a_19"><sup>19</sup></a>&nbsp; &mdash; Samuel's view could still hold good where there was a rise in the price of meat so that the ox was worth the price paid for one for field work.
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k46b_1:" Since the meat of the ox is worth the purchase money."
,k46b_2:" I.e. from your debtor who is now the owner of the money lent to him; cf. the Roman 'Mutuum'."
,k46b_3:" In which case the creditor is entitled to ready cash; cf. Tosaf. a.l. and <i>supra</i> 9a; 27a; B.B. 92b."
,k46b_4:" Which is otherwise an accepted principle in Rabbinic Law; cf. Hul. 11b."
,k46b_5:" Ex. XXIV, 14."
,k46b_6:" Keth. 22a and Nid. 25a."
,k46b_7:" I.e., where A instituted an action against B, and B on appearance introduced a counter-claim against A; cf. Rashi and Tosaf. a.l., and Sanh. 35a."
,k46b_8:" Where, e.g., he has an opportunity of disposing of the estate concerned at a high price &mdash; an opportunity he might miss through any delay in a settlement of his counter-claim."
,k46b_9:" I.e., a half of the half, as half constitutes the whole payment in the case of <i>Tam</i>."
,k46b_10:" I.e., a quarter of the half."
,k46b_11:" Since both the cow and the calf belong to you."
,k46b_12:" As e.g., where the cow was sold with the exception of its offspring; Rashi."
,k46b_13:" That is, that the calf took part in the goring, otherwise you must be held solely responsible."
,k46b_14:" So that I cannot accordingly be held liable for all the damages."
,k46b_15:" Unless you prove to the contrary."
,k46b_16:" How then could Abaye interpret half-damages to mean quarter damages, and quarter damages to mean an eighth of the damage?"
,k46b_17:" In the case stated in the Mishnah."
,k46b_18:" To be distrained upon for the damages in accordance with the law applicable to <i>Tam</i>."
,k46b_19:" As she definitely did the damage. "
}

txt:
<p>
I may here ask: If the vendor had not the wherewithal for making payment, why not take the ox in lieu of money?<a id="k46b_1"><sup>1</sup></a>&nbsp; Do not people say, 'From the owner of your loan<a id="k46b_2"><sup>2</sup></a>&nbsp; take payment even in bran'? &mdash; No, this is to be applied where he had the wherewithal for making payment.<a id="k46b_3"><sup>3</sup></a>&nbsp; Rab who said that it was a voidable purchase maintained that we decide according to the majority of cases, and the majority of people buy for field work. Samuel, however, said that the vendor might plead against him, 'It was for slaughter that I sold it to thee,' and that we do not follow the majority,<a id="k46b_4"><sup>4</sup></a>&nbsp; for we follow the majority only in ritual matters, but in pecuniary cases we do not follow the majority, but whoever has a [pecuniary] claim against his neighbour the onus probandi falls upon him.
</p><p>
	It has been taught to the same effect: 'Where an ox gored a cow and its [newly-born] calf was found [dead] nearby, so that it was unknown whether the birth of the calf preceded the goring, or followed the goring, half damages will be paid for [injuries inflicted upon] the cow but only quarter damages will be paid for [the loss of] the calf; this is the view of Symmachus. The Sages, however, say: If one claims anything from his neighbour, the onus probandi falls upon him.
</p><p>
	R. Samuel b. Nahmani stated: Whence can we learn that the onus probandy falls on the claimant? It is said: <i>If any man have any matters to do, let him come unto them</i>,<a id="k46b_5"><sup>5</sup></a>&nbsp; [implying] 'let him bring evidence before them'. But R. Ashi demurred, saying: Do we need Scripture to tell us this?<a id="k46b_6"><sup>6</sup></a>&nbsp; Is it not common sense that if a man has a pain he visits the healer? No: the purpose of the verse is to corroborate the statement made by R. Nahman on behalf of Rabbah b. Abbuha: Whence can we learn that judges should give prior consideration to the first plaintiff?<a id="k46b_7"><sup>7</sup></a>&nbsp; It is said: If any man have any matters to do, let him come unto them</i><a id="k46b_5"><sup>5</sup></a>&nbsp; [implying]: let him cause his matters to be brought [first] before them. The Nehardeans however, said; It may sometimes be necessary to give prior consideration to the defendant, as for instance in a case where his property would otherwise depreciate in value.<a id="k46b_8"><sup>8</sup></a>
</p><p>
	SO ALSO WHERE A COW GORED AN OX etc. [We have here] half damages plus quarter damages! Is it not [only] half of the damage that need be paid for? What then have full damages less a quarter to do here? &mdash; Abaye said: Half of the damage means one quarter of the damage,<a id="k46b_9"><sup>9</sup></a>&nbsp; and a quarter of the damage means one eighth of the damage.<a id="k46b_10"><sup>10</sup></a>&nbsp; It is true that where the cow and the calf belong to one owner, the plaintiff would be entitled to plead against the owner of the cow, 'In any case, have you not to pay me half damages?'<a id="k46b_11"><sup>11</sup></a>&nbsp; The ruling, however, applies to the case where the cow belonged to one and the calf to another.<a id="k46b_12"><sup>12</sup></a>&nbsp; Again, where the plaintiff claimed from the owner of the cow first it would still also make no difference, as he would be entitled to argue against the owner of the cow, 'It was your cow that did me the damage, [and it is for you to] produce evidence that there is a joint defendant with you.'<a id="k46b_13"><sup>13</sup></a>&nbsp; But where the rule applies is to a case where he claimed from the owner of the calf first, in which case the owner of the cow may say to him, 'You have made clear your opinion that there is a joint defendant with me.'<a id="k46b_14"><sup>14</sup></a>&nbsp; Some, however, say that even where the plaintiff claimed from the owner of the cow first, the latter might put him off by saying, 'It is definitely known to me<a id="k46b_15"><sup>15</sup></a>&nbsp; that there is a joint defendant with me.'<a id="k46b_14"><sup>14</sup></a>&nbsp; Raba said: Is then 'a fourth of the damage' and 'an eighth of the damage' mentioned in the text? Is not 'half damages' and 'quarter damages' stated in the text?<a id="k46b_16"><sup>16</sup></a>&nbsp; &mdash; Raba therefore said: We suppose that in fact the cow and the calf belonged to one owner,<a id="k46b_17"><sup>17</sup></a>&nbsp; and the meaning is this: Where the cow is available,<a id="k46b_18"><sup>18</sup></a>&nbsp; the payment of half damages will be made out of the cow.<a id="k46b_19"><sup>19</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k55a_1:" Cf. Deut. V, 16, where the following occurs, That thy days may be prolonged, and that it may go well with the&nbsp;&hellip;"
,k55a_2:" As no Halachic point was involved, R. Hiyya b. Abba did not observe the difference; see also Tosaf. B.B. 113a."
,k55a_3:" Ex. XXXII, 19."
,k55a_4:" I.e. if it would have been inserted in the first Decalogue it would have ceased altogether when the two tablets were broken."
,k55a_5:" Some add 'b. Levi'."
,k55a_6:" The ninth letter of the Hebrew alphabet."
,k55a_7:" On so many occasions."
,k55a_8:" I.e. to sweep with a besom."
,k55a_9:" Isa. XIV, 23."
,k55a_10:" Meaning defilement and filthiness."
,k55a_11:" Lam. I, 9."
,k55a_12:" The second letter of the Alphabet."
,k55a_13:" I.e., they sunk."
,k55a_14:" Lam. II, 9."
,k55a_15:" Gen. I, 4."
,k55a_16:" And since the first <i>teth</i> in Scriptures commences the word denoting 'good' it is a good omen to see it in a dream."
,k55a_17:" Which denotes an elegy and a lamentation."
,k55a_18:" As the word hesped could be divided thus: has pad [ah]. i.e. mercy has been exercised and release granted."
,k55a_19:" By stating that the law of heterogeneity applies also to birds."
,k55a_20:" I.e., we are justified in maintaining so."
,k55a_21:" Since they are birds of different kinds."
,k55a_22:" Bek. 8a."
,k55a_23:" The wild goose."
,k55a_24:" The domestic goose."
,k55a_25:" As be transgressed the negative commandment of Lev. XIX, 19."
,k55a_26:" Is not 'cattle' specified in Lev. XIX, 19?"
,k55a_27:" Gen. I. 21."
,k55a_28:" Ibid. 25."
,k55a_29:" And a sin has been committed."
,k55a_30:" Which is subject to the law of not being sown with mingled seed."
,k55a_31:" Which is not subject to this law."
,k55a_32:" And since he would not be liable, what doubt could be entertained in the case of a goat and mullet?"
,k55a_33:" Of sowing a field with mingled seed."
,k55a_34:" In the case of a goat and a mullet."
,k55a_35:" The dry land."
,k55a_36:" The sea."
,k55a_37:" As derived above from the similarity of expressions 'after its kind'.] "
}

txt:
<p>
there is a mention of wellbeing?<a id="k55a_1"><sup>1</sup></a>&nbsp; &mdash; He replied: While you are asking me why wellbeing is mentioned there, ask me whether wellbeing is in fact mentioned or not, as I do not know whether wellbeing is mentioned there or not.<a id="k55a_2"><sup>2</sup></a>&nbsp; Go therefore to R. Tanhum b. Hanilai who was intimate with R. Joshua b. Levi, who was an expert in <i>Aggadah</i>. When he came to him he was told by him thus: 'From R. Joshua b. Levi I have not heard anything on the matter. But R. Samuel b. Nahum the brother of the mother of R. Aha son of R. Hanina, or as others say the father of the mother of R. Aha son of R. Hanina, said to me this: Because the [first tablets containing the] Commandments were destined to be broken.'<a id="k55a_3"><sup>3</sup></a>&nbsp; But even if they were destined to be broken, how should this affect [the mention of wellbeing]? &mdash; R. Ashi thereupon said: God forbid! Wellbeing would then have ceased in Israel.<a id="k55a_4"><sup>4</sup></a>
</p><p>
	R. Joshua<a id="k55a_5"><sup>5</sup></a>&nbsp; said: He who sees [the letter] <i>teth</i><a id="k55a_6"><sup>6</sup></a>&nbsp; in a dream [may regard it as] a good omen for himself. Why so? If because it is the initial letter of [the word] <i>'Tob'</i> ['good'] written in Scripture,<a id="k55a_7"><sup>7</sup></a>&nbsp; why not say [on the contrary that it is also the initial letter of the verb <i>'ta'atea'</i><a id="k55a_8"><sup>8</sup></a>&nbsp; commencing the Scriptural verse] <i>And I will sweep it with the besom of destruction</i>?<a id="k55a_9"><sup>9</sup></a>&nbsp; &mdash; We are speaking [here of where he saw in a dream only] one <i>teth</i> [whereas <i>ta'atea</i> contains two such letters]. But still why not say [that it might have referred to the word <i>'tum'ah'</i><a id="k55a_10"><sup>10</sup></a>&nbsp; as in the verse] <i>Her filthiness is in her skirts</i>?<a id="k55a_11"><sup>11</sup></a>&nbsp; &mdash; We are speaking of [where he saw in a dream the letters] <i>'teth'</i> and <i>'beth'</i>.<a id="k55a_12"><sup>12</sup></a>&nbsp; But again why not say [that it might have referred to the verb tabe'u<a id="k55a_13"><sup>13</sup></a>&nbsp; as in the verse], <i>Her gates were sunk in to the ground</i>?<a id="k55a_14"><sup>14</sup></a>&nbsp; &mdash; The real reason is that Scripture used this letter on the very first occasion to express something good, for from the beginning of Genesis up to [the verse] <i>And God saw the light</i><a id="k55a_15"><sup>15</sup></a>&nbsp; no <i>teth</i> occurs.<a id="k55a_16"><sup>16</sup></a>&nbsp; R. Joshua b. Levi similarly said: He who sees [the word] <i>hesped</i><a id="k55a_17"><sup>17</sup></a>&nbsp; in a dream [may take it as a sign that] mercy has been exercised towards him in Heaven, and that he will be released [from trouble].<a id="k55a_18"><sup>18</sup></a>&nbsp; provided, however, [he saw it] in script.
</p><p>
	SO ALSO BEASTS AND BIRDS ARE LIKE THEM etc. Resh Lakish said: Rabbi taught here<a id="k55a_19"><sup>19</sup></a>&nbsp; that a cock, a peacock and a pheasant are heterogeneous with one another.<a id="k55a_20"><sup>20</sup></a>&nbsp; Is this not obvious?<a id="k55a_21"><sup>21</sup></a>&nbsp; &mdash; R. Habiba said: Since they can breed from one another it might have been thought that they constitute a homogeneous species; we are therefore told [by this that this is not the case]. Samuel said:<a id="k55a_22"><sup>22</sup></a>&nbsp; The [domestic] goose and the wild goose are heterogeneous with each other. Raba son of R. Hanan demurred [saying:] What is the reason? Shall we say because one has a long neck and the other has a short neck? If so, why should a Persian camel and an Arabian camel similarly not be considered heterogeneous with each other, since one has a thick neck and the other a slender neck? &mdash; Abaye therefore said: [It is because] one<a id="k55a_23"><sup>23</sup></a>&nbsp; has its genitals discernible from without while the other one<a id="k55a_24"><sup>24</sup></a>&nbsp; has its genitals within. R. Papa said: [It is because] one<a id="k55a_23"><sup>23</sup></a>&nbsp; becomes pregnant with only one egg at fecundation, whereas the other one<a id="k55a_21"><sup>21</sup></a>&nbsp; becomes pregnant with several eggs at one fecundation. R. Jeremiah reported that Resh Lakish said: He who couples two species of sea creatures becomes liable to be lashed.<a id="k55a_25"><sup>25</sup></a>&nbsp; On what ground?<a id="k55a_26"><sup>26</sup></a>&nbsp; R. Adda b. Ahabah said in the name of 'Ulla: This rule comes from the expression 'after its kind'<a id="k55a_27"><sup>27</sup></a>&nbsp; [in the section dealing with fishes] by comparison with 'after its kind'<a id="k55a_28"><sup>28</sup></a>&nbsp; [in reference to creatures] of the dry land. Rehabah inquired: If a man drove [a waggon] by means of a goat and a mullet together, what would be the legal position? Should we say that since a goat could not go down into the sea and a mullet could not go up on to the dry land, no transgression has been committed, or do we say that after all they are now pulling together?<a id="k55a_29"><sup>29</sup></a>&nbsp; Rabina demurred to this: If this is so, supposing one took wheat and barley together in his hand and sowed the wheat on the soil of Eretz Yisrael<a id="k55a_30"><sup>30</sup></a>&nbsp; and the barley on the soil outside Eretz Yisrael,<a id="k55a_31"><sup>31</sup></a>&nbsp; would he be liable [as having transgressed the law]?<a id="k55a_32"><sup>32</sup></a>&nbsp; &mdash; I might answer: Where is the comparison? There [in your case]<a id="k55a_33"><sup>33</sup></a>&nbsp; Eretz Yisrael is the place subject to this obligation whereas any country outside Eretz Yisrael is not subject to this obligation; but here,<a id="k55a_34"><sup>34</sup></a>&nbsp; both one place<a id="k55a_35"><sup>35</sup></a>&nbsp; and the other<a id="k55a_36"><sup>36</sup></a>&nbsp; are subject to the obligation.<a id="k55a_37"><sup>37</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k55b_1:" As he is not to blame."
,k55b_2:" As he did not discharge his duty of guarding his cattle."
,k55b_3:" I.e., the sheep."
,k55b_4:" Done by the sheep, since they have come into the possession of the robbers, who have thus become liable to control them."
,k55b_5:" But not to the extent of the actual damage: cf. <i>supra</i> 19b."
,k55b_6:" In accordance with the law of Tooth."
,k55b_7:" V. <a href=\"../tglossary.html\">Glos.</a>"
,k55b_8:" V. <a href=\"../tglossary.html\">Glos.</a>"
,k55b_9:" Though unable to withstand an extraordinary wind."
,k55b_10:" As in the case with Tooth and Foot."
,k55b_11:" I.e., a door able to withstand a normal wind."
,k55b_12:" Withstanding a normal wind."
,k55b_13:" Ex. XXI, 36."
,k55b_14:" <i>Supra</i> 45b."
,k55b_15:" According to whom precaution of a lesser degree would not suffice."
,k55b_16:" From Horn."
,k55b_17:" Ex. XXI, 33."
,k55b_18:" Though he did not fill it with sand."
,k55b_19:" Ex. XXII, 5."
,k55b_20:" But not where any precaution has been taken."
,k55b_21:" Ex. XXII, 4."
,k55b_22:" Cf. <i>supra</i> 2b."
,k55b_23:" Ex. XXII, 4."
,k55b_24:" Isa. XXXII, 20."
,k55b_25:" I Kings XIV, 10."
,k55b_26:" V. <i>supra</i> n. 1."
,k55b_27:" I.e. the distinction between Tooth and Horn."
,k55b_28:" And not with sheep."
,k55b_29:" Which as a rule stands for Horn."
,k55b_30:" Which damages by Tooth and Foot."
,k55b_31:" I.e. in Tooth and Foot."
,k55b_32:" [MS.M. reads 'sheep'. Render accordingly: Because as to sheep there is no mention (in the Torah) in connection with Horn; only Tooth and Foot are mentioned in connection therewith.]"
,k55b_33:" Which would withstand only a normal wind."
,k55b_34:" V. the discussion later."
,k55b_35:" Tosef., Shebu. III. "
}

txt:
<p>
      <H2 ALIGN="Center">
	<A NAME="chapter_vi">CHAPTER VI</A>
      </H2>
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN BRINGS SHEEP INTO A SHED AND LOCKS THE DOOR IN FRONT OF THEM PROPERLY, BUT THE SHEEP [NEVERTHELESS] GET OUT AND DO DAMAGE, HE IS NOT LIABLE.<a id="k55b_1"><sup>1</sup></a>&nbsp; IF, HOWEVER, HE DOES NOT LOCK THE DOOR IN FRONT OF THEM PROPERLY, HE IS LIABLE.<a id="k55b_2"><sup>2</sup></a>&nbsp; IF [THE WALL] BROKE DOWN AT NIGHT, OR IF ROBBERS BROKE IN, AND THEY<a id="k55b_3"><sup>3</sup></a>&nbsp; GOT OUT AND DID DAMAGE, HE WOULD NOT BE LIABLE. IF [HOWEVER] ROBBERS TOOK THEM OUT [FROM THE SHED AND LEFT THEM AT LARGE AND THEY DID DAMAGE] THE ROBBERS WOULD BE LIABLE [FOR THE DAMAGE].<a id="k55b_4"><sup>4</sup></a>&nbsp; BUT IF THE OWNER HAD LEFT THEM IN A SUNNY PLACE, OR HE HAD HANDED A MINOR, AND THEY GOT AWAY AND DID DAMAGE, HE HANDED THEM OVER TO THE CARE OF A DEAF-MUTE, AN IDIOT, HE WOULD BE LIABLE.<a id="k55b_4"><sup>4</sup></a>&nbsp; IF HE HAD HANDED THEM OVER TO THE CARE OF A SHEPHERD, THE SHEPHERD WOULD HAVE ENTERED [INTO ALL RESPONSIBILITIES] INSTEAD OF HIM. IF A SHEEP [ACCIDENTALLY] FELL INTO A GARDEN AND DERIVED BENEFIT [FROM THE FRUIT THERE], PAYMENT WOULD HAVE TO BE MADE TO THE EXTENT OF THE BENEFIT,<a id="k55b_5"><sup>5</sup></a>&nbsp; WHEREAS IF IT HAD GONE DOWN THERE IN THE USUAL WAY AND DONE DAMAGE, THE PAYMENT WOULD HAVE TO BE FOR THE AMOUNT OF THE DAMAGE DONE BY IT.<a id="k55b_6"><sup>6</sup></a>&nbsp; HOW IS PAYMENT MADE FOR THE AMOUNT OF DAMAGE DONE BY IT?<a id="k55b_6"><sup>6</sup></a>&nbsp; BY COMPARING THE VALUE OF AN AREA IN THAT FIELD REQUIRING ONE <I>SE'AH</I><a id="k55b_7"><sup>7</sup></a>&nbsp; [OF SEED] AS IT WAS [PREVIOUSLY] WITH WHAT ITS WORTH IS [NOW]. R. SIMEON, HOWEVER, SAYS: IF IT CONSUMED RIPE FRUITS THE PAYMENT SHOULD BE FOR RIPE FRUITS; IF ONE <I>SE'AH</I><a id="k55b_8"><sup>8</sup></a>&nbsp; [IT WOULD BE FOR] ONE <I>SE'AH</I>, IF TWO SE'AHS [FOR] TWO SE'AHS.
</p><p>
	<B><I>GEMARA</I></B>. Our Rabbis taught: What is denominated 'properly' and what is not 'properly'? &mdash; If the door was able to stand against a normal wind,<a id="k55b_9"><sup>9</sup></a>&nbsp; it would be 'properly', but if the door could not stand against a normal wind, that would be 'not properly'. R. Manni b. Pattish thereupon said: Who can be the Tanna [who holds] that in the case of <i>Mu'ad</i>,<a id="k55b_10"><sup>10</sup></a>&nbsp; even inadequate precaution<a id="k55b_11"><sup>11</sup></a>&nbsp; suffices [to confer exemption]? It is R. Judah. For we have learnt: If the owner fastened his ox [to the wall inside the stable] with a cord or shut the door in front of it properly<a id="k55b_12"><sup>12</sup></a>&nbsp; and the ox got out and did damage, whether it was <i>Tam</i> or already <i>Mu'ad</i>, he would be liable; so R. Meir. R. Judah, however, says: In the case of <i>Tam</i> he would be liable, but in the case of <i>Mu'ad</i> exempt, for it is written, And his owner hath not kept him in<a id="k55b_13"><sup>13</sup></a>&nbsp; [thus excluding this case where] it was kept in. R. Eliezer, however, says: No precaution is adequate [for <i>Mu'ad</i>] save the [slaughter] knife.<a id="k55b_14"><sup>14</sup></a>&nbsp; [But does not an anonymous Mishnah usually follow the view of R. Meir?]<a id="k55b_15"><sup>15</sup></a>&nbsp; &mdash; We may even say that it is in accordance with R. Meir, for Tooth and Foot are different<a id="k55b_16"><sup>16</sup></a>&nbsp; [in this respect], since the Torah required a lesser degree of precaution in their case as stated by R. Eleazar, or, according to others, as stated in a Baraitha: There are four cases [of damage] where the Torah requires a lesser degree of precaution. They are these: Pit and Fire, Tooth and Foot. Pit as it is written, And if a man shall open a pit, or if a man shall dig a pit and not cover it,<a id="k55b_17"><sup>17</sup></a>&nbsp; implying that if he covered it<a id="k55b_18"><sup>18</sup></a>&nbsp; he would he exempt. Fire, as it is written, He that kindled the fire shall surely make restitution,<a id="k55b_19"><sup>19</sup></a>&nbsp; [that is to say] only where he acted [culpably], as by actually kindling the fire.<a id="k55b_20"><sup>20</sup></a>&nbsp; Tooth, as it is written, And he shall send forth,<a id="k55b_21"><sup>21</sup></a>&nbsp; [that is to say] only where he acted [wrongly] as by actually sending it forth.<a id="k55b_20"><sup>20</sup></a>&nbsp; It was [further] taught:<a id="k55b_22"><sup>22</sup></a>&nbsp; 'And he shall send forth'<a id="k55b_23"><sup>23</sup></a>&nbsp; denotes Foot, as in the similar expression, That send forth the foot of the ox and the ass;<a id="k55b_24"><sup>24</sup></a>&nbsp; And it shall consume denotes 'Tooth',<a id="k55b_23"><sup>23</sup></a>&nbsp; as in the similar expression, As the tooth consumeth to entirety.<a id="k55b_25"><sup>25</sup></a>&nbsp; This is so only for the reason that he acted [culpably] as by actually sending it forth or feeding it there,<a id="k55b_26"><sup>26</sup></a>&nbsp; whereas where he did not act [in such a manner] this would not be so. Rabbah said: The text of the Mishnah also corroborates [this view]<a id="k55b_27"><sup>27</sup></a>&nbsp; by taking here the case of sheep. For have we not been dealing all along [so far] with an 'ox'?<a id="k55b_28"><sup>28</sup></a>&nbsp; Why then not say [here also] 'ox'?<a id="k55b_29"><sup>29</sup></a>&nbsp; What special reason was there for taking here SHEEP?<a id="k55b_30"><sup>30</sup></a>&nbsp; Is it not because the Torah required a lesser degree of precaution in their case<a id="k55b_31"><sup>31</sup></a>&nbsp; on account of the fact that it is not Horn that is dealt with here,<a id="k55b_32"><sup>32</sup></a>&nbsp; but Tooth and Foot that are dealt with here? It is thus indicated to us that [this kind of precaution<a id="k55b_33"><sup>33</sup></a>&nbsp; is] only in the case of Tooth and Foot which are <i>Mu'ad</i> [ab initio]; and this may be regarded as proved.
</p><p>
	It was taught: R. Joshua said: There are four acts for which the offender is exempt from the judgments of Man but liable to the judgments of Heaven. They are these: To break down a fence in front of a neighbour's animal [so that it gets out and does damage];<a id="k55b_34"><sup>34</sup></a>&nbsp; to bend over a neighbour's standing corn in front of a fire;<a id="k55b_34"><sup>34</sup></a>&nbsp; to hire false witnesses to give evidence; and to know of evidence in favour of another and not to testify on his behalf.<a id="k55b_35"><sup>35</sup></a>
</p><p>
	The Master stated: 'To break down a fence in front of a neighbour's animal.' Under what circumstances? If we assume that the wall was sound, why should the offender not be liable even according to the judgments of Man [at least for the damage done to the wall]? &mdash; It must therefore be
</P>


lvr: 41
dfh: a
notes:
 ntes={k62a_1:" [Tosaf. omits 'all agree that', and take this passage as a continuation of the words of the Sages.]"
,k62a_2:" According to Raba this refers only to utensils which are usually kept in stacks."
,k62a_3:" And it so happened that they were all burned down by a fire kindled by the owner of the field."
,k62a_4:" As the owner of the field knew only of the stacks."
,k62a_5:" As where permission was granted for barley the owner of the field could not have expected that wheat would be piled up. Even where permission was given for wheat, if the stacks were covered with barley, the owner of the field can plead that he only noticed barley."
,k62a_6:" And the liability upon her is only because of her undertaking to keep it as an unpaid bailee."
,k62a_7:" Which was the personal name of Rab."
,k62a_8:" That where the amount of the loss cannot be established by proper evidence the plaintiff is entitled to take an oath as to the loss he sustained; v. Shebu. VII, 1."
,k62a_9:" <i>Infra</i> 117b."
,k62a_10:" Such as, e.g., in the case of informers."
,k62a_11:" For just as it is the custom of men to keep valuables in their homes, it is surely the custom of men to keep money in money boxes."
,k62a_12:" I.e. robber."
,k62a_13:" I.e., violent person."
,k62a_14:" B.B. 47b."
,k62a_15:" For since he took the money the sale could not be called forced."
,k62a_16:" After the pressure brought to bear upon him."
,k62a_17:" The sale could therefore not become valid. "
}

txt:
<p>
These statements apply only to the case where he kindled the fire on his own [premises] whence it travelled and consumed [the stack standing] in the premises of his neighbour; but where he kindled the fire in the premises of his neighbour, all agree<a id="k62a_1"><sup>1</sup></a>&nbsp; that he would have to pay for all that was kept there.<a id="k62a_2"><sup>2</sup></a>&nbsp; R. Judah, however, agreed with the Sages that in the case where a man granted his neighbour the loan of a particular place [in his field] for the purpose of piling up a stack, if [the borrower of the place] piled up stacks and hid [some valuable articles there]<a id="k62a_3"><sup>3</sup></a>&nbsp; no payment would have to be made except for the value of the stack alone.<a id="k62a_4"><sup>4</sup></a>&nbsp; [So also where permission was granted] for the purpose of piling up stacks of wheat, and he piled up stacks of barley, or [permission was given for] barley and he piled up wheat, or even where he piled up wheat [for which the permission was granted], but covered it with barley, or again where he piled up barley but covered it with wheat; [in these cases] no payment would be made except for the value of the barley alone.<a id="k62a_5"><sup>5</sup></a>
</p><p>
	Raba said: If a man gives a gold <i>denar</i> to a woman and says to her, 'Be careful with it, as it is a silver coin', if she damaged it she would have to pay for a gold <i>denar</i> because he could [rightly] plead against her: 'What business had you to damage it?' But if she was [merely] careless with it,<a id="k62a_6"><sup>6</sup></a>&nbsp; she would have to pay only for a silver <i>denar</i>, as she could [rightly] plead against him: 'It was only silver that I undertook to take care of, but I never undertook to take care of gold.' Said R. Mordecai to R. Ashi: 'Do you state this in the name of Raba? We derive it quite definitely from the Baraitha [which states]: [If a man piled up] wheat [for which the permission was granted], but covered it with barley, or again [if he piled up] barley but covered it up with wheat, no payment would be made except for the value of the barley alone. Now, does this not prove that he is entitled to plead against the plaintiff: 'It was only barley that I undertook to take care of?' Here too she is surely entitled to plead against the depositor, 'I never undertook to take care of gold.'
</p><p>
	Rab said: I have heard a new point with reference to the view of R. Judah [in the Mishnah here], but do not know what it is. Said Samuel to him: Does Abba<a id="k62a_7"><sup>7</sup></a>&nbsp; really not know what he heard with reference to R. Judah who imposes liability for damage done to Tamun in the case of Fire? It is that the judges must make the ordinance enacted for the benefit of a robbed person<a id="k62a_8"><sup>8</sup></a>&nbsp; extend also to the case of Fire.
</p><p>
	Amemar raised the question: Would they similarly make the ordinance enacted for the benefit of a robbed person extend also to the case of an informer or not? According to the view<a id="k62a_9"><sup>9</sup></a>&nbsp; that we should not give judgment [against the defendant] in cases where the damage was [not actually done but] merely caused [by him],<a id="k62a_10"><sup>10</sup></a>&nbsp; there could be no question that also against informers we should not give judgment. But the question could still be raised according to the view that we should give judgment [against the defendant even] in cases where the damage was [not actually done but effectively and directly] caused by him.<a id="k62a_10"><sup>10</sup></a>&nbsp; Would the judges make the ordinance enacted for the benefit of a robbed person extend also to the case of an informer so that the plaintiff would by taking an oath [as to the exact amount of his loss] be paid accordingly, or should this perhaps not be so? &mdash; Let this remain undecided.
</p><p>
	A certain man kicked another's money-box into the river. The owner came [into Court] and said: 'So much and so much did I have in it.' R. Ashi was sitting and pondering on it: What should be the law in such a case? &mdash; Rabina said to R. Aha the son of Raba, or, as others report, R. Aha the son of Raba said to R. Ashi: Is this not exactly what was stated in the Mishnah? For we learnt: 'THE SAGES AGREE WITH R. JUDAH IN THE CASE OF ONE WHO SET FIRE TO A CASTLE, THAT PAYMENT SHOULD BE FOR ALL THAT WAS KEPT THEREIN, AS IT IS SURELY THE CUSTOM OF MEN TO KEEP [VALUABLES] IN [THEIR] HOMES. [Is this not equivalent to the case in hand?]<a id="k62a_11"><sup>11</sup></a>&nbsp; &mdash; He, however, said to him: If he would have pleaded that he had money there, it would indeed have been the same.<a id="k62a_11"><sup>11</sup></a>&nbsp; But we are dealing with a case where he pleads that he had jewels there. What should then be the legal position? Do people keep jewels in a money-box or not? &mdash; Let this remain undecided.
</p><p>
	R. Yemar said to R. Ashi: If he pleads that he had silver cups in the castle [which was burnt], what would be the law? &mdash; He answered him: We consider whether he was a wealthy man who was [likely] to have silver cups, or whether he was a trustworthy man with whom people would deposit such things. [If he is,] he would be allowed to swear and be reimbursed accordingly, but if not, he would not be believed [in his allegations without corroborative evidence].
</p><p>
	R. Adda the son of R. Iwya said to R. Ashi: What is the [practical] difference between gazlan<a id="k62a_12"><sup>12</sup></a>&nbsp; and hamsan?<a id="k62a_13"><sup>13</sup></a>&nbsp; &mdash; He replied: A hamsan [one who expropriates forcibly] offers payment [for what he takes], whereas a gazlan does not make payment. The other rejoined: If he is prepared to make payment, how can you call him hamsan? Did R. Huna not say<a id="k62a_14"><sup>14</sup></a>&nbsp; that [even] where the vendor was [threatened to be] hanged [unless he would agree] to sell, the sale would be a valid sale?<a id="k62a_15"><sup>15</sup></a>&nbsp; &mdash; This, however, is no contradiction, as in that case, the vendor did [finally]<a id="k62a_16"><sup>16</sup></a>&nbsp; say 'I agree', whereas here [in the case of hamsan] he never said 'I agree'.<a id="k62a_17"><sup>17</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k62b_1:" V. <i>supra</i> 22a."
,k62b_2:" As he is to blame for placing his candle outside his shop."
,k62b_3:" Feast of Dedication."
,k62b_4:" As he was entitled to place the Chanukah candle outside."
,k62b_5:" As to make him place his Chanukah candle on a higher level."
,k62b_6:" V. Shab. 21a."
,k62b_7:" As when placed at such a high level it will not be noticed by passersby and publicity will not be given to the miracle."
,k62b_8:" V. <a href=\"../tglossary.html\">Glos.</a> Cf. Suk. I, 1."
,k62b_9:" V. 'Er, I, 1. An alley where a post or a stake would be required to be placed at the entrance for the purpose of enabling the inmates of that area to carry their domestic objects on the Sabbath day."
,k62b_10:" For theft, in accordance with Ex. XXII, 3."
,k62b_11:" For the slaughtering (or selling) of a sheep or ox respectively; cf. ibid. XXI, 37."
,k62b_12:" Ibid."
,k62b_13:" Since the article had in any case already passed out of the possession of the true owner."
,k62b_14:" In accordance with Ex. XXII, 8."
,k62b_15:" <i>Infra</i> p. 369."
,k62b_16:" The measure of double payment."
,k62b_17:" The measure of four-fold or five-fold payment."
,k62b_18:" The omission of a particular point should therefore not be taken as a proof."
,k62b_19:" Ex. XXII, 8."
,k62b_20:" V. <i>supra</i> 54a."
,k62b_21:" From the law of double payment."
,k62b_22:" For which cf. Lev. XXV, 46."
,k62b_23:" Lev. XI 39-40."
,k62b_24:" Ibid. 26-28."
,k62b_25:" As these do not cause defilement either by touching or by carrying."
,k62b_26:" Which is not a living object at all."
,k62b_27:" That they should be such that their carcasses would cause defilement whether by touching or by carrying. "
}

txt:
<p>
	<B><I>MISHNAH</I></B>. IF A SPARK ESCAPES FROM UNDERNEATH A HAMMER AND DOES DAMAGE, THERE WOULD BE LIABILITY. IF WHILE A CAMEL LADEN WITH FLAX WAS PASSING THROUGH A PUBLIC THOROUGHFARE THE FLAX GOT INTO A SHOP AND CAUGHT FIRE BY COMING IN CONTACT WITH THE SHOPKEEPER'S CANDLE, AND SET ALIGHT THE WHOLE BUILDING, THE OWNER OF THE CAMEL WOULD BE LIABLE.<a id="k62b_1"><sup>1</sup></a>&nbsp; IF, HOWEVER, THE SHOPKEEPER LEFT HIS CANDLE OUTSIDE [HIS SHOP], HE WOULD BE LIABLE.<a id="k62b_2"><sup>2</sup></a>&nbsp; R. JUDAH SAYS: IF IT WAS A CHANUKAH<a id="k62b_3"><sup>3</sup></a>&nbsp; CANDLE THE SHOPKEEPER WOULD NOT BE LIABLE.<a id="k62b_4"><sup>4</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. Rabina said in the name of Raba: From the statement of R. Judah we can learn that it is ordained to place the Chanukah candle within ten handbreadths [from the ground]. For if you assume [that it can be placed even] above ten handbreadths, why did R. Judah say that in the case of a Chanukah candle there would be exemption? Why should the plaintiff not plead against him: 'You should have placed it above the reach of the camel and its rider?' Does this therefore not prove that it is ordained to place it within the [first] ten handbreadths? &mdash; It can, however, be argued that this is not so. For it could still be said that it might be placed even above the height of ten handbreadths, and as for your argument 'You ought to have placed it above the reach of the camel and its rider', [it might be answered that] since he was occupied with the performance of a religious act, the Rabbis could not [rightly] make it so troublesome to him.<a id="k62b_5"><sup>5</sup></a>&nbsp; R. Kahana said that R. Nathan b. Minyomi expounded in the name of R. Tanhum:<a id="k62b_6"><sup>6</sup></a>&nbsp; 'If the Chanukah candle is placed above [the height of] twenty cubits it is disqualified [for the purpose of the religious performance],<a id="k62b_7"><sup>7</sup></a>&nbsp; like a <i>sukkah</i><a id="k62b_8"><sup>8</sup></a>&nbsp; and an alley-entry.<a id="k62b_9"><sup>9</sup></a>
</p><p>
      <H2 ALIGN="Center">
	<A NAME="chapter_vii">CHAPTER VII</A>
      </H2>
</p><p>
	<B><I>MISHNAH</I></B>. THERE IS MORE FREQUENTLY OCCASION FOR THE MEASURE OF DOUBLE PAYMENT<a id="k62b_10"><sup>10</sup></a>&nbsp; [TO BE APPLIED] THAN THE MEASURE OF FOUR-FOLD OR FIVE-FOLD PAYMENTS,<a id="k62b_11"><sup>11</sup></a>&nbsp; SINCE THE MEASURE OF DOUBLE PAYMENT APPLIES BOTH TO A THING POSSESSING THE BREATH OF LIFE AND A THING WHICH DOES NOT POSSESS THE BREATH OF LIFE, WHEREAS THE MEASURE OF FOUR-FOLD AND FIVE-FOLD PAYMENTS<a id="k62b_11"><sup>11</sup></a>&nbsp; HAS NO APPLICATION EXCEPT FOR AN OX AND A SHEEP [RESPECTIVELY] ALONE, AS IT SAYS 'IF A MAN STEAL AN OX OR A SHEEP AND KILL IT OR SELL IT, HE SHALL PAY FIVE OXEN FOR AN OX AND FOUR SHEEP FOR A SHEEP.'<a id="k62b_12"><sup>12</sup></a>&nbsp; ONE WHO STEALS [ARTICLES ALREADY STOLEN] IN THE HANDS OF A THIEF NEED NOT MAKE DOUBLE PAYMENT,<a id="k62b_13"><sup>13</sup></a>&nbsp; AS ALSO HE WHO SLAUGHTERS OR SELLS [THE ANIMAL] WHILE IN THE POSSESSION OF [ANOTHER] THIEF HAS NOT TO MAKE FOURFOLD OR FIVE-FOLD PAYMENT.
</p><p>
	<B><I>GEMARA</I></B>. That the measure of double payment applies both in the case of a thief and in the case of [an unpaid bailee falsely] alleging a theft,<a id="k62b_14"><sup>14</sup></a>&nbsp; whereas the measure of four-fold or five-fold payments has no application except in the case of a thief alone &mdash; [this, be it noted], is not taught here. This [omission] supports the view of R. Hiyya b. Abba, for R. Hiyya b. Abba stated that R. Johanan said: He who falsely alleges a theft [to account for the absence] of a deposit [entrusted to him], may have to make double payment;<a id="k62b_14"><sup>14</sup></a>&nbsp; so also if he slaughtered or sold it he may have to make four-fold or five-fold payment.<a id="k62b_15"><sup>15</sup></a>&nbsp; Some read as follows: Shall we say that this [omission] supports the view of R. Hiyya b. Abba who said in the name of R. Johanan: He who falsely alleges a theft [to account for the absence] of a deposit [entrusted to him] may have to make double payment; so also if he slaughtered or sold it, he may have to make four-fold or five-fold payment'? &mdash; But does your text say, 'There is no difference between [this<a id="k62b_16"><sup>16</sup></a>&nbsp; and that<a id="k62b_17"><sup>17</sup></a>&nbsp; except&nbsp;&hellip;]'? What it says is, THERE IS MORE FREQUENT OCCASION. &mdash; While some points were stated in the text others were omitted.<a id="k62b_18"><sup>18</sup></a>
</p><p>
	AS THE MEASURE OF DOUBLE PAYMENT APPLIES BOTH TO A THING POSSESSING THE BREATH OF LIFE AND TO A THING WHICH DOES NOT POSSESS THE BREATH OF LIFE etc. Whence is this derived? As our Rabbis taught: <i>For every matter of trespass</i><a id="k62b_19"><sup>19</sup></a>&nbsp; is a generalisation; <i>whether it be for ox, for ass, for sheep, for raiment</i>, is a specification; <i>or for any manner of lost thing</i> generalises again. We have thus here a generalisation preceding a specification which is in its turn followed by another generalisation,<a id="k62b_20"><sup>20</sup></a>&nbsp; and in such cases we include only that which is similar to the specification. Just as the specification here mentions an object which is movable and which has an intrinsic value, there should therefore be included any object which is movable and which has an intrinsic value. Real estate is thus excluded,<a id="k62b_21"><sup>21</sup></a>&nbsp; not being movable; slaves are similarly excluded as they are on the same footing [in the eye of the law] with real estate;<a id="k62b_22"><sup>22</sup></a>&nbsp; bills are similarly excluded, as though they are movable, they have no intrinsic value; sacred property is also excluded as the text speaks of <i>'his neighbour'</i>. But since the specification mentions a living thing whose carcass would cause defilement whether by touching or by carrying,<a id="k62b_23"><sup>23</sup></a>&nbsp; [why not say] there should be included any living thing whose carcass similarly causes defilement whether by touching or by carrying<a id="k62b_24"><sup>24</sup></a>&nbsp; so that birds would not be included?<a id="k62b_25"><sup>25</sup></a>&nbsp; &mdash; How can you seriously say this? Is not raiment<a id="k62b_26"><sup>26</sup></a>&nbsp; mentioned here? It may, however, be said that it is only regarding objects possessing life that we have argued.<a id="k62b_27"><sup>27</sup></a>&nbsp; Why then not say in the case of objects possessing life that it is only a thing whose carcass causes defilement by touching and carrying that is included, whereas a thing whose carcass does not cause defilement by touching and carrying should not be included,
</P>


lvr: 41
dfh: a
notes:
 ntes={k83a_1:" Lam. III, 51."
,k83a_2:" Sot. 49b and Git. 58a. [This proves that even Grecian Wisdom was not proscribed.]"
,k83a_3:" [Like a fringe on the forehead and lets the curls hang down on the temples (Jast.).]"
,k83a_4:" Which should not be imitated."
,k83a_5:" Who breeds a dog."
,k83a_6:" As if he would breed swine."
,k83a_7:" Cf. 'Er. 45a."
,k83a_8:" [In Galilee, v. Klein, <i>op. cit</i>., p. 39.]"
,k83a_9:" Num. x, 36; E.V.: unto the many thousands of Israel."
,k83a_10:" The Divine Presence."
,k83a_11:" I.e., twenty-two thousand, comprising the minimum of the plural tens of thousands which is twenty thousand and the minimum of the thousands which is two thousand, cf. also Yeb. 64a."
,k83a_12:" Cf. Shab. 63a; and <i>supra</i> p. 271."
,k83a_13:" So that the doves should not consume the produce of the town. (B.B. 11, 5.]"
,k83a_14:" On account of which a dove-cote need not be kept away from the town for more than fifty cubits."
,k83a_15:" Where the doves could thus take rest and fly on to great distances."
,k83a_16:" Why then base the prohibition upon the proximity of a settlement?"
,k83a_17:" Who did not recognise the necessity of being scrupulous to such an extent and should therefore not be treated better than they treated others: cf. <i>supra</i> p. 211, n. 6. [For a full discussion of the regulations laid down in our Mishnah and developed in the Gemara, as well as their application in the practical life of the Jewish communities in Talmudic times, v. Krauss, REJ, LIII, 14-55.] "
}

txt:
<p>
[where] either the Holy Tongue or the Greek language [could be employed]?' And R. Jose said: 'Why use the Aramaic language in Babylon [where] the Holy Tongue or the Persian language [could be used]?' &mdash; It may, however, be said that the Greek language is one thing and Grecian Wisdom is another. But was Grecian Wisdom proscribed? Did not Rab Judah say that Samuel stated in the name of R. Simeon b. Gamaliel: '[The words] <i>Mine eye affected my soul because of all the daughters of my city</i><a id="k83a_1"><sup>1</sup></a>&nbsp; [could very well be applied to the] thousand youths who were in my father's house; five hundred of them learned Torah and the other five hundred learned Grecian Wisdom, and out of all of them there remain only I here and the son of my father's brother in Asia'?<a id="k83a_2"><sup>2</sup></a>&nbsp; &mdash; It may, however, be said that the family of R. Gamaliel was an exception, as they had associations with the Government, as indeed taught: 'He who trims the front of his hair<a id="k83a_3"><sup>3</sup></a>&nbsp; in Roman fashion is acting in the ways of the Amorites.'<a id="k83a_4"><sup>4</sup></a>&nbsp; Abtolmus b. Reuben however was permitted to cut his hair in the Gentile fashion as he was in close contact with the Government. So also the members of the family of Rabban Gamaliel were permitted to discuss Grecian Wisdom on account of their having had associations with the Government.
</p><p>
	NO MAN SHOULD BREED A DOG UNLESS IT IS ON A CHAIN etc. Our Rabbis taught: No man should breed a dog unless it is kept on a chain. He may, however, breed it in a town adjoining the frontier where he should keep it chained during the daytime and loose it only at night. It was taught: R. Eliezer the Great says that he who breeds dogs is like him who breeds swine. What is the practical bearing of this comparison? &mdash; That he<a id="k83a_5"><sup>5</sup></a>&nbsp; be declared cursed.<a id="k83a_6"><sup>6</sup></a>&nbsp; R. Joseph b. Manyumi said in the name of R. Nahman that Babylon was on a par with a town adjoining the frontier.<a id="k83a_7"><sup>7</sup></a>&nbsp; This, however, was interpreted to refer to Nehardea. R. Dostai of Bira<a id="k83a_8"><sup>8</sup></a>&nbsp; expounded: <i>And when it rested, he said, Return O Lord unto the tens of thousands [and] the thousands of Israel</i>.<a id="k83a_9"><sup>9</sup></a>&nbsp; This, [he said,] teaches that the <i>Shechinah</i><a id="k83a_10"><sup>10</sup></a>&nbsp; does not rest upon Israel if they are less than two thousand plus two tens of thousands.<a id="k83a_11"><sup>11</sup></a>&nbsp; Were therefore the Israelites [to be twenty-two thousand] less one, and there was there among them a pregnant woman thus capable of completing the number, but a dog barked at her and she miscarried, the [dog] would in this case cause the <i>Shechinah</i> to depart from Israel. A certain woman<a id="k83a_12"><sup>12</sup></a>&nbsp; entered a neighbour's house to bake [there bread], and a dog suddenly barked at her, but the owner of the house said to her: Do not be afraid of the dog as its teeth are gone. She, however, said to him: Take thy kindness and throw it on the thorns, for the embryo has already been moved [from its place].
</p><p>
	IT IS NOT RIGHT TO PLACE NETS FOR DOVES UNLESS AT A DISTANCE OF THIRTY <I>RIS</I> FROM INHABITED SETTLEMENTS. But do they proceed so far? Did we not learn that a dove-cote must be kept at a distance from the town of fifty cubits?<a id="k83a_13"><sup>13</sup></a>&nbsp; &mdash; Abaye said: They certainly fly much further than that, but they eat their fill within fifty cubits.<a id="k83a_14"><sup>14</sup></a>&nbsp; But do they fly only thirty <i>ris</i> and no more? Was it not taught: 'Where there is an inhabited settlement no net must be spread even for a distance of a hundred <i>mil'</i>? &mdash; R. Joseph said: The latter statement refers to a settlement of vineyards;<a id="k83a_15"><sup>15</sup></a>&nbsp; Rabbah said that it refers to a settlement of dove-cotes.<a id="k83a_15"><sup>15</sup></a>&nbsp; But why not lay down the prohibition to spread nets on account of the dovecotes themselves?<a id="k83a_16"><sup>16</sup></a>&nbsp; &mdash; If you like I can say that they belong to Cutheans,<a id="k83a_17"><sup>17</sup></a>&nbsp; or if you like I can say that they are ownerless, or if you again like I can say that they are his own.
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k83b_1:" As even a lame or one-armed person could be employed in this capacity."
,k83b_2:" But not of the previous employment on account of the reason which follows."
,k83b_3:" Ex. XXI, 24."
,k83b_4:" Lev. XXIV; for the exact verse see the discussion that follows."
,k83b_5:" But no resort to Retaliation."
,k83b_6:" Lit., 'If it is your desire to say (otherwise).'"
,k83b_7:" Num. XXXV, 31."
,k83b_8:" I.e., ransom, and thus release him from capital punishment."
,k83b_9:" Lev. XXIV, 21."
,k83b_10:" Where retaliation actually applies."
,k83b_11:" Ibid. 18."
,k83b_12:" Ibid. 19."
,k83b_13:" E.V.: 'killeth'."
,k83b_14:" Ibid. 17."
,k83b_15:" As follows in the text, 'Breach for breach, eye for eye' etc."
,k83b_16:" The phrase, 'be put to death', would thus refer exclusively to the limb which has to be sacrificed in retaliation."
,k83b_17:" As indeed appears from the literal meaning of the text."
,k83b_18:" Lev. XXIV, 19."
,k83b_19:" I.e., where Man injured beast."
,k83b_20:" The murderer."
,k83b_21:" Deut. XXV, 2."
,k83b_22:" Cf. Mak. 4b and 13b."
,k83b_23:" Lev. XXIV, 22."
,k83b_24:" Without taking into consideration the sizes of the respective eyes. "
}

txt:
<p>
      <H2 ALIGN="Center">
	<A NAME="chapter_viii">CHAPTER VIII</A>
      </H2>

</p><p>
	<B><I>MISHNAH</I></B>. ONE WHO INJURES A FELLOW MAN BECOMES LIABLE TO HIM FOR FIVE ITEMS: FOR DEPRECIATION, FOR PAIN, FOR HEALING, FOR LOSS OF TIME AND FOR DEGRADATION. HOW IS IT WITH 'DEPRECIATION'? IF HE PUT OUT HIS EYE, CUT OFF HIS ARM OR BROKE HIS LEG, THE INJURED PERSON IS CONSIDERED AS IF HE WERE A SLAVE BEING SOLD IN THE MARKET PLACE, AND A VALUATION IS MADE AS TO HOW MUCH HE WAS WORTH [PREVIOUSLY]. AND HOW MUCH HE IS WORTH [NOW]. 'PAIN' &mdash; IF HE BURNT HIM EITHER WITH A SPIT OR WITH A NAIL, EVEN THOUGH ON HIS [FINGER] NAIL WHICH IS A PLACE WHERE NO BRUISE COULD BE MADE, IT HAS TO BE CALCULATED HOW MUCH A MAN OF EQUAL STANDING WOULD REQUIRE TO BE PAID TO UNDERGO SUCH PAIN. 'HEALING' &mdash; IF HE HAS STRUCK HIM, HE IS UNDER OBLIGATION TO PAY MEDICAL EXPENSES. SHOULD ULCERS [MEANWHILE] ARISE ON HIS BODY, IF AS A RESULT OF THE WOUND, THE OFFENDER WOULD BE LIABLE, BUT IF NOT AS A RESULT OF THE WOUND, HE WOULD BE EXEMPT. WHERE THE WOUND WAS HEALED BUT REOPENED, HEALED AGAIN BUT REOPENED, HE WOULD STILL BE UNDER OBLIGATION TO HEAL HIM. IF, HOWEVER, IT HAD COMPLETELY HEALED [BUT HAD SUBSEQUENTLY REOPENED] HE WOULD NO MORE BE UNDER OBLIGATION TO HEAL HIM. 'LOSS OF TIME' &mdash; THE INJURED PERSON IS CONSIDERED AS IF HE WERE A WATCHMAN OF CUCUMBER BEDS<a id="k83b_1"><sup>1</sup></a>&nbsp; [SO THAT THE LOSS OF SUCH WAGES<a id="k83b_2"><sup>2</sup></a>&nbsp; SUSTAINED BY HIM DURING THE PERIOD OF ILLNESS MAY BE REIMBURSED TO HIM]. FOR THERE HAS ALREADY BEEN PAID TO HIM THE VALUE OF HIS HAND OR THE VALUE OF HIS LEG [THROUGH WHICH DEPRIVATION HE WOULD NO MORE BE ABLE TO CARRY ON HIS PREVIOUS EMPLOYMENT]. 'DEGRADATION' &mdash; ALL TO BE ESTIMATED IN ACCORDANCE WITH THE STATUS OF THE OFFENDER AND THE OFFENDED.
</p><p>
	<B><I>GEMARA</I></B>. Why [pay compensation]? Does the Divine Law not say <i>'Eye for eye'</i>?<a id="k83b_3"><sup>3</sup></a>&nbsp; Why not take this literally to mean [putting out] the eye [of the offender]? &mdash; Let not this enter your mind, since it has been taught: You might think that where he put out his eye, the offender's eye should be put out, or where he cut off his arm, the offender's arm should be cut off, or again where he broke his leg, the offender's leg should be broken. [Not so; for] it is laid down, <i>'He that smiteth any man&hellip;' 'And he that smiteth a beast</i>&nbsp;&hellip;'<a id="k83b_4"><sup>4</sup></a>&nbsp; just as in the case of smiting a beast compensation is to be paid, so also in the case of smiting a man compensation is to be paid.<a id="k83b_5"><sup>5</sup></a>&nbsp; And should this [reason] not satisfy you,<a id="k83b_6"><sup>6</sup></a>&nbsp; note that it is stated, <i>'Moreover ye shall take no ransom for the life of a murderer, that is guilty of death</i>',<a id="k83b_7"><sup>7</sup></a>&nbsp; implying that it is only for the life of a murderer that you may not take <i>'satisfaction</i>',<a id="k83b_8"><sup>8</sup></a>&nbsp; whereas you may take '<i>satisfaction'</i> [even] for the principal limbs, though these cannot be restored.' To what case of '<i>smiting'</i> does it refer? If to [the Verse] '<i>And he that killeth a beast, shall make it good: and he that killeth a man, shall be put to death</i>',<a id="k83b_9"><sup>9</sup></a>&nbsp; does not this verse refer to murder?<a id="k83b_10"><sup>10</sup></a>&nbsp; &mdash; The quotation was therefore made from this text: <i>And he that smiteth a beast mortally shall make it good: life for life</i>,<a id="k83b_11"><sup>11</sup></a>&nbsp; which comes next to and if a man maim his neighbour: <i>as he hath done so shall it be done to him</i>.<a id="k83b_12"><sup>12</sup></a>&nbsp; But is [the term] 'smiting' mentioned in the latter text?<a id="k83b_12"><sup>12</sup></a>&nbsp; &mdash; We speak of the <i>effect</i> of smiting implied in this text and of the <i>effect</i> of smiting implied in the other text: just as smiting mentioned in the case of beast refers to the payment of compensation, so also does smiting in the case of man refer to the payment of compensation. But is it not written: <i>And he that smiteth<a id="k83b_13"><sup>13</sup></a>&nbsp; any man mortally shall surely be put to death</i><a id="k83b_14"><sup>14</sup></a>&nbsp; [which, on account of the fact that the law of murder is not being dealt with here,<a id="k83b_15"><sup>15</sup></a>&nbsp; surely refers to cases of mere injury and means Retaliation]?<a id="k83b_16"><sup>16</sup></a>&nbsp; &mdash; [Even this refers to the payment of] pecuniary compensation. How [do you know that it refers] to pecuniary compensation? Why not say that it really means capital punishment?<a id="k83b_17"><sup>17</sup></a>&nbsp; &mdash; Let not this enter your mind; first, because it is compared to the case dealt with in the text, <i>'He that smiteth<a id="k83b_13"><sup>13</sup></a>&nbsp; a beast mortally shall make it good'</i>, and furthermore, because it is written soon after, <i>'as he hath done so shall it be done to him'</i>,<a id="k83b_18"><sup>18</sup></a>&nbsp; thus proving that it means pecuniary compensation. But what is meant by the statement, 'if this reason does not satisfy you'? [Why should it not satisfy you?] &mdash; The difficulty which further occurred to the Tanna was as follows: What is your reason for deriving the law of man injuring man from the law of smiting a beast and not from the law governing the case of killing a man [where Retaliation is the rule]? I would answer: It is proper to derive [the law of] injury<a id="k83b_18"><sup>18</sup></a>&nbsp; from [the law governing another case of] injury,<a id="k83b_19"><sup>19</sup></a>&nbsp; and not to derive [the law of] injury<a id="k83b_18"><sup>18</sup></a>&nbsp; from [the law governing the case of] murder. It could, however, be argued to the contrary; [that it is proper] to derive [the law of injury inflicted upon] man from [another case of] man but not to derive [the law of injury inflicted upon] man from [the case of] beast. This was the point of the statement 'If, however, this reason does not satisfy you.' [The answer is as follows:] 'It is stated: <i>Moreover ye shall take no ransom for the life of a murderer that is guilty of death; but he shall surely be put to death</i>, implying that it was only <i>'for the life of a murderer'</i> that you may not take<i> ransom</i> whereas you may take <i>ransom</i> [even] for principal limbs though these cannot be restored.' But was the purpose of this [verse], Moreover ye shall take no ransom for the life of a murderer, to exclude the case of principal limbs? Was it not requisite that the Divine Law should state that you should not make him<a id="k83b_20"><sup>20</sup></a>&nbsp; subject to two punishments, i.e. that you should not take from him pecuniary compensation as well as kill him? &mdash; This, however, could be derived from the verse, According to his crime,<a id="k83b_21"><sup>21</sup></a>&nbsp; [which implies that] you can make him liable for one crime but cannot make him liable for two crimes.<a id="k83b_22"><sup>22</sup></a>&nbsp; But still was it not requisite that the Divine Law should state that you should not take pecuniary compensation from him and release him from the capital punishment? &mdash; If so the Divine Law would have written, 'Moreover ye shall take no satisfaction for him who is guilty [and deserving] of death'; why then write 'for the life of a murderer' unless to prove from it that it is only 'for the life of a murderer' that you may not take ransom, whereas you may take ransom [even] for principal limbs though these could not be restored? But since it was written, Moreover ye shall take no ransom [implying the law of pecuniary compensation in the case of mere injury], why do I require [the analogy made between] 'smiting' [in the case of injuring man and] 'smiting' [in the case of injuring beast]? &mdash; It may be answered that if [the law would have had to be derived only] from the former text, I might have said that the offender has the option, so that if he wishes he may pay with the loss of his eye or if he desires otherwise he may pay the value of the eye; we are therefore told [that the inference is] from smiting a beast: just as in the case of smiting a beast the offender is liable for pecuniary compensation so also in the case of injuring a man he is liable for pecuniary compensation.
</p><p>
	It was taught: R. Dosthai b. Judah says: Eye for eye means pecuniary compensation. You say pecuniary compensation, but perhaps it is not so, but actual retaliation [by putting out an eye] is meant? What then will you say where the eye of one was big and the eye of the other little, for how can I in this case apply the principle of eye for eye? If, however, you say that in such a case pecuniary compensation will have to be taken, did not the Torah state, Ye shall have one manner of law,<a id="k83b_23"><sup>23</sup></a>&nbsp; implying that the manner of law should be the same in all cases? I might rejoin: What is the difficulty even in that case? Why not perhaps say that for eyesight taken away the Divine Law ordered eyesight to be taken away from the offender?<a id="k83b_24"><sup>24</sup></a>&nbsp; For if you will not say this,
</P>


lvr: 41
dfh: a
notes:
 ntes={k93a_1:" Ibid. XXIII, 20."
,k93a_2:" Gen. XIII, 5."
,k93a_3:" Ibid. XVI, 5."
,k93a_4:" Ibid. XXIII, 2."
,k93a_5:" Cf. Ex. XXII, 23."
,k93a_6:" As in the case of Sarah; Gen. XVI, 5 and ibid. XXIII, 2."
,k93a_7:" Cf. Ex. XXII, 23."
,k93a_8:" Gen. XX, 16."
,k93a_9:" I.e., blindness."
,k93a_10:" Gen. XXVII, 1."
,k93a_11:" Among birds."
,k93a_12:" Cf. Lev.I, 14."
,k93a_13:" [MS.M.: 'R. Joseph b. Hama' the father of Raba.]"
,k93a_14:" Raba in the text and 'Rab' in the text of Asheri, v. Marginal Glosses in cur. edd."
,k93a_15:" I.e., R. Assi."
,k93a_16:" Cf. <i>supra</i> pp. 178-9."
,k93a_17:" According to Rashi there is strictly speaking no difference between the case dealt with in the commencing and that of the concluding clause; as all depends upon the implied intention, the illustration being in each case taken from what is usual, for while a man will pardon damage done to his chattel, he will not do so in regard to personal pain. But that this was not so was maintained by Tosaf."
,k93a_18:" Ex. XXII, 6."
,k93a_19:" Where he gave him the pitcher to break it and the garment to tear it."
,k93a_20:" In the case of the Mishnah."
,k93a_21:" I.e., to the hand of the one who did the damage."
,k93a_22:" In Ex."
,k93a_23:" But was destroyed before it actually reached the hand of the bailee."
,k93a_24:" Ibid."
,k93a_25:" In the case of the Mishnah."
,k93a_26:" So much per week."
,k93a_27:" As there were in that case definite plaintiffs. "
}

txt:
<p>
but subsequently it is written: <i>Behold I send an angel before thee to keep thee by the way</i>.<a id="k93a_1"><sup>1</sup></a>
</p><p>
	Raba [again] said to Rabbah b. Mari: Whence can be derived the popular saying: 'Behind an owner of wealth chips are dragged along'? &mdash; He replied: As it is written: <i>And Lot also who went with Abram had flocks and herds and tents</i>.<a id="k93a_2"><sup>2</sup></a>
</p><p>
	R. Hanan said: He who invokes the judgment of Heaven against his fellow is himself punished first, as it says, <i>And Sarai said unto Abram, My wrong be upon thee</i><a id="k93a_3"><sup>3</sup></a>&nbsp; etc., and it is subsequently written, <i>And Abraham came to mourn for Sarah, and to weep for her</i>.<a id="k93a_4"><sup>4</sup></a>&nbsp; This, however, is the case only where justice could be obtained in a temporal Court of Law. R. Isaac said: Woe to him who cries [for divine intervention] even more than to him against whom it is invoked! It was taught likewise: Both the one who cries for divine intervention and the one against whom it is invoked come under the Scriptural threat,<a id="k93a_5"><sup>5</sup></a>&nbsp; but punishment is meted out first to the one who cries, [and is] more severe than for the one against whom justice is invoked.<a id="k93a_6"><sup>6</sup></a>&nbsp; R. Isaac again said: The curse of an ordinary man should never be considered a trifling matter in your eyes,<a id="k93a_7"><sup>7</sup></a>&nbsp; for when Abimelech called a curse upon Sarah it was fulfilled in her seed, as it says, <i>Behold it is for thee a covering of the eyes</i>,<a id="k93a_8"><sup>8</sup></a>&nbsp; [which implies that] he said to her, 'Since thou hast covered the truth from me and not disclosed that he was thy husband, and hast thus caused me all this trouble, let it be the will [of Heaven] that there shall be to thee a covering of the eyes,'<a id="k93a_9"><sup>9</sup></a>&nbsp; and this was actually fulfilled in her seed, as it is written: <i>And it came to pass that when Isaac was old and his eyes were dim so that he could not see</i>.<a id="k93a_10"><sup>10</sup></a>&nbsp; R. Abbahu said: A man should always strive to be rather of the persecuted than of the persecutors as there is none among the birds more persecuted than doves and pigeons, and yet Scripture made them [alone]<a id="k93a_11"><sup>11</sup></a>&nbsp; eligible for the altar.<a id="k93a_12"><sup>12</sup></a>
</p><p>
	IF THE PLAINTIFF SAID: PUT OUT MY EYE&nbsp;&hellip; ON THE UNDERSTANDING THAT HE WOULD BE EXEMPT, HE WOULD STILL BE LIABLE. IF THE PLAINTIFF SAID: TEAR MY GARMENT ON THE UNDERSTANDING THAT YOU WILL BE EXEMPT HE WOULD BE EXEMPT. R. Assi b. Hama<a id="k93a_13"><sup>13</sup></a>&nbsp; said to Rabbah:<a id="k93a_14"><sup>14</sup></a>&nbsp; Why is the rule differing in the former case and in the latter case? &mdash; He replied: [There is liability in] the former case because no man truly pardons the wounding of his principal limbs. The others rejoined: Does a man then pardon the inflicting of pain, seeing that it was taught: 'If the plaintiff had said, "Smite me and wound me on the understanding that you will be exempt," the defendant would be exempt.' He had no answer and said: Have you heard anything on this matter? &mdash; He<a id="k93a_15"><sup>15</sup></a>&nbsp; thereupon said to him: This is what R. Shesheth has said: The liability is because [the plaintiff had no right to pardon] the discredit to the family. It was similarly stated: R. Oshaia said: Because of the discredit to the family, whereas Raba said: Because no man could truly pardon the injury done to his principal limbs. R. Johanan, however, said: Sometimes the term 'Yes' means 'No'<a id="k93a_16"><sup>16</sup></a>&nbsp; and the term 'No' means 'Yes' [as when spoken ironically].<a id="k93a_17"><sup>17</sup></a>&nbsp; It was also taught likewise: If the plaintiff said, 'Smite me and wound me,' and when the defendant interposed, 'On the understanding of being exempt, the plaintiff replied, 'Yes,' there may be a 'Yes' which implies 'No' [i.e., when spoken ironically]. If the plaintiff said, 'Tear my garment,' and when the defendant interposed, 'On the Understanding of being exempt, he said to him, 'No', there may be a 'No' which means 'Yes' [such as when spoken ironically].<a id="k93a_17"><sup>17</sup></a>
</p><p>
	IF THE DEFENDANT SAID: BREAK MY PITCHER AND TEAR MY GARMENT, THE DEFENDANT WOULD STILL BE LIABLE. A contradiction was pouched out: "'To keep"18 but not to destroy; "to keep", but not to tear; "to keep" but not to distribute to the poor,' [in which case the liability of bailees would not apply. Why then liability in the Mishnah]?<a id="k93a_19"><sup>19</sup></a>&nbsp; &mdash; Said R. Huna: There is no difficulty, as here<a id="k93a_20"><sup>20</sup></a>&nbsp; the article came into his hands,<a id="k93a_21"><sup>21</sup></a>&nbsp; whereas there<a id="k93a_22"><sup>22</sup></a>&nbsp; the article did not come into his hands.<a id="k93a_23"><sup>23</sup></a>&nbsp; Said Rabbah to him: Does the expression 'To keep'<a id="k93a_24"><sup>24</sup></a>&nbsp; not imply that the article has come into his hands? &mdash; Rabbah therefore said: This case as well as the other is one in which the article has come into his hands, and still there is no difficulty, as in the case here<a id="k93a_25"><sup>25</sup></a>&nbsp; the article originally came into his hands<a id="k93a_21"><sup>21</sup></a>&nbsp; for the purpose of being guarded, whereas there<a id="k93a_22"><sup>22</sup></a>&nbsp; it came to his hands for the purpose of being torn.
</p><p>
	A purse of money for charity having been brought to Pumbeditha, R. Joseph deposited it with a certain person who, however, was so negligent that thieves came and stole it. R. Joseph declared liability [to pay], but Abaye said to him: Was it not taught: 'To keep'<a id="k93a_24"><sup>24</sup></a>&nbsp; but not to distribute to the poor? &mdash; R. Joseph rejoined: The poor of Pumbeditha have a fixed allowance,<a id="k93a_26"><sup>26</sup></a>&nbsp; and the charity money could thus be considered as having been deposited 'to keep' [and not to distribute it to the poor].<a id="k93a_27"><sup>27</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k93b_1:" I.e., of the pieces of wood and wool but not of the utensils and garments respectively, as by the change which took place he acquired title to them; cf. <i>supra</i> p. 384."
,k93b_2:" I.e., the ownership would thereby not be transferred to the robber."
,k93b_3:" The reason being that through the change which took place the ownership was transferred."
,k93b_4:" I.e., where the article can no longer revert to its former condition; v. <i>supra</i> p. 386."
,k93b_5:" To transfer ownership."
,k93b_6:" In regard to which it was stated in the Baraitha that the robber will thereby acquire title to the wool."
,k93b_7:" As by this change the original obligation was annulled and the owner acquired unqualified and absolute right to the wool."
,k93b_8:" Hul. XI, 2; v. <i>supra</i> p. 382. Does not this prove that mere bleaching unlike dyeing does not constitute a change?"
,k93b_9:" In regard to the first fleece offering the minimum of which is according to R. Dosa b. Harkinas the weight of seven <i>maneh</i> and a half collected equally from not less than five sheep, but according to the Rabbis one <i>maneh</i> and a half collected equally from the same number of sheep would suffice; cf. Hul. XI, 2. A <i>maneh</i> amounts to twenty-five sela's; for Samuel's view according to the Rabbis cf ibid. 137b."
,k93b_10:" On account of the change which had been made."
,k93b_11:" Not considering it a change."
,k93b_12:" Considering it a change."
,k93b_13:" I.e., R. Simeon b. Yohai; cf. Sheb. 2b."
,k93b_14:" This shows that R. Simeon b. Yohai does not consider dyeing a change, much less bleaching."
,k93b_15:" v. p. 443. n. 5."
,k93b_16:" As to the view of R. Simeon b. Yohai on this matter."
,k93b_17:" For notes on passage following v. <i>supra</i> p. 380. "
}

txt:
<p>
      <H2 ALIGN="Center">
	<A NAME="chapter_ix">CHAPTER IX</A>
      </H2>

</p><p>
	<B><I>MISHNAH</I></B>. IF ONE MISAPPROPRIATES PIECES OF WOOD AND MAKES UTENSILS OUT OF THEM, OR PIECES OF WOOL AND MAKES GARMENTS OUT OF THEM, HE HAS TO PAY FOR THEM IN ACCORDANCE WITH [THEIR VALUE AT] THE TIME OF THE ROBBERY.<a id="k93b_1"><sup>1</sup></a>&nbsp; IF ONE MISAPPROPRIATED A PREGNANT COW WHICH MEANWHILE GAVE BIRTH [TO A CALF], OR A SHEEP BEARING WOOL WHICH HE SHEARED, HE WOULD PAY THE VALUE OF A COW WHICH WAS ABOUT TO GIVE BIRTH [TO A CALF], AND THE VALUE OF A SHEEP WHICH WAS READY TO BE SHORN [RESPECTIVELY]. BUT IF HE MISAPPROPRIATED A COW WHICH BECAME PREGNANT WHILE WITH HIM AND THEN GAVE BIRTH, OR A SHEEP WHICH WHILE WITH HIM GREW WOOL WHICH HE SHEARED, HE WOULD PAY IN ACCORDANCE WITH [THE VALUE AT] THE TIME OF THE ROBBERY. THIS IS THE GENERAL PRINCIPLE: ALL ROBBERS HAVE TO PAY IN ACCORDANCE WITH [THE VALUE OF THE MISAPPROPRIATED ARTICLES AT] THE TIME OF THE ROBBERY.
</p><p>
	<B><I>GEMARA</I></B>. Shall we say that it is only where he actually made utensils out of the pieces of wood [that the Mishnaic ruling will apply], whereas if he merely planed them this would not be so?<a id="k93b_2"><sup>2</sup></a>&nbsp; Again, it is only where he made garments out of the wool that this will be so, whereas where he merely bleached it this would not be so! But could not a contradiction be raised from the following: 'One who misappropriated pieces of wood and planed them, stones and chiselled them, wool and bleached it or flax and cleansed it, would have to pay in accordance with [the value] at the time of the robbery'?<a id="k93b_3"><sup>3</sup></a>&nbsp; &mdash; Said Abaye: The Tanna of our Mishnah stated the ruling where the change [in the article misappropriated] is only such as is recognised by the Rabbis, that is, where it can still revert [to its former condition] and of course it applies all the more where the change is such<a id="k93b_4"><sup>4</sup></a>&nbsp; as is recognised by the pentateuch:<a id="k93b_5"><sup>5</sup></a>&nbsp; [for the expression ONE WHO MISAPPROPRIATES] PIECES OF WOOD AND MAKES OUT OF THEM UTENSILS refers to pieces of wood already planed, such as ready-made boards, in which a reversion to the previous condition is still possible, since if he likes he can easily pull the boards out [and thus have them as they were previously]; PIECES OF WOOL AND MADE GARMENTS OUT OF THEE also refers to wool which was already spun, in which [similarly] a reversion to the previous condition is possible, since if he likes he can pull out the threads and restore them to the previous condition; the same law would apply all the more in the case of a change [where the article could no more revert to the previous condition and] which would thus be recognised by the pentateuch.<a id="k93b_5"><sup>5</sup></a>&nbsp; But the Tanna of the Baraitha deals only with a change [where the article could no more revert to its previous condition and] which would thus be recognised by the pentateuch, but does not deal with a change [in which the article could revert to its previous condition and which would be] recognised only by the Rabbis. R. Ashi, however, said: The Tanna of our [Mishnah also] deals with a change which would be recognised by the pentateuch, for by PIECES OF WOOD AND MAKES UTENSILS OUT OF THEM he means clubs, which were changed by planing them; by PIECES OF WOOL AND MAKES GARMENTS OUT OF THEM he similarly means felt cloths, which involves a change that can no more revert to its previous condition.
</p><p>
	But should bleaching be considered a change?<a id="k93b_6"><sup>6</sup></a>&nbsp; Could no contradiction be raised [from the following]: 'If the owner did not manage to give the first of the fleece to the priest until it had already been dyed, he would be exempt,<a id="k93b_7"><sup>7</sup></a>&nbsp; but if he only bleached it without having dyed it, he would still be liable'?<a id="k93b_8"><sup>8</sup></a>&nbsp; &mdash; Said Abaye: This is no difficulty, as the former statement is in accordance with R. Simeon and the latter in accordance with the Rabbis; for it was taught: 'If after the owner had shorn his sheep he span the wool or wove it, this portion would not be taken into account<a id="k93b_9"><sup>9</sup></a>&nbsp; [with the other wool which was still left in a raw state];<a id="k93b_10"><sup>10</sup></a>&nbsp; but if he only purified it, R. Simeon says: It would [still] not be taken into account, whereas the Sages say that it would be taken into account. But Raba said that both statements might be in accordance with R. Simeon, and there would still be no difficulty, as in one case<a id="k93b_11"><sup>11</sup></a>&nbsp; [the process of bleaching was] by beating the wool [where no actual change took place], whereas in the other case<a id="k93b_12"><sup>12</sup></a>&nbsp; the wool was corded with a comb. R. Hiyya b. Abin said that in one case<a id="k93b_11"><sup>11</sup></a>&nbsp; the wool was merely washed [so that no actual change took place]. whereas in the other<a id="k93b_12"><sup>12</sup></a>&nbsp; it was whitened with sulphur. But since even dyeing is according to R. Simeon not considered a change, how could bleaching be considered a change, for was it not taught: 'Where the owner had shorn one sheep after another and in the interval dyed the [respective] fleeces, [or shorn] one after another and in the interval spun the wool, [or shorn] one after another and in the interval wove the wool, this portion would not be taken into account,<a id="k93b_9"><sup>9</sup></a>&nbsp; but R. Simeon b. Judah said in the name of R. Simeon<a id="k93b_13"><sup>13</sup></a>&nbsp; that if he [only] dyed the wool it would be taken into account'?<a id="k93b_14"><sup>14</sup></a>&nbsp; &mdash; Said Abaye: There is no difficulty, as the former statement was made by the Rabbis according to R. Simeon whereas the latter<a id="k93b_15"><sup>15</sup></a>&nbsp; was made by R. Simeon b. Judah according to R. Simeon. But Raba said: You may still say that the Rabbis did not differ from R. Simeon b. Judah on this point,<a id="k93b_16"><sup>16</sup></a>&nbsp; for dyeing might be different, the reason being that since the colour could be removed by soap, [it is not considered a change], and as to the statement made there, 'If the owner did not manage to give the first of his fleece to the priest until it had already been dyed he would be exempt' which has been stated to be accepted unanimously, this deals with a case where it was dyed with indigo [which could not be removed by soap].
</p><p>
	Abaye said: R. Simeon b. Judah, Beth Shammai, R. Eliezer b. Jacob. R. Simeon b. Eleazar and R. Ishmael all maintain that a change leaves the article in its previous status: R. Simeon b. Judah here in the text quoted by us; but what about Beth Shammai? &mdash; As it was taught:<a id="k93b_17"><sup>17</sup></a>&nbsp; 'Where he gave her as her hire wheat of which she made flour, or olives of which she made oil, or grapes of which she made wine,' one [Baraitha] taught that 'the produce is forbidden to be sacrificed upon the altar,' whereas another [Baraitha] taught 'it is permitted'. and R. Joseph said: Gorion
</P>


lvr: 41
dfh: a
notes:
 ntes={k111a_1:" Regarding the state of the husband's brother,"
,k111a_2:" Keth. 75a."
,k111a_3:" [H] two bodies, (Rashi); last. 'with a load of grief'."
,k111a_4:" So that irrespective of any undesirable consequences whatsoever it was an advantage to her to become betrothed to 'the person she hath chosen to dwell together'; cf. Rashi a.l."
,k111a_5:" I.e. to Jehoiarib."
,k111a_6:" To Jedaiah."
,k111a_7:" V. p. 642, n. 7."
,k111a_8:" At least so far as the division of Jedaiah accepting the money is concerned; why then did R. Judah order the payment to be taken away from Jedaiah and handed over to Jehoiarib?"
,k111a_9:" That Jedaiah accepted the money."
,k111a_10:" V. p. 642, n. 8."
,k111a_11:" Before the money was paid, in which case the trespass offering becomes disqualified."
,k111a_12:" To whom the money was paid and not by Jehoiarib who accepted the previous trespass offering."
,k111a_13:" I.e., of the Jehoiarib division."
,k111a_14:" I.e., to the disqualified trespass offering."
,k111a_15:" V. p. 646, n. 16."
,k111a_16:" V. p. 648, n. 6."
,k111a_17:" V. p. 648, n. 5."
,k111a_18:" For the money accepted by Jedaiah."
,k111a_19:" To Jehoiarib."
,k111a_20:" Regarding the money and the trespass offering."
,k111a_21:" And the money should thus remain with Jedaiah."
,k111a_22:" Even from Jedaiah (during his time of service) for the trespass offering accepted by Jehoiarib."
,k111a_23:" I.e., the money will be handed over to Jehoiarib who will sacrifice the trespass offering when their time of service will come round again."
,k111a_24:" Num. V, 8."
,k111a_25:" Probably in the term 'beside'."
,k111a_26:" Num. XXVIII, 23."
,k111a_27:" In the term 'beside'."
,k111a_28:" Pes. 58b."
,k111a_29:" Cf. Num. XXVIII, 2-4."
,k111a_30:" Lev. VI, 5."
,k111a_31:" Cf. Hor, 12a."
,k111a_32:" Not from the term 'beside'."
,k111a_33:" By having the verb in the future tense."
,k111a_34:" Cf. Lev. V, 16."
,k111a_35:" In accordance with ibid. 15."
,k111a_36:" Ibid. 16,"
,k111a_37:" I.e., the payment of the Principal as <i>supra</i> p. 642."
,k111a_38:" Lev. V, 15-16."
,k111a_39:" Num. V, 6-8."
,k111a_40:" V. p. 650, n. 14. "
}

txt:
<p>
that she was quite prepared to accept any conditions,<a id="k111a_1"><sup>1</sup></a>&nbsp; as we learn from Resh Lakish; for Resh Lakish said:<a id="k111a_2"><sup>2</sup></a>&nbsp; it is better [for a woman] to dwell as two<a id="k111a_3"><sup>3</sup></a>&nbsp; than to dwell in widowhood.<a id="k111a_4"><sup>4</sup></a>
</p><p>
	WHERE HE GAVE THE MONEY TO JEHOIARIB AND THE TRESPASS OFFERING TO JEDAIAH etc. Our Rabbis taught: Where he gave the trespass offering to Jehoiarib and the money to Jedaiah the money will have to be brought to [whom] the trespass offering [is due].<a id="k111a_5"><sup>5</sup></a>&nbsp; This is the view of R. Judah, but the Sages say that the trespass offering will have to be brought<a id="k111a_6"><sup>6</sup></a>&nbsp; to [whom] the money [is due].<a id="k111a_7"><sup>7</sup></a>&nbsp; What are the circumstances? Do we suppose that the trespass offering was given to Jehoiarib during the [time of the] division of Jehoiarib and so also the money was given to Jedaiah during the [time of the] division of Jedaiah? If so, why should the one not acquire title to his and the other to his?<a id="k111a_8"><sup>8</sup></a>&nbsp; &mdash; Said Raba: We are dealing here with a case where the trespass offering was given to Jehoiarib during the [time of the] division of Jehoiarib and [so also] the money was given to Jedaiah during [the time of] the division of Jehoiarib. In such a case R. Judah maintained that since it was not [the time of] the division of Jedaiah,<a id="k111a_9"><sup>9</sup></a>&nbsp; it is Jedaiah whom we ought to penalise, and the money has therefore to be brought to the [place of the] trespass offering,<a id="k111a_5"><sup>5</sup></a>&nbsp; whereas the Rabbis maintained that as it was the members of the Jehoiarib division that acted unlawfully<a id="k111a_7"><sup>7</sup></a>&nbsp; in having accepted the trespass offering before the money,<a id="k111a_10"><sup>10</sup></a>&nbsp; it is they who have to be penalised and the trespass offering accordingly should be brought<a id="k111a_6"><sup>6</sup></a>&nbsp; to the [place where] the money [is due].<a id="k111a_7"><sup>7</sup></a>
</p><p>
	It was taught: Rabbi said: According to the view of R. Judah, if the members of the Jehoiarib division had already sacrificed the trespass offering,<a id="k111a_11"><sup>11</sup></a>&nbsp; the robber would have to come again and bring another trespass offering which will now be sacrificed by the members of the Jedaiah division,<a id="k111a_12"><sup>12</sup></a>&nbsp; though the others<a id="k111a_13"><sup>13</sup></a>&nbsp; would acquire title to that which remained in their possession.<a id="k111a_14"><sup>14</sup></a>&nbsp; But I would fain ask: For what could the disqualified trespass offering have any value? &mdash; Said Raba: For its skin.<a id="k111a_15"><sup>15</sup></a>
</p><p>
	It was taught: Rabbi said: According to R. Judah, if the trespass offering was still in existence, the trespass offering will have to be brought<a id="k111a_16"><sup>16</sup></a>&nbsp; to [whom] the money [is due]. But is R. Judah not of the opinion that the money should be brought to [whom] the trespass offering [is due]?<a id="k111a_17"><sup>17</sup></a>&nbsp; We are dealing here with a case where e.g. the division of Jehoiarib has already left without, however, having made any demand,<a id="k111a_18"><sup>18</sup></a>&nbsp; and what we are told therefore is that this should be considered as a waiving of their right in favour of the members of the division of Jedaiah.
</p><p>
	Another [Baraitha] taught again: Rabbi said: According to R. Judah, if the trespass offering was still in existence, the money would have to be brought to [whom] the trespass offering [is due].<a id="k111a_19"><sup>19</sup></a>&nbsp; But is this not obvious, since this was actually his view? &mdash; We are dealing here with a case where e.g., the divisions of both Jehoiarib and Jedaiah have already left without having made any demand [on each other].<a id="k111a_20"><sup>20</sup></a>&nbsp; In this case you might have thought that they mutually waived their claim on each other.<a id="k111a_21"><sup>21</sup></a>&nbsp; We are therefore told that since there was no demand from either of them<a id="k111a_22"><sup>22</sup></a>&nbsp; we say that the original position must be restored.<a id="k111a_23"><sup>23</sup></a>
</p><p>
	FOR HE WHO BRINGS [THE PAYMENT FOR] ROBBERY BEFORE HAVING BROUGHT THE TRESPASS OFFERING [FULFILLS HIS DUTY, WHEREAS HE WHO BRINGS THE TRESPASS OFFERING BEFORE HAVING BROUGHT THE PAYMENT FOR ROBBERY DID NOT FULFILL HIS DUTY]. Whence can these rulings be derived? &mdash; Said Raba: Scripture states: Let the trespass be restored unto the Lord, even to the priest, beside the ram of the atonement whereby an atonement shall be made for him,<a id="k111a_24"><sup>24</sup></a>&nbsp; thus implying<a id="k111a_25"><sup>25</sup></a>&nbsp; that the money must be paid first. One of the Rabbis, however, said to Raba: But according to this reasoning will it not follow that in the verse: Ye shall offer these beside the burnt offering in the morning<a id="k111a_26"><sup>26</sup></a>&nbsp; it is similarly implied<a id="k111a_27"><sup>27</sup></a>&nbsp; that the additional offering will have to be sacrificed first? But was it not taught:<a id="k111a_28"><sup>28</sup></a>&nbsp; Whence do we know that no offering should be sacrificed prior to the continual offering of the morning?<a id="k111a_29"><sup>29</sup></a>&nbsp; Because it is stated, And lay the burnt offering in order upon it<a id="k111a_30"><sup>30</sup></a>&nbsp; and Raba stated: 'The burnt offering'<a id="k111a_30"><sup>30</sup></a>&nbsp; means the first burnt offering?<a id="k111a_31"><sup>31</sup></a>&nbsp; &mdash; He, however, said to him: I derive it<a id="k111a_32"><sup>32</sup></a>&nbsp; from the clause:<a id="k111a_29"><sup>29</sup></a>&nbsp; 'Whereby an atonement shall be made for him' which indicates<a id="k111a_33"><sup>33</sup></a>&nbsp; that the atonement has not yet been made.
</p><p>
	WHERE HE PAID THE PRINCIPAL BUT DID NOT PAY THE FIFTH, THE [NON-PAYMENT OF THE] FIFTH IS NO BAR.
</p><p>
	Our Rabbis taught: Whence could it be derived that if he brought the Principal due for sacrilege,<a id="k111a_34"><sup>34</sup></a>&nbsp; but had not yet brought the trespass offering,<a id="k111a_35"><sup>35</sup></a>&nbsp; or if he brought the trespass offering but had not yet brought the Principal due for sacrilege, he did not thereby fulfil his duty? Because it says: <i>With the ram of the trespass offering and it shall be forgiven him</i>.<a id="k111a_36"><sup>36</sup></a>&nbsp; Again, whence could it be derived that if be brought his trespass offering before he brought the Principal due for the sacrilege he did not thereby fulfil his duty? Because it says, <i>'With the ram of the trespass,'</i> implying that the trespass [itself]<a id="k111a_37"><sup>37</sup></a>&nbsp; has already been made good. It might be thought that just as the ram and the trespass are indispensable, so should the Fifth be indispensable? It is therefore stated: <i>'With the ram of the trespass offering and it shall he forgiven him</i>,' implying that it was only the ram and the trespass which are indispensable in [the atonement for the sacrilege of] consecrated things, whereas the Fifth is not indispensable. Now, the law regarding consecrated things<a id="k111a_38"><sup>38</sup></a>&nbsp; could be derived from that regarding private belongings<a id="k111a_39"><sup>39</sup></a>&nbsp; and that of private belongings could be derived from the law regarding consecrated things. The law regarding consecrated things could be derived from that regarding private belongings: just as 'trespass' there<a id="k111a_39"><sup>39</sup></a>&nbsp; denotes the Principal<a id="k111a_40"><sup>40</sup></a>&nbsp; so does 'trespass' here<a id="k111a_38"><sup>38</sup></a>&nbsp; denote the Principal. The law regarding private belongings could be derived from that regarding consecrated things; just as in the case of consecrated things the Fifth is not indispensable, so in the case of private things the Fifth is similarly not indispensable.
</p><p>

</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k111b_1:" I.e., the one who robbed him."
,k111b_2:" I.e., the one who later on consumed the article."
,k111b_3:" V. J. Ter. VII, 3."
,k111b_4:" I.e., the foodstuff was consumed after the proprietor had resigned himself to the loss of it completely."
,k111b_5:" Maintaining that if after renunciation the robber died, the misappropriated article could rightly remain with the heirs, just as with purchasers under similar circumstances; cf. <i>supra</i> p. 393, n. 5; v. also B.B. 44a."
,k111b_6:" The article could therefore not rightly remain with the heirs though it would have remained with a purchaser."
,k111b_7:" But if still intact it would go back to the proprietor."
,k111b_8:" Now assumed to denote garments and similar conspicuous articles, as would be the case with real property."
,k111b_9:" For the sake of honouring their father."
,k111b_10:" Which states the law in the case of inconspicuous articles such as food and the like."
,k111b_11:" And the heirs seem nevertheless to have the right to retain it."
,k111b_12:" I.e., realty."
,k111b_13:" For the father's realty became legally mortgaged for the liability arising out of the robbery he committed."
,k111b_14:" <i>Infra</i> 113a."
,k111b_15:" But in the case of inconspicuous things such as food and the like, the heirs would be entitled to retain them."
,k111b_16:" V. B.M. 62b."
,k111b_17:" According to whom the person who consumed the misappropriated article could also be called upon to pay."
,k111b_18:" I.e., the foodstuff was consumed after the proprietor had resigned himself to the loss of it completely."
,k111b_19:" Maintaining that if after Renunciation the robber died, the misappropriated article could rightly remain with the heirs, just as with purchasers under similar circumstances; cf. <i>supra</i> p. 652; v. also B.B. 44a. "
}

txt:
      <H2 ALIGN="Center">
	<A NAME="chapter_x">CHAPTER X</A>
      </H2>

	<B><I>MISHNAH</I></B>. IF ONE MISAPPROPRIATED [FOODSTUFF] AND FED HIS CHILDREN OR LEFT [IT] TO THEM [AS AN INHERITANCE], THEY WOULD NOT BE LIABLE TO MAKE RESTITUTION, BUT IF THERE WAS ANYTHING [LEFT] WHICH COULD SERVE AS SECURITY THEY WOULD BE LIABLE TO PAY.
</p><p>
	<B><I>GEMARA</I></B>. R. Hisda said: If one misappropriated [an article] and before the owner gave up hope of recovering it, another person came and consumed it, the owner has the option of collecting payment from either the one<a id="k111b_1"><sup>1</sup></a>&nbsp; or the other,<a id="k111b_2"><sup>2</sup></a>&nbsp; the reason being that so long as the owner did not give up hope of recovery, the misappropriated article is still in the ownership of the original possessor.<a id="k111b_3"><sup>3</sup></a>&nbsp; But we have learnt: IF ONE MISAPPROPRIATED [FOODSTUFF] AND FED HIS CHILDREN<a id="k111b_1"><sup>1</sup></a>&nbsp; [WITH IT], OR LEFT [IT] TO THEM [AS AN INHERITANCE], THEY WOULD NOT BE LIABLE TO MAKE RESTITUTION. Now, is this not a contradiction to the view of R. Hisda? &mdash; R. Hisda might say to you that this holds good only after the owner has given up hope.<a id="k111b_4"><sup>4</sup></a>
</p><p>
	[IF HE] LEFT [IT] TO THEM [AS AN INHERITANCE], THEY WOULD NOT BE LIABLE TO MAKE RESTITUTION. Rami b. Hama said: This [ruling] proves that the possession of an heir is on the same footing in law as the possession of a purchaser;<a id="k111b_5"><sup>5</sup></a>&nbsp; Raba, however, said the possession of an heir is not on a par with the possession of a purchaser,<a id="k111b_6"><sup>6</sup></a>&nbsp; for here we are dealing with a case where the food was consumed [after the father's death].<a id="k111b_7"><sup>7</sup></a>&nbsp; But since it is stated in the concluding clause, BUT IF THERE WAS ANYTHING [LEFT] WHICH COULD SERVE AS SECURITY<a id="k111b_8"><sup>8</sup></a>&nbsp; THEY WOULD BE LIABLE TO PAY<a id="k111b_9"><sup>9</sup></a>&nbsp; does it not imply that even in the earlier clause<a id="k111b_10"><sup>10</sup></a>&nbsp; we are dealing with a case where the misappropriated article was still in existence?<a id="k111b_11"><sup>11</sup></a>&nbsp; Raba could however say to you that what is meant is this: If their father left them property constituting [legal] security<a id="k111b_12"><sup>12</sup></a>&nbsp; they would be liable to pay.<a id="k111b_13"><sup>13</sup></a>&nbsp; But did Rabbi not teach<a id="k111b_14"><sup>14</sup></a>&nbsp; his son R. Simeon that 'ANYTHING WHICH COULD SERVE AS SECURITY should not [be taken literally to] mean actual security, for even if he left a cow to plough with or an ass to be driven,<a id="k111b_15"><sup>15</sup></a>&nbsp; they would be liable to restore it, to save their father's good name? &mdash; Raba therefore said: When I pass away R. Oshaia will come out to meet me,<a id="k111b_16"><sup>16</sup></a>&nbsp; since I am explaining the Mishnaic text in accordance with his teaching, for R. Oshaia taught: Where he misappropriated [foodstuff] and fed his children, they would not have to make restitution. If he left it to them [as an inheritance] so long as the misappropriated article is in existence they will be liable, but as soon as the misappropriated article is no more intact they will be exempt. But if their father left them property constituting [legal] security they would be liable to pay.
</p><p>
	The Master stated: 'As soon as the misappropriated article is no more intact they would be exempt.' Should we not say that this is a contradiction to the view of R. Hisda?<a id="k111b_17"><sup>17</sup></a>&nbsp; &mdash; R. Hisda could say to you that the ruling [here] applies subsequent to Renunciation.<a id="k111b_18"><sup>18</sup></a>
</p><p>
	The Master said: 'So long as the misappropriated article is in existence they will be liable to pay.' Should we not say that this is a contradiction to the view of Rami b. Hama?<a id="k111b_19"><sup>19</sup></a>&nbsp; &mdash; But Rami b. Hama could say to you that this teaching
</P>


lvr: 41
dfh: a
notes:
 ntes={k3a_1:" I Kings XIV, 10. ['Galal', E.V.: 'dung', is interpreted as 'marble', 'ivory', which teeth resemble; cf. Ezra V, 8. V. Tosaf. a.l.]"
,k3a_2:" [Lit., 'The Merciful One,' i.e., God, whose word Scripture reveals. V. Bacher, Exeg. Term., II, 207f.]"
,k3a_3:" V. p. 4, n. 6."
,k3a_4:" Ex. XXI, 35-36."
,k3a_5:" To cite the verse from Isaiah."
,k3a_6:" Send forth and consume, cf. n. 2."
,k3a_7:" Where no term expressing 'Consumption' is employed."
,k3a_8:" To cite the verse from Kings."
,k3a_9:" I.e., 'He shall send forth'."
,k3a_10:" Where no term expressing 'sending forth' is employed."
,k3a_11:" V. p. 4, n. 6."
,k3a_12:" Deut. XXXII, 24."
,k3a_13:" And thus there would be no definite sanction for action in either."
,k3a_14:" V., however, <i>infra</i> p. 17, that Tooth and Foot were recorded in Scripture not for the sake of liability but to be immune for damage done by them on public ground."
,k3a_15:" As signified by, 'He shall send forth'."
,k3a_16:" Cf. <i>supra</i> p. 2."
,k3a_17:" V. p. 6, n. 6."
,k3a_18:" Ex. XXI, 34."
,k3a_19:" <i>Infra</i> 50b."
,k3a_20:" <i>Infra</i> p. 150."
,k3a_21:" Being, like Pit, a public nuisance. >"
}

txt:
<p>
to entirety.<a id="k3a_1"><sup>1</sup></a>
</p><p>
	The Master has [just] enunciated: <I>'And he shall send forth</I> denotes Foot, as it is [elsewhere] expressed, <I>That send forth the feet of the ox and the ass.</I>' His reason then is that the Divine Law<a id="k3a_2"><sup>2</sup></a>&nbsp; [also] says, <I>That send forth the feet of the ox and the ass</I>, but even were it not so, how else could you interpret the phrase?<a id="k3a_3"><sup>3</sup></a>&nbsp; It could surely not refer to Horn which is already [elsewhere] set down,<a id="k3a_4"><sup>4</sup></a>&nbsp; nor could it refer to Tooth since this is likewise [already] set down?<a id="k3a_3"><sup>3</sup></a>&nbsp; &mdash; It was essential<a id="k3a_5"><sup>5</sup></a>&nbsp; as otherwise it might have entered your mind to regard both [phrases]<a id="k3a_6"><sup>6</sup></a>&nbsp; as denoting Tooth: the one when there is destruction of the corpus and the other when the corpus remains unaffected; it is therefore made known to us that this is not the case. Now that we have identified it with Foot, whence could be inferred the liability of Tooth in cases of non-destruction of the corpus? From the analogy of Foot;<a id="k3a_7"><sup>7</sup></a>&nbsp; just as [in the case of] Foot no difference in law is made between destruction and non-destruction of corpus, so [in the case of] Tooth no distinction is made between destruction and non-destruction of corpus.
</p><p>
	The Master has [just] enunciated: '<I>And it shall consume</I> denotes Tooth, as elsewhere expressed, As the tooth consumeth to entirety.' His reason then is that the Divine Law [also] says, <I>As the tooth consumeth to entirety</I>, but even were it not so, how else could you interpret the phrase? It could surely not refer to Horn which is already elsewhere set down,<a id="k3a_4"><sup>4</sup></a>&nbsp; nor could it refer to Foot, since this is likewise elsewhere set down?<a id="k3a_3"><sup>3</sup></a>&nbsp; &mdash; It is essential,<a id="k3a_8"><sup>8</sup></a>&nbsp; as otherwise it might have entered your mind to regard both phrases<a id="k3a_6"><sup>6</sup></a>&nbsp; as denoting Foot: the one when the cattle went of its own accord and the other<a id="k3a_9"><sup>9</sup></a>&nbsp; when it was sent by its owner [to do damage]; it is, therefore, made known to us that this is not so. Now that we have identified it with Tooth, whence could be inferred the liability of Foot in cases when the cattle went of its own accord? &mdash; From the analogy of Tooth;<a id="k3a_10"><sup>10</sup></a>&nbsp; just as in the case of Tooth there is no difference in law whether the cattle went of its own accord or was sent by its owner, so [in the case of] Foot there is no difference in law whether the cattle went of its own accord or was sent by its owner.
</p><p>
	But supposing Divine Law had only written, And he shall send forth,<a id="k3a_11"><sup>11</sup></a>&nbsp; omitting And it shall consume, would it not imply both Foot and Tooth? Would it not imply Foot, as it is written, That send forth the feet of the ox and the ass? Again, would it not also imply Tooth, as it is written, And the teeth of beasts will I send upon them?<a id="k3a_12"><sup>12</sup></a>&nbsp; &mdash; If there were no further expression I would have said either one or the other [might be meant], either Foot, as the damage done by it is of frequent occurrence, or Tooth, as the damage done by it affords gratification.<a id="k3a_13"><sup>13</sup></a>&nbsp; Let us see now, they are equally balanced, let them then both be included, for which may you exclude?<a id="k3a_14"><sup>14</sup></a>&nbsp; &mdash; It is essential [to have the further expression], for [otherwise] it might have entered your mind to assume that these laws [of liability] apply only to intentional trespass,<a id="k3a_15"><sup>15</sup></a>&nbsp; exempting thus cases where the cattle went of its own accord; it is, therefore, made known to us that this is not the case.
</p><p>
	The derivative of Tooth, what is it? &mdash; When [the cattle] rubbed itself against a wall for its own pleasure [and broke it down], or when it spoiled fruits [by rolling on them] for its own pleasure. Why are these cases different? Just as Tooth affords gratification from the damage [it does] and, being your possession, is under your control, why should not this also be the case with its derivatives which similarly afford gratification from the damage [they do] and, being your possession are under your control? &mdash; The derivative of Tooth is therefore equal to Tooth, and R. Papa's statement [to the contrary]<a id="k3a_16"><sup>16</sup></a>&nbsp; refers to the derivative of Foot.
</p><p>
	What is the derivative of Foot? &mdash; When it did damage while in motion either with its body or with its hair, or with the load [which was] upon it, or with the bit in its mouth, or with the bell on its neck. Now, why should these cases be different? Just as Foot does frequent damage and, being your possession, is under your control, why should not this also be the case with its derivatives which similarly do frequent damage and, being your possession, are under your control? The derivative of Foot is thus equal to Foot, and R. Papa's statement [to the contrary]<a id="k3a_17"><sup>17</sup></a>&nbsp; refers to the derivative of the Pit.
</p><p>
	What is the derivative of Pit? It could hardly be said that the Principal is a pit of ten handbreadths deep and its derivative one nine handbreadths deep, since neither nine nor ten is stated in Scripture! &mdash; That is no difficulty: [as] And the dead beast shall be his<a id="k3a_18"><sup>18</sup></a>&nbsp; the Divine Law declares, and it was quite definite with the Rabbis<a id="k3a_19"><sup>19</sup></a>&nbsp; that ten handbreadths could occasion death, whereas nine might inflict injury but could not cause death. But however this may be, is not the one [of ten] a principal [cause] in the event of death, and the other [of nine] a principal [cause] in the event of [mere] injury? &mdash; Hence [Rab Papa's statement] must refer to a stone, a knife and luggage which were placed on public ground and did damage. In what circumstances? If they were abandoned [there], according to both Rab and Samuel,<a id="k3a_20"><sup>20</sup></a>&nbsp; they would be included in [the category of] Pit;<a id="k3a_21"><sup>21</sup></a>
</P><hr noshade size="1" width="100%">


lvr: 41
dfh: b
notes:
 ntes={k3b_1:" The derivatives of which are equal to the Principal."
,k3b_2:" <i>Infra</i> p. 9."
,k3b_3:" <i>Supra</i> p. 7."
,k3b_4:" <i>Infra</i> p. 136."
,k3b_5:" I.e., civilly liable in full for all misdeeds."
,k3b_6:" V. p. 6, n. 6."
,k3b_7:" I.e., the derivative of Man."
,k3b_8:" V. p. 7, n. 4."
,k3b_9:" <i>Supra</i> p. 7."
,k3b_10:" Cf. <i>infra</i> p. 80."
,k3b_11:" Since it pays only half the damage."
,k3b_12:" Unlike half damages in the case of Horn where the payment is collected only out of the body of the animal that did the damage."
,k3b_13:" <i>Infra</i> p. 83."
,k3b_14:" V. p. 8, n. 10."
,k3b_15:" Just as is the case with Foot, cf. <i>infra</i> p. 17."
,k3b_16:" As possessing freedom of will and the faculty of discretion and enquiry, i.e., constituting a cultural and rational being; idiots and minors are thus excluded, cf. <i>infra</i> p. 502."
,k3b_17:" [H] Isa. XXI, 12; the root in each case being the same."
,k3b_18:" [H] Ob. I, 6; the root in each case being the same."
,k3b_19:" I.e., how could a term denoting 'seeking out' stand for Tooth?"
,k3b_20:" Who was exceptionally well conversant with Targumic texts. Some explain it on account of his having been blind (v. <i>infra</i> p. 501), and thus unable to cite the original Biblical text because of the prohibition to recite orally passages from the Written Law, cf. Git. 60a. [Others ascribe the edition of the <i>Targum</i> on the prophets to him, v. Graetz (Geschichte IV, 326.]"
,k3b_21:" [H] (E.V.: sought out), translated exposed, indicates exposure and may therefore designate Tooth which is naturally hidden but becomes exposed in grazing."
,k3b_22:" In the passive voice."
,k3b_23:" In the kal denoting mere action; the causative (hiph'il) is used with reference to Tooth which the animal exposes in grazing."
,k3b_24:" Cattle, including Tooth."
,k3b_25:" And therefore the liability of Tooth could not he derived from that of Horn. "
}

txt:
<p>
if [on the other hand] they were not abandoned, then, according to Samuel, who maintains that all public nuisances come within the scope of the law applicable to Pit, they would be included in Pit, whereas according to Rab, who maintains that in such circumstances they rather partake of the nature of Ox, they are equivalent in law to Ox.<a id="k3b_1"><sup>1</sup></a>
</p><p>
	[And even according to Samuel] why should [the derivatives of Pit] be different? Just as Pit is from its very inception a source of injury, and, being your possession, is under your control, so is the case with these [derivatives] which from their very inception [as nuisances] also are sources of injury and being your possession, are under your control! &mdash; The derivative of Pit is therefore equal to Pit, and R. Papa's statement [to the contrary] refers to the derivative of 'Spoliator'.
</p><p>
	But what is it? If we are to follow Samuel, who takes 'Spoliator' to denote Tooth,<a id="k3b_2"><sup>2</sup></a>&nbsp; behold we have [already] established that the derivative of Tooth equals Tooth;<a id="k3b_3"><sup>3</sup></a>&nbsp; if on the other hand Rab's view is accepted, identifying 'Spoliator' With Man,<a id="k3b_2"><sup>2</sup></a>&nbsp; what Principals and what derivatives could there be in him? You could hardly suggest that Man [doing damage] while awake is Principal, but becomes derivative [when causing damage] while asleep, for have we not learnt:<a id="k3b_4"><sup>4</sup></a>&nbsp; 'Man is in all circumstances <i>Mu'ad</i>,<a id="k3b_5"><sup>5</sup></a>&nbsp; whether awake or asleep'? &mdash; Hence [R. Papa's statement<a id="k3b_6"><sup>6</sup></a>&nbsp; will] refer to phlegm<a id="k3b_7"><sup>7</sup></a>&nbsp; [expectorated from mouth or nostrils]. But in what circumstances? If it did damage while in motion, it is [man's] direct agency! If [on the other hand] damage resulted after it was at rest, it would be included, according to both Rab and Samuel,<a id="k3b_8"><sup>8</sup></a>&nbsp; in the category of Pit! &mdash; The derivative of 'Spoliator' is therefore equal to 'Spoliator'; and R. Papa's statement [to the contrary]<a id="k3b_6"><sup>6</sup></a>&nbsp; refers to the derivative of Fire.
</p><p>
	What is the derivative of Fire? Shall I say it is a stone, a knife and luggage which having been placed upon the top of one's roof were thrown down by a normal wind and did damage? Then in what circumstances? If they did damage while in motion, they are equivalent to Fire; and why should they be different? Just as Fire is aided by an external force, and, being your possession, is under your control, so also is the case with these [derivatives] which are aided by an external force, and, being your possession, are under your control! &mdash; The derivative of Fire is therefore equal to Fire; and R. Papa's statement [to the contrary]<a id="k3b_6"><sup>6</sup></a>&nbsp; refers to the derivative of Foot.
</p><p>
	'Foot'! Have we not established that the derivative of Foot is equal to Foot?<a id="k3b_9"><sup>9</sup></a>&nbsp; &mdash; There is the payment of half damages done by pebbles [kicked from under an animal's feet] &mdash; a payment established by tradition.<a id="k3b_10"><sup>10</sup></a>&nbsp; On account of what [legal] consequence is it designated 'derivative of Foot'?<a id="k3b_11"><sup>11</sup></a>&nbsp; So that the payment should likewise be enforced [even] from the best of the defendant's possessions.<a id="k3b_12"><sup>12</sup></a>&nbsp; But did not Raba question whether the half-damage of Pebbles is collected only from the body of the animal or from any of the defendant's possessions?<a id="k3b_13"><sup>13</sup></a>&nbsp; &mdash; This was doubtful [only] to Raba, whereas R. Papa was [almost] certain about it [that the latter is the case]. But according to Raba, who remained doubtful [on this point], on account of what [legal] consequence is it termed 'derivative of Foot'?<a id="k3b_14"><sup>14</sup></a>&nbsp; &mdash; So that it may also enjoy exemption [where the damage was done] on public ground.<a id="k3b_15"><sup>15</sup></a>
</p><p>
	THE SPOLIATOR [<i>MAB'EH</i>] AND THE FIRE etc. What is [meant by] <I>MAB'EH</I>? &mdash; Rab said: <I>MAB'EH</I> denotes Man [doing damage], but Samuel said: <I>MAB'EH</I> signifies Tooth [of trespassing cattle]. Rab maintains that <I>MAB'EH</I> denotes Man,<a id="k3b_16"><sup>16</sup></a>&nbsp; for it is written: The watchman said: The morning cometh, and also the night &mdash; if ye will enquire, enquire ye.<a id="k3b_17"><sup>17</sup></a>&nbsp; Samuel [on the other hand] holds that <I>MAB'EH</I> signifies Tooth, for it is written: How is Esau searched out! How are his hidden places sought out!<a id="k3b_18"><sup>18</sup></a>&nbsp; But how is this deduced?<a id="k3b_19"><sup>19</sup></a>&nbsp; As rendered by R. Joseph:<a id="k3b_20"><sup>20</sup></a>&nbsp; How was Esau ransacked? How were his hidden treasures exposed?<a id="k3b_21"><sup>21</sup></a>
</p><p>
	Why did not Rab agree with [the interpretation of] Samuel? &mdash; He may object: Does the Mishnah employ the term <i>NIB'EH</i><a id="k3b_22"><sup>22</sup></a>&nbsp; [which could denote anything 'exposed']?
</p><p>
	Why [on the other hand] did not Samuel follow [the inter pretation of] Rab? &mdash; He may object: Does the Mishnah employ the term <i>BO'EH</i><a id="k3b_23"><sup>23</sup></a>&nbsp; [which could denote 'an enquirer']?
</p><p>
	But in fact the Scriptural quotations could hardly bear out the interpretation of either of them. Why then did not Rab agree with Samuel? &mdash; THE OX [in the Mishnah] covers all kinds of damage done by ox.<a id="k3b_24"><sup>24</sup></a>&nbsp; How then will Samuel explain the fact that ox has already been dealt with? &mdash; Rab Judah explained: THE OX [in the Mishnah] denotes Horn, while <I>MAB'EH</I> stands for Tooth; and this is the sequence in the Mishnah: The aspects of Horn, which does not afford gratification from the injury [are not of such order of gravity] as those of Tooth which does afford gratification from the damage;<a id="k3b_25"><sup>25</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k4a_1:" And therefore the liability of Horn could not be derived from that of Tooth."
,k4a_2:" Cf. <i>infra</i> p. 502."
,k4a_3:" But v. <i>infra</i> pp. 47 and 112."
,k4a_4:" Yad. IV, 6; and the suggested analogy is thus untenable."
,k4a_5:" So that neither Horn nor Tooth could he derived from each other."
,k4a_6:" <i>Infra</i> p. 36, v. Tosaf."
,k4a_7:" And not Horn as first suggested."
,k4a_8:" So that neither Foot nor Tooth could he derived from each other."
,k4a_9:" As is the case with Horn."
,k4a_10:" V. <i>infra</i> 15b."
,k4a_11:" Lit., 'Ransom', i.e., monetary compensation for manslaughter, cf Ex. XXI, 30; v. <a href=\"../tglossary.html\">Glos.</a>"
,k4a_12:" V. Num. XXXV, 31-32. Hence Man could not be derived from Ox."
,k4a_13:" I.e., Pain, Healing, Loss of Time and Degradation; cf. <i>infra</i> p. 473."
,k4a_14:" Ox is liable only for Depreciation."
,k4a_15:" According to Rab who takes Ox as including Horn."
,k4a_16:" The phrase in the Mishnah is thus inappropriate to man."
,k4a_17:" Even if you take <i>Mab'eh</i> as Tooth."
,k4a_18:" [The term here designates one whose special task was to communicate statements of older authorities to expounding teachers, v. <a href=\"../tglossary.html\">Glos.</a>] "
}

txt:
<p>
nor are the aspects of Tooth, which is not prompted by malicious intention to injure, [of such order of gravity] as those of Horn which is prompted by malicious intention to do damage.<a id="k4a_1"><sup>1</sup></a>&nbsp; But can this not be deduced <i>a fortiori</i>? If Tooth, which is prompted by no malicious intention to injure, involves liability to pay, how much more so should this apply to Horn, which is prompted by malicious intention to do damage? &mdash; Explicit [Scriptural] warrant for the liability of Horn is, nevertheless, essential, as otherwise you might have possibly thought that I assume [immunity for Horn on] an analogy to the case of man- and maid-servants. Just as a man- and maid-servant, although prompted by malicious intention to do damage, do not devolve any liability [upon their masters],<a id="k4a_2"><sup>2</sup></a>&nbsp; so is the law here [in the case of Horn]. R. Ashi, however, said: Is not the immunity in the case of damage done by man-and maid-servants due to the special reason that, but for this, a servant provoked by his master might go on burning down<a id="k4a_3"><sup>3</sup></a>&nbsp; another's crops, and thus make his master liable to pay sums of money day by day?<a id="k4a_4"><sup>4</sup></a>&nbsp; &mdash; The sequence [of the analysis in the Mishnah] must accordingly be [in the reverse direction]: The aspects of Horn, which is actuated by malicious intention to do damage, are not [of such low order of gravity] as those of Tooth, which is not actuated by malicious intention to do damage; again, the aspects of Tooth which affords gratification while doing damage are not [of such low order of gravity] as those of Horn, which affords no gratification from the damage.<a id="k4a_5"><sup>5</sup></a>&nbsp; But what about Foot? Was it entirely excluded [in the Mishnah]? &mdash; [The generalisation,]<a id="k4a_6"><sup>6</sup></a>&nbsp; Whenever damage has occurred, the offender is liable, includes Foot. But why has it not been stated explicitly? &mdash; Raba therefore said: THE OX [stated in the Mishnah] implies Foot,<a id="k4a_7"><sup>7</sup></a>&nbsp; while <I>MAB'EH</I> stands for Tooth; and this is the sequence [in the Mishnah]: The aspects of Foot, which does frequent damage, are not [of such low order of gravity] as those of Tooth, the damage by which is not frequent: again, the aspects of Tooth, which affords gratification from the damage, are not [of such low order of gravity] as those of Foot, which does not afford gratification from the damage.<a id="k4a_8"><sup>8</sup></a>&nbsp; But what about Horn? Was it entirely excluded [in the Mishnah]? &mdash; [The generalisation,] Whenever damage has occurred, the offender is liable, includes Horn. But why has it not been stated explicitly? &mdash; Those which are <i>Mu'ad</i> ab initio are mentioned explicitly [in the Mishnah] but those which initially are <i>Tam</i>,<a id="k4a_9"><sup>9</sup></a>&nbsp; and [only] finally become <i>Mu'ad</i>, are not mentioned explicitly.
</p><p>
	Now as to Samuel, why did he not adopt Rab's interpretation [of the Mishnaic term <I>MAB'EH</I>]? &mdash; He may object: If you were to assume that it denotes Man, the question would arise, is not Man explicitly dealt with [in the subsequent Mishnah]: 'Mu'ad cattle and cattle doing damage on the plaintiff's premises and Man'?<a id="k4a_10"><sup>10</sup></a>&nbsp; But why then was Man omitted in the opening Mishnah? &mdash; [In that Mishnah] damage done by one's possessions is dealt with, but not that done by one's person.
</p><p>
	Then, how could even Rab uphold his interpretation, since Man is explicitly dealt with in the subsequent Mishnah?<a id="k4a_10"><sup>10</sup></a>&nbsp; &mdash; Rab may reply: The purpose of that Mishnah is [only] to enumerate Man among those which are considered <i>Mu'ad</i>. What then is the import of [the analysis introduced by] THE ASPECTS ARE NOT etc.? &mdash; This is the sequence: The aspects of Ox, which entails the payment of <i>kofer</i> [for loss of human life],<a id="k4a_11"><sup>11</sup></a>&nbsp; are not [of such low order of gravity] as those of Man who does not pay [monetary] compensation for manslaughter;<a id="k4a_12"><sup>12</sup></a>&nbsp; again, the aspects of Man who [in case of human bodily injury] is liable for [additional] four items,<a id="k4a_13"><sup>13</sup></a>&nbsp; are not [of such low order of gravity] as those of Ox, which is not liable for those four items.<a id="k4a_14"><sup>14</sup></a>
</p><p>
	THE FEATURE COMMON TO THEM ALL IS THAT THEY ARE IN THE HABIT OF DOING DAMAGE. Is it usual for Ox [Horn]<a id="k4a_15"><sup>15</sup></a>&nbsp; to do damage? &mdash; As <i>Mu'ad</i>. But even as <i>Mu'ad</i>, is it usual for it to do damage? &mdash; Since it became <i>Mu'ad</i> this became its habit. Is it usual for Man to do damage? &mdash; When he is asleep. But even when asleep is it usual for Man to do damage? &mdash; While stretching his legs or curling them this is his habit.
</p><p>
	THEIR HAVING TO BE UNDER YOUR CONTROL. Is not the control of man's body [exclusively] his own?<a id="k4a_16"><sup>16</sup></a>&nbsp; &mdash; Whatever view you take,<a id="k4a_17"><sup>17</sup></a>&nbsp; behold Karna taught: The principal categories of damage are four and Man is one of them. [Now] is not the control of a man's body [exclusively] his own? You must therefore say with R. Abbahu who requested the tanna<a id="k4a_18"><sup>18</sup></a>&nbsp; to learn, 'The control of man's body is [exclusively] his own,'
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k4b_1:" The Mishnaic wording refers to the other categories."
,k4b_2:" Isa. LXIV, 1."
,k4b_3:" Hence the term 'tib'eh' describes not the act of water but that of fire."
,k4b_4:" The <i>Mab'eh</i> and the Fire will thus constitute one and the same kind of damage."
,k4b_5:" And the other two will be: Pit and Fire."
,k4b_6:" Who takes <i>Mab'eh</i> to denote Tooth and not Man; <i>supra</i> p. 9."
,k4b_7:" Who takes <i>Mab'eh</i> to denote Man; <i>supra</i> p. 9."
,k4b_8:" Why does he not include in Man all kinds of damage committed by him?"
,k4b_9:" Lit., 'cattle'."
,k4b_10:" I.e., Pain, Healing, Loss of Time and Degradation."
,k4b_11:" As fine for theft; cf. Ex. XXII, 3."
,k4b_12:" Fines for the slaughter or sale of a stolen sheep and ox respectively; cf. Ex. XXI, 37."
,k4b_13:" I.e., the restoration of stolen goods or the payment of their value."
,k4b_14:" I.e., the unlawful acquisition of chattels by violence; cf. Lev, V, 23."
,k4b_15:" Cf. Deut. XIX, 19; v. Mak. I."
,k4b_16:" I.e., fifty <i>shekels</i> of silver; cf. Deut. XXII, 28-29."
,k4b_17:" Cf. Ex. XXII, 15-16."
,k4b_18:" I.e., a defaming husband; v. Deut. XXII, 13-19."
,k4b_19:" Of <i>terumah</i> (v. <a href=\"../tglossary.html\">Glos.</a>) which makes it unfit for human consumption."
,k4b_20:" Of ordinary grain with that of <i>terumah</i> restricting thereby the use of the mixture to priestly families."
,k4b_21:" Through idolatrous application by means of libation which renders all the wine in the barrel unfit for any use whatsoever; the last three heads of damage are dealt with in Git. V, 3."
,k4b_22:" V. p. 13."
,k4b_23:" I.e., when these are guilty of larceny; cf. Ex. XXII, 7."
,k4b_24:" I.e., in the case of the Unpaid Bailee and Borrower."
,k4b_25:" I.e., in the case of Theft and Robbery. "
}

txt:
<p>
that here also it is to be understood that the control of man's body is his own.<a id="k4b_1"><sup>1</sup></a>
</p><p>
	R. Mari, however, demurred: Say perhaps <I>MAB'EH</I> denotes water [doing damage], as it is written, <I>As when the melting fire burneth, fire</I> tib'eh [<I>causeth to bubble</I>] <I>water</I>?<a id="k4b_2"><sup>2</sup></a>&nbsp; &mdash; Is it written, <I>'Water bubbles'</I>? It is written, <I>Fire causes bubbling</I>.<a id="k4b_3"><sup>3</sup></a>&nbsp; R. Zebid demurred: Say then that <I>MAB'EH</I> denotes Fire, as it is fire to which the act of 'tib'eh' in the text is referred? &mdash; If this be so what is then the explanation of THE <I>MAB'EH</I> AND THE FIRE? If you suggest the latter to be the interpretation of the former,<a id="k4b_4"><sup>4</sup></a>&nbsp; then instead of 'FOUR' there will be 'three'? If however, you suggest that OX constitutes two [kinds of damage],<a id="k4b_5"><sup>5</sup></a>&nbsp; then what will be the meaning of [the Mishnaic text]: NOR ARE THE ASPECTS OF EITHER OF THEM [OX and <I>MAB'EH</I>] IN WHICH THERE IS LIFE? Is there any life in fire? Again, what will be conveyed by [the concluding clause] AS THOSE OF THE FIRE?
</p><p>
	R. Oshaia: taught There are thirteen principal categories of damage: The Unpaid Bailee and the Borrower, the Paid Bailee and the Hirer, Depreciation, Pain [suffered]. Healing, Loss of Time, Degradation and the Four enumerated in the Mishnah, thus making [a total of] thirteen. Why did our Tanna mention [only the Four and] not the others? According to Samuel,<a id="k4b_6"><sup>6</sup></a>&nbsp; this presents no difficulty, as the Mishnah mentions only damage committed by one's possessions and not that committed by one's person, but according to Rab<a id="k4b_7"><sup>7</sup></a>&nbsp; let the Mishnah also mention the others? &mdash; In the mention of Man all kinds of damage committed by him are included. But does not R. Oshaia also mention Man?<a id="k4b_8"><sup>8</sup></a>&nbsp; &mdash; Two kinds of damage could result from Man: Man injuring man is treated as one subject, and Man damaging chattel<a id="k4b_9"><sup>9</sup></a>&nbsp; as another.
</p><p>
	If this be so let R. Oshaia similarly reckon Ox twice, as two kinds of damage could result also from Ox: [i] Ox damaging chattel<a id="k4b_9"><sup>9</sup></a>&nbsp; and [ii] Ox injuring man? &mdash; But is that a logical argument? It is quite proper to reckon Man in this manner as Man damaging chattel pays only for Depreciation, while Man injuring man may also have to pay for four other kinds of damage,<a id="k4b_10"><sup>10</sup></a>&nbsp; but how can Ox be thus reckoned when the liability for damage done by it to either man or chattel is alike and is confined to [only one kind of damage, i.e.] Depreciation?
</p><p>
	But behold, are not the Unpaid Bailee and the Borrower, the Paid Bailee and the Hirer, within the sphere of Man damaging chattel and they are nevertheless reckoned by R. Oshaia? &mdash; Direct damage and indirect damage are treated by him independently.
</p><p>
	R. Hiyya taught: There are twenty-four principal kinds of damage: Double Payment,<a id="k4b_11"><sup>11</sup></a>&nbsp; Fourfold or Fivefold Payment,<a id="k4b_12"><sup>12</sup></a>&nbsp; Theft,<a id="k4b_13"><sup>13</sup></a>&nbsp; Robbery,<a id="k4b_14"><sup>14</sup></a>&nbsp; False Evidence,<a id="k4b_15"><sup>15</sup></a>&nbsp; Rape,<a id="k4b_16"><sup>16</sup></a>&nbsp; Seduction,<a id="k4b_17"><sup>17</sup></a>&nbsp; Slander,<a id="k4b_18"><sup>18</sup></a>&nbsp; Defilement,<a id="k4b_19"><sup>19</sup></a>&nbsp; Adulteration,<a id="k4b_20"><sup>20</sup></a>&nbsp; Vitiation of wine,<a id="k4b_21"><sup>21</sup></a>&nbsp; and the thirteen enumerated above by R. Oshaia,<a id="k4b_22"><sup>22</sup></a>&nbsp; thus making [the total] twenty-four.
</p><p>
	Why did not R. Oshaia reckon the twenty-four? &mdash; He dealt only with damage involving civil liability but not with that of a punitive nature. But why omit Theft and Robbery which also involve civil liability? &mdash; These kinds of damage may be included in the Unpaid Bailee and the Borrower.<a id="k4b_23"><sup>23</sup></a>&nbsp; Why then did not R. Hiyya comprehend the former in the latter? &mdash; He reckoned them separately, as in the one case the possession of the chattel was acquired lawfully,<a id="k4b_24"><sup>24</sup></a>&nbsp; while in the other<a id="k4b_25"><sup>25</sup></a>&nbsp; the acquisition was unlawful.
</p><p>
	[Why did not R. Oshaia]
</P>


lvr: 41
dfh: a
notes:
 ntes={k5a_1:" Penal liabilities are created only by means of impartial evidence and never by that of confession; cf. <i>infra</i> 64b."
,k5a_2:" Mak. 2b."
,k5a_3:" V. <i>infra</i> p. 179."
,k5a_4:" <i>Infra</i> pp. 180 and 240."
,k5a_5:" Lit., 'broke the [full] force of his club' (Jast.); Rashi: 'of his fist'."
,k5a_6:" Ex. XXI. 31."
,k5a_7:" Cf. Keth. 40a."
,k5a_8:" V. Deut, XXII, 29; Ex. XXII, 6; and Deut. XXII, 19."
,k5a_9:" Cf. Git. 53a."
,k5a_10:" Opening the Tractate."
,k5a_11:" I.e., the additional nine kinds enumerated by him <i>supra</i> p. 13."
,k5a_12:" I.e., the eleven added by him <i>supra</i>. p. 14."
,k5a_13:" Cf. <i>infra</i> 62a and 117a."
,k5a_14:" Cf. Lev. VII, 18 and Zeb. I, 1 and II, 2-3."
,k5a_15:" The consummation of the marriage rite according to R. Eliezer, or the bribery of false witnesses according to R. Judah; cf. Keth. 46a."
,k5a_16:" Deut. XIX, 19."
,k5a_17:" Cf. Ex. XXII, 4."
,k5a_18:" I.e., for occurring in Ex. XXI, 36, and elsewhere."
,k5a_19:" I.e., an expression such as, He shall give, cf. EX XXI, 32 and elsewhere."
,k5a_20:" As in Ex. XXII, 8 and elsewhere."
,k5a_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.]"
,k5a_22:" I.e., Ox."
,k5a_23:" I.e., <i>Mab'eh</i>."
,k5a_24:" V. <i>supra</i> pp. 11-12. "
}

txt:
<p>
deal with False Evidence, the liability for which is also civil? &mdash; He holds the view of R. Akiba who maintains that the liability for False Evidence [is penal in nature and] cannot [consequently]<a id="k5a_1"><sup>1</sup></a>&nbsp; be created by confession.<a id="k5a_2"><sup>2</sup></a>&nbsp; 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] <i>Tam</i> is assessed in full and the balance paid accordingly?<a id="k5a_3"><sup>3</sup></a>&nbsp; This distinction could, however, not be made, since it is elsewhere<a id="k5a_4"><sup>4</sup></a>&nbsp; taught that R. Akiba himself has qualified this full payment.<a id="k5a_5"><sup>5</sup></a>&nbsp; For R. Akiba said: You might think that, in the case of <i>Tam</i> injuring man, payment should be made out of the general estate; it is therefore stated, [This judgment] shall be done unto it,<a id="k5a_6"><sup>6</sup></a>&nbsp; to emphasise that the payment should only be made out of the body of the <i>Tam</i> and not out of any other source whatsoever.
</p><p>
	Why did R. Oshaia omit Rape, Seduction and Slander, the liabilities for which are also civil?<a id="k5a_7"><sup>7</sup></a>&nbsp; &mdash; 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.<a id="k5a_8"><sup>8</sup></a>&nbsp; With this [type of liability] R. Oshaia is not concerned.
</p><p>
	Why then omit Defilement, Adulteration and Vitiation of wine, the liabilities for which are civil? &mdash; What is your view in regard to intangible damage?<a id="k5a_9"><sup>9</sup></a>&nbsp; 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.
</p><p>
	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? &mdash; He may in any case have found it expedient to deal with tangible damage and intangible damage under distinct heads.
</p><p>
	It is quite conceivable that our Tanna<a id="k5a_10"><sup>10</sup></a>&nbsp; found it necessary to give the total number [of the principal kinds of damage] in order to exclude those of R. Oshaia;<a id="k5a_11"><sup>11</sup></a>&nbsp; the same applies to R. Oshaia who also gave the total number in order to exclude those of R. Hiyya;<a id="k5a_12"><sup>12</sup></a>&nbsp; but what could be excluded by the total number specified by R. Hiyya? &mdash; It is intended to exclude Denunciation<a id="k5a_13"><sup>13</sup></a>&nbsp; and Profanation of sacrifices.<a id="k5a_14"><sup>14</sup></a>
</p><p>
	The exclusion of profanation is conceivable as sacrifices are not here reckoned; but why is Denunciation omitted? &mdash; 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? &mdash; Slander is something verbal but dependent upon some act.<a id="k5a_15"><sup>15</sup></a>&nbsp; But is not False Evidence a verbal effect not connected with any act and yet it is reckoned? &mdash; 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.<a id="k5a_16"><sup>16</sup></a>
</p><p>
	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? &mdash; Said R. Abbahu: All of them are characterised as Principals for the purpose of requiring compensation out of the best of possessions.<a id="k5a_17"><sup>17</sup></a>&nbsp; How is this uniformity [in procedure] arrived at? &mdash; By means of a uniform interpretation of each of the following terms: 'Instead',<a id="k5a_18"><sup>18</sup></a>&nbsp; 'Compensation',<a id="k5a_19"><sup>19</sup></a>&nbsp; 'Payment',<a id="k5a_20"><sup>20</sup></a>&nbsp; 'Money'.<a id="k5a_21"><sup>21</sup></a>
</p><p>
	THE ASPECTS OF THE OX ARE [IN SOME RESPECTS] NOT [OF SUCH LOW ORDER OF GRAVITY] AS THOSE OF THE 'SPOLIATOR' [<I>MAB'EH</I>]. What does this signify? &mdash; R. Zebid in the name of Raba said: The point of this is: Let Scripture record only one kind of damage<a id="k5a_22"><sup>22</sup></a>&nbsp; and from it you will deduce the liability for the other!<a id="k5a_23"><sup>23</sup></a>&nbsp; In response it was declared: One kind of damage could not be deduced from the other.<a id="k5a_24"><sup>24</sup></a>
</p><p>
	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:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k5b_1:" I.e., Ox and <i>Mab'eh</i>."
,k5b_2:" I.e., Fire."
,k5b_3:" For the reason stated in the Mishnah."
,k5b_4:" To the feature common in Pit and the other kind of damage."
,k5b_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. <i>infra</i> p. 64."
,k5b_6:" Cf. <i>supra</i> p. 11 and <i>infra</i> p. 64."
,k5b_7:" <i>Infra</i> p. 73."
,k5b_8:" <i>Infra</i> p. 94."
,k5b_9:" <i>Infra</i> 52a."
,k5b_10:" <i>Infra</i> 53b."
,k5b_11:" <i>Infra</i> 54a."
,k5b_12:" <i>Infra</i> p. 473; cf. also <i>supra</i> pp. 12 and 13."
,k5b_13:" <i>Infra</i> 61b. >"
}

txt:
<p>
Let Scripture record only two kinds of damage<a id="k5b_1"><sup>1</sup></a>&nbsp; and from them you will deduce a further kind of damage?<a id="k5b_2"><sup>2</sup></a>&nbsp; In response it was declared: Even from two kinds of damage it would not be possible to deduce one more.<a id="k5b_3"><sup>3</sup></a>
</p><p>
	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;<a id="k5b_4"><sup>4</sup></a>&nbsp; Horn is excepted as the analogy breaks down, since all the other kinds of damage are <i>Mu'ad</i> ab initio.<a id="k5b_5"><sup>5</sup></a>&nbsp; According, however, to the view that Horn on the other hand possesses a greater degree of liability because of its intention to do damage,<a id="k5b_6"><sup>6</sup></a>&nbsp; even Horn could be deduced. For what purpose then did Scripture record them all? For their [specific] laws: Horn, in order to distinguish between <i>Tam</i> and <i>Mu'ad</i>;<a id="k5b_7"><sup>7</sup></a>&nbsp; Tooth and the Foot, to be immune [for damage done by them] on public ground;<a id="k5b_8"><sup>8</sup></a>&nbsp; Pit, to be immune for [damage done by it to] inanimate objects;<a id="k5b_9"><sup>9</sup></a>&nbsp; and, according to R. Judah who maintains liability for inanimate objects damaged by a pit,<a id="k5b_10"><sup>10</sup></a>&nbsp; in order still to be immune for [death caused by it to] man;<a id="k5b_11"><sup>11</sup></a>&nbsp; Man, to render him liable for four [additional] payments [when injuring man];<a id="k5b_12"><sup>12</sup></a>&nbsp; Fire, to be immune for [damage to] hidden goods;<a id="k5b_13"><sup>13</sup></a>&nbsp; but according to R. Judah, who maintains liability for damage to hidden goods by fire,<a id="k5b_13"><sup>13</sup></a>&nbsp; what [specific purpose] could be served?
</P>


lvr: 41
dfh: a
notes:
 ntes={k6a_1:" As this damage is rather an unusual effect from fire and special reference is therefore essential."
,k6a_2:" Cf. <i>supra</i> p. 8."
,k6a_3:" I.e., the blowing wind."
,k6a_4:" <i>Infra</i> 28b; v. <i>supra</i> p. 7."
,k6a_5:" I.e., stone, knife and luggage referred to above."
,k6a_6:" Cf. <i>supra</i> p. 7."
,k6a_7:" Which is also assisted by an external force, i.e. the wind, but nevertheless creates liability to pay."
,k6a_8:" Which cannot he said of stone, knife and luggage."
,k6a_9:" Even when the nuisance has, like Fire, been assisted by an external force and is, like Pit, unable to travel and do damage."
,k6a_10:" Referred to in the Mishnaic quotation."
,k6a_11:" <i>Infra</i> 28b and <i>supra</i> p. 7."
,k6a_12:" Which have been rolling about from one place to another."
,k6a_13:" But the rolling by man and beast."
,k6a_14:" Even in the case of nuisances that roll about."
,k6a_15:" Cf. <i>infra</i> 30a."
,k6a_16:" The liability for which is self-evident under the category of Man."
,k6a_17:" <i>Infra</i> 28b and <i>supra</i> p. 7."
,k6a_18:" It being unlawful to dig a pit in public ground. "
}

txt:
<p>
 &mdash; To include [damage done by fire] lapping his neighbour's ploughed field and grazing his stones.<a id="k6a_1"><sup>1</sup></a>
</p><p>
	THE FEATURE COMMON TO THEM ALL&nbsp;&hellip; What else is this clause intended to include? &mdash; 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.<a id="k6a_2"><sup>2</sup></a>&nbsp; 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 force<a id="k6a_3"><sup>3</sup></a>&nbsp; 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.<a id="k6a_4"><sup>4</sup></a>&nbsp; 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 those<a id="k6a_5"><sup>5</sup></a>&nbsp; which from their very inception [as nuisances] are likewise sources of injury, and, being your possession are under your control.<a id="k6a_6"><sup>6</sup></a>&nbsp; Furthermore, even if they were not abandoned, according to Samuel who maintains that we deduce [the law governing] all nuisances from Pit,<a id="k6a_4"><sup>4</sup></a>&nbsp; they are [again] equivalent to Pit? &mdash; 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 those<a id="k6a_5"><sup>5</sup></a>&nbsp; which are assisted by an external force? &mdash; Fire,<a id="k6a_7"><sup>7</sup></a>&nbsp; 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?<a id="k6a_8"><sup>8</sup></a>&nbsp; &mdash; Pit, however, will refute [this reasoning]. The argument is [thus endlessly] reversible [and liability<a id="k6a_9"><sup>9</sup></a>&nbsp; can be deduced only from the Common Aspects].<a id="k6a_10"><sup>10</sup></a>
</p><p>
	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,<a id="k6a_11"><sup>11</sup></a>&nbsp; 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,<a id="k6a_11"><sup>11</sup></a>&nbsp; who maintains that we deduce [the law governing] all nuisances from Pit, it is [again] equivalent to Pit? &mdash; 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,<a id="k6a_12"><sup>12</sup></a>&nbsp; the making of which did not directly cause the damage?<a id="k6a_13"><sup>13</sup></a>&nbsp; &mdash; 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? &mdash; 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 liability<a id="k6a_14"><sup>14</sup></a>&nbsp; therefore can be deduced only from the Common Aspects].
</p><p>
	R. Adda b. Ahabah said: To include that which is taught:<a id="k6a_15"><sup>15</sup></a>&nbsp; '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?<a id="k6a_16"><sup>16</sup></a>&nbsp; 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,<a id="k6a_17"><sup>17</sup></a>&nbsp; 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,<a id="k6a_17"><sup>17</sup></a>&nbsp; who maintains that we deduce [the law governing] all nuisances from Pit, they are [again] equivalent to Pit? &mdash; Indeed they were abandoned, still they are not equivalent to Pit: Why [is liability attached] to Pit if not because of its being unlawful?<a id="k6a_18"><sup>18</sup></a>&nbsp; How then could you assert [the same] in the case of those which [in winter] are lawful? &mdash; 
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k6b_1:" Which it is similarly lawful to keep, but which when doing damage creates nevertheless a liability to pay."
,k6b_2:" Even in the cases referred to by R. Adda b. Ahabah."
,k6b_3:" B.M. 117b."
,k6b_4:" <i>Infra</i> 28b."
,k6b_5:" Even in the case of the wall and the tree."
,k6b_6:" A slight variation in the Hebrew text: a disyllable instead of a monosyllable."
,k6b_7:" Preferred a contracted form."
,k6b_8:" Ex. XXII, 4."
,k6b_9:" Of the defendant's estate."
,k6b_10:" I.e., property dedicated to the purposes of the sanctuary."
,k6b_11:" The amount of damages, however, would never be more than could be proved to have been actually sustained."
,k6b_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."
,k6b_13:" The quality of the payment must therefore always he the best of the defendant's estate,"
,k6b_14:" I.e., of the best of his field&nbsp;&hellip; Ex, XXII, 4."
,k6b_15:" If a man shall cause a field or a vineyard to be eaten, ibid."
,k6b_16:" Ex. XXII, 4."
,k6b_17:" The (Gezerah Shawah, v. <a href=\"../tglossary.html\">Glos.</a>"
,k6b_18:" 'That the qualities are estimated in relation to those of the plaintiff's estate.'"
,k6b_19:" The bad quality could not thus be tendered."
,k6b_20:" Ex. XXI, 35. "
}

txt:
<p>
Ox,<a id="k6b_1"><sup>1</sup></a>&nbsp; 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? &mdash; Pit will refute [this reasoning]. The argument is [thus endlessly] reversible [and liability<a id="k6b_2"><sup>2</sup></a>&nbsp; can be deduced only from the Common Aspects].
</p><p>
	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.'<a id="k6b_3"><sup>3</sup></a>&nbsp; But what were the circumstances [of the wall and the tree]? If they were abandoned, then according to both Rab and Samuel,<a id="k6b_4"><sup>4</sup></a>&nbsp; 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.<a id="k6b_4"><sup>4</sup></a>&nbsp; who maintains that we deduce [the law governing] all nuisances from Pit, they are [again] equivalent to Pit? &mdash; 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? &mdash; 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? &mdash; Pit will refute [this reasoning]. The argument is [thus endlessly] reversible [and liability<a id="k6b_5"><sup>5</sup></a>&nbsp; can be deduced only from Common Aspects].
</p><p>
	WHENEVER ANYONE OF THEM DOES DAMAGE THE OFFENDER IS [HAB] LIABLE. 'The offender is HAB!' &mdash; 'The offender is HAYYAB'<a id="k6b_6"><sup>6</sup></a>&nbsp; should be the phrase? &mdash; Rab Judah, on behalf of Rab, said: This Tanna [of the Mishnaic text] was a Jerusalemite who employed an easier form.<a id="k6b_7"><sup>7</sup></a>
</p><p>
	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 restitution<a id="k6b_8"><sup>8</sup></a>&nbsp; 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,<a id="k6b_9"><sup>9</sup></a>&nbsp; and this applies even more so to sacred property.<a id="k6b_10"><sup>10</sup></a>
</p><p>
	Would R. Ishmael maintain that the defendant, whether damaging the best or worst, is to pay for the best? &mdash; 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;<a id="k6b_11"><sup>11</sup></a>&nbsp; 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;<a id="k6b_12"><sup>12</sup></a>&nbsp; but R. Akiba is of the opinion that it is the qualities of the defendant's possessions that have to be considered.<a id="k6b_13"><sup>13</sup></a>
</p><p>
	What is the reason underlying R. Ishmael's view? &mdash; The term 'Field' occurs both in the latter clause<a id="k6b_14"><sup>14</sup></a>&nbsp; and the earlier clause of the verse;<a id="k6b_15"><sup>15</sup></a>&nbsp; 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 restitution<a id="k6b_16"><sup>16</sup></a>&nbsp; clearly refers to the possessions of the one who has to pay. R. Ishmael [on the other hand,] contends that both the textual analogy<a id="k6b_17"><sup>17</sup></a>&nbsp; of the terms and the plain textual interpretation are complementary to each other. The analogy of the terms is helpful towards establishing the above statement<a id="k6b_18"><sup>18</sup></a>&nbsp; while the plain textual interpretation helps to qualify [the application of the above<a id="k6b_18"><sup>18</sup></a>&nbsp; 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;<a id="k6b_19"><sup>19</sup></a>&nbsp; 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].
</p><p>
	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, <I>The ox of one's neighbour</I>,<a id="k6b_20"><sup>20</sup></a>&nbsp; excluding thus [any liability for damage done to] consecrated chattel? Again, it could hardly deal with a personal undertaking by one to pay a <I>maneh</I> 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
</P>


lvr: 41
dfh: a
notes:
 ntes={k7a_1:" Git. V, 1."
,k7a_2:" On account of the absolute immunity, as stated, for damage done to Temple property."
,k7a_3:" <i>Infra</i> p. 212."
,k7a_4:" R. Akiba thus maintains that the Temple Treasury will, for any damage sustained, be reimbursed out of the best of the defendant's estate."
,k7a_5:" And where the plaintiff's best equals the defendant's worst, the latter will perhaps suffice according to all opinions."
,k7a_6:" Which indicates that the interpretation of the Scriptural verse (Ex. XXII, 4) is the point at issue."
,k7a_7:" As according to the view requiring full payment in all cases, the quality of the payment for damage done to sacred property may he higher than that paid for damage done to ordinary property, and in fact nothing less than the very best of the defendant's estate would suffice."
,k7a_8:" Ex. XXII, 4."
,k7a_9:" Ex. XXI, 34."
,k7a_10:" Otherwise the Scriptural text would be superfluous, as payment in specie is evident in an earlier clause."
,k7a_11:" <i>Infra</i> 9a."
,k7a_12:" [H]"
,k7a_13:" [H]"
,k7a_14:" Rabbah (Rashi)."
,k7a_15:" The value of which amounted to 200 <i>zuz</i>."
,k7a_16:" Cf. Deut. XIV, 28-29; this tithe is distributed among those who possess less than two hundred <i>zuz</i>; <i>Pe'ah</i> VIII, 8."
,k7a_17:" I.e., 100 <i>zuz</i> to enable him to sell his property for half its value which, it is assumed, he can at any time realise. "
}

txt:
<p>
who can collect nothing better than the medium quality.<a id="k7a_1"><sup>1</sup></a>&nbsp; If, however, you hold that R. Akiba authorises the payment of all loans out of the best, [the treasurer of the Temple could still hardly avail himself of this privilege as] the analogy between these two kinds of liability could be upset as follows: A private creditor is at an advantage in that for damages he will surely be paid out of the best, but is not the Temple Treasury at a very great disadvantage in this respect?<a id="k7a_2"><sup>2</sup></a>&nbsp; &mdash; It may still be maintained that it applies to the case where a private ox gored a consecrated ox, and in answer to the difficulty raised by you &mdash; that the Divine Law definitely says The ox of one's neighbour, thus exempting for damage done to consecrated property &mdash; it may be suggested that R. Akiba shares the view of R. Simeon b. Menasya as taught:<a id="k7a_3"><sup>3</sup></a>&nbsp; R. Simeon b. Menasya says: In the case of a consecrated ox goring a private one, there is total exemption; but for a private ox, whether <i>Tam</i> or <i>Mu'ad</i>, goring a consecrated ox, full damages must be paid.<a id="k7a_4"><sup>4</sup></a>&nbsp; If this is R. Akiba's contention, whence could it be proved that the point at issue between R. Ishmael and R. Akiba is as to the best of the plaintiff's equalling the worst of the defendant's? Why not say that on this point they are both of opinion that the qualities are estimated in relation to the plaintiff's possessions,<a id="k7a_5"><sup>5</sup></a>&nbsp; whereas the disagreement between them is on the point at issue between R. Simeon b. Menasya and the Rabbis [i.e., the majority against him], R. Akiba holding the view of R. Simeon b. Menasya, and R. Ishmael that of the Rabbis? &mdash; If so, what would be the purport of the first clause of R. Akiba, 'Scripture only intended that damages be collected out of the best'?<a id="k7a_6"><sup>6</sup></a>&nbsp; Again, would not then even the last clause 'And this even more so applies to sacred property' be rather illogically phrased?<a id="k7a_7"><sup>7</sup></a>&nbsp; Furthermore, R. Ashi said: It was explicitly taught: Of the best of his field and of the best of his vineyard shall he make restitution<a id="k7a_8"><sup>8</sup></a>&nbsp; refers to the field of the plaintiff and to the vineyard of the plaintiff: this is the view of R. Ishmael. R. Akiba [on the other hand] says: The best of the defendant's field and the best of the defendant's vineyard.
</p><p>
	Abaye pointed out to Raba the following contradiction: Scripture records, <I>Out of the best of his field and out of the best of his vineyard shall he make restitution</I><a id="k7a_8"><sup>8</sup></a>&nbsp; [thus indicating that payment must be made] only out of the best and not out of anything else; whereas it is taught: He should return,<a id="k7a_9"><sup>9</sup></a>&nbsp; includes payment in kind,<a id="k7a_10"><sup>10</sup></a>&nbsp; even with bran?<a id="k7a_11"><sup>11</sup></a>&nbsp; &mdash; There is no contradiction: the latter applies when the payment is made willingly, while the former refers to payments enforced [by law]. 'Ulla the son of R. Elai, thereupon said: This distinction is evident even from the Scriptural term, He shall make restitution,<a id="k7a_8"><sup>8</sup></a>&nbsp; meaning, even against his will. Abaye, on the other hand, said to him: Is it written yeshullam<a id="k7a_12"><sup>12</sup></a>&nbsp; ['Restitution shall be made']? What is written is yeshallem<a id="k7a_13"><sup>13</sup></a>&nbsp; ['He shall make restitution'], which could mean of his own free will! &mdash; But said Abaye: [The contradiction can be solved] as the Master<a id="k7a_14"><sup>14</sup></a>&nbsp; [did] in the case taught: An owner of houses, fields and vineyards<a id="k7a_15"><sup>15</sup></a>&nbsp; who cannot find a purchaser [is considered needy and] may be given the tithe for the poor<a id="k7a_16"><sup>16</sup></a>&nbsp; up to half the value of his estate.<a id="k7a_17"><sup>17</sup></a>&nbsp; Now the Master discussed the circumstances under which this permission could apply: If property in general, and his included, dropped in value, why not grant him even the value of more [than the half of his estate's value], since the depreciation is general? If, on the other hand, property in general appreciated, but his, on account of his going about looking here and there for ready money, fell in price,
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k7b_1:" Since, in reality, his property is worth 200 <i>zuz</i>."
,k7b_2:" It being the beginning of Spring and the best season for transactions in property, both for agricultural and building purposes."
,k7b_3:" I.e., about October, being the end of the season."
,k7b_4:" The scriptural verse, 'He shall return', introducing payment in kind, would thus authorise the calculation on the higher price anticipated whenever the plaintiff prefers a quality different from that assigned to him by law."
,k7b_5:" Ex. XXII, 4."
,k7b_6:" From the option of the plaintiff."
,k7b_7:" To the case made out by the Master regarding the Tithe of the Poor referred to above."
,k7b_8:" V. <a href=\"../tglossary.html\">Glos.</a>"
,k7b_9:" Git. V, 1."
,k7b_10:" Raised by Abaye <i>supra</i> p. 24."
,k7b_11:" I.e., when bran is tendered it is the best of it which has to he given."
,k7b_12:" Confining it thus to land, for if otherwise why altogether insert 'of his field'?"
,k7b_13:" [H] V. Sanh. (Sonc. ed p. 387, n. 7."
,k7b_14:" And could therefore be tendered."
,k7b_15:" [Or Hagronia, a town near Nehardea, v. Obermeyer, J. Die Landschaft Babylonian, p. 265.]"
,k7b_16:" Of the best, medium and worst qualities, out of which to pay creditors for damages, loans and marriage-contracts respectively."
,k7b_17:" Cf. <i>supra</i> p. 22."
,k7b_18:" I.e., his estate is divided into three categories; best, medium and worst, out of which the payments will respectively be made."
,k7b_19:" I.e., to R. Samuel, the questioner."
,k7b_20:" I.e., R. Samuel. "
}

txt:
<p>
why give him anything at all?<a id="k7b_1"><sup>1</sup></a>&nbsp; And the Master thereupon said: No; the above law is applicable to cases where in the month of Nisan<a id="k7b_2"><sup>2</sup></a>&nbsp; property has a higher value, whereas in the month of Tishri<a id="k7b_3"><sup>3</sup></a>&nbsp; it has a lower value. People in general wait until Nisan and then sell, whereas this particular proprietor, being in great need of ready money, finds himself compelled to sell in Tishri at the existing lower price; he is therefore granted half because it is in the nature of property to drop in value up to a half, but it is not in its nature to drop more than that. Now a similar case may also be made out with reference to payment for damage which must be out of the best. If the plaintiff, however, says: 'Give me medium quality but a larger quantity', the defendant is entitled to reply: 'It is only when you take the best quality which is due to you by law that you may calculate on the present price; failing that, whatever you take you will have to calculate according to the higher price anticipated.'<a id="k7b_4"><sup>4</sup></a>&nbsp; But R. Aha b. Jacob demurred: If so, you have weakened the right of plaintiffs for damages in respect of inferior quality. When the Divine Law states out of the best,<a id="k7b_5"><sup>5</sup></a>&nbsp; how can you maintain that inferior qualities are excluded?<a id="k7b_6"><sup>6</sup></a>&nbsp; R &mdash; Aha b. Jacob therefore said: If any analogy could he drawn,<a id="k7b_7"><sup>7</sup></a>&nbsp; it may be made in the case of a creditor. A creditor is paid by law out of medium quality; if, however, he says: 'Give me worse quality but greater quantity,' the debtor is entitled to say, 'It is only when you take that quality which is due to you by law that you may calculate on the present price, failing that, whatever you take you will have to calculate according to the higher price anticipated.' R. Aha, son of R. Ika, demurred: If so, you will close the door in the face of prospective borrowers. The creditor will rightly contend, 'Were my money with me I would get property according to the present low price; now that my money is with you, must I calculate according to the anticipated higher price?' &mdash; R. Aha, son of R. Ika, therefore said: If any analogy could be drawn,<a id="k7b_7"><sup>7</sup></a>&nbsp; it is only with the case of a <i>Kethubah</i><a id="k7b_8"><sup>8</sup></a>&nbsp; [marriage settlement]<a id="k7b_9"><sup>9</sup></a>&nbsp; which, according to the law, is collected out of the worst quality. But if the woman says to the husband: 'Give me better quality though smaller quantity,' he may rejoin: 'It is only when you take the quality assigned to you by law that you may calculate in accordance with the present low price; failing that, you must calculate in accordance with the anticipated higher price.,
</p><p>
	But be it as it is, does the original difficulty<a id="k7b_10"><sup>10</sup></a>&nbsp; still not hold good? &mdash; Said Raba: Whatever article is being tendered has to be given out of the best [of that object].<a id="k7b_11"><sup>11</sup></a>&nbsp; But is it not written: 'The best of his field'?<a id="k7b_12"><sup>12</sup></a>&nbsp; &mdash; But when R. Papa and R. Huna the son of R. Joshua had arrived from the house of study<a id="k7b_13"><sup>13</sup></a>&nbsp; they explained it thus: All kinds of articles are considered 'best', for if they were not to be sold here they would be sold in another town;<a id="k7b_14"><sup>14</sup></a>&nbsp; it is only in the case of land which is excepted therefrom that the payment has to be made out of the best, so that intending purchasers jump at it.
</p><p>
	R. Samuel b. Abba of Akronia<a id="k7b_15"><sup>15</sup></a>&nbsp; asked of R. Abba: When the calculation<a id="k7b_16"><sup>16</sup></a>&nbsp; is made, is it based on his own [the defendant's] property or upon that of the general public? This problem has no application to R. Ishmael's view that the calculation is based upon the quality of the plaintiff's property;<a id="k7b_17"><sup>17</sup></a>&nbsp; it can apply only to R. Akiba's view<a id="k7b_17"><sup>17</sup></a>&nbsp; which takes the defendant's property into account.<a id="k7b_18"><sup>18</sup></a>&nbsp; What would, according to him, be the ruling? Does the Divine Law in saying, 'the best of his field' intend only to exclude the quality of the plaintiff's property from being taken into account, or does it intend to exclude even the quality of the property of the general public? &mdash; He [R. Abba] said to him:<a id="k7b_19"><sup>19</sup></a>&nbsp; The Divine Law states, 'the best of his field' how then can you maintain that the calculation is based on the property of the general public?
</p><p>
	He<a id="k7b_20"><sup>20</sup></a>&nbsp; raised an objection: [It is taught,] If the defendant's estate consists only of the best, creditors of all descriptions are paid out of the best; if it is of medium quality, they are all paid out of medium quality; if it is of the worst quality, they are all paid out of the worst quality. [It is only] when the defendant's possessions consist of both the best, the medium, and the worst [that] creditors for damages are paid out of the best, creditors for loans out of the medium and creditors for marriage contracts out of the worst. When [however] the estate consists only of the best and of the medium qualities, creditors for damages are paid out of the best while creditors for loans and for marriage contracts will be paid out of the medium quality. [Again] if the estate consists only of the medium and the worst qualities, creditors for either damages or loans are paid out of the medium quality whereas those for marriage contracts will be paid out of the worst quality.
</P>


lvr: 41
dfh: a
notes:
 ntes={k8a_1:" Here begins R. Samuel's argument."
,k8a_2:" I.e., at the time when the loan took place, in which case the creditors then obtained a claim on the medium quality by the process of law."
,k8a_3:" At the time when the loan took place, in which case the medium (in the absence of a better quality) was relatively the best, and therefore not available to creditors for loans."
,k8a_4:" But was either retained, as is the case in the second Baraitha, or on the other hand not owned at all at the time of the loan as is the case in the first Baraitha."
,k8a_5:" In such a case it is considered the best quality to all intents and purposes, as the calculation is based upon the general standard of quality."
,k8a_6:" It is thus termed only medium and creditors for loans have access to it."
,k8a_7:" Hence in the absence of a better quality in his own estate, that property which is termed medium in comparison to the general standard is the best in the eye of the law."
,k8a_8:" According to which it is but medium."
,k8a_9:" Git. 50a."
,k8a_10:" Deut XXIV, 11."
,k8a_11:" Git. V, 1."
,k8a_12:" Maintaining that creditors for loans will always he paid out the worst quality."
,k8a_13:" I.e., a debtor for damages, loans and marriage-settlements."
,k8a_14:" Consisting of best, medium and worst qualities."
,k8a_15:" So that creditors for damages, for loans and for marriage-settlements will he paid according to their respective rights."
,k8a_16:" Whether it be best, medium or worst."
,k8a_17:" Though on one and the same day; cf, Keth. 94a."
,k8a_18:" I.e., why should the legal position of one purchaser be worse than that of three?"
,k8a_19:" As, according to a Mishnaic enactment (Git. V, 1), 'Property disposed of by a debtor could not he resorted to by his creditors so long as there are with him available possessions undisposed of.'"
,k8a_20:" In which case it is not in the interest of the purchaser that the last purchase should he available to any one of the creditors."
,k8a_21:" At the hands of the debtor, according to the Mishnaic enactment, Git. V, 1. "
}

txt:
<p>
If, however, the estate consists only of the best and of the worst qualities, creditors for damages are paid out of the best whereas those for loans and marriage contracts are paid out of the worst quality. Now<a id="k8a_1"><sup>1</sup></a>&nbsp; the intermediate clause states that if the estate consists only of the medium and the worst qualities, creditors for either damages or loans are paid out of the medium quality whereas marriage contracts will be paid out of the worst quality. If, therefore, you still maintain that the calculation is based only upon the qualities of the defendant's estate, is not the medium [when there is no better with him] his best? Why then should not the creditors for loans be thrown back on the worst quality? &mdash; This [intermediate clause] deals with a case where the defendant originally possessed<a id="k8a_2"><sup>2</sup></a>&nbsp; property of a better quality but has meanwhile disposed of it. And R. Hisda likewise explained this [intermediate clause] to deal with a case where the defendant originally possessed<a id="k8a_2"><sup>2</sup></a>&nbsp; property of a better quality but has meanwhile disposed of it. This explanation stands to reason, for it is taught elsewhere: If the estate consisted of the medium and the worst qualities, creditors for damages are paid out of the medium quality whereas those for loans and marriage contracts will be paid out of the worst quality. Now these [two Baraithas] do not contradict each other, unless we accept [the explanation that] the one deals with a case where the defendant originally owned property of a better quality but which he has meanwhile disposed of, while the other states the law for a case where he did not have<a id="k8a_3"><sup>3</sup></a>&nbsp; property of a quality better than the medium in his possession. It may, however, on the other hand be suggested that both [Baraithas] state the law when a better quality was not disposed of<a id="k8a_4"><sup>4</sup></a>&nbsp; and there is yet no contradiction, as the second [Baraitha] presents a case where the defendant's medium quality is as good as the best quality of the general public,<a id="k8a_5"><sup>5</sup></a>&nbsp; whereas in the first [Baraitha] the medium quality was not so good as the best of the public.<a id="k8a_6"><sup>6</sup></a>&nbsp; It may again be suggested that both [Baraithas] present a case where the defendant's medium quality was not better than the medium quality of the general public and the point at issue is this: the second [Baraitha] bases the calculation upon the qualities of the defendant's estate,<a id="k8a_7"><sup>7</sup></a>&nbsp; but the first bases it upon those of the general public.<a id="k8a_8"><sup>8</sup></a>
</p><p>
	Rabina said: The point at issue is the view expressed by 'Ulla.<a id="k8a_9"><sup>9</sup></a>&nbsp; For 'Ulla said: Creditors for loans may, according to Pentateuchal Law, be paid out of the worst, as it is said, Thou shalt stand without, and the man to whom thou dost lend shall bring forth the pledge without unto thee.<a id="k8a_10"><sup>10</sup></a>&nbsp; Now it is certainly in the nature of man [debtor] to bring out the worst of his chattels. Why then is it laid down that creditors for loans are paid out of the medium quality?<a id="k8a_11"><sup>11</sup></a>&nbsp; This is a Rabbinic enactment made in order that prospective borrowers should not find the door of their benefactors locked before them. Now this enactment referred to by 'Ulla is accepted by the first [Baraitha] whereas the second disapproves of this enactment.<a id="k8a_12"><sup>12</sup></a>
</p><p>
	Our Rabbis taught: If a defendant<a id="k8a_13"><sup>13</sup></a>&nbsp; disposed of all his land<a id="k8a_14"><sup>14</sup></a>&nbsp; to one or to three persons at one and the same time, they all have stepped into the place of the original owner.<a id="k8a_15"><sup>15</sup></a>&nbsp; [If, however, the three sales took place] one after another, creditors of all descriptions will be paid out of the [property purchased] last;<a id="k8a_16"><sup>16</sup></a>&nbsp; if this property does not cover [the liability], the last but one purchased estate is resorted to [for the balance]; if this estate again does not meet [the whole obligation], the very first purchased estate is resorted to [for the outstanding balance].
</p><p>
	'If the defendant disposed of all his land to one' &mdash; under what circumstances [was it disposed of]? It could hardly be suggested [that it was effected] by one and the same deed, for if in the case of three persons whose purchases may have been after one another,<a id="k8a_17"><sup>17</sup></a>&nbsp; you state that, 'They all have stepped into the place of the original owner,' what need is there to mention one person purchasing all the estate by one and the same deed? It therefore seems pretty certain [that the estate disposed of to one person was effected by] deeds of different dates. But [then] why such a distinction?<a id="k8a_18"><sup>18</sup></a>&nbsp; Just as in the case of three purchasers [in succession] each can [in the first instance] refer any creditor [to the very last purchased property], saying, '[When I bought my estate] I was careful to leave [with the defendant] plenty for you to be paid out of,'<a id="k8a_19"><sup>19</sup></a>&nbsp; why should not also one purchaser [by deeds of different dates] be entitled to throw the burden of payment on to the very last purchased property, saying, '[When I acquired title to the former purchases] I was very careful to leave for you plenty to be paid out of'? &mdash; We are dealing here with a case where the property purchased last was of the best quality;<a id="k8a_20"><sup>20</sup></a>&nbsp; also R. Shesheth stated that [this law applies] when the property purchased last was of the best quality. If this be the case, why [on the other hand] should not creditors of all kinds come and be paid out of the best quality [as this was the property purchased last]? &mdash; Because the defendant may say to the creditors: 'If you acquiesce and agree to be paid out of the qualities respectively allotted to you by law, you may be paid accordingly, otherwise I will transfer the deed of the worst property back to the original owner &mdash; in which case you will all be paid out of the worst.'<a id="k8a_21"><sup>21</sup></a>&nbsp; If so,
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k8b_1:" I.e., they also should thus not he paid out of the best; like creditors for loans they would still he paid out of the medium quality, as the worst quality they could never lose."
,k8b_2:" I.e., when no land was left in the inherited estate."
,k8b_3:" For even by transferring the worst quality to the heirs he would not escape any liability affecting him."
,k8b_4:" Since the liability upon him will thereby not be affected, why then should they, in such circumstances, not resort to the very best property purchased?"
,k8b_5:" Git. V, 1."
,k8b_6:" Keth. 83a."
,k8b_7:" Maintenance is a Rabbinical enactment for married women in exchange for their domestic work; cf. Keth. 47b."
,k8b_8:" Keth. 58b."
,k8b_9:" Who at successive sales purchased the whole estate of a debtor, and the last purchase was property of the best quality."
,k8b_10:" As <i>supra</i> p. 31."
,k8b_11:" At the hands of the sub-vendee, since nothing else of the same estate is with him to be offered to the creditors"
,k8b_12:" Cf. 'Ar. 31b."
,k8b_13:" I.e., the vendee."
,k8b_14:" Git. V, 1."
,k8b_15:" At the hands of the vendee."
,k8b_16:" Cf. Keth. 92b."
,k8b_17:" Cf. <i>supra</i> p. 29."
,k8b_18:" Cf. Keth. 92b and B.M. 14a."
,k8b_19:" In case it is distrained on by the vendor's creditors."
,k8b_20:" For he who has no personal interest in a litigation can be no pleader in it; cf. <i>infra</i> 70a."
,k8b_21:" To be indemnified for the warranty."
,k8b_22:" Keth. 92b-93a. "
}

txt:
<p>
why should the same not be said regarding creditors for damages?<a id="k8b_1"><sup>1</sup></a>&nbsp; It must therefore he surmised that we deal with [a case where the vendor has meanwhile died, and, as his] heirs are not personally liable to pay,<a id="k8b_2"><sup>2</sup></a>&nbsp; the original liability [which accompanied the purchased properties] must always remain upon the purchaser;<a id="k8b_3"><sup>3</sup></a>&nbsp; who could consequently no longer [threaten the creditors and] say this: ['If you acquiesce&nbsp;&hellip;'?]<a id="k8b_4"><sup>4</sup></a>&nbsp; &mdash; But the reason the creditors cannot be paid out of the best is that the vendee may [repudiate their demand and] say to them: 'On what account have the Rabbis enacted that "property disposed of by a debtor can not be attached by his creditors so long as there are available possessions still not disposed of"5 if not for the sake of protecting my interests? In the present instance I have no interest in availing myself of this enactment.' Exactly as Raba, for Raba elsewhere said: Whoever asserts, 'I have no desire to avail myself of a Rabbinical enactment' such as this is listened to.<a id="k8b_6"><sup>6</sup></a>&nbsp; To what does 'such as this' refer? &mdash; To R. Huna, for R. Huna said: A woman is entitled to say to her husband, 'I don't expect any maintenance from you<a id="k8b_7"><sup>7</sup></a>&nbsp; and I do not want to work for you.'<a id="k8b_8"><sup>8</sup></a>
</p><p>
	It is quite certain that if the vendee<a id="k8b_9"><sup>9</sup></a>&nbsp; has sold the medium and worst qualities and retained the best, creditors of all descriptions may come along and collect out of the best quality. For this property was acquired by him last; and, since the medium and worst qualities are no more in his possession, he is not in a position to say to the creditors: 'Take payment out of the medium and worst properties, as I have no interest in availing myself of the Rabbinic enactment.'<a id="k8b_10"><sup>10</sup></a>&nbsp; But what is the law when the vendee disposed of the best quality and retained the medium and the worst? &mdash; Abaye at first was inclined to say: Creditors of all descriptions are entitled to come and collect out of the best.<a id="k8b_11"><sup>11</sup></a>&nbsp; But Raba said to him.<a id="k8b_12"><sup>12</sup></a>&nbsp; Does not a vendee selling [property] to a sub-vendee assign to him all the rights [connected] therewith] that may accrue to him?<a id="k8b_13"><sup>13</sup></a>&nbsp; Hence just as when the creditors come to claim from the vendee, he is entitled to pay them out of the medium and the worst [respectively], irrespective of the fact that when the medium and the worst qualities were purchased by him, the best property still remained free with the original vendor, and in spite of the enactment that properties disposed of cannot be distrained on [at the hands of the vendee] so long as there is available [with the debtor] property undisposed of,<a id="k8b_14"><sup>14</sup></a>&nbsp; the reason of the exception being that the vendee is entitled to say that he has no interest in availing himself of this enactment, so is the subvendee similarly entitled to say to the creditors: 'Take payment out of the medium and the worst.'<a id="k8b_15"><sup>15</sup></a>&nbsp; For the sub-vendee entered into the sale only upon the understanding that any right that his vendor may possess in connection with the purchase should also be assigned to him.
</p><p>
	Raba said:<a id="k8b_16"><sup>16</sup></a>&nbsp; If Reuben disposed of all his lands to Simeon who in his turn sold one of the fields to Levi, Reuben's creditor may come and collect out of the land which is in the possession either of Simeon or Levi. This law applies only when Levi bought medium quality; but if he purchased either the best or the worst the law is otherwise, as Levi may lawfully contend: 'I have purposely been careful to buy the best or the worst, that is, property which is not available for you.'<a id="k8b_17"><sup>17</sup></a>&nbsp; Again, even when he bought medium quality the creditor will not have this option unless Levi did not leave [with Simeon] medium quality of a similar nature, in which case he is unable to plead, 'l have left for you ample land with Simeon;' but if Levi did leave with Simeon medium quality of a similar nature the creditor is not entitled to distrain on Levi who may lawfully contend, 'I have left for you ample land [with Simeon] to satisfy your claim from it.
</p><p>
	Abaye said:<a id="k8b_18"><sup>18</sup></a>&nbsp; If Reuben had disposed of a field to Simeon with a warranty [of indemnity],<a id="k8b_19"><sup>19</sup></a>&nbsp; and an alleged creditor of Reuben came to distrain on it from Simeon, Reuben is entitled by law to come forward and litigate with the creditor, nor can the latter say to him: 'You [Reuben] are no party to me;'<a id="k8b_20"><sup>20</sup></a>&nbsp; for Reuben will surely say to him: 'If you will deprive Simeon of the field purchased by him from me, he will turn on me.'<a id="k8b_21"><sup>21</sup></a>&nbsp; There are some who say: Even if there were no warranty there the same law applies, as Reuben may say to the alleged creditor: 'I don't want Simeon to have any grievance against me.'
</p><p>
	And Abaye further said:<a id="k8b_22"><sup>22</sup></a>&nbsp; If Reuben sold a field to Simeon without a warranty [for indemnity]
</P>


lvr: 41
dfh: a
notes:
 ntes={k9a_1:" I.e., you bought it at your own risk; the sale is thus the passing not of ownership but of possession."
,k9a_2:" [H], document conferring the right of seizure of a debtor's property sold after the loan (Jast.)."
,k9a_3:" R. Huna refers either to the last clause of the Mishnah on p. 1 or to the problem raised by Abaye on p. 24."
,k9a_4:" Ex. XXI, 34."
,k9a_5:" Cf. <i>supra</i> p. 24."
,k9a_6:" The text should thus run, 'And so also said R. Assi&nbsp;&hellip;'"
,k9a_7:" Lit. 'brothers'."
,k9a_8:" Of the deceased."
,k9a_9:" I.e., R. Assi's statement."
,k9a_10:" [In which case R. Assi stated that the other can offer in refundment either money or land.]"
,k9a_11:" B.B. 107a."
,k9a_12:" Cf. Bek. 48a."
,k9a_13:" In this respect."
,k9a_14:" So that all of them have to share the burden of the debt and if the portion of the one was distrained on, the portion of the other constitutes the whole inheritance which has equally to he distributed accordingly."
,k9a_15:" Who cannot thus be reimbursed for the distress effected upon the portion assigned to any one of them."
,k9a_16:" V. p. 34. n. 11."
,k9a_17:" On the principle that in such and similar matters the two parties should equally have the benefit of the doubt (Rashi, according to one interpretation)."
,k9a_18:" Stated above by R. Assi. "
}

txt:
<p>
and there appeared claimants [questioning the vendor's title], so long as Simeon had not yet taken possession of it he might withdraw; but after he had taken possession of it he could no longer withdraw. What is the reason for that? &mdash; Because the vendor may say to him: 'You have agreed to accept a bag tied up with knots.'<a id="k9a_1"><sup>1</sup></a>&nbsp; From what moment [in this case] is possession considered to be taken? &mdash; From the moment he sets his foot upon the landmarks [of the purchased field]. This applies only to a purchase without a warranty. But if there is a warranty the law is otherwise. Some, however, say: Even if there is a warranty the same law applies, as the vendor may still say to him: 'Produce the distress warrant<a id="k9a_2"><sup>2</sup></a>&nbsp; against you and I will indemnify you.'
</p><p>
	R. Huna said: [The payment for damages is] either with money or with the best of the estate.<a id="k9a_3"><sup>3</sup></a>&nbsp; R. Nahman objected to R. Huna [from the Baraitha]: He should return<a id="k9a_4"><sup>4</sup></a>&nbsp; shows that payment in kind is included, even with bran?<a id="k9a_5"><sup>5</sup></a>&nbsp; &mdash; This deals with a case where nothing else is available. If nothing else is available, is it not obvious? &mdash; You might have thought that we tell him to go and take the trouble to sell [the bran] and tender the plaintiff ready money. It is therefore made known to us [that this is not the case.].
</p><p>
	R. Assi said: Money is on a par with land. What is the legal bearing of this remark? If to tell us what is best, is this not practically what R. Huna said?<a id="k9a_6"><sup>6</sup></a>&nbsp; It may, however, refer to two heirs<a id="k9a_7"><sup>7</sup></a>&nbsp; who divided an inheritance, one taking the land and the other the money. If then a creditor<a id="k9a_8"><sup>8</sup></a>&nbsp; came and distrained on the land, the aggrieved heir could come forward and share the money with his brother. But is this not self-evident? Is the one a son [to the deceased] and the other one not a son? There are some who argue [quite the reverse]: The one brother may say to the other, 'I have taken the money on the understanding that if it be stolen I should not be reimbursed by you, and you also took the land on the understanding that if it be distrained on there should be no restitution to you out of anything belonging to me.' It<a id="k9a_9"><sup>9</sup></a>&nbsp; will therefore refer to two heirs<a id="k9a_7"><sup>7</sup></a>&nbsp; who divided lands among themselves after which a creditor<a id="k9a_8"><sup>8</sup></a>&nbsp; came along and distrained on the portion of one of them.<a id="k9a_10"><sup>10</sup></a>&nbsp; But has not R. Assi already once enunciated this law? For it was stated;<a id="k9a_11"><sup>11</sup></a>&nbsp; [In the case of] heirs who divided [the land of the inheritance among themselves], if a creditor<a id="k9a_8"><sup>8</sup></a>&nbsp; came along and distrained on the portion of one of them, Rab said: The original apportionment becomes null and void. Samuel said: The portion is waived; but R. Assi said: The portion is refunded by a quarter in land or by a quarter in money.<a id="k9a_12"><sup>12</sup></a>&nbsp; Rab, who said that the partition becomes null and void, maintains that heirs, even after having shared, remain<a id="k9a_13"><sup>13</sup></a>&nbsp; co-heirs;<a id="k9a_14"><sup>14</sup></a>&nbsp; Samuel, who said that the portion is waived, maintains that heirs, after having shared, stand to each other in the relationship of vendees, each being in the position of a purchaser without a warranty [of indemnity];<a id="k9a_15"><sup>15</sup></a>&nbsp; R. Assi, who said that the portion is refunded by a quarter in land or by a quarter in money, is in doubt as to whether heirs, after having shared, still remain co-heirs<a id="k9a_16"><sup>16</sup></a>&nbsp; or stand in the relationship of vendees;<a id="k9a_15"><sup>15</sup></a>&nbsp; and on account of that [doubt] there must be refunded a quarter in land or a quarter in money.<a id="k9a_17"><sup>17</sup></a>&nbsp; What then is the meaning of 'Money is on a par with land'?<a id="k9a_18"><sup>18</sup></a>&nbsp; &mdash; In respect of being counted as 'best'. But if so, is not this practically what R. Huna said? &mdash; Read 'And so also said R. Assi&nbsp;&hellip;'
</p><p>
	R. Zera said on behalf of R. Huna: For [the performance of] a commandment one should go up to a third. A third of what?
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k9b_1:" I.e., 33-1/3 per cent. of the cost of ordinary performance, the cost of the ordinary performance and that of the exemplary performance would thus stand to each other as 3 to 4."
,k9b_2:" I.e., 50 per cent. of the cost of the ordinary performance; the cost of the ordinary performance and that of the exemplary performance would thus stand to each other as 2 to 3."
,k9b_3:" Palestine."
,k9b_4:" I.e., whether he possesses much or little."
,k9b_5:" Cf. Shittah Mekubezeth and Nimmuke Joseph a.l. According to Rashi and Tosaf. a.l.: 'The cost up to a third remains man's loss in this world (as the reward for that will he paid only in the world to come); but the cost from a third onwards (if any) will he refunded by the Holy One, blessed be He, in man's lifetime.'"
,k9b_6:" From neglecting the obligation to control."
,k9b_7:" Of consecrated things. cf. Lev. V, 15-16."
,k9b_8:" Lit., 'sons of the Covenant', excluding heathens who do not respect the covenant of the law; v. <i>infra</i> p. 211, n. 6."
,k9b_9:" I.e., the Rabbis of the Mishnah, v. <i>infra</i> 59b."
,k9b_10:" I.e., to a deaf-mute, an insane person or a minor."
,k9b_11:" <i>Infra</i> 59b."
,k9b_12:" Cf. Ex. XXI, 29-30; v. <a href=\"../tglossary.html\">Glos.</a>"
,k9b_13:" Ibid. XXI, 32."
,k9b_14:" V. <i>infra</i> p. 255."
,k9b_15:" Cf. <i>supra</i> p. 3, nn. 6-7. "
}

txt:
<p>
You could hardly suggest 'a third of one's possessions,' for if so when one chanced to have three commandments [to perform at one and the same time] would one have to give up the whole of one's possessions? &mdash; R. Zera therefore said: For [performing a commandment in] an exemplary manner one should go up to a third of [the ordinary expense involved in] the observance thereof.
</p><p>
	R. Ashi queried: Is it a third from within [the ordinary expense]<a id="k9b_1"><sup>1</sup></a>&nbsp; or is it a third from the aggregate amount?<a id="k9b_2"><sup>2</sup></a>&nbsp; This stands undecided.
</p><p>
	In the West<a id="k9b_3"><sup>3</sup></a>&nbsp; they said in the name of R. Zera: Up to a third, a man must perform it out of his own,<a id="k9b_4"><sup>4</sup></a>&nbsp; but from a third onwards he should perform it in accordance with the special portion the Holy One, blessed be He, has bestowed upon him.<a id="k9b_5"><sup>5</sup></a>
<P>
<B><I>MISHNAH</I></B>. WHENEVER I AM UNDER AN OBLIGATION OF CONTROLLING [ANYTHING IN MY POSSESSION], I AM CONSIDERED TO HAVE PERPETRATED ANY DAMAGE THAT MAY RESULT.<a id="k9b_6"><sup>6</sup></a>&nbsp; WHEN I AM TO BLAME FOR A PART OF THE DAMAGE I AM LIABLE TO COMPENSATE FOR THE DAMAGE AS IF I HAD PERPETRATED THE WHOLE OF THE DAMAGE.
</p><p>
	THE [DAMAGED] PROPERTY MUST BE OF A KIND TO WHICH THE LAW OF SACRILEGE<a id="k9b_7"><sup>7</sup></a>&nbsp; HAS NO APPLICATION. THE [DAMAGED] PROPERTY SHOULD BELONG TO PERSONS WHO ARE UNDER [THE JURISDICTION OF] THE LAW.<a id="k9b_8"><sup>8</sup></a>&nbsp; THE PROPERTY SHOULD BE OWNED. THE PLACE [OF THE DAMAGE] IS IMMATERIAL, WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT OR PREMISES OWNED [JOINTLY] BY THE PLAINTIFF AND THE DEFENDANT. WHENEVER DAMAGE HAS OCCURRED, THE OFFENDER IS LIABLE TO INDEMNIFY WITH THE BEST OF HIS ESTATE.
</p><p>
	<B><I>GEMARA</I></B>. Our Rabbis taught: 'WHENEVER I AM UNDER AN OBLIGATION OF CONTROLLING [ANYTHING IN MY POSSESSION], I AM CONSIDERED TO HAVE PERPETRATED ANY DAMAGE [THAT MAY RESULT]. How is that? When an ox or pit which was left with a deaf-mute, an insane person or a minor, does damage, the owner is liable to indemnify. This, however, is not so with a fire.' With what kind of case are we here dealing? If you say that the ox was chained and the pit covered, which corresponds in the case of fire to a hot coal, what difference is there between the one and the other? If on the other hand the ox was loose and the pit uncovered which corresponds in the case of fire to a flame, the statement 'This, however, is not so with a fire,' would here indicate exemption, but surely Resh Lakish said in the name of Hezekiah: They<a id="k9b_9"><sup>9</sup></a>&nbsp; have not laid down the law of exemption unless there was handed over to him<a id="k9b_10"><sup>10</sup></a>&nbsp; a coal which he has blown up, but in the case of a flame there will be full liability, the reason being that the danger is clear!<a id="k9b_11"><sup>11</sup></a>&nbsp; &mdash; Still, the ox may have been chained and the pit covered and the fire likewise in a coal, yet your contention, 'Why should we make a difference between the one and the other?' could be answered thus: An ox is in the habit of loosening itself; so also a pit is in the nature of getting uncovered; but a hot coal, the longer you leave it alone, the more it will get cooler and cooler. According to R. Johanan, however, who said<a id="k9b_11"><sup>11</sup></a>&nbsp; that even when there has been handed over to him<a id="k9b_10"><sup>10</sup></a>&nbsp; a flame the law of exemption applies, the ox here would likewise be loose and the pit uncovered; but why should we make a difference between the one and the other? &mdash; There, in the case of the fire, it is the handling of the deaf-mute that causes the damage, whereas here, in the case of the ox and the pit, it is not the handling of the deaf-mute that causes the damage.
</p><p>
	Our Rabbis taught: There is an excess in [the liability for] Ox over [that for] Pit, and there is [on the other hand] an excess in [the liability for] Pit over [that for] Ox. The excess in [the liability for] Ox over [that for] Pit is that Ox involves payment of <i>kofer</i><a id="k9b_12"><sup>12</sup></a>&nbsp; and the liability of thirty [<i>shekels</i>] for the killing of a slave;<a id="k9b_13"><sup>13</sup></a>&nbsp; when judgment [for manslaughter] is entered [against Ox] it becomes vitiated for any use,<a id="k9b_14"><sup>14</sup></a>&nbsp; and it is in its habit to move about and do damage, whereas all this is not so in the case of Pit. The excess in [the liability for] Pit over [that for] Ox is that Pit is from its very inception a source of injury and is <i>Mu'ad</i> ab initio which is not so in the case of Ox.<a id="k9b_15"><sup>15</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k10a_1:" Cf. <i>supra</i> P. 3, nn 6-7."
,k10a_2:" V. p. 37, n. 6."
,k10a_3:" Cf. <i>supra</i> p. 36."
,k10a_4:" Lit., 'utensils'."
,k10a_5:" Cf. <i>supra</i> pp. 17 and 18."
,k10a_6:" V. <i>supra</i> p. 18 and <i>infra</i> 53b."
,k10a_7:" Metal or earthenware."
,k10a_8:" Such as the distinction between Ox and Pit with reference to inanimate objects"
,k10a_9:" As a Tanna would not, in enumeration, just stop short at one point."
,k10a_10:" For damage to which, according to the Rabbis, there is no liability in the case of Fire; cf. <i>supra</i> p. 18 and <i>infra</i> 61b."
,k10a_11:" V. p. 38, n. 6."
,k10a_12:" V. <i>supra</i> p. 18."
,k10a_13:" On account of a blemish, cf, Lev. XXII, 20 and Deut. XV, 21-22; such animals have to be redeemed, in accordance with Lev. XXVII, 11-13 and 27."
,k10a_14:" Cf. <i>infra</i> 53b."
,k10a_15:" I.e., with reference to inanimate objects."
,k10a_16:" Which is impossible in the case of Pit."
,k10a_17:" And therefore, if the Baraitha were in accordance with R. Judah, the question, 'What else did it omit etc.', would remain unanswered."
,k10a_18:" Cf. Tosaf, B.K. VI, 3 and <i>infra</i> 51a."
,k10a_19:" As without the additional handbreadth done by him the pit would have been nine handbreadths deep which could not occasion any fatal accident; cf, <i>supra</i> p. 7."
,k10a_20:" For even a pit nine handbreadths deep could occasion injuries."
,k10a_21:" Which declares the latter person 'who perpetrated part of the damage' liable."
,k10a_22:" I.e., is even in accordance with Rabbi."
,k10a_23:" To illustrate the perpetration of a part of the damage involving liability for the whole of the damage."
}

txt:
	There is an excess in [the liability for] Ox over [that for] Fire and there is [on the other hand] an excess in [the liability for] Fire over [that for] Ox. The excess in [the liability for] Ox over [that for] Fire is that Ox involves payment of <i>kofer</i> and the liability of thirty [<i>shekels</i>] for the killing of a slave; when judgment [for manslaughter] is entered against Ox it becomes vitiated for any use;<a id="k10a_1"><sup>1</sup></a>&nbsp; if the owner handed it over to the care of a deaf-mute, an insane person or a minor he is still responsible [for any damage that may result];<a id="k10a_2"><sup>2</sup></a>&nbsp; whereas all this is not so in the case of Fire. The excess in [the liability for] Fire over [that for] Ox is that Fire is <i>Mu'ad</i> ab initio which is not so in the case of Ox.
</p><p>
	There is an excess in [the liability for] Fire over [that for] Pit, and there is [on the other hand] an excess in [the liability for] Pit over [that for] Fire. The excess in [the liability for] Pit over [that for] Fire is that Pit is from its very inception a source of injury; if its owner handed it over to the care of a deaf-mute, an insane person or a minor, he is still responsible [for any damage that may result],<a id="k10a_2"><sup>2</sup></a>&nbsp; whereas all this is not so in the case of Fire. The excess in [the liability for] Fire over [that for] Pit is that the nature of Fire is to spread and do damage and it is apt to consume both things fit for it and things unfit for it, whereas all this is not so in the case of Pit.
</p><p>
	Why not include in the excess of [liability for] Ox over [that for] Pit [the fact] that Ox is [also] liable for damage done to inanimate objects<a id="k10a_3"><sup>3</sup></a>&nbsp; which is not so in the case of Pit?<a id="k10a_4"><sup>4</sup></a>&nbsp; &#151; The above [Baraitha] is in accordance with R. Judah who enjoins payment for damage to inanimate objects [also] in the case of Pit.<a id="k10a_5"><sup>5</sup></a>&nbsp; If it is in accordance with R. Judah, look at the concluding clause, 'The excess in [the liability for] Fire over [that for] Pit is that the nature of Fire is to spread and do damage, and it is apt to consume both things fit for it and things unfit for it; whereas all this is not so in the case of Pit.' 'Things fit for it:' are they not 'of wood'? 'Things unfit for it: are they not 'utensils'?<a id="k10a_6"><sup>6</sup></a>&nbsp; Now 'all this is not so in the case of Pit'. But if the statement is in accordance with R. Judah, did you not say that R. Judah enjoins payment for damage to inanimate objects [also] in the case of Pit? The Baraitha is, therefore, indeed in accordance with the Rabbis, but it mentions [some points] and omits [others].<a id="k10a_7"><sup>7</sup></a>&nbsp; What else does it omit that it omits that [particular] point?<a id="k10a_8"><sup>8</sup></a>&nbsp; &#151; It also omits the law of hidden goods.<a id="k10a_9"><sup>9</sup></a>&nbsp; On the other hand you may also say that the Baraitha can still be reconciled with R. Judah, for 'things unfit for it' do not include utensils,<a id="k10a_10"><sup>10</sup></a>&nbsp; but do include [damage done by fire] lapping his neighbour's ploughed field and grazing his stones.<a id="k10a_11"><sup>11</sup></a>
</p><p>
	R. Ashi demurred: Why not include, in the excess of liability for Ox Over [that for] Pit, [the fact] that Ox is [also] liable for damage done to consecrated animals that have become unfit [for the altar],<a id="k10a_12"><sup>12</sup></a>&nbsp; whereas this is not so in the case of Pit?<a id="k10a_13"><sup>13</sup></a>&nbsp; No difficulty arises if you assume that the Baraitha is in accordance with the Rabbis; just as it had omitted that point,<a id="k10a_14"><sup>14</sup></a>&nbsp; it omitted this point too. But if you maintain that the Baraitha is in accordance with R. Judah, what else did it omit that it omits this [one] point? &mdash; It omitted [Ox] trampling upon newly broken land.<a id="k10a_15"><sup>15</sup></a>&nbsp; [No! this is no argument,] for as to [Ox] trampling upon newly broken land there is no omission there, for this [is included in that which] has already been stated, 'It is in its habit to move about and do damage.'<a id="k10a_16"><sup>16</sup></a>
</p><p>
	WHEN I HAVE PERPETRATED A PART OF THE DAMAGE. Our Rabbis taught: 'When I have perpetrated a part of the damage I become liable for the compensation for the damage as if I had perpetrated the whole of the damage. How is that? If one had dug a Pit nine handbreadths deep and another came along and completed it to a depth of ten handbreadths, the latter person is liable.' Now this ruling is not in accordance with Rabbi; for it was taught:<a id="k10a_17"><sup>17</sup></a>&nbsp; If one had dug a pit nine handbreadths deep and another came along and completed it to a depth of ten handbreadths, the latter person is liable. Rabbi says: The latter person is liable in cases of death,<a id="k10a_18"><sup>18</sup></a>&nbsp; but both of them in cases of injury!<a id="k10a_19"><sup>19</sup></a>&nbsp; &#151; R. Papa said: The Mishnaic ruling<a id="k10a_20"><sup>20</sup></a>&nbsp; deals with cases of death and is unanimous.<a id="k10a_21"><sup>21</sup></a>&nbsp; Some read: May we say that the Mishnah is not in accordance with Rabba? &#151; R. Papa thereupon said: It deals with cases of death and is unanimous.
</p><p>
	R. Zera demurred: Are there no other instances?<a id="k10a_22"><sup>22</sup></a>&nbsp; Behold there is [the case] where an ox was handed over to the care of five persons and one of them was careless, so that the ox did damage; that one is liable! &#151; But in what circumstances? If without the care of that one, the ox could not be controlled, is it not obvious that it is that one who perpetrated the whole of the damage?<a id="k10a_23"><sup>23</sup></a>&nbsp; If, [on the other hand] even without the care of that one, the ox could be controlled, what, if anything at all, has that one perpetrated?
</p><p>
	R. Shesheth, however, demurred: Behold there is [the case] where a man adds a bundle [of dry twigs to an existing fire]! &#151; But in what circumstances?

</P><hr noshade size="1" width="100%">
<center><i>Original footnotes renumbered. See <a href="../structure.html">Structure of the Talmud Files</a></i></center>
<P></P>


lvr: 41
dfh: b
notes:
 ntes={k10b_1:" Who was very corpulent, cf. B.M. 84a. [According to Zacuto's Sefer ha-Yuhasin, the reference there is not to R. Papa but to Papa b. Abba]"
,k10b_2:" I.e., the five persons that had previously been sitting upon the bench."
,k10b_3:" Therefore he is to he regarded as having perpetrated the whole, and not merely a part, of the damage."
,k10b_4:" And why should he alone be liable?"
,k10b_5:" V. <i>infra</i> pp. 79-80."
,k10b_6:" Sanh. 78a and <i>infra</i> p. 139. [Why then was this ruling of R. Judah not taken as a further illustration of the Mishnaic principle?]"
,k10b_7:" In the Mishnah before us (which presents the law of civil action and not that of murder)."
,k10b_8:" Cf. <i>supra</i> p. 39."
,k10b_9:" As it is the view of the majority that prevails; Ex. XXIII, 2."
,k10b_10:" Tosef. B.K. I. 1."
,k10b_11:" [H] Lev. XXIV, 18."
,k10b_12:" Changing the vowels of the Hebrew verb; [H] into [H]"
,k10b_13:" Similarly by changing the vowel; the monosyllable [H] (witness) is read [H] 'up to'."
,k10b_14:" Ex. XXII, 12."
,k10b_15:" I.e., the amount required to make up the deficiency."
,k10b_16:" Ex. XXI, 36."
,k10b_17:" Ex. XXI, 36."
,k10b_18:" Ibid; since it is self-evident that the defendant, having paid for the ox, claims the carcass."
,k10b_19:" For a man to kill a beast with intent to cause damage to his neighbour."
,k10b_20:" Ex. XXII, 12."
,k10b_21:" In the interest of the plaintiff."
,k10b_22:" V. p. 42, n. 11."
,k10b_23:" I.e., not by the bailee himself but by a wild beast."
,k10b_24:" I.e., man killing an animal."
,k10b_25:" I.e., when the animal in charge was torn by beasts."
,k10b_26:" I.e., in the case of a goring ox, Ex. XXI, 36."
,k10b_27:" The ox being his property, makes the owner responsible for the damage as if it were perpetrated by himself,"
,k10b_28:" I.e., by his cattle."
,k10b_29:" Such as in Lev. XXIV, 18 and Ex. XXII, 12."
,k10b_30:" I.e., with the defendant."
,k10b_31:" I.e., the plaintiff."
,k10b_32:" EX.XXI, 34."
,k10b_33:" Cf. <i>supra</i> p. 24."
,k10b_34:" That is to he sustained by the plaintiff, since it becomes his from the moment of the goring."
,k10b_35:" Ex.XXII, 12. "
}

txt:
<p>
If without his co-operation the fire would not have spread, is it not obvious [that he is totally to blame]? If [on the other hand] even without his co-operation the fire would have spread, what, if anything at all, has he perpetrated?
</p><p>
	R. Papa demurred: Behold there is that case which is taught: 'Five persons were sitting upon one bench and did not break it; when, however, there came along one person more and sat upon it, it broke down; the latter is liable' &#151; supposing him, added R. Papa, to have been as stout as Papa b. Abba.<a id="k10b_1"><sup>1</sup></a>&nbsp; But under what circumstances? If without him the bench would not have broken, is it not obvious [that he is totally to blame]? If, on the other hand, without him it would also have broken, what, if anything at all, has he perpetrated? Be this as it may, how can the Baraitha be justified? &#151; It could hold good when, without the newcomer, the bench would have broken after two hours, whereas now it broke in one hour. They<a id="k10b_2"><sup>2</sup></a>&nbsp; therefore can say to him: 'If not for you we would have remained sitting a little while longer and would then have got up.'<a id="k10b_3"><sup>3</sup></a>&nbsp; But why should he not say to them: 'Had you not been [sitting] there, through me the bench would not have broken'?<a id="k10b_4"><sup>4</sup></a>&nbsp; &#151; No; it holds good when he [did not sit at all on the bench but] merely leaned upon them and the bench broke down. Is it not obvious [that he is liable]? &#151; You might have argued '[Damage done by] a man's force is not comparable with [that done directly by] his body.'It is therefore made known to us that [a man is responsible for] his force [just as he] is [for] his body, for whenever his body breaks [anything] his force also participates in the damage.<a id="k10b_5"><sup>5</sup></a>
</p><p>
	Are there no other instances? Behold there is that which is taught:<a id="k10b_5"><sup>5</sup></a>&nbsp; When ten persons beat a man with ten sticks, whether simultaneously or successively, so that he died, none of them is guilty of murder. R. Judah b. Bathyra says: If [they hit] successively, the last is liable, for he was the immediate cause of the death!<a id="k10b_6"><sup>6</sup></a>&nbsp; &#151; Cases of murder are not dealt with here.<a id="k10b_7"><sup>7</sup></a>&nbsp; You may also say that controversial cases are not dealt with.<a id="k10b_7"><sup>7</sup></a>&nbsp; Are they not? Did not we suggest that the Mishnah is not in accordance with Rabbi?<a id="k10b_8"><sup>8</sup></a>&nbsp; &#151; That the Mishnah is not in accordance with Rabbi but in accordance with the Rabbis, we may suggest;<a id="k10b_9"><sup>9</sup></a>&nbsp; whereas that it is in accordance with R. Judah b. Bathyra, and not in accordance with the Rabbis, we are not inclined to suggest.<a id="k10b_9"><sup>9</sup></a>
</p><p>
	I AM LIABLE TO COMPENSATE FOR THE DAMAGE. 'I become liable for the replacement of the damage' is not stated but '&hellip; TO COMPENSATE FOR THE DAMAGE'. We have thus learnt here that which the Rabbis taught elsewhere:<a id="k10b_10"><sup>10</sup></a>&nbsp; '"To compensate for damage" imports that the owners [plaintiffs] have to retain the carcass as part payment'. What is the authority for this ruling? &mdash; R. Ammi said: Scripture states, He that killeth a beast yeshallemennah [shall make it good];<a id="k10b_11"><sup>11</sup></a>&nbsp; do not read yeshallemennah ['he shall pay for it'], but yashlimennah<a id="k10b_12"><sup>12</sup></a>&nbsp; ['He shall complete its deficiency']. R. Kahana infers it from the following: If it be torn in pieces, let him bring compensation up to ['ad]<a id="k10b_13"><sup>13</sup></a>&nbsp; the value of the carcass,' he shall not make good that which was torn.<a id="k10b_14"><sup>14</sup></a>&nbsp; 'Up to' the value of the carcass<a id="k10b_15"><sup>15</sup></a>&nbsp; he must pay, but for the carcass itself he has not to pay. Hezekiah infers it from the following: And the dead shall be his own,<a id="k10b_16"><sup>16</sup></a>&nbsp; which refers to the plaintiff. It has similarly been taught in the school of Hezekiah: And the dead shall be his own,<a id="k10b_16"><sup>16</sup></a>&nbsp; refers to the plaintiff. You say 'the plaintiff'. Why not the defendant? You may safely assert: 'This is not the case.' Why is this not the case? &#151; Abaye said: If you assume that the carcass must remain with the defendant, why did not the Divine law, stating He shall surely pay ox for ox,<a id="k10b_17"><sup>17</sup></a>&nbsp; stop at that? Why write at all And the dead shall be his own?<a id="k10b_18"><sup>18</sup></a>&nbsp; This shows that it refers to the plaintiff.
</p><p>
	And all the quotations serve each its specific purpose. For if the Divine Law had laid down [this ruling only in] the verse 'He that killeth a beast shall make it good,' the reason of the ruling would have been assigned to the infrequency of the occurrence,<a id="k10b_19"><sup>19</sup></a>&nbsp; whereas in the case of an animal torn in pieces [by wild beasts]'<a id="k10b_20"><sup>20</sup></a>&nbsp; which is [comparatively] of frequent occurrence, the opposite view might have been held;<a id="k10b_21"><sup>21</sup></a>&nbsp; hence special reference is essential.<a id="k10b_20"><sup>20</sup></a>&nbsp; If [on the other hand] this ruling had been made known to us only in the case of an animal torn in pieces.<a id="k10b_22"><sup>22</sup></a>&nbsp; it would have been explained by the fact that the damage there was done by an indirect agency,<a id="k10b_23"><sup>23</sup></a>&nbsp; whereas in the case of a man killing a beast, where the damage was done by a direct agency, the opposite view might have been held. Again, were this ruling intimated in both cases, it would have been explained in the one case on account of its infrequency,<a id="k10b_24"><sup>24</sup></a>&nbsp; and in the other account of the indirect agency,<a id="k10b_25"><sup>25</sup></a>&nbsp; whereas in the damage to which 'And the dead shall be his own'<a id="k10b_26"><sup>26</sup></a>&nbsp; refers, which is both frequent and direct,<a id="k10b_27"><sup>27</sup></a>&nbsp; an opposite view might have been taken. If [on the other hand] this ruling had been intimated only in the case referred to by 'And the dead shall be his own, it would have been explained by the fact of the damage having been done only by man's possession,<a id="k10b_28"><sup>28</sup></a>&nbsp; whereas in cases where the damage resulted from man's person<a id="k10b_29"><sup>29</sup></a>&nbsp; an opposite view might have been taken. Hence all quotations are essential.
</p><p>
	R. Kahana said to Rab: The reason [for the ruling] is that the Divine Law says 'And the dead shall be his own', and but for this I might have thought that the carcass shall remain with the defendant [yet how can this be]? If, when there are with him<a id="k10b_30"><sup>30</sup></a>&nbsp; several carcasses he is entitled to pay him<a id="k10b_31"><sup>31</sup></a>&nbsp; with them, for the Master stated: He shall return,<a id="k10b_32"><sup>32</sup></a>&nbsp; includes payment in kind, even with bran,<a id="k10b_33"><sup>33</sup></a>&nbsp; what question then about the carcass of his own animal? &#151; No, the verse is required only for the law regarding the decrease of the value of the carcass<a id="k10b_34"><sup>34</sup></a>
</p><p>
  	May we say that the decrease of the value of the carcass is a point at issue between Tannaitic authorities? For it has been taught: If it be torn in pieces, let him bring it for witness:<a id="k10b_35"><sup>35</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k11a_1:" I.e., the paid bailee who is defending himself against the depositor."
,k11a_2:" V. p 43 n. 15."
,k11a_3:" [ [H]: [H] being an unaugmented passive participle from the root [H], v. Halpern, B. ZAW, XXX, p. 57.]"
,k11a_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."
,k11a_5:" I.e., the expenses involved."
,k11a_6:" Abba Saul maintains that the defendant has to do it, whereas the other view releases him from this."
,k11a_7:" Ex. XXI, 34; the subject of the last clause is thus joined to the former sentence as a second object."
,k11a_8:" A coin; V. <a href=\"../tglossary.html\">Glos.</a>"
,k11a_9:" Of the pit."
,k11a_10:" In which case payment must b e made in full for the original value of the damaged article."
,k11a_11:" Where the carcass may he returned to the plaintiff."
,k11a_12:" Treated in Ex. XXII, 13."
,k11a_13:" [I.e., Rab whose full name was Abba]."
,k11a_14:" B.M. 96b."
,k11a_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."
,k11a_16:" Since Rab ordered the borrower to pay in full for the original value of the axe."
,k11a_17:" Which are seven for a male child and fourteen for a girl; cf. Lev. XII. 2 and 5."
,k11a_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."
,k11a_19:" Hul. 68a."
,k11a_20:" Before the animal was slaughtered."
,k11a_21:" As it is considered to contain a fetus which when born is subject to the law of slaughtering on its own accord. "
}

txt:
<p>
Let him<a id="k11a_1"><sup>1</sup></a>&nbsp; bring witnesses that it had been torn by sheer accident and free himself. Abba Saul says: Let him<a id="k11a_2"><sup>2</sup></a>&nbsp; [in all cases] bring the torn animal<a id="k11a_3"><sup>3</sup></a>&nbsp; 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,<a id="k11a_4"><sup>4</sup></a>&nbsp; whereas the former view takes it to be sustained by the defendant? &mdash; No, it is unanimously held that the decrease will be sustained by the plaintiff. Here, however, the trouble of [providing<a id="k11a_5"><sup>5</sup></a>&nbsp; for bringing up] the carcass [from the pit] is the point at issue,<a id="k11a_6"><sup>6</sup></a>&nbsp; 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'&hellip;<a id="k11a_7"><sup>7</sup></a>&nbsp; Abaye said to Raba: What does this trouble about the carcass mean? If the value of the carcass in the pit is one <i>zuz</i>,<a id="k11a_8"><sup>8</sup></a>&nbsp; whereas on the banks<a id="k11a_9"><sup>9</sup></a>&nbsp; its value will be four [<i>zuz</i>], is he not taking the trouble [of bringing up the carcass] solely in his own interests? &mdash; He [Raba], however, said: No, it applies when in the pit its value is one <i>zuz</i>, and on the banks its value is similarly one <i>zuz</i>. But is such a thing possible? Yes, as the popular adage has it, 'A beam in town costs a <i>zuz</i> and a beam in a field costs a zuz'.
</p><p>
	Samuel said: No assessment is made in theft and robbery<a id="k11a_10"><sup>10</sup></a>&nbsp; but in cases of damage;<a id="k11a_11"><sup>11</sup></a>&nbsp; I, however, maintain that the same applies to borrowing,<a id="k11a_12"><sup>12</sup></a>&nbsp; and Abba<a id="k11a_13"><sup>13</sup></a>&nbsp; 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'? &mdash; 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.'<a id="k11a_14"><sup>14</sup></a>&nbsp; Now, can you not prove hence<a id="k11a_15"><sup>15</sup></a>&nbsp; that [the law of] assessment does not apply [to borrowing]?<a id="k11a_16"><sup>16</sup></a>&nbsp; &mdash; 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.
</p><p>
	'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 impurity<a id="k11a_17"><sup>17</sup></a>&nbsp; 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 pure<a id="k11a_18"><sup>18</sup></a>&nbsp; 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:<a id="k11a_19"><sup>19</sup></a>&nbsp; 'A placenta coming partly out of an animal<a id="k11a_20"><sup>20</sup></a>&nbsp; renders [the whole of] it unfit for consumption,<a id="k11a_21"><sup>21</sup></a>&nbsp; as that, which is a sign of a fetus in humankind is similarly a sign of a fetus in an animal'? &mdash; As to this Mishnaic statement I might still have argued
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k11b_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."
,k11b_2:" In the statement of 'Ulla on behalf of R. Eleazar,"
,k11b_3:" Notwithstanding Num. XVIII, 15-16."
,k11b_4:" Ibid. 15."
,k11b_5:" Hebrew 'Ak [H] being a particle of limitation."
,k11b_6:" I.e., by the buyer; v, <a href=\"../tglossary.html\">Glos.</a> s.v. <i>Meshikah</i>."
,k11b_7:" l.e., by the seller handing over the bit to the buyer; Kid. 25b."
,k11b_8:" I.e., 'Ulla on behalf of R. Eleazar."
,k11b_9:" Cf. Kid. 25b and B.B. 86b."
,k11b_10:" I.e. Large and small cattle."
,k11b_11:" Lit., 'brothers'."
,k11b_12:" As it would be a degradation to them to be forced to appear before the court."
,k11b_13:" In charge of the administration of the affairs of the heirs."
,k11b_14:" Cf.B.M. 36a."
,k11b_15:" The original bailee has thus committed a breach of the trust."
,k11b_16:" Cf. B.B. 128a."
,k11b_17:" Who inherited the slaves; v. <i>supra</i> p. 31."
,k11b_18:" Why then speak about slaves?"
,k11b_19:" By the debtor who had meanwhile died."
,k11b_20:" <i>Infra</i> 33b and B.B. 44b."
,k11b_21:" So that the purchaser was no doubt aware of it and should consequently not have bought it."
,k11b_22:" So that the purchaser is not to blame. "
}

txt:
<p>
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;<a id="k11b_1"><sup>1</sup></a>&nbsp; it is therefore made known to us<a id="k11b_2"><sup>2</sup></a>&nbsp; that this is not the case.
</p><p>
	'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.<a id="k11b_3"><sup>3</sup></a>&nbsp; The same has been taught by Rami b. Hama: From the verse, <I>Shalt thou surely redeem</I><a id="k11b_4"><sup>4</sup></a>&nbsp; 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 <I>'but'</I><a id="k11b_5"><sup>5</sup></a>&nbsp; to exclude it.
</p><p>
	'Ulla further said on behalf of R. Eleazar: [Title to] large cattle is acquired by 'pulling'.<a id="k11b_6"><sup>6</sup></a>&nbsp; But did we not learn,&nbsp;&hellip; by 'delivery'?<a id="k11b_7"><sup>7</sup></a>&nbsp; &mdash; He<a id="k11b_8"><sup>8</sup></a>&nbsp; follows another Tanna; for it has been taught:<a id="k11b_9"><sup>9</sup></a>&nbsp; The Rabbis say: Both one and the other<a id="k11b_10"><sup>10</sup></a>&nbsp; [are acquired] by 'pulling'. R. Simeon says: Both one and the other by 'lifting up'.
</p><p>
	'Ulla further said on behalf of R. Eleazar: In the case of heirs<a id="k11b_11"><sup>11</sup></a>&nbsp; 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].<a id="k11b_12"><sup>12</sup></a>&nbsp; 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,<a id="k11b_13"><sup>13</sup></a>&nbsp; as it is in the interest of them all that his words should be respected.
</p><p>
	'Ulla further said on behalf of R. Eleazar: One bailee handing over his charge to another bailee does not incur thereby any liability.<a id="k11b_14"><sup>14</sup></a>&nbsp; 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.
</p><p>
	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].<a id="k11b_15"><sup>15</sup></a>
</p><p>
	'Ulla further said on behalf of R. Eleazar: The law is that distraint may be made on slaves.<a id="k11b_16"><sup>16</sup></a>&nbsp; Said R. Nahman to 'Ulla: Did R. Eleazar apply this statement even in the case of heirs<a id="k11b_17"><sup>17</sup></a>&nbsp; [of the debtor]? &mdash; No, Only to the debtor himself. To the debtor himself? Could not a debt be collected even from the cloak upon his shoulder?<a id="k11b_18"><sup>18</sup></a>&nbsp; &mdash; We are dealing here with a case where a slave was mortgaged,<a id="k11b_19"><sup>19</sup></a>&nbsp; as in the case stated by Raba, for Raba said:<a id="k11b_20"><sup>20</sup></a>&nbsp; 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 interest<a id="k11b_21"><sup>21</sup></a>&nbsp; whereas in the latter case no public interest was aroused.<a id="k11b_22"><sup>22</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k12a_1:" Generally referring to R. Adda b. Minyomi; Sanh. 17b."
,k12a_2:" As he considered them to have acted against established law, and so ultra vires; cf <i>infra</i> pp. 584ff. and Sanh. 33a."
,k12a_3:" I.e., R. Nahman to Raba."
,k12a_4:" [G] i.e., an official declaration made in court by a lender to the effect that the law of limitation by the Sabbatical year shall not apply to the loans contracted by him; cf. Sheb. X. 4 and Git. 36a. V. <a href=\"../tglossary.html\">Glos.</a>"
,k12a_5:" As realty even when sold by the debtor could be distrained on in the hands of the purchasers; cf. Git. 37a."
,k12a_6:" As these are considered personalty. They cannot therefore be distrained on in the hands of heirs."
,k12a_7:" I.e., the acquisition of land confers title to chattels bought at the same time. Kid. 26a; v. <i>infra</i>, p. 49."
,k12a_8:" Slaves seem thus to be not realty."
,k12a_9:" In this Baraitha slaves are treated like realty."
,k12a_10:" Stating that by taking possession of slaves no title is acquired to chattels."
,k12a_11:" Lit., 'property which affords no surety may be acquired along with property which does afford surety' (to creditors in case of non-payment of debts); Kid 26a."
,k12a_12:" Kid. 26a."
,k12a_13:" II Chron. XXI, 3: <I>with</I> [H] is taken in the sense<I> by means of</I>."
,k12a_14:" They are therefore part and parcel of the slave."
,k12a_15:" Lit., a courtyard."
,k12a_16:" Git. 21a, 68a; B.M. 9b."
,k12a_17:" Apparently on account of the fact that these are treated like personalty."
,k12a_18:" In which case even if they are not personalty their transfer has to he valid."
,k12a_19:" When only incidental to the transfer of land. "
}

txt:
<p>
	After R. Nahman went out 'Ulla said to the audience: 'The statement made by R. Eleazar refers even to the case of heirs.' R. Nahman said: 'Ulla escaped my criticism'. A case of this kind arose in Nehardea and the judges of Nehardea<a id="k12a_1"><sup>1</sup></a>&nbsp; distrained [on slaves in the hands of heirs]. A further case took place in Pumbeditha and R. Hana b. Bizna distrained [on slaves in the hands of heirs]. But R. Nahman said to them: 'Go and withdraw [your judgments], otherwise I will distrain on your own homes [to reimburse the aggrieved heirs].'<a id="k12a_2"><sup>2</sup></a>&nbsp; Raba, however, said to R. Nahman: 'There is 'Ulla, there is R. Eleazar, there are the judges of Nehardea and there is R. Hana b. Bizna [who are all joining issue with you]; what authorities is the Master following?' &mdash; He said to him:<a id="k12a_3"><sup>3</sup></a>&nbsp; 'I know of a Baraitha, for Abimi learned: "A <i>prosbul</i><a id="k12a_4"><sup>4</sup></a>&nbsp; is effective only when there is realty<a id="k12a_5"><sup>5</sup></a>&nbsp; [belonging to the debtor] but not when he possesses slaves<a id="k12a_6"><sup>6</sup></a>&nbsp; only. Personalty is transferred along with realty<a id="k12a_7"><sup>7</sup></a>&nbsp; but not along with slaves."'<a id="k12a_6"><sup>6</sup></a>
</p><p>
	May we not say that this problem is a point at issue between the following Tannaim? [For it was taught:] 'Where slaves and lands are sold, if possession is taken of the slaves no title is thereby acquired to the land, and similarly by taking possession of the lands no title is acquired to the slaves. In the case of lands and chattels, if possession is taken of the lands title is also acquired to the chattels,<a id="k12a_7"><sup>7</sup></a>&nbsp; but by taking possession of the chattels no title is acquired to the lands. In the case of slaves and chattels, if possession is taken of the slaves no title is thereby acquired to the chattels,<a id="k12a_8"><sup>8</sup></a>&nbsp; and similarly by taking possession of the chattels no title is acquired to the slaves. But [elsewhere] it has been taught: 'If possession is taken of the slaves the title is thereby acquired to the chattels.'<a id="k12a_9"><sup>9</sup></a>&nbsp; Now, is not this problem the point at issue: the latter Baraitha<a id="k12a_9"><sup>9</sup></a>&nbsp; maintains that slaves are considered realty [in the eye of the law], whereas the former Baraitha<a id="k12a_10"><sup>10</sup></a>&nbsp; is of the opinion that slaves are considered personalty? &mdash; R. Ika the son of R. Ammi, however, said: [Generally speaking] all [authorities] agree that slaves are considered realty. The [latter] Baraitha stating that the transfer [of the chattels] is effective, is certainly in agreement; the [former] Baraitha stating that the transfer [of the chattels] is ineffective, may maintain that the realty we require is such as shall resemble the fortified cities of Judah in being immovable. For we have learnt: 'Property which is not realty may be acquired incidentally with property which is realty<a id="k12a_11"><sup>11</sup></a>&nbsp; through the medium of either [purchase] money, bill of sale or taking possession.' [And it has been asked:]<a id="k12a_12"><sup>12</sup></a>&nbsp; What is the authority for this ruling? And Hezekiah thereupon said: Scripture states, <I>And their father gave them great gifts of silver and of gold and of precious things with fortified cities in Judah</I>.<a id="k12a_13"><sup>13</sup></a>&nbsp; [Alternatively] there are some who report: R. Ika the son of R. Ammi said: [Generally speaking] all [authorities] agree that slaves are considered personalty. The [former] Baraitha stating that the transfer [of the chattels] is ineffective is certainly in agreement; the [latter] Baraitha stating that the transfer of the chattels is effective deals with the case when the chattels [sold] were worn by the slave.<a id="k12a_14"><sup>14</sup></a>&nbsp; But even if they were worn by him, what does it matter? He is but property<a id="k12a_15"><sup>15</sup></a>&nbsp; in motion, and property in motion cannot be the means of conveying anything it carries. Moreover, even if you argue that the slave was then stationary, did not Raba say that whatsoever cannot be the means of conveying while in motion cannot be the means of conveying even while in the state of standing or sitting?<a id="k12a_16"><sup>16</sup></a>&nbsp; &mdash; This law applies to the case where the slave was put in stocks. But behold has it not been taught: 'If possession is taken of the land, title is thereby acquired also to the slaves'?<a id="k12a_17"><sup>17</sup></a>&nbsp; &mdash; There the slaves were gathered on the land.<a id="k12a_18"><sup>18</sup></a>&nbsp; This implies that the Baraitha which stated that the transfer of the slaves is ineffective,<a id="k12a_19"><sup>19</sup></a>&nbsp; deals with a case where the slaves were not gathered on the land. That is all very well according to the version that R. Ika the son of R. Ammi said that slaves are considered personalty; there is thus the stipulation that if they were gathered on the land, the transfer is effective, otherwise ineffective. But according to the version which reads that slaves are considered realty, why the stipulation that the slaves be gathered on the land?
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k12b_1:" Kid. 27a."
,k12b_2:" That is to he acquired along with realty; v. Kid. 27a."
,k12b_3:" Which needs to be gathered on the land."
,k12b_4:" Lev. V, 21."
,k12b_5:" E.g., peace offerings, as these belong partly to the Lord and partly to the neighbour; some parts thereof are burnt on the altar but the flesh is consumed by the original owners."
,k12b_6:" Pes. 90a."
,k12b_7:" Kid. 52b."
,k12b_8:" For according to him the flesh is private property and alienable,"
,k12b_9:" I.e., as merely invited without having in them any proprietary rights."
,k12b_10:" M.Sh. I, 2."
,k12b_11:" Tem. 7b."
,k12b_12:" When no sacrifices are offered."
,k12b_13:" The priests would not have had in it a proprietary right nor have been able to use it for the betrothal of a woman."
,k12b_14:" Lev, V, 21."
,k12b_15:" Even in Temple times, since the text requires the offender to bring a trespass offering."
,k12b_16:" Where they are considered private property."
,k12b_17:" Tem. III. 5."
,k12b_18:" And since they need not be brought and sacrificed they are considered the private property of the priests as stated by R. Jose the Galilean. "
}

txt:
<p>
Did not Samuel say that if ten fields in ten different countries are sold, as soon as possession is taken of one of them, the transfer of all of them becomes effective?<a id="k12b_1"><sup>1</sup></a>&nbsp; &mdash; But even if your reasoning be followed [that it is in accordance with the version reading that slaves are considered personalty], why again the stipulation that the slaves be gathered on the land? Has it not been established that the personalty' need not be gathered on the land? You can therefore only say that there is a distinction in law between movable personalty<a id="k12b_2"><sup>2</sup></a>&nbsp; and immovable personalty. Likewise here also [we say] there is a distinction in law between movable realty<a id="k12b_3"><sup>3</sup></a>&nbsp; and immovable realty: slaves [if realty] are movable realty whereas there [in the case of the ten fields] land is but one block.
</p><p>
	THE [DAMAGED] PROPERTY MUST BE OF A KIND TO WHICH THE LAW OF SACRILEGE HAS NO APPLICATION etc. So long as [the penalty of] Sacrilege does not apply. Who is the Tanna [of this view]? &mdash; R. Johanan said: This is so in the case of minor sacrifices according to R. Jose the Galilean, who considers them to be private property; for it has been taught: <I>If a soul sin and commit a trespass against the Lord and lie unto his neighbour</I><a id="k12b_4"><sup>4</sup></a>&hellip; this indicates also minor sacrifices,<a id="k12b_5"><sup>5</sup></a>&nbsp; as these are considered private property;<a id="k12b_6"><sup>6</sup></a>&nbsp; so R. Jose the Galilean. But, behold, we have learnt: If one betroths [a woman] by means of the priestly portion, whether of major sacrifices or of minor sacrifices, the betrothal is not valid.<a id="k12b_7"><sup>7</sup></a>&nbsp; Are we to say that this Mishnah is not in accordance with R. Jose the Galilean?<a id="k12b_8"><sup>8</sup></a>&nbsp; &mdash; You may even reconcile it with R. Jose the Galilean; for R. Jose the Galilean confines his remark to sacrifices that are still alive, whereas, in the case of sacrifices that have already been slaughtered, even R. Jose the Galilean agrees that those who are entitled to partake of the flesh acquire this right as guests at the divine table.<a id="k12b_9"><sup>9</sup></a>&nbsp; But so long as the sacrifice is still alive, does he really maintain that it is private property? Behold, we have learnt: A firstling, if unblemished, may be sold only while alive; but if blemished [it may be sold] both while alive and when slaughtered. It may similarly be used for the betrothal of a woman.<a id="k12b_10"><sup>10</sup></a>&nbsp; And R. Nahman said on behalf of Rabbah b. Abbuha:<a id="k12b_11"><sup>11</sup></a>&nbsp; This is so only in the case of a firstling at the present time,<a id="k12b_12"><sup>12</sup></a>&nbsp; in which, on account of the fact that it is not destined to be sacrificed, the priests possess a proprietary right; but at the time when the Temple still existed, when it would have been destined to be sacrificed, the law would not have been so.<a id="k12b_13"><sup>13</sup></a>&nbsp; And Raba asked R. Nahman: [Was it not taught:] <I>If a soul sin and commit a trespass against the Lord and lie unto his neighbour&hellip;</I><a id="k12b_14"><sup>14</sup></a>&nbsp; this indicates also minor sacrifices, as these are considered private property;<a id="k12b_15"><sup>15</sup></a>&nbsp; this is the view of R. Jose the Galilean? And Rabina replied that the latter case<a id="k12b_16"><sup>16</sup></a>&nbsp; deals with firstlings from outside [Palestine] and is in accordance with R. Simeon, who maintains that if they were brought [to Palestine] in an unblemished condition, they will be sacrificed.<a id="k12b_17"><sup>17</sup></a>&nbsp; Now this is so only if they were brought [to Palestine, which implies that] there is no necessity to bring them there in the first instance for that specific purpose.<a id="k12b_18"><sup>18</sup></a>&nbsp; Now, if it is the fact that R. Jose the Galilean considers them private property while alive,
</P>


lvr: 41
dfh: a
notes:
 ntes={k13a_1:" Maintaining that a firstling is the private property of the priest."
,k13a_2:" I.e., the statement of R. Nahman that a firstling is not the private property of the priest."
,k13a_3:" The opponents of R. Jose the Galilean."
,k13a_4:" Even R. Jose regards them in no case as the property of the priest; all the Rabbis including R. Jose are thus unanimous on this matter. Hence Rabina was unable to explain the one Baraitha in accordance with R. Jose and the other in accordance with the Rabbis."
,k13a_5:" Even while the firstling is still alive."
,k13a_6:" Lev. V, 21."
,k13a_7:" Ibid. III, 2."
,k13a_8:" Num. XV, 8-II."
,k13a_9:" Lev. VII, 30-34."
,k13a_10:" The sacredness of which is of a lower degree and is not subject to all these rites. Consequently it should thus certainly be considered private property. It, of course, deals with a firstling outside Palestine which is not destined to he sacrificed."
,k13a_11:" Of cattle dealt with in Lev. XXVII, 32-33."
,k13a_12:" Num. XVIII, 17, the text is taken not to include alienation, in which case the sanctity of the firstling is not affected."
,k13a_13:" Lev XXVII, 33; in this case, on account of <i>Gezerah Shawah</i>. i.e. a similarity of phrases between ibid. and verse 28, the right of alienation is included; cf, Bek. 32a."
,k13a_14:" Tem. 8a. Because it is not private property."
,k13a_15:" Ex. XIII, 12."
,k13a_16:" That they should certainly be private property."
,k13a_17:" Tem. 8a."
,k13a_18:" Num. XVIII, 17."
,k13a_19:" Lev. XXVII, 33."
,k13a_20:" Excluding thus everything else, even peace-offerings."
,k13a_21:" I.e. is not holy at all."
,k13a_22:" While still <i>Tam</i>, when the payment must be made out of the body of the doer of the damage, v. <i>infra</i> p. 73."
,k13a_23:" According to R. Jose the Galilean who maintains, <i>supra</i> p. 50, that minor sacrifices are considered private property."
,k13a_24:" The part which has to he burnt on the altar; cf. Lev. III, 3-4."
,k13a_25:" <i>Infra</i> 53a. where in the case of an ox pushing somebody else's animal into a pit, the owner of the pit pays nothing, though the owner of the ox does not pay full damages."
,k13a_26:" Who makes the owner of the pit also pay."
,k13a_27:" I.e., the ox and the pit, v. p. 53. n. 12."
,k13a_28:" Such as in the case of peace-offerings dealt with by R. Abba. "
}

txt:
<p>
why [did Rabina] not reply that the one<a id="k13a_1"><sup>1</sup></a>&nbsp; is in accordance with R. Jose the Galilean, and the other<a id="k13a_2"><sup>2</sup></a>&nbsp; in accordance with the Rabbis?<a id="k13a_3"><sup>3</sup></a>&nbsp; &mdash; It was said in answer: How can you refer to priestly gifts? Priestly gifts are altogether different<a id="k13a_4"><sup>4</sup></a>&nbsp; as those who are entitled to them enjoy that privilege as guests at the divine table.<a id="k13a_5"><sup>5</sup></a>
</p><p>
	[To refer to] the main text: <I>If a soul sin and commit a trespass against the Lord and lie unto his neighbour</I>:<a id="k13a_6"><sup>6</sup></a>&nbsp; this indicates also minor sacrifices; this is the view of R. Jose the Galilean. Ben 'Azzai says that it indicates [also] peace-offerings. Abba Jose b. Dostai said that Ben 'Azzai meant to include only the firstling.
</p><p>
	The Master said:<a id="k13a_6"><sup>6</sup></a>&nbsp; 'Ben Azzai says that it indicates [also] peace-offerings.' What does he mean to exclude? It can hardly be the firstling, for if in the case of peace-offerings which are subject to the laws of leaning,<a id="k13a_7"><sup>7</sup></a>&nbsp; libations<a id="k13a_8"><sup>8</sup></a>&nbsp; and the waving of the breast and shoulder,<a id="k13a_9"><sup>9</sup></a>&nbsp; you maintain that they are private property, what question could there be about the firstling?<a id="k13a_10"><sup>10</sup></a>&nbsp; &mdash; R. Johanan therefore said: He meant to exclude the tithe,<a id="k13a_11"><sup>11</sup></a>&nbsp; as taught: In the case of the firstling, it is stated, Thou shalt not redeem;<a id="k13a_12"><sup>12</sup></a>&nbsp; it may, however, if unblemished be sold while alive, and if blemished [it may be sold] alive or slaughtered; in the case of the tithe it is stated, It shall not be redeemed,<a id="k13a_13"><sup>13</sup></a>&nbsp; and it can be sold neither alive nor slaughtered neither when unblemished nor when blemished.<a id="k13a_14"><sup>14</sup></a>&nbsp; Rabina connected all the above discussion with the concluding clause: 'Abba Jose b. Dostai said that Ben 'Azzai meant to include only the firstling.' What does he mean to exclude? It can hardly be peace-offerings, for if the firstling which is holy from the very moment it opens the matrix,<a id="k13a_15"><sup>15</sup></a>&nbsp; is private property, what question could there be about peace-offerings?<a id="k13a_16"><sup>16</sup></a>&nbsp; &mdash; R. Johanan therefore said: He meant to exclude the tithe, as taught:<a id="k13a_17"><sup>17</sup></a>&nbsp; In regard to the firstling it is stated, Thou shalt not redeem;<a id="k13a_18"><sup>18</sup></a>&nbsp; it may, however, if unblemished be sold while alive and if blemished [it may be sold] alive or slaughtered; in regard to the tithe it is stated, It shall not be redeemed,<a id="k13a_19"><sup>19</sup></a>&nbsp; and it can be sold neither while alive nor when slaughtered, neither when unblemished nor blemished. But does he not say, 'The firstling alone'?<a id="k13a_20"><sup>20</sup></a>&nbsp; This is a difficulty indeed!
</p><p>
	Raba [on the other hand] said: What is meant by 'THE [DAMAGED] PROPERTY MUST BE OF A KIND TO WHICH THE LAW OF SACRILEGE HAS NO APPLICATION' is that the property is not of a class to which the law of sacrilege may have any reference<a id="k13a_21"><sup>21</sup></a>&nbsp; but is such as is owned privately. But why does not the text say. 'Private property'? &mdash; This is a difficulty indeed!
</p><p>
	R. Abba said: In the case of peace-offerings that did damage,<a id="k13a_22"><sup>22</sup></a>&nbsp; payment will be made<a id="k13a_23"><sup>23</sup></a>&nbsp; out of their flesh but no payment could be made out of their emurim.<a id="k13a_24"><sup>24</sup></a>&nbsp; Is it not obvious that the emurim will go up [and be burnt] on the altar? &mdash; No; we require to be told that no payment will be made out of the flesh for the proportion due from the emurim. But according to whose authority is this ruling made? If according to the Rabbis,<a id="k13a_25"><sup>25</sup></a>&nbsp; is this not obvious? Do they not maintain that when payment cannot be recovered from one party, it is not requisite to make it up from the other party? If according to R. Nathan,<a id="k13a_26"><sup>26</sup></a>&nbsp; [it is certainly otherwise] for did he not say that when no payment can be made from one party, it has to be made up from the other party? &mdash; If you wish, you may say: The ruling was made in accordance with R. Nathan; or, if you wish, you may say that it was made in accordance with the Rabbis. You may say that it was made in accordance with the Rabbis, for their ruling is confined to a case where the damage was done by two separate agencies,<a id="k13a_27"><sup>27</sup></a>&nbsp; whereas, in the case of one agency,<a id="k13a_28"><sup>28</sup></a>&nbsp; the plaintiff may be justified in demanding payment from whatever source he finds it convenient. Alternatively you may say that the ruling was made in accordance with R. Nathan, for it is only there [in the case of an ox pushing another's ox in a pit] that the owner of the damaged ox is entitled to say to the owner of the pit, 'I have found my ox in your pit; whatever is not paid to me by your co-defendant must be made up by you;'
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k13b_1:" Hence the flesh need not pay for the emurim."
,k13b_2:" While still <i>Tam</i>, in which case the payment must he made out of the body of the damage-doer, as <i>infra</i> p. 73."
,k13b_3:" In accordance with R. Jose the Galilean that minor sacrifices are private property."
,k13b_4:" I.e., accompanying the offering, cf. Lev. VII, 12-13."
,k13b_5:" That the bread need not pay, since the bread did not do any damage."
,k13b_6:" After the offering of the sacrifice."
,k13b_7:" I.e., (as a rule) the defendant."
,k13b_8:" Who does not recognise the covenant of Law, and who does not consider himself bound to control his own cattle from doing damage to others."
,k13b_9:" V. <i>infra</i> p. 211 and note 6."
,k13b_10:" V. <i>infra</i> 35a. 'Owned' thus means 'known to belong to a particular defendant.'"
,k13b_11:" Tosef. B.K. I, 1."
,k13b_12:" In which case the plaintiff will recover nothing."
,k13b_13:" <i>Infra</i> p. 254."
,k13b_14:" Ex. XXI, 29."
,k13b_15:" I.e., where the ox is privately owned all through."
,k13b_16:" For which there is no liability in a public thoroughfare; cf. <i>supra</i> p. 17."
,k13b_17:" Even by Tooth and Foot."
,k13b_18:" For which there is liability even in a public thoroughfare"
,k13b_19:" Who maintains, <i>supra</i> pp. 9-11, that <I>Mab'eh</I> in the Mishnaic text denotes Tooth, and Ox signifies Foot, whereas Horn has not been dealt with explicitly."
,k13b_20:" <i>Supra</i> p. 10; so that Horn has already been dealt with in the first Mishnah."
,k13b_21:" Of a sound structure, cf. <i>infra</i> 55b-56a"
,k13b_22:" The borrower being responsible for the damage done by the ox whilst under his charge. V. <i>infra</i> 44b"
,k13b_23:" As laid down in Ex. XXII. 13."
,k13b_24:" I.e., in the case of the borrower's ox having been <i>Tam</i>. "
}

txt:
<p>
but in the case in hand, could the plaintiff say, 'The flesh did the damage and the emurim did no damage'?<a id="k13b_1"><sup>1</sup></a>
</p><p>
	Raba said: In the case of a thanksgiving-offering that did damage,<a id="k13b_2"><sup>2</sup></a>&nbsp; payment will be made<a id="k13b_3"><sup>3</sup></a>&nbsp; out of the flesh but no payment could be made out of its bread.<a id="k13b_4"><sup>4</sup></a>&nbsp; 'Bread'! Is this not obvious?<a id="k13b_5"><sup>5</sup></a>&nbsp; &mdash; He wanted to lead up to the concluding clause: The plaintiff partakes of the flesh,<a id="k13b_6"><sup>6</sup></a>&nbsp; while he, for whose atonement the offering is dedicated,<a id="k13b_7"><sup>7</sup></a>&nbsp; has to bring the bread. Is not this also obvious? &mdash; You might have thought that since the bread is but an accessory to the sacrifice,<a id="k13b_4"><sup>4</sup></a>&nbsp; the defendant may be entitled to say to the plaintiff. 'If you will partake of the flesh, why should I bring the bread?' It is therefore made known to us [that this is not the case, but] that the bread is an obligation upon the original owner of the sacrifice.
</p><p>
	THE [DAMAGED] PROPERTY SHOULD BELONG TO PERSONS WHO ARE UNDER [THE JURISDICTION OF] THE LAW. What [person] is thereby meant to be excepted? If a heathen,<a id="k13b_8"><sup>8</sup></a>&nbsp; is not this explicitly stated further on: 'An ox of an Israelite that gored an ox of a heathen is not subject to the general law of liability for damage'?<a id="k13b_9"><sup>9</sup></a>&nbsp; &mdash; That which has first been taught by implication is subsequently explained explicitly.
</p><p>
	THE PROPERTY SHOULD BE OWNED. What is thereby excepted? &mdash; Rab Judah said: It excepts the case [of alternative defendants] when the one pleads. 'It was your ox that did the damage,' and the other pleads. 'It was your ox that did the damage.' But is not this explicitly stated further on: If two oxen pursue another ox, and one of the defendants pleads. 'It was your ox that did the damage,' and the other defendant pleads, 'It was your ox that did the damage,' no liability could be attached to either of them?<a id="k13b_10"><sup>10</sup></a>&nbsp; &mdash; What is first taught by implication is subsequently explained explicitly. In a Baraitha it has been taught: The exception refers to ownerless property.<a id="k13b_11"><sup>11</sup></a>&nbsp; But in what circumstances? It can hardly be where an owned ox gored an ownerless ox, for who is there to institute an action? If on the other hand an ownerless ox gored an owned ox, why not go and take possession of the ownerless doer of the damage? &mdash; Somebody else has meanwhile stepped in and already acquired title to it.<a id="k13b_12"><sup>12</sup></a>&nbsp; Rabina said: It excepts an ox which gored and subsequently became consecrated or an ox which gored and afterwards became ownerless.<a id="k13b_12"><sup>12</sup></a>&nbsp; It has also been taught thus: Moreover said R. Judah:<a id="k13b_13"><sup>13</sup></a>&nbsp; Even if after having gored, the ox was consecrated by the owner, or after having gored it was declared by him ownerless, he is exempt, as it is said, And it hath been testified to his owner and he hath not kept it in, but it hath killed a man or a woman; the ox shall be stoned.<a id="k13b_14"><sup>14</sup></a>&nbsp; That is so only where conditions are the same at the time of both the manslaughter and the appearance before the Court.<a id="k13b_15"><sup>15</sup></a>&nbsp; Does not the final verdict also need to comply with this same condition? Surely the very verse, The ox shall be stoned, circumscribes also the final verdict! &mdash; Read therefore: That is so only when conditions are the same at the time of the manslaughter and the appearance before the Court and the final verdict.<a id="k13b_15"><sup>15</sup></a>
</p><p>
	WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT: Because he may argue against the plaintiff, 'What was your ox doing on my premises?' OR PREMISES OWNED [JOINTLY] BY PLAINTIFF AND DEFENDANT. R. Hisda said on behalf of Abimi: [Where damage is done] in jointly owned courts, there is liability for Tooth and Foot,<a id="k13b_16"><sup>16</sup></a>&nbsp; and the [Mishnah] text is to be read thus: WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT, where there is exemption. but in the case of PREMISES OWNED [JOINTLY] BY PLAINTIFF AND DEFENDANT, WHENEVER DAMAGE HAS OCCURRED,<a id="k13b_17"><sup>17</sup></a>&nbsp; THE OFFENDER IS LIABLE. R. Eleazar [on the other hand] said: There is no liability there for Tooth and Foot,<a id="k13b_16"><sup>16</sup></a>&nbsp; and the text is to be understood thus: WITH THE EXCEPTION OF PREMISES OWNED BY THE DEFENDANT OR [OF] PREMISES OWNED [JOINTLY] BY PLAINTIFF AND DEFENDANT, where there is also exemption. But WHENEVER DAMAGE HAS OCCURRED [otherwise] THE OFFENDER IS LIABLE etc. introduces Horn.<a id="k13b_18"><sup>18</sup></a>&nbsp; This would be in conformity with Samuel,<a id="k13b_19"><sup>19</sup></a>&nbsp; but according to Rab, who affirmed that ox in the Mishnaic text was intended to include all kinds of damage done by ox,<a id="k13b_20"><sup>20</sup></a>&nbsp; what was meant to be introduced by the clause, THE OFFENDER IS LIABLE? &mdash; To introduce that which our Rabbis have taught: WHENEVER DAMAGE HAS OCCURRED THE OFFENDER IS LIABLE introduces liability in the case of a paid bailee and a borrower, an unpaid bailee and a hirer, where the animal in their charge did damage, <i>Tam</i> paying half-damages and <i>Mu'ad</i> paying full damages. If, however, a wall<a id="k13b_21"><sup>21</sup></a>&nbsp; broke open at night, or robbers took it by force and it went out and did damage, there is exemption.
</p><p>
	The Master said: 'WHENEVER DAMAGE HAS OCCURRED, THE OFFENDER IS LIABLE introduces liability in the case of an unpaid bailee and a borrower, a paid bailee and a hirer'. Under what circumstances? If the ox of the lender damaged the ox of the borrower, why should not the former say to the latter: 'If my ox had damaged somebody else's, you would surely have had to compensate;<a id="k13b_22"><sup>22</sup></a>&nbsp; now that my ox has damaged your own ox, how can you claim compensation from me?' Again, if the ox of the borrower damaged the ox of the lender, why should not the latter say to the former: 'If my ox had been damaged by somebody else's, you would surely have had to compensate me for the full value of the ox,<a id="k13b_23"><sup>23</sup></a>&nbsp; now that the damage resulted from your ox, how can you offer me half damages?<a id="k13b_24"><sup>24</sup></a>&nbsp; &mdash; It must therefore still be that the ox of the lender damaged the ox of the borrower, but we deal with a case where he [the borrower] has taken upon himself responsibility for the safety of the ox
</P>


lvr: 41
dfh: a
notes:
 ntes={k14a_1:" In which case the lender still remains liable for any damage his ox may do."
,k14a_2:" That R. Eleazar exempts Tooth and Foot doing damage in jointly owned premises."
,k14a_3:" And my view is supported by one of them."
,k14a_4:" Tosef. B.K. I, 6."
,k14a_5:" Thus fully supporting the view of R. Eleazar and contradicting the teaching of R. Joseph's Baraitha."
,k14a_6:" I.e., by both plaintiff and defendant."
,k14a_7:" For the defendant had no right to allow his cattle to be there, and is therefore liable for Tooth, etc."
,k14a_8:" I.e., of R. Joseph."
,k14a_9:" Recording the view of R. Simeon b. Eleazar."
,k14a_10:" I.e., by both plaintiff and defendant."
,k14a_11:" Ex. XXII, 4; implying that the field should belong exclusively to the plaintiff."
,k14a_12:" For the defendant had no right to allow his cattle to be there, and is therefore liable for Tooth, etc."
,k14a_13:" [Identified with Dibtha near the famous city of Washit on the Tigris, Obermeyer, <i>op. cit</i>. p. 197]."
,k14a_14:" I.e., that of R. Joseph and that of R. Simeon b. Eleazar."
,k14a_15:" R. Hisda and R. Eleazar."
,k14a_16:" R. Hisda deals with a case where the keeping of cattle has not been permitted, while R. Eleazar deals with the case when the premises have been set aside for that also."
,k14a_17:" When the premises have been set aside not for cattle, but for the keeping of fruit."
,k14a_18:" R. Hisda is of Abaye's opinion. whereas R. Eleazar prefers R. Zera's reasoning."
,k14a_19:" Which would mean for all kinds of damage."
,k14a_20:" Cf. <i>infra</i> 24b."
,k14a_21:" Ex. XXII, 4, indicating that the field has to belong to the plaintiff."
,k14a_22:" Cf. <i>infra</i> 24b."
,k14a_23:" [Lit., (i) 'sharp one', i.e., scholar with keen and sharp mind; (ii) 'long-toothed', denoting a facial characteristic; (iii) 'translator', Rab Judah being so called on account of his frequent translation of Mishnaic terms into the vernacular Aramaic, Golomb, D. Targumno I, Introduction, XLVff.]"
,k14a_24:" [Give up your attempt to harmonize the two contradictory clauses.]"
,k14a_25:" As the right to keep fruits there is exclusively the plaintiff's."
,k14a_26:" For they both may keep cattle there."
,k14a_27:" Since in principle they are only three in number: (a) exclusively the plaintiff's premises. (b) exclusively the defendant's, and (c) partnership premises. "
}

txt:
<p>
but not responsibility for any damage [that it may do].<a id="k14a_1"><sup>1</sup></a>&nbsp; If so, explain the concluding clause: 'If a wall broke open at night, or if robbers took it by force and it went out and did damage, there is exemption.' From this it may surely be inferred that [if this had happened] in the daytime, the borrower would have been liable. Why so, if he did not take upon himself responsibility for any damage [that it may do]? &mdash; The meaning must be as follows: [But] if he has taken upon himself responsibility for damage [that it may do], he would be liable to compensate, yet, if a wall broke open at night, or if robbers took it by force and it went out and did damage there is exemption [in such a case]. 
</p><p>
	Is it really so?<a id="k14a_2"><sup>2</sup></a>&nbsp; Did not R. Joseph learn: In the case of jointly owned premises or an inn, there is liability for Tooth and for Foot? Is not this a refutation of R. Eleazar? &mdash; R. Eleazar may answer you as follows: Do you really think so? Are Baraithas not divided [in their opinions] on the matter?<a id="k14a_3"><sup>3</sup></a>&nbsp; For it was taught:<a id="k14a_4"><sup>4</sup></a>&nbsp; 'Four general rules were stated by R. Simeon b. Eleazar to apply to the laws of torts: [In the case of damage done in] premises owned by the plaintiff and not at all by the defendant, there is liability in all; if owned by the defendant and not at all by the plaintiff, there is total exemption; but if owned by the one and the other, e.g., jointly owned premises or a valley, there is exemption for Tooth and for Foot, whereas for goring, pushing, biting, falling down, and kicking, <i>Tam</i> pays half-damages and <i>Mu'ad</i> pays full damages; if not owned by the one and the other, e.g., premises not belonging to them both, there is liability for Tooth and for Foot, whereas for goring, pushing, biting, falling down, and kicking, <i>Tam</i> pays half-damages and <i>Mu'ad</i> pays full damages.' It has thus been taught here that in the case of jointly owned premises or a valley there is exemption for Tooth and Foot.<a id="k14a_5"><sup>5</sup></a>
</p><p>
	Do then the two Baraithas contradict each other? &mdash; The latter Baraitha speaks of a case where the premises were set aside by the one and the other<a id="k14a_6"><sup>6</sup></a>&nbsp; for the purposes of both keeping fruits and keeping cattle in, whereas that of R. Joseph deals with premises set aside for keeping fruits in but not cattle, in which case so far as Tooth is concerned the premises are in practice the plaintiff's ground.<a id="k14a_7"><sup>7</sup></a>&nbsp; In fact the context points to the same effect. In the Baraitha here<a id="k14a_8"><sup>8</sup></a>&nbsp; the jointly owned premises are put on the same footing as an inn whereas in the Baraitha there<a id="k14a_9"><sup>9</sup></a>&nbsp; they are put on the same footing as a valley. This is indeed proved. R. Zera, however, demurred: In the case of premises which are set aside for the purpose of keeping fruits [of the one and the other].<a id="k14a_10"><sup>10</sup></a>&nbsp; how shall we comply with the requirement, and it feed in another man's field,<a id="k14a_11"><sup>11</sup></a>&nbsp; which is lacking in this case? &mdash; Abaye said to him: Since the premises are not set aside for keeping cattle in, they may well be termed 'another man's field.'<a id="k14a_12"><sup>12</sup></a>
</p><p>
	R. Aha of Difti<a id="k14a_13"><sup>13</sup></a>&nbsp; said to Rabina: May we say that just as the Baraithas<a id="k14a_14"><sup>14</sup></a>&nbsp; are not divided on the matter so also are the Amoraim<a id="k14a_15"><sup>15</sup></a>&nbsp; not divided on the subject?<a id="k14a_16"><sup>16</sup></a>&nbsp; He answered him: Indeed, it is so; if, however, you think that they are divided [in their views].<a id="k14a_17"><sup>17</sup></a>&nbsp; the objection of R. Zera and the answer of Abaye form the point at issue.<a id="k14a_18"><sup>18</sup></a>
</p><p>
	[To revert] to the above text: 'Four general rules were stated by R. Simeon b. Eleazar to apply to the laws of torts: [Where damage is done in] premises owned by the plaintiff, and not at all by the defendant, there is liability in all.' It is not stated 'for all'<a id="k14a_19"><sup>19</sup></a>&nbsp; but 'in all', i.e., in the whole of the damage; is it not in accordance with R. Tarfon who maintains that the unusual damage occasioned by Horn in the plaintiff's premises will be compensated in full.<a id="k14a_20"><sup>20</sup></a>&nbsp; Read, however, the concluding clause: 'If not owned by the one and the other, e.g., premises not belonging to them both, there is liability for Tooth and for Foot.' Now, what is the meaning of 'not owned by the one and the other'? It could hardly mean 'owned neither by the one nor by the other, but by somebody else,' for have we not to comply with the requirement, and it feed in another man's field,<a id="k14a_21"><sup>21</sup></a>&nbsp; which is lacking in this case? It means therefore, of course, not owned by them both, but exclusively by the plaintiff,' and yet it is stated in the concluding clause, 'Tam pays half-damages and <i>Mu'ad</i> pays full damages,' which follows the view of the Rabbis who maintain that the unusual damage occasioned by Horn in the plaintiff's premises will still be compensated only by half-damages.<a id="k14a_22"><sup>22</sup></a>&nbsp; Will the commencing clause be according to R. Tarfon and the concluding clause according to the Rabbis? &mdash; Yes, even as Samuel said to Rab Judah: Shinena,<a id="k14a_23"><sup>23</sup></a>&nbsp; leave this Baraitha alone,<a id="k14a_24"><sup>24</sup></a>&nbsp; and follow my view that the commencement of the Baraitha is according to R. Tarfon and its conclusion according to the Rabbis. Rabina, however, said in the name of Raba: The whole Baraitha is according to R. Tarfon; what is meant by 'not owned by the one and the other' is that the right of keeping fruits there is owned not by both, the one and the other, but exclusively by the plaintiff, whereas the right of keeping cattle there is owned by both, the one and the other. In the case of Tooth the premises are in practice the plaintiff's ground,<a id="k14a_25"><sup>25</sup></a>&nbsp; whereas in the case of Horn they are jointly owned ground.<a id="k14a_26"><sup>26</sup></a>&nbsp; If so, how are the rules four in number?<a id="k14a_27"><sup>27</sup></a>&nbsp; Are they not only three? &mdash; R. Nahman b. Isaac replied:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k14b_1:" [ I.e.. partnership premises may he subdivided into two: (a) where both have the right to keep fruit, as well as cattle; (b) where the right to keep fruit is exclusively the plaintiff's.]"
,k14b_2:" Tosef. B.K., I."
,k14b_3:" 'Money's worth' would thus mean 'property which could not be said to be worth less than the price paid for it,' and is thus never subject to the law of deception. This holds good with immovable property; cf. B.M. 56a."
,k14b_4:" Cf. B.M. ibid."
,k14b_5:" Kid. 26a."
,k14b_6:" Cf. Kid. 23b."
,k14b_7:" [Tosaf. deletes 'deeds' as these are not acquired by money but by <i>Mesirah</i> (v. <a href=\"../tglossary.html\">Glos.</a>). cf. B.B. 76a.]"
,k14b_8:" I.e., immovable property."
,k14b_9:" As these could easily be converted into money, v. <i>supra</i> p. 26."
,k14b_10:" Ex. XXI, 34."
,k14b_11:" <i>Supra</i> p. 24."
,k14b_12:" Who have to pay only out of the realty of the estate but not out of the personalty; cf. <i>supra</i> p. 31."
,k14b_13:" Keth. 84b."
,k14b_14:" Is taken to mean 'the payment in kind is made out of the possessions which are in the presence of the Court', i.e., not disposed of."
,k14b_15:" Whereas the law is definitely otherwise as in B.B. X, 8."
,k14b_16:" IN THE PRESENCE OF THE COURT does not refer to payment in kind but to the valuation which has to be made by qualified judges, v. <i>infra</i> 84b."
,k14b_17:" <i>Infra</i> p. 429. "
}

txt:
<p>
The rules are three in number, but the places to which they apply may be divided into four.<a id="k14b_1"><sup>1</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. THE VALUATION [IS MADE] IN MONEY [BUT MAY BE PAID] BY MONEY'S WORTH, IN THE PRESENCE OF THE COURT AND ON THE EVIDENCE OF WITNESSES WHO ARE FREE MEN AND PERSONS UNDER THE JURISDICTION OF THE LAW. WOMEN ARE ALSO SUBJECT TO THE LAW OF TORTS. [BOTH] THE PLAINTIFF AND DEFENDANT ARE INVOLVED IN THE PAYMENT.
</p><p>
	<B><I>GEMARA</I></B>. What is the meaning of THE VALUATION IN MONEY? Rab Judah said: This valuation must be made only in specie. We thus learn here that which has been taught by our Rabbis elsewhere:<a id="k14b_2"><sup>2</sup></a>&nbsp; In the case of a cow damaging a garment while the garment also damaged the cow, it should not be said that the damage done by the cow is to be set off against the damage done to the garment and the damage done to the garment against the damage done to the cow, the respective damages have to be estimated at a money value.
</p><p>
	BY MONEY'S WORTH. [This is explained by what] our Rabbis taught [elsewhere]:<a id="k14b_2"><sup>2</sup></a>&nbsp; 'MONEY'S WORTH' implies that the Court will not have recourse for distraint save to immovable property. Nevertheless if the plaintiff himself seized some chattels beforehand, the Court will collect payment for him out of them.
</p><p>
	The Master stated: "'MONEY'S WORTH" implies that the Court will not have recourse for distraint save to immovable property. How is this implied? Rabbah b. 'Ulla said: The article of distress has to be worth all that is paid for it [in money].<a id="k14b_3"><sup>3</sup></a>&nbsp; What does this mean? An article which is not subject to the law of deception?<a id="k14b_4"><sup>4</sup></a>&nbsp; Are not slaves and deeds also not subject to the law of deception?<a id="k14b_4"><sup>4</sup></a>&nbsp; &mdash; Rabbah b. 'Ulla therefore said: An article, title to which is acquired by means of money.<a id="k14b_5"><sup>5</sup></a>&nbsp; Are not slaves<a id="k14b_6"><sup>6</sup></a>&nbsp; and deeds<a id="k14b_7"><sup>7</sup></a>&nbsp; similarly acquired by means of money.<a id="k14b_6"><sup>6</sup></a>&nbsp; R. Ashi therefore said: 'Money's worth' implies that which has money's worth,<a id="k14b_8"><sup>8</sup></a>&nbsp; whereas chattels are considered actual money.<a id="k14b_9"><sup>9</sup></a>
</p><p>
	Rab Judah b. Hinena pointed out the following contradiction to R. Huna the son of R. Joshua: It has been taught: 'MONEY'S FORTH implies that the Court will not have recourse for distraint save to immovable property; behold, was it not taught: He shall return<a id="k14b_10"><sup>10</sup></a>&nbsp; includes 'money's worth', even bran?<a id="k14b_11"><sup>11</sup></a>&nbsp; &mdash; [In the former Baraitha] we are dealing with a case of heirs.<a id="k14b_12"><sup>12</sup></a>&nbsp; If we are dealing with heirs read the concluding clause: 'If the plaintiff himself seized some chattels beforehand, the Court will collect payment for him out of them.' Now, if we are dealing with heirs, how may the Court collect payment for him out of them? &mdash; As already elsewhere<a id="k14b_13"><sup>13</sup></a>&nbsp; stated by Raba on behalf of R. Nahman, that the plaintiff seized [the chattels] while the original defendant was still alive, so here too, the seizure took place while the defendant was still alive.
</p><p>
	IN THE PRESENCE OF THE COURT,<a id="k14b_14"><sup>14</sup></a>&nbsp; [apparently] exempts a case where the defendant sold his possessions before having been summoned to Court. May it hence be derived that in the case of one who borrowed money and sold his possessions before having been summoned to Court, the Court does not collect the debt out of the estate which has been disposed of?<a id="k14b_15"><sup>15</sup></a>&nbsp; &mdash; The text therefore excepts a Court of laymen.<a id="k14b_16"><sup>16</sup></a>
</p><p>
	ON THE EVIDENCE OF WITNESSES, thus excepting a confession of [an act punishable by] a fine for which subsequently there appeared witnesses, in which case there is exemption. That would accord with the view that in the case of a confession of [an act punishable by] a fine, for which subsequently there appeared witnesses, there is exemption;<a id="k14b_17"><sup>17</sup></a>&nbsp; but according to the opposite view that in the case of a confession of [an act punishable by] a fine for which subsequently appeared witnesses, there is liability,<a id="k14b_17"><sup>17</sup></a>&nbsp; what may be said [to be the import of the text]? &mdash; The important point comes in the concluding clause:
</P>


lvr: 41
dfh: a
notes:
 ntes={k15a_1:" From giving evidence,"
,k15a_2:" V. <i>supra</i> p. 36. n. 3."
,k15a_3:" As his issue were considered the property of the owner, there being no parental relationship between him and them; cf. <i>infra</i> p. 508."
,k15a_4:" Of free descent; cf. Yeb. 62a."
,k15a_5:" Applicable to females; v. Hag. 4a."
,k15a_6:" Cf. Kid. 35a."
,k15a_7:" Num. V, 6. This quotation deals with certain laws of atonement."
,k15a_8:" Ex. XXI. I."
,k15a_9:" Ibid. XXI, 29."
,k15a_10:" Dealing with atonement."
,k15a_11:" Positive precepts prescribed for a definite time or certain periods do not as a rule apply to females; cf. Kid. 29a."
,k15a_12:" Keth. 41a."
,k15a_13:" Paid for damage done by (Horn of) <i>Tam</i>"
,k15a_14:" [H] <I>Kenas</I>, v. <a href=\"../tglossary.html\">Glos.</a>"
,k15a_15:" Lit. 'are not presumed to he safe'."
,k15a_16:" As it was the effect of carelessness on the part of the owner."
,k15a_17:" Lit., are presumed to be safe'."
,k15a_18:" Since the owner could not have expected that his cattle would start goring."
,k15a_19:" Who is in this way involved in the payment."
,k15a_20:" <i>Supra</i> p. 36."
,k15a_21:" <i>Supra</i>, p. 42."
,k15a_22:" That it is the plaintiff who has to sustain any loss occasioned by a decrease in the value of the carcass."
,k15a_23:" Mishnah, <i>infra</i> 16b."
,k15a_24:" As penal liabilities are not created by admission; v. <i>supra</i> 5a."
,k15a_25:" V. <i>supra</i> p. 39, n. I."
,k15a_26:" [While a <i>Mu'ad</i> has to pay full compensation (Kofer, v. <a href=\"../tglossary.html\">Glos.</a>) for manslaughter. Ex XXI, 25-30, a <i>Tam</i> does not compensate even by half; v. <i>infra</i> 41b.]"
,k15a_27:" <i>infra</i> 26a. "
}

txt:
<p>
FREE MEN AND PERSONS UNDER THE JURISDICTION OF THE LAW. 'FREE MAN' excludes slaves;<a id="k15a_1"><sup>1</sup></a>&nbsp; 'PERSONS UNDER THE JURISDICTION OF THE LAW'<a id="k15a_2"><sup>2</sup></a>&nbsp; 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] pedigree<a id="k15a_3"><sup>3</sup></a>&nbsp; whereas a heathen who possesses a [legal] pedigree<a id="k15a_4"><sup>4</sup></a>&nbsp; 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 commandments<a id="k15a_5"><sup>5</sup></a>&nbsp; might have been thought not to have been excluded. It was thus essential to exclude each of them independently.
</p><p>
	WOMEN ARE ALSO SUBJECT TO THE LAW OF TORTS. Whence is derived this ruling? &mdash; Rab Judah said on behalf of Rab, and so was it also taught at the school of R. Ishmael:<a id="k15a_6"><sup>6</sup></a>&nbsp; Scripture states, <I>When a man or woman shall commit any sin</I>.<a id="k15a_7"><sup>7</sup></a>&nbsp; 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.<a id="k15a_8"><sup>8</sup></a>&nbsp; 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.<a id="k15a_9"><sup>9</sup></a>&nbsp; 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 inference<a id="k15a_10"><sup>10</sup></a>&nbsp; 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.<a id="k15a_11"><sup>11</sup></a>&nbsp; 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.
</p><p>
	THE PLAINTIFF AND DEFENDANT ARE INVOLVED IN THE PAYMENT.
</p><p>
	It has been stated:<a id="k15a_12"><sup>12</sup></a>&nbsp; The liability of half-damages<a id="k15a_13"><sup>13</sup></a>&nbsp; is said by R. Papa to be civil, whereas R. Huna the son of R. Joshua considers it to be penal.<a id="k15a_14"><sup>14</sup></a>&nbsp; R. Papa said that it is civil, for he maintains that average cattle cannot control themselves not to gore.<a id="k15a_15"><sup>15</sup></a>&nbsp; Strict justice should therefore demand full payment [in case of damage].<a id="k15a_16"><sup>16</sup></a>&nbsp; It was only Divine Law that exercised mercy [and released half payment] on account of the fact that the cattle have not yet become <i>Mu'ad</i>. 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.<a id="k15a_17"><sup>17</sup></a>&nbsp; Justice should really require no payment at all.<a id="k15a_18"><sup>18</sup></a>&nbsp; It was Divine Law that imposed [upon the owner] a fine [in case of damage] so that additional care should be taken of cattle.
</p><p>
	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? &mdash; This may apply to the loss caused by a decrease in the value of the carcass [which is sustained by the plaintiff].<a id="k15a_19"><sup>19</sup></a>&nbsp; 'A decrease in the value of the carcass'! Has not this ruling been laid down in a previous Mishnah: 'To compensate for the damage'<a id="k15a_20"><sup>20</sup></a>&nbsp; implying that the owners [plaintiffs] have to retain the carcass as part payment?<a id="k15a_21"><sup>21</sup></a>&nbsp; &mdash; One Mishnah gives the law in the case of <i>Tam</i> whereas the other deals with <i>Mu'ad</i>. Moreover these independent indications<a id="k15a_22"><sup>22</sup></a>&nbsp; are of importance: For were the ruling laid down only in the case of <i>Tam</i>, it might have been accounted for by the fact that the animal has not yet become <i>Mu'ad</i>, whereas in the case of <i>Mu'ad</i> 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 <i>Mu'ad</i>, it might have been explained as due to the fact that the damage is compensated in full, whereas in the case of <i>Tam</i> I might have thought that the law is otherwise. The independent indications were thus essential.
</p><p>
	Come and hear: What is the difference [in law] between <i>Tam</i> and <i>Mu'ad</i>? In the case of <i>Tam</i>, half-damages are paid, and only out of the body [of the tort-feasant cattle], whereas in the case of <i>Mu'ad</i> full payment is made out of the best of the estate.<a id="k15a_23"><sup>23</sup></a>&nbsp; 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 <i>Tam</i> no liability is created by mere admission,<a id="k15a_24"><sup>24</sup></a>&nbsp; while in the case of <i>Mu'ad</i> liability is established also by mere admission'? &mdash; This Mishnah stated [some points] and omitted [others]. But what else did it omit that the omission of that particular point should be justified?<a id="k15a_25"><sup>25</sup></a>&nbsp; &mdash; It also omitted the payment of half-<i>kofer</i> [for manslaughter].<a id="k15a_26"><sup>26</sup></a>&nbsp; The absence of half-<i>kofer</i> [for manslaughter], however, is no omission, as the Mishnah may be in accordance with R. Jose the Galilean who maintains that <i>Tam</i> is not immune from half-liability for <i>kofer</i> [for manslaughter].<a id="k15a_27"><sup>27</sup></a>
</p><p>
	Come and hear:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k15b_1:" Keth. 41a."
,k15b_2:" And if the liability is created by admission it proves that it is not penal but civil."
,k15b_3:" On account of its being penal."
,k15b_4:" And the fine of thirty <i>shekels</i> has to he imposed; v, Ex. XXI, 32."
,k15b_5:" Keth. 41a."
,k15b_6:" Because it is considered penal."
,k15b_7:" Such, e.g., as in the case of <i>Tam</i>."
,k15b_8:" This proves that the penalty is not penal but civil, and this refutes R. Huna b. R. Joshua."
,k15b_9:" Keth. 41a."
,k15b_10:" Not to be civil."
,k15b_11:" Of the view maintaining the liability of <i>Tam</i> to be penal."
,k15b_12:" Kicked from under an animal's feet and doing damage; cf. <i>supra</i> p. 8."
,k15b_13:" Falling thus under the category of Horn; as <i>supra</i> p. 4."
,k15b_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. <a href=\"../tglossary.html\">Glos.</a> s. v. Mumhe; cf. <i>infra</i>. 27b, 84a-b."
,k15b_15:" And would come within the category of Tooth, the payment for which is civil."
,k15b_16:" Even in Babylon."
,k15b_17:" <i>Infra</i> 46a and Keth. 41b."
,k15b_18:" Deut. XXII, 8."
,k15b_19:" These are the five cases of <i>Tam</i>, v. <i>supra</i> p. 3."
,k15b_20:" These are the five cases of <i>Mu'ad</i>, v. <a href=\"../tglossary.html\">Glos.</a>"
,k15b_21:" For if otherwise there is no liability in the case of Tooth; cf. Ex. XXII, 4, and <i>supra</i>, 5b."
,k15b_22:" In the commencing clause of the Mishnah."
,k15b_23:" Cf. <i>supra</i> 14a; <i>infra</i> 24b."
,k15b_24:" V. <i>supra</i> p. 60, n. 2."
,k15b_25:" Cf. <i>supra</i> p. 60, n. 3. "
}

txt:
<p>
'My ox committed manslaughter on A'; or 'killed A's ox' '[in either case] a liability to compensate is established by this admission.<a id="k15b_1"><sup>1</sup></a>&nbsp; Now does this Mishnah not deal with the case of <i>Tam</i>?<a id="k15b_2"><sup>2</sup></a>&nbsp; &mdash; No, only with <i>Mu'ad</i>. But what is the law in the case of <i>Tam</i>? Would it really be the fact that no liability is established by admission?<a id="k15b_3"><sup>3</sup></a>&nbsp; If this be the case, why state in the concluding clause, 'My ox killed A's slave,'<a id="k15b_4"><sup>4</sup></a>&nbsp; no liability is created by this admission?<a id="k15b_5"><sup>5</sup></a>&nbsp; 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 <i>Mu'ad</i>, whereas in the case of <i>Tam</i> no liability is created by mere admission'?<a id="k15b_6"><sup>6</sup></a>&nbsp; &mdash; The Mishnah all through deals with <i>Mu'ad</i>.
</p><p>
	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.<a id="k15b_5"><sup>5</sup></a>&nbsp; Now does this not indicate that in cases where the payment is less than the damage,<a id="k15b_7"><sup>7</sup></a>&nbsp; the liability will be established even by mere admission?<a id="k15b_8"><sup>8</sup></a>&nbsp; &mdash; 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'?<a id="k15b_9"><sup>9</sup></a>&nbsp; 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&nbsp;&hellip;' which would [both] imply 'less' and imply 'more'?<a id="k15b_10"><sup>10</sup></a>&nbsp; This is indeed a refutation.<a id="k15b_11"><sup>11</sup></a>&nbsp; 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? &mdash; Yes! The sole basis of the refutation is in the fact that the Mishnaic text<a id="k15b_9"><sup>9</sup></a>&nbsp; does not run '&hellip; 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 pebbles<a id="k15b_12"><sup>12</sup></a>&nbsp; which is, in accordance with a halachic tradition, held to be civil. On account of this fact the suggested text has not been adopted.
</p><p>
	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,<a id="k15b_13"><sup>13</sup></a>&nbsp; and no distress will be executed in Babylon<a id="k15b_14"><sup>14</sup></a>&nbsp; &mdash; provided, however, the lambs and hens were big; for if they were small, the occurrence would be usual?<a id="k15b_15"><sup>15</sup></a>&nbsp; Should, however, the plaintiff<a id="k15b_16"><sup>16</sup></a>&nbsp; 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:<a id="k15b_17"><sup>17</sup></a>&nbsp; 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.<a id="k15b_18"><sup>18</sup></a>

	<B><I>MISHNAH</I></B>. THERE ARE FIVE CASES OF <I>TAM</I> AND FIVE CASES OF <I>MU'AD</I>. ANIMAL IS <I>MU'AD</I> NEITHER TO GORE, NOR TO COLLIDE, NOR TO BITE, NOR TO FALL DOWN NOR TO KICK.<a id="k15b_19"><sup>19</sup></a>&nbsp; TOOTH, HOWEVER, IS <I>MU'AD</I> TO CONSUME WHATEVER IS FIT FOR IT; FOOT IS <I>MU'AD</I> TO BREAK [THINGS] IN THE COURSE OF WALKING; OX AFTER BECOMING <I>MU'AD</I>; OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES; AND MAN,<a id="k15b_20"><sup>20</sup></a>&nbsp; SO ALSO THE WOLF, THE LION, THE BEAR, THE LEOPARD, THE BARDALIS [PANTHER] AND THE SNAKE ARE <I>MU'AD</I>. R. ELEAZAR SAYS: IF THEY HAVE BEEN TAMED, THEY ARE NOT <I>MU'AD</I>; THE SNAKE, HOWEVER, IS ALWAYS <I>MU'AD</I>.
</p><p>
	<B><I>GEMARA</I></B>. Considering that it is stated TOOTH IS <I>MU'AD</I> TO CONSUME&nbsp;&hellip; it must be assumed that we are dealing with a case where the damage has been done on the plaintiff's premises.<a id="k15b_21"><sup>21</sup></a>&nbsp; It is also stated<a id="k15b_22"><sup>22</sup></a>&nbsp; ANIMAL IS <I>MU'AD</I> NEITHER TO GORE&nbsp;&hellip; 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.<a id="k15b_23"><sup>23</sup></a>&nbsp; Read now the concluding clause: OX AFTER HAVING BECOME <I>MU'AD</I>, 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.<a id="k15b_23"><sup>23</sup></a>&nbsp; Is the commencing clause  according to the Rabbis and the concluding clause according to R. Tarfon? &mdash; Yes, since Samuel said to Rab Judah, 'Shinena,<a id="k15b_24"><sup>24</sup></a>&nbsp; leave the Mishnah alone<a id="k15b_25"><sup>25</sup></a>&nbsp; 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:
</P>


lvr: 41
dfh: a
notes:
 ntes={k16a_1:" As nobody else had the right to keep there fruits."
,k16a_2:" Since both plaintiff and defendant had the right to keep there their cattle."
,k16a_3:" In the category of Tooth."
,k16a_4:" In the category of Tooth, but being unusual falls under the category of Horn; cf. <i>supra</i> 15b; <i>infra</i> 16b and 19b."
,k16a_5:" I.e., 'goring', 'colliding', 'biting', 'falling down' and 'kicking'."
,k16a_6:" These constitute the five cases of <i>Mu'ad</i>."
,k16a_7:" Cf. Ex. XXII, 4, and <i>supra</i>, 5b. ['OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES' refers thus to Tooth and not to Horn.]"
,k16a_8:" [With reference to damage done by Horn, <i>infra</i>, 24b.]"
,k16a_9:" [In Our Mishnah, i.e., the damage of Horn on the plaintiff's premises.]"
,k16a_10:" Cf. <i>infra</i> 24b."
,k16a_11:" [The first clause of the Mishnah thus enumerates the five cases of <i>Mu'ad</i> as well as of <i>Tam</i>.]"
,k16a_12:" [But are not included in the 'five cases of Mu'ad', the clause being added only in parenthesis.]"
,k16a_13:" As <i>infra</i> p. 125."
,k16a_14:" Of <i>Mu'ad</i>."
,k16a_15:" Which are <i>Mu'ad</i> ab initio."
,k16a_16:" And would thus not fall under the category of Horn but under that of Foot; cf, <i>supra</i> p. 4."
,k16a_17:" Whereas to fall down upon pitchers may perhaps in all cases be unusual."
,k16a_18:" Is usual."
,k16a_19:" [So MS.M. Cur. edd, insert 'R. Eleazar said this etc.']"
,k16a_20:" V. p. 70. n. 5."
,k16a_21:" Which is unusual."
,k16a_22:" Which is usual."
,k16a_23:" [G]"
,k16a_24:" [H] D.S. [H] from [H] 'to run' or 'jump'."
,k16a_25:" [ [H] contraction of [H] (hyena)]."
,k16a_26:" [Lit., 'the many-coloured'. Another term for hyena on account of its coloured stripes.]"
,k16a_27:" To those which are enumerated in the Mishnah as <I>Mu'ad ab initio.</I>"
,k16a_28:" If <I>zabu'a</I> means<I> apa</I>, how could<I> bardalis</I>, which is mentioned independently, also mean<I> apa.</I>"
,k16a_29:" So Rashi's second interpretation; others reverse."
,k16a_30:" The male <I>zabu'a</I> is subject to undergo constant and rapid changes in the evolution of its physique, so that on account of these various transformations it has various appellations, such as <I>bardalis, nafraza</I> and<I> apa</I> [For parallels in ancient Greek and Roman literature for this belief, v. Lewysohn. <I>Zoologie</I>, p. 77.]"
,k16a_31:" I.e., a species of bat; cf. <i>Targum</i> Jonathan Lev, XI, 19, where Heb. [H] is rendered [H]."
,k16a_32:" I.e., a species of thorn (Jast.)."
,k16a_33:" Which is the symbol of ingratitude."
,k16a_34:" And thus not appreciate the favours of eternal God bestowed upon mortal man. [This is but a quaint way of indicating the depths into which human depravity, which has its source in ingratitude to the Creator, may gradually sink.]"
,k16a_35:" Cf. P.B. p. 51. "
}

txt:
<p>
The whole Mishnah is in accordance with R. Tarfon. The commencing clause deals with premises set aside for the keeping of the plaintiff's fruits whereas both plaintiff and defendant may keep there their cattle. In respect of Tooth the premises are considered [in the eye of the law] the plaintiff's.<a id="k16a_1"><sup>1</sup></a>&nbsp; whereas in respect of Horn they are considered their common premises.<a id="k16a_2"><sup>2</sup></a>&nbsp; R. Kahana said: I repeated this statement in the presence of R. Zebid of Nehardea, and he answered me, 'How can you say that the whole Mishnah is in accordance with R. Tarfon? Has it not been stated TOOTH IS <I>MU'AD</I> TO CONSUME WHAT EVER IS FIT FOR IT? That which is fit for it is included,<a id="k16a_3"><sup>3</sup></a>&nbsp; but that which is unfit for it is not included.<a id="k16a_4"><sup>4</sup></a>&nbsp; But did not R. Tarfon say that for the unusual damage done by Horn on the plaintiff's premises full compensation must be paid?' &mdash; It must, therefore, still be maintained that the Mishnah is in accordance with the Rabbis, but there are some phrases missing there; the reading should be thus: 'There are five cases of <i>Tam</i>,'<a id="k16a_5"><sup>5</sup></a>&nbsp; all the five of them may eventually become <i>Mu'ad</i>.<a id="k16a_6"><sup>6</sup></a>&nbsp; Tooth and Foot are however <i>Mu'ad</i> ab initio, and their liability is confined to damage done on the plaintiff's premises.'<a id="k16a_7"><sup>7</sup></a>&nbsp; Rabina demurred: We learn later on: What is meant by [the statement] OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES [etc.]?<a id="k16a_8"><sup>8</sup></a>&nbsp; It is all very well if you say that this damage has previously been dealt with;<a id="k16a_9"><sup>9</sup></a>&nbsp; we may then well ask 'What is meant by it?' But if you say that this damage has never been dealt with previously, how could it be asked 'What is meant by it?'<a id="k16a_10"><sup>10</sup></a>&nbsp; &mdash; Rabina therefore said: The Mishnah is indeed incomplete, but its meaning is this: 'There are five cases of <i>Tam</i>,'<a id="k16a_5"><sup>5</sup></a>&nbsp; all the five of them may eventually become <i>Mu'ad</i><a id="k16a_11"><sup>11</sup></a>&nbsp; &mdash; Tooth and Foot are <i>Mu'ad</i> ab initio.<a id="k16a_12"><sup>12</sup></a>&nbsp; In this way Ox is definitely <i>Mu'ad</i>. As to Ox doing damage on the plaintiff's premises there is a difference of opinion between R. Tarfon and the Rabbis.<a id="k16a_13"><sup>13</sup></a>&nbsp; There are other damage-doers which like these cases are similarly <i>Mu'ad</i>, as follows: The wolf, the lion, the bear, the leopard. the panther, and the snake.' This very text has indeed been taught: 'There are five cases of <i>Tam</i>; all the five of them may eventually become <i>Mu'ad</i>. Tooth and Foot are <i>Mu'ad</i> ab initio. In this way Ox is definitely <i>Mu'ad</i>. As to Ox doing damage on the plaintiff's premises there is a difference of opinion between R. Tarfon and the Rabbis. There are other damage-doers which like these are similarly <i>Mu'ad</i>, as follows: The wolf, the lion, the bear, the leopard, the panther and the snake.'
</p><p>
	Some arrived at the same interpretation by having first raised the following objection: We learn THERE ARE FIVE CASES OF <I>TAM</I> AND FIVE CASES OF <I>MU'AD</I>; are there no further instances?<a id="k16a_14"><sup>14</sup></a>&nbsp; Behold there are the wolf, the lion, the bear, the leopard, the panther and the snake!<a id="k16a_15"><sup>15</sup></a>&nbsp; &mdash; The reply was: Rabina said: The Mishnah is incomplete and its reading should be as follows: There are five cases of <i>Tam</i>; all the five of them may eventually become <i>Mu'ad</i> &mdash; Tooth and Foot are <i>Mu'ad</i> ab initio. In this way Ox is definitely <i>Mu'ad</i>. As to Ox doing damage on the plaintiff's premises there is a difference of opinion between R. Tarfon and the Rabbis. There are other damage-doers which like these are similarly <i>Mu'ad</i>, as follows: The wolf, the lion, the bear, the leopard, the panther and the snake.
</p><p>
	NOR TO FALL DOWN. R. Eleazar said: This is so only when it falls down on large pitchers, but in the case of small pitchers it is a usual occurrence.<a id="k16a_16"><sup>16</sup></a>&nbsp; May we support him [from the following teaching]: 'Animal is <i>Mu'ad</i> to walk in the usual manner and to break or crush a human being, or an animal, or utensils'? &mdash; This however may mean, through contact sideways.<a id="k16a_17"><sup>17</sup></a>&nbsp; Some read: R. Eleazar said: Do not think that it is only in the case of large pitchers that it is unusual, whereas in the case of small pitchers it is usual. It is not so, for even in the case of small pitchers it is unusual. An objection was brought: '&hellip; or crush a human being, or an animal or utensils?'<a id="k16a_18"><sup>18</sup></a>&nbsp; &mdash; This<a id="k16a_19"><sup>19</sup></a>&nbsp; may perhaps mean through contact sideways.<a id="k16a_20"><sup>20</sup></a>&nbsp; Some arrived at the same conclusion by having first raised the following objection: We have learnt: NOR TO FALL DOWN.<a id="k16a_18"><sup>18</sup></a>&nbsp; But was it not taught: '&hellip; or crush a human being, or an animal or utensils'?<a id="k16a_18"><sup>18</sup></a>&nbsp; R. Eleazar replied: There is no contradiction: the former statement deals with a case of large pitchers,<a id="k16a_21"><sup>21</sup></a>&nbsp; whereas the latter deals with small pitchers.<a id="k16a_22"><sup>22</sup></a>
</p><p>
	THE WOLF, THE LION, THE BEAR, THE LEOPARD AND THE BARDALIS [PANTHER].<a id="k16a_23"><sup>23</sup></a>&nbsp; What is bardalis? &mdash; Rab Judah said: nafraza.<a id="k16a_24"><sup>24</sup></a>&nbsp; What is nafraza? &mdash; R. Joseph said: apa.<a id="k16a_25"><sup>25</sup></a>&nbsp; An objection was raised: R. Meir adds also the zabu'a.<a id="k16a_26"><sup>26</sup></a>&nbsp; R. Eleazar adds, also the snake.<a id="k16a_27"><sup>27</sup></a>&nbsp; Now R. Joseph said that zabu'a means apa!<a id="k16a_28"><sup>28</sup></a>&nbsp; &mdash; This, however, is no contradiction, for the latter appellation [zabu'a] refers to the male whereas the former [bardalis] refers to the female,<a id="k16a_29"><sup>29</sup></a>&nbsp; as taught elsewhere: The male zabu'a [hyena] after seven years turns into a bat,<a id="k16a_30"><sup>30</sup></a>&nbsp; the bat after seven years turns into an arpad,<a id="k16a_31"><sup>31</sup></a>&nbsp; the arpad after seven years turns into kimmosh,<a id="k16a_32"><sup>32</sup></a>&nbsp; the kimmosh after seven years turns into a thorn, the thorn after seven years turns into a demon. The spine of a man after seven years turns into a snake,<a id="k16a_33"><sup>33</sup></a>&nbsp; should he not bow<a id="k16a_34"><sup>34</sup></a>&nbsp; while reciting the benediction, 'We give thanks unto Thee'.<a id="k16a_35"><sup>35</sup></a>
</p><p>
	The Master said: 'R. Meir adds also the zabu'a;
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k16b_1:" [Which seems to exclude the other animals enumerated in the Mishnah?]"
,k16b_2:" Do not read 'also the snake', but 'the snake', i.e. 'only the snake', excluding 'the hyena' introduced by R. Meir, as well as the other animals enumerated."
,k16b_3:" Cf. Ex XXII, 4 and <i>supra</i> 5b."
,k16b_4:" And falls thus under the category of Horn which is not immune even on public ground, cf. <i>supra</i> p. 67 and <i>infra</i> 19b."
,k16b_5:" Nah. II, 13."
,k16b_6:" Cf. <i>infra</i> 19b."
,k16b_7:" [Why then doses he state that, where the lion tore and consumed, there is payment?]"
,k16b_8:" <i>Supra</i> p. 68."
,k16b_9:" And comes therefore within the category of Horn, for which there is liability even on public grounds."
,k16b_10:" For in the case of Horn only half-damages are paid on the first three occasions."
,k16b_11:" I.e., <i>infra</i> 19b."
,k16b_12:" [H]"
,k16b_13:" II Chron. XXXII, 33. [The word [H] (E.V.: 'ascent') is tendered as 'the best' from [H] 'to go up', 'to excel'.]"
,k16b_14:" [H]"
,k16b_15:" II Chron. XVI, 14."
,k16b_16:" [Deriving [H] from [H] to commit whoredom'.]"
,k16b_17:" Jer. XVIII, 22."
,k16b_18:" Prov. XXIII, 27."
,k16b_19:" Jer. XVIII, 23; referring to the death penalty prescribed for such an offence. See Lev. XX, 10."
,k16b_20:" Since no death penalty is attached to that sin,"
,k16b_21:" Jer. XXXVIII, 6."
,k16b_22:" Ibid. XVIII, 23."
,k16b_23:" Cf. however Keth. 68a."
,k16b_24:" II Chron. XXXII, 33."
,k16b_25:" [Of students to study the law.] "
}

txt:
<p>
R. Eleazar adds also the snake.' But have we not learned: R. ELEAZAR SAYS, IF THEY HAD BEEN TAMED, THEY ARE NOT <I>MU'AD</I>; THE SNAKE, HOWEVER, IS ALWAYS <I>MU'AD</I>?<a id="k16b_1"><sup>1</sup></a>&nbsp; &mdash; Read 'the snake'.<a id="k16b_2"><sup>2</sup></a>
</p><p>
	Samuel said: In the case of a lion on <I>public</I> ground seizing and devouring [an animal], there is exemption;<a id="k16b_3"><sup>3</sup></a>&nbsp; but for tearing it to pieces and then devouring it there is liability to pay. In 'seizing and devouring there is exemption' on account of the fact that it is as usual for a lion to seize its prey as it is for an animal to consume fruits and vegetables; it therefore amounts to Tooth on public ground where there is exemption.<a id="k16b_3"><sup>3</sup></a>&nbsp; The 'tearing' [of the prey into pieces] is however not unusual with the lion.<a id="k16b_4"><sup>4</sup></a>
</p><p>
	Should it thus be concluded that the tearing of prey is unusual [with the lion]? But behold, it is written: <I>The lion did tear in pieces enough for his whelps</I>?<a id="k16b_5"><sup>5</sup></a>&nbsp; &mdash; This is usual only when it is for the sake of his whelps. [But the text continues:] <I>And strangled for his lionesses</I>?<a id="k16b_5"><sup>5</sup></a>&nbsp; &mdash; This again is only when it is for the sake of his lionesses. [But the text further states:] <I>And filled his holes with prey</I>?<a id="k16b_5"><sup>5</sup></a>&nbsp; &mdash; [This too is usual only when it is done] with the intention of preserving it in his holes. But the text concludes: <I>And his dens with ravin</I>?<a id="k16b_5"><sup>5</sup></a>&nbsp; &mdash; [This again is only] when the intention is to preserve it in his dens. But was it not taught: 'Similarly in the case of a beast entering the plaintiff's premises, tearing an animal to pieces and consuming its flesh, the payment must be made in full'?<a id="k16b_6"><sup>6</sup></a>&nbsp; &mdash; This Baraitha deals with a case where the tearing was for the purpose of preservation. But behold, it is stated: 'consuming [its flesh]'? &mdash; It was by an afterthought that the beast consumed [it]. But how could we know that? Again, also in the case of Samuel why not make the same supposition?<a id="k16b_7"><sup>7</sup></a>&nbsp; &mdash; R. Nahman b. Isaac therefore said: Alternative cases are dealt with [in the Baraitha]:&nbsp;&hellip; If it either tears to pieces for the purpose of preservation, or seizes and devours [it], the payment must he in full.' Rabina, however, said that Samuel dealt with a case of a tame lion, and was following the view of R. Eleazar,<a id="k16b_8"><sup>8</sup></a>&nbsp; that that was unusual [with such a lion] If so, even in the case of seizing there should be liability! &mdash; Rabina's statement has, therefore, no reference to Samuel's case but to the Baraitha, which we must thus suppose to deal with a tame lion and to follow the view of R. Eleazar, that that was unusual [with such a lion].<a id="k16b_9"><sup>9</sup></a>&nbsp; If so, [no more than] half-damages should be paid!<a id="k16b_10"><sup>10</sup></a>&nbsp; &mdash; [The lion dealt with] has already become <i>Mu'ad</i>. If so, why has this Baraitha been taught in conjunction with the secondary kinds of Tooth,<a id="k16b_11"><sup>11</sup></a>&nbsp; whereas it should have been taught in conjunction with the secondary kinds of Horn? This is indeed a difficulty.
</p><p>
	<B><I>MISHNAH</I></B>. WHAT IS THE DIFFERENCE [IN LAW] BETWEEN <I>TAM</I> AND <I>MU'AD</I>? IN THE CASE OF <I>TAM</I> ONLY HALF-DAMAGES ARE PAID AND ONLY OUT OF THE BODY [ OF THE TORT-FEASENT CATTLE], WHEREAS IN THE CASE OF <I>MU'AD</I> FULL PAYMENT IS MADE OUT OF ['ALIYYAH]<a id="k16b_12"><sup>12</sup></a>&nbsp; THE BEST [OF THE ESTATE].
</p><p>
	<B><I>GEMARA</I></B>. What is 'Aliyyah? &mdash; R. Eleazar said: The best of the defendant's estate as stated in Scripture: And Hezekiah slept with his fathers and they buried him [be-ma'aleh] in the best of the sepulchres of the sons of David;<a id="k16b_13"><sup>13</sup></a>&nbsp; and R. Eleazar said: be-ma'aleh means, near the best of the family, i.e., David and Solomon. [Regarding King Asa it is stated:] And they buried him in his own sepulchres which he had made for himself in the city of David and laid him in the bed which was filled with [besamim u-zenim]<a id="k16b_14"><sup>14</sup></a>&nbsp; sweet odours and divers kinds of spices.<a id="k16b_15"><sup>15</sup></a>&nbsp; What is besamim u-zenim? &mdash; R. Eleazar said: Divers kinds of spices. But R. Samuel b. Nahmani said: Scents which incite all those who smell them to immorality.<a id="k16b_16"><sup>16</sup></a>
</p><p>
	[Regarding Jeremiah it is stated:] <I>For they have digged a ditch to take me and hid snares for my feet</I>.<a id="k16b_17"><sup>17</sup></a>&nbsp; R. Eleazar said: They maliciously accused him of [having illicit intercourse with] a harlot. But R. Samuel b. Nahmani said: They maliciously accused him of having [immoral connections with] another man's wife. No difficulty arises if we accept the view that the accusation was concerning a harlot, since it is written: <I>For a harlot is a deep ditch</I>.<a id="k16b_18"><sup>18</sup></a>&nbsp; But according to the view that the accusation was concerning another man's wife, how is this expressed in the term '<I>ditch'</I> [employed in Jeremiah's complaint]?<a id="k16b_17"><sup>17</sup></a>&nbsp; &mdash; Is then another man's wife [when committing adultery] excluded from the general term of 'harlot'? [On the other hand] there is no difficulty on the view that the accusation was concerning another man's wife, for Scripture immediately afterwards says: <I>Yet Lord, Thou knowest all their counsel against me to slay me</I>;<a id="k16b_19"><sup>19</sup></a>&nbsp; but according to the view that the accusation was concerning a harlot, how did they thereby intend 'to slay him'?<a id="k16b_20"><sup>20</sup></a>&nbsp; &mdash; [This they did] by throwing him into a pit of mire.<a id="k16b_21"><sup>21</sup></a>
</p><p>
	Raba gave the following exposition: What is the meaning of the concluding verse: <I>But let them be overthrown before Thee; deal thus with them in the time of Thine anger</I>?<a id="k16b_22"><sup>22</sup></a>&nbsp; &mdash; Jeremiah thus addressed the Holy One, blessed be He: Lord of the Universe, even when they are prepared to do charity, cause them to be frustrated by people unworthy of any consideration so that no reward be forthcoming to them for that charity.<a id="k16b_23"><sup>23</sup></a>
</p><p>
	[To come back to Hezekiah regarding whom it is stated:]<I> And they did him honour at his death</I>:<a id="k16b_24"><sup>24</sup></a>&nbsp; this signifies that they set up a college<a id="k16b_25"><sup>25</sup></a>&nbsp; near his sepulchre. There was a difference of opinion between R. Nathan and the Rabbis. One said: For three days,
</P>


lvr: 41
dfh: a
notes:
 ntes={k18a_1:" I.e., whether full or half payment has to be made for damage caused by Pebbles."
,k18a_2:" Probably by rolling to some other place, where it finally broke."
,k18a_3:" Whereas for the bucket only half damages will perhaps be paid."
,k18a_4:" Being thus subject to the law of 'Horn'."
,k18a_5:" In which case it is not unusual with poultry to pick at such a cord."
,k18a_6:" Thus clearly indicating that the payment is in respect of the damage done to the bucket."
,k18a_7:" Such as in the case of a bucket upon which pebbles were thrown directly by an animal."
,k18a_8:" I.e., a second bucket damaged by a fragment that fell from a first bucket, which was broken by pebbles thrown by an animal."
,k18a_9:" <i>Infra</i> 19a."
,k18a_10:" I.e., to full payment."
,k18a_11:" But merely to half damages."
,k18a_12:" I.e., though the bucket rolled to some other place where it broke, the case is still subject to the law of Foot."
,k18a_13:" And coming within the usual category of Foot."
,k18a_14:" As in the case of <i>Tam</i>; cf. <i>supra</i>, p. 73."
,k18a_15:" As in the case of Foot; cf. <i>supra</i>, p. 9."
,k18a_16:" I.e., whether full or half damages are to be paid in the case of Pebbles."
,k18a_17:" Being subject to the law applicable to Tooth, cf. <i>supra</i> p. 68."
,k18a_18:" <i>Infra</i> 21b."
,k18a_19:" Because the damage to the stack was not done by the actual body of the dog but was occasioned by the dog through the instrumentality of the coal, which, after having been put on a certain spot, spread the damage near and far."
,k18a_20:" Of half damages for the stack."
,k18a_21:" In a Baraitha."
,k18a_22:" By taking it in its mouth and applying it to the stack, in which case it is subject to the law of 'Horn'."
,k18a_23:" <i>Supra</i> p. 59 and <i>infra</i> 24b."
,k18a_24:" [Though the payment will still be made out of the body of the tort-feasant animal.)"
,k18a_25:" <i>Infra</i> 39a. 45b."
,k18a_26:" Such as Foot (and Pebbles at least according to Symmachus). "
}

txt:
<p>
the 'hopping' only caused pebbles to fly, so that the point at issue is the same as that between Symmachus and the Rabbis.<a id="k18a_1"><sup>1</sup></a>
</p><p>
	Come and hear: 'In the case of poultry picking at a cord attached to a pail so that the cord was snapped asunder and the bucket<a id="k18a_2"><sup>2</sup></a>&nbsp; broken, the payment must be in full.' Could it not be proved from this [Baraitha] that it is the original cause of the damage that has to be followed? &mdash; You may, however, interpret [the liability of full payment] to refer to the damage done to the cord.<a id="k18a_3"><sup>3</sup></a>&nbsp; But behold, is not [the damage of] the cord unusual [with poultry<a id="k18a_4"><sup>4</sup></a>&nbsp; and only half damages ought to be paid]? &mdash; It was smeared with dough.<a id="k18a_5"><sup>5</sup></a>&nbsp; But, does it not say 'and the bucket [was] broken'?<a id="k18a_6"><sup>6</sup></a>&nbsp; This Baraitha must therefore be in accordance with Symmachus, who maintains that also in the case of Pebbles full payment must be made. But if it is in accordance with Symmachus, read the concluding clause: Were a fragment of the broken bucket to fly and fall upon another utensil, breaking it, the payment for the former [i.e., the bucket] must be in full, but for the latter only half damages will be paid. Now does Symmachus ever recognise half damages [in the case of Pebbles]? If you, however, submit that there is a difference according to Symmachus between damage occasioned by direct force<a id="k18a_7"><sup>7</sup></a>&nbsp; and that caused by indirect force,<a id="k18a_8"><sup>8</sup></a>&nbsp; what about the question raised by R. Ashi:<a id="k18a_9"><sup>9</sup></a>&nbsp; Is damage occasioned by indirect force according to Symmachus subject to the same law<a id="k18a_10"><sup>10</sup></a>&nbsp; applicable to direct force, or not subject to the law of direct force?<a id="k18a_11"><sup>11</sup></a>&nbsp; Why is it not evident to him that it is not subject to the law of direct force? Hence the above Baraitha is accordingly more likely to be in accordance with the Rabbis, and proves thus that it is the original cause that has to be followed [as the determining factor]!<a id="k18a_12"><sup>12</sup></a>&nbsp; R. Bibi b. Abaye, however, said: The bucket [that was broken] was [not rolled but] continuously pushed by the poultry [from one place to another, so that it was broken by actual bodily touch].<a id="k18a_13"><sup>13</sup></a>
</p><p>
	Raba [again] queried: Will the half damages in the case of 'Pebbles' be paid out of the body [of the tort-feasant animal]<a id="k18a_14"><sup>14</sup></a>&nbsp; or will it be paid out of the best of the defendant's estate?<a id="k18a_15"><sup>15</sup></a>&nbsp; Will it be paid out of the body [of the tort-feasant animal] on account of the fact that nowhere is the payment of half damages made out of the best of the defendant's estate, or shall it nevertheless perhaps be paid out of the best of the defendant's estate since there is no case of habitual damage being compensated out of the body [of the tort-feasant animal]? &mdash; 
</p><p>
	Come and hear: 'Hopping [with poultry] is not <I>Mu'ad</I>. Some, however, say: It is <I>Mu'ad</I>.' Could 'hopping' be said [in any way not to be habitual with poultry]? Does it not therefore mean: 'Hopping and making [pebbles] fly,' so that the point at issue is as follows: The former view maintaining that it is not [treated as] <I>Mu'ad</I>, requires payment to be made out of the body [of the tort-feasant poultry]<a id="k18a_14"><sup>14</sup></a>&nbsp; whereas the latter view maintaining that it is [treated as] <I>Mu'ad</I>, will require the payment [of the half damages for Pebbles] to be made out of the best of the defendant's estate?<a id="k18a_15"><sup>15</sup></a>&nbsp; &mdash; No, the point at issue is that between Symmachus and the Rabbis.<a id="k18a_16"><sup>16</sup></a>
</p><p>
	Come and hear: In the case of a dog taking hold of a cake [with live coals sticking to it] and going [with it] to a stack of grain where he consumed the cake and set the stack on fire, full payment must be made for the cake,<a id="k18a_17"><sup>17</sup></a>&nbsp; whereas for the stack only half damages will be paid.<a id="k18a_18"><sup>18</sup></a>&nbsp; Now, what is the reason [that only half damages will be paid for the stack] if not on account of the fact that the damage of the stack is subject to the law of Pebbles?<a id="k18a_19"><sup>19</sup></a>&nbsp; It has, moreover, been taught in connection with this [Mishnah] that the half damages will be collected out of the body [of the tort-feasant dog]. [Does not this ruling offer a solution to the problem raised by Raba?] &mdash; But do you really think [the law of 'Pebbles' to be at the basis of this ruling]?<a id="k18a_20"><sup>20</sup></a>&nbsp; According to R. Eleazar [who maintains<a id="k18a_21"><sup>21</sup></a>&nbsp; that the payment even for the stack will be in full and out of the body of the tort-feasant dog], do we find anywhere full payment being collected out of the body [of tort-feasant animals]? Must not this ruling<a id="k18a_20"><sup>20</sup></a>&nbsp; therefore be explained to refer to a case where the dog acted in an unusual manner in handling the coal,<a id="k18a_22"><sup>22</sup></a>&nbsp; R. Eleazar being of the same opinion as R. Tarfon, who maintains<a id="k18a_23"><sup>23</sup></a>&nbsp; that [even] for the unusual damage by Horn, if done in the plaintiff's premises, the payment will be in full?<a id="k18a_24"><sup>24</sup></a>&nbsp; &mdash; This explanation, however, is not essential. For that which compels you to make R. Eleazar maintain the same opinion as R. Tarfon, is only his requiring full payment [out of the body of the dog]. It may therefore be suggested on the other hand that R. Eleazar holds the view expressed by Symmachus, that in the case of Pebbles full damages will be paid; and that he further adopts the view of R. Judah who said<a id="k18a_25"><sup>25</sup></a>&nbsp; that [in the case of <I>Mu'ad</I>, half of the payment, i.e.] the part of <i>Tam</i>, remains unaffected [i.e., is always subject to the law of <i>Tam</i>]; the statement that payment is made out of the body [of the dog] will therefore refer only to [one half] the part for which even <i>Tam</i> would be liable. But R. Samia the son of R. Ashi said lo Rabina: I submit that the view you have quoted in the name of R. Judah is confined to cases of <i>Tam</i> turned into <I>Mu'ad</I> [i.e. Horn],<a id="k18a_25"><sup>25</sup></a>&nbsp; whereas in cases which are <I>Mu'ad</I> ab initio<a id="k18a_26"><sup>26</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k18b_1:" Being thus subject to the law applicable to Horn whereas in the case of Pebbles not accompanied by an unusual act, R. Eleazar would maintain the view of the Rabbis that the payment will not be in full."
,k18b_2:" When thrown by an unusual act and repeated on more than three occasions; the payment would thus then have to be in full."
,k18b_3:" But that in spite of all repetitions of the damage the payment will never exceed half damages on account of the consideration that the case of Pebbles in the usual way is always <I>Mu'ad ab initio</I> and yet no more than half damages is involved."
,k18b_4:" Cf. <i>infra</i> p. 86."
,k18b_5:" So that in the case of an animal making pebbles fly (by means of an unusual act) on more than three occasions, the payment will be in full, on the analogy with Horn"
,k18b_6:" The payment will thus never exceed half damages on account of the fact that the repetition on three occasions renders the act usual and makes it subject to the general laws of Pebbles, requiring half damages in the case of any usual act of an animal making pebbles fly."
,k18b_7:" In the case of the dog."
,k18b_8:" Coming thus within the category of Horn."
,k18b_9:" I.e., between the Rabbis and R. Eleazar."
,k18b_10:" With reference in damage done by Horn (<i>Tam</i>) on the Plaintiff's premises; cf. <i>supra</i> pp. 59. 84; <i>infra</i> p. 125."
,k18b_11:" For since the payment is in full why should it not be out of the best of the defendant's estate? Cf. however <i>supra</i> p. 15, <i>infra</i> p. 180; but also pp. 23, 212."
,k18b_12:" <i>Infra</i> 24b."
,k18b_13:" Lit., 'It is sufficient for it'."
,k18b_14:" Lit. 'From Minor to Major'; v. <a href=\"../tglossary.html\">Glos.</a>"
,k18b_15:" Which was Horn on public ground where the payment in the case of <i>Tam</i> is made out of the body of the tort-feasant animal."
,k18b_16:" Such as, e.g., to make on account of Dayyo, the payment in the case of <i>Tam</i> doing damage on the plaintiff's premises only for half damages &mdash; a payment which would be ordered even without a Kal wa-homer."
,k18b_17:" The full payment in the case of <i>Tam</i> on the plaintiff's premises which is deduced from the Hal wa-homer, will therefore be collected only out of the body of the tort-feasant animal, on the strength of the Dayyo."
,k18b_18:" <i>Supra</i> p. 85."
,k18b_19:" Cf. <i>supra</i> 3b; v. also p. 85, n. 5."
,k18b_20:" I.e., whether the payment for Pebbles generally be in full or half; cf. <i>supra</i> 17b."
,k18b_21:" And thus the problem propounded by Raba is a point at issue between Tannaim."
,k18b_22:" The case must accordingly come under the category of Horn where only half damages should he paid in the first three occasions."
,k18b_23:" Why deal at all with the specific case of an animal dropping excrements?"
,k18b_24:" Any damage done by them should thus be compensated in full on the analogy of any other derivative of Foot proper."
,k18b_25:" I.e., it does not come under the category of Foot proper but under that of Pebbles."
,k18b_26:" Cf. Kid. 24b. "
}

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you have surely not found him maintaining so! You can therefore only say that R. Eleazar's statement regarding full payment deals with a case where the dog has already become <I>Mu'ad</I> [to set fire to stacks in an unusual manner]<a id="k18b_1"><sup>1</sup></a>&nbsp; and the point at issue will be that R. Eleazar maintains that there is such a thing as becoming <I>Mu'ad</I> [also] regarding [the law of] Pebbles<a id="k18b_2"><sup>2</sup></a>&nbsp; whereas the Rabbis maintain that there is no such thing as becoming <I>Mu'ad</I> in the case of Pebbles.<a id="k18b_3"><sup>3</sup></a>&nbsp; But If so what about another problem raised [elsewhere]<a id="k18b_4"><sup>4</sup></a>&nbsp; by Raba: 'Is there such a thing as becoming <I>Mu'ad</I> regarding [the law of] Pebbles,<a id="k18b_5"><sup>5</sup></a>&nbsp; or is there no such thing as becoming <I>Mu'ad</I> in the case of Pebbles?'<a id="k18b_6"><sup>6</sup></a>&nbsp; Why then not say that according to the Rabbis there could be no such thing as becoming <I>Mu'ad</I> in the case of Pebbles, whereas according to R. Eleazar there may be a case of becoming <I>Mu'ad</I> even in the case of Pebbles? &mdash; Raba, however, may say to you: The problem raised by me [as to the possibility of becoming <I>Mu'ad</I>] is of course based on the view of the Rabbis who differ [in this respect] from Symmachus, whereas here [in the case of the dog] both the Rabbis and R. Eleazar may hold the view of Symmachus who maintains that Pebbles always involve payment in full. The reason, however, that the Rabbis order only half damages [to be paid]<a id="k18b_7"><sup>7</sup></a>&nbsp; is on account of the fact that the dog handled the coal in an unusual manner<a id="k18b_8"><sup>8</sup></a>&nbsp; while it had not yet become <I>Mu'ad</I> [for that]. The point at issue between them<a id="k18b_9"><sup>9</sup></a>&nbsp; would be exactly the same as between R. Tarfon and the Rabbis.<a id="k18b_10"><sup>10</sup></a>&nbsp; But R. Tarfon who took the view that the payment will be in full may perhaps never have intended to make it dependent upon the body [of the tort-feasant cattle]?<a id="k18b_11"><sup>11</sup></a>&nbsp; &mdash; Cer tainly so, for he derives his view from [the law of] Horn on public ground<a id="k18b_12"><sup>12</sup></a>&nbsp; and it only stands to reason that Dayyo,<a id="k18b_13"><sup>13</sup></a>&nbsp; [i.e. it is sufficient] to a derivative by means of a Kal wa-homer<a id="k18b_14"><sup>14</sup></a>&nbsp; to involve nothing more than the original case from which it has been deduced.<a id="k18b_15"><sup>15</sup></a>&nbsp; But behold, R. Tarfon is expressly not in favour of the Principle of Dayyo?<a id="k18b_13"><sup>13</sup></a>&nbsp; &mdash; He is not in favour of Dayyo only when the Kal wa-<i>homer</i> would thereby be rendered completely ineffective,<a id="k18b_16"><sup>16</sup></a>&nbsp; but where the Kal wa-<i>homer</i> would not be rendered ineffective he too upholds Dayyo.<a id="k18b_17"><sup>17</sup></a>
</p><p>
	To revert to the previous theme:<a id="k18b_18"><sup>18</sup></a>&nbsp; Raba asked: Is there such a thing as becoming <I>Mu'ad</I> regarding [the law of] Pebbles, or is there no such thing as becoming <I>Mu'ad</I> in the case of Pebbles? Do we compare Pebbles to Horn [which is subject to the law of <I>Mu'ad</I>] or do we not do so since the law of Pebbles is a derivative of Foot<a id="k18b_19"><sup>19</sup></a>&nbsp; [to which the law of <I>Mu'ad</I> has no application]?
</p><p>
	Come and hear: 'Hopping is not <I>Mu'ad</I> [with poultry]. Some, however, say: It is <I>Mu'ad</I>.' Could 'hopping' be thought [in any way not to be habitual with poultry]? It, therefore, of course means 'Hopping and making thereby [pebbles] fly.' Now, does it not deal with a case where the same act has been repeated three times, so that the point at issue between the authorities will be that the one Master [the latter] maintains that the law of <I>Mu'ad</I> applies [also to Pebbles] whereas the other Master [the former] holds that the law of <I>Mu'ad</I> does not apply [to Pebbles]? &mdash; No, it presents a case where no repetition took place; the point at issue between them being the same as between Symmachus and the Rabbis.<a id="k18b_20"><sup>20</sup></a>
</p><p>
	Come and hear: In the case of an animal dropping excrements into dough. R. Judah maintains that the payment must be in full, but R. Eleazar says that only half damages will be paid. Now, does it not deal here with a case where the act has been repeated three times, so that the point at issue between the authorities will be that R. Judah maintains that the animal has thus become <I>Mu'ad</I> whereas R. Eleazar holds that it has not become <I>Mu'ad</I>?<a id="k18b_21"><sup>21</sup></a>&nbsp; &mdash; No, it deals with a case where no repetition took place, the point at issue between them being the same which is between Symmachus and the Rabbis. But is it not unusual [with an animal to do so]?<a id="k18b_22"><sup>22</sup></a>&nbsp; &mdash; The animal was pressed for space [in which case it is no more unusual]. But why should not R. Judah have explicitly stated that the <i>Halachah</i> is in accordance with Symmachus and similarly R. Eleazar should have stated that the <i>Halachah</i> is in accordance with the Rabbis?<a id="k18b_23"><sup>23</sup></a>&nbsp; &mdash; [A specific ruling in regard to] excrements is of importance, for otherwise you might have thought that since these [excrements formed a part of the animal and] were poured out from its body, they should still be considered as a part of its body,<a id="k18b_24"><sup>24</sup></a>&nbsp; it has therefore been made known to us that this is not so.<a id="k18b_25"><sup>25</sup></a>
</p><p>
	Come and hear: Rami b. Ezekiel learned:<a id="k18b_26"><sup>26</sup></a>&nbsp; In the case of a cock putting its head into an empty utensil of glass where it crowed so that the utensil thereby broke, the payment must be in full, while R. Joseph on the other hand said<a id="k18b_26"><sup>26</sup></a>&nbsp; that it has been stated in the School of Rab that in the case of a horse neighing or an ass braying so that utensils were thereby broken, only half damages will be paid. Now, does it not mean that the same act has already been repeated three times,
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