# snc

lvr: 41
dfh: a
notes:
 ntes={k44a_1:" Cf. <i>infra</i> p. 380, and 'Ed. VI, 1."
,k44a_2:" Why then was it necessary for Scripture to make this explicit in Ex. XXI, 31?"
,k44a_3:" For which cf. <i>supra</i> p. 12."
,k44a_4:" As verse 31 follows 29 and 30 which deal with <i>Mu'ad</i>."
,k44a_5:" As clearly seen in verses 29 and 30."
,k44a_6:" I.e. they are liable to pay for it. Cf. <i>supra</i> p. 63 but also <i>infra</i> p. 502."
,k44a_7:" For which they are not liable to pay; see <i>infra</i> p. 502."
,k44a_8:" [Some texts omit, 'If&nbsp;&hellip; Moreover,' v. D.S. a.l.]"
,k44a_9:" Cf. however, <i>supra</i> p. 64, but also Kid. I, 7."
,k44a_10:" So long as they are minors and have not reached puberty for which cf. Nid. 52a."
,k44a_11:" Cf. <i>supra</i> p. 211, n. 6."
,k44a_12:" As also maintained by R. Johanan, <i>supra</i> p. 248, and still earlier by R. Eliezer, <i>supra</i> p. 237."
,k44a_13:" For the reason v. <i>supra</i> 244"
,k44a_14:" In the case dealt with first in the Mishnah."
,k44a_15:" In killing a human being by rubbing itself against a wall and thus causing it to fall. In the case of <i>Tam</i> no <i>kofer</i> is paid; see Ex. XXI, 28."
,k44a_16:" <i>Infra</i> p. 274."
,k44a_17:" And as intention to kill was lacking, no death penalty could be attached."
,k44a_18:" Seeing that the ox was <i>Mu'ad</i> to rub itself against walls. "
}

txt:
<p>
now in the case of Cattle killing man where the law made small cattle [liable] as [it did make] big cattle,<a id="k44a_1"><sup>1</sup></a>&nbsp; should it not stand to reason that there is liability for little ones as there is for grown-ups?<a id="k44a_2"><sup>2</sup></a>&nbsp; &mdash; No, [for it could have been argued that] if you stated this ruling in the case of Man killing man it was [perhaps] because [where Man injured man] there was liability for the four [additional] items,<a id="k44a_3"><sup>3</sup></a>&nbsp; but how would you be able to prove the same ruling in the case of Cattle where there could be no liability for the four [additional] items? Hence it is further laid down: Whether it have gored a son or have gored a daughter to impose liability for little ones as for grown-ups. So far I know this only in the case of <i>Mu'ad</i>.<a id="k44a_4"><sup>4</sup></a>&nbsp; Whence do I know it in the case of <i>Tam</i>? &mdash; We infer it by analogy: Since there is liability for killing Man or Woman and there is similarly liability for killing Son or Daughter, just as regarding the liability for Man or Woman you made no discrimination between <i>Tam</i> and <i>Mu'ad</i>,<a id="k44a_5"><sup>5</sup></a>&nbsp; so also regarding the liability for Son or Daughter you should make no discrimination between <i>Tam</i> and <i>Mu'ad</i>. Moreover there is an <i>a fortiori</i> argument [to the same effect]; for if in the case of Man and Woman who are in a disadvantageous position when damages had been done by them,<a id="k44a_6"><sup>6</sup></a>&nbsp; you have nevertheless made there no discrimination between <i>Tam</i> and <i>Mu'ad</i>, in the case of Son and Daughter who are in an advantageous position when damage has Been done by them,<a id="k44a_7"><sup>7</sup></a>&nbsp; should it not stand to reason that you should make no discrimination between <i>Tam</i> and <i>Mu'ad</i>? &mdash; [No,] you cannot argue thus. Can we draw an analogy from a more serious to a lighter case so as to be more severe [with regard to the latter]? If<a id="k44a_8"><sup>8</sup></a>&nbsp; the law is strict with <i>Mu'ad</i> which is a more serious case, how can you argue that it ought to be [equally] strict with <i>Tam</i> which is a lighter case? Moreover, [you could also argue that] the case of Man and Woman [is graver] since they are under obligation to observe the commandments [of the Law],<a id="k44a_9"><sup>9</sup></a>&nbsp; but how draw therefrom an analogy to the case of Son and Daughter seeing that they are exempt from the commandments?<a id="k44a_10"><sup>10</sup></a>&nbsp; It was therefore necessary to state [further]: Whether it have gored a son, or have gored a daughter; [the repetition of the word 'gored' indicating that no discrimination should be made between] goring in the case of <i>Tam</i> and goring in the case of <i>Mu'ad</i>, between goring in the case of killing and goring in the case of mere injury.
</p><p>
	<B><I>MISHNAH</I></B>. IF AN OX BY RUBBING ITSELF AGAINST A WALL CAUSED IT TO FALL UPON A PERSON [AND KILL HIM], OR IF AN OX WHILE TRYING TO KILL A BEAST [BY ACCIDENT] KILLED A HUMAN BEING, OR WHILE AIMING AT A HEATHEN<a id="k44a_11"><sup>11</sup></a>&nbsp; KILLED AN ISRAELITE, OR WHILE AIMING AT NON-VIABLE INFANTS KILLED A VIABLE CHILD, THERE IS NO LIABILITY.
</p><p>
	<B><I>GEMARA</I></B>. Samuel said: There is exemption [for the ox in these cases] only from [the penalty of being stoned to] death, but there is lability [for the owner] to pay <i>kofer</i>.<a id="k44a_12"><sup>12</sup></a>&nbsp; Rab, however, said: There is exemption here from both liabilities.<a id="k44a_13"><sup>13</sup></a>&nbsp; But why [<i>kofer</i>]?<a id="k44a_14"><sup>14</sup></a>&nbsp; Was not the ox <i>Tam</i>?<a id="k44a_15"><sup>15</sup></a>&nbsp; &mdash; Just as [in an analogous case] Rab said that the ox was <i>Mu'ad</i> to fall upon human beings in pits,<a id="k44a_16"><sup>16</sup></a>&nbsp; so also [in this case we say that] the ox was <i>Mu'ad</i> to rub itself against walls [which thus fell] upon human beings. But if so, why should the ox not be liable to [be stoned to] death? It is correct in this other case where we can explain that the ox was looking at some vegetables and so came to fall [into a pit],<a id="k44a_17"><sup>17</sup></a>&nbsp; but here what ground could we give [for assuming otherwise than an intention to kill on the part of the ox]? &mdash; Here also [we may suppose that] the ox had been rubbing itself against the wall for its own gratification.<a id="k44a_17"><sup>17</sup></a>&nbsp; But how can we know this?<a id="k44a_18"><sup>18</sup></a>&nbsp; &mdash; [By noticing that] even after the wall had fallen the ox was still rubbing itself against it.
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k44b_1:" Being done not by the body of the ox but by something set in motion by it."
,k44b_2:" Dealt with <i>supra</i> p. 79."
,k44b_3:" [<I>Kofer</I> is imposed only where death was caused by the body of the ox even as is the case with 'goring'.]"
,k44b_4:" And was thus the whole time as it were a part of the body of the ox."
,k44b_5:" Ex. XXI, 29-30."
,k44b_6:" Cf. Tosef. B.K. IV."
,k44b_7:" I.e. a liability to make good the damage done by the ox."
,k44b_8:" Such as the death of the ox for the manslaughter it committed."
,k44b_9:" As <i>kofer</i> is the ransom of his life."
,k44b_10:" Ex. XXI, 29."
,k44b_11:" Committing murder."
,k44b_12:" Deut. XIX, II."
,k44b_13:" Who differ from R. Simeon on this point. v. Sanh. 79a."
,k44b_14:" And a person was killed."
,k44b_15:" For in matters of judgment the principle of 'majority' is as a rule the deciding factor. [That does not mean to imply that the killing of a heathen was no murder. The Mekilta in Ex. XXI, 12 states explicitly that the crime is equally condemnable irrespective of the religion and nationality of the victim. But what it does mean is that the Biblical legislation in regard to crime did not apply to heathens. As foreigners they fully enjoyed their own autonomous right of self-help, i.e., blood feuds or ransom, prohibited by the Law to the Jews, and accordingly were not governed by the provisions made in the Bible relating to murder, v. Guttmann, <i>loc. cit</i>. p. 16 ff and <i>supra</i> p. 211, n. 6.]"
,k44b_16:" Lit., 'fixed'. For a full discussion of this passage, v. Sanh. (Sonc. ed.) p. 531 and notes a.l."
,k44b_17:" The ox thus becoming ownerless."
,k44b_18:" Ex. XXI, 28-32."
,k44b_19:" <i>Supra</i> p. 55."
,k44b_20:" Ex. XXI, 29."
,k44b_21:" <i>Supra</i> p. 56."
,k44b_22:" Ex. XXI, 29."
,k44b_23:" Cf. <i>supra</i> p. 234. "
}

txt:
<p>
But granted all this, is this manner of damage<a id="k44b_1"><sup>1</sup></a>&nbsp; not on a par with that done by Pebbles<a id="k44b_2"><sup>2</sup></a>&nbsp; [where there would be no liability for <i>kofer</i>]?<a id="k44b_3"><sup>3</sup></a>&nbsp; &mdash; R. Mari the son of R. Kahana thereupon said: [We speak of] a wall gradually brought down by the constant pushing of the ox.<a id="k44b_4"><sup>4</sup></a>
</p><p>
	It has been taught in accordance with Samuel and in refutation of Rab: There are cases where the liability is both for [stoning to] death and <i>kofer</i>: there are other cases, where there is liability for <i>kofer</i> but exemption from [stoning to] death; there are again [other] cases where there is liability [for stoning to] death but exemption from <i>kofer</i>; and there are still other cases where there is exemption both from [stoning to] death and from <i>kofer</i>. How so? In the case of <i>Mu'ad</i> [killing a person] intentionally, there is liability both for [stoning to] death and for <i>kofer</i>.<a id="k44b_5"><sup>5</sup></a>&nbsp; In the case of <i>Mu'ad</i> [killing a person] unintentionally there is liability for <i>kofer</i> but exemption from [stoning to] death. In the case of <i>Tam</i> [killing a person] intentionally there is liability [for stoning to] death but exemption from <i>kofer</i>. In the case of <i>Tam</i> [killing a person] unintentionally, there is exemption from both penalties. Whereas in case of injury [caused by the ox] unintentionally, R. Judah says there is liability to pay [damages], but R. Simeon says there is no liability to pay.<a id="k44b_6"><sup>6</sup></a>&nbsp; What is the reason of R. Judah? &mdash; He derives [the law of damages from] that of <i>kofer</i>: just as for <i>kofer</i> there is liability even where there was no intention [to kill], so also for damages for injuries there is liability even where there was no intention [to injure]. R. Simeon, on the other hand, derived [the law of damages] from that of the killing of the ox: just as the stoning of the ox is not required where there was no intention [to kill], so also damages are not required where there was no intention [to injure]. But why should R. Judah also not derive [the ruling in this case] from [the law applying to the] killing [of the ox]? It is proper to derive [a ruling regarding] payment from [another ruling regarding] payment, but it is not proper to derive [a ruling regarding] payment from [a ruling regarding] killing. Why then should R. Simeon also not derive [the ruling in this case] from [the law applying to] <i>kofer</i>? &mdash; It is proper to derive a liability regarding the ox<a id="k44b_7"><sup>7</sup></a>&nbsp; from another liability that similarly concerns the ox,<a id="k44b_8"><sup>8</sup></a>&nbsp; thus excluding <i>kofer</i> which is a liability that concerns only the owner.<a id="k44b_9"><sup>9</sup></a>
</p><p>
	OR IF THE OX WHILE TRYING TO KILL A BEAST [BY ACCIDENT] KILLED A HUMAN BEING&nbsp;&hellip; THERE IS NO LIABILITY. Where, however, the ox had aimed at killing one human being and [by accident] killed another human being, there would be liability. [This implication of] the Mishnah is not in accordance with R. Simeon. For it has been taught: R. Simeon says: Even where [the ox] aimed at killing one person and [by accident] killed another person there would be no liability. What was the reason of R. Simeon? &mdash; Scripture states: The ox shall be stoned and its owner also shall be put to death,<a id="k44b_10"><sup>10</sup></a>&nbsp; [implying that only] in those cases in which the owner would be subject to be put to death [were he to have committed murder], the ox also would be subject to be put to death. Just as therefore in the case of the owner the liability arises only where he was aiming at the particular person [who was actually killed], so also in the case of the ox the liability will arise only where it was aiming at the particular person [who was actually killed]. But whence do we know that this is so even in the case of the owner himself?<a id="k44b_11"><sup>11</sup></a>&nbsp; &mdash; Scripture States: And lie in wait for him and rise up against him<a id="k44b_12"><sup>12</sup></a>&nbsp; [which indicates that he is not liable] unless he bad been aiming at the particular person [whom he killed]. What then do the Rabbis<a id="k44b_13"><sup>13</sup></a>&nbsp; make of [the words,] 'And lie in wait'? &mdash; It was said at the School of R. Jannai: They except [on the strength of them a manslaughter committed by] a stone being thrown into a crowd.<a id="k44b_14"><sup>14</sup></a>&nbsp; How is this to be understood? If you say that there were [in the crowd] nine heathens and one Israelite, why not except the case on the ground that the majority [in the crowd] were persons who were heathens?<a id="k44b_15"><sup>15</sup></a>&nbsp; And even where they were half and half, does not an accused in a criminal charge have the benefit of the doubt? &mdash; The case is one where there were nine Israelites and one heathen. For though in this case the majority [in the crowd] consisted of Israelites, still since there was among them one heathen he was an essential part [of the group], and essential part<a id="k44b_16"><sup>16</sup></a>&nbsp; is reckoned as equivalent to half, and where there is a doubt in a criminal charge the accused has the benefit.
</p><p>
	<B><I>MISHNAH</I></B>. WHERE AN OX OF A WOMAN, OR AN OX OF [MINOR] ORPHANS, OR AN OX OF A GUARDIAN, OR AN OX OF THE WILDERNESS, OR AN OX OF THE SANCTUARY, OR AN OX OF A PROSELYTE WHO DIED WITHOUT [LEGAL] HEIRS,<a id="k44b_17"><sup>17</sup></a>&nbsp; [HAS KILLED A PERSON], IT IS LIABLE TO [BE STONED TO] DEATH. R. JUDAH SAYS: IN THE CASE OF AN OX OF THE WILDERNESS, AN OX OF THE SANCTUARY AND AN OX OF A PROSELYTE WHO DIED [WITHOUT HEIRS] THERE WOULD BE EXEMPTION FROM [STONING TO] DEATH SINCE THESE HAVE NO [PRIVATE] OWNERS.
</p><p>
	<B><I>GEMARA</I></B>. Our Rabbis taught: [The word] ox occurs seven times [in the section dealing with Cattle killing man]<a id="k44b_18"><sup>18</sup></a>&nbsp; to include the ox of a woman, the ox of [minor] orphans, the ox of a guardian, the ox of the wilderness, the ox of the Sanctuary and the ox of a proselyte who died without [legal] heirs. R. Judah, however, says: An ox of the wilderness, an ox of the Sanctuary and an ox of a proselyte who died without heirs are exempt from [stoning to] death since these have no [private] owners.
</p><p>
	R. Huna said: The exemption laid down By R. Judah extends even to the case where the ox gored and was only subsequently consecrated to the Temple, or where the ox gored and was only subsequently abandoned. Whence do we know this? &mdash; From the fact that R. Judah specified both an ox of the wilderness and an ox of a proselyte who died without heirs. Now what actually is 'an ox of a proselyte who died'? Surely since he left no heirs the ox remained ownerless, and this [category] would include equally an ox of the wilderness and an ox of the proselyte who died without heirs? We must suppose then that what he intended to tell us [in mentioning both] was that even where the ox gored but was subsequently consecrated, or where the ox gored but was subsequently abandoned, [the exemption would still apply] and this may be taken as proved. It has also been taught to the same effect:<a id="k44b_19"><sup>19</sup></a>&nbsp; R. Judah went even further, saying: Even if after having gored, the ox was consecrated or after having gored it became ownerless, there is exemption, as it has been said, <i>And it hath been testified to his owner and he hath not kept him in, but that he hath killed a man or a woman, the ox shall be stoned</i>.<a id="k44b_20"><sup>20</sup></a>&nbsp; This applies only when no change of status has taken place between the manslaughter and the appearance before the Court.<a id="k44b_21"><sup>21</sup></a>&nbsp; Does not the final verdict also need to comply with this same condition? Does not the same text, The ox shall be stoned,<a id="k44b_22"><sup>22</sup></a>&nbsp; [apply also to] the final verdict? &mdash; Read therefore: That is so only when no change in status has taken place between the manslaughter, the appearance before the Court, and the final verdict.
</p><p>
	<B><I>MISHNAH</I></B>. IF WHILE AN OX [SENTENCED TO DEATH] IS BEING TAKEN OUT TO BE STONED ITS OWNER DECLARES IT SACRED, IT DOES NOT BECOME SACRED;<a id="k44b_23"><sup>23</sup></a>&nbsp; IF HE SLAUGHTERS IT, ITS FLESH IS FORBIDDEN [FOR ANY USE].<a id="k44b_23"><sup>23</sup></a>&nbsp; IF, HOWEVER. BEFORE THE SENTENCE HAS BEEN PRONOUNCED THE OWNER CONSECRATES IT, IT IS CONSECRATED, AND IF HE SLAUGHTERS IT, ITS FLESH IS PERMITTED [FOR FOOD].
</p><p>
	IF THE OWNER HANDS OVER HIS CATTLE TO AN UNPAID BAILEE OR TO A BORROWER, TO A PAID BAILEE OR TO A HIRER, THEY ENTER INTO ALL LIABILITIES IN LIEU OF THE OWNER: IN THE CASE OF <I>MU'AD</I> THE PAYMENT WOULD HAVE TO BE IN FULL, WHEREAS IN THE CASE OF <I>TAM</I> HALF DAMAGES WOULD BE PAID.
</p><p>
	<B><I>GEMARA</I></B>. Our Rabbis taught: If an ox has killed [a person], and before its judgment is pronounced its owner sells it,
</P>


lvr: 41
dfh: a
notes:
 ntes={k45a_1:" I.e. between R. Jacob and the Rabbis."
,k45a_2:" Against a depositor or against a person who was robbed of an article, before it became prohibited for any use."
,k45a_3:" The reason is that, by becoming forbidden for any use, the things, though not undergoing any change in their external size and appearance, do not remain (in the eyes of the law) the same things as were previously deposited with the bailee or misappropriated by the robber, their status then having been different."
,k45a_4:" That R. Jacob and the Rabbis differ on this point."
,k45a_5:" Stolen before the eve of Passover."
,k45a_6:" I.e. whether the leaven might be returned by the robber after the approach of Passover when it became forbidden for any use; cf. <i>infra</i> pp. 561, 572."
,k45a_7:" I.e. the Court of Law."
,k45a_8:" Ex. XXI, 29."
,k45a_9:" For which cf. Num. XXXV, 12."
,k45a_10:" That its presence should be required."
,k45a_11:" Ex. XXI, 28."
,k45a_12:" With the exception, however, of the borrower who is liable even for accidents."
,k45a_13:" For he also is liable for carelessness."
,k45a_14:" Such as e.g. a door which would withstand only an ordinary wind. V. <i>infra</i> 55b"
,k45a_15:" So as to withstand a wind of even unusual force. "
}

txt:
<p>
the sale holds good; if he declares it sacred, it is sacred; if it is slaughtered, its flesh is permitted [for food]; if a bailee returns it to the house of its owner, it is an effective restoration. But if after its sentence had already been pronounced the owner sold it, the sale would not be valid; if he consecrates it, it is not consecrated; if it is slaughtered its flesh is forbidden [for any use]; if a bailee returns it to the house of its owner, it is not an effective restoration. R. Jacob, however, says: Even if after the sentence had already been pronounced the bailee returned it to its owner, it would be an effective restoration. Shall we say that the point at issue<a id="k45a_1"><sup>1</sup></a>&nbsp; is that in the view of the Rabbis it is of no avail to plead<a id="k45a_2"><sup>2</sup></a>&nbsp; regarding things which became forbidden for any use, 'Here is your property before you',<a id="k45a_3"><sup>3</sup></a>&nbsp; whereas in the view of R. Jacob it can be pleaded even regarding things forbidden for any use, 'Here is your property before you'? &mdash; Rabba said: Both parties in fact agree that even regarding things forbidden for any use, the plea, 'Here is your property before you' can be advanced, for if it is as you said,<a id="k45a_4"><sup>4</sup></a>&nbsp; why did they not differ in the case of leaven<a id="k45a_5"><sup>5</sup></a>&nbsp; on Passover?<a id="k45a_6"><sup>6</sup></a>&nbsp; But the point at issue here [in the case before us] must therefore be whether [or not] sentence may be pronounced over an ox in its absence. The Rabbis maintain that no sentence can be pronounced over an ox in its absence, and the owner may accordingly plead against the bailee: 'If you would have returned it to me [before the passing of the sentence], I would have caused it to escape to the pastures, whereas you have allowed my ox to fall into the hands of those<a id="k45a_7"><sup>7</sup></a>&nbsp; against whom I am unable to bring any action'. R. Jacob, however, maintains that the sentence can be pronounced over the ox even in its absence, and the bailee may accordingly retort to the owner: 'In any case the sentence would have been passed on the ox.' What is the reason of the Rabbis? &mdash; [Scripture says]: The ox shall be stoned and its owner also shall be put to death<a id="k45a_8"><sup>8</sup></a>&nbsp; [implying that] the conditions under which the owner would be subject to be put to death [were he to have committed murder], are also the conditions under which the ox would be subject to be put to death; just as in the case of the owner [committing murder, the sentence could be passed only] in his presence,<a id="k45a_9"><sup>9</sup></a>&nbsp; so also [the sentence] in the case of an ox [could be passed only] in its presence. But R. Jacob [argues]: That applies well enough to the case of the owner [committing murder], as he is able to submit pleas, but is the ox also able to submit pleas?<a id="k45a_10"><sup>10</sup></a>
</p><p>
	WHERE AN OWNER HAS HANDED OVER HIS CATTLE TO AN UNPAID BAILEE OR TO A BORROWER etc. Our Rabbis taught: The following four [categories of persons] enter into all liabilities in lieu of the owner, viz., Unpaid Bailee and Borrower, Paid Bailee and Hirer. [If cattle so transferred] kill [a person] if they are <i>Tam</i>, they would be stoned to death, but there would be exemption from <i>kofer</i>,<a id="k45a_11"><sup>11</sup></a>&nbsp; whereas in the case of <i>Mu'ad</i>, they would be stoned and the bailees in charge would be liable to pay <i>kofer</i>. In all cases, however, the value of the ox would have to be reimbursed to the owner by all of the bailees with the exception of the Unpaid Bailee. I would here ask with what circumstances are we dealing? If where the ox [was well] guarded, why should all of them<a id="k45a_12"><sup>12</sup></a>&nbsp; not be exempt [from having to reimburse the owner]? If on the other hand it was not guarded well, why should even the Unpaid Bailee not be liable?<a id="k45a_13"><sup>13</sup></a>&nbsp; &mdash; It might be said that we are dealing here with a case where inferior precautions<a id="k45a_14"><sup>14</sup></a>&nbsp; were taken to control the ox but not really adequate precautions.<a id="k45a_15"><sup>15</sup></a>&nbsp; In the case of an Unpaid Bailee his obligation to control was thereby fulfilled, whereas the others did thereby not yet fulfil their obligation to control. Still I would ask, whose view is here followed? If that of R. Meir
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k45b_1:" Cf. <i>infra</i> 57b."
,k45b_2:" For R. Judah maintains that even an inferior precaution in the case of <i>Mu'ad</i> suffices to confer exemption for any damage that has nevertheless resulted."
,k45b_3:" <i>Infra</i> p. 259."
,k45b_4:" V. p. 257, n. 7. [And since R. Meir also holds that <i>Mu'ad</i> requires adequate precaution, he rightly makes the Hirer liable to pay <i>kofer</i> as well as reimburse the owner.]"
,k45b_5:" So that it would be perfectly safe in the case of an ordinary wind; cf. <i>infra</i> 55b."
,k45b_6:" Ex. XXI, 36."
,k45b_7:" Cf. <i>supra</i> p. 64."
,k45b_8:" So that it would be safe even in the case of a wind of unusual force."
,k45b_9:" To show that both require really adequate precaution."
,k45b_10:" V. Shebu. (Sonc. ed.) p. 12, n. 3."
,k45b_11:" Cf. <i>supra</i> p. 250. [So that for <i>Tam</i> too an inferior precaution should suffice.]"
,k45b_12:" To Mua'd."
,k45b_13:" To <i>Tam</i>."
,k45b_14:" Lit., 'for the negative', that is, that he is liable because be failed to take the necessary precautions.]"
,k45b_15:" V. p. 259, n. 7."
,k45b_16:" Ibid. n. 8."
,k45b_17:" Ibid. n. 6."
,k45b_18:" I.e. the half added on account of the ox having been declared <i>Mu'ad</i>."
,k45b_19:" And thus constantly subject to the law of <i>Tam</i>."
,k45b_20:" Damage done by the right horn would thus be subject to the degree of precaution required in the case of <i>Mu'ad</i> while damage done by the left horn would still remain subject to the degree of precaution needed in <i>Tam</i>."
,k45b_21:" Thus so far as precaution is concerned there would in this case be no difference between the right horn and the left horn."
,k45b_22:" Who demands a greater degree of precaution in case of a <i>Tam</i> than in that of a <i>Mu'ad</i>, and accordingly there would be no liability if the ox gored with the right horn after inferior precautions had been taken, whereas there would be liability with the left horn."
,k45b_23:" Requiring on that account adequate precautions, in the absence of which there should be liability."
,k45b_24:" Where the ox gored three times with the right horn and was declared <i>Mu'ad</i> accordingly, remaining thus <i>Tam</i> in respect of the left horn. "
}

txt:
<p>
who maintained<a id="k45b_1"><sup>1</sup></a>&nbsp; that Hirer is subject to the same law as Unpaid Bailee, why is it not taught above 'with the exception of Unpaid Bailee and Hirer'? If [on the other hand the view followed] was that of R. Judah who maintained<a id="k45b_1"><sup>1</sup></a>&nbsp; that Hirer should be subject to the same law as Paid Bailee, why was it not taught 'with the exception of Unpaid Bailee, whereas in the case of <i>Mu'ad</i> they all would be exempt from kofer'?<a id="k45b_2"><sup>2</sup></a>&nbsp; &mdash; R. Huna b. Hinena thereupon said: This teaching is in accordance with R. Eliezer, who said,<a id="k45b_3"><sup>3</sup></a>&nbsp; that the only precaution for it [<i>Mu'ad</i>] is the slaughter knife, and who regarding Hirer might agree with the view of R. Judah that Hirer should be subject to the same law as Paid Bailee. Abaye, however, said: It could still follow the view of R. Meir, but as transposed by Rabbah b. Abbahu who learnt thus: How is the payment [for the loss of the article] regulated in the case of Hirer? R. Meir says: As in the case of Paid Bailee. R. Judah, however, says: As in the case of Unpaid Bailee.<a id="k45b_4"><sup>4</sup></a>
</p><p>
	R. Eleazar said: Where an ox had been handed over to an Unpaid Bailee and damage was done by it, the bailee would be liable, but where damage was done to it, the bailee would be exempt. I would here ask what were the circumstances? If where the bailee had undertaken to guard the ox against damage, why even in the case where it was injured should there be no liability? If, on the other hand, where the bailee had not undertaken to guard against damage why even in the case where damage was done by the ox should there not be exemption? &mdash; Raba thereupon said: We suppose in fact that the bailee had undertaken to guard the ox against damage, but the case here is one where he had known the ox to be a gorer, and it is natural that what he did undertake was to prevent the ox from going and doing damage to others, but he did not think of the possibility of others coming and injuring it.
</p><p>
	<B><I>MISHNAH</I></B>. IF THE OWNER FASTENED HIS OX [TO THE WALL INSIDE THE STABLE] WITH A CORD, OR SHUT THE DOOR IN FRONT OF IT IN THE ORDINARY WAY<a id="k45b_5"><sup>5</sup></a>&nbsp; BUT THE OX GOT OUT AND DID DAMAGE, WHETHER IT HAD BEEN <I>TAM</I> OR ALREADY <I>MU'AD</I>, HE WOULD BE LIABLE; THIS IS THE RULING OF 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> HE WOULD BE EXEMPT, SINCE IT IS WRITTEN, AND HIS OWNER HATH NOT KEPT HIM IN,<a id="k45b_6"><sup>6</sup></a>&nbsp; [THUS EXCLUDING THIS CASE WHERE] IT WAS KEPT IN. R. ELIEZER SAYS: NO PRECAUTION IS SUFFICIENT [FOR <I>MU'AD</I>] SAVE THE [SLAUGHTER] KNIFE.
</p><p>
	<B><I>GEMARA</I></B>. What was the reason of R. Meir? &mdash; He Maintained that normally oxen are not kept under control,<a id="k45b_7"><sup>7</sup></a>&nbsp; and the Divine Law enacted that <i>Tam</i> should involve liability to show that at least moderate precautions were required. Then the Divine Law stated further in the case of <i>Mu'ad</i>, And his owner hath not kept him in,<a id="k45b_6"><sup>6</sup></a>&nbsp; to show that [for this] really adequate precautions are required;<a id="k45b_8"><sup>8</sup></a>&nbsp; and the goring mentioned in the case of <i>Tam</i> is now placed on a par with the goring mentioned in the case of <i>Mu'ad</i>.<a id="k45b_9"><sup>9</sup></a>&nbsp; R. Judah, however, maintained that oxen normally are kept under control, and the Divine Law stated that in the case of <i>Tam</i> there should be payment to show that really adequate precaution is required. The Divine Law, however, goes on to say, And his owner hath not kept him in,<a id="k45b_6"><sup>6</sup></a>&nbsp; in the case of <i>Mu'ad</i>. [This would imply] that there should be there precaution of a superior degree. [These words, however, constitute] an amplification following an amplification, and as the rule is that an amplification following an amplification intimates nothing but a limitation,<a id="k45b_10"><sup>10</sup></a>&nbsp; Scripture has thus reduced the superior degree of the required precaution. And should you object to this that goring is mentioned in the case of <i>Tam</i> and goring is mentioned in the case of <i>Mu'ad</i><a id="k45b_9"><sup>9</sup></a>&nbsp; [for mutual inference,<a id="k45b_11"><sup>11</sup></a>&nbsp; the answer is that in this case] the Divine Law has explicitly restricted [this ruling by stating] And his owner hath not kept him in,<a id="k45b_6"><sup>6</sup></a>&nbsp; [the word 'him' confining the application] to this one<a id="k45b_12"><sup>12</sup></a>&nbsp; but not to another.<a id="k45b_13"><sup>13</sup></a>&nbsp; But surely these words are needed for the stated purpose?<a id="k45b_14"><sup>14</sup></a>&nbsp; &mdash; [If that were so, the Divine Law should write surely, 'Hath not kept in'. Why does it say, hath not kept him in? To show that the rule applies to this one<a id="k45b_15"><sup>15</sup></a>&nbsp; but not to another.<a id="k45b_16"><sup>16</sup></a>
</p><p>
	It has been taught: R. Eliezer b. Jacob says: Whether in the case of <i>Tam</i> or in that of <i>Mu'ad</i>, as soon as even inferior precautions have been taken [to control the ox], there is exemption. What is his reason? &mdash; He concurs with R. Judah, in holding that in the case of <i>Mu'ad</i> precaution even of an inferior degree is sufficient, and he [extended this ruling to <i>Tam</i> as he] on the strength of [the mutual inference<a id="k45b_17"><sup>17</sup></a>&nbsp; conveyed by] the mention of goring in the case both of <i>Tam</i> and of <i>Mu'ad</i>.<a id="k45b_17"><sup>17</sup></a>
</p><p>
	R. Adda b. Ahabah said: The exemption laid down by R. Judah applies only to the part of the payment due on account of the ox having been declared <i>Mu'ad</i>,<a id="k45b_18"><sup>18</sup></a>&nbsp; but the portion due on account of <i>Tam</i> remains unaffected.<a id="k45b_19"><sup>19</sup></a>&nbsp; Rab said: Where the ox was declared <i>Mu'ad</i> to gore with the right horn, it would thereby not become <i>Mu'ad</i> for goring with the left horn.<a id="k45b_20"><sup>20</sup></a>&nbsp; I would here ask: In accordance with whose view [was this statement made]? If in accordance with R. Meir, did he not say that whether in the case of <i>Tam</i> or in that of <i>Mu'ad</i>, precaution of a superior degree was needed?<a id="k45b_21"><sup>21</sup></a>&nbsp; If [on the other hand] in accordance with R. Judah,<a id="k45b_22"><sup>22</sup></a>&nbsp; why specify only the left horn? Even in the case of the right horn itself, does not one part of the payment come under the rule of <i>Tam</i><a id="k45b_23"><sup>23</sup></a>&nbsp; and another under that of <i>Mu'ad</i>? I may say that in fact it is in accordance with R. Judah, and that Rab does not concur in the view. expressed by R. Addah b. Ahabah, and what Rab thus intended to say was that it was only in such an instance<a id="k45b_24"><sup>24</sup></a>&nbsp; that there would be in one ox part <i>Tam</i> and part <i>Mu'ad</i>.
</P>


lvr: 41
dfh: a
notes:
 ntes={k47a_1:" On account of the doubt involved in the case dealt with in the Mishnah."
,k47a_2:" In which case it participated in the goring."
,k47a_3:" [So Rashi. Curr. edd. read 'mere excrement'.]"
,k47a_4:" But that the cow should be valued separately and the calf separately."
,k47a_5:" [You do not value the hand separately, viz., what price a master would in the first instance be willing to take for depriving his slave of the use of his hand; but the difference in the value of a slave who had his hand cut off &mdash; a much smaller price.]"
,k47a_6:" [The valuation is not made on the basis of the single plot which has been damaged, but on the basis of its value in relation to the whole field.]"
,k47a_7:" As the embryo did not increase the fatness of the cow."
,k47a_8:" As both the cow and embryo participate in the bulky appearance of the animal."
,k47a_9:" As the plaintiff was a trespasser."
,k47a_10:" In which case he was no trespasser"
,k47a_11:" V.p. 266, n. 7. "
}

txt:
<p>
But where the cow is not available, quarter damages will be paid out of the body of the calf.<a id="k47a_1"><sup>1</sup></a>&nbsp; Now this is so only where it is not known whether the calf was still part of the cow at the time she gored or whether it was not so, but were we certain that the calf was still part of the cow at the time of the goring<a id="k47a_2"><sup>2</sup></a>&nbsp; the whole payment of the half damages would be made from the body of the calf. Raba here adopts the same line of reasoning [as in another place], as Raba has indeed stated: Where a cow has done damage, payment can be collected out of the body of its calf, the reason being that the latter is a part of the body of the former, whereas in the case of a chicken doing damage, no payment will be made out of its eggs, the reason being that they are a separate [body].<a id="k47a_3"><sup>3</sup></a>
</p><p>
	Raba further said: [Where an ox has gored a cow and caused miscarriage] the valuation will not be made for the cow separately and for the calf separately, but the valuation will be made for the calf as at the time when it formed a part of the cow; for if you do not adopt this rule,<a id="k47a_4"><sup>4</sup></a>&nbsp; you will be found to be making the defendant suffer unduly. The same method is followed in the case of the cutting off the hand of a neighbour's slave;<a id="k47a_5"><sup>5</sup></a>&nbsp; and the same method is followed in the case of damage done to a neighbour's field.<a id="k47a_6"><sup>6</sup></a>&nbsp; Said R. Aha the son of Raba to R. Ashi: If justice demands, why should not the defendant suffer? &mdash; Because he is entitled to say to him: 'Since it was a pregnant cow that I deprived you of, it is a pregnant cow which should be taken into valuation.'
</p><p>
	There is no question that where the cow belonged to one owner and the calf to another owner, the value of the fat condition of the cow will go to the owner of the cow.<a id="k47a_7"><sup>7</sup></a>&nbsp; But what of the value of its bulky appearance? &mdash; R. Papa said: It will go to the owner of the cow. R. Aha the son of R. Ika said: It will be shared [by the two owners].<a id="k47a_8"><sup>8</sup></a>&nbsp; The law is that it will be shared [by the two owners].
</p><p>
	<B><I>MISHNAH</I></B>.IF A POTTER BRINGS HIS WARES INTO THE COURTYARD OF ANOTHER PERSON WITHOUT PERMISSION, AND THE CATTLE OF THE OWNER OF THE COURTYARD BREAKS THEM, THERE IS NO LIABILITY.<a id="k47a_9"><sup>9</sup></a>&nbsp; MOREOVER, SHOULD THE ANIMAL BE INJURED BY THEM, THE OWNER OF THE POTTERY IS LIABLE [TO PAY DAMAGES]. IF, HOWEVER, HE BROUGHT [THEM] IN WITH PERMISSION,<a id="k47a_10"><sup>10</sup></a>&nbsp; THE OWNER OF THE COURTYARD IS LIABLE. SIMILARLY IF [A MAN] BRINGS HIS PRODUCE INTO THE COURTYARD OF ANOTHER PERSON WITHOUT PERMISSION AND THE ANIMAL OF THE OWNER OF THE PREMISES CONSUMES IT, THERE IS NO LIABILITY.<a id="k47a_11"><sup>11</sup></a>&nbsp; IF IT WAS HARMED BY IT THE OWNER WOULD BE LIABLE. IF, HOWEVER, HE BROUGHT THEM IN WITH PERMISSION,<a id="k47a_10"><sup>10</sup></a>&nbsp; THE OWNER OF THE PREMISES WOULD BE LIABLE. SO ALSO IF [A MAN] BRINGS HIS OX INTO THE COURTYARD OF ANOTHER WITHOUT
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k47b_1:" Ex. XXI, 29-30."
,k47b_2:" [For the present it is assumed that the duty applies alike to the owner of the pottery in regard to the belongings of the owner of the premises as to the latter in regard to the pottery.]"
,k47b_3:" The representatives of the anonymous view cited on the Mishnah."
,k47b_4:" Whereas the owner of the pottery could never be considered to have by implication accepted upon himself the responsibility for safeguarding the belongings of the owner of the premises."
,k47b_5:" Imposing liability where the animal was injured by the produce."
,k47b_6:" Cf. <i>infra</i> 57b."
,k47b_7:" V. <i>infra</i> p. 376."
,k47b_8:" V. <i>infra</i> 56a."
,k47b_9:" [St. John's Wort.]"
,k47b_10:" Rab."
,k47b_11:" So that the owner of the courtyard should not be liable for the harm occasioned by the wheat to the ox brought in with his permission."
,k47b_12:" And the harm was done to the ox thus brought in with permission."
,k47b_13:" I.e. where produce brought in without permission was eaten by the owner's animal which thereby suffered harm, in which case the owner though being a trespasser has still no liability to safeguard to that extent the belongings of the owner of the premises."
,k47b_14:" [Karna, one of the Judges of the Exile, had a collection of Babylonian traditions, [H] (Gen. Rab. XXXIII), of pre-Amoraic days, v. Funk, S., <I>Die Juden in Babylonian</I>, I, n. 1.]"
,k47b_15:" In the absence of permission."
,k47b_16:" Where permission was granted."
,k47b_17:" [This shows that the responsibility assumed by the owner of the premises extends in regard to damages in general.] "
}

txt:
<p>
PERMISSION AND THE OX OF THE OWNER OF THE PREMISES GORES IT OR THE DOG OF THE OWNER OF THE PREMISES BITES IT, THERE IS NO LIABILITY. MOREOVER SHOULD IT GORE THE OX OF THE OWNER OF THE PREMISES ITS OWNER WOULD BE LIABLE. AGAIN, IF IT FALLS [THERE] INTO A PIT OF THE OWNER OF THE PREMISES AND MAKES THE WATER IN IT FOUL, THERE WOULD BE LIABILITY. SO ALSO IF [IT KILLS] THE OWNER'S FATHER OR SON [WHO] WAS INSIDE THE PIT, THERE WOULD BE LIABILITY TO PAY <I>KOFER</I>.<a id="k47b_1"><sup>1</sup></a>&nbsp; IF, HOWEVER, HE BROUGHT IT IN WITH PERMISSION, THE OWNER OF THE YARD WOULD BE LIABLE. RABBI, HOWEVER, SAYS: IN ALL THESE CASES THE OWNER OF THE PREMISES WOULD NOT BE LIABLE UNLESS HE HAS TAKEN IT UPON HIMSELF TO WATCH [THE ARTICLES BROUGHT INTO HIS PREMISES].
</p><p>
	<B><I>GEMARA</I></B>. The reason why [the potter would be liable for damage occasioned by his pottery to the cattle of the owner of the premises] is because the entry was without permission, which shows that were it with permission the owner of the pots would not be liable for the damage done to the cattle of the owner of the premises and we do not say that the owner of the pots has by implication undertaken to watch the cattle of the owner of the premises. Who is the authority for this view? &mdash; Rabbi, who has laid down that without express stipulation no duty to watch is undertaken.<a id="k47b_2"><sup>2</sup></a>&nbsp; Now look at the second clause: IF HE BROUGHT THEM IN WITH PERMISSION, THE OWNER OF THE PREMISES WOULD BE LIABLE. This brings us round to the view of the Rabbis,<a id="k47b_3"><sup>3</sup></a>&nbsp; who said that even without express stipulation he makes himself responsible for watching. Moreover, [it was further stated]: RABBI SAYS: IN ALL THESE CASES THE OWNER OF THE PREMISES WOULD NOT BE LIABLE UNLESS HE HAS TAKEN UPON HIMSELF TO WATCH. [Are we to say that] the opening clause and the concluding clause are in accordance with Rabbi while the middle clause is in accordance with the Rabbis? &mdash; R. Zera thereupon said: The contradiction [is obvious]; he who taught one clause cannot have taught the other clause. Raba, however, said; The whole [of the anonymous part of the Mishnah] is in accordance with the Rabbis, for [where the entry was] with permission the owner of the premises undertook the safeguarding of the pots even against breakage by the wind.<a id="k47b_4"><sup>4</sup></a>
</p><p>
	IF [A MAN] BRINGS HIS PRODUCE INTO THE COURTYARD OF ANOTHER OWNER etc. Rab said: This rule<a id="k47b_5"><sup>5</sup></a>&nbsp; applies only where the animal [was injured] by slipping on them, but if the animal ate them [and was thereby harmed], there would be exemption on the ground that it should not have eaten them.<a id="k47b_6"><sup>6</sup></a>&nbsp; Said R. Shesheth: I feel inclined to say that it was only when he was drowsy or asleep that Rab could have made such a statement.<a id="k47b_7"><sup>7</sup></a>&nbsp; For it was taught: If one places deadly poison before the animal of another he is exempt from the judgment of Man, but liable to the judgment of Heaven.<a id="k47b_8"><sup>8</sup></a>&nbsp; Now, that is so only in the case of deadly poison which is not usually consumed by an animal, but in the case of products that are usually consumed by an animal, there appears to be liability even to the judgment of Man. But why should this be so? [Why not argue:] It should not have eaten them? &mdash; I may reply that strictly speaking even in the case of produce there should be exemption from the judgment of Man, and there was a special purpose in enunciating this ruling with reference to deadly poison, namely that even where the article was one not usually consumed by an animal, there will still be liability to the judgment of Heaven. Or if you wish you may say that by the deadly poison mentioned was meant hypericum,<a id="k47b_9"><sup>9</sup></a>&nbsp; which like a fruit [is eaten by animals].
</p><p>
	An objection could be raised [from the following]: If a woman enters the premises of another person to grind wheat without permission, and the animal of the owner consumes it, there is no liability; if the animal is harmed, the woman would be liable. Now, why not argue: It should not have over-eaten? &mdash; I can answer: [In what respect] does this case go beyond that of the Mishnah, which was interpreted [to refer to damage occasioned by] the animal having slipped over them? What then was in the mind of the one who made the objection? &mdash; He might have said to you; Your explanation is satisfactory regarding the Mishnah where it says, IF IT WAS HARMED BY IT [which admits of being interpreted] that the animal slipped over them. But here [in the Baraitha] it says, 'if the animal is harmed', without the words 'by them', so that surely the consumption [of the wheat] is what is referred to. And the other?<a id="k47b_10"><sup>10</sup></a>&nbsp; &mdash; He can contend [that the omission of these words] makes no difference.
</p><p>
	Come and hear: If a man brought his ox into the courtyard of another person without permission, and it ate there wheat and got diarrhoea from which it died, there would be no liability. But if he brought it in with permission, the owner of the courtyard would be liable. Now why not argue: It should not have eaten?<a id="k47b_11"><sup>11</sup></a>&nbsp; &mdash; Raba thereupon said: How can you raise an objection from a case where permission was given<a id="k47b_12"><sup>12</sup></a>&nbsp; against a case where permission was not given?<a id="k47b_13"><sup>13</sup></a>&nbsp; Where permission was given, the owner of the premises assumed liability for safeguarding the ox even against its strangling itself.
</p><p>
	The question was raised: Where the owner of the premises has assumed responsibility to safeguard [the articles brought in to his premises], what is the legal position? Has the obligation to safeguard been assumed by him [only] against damage from his own [beasts], or has he perhaps also undertaken to safeguard from damage in general? Come and hear: Rab Judah b. Simon learnt in the [Tractate] Nezikin of the School of Karna;<a id="k47b_14"><sup>14</sup></a>&nbsp; If a man brings his produce into the courtyard of another without permission, and an ox from elsewhere comes and consumes it, there is no liability. But if he brought it in with permission there would be liability. Now, who would be exempt<a id="k47b_15"><sup>15</sup></a>&nbsp; and who would be liable?<a id="k47b_16"><sup>16</sup></a>&nbsp; Does it not mean that the owner of the premises would be exempt<a id="k47b_15"><sup>15</sup></a>&nbsp; and<a id="k47b_16"><sup>16</sup></a>&nbsp; the owner of the premises would  be liable?<a id="k47b_17"><sup>17</sup></a>&nbsp; &mdash; I may say that this is not so, it is the owner of the ox who would be exempt<a id="k47b_15"><sup>15</sup></a>&nbsp; and the owner of the ox who would be liable.<a id="k47b_16"><sup>16</sup></a>&nbsp; But if it refers to the owner of the ox,
</P>


lvr: 41
dfh: a
notes:
 ntes={k48a_1:" Since the defendant was not the owner of the premises."
,k48a_2:" As the plaintiff obtained a legal right to keep there the object which was subsequently damaged by a stray ox."
,k48a_3:" Ex. XXII, 4."
,k48a_4:" I.e. on premises where the plaintiff has no more right than the owner of the ox, the defendant."
,k48a_5:" Cf. <i>supra</i> p. 17."
,k48a_6:" V. p. 270, n. 4."
,k48a_7:" V. p. 270, n. 5."
,k48a_8:" V. p. 270, n. 7."
,k48a_9:" <i>Supra</i> p. 125."
,k48a_10:" V. p. 270, n. 8."
,k48a_11:" <i>Supra</i> p. 268."
,k48a_12:" And the woman would therefore not have to pay for the damage sustained by the animal of the owner of the premises."
,k48a_13:" V. the discussion that follows."
,k48a_14:" Why then should the woman, the owner of the dough, have to pay?"
,k48a_15:" Lit., 'she requires privacy.' As the woman would usually have to uncover her arms."
,k48a_16:" <i>Infra</i> p. 93 and cf. also <i>supra</i> 51a."
,k48a_17:" Ex. XXI, 33."
,k48a_18:" The owner of the ground is therefore liable for any damage resulting from the pit."
,k48a_19:" By stumbling over it"
,k48a_20:" And, as it is assumed at present, it did damage thereby."
,k48a_21:" If damage was done by it."
,k48a_22:" As any other nuisance."
,k48a_23:" For Scripture said: Ox and ass'; cf. <i>supra</i> p. 18."
,k48a_24:" <i>Supra</i> p. 150."
,k48a_25:" But where they were not abandoned they would be subject to the law applicable to Cattle, where there is no exemption for damage done to inanimate objects."
,k48a_26:" Cf. B.M. 27a."
,k48a_27:" [Whether with or without intention.]"
,k48a_28:" I.e. the trespasser, by stumbling over him."
,k48a_29:" Upon the trespasser."
,k48a_30:" Cf. <i>supra</i> p. 124."
,k48a_31:" I.e. Raba and R. Papa. >"
}

txt:
<p>
what has permission or absence of permission to do with the case?<a id="k48a_1"><sup>1</sup></a>&nbsp; &mdash; I will answer; [Where the produce was brought in] with permission, the case would be one of Tooth [doing damage] in the plaintiff's premises,<a id="k48a_2"><sup>2</sup></a>&nbsp; and Tooth doing damage in the plaintiff's premises entails liability,<a id="k48a_3"><sup>3</sup></a>&nbsp; whereas in the absence of permission it would be a case of Tooth doing damage on public ground,<a id="k48a_4"><sup>4</sup></a>&nbsp; and Tooth doing damage on public ground entails no liability.<a id="k48a_5"><sup>5</sup></a>
</p><p>
	Come and hear: If a man brings his ox into the premises of another person without permission, and an ox from elsewhere comes and gores it, there is no liability. But if he brought it in with permission there would be liability. Now, who would be exempt<a id="k48a_6"><sup>6</sup></a>&nbsp; and who would be liable?<a id="k48a_7"><sup>7</sup></a>&nbsp; Does it not mean that it is the owner of the premises who would be exempt<a id="k48a_6"><sup>6</sup></a>&nbsp; and the owner of the premises who would be liable?<a id="k48a_7"><sup>7</sup></a>&nbsp; &mdash; No, it is the owner of the ox [from elsewhere] who would be exempt<a id="k48a_6"><sup>6</sup></a>&nbsp; and similarly it is the owner of the ox [from elsewhere] who would be liable.<a id="k48a_7"><sup>7</sup></a>&nbsp; But if so, what has permission or the absence of permission to do with the case?<a id="k48a_8"><sup>8</sup></a>&nbsp; &mdash; I would answer that this teaching is in accordance with R. Tarfon, who held<a id="k48a_9"><sup>9</sup></a>&nbsp; that the unusual damage occasioned by Horn in the plaintiff's premises has to be compensated in full: [Where the ox was brought in] with permission the case would therefore be one of Horn doing damage in the plaintiff's premises<a id="k48a_10"><sup>10</sup></a>&nbsp; and the payment would have to be for full damages, whereas in the absence of permission it would amount to Horn doing damage on public ground,<a id="k48a_4"><sup>4</sup></a>&nbsp; and the payment would accordingly be only for half damages.
</p><p>
	A certain woman once entered the house of another person for the purpose of baking bread there, and a goat of the owner of the house came and ate up the dough, from which it became sick and died. [In giving judgment] Raba ordered the woman to pay damages for the value of the goat. Are we to say now that Raba differed from Rab, since Rab said:<a id="k48a_11"><sup>11</sup></a>&nbsp; It should not have eaten?<a id="k48a_12"><sup>12</sup></a>&nbsp; &mdash; I may reply, are both cases parallel? There,<a id="k48a_11"><sup>11</sup></a>&nbsp; there was no permission and the owner of the produce did not assume any obligation of safeguarding [the property of the owner of the premises], whereas in this case, permission had been given and the woman had accepted responsibility for safeguarding<a id="k48a_13"><sup>13</sup></a>&nbsp; [the property of the owner of the premises]. But why should the rule in this case be different from [what has been laid down, that] if a woman enters the premises of another person to grind wheat without permission, and the animal of the owner of the premises eats it up, the owner is not liable, and if the animal suffers harm the woman is liable, the reason being that there was no permission, which shows that where permission was granted she would be exempt?<a id="k48a_14"><sup>14</sup></a>&nbsp; &mdash; I can answer: In the case of grinding wheat, since there is no need of privacy at all, and the owner of the premises is not required to absent himself, the obligation to take care [of his property] still devolves upon him, whereas in the case of baking where, since privacy is required,<a id="k48a_15"><sup>15</sup></a>&nbsp; the owner of the premises absents himself [from the premises], the obligation to safeguard his property must fall upon the woman.
</p><p>
	IF A MAN BRINGS HIS OX INTO THE PREMISES OF ANOTHER PERSON [etc.]. Raba said: If he brings his ox on another person's ground and it digs there pits, ditches, and caves, the owner of the ox would be liable for the damage done to the ground, and the owner of the ground would be liable for any damage resulting from the pit. For though the Master stated:<a id="k48a_16"><sup>16</sup></a>&nbsp; [It says,] If a man shall dig a pit,<a id="k48a_17"><sup>17</sup></a>&nbsp; and not 'if an ox [shall dig] a pit', still here [in this case] since it was the duty of the owner of the ground to fill in the pit and he did not fill it in, he is reckoned [in the eyes of the law] as having himself dug it.<a id="k48a_18"><sup>18</sup></a>
</p><p>
	Raba further said: If he brings his ox into the premises of another person without permission, and the ox injures the owner of the premises, or the owner of the premises suffers injury through the ox,<a id="k48a_19"><sup>19</sup></a>&nbsp; he is liable, but if it lies down,<a id="k48a_20"><sup>20</sup></a>&nbsp; he has no liability. But why should the fact of its lying down confer exemption?<a id="k48a_21"><sup>21</sup></a>&nbsp; &mdash; R. Papa thereupon said: What is meant by 'it lies down' is that the ox lays down its excrements [upon the ground], and thereby soils the utensils of the owner of the premises. [The exemption is because] the excrements<a id="k48a_22"><sup>22</sup></a>&nbsp; are a case of Pit, and we have never found Pit involving liability for damage done to inanimate objects.<a id="k48a_23"><sup>23</sup></a>&nbsp; This explanation is satisfactory if we adopt the view of Samuel who held<a id="k48a_24"><sup>24</sup></a>&nbsp; that all kinds of nuisances come under the head of Pit. But on the view of Rab who said<a id="k48a_24"><sup>24</sup></a>&nbsp; [that they do not come under the head of Pit] unless they have been abandoned,<a id="k48a_25"><sup>25</sup></a>&nbsp; what are we to say? &mdash; It may safely be said that excrements as a rule are abandoned.<a id="k48a_26"><sup>26</sup></a>
</p><p>
	Raba said further: If one enters the premises of another person without permission, and injures the owner of the premises,<a id="k48a_27"><sup>27</sup></a>&nbsp; or the owner of the premises suffers injury through him<a id="k48a_28"><sup>28</sup></a>&nbsp; there would be liability;<a id="k48a_29"><sup>29</sup></a>&nbsp; and if the owner of the premises injured him, there would be no liability. R. Papa thereupon said: This ruling applies only where the owner had not noticed him. For if he had noticed him, the owner of the premises by injuring him would render himself liable, as the trespasser would be entitled to say to him: 'Though you have the right to eject me, you have no right to injure me.'<a id="k48a_30"><sup>30</sup></a>&nbsp; These authorities<a id="k48a_31"><sup>31</sup></a>&nbsp; followed the line of reasoning [adopted by them elsewhere], for Raba or, as others read, R. Papa stated:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k48b_1:" Such as e.g. on public ground or on their joint premises."
,k48b_2:" E.g. where they were running on public ground, for which cf. <i>supra</i> p. 172."
,k48b_3:" For incidental damage suffered through him."
,k48b_4:" In which case the damage was direct."
,k48b_5:" By becoming a stationary nuisance."
,k48b_6:" <i>Supra</i> p. 18."
,k48b_7:" V. p. 273, n. 3."
,k48b_8:" V. p. 273, n. 4."
,k48b_9:" In which case no <i>kofer</i> has to be paid."
,k48b_10:" For in a case where the ox threw itself upon a human being in a pit to kill him it could hardly escape being sentenced to death and stoned accordingly. The explanations given <i>supra</i> pp. 232-3 on a similar problem could therefore hardly apply here."
,k48b_11:" Without any intention to kill the human being in the pit. The ox is therefore exempt from being stoned, but the owner is nevertheless liable to pay <i>kofer</i> as this kind of damage comes under the category of Tooth, since the ox did it for its own gratification; cf. <i>supra</i> p. 6."
,k48b_12:" <i>Supra</i> p. 66."
,k48b_13:" V. p. 271, n. 6."
,k48b_14:" Cf. also <i>supra</i> p. 134."
,k48b_15:" Since the ox killed the human being on his own premises."
,k48b_16:" So that he was killed on his own premises."
,k48b_17:" For it is not quite usual that a person not of the household of the owner of the yard should be in the pit which was the private property of the owner."
,k48b_18:" [V.l., 'The <i>halachah</i> is.']"
,k48b_19:" Cf. Bez. 40a."
,k48b_20:" Upon the owner of the ox."
,k48b_21:" Upon the owner of the premises."
,k48b_22:" To the belongings of the owner of the premises."
,k48b_23:" [MS.M. adds: This will be in accordance with the Rabbis who hold that in the absence of any express stipulation there is still the duty to watch.]"
,k48b_24:" Upon the owner of the premises."
,k48b_25:" Cf. <i>supra</i> p. 268."
,k48b_26:" As otherwise the owner of the premises would by implication, according to the Rabbis, have accepted liability to safeguard."
,k48b_27:" For while the inference from the concluding clause holds good, this is not the case with that of the commencing clause, as even where no mention was made about watching the ox brought in, the owner of the premises would still not be liable for any damage done to it. There may, however, be a difference where it gored an ox of the owner of the premises if Rabbi followed the view of R. Tarfon as will be explained in the text."
,k48b_28:" V. <i>supra</i> p. 125."
,k48b_29:" Where the ox brought in gored an ox of the owner of the premises."
,k48b_30:" V. p. 276, n. 6."
,k48b_31:" <i>Supra</i>. p. 58."
,k48b_32:" Ex. XXI, 22 "
}

txt:
<p>
Where both of them [plaintiff and defendant] had a right [to be where they were]<a id="k48b_1"><sup>1</sup></a>&nbsp; or where both of them [on the other hand] had no right [to be where they were],<a id="k48b_2"><sup>2</sup></a>&nbsp; if either of them injured the other, he would be liable, but if either suffered injury through the other, there would be no liability. This is so only where both of them had a right to be where they were<a id="k48b_1"><sup>1</sup></a>&nbsp; or where both of them [on the other hand] had no right to be where they were,<a id="k48b_2"><sup>2</sup></a>&nbsp; but where one of them had a right and the other had no right, the one who had a right would be exempt,<a id="k48b_3"><sup>3</sup></a>&nbsp; whereas the one who had no right would be liable.<a id="k48b_3"><sup>3</sup></a>
</p><p>
	IF IT FALLS [THERE] INTO A PIT OF THE OWNER AND MAKES THE WATER IN IT FOUL, THERE WOULD BE LIABILITY. Raba said: This ruling applies only where the ox makes the water foul at the moment of its falling into the pit.<a id="k48b_4"><sup>4</sup></a>&nbsp; For where the water became foul [only] after it fell in, there would be exemption on the ground that [the damage done by] the ox<a id="k48b_5"><sup>5</sup></a>&nbsp; should then be [subject to the law applicable in the case of] Pit, and water is an inanimate object, and we never find Pit entailing liability for damage done to inanimate objects.<a id="k48b_6"><sup>6</sup></a>&nbsp; Now this is correct if we accept the view of Samuel who said<a id="k48b_7"><sup>7</sup></a>&nbsp; that all kinds of nuisances are subject to the law of Pit. But on the view of Rab who held<a id="k48b_7"><sup>7</sup></a>&nbsp; [that this is not so] unless they have been abandoned,<a id="k48b_8"><sup>8</sup></a>&nbsp; what are we to say? &mdash; We must therefore suppose that if the statement was made at all, it was made in this form: Raba said: The ruling [of the Mishnah] applies only where the ox made the water foul by [the dirt of] its body.<a id="k48b_4"><sup>4</sup></a>&nbsp; But where it made the water foul by the smell of its carcass there would be no liability, the reason being that the ox [in this case] was only a [secondary] cause [of the damage], and for a mere [secondary] cause there is no liability.
</p><p>
	WHERE [IT KILLS] THE OWNER'S FATHER OR HIS SON [WHO] WAS INSIDE THE PIT, THERE WOULD BE LIABILITY TO PAY <I>KOFER</I>. But why? Was the ox not <i>Tam</i>?<a id="k48b_9"><sup>9</sup></a>&nbsp; &mdash; Rab thereupon said: We are dealing with a case where the ox was <i>Mu'ad</i> to fall upon people in pits. But if so, should it not have already been killed [on the first occasion]?<a id="k48b_10"><sup>10</sup></a>&nbsp; &mdash; R. Joseph thereupon said: The ox was looking at some grass [growing near the opening of the pit] and thus fell [into it].<a id="k48b_11"><sup>11</sup></a>&nbsp; Samuel, however, said: This ruling is in accordance with R. Jose the Galilean, who held<a id="k48b_12"><sup>12</sup></a>&nbsp; that [killing by] <i>Tam</i> entails the payment of half <i>kofer</i>. 'Ulla, however, said: It accords with the ruling laid down by R. Jose the Galilean in accordance with R. Tarfon, who said<a id="k48b_13"><sup>13</sup></a>&nbsp; that Horn doing damage in the plaintiff's premises entails the payment of full damages.<a id="k48b_14"><sup>14</sup></a>&nbsp; So here the liability is for the payment of full <i>kofer</i>.<a id="k48b_15"><sup>15</sup></a>&nbsp; 'Ulla's answer satisfactorily explains why the text [of the Mishnah] says, IF HIS FATHER OR HIS SON WAS INSIDE THE PIT.<a id="k48b_16"><sup>16</sup></a>&nbsp; But if we take the answer of Samuel, why [is the ruling stated] only with reference to his father and his son?<a id="k48b_16"><sup>16</sup></a>&nbsp; Why not with reference to any other person? &mdash; The Mishnah took the most usual case.<a id="k48b_17"><sup>17</sup></a>
</p><p>
	IF HE BROUGHT THEM IN WITH PERMISSION, THE OWNER OF THE PREMISES WOULD BE LIABLE etc. It was stated: Rab said: 'The law<a id="k48b_18"><sup>18</sup></a>&nbsp; is in accordance with the first Tanna,' whereas Samuel said, 'The law<a id="k48b_18"><sup>18</sup></a>&nbsp; is in accordance with the view of Rabbi.'<a id="k48b_19"><sup>19</sup></a>
</p><p>
	Our Rabbis taught: [If the owner of the premises says:] 'Bring in your ox and watch it,' should the ox then damage, there would be liability,<a id="k48b_20"><sup>20</sup></a>&nbsp; but should the ox suffer injury there would be no liability.<a id="k48b_21"><sup>21</sup></a>&nbsp; If, however, [the owner says], 'Bring in your ox and I will watch it,' should the ox suffer injury there would be liability,<a id="k48b_21"><sup>21</sup></a>&nbsp; but should it do damage<a id="k48b_22"><sup>22</sup></a>&nbsp; there would be no liability.<a id="k48b_20"><sup>20</sup></a>&nbsp; Does not this statement contain a contradiction? You say that [where the owner of the premises said:] 'Bring in your ox and watch it,' should the ox do damage there would be liability,<a id="k48b_20"><sup>20</sup></a>&nbsp; but should the ox suffer injury there would be no liability.<a id="k48b_21"><sup>21</sup></a>&nbsp; Now the reason for this is that he expressly said to the owner of the ox 'watch it' &mdash; [the reason, I mean,] that the owner of the ox will be liable and the owner of the premises exempt; from which I infer that if no explicit mention was made [as to the watching] the owner of the premises would be liable, and the owner of the ox exempt, indicating that without express stipulation to the contrary the former takes it upon himself to safeguard [the ox].<a id="k48b_23"><sup>23</sup></a>&nbsp; Now read the concluding clause: But [if he said]: 'Bring in your ox and I will watch it', should the ox suffer injury there would be liability,<a id="k48b_24"><sup>24</sup></a>&nbsp; but should it do damage there would be no liability, [the reason being that] he expressly said to him 'and I will watch it' &mdash; [the reason,] I mean, that the owner of the premises would be liable and the owner of the ox exempt; from which I infer that if there is no express stipulation, the owner of the ox would be liable and the owner of the premises exempt, as in such a case the owner of the premises does not take it upon himself to safeguard [the ox]. This brings us round to the view of Rabbi, who laid down [there would be no liability upon him]<a id="k48b_24"><sup>24</sup></a>&nbsp; unless where the owner of the premises had taken upon himself to safeguard. Is then the opening clause in accordance with the Rabbis, and the concluding clause in accordance with Rabbi? &mdash; R. Eleazar thereupon said: The contradiction [is obvious]; he who taught one clause cannot have taught the other clause.<a id="k48b_25"><sup>25</sup></a>&nbsp; Raba, however, said: The whole [of the Baraitha] can be explained as being in accordance with the Rabbis; since the opening clause required the insertion of the words, 'watch it',<a id="k48b_26"><sup>26</sup></a>&nbsp; there were correspondingly inserted in the concluding clause the words 'And I will take care of it'. R. Papa, however, said: The whole [of the Baraitha] is in accordance with Rabbi;<a id="k48b_27"><sup>27</sup></a>&nbsp; for he concurred in the view of R. Tarfon who stated<a id="k48b_28"><sup>28</sup></a>&nbsp; that Horn doing damage in the plaintiff's premises would entail the payment of full damages. It therefore follows that where he expressly said to him, 'Watch it', he certainly did not transfer a legal right to him to any place in the premises, so that the case<a id="k48b_29"><sup>29</sup></a>&nbsp; becomes one of Horn doing damage in the plaintiff's premises, and [as already explained]<a id="k48b_30"><sup>30</sup></a>&nbsp; where Horn does damage in the plaintiff's premises the payment must be for full damages. Where, however, he did not expressly say, 'Watch it', he surely granted him a legal right to place in the premises, so that the case is one of [damage done on] premises of joint owners and [as we know] where Horn does damage on premises of owners in common, there is no liability to pay anything but half damages.<a id="k48b_31"><sup>31</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF AN OX WHILE CHARGING ANOTHER OX [INCIDENTALLY] INJURES A WOMAN WHO [AS A RESULT] MISCARRIES, NO COMPENSATION NEED BE MADE FOR THE LOSS OF THE EMBRYOS. BUT IF A MAN WHILE MEANING TO STRIKE ANOTHER MAN [INCIDENTALLY] STRUCK A WOMAN WHO THUS MISCARRIED HE WOULD HAVE TO PAY COMPENSATION FOR THE LOSS OF THE EMBRYOS.<a id="k48b_32"><sup>32</sup></a>&nbsp; HOW IS THE COMPENSATION FOR [THE LOSS OF] EMBRYOS FIXED? THE ESTIMATED VALUE OF THE WOMAN BEFORE HER MISCARRIAGE IS COMPARED WITH HER VALUE AFTER MISCARRIAGE.
</P>


lvr: 41
dfh: a
notes:
 ntes={k49a_1:" V. the explanation in the Gemara."
,k49a_2:" The reason being that in this case there is no legitimate plaintiff."
,k49a_3:" <i>Supra</i> p. 239."
,k49a_4:" Ex. XXI, 22."
,k49a_5:" Gen. XXII, 5."
,k49a_6:" I.e. a mere chattel of the Master."
,k49a_7:" Before the miscarriage took place. For besides the loss of the value of the embryos there was a loss of the value of the woman herself that was increased by the embryos making her look bigger and stouter. [Rashi reads: 'Is this (referring to the valuation laid down in the Mishnah) compensation for the embryos? Is it not also compensation for the increase etc.?']"
,k49a_8:" [This valuation, that is to say, serves as compensation both for the embryos and for the increase etc.]"
,k49a_9:" For surely the anonymous Tanna expressed himself to the contrary."
,k49a_10:" Through having emerged safely from the dangers of childbirth."
,k49a_11:" By R. Simeon b. Gamaliel."
,k49a_12:" Of her own body."
,k49a_13:" Cf. <i>supra</i> p. 243 and Keth. VI, 1."
,k49a_14:" For according to his other statement a woman increases in value after giving birth more than before."
,k49a_15:" Where he stated that the value of a woman after having given birth is greater than that prior to having given birth."
,k49a_16:" Where the circumstances are more complicated."
,k49a_17:" In which case her value later is less than that prior to giving birth"
,k49a_18:" Ex. XXI, 22."
,k49a_19:" To create liability."
,k49a_20:" V. p. 277, n. 6."
,k49a_21:" Without issue, leaving thus no heirs."
,k49a_22:" I.e. alive."
,k49a_23:" Cf. <i>supra</i> p. 234."
,k49a_24:" I.e. the payment for the loss of the embryos."
,k49a_25:" I.e. the payment for Depreciation and Pain."
,k49a_26:" Even, it would seem, when the blow was given after the death of the proselyte, which contradicts the view of Rabbah."
,k49a_27:" V. p. 280, n. 5. "
}

txt:
<p>
R. SIMEON B. GAMALIEL SAID: IF THIS IS SO, A WOMAN AFTER HAVING GIVEN BIRTH INCREASES IN VALUE.<a id="k49a_1"><sup>1</sup></a>&nbsp; IT IS THEREFORE THE VALUE OF THE EMBRYOS WHICH HAS TO BE ESTIMATED, AND THIS AMOUNT WILL BE GIVEN TO THE HUSBAND. IF, HOWEVER, THE HUSBAND IS NO LONGER ALIVE, IT WOULD BE GIVEN TO HIS HEIRS. IF THE WOMAN WAS A MANUMITTED SLAVE OR A PROSELYTESS [AND THE HUSBAND, ALSO A PROSELYTE, IS NO LONGER ALIVE], THERE WOULD BE COMPLETE EXEMPTION.<a id="k49a_2"><sup>2</sup></a>
<P>
<B><I>GEMARA</I></B>. The reason why there is exemption is because the ox was charging another ox, from which we infer that if it was charging the woman, there would be liability to pay. Will this not be in contradiction to the view of R. Adda b. Ahabah? For did not R. Adda b. Ahabah state<a id="k49a_3"><sup>3</sup></a>&nbsp; that [even] where Cattle were charging the woman, there would [still] be exemption from paying compensation for [the loss] of the embryos? &mdash; R. Adda b. Ahabah might reply: The same ruling [of the Mishnah] would apply even in the case of Cattle making for the woman, where there would similarly be exemption from paying compensation for [the loss of] the embryos. And as for the Mishnah saying IF AN OX WHILE CHARGING OTHER CATTLE, the reason is that, since it was necessary to state in the concluding clause BUT IF A MAN WHILE MEANING TO STRIKE ANOTHER MAN, this being the case stated in Scripture,<a id="k49a_4"><sup>4</sup></a>&nbsp; it was also found expedient to have a similar text in the commencing clause IF AN OX WHILE CHARGING ANOTHER OX.
</p><p>
	R. Papa said: If an ox gores a woman-slave, causing her to miscarry, there would be liability to pay for the loss of the embryos, the reason being that [in the eyes of the law] it was merely a case of a pregnant she-ass being injured, for Scripture says, Abide ye here with the ass,<a id="k49a_5"><sup>5</sup></a>&nbsp; thus comparing this folk to an ass.<a id="k49a_6"><sup>6</sup></a>
</p><p>
	HOW IS THE COMPENSATION FOR THE LOSS OF EMBRYOS FIXED etc.? 'COMPENSATION FOR THE EMBRYOS'? Should it not [also] have been 'Compensation for the increase in [the woman's] value caused by the embryos'?<a id="k49a_7"><sup>7</sup></a>&nbsp; &mdash; This indeed was what was meant: How is the compensation for the embryos and for the increase [in the woman's value] due to embryos fixed? Her estimated value before miscarriage is compared with her value after miscarriage.<a id="k49a_8"><sup>8</sup></a>
</p><p>
	BUT R. SIMEON B. GAMALIEL SAID; IF THIS IS SO, A WOMAN AFTER HAVING GIVEN BIRTH INCREASES IN VALUE. What did he mean by this statement?<a id="k49a_9"><sup>9</sup></a>&nbsp; &mdash; Rabbah said; He meant to say this; Does a woman increase in value before giving birth more than after? Does not a woman increase in value after giving birth<a id="k49a_10"><sup>10</sup></a>&nbsp; more than before giving birth? It is therefore the value of the embryos which has to be estimated, and this amount will be given to the husband. It was taught to the same effect; Does the value of a woman increase more before giving birth than after giving birth? Does not the value of a woman increase after having given birth<a id="k49a_10"><sup>10</sup></a>&nbsp; more than before giving birth? It is therefore the value of the embryos which has to be estimated, and this amount will be given to the husband. Raba, however, said: What is meant is this.<a id="k49a_11"><sup>11</sup></a>&nbsp; 'Is a woman's increase in value wholly for [the benefit of the husband for] whom she bears, and has she no share at all in the increase [in the value]<a id="k49a_12"><sup>12</sup></a>&nbsp; due to the embryo? It is therefore the value of the embryos which has to be estimated and this amount will be given to the husband, whereas the amount of the increase [in the value]<a id="k49a_12"><sup>12</sup></a>&nbsp; caused by the embryos will be shared equally [between husband and wife].' It was similarly taught: R. Simeon b. Gamaliel said: Is the increase in a woman's value wholly for [the benefit of the husband for] whom she bears, and has she herself no share at all in the increase [in her value] due to the embryos? No; there is a separate estimation for Depreciation<a id="k49a_13"><sup>13</sup></a>&nbsp; and also for Pain,<a id="k49a_13"><sup>13</sup></a>&nbsp; and the value of the embryos is estimated and given to the husband, whereas the amount of the increase in her value caused by the embryos will be shared equally [between husband and wife]. But is not R. Simeon b. Gamaliel contradicting himself [in this]?<a id="k49a_14"><sup>14</sup></a>&nbsp; &mdash; There is no contradiction, for one case<a id="k49a_15"><sup>15</sup></a>&nbsp; is that of a woman pregnant for the first time,<a id="k49a_16"><sup>16</sup></a>&nbsp; and the other of a woman who had already given birth to children.<a id="k49a_17"><sup>17</sup></a>
</p><p>
	What was the reason of the Rabbis who stated that the amount of the increase [in the woman's value] due to the embryos also belongs to the husband? &mdash; As it was taught: From the words, so that her fruit depart from her,<a id="k49a_18"><sup>18</sup></a>&nbsp; cannot I understand that the woman was pregnant? Why then [the words] with child?<a id="k49a_18"><sup>18</sup></a>&nbsp; To teach you that the increase in her value due to pregnancy belongs to the husband. How then does R. Simeon b. Gamaliel expound the phrase 'with child'? &mdash; He required it for the lesson taught in the following: R. Eliezer b. Jacob says: Liability is never incurred save when the blow is given over against the place of the womb. R. Papa said: You are not to understand from this just over against the place of the womb, for wherever the bruise could be communicated to the embryo [will suffice];<a id="k49a_19"><sup>19</sup></a>&nbsp; what is excluded is a blow on the hand or foot, where there would be liability.
</p><p>
	IF THE WOMAN WAS A MANUMITTED SLAVE, OR PROSELYTESS [AND THE HUSBAND, ALSO A PROSELYTE, IS NO LONGER ALIVE], THERE WOULD BE EXEMPTION ALTOGETHER.<a id="k49a_20"><sup>20</sup></a>&nbsp; Rabbah said: This rule applies only where the blow was given during the lifetime of the proselyte [husband] and it was only after this that he died, for since the blow was given during the lifetime of the proselyte, he acquired title to the impending payment, so that when he subsequently died<a id="k49a_21"><sup>21</sup></a>&nbsp; the defendant became quit of it as it was an asset of the proselyte.<a id="k49a_21"><sup>21</sup></a>&nbsp; But where the blow was given after the death of the proselyte it was the mother who acquired title to the embryos, so that the defendant would have to make payment to her. Said R. Hisda: O, master of this [teaching]! Are embryos packets of money to which a title can be acquired? It is only when the husband is there<a id="k49a_22"><sup>22</sup></a>&nbsp; that the Divine Law grants payment to him, but not when he is no more.
</p><p>
	An objection was raised:<a id="k49a_23"><sup>23</sup></a>&nbsp; 'Where a woman is struck and a miscarriage results, compensation for Depreciation and Pain is to be paid to the woman, but for the loss of the embryos to the husband; where the husband is no more alive it<a id="k49a_24"><sup>24</sup></a>&nbsp; is given to his heirs; so also where the woman is no more alive, it<a id="k49a_25"><sup>25</sup></a>&nbsp; is given to her heirs. Should she be a slave who has been manumitted, or a proselytess [whose husband, also a proselyte, is no longer alive], the defendant becomes entitled to it'?<a id="k49a_26"><sup>26</sup></a>&nbsp; &mdash; I would reply: Is there anything more in this case than in that of the Mishnah, which has been interpreted to refer to where the blow was given during the lifetime of the proselyte and [where it was only after this that] the proselyte died?<a id="k49a_27"><sup>27</sup></a>&nbsp; [Why therefore not interpret the text] here also as referring to a case were the blow was given during the lifetime of the proselyte and [where it was only after this that] the proselyte died!<a id="k49a_27"><sup>27</sup></a>&nbsp; More-over, if you wish you may [alternatively] say that it might have referred even to a case where the blow was given after the death of the proselyte,
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k49b_1:" In accordance with the view of Rabbah."
,k49b_2:" In which Rabbah and R. Hisda differ."
,k49b_3:" And a miscarriage resulted."
,k49b_4:" I.e. if the blow was given after the death of the proselyte."
,k49b_5:" I.e., whether the mother acquires a title to the embryos on the death of her husband, the proselyte, or not."
,k49b_6:" He therefore followed the view of the former Baraitha laying down liability."
,k49b_7:" Stating exemption."
,k49b_8:" I.e., no contradiction between the two Baraithas, which do not deal with the payment for the loss of the embryos but with the payment for the loss of the increment in the value of the woman herself due to the embryos."
,k49b_9:" Maintaining that the payment for the loss of the increment in the value of the woman herself also belongs to the husband, so that where he was a proselyte dying without issue there would be no liability at all upon the defendant."
,k49b_10:" According to whom the payment for the loss of the increment in the value of the woman herself has to be shared by the mother and father, so that where he was a proselyte dying without issue she will surely not forfeit her due, but as to the embryos, all agree that the woman acquires in no circumstance title to them."
,k49b_11:" For since the mother is a joint plaintiff with her husband regarding this payment, where he was a proselyte dying without issue she will remain the sole plaintiff and thus be entitled to the full payment."
,k49b_12:" Stating liability."
,k49b_13:" Stating exemption."
,k49b_14:" To which the mother was never a plaintiff."
,k49b_15:" That payment should be made to the mother, in contradiction to the view of R. Hisda."
,k49b_16:" [That she should have the whole where the proselyte husband is no longer alive.]"
,k49b_17:" Even during the lifetime of her husband."
,k49b_18:" At the demise of the proselyte without any legal issue."
,k49b_19:" V. p. 282, n. 10."
,k49b_20:" V. p. 282, n. 11."
,k49b_21:" I.e., the mere value of the paper of the deed."
,k49b_22:" R. Nahman."
,k49b_23:" R. Yeba."
,k49b_24:" [I.e., 'in town' (Rashi), or (according to Tosaf.) 'beside the premises,' v. B.M. 11a: 'non-guarded premises confer title only when the owner is standing beside them.']"
,k49b_25:" I.e., the owner of the premises."
,k49b_26:" I.e., the pledge or any other ownerless article."
,k49b_27:" For where the pledge was kept in the creditor's premises at the time of the demise of the proselyte without issue, the creditor would acquire title to the whole of it, though the creditor were out of town (Rashi). [Tosaf. renders, 'where the creditor was not beside the premises.']"
,k49b_28:" V. Gemara."
,k49b_29:" Ex. XXI, 33-34"
,k49b_30:" I.e. where the ground of the pit that did the actual damage was not his at all. "
}

txt:
<p>
but read in the text 'she would become entitled to it'.<a id="k49b_1"><sup>1</sup></a>
</p><p>
	May we say that there is on this point<a id="k49b_2"><sup>2</sup></a>&nbsp; a difference between Tannaitic authorities? [For it was taught:] If a daughter of an Israelite was married to a proselyte and became pregnant by him, and a blow was given her during the lifetime of the proselyte,<a id="k49b_3"><sup>3</sup></a>&nbsp; the compensation for the loss of the embryos will be given to the proselyte. But if after the death of the proselyte!<a id="k49b_4"><sup>4</sup></a>&nbsp; &mdash; One Baraitha teaches that there would be liability, whereas another Baraitha teaches that there would be no liability. Now, does this not show that Tannaim differ on this [point]?<a id="k49b_5"><sup>5</sup></a>&nbsp; According to Rabbah there is certainly a difference between Tannaim on this matter.<a id="k49b_6"><sup>6</sup></a>&nbsp; But what of R. Hisda?<a id="k49b_7"><sup>7</sup></a>&nbsp; Must he also hold that Tannaim were divided on it? &mdash; [No; he may argue that] there is no difficulty,<a id="k49b_8"><sup>8</sup></a>&nbsp; as one [Baraitha] accepts the view of the Rabbis<a id="k49b_9"><sup>9</sup></a>&nbsp; whereas the other follows that of R. Simeon b. Gamaliel.<a id="k49b_10"><sup>10</sup></a>&nbsp; But if [the Baraitha which says that there is liability follows the view of] R. Simeon b. Gamaliel, why speak only of compensation after the death [of the proselyte]? Would she even during [his] lifetime not have [a half of the payment]? &mdash; During [his] lifetime she would have only a half, whereas after death she would have the whole.<a id="k49b_11"><sup>11</sup></a>&nbsp; Or if you wish you may say that both this [Baraitha]<a id="k49b_12"><sup>12</sup></a>&nbsp; and the other follow the view of R. Simeon b. Gamaliel,<a id="k49b_10"><sup>10</sup></a>&nbsp; but while one<a id="k49b_12"><sup>12</sup></a>&nbsp; deals with the increase in the value [of the woman caused] by the embryos, the other<a id="k49b_13"><sup>13</sup></a>&nbsp; refers to the compensation for the loss of the value of the embryos [themselves].<a id="k49b_14"><sup>14</sup></a>&nbsp; I would here ask, why not derive from the rule<a id="k49b_12"><sup>12</sup></a>&nbsp; regarding the increased value due to the embryos the other rule regarding the value of the embryos themselves?<a id="k49b_15"><sup>15</sup></a>&nbsp; And again, why not derive from the ruling<a id="k49b_12"><sup>12</sup></a>&nbsp; of R. Simeon b. Gamaliel also the ruling of the Rabbis?<a id="k49b_16"><sup>16</sup></a>&nbsp; &mdash; It may, however, be said that this could not be done. For as regards the increased value [of the woman due] to the embryos, seeing that she has some hold upon it,<a id="k49b_17"><sup>17</sup></a>&nbsp; she can acquire a title to the whole of it,<a id="k49b_18"><sup>18</sup></a>&nbsp; whereas in regard to the compensation for the embryos themselves, on which she has no hold,<a id="k49b_19"><sup>19</sup></a>&nbsp; she can acquire no title to them at all.
</p><p>
	R. Yeba the Elder enquired of R. Nahman: If a man has taken possession of the deeds of a proselyte,<a id="k49b_20"><sup>20</sup></a>&nbsp; what is the legal position? [Shall we say that] a man who takes possession of a deed does so with intent to acquire the land [specified in the document], but has thereby not taken possession of the land, nor does he even acquire title to the deed, since his intent was not to obtain the deed?<a id="k49b_21"><sup>21</sup></a>&nbsp; Or [shall we] perhaps [say] that his intent was to obtain the deed also?<a id="k49b_21"><sup>21</sup></a>&nbsp; &mdash; He<a id="k49b_22"><sup>22</sup></a>&nbsp; said to him: Tell me, Sir, could he need it to cover the mouth of his flask? &mdash; He<a id="k49b_23"><sup>23</sup></a>&nbsp; replied: Yes indeed, [he could need it] to cover[ the flask].
</p><p>
	Rabbah stated: If the pledge of an Israelite is in the hands of a proselyte [creditor], and the proselyte dies [without any legal issue] and another Israelite comes along and takes possession of it,<a id="k49b_20"><sup>20</sup></a>&nbsp; it would be taken away from him, the reason being that as the proselyte has died, the lien he had upon the pledge has disappeared. But if a pledge of a proselyte [debtor] is in the hands of an Israelite, and the proselyte dies and another Israelite comes along and takes possession of it, the creditor would become owner of the pledge to the extent of the amount due to him, while the one who took possession of it would own the balance. Why should the premises [of the creditor where the pledge was kept] not render him the owner [of the whole pledge]? Did not R. Jose b. Hanina say that a man's premises effect a legal transfer [of ownerless property placed there] even without his knowledge? &mdash; It may be said that we are dealing here with a case where the creditor was not there.<a id="k49b_24"><sup>24</sup></a>&nbsp; For it is only where he himself<a id="k49b_25"><sup>25</sup></a>&nbsp; is there,<a id="k49b_24"><sup>24</sup></a>&nbsp; in which case should he so desire he would be able to take possession of it,<a id="k49b_26"><sup>26</sup></a>&nbsp; that his premises could [act on his behalf and] effect the transfer, whereas where he himself<a id="k49b_25"><sup>25</sup></a>&nbsp; was absent, in which case were he to desire to acquire title to it<a id="k49b_26"><sup>26</sup></a>&nbsp; he would have been unable to take possession of it, his premises could similarly not effect a transfer. But the law is that it is only where it [the pledge] was not [kept] in the [creditor's] premises that he would acquire no title to it.<a id="k49b_27"><sup>27</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN DIGS A PIT IN PRIVATE GROUND AND OPENS IT ON TO A PUBLIC PLACE, OR IF HE DIGS IT IN PUBLIC GROUND AND OPENS IT ON TO PRIVATE PROPERTY, OR AGAIN, IF HE DIGS IT IN PRIVATE GROUND AND OPENS IT ON TO THE PRIVATE PROPERTY OF ANOTHER, HE BECOMES LIABLE<a id="k49b_28"><sup>28</sup></a>&nbsp; [FOR ANY DAMAGE THAT MAY RESULT].
</p><p>
	<B><I>GEMARA</I></B>. Our Rabbis taught: If a man digs a pit on private ground and opens it on to a public place, he becomes liable, and this is the Pit of which the Torah<a id="k49b_29"><sup>29</sup></a>&nbsp; speaks. So R. Ishmael. R. Akiba, however, says: When a man abandons his premises without, however, abandoning his pit, this is the Pit of which the Torah<a id="k49b_29"><sup>29</sup></a>&nbsp; speaks. Rabbah thereupon said: In the case of a pit on public ground there is no difference of opinion that there should be liability. What is the reason? &mdash; Scripture says, If a man open or if a man dig.<a id="k49b_29"><sup>29</sup></a>&nbsp; Now, if for mere opening there is liability, should there not be so all the more in the case of digging? [Why then mention digging at all?] Scripture must therefore mean to imply that it is on account of the act of opening and on account of the act of digging that the liability is at all brought upon him.<a id="k49b_30"><sup>30</sup></a>&nbsp; A difference arises
</P>


lvr: 41
dfh: a
notes:
 ntes={k50a_1:" Ex. XXI, 34"
,k50a_2:" But did not mean the legal owner of it."
,k50a_3:" Since even according to R. Akiba the Torah deals with Pit on public ground."
,k50a_4:" In verse 34."
,k50a_5:" [As against R. Ishmael who requires the pit itself to be abandoned.]"
,k50a_6:" V. p. 284, n. 4."
,k50a_7:" Of opening and of digging."
,k50a_8:" V. p. 284, n. 3."
,k50a_9:" Since even according to R. Ishmael the Torah deals with Pit on private ground."
,k50a_10:" I.e., in verse 33."
,k50a_11:" Rashal reads 'cubits'."
,k50a_12:" Which is a general practice."
,k50a_13:" Either with that of R. Ishmael or with that of R. Akiba."
,k50a_14:" Stating exemption in the case of Pit open to private ground."
,k50a_15:" Implying liability in the case of Pit on private ground."
,k50a_16:" For they both according to R. Joseph maintain liability for Pit on private ground."
,k50a_17:" In which case the defendant is entitled to put in a defence of trespass on his ground against the plaintiff."
,k50a_18:" But if the digging was not widened out into actual public ground there would be no difference as to the purpose of the digging for there would be exemption in all cases."
,k50a_19:" V. p. 286, n. 5."
,k50a_20:" Stating liability in the case of Pit on public ground."
,k50a_21:" V. p. 286, n. 7."
,k50a_22:" V. p. 286, n. 3."
,k50a_23:" Tosef. B.K. VI."
,k50a_24:" For the general use of the water."
,k50a_25:" As it became communal property."
,k50a_26:" Thus to provide water for the pilgrims who travelled to Jerusalem on the three festivals in accordance with Ex. XXXIV, 23."
,k50a_27:" I.e. Nehonia."
,k50a_28:" [On R. Hanina b. Dosa as a 'man of deeds' whose acts were viewed as acts of human love and sympathy rather than miracles, v. BŸchler, Types, p. 100ff.]"
,k50a_29:" The ram of Isaac, cf. Gen. XXII, 13 and R.H. 16a."
,k50a_30:" Lit., 'was appointed for me.'"
,k50a_31:" Abraham."
,k50a_32:" V. J. Shek. V. 1."
,k50a_33:" Nehonia's."
,k50a_34:" Ps. L, 3."
,k50a_35:" I.e. the pious devoted to Him."
,k50a_36:" The Hebrew term for 'tempestuous' is homonymous with that for 'hair'."
,k50a_37:" 'Hanina' occurs in Yeb. 121b."
,k50a_38:" Ps. LXXXIX, 8."
,k50a_39:" Deut. XXXII, 4."
,k50a_40:" Ex. XXXIV, 6. "
}<

txt:
<p>
only in regard to a pit on his own premises. R. Akiba maintains that a pit in his own premises should also involve liability, since it says, The owner of the pit,<a id="k50a_1"><sup>1</sup></a>&nbsp; which shows that the Divine Law is speaking of a pit which has an owner; R. Ishmael on the other hand maintaining that this simply refers to the perpetrator of the nuisance.<a id="k50a_2"><sup>2</sup></a>&nbsp; But what then did R. Akiba mean by saying, '[When a man abandons his premises without, however, abandoning his pit] &mdash; this is the Pit stated in the Torah'?<a id="k50a_3"><sup>3</sup></a>&nbsp; &mdash; [He meant that] this is the Pit with reference to which Scripture first began to lay down<a id="k50a_4"><sup>4</sup></a>&nbsp; the rules for compensation [in the case of Pit]. R. Joseph said: in the case of a pit on private ground there is no difference of opinion that there should be liability. What is the reason? Divine Law says, the owner of the pit, to show that it is a pit having an owner with which we are dealing.<a id="k50a_5"><sup>5</sup></a>&nbsp; They differ only in the case of a pit in public ground. R. Ishmael maintains that a pit on public ground should also involve liability, since it says, 'If a open&nbsp;&hellip; and if a man dig&nbsp;&hellip;' Now, if for mere opening there is liability, should there not all the more be so in the case of digging? Scripture therefore must mean to imply that it is on account of the act of opening and on account of the act of digging that the liability is at all brought upon him.<a id="k50a_6"><sup>6</sup></a>&nbsp; And R. Akiba? [He might reply that] both terms<a id="k50a_7"><sup>7</sup></a>&nbsp; required to be explicitly mentioned. For if the Divine Law had said only 'If a man open' it might perhaps have been said that it was only in the case of opening that covering up would suffice [as a precaution], whereas in the case of digging covering up would not suffice, unless the pit was also filled up. If [on the other hand] the Divine Law had said only If a man dig it might have been said that it was only where he dug it that he ought to cover it, as he actually made the pit, whereas where he merely opened it, in which case he did not actually make the pit, it might have been thought that he was not bound even to cover it. Hence it was necessary to tell us [that this was not the case but that the two actions are on a par in all respects]. But what then did R. Ishmael mean by saying, [If a man digs a pit in private ground and opens it on to a public place, he comes liable] and this is the Pit of which the Torah<a id="k50a_8"><sup>8</sup></a>&nbsp; speaks?<a id="k50a_9"><sup>9</sup></a>&nbsp; &mdash; This is the Pit with reference to which Scripture opens<a id="k50a_10"><sup>10</sup></a>&nbsp; the rules concerning damage [caused by Pit].
</p><p>
	An objection was raised [from the following]: If a man digs a pit in public ground and opens it to private property there is no liability, in spite of the fact that he has no right to do so as hollows must not be made underneath a public thoroughfare. But if he digs pits, ditches or caves in private premises and opens them on to a public place, there would be liability. If, again, a man digs pits in private ground abutting on a public thoroughfare, such as e.g., workmen digging foundations, there would be no liability. R. Jose b. Judah, however, says there is liability unless he makes a partition of ten handbreaths in height or unless he keeps the pit away from the place where men pass as well as from the place where animals pass at a distance of at least four handbreadths.<a id="k50a_11"><sup>11</sup></a>&nbsp; Now this is so only in the case of foundations,<a id="k50a_12"><sup>12</sup></a>&nbsp; but were the digging made not for foundations there would apparently be liability. In accordance with whose view<a id="k50a_13"><sup>13</sup></a>&nbsp; is this? All would be well if we follow Rabbah, since the opening clause<a id="k50a_14"><sup>14</sup></a>&nbsp; would be in accordance with R. Ishmael and the later clause<a id="k50a_15"><sup>15</sup></a>&nbsp; in accordance with R. Akiba. But if we follow R. Joseph, it is true there would be no difficulty about the concluding clause<a id="k50a_15"><sup>15</sup></a>&nbsp; which would represent a unanimous view, but what about the prior clause<a id="k50a_14"><sup>14</sup></a>&nbsp; which would be in accordance neither with R. Ishmael nor with R. Akiba?<a id="k50a_16"><sup>16</sup></a>&nbsp; &mdash; R. Joseph, however, might reply: The whole text represents a unanimous view, for the prior clause deals with a case where the man abandoned neither his premises nor his pit.<a id="k50a_17"><sup>17</sup></a>&nbsp; R. Ashi thereupon said: Since according to R. Joseph you have explained the text to represent a unanimous view, so also according to Rabbah you need not interpret it as representing two opposing views of Tannaim. For as the prior clause<a id="k50a_14"><sup>14</sup></a>&nbsp; was in accordance with R. Ishmael, the later clause would also be in accordance with R. Ishmael; and the statement that this ruling holds good only in the case of foundations whereas if the digging is not for foundations there would be liability, refers to an instance where e.g., the digging was widened out into actual public ground.<a id="k50a_18"><sup>18</sup></a>
</p><p>
	An objection was [again] raised: 'If a man digs a pit in private ground and opens it on to a public place he becomes liable, but if he digs it in private ground abutting on a public thoroughfare he would not be liable.' No difficulty arises if we follow Rabbah, since the whole text<a id="k50a_19"><sup>19</sup></a>&nbsp; is in accordance with R. Ishmael. But if we follow R. Joseph, no difficulty, it is true, arises in the prior clause<a id="k50a_20"><sup>20</sup></a>&nbsp; which would be in accordance with R. Ishmael, but what about the concluding clause<a id="k50a_19"><sup>19</sup></a>&nbsp; which would be in accordance neither with R. Ishmael nor with R. Akiba?<a id="k50a_21"><sup>21</sup></a>&nbsp; &mdash; He might reply that it deals with digging for foundations,<a id="k50a_22"><sup>22</sup></a>&nbsp; in regard to which the ruling is unanimous.
</p><p>
	Our Rabbis taught:<a id="k50a_23"><sup>23</sup></a>&nbsp; If a man dug [a well] and left it open, but transferred it to the public,<a id="k50a_24"><sup>24</sup></a>&nbsp; he would be exempt,<a id="k50a_25"><sup>25</sup></a>&nbsp; whereas if he dug it and left it open without dedicating it to the public he would be liable. Such also was the custom of Nehonia the digger of wells, ditches and caves; he used to dig wells<a id="k50a_26"><sup>26</sup></a>&nbsp; and leave them open and dedicate them to the public.<a id="k50a_24"><sup>24</sup></a>&nbsp; When this matter became known to the Sages they observed, 'This man<a id="k50a_27"><sup>27</sup></a>&nbsp; has fulfilled this Halachah'. Only this <i>Halachah</i> and no more? &mdash; Read therefore 'this <i>Halachah</i> also'.
</p><p>
	Our Rabbis taught: It happened that the daughter of Nehonia the digger of wells once fell into a deep pit. When people came and informed R. Hanina b. Dosa<a id="k50a_28"><sup>28</sup></a>&nbsp; [about it], during the first hour he said to them 'She is well', during the second he said to them, 'She is still well', but in the third hour he said to them, 'She has by now come out [of the pit].' They then asked her, 'Who brought you up?' &mdash; Her answer was: 'A ram<a id="k50a_29"><sup>29</sup></a>&nbsp; [providentially] came to my help<a id="k50a_30"><sup>30</sup></a>&nbsp; with an old man<a id="k50a_31"><sup>31</sup></a>&nbsp; leading it.' They then asked R. Hanina b. Dosa, 'Are you a prophet?' He said to them, 'I am neither a prophet nor the son of a prophet. I only exclaimed: Shall the thing to which that pious man has devoted his labour become a stumbling-block to his seed?'<a id="k50a_32"><sup>32</sup></a>&nbsp; R. Aha, however, said; Nevertheless, his<a id="k50a_33"><sup>33</sup></a>&nbsp; son died of thirst, [thus bearing out what the Scripture] says, <i>And it shall be very tempestuous round about him</i>,<a id="k50a_34"><sup>34</sup></a>&nbsp; which teaches that the Holy One, blessed be He, is particular with those round about Him<a id="k50a_35"><sup>35</sup></a>&nbsp; even for matters as light as a single hair.<a id="k50a_36"><sup>36</sup></a>&nbsp; R. Nehonia<a id="k50a_37"><sup>37</sup></a>&nbsp; derived the same lesson from the verse,<a id="k50a_38"><sup>38</sup></a>&nbsp; <i>God is greatly to be feared in the assembly of the saints and to be had in reverence of all them that are about Him.</i> R. Hanina said: If a man says that the Holy One, blessed be He, is lax in the execution of justice, his life shall be outlawed, for it is stated, <i>He is the Rock, His work is perfect; for all His ways are judment</i>.<a id="k50a_39"><sup>39</sup></a>&nbsp; But R. Hana, or as others read R. Samuel b. Nahmani, said: Why is it written<a id="k50a_40"><sup>40</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k50b_1:" [H], the plural."
,k50b_2:" [H], the singular."
,k50b_3:" By not rewarding them in this world for their good deeds."
,k50b_4:" By not punishing them in this world for their wicked deeds."
,k50b_5:" B.K. Tosef. II."
,k50b_6:" Raca."
,k50b_7:" Ex. XXI, 33."
,k50b_8:" As the death of the animal should in this case not be wholly imputed to the pit."
,k50b_9:" On public ground."
,k50b_10:" For which the defendant has not to be liable."
,k50b_11:" Lit., 'the Torah testified that etc.', since 'pit' is left undefined."
,k50b_12:" As no unhealthy air was created and the blow was given by the public ground."
,k50b_13:" Is not a mound a nuisance?"
,k50b_14:" Ex. XXI, 33."
,k50b_15:" Excepting thus a mound."
,k50b_16:" I.e. including mounds."
,k50b_17:" Since according to him there would be no liability for mounds."
,k50b_18:" That the depth of ten handbreadths is sufficient to create enough unhealthy air to cause death in any one of these excavations."
,k50b_19:" V. p. 289, n. 2."
,k50b_20:" Though the air was not less unhealthy there will be no liability, thus contradicting the views of both Rab and Samuel."
,k50b_21:" I.e. forbidden to be eaten in accordance with dietary laws; for the term cf. Ex. XII, 30 and Glossary."
,k50b_22:" (V. <a href=\"../tglossary.html\">Glos.</a>), i.e., provision for his journey."
,k50b_23:" Cf. Hul. 51b."
,k50b_24:" For the pond in which the ox fell was only six handbreadths deep."
,k50b_25:" Thus disproving the view of R. Nahman. "
}

txt:
<p>
'Long of <i>sufferings'</i><a id="k50b_1"><sup>1</sup></a>&nbsp; and not 'Long of <i>suffering'</i>?<a id="k50b_2"><sup>2</sup></a>&nbsp; [It must mean,] 'Long of sufferings' to both the righteous<a id="k50b_3"><sup>3</sup></a>&nbsp; and the wicked.<a id="k50b_4"><sup>4</sup></a>
</p><p>
	Our Rabbis taught: A man should not remove stones from his ground on to public ground. A certain man<a id="k50b_5"><sup>5</sup></a>&nbsp; was removing stones from his ground on to public ground when a pious man found him doing so and said to him, 'Fool,<a id="k50b_6"><sup>6</sup></a>&nbsp; why do you remove stones from ground which is not yours to ground which is yours?' The man laughed at him. Some days later he had to sell his field, and when he was walking on that public ground he stumbled over those stones. He then said, 'How well did that pious man say to me, "Why do you remove stones from ground which is not yours to ground which is yours?"'
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN DIGS A PIT ON PUBLIC GROUND AND AN OX OR AN ASS FALLS INTO IT, HE BECOMES LIABLE. WHETHER HE DUG A PIT, OR A DITCH, OR A CAVE, TRENCHES, OR WEDGE-LIKE DITCHES, HE WOULD BE LIABLE. IF SO WHY IS PIT MENTIONED [IN SCRIPTURE]?<a id="k50b_7"><sup>7</sup></a>&nbsp; [TO TEACH THAT] JUST AS PIT CAN CAUSE DEATH BECAUSE IT IS USUALLY TEN HANDBREADTHS [DEEP], SO ALSO ALL [OTHER SIMILAR NUISANCES] MUST BE SUCH AS CAN CAUSE DEATH, [I.E.] TEN HANDBREADTHS [DEEP]. WHERE, HOWEVER, THEY WERE LESS THAN TEN HANDBREADTHS [DEEP], AND AN OX AR AN ASS FELL INTO THEM AND DIED, THERE WOULD BE EXEMPTION.<a id="k50b_8"><sup>8</sup></a>&nbsp; IF THEY WERE ONLY INJURED BY THEM, THERE WOULD BE LIABILITY.
</p><p>
	<B><I>GEMARA</I></B>. Rab stated: The liability imposed by the Torah in the case of Pit<a id="k50b_9"><sup>9</sup></a>&nbsp; is for the unhealthy air created by excavation, but not for the blow given by it. It could hence he inferred that he held that so far as the blow was concerned it was the ground of the public that caused the damage.<a id="k50b_10"><sup>10</sup></a>&nbsp; Samuel, however, said: For the unhealthy air, and, ˆ plus forte raison, for the blow. And should you say that it was for the blow only that the Torah imposed liability but not for the unhealthy air, (you have to bear in mind that] for the Torah<a id="k50b_11"><sup>11</sup></a>&nbsp; a pit is a pit, even where it is full of pads of wool. What is the practical difference between them? &mdash; There is a practical difference between them. Where a man made a mound on public ground: according to Rab there would in the case of a mound be no liability,<a id="k50b_12"><sup>12</sup></a>&nbsp; whereas according to Samuel there would in the case of a mound also be liability. What was the reason of Rab?<a id="k50b_13"><sup>13</sup></a>&nbsp; Because Scripture says, And it fall,<a id="k50b_14"><sup>14</sup></a>&nbsp; [implying that there would be no liability] unless where it fell in the usual way of falling.<a id="k50b_15"><sup>15</sup></a>&nbsp; Samuel [on the other hand maintained that the words] And it fall imply anything [which is like falling].<a id="k50b_16"><sup>16</sup></a>
</p><p>
	We have learnt: IF SO WHY WAS PIT MENTIONED [IN SCRIPTURE]?<a id="k50b_17"><sup>17</sup></a>&nbsp; [TO TEACH THAT] JUST AS PIT CAN CAUSE DEATH BECAUSE IT IS USUALLY TEN HANDBREADTHS [DEEP], SO ALSO ALL [OTHER SIMILAR NUISANCES] MUST BE SUCH AS CAN CAUSE DEATH, [I.E.] TEN HANDBREADTHS [DEEP]. Now this creates no difficulty if we follow Samuel, since the phrase SO ALSO ALL would imply mounds also. But according to Rab, what does the phrase SO ALSO ALL imply?<a id="k50b_17"><sup>17</sup></a>&nbsp; &mdash; It was meant to imply trenches and wedge-like ditches. But are trenches and wedge-like ditches not explicitly stated in the text? &mdash; They were [first] mentioned and then the reason for them explained.
</p><p>
	What need was there to mention all the things specified in the text? &mdash; They all required [to be explicitly stated]. For if only a pit had been explicitly mentioned, I might have said that it was only a pit where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to cause death] on account of its being small and circular, whereas in the case of a ditch which is long I might have thought that [even] in ten handbreadths of depth there would still not be [sufficient] unhealthy air [to cause death]. If [again] only a ditch had been mentioned explicitly, I might have said that it was only a ditch where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to cause death] on account of its being small, whereas in a cave which is square I might have thought that [even] in ten handbreadths of depth there would still not be [sufficient] unhealthy air [to cause death]. Again, if only a cave had been mentioned explicitly, I might have said that it was only a cave where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to kill] on account of its being covered, whereas in the case of trenches which are uncovered I might have thought that [even] in ten handbreadths [of depth] there would still not be [sufficient] unhealthy air [to cause death]. Further, if only trenches had been stated explicitly, I might have said that it was only trenches where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to cause death] on account of their not being wider at the top than at the bottom, whereas in wedgelike ditches which are wider at the top than at the bottom I might have said that [even] in ten handbreadths [of depth] there would still not be [sufficient] unhealthy air [to cause death]. It was therefore necessary to let us know [that all of them are on a par in this respect].<a id="k50b_18"><sup>18</sup></a>
</p><p>
	We have learnt: WHERE, HOWEVER, THEY WERE LESS THAN TEN HANDBREADTHS [DEEP] AND AN OX OR AN ASS FELL INTO THEM AND DIED, THERE WOULD BE EXEMPTION.<a id="k50b_19"><sup>19</sup></a>&nbsp; IF THEY WERE ONLY INJURED BY THEM THERE WOULD BE LIABILITY. Now what could be the reason that where an ox or an ass fell into them and died there would be exemption? Is it not because the blow was insufficient [to cause death]?<a id="k50b_20"><sup>20</sup></a>&nbsp; &mdash; No, it is because there was no unhealthy air there. But if so, why where the animal was merely injured in such a pit should there be liability, seeing that there was no unhealthy air there? &mdash; I might reply that there was not unhealthy air there sufficient to kill, but there was unhealthy air there sufficient to injure.
</p><p>
	A certain ox fell into a pond which supplied water to the neighbouring fields. The owner hastened to slaughter it, but R. Nahman declared it <i>trefa</i>.<a id="k50b_21"><sup>21</sup></a>&nbsp; Said R. Nahman: 'Had the owner of this ox taken a <i>kab</i><a id="k50b_22"><sup>22</sup></a>&nbsp; of flour and come to the house of study, where he would have learnt that "If the ox lasted at least twenty-four hours [before being slaughtered] it would be kasher",<a id="k50b_23"><sup>23</sup></a>&nbsp; I would not have caused him to lose the ox which was worth several <i>kabs</i>.' This seems to show that R. Nahman held that a deadly blow can be inflicted even by an excavation less than ten handbreadths deep.<a id="k50b_24"><sup>24</sup></a>
</p><p>
	Raba raised an objection to R. Nahman: WHERE, HOWEVER, THEY WERE LESS THAN TEN HANDBREADTHS [DEEP] AND AN OX OR AND ASS FELL INTO THEM AND DIED, THERE SHOULD BE EXEMPTION. Now, is not the reason of this [exemption] because there was no deadly blow there?<a id="k50b_25"><sup>25</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k51a_1:" Sanh. 45a."
,k51a_2:" Lev. XIX, 18."
,k51a_3:" V. Sanh. ibid."
,k51a_4:" Deut. XXII, 8."
,k51a_5:" Why should there be no liability to construct a parapet even where the public road was lower by less than ten handbreadths."
,k51a_6:" Lit., 'He said to him'."
,k51a_7:" Cf. B.B. 7a."
,k51a_8:" In which case it would still not be termed house. Why then a parapet?"
,k51a_9:" So that the vertical height inside was not less than ten handbreadths."
,k51a_10:" V. p. 292, n. 2."
,k51a_11:" And as a fall from the height of ten handbreadths can be fatal R. Nahman had to declare the ox <i>trefa</i>."
,k51a_12:" For from the abdomen of the ox to the level of the ground there are surely four handbreadths."
,k51a_13:" But where the ox fell while walking, even where the pit was only six handbreadths deep the blow would be fatal."
,k51a_14:" And damage occurred later."
,k51a_15:" <i>Supra</i> 50a."
,k51a_16:" In which case they cannot plead trespass on the part of the plaintiff as defence."
,k51a_17:" For it is the one who dug it that should be responsible."
,k51a_18:" It will accordingly be the agent and not the principal who will have to be subject to the penalty; cf. B.M. 10b."
,k51a_19:" Partner."
,k51a_20:" For it was the latter's act that made the pit complete and capable of causing all kinds of damage."
,k51a_21:" V. p. 295."
,k51a_22:" V. the discussion later."
,k51a_23:" In which case they both made it complete and capable of causing all kinds of damage."
,k51a_24:" V. <i>supra</i> 10a."
,k51a_25:" V. p. 294, n. 7."
,k51a_26:" Lit., 'after the last for'."
,k51a_27:" For without the latter the pit would have been unable to cause death."
,k51a_28:" For even without the latter the pit would have been able to cause injury."
,k51a_29:" Ex. XXI, 33."
,k51a_30:" The verse would thus imply a case where after one man opened the pit of nine handbreadths deep another man dug an additional handbreadth and thus made it a pit of ten handbreadths deep."
,k51a_31:" The nine handbreadths."
,k51a_32:" So that he should become released from any responsibility."
,k51a_33:" How does he interpret the verse?"
,k51a_34:" Of opening and of digging."
,k51a_35:" <i>Supra</i> p. 285."
,k51a_36:" V. <i>supra</i> p. 272."
,k51a_37:" Whence do they derive this latter deduction?"
,k51a_38:" Ex. XXI, 34."
,k51a_39:" <i>Infra</i> p. 310."
,k51a_40:" As it became blemished."
,k51a_41:" I.e., could be used by him as food for dogs and like purposes."
,k51a_42:" Excepting thus a scared ox falling into a pit and dying there, as no use could lawfully be made of its carcass."
,k51a_43:" From the following Baraitha."
,k51a_44:" Who thus made its width smaller and the air closer and more harmful. "
}

txt:
<p>
No; it is because there was no unhealthy air there. But if so, why where it was injured in such a pit would there be liability since there was no unhealthy air there? &mdash; He replied: There was not unhealthy air there sufficient to kill, but there was unhealthy air there enough to injure.
</p><p>
	A further objection was raised: The scaffold [for stoning] was of the height of two men's statures.<a id="k51a_1"><sup>1</sup></a>&nbsp; And it has been taught regarding this: When you add the stature of the convict there will be there the height of three statures. Now, if you assume that a fall can be fatal even from a height of less than ten handbreadths, why was such a great height as that necessary? &mdash; But even according to your argument, why not make the height ten handbreadths only? This must therefore be explained in accordance with R. Nahman, for R. Nahman stated that Rabbah b. Abbuha had said: Scripture says, <i>And thou shalt love thy neighbour as thyself</i>,<a id="k51a_2"><sup>2</sup></a>&nbsp; [which implies], 'thou shalt choose for a convict the easiest possible execution.'<a id="k51a_3"><sup>3</sup></a>&nbsp; But if so, why not raise it still higher? &mdash; He would then become disfigured altogether.
</p><p>
	A further objection was raised: <i>If any man fall from thence</i>;<a id="k51a_4"><sup>4</sup></a>&nbsp; <i>'from thence'</i> but not into it. How is that so? Where the public road was ten handbreadths higher than the roof, and a man might fall from the former on to the latter, there is no liability [in respect of a parapet], but if the public road was ten handbreadths lower than the roof, and a man might fall from the latter on to the former, that there will be liability [in respect of a parapet]. Now, if you assume that a fall could be fatal even from a height of less than ten handbreadths, why should it be necessary to have the public road lower by [full] ten handbreadths?<a id="k51a_5"><sup>5</sup></a>&nbsp; &mdash; It was said in answer:<a id="k51a_6"><sup>6</sup></a>&nbsp; There is a difference in the case of a house, since if it is less than ten handbreadths [in height] it could not be designated 'house'.<a id="k51a_7"><sup>7</sup></a>&nbsp; But if so, even now when from the outside it is ten handbreadths high, were you to deduct from that the ceiling and the plaster, from the inside it would surely not have the height of ten handbreadths?<a id="k51a_8"><sup>8</sup></a>&nbsp; &mdash; To this it was said in reply: [We are dealing here with a case] where, e.g., the owner of the house sank the floor from within.<a id="k51a_9"><sup>9</sup></a>&nbsp; But if so, even where the height from the outside was not ten handbreadths, it could still be possible that from the inside it was ten handbreadths, as for instance where he sank the floor still more? &mdash; The reason of R. Nahman must therefore have been this: he considered that from the abdomen of the ox to the level of the ground must be [at least] four handbreadths, and the pond feeding the fields must be six handbreadths;<a id="k51a_10"><sup>10</sup></a>&nbsp; this makes ten handbreadths, with the result that when the ox received the blow it was from the height of ten handbreadths that the blow was given.<a id="k51a_11"><sup>11</sup></a>&nbsp; But why then does the Mishnah say: JUST AS PIT CAN CAUSE DEATH BECAUSE IT IS USUALLY TEN HANDBREADTHS [DEEP], SO ALSO ALL [OTHER SIMILAR NUISANCES] MUST BE SUCH AS CAN CAUSE DEATH, [I.E.] TEN HANDBREADTHS [DEEP]? Should not six handbreadths be enough?<a id="k51a_12"><sup>12</sup></a>&nbsp; &mdash; We could reply that the Mishnah deals with a case where the ox rolled itself over into the pit.<a id="k51a_13"><sup>13</sup></a>
<P>
	<B><I>MISHNAH</I></B>. WHERE THERE IS A PIT [IN CHARGE OF] TWO PARTNERS, IF THE FIRST ONE PASSES BY AND DOES NOT COVER IT, AND THE SECOND ONE ALSO [PASSES BY AND DOES] NOT COVER IT,<a id="k51a_14"><sup>14</sup></a>&nbsp; THE SECOND WOULD BE LIABLE.
</p><p>
	<B><I>GEMARA</I></B>. I would here ask, how can we picture a pit in charge of two partners? True, we can understand this if we take the view of R. Akiba, who said that a pit in private ground would involve liability,<a id="k51a_15"><sup>15</sup></a>&nbsp; in which case such a pit could be found where they jointly own the ground and also a pit in it, and while they abandoned the ground [round about],<a id="k51a_16"><sup>16</sup></a>&nbsp; they did not abandon the pit itself. But if we take the view that a pit on private ground would involve exemption,<a id="k51a_15"><sup>15</sup></a>&nbsp; in which case liability could be found only where it was on public ground, how then is it possible for a pit in public ground to be in charge of two partners?<a id="k51a_17"><sup>17</sup></a>&nbsp; [For if you say that] both of them appointed an agent and said to him: 'Go forth and dig for us', and he went and dug for them, [we reply that] there can be no agency for a sinful act.<a id="k51a_18"><sup>18</sup></a>&nbsp; If again you say that the one<a id="k51a_19"><sup>19</sup></a>&nbsp; dug five handbreadths and the other one<a id="k51a_19"><sup>19</sup></a>&nbsp; dug another five handbreadths, [then we would point out that] the act of the former has become eliminated?<a id="k51a_20"><sup>20</sup></a>&nbsp; It is true that according to Rabbi,<a id="k51a_21"><sup>21</sup></a>&nbsp; we can imagine a pit [in charge of two partners] in respect of mere injury.<a id="k51a_22"><sup>22</sup></a>&nbsp; But in respect of death even according to Rabbi, or in respect whether of death or of mere injury<a id="k51a_22"><sup>22</sup></a>&nbsp; according to the Rabbis,<a id="k51a_21"><sup>21</sup></a>&nbsp; where could we find such a pit? &mdash; R. Johanan thereupon said: [We find such a pit] where e.g., both of them removed a layer of ground at the same time and thereby made the pit ten handbreadths deep.<a id="k51a_23"><sup>23</sup></a>
</p><p>
	What opinion of Rabbi and what opinion of the Rabbis [was referred to above]? &mdash; It was taught:<a id="k51a_24"><sup>24</sup></a>&nbsp; Where one had dug a pit of nine handbreadths [deep] and another one came along and completed it to a depth of ten handbreadths, the latter would be liable.<a id="k51a_25"><sup>25</sup></a>&nbsp; Rabbi says: The last one is responsible in<a id="k51a_26"><sup>26</sup></a>&nbsp; cases of death,<a id="k51a_27"><sup>27</sup></a>&nbsp; but both of them in cases of injury.<a id="k51a_28"><sup>28</sup></a>&nbsp; What was the reason of the Rabbis? &mdash; Scripture says; If a man shall open&nbsp;&hellip; or if a man shall dig&nbsp;&hellip;<a id="k51a_29"><sup>29</sup></a>&nbsp; Now if for mere opening there is liability, should there not be all the more so in the case of digging? [Why then mention digging at all?] It must be in order to lay down the rule [also] for [the case of] one person digging [in a pit] after another,<a id="k51a_30"><sup>30</sup></a>&nbsp; [namely,] that [in such a case] the act of the one who dug first<a id="k51a_31"><sup>31</sup></a>&nbsp; is regarded as eliminated.<a id="k51a_32"><sup>32</sup></a>&nbsp; And Rabbi?<a id="k51a_33"><sup>33</sup></a>&nbsp; &mdash; He might rejoin that it was necessary to mention both terms,<a id="k51a_34"><sup>34</sup></a>&nbsp; as explained elsewhere.<a id="k51a_35"><sup>35</sup></a>&nbsp; And do not the Rabbis also hold that it was necessary?<a id="k51a_35"><sup>35</sup></a>&nbsp; &mdash; The reason of the Rabbis must therefore have been that Scripture says, If a man shall dig [indicating that] one person but not two persons [should be liable for one pit]. Rabbi, on the other hand, maintained that [the expression 'a man'] was needed to teach that if a man shall dig a pit [there would be liability] but not where an ox [dug] a 'pit'.<a id="k51a_36"><sup>36</sup></a>&nbsp; And the Rabbis?<a id="k51a_37"><sup>37</sup></a>&nbsp; [They might point out] 'a man&nbsp;&hellip; a pit' is inserted twice [in the same context].<a id="k51a_29"><sup>29</sup></a>&nbsp; And Rabbi? &mdash; He [could rejoin that] having inserted these words in the first text, Scripture retained them in the second also.
</p><p>
	Now [according to the Rabbis who hold that Scripture intended to make only one person liable], whence could it be proved that it is the last person [that dug] who should be liable? Why not make the first person [who dug] liable? &mdash; Let not this enter your mind, since Scripture has stated, And the dead shall be his<a id="k51a_38"><sup>38</sup></a>&nbsp; [implying that the liability rests upon him] who made the pit capable of killing. But was not this [verse] 'And the dead shall be his' required for the lesson drawn by Raba? For did Raba not say:<a id="k51a_39"><sup>39</sup></a>&nbsp; If a sacred ox which has become disqualified [for the altar]<a id="k51a_40"><sup>40</sup></a>&nbsp; falls into a pit, there would be exemption, as Scripture says 'And the dead beast shall be his' [implying that it is only] in the case of an ox whose carcass could be his<a id="k51a_41"><sup>41</sup></a>&nbsp; [that there would be liability]?<a id="k51a_42"><sup>42</sup></a>&nbsp; &mdash; To this I might rejoin: Can you not [at the same time] automatically derive from it that it is the man who made the pit capable of killing with whom we are dealing?
</p><p>
	Our Rabbis taught: If one person has dug a pit to a depth of ten handbreadths and another person comes along and completes it to a depth of twenty, after which a third person comes along and completes it to a depth of thirty, they all would be liable. A contradiction was here pointed out:<a id="k51a_43"><sup>43</sup></a>&nbsp; If one person dug a pit ten handbreadths deep, and another came along and lined it with plaster and cemented it,<a id="k51a_44"><sup>44</sup></a>&nbsp; the second would be liable.
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k51b_1:" Making them all liable."
,k51b_2:" Who in the case of mere injury makes them all liable."
,k51b_3:" Making the second liable in all cases."
,k51b_4:" Hence the liability upon all of them in the former Baraitha."
,k51b_5:" V. p. 296, n. 7."
,k51b_6:" As where its width was more than its depth."
,k51b_7:" V. p. 296, n. 9."
,k51b_8:" In which case it stands to reason that the second person only should be liable."
,k51b_9:" As to whether the second person or both of them would be liable in cases of injury."
,k51b_10:" As in the case stated by Raba."
,k51b_11:" And that according to both Rabbi and the Rabbis the second person should not be liable."
,k51b_12:" By Raba."
,k51b_13:" And thus released himself from further responsibility."
,k51b_14:" If an animal fell in and was killed."
,k51b_15:" And should therefore be subject to the law applicable to a pit of less than ten handbreadths deep."
,k51b_16:" And should thus be equal to that of a pit ten handbreadths deep."
,k51b_17:" What liability had he thus incurred?"
,k51b_18:" On account of which he should surely bear responsibility."
,k51b_19:" Implying that where the width is just equal to the depth there would still be unhealthy air there."
,k51b_20:" But where the depth just equalled the width there would be no unhealthy air there."
,k51b_21:" Of the partners."
,k51b_22:" Between Rabbah and R. Joseph."
,k51b_23:" I.e., retrospective designation, so that a subsequent selection or definition determines retrospectively a previous state of affairs that was undefined in its nature."
,k51b_24:" Though this water which he subsequently drew was by no means defined at the time when the partnership was formed."
,k51b_25:" So that one partner does not use the water of the other to become thereby a borrower of it and thus enter into responsibility regarding it."
,k51b_26:" So that the water drawn by each of them consists of two parts: one from his own and the other from that of his fellow-partner, with reference to which he in the position of borrower, assuming thus full responsibility also for the part of the partner who is the lender."
,k51b_27:" The Rabbis and R. Eliezer b. Jacob."
,k51b_28:" And are consequently not deriving any benefit from one another. (Ned. 45b)."
,k51b_29:" In accordance with Kid. I, 5."
,k51b_30:" B.B. 53a. "
}

txt:
<p>
Are we to say that the former statement<a id="k51b_1"><sup>1</sup></a>&nbsp; follows the view of Rabbi<a id="k51b_2"><sup>2</sup></a>&nbsp; whereas the latter<a id="k51b_3"><sup>3</sup></a>&nbsp; follows that of the Rabbis?<a id="k51b_3"><sup>3</sup></a>&nbsp; &mdash; R. Zebid thereupon said that the one statement as well as the other could be regarded as following the view of the Rabbis.<a id="k51b_3"><sup>3</sup></a>&nbsp; For even there [in their own case] the Rabbis would not say that the last digger should be liable, save in a case where the first digger did not make the pit of the minimum depth capable of killing, whereas [in this case] where the first digger made the pit of the minimum depth capable of killing even the Rabbis would agree that all the diggers should be liable.<a id="k51b_4"><sup>4</sup></a>&nbsp; But, [what of] the case of [the second] lining it with plaster and cementing it,<a id="k51b_5"><sup>5</sup></a>&nbsp; where the first digger made the pit of the minimum depth capable of killing, and yet it was said that the second would be liable? &mdash; It may be answered that the case there was where the unhealthy air was not sufficient to kill,<a id="k51b_6"><sup>6</sup></a>&nbsp; and it was the other person who, by diminishing the size of the pit increased the dangerous effect of the air so as to make it capable of killing. Some report that R. Zebid said that the one statement as well as the other could he regarded as following the view of Rabbi.<a id="k51b_7"><sup>7</sup></a>&nbsp; About the statement that they would all be liable there is [on this supposition] no difficulty. And as for the other statement that the second digger would be liable, this refers to a case where e.g., the unhealthy air was sufficient neither to kill nor to injure, and it was the other person who by diminishing the size of the pit increased the dangerous effect of the air so as to make it capable of both killing and injuring.<a id="k51b_8"><sup>8</sup></a>
</p><p>
	Raba said: The case of a man putting a stone round the mouth of a pit and thereby completing it to a depth of ten handbreadths is one which brings us face to face with the difference of opinion between Rabbi and the Rabbis.<a id="k51b_9"><sup>9</sup></a>&nbsp; Is this not obvious? &mdash; You might perhaps think that [the difference of opinion] was only where the increase in depth was made at the bottom, in which case it was the unhealthy air added by the second digger that caused death, whereas where the increase was made from the top,<a id="k51b_10"><sup>10</sup></a>&nbsp; in which case it was not the unhealthy air added by him that caused the death, it might have been said that there was no difference of opinion.<a id="k51b_11"><sup>11</sup></a>&nbsp; We are therefore told<a id="k51b_12"><sup>12</sup></a>&nbsp; [that this is not the case].
</p><p>
	Raba raised the question: Where [the second comer] filled in the one handbreadth [which he had previously dug] with earth, or where he removed the stones [which he had previously put round the mouth of the pit], what would be the legal position? Are we to say that he has undone what he had previously done,<a id="k51b_13"><sup>13</sup></a>&nbsp; or rather perhaps that the act of the first digger had already been merged [in the act of the second] and the whole pit had since then been in the charge of the second? &mdash; Let this remain undecided.
</p><p>
	Rabbab b. Bar Hanah said that Samuel b. Martha stated: Where a pit is eight handbreadths deep, but two handbreadths out of these are [full] of water, there would be liability,<a id="k51b_14"><sup>14</sup></a>&nbsp; the reason being that each handbreadth [full] of water is equivalent [in its capacity to cause death] to two handbreadths without water. The question was thereupon raised: Where a pit is of nine handbreadths but one of these is full of water, what should be the law? Should we say that since there is not so much water there, there is not [so much] unhealthy air,<a id="k51b_15"><sup>15</sup></a>&nbsp; or rather that since the pit is deeper there is there [a quantity of] unhealthy air?<a id="k51b_16"><sup>16</sup></a>&nbsp; [Again], where the pit is of seven handbreadths and out of these three handbreadths are full of water, what would be the legal position? Should we say that since there is much water there, the unhealthy air is there [in proportion],<a id="k51b_16"><sup>16</sup></a>&nbsp; or rather that since it is not deep, there is no [great quantity of] unhealthy air there?<a id="k51b_15"><sup>15</sup></a>&nbsp; &mdash; Let these queries remain undecided.
</p><p>
	R. Shezbi inquired of Rabbah: If the second digger makes it wider, what would be the law? &mdash; He replied: Does he not thereby diminish the unhealthy air?<a id="k51b_17"><sup>17</sup></a>&nbsp; Said the other to him: On the contrary, does he not increase the risk of injury?<a id="k51b_18"><sup>18</sup></a>&nbsp; &mdash; R. Ashi thereupon said: We have to consider whether [the animal] died through bad air, in which case [the second digger could not be responsible as] he diminished the unhealthy air, or whether it died through the fall, in which case [the second digger should be responsible as] he increased the risk of injury. Some report that R. Ashi said: We have to see whether [the animal] fell from this side [which was extended], in which [case the second digger would be responsible as] he increased the risk of injury, or whether it fell from the other side, in which case [the second digger would not be to blame, as] he diminished the unhealthy air in the pit.
</p><p>
	It was stated: In regard to a pit as deep as it is wide [there is a difference of opinion between] Rabbah and R. Joseph, both of whom made their respective statements in the name of Rabbah b. Bar Hanah who said it in the name of R. Mani. One said that there is always unhealthy air in a pit unless where its width is greater than its depth,<a id="k51b_19"><sup>19</sup></a>&nbsp; the other said that there could never be unhealthy air in a pit unless where its depth was greater than its width.<a id="k51b_20"><sup>20</sup></a>
</p><p>
	IF THE FIRST ONE<a id="k51b_21"><sup>21</sup></a>&nbsp; PASSED BY AND DID NOT COVER IT&nbsp;&hellip; From what point of time will the first one<a id="k51b_21"><sup>21</sup></a>&nbsp; be exempt from responsibility? &mdash; [There was a difference of opinion here between] Rabbah and R. Joseph, both of whom made their respective statements in the name of Rabbah b. Bar Hanah who said it in the name of R. Mani. One said, from the moment when the first partner leaves the second in the act of using the well; the other, from the moment when he hands over the cover of the well to him. [The same difference<a id="k51b_22"><sup>22</sup></a>&nbsp; is found] between the following Tannaim: If one [partner] was drawing water from a well and the other came along and said to him, 'Leave it to me as I will also draw water', as soon as the first left the second in the act of using it he would become exempt [from any responsibility]. R. Eliezer b. Jacob said: [The exemption commences] from the time that the first hands over the cover to the second. In regard to what principle do they differ? &mdash; R. Eliezer b. Jacob held that there is bererah<a id="k51b_23"><sup>23</sup></a>&nbsp; [so that] the one [partner] was drawing water from his own<a id="k51b_24"><sup>24</sup></a>&nbsp; and so also the other [partner] was drawing the water from his own,<a id="k51b_25"><sup>25</sup></a>&nbsp; whereas the Rabbis maintained that there is no bererah.<a id="k51b_26"><sup>26</sup></a>&nbsp; Rabina thereupon said: They<a id="k51b_27"><sup>27</sup></a>&nbsp; have followed here the same line of reasoning as elsewhere, as we have learnt, Where partners have vowed not to derive benefit from one another they would not be allowed to enter premises jointly owned by them. R. Eliezer b. Jacob, however, says: The one partner enters his own and the other partner enters his own.<a id="k51b_28"><sup>28</sup></a>&nbsp; [Now, it was asked there,] in regard to what principle did they differ? &mdash; R. Eliezer b. Jacob held that there is bererah so that the one partner would thus be entering his own and the other partner would similarly be entering his own, whereas the Rabbis maintained that there is no bererah.
</p><p>
	R. Eleazar said: If a man sells a pit to another, as soon as he hands over the cover of the pit to him, the conveyance is complete. What are the circumstances? If money was paid, why was the conveyance not completed by the money?<a id="k51b_29"><sup>29</sup></a>&nbsp; If possession was taken [of the pit], why was the conveyance not completed by possession?<a id="k51b_29"><sup>29</sup></a>&nbsp; &mdash; In fact, we suppose possession to have been taken [of the pit], and it was still requisite for the seller to say to the buyer, 'Go forth, take possession and become the owner',<a id="k51b_30"><sup>30</sup></a>&nbsp; but as soon as he handed over the cover to him, this was equivalent [in the eyes of the law] to his saying to him, 'Go forth, take possession and complete the conveyance.'
</p><p>
	R. Joshua b. Levi said: If a person sells a house to another
</P>


lvr: 41
dfh: a
notes:
 ntes={k52a_1:" V. the discussion later."
,k52a_2:" In accordance with Kid. I, 4; v. also <i>supra</i> 11b."
,k52a_3:" V. p. 300, n. 5."
,k52a_4:" In Babylon."
,k52a_5:" Who delivered popular discourses at R. Hisda's; cf. Shab 88a."
,k52a_6:" Of the partners."
,k52a_7:" As he is surely not to blame."
,k52a_8:" V. the discussion in Gemara."
,k52a_9:" As <i>supra</i> 25b."
,k52a_10:" Though a minor."
,k52a_11:" But not noticeable from the outside."
,k52a_12:" For if the camels had fallen in he would have certainly been liable."
,k52a_13:" Even regarding oxen, for he should have thought of the possibility that camels might come first and weaken the cover and oxen would then fall in."
,k52a_14:" As he is surely not to blame."
,k52a_15:" V. p. 301, n. 7. "
}

txt:
<p>
as soon as he hands over the key to him, the conveyance is complete. What are the circumstances? If money was previously paid, why was the conveyance not completed by the money? If possession was taken, why was the conveyance not completed by possession? &mdash; We suppose that in fact possession was taken [of the house], and it was still requisite for the seller to say to the buyer, 'Go forth, take possession and become the owner', but as soon as he handed over the key to him, this was equivalent [in the eye of the law] to his saying to him, 'Go forth, take possession and complete the conveyance.'
</p><p>
	Resh Lakish said in the name of R. Jannai: If a man sells a herd to his neighbour, as soon as he has handed over the mashkokith<a id="k52a_1"><sup>1</sup></a>&nbsp; to him, the conveyance is complete. What are the circumstances? If possession by pulling [has already taken place], why was the conveyance not completed by the act of pulling? If delivery [of the flock has already taken place], why was the conveyance not completed by the act of delivery?<a id="k52a_2"><sup>2</sup></a>&nbsp; &mdash; We suppose in fact that possession by pulling [has already taken place], and it was still necessary for the seller to say to the buyer, 'Go forth, take possession by pulling and become the owner,'<a id="k52a_3"><sup>3</sup></a>&nbsp; but as soon as he handed over the mashkokith to him, this was equivalent [in the eye of the law] to his saying, 'Go forth, take possession by pulling and complete the conveyance.' What is mashkokith? &mdash; Here<a id="k52a_4"><sup>4</sup></a>&nbsp; they explained it: 'The bell'. R. Jacob, however, said: 'The goat that leads the herd.' So too a certain Galilean<a id="k52a_5"><sup>5</sup></a>&nbsp; in one of his discourses before R. Hisda [said] that when the shepherd becomes angry with his flock he appoints for a leader one which is blind.
</p><p>
	<B><I>MISHNAH</I></B>. IF THE FIRST ONE<a id="k52a_6"><sup>6</sup></a>&nbsp; COVERED IT AND THE SECOND ONE CAME ALONG AND FOUND IT OPEN AND [NEVERTHELESS] DID NOT COVER IT, THE SECOND WOULD BE LIABLE. IF [AN OWNER OF A PIT] HAD COVERED IT PROPERLY, AND AN OX OR AN ASS [NEVERTHELESS] FELL INTO IT AND WAS KILLED, HE WOULD BE EXEMPT.<a id="k52a_7"><sup>7</sup></a>&nbsp; BUT IF HE DID NOT COVER IT PROPERLY, AND AN OX OR ASS FELL INTO IT AND WAS KILLED, HE WOULD BE LIABLE. IF IT FELL FORWARD, [BEING FRIGHTENED] ON ACCOUNT OF THE NOISE OF DIGGING, THERE WOULD BE LIABILITY, BUT IF IT FELL BACKWARD ON ACCOUNT OF THE NOISE OF DIGGING, THERE WOULD BE EXEMPTION.<a id="k52a_8"><sup>8</sup></a>&nbsp; IF AN OX FELL INTO IT TOGETHER WITH ITS IMPLEMENTS WHICH THEREBY BROKE, [OR] AN ASS TOGETHER WITH ITS BAGGAGE WHICH WAS THEREBY TORN, THERE WOULD BE LIABILITY FOR THE BEAST BUT EXEMPTION AS REGARDS THE INANIMATE OBJECTS.<a id="k52a_9"><sup>9</sup></a>&nbsp; IF THERE FELL INTO IT AN OX, DEAF, ABNORMAL OR SMALL,<a id="k52a_8"><sup>8</sup></a>&nbsp; THERE WOULD BE LIABILITY. BUT IN THE CASE OF A SON OR A DAUGHTER,<a id="k52a_10"><sup>10</sup></a>&nbsp; A MANSERVANT OR A MAIDSERVANT, THERE WOULD BE EXEMPTION.<a id="k52a_9"><sup>9</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. Up to when would the first partner be exempt [altogether]? &mdash; Rab said: Until he had time to learn [that the cover had been removed]. Samuel said: Until there was time for people to tell him. R. Johanan said: Until there was time for people to tell him and for him to hire labourers and cut cedars to cover it [again].
</p><p>
	IF [AN OWNER OF A PIT] HAD COVERED IT PROPERLY AND AN OX OR AN ASS [NEVERTHELESS] FELL INTO IT AND WAS KILLED, HE WOULD BE EXEMPT. But seeing that he covered it properly, how indeed could the animal have fallen [into it]? &mdash; R. Isaac b. Bar Hanah said: We suppose [the boards of the cover] to have decayed from within.<a id="k52a_11"><sup>11</sup></a>&nbsp; It was asked: Suppose he had covered it with a cover which was strong enough for oxen but not strong enough for camels, and some camels happened to come first and weaken the cover and then oxen came and fell into the pit,<a id="k52a_12"><sup>12</sup></a>&nbsp; what would be the legal position? &mdash; But I would ask what were the circumstances? If camels frequently passed there, should he not be considered careless?<a id="k52a_13"><sup>13</sup></a>&nbsp; If camels did not frequently pass there, should he not be considered innocent?<a id="k52a_14"><sup>14</sup></a>&nbsp; &mdash; The question applies to the case where camels used to pass occasionally, [and we ask]: Are we to say that since from time to time camels passed there he was careless,<a id="k52a_13"><sup>13</sup></a>&nbsp; since he ought to have kept this in mind; or do we rather say that since at the time the camels had not actually been there, he was innocent? &mdash; Come and hear: IF HE HAD COVERED IT PROPERLY, AND AN OX OR AN ASS [NEVERTHELESS] FELL INTO IT AND WAS KILLED, HE WOULD BE EXEMPT.<a id="k52a_15"><sup>15</sup></a>&nbsp; Now, what were the circumstances? If it was covered properly, both as regards oxen and as regards camels, how then did any one fall in there? Does it therefore not mean 'properly as regards oxen,
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k52b_1:" And it so happened that camels weakened the cover, and when an ox or ass came later on it fell in."
,k52b_2:" V. p. 302, n. 4."
,k52b_3:" Though this ruling is obvious."
,k52b_4:" Cf. <a href=\"../tglossary.html\">Glos.</a>"
,k52b_5:" no note."
,k52b_6:" <i>Infra</i> 54b."
,k52b_7:" As the owner of the pit could hardly have thought it likely that a normal ox walking during the day would fall into a pit."
,k52b_8:" In which case it died from suffocation and there would be liability."
,k52b_9:" Where the death could not have been caused by suffocation and there is therefore exemption. "
}

txt:
<p>
but not properly as regards camels'?<a id="k52b_1"><sup>1</sup></a>&nbsp; Again, if camels frequently passed, why should he be exempt where he had been so careless? If [on the other hand] camels did not frequently pass, is it not obvious [that he is exempt since] he was innocent? Did it therefore not refer to a case where camels used to pass occasionally, and it so happened that when camels passed they weakened the cover so that the oxen coming [later on] fell? And [in such cases] the text says, 'he would be exempt.' Does not this prove that since at that time camels had not actually been there he would be considered innocent? &mdash; I would say, no. For it might still [be argued that the pit had been covered] properly both as regards oxen and as regards camels; and as for the difficulty raised by you 'how did any one fall in there?', [this has already been removed by] the statement of R. Isaac b. Bar Hanah that [the boards of the cover] decayed from within.<a id="k52b_2"><sup>2</sup></a>
</p><p>
	Come and hear: BUT IF HE DID NOT COVER IT PROPERLY AND AN OX OR AN ASS FELL INTO IT AND WAS KILLED, HE WOULD BE LIABLE. Now what were the circumstances? If you say that it means not properly covered as regards oxen', [which would of course imply] also 'not properly covered as regards camels', is it not obvious? Why then was it necessary to state liability? Does it not therefore mean 'that it was properly covered as regards oxen but not properly covered as regards camels'?<a id="k52b_1"><sup>1</sup></a>&nbsp; [Again, I ask,] what were the circumstances? If camels frequently passed [is it not obvious that] he was careless? If [on the other hand] no camels were to be found there, was he not innocent? Does it not [therefore speak of a case] where camels used to arrive occasionally and it so happened that camels in passing had weakened the cover so that the oxen coming [later] fell in? And [in reference to such a case] the text states liability. Does this not prove that since from time to time camels did pass he should be considered careless as he ought to have borne this fact in mind? &mdash; In point of fact [I might reply, the text may still speak of a pit covered] 'properly' as regards oxen though 'not properly' as regards camels, and [of one where] camels frequently passed, and as for your question. '[Is it not obvious that] he was careless?' [the answer would be that] since the prior clause contains the words, 'If he covered it properly', the later clause has the wording, 'If he did not cover it properly'.<a id="k52b_3"><sup>3</sup></a>
</p><p>
	Some report that certainly no question was ever raised about this, for since the camels used to pass from time to time he was certainly careless, as he ought to have borne this fact in mind. If a question was raised, it was on the following point: Suppose he covered it with a cover that was strong enough for oxen but not strong enough for camels and in a place where camels frequently passed, and it decayed from the inside, what should be the legal position? Should we say <i>miggo</i>,<a id="k52b_4"><sup>4</sup></a>&nbsp; [i.e.,] since he had been careless with respect to camels he ought to be considered careless also with respect to the [accidental] decay; or should we not say <i>miggo</i>? &mdash; Come and hear; IF HE COVERED IT PROPERLY AND AN OX OR AN ASS FELL INTO IT AND WAS KILLED, HE WOULD BE EXEMPT. And it was stated in connection with this ruling that R. Isaac b. Bar Hanah explained that the boards of the cover had decayed from the inside. Now, what were the circumstances? If we say that it means 'properly covered as regards oxen' and also properly covered as regards camels', and that it had decayed from the inside, is it not obvious that there should be exemption? For indeed what more could he have done? Does it not mean, therefore, properly covered as regards oxen though not properly covered as regards camels', and in a place where camels frequently passed, and it so happened that the cover decayed from the inside? And [in such a case] the text states exemption. Does this not prove that we should not say <i>miggo</i>, [i.e.] since he was careless with respect to camels he ought to be considered careless with reference to the decay? &mdash; No, it might still [be argued that the pit was covered] properly as regards camels as well as oxen, and it so happened that it became decayed from the inside. And as for your question 'if it becomes decayed [from inside] what indeed should he have done?' [the answer would be that] you might have thought that he ought to have come frequently to the cover and knocked it [to test its soundness], and we are therefore told [that he was not bound to do this].
</p><p>
	Come and hear; BUT IF HE DID NOT COVER IT PROPERLY, AND AN OX OR AN ASS FELL INTO IT AND WAS KILLED, HE WOULD BE LIABLE. Now, what were the circumstances? Should you say that it means 'not properly covered as regards oxen, [which would of course imply also] 'not properly covered as regards camels', why then was it necessary to state liability? Does it not therefore mean [that it was covered] properly as regards oxen but not properly as regards camels? But again if camels frequently passed there, [is it not obvious that] he was careless? If [on the other hand] no camels were to be found there, was he not innocent? Does it therefore not deal with a case where camels did frequently pass, but [it so happened] that the cover decayed from the inside? And [in such a case] the text states liability. Does this not prove that we have to say <i>miggo</i>, [i.e.,] since he had been careless with respect to camels, he should be considered careless also with reference to decay?<a id="k52b_5"><sup>5</sup></a>&nbsp; &mdash; I would say, No. For it might still [be argued that the pit had been covered] properly as regards oxen but not properly as regards camels, and in a place where camels were to be found frequently, and [it happened that] camels had come along and weakened the cover so that when oxen subsequently came they fell into the pit. And as for your question, 'Is it not obvious that he was careless?' [the answer would be that] since the prior clause contained the words 'If he covered it properly', the later clause similarly uses the wording. 'If he did not cover it [properly]'.
</p><p>
	Come and hear; 'If there fell into it an ox that was deaf, abnormal, small, blind or while it walked at night time, there would be liability.<a id="k52b_6"><sup>6</sup></a>&nbsp; But in the case of a normal ox walking during the day there would be exemption.'<a id="k52b_7"><sup>7</sup></a>&nbsp; Why so? Why not say that since the owner of the pit was careless with respect to a deaf animal he should be considered careless also with reference to a normal animal? Does not this show that we should not say <i>miggo</i>.' &mdash; This does indeed prove [that we do not say <i>miggo</i>].
</p><p>
	IF IT FELL FORWARD etc. Rab said: 'FORWARD' means quite literally 'on its face',<a id="k52b_8"><sup>8</sup></a>&nbsp; and 'BACKWARD' means also literally, 'on its back',<a id="k52b_9"><sup>9</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k53a_1:" <i>Supra</i> p. 289."
,k53a_2:" Ex. XXI, 33-34."
,k53a_3:" In which case the pit acted only as a secondary cause."
,k53a_4:" Where the ground round about the pit has been abandoned, while the pit itself and the ground of it still remain with the owner."
,k53a_5:" Since the pit and its ground remained yours."
,k53a_6:" Where liability was stated."
,k53a_7:" Cf. Mishnah 47b."
,k53a_8:" Ex. XXI, 33."
,k53a_9:" Cf. <i>supra</i> p. 290."
,k53a_10:" Why then should the owner of the pit be liable? The digger too should also be exempt as he was but a remote cause to the damage that resulted."
,k53a_11:" Cf. <i>supra</i> 13a."
,k53a_12:" In which case the owner of the ox will pay quarter and the owner of the pit three quarters."
,k53a_13:" Where both of them will pay equally."
,k53a_14:" Which is half of the payment in the case of <i>Tam</i>."
,k53a_15:" B.M. 117b; cf. also Hor. 13b."
,k53a_16:" In the case of <i>Tam</i>."
,k53a_17:" If I will have to pay half damages which is the maximum payment in my case."
,k53a_18:" V. p. 307, n. 7. [And similarly in the case of our Mishnah since he cannot claim any damages from the digger, who was but a secondary cause, he is compensated by the owner of the pit.]"
,k53a_19:" As to whether the digger of the pit or the one who put the stone should be liable."
,k53a_20:" According to whom the one who put the stone would alone have to pay. "
}

txt:
<p>
the fall in each case being into the pit. Rab thus adhered to his own view as [elsewhere]<a id="k53a_1"><sup>1</sup></a>&nbsp; stated by Rab, that the liability in the case of Pit imposed by the Torah<a id="k53a_2"><sup>2</sup></a>&nbsp; is for injury caused by the unhealthy air [of the pit] but not for the blow [given by it]. Samuel, however, said that where the ox fell into the pit, whether on its face or on its back, there would always be liability, since Samuel adhered to the view stated by him [elsewhere]<a id="k53a_1"><sup>1</sup></a>&nbsp; that [the liability is] for the unhealthy air, and a plus forte raison for the blow. How then are we to understand [the words 'Where it fell] BACKWARD ON ACCOUNT OF THE NOISE OF DIGGING', in which case [we are told] there should be exemption? &mdash; As, for instance, where it stumbled over the pit and fell to the back of the pit, [i.e.,] outside the pit.<a id="k53a_3"><sup>3</sup></a>
</p><p>
	An objection was raised [from the following: If it fell] inside the pit whether on its face or on its back there would be liability. Is not this a contradiction of the statement of Rab? &mdash; R. Hisda replied: Rab would admit that in the case of a pit in private ground<a id="k53a_4"><sup>4</sup></a>&nbsp; there would be liability, as the plaintiff could argue against the defendant: 'Whichever way you take it, if the animal died through the unhealthy air, was not the unhealthy air yours? If [on the other hand] it died through the blow, was not the blow given by your ground?<a id="k53a_5"><sup>5</sup></a>&nbsp; Rabbah, however, said: We are dealing here<a id="k53a_6"><sup>6</sup></a>&nbsp; with a case where the animal turned itself over; it started to fall upon its face but [before reaching the bottom of the pit it] turned itself over and finally fell upon its back, so that the unhealthy air which affected it [at the outset] really did the mischief. R. Joseph. however, said that we are dealing here<a id="k53a_6"><sup>6</sup></a>&nbsp; with a case where damage was done to the pit by the ox, i.e., where the ox made foul the water in the pit,<a id="k53a_7"><sup>7</sup></a>&nbsp; in which case no difference could be made whether it fell on its face or on its back, as there would always be liability.
</p><p>
	R. Hananiah learnt [in a Baraitha] in support of the statement of Rab: [Scripture says] And it fall,<a id="k53a_8"><sup>8</sup></a>&nbsp; [implying that there would be no liability] unless where it fell in the usual way of falling.<a id="k53a_9"><sup>9</sup></a>&nbsp; Hence the Sages said: If it fell forward on account of the noise of digging there would be liability, but if it fell backward on account of the noise of digging there would be exemption, though in both cases [it fell] into the pit.
</p><p>
	The Master stated: Where it fell forward on account of the noise of digging there would be liability. But why not say that it was the digger who caused it?<a id="k53a_10"><sup>10</sup></a>&nbsp; &mdash; R. Shimi b. Ashi thereupon said: This ruling is in accordance with R. Nathan, who stated that it was the owner of the pit who did the actual damage, and whenever no payment can be enforced from one [co-defendant] it is made up from the other<a id="k53a_11"><sup>11</sup></a>&nbsp; as indeed it has been taught: 'If an ox pushes another ox into a pit, the owner of the ox is liable, while the owner of the pit is exempt. R. Nathan, however, said that the owner of the ox would have to pay a half [of the damages] and the owner of the pit would have to pay the other half.' But was it not taught: R. Nathan says: The owner of the pit has to pay three-quarters, and the owner of the ox one quarter? &mdash; There is no contradiction, as the latter statement refers to <i>Tam</i><a id="k53a_12"><sup>12</sup></a>&nbsp; and the former to <i>Mu'ad</i>.<a id="k53a_13"><sup>13</sup></a>&nbsp; On what principle did he base his ruling in the case of <i>Tam</i>? If he held that this [co-defendant] should be considered [in the eye of the law] as having done the whole of the damage, and so also the other co-defendant as having done the whole of the damage, why should not the one pay half and the other also pay half? If [on the other hand] he held that the one did half the damage and the other one also did half the damage, then let the owner of the pit pay half [of the damages] and the owner of the ox a quarter,<a id="k53a_14"><sup>14</sup></a>&nbsp; while the remaining quarter will be lost to the plaintiff? Raba thereupon said: R. Nathan was a judge, and went down to the depth of the law:<a id="k53a_15"><sup>15</sup></a>&nbsp; He did in fact hold that the one was considered as having done the whole of the damage and so also the other was considered as having done the whole of the damage; and as for your question 'Why should the one not pay half and the other half?' [he could answer] because the owner of the ox<a id="k53a_16"><sup>16</sup></a>&nbsp; could say to the owner of the pit, 'What will this your joining me [in the defence] benefit me?'<a id="k53a_17"><sup>17</sup></a>&nbsp; Or if you wish you may [alternatively] say that R. Nathan did in fact hold that the one did half of the damage and the other did half of the damage, and as for your question, 'Why not let the owner of the pit pay half and the owner of the ox a quarter while the remaining quarter will be lost to the plaintiff?' he might answer, because the owner of the killed ox would be entitled to say to the owner of the pit, 'As I have found my ox in your pit, you have killed it. Whatever is paid to me by the other defendant I do not mind being paid [by him], but whatever is not paid to me by him, I will require to be paid by you.'<a id="k53a_18"><sup>18</sup></a>
</p><p>
	Raba said: If a man puts a stone near the mouth of a pit [which had been dug by another person] and an ox coming along stumbles over the stone and falls into the pit, we are here brought face to face<a id="k53a_19"><sup>19</sup></a>&nbsp; with the difference of opinion between R. Nathan and the Rabbis.<a id="k53a_20"><sup>20</sup></a>&nbsp; But is this not obvious? &mdash; You might perhaps have said that [the difference of opinion was confined to that case] where the owner of the pit could say to the owner of the ox, 'Had not my pit been there at all, your ox would in any case have killed the other ox,' whereas in this case the person who put the stone [near the pit] could certainly say to the owner of the pit, 'If not for your pit what harm would my stone have done? Were the ox even to have stumbled over it, it might have fallen but would have got up again.' We are therefore told [by this] that the other party can retort, 'If not for your stone, the ox would not have fallen into the pit at all.'
</p><p>
	It was stated:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k53b_1:" Which is not subject to the law of damage; cf. <i>supra</i> pp. 50ff."
,k53b_2:" Through a blemish. [As long as such an ox had not been redeemed, it is regarded as an ox of the sanctuary, v. <i>supra</i> 36b. Cur. edd. add in brackets, 'e.g., a first-born ox which cannot be redeemed.' It is however questionable whether such an ox is not to be considered a common animal, having regard to the fact that being blemished it is entirely the priests, no share thereof being offered up on the altar. MS.M. omits these words.]"
,k53b_3:" And the remaining part will be lost to the plaintiff."
,k53b_4:" Maintaining that each defendant is only liable for himself."
,k53b_5:" Who stated that if no payment can be enforced from a defendant, his co-defendant has to make it up."
,k53b_6:" Where quarter damages is half of the maximum payment."
,k53b_7:" Abaye."
,k53b_8:" V. p. 309, n. 6."
,k53b_9:" Rabina."
,k53b_10:" V. p. 309, n. 7."
,k53b_11:" Where half damages is the maximum payment."
,k53b_12:" Cf. <i>supra</i> 26a."
,k53b_13:" I.e. the man, the owner of the pit and the owner of the ox."
,k53b_14:" V. <i>supra</i> 49a."
,k53b_15:" Ex. XXI, 22."
,k53b_16:" Ibid. 29-30."
,k53b_17:" Ibid. 32."
,k53b_18:" Ibid. 28-32."
,k53b_19:" <i>Supra</i> 28b and 35a"
,k53b_20:" Ex. XXI, 34."
,k53b_21:" I.e., could be used by him as food for dogs and like purposes."
,k53b_22:" As no use could lawfully be made of a carcass of a sacred animal that died."
,k53b_23:" Through a blemish."
,k53b_24:" <i>Supra</i> 10b."
,k53b_25:" Ex. XXI, 36."
,k53b_26:" V. p. 310. n. 14."
,k53b_27:" V. p. 310. n. 15."
,k53b_28:" V. <i>supra</i> p. 302, n. 2."
,k53b_29:" For maintaining exemption."
,k53b_30:" Ex. XXI, 33."
,k53b_31:" Dying through falling into a pit. "
}

txt:
<p>
Where an ox [of a private owner] together with an ox that was sacred<a id="k53b_1"><sup>1</sup></a>&nbsp; but became disqualified<a id="k53b_2"><sup>2</sup></a>&nbsp; [for the altar], gored [an animal]. Abaye said that the private owner would have to pay half damages,<a id="k53b_3"><sup>3</sup></a>&nbsp; whereas Rabina said that he would have to pay quarter damages.<a id="k53b_3"><sup>3</sup></a>&nbsp; Both the one and the other are speaking of <i>Tam</i>, but while Rabina followed the view of the Rabbis,<a id="k53b_4"><sup>4</sup></a>&nbsp; Abaye followed that of R. Nathan.<a id="k53b_5"><sup>5</sup></a>&nbsp; Or if you wish you may say that both the one and the other followed the view of the Rabbis,<a id="k53b_4"><sup>4</sup></a>&nbsp; but while Rabina was speaking of <i>Tam</i><a id="k53b_6"><sup>6</sup></a>&nbsp; Abaye was speaking of <i>Mu'ad</i>. Some report that Abaye stated half damages and Rabina full damages. The one ruling like the other would refer to the case of <i>Mu'ad</i>, but while one<a id="k53b_7"><sup>7</sup></a>&nbsp; followed the Rabbis<a id="k53b_8"><sup>8</sup></a>&nbsp; the other<a id="k53b_9"><sup>9</sup></a>&nbsp; followed the view of R. Nathan.<a id="k53b_10"><sup>10</sup></a>&nbsp; If you wish you may say that the one ruling like the other followed the view of R. Nathan, but while ones was speaking of <i>Mu'ad</i>, the other<a id="k53b_7"><sup>7</sup></a>&nbsp; was speaking of <i>Tam</i>.<a id="k53b_11"><sup>11</sup></a>
</p><p>
	Raba said: If an ox along with a man pushes [certain things] into a pit, on account of Depreciation<a id="k53b_12"><sup>12</sup></a>&nbsp; they would all [three]<a id="k53b_13"><sup>13</sup></a>&nbsp; be liable, but on account of the four [additional] items<a id="k53b_12"><sup>12</sup></a>&nbsp; or with respect to compensation for the value of [lost] embryos.<a id="k53b_14"><sup>14</sup></a>&nbsp; Man would be liable<a id="k53b_15"><sup>15</sup></a>&nbsp; but Cattle and Pit exempt;<a id="k53b_14"><sup>14</sup></a>&nbsp; in respect of <i>kofer</i><a id="k53b_16"><sup>16</sup></a>&nbsp; or the thirty <i>shekels</i><a id="k53b_17"><sup>17</sup></a>&nbsp; for [the killing of] a slave, Cattle would be liable<a id="k53b_18"><sup>18</sup></a>&nbsp; but Man and Pit exempt;<a id="k53b_19"><sup>19</sup></a>&nbsp; in respect of damage done to inanimate objects or to a sacred ox which had become disqualified [for the altar], Man and Cattle would be liable but Pit exempt, the reason being that Scripture says, And the dead beast shall be his,<a id="k53b_20"><sup>20</sup></a>&nbsp; [implying that it was only] in the case of an ox whose carcass could be his<a id="k53b_21"><sup>21</sup></a>&nbsp; [that there would be liability], excluding thus the case of this [ox] whose carcass could not be his.<a id="k53b_22"><sup>22</sup></a>&nbsp; Does this mean that this last point was quite certain to Raba? Did not Raba put it as a query? For Raba asked; If a sacred ox which had become disqualified<a id="k53b_23"><sup>23</sup></a>&nbsp; [for the altar] fell into a pit, what would be the legal position? Shall we say that this [verse], And the beast shall be his, [confines liability to the case of] an ox whose carcass could be his, thus excluding the case of this ox whose carcass could never be his,<a id="k53b_22"><sup>22</sup></a>&nbsp; or shall we say that the words And the dead beast shall be his are intended only to lay down that the owners [plaintiffs] have to retain the carcass as part payment?<a id="k53b_24"><sup>24</sup></a>&nbsp; [The fact is that] after raising the question he himself solved it. But whence [then] would he derive the law that the owners [plaintiffs] have to retain the carcass as part payment? &mdash; He would derive it from the clause and the dead shall be his own<a id="k53b_25"><sup>25</sup></a>&nbsp; [inserted in the case] of Cattle. What reason have you for rising [the clause] And the dead shall be his own [in the context dealing] with Cattle to derive from it the law that the owners [plaintiffs] have to retain the carcass as part payment, while you rise [the clause] And the dead beast shall be his<a id="k53b_26"><sup>26</sup></a>&nbsp; [in the context dealing] with Pit [to confine liability] to an animal whose carcass could be his?<a id="k53b_27"><sup>27</sup></a>&nbsp; Why should I not reverse [the implications of the clauses]? &mdash; It stands to reason that the exemption should be connected with Pit, since there is in Pit exemption also in the case of inanimate objects.<a id="k53b_28"><sup>28</sup></a>&nbsp; On the contrary, should not the exemption be connected with Cattle, since in Cattle there is exemption from half damages [in the case of <i>Tam</i>]? &mdash; In any case, exemption from the whole payment is not found [in the case of cattle].
</p><p>
	WHERE THERE FELL INTO IT AN OX TOGETHER WITH ITS IMPLEMENTS WHICH THEREBY BROKE etc. This Mishnaic ruling is not in accordance with R. Judah. For it was taught: R. Judah imposes liability for damage to inanimate objects done by Pit. But what was the reason of the Rabbis?<a id="k53b_29"><sup>29</sup></a>&nbsp; &mdash; Because Scripture says, And an ox or an ass fall therein,<a id="k53b_30"><sup>30</sup></a>&nbsp; [implying] 'ox' but not 'man',<a id="k53b_31"><sup>31</sup></a>&nbsp; 'ass' but not 'inanimate objects'. R. Judah, [however, maintained that the word] 'or' [was intended] to describe inanimate objects while the [other] Rabbis
</P>


lvr: 41
dfh: a
notes:
 ntes={k54a_1:" So that it should not be thought that there should be no liability unless both ox and ass fell in together."
,k54a_2:" [So that 'or' carries the disjunction further to include utensils attached to the animal, v. Malbim, a.l.]"
,k54a_3:" As in Ex. XXXVI, 1; Deut. XIII, 3; I Sam. XVII, 34 etc."
,k54a_4:" To include everything."
,k54a_5:" [This is one of the principles of hermeneutics (Kelal u-ferat) according to R. Ishmael, v. Sanh. (Sonc. ed.) p. 12, n. 9.]"
,k54a_6:" Ex. XXI, 34."
,k54a_7:" Thus excluding inanimate objects."
,k54a_8:" Lev. XI, 39-40."
,k54a_9:" Lev. ibid. 26-28."
,k54a_10:" As these do not cause defilement either by touching or by carrying."
,k54a_11:" Ox and ass."
,k54a_12:" As was the case with ox."
,k54a_13:" Such as an ass, horse, camel and the like."
,k54a_14:" Hence ass was inserted to include also animals not eligible to be sacrificed upon the altar."
,k54a_15:" As was the case with ass; cf. Ex. XIII, 13."
,k54a_16:" Such as e.g., a horse, camel and the like."
,k54a_17:" Hence 'ox' was inserted, for though the species of ox is subject to the sanctity of firstborn and would in no case have been excluded, its insertion being thus superfluous was surely intended to include even those animals which are not subject to the sanctity of firstborn."
,k54a_18:" <i>Supra</i> p. 289."
,k54a_19:" Ex. XXI, 34."
,k54a_20:" [How then deduce from it liability in case of poultry?]"
,k54a_21:" <i>Supra</i> p. 296."
,k54a_22:" E.g., slaves."
,k54a_23:" Cf. B.M. 27a."
,k54a_24:" Deut. XXII, 1-3."
,k54a_25:" Which is of course not the case at all "
}

txt:
<p>
[argued that the word] 'or' was necessary as a disjunctive.<a id="k54a_1"><sup>1</sup></a>&nbsp; And R. Judah? &mdash; [He maintained that] the disjunction could be derived from [the use of the singular] And it fall.<a id="k54a_2"><sup>2</sup></a>&nbsp; And the Rabbis? &mdash; [They could reply that even the singular] And it fall could also imply many [things].<a id="k54a_3"><sup>3</sup></a>
</p><p>
	May I say [that the expression] <i>And it fall</i> is intended as a generalisation,<a id="k54a_4"><sup>4</sup></a>&nbsp; while <i>an ox</i> or <i>an ass</i> [follows as] a specification, and where a generalisation is followed by a specification, the generalisation does not apply to anything save what is enumerated in the specification,<a id="k54a_5"><sup>5</sup></a>&nbsp; so that only in the case of an ox or an ass should there be liability, but not for any other object whatsoever? &mdash; No; for it could be said that [the clause] <i>The owner of the pit shall make it good</i><a id="k54a_6"><sup>6</sup></a>&nbsp; generalises again. Now where there is a generalisation preceding a specification which is in its turn followed by another generalisation, you include only such cases as are similar to the specification.<a id="k54a_5"><sup>5</sup></a>&nbsp; [Thus here] as the specification refers to objects possessing life, so too all objects to be included [must be such] as possess life.<a id="k54a_7"><sup>7</sup></a>&nbsp; But [why not argue] since the specification refers to [animate] objects whose carcass would cause defilement whether by touching or by carrying,<a id="k54a_8"><sup>8</sup></a>&nbsp; should we not include [only animate] objects whose carcass would similarly cause defilement whether by touching or by carrying,<a id="k54a_9"><sup>9</sup></a>&nbsp; so that poultry would thus not be included?<a id="k54a_10"><sup>10</sup></a>&nbsp; &mdash; If so, the Divine Law would have mentioned only one object in the specification. But which [of the two]<a id="k54a_11"><sup>11</sup></a>&nbsp; should the Divine Law have mentioned? Had it inserted [only] 'ox', I might have said that an animal which was eligible to be sacrificed upon the altar<a id="k54a_12"><sup>12</sup></a>&nbsp; should be included, but that which was not eligible to be sacrificed upon the altar<a id="k54a_13"><sup>13</sup></a>&nbsp; should not be included.<a id="k54a_14"><sup>14</sup></a>&nbsp; If [on the other hand] the Divine Law had [only] 'ass', I might have thought that an animal which was subject to the sanctity of firstborn<a id="k54a_15"><sup>15</sup></a>&nbsp; should be included, but that one which was not subject to the sanctity of firstborn<a id="k54a_16"><sup>16</sup></a>&nbsp; should not be included.<a id="k54a_17"><sup>17</sup></a>&nbsp; [But still why indeed not exclude poultry?] Scripture says: <i>'And the dead shall be his'</i> [implying] all things that are subject to death. [If so,] whether according to the Rabbis who exclude inanimate objects, or according to R. Judah who includes inanimate objects, [the question maybe raised] are inanimate objects subject to death? It may be said that their breaking is their death. But again according to Rab who stated<a id="k54a_18"><sup>18</sup></a>&nbsp; that the liability imposed by the Torah in the case of Pit was for the unhealthy air [of the pit] but not for the blow [it gave], would either the Rabbis or R. Judah maintain that inanimate objects could be damaged by unhealthy air? &mdash; It may be said that [this could happen] with new utensils that burst in bad air. But was not this [clause] <i>And the dead shall be his</i><a id="k54a_19"><sup>19</sup></a>&nbsp; required for the ruling of Raba?<a id="k54a_20"><sup>20</sup></a>&nbsp; For did Raba not say,<a id="k54a_21"><sup>21</sup></a>&nbsp; 'Where a sacred ox which had become disqualified [for the altar] fell into a pit, there would be exemption', as it is said: <i>And the dead shall be his</i> [implying that it was only] in the case of an ox whose carcass could be his [that there would be liability] and thus excluding the case of this ox whose carcass could never be his? &mdash; But Scripture says: He should give money unto the owner of it<a id="k54a_19"><sup>19</sup></a>&nbsp; [implying] that everything is included which has an owner. If so, why not also include even inanimate objects and human beings?<a id="k54a_22"><sup>22</sup></a>&nbsp; &mdash; Because Scripture says specifically 'an ox', [implying] and not 'a man', 'an ass' [implying] and not inanimate objects. Now according to R. Judah who included inanimate objects we understand the term 'ox' because it was intended to exclude 'man', but what was intended to be excluded by the term an ass? &mdash; Raba therefore said:<a id="k54a_23"><sup>23</sup></a>&nbsp; The term 'ass' in the case of Pit, on the view of R. Judah, as well as the term 'sheep' [occurring in the section dealing] with lost property<a id="k54a_24"><sup>24</sup></a>&nbsp; on the view unanimously accepted, remains difficult to explain.
</p><p>
	IF THERE FELL INTO IT AN OX, DEAF, ABNORMAL OR SMALL THERE WOULD BE LIABILITY. What is the meaning of 'AN OX, DEAF, ABNORMAL OR SMALL'? It could hardly be suggested that the meaning is 'an ox of a deaf owner, an ox of an abnormal owner, an ox of a minor', for would not this imply exemption in the case of an ox belonging to a normal owner?<a id="k54a_25"><sup>25</sup></a>&nbsp; &mdash; R. Johanan said: [It means] 'an ox which was deaf, an ox which was abnormal, an ox which was small.'
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k54b_1:" And why should this be so?"
,k54b_2:" Lit., 'He states (a case) where there can be no question'."
,k54b_3:" Putting in contributory negligence on the part of the plaintiff as a defence."
,k54b_4:" <i>Supra</i> p. 305."
,k54b_5:" V. Ex. XXI, 33."
,k54b_6:" V. ibid., XIX, 13."
,k54b_7:" V. ibid. XXII, 3."
,k54b_8:" V. Deut. XXII, 1-3."
,k54b_9:" V. Ex. XXIII, 5 and Deut. XXII, 4."
,k54b_10:" V. Deut. XXV, 4."
,k54b_11:" V. Lev. XIX, 19."
,k54b_12:" V. Deut. XXII, 10."
,k54b_13:" V. Ex. XX, 10 and Deut. V, 14."
,k54b_14:" Ex. XXI, 34."
,k54b_15:" <i>Supra</i> p. 313."
,k54b_16:" [I.e., non-domesticated animals.]"
,k54b_17:" <i>Infra</i> p. 364."
,k54b_18:" Ex. XXII, 8."
,k54b_19:" Deut. XXII, 3."
,k54b_20:" As explained anon."
,k54b_21:" Ex. XX, 2-17"
,k54b_22:" Ibid. 10."
,k54b_23:" Deut. V, 6-18."
,k54b_24:" Ibid. 14."
,k54b_25:" As will be shown anon."
,k54b_26:" V. <i>supra</i> p. 312, n. 1."
,k54b_27:" To work on the Sabbath."
,k54b_28:" Lit., 'only'."
,k54b_29:" Lev. XI, 39-40."
,k54b_30:" Ibid. 26-28."
,k54b_31:" As these do not cause defilement either by touching or by carrying."
,k54b_32:" Ox and ass."
,k54b_33:" As was the case with ox."
,k54b_34:" Such as an ass, horse, camel and the like."
,k54b_35:" Which would include also animals not eligible to be sacrificed upon the altar."
,k54b_36:" As was the case with ass; cf. Ex. XIII, 13."
,k54b_37:" Such as horses and camels and the like."
,k54b_38:" To include those animals which otherwise would have been excluded; for since the species of ox is subject to the sanctity of first-born and would in no case have been excluded, its insertion being thus superfluous was surely intended to include even those animals which are not subject to the sanctity of first-born. On the other hand, birds should still be excluded since, unlike ox and ass, their carcasses do not defile, either by touching or by carrying."
,k54b_39:" I.e., the term 'all' does more than generalize, for it includes everything. [On the difference between amplification ribbuy and generalisation kelal, v. Shebu. (Sonc. ed.) p. 12, n. 9.]"
,k54b_40:" V. <i>infra</i> 63a."
,k54b_41:" Deut. XIV, 26."
,k54b_42:" Such as wine from grapes."
,k54b_43:" Which characterises also cattle."
,k54b_44:" Excluding water, salt and mushrooms."
,k54b_45:" Thus excluding fishes."
,k54b_46:" Which would have included all kinds of food and drink."
,k54b_47:" [ [H], the particle [H] (<I>'for</I>') is taken as partitive.]"
,k54b_48:" In Deut. V, 14."
,k54b_49:" At least in the case of the Sabbath, including thus all kinds of living creatures."
,k54b_50:" For in the case of Sabbath, servants are included."
,k54b_51:" Kil. VIII, 6."
,k54b_52:" [Papunia was a place between Bagdad and Pumbeditha, v. B.B. (Sonc. ed.) p. 79, n. 8.]"
,k54b_53:" For honouring father and mother; v. Ex. XX, 12. "
}

txt:
<p>
Still, would not this imply exemption in the case of an ox which was normal?<a id="k54b_1"><sup>1</sup></a>&nbsp; &mdash; R. Jeremiah thereupon said: A particularly strong case is taken:<a id="k54b_2"><sup>2</sup></a>&nbsp; There could be no question that in the case of a normal ox there should be liability, but in the case of an ox which is deaf or abnormal or small it might have been thought that it was its deafness that caused [the damage to it] or that it was its smallness that caused it [to fall] so that the owner of the pit should be exempt.<a id="k54b_3"><sup>3</sup></a>&nbsp; We are therefore told [that even here he is liable]. Said R. Aha to Rabina: But it has been taught: If a creature possessing sense fell into it there would be exemption. Does this not mean an ox possession sense? &mdash; He replied: No, it means a man. [If that is so,] would not this imply that only in the case of a man who possesses sense that there would be exemption, whereas if he did not possess sense there would be liability, [and how can this be, seeing that] it is written 'ox' [which implies] 'and not man'? &mdash; The meaning of 'one possessing sense' must therefore be 'one of the species of rational being'. But he again said to him: Was it not taught: If there fell into it an ox possessing sense there would be exemption? &mdash; Raba therefore said: [The Mishnaic text indeed means] precisely an ox which was deaf, an ox which was abnormal, an ox which was small, for in the case of an ox which was normal there would be exemption, the reason being that such an ox should have looked more carefully while walking. So indeed was it taught likewise:<a id="k54b_4"><sup>4</sup></a>&nbsp; Where there fell into it an ox which was deaf, or abnormal or small, or blind or while walking at night time, there would be liability whereas if it was normal and walking during the day there would be exemption.
</p><p>
	<B><I>MISHNAH</I></B>. BOTH AN OX AND ANY OTHER ANIMAL ARE ALIKE [BEFORE THE LAW WITH REFERENCE] TO FALLING INTO A PIT,<a id="k54b_5"><sup>5</sup></a>&nbsp; TO EXCLUSION FROM MOUNT SINAI,<a id="k54b_6"><sup>6</sup></a>&nbsp; TO PAYING DOUBLE [IN CASES OF THEFT],<a id="k54b_7"><sup>7</sup></a>&nbsp; TO RESTORING LOST PROPERTY,<a id="k54b_8"><sup>8</sup></a>&nbsp; TO UNLOADING [BURDENS TOO HEAVY FOR AN ANIMAL TO BEAR],<a id="k54b_9"><sup>9</sup></a>&nbsp; TO ABSTAINING FROM MUZZLING,<a id="k54b_10"><sup>10</sup></a>&nbsp; TO HETEROGENEOUS ANIMALS [BEING COUPLED<a id="k54b_11"><sup>11</sup></a>&nbsp; OR WORKING TOGETHER],<a id="k54b_12"><sup>12</sup></a>&nbsp; TO SABBATH REST.<a id="k54b_13"><sup>13</sup></a>&nbsp; SO ALSO BEASTS AND BIRDS ARE LIKE THEM. IF SO WHY DO WE READ, AN OX OR AN ASS? ONLY BECAUSE SCRIPTURE SPOKE OF THE MORE USUAL [ANIMALS IN DOMESTIC LIFE].
</p><p>
	<B><I>GEMARA</I></B>. [WITH REFERENCE] TO FALLING INTO A PIT, since it is written, He should give money unto the owner of it,<a id="k54b_14"><sup>14</sup></a>&nbsp; [to include] everything that an owner has, as indeed already stated.<a id="k54b_15"><sup>15</sup></a>&nbsp; TO EXCLUSION FROM MOUNT SINAI [as it is written] Whether it be animal or man, it shall not live.<a id="k54b_6"><sup>6</sup></a>&nbsp; Beast<a id="k54b_16"><sup>16</sup></a>&nbsp; is included in 'animal' and [the word] 'whether' includes 'birds'. TO PAYING DOUBLE, as we said elsewhere:<a id="k54b_17"><sup>17</sup></a>&nbsp; [The expression] for all manner of trespass<a id="k54b_18"><sup>18</sup></a>&nbsp; is comprehensive. TO RESTORING LOST PROPERTY; [this is derived from the words] with all lost things of thy brother.<a id="k54b_19"><sup>19</sup></a>&nbsp; TO UNLOADING [BURDENS TOO HEAVY FOR AN ANIMAL TO BEAR]; we derive this [by] comparing [the term] 'ass'<a id="k54b_9"><sup>9</sup></a>&nbsp; with [the term] 'ass'<a id="k54b_13"><sup>13</sup></a>&nbsp; [occurring in connection] with the Sabbath.<a id="k54b_20"><sup>20</sup></a>&nbsp; TO [ABSTAINING FROM] MUZZLING; this we learn [similarly by] comparing [the term] 'ox'<a id="k54b_10"><sup>10</sup></a>&nbsp; with [the term] 'ox'<a id="k54b_13"><sup>13</sup></a>&nbsp; [used in connection] with Sabbath.<a id="k54b_20"><sup>20</sup></a>&nbsp; TO HETEROGENEOUS ANIMALS; the rule as regards ploughing we learn [by comparing the term] 'ox'<a id="k54b_12"><sup>12</sup></a>&nbsp; with the term 'ox'<a id="k54b_13"><sup>13</sup></a>&nbsp; used [in connection] with Sabbath;<a id="k54b_20"><sup>20</sup></a>&nbsp; and the rule as regards coupling we learn [by comparing the term] 'thy cattle'<a id="k54b_11"><sup>11</sup></a>&nbsp; with the term 'thy cattle'<a id="k54b_13"><sup>13</sup></a>&nbsp; [used in connection] with Sabbath. But whence are [all these rules known] to us in the case of Sabbath [itself]? &mdash; As it was taught: R. Jose says in the name of R. Ishmael: In the first Decalogue<a id="k54b_21"><sup>21</sup></a>&nbsp; it is said thy manservant and thy maidservant and thy cattle<a id="k54b_22"><sup>22</sup></a>&nbsp; whereas in the second Decalogue<a id="k54b_23"><sup>23</sup></a>&nbsp; it is said thy ox and thy ass and any of thy cattle.<a id="k54b_24"><sup>24</sup></a>&nbsp; Now, are not 'ox' and 'ass' included in 'any of thy cattle'? Why then were they singled out? To tell us that just as in the case of the 'ox and ass' mentioned here,<a id="k54b_24"><sup>24</sup></a>&nbsp; beasts and birds are on the same footing with them.<a id="k54b_25"><sup>25</sup></a>&nbsp; So also [in any other case where 'ox and ass' are mentioned] all beasts and birds are on the same footing with them. But may we not say that 'thy cattle' in the first Decalogue<a id="k54b_21"><sup>21</sup></a>&nbsp; is a generalisation, and 'thy ox and thy ass' in the second Decalogue is a specification, and [we know that] where a generalisation is followed by a specification, the generalisation does not include anything save what is mentioned in the specification,<a id="k54b_26"><sup>26</sup></a>&nbsp; [whence it would follow that only] 'ox and ass' are [prohibited]<a id="k54b_27"><sup>27</sup></a>&nbsp; but not any other thing? &mdash; I may reply that the words 'and any of thy cattle' in the second Decalogue constitute a further generalisation, so that we have a generalisation preceding a specification which in its turn is followed by another generalisation; and in such a case you include also<a id="k54b_28"><sup>28</sup></a>&nbsp; that which is similar to the specification,<a id="k54b_26"><sup>26</sup></a>&nbsp; so that as the specification [here] mentions objects possessing life, there should thus also be included all objects possessing life. But, I may say, the specification mentions [living] things whose carcass would cause defilement whether by touching or by carrying.<a id="k54b_29"><sup>29</sup></a>&nbsp; [Why not say that] there should also be included all [living] things whose carcass would similarly cause defilement whether by touching or by carrying,<a id="k54b_30"><sup>30</sup></a>&nbsp; so that birds would thus not be included?<a id="k54b_31"><sup>31</sup></a>&nbsp; &mdash; I may reply: If that were the case, the Divine Law would have inserted only one [object in the] specification. But which [of the two]<a id="k54b_32"><sup>32</sup></a>&nbsp; should the Divine Law have inserted? For were the Divine Law to have inserted [only] 'ox', I might have thought than an animal which was eligible to be sacrificed upon the altar<a id="k54b_33"><sup>33</sup></a>&nbsp; should be included, but one which was not eligible to be sacrificed upon the altar<a id="k54b_34"><sup>34</sup></a>&nbsp; should not be included, so that the Divine Law was thus compelled to insert also 'ass'.<a id="k54b_35"><sup>35</sup></a>&nbsp; If [on the other hand] the Divine Law had inserted [only] 'ass', I might have thought that [an animal which was subject to the] sanctity of first birth<a id="k54b_36"><sup>36</sup></a>&nbsp; should be included, but that which was not subject to the sanctity of first birth<a id="k54b_37"><sup>37</sup></a>&nbsp; should not be included; the Divine Law therefore inserted also 'ox'.<a id="k54b_38"><sup>38</sup></a>&nbsp; It must therefore [be said that] and all thy cattle is [not merely a generalisation but] an amplification.<a id="k54b_39"><sup>39</sup></a>&nbsp; [Does this mean to say that] wherever the Divine Law inserts [the word] 'all', it is an amplification? What about tithes where [the word] 'all' occurs and we nevertheless expound it as an instance of generalisation and specification? For it was taught:<a id="k54b_40"><sup>40</sup></a>&nbsp; And thou shalt bestow that money for all that thy soul lusteth after<a id="k54b_41"><sup>41</sup></a>&nbsp; is a generalisation; for oxen, or for sheep, or for wine, or for strong drink<a id="k54b_41"><sup>41</sup></a>&nbsp; is a specification; or for all that thy soul desireth is again a generalisation. Now, where a generalisation precedes a specification which is in its turn followed by another generalisation you cannot include anything save what is similar to the specification. As therefore the specification [here]<a id="k54b_41"><sup>41</sup></a>&nbsp; mentions products obtained from products<a id="k54b_42"><sup>42</sup></a>&nbsp; and which spring from the soil<a id="k54b_43"><sup>43</sup></a>&nbsp; there may also be included all kinds of products obtained from products<a id="k54b_44"><sup>44</sup></a>&nbsp; and which spring from the soil.<a id="k54b_45"><sup>45</sup></a>&nbsp; [Does this not prove that the expression 'all' was taken as a generalisation, and not as an amplification?]<a id="k54b_46"><sup>46</sup></a>&nbsp; &mdash; I might say that [the expression] 'for all'<a id="k54b_47"><sup>47</sup></a>&nbsp; is but a generalisation, whereas 'all' would be an amplification. Or if you wish I may say that [the term] 'all' is also a generalisation, but in this case<a id="k54b_48"><sup>48</sup></a>&nbsp; 'all' is an amplification. For why was it not written And thy cattle just as in the first Decalogue? Why did Scripture insert here 'and all thy cattle' unless it was meant to be an amplification? &mdash; Now that you decide that 'all' is an amplification<a id="k54b_49"><sup>49</sup></a>&nbsp; why was it necessary to have 'thy cattle' in the first Decalogue and 'ox and ass' in the second Decalogue? &mdash; I may reply that 'ox' was inserted [to provide a basis] for comparison of 'ox' with [the term] 'ox' [used in connection] with muzzling; so also 'ass' [to provide a basis] for comparison of 'ass' with the term 'ass' [used in connection] with unloading; so again 'thy cattle' [to provide a basis] for comparison of 'thy cattle' with [the expression] 'thy cattle' [occurring in connection] with heterogeneity. If that is the case [that heterogeneity is compared with Sabbath breaking] why should even human beings not be forbidden<a id="k54b_50"><sup>50</sup></a>&nbsp; [to plough together with an animal]? Why have we learnt; A human being is allowed to plough [the field] and to pull [a waggon] with any of the beasts?<a id="k54b_51"><sup>51</sup></a>&nbsp; &mdash; R. Papa thereupon said: The reason of this matter was known to the Papunean,<a id="k54b_52"><sup>52</sup></a>&nbsp; that is R. Aha b. Jacob [who said that as] Scripture says that thy manservant and thy maidservant may rest as well as thou<a id="k54b_48"><sup>48</sup></a>&nbsp; [it is only] in respect of the law of rest that I should compare them [to cattle] but not of any other matter.
</p><p>
	R. Hanina b. 'Agil asked R. Hiyya b. Abba: Why in the first Decalogue is there no mention of wellbeing,<a id="k54b_53"><sup>53</sup></a>&nbsp; whereas in the second Decalogue
</P>


lvr: 41
dfh: a
notes:
 ntes={k56a_1:" And should in any case have been pulled down."
,k56a_2:" By the expression 'bending over'."
,k56a_3:" For which there is no liability according to the view of the Rabbis (v. <i>infra</i> p. 357), and by his act he caused the owner of the corn the loss of all claim to compensation."
,k56a_4:" I.e., to obtain money really not due to him."
,k56a_5:" Which he obtained by false pretenses and by the evidence of the false witnesses whom he hired."
,k56a_6:" I.e. to pay him money not due to him, and it so happened that the neighbour to whom the money was paid could not be made to give back the money he obtained by the false evidence."
,k56a_7:" Why then state it here?"
,k56a_8:" Lev. V, 1."
,k56a_9:" Whose evidence would merely entail the imposition of an oath upon the defendant, v. Shebu 40a."
,k56a_10:" Thus disqualifying it from being used for the purpose of purification, Par. IV, 4."
,k56a_11:" Git. 53a, and <i>infra</i> 98a."
,k56a_12:" <i>Supra</i> 47b."
,k56a_13:" <i>Infra</i> 59b."
,k56a_14:" <i>Infra</i> 91a."
,k56a_15:" <i>Supra</i> 28b."
,k56a_16:" R. Joshua."
,k56a_17:" But not to cause you the loss of compensation."
,k56a_18:" Expressed in the Divine Law."
,k56a_19:" I.e. mortal man."
,k56a_20:" Surely the word of the former. The witnesses should therefore be exclusively responsible, as they should not have followed the advice of a man in contradiction to the words of the Law. The law of agency could on this account not apply in matters of transgression; cf. Kid. 42b and <i>supra</i> p. 294."
,k56a_21:" Since one witness could not make the defendant liable for money payment but only for an oath."
,k56a_22:" Exemption."
,k56a_23:" Which fell down of itself."
,k56a_24:" To leave an animal behind a shaky wall which could not withstand a normal wind."
,k56a_25:" Viz., that the animal broke through it."
,k56a_26:" <i>Supra</i> 21b."
,k56a_27:" V. p. 327, n. 6."
,k56a_28:" But managed to escape through the door."
,k56a_29:" Which was very sound."
,k56a_30:" Of liability."
,k56a_31:" V. p. 327, n. 8."
,k56a_32:" By Rabbah."
,k56a_33:" V. p. 324, n. 4. "
}

txt:
<p>
where the wall was shaky.<a id="k56a_1"><sup>1</sup></a>
</p><p>
	The Master stated: 'To bend over a neighbour's corn standing in front of a fire.' Under what circumstances? If we assume that the fire can now reach it in a normal wind, why is he not liable also according to the judgments of Man? &mdash; It must therefore be where it would reach them only in an unusual wind. R. Ashi said: What is referred<a id="k56a_2"><sup>2</sup></a>&nbsp; to is 'covering' the offender having caused the stalks to become hidden in the ease of Fire.<a id="k56a_3"><sup>3</sup></a>
</p><p>
	The Master stated: 'To hire false witnesses.' Under what circumstances? If we assume for his own benefit,<a id="k56a_4"><sup>4</sup></a>&nbsp; should he not pay the money<a id="k56a_5"><sup>5</sup></a>&nbsp; and should he thus not also be liable even in accordance with the judgments of Man? &mdash; It therefore must mean for the benefit of his neighbour.<a id="k56a_6"><sup>6</sup></a>
</p><p>
	'To know of evidence in favour of another and not to testify on his behalf.' With what case are we dealing here? If with a case where there are two [witnesses], is it not obvious that it is a Scriptural offence,<a id="k56a_7"><sup>7</sup></a>&nbsp; [as it is written], If he do not utter it then he shall bear his iniquity?<a id="k56a_8"><sup>8</sup></a>&nbsp; &mdash; It must therefore be where there is one [witness].<a id="k56a_9"><sup>9</sup></a>
</p><p>
	(Mnemonic: <i>He who does, Deadly poison, Entrusts, His fellow, Broken</i>.)
</p><p>
	But are there no more cases [of the same category]? Is there not the case of a man who does work with the Water of Purification<a id="k56a_10"><sup>10</sup></a>&nbsp; or with the [Red] Heifer of Purification,<a id="k56a_10"><sup>10</sup></a>&nbsp; where he is similarly exempt according to the judgments of Man but liable according to the judgments of Heaven?<a id="k56a_11"><sup>11</sup></a>&nbsp; Again, is there not the case of one who placed deadly poison before the animal of a neighbour, where he is exempt from the judgments of Man but liable according to the judgments of Heaven?<a id="k56a_12"><sup>12</sup></a>&nbsp; So also is there not the case of one who entrusts fire to a deaf-mute, an idiot or a minor [and damage results], where he is exempt from the judgments of Man but liable according to the judgments of Heaven?<a id="k56a_13"><sup>13</sup></a>&nbsp; Again, is there not the case of the man who gives his fellow a fright, where he is similarly exempt from the judgments of Man but liable according to the judgments of Heaven?<a id="k56a_14"><sup>14</sup></a>&nbsp; And finally is there not the case of the man who, when his pitcher has broken on public ground, does not remove the potsherds, who, when his camel falls does not raise it, where R. Meir indeed makes him liable for any damage resulting therefrom, but the Sages hold that he is exempt from the judgments of Man though liable according to the judgments of Heaven?<a id="k56a_15"><sup>15</sup></a>&nbsp; &mdash; Yes, there are surely many more cases [to come under the same category], but these four cases were particularly necessary to be stated by him,<a id="k56a_16"><sup>16</sup></a>&nbsp; as otherwise you might have thought that even according to the judgments of Heaven there should not be any liability. It was therefore indicated to us [that this is not so]. In the case of breaking down a fence in front of a neighbour's animal you might have said that since the wall was in any case bound to come down, what offence was committed, and that even according to the judgments of Heaven there should be no liability. It was therefore indicated to us [that this is not so]. In the case of bending over a neighbour's standing corn in front of a fire you might also have said that the defendant could argue, 'How could I know that an unusual wind would come?' and that consequently even according to the judgments of Heaven he should not be liable; it was therefore indicated to us [that this is not the case]. So also according to R. Ashi who said that the reference is to 'covering', you might have said that [the defendant could contend], 'I surely intended to cover and thus protect your property,<a id="k56a_17"><sup>17</sup></a>&nbsp; and that even according to the judgments of Heaven he should not be liable. It was therefore indicated to us [that this is not so]. In the case of hiring false witnesses you might also have said that the offender should be entitled to plead, 'Where the words of the Master<a id="k56a_18"><sup>18</sup></a>&nbsp; are contradicted by words of a disciple,<a id="k56a_19"><sup>19</sup></a>&nbsp; whose words should be followed?'<a id="k56a_20"><sup>20</sup></a>&nbsp; and that even according to the judgments of Heaven he should not be liable. It was therefore indicated to us [that this is not so]. In the case where one knows evidence in favour of another and does not testify on his behalf, you might also have said that [the offender could argue], 'Who can say for certain that even had I gone and testified on his behalf, the other party would have admitted [the claim], and would not perhaps have sworn falsely [against my evidence]?'<a id="k56a_21"><sup>21</sup></a>&nbsp; and that even according to the judgments of Heaven he should not be liable. It was therefore indicated to us [that this is not the case].
</p><p>
	IF THE WALL BROKE DOWN AT NIGHT OR IF ROBBERS BROKE IN etc., Rabbah said: This<a id="k56a_22"><sup>22</sup></a>&nbsp; is so only where the animal undermined the wall. What then of the case where it did not undermine the wall?<a id="k56a_23"><sup>23</sup></a>&nbsp; Would there then be liability? Under what circumstances? If it be assumed that the wall was sound, why then even where it did not undermine it<a id="k56a_23"><sup>23</sup></a>&nbsp; should there be liability? What else could the defendant have done? But if, on the other hand, the wall was shaky, why even in the case where the animal undermined it should there be exemption? Is not this a case where there is negligence<a id="k56a_24"><sup>24</sup></a>&nbsp; at the beginning but [damage results from] accident<a id="k56a_25"><sup>25</sup></a>&nbsp; at the end? Your view is correct enough on the assumption<a id="k56a_26"><sup>26</sup></a>&nbsp; that where there is negligence at the beginning [and damage results through] accident at the end there is exemption, but if we take the view<a id="k56a_26"><sup>26</sup></a>&nbsp; that where there is negligence at the beginning though [damage results from] accident at the end there is liability, what can be said? &mdash; This ruling of the Mishnah therefore refers to a sound wall and even to a case where it did not undermine the wall.<a id="k56a_27"><sup>27</sup></a>&nbsp; For the statement of Rabbah was made with reference to [the ruling in] the concluding clause, IF THE OWNER HAD LEFT THEM IN A SUNNY PLACE OR HANDED THEM OVER TO THE CARE OF A DEAF-MUTE, AN IDIOT OR A MINOR AND THEY GOT AWAY AND DID DAMAGE, HE WOULD BE LIABLE. Rabbah thereupon said: This would be so even where it undermined the wall. For there would be no doubt that [this would be so] where it did not undermine the wall<a id="k56a_28"><sup>28</sup></a>&nbsp; as there was negligence throughout, but even where it did undermine the wall,<a id="k56a_29"><sup>29</sup></a>&nbsp; the ruling<a id="k56a_30"><sup>30</sup></a>&nbsp; would also hold good. You might have said [in that case, that where it undermined the wall]<a id="k56a_29"><sup>29</sup></a>&nbsp; it should be regarded as a case of negligence at the beginning but accident at the end.<a id="k56a_31"><sup>31</sup></a>&nbsp; It was therefore indicated to us<a id="k56a_32"><sup>32</sup></a>&nbsp; that [it is regarded as a case of] negligence throughout, the reason being that the plaintiff might say, 'You should surely have realised that since you left it in a sunny place, it will use every possible device for the purpose of getting out.
</p><p>
	IF THE ROBBERS TOOK THEM OUT, THE ROBBERS WOULD BE LIABLE [FOR THE DAMAGE].<a id="k56a_33"><sup>33</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k56b_1:" V. p. 325, n. 7."
,k56b_2:" In which case the sheep did not come into the possession of the robbers."
,k56b_3:" Though the animal which did the damage is not his."
,k56b_4:" <i>Supra</i> 44b."
,k56b_5:" I.e. where the sheep has already been in the hands of a bailee who later transferred it to a shepherd. By declaring the shepherd to be liable it is implied that the bailee will become released from his previous obligations."
,k56b_6:" Even for accidents, as he had no right to hand over his charge to another person without the consent of the owner, v. <i>supra</i> 11b."
,k56b_7:" And which he will have to return to the owner."
,k56b_8:" To whom the law of Ex. XXII, 6-8 applies, and who is thus exempt where the article was stolen or lost."
,k56b_9:" Who is subject to Ex. XXII, 9-12 and who is therefore liable to pay where the article was stolen or lost."
,k56b_10:" As while a person is occupied with the performance of one commandment he is not under an obligation to perform at the same time another commandment; cf. Suk. 25a."
,k56b_11:" Of looking after the lost article which he found."
,k56b_12:" Who after receiving the consideration is similarly under an obligation to guard. "
}

txt:
<p>
Is this not obvious, seeing that as soon as they took it out it was placed under their charge in all respects?<a id="k56b_1"><sup>1</sup></a>&nbsp; The ruling was necessary to meet the case where they merely stood in front of it<a id="k56b_2"><sup>2</sup></a>&nbsp; [thus blocking any other way for it while leaving open that leading to the corn]. This is on the lines of the statement made by Rabbah on behalf of R. Mattena who said it on behalf of Rab: If a man placed the animal of one person near the standing corn of another, he is liable.<a id="k56b_3"><sup>3</sup></a>&nbsp; 'Placed', [you say]? Is this not obvious? &mdash; The ruling was necessary to meet the case where he merely stood in front of it [blocking thus any other way for it while leaving open that leading to the corn]. Said Abaye to R. Joseph: Did you not explain to us that [the ruling of Rab referred to a case where] the animal was [not actually placed but only] beaten [with a stick and thus driven to the corn]? In the case of robbers also, [the ruling in the Mishnah similarly refers to a case where] they had only beaten it. IF HE HANDED THEM OVER TO THE CARE OF A SHEPHERD, THE SHEPHERD WOULD ENTER INTO ALL THE RESPONSIBILITIES INSTEAD OF HIM. I would here ask: 'Instead of whom?' If you say, instead of the owner of the animal, have we not already learnt elsewhere: 'If an owner hands over his cattle to an unpaid bailee or to a borrower, to a paid bailee or to a hirer, each of them would enter into the responsibilities of the owner'?<a id="k56b_4"><sup>4</sup></a>&nbsp; It must therefore mean, instead of a bailee,<a id="k56b_5"><sup>5</sup></a>&nbsp; and the first bailee would be exempt altogether. Would this not be a refutation of Raba? For did Raba not say: One bailee handing over his charge to another bailee becomes liable for all consequences?<a id="k56b_6"><sup>6</sup></a>&nbsp; &mdash; Raba might reply that 'he handed it over to a shepherd' means [the shepherd handed it over] to his apprentice, as it is indeed the custom of the shepherd to hand over his sheep to [the care of] his apprentice. Some say that since the text says, HE HANDED THEM OVER TO THE CARE OF A SHEPHERD and does not say 'he handed them over to another person,'it could from this be proved that the meaning of 'HE HANDED THEM OVER TO THE CARE OF A SHEPHERD' is that the shepherd handed [them] over to his apprentice, as it is indeed the custom of the shepherd to hand over [various things] to [the care of] his apprentice, whereas if [he handed it over] to another person this would not be so. May we say that this supports the view of Raba? For did Raba not say: One bailee handing over his charge to another bailee becomes liable for all consequences?<a id="k56b_6"><sup>6</sup></a>&nbsp; &mdash; It may however be said that this is no support. For the text perhaps merely mentioned the usual case, though the same ruling would apply [to a case where it was handed over] to another person altogether.
</p><p>
	It was stated: A person taking charge of a lost article [which he has found],<a id="k56b_7"><sup>7</sup></a>&nbsp; is according to Rabbah in the position of an unpaid bailee,<a id="k56b_8"><sup>8</sup></a>&nbsp; but according to R. Joseph in the position of a paid bailee.<a id="k56b_9"><sup>9</sup></a>&nbsp; Rabbah said: He is in the position of an unpaid bailee, since what benefit is forthcoming to him? R. Joseph said: He is in the position of a paid bailee on account of the benefit he derives from not being required to give bread to the poor [while occupied in minding the lost article found by him];<a id="k56b_10"><sup>10</sup></a>&nbsp; hence he should be considered a paid bailee. Some, however, explain it thus: R. Joseph said that he would be like a paid bailee as the Divine Law put this obligation<a id="k56b_11"><sup>11</sup></a>&nbsp; upon him even against his will; he must therefore be considered as a paid bailee.<a id="k56b_12"><sup>12</sup></a>&nbsp; R. Joseph brought an objection to the view of Rabbah [from the following]:
</P>


lvr: 41
dfh: a
notes:
 ntes={k57a_1:" V. the discussion later."
,k57a_2:" Tosef. B.M. II."
,k57a_3:" But if he would have to pay where the article was stolen or lost this would prove that he is subject to the law of Paid Bailee."
,k57a_4:" The liability would therefore be for carelessness."
,k57a_5:" Why then should he be liable to pay when it was stolen or lost there?"
,k57a_6:" When the owner is usually in the fields and not at home."
,k57a_7:" Had he been at home."
,k57a_8:" V. p. 330, n. 8."
,k57a_9:" Where it was stolen or lost."
,k57a_10:" V. p. 330, n. 9."
,k57a_11:" In which case any loss amounts to carelessness."
,k57a_12:" Literal rendering of Deut. XXII, 1."
,k57a_13:" B.M. 31a."
,k57a_14:" And need not take as much care as a paid bailee would have to do."
,k57a_15:" By doubling the verb 'in return', [H]"
,k57a_16:" If his false defence of theft has already been corroborated by all oath, v. <i>infra</i> 63a; 106b."
,k57a_17:" For in his case the plea of an alleged theft would not be a defence but an admission of liability, and no oath would usually be taken to corroborate it. Moreover, the paid bailee could in such circumstances not be required to pay double even after it was found out that he himself had misappropriated the article in his charge."
,k57a_18:" I.e. R. Joseph to Abaye."
,k57a_19:" [G], 'a rover'. This case is a mere accident as the bailee is not to blame and would not have to pay the principal; this plea would therefore be not an admission of liability but a defence, and if substantiated by a false oath he would have to pay double."
,k57a_20:" I.e. Abaye to R. Joseph."
,k57a_21:" And if traced would have to pay the principal and not make double payment (v. <i>infra</i>). The bailee making use of such a defence should therefore never have to pay double, as his plea was not an alleged theft but an alleged robbery."
,k57a_22:" And would therefore have to pay double when traced. The bailee by submitting such a defence and substantiating it by a false oath should similarly be liable to double payment as his defence was a plea of theft, although had it been true, he would not have to pay even the principal, because the case of an armed malefactor is one of accident, v. note 5."
,k57a_23:" I.E., Abaye. "
}

txt:
<p>
If a person returns [the lost article which he had found] to a place where the owner is likely to see it, he is not required any longer to concern himself with it. If it is stolen or lost<a id="k57a_1"><sup>1</sup></a>&nbsp; he is responsible for it.<a id="k57a_2"><sup>2</sup></a>&nbsp; Now, what is meant by 'If it is stolen or lost'? Does it not mean, 'If it is stolen while in his house or if it is lost while in his house'?<a id="k57a_3"><sup>3</sup></a>&nbsp; &mdash; No; it means from the place to which it had been returned.<a id="k57a_4"><sup>4</sup></a>&nbsp; But was it not stated, 'He is not required any longer to concern himself with it'?<a id="k57a_5"><sup>5</sup></a>&nbsp; &mdash; He answered him: We are dealing here with a case where he returned it in the afternoon,<a id="k57a_6"><sup>6</sup></a>&nbsp; Two separate cases are, in fact, stated in the text, which should read thus: If he returned it in the morning to a place where the owner might see it [at a time] when it was usual with him to go in and out so that he would most likely see it, he would no more be required to concern himself with it, but if he returned it in the afternoon to a place where the owner might see it<a id="k57a_7"><sup>7</sup></a>&nbsp; [since it was at the time] when it was not usual with him to go in and out [of the house] and he could thus not be expected to see it, if it was stolen or lost there, he would still be responsible for it. He then brought another objection [from the following]: He is always responsible [for its safety] until he has returned it to the keeping of its owner.<a id="k57a_8"><sup>8</sup></a>&nbsp; Now, what is the meaning of [the term] 'always'? Does it not mean 'even while in the keeper's house'<a id="k57a_9"><sup>9</sup></a>&nbsp; thus proving that he was like a paid bailee?<a id="k57a_10"><sup>10</sup></a>&nbsp; &mdash; Rabbah said to him: I agree with you in the case of living things, for since they are in the habit of running out into the fields they need special watching.<a id="k57a_11"><sup>11</sup></a>
</p><p>
	Rabbah [on the other hand] brought an objection to the view of R. Joseph [from the following: The text says] 'Return';<a id="k57a_12"><sup>12</sup></a>&nbsp; this tells me only [that it can be returned] to the house of the owner. Whence [could it be derived that it may also be returned] to his garden and to his deserted premises? It says therefore further: Thou shalt return them<a id="k57a_12"><sup>12</sup></a>&nbsp; [that is to say] 'everywhere'.<a id="k57a_13"><sup>13</sup></a>&nbsp; Now, to what kind of garden and deserted premises [may it be returned]? If you say to a garden which is closed in and to deserted premises which are closed in, are these not equivalent to his house? It must surely therefore refer to a garden that is not closed in and to deserted premises that are not closed in. Does not this show that a person taking care of a lost article [which he has found] is like an unpaid bailee?<a id="k57a_14"><sup>14</sup></a>&nbsp; &mdash; He replied: In point of fact it refers to a garden which is closed in and to deserted premises which are closed in, and as for your questions, 'Are these not equivalent to his house?' [the answer would be that] it is thereby indicated to us that it is not necessary to notify the owner, as indeed [stated by] R. Eleazar,<a id="k57a_13"><sup>13</sup></a>&nbsp; for R. Eleazar said: In all cases notification must be given to the owner, with the exception, however, of returning a lost article, as the Torah uses in this connection many expressions of returning.<a id="k57a_15"><sup>15</sup></a>
</p><p>
	Said Abaye to R. Joseph: Do you really not accept the view that a person minding a lost article [which he has found] is like an unpaid bailee? Did R. Hiyya b. Abba not say that R. Johanan stated that if a man puts forward a plea of theft [to account for the absence of] an article [which had been found by him] he might have to make double payment?<a id="k57a_16"><sup>16</sup></a>&nbsp; Now, if you assume that [the person minding the lost article] is like a paid bailee, why should he have to refund double [seeing that] he has to return the principal?<a id="k57a_17"><sup>17</sup></a>&nbsp; &mdash; He replied:<a id="k57a_18"><sup>18</sup></a>&nbsp; We are dealing here with a case where, for instance, he pleads [that it was taken] by all armed malefactor.<a id="k57a_19"><sup>19</sup></a>&nbsp; But, he rejoined:<a id="k57a_20"><sup>20</sup></a>&nbsp; All armed malefactor is surely considered a robber?<a id="k57a_21"><sup>21</sup></a>&nbsp; &mdash; He replied:<a id="k57a_18"><sup>18</sup></a>&nbsp; I hold that an armed malefactor, having regard to the fact that he hides himself from the public, is considered a thief.<a id="k57a_22"><sup>22</sup></a>
</p><p>
	He<a id="k57a_23"><sup>23</sup></a>&nbsp; brought a [further] objection [from the following]:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k57b_1:" This is a continuation of a Baraitha (now partly lost), which sought at the outset to derive a certain liability (undefined) in the case of a paid bailee by an <I>a fortiori</I> from the case of an unpaid bailee."
,k57b_2:" V. p. 332, n. 2."
,k57b_3:" V. p. 332, n. 3."
,k57b_4:" V. p. 332, n. 9."
,k57b_5:" V. p. 332, n. 5."
,k57b_6:" I.e., R. Joseph to Abaye."
,k57b_7:" I.e., by a thief whether armed or unarmed."
,k57b_8:" I.e. Abaye."
,k57b_9:" Ex. XXII, 13 dealing with a borrower."
,k57b_10:" To involve liability."
,k57b_11:" In accordance with Ex. ibid. 9-10."
,k57b_12:" Ibid. 11."
,k57b_13:" B.M. 95a."
,k57b_14:" Whereas in the case of Borrower there could never be an occasion for double payment, as any plea of theft whether by an armed malefactor or by an ordinary thief would involve the payment of the principal and would thus be an admission of liability and not a defence at all."
,k57b_15:" I.e., R. Joseph to Abaye."
,k57b_16:" Such as is the case with the Borrower."
,k57b_17:" Such as in the case of a Paid Bailee. Cf. also B.M. 41b and 94b."
,k57b_18:" I.e. R. Joseph who maintains that a malefactor in arms is subject to the law applicable to an ordinary thief."
,k57b_19:" In corroboration of my defence."
,k57b_20:" For by offering to pay the value of the cow he acquired title to all possible payments with reference to it, B.M. 34a."
,k57b_21:" As this view was followed in B.M. VII, 8; 36a; 97a; Jeb. 66b; Sheb. VIII, 1 and elsewhere; cf. also 'Er. 46b."
,k57b_22:" Dealt with in Ex. XXII, 14."
,k57b_23:" V. p. 330, n. 3."
,k57b_24:" V. p. 332, n. 5."
,k57b_25:" For by offering to pay the value of the cow he acquired title to all possible payments with reference to it."
,k57b_26:" V. p. 332, n. 9."
,k57b_27:" Who is exempt also where the article was stolen by an ordinary thief, in which case the thief referred to in the Baraitha did not necessarily mean a malefactor in arms but an ordinary thief."
,k57b_28:" To bring the ruling into accord with R. Judah though the reason stated in n. 10 may not apply."
,k57b_29:" V. p. 334, n. 8."
,k57b_30:" That a hirer might be subject to the law of Paid Bailee, and still the Baraitha affords no support to R. Joseph."
,k57b_31:" I.e. an ordinary thief who has to pay double, whereas if he would have been with arms he might perhaps have been subject to the law applicable to a robber, and there would have been no place for double payment."
,k57b_32:" As the fruits protected the animal from being hurt too much."
,k57b_33:" V. <i>supra</i> 47b. And so here the owner of the animal might plead, 'it should not have eaten'. "
}

txt:
<p>
No.<a id="k57b_1"><sup>1</sup></a>&nbsp; Because you say that [a certain liability falls on] the unpaid bailee who is subject to pay double payment,<a id="k57b_2"><sup>2</sup></a>&nbsp; it does not follow that you can say the same in the case of the paid bailee who does not pay double payment.<a id="k57b_3"><sup>3</sup></a>&nbsp; Now if you assume that an armed malefactor is considered a thief,<a id="k57b_4"><sup>4</sup></a>&nbsp; it would be possible that even a paid bailee would [in some cases] have to make double payment, as where he pleaded that [the articles in his charge were taken] by an armed malefactor!<a id="k57b_5"><sup>5</sup></a>&nbsp; &mdash; He replied:<a id="k57b_6"><sup>6</sup></a>&nbsp; What was meant is this: No. Because you say that a certain liability falls on the unpaid bailee, who has to make double payment,<a id="k57b_2"><sup>2</sup></a>&nbsp; whatever pleas he puts forward,<a id="k57b_7"><sup>7</sup></a>&nbsp; it does not follow that you can say the same in the case of the paid bailee who could not have to make a double payment except where he puts forward the plea that an armed malefactor<a id="k57b_5"><sup>5</sup></a>&nbsp; [took away the article in his charge]. He<a id="k57b_8"><sup>8</sup></a>&nbsp; again brought an objection [from the following]: [From the text] And it be hurt or die<a id="k57b_9"><sup>9</sup></a>&nbsp; I learn only the case of breakage or death. Whence [could there also be derived cases of] theft and loss?<a id="k57b_10"><sup>10</sup></a>&nbsp; An <I>a fortiori</I> argument may be applied here: If in the case of Paid Bailee who is exempt for breakage and death<a id="k57b_11"><sup>11</sup></a>&nbsp; he is nevertheless liable for theft<a id="k57b_12"><sup>12</sup></a>&nbsp; and loss, in the case of Borrower who is liable for breakage and death<a id="k57b_9"><sup>9</sup></a>&nbsp; would it not be all the more certain that he should be liable [also] for theft and loss? This <I>a fortiori</I> has indeed no refutation.<a id="k57b_13"><sup>13</sup></a>&nbsp; Now, if you assume that an armed malefactor is considered a thief why could there be no refutation [of this <I>a fortiori</I>]? It could surely be refuted [thus]: Why [is liability attached] to Paid Bailee if not because he might have to pay double payment where he puts forward the plea [that] an armed malefactor<a id="k57b_5"><sup>5</sup></a>&nbsp; [took the articles in his charge]?<a id="k57b_14"><sup>14</sup></a>&nbsp; &mdash; He said to him:<a id="k57b_15"><sup>15</sup></a>&nbsp; This Tanna held that the liability to pay the principal in the absence of any oath<a id="k57b_16"><sup>16</sup></a>&nbsp; is of more consequence than the liability for double payment which is conditioned by taking the oath.<a id="k57b_17"><sup>17</sup></a>
</p><p>
	May we say that he<a id="k57b_18"><sup>18</sup></a>&nbsp; derives support [from the following]: If a man hired a cow from his neighbour and it was stolen, and the hirer said, 'I would prefer to pay and not to swear'<a id="k57b_19"><sup>19</sup></a>&nbsp; and [it so happened that] the thief was [subsequently] traced, he should make the double payment to the hirer.<a id="k57b_20"><sup>20</sup></a>&nbsp; Now it was presumed that this statement followed the view of R. Judah<a id="k57b_21"><sup>21</sup></a>&nbsp; who said that Hirer<a id="k57b_22"><sup>22</sup></a>&nbsp; is equal [in law] to Paid Bailee.<a id="k57b_23"><sup>23</sup></a>&nbsp; Since then it says 'the hirer said "I would prefer to pay and not to swear"',<a id="k57b_19"><sup>19</sup></a>&nbsp; this shows that had he wished he could have freed himself by resorting to the oath. Under what circumstances [could this be so]? Where, for instance, he advances the plea that an armed malefactor [took it].<a id="k57b_24"><sup>24</sup></a>&nbsp; Now seeing that it says, '&hellip; and it so happened that the thief was [subsequently] traced, he should pay the double payment to the hirer',<a id="k57b_25"><sup>25</sup></a>&nbsp; can it not be concluded from this that an armed malefactor is considered as a thief?<a id="k57b_26"><sup>26</sup></a>&nbsp; &mdash; I might answer: Do you presume that this statement follows the view of R. Judah who said that Hirer<a id="k57b_22"><sup>22</sup></a>&nbsp; is equal [in law] to Paid Bailee?<a id="k57b_23"><sup>23</sup></a>&nbsp; Perhaps it follows the view of R. Meir who said that Hirer is equal [in law] to Unpaid Bailee.<a id="k57b_27"><sup>27</sup></a>&nbsp; If you wish<a id="k57b_28"><sup>28</sup></a>&nbsp; I may say: [We should read the relevant views] as they were transposed by Rabbah b. Abbuha, who [taught thus]: How is the payment [for the loss of articles] regulated in the case of Hirer? R. Meir says: As in the case of Paid Bailee. R. Judah, however, says: As in the case of Unpaid Bailee.<a id="k57b_29"><sup>29</sup></a>&nbsp; R. Zera said:<a id="k57b_30"><sup>30</sup></a>&nbsp; We are dealing here with a case where the hirer advances the plea [that it was taken by] an armed malefactor, and it was afterwards discovered that [it was taken by] a malefactor without arms.<a id="k57b_31"><sup>31</sup></a>
</p><p>
	IF A SHEEP [ACCIDENTALLY] FELL INTO A GARDEN AND DERIVED BENEFIT [FROM THE FRUITS THERE], PAYMENT WOULD HAVE TO BE MADE TO THE EXTENT OF THE BENEFIT. Rab said: [This applies to benefit derived by the animal] from [the lessening of] the impact.<a id="k57b_32"><sup>32</sup></a>&nbsp; But what when it consumed them? Would there be no need to pay even to the extent of the benefit? Shall we say that Rab is here following the principle laid down by him [elsewhere]? For did Rab not say, 'It should not have eaten'?<a id="k57b_33"><sup>33</sup></a>&nbsp; &mdash; But what a comparison! Rab said 'It should not have eaten' only there where it was injured [by over-eating itself], so that the owner of the fruits could say [to the plaintiff], 'I will not pay as it should not have eaten [my fruits]'. But did Rab ever say this in the case where the animal did damage to others that there should be exemption?
</P>


lvr: 41
dfh: a
notes:
 ntes={k58a_1:" Lit., 'he says there can be no question'."
,k58a_2:" For which no payment could be demanded, this being merely an act of goodwill and kindness, v. B.B. 52a."
,k58a_3:" That he is 'preventing a lion' etc."
,k58a_4:" The owner of the fruit should thus be entitled to compensation."
,k58a_5:" That it should be considered a mere accident and the payment should only be to the extent of the benefit."
,k58a_6:" As this is certainly a matter of accident."
,k58a_7:" Regarding which the whole act is considered an accident."
,k58a_8:" For the beds except the first one."
,k58a_9:" To the full extent of the damage."
,k58a_10:" Which was apparently an accident."
,k58a_11:" V. <i>Supra</i> 21b."
,k58a_12:" That there will be liability in this case too. "
}

txt:
<p>
Rab took a particularly strong instance.<a id="k58a_1"><sup>1</sup></a>&nbsp; There can be no doubt that where the benefit was derived from the animal having consumed the fruits payment would have to be made to the extent of the benefit. Regarding, however, [the benefit derived by the animal from the lessening of] the impact, it might have been thought that the fruits served only the purpose of 'preventing a lion from [damaging] a neighbour's property',<a id="k58a_2"><sup>2</sup></a>&nbsp; so that no payment should be made even to the extent of the benefit. It is therefore indicated to us [here that even this benefit has to be paid for]. But why not say that this is so?<a id="k58a_3"><sup>3</sup></a>&nbsp; &mdash; [No payment it is true could be claimed] in the case of preventing a lion from [damaging] a neighbour's property as [the act of driving the lion away] is voluntary, but in this case the act was not voluntary.<a id="k58a_4"><sup>4</sup></a>&nbsp; Or again, in the case of preventing the lion from [damaging] a neighbour's property, no expenses were incurred [by the act of driving away the lion], but in this case here there was [pecuniary] loss attached to it.
</p><p>
	[How did the animal fall]?<a id="k58a_5"><sup>5</sup></a>&nbsp; &mdash; R. Kahana said: It slipped in its own water. Raba, however, said: [The rule would hold good even] where another animal pushed it down. The one who explains the ruling to apply where another animal pushed it down, would certainly apply it where it slipped in its own water.<a id="k58a_6"><sup>6</sup></a>&nbsp; But the one who explains the ruling to apply where it slipped in its own water [might maintain that] where another animal pushed it down there was negligence, and the payment should be for the amount of damage done by it, as the plaintiff would be entitled to say, 'You should have made them go past one by one.'
</p><p>
	R. Kahana said: The Mishnaic ruling applies only to the bed [into which it fell].<a id="k58a_7"><sup>7</sup></a>&nbsp; If, however, it went from one bed to another bed, the payment<a id="k58a_8"><sup>8</sup></a>&nbsp; would be for the amount of damage done by it. R. Johanan, however, said that even where it went from one bed to another bed and did so even all day long, [the payment would be made only to the extent of the benefit], unless it left the garden and returned there again with the knowledge [of the owner]. R. Papa thereupon said: Do not imagine this to mean 'unless it left the garden to the knowledge of the owner and returned there again with the knowledge of the owner', for as soon as it left the garden to the knowledge of the owner, even though it returned again without his knowledge [there would already be liability],<a id="k58a_9"><sup>9</sup></a>&nbsp; the reason being that the plaintiff might [rightly] say: Since it had once become known [to it where it can find fruit, you should have realised that] whenever it broke loose it would run to that place.
</p><p>
	IF IT WENT DOWN THERE IN THE USUAL WAY AND DID DAMAGE, THE PAYMENT WOULD HAVE TO BE FOR THE AMOUNT OF DAMAGE DONE BY IT. R. Jeremiah raised the question: Where it had gone down there in the usual way but did damage by water resulting from giving birth,<a id="k58a_10"><sup>10</sup></a>&nbsp; what would be the legal position? If we accept the view that where there is negligence at the beginning but [damage actually results] in the end from sheer accident there is liability,<a id="k58a_11"><sup>11</sup></a>&nbsp; no question arises.<a id="k58a_12"><sup>12</sup></a>&nbsp; Where we have to ask is if we accept the view<a id="k58a_11"><sup>11</sup></a>&nbsp; that where there is negligence at the beginning, but [damage actually results] in the end from sheer accident there is exemption. What [in that case is the law]? Should we say that this is a case where there was negligence at first but the final result was due to accident, and therefore there should be exemption, or should we say [on the contrary that] this case is one of negligence throughout, for since the owner could see that the animal was approaching the time to give birth, he should have watched
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k58b_1:" Ex. XXII, 4."
,k58b_2:" I.e., were it intended only for that."
,k58b_3:" V. p. 337, n. 7."
,k58b_4:" I.e. that public ground be excluded and that the valuation be made in conjunction with another field."
,k58b_5:" Of an area requiring one <i>se'ah</i> of seed."
,k58b_6:" I.e. half a <i>se'ah</i>, amounting thus to three <i>kabs</i>, though originally it meant two <i>kabs</i>."
,k58b_7:" The principle underlying this difference of opinion is made clear in the Baraitha that follows."
,k58b_8:" Cf. <i>supra</i> p. 123."
,k58b_9:" And not in proportion to the value of a bigger area. This refutes the views of all the cited authorities."
,k58b_10:" [I.e., either 'se'ahs', 'tarkabs' or 'stalks' as the case may be.]"
,k58b_11:" V. the discussion <i>infra</i>."
,k58b_12:" I.e., thirty se'ahs; cf. <a href=\"../tglossary.html\">Glos.</a>"
,k58b_13:" As the payment would be very small owing to the fact that the deficiency of one <i>kab</i> in an area required for sixty <i>kabs</i> of seed would hardly be noticed, and so would reduce the general price very little."
,k58b_14:" For the deficiency of one <i>kor</i>, in an area required for sixty times as much, is conspicuous, and reduces the general price too much. The valutation of a <i>se'ah</i> will therefore be made in proportion to sixty se'ahs."
,k58b_15:" Should be valued in this way."
,k58b_16:" Lit., 'in one nest', or 'place'."
,k58b_17:" R. Nahman."
,k58b_18:" [H] Admon and Hanan b. Abishalom, identical with the 'Judges of Civil Law' [H] mentioned in Keth. XIII, 1 (Rashi). Little is known of their functions and power to enable us to explain their designation (Buchler, Das Synedrion, p. 113); cf. also Geiger, <I>Urschrift</I>, p. 119.]"
,k58b_19:" I.e., two <i>ma'ahs</i> which were a third of a <i>denar</i>; cf. <a href=\"../tglossary.html\">Glos.</a> "
}

txt:
<p>
it and indeed taken more care of it? &mdash; Let this remain undecided.
</p><p>
	HOW IS PAYMENT MADE FOR THE AMOUNT OF DAMAGE DONE BY IT? BY COMPARING THE VALUE OF AN AREA IN THE FIELD REQUIRING ONE <I>SE'AH</I> OF SEED AS IT WAS [PREVIOUSLY] WITH WHAT ITS WORTH IS [NOW] etc. Whence is this derived? &mdash; R. Mattena said: Scripture says, And shall feed in another man's field<a id="k58b_1"><sup>1</sup></a>&nbsp; to teach that the valuation should be made in conjunction with another field. But was this [verse] and shall feed in another man's field not required to exclude public ground [from being subject to this law]? &mdash; If so,<a id="k58b_2"><sup>2</sup></a>&nbsp; Scripture would have said 'and shall feed in a neighbour's field' or ['and shall consume] another man's field.' Why then is it said in another [man's] field [unless to teach that] the valuation should be made in conjunction with another field? Let us say then that the whole import [of this verse] was to convey only this ruling, there being thus no authority to exclude public ground? &mdash; If so,<a id="k58b_3"><sup>3</sup></a>&nbsp; Scripture would have inserted this clause in the section dealing with payment, e.g., 'of the best of his own field and of the best of his own vineyard shall he make restitution [as valued] in conjunction with another field.' Why then did Scripture put it in juxtaposition with and shall feed unless to indicate that the two [rulings] are to be derived from it.<a id="k58b_4"><sup>4</sup></a>
</p><p>
	How is the valuation<a id="k58b_5"><sup>5</sup></a>&nbsp; arrived at? &mdash; R. Jose b. Hanina said: [The value of] an area requiring one <i>se'ah</i> of seed [is determined] in proportion to the value of an area requiring sixty se'ahs of seed. R. Jannai said: [The value of] an area requiring one <i>tarkab</i><a id="k58b_6"><sup>6</sup></a>&nbsp; of seed [is determined] in proportion to the value of an area requiring sixty tarkabs of seed. Hezekiah said: [The value of] each stalk [consumed is determined] in proportion to the value of sixty such stalks.<a id="k58b_7"><sup>7</sup></a>&nbsp; An objection was raised [from the following:] If it consumed one <i>kab</i> in two <i>kabs</i> [of grain], it would not be right to ask payment for their full value,<a id="k58b_8"><sup>8</sup></a>&nbsp; but the amount consumed would have to be considered as if forming a little bed which would thus be estimated. Now, does this not mean that the bed will be valued by itself?<a id="k58b_9"><sup>9</sup></a>&nbsp; &mdash; No; in [the proportion of one to] sixty.<a id="k58b_10"><sup>10</sup></a>
</p><p>
	Our Rabbis taught: The valuation is made neither of a <i>kab</i> by itself, as this would be an advantage to him,<a id="k58b_11"><sup>11</sup></a>&nbsp; nor of an area required for a <i>kor</i><a id="k58b_12"><sup>12</sup></a>&nbsp; of seed, as this would be a disadvantage to him.<a id="k58b_11"><sup>11</sup></a>&nbsp; What does this mean? &mdash; R. Papa said: What is meant is this: Neither is a <i>kab</i> [of grain consumed] valued in conjunction with sixty <i>kabs</i>, as the defendant would thereby have too great an advantage,<a id="k58b_13"><sup>13</sup></a>&nbsp; nor is a <i>kor</i> valued in conjunction with sixty kors, as this would mean too great a disadvantage for the defendant.<a id="k58b_14"><sup>14</sup></a>&nbsp; R. Huna b. Manoah demurred to this, saying: Why then does it say, 'nor of an area required for a <i>kor</i> of seed'? [According to your interpretation] should it not have been 'nor a kor'?<a id="k58b_15"><sup>15</sup></a>&nbsp; &mdash; R. Huna b. Manoah therefore said in the name of R. Aha the son of R. Ika: What is meant is this: The valuation is made neither of a <i>kab</i> by itself, as this would be too great an advantage to the plaintiff, nor of a <i>kab</i> in conjunction with an area required for a <i>kor</i> of seed, as this would be too great a disadvantage for the plaintiff. It must therefore be made only in conjunction with sixty [times as much].
</p><p>
	A certain person cut down a date-tree belonging to a neighbour. When he appeared before the Exilarch, the latter said to him: 'I myself saw the place; three date-trees stood close together<a id="k58b_16"><sup>16</sup></a>&nbsp; and they were worth one hundred <i>zuz</i>. Go therefore and pay the other party thirty-three and a third [<i>zuz</i>].' Said the defendant: 'What have I to do with an Exilarch who judges in accordance with Persian Law?' He therefore appeared before R. Nahman, who said to him [that the valuation should be made] in conjunction with sixty [times as much]. Said Raba to him:<a id="k58b_17"><sup>17</sup></a>&nbsp; If the Sages ordained this valuation in the case of chattels doing damage, would they do the same in the case of damage done by Man with his body? &mdash; Abaye, however, said to Raba: In regard to damage done by Man with his body, what is your opinion [if not] that which was taught: 'If a man prunes [the berries from] a neighbour's vineyard while still in the budding stage, it has to be ascertained how much it was worth previously and how much it is worth afterwards', but nothing is said of valuation in conjunction with sixty [times as much]? But has it not been taught similarly with respect to [damage done by] Cattle? For it was taught: If [a beast] breaks off a plant, R. Jose says that the Legislators of [public enactments<a id="k58b_18"><sup>18</sup></a>&nbsp; in Jerusalem stated that if the plant was of the first year, two silver pieces<a id="k58b_19"><sup>19</sup></a>&nbsp; [should be paid] but if it was in its second year, four silver pieces [should be paid]. If it consumed young blades of grain, R. Jose the Galilean says that it has to be considered in the light of the future value of that which was left in the field. The Sages, however, say that it has to be ascertained how much it [the field] was worth [previously] and how much it is worth [now].
</P>


lvr: 41
dfh: a
notes:
 ntes={k59a_1:" B. Yohai."
,k59a_2:" Keth. 105a."
,k59a_3:" That it will have to be considered in the light of the future value of that which was left in the field."
,k59a_4:" V. <i>supra</i> 6b."
,k59a_5:" Ex. XXII, 4."
,k59a_6:" [In the case where the quality of the bed consumed by the cattle was not in doubt.]"
,k59a_7:" [I.e., one view would maintain that this deduction has to be made, while the other would not maintain this.]"
,k59a_8:" [It cannot be stated precisely which authority is of the one and which of the other view.]"
,k59a_9:" Keth, 39a."
,k59a_10:" Proving that a deduction from the amount of the damages is made on a similar accord."
,k59a_11:" That a deduction should be made on this accord."
,k59a_12:" From the payment for injuring a pregnant woman resulting in a miscarriage; cf. Ex. XXI, 22 and <i>supra</i> 49a."
,k59a_13:" I.e. the special diet which would have been necessary during the confinement period."
,k59a_14:" As the special diet would have been an inevitable expense."
,k59a_15:" He would therefore have spared this expense."
,k59a_16:" Where a human being did damage with his body."
,k59a_17:" To value in conjunction with sixty times as much where a human being did damage with his body."
,k59a_18:" Which is by itself of no great value."
,k59a_19:" To value the tree by itself."
,k59a_20:" Which is even by itself of considerable value."
,k59a_21:" [V.l. Eleazar]. "
}

txt:
<p>
If it consumed grapes while still in the budding stage, R. Joshua says that they should be estimated as if they were grapes ready to be plucked off. But the Sages [here too] say that it will have to be ascertained how much it was worth [previously] and how much it is worth [now]. R. Simeon b. Judah says in the name of R. Simeon:<a id="k59a_1"><sup>1</sup></a>&nbsp; These rulings apply where it consumed sprouts of vines or shoots of fig-trees, but where it consumed [actual] figs or half-ripe grapes they would be estimated as if they were grapes ready to be plucked off.<a id="k59a_2"><sup>2</sup></a>&nbsp; Now, it is definitely taught here, 'The Sages say that it will have to be ascertained how much it was worth [previously] and how much it is worth [now]' and it is not said [explicitly that the valuation will be made] in conjunction with sixty [times as much]. Nevertheless you must say that it is implied that [the valuation is to be made] in conjunction with sixty [times as much]. So also then here, [in the case of Man it is implied that the valuation is to be] in conjunction with Sixty [times as much].
</p><p>
	Abaye said: R. Jose the Galilean and R. Ishmael expressed the same view [in this matter]. R. Jose the Galilean as stated by us [above],<a id="k59a_3"><sup>3</sup></a>&nbsp; and R. Ishmael as taught [elsewhere]:<a id="k59a_4"><sup>4</sup></a>&nbsp; 'Of the best of his own field and of the best of his own vineyard shall he make restitution;<a id="k59a_5"><sup>5</sup></a>&nbsp; this means the best of the field of the plaintiff and the best of the vineyard of the plaintiff. This is the view of R. Ishmael. R. Akiba, however, says: Scripture only intended to lay down that damages should be collected out of the best and this applies even more to sacred property. Nor can you say that he [R. Ishmael] meant this in the sense of R. Idi b. Abin, who said [that it deals with a case where] e.g., the cattle consumed one bed out of several beds and we could not ascertain whether its produce was meagre or fertile, so that R. Ishmael would [thus be made to] order the defendant to go and pay for a fertile bed in accordance with the value of the best bed at the time of the damage. This could not be maintained by us, for the reason that the onus probandi falls upon the claimant. R. Ishmael<a id="k59a_6"><sup>6</sup></a>&nbsp; must therefore have meant the best of anticipation, i.e., as it would have matured [at the harvest time].
</p><p>
	The Master stated: 'R. Simeon b. Judah says in the name of R. Simeon: These rulings apply only where it consumed sprouts of vines or shoots of fig-trees,' [thus implying that] where it consumed grapes in the budding stage they would be estimated as if they were grapes ready to be plucked off. Read [now] the concluding clause: 'Where it consumed [actual] figs or half-ripe grapes they would be estimated as if they were grapes ready to be plucked off', [implying to the contrary that] where it consumed grapes in the budding stage it would have to be ascertained how much it was worth [previously] and how much it is worth [now]. [Is this not a contradiction?] &mdash; Rabina said: Embody [the new case in the text] and teach thus: 'These rulings apply only where it consumed sprouts of vines or shoots of fig-trees, for where it consumed grapes in the budding stage, or [actual] figs or half-ripe grapes they would be estimated as if they were grapes ready to be plucked off.' But if so would R. Simeon b. Judah's view not be exactly the same as that already stated by R. Joshua? &mdash; There is a practical difference between them as to [the deduction to be made for] the depreciation of the vines [themselves, through exhaustion, if the grapes had remained there until fully ripe],<a id="k59a_7"><sup>7</sup></a>&nbsp; though the views cannot be identified.<a id="k59a_8"><sup>8</sup></a>&nbsp; Abaye, however, said: They most assuredly could be identified. For who could be the Tanna who takes into consideration the depreciation of the vine, if not R. Simeon b. Judah? For it was taught: R. Simeon b. Judah says in the name of R. Simeon b. Menasya:<a id="k59a_9"><sup>9</sup></a>&nbsp; [Even] in the case of Rape no compensation is made for Pain, as the female would [in any case] have subsequently to undergo the same pain through her husband.<a id="k59a_10"><sup>10</sup></a>&nbsp; The Rabbis however said to him: A woman having intercourse by her free will is not to be compared to one having intercourse by constraint.
</p><p>
	Abaye further said: The following Tannaim and R. Simeon b. Judah expressed on this point the same view?<a id="k59a_11"><sup>11</sup></a>&nbsp; R. Simeon b. Judah's view as stated by us [above]. Who are the other Tannaim [referred to]? &mdash; As taught: R. Jose says: Deduct the fees of the midwife,<a id="k59a_12"><sup>12</sup></a>&nbsp; but Ben 'Azzai says: Deduct food.<a id="k59a_13"><sup>13</sup></a>&nbsp; The one who says, 'deduct the fees for the midwife' would certainly deduct food,<a id="k59a_14"><sup>14</sup></a>&nbsp; but the one who says, 'deduct food', would not deduct the fees for the midwife, as the plaintiff might say, 'My wife is a lively person and does not need a midwife.'<a id="k59a_15"><sup>15</sup></a>&nbsp; R. Papa and R. Huna the son of R. Joshua in an actual case<a id="k59a_16"><sup>16</sup></a>&nbsp; followed the view of R. Nahman and valued in conjunction with sixty times [as much]. According to another report, however, R. Papa and R. Huna the son of R. Joshua valued a palmtree in conjunction with the small piece of ground.<a id="k59a_16"><sup>16</sup></a>&nbsp; The law is in accordance with R. Papa and R. Huna the son of R. Joshua<a id="k59a_17"><sup>17</sup></a>&nbsp; in the case of an Aramean palm,<a id="k59a_18"><sup>18</sup></a>&nbsp; but it is in accordance with the Exilarch<a id="k59a_19"><sup>19</sup></a>&nbsp; in the case of a Persian palm.<a id="k59a_20"><sup>20</sup></a>
</p><p>
	Eliezer<a id="k59a_21"><sup>21</sup></a>&nbsp; Ze'era
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k59b_1:" Cf. Ta'an. 22a. [Tosaf. regards the black lacing as the distinguishing mark of mourning, v. also Krauss, Talm. Arch. I, 628.]"
,k59b_2:" In such a manner."
,k59b_3:" Why then not pay for actual dates of which the owner was deprived?"
,k59b_4:" Why then pay for ripe dates?"
,k59b_5:" Including the ground occupied by them."
,k59b_6:" I.e. Eliezer Ze'era."
,k59b_7:" Should the valuation not be made in conjunction with the field where ripe fruits were consumed."
,k59b_8:" Ex. XXII, 4."
,k59b_9:" In the statement of R. Simeon."
,k59b_10:" That the law does not prevail in accordance with R. Meir against R. Judah: cf. 'Er. 46b"
,k59b_11:" For by endorsing the deed drawn up for the second purchaser and not that drawn up for the first one, she made it evident that on the one hand she was not out to please her husband by confirming his sale, and on the other that she was finally prepared to forego her claim."
,k59b_12:" Keth. 95a."
,k59b_13:" <i>Supra</i> 47b."
,k59b_14:" Why then should the owner of the field be liable where the corn was stacked with his permission?"
,k59b_15:" As it was the custom to pile all the stacks of the villagers in one place and appoint a guardian to look after them."
,k59b_16:" In accordance with the custom of the place."
,k59b_17:" For he being last is mostly to blame."
,k59b_18:" Of exemption from the judgments of Man. "
}

txt:
<p>
once put on a pair of black shoes and stood in the market place of Nehardea. When the attendants of the house of the Exilarch met him there, they said to him: 'What ground have you for wearing black shoes?'<a id="k59b_1"><sup>1</sup></a>&nbsp; &mdash; He said to them: 'I am mourning for Jerusalem.' They said to him: 'Are you such a distinguished person as to mourn over Jerusalem?'<a id="k59b_2"><sup>2</sup></a>&nbsp; Considering this to be a piece of arrogance on his part they brought him and put him in prison. He said to them, 'I am a great man!' They asked him: 'How can we tell?' He replied, 'Either you ask me a legal point or let me ask you one.' They said to him: '[We would prefer] you to ask.' He then said to them: 'If a man cuts a date-flower, what payment should he have to make?' &mdash; They answered him: 'The payment will be for the value of the date-flower.' 'But would it not have grown into dates?'<a id="k59b_3"><sup>3</sup></a>&nbsp; &mdash; They then replied: 'The payment should be for the value of the dates.' 'But', he rejoined, 'surely it was not dates which he took from him!'<a id="k59b_4"><sup>4</sup></a>&nbsp; They then said to him: 'You tell us.' He replied: 'The valuation would have to be made in conjunction with sixty times as much.'<a id="k59b_5"><sup>5</sup></a>&nbsp; They said to him: 'What authority can you find to support you?' &mdash; He thereupon said to them: 'Samuel is alive and his court of law flourishes [in the town].' They sent this problem to be considered before Samuel who answered them: 'The statement he<a id="k59b_6"><sup>6</sup></a>&nbsp; made to you, that the valuation should be in conjunction with sixty times [as much as the damaged date-flower]<a id="k59b_5"><sup>5</sup></a>&nbsp; is correct.' They then released him.
</p><p>
	R. SIMEON SAYS: IF IT CONSUMED RIPE FRUITS etc. On what ground?<a id="k59b_7"><sup>7</sup></a>&nbsp; &mdash; The statement of the Divine Law, <i>And shall feed in another man's field</i>,<a id="k59b_8"><sup>8</sup></a>&nbsp; teaching that valuation is to be made in conjunction with the field applies to produce which was still in need of a field, whereas these fruits [in the case before us],<a id="k59b_9"><sup>9</sup></a>&nbsp; since they were no more in need of a field, must be compensated at their actual value.
</p><p>
	R. Huna b. Hiyya said that R. Jeremiah stated that Rab gave judgment [in contradistinction to the usual rule]<a id="k59b_10"><sup>10</sup></a>&nbsp; in accordance with R. Meir and [on another legal point] decided the law to be in accordance with R. Simeon. He gave judgment in accordance with R. Meir on the matter taught: If the husband drew up a deed for a would-be purchaser [of a field which had been set aside for the payment of the marriage settlement of his wife] and she did not endorse it, and [when a deed on the same field was drawn up] for another purchaser she did endorse it, she has thereby lost her claim to the marriage settlement; this is the view of R. Meir.<a id="k59b_11"><sup>11</sup></a>&nbsp; R. Judah, however, says: She might still argue, 'I made the endorsement merely to gratify my husband; why therefore should you go against me?'<a id="k59b_12"><sup>12</sup></a>&nbsp; [The legal point where] he decided the law to be in accordance with R. Simeon was that which we learnt: R. SIMEON SAYS: IF IT CONSUMED RIPE FRUITS, THE PAYMENT SHOULD BE FOR RIPE FRUITS, IF ONE <I>SE'AH</I> [IT WOULD BE FOR] ONE <I>SE'AH</I>, IF TWO SE'AHS, [FOR] TWO SE'AHS.
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN PUTS HIS STACKS OF CORN IN THE FIELD OF ANOTHER WITHOUT PERMISSION, AND THE ANIMAL OF THE OWNER OF THE FIELD EATS THEM, THERE IS NO LIABILITY. MOREOVER, IF IT SUFFERED HARM FROM THEM, THE OWNER (OF THE STACKS WOULD BE LIABLE. IF, HOWEVER, HE PUT THE STACKS THERE WITH PERMISSION, THE OWNER OF THE FIELD WOULD BE LIABLE. 
<P>
	<B><I>GEMARA</I></B>. May we say that this Mishnah is not in accordance with Rabbi? For if in accordance with Rabbi, did he not say<a id="k59b_13"><sup>13</sup></a>&nbsp; that unless the owner of the premises explicitly took upon himself to safeguard he would not be liable?<a id="k59b_14"><sup>14</sup></a>&nbsp; &mdash; R. Papa said: [Here we were dealing with] the watchman of the barns.<a id="k59b_15"><sup>15</sup></a>&nbsp; For since he said, 'Enter and place your stacks', it surely amounted to, 'Enter and I will guard for you'.<a id="k59b_16"><sup>16</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN SENT OUT SOMETHING BURNING THROUGH A DEAF MUTE, AN IDIOT, OR A MINOR [AND DAMAGE RESULTED] HE WOULD BE EXEMPT FROM THE JUDGMENTS OF MAN, BUT LIABLE IN ACCORDANCE WITH THE JUDGMENTS OF HEAVEN. BUT IF HE SENT [IT] THROUGH A NORMAL PERSON, THE NORMAL PERSON WOULD BE LIABLE. IF ONE PERSON [FIRST] SUPPLIES THE FIRE AND ANOTHER THE WOOD, HE WHO SUPPLIES THE WOOD WOULD BE LIABLE.<a id="k59b_17"><sup>17</sup></a>&nbsp; WHERE, [ON THE OTHER HAND], THE FIRST SUPPLIES THE WOOD AND THE SECOND THE FIRE, HE WHO SUPPLIES THE FIRE WOULD BE LIABLE.<a id="k59b_17"><sup>17</sup></a>&nbsp; BUT WHERE ANOTHER PERSON CAME ALONG AND FANNED THE FLAME, THE ONE WHO FANNED IT WOULD BE LIABLE.<a id="k59b_17"><sup>17</sup></a>&nbsp; IF IT WAS THE WIND THAT FANNED IT, ALL WOULD BE EXEMPT.
</p><p>
	<B><I>GEMARA</I></B>. Resh Lakish said in the name of Hezekiah: The Mishnaic ruling<a id="k59b_18"><sup>18</sup></a>&nbsp; holds good only where he handed over a [flickering] coal to [the deaf mute] who fanned it into flame, but if he handed over to him something already in flame he would be liable, the reason being that it was his acts that were the [immediate] cause. R. Johanan, however, said: Even where he handed something already in flame to him, he would still be exempt, the reason being that it was the handling of the deaf mute that caused the damage; he could therefore not be liable unless where he handed over to him tinder,
</P>


lvr: 41
dfh: a
notes:
 ntes={k60a_1:" <i>Supra</i> 9b."
,k60a_2:" [H] (connected with [H], 'flame'), to denote blazing up."
,k60a_3:" [ [H] from [H], 'to blow up' to blow a blaze'.]"
,k60a_4:" For similar textual remarks by the same sage, cf. A.Z. 2a."
,k60a_5:" Ex. III, 2."
,k60a_6:" Isa. LVII, 19. [The blaze is provided by <I>'the movement of the lips'</I>, i.e., by blowing with the mouth.]"
,k60a_7:" Cf. Shab. VII, 2; v. also B.B. 26a."
,k60a_8:" So that the wind did not help him at all."
,k60a_9:" But did not actually blaze it up."
,k60a_10:" Whether man did it wholly by his own body or not."
,k60a_11:" Ex. XXII, 5."
,k60a_12:" As thorns are usually worthless and nobody minds them."
,k60a_13:" Which are of great value and are usually looked after."
,k60a_14:" Excluding thus hidden articles."
,k60a_15:" <i>Supra</i> 5b."
,k60a_16:" E.g., living objects and plants [Though the latter, unlike 'stacks' are still attached to the ground. Tosaf.]"
,k60a_17:" Cf. <i>supra</i> p. 311, and also Tosaf. Hul. 86b."
,k60a_18:" V. p. 347. n. 5."
,k60a_19:" Which includes everything."
,k60a_20:" Such as the field itself."
,k60a_21:" [Having stated 'standing corn', the Torah must have added 'field' to indicate the field itself.]"
,k60a_22:" Ex. XXII, 5."
,k60a_23:" Used metaphorically to express the righteous."
,k60a_24:" Ex. XII, 22."
,k60a_25:" Ezek. XXI, 8."
,k60a_26:" Thus mentioning first the 'righteous' and then the 'wicked'."
,k60a_27:" I.e., the righteous."
,k60a_28:" That they are punished even for the wicked."
,k60a_29:" Isa. LVII, 1. "
}

txt:
<p>
shavings and a light, in which case it was certainly his act that was the immediate cause.<a id="k60a_1"><sup>1</sup></a>
</p><p>
	BUT IF HE SENT [IT] THROUGH A NORMAL PERSON, THE NORMAL PERSON WOULD BE LIABLE etc. IF ANOTHER PERSON CAME ALONG AND [LIBBAH] FANNED IT etc. R. Nahman b. Isaac said: He who reads in the [original] text <i>libbah</i><a id="k60a_2"><sup>2</sup></a>&nbsp; is not mistaken; so also he who reads in the text <i>nibbah</i><a id="k60a_3"><sup>3</sup></a>&nbsp; is similarly not mistaken.<a id="k60a_4"><sup>4</sup></a>&nbsp; He who has in the text <i>libbah</i><a id="k60a_2"><sup>2</sup></a>&nbsp; is not mistaken, since we find [in Scripture] <i>be-labbath esh</i><a id="k60a_5"><sup>5</sup></a>&nbsp; [<i>in a flame of fire</i>], and so also he who has in the text <i>nibbah</i><a id="k60a_3"><sup>3</sup></a>&nbsp; is not mistaken, as we find, <i>I create</i> nib [<i>the movement of</i>] <i>the lips</i>.<a id="k60a_6"><sup>6</sup></a>
</p><p>
	IF IT WAS THE WIND THAT FANNED IT, ALL WOULD BE EXEMPT. Our Rabbis taught: Where he fanned it [along with] the wind which also fanned it, if there was enough force in his blowing to set the fire ablaze he would be liable, but if not he would be exempt. But why should he not be liable, as in the case of one winnowing [on Sabbath, who is liable] though the wind was helping him?<a id="k60a_7"><sup>7</sup></a>&nbsp; &mdash; Abaye thereupon said: We are dealing here with a case where e.g., he blew it up in one direction and the wind blew it up in a different direction.<a id="k60a_8"><sup>8</sup></a>&nbsp; Raba said: [The case is one] where e.g., he started to blow it up when the wind was only normal, [and would have been unable to set it ablaze], but there [suddenly] came on an unusual wind which made it blaze up. R. Zera said: [The case is one] where e.g., he merely increased the heat by breathing heavily on it.<a id="k60a_9"><sup>9</sup></a>&nbsp; R. Ashi said: When we say that there is liability for winnowing where the wind is helping, this applies to Sabbath where the Torah prohibited any work with a definite object,<a id="k60a_10"><sup>10</sup></a>&nbsp; whereas here [regarding damage] such an act could be considered merely as a secondary cause, and a mere secondary cause in the case of damage carries no liability.
</p><p>
	<B><I>MISHNAH</I></B>. IF HE ALLOWED FIRE TO ESCAPE AND IT BURNT WOOD, STONES OR [EVEN] EARTH, HE WOULD BE LIABLE, AS IT SAYS: IF FIRE BREAK OUT AND CATCH IN THORNS SO THAT THE STACKS OF CORN, OR THE STANDING CORN, OR THE FIELD BE CONSUMED THEREWITH: HE THAT KINDLED THE FIRE SHALL SURELY MAKE RESTITUTION.<a id="k60a_11"><sup>11</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. Raba said: Why was it necessary for the Divine Law to mention [both] 'thorns', 'stacks', 'standing corn' and 'field'? They are all necessary. For if the Divine Law had mentioned [only] 'thorns', I might have said that it was only in the case of thorns that the Divine Law imposed liability because fire is found often among them and carelessness in regard to them is frequent,<a id="k60a_12"><sup>12</sup></a>&nbsp; whereas in the case of 'stacks',<a id="k60a_13"><sup>13</sup></a>&nbsp; which are not often on fire and in respect of which negligence is not usual, I might have held that there is no liability. If [again] the Divine Law had mentioned [only] 'stacks', I might have said that it was only in the case of 'stacks' that the Divine Law imposed liability as the loss involved there was considerable, whereas in the case of 'thorns' where the loss involved was slight I might have thought there was no liability. But why was standing corn' necessary [to be mentioned]? [To teach that] just as 'standing corn' is in an open place, so is everything [which is] in an open space [subject to the same law].<a id="k60a_14"><sup>14</sup></a>&nbsp; But according to R. Judah who imposes<a id="k60a_15"><sup>15</sup></a>&nbsp; liability also for concealed articles damaged by fire, why had 'standing corn' [to be mentioned]? &mdash; To include anything possessing stature.<a id="k60a_15"><sup>15</sup></a>&nbsp; Whence then did the [other] Rabbis include anything possessing stature?<a id="k60a_16"><sup>16</sup></a>&nbsp; &mdash; They derived this from [the word] 'or' [placed before] 'the standing corn'.<a id="k60a_17"><sup>17</sup></a>&nbsp; And R. Judah? &mdash; He needed [the word] 'or' as a disjunctive.<a id="k60a_17"><sup>17</sup></a>&nbsp; Whence then did the [other] Rabbis derive the disjunction? &mdash; They derived it from [the word] 'or' [placed before] 'the field'. And R. Judah? &mdash; He held that because the Divine Law inserted 'or' [before] 'the standing corn' 'it also inserted 'or' [before] 'the field'. But why was 'field' needed [to be inserted]? &mdash; To include [the case of] Fire lapping his neighbour's ploughed field, and grazing his stones.<a id="k60a_18"><sup>18</sup></a>&nbsp; But why did the Divine Law not say only 'field',<a id="k60a_19"><sup>19</sup></a>&nbsp; in which case the others would not have been necessary? They were still necessary. For if the Divine Law had said 'field' only, I might have said that anything in the field would come under the same law, but not any other thing.<a id="k60a_20"><sup>20</sup></a>&nbsp; It was therefore indicated to us [that this is not so].
</p><p>
	R. Samuel b. Nahmani stated<a id="k60a_21"><sup>21</sup></a>&nbsp; that R. Johanan said: Calamity comes upon the world only when there are wicked persons in the world, and it always begins with the righteous, as it says: If fire break out and catch in thorns.<a id="k60a_22"><sup>22</sup></a>&nbsp; When does fire break out? Only when thorns are found nearby. It always begins, however, with the righteous, as it says: so that the stack of corn was consumed:<a id="k60a_23"><sup>23</sup></a>&nbsp; It does not say 'and it would consume the stack of corn', but 'that the stack of corn was consumed' which means that the 'stack of corn' had already been consumed.
</p><p>
	R. Joseph learnt: What is the meaning of the verse, And none of you shall go out at the door of his house until the morning?<a id="k60a_24"><sup>24</sup></a>&nbsp; Once permission has been granted to the Destroyer, he does not distinguish between righteous and wicked. Moreover, he even begins with the righteous at the very outset, as it says:<a id="k60a_25"><sup>25</sup></a>&nbsp; <I>And I will cut off from thee the righteous and the wicked</I>.<a id="k60a_26"><sup>26</sup></a>&nbsp; R. Joseph wept at this, saying: So much are they<a id="k60a_27"><sup>27</sup></a>&nbsp; compared to nothing!<a id="k60a_28"><sup>28</sup></a>&nbsp; But Abaye [consoling him,] said: This is for their advantage, as it is written, That the righteous is taken away from the evil to come.<a id="k60a_29"><sup>29</sup></a>
</p><p>
	Rab Judah stated that Rab said:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k60b_1:" V. p. 348, n. 9."
,k60b_2:" Isa. XXVI, 20."
,k60b_3:" Deut. XXXII, 25."
,k60b_4:" To keep indoors."
,k60b_5:" Isa. XXVI, 20."
,k60b_6:" The house."
,k60b_7:" Of the Angel of Death."
,k60b_8:" Jer. IX, 20."
,k60b_9:" I.e., migrate to another place; see also B.M. 75b."
,k60b_10:" Gen. XII, 10."
,k60b_11:" II Kings VII, 4."
,k60b_12:" Implied in Gen. XII, 10."
,k60b_13:" II Kings VII, 4."
,k60b_14:" [ [H] Lit., 'House of meeting', the Synagogue. The origin of the term as applied to a synagogue is uncertain. It probably has its source in the assemblies called together for the purpose of considering problems of an economic and social character. These were probably attended with some sort of prayer and out of these evolved the regular meetings for prayers, v. Zeitlin, The Origin of the Synagogue in the Proceedings of the American Academy for Jewish Research, 1930-31, p. 75 ff.]"
,k60b_15:" In the House of Worship."
,k60b_16:" Ex. XXII, 5."
,k60b_17:" Lam. IV, 11."
,k60b_18:" Zech. II, 9."
,k60b_19:" As the expression 'if a fire break out' means 'break out itself without any direct act on the part of man'; cf. <i>supra</i> p. 115."
,k60b_20:" By saying, 'He that kindled a fire', implying that there was some direct act on the part of man to kindle the fire."
,k60b_21:" V. <i>supra</i> p. 115."
,k60b_22:" II Sam. XXIII, 15-16."
,k60b_23:" For as 'water' is homiletically used as a metaphor expressing learning, it was aggadically assumed here that instead of actual water David was in need of some legal instruction, especially since mention was made in the verse of 'the gate' which was then the seat of judgment."
,k60b_24:" As some of his men burned down a stack in which articles were hidden, v. p. 353. n. 6."
,k60b_25:" Who imposes liability."
,k60b_26:" Who maintain exemption."
,k60b_27:" Near the battle-field."
,k60b_28:" As the warriors of David burned the stacks down for strategical purposes and the problem was whether compensation was to be made or not."
,k60b_29:" I.e. compensation should be made."
,k60b_30:" V. Sanh. 20a."
,k60b_31:" V. p. 351, n. 11."
,k60b_32:" The enemy."
,k60b_33:" Ezek. XXXIII, 15."
,k60b_34:" Stacks of barley belonging to Israelites for stacks of lentils that belong to the enemy."
,k60b_35:" II Sam. XXIII, 11."
,k60b_36:" I Chron. XI, 13."
,k60b_37:" I.e., the stacks of barley belonging to the Israelites without repaying them with the lentils of the enemy."
,k60b_38:" In fact the two verses contradict each other."
,k60b_39:" And which had thus also to be burned down."
,k60b_40:" Ibid. 12. This would show that he did not let his warriors burn the stacks as this was not permissible by strict law."
,k60b_41:" Since there was no question there of burning down. "
}

txt:
<p>
A man should always enter [a town] by daytime and leave by daytime, as it say's, <i>And none of you shall go out at the door of his house until the morning</i>.<a id="k60b_1"><sup>1</sup></a>
</p><p>
	Our Rabbis taught: When there is an epidemic in the town keep your feet inside [the house], as it says, <i>And none of you shall go out at the door of his house until the morning</i>,<a id="k60b_1"><sup>1</sup></a>&nbsp; and it further says, <i>Come, my people, enter thou into thy chambers and shut thy doors about thee</i>;<a id="k60b_2"><sup>2</sup></a>&nbsp; and it is again said: <i>The sword without, the terror within shall destroy</i>.<a id="k60b_3"><sup>3</sup></a>&nbsp; Why these further citations? &mdash; Lest you might think that the advice given above<a id="k60b_4"><sup>4</sup></a>&nbsp; refers only to the night, but not to the day. Therefore, come and hear: <i>Come, my people, enter thou into thy chamber, and shut thy doors about thee</i>.<a id="k60b_5"><sup>5</sup></a>&nbsp; And should you say that these apprehensions apply only where there is no terror inside,<a id="k60b_6"><sup>6</sup></a>&nbsp; whereas where there is terror inside<a id="k60b_6"><sup>6</sup></a>&nbsp; it is much better to go out and sit among people in one company, again come and hear: <i>The sword without, the terror within shall destroy</i>,<a id="k60b_3"><sup>3</sup></a>&nbsp; implying that [even where] the terror is <i>'within'</i><a id="k60b_6"><sup>6</sup></a>&nbsp; the <i>'sword'</i><a id="k60b_7"><sup>7</sup></a>&nbsp; will destroy [more] without. In the time of an epidemic Raba used to keep the windows shut, as it is written, <i>For death is come up into our windows</i>.<a id="k60b_8"><sup>8</sup></a>
</p><p>
	Our Rabbis taught: <i>When there is a famine in town, withdraw your feet,<a id="k60b_9"><sup>9</sup></a>&nbsp; as stated, <i>And there was a famine in the land; and Abram went down into Egypt to sojourn there</i>;<a id="k60b_10"><sup>10</sup></a>&nbsp; and it is further said: <i>If we say: We will enter into the city, then the famine is in the city and we shall die there</i>.<a id="k60b_11"><sup>11</sup></a>&nbsp; Why the additional citation? &mdash; Since you might think that this advice<a id="k60b_12"><sup>12</sup></a>&nbsp; applies only where there is no danger to life [in the new settlement], whereas where there is a danger to life [in the new place] this should not be undertaken, come and hear: Now therefore come, and let us fall unto the host of the Arameans; if they save us alive, we shall live.<a id="k60b_13"><sup>13</sup></a>
</p><p>
	Our Rabbis taught: When there is an epidemic in a town, one should not walk in the middle of the road, as the Angel of Death walks then in the middle of the road, for since permission has been granted him, he stalks along openly. But when there is peace in the town, one should not walk at the sides of the road, for since [the Angel of Death] has no permission he slinks along in hiding.
</p><p>
	Our Rabbis taught: When there is an epidemic in a town nobody should enter the House of Worship<a id="k60b_14"><sup>14</sup></a>&nbsp; alone, as the Angel of Death keeps there his implements. This, however, is the case only where no pupils are being taught there<a id="k60b_15"><sup>15</sup></a>&nbsp; or where ten [males] do not pray there [together].
</p><p>
	Our Rabbis taught: When dogs howl, [this is a sign that] the Angel of Death has come to a town. But when dogs frolic, [this is a sign that] Elijah the prophet has come to a town. This is so, however, only if there is no female among them.
</p><p>
	When R. Ammi and R. Assi were sitting before R. Isaac the Smith, one of them said to him: 'Will the Master please tell us some legal points?' while the other said: 'Will the Master please give us some homiletical instruction?' When he commenced a homiletical discourse he was prevented by the one, and when he commenced a legal discourse he was prevented by the other. He therefore said to them: I will tell you a parable: To what is this like? To a man who has had two wives, one young and one old. The young one used to pluck out his white hair, whereas the old one used to pluck out his black hair. He thus finally remained bald on both sides. He further said to them: I will accordingly tell you something which will be equally interesting to both of you:<a id="k60b_16"><sup>16</sup></a>&nbsp; <i>If fire break out and catch in thorns; 'break out'</i> implies 'of itself'. <i>He that kindled the fire shall surely make restitution</i>. The Holy One, blessed be He, said: It is incumbent upon me to make restitution for the fire which I kindled. It was I who kindled a fire in Zion as it says, <i>And He hath kindled a fire in Zion which hath devoured the foundations thereof,</i><a id="k60b_17"><sup>17</sup></a>&nbsp; and it is I who will one day build it anew by fire, as it says, <i>For I, [saith the Lord] will be unto her a wall of fire round about, and I will be the glory in the midst of her</i>.<a id="k60b_18"><sup>18</sup></a>&nbsp; On the legal side, the verse commences with damage done by chattel,<a id="k60b_19"><sup>19</sup></a>&nbsp; and concludes with damage done by the person,<a id="k60b_20"><sup>20</sup></a>&nbsp; [in order] to show that Fire implies also human agency.<a id="k60b_21"><sup>21</sup></a>
</p><p>
	Scripture says:<a id="k60b_22"><sup>22</sup></a>&nbsp; <i>And David longed, and said, Oh that one would give me water to drink of the well of Bethlehem, which is by the gate. And the three mighty men broke through the host of the Philistines and drew water out of the well of Bethlehem that was by the gate</i> etc. What was his difficulty?<a id="k60b_23"><sup>23</sup></a>&nbsp; &mdash; Raba stated that R. Nahman had said: His difficulty was regarding concealed articles damaged by fire<a id="k60b_24"><sup>24</sup></a>&nbsp; &mdash; whether the right ruling was that of R. Judah<a id="k60b_25"><sup>25</sup></a>&nbsp; or of the Rabbis;<a id="k60b_26"><sup>26</sup></a>&nbsp; and they gave him the solution, whatever it was. R. Huna, however, said: [The problem was this:] There were there<a id="k60b_27"><sup>27</sup></a>&nbsp; stacks of barley which belonged to Israelites but in which Philistines had hidden themselves, and what he asked was whether it was permissible to rescue oneself through the destruction of another's property.<a id="k60b_28"><sup>28</sup></a>&nbsp; The answer they despatched to him was: [Generally speaking] it is forbidden to rescue oneself through the destruction of another's property<a id="k60b_29"><sup>29</sup></a>&nbsp; you however are King and a king may break [through fields belonging to private persons] to make a way [for his army], and nobody is entitled to prevent him [from doing so].<a id="k60b_30"><sup>30</sup></a>&nbsp; But [some] Rabbis, or, as [also] read, Rabbah b. Mari, said: There were there<a id="k60b_31"><sup>31</sup></a>&nbsp; [both] stacks of barley belonging to Israelites and stacks of lentils belonging to the Philistines.<a id="k60b_32"><sup>32</sup></a>&nbsp; The problem on which instruction was needed was whether it would be permissible to take the stacks of barley that belonged to the Israelites and put them before the beasts [in the battle field], on condition of [subsequently] paying for them with the stacks of lentils that belonged to the Philistines. [The reply] they despatched to him [was]: <I>If the wicked restore the pledge, give again the robbery</I>,<a id="k60b_33"><sup>33</sup></a>&nbsp; [implying that] even where the robber [subsequently] pays for the '<I>robbery</I>', he still remains '<I>wicked</I>'. You, however, are King and a king may break through [fields of private owners] making thus a way [for his army], and nobody is entitled to prevent him [from doing so]. If we accept the view that he wanted to exchange,<a id="k60b_34"><sup>34</sup></a>&nbsp; we can quite understand how in one verse it is written, <I>Where was a plot of ground full of lentils</I>,<a id="k60b_35"><sup>35</sup></a>&nbsp; and in another verse it is written,<I> Where was a plot of ground full of barley</I>.<a id="k60b_36"><sup>36</sup></a>&nbsp; If we, however, take the view that he wanted to burn them<a id="k60b_37"><sup>37</sup></a>&nbsp; down, what need was there to have these two verses?<a id="k60b_38"><sup>38</sup></a>&nbsp; &mdash; He, however, might say to you that there were also there stacks of lentils which belonged to Israelites and in which Philistines were hidden.<a id="k60b_39"><sup>39</sup></a>&nbsp; Now on the view that he wanted to burn them<a id="k60b_37"><sup>37</sup></a>&nbsp; down, we can quite understand why it is written,<I> But he stood in the midst of the ground, and defended it</I>.<a id="k60b_40"><sup>40</sup></a>&nbsp; But according to the view that he wanted to exchange, what would be the meaning of <I>and he defended it?</I><a id="k60b_41"><sup>41</sup></a>&nbsp; &mdash; That he did not allow them to exchange. According to [these] two views, we can quite understand why there are two verses.
</P>


lvr: 41
dfh: a
notes:
 ntes={k61a_1:" I.e. the whole description of the barley and lentils."
,k61a_2:" I.e., either to burn the stacks down or to exchange those of Israelites for those of the enemy."
,k61a_3:" II Sam. XXIII, 16."
,k61a_4:" In the case of an ordinary man."
,k61a_5:" I.e., 'to avail myself of the royal prerogative in this respect.'"
,k61a_6:" [And the question was whether those of his men who had burnt the stack were to be made to pay for the hidden goods, cf. Tosaf. and Maharsha, [H]]."
,k61a_7:" [That the matter did not directly affect him.]"
,k61a_8:" Why then did he not accept it?"
,k61a_9:" [The names of those who volunteered to break through the enemy's lines (v. II Sam. XXIII, 16) in order to bring him a decision.]"
,k61a_10:" And did not take advantage of his privileged position as king."
,k61a_11:" [And not in 'their names'.]"
,k61a_12:" Sixteen cubits wide."
,k61a_13:" As this could not have been expected; it is thus considered a mere accident."
,k61a_14:" Including a fence of the height of four cubits."
,k61a_15:" But not including a fence of the height of four cubits. It thus follows that there is no contradiction between the two statements as where the fence was of the height of four cubits there will be exemption according to all views."
,k61a_16:" Of exemption in the case of a fire crossing a public road."
,k61a_17:" I.e., two thousand cubits; v. <a href=\"../tglossary.html\">Glos.</a>"
,k61a_18:" V. next Mishnah."
,k61a_19:" On account of its great width."
,k61a_20:" I.e., to leaving the corners of each separate field for the poor; see <i>supra</i> p. 148 and <a href=\"../tglossary.html\">Glos.</a>"
,k61a_21:" <i>Pe'ah</i> II, 1; cf. also B.B. 55a."
,k61a_22:" As the term 'shalal' also denotes 'to gather'; cf. Bez. 7a."
,k61a_23:" As shalal means 'spoil'; cf. Num. XXXI, 11."
,k61a_24:" As this is of a more permanent nature. "
}

txt:
<p>
But according to the view that his inquiry concerned concealed goods in the case of Fire, what need was there for the verses?<a id="k61a_1"><sup>1</sup></a>&nbsp; &mdash; He might say to you that besides [the problem of] hidden goods [in the case of Fire], one of the other problems [referred to above]<a id="k61a_2"><sup>2</sup></a>&nbsp; was asked by him. Now according to the [other] two views we quite understand why it is written, <I>But he would not drink thereof</I>,<a id="k61a_3"><sup>3</sup></a>&nbsp; for he said, 'Since there is a [general] prohibition<a id="k61a_4"><sup>4</sup></a>&nbsp; I do not want it.'<a id="k61a_5"><sup>5</sup></a>&nbsp; But according to the view that his inquiry concerned hidden goods<a id="k61a_6"><sup>6</sup></a>&nbsp; in the case of Fire, was it not a traditional teaching which was despatched to him, [and that being so,]<a id="k61a_7"><sup>7</sup></a>&nbsp; what would be the meaning of '<I>But he would not drink thereof'?</I><a id="k61a_8"><sup>8</sup></a>&nbsp; &mdash; [The meaning would be] that he did not want to quote this teaching in their names,<a id="k61a_9"><sup>9</sup></a>&nbsp; for he said: 'This has been transmitted to me from the Court of Law presided over by Samuel of Ramah, that no halachic matter may be quoted in the name of one who surrenders himself to meet death for words of the Torah.'
</p><p>
	<I>But he poured it out unto the Lord</I>.<a id="k61a_3"><sup>3</sup></a>&nbsp; We quite understand this according to the [other] two views, as he acted thus for the sake of Heaven.<a id="k61a_10"><sup>10</sup></a>&nbsp; But according to the view that [his inquiry concerned] hidden goods in the case of Fire, what would be the meaning [of this verse], '<I>but he poured it out unto the Lord'?</I> &mdash; That he repeated this [halachic statement] in the name of general traditional learning.<a id="k61a_11"><sup>11</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF IT CROSSED A FENCE FOUR CUBITS HIGH OR A PUBLIC ROAD<a id="k61a_12"><sup>12</sup></a>&nbsp; OR A CANAL, THERE WOULD BE NO LIABILITY.<a id="k61a_13"><sup>13</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. But was it not taught: 'If it crossed a fence four cubits high there would [still] be liability'? &mdash; R. Papa thereupon said: The Tanna of our ruling [here] was reckoning downwards; [at the height of] six cubits there would be exemption; at five cubits, there would be exemption; down to [the height of] four cubits<a id="k61a_14"><sup>14</sup></a>&nbsp; there would [still] be exemption. The Tanna of the Baraitha [was on the other hand] reckoning upwards; at [the height of] two cubits, there would be liability; of three cubits,<a id="k61a_15"><sup>15</sup></a>&nbsp; there would be liability; up to [the height of] four cubits, there would [still] be liability.
</p><p>
	Raba said: [The height of] four cubits stated [in the Mishnah] as not involving liability would also suffice even where the fire passed over to a field of thorns. R. Papa, however, said: [The height of] four cubits should be calculated from the top of the thorns.
</p><p>
	Rab said: The Mishnaic ruling applies only where the fire was rising in a column, but where it was creeping along there would be liability, even if it crossed a public road of about [the width of] a hundred cubits. Samuel [on the other hand] said that the Mishnah deals with a creeping fire; for in the case of a fire rising in a column there would be exemption if it crossed a public road of any width whatsoever. It was, however, taught in accordance with Rab: This ruling<a id="k61a_16"><sup>16</sup></a>&nbsp; applies only where it was rising in a column; if it was creeping along, and wood happened to be in its path, there would be liability were it even to pass over a public ground of about the width of a hundred <i>mil</i>.<a id="k61a_17"><sup>17</sup></a>&nbsp; If, however, it crossed a river or pool eight cubits wide, there would be exemption.
</p><p>
	A PUBLIC ROAD. Who was the Tanna [who laid this down]? &mdash; Raba said: He was R. Eliezer, as we have indeed learnt: 'R. Eliezer says: [If it was] sixteen cubits [wide] like the road in a public thoroughfare, [there would be exemption].<a id="k61a_18"><sup>18</sup></a>
</p><p>
	OR A CANAL. Rab said: It means an actual river. Samuel, however, said: It means a pond for watering fields. The one who says it is an actual river [would maintain the same ruling<a id="k61a_19"><sup>19</sup></a>] even where there was no water there.<a id="k61a_19"><sup>19</sup></a>&nbsp; But the one who says it means a pond for watering fields [would hold that] so long as there was water there the ruling would apply, but not where no water was there.
</p><p>
	Elsewhere we have learnt: 'Divisions [of fields] with respect to <i>Pe'ah</i><a id="k61a_20"><sup>20</sup></a>&nbsp; are effected by the following: a brook, a <i>shelulith</i>, a private road and a public road.<a id="k61a_21"><sup>21</sup></a>&nbsp; What is shelulith? &mdash; Rab Judah stated that Samuel had said: A [low lying] place where rainwater collects.<a id="k61a_22"><sup>22</sup></a>&nbsp; R. Bibi, however, said on behalf of R. Johanan: A pond of water which [as it were] distributes spoil<a id="k61a_23"><sup>23</sup></a>&nbsp; to the banks. The one who says that it means a [low-lying] place where rain water collects would certainly apply the ruling to a pond of water,<a id="k61a_24"><sup>24</sup></a>&nbsp; but the one who says that it means a pond of water would on the other hand maintain that [low-lying] places where rain-water collects would not cause a division, as these
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k61b_1:" And should therefore not cause the fields to be considered separated from one another."
,k61b_2:" V. <a href=\"../tglossary.html\">Glos.</a>"
,k61b_3:" As fire when rising in columns could not be expected to pass on to further distances."
,k61b_4:" B. Hyrcanus."
,k61b_5:" V. p. 355, n. 10."
,k61b_6:" Ex. XXII, 5."
,k61b_7:" [Assuming that what R. Simeon means is that it all depends on the damage caused by the fire irrespective of the distance.]"
,k61b_8:" I.e., the neighbours have the right to prevent him from doing so."
,k61b_9:" B.B. II, 2."
,k61b_10:" But each case should be considered in accordance with its own circumstances."
,k61b_11:" [Only of this our Mishnah, but not of B.B. (Rashal).]"
,k61b_12:" For the goat and for the barn, but no liability whatever for the slave, for, since he was loose, he should have escaped."
,k61b_13:" For the goat and even for the barn, for since the slave was chained a capital charge is involved, and all civil liabilities merge in capital charges; v. <i>supra</i> p. 113 and p. 192."
,k61b_14:" Who ordains payment even for concealed articles."
,k61b_15:" The law about hidden goods could therefore not be applicable in this case."
,k61b_16:" Between the Sages and R. Judah"
,k61b_17:" I.e., something hidden; v. <a href=\"../tglossary.html\">Glos.</a>"
,k61b_18:" The Sages."
,k61b_19:" For the act of trespass."
,k61b_20:" Even for utensils which are customarily kept in stacks."
,k61b_21:" For which payment will be made. "
}

txt:
<p>
should more properly be called the receptacles of the land.<a id="k61b_1"><sup>1</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN KINDLES A FIRE ON HIS OWN [PREMISES], UP TO WHAT DISTANCE CAN THE FIRE PASS ON [BEFORE HE BECOMES FREE OF LIABILITY]? R. ELEAZAR B. AZARIAH SAYS: IT HAS TO BE REGARDED AS BEING IN THE CENTRE OF AN AREA REQUIRING A <I>KOR</I><a id="k61b_2"><sup>2</sup></a>&nbsp; OF SEED.<a id="k61b_3"><sup>3</sup></a>&nbsp; R. ELIEZER<a id="k61b_4"><sup>4</sup></a>&nbsp; SAYS: [A DISTANCE OF] SIXTEEN CUBITS [SUFFICES], EQUAL TO [THE WIDTH OF] A ROAD IN A PUBLIC THOROUGHFARE.<a id="k61b_5"><sup>5</sup></a>&nbsp; R. AKIBA SAYS FIFTY CUBITS. R. SIMEON SAYS: [SCRIPTURE SAYS] HE WHO KINDLED THE FIRE SHOULD MAKE RESTITUTION,<a id="k61b_6"><sup>6</sup></a>&nbsp; [WHICH SHOWS THAT] ALL DEPENDS UPON THE FIRE.
</p><p>
	<B><I>GEMARA</I></B>. Did R. Simeon not hold that there is some fixed limit in the case of Fire?<a id="k61b_7"><sup>7</sup></a>&nbsp; Have we not learnt: 'No man shall fix<a id="k61b_8"><sup>8</sup></a>&nbsp; an oven on a ground floor unless there is a space of four cubits from the top of it [to the ceiling]. If he fixes it on an upper floor [he may not do so]<a id="k61b_8"><sup>8</sup></a>&nbsp; unless there will be under it three handbreadths of cement; in the case, however, of a portable stove, one handbreadth will suffice. If [after all these precautions] damage has nevertheless resulted, payment must be made for the damage. R. Simeon says that these limits were only to intimate that if damage resulted [after they were observed] there should be exemption.<a id="k61b_9"><sup>9</sup></a>&nbsp; [Does this not prove that R. Simeon maintained a minimum limit of precaution?] &mdash; R. Nahman therefore stated that Rabbah b. Abbahu said: [The meaning of R. Simeon's phrase 'all thus depends upon the fire' is that] all should depend upon the height of the fire, [and that no general limits could be fixed].<a id="k61b_10"><sup>10</sup></a>&nbsp; R. Joseph, [however,] stated that Rab Judah said on behalf of Samuel: The <i>halachah</i> is in accordance with R. Simeon.<a id="k61b_11"><sup>11</sup></a>&nbsp; So also said R. Nahman, that Samuel said that the <i>halachah</i> was in accordance with R. Simeon.<a id="k61b_11"><sup>11</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN SETS FIRE TO A STACK OF CORN IN WHICH THERE HAPPEN TO BE ARTICLES AND THESE ARE BURNT, R. JUDAH SAYS THAT PAYMENT SHOULD BE MADE FOR ALL THAT WAS THEREIN, WHEREAS THE SAGES SAY THAT NO PAYMENT SHOULD BE MADE EXCEPT FOR A STACK OF WHEAT OR FOR A STACK OF BARLEY. [WHERE FIRE WAS SET TO A BARN TO WHICH] A GOAT HAD BEEN FASTENED AND NEAR WHICH WAS A SLAVE [LOOSE] AND ALL WERE BURNT WITH THE BARN, THERE WOULD BE LIABILITY.<a id="k61b_12"><sup>12</sup></a>&nbsp; IF, HOWEVER, THE SLAVE HAD BEEN CHAINED TO IT, AND THE GOAT WAS LOOSE NEAR BY IT, AND ALL WERE BURNT WITH IT, THERE WOULD BE EXEMPTION.<a id="k61b_13"><sup>13</sup></a>&nbsp; THE SAGES, HOWEVER, AGREE WITH R. JUDAH<a id="k61b_14"><sup>14</sup></a>&nbsp; IN THE CASE OF ONE WHO SET FIRE TO A CASTLE THAT THE PAYMENT SHOULD BE FOR ALL THAT WAS KEPT THEREIN, AS IT IS SURELY THE CUSTOM OF MEN TO KEEP [VALUABLES] IN [THEIR] HOMES.<a id="k61b_15"><sup>15</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. R. Kahana said: The difference [of opinion]<a id="k61b_16"><sup>16</sup></a>&nbsp; was only where the man kindled the fire on his own [premises], from which it passed on and consumed [the stack standing] in his neighbour's premises, R. Judah imposing liability for damage done to Tamun<a id="k61b_17"><sup>17</sup></a>&nbsp; in the case of Fire whereas, the Rabbis<a id="k61b_18"><sup>18</sup></a>&nbsp; grant exemption. But if he kindled the fire on the premises of his neighbour, both agreed that he would have to pay for all that was there.<a id="k61b_19"><sup>19</sup></a>&nbsp; Said Raba to him: 'If so, why does it say in the concluding clause, THE SAGES, HOWEVER, AGREE WITH R. JUDAH IN THE CASE OF ONE WHO SET FIRE TO A CASTLE THAT THE PAYMENT SHOULD BE FOR ALL THAT WAS KEPT THEREIN'? Now why not draw the distinction in the same case by making the text run thus: These statements apply only in the case where be kindled the fire on his own [premises], whence it travelled and consumed [the stacks standing] in his neighbour's premises; but where he kindled the fire in the premises of his neighbour, all would agree that he should pay for all that was kept there? &mdash; Raba therefore said: They differed in both cases. They differed where he kindled the fire in his own [premises] whence it travelled and consumed [stacks standing] in his neighbour's premises, R. Judah imposing liability to pay for Tamun in the case of Fire, whereas the [other] Rabbis hold that he is not liable [to pay for <i>Tamun</i> in the case of Fire].<a id="k61b_20"><sup>20</sup></a>&nbsp; They also differed in the case where he kindled a fire in the premises of his neighbour, R. Judah holding that he should pay for everything that was there, including even purses [of money], whereas the Rabbis held that it was only for utensils which were usually put away in the stacks, stich as e.g. threshing sledges and cattle harnesses that payment would have to be made, but for articles not usually kept in stacks no payment would have to be made.
</p><p>
	Our Rabbis taught: If a man set fire to a stack of corn in which there were utensils and they were burnt, R. Judah says that payment should be made for all that was stored there, whereas the Sages say that no payment should be made except for a stack of wheat or for a stack of barley, and that the space occupied by the utensils has to be considered as if it was full of corn.<a id="k61b_21"><sup>21</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k63a_1:" [MS.M. omits 'in a&nbsp;&hellip; specification'.]"
,k63a_2:" V. <i>infra</i> 64b."
,k63a_3:" Regarding objects possessing life."
,k63a_4:" As was the case with ox."
,k63a_5:" Such as an ass, horse, camel and the like."
,k63a_6:" Which would include also animals not eligible to be sacrificed upon the altar."
,k63a_7:" As is the case with ass; cf. Ex. XIII, 13."
,k63a_8:" Such as horses and camels and the like."
,k63a_9:" Deut. XIV, 11."
,k63a_10:" Cf. Hul. 100b."
,k63a_11:" I.e., a living creature which lost its life not through the prescribed method of ritual slaughter; cf. <a href=\"../tglossary.html\">Glos.</a>"
,k63a_12:" Enumerated in Lev. XI, 13-20 and Deut. XIV, 12-19."
,k63a_13:" Cf. Hul. <i>loc. cit</i>."
,k63a_14:" I.e., the term 'all' does more than generalise, for it includes everything, v. <i>supra</i> p. 317. n. 7."
,k63a_15:" Deut. XIV, 26."
,k63a_16:" Such as wine from grapes."
,k63a_17:" Which characterises also cattle."
,k63a_18:" Excluding water, salt and mushrooms."
,k63a_19:" Thus excluding fishes. V. <i>supra</i> p. 317."
,k63a_20:" Which would have included all kinds of food and drink."
,k63a_21:" V. p. 318, n. 2."
,k63a_22:" Ex. XXII, 6."
,k63a_23:" In Ex. XXII, 6."
,k63a_24:" [That is, with reference to the double payment, whereas the generalisation in the preceding verse refers to the oath (v. Shebu. 43a)]."
,k63a_25:" V. p. 366, n. 3."
,k63a_26:" Ox, ass, sheep or raiment."
,k63a_27:" According to Rashi it means that which has no distinguishing mark, but according to Tosaf, that which is not defined by measure, weight or number; see also Shebu. 42b and B.M. 47a."
,k63a_28:" <i>Supra</i> 57a. "
}

txt:
<p>
as each item in a generalisation and specification<a id="k63a_1"><sup>1</sup></a>&nbsp; is expounded by itself,<a id="k63a_2"><sup>2</sup></a>&nbsp; so that birds would not be included? &mdash; If so, the Divine Law should have inserted only one item in the specification.<a id="k63a_3"><sup>3</sup></a>&nbsp; But which item should the Divine Law have inserted? For were the Divine Law to have inserted only '<i>ox'</i> I might have suggested that an animal which was eligible to be sacrificed upon the altar<a id="k63a_4"><sup>4</sup></a>&nbsp; should be included, but one which was not eligible to be sacrificed upon the altar<a id="k63a_5"><sup>5</sup></a>&nbsp; should not be included. If on the other hand the Divine Law had inserted only '<i>ass'</i><a id="k63a_6"><sup>6</sup></a>&nbsp; I might have thought that an animal which is subject to the sanctity of first birth<a id="k63a_7"><sup>7</sup></a>&nbsp; should be included but that one which is not subject to the sanctity of first birth<a id="k63a_8"><sup>8</sup></a>&nbsp; should not be included. [Why then still not exclude birds whose carcasses would, unlike those of the ox and the ass, defile neither by touching nor by carrying?] &mdash; It may still be said that if so, the Divine Law would have inserted '<i>ox'</i> and <i>'ass'</i>. Why then was <i>'sheep'</i> inserted, unless to indicate the inclusion of birds [which would otherwise have been excluded]? But still why not say that you can [only] include birds which are [ritually] clean<a id="k63a_9"><sup>9</sup></a>&nbsp; for food, as these in some way resemble sheep in that they defile the garments worn by him who swallows them<a id="k63a_10"><sup>10</sup></a>&nbsp; [after they have become <i>nebelah</i>],<a id="k63a_11"><sup>11</sup></a>&nbsp; whereas birds [ritually] unclean for food<a id="k63a_12"><sup>12</sup></a>&nbsp; which carry no defilement and do not cause the defilement of garments worn by him who swallows them<a id="k63a_13"><sup>13</sup></a>&nbsp; should not be included? &mdash; [The term] 'all' is an amplification.<a id="k63a_14"><sup>14</sup></a>&nbsp; [Does this mean to say that] whenever the Divine Law uses [the word] 'all' it is an amplification? What about tithes, where 'all' occurs and we nevertheless expounded it as a case of generalisation and specification? For it was taught: <i>And thou shalt bestow that money for all that thy soul lusteth after</i><a id="k63a_15"><sup>15</sup></a>&nbsp; is a generalisation; <i>for oxen, or for sheep, or for wine, or for strong drink</i> is a specification; <i>or for all that thy soul desireth</i> is again a generalisation. Now, where a generalisation precedes a specification which is in its turn followed by another generalisation, you include only that which is similar to the specification. As then the specification [here] mentions produce obtained from produce<a id="k63a_16"><sup>16</sup></a>&nbsp; which springs from the soil<a id="k63a_17"><sup>17</sup></a>&nbsp; there may also be included all kinds of produce obtained from produce<a id="k63a_18"><sup>18</sup></a>&nbsp; which springs from the soil.<a id="k63a_19"><sup>19</sup></a>&nbsp; [Does this not prove that the expression '<i>all'</i> was taken as a generalisation, and not as an amplification?]<a id="k63a_20"><sup>20</sup></a>&nbsp; &mdash; It may, however, be said that [the expression] '<i>for all'</i><a id="k63a_15"><sup>15</sup></a>&nbsp; is only a generalisation, whereas '<i>all'</i> would be an amplification.<a id="k63a_21"><sup>21</sup></a>&nbsp; Or if you wish I may say that [the term] 'all' is also a generalisation, but in this case 'all' is an amplification. For at the very outset we find here a generalisation preceding a specification followed in its turn by another generalisation, as it is written: <i>If a man deliver unto his neighbour</i>,<a id="k63a_22"><sup>22</sup></a>&nbsp; which is a generalisation, <i>money or stuff</i> which is a specification, <i>to keep</i> which generalises again. Should you assume that this verse <i>for any matter of trespass</i> etc. was similarly inserted in order to give us a generalisation preceding a specification followed in its turn by another generalisation, why did the Divine Law not insert these items of the specification [of the latter verse] along with the items of the former generalisation, specification and generalisation?<a id="k63a_23"><sup>23</sup></a>&nbsp; Why was the verse <i>for any matter of trespass</i> inserted at all, unless to prove that [this <i>'all'</i>] was meant as an amplification?<a id="k63a_24"><sup>24</sup></a>&nbsp; But now that you have decided that the term '<i>all'</i> is an amplification,<a id="k63a_25"><sup>25</sup></a>&nbsp; why do I need all these terms of the specification?<a id="k63a_26"><sup>26</sup></a>&nbsp; &mdash; One to exclude real estate, a second to exclude slaves and the third to exclude bills; '<i>raiment'</i> to exclude articles which have no specification;<a id="k63a_27"><sup>27</sup></a>&nbsp; '<i>or for any manner of lost thing'</i> was meant as a basis for the view of R. Hiyya b. Abbah, as R. Hiyya b. Abba reported<a id="k63a_28"><sup>28</sup></a>&nbsp; that R. Johanan said:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k63b_1:" I.e., an article found by him and which he has to return to its owner."
,k63b_2:" If he took an oath to substantiate his false plea."
,k63b_3:" Ex. XXII, 8."
,k63b_4:" Shebu. VIII, 3."
,k63b_5:" Which amounts to an oath; cf. Shebu. 29b."
,k63b_6:" But not double payment, as he did not allege theft."
,k63b_7:" In accordance with Lev. V, 21-25."
,k63b_8:" As by advancing the false plea of theft and substantiating it by an oath he became subject to the law applicable to theft."
,k63b_9:" Ex. XXII, 6."
,k63b_10:" I.e., unpaid."
,k63b_11:" The clause therefore means this: if he (the bailee) be found to have been the thief, he should pay double."
,k63b_12:" Whereas the bailee would never have to pay double."
,k63b_13:" Ex. XXII, 7."
,k63b_14:" Which should be construed thus: If it be not found as the bailee pleaded that it was stolen by a thief but that he himself was the thief etc."
,k63b_15:" V. the discussion later."
,k63b_16:" Who was found to have stolen the deposit, in which case the unpaid bailee is quit and the thief pays double."
,k63b_17:" The bailee."
,k63b_18:" That he became dispossessed of it by the thief."
,k63b_19:" And be ordered to pay."
,k63b_20:" Ibid. 10."
,k63b_21:" For the text runs: <I>The oath of the Lord be between them both to see whether he hath not put his hands unto his neighbour's goods.</I>"
,k63b_22:" I.e., the second Baraitha."
,k63b_23:" Ex. XXII, 6."
,k63b_24:" Ex. XXII, 7."
,k63b_25:" I.e., the first Baraitha."
,k63b_26:" Presenting the same law."
,k63b_27:" Thus pointing out that the liability for double payment is only where it was the plea of theft that was proved to have been false."
,k63b_28:" <i>Supra</i> p. 364."
,k63b_29:" To be subject to the law of double payment which may lead on to a liability of four-fold or five-fold payment."
,k63b_30:" [H] <i>infra</i> 106b."
,k63b_31:" For misappropriating either an animate or inanimate object."
,k63b_32:" I.e., the principle of Dayyo, v. <i>supra</i> p. 126."
,k63b_33:" In the case of the bailee falsely pleading theft."
,k63b_34:" In the case of the thief himself."
,k63b_35:" In Ex. XXII, 3."
,k63b_36:" I.e., ox."
,k63b_37:" Which is similarly eligible to be sacrificed upon the altar. "
}

txt:
<p>
He who falsely alleges the theft [to account for the non-production] of a find,<a id="k63b_1"><sup>1</sup></a>&nbsp; may have to make double payment,<a id="k63b_2"><sup>2</sup></a>&nbsp; as it says, <i>'for any manner of lost thing whereof one saith</i>&nbsp;&hellip;'<a id="k63b_3"><sup>3</sup></a>
</p><p>
	We have learnt elsewhere:<a id="k63b_4"><sup>4</sup></a>&nbsp; [If a man says to another] 'Where is my deposit?', and the bailee says 'It was lost', whereupon [the depositor says], 'I call upon you to swear' and the bailee says, 'So be it',<a id="k63b_5"><sup>5</sup></a>&nbsp; if witnesses testify against him that he himself had consumed it, he has to pay [only] the principal,<a id="k63b_6"><sup>6</sup></a>&nbsp; but if he admits [this] of himself, he has to pay the principal together with a fifth and a trespass offering.<a id="k63b_7"><sup>7</sup></a>&nbsp; [If the depositor says] 'Where is my deposit?', and the bailee answers 'It was stolen!', [whereupon the depositor says] 'I call on you to swear', and the bailee says, 'So be it',<a id="k63b_5"><sup>5</sup></a>&nbsp; if witnesses testify against him that he himself had stolen it, he has to make double payment,<a id="k63b_8"><sup>8</sup></a>&nbsp; but if he admits [this] on his own accord, he has to pay the principal together with a fifth and a trespass offering.<a id="k63b_7"><sup>7</sup></a>&nbsp; It is thus stated here that it is only where the bailee falsely alleges theft that he has to make double payment, whereas if he falsely alleges loss, he has not to make double payment. Again, even where he falsely alleges theft it is only where [he confirms the allegation] by an oath that he has to make double payment, whereas where no oath [follows] he has not to make double payment. What is the Scriptural authority for all this? &mdash; As the Rabbis taught: If the thief be found;<a id="k63b_9"><sup>9</sup></a>&nbsp; this verse deals with a bailee<a id="k63b_10"><sup>10</sup></a>&nbsp; who falsely alleges theft.<a id="k63b_11"><sup>11</sup></a>&nbsp; Or perhaps not so, but with the thief himself?<a id="k63b_12"><sup>12</sup></a>&nbsp; &mdash; As, however, it is further stated, If the thief be not found,<a id="k63b_13"><sup>13</sup></a>&nbsp; we must conclude that the [whole] verse<a id="k63b_14"><sup>14</sup></a>&nbsp; deals with a bailee falsely advancing a plea of theft.<a id="k63b_15"><sup>15</sup></a>
</p><p>
	Another [Baraitha] teaches: If the thief be found: this verse deals with the thief himself.<a id="k63b_16"><sup>16</sup></a>&nbsp; You say that it deals with the thief himself. Why, however, not say that it is not so, but that it deals with a bailee falsely alleging theft? &mdash; When it further states, If the thief be not found this gives us the case of a bailee falsely alleging theft, How then can I explain [the verse] If the thief be found unless on the supposition that this deals with the thief himself!<a id="k63b_16"><sup>16</sup></a>&nbsp; We see at any rate that all agree that [the verse] If the thief be not found deals with a bailee falsely alleging theft. But how is this implied [in the wording of the text]? &mdash; Raba said: [We understand the verse to say that] if it will not be found as he<a id="k63b_17"><sup>17</sup></a>&nbsp; stated<a id="k63b_18"><sup>18</sup></a>&nbsp; but that he himself had stolen it, he has to pay double. But whence can we conclude that this is so only in the case of an oath [having been falsely taken by the bailee]? &mdash; As it was taught: The master of the house shall come near unto the judges<a id="k63b_13"><sup>13</sup></a>&nbsp; to take an oath. You say to take an oath. Why not say, however, that this is not so, but to stand his trial?<a id="k63b_19"><sup>19</sup></a>&nbsp; &mdash; The words 'put his hand unto his neighbour's goods' occur in a subsequent section<a id="k63b_20"><sup>20</sup></a>&nbsp; and the words 'put his hand unto his neighbour's goods' occur in this section<a id="k63b_13"><sup>13</sup></a>&nbsp; which precedes the other one; just as there<a id="k63b_20"><sup>20</sup></a>&nbsp; it is associated with an oath,<a id="k63b_21"><sup>21</sup></a>&nbsp; so here also it should be associated with an oath. Now on the supposition<a id="k63b_22"><sup>22</sup></a>&nbsp; that one verse deals<a id="k63b_23"><sup>23</sup></a>&nbsp; with a thief and the other<a id="k63b_24"><sup>24</sup></a>&nbsp; with [a bailee falsely] alleging theft we quite understand why there are two verses; but on the supposition<a id="k63b_25"><sup>25</sup></a>&nbsp; that both of them deal with a bailee falsely alleging theft, why do I want two verses?<a id="k63b_26"><sup>26</sup></a>&nbsp; &mdash; It may be replied that one is to exclude the case of a false allegation of loss [from entailing double payment]. Now on the supposition<a id="k63b_22"><sup>22</sup></a>&nbsp; that one verse deals with a thief and the other with [a bailee falsely] alleging theft, in which case there will be no superfluous verse [in the text] whence can we derive the exclusion of a false allegation of loss [from entailing double payment]? &mdash; From [the definite article; as instead of] 'thief' [it is written] 'the thief'.<a id="k63b_27"><sup>27</sup></a>&nbsp; On the supposition<a id="k63b_25"><sup>25</sup></a>&nbsp; that both of the verses deal with [a bailee falsely] alleging theft, in which case Scripture excludes a bailee falsely alleging loss, how could [the fact that instead of] 'thief' [it is written] 'the thief' be expounded? &mdash; He might say to you that it furnishes a basis for the view of R. Hiyya b. Abba reported in the name of R. Johanan, as R. Hiyya b. Abba stated<a id="k63b_28"><sup>28</sup></a>&nbsp; that R. Johanan said that he who falsely alleges theft in the case of a deposit would have to make double payment, and so also if he slaughtered or sold it he would have to make fourfold or five-fold payment. But on the supposition<a id="k63b_22"><sup>22</sup></a>&nbsp; that one verse deals with a thief and the other with [a bailee falsely] alleging theft, and that [the fact that instead of] 'thief', '<I>the thief'</I> [is written] has been used to exclude a false allegation of loss [from entailing double payment], whence could be derived the view of R. Hiyya b. Abba?<a id="k63b_28"><sup>28</sup></a>&nbsp; &mdash; He might say to you: A thief and a bailee falsely alleging theft are made analogous to one another in Scripture,<a id="k63b_29"><sup>29</sup></a>&nbsp; and no objections can be entertained against an analogy.<a id="k63b_30"><sup>30</sup></a>&nbsp; This is all very well on the supposition that one verse deals with a thief and the other with [a bailee falsely] alleging theft. But on the supposition that both of them deal with [a bailee falsely] alleging theft, whence can the law of double payment<a id="k63b_31"><sup>31</sup></a>&nbsp; be derived in the case of a thief himself? And should you say that it can be derived by means of an <i>a fortiori</i> argument from the law of [a bailee falsely] alleging theft, [we may ask], is it not sufficient for the object to which the inference is made to be placed on the same footing as the object from which it is made,<a id="k63b_32"><sup>32</sup></a>&nbsp; so that just as there<a id="k63b_33"><sup>33</sup></a>&nbsp; [the penalty is entailed only where there] is false swearing, so here also<a id="k63b_34"><sup>34</sup></a>&nbsp; [it should be entailed only] where there is false swearing? &mdash; It could be derived by the reasoning taught at the School of Hezekiah. For it was taught at the School of Hezekiah: Should not Scripture have mentioned only 'ox' and 'theft'<a id="k63b_35"><sup>35</sup></a>&nbsp; as everything would thus have been included? &mdash; If so, I might say that just as the specification<a id="k63b_36"><sup>36</sup></a>&nbsp; mentions an object which is eligible to be sacrificed upon the altar any [living] object which is eligible to be sacrificed upon the altar should be included. What can you include through this? A sheep<a id="k63b_37"><sup>37</sup></a>&nbsp; [as subject to double payment].
</P>


lvr: 41
dfh: a
notes:
 ntes={k64a_1:" I.e., ox and sheep."
,k64a_2:" In accordance with Ex. XIII, 12."
,k64a_3:" Ass would thus also be included; cf. Ex. XXII, 13."
,k64a_4:" Ox, sheep and ass."
,k64a_5:" [Hence the derivation of double payment in the case of the thief himself.]"
,k64a_6:" [Being thus a generalisation followed by a specification, in which case the former includes only what is contained in the latter, v. P.B. p. 13.]"
,k64a_7:" Of the School of Hezekiah."
,k64a_8:" I.e., 'theft'."
,k64a_9:" I.e., 'ox, ass, sheep'."
,k64a_10:" I.e., 'alive'. &mdash; The argument will be explained anon."
,k64a_11:" I.e., 'theft', being more comprehensive than 'alive'."
,k64a_12:" Cf. Zeb. 4b; 8b; and Hul. 66a."
,k64a_13:" Literal rendering of Ex. XXII, 3. (E.V.: If the theft be certainly found in his hand.)"
,k64a_14:" Why indeed this emphasis on the verb 'found'?"
,k64a_15:" V. <i>supra</i> p. 370, n. 7."
,k64a_16:" V. note 2. This concludes the argument of the School of Hezekiah. "
}

txt:
<p>
But when the text continues <i>'sheep'</i>, we have sheep explicitly stated. How then am I to explain 'theft'? To include any object. [If that is so] should Scripture not have mentioned only 'ox', 'sheep' and 'theft' since everything would have thus been included? &mdash; If so, I might still say that just as the specification<a id="k64a_1"><sup>1</sup></a>&nbsp; mentions an object which is subject to the sanctity of first birth,<a id="k64a_2"><sup>2</sup></a>&nbsp; so also any object which is subject to the sanctity of first birth [should be included].<a id="k64a_3"><sup>3</sup></a>&nbsp; Now what can you include through this? An ass [as subject to double payment]. But when the text goes on to mention 'ass', we have 'ass' explicitly stated. What then do I make of 'theft'? To include any object. [If that is so], should Scripture not have mentioned only 'ox' 'ass', 'sheep' and 'theft' since everything would have accordingly been included? &mdash; If so, I might still say that just as the specification<a id="k64a_4"><sup>4</sup></a>&nbsp; mentions objects possessing life, so also any other objects possessing life [should be included]. What can you include through this? All other objects possessing life. But when the text continues 'alive', we have objects possessing life explicitly stated. How then am I to explain 'theft'? [It must be] to include any other object whatsoever.<a id="k64a_5"><sup>5</sup></a>
</p><p>
	The Master stated: 'Should not Scripture have mentioned [only] "<i>ox</i>" and "<i>theft</i>"?' &mdash; But does it say <i>'ox'</i> and [then] <i>'theft'</i>? Is it not [first] <i>'theft'</i> and [then] <i>'ox'</i> which is written in the text?<a id="k64a_6"><sup>6</sup></a>&nbsp; And if you rejoin that the author of this argument took a hypothetical case, viz.: 'If it were written [first] "<i>ox</i>" and [then] "<i>theft</i>", how in that case would you be able to say, 'Just as the specification mentions etc.,' since <i>'ox'</i> would be the specification and <i>'theft'</i> the generalisation, and in the case of a specification followed by a generalisation the generalisation is considered to add to the specification, so that all objects would be included? If, on the other hand, he based his argument on the actual order of the text, viz.: <i>'theft'</i> and [then] <i>'ox'</i>, how again would you be able to say that 'everything would have been included', or 'just as the specification mentions etc.', since 'theft' would be the generalisation and 'ox' the specification, and in the case of a generalisation followed by a specification there is nothing included in the generalisation except what is explicit in the specification, [so that here] only ox [would be included] but no other object whatsoever? Raba thereupon said: This Tanna<a id="k64a_7"><sup>7</sup></a>&nbsp; based his argument upon the term 'alive' [that follows the specification], so that he argued on the strength of a generalisation<a id="k64a_8"><sup>8</sup></a>&nbsp; [followed by] a specification<a id="k64a_9"><sup>9</sup></a>&nbsp; [which was in its turn followed by] another generalisation.<a id="k64a_10"><sup>10</sup></a>&nbsp; But is the last generalisation<a id="k64a_10"><sup>10</sup></a>&nbsp; analagous in implication to the first generalisation?<a id="k64a_11"><sup>11</sup></a>&nbsp; There is, however, the Tanna of the School of R. Ishmael who did expound texts of this kind on the lines of generalisations and specifications.<a id="k64a_12"><sup>12</sup></a>&nbsp; The problem was therefore this: Why do I require the words in the text, 'If to be found it be found?'<a id="k64a_13"><sup>13</sup></a>&nbsp; Should not Scripture have mentioned only 'theft' and 'ox' and 'alive', and everything would have then been included?<a id="k64a_14"><sup>14</sup></a>&nbsp; &mdash; If so, I might say that just as the specification mentions an object which is eligible to be sacrificed upon the altar, so also any object eligible to be sacrificed upon the altar is [included]. What does this enable you to include? Sheep.<a id="k64a_15"><sup>15</sup></a>&nbsp; But when the text continues 'sheep', we have sheep explicitly stated. What then am I to make of 'theft'? It must be to include any object. [If that is so] should Scripture not have mentioned only 'theft', 'ox', 'sheep' and 'alive' since everything would have then been included?<a id="k64a_14"><sup>14</sup></a>&nbsp; &mdash; If so, I might still say that just as the specification mentions an object which is subject to the sanctity of first birth, so also any object which is subject to the sanctity of first birth [should be included]. What does this enable you to include? Ass. But when the text continues 'ass', we have ass explicitly stated. What then am I to make of 'theft'? It must be to include any object. [But in that case] should Scripture not have mentioned only 'theft', 'ox', 'sheep', 'ass' and 'alive', since everything would have then been included?<a id="k64a_14"><sup>14</sup></a>&nbsp; &mdash; If so I might still say that just as the specification mentions objects possessing life, so also any other object possessing life [should be included]. What does this enable you to include? All other objects possessing life. But when the text continues 'alive', objects possessing life are explicitly stated. What then am I to make of 'theft'? [It must be] to include any other object whatsoever. And if so, why do I require the words 'if to be found it be found'?<a id="k64a_16"><sup>16</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k64b_1:" And how are we to meet the question of that Tanna?"
,k64b_2:" So that the emphasis on the verb becomes essential."
,k64b_3:" To be subject to the law of theft."
,k64b_4:" [It is a general principle that, in a proposition consisting of a generalisation followed by a specification which in its turn is followed by another generalisation, the inclusion of all things that are similar to the specification is in virtue of the last generalisation, since without it the proposition would include only what is included in the specification, v. p. 371, n. 3.]"
,k64b_5:" [To apply here the principle of generalisation, specification and generalisation.]"
,k64b_6:" I.e., the doubling of the verb expressing 'found'."
,k64b_7:" In the Land of Israel."
,k64b_8:" Cf. Shebu. 5a."
,k64b_9:" To the exclusion of such as have no marks of identification. Cf. p. 367, n. 4."
,k64b_10:" Cf. <i>supra</i> p. 366."
,k64b_11:" V. p. 373, n. 6."
,k64b_12:" Lev. XI, 9."
,k64b_13:" Which would otherwise not have been subject to the law."
,k64b_14:" [Strictly speaking, 'diminutions'.]"
,k64b_15:" <i>Infra</i> p. 376."
,k64b_16:" I.e., that the payment of principal for a stolen article will be in accordance with its value at the time of the theft."
,k64b_17:" Ex. XXII, 6."
,k64b_18:" Ibid. 7."
,k64b_19:" <i>Infra</i> 75a."
,k64b_20:" Ex. XXI, 8."
,k64b_21:" [While the other verse is to extend the exemption to the case where witnesses do subsequently appear. Had there been one verse only available, the exemption would have been limited to the former only.]"
,k64b_22:" As indeed maintained by Samuel, <i>infra</i> 75a."
,k64b_23:" V. p. 374, n. 8."
,k64b_24:" 'If the thief be found'."
,k64b_25:" [Since the exclusion of 'real estate, slaves and bills' is already provided for in the verse, For all manner of trespass, etc.; v. <i>supra</i> p. 364.]"
,k64b_26:" Sot. 3a; Shebu. 19a."
,k64b_27:" I.e., the exclusion of self-admission in case of a fine, as <i>supra</i>.]"
,k64b_28:" Since the law in this case is derived from the section dealing with the unpaid bailee who is not subject to pay double unless where he first took a false oath on the plea of alleged theft."
,k64b_29:" Ex. XXII, 3."
,k64b_30:" I.e., any of the above implications."
,k64b_31:" Ex. XXII, 3. "
}

txt:
<p>
But if this is so, is not this a real difficulty?<a id="k64b_1"><sup>1</sup></a>&nbsp; &mdash; There is, however, a refutation of it.<a id="k64b_2"><sup>2</sup></a>&nbsp; For whence would you include any 'other object'?<a id="k64b_3"><sup>3</sup></a>&nbsp; From [the implication of] the last generalisation.<a id="k64b_4"><sup>4</sup></a>&nbsp; Now, since this very generalisation consists in the term 'alive', of what service then is the argument based upon the generalisation followed by a specification which is in its turn followed by another generalisation? It can hardly be to add any [inanimate] object, since the word 'alive' is used there, implying only objects possessing life, but not any other object whatsoever. It was therefore because of this that it was necessary to state 'if to be found it be found.'<a id="k64b_5"><sup>5</sup></a>&nbsp; It may however still be argued, does not this text contain two generalisations which are placed near each other?<a id="k64b_6"><sup>6</sup></a>&nbsp; &mdash; Rabina thereupon said: [We dispose of this difficulty] as stated in the West,<a id="k64b_7"><sup>7</sup></a>&nbsp; that wherever you find two generalisations near each other, place a specification between them and explain them as a case of a generalisation followed by a specification.<a id="k64b_8"><sup>8</sup></a>&nbsp; [Here then] place 'ox' between [the infinitive and the finite verb],<a id="k64b_6"><sup>6</sup></a>&nbsp; 'if to be found it be found.' Now, what additional objects would this introduce? If objects possessing life, are these not to be derived from the term 'alive'? It must therefore be an object which does not possess life, and we expound thus: Just as the specification mentions an object which is movable and which has an intrinsic value, so also any object which is movable and which has an intrinsic value [should be included to be subject to the double payment]. Now, when you again place 'ass' between [the infinitive and the finite verb], 'if to be found it be found', what additional objects could this introduce? If an object not possessing life, was not this derived from [placing] 'ox' [between the two generalisations]?<a id="k64b_6"><sup>6</sup></a>&nbsp; It must therefore serve to introduce an object having specification.<a id="k64b_9"><sup>9</sup></a>&nbsp; But if so why do I require the word 'sheep'? &mdash; It must therefore be taken as a case of an amplification preceding a diminution followed in its turn by another amplification,<a id="k64b_10"><sup>10</sup></a>&nbsp; as indeed taught at the School of R. Ishmael. For it was taught at the School of R. Ishmael:<a id="k64b_11"><sup>11</sup></a>&nbsp; [The words 'in the waters',<a id="k64b_12"><sup>12</sup></a>&nbsp; 'In the waters', occurring twice in the text should not be treated as a generalisation followed by a specification, but as an amplification followed by a diminution followed in its turn by another amplification, to add everything. What, then, does it add in this case?<a id="k64b_13"><sup>13</sup></a>&nbsp; It adds all objects, But if so, why do I require all these specifications?<a id="k64b_14"><sup>14</sup></a>&nbsp; &mdash; One to exclude real estate; the second to exclude slaves, and the third to exclude bills; while 'theft' and 'alive' furnish a basis for the view of Rab who said<a id="k64b_15"><sup>15</sup></a>&nbsp; that the value of the principal is to be resuscitated as it was at the time of theft.<a id="k64b_16"><sup>16</sup></a>
</p><p>
	But according to the view that one verse<a id="k64b_17"><sup>17</sup></a>&nbsp; deals with a thief himself and the other<a id="k64b_18"><sup>18</sup></a>&nbsp; with a bailee [falsely] alleging theft, so that the liability of a thief himself to pay double payment is thus derived from the text '<i>if the thief be found'</i>, how is the text '<i>If to be found it be found'</i> etc. to be expounded? &mdash; He may employ it for teaching the view expressed by Raba b. Ahilai; for Raba b. Ahilai said:<a id="k64b_19"><sup>19</sup></a>&nbsp; What was the reason of Rab who maintained that a defendant admitting an offence for which the penalty is a fine would [even] where witnesses subsequently appeared still be exempt? As it is written: 'If to be found it be found' implying that if at the very outset it is found by witnesses then it will 'be' [considered] 'found' in the consideration of the Judges, excepting thus a case where it was the defendant who incriminated himself. Now again, according to the view that both verses deal with a bailee [falsely] advancing a plea of theft, in which case the text 'If to be found it be found' is employed to teach that there is double payment in the case of a thief himself, whence [in Scripture] do we derive the rule regarding a defendant incriminating himself? &mdash; From the text, 'Whom the judges shall condemn'<a id="k64b_20"><sup>20</sup></a>&nbsp; [which implies], 'but not him who condemns himself.' But according to the view that one verse deals with a thief and the other with a bailee [falsely] advancing a plea of theft and that the text of 'if to be found it be found' is to introduce the law where the defendant incriminates himself, how could the text, 'whom the judges shall condemn', be expounded? &mdash; He might say to you: That text was in the first instance employed to imply that a defendant admitting [an offence entailing] a fine [without witnesses subsequently appearing] would be exempt;<a id="k64b_21"><sup>21</sup></a>&nbsp; whereas the other view, that both of the verses deal with a bailee [falsely] advancing a plea of theft holds that a defendant admitting [an offence entailing] a fine for which witnesses subsequently appear is liable.<a id="k64b_22"><sup>22</sup></a>&nbsp; According to the view that one verse<a id="k64b_23"><sup>23</sup></a>&nbsp; deals with a thief and the other with a bailee [falsely] advancing a plea of theft, so that the case of a thief is derived from the verse there,<a id="k64b_24"><sup>24</sup></a>&nbsp; we have no difficulty with the text 'if to be found it be found', which is employed as a basis for the statement of Raba b. Ahilai, but why do I require all these specifications?<a id="k64b_25"><sup>25</sup></a>&nbsp; &mdash; For the reason taught at the school of R. Ishmael,<a id="k64b_26"><sup>26</sup></a>&nbsp; that any section written in Scripture and then repeated is repeated only for the sake of a new point that is added to it.<a id="k64b_27"><sup>27</sup></a>&nbsp; But why not say that even the thief himself should be subject to double payment only after having taken an oath falsely?<a id="k64b_28"><sup>28</sup></a>&nbsp; &mdash; Let not this enter your mind, for it was taught: 'R. Jacob says, He shall pay double<a id="k64b_29"><sup>29</sup></a>&nbsp; [even] where he took no oath. Why not rather say only where he took a false oath?<a id="k64b_28"><sup>28</sup></a>&nbsp; You can safely say that this could not be so.' Why could this not be so? &mdash; Said Abaye: For the Divine Law should then not have written 'he shall pay double' in the case of a thief, as this would have been derived by an <i>a fortiori</i> from the law applicable to a bailee falsely advancing a plea of theft: If a bailee falsely advancing a plea of theft, into whose hands the article had come lawfully, is ordered by Scripture to pay twice, should this not apply all the more strongly in the case of the thief himself, into whose hands the article came unlawfully? Why then did Scripture say 'He shall pay double' in the case of a thief himself, unless to imply liability even in the absence of an oath!
</p><p>
	But how could this [text] <i>'If to be found it be found'</i> be employed to teach this?<a id="k64b_30"><sup>30</sup></a>&nbsp; Is it not required for what was taught: <i>'his hand'</i>:<a id="k64b_31"><sup>31</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k65a_1:" B.M. 10b and 56b."
,k65a_2:" That it was meant to imply only one point."
,k65a_3:" I.e., the verb would have been doubled in the same tense."
,k65a_4:" In the tense of the verb, the infinite followed by the finite."
,k65a_5:" V. <i>supra</i> p. 374."
,k65a_6:" V. p. 374, n. 7."
,k65a_7:" Lit., 'when lying down'."
,k65a_8:" For a similar expression cf. <i>supra</i> p. 268."
,k65a_9:" According to whom four-fold and five-fold payments are reckoned on the basis of the value when the case comes into court."
,k65a_10:" Whereas where there was an increase in price or where the animal became fatter by itself, the ruling of Rab may hold good."
,k65a_11:" V. p. 376, n. 11."
,k65a_12:" The liability thus began at the time when the thief caused the animal to become lean."
,k65a_13:" B.M. 43a."
,k65a_14:" As was its value at the time when he damaged it."
,k65a_15:" As was its value at the time of the theft."
,k65a_16:" And maintain to the contrary that even where the thief broke it or drank it he would still pay only one <i>zuz</i>, which was its value at the time of the theft."
,k65a_17:" In accordance with Lev. V, 24-25. [But not the doubling, since it is a fine which is not payable on self-admission.]"
,k65a_18:" V. p. 634, n. 7."
,k65a_19:" V. p. 634, n. 6."
,k65a_20:" Provided, however, that the doubling and the fifth are equal in amount. "
}

txt:
<p>
this gives me the rule only as applying to his hand. Whence do I learn that it applies to his roof, his courtyard and his enclosure? It distinctly lays down: <i>If to be found it be found</i> [i.e.] in all places'?<a id="k65a_1"><sup>1</sup></a>&nbsp; &mdash; But if so<a id="k65a_2"><sup>2</sup></a>&nbsp; the text should have said either 'if to be found, to be found', or 'if it be found, it be found'?<a id="k65a_3"><sup>3</sup></a>&nbsp; The variation in the text<a id="k65a_4"><sup>4</sup></a>&nbsp; enables us to prove two points from it.
</p><p>
	The above text states: 'Rab said: "The principal is reckoned as at the time of the theft,"5 whereas double payment or four-fold and five-fold payments are reckoned on the basis of the value when the case was brought into Court.' What was the reason of Rab? &mdash; Scripture says 'theft' and 'alive'. Why does Scripture say 'alive' in the case of theft? [To imply] that I should resuscitate the principal in accordance with its value at the time of theft.<a id="k65a_6"><sup>6</sup></a>&nbsp; Said R. Shesheth: I am inclined to say that it was only when he was half asleep on his bed<a id="k65a_7"><sup>7</sup></a>&nbsp; that Rab could have enunciated such a ruling.<a id="k65a_8"><sup>8</sup></a>&nbsp; For it was taught: [If a thief misappropriated] a lean animal and fattened it, he has to pay the double payment or four-fold and five-fold payments according to the value at the time of theft. [Is this not a contradiction to the view of Rab?]<a id="k65a_9"><sup>9</sup></a>&nbsp; &mdash; It might, however, be said [that the thief has to pay thus] because he can say, 'Am I to fatten it and you take it?'<a id="k65a_10"><sup>10</sup></a>
</p><p>
	Come and hear: [If a thief misappropriated] a fat animal and caused it to become lean, he has to pay double payment or fourfold and five-fold payments according to the value at the time of theft. [Does this not contradict the ruling enunciated by Rab?]<a id="k65a_11"><sup>11</sup></a>&nbsp; &mdash; There also [the thief has to pay thus] because we argue against him 'What is the difference whether you killed it altogether or only half-killed it.'<a id="k65a_12"><sup>12</sup></a>&nbsp; But the ruling enunciated by Rab<a id="k65a_11"><sup>11</sup></a>&nbsp; had reference to fluctuations in price. How are we to understand this? If we assume that it was originally worth one <i>zuz</i> and subsequently worth four <i>zuz</i>, would the statement 'the principal will be reckoned as at the time of theft not lead us to suppose that Rab differs from Rabbah? For Rabbah said:<a id="k65a_13"><sup>13</sup></a>&nbsp; If a man misappropriated from his fellow a barrel of wine which was then [worth] one <i>zuz</i> but which became subsequently worth four <i>zuz</i>, if he broke it or drank it he has to pay four,<a id="k65a_14"><sup>14</sup></a>&nbsp; but if it broke of itself he has to pay one <i>zuz</i>.<a id="k65a_15"><sup>15</sup></a>&nbsp; [Would Rab really differ from this view?]<a id="k65a_16"><sup>16</sup></a>&nbsp; &mdash; It may however, be said that Rab's rule applied to a case where, e.g., it was at the beginning worth four [<i>zuz</i>] but subsequently worth one [<i>zuz</i>], in which case the principal will be reckoned as at the time of theft, whereas double payment or four-fold and five-fold payments will be reckoned on the basis of the value when the case came into Court. R. Hanina learnt in support of the view of Rab: If a bailee advanced a plea of theft regarding a deposit and confirmed it by oath but subsequently admitted his perjury and witnesses appeared and testified [to the same effect], if he confessed before the appearance of the witnesses, he has to pay the principal together with a fifth and a trespass offering;<a id="k65a_17"><sup>17</sup></a>&nbsp; but if he confessed after the appearance of the witnesses, he has to pay double payment<a id="k65a_18"><sup>18</sup></a>&nbsp; together with a trespass offering;<a id="k65a_19"><sup>19</sup></a>&nbsp; the fifth, however, is replaced by the doubling of the payment.<a id="k65a_20"><sup>20</sup></a>&nbsp; So R. Jacob.
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k65b_1:" Lev. V, 24."
,k65b_2:" As here, where double payment has to be made."
,k65b_3:" Under any circumstances, even where the doubling of the payment and the fifth are not equal in amount, though the trespass offering will have to be brought."
,k65b_4:" <i>Infra</i> 106a; Shebu. 37b."
,k65b_5:" The fifth is 25% of the general sum which will have to be paid as principal plus a fifth thereof amounting thus to a fourth of the principal."
,k65b_6:" As was the value at the time of the coming into court."
,k65b_7:" E.V.: 'and the fifth part thereof'."
,k65b_8:" I.e., a fifth will be paid for each false swearing."
,k65b_9:" Lev. ib., 24-25."
,k65b_10:" E.V.: 'And&nbsp;&hellip; his trespass offering, v. 25."
,k65b_11:" So that the law regarding the trespass offering is not governed by the condition made in verse 24."
,k65b_12:" [Who holds that he neither brings a trespass offering. How will he meet the argument from the particle 'eth'?]"
,k65b_13:" Making them subject to the same law."
,k65b_14:" I.e., the trespass offering."
,k65b_15:" I.e., the fifth."
,k65b_16:" While still in his possession."
,k65b_17:" The technical term is Shinnuy."
,k65b_18:" Having, however, to repay the principal together with the double payment for the act of theft."
,k65b_19:" The fine for the slaughter or sale will thus not be imposed upon him."
,k65b_20:" The fine for the slaughter or sale."
,k65b_21:" R. Elai to R. Hanina."
,k65b_22:" When it was merely a lamb or a calf."
,k65b_23:" When it already became a ram, or an ox, if the ownership has not changed."
,k65b_24:" R. Hanina to R. Elai."
,k65b_25:" I.e., the thief against the plaintiff."
,k65b_26:" Cf. Shab. 84b and Keth. 45b."
,k65b_27:" [Though 'growth' confers no title.]"
,k65b_28:" Lev. XXII, 27."
,k65b_29:" Gen. XXXI, 38."
,k65b_30:" By R. Hanina from the teaching imposing the fine of four-fold and five-fold payments."
,k65b_31:" <i>Infra</i> p. 544 and Tem. 30b."
,k65b_32:" In accordance with Deut. XXIII, 19."
,k65b_33:" As it was not the same article which was given as hire."
,k65b_34:" [Not identified, but probably in Asia; v. Neubauer, p. 386.]"
,k65b_35:" V. p. 380, n. 15."
,k65b_36:" E.V.: 'even', and which is generally taken as an amplification."
,k65b_37:" I.e., to prohibit even the articles into which the hire was transformed."
,k65b_38:" [H], <I>'both of them'</I> (E.V.: 'both these')."
,k65b_39:" I.e., the original articles themselves. >"
}

txt:
<p>
The Sages, however, say: [Scripture says] In its principal and the fifth part thereof,<a id="k65b_1"><sup>1</sup></a>&nbsp; [implying that it is only] where money is paid as principal that a fifth has to be added, but where the money is not paid as principal<a id="k65b_2"><sup>2</sup></a>&nbsp; no fifth will be added.<a id="k65b_3"><sup>3</sup></a>&nbsp; R. Simeon b. Yohai says: No fifth or trespass offering is paid in a case where there is double payment.<a id="k65b_4"><sup>4</sup></a>&nbsp; Now it is said here that 'the fifth is replaced by the doubling of the payment;' this being the view of R. Jacob. How are we to understand this? If we say it was at the beginning worth four and subsequently similarly worth four, how could the fifth be replaced by the doubling of the payment when the doubling of the payment amounts to four and the fifth to one?<a id="k65b_5"><sup>5</sup></a>&nbsp; Does it therefore not refer to a case where at the beginning the value was four but subsequently fell to one <i>zuz</i>, so that the doubling of the payment is one <i>zuz</i><a id="k65b_6"><sup>6</sup></a>&nbsp; and the fifth of the payment is also one <i>zuz</i>,<a id="k65b_5"><sup>5</sup></a>&nbsp; proving thereby that the principal will be reckoned as at the time of theft, whereas double payment or four-fold and five-fold payments will be reckoned on the basis of the value when the case comes into court? &mdash; Raba thereupon said: It could still be maintained that at the beginning it was worth four and now it is similarly worth four, for as to the difficulty with respect to the doubling of the payment being four and the fifth of the payment one <i>zuz</i>,<a id="k65b_5"><sup>5</sup></a>&nbsp; it might be said that [we are dealing here with a case] where e.g., he took an oath and repeated it four times, after which he confessed, and as the Torah says 'and its fifths',<a id="k65b_7"><sup>7</sup></a>&nbsp; the Torah has thus assigned many fifths to one principal.<a id="k65b_8"><sup>8</sup></a>
</p><p>
	The Master stated: 'The Sages however say: [Scripture says] In its principal and the fifth part thereof [implying that it is only] where money is paid as principal that a fifth has to be added, but where the money is not paid as principal, no fifth will be added.' The trespass offering will nevertheless have to be brought. Why this difference? If he has not to pay the fifth because it is written, In its principal and the fifth part thereof, why should he similarly not have to pay the trespass offering seeing it is written, In its principal and the fifth part thereof&nbsp;&hellip; and his trespass offering?<a id="k65b_9"><sup>9</sup></a>&nbsp; &mdash; The Rabbis might say to you that by the particle 'eth' [occurring before the term denoting his trespass offering]<a id="k65b_10"><sup>10</sup></a>&nbsp; Scripture separates them.<a id="k65b_11"><sup>11</sup></a>&nbsp; And R. Simeon b. Yohai?<a id="k65b_12"><sup>12</sup></a>&nbsp; &mdash; He maintains that by the '<i>waw</i>' [conjunctive placed before the particle] 'eth' Scripture combines them.<a id="k65b_13"><sup>13</sup></a>&nbsp; And the Rabbis? &mdash; They may say that if this is so, the Divine Law should have inserted neither the '<i>waw</i>' nor the 'eth'. And R. Simeon b. Yohai? &mdash; He might rejoin that as it was impossible for Scripture not to insert 'eth' so as to make a distinction between a chattel due to Heaven<a id="k65b_14"><sup>14</sup></a>&nbsp; and money due to ordinary men,<a id="k65b_15"><sup>15</sup></a>&nbsp; it was therefore necessary to add the '<i>waw</i>' so as to combine the verses.
</p><p>
	R. Elai said: If a thief misappropriates a lamb and it grows into a ram,<a id="k65b_16"><sup>16</sup></a>&nbsp; or a calf and it grows into an ox,<a id="k65b_16"><sup>16</sup></a>&nbsp; as the article has undergone a change<a id="k65b_17"><sup>17</sup></a>&nbsp; while in his hands he would acquire title to it,<a id="k65b_18"><sup>18</sup></a>&nbsp; so that if he slaughters or sells it, it is his which he slaughters it is his which he sells.<a id="k65b_19"><sup>19</sup></a>&nbsp; R. Hanina objected to R. Elai's statement [from the following teaching]: If he misappropriates a lamb and it grows into a ram,<a id="k65b_16"><sup>16</sup></a>&nbsp; or a calf and it grows into an ox,<a id="k65b_16"><sup>16</sup></a>&nbsp; he will have to make double payment or four-fold and five-fold payments reckoned on the basis of the value at the time of theft. Now, if you assume that he acquires title to it by the change, why should he pay?<a id="k65b_20"><sup>20</sup></a>&nbsp; Is it not his which he slaughtered, is it not his which he sold? &mdash; He replied:<a id="k65b_21"><sup>21</sup></a>&nbsp; What then [is your opinion]? That a change does not transfer ownership? Why then pay on the basis of the value at the time of theft<a id="k65b_22"><sup>22</sup></a>&nbsp; and not of the present value?<a id="k65b_23"><sup>23</sup></a>&nbsp; &mdash; The other replied:<a id="k65b_24"><sup>24</sup></a>&nbsp; He does not pay in accordance with the present value for the reason that he can say to him,<a id="k65b_25"><sup>25</sup></a>&nbsp; 'Did I steal an ox from you, did I steal a ram from you?' Said the other:<a id="k65b_21"><sup>21</sup></a>&nbsp; 'May the All-Merciful save me from accepting this view!' The other one retorted,<a id="k65b_24"><sup>24</sup></a>&nbsp; 'May the All-Merciful save me from accepting your view.'<a id="k65b_26"><sup>26</sup></a>&nbsp; R. Zera demurred saying: Why should he not indeed acquire title to it through the change in name?<a id="k65b_27"><sup>27</sup></a>&nbsp; Raba, however, said to him: An ox one day old is already called 'ox', and a ram one day old is already called 'ram'. 'An ox one day old is called "ox",' as written: When an ox or a sheep or a goat is born.<a id="k65b_28"><sup>28</sup></a>&nbsp; 'A ram one day old is called "ram",' as written: And the rams of thy flocks have I not eaten.<a id="k65b_29"><sup>29</sup></a>&nbsp; Does he mean that it was only the rams that he did not eat, and that he did eat the sheep? [Surely not!] &mdash; This shows that a ram one day old is already called 'ram'. But all the same does the objection raised against R. Elai<a id="k65b_30"><sup>30</sup></a>&nbsp; still not hold good? &mdash; R. Shesheth thereupon said: The teaching [of the Baraitha] is in accordance with the view of Beth Shammai, that a change leaves the article in the previous position and will accordingly not transfer ownership, as taught:<a id="k65b_31"><sup>31</sup></a>&nbsp; If he gave her [the harlot] as her hire wheat of which she made flour, or olives of which she made oil, or grapes of which she made wine, it was taught on one occasion that 'the produce is forbidden [to be sacrificed upon the altar],'<a id="k65b_32"><sup>32</sup></a>&nbsp; whereas on another occasion it was taught 'it is permitted',<a id="k65b_33"><sup>33</sup></a>&nbsp; and R. Joseph said: Gorion of Aspurak<a id="k65b_34"><sup>34</sup></a>&nbsp; learnt: 'Beth Shammai prohibit [the produce to be used as sacrifices],<a id="k65b_35"><sup>35</sup></a>&nbsp; whereas Beth Hillel permit it.' Now, what was the reason of Beth Shammai? &mdash; Because it is written 'Gam',<a id="k65b_36"><sup>36</sup></a>&nbsp; to include their transformations.<a id="k65b_37"><sup>37</sup></a>&nbsp; But Beth Hillel maintain that [the suffix them]<a id="k65b_38"><sup>38</sup></a>&nbsp; implies <I>'them'</I>,<a id="k65b_39"><sup>39</sup></a>&nbsp; and not their transformations. And Beth Shammai? &mdash; They maintain that the suffix
</P>


lvr: 41
dfh: a
notes:
 ntes={k66a_1:" Such as where, e.g., a cow was given as hire and it gave birth to a calf."
,k66a_2:" V. <i>supra</i> 54a, and B.M. 27a."
,k66a_3:" I.e., R. Elai's and R. Hanina's."
,k66a_4:" R. Elai."
,k66a_5:" R. Hanina."
,k66a_6:" In the Baraitha cited <i>supra</i> p. 379."
,k66a_7:" Rashi explains this to mean that as it was a sheep which he misappropriated it is a sheep which he has to return, but according to Tosaf. it does not refer to the object by which the payment is made but to the object of the theft, and means that if the change in price resulted from a change in the substance of the stolen object all kinds of payment will be in accordance with the value at the time of the theft, whereas where the change in the value was due to fluctuation in price the view of Rab would still hold good."
,k66a_8:" In the substance of a misappropriated article."
,k66a_9:" Lev. V. 23."
,k66a_10:" I.e., without any change in the substance of the object."
,k66a_11:" But not the misappropriated object itself."
,k66a_12:" <i>Infra</i> p. 541."
,k66a_13:" In accordance with Deut. XVIII, 4."
,k66a_14:" On account of the change which took place in the colour of the wool. (Hul. 135a)."
,k66a_15:" Ye'ush, of the misappropriated article by its owner."
,k66a_16:" Where Renunciation by the owner would release a subsequent finder from having to restore the article found by him, as derived in B.M. 22b from a Scriptural inference."
,k66a_17:" After Renunciation."
,k66a_18:" When it was permitted."
,k66a_19:" So that the leavened food became forbidden for any use in accordance with Pes. 28a-30a. "
}

txt:
<p>
indicates 'them' and not their offsprings.<a id="k66a_1"><sup>1</sup></a>&nbsp; And Beth Hillel? &mdash; They reply that you can understand the two points from it: 'Them' &mdash; and not their transformations; 'them' &mdash; and not their offsprings. But as to Beth Hillel surely it is written Gam? &mdash; Gam presents a difficulty according to the view of Beth Hillel.<a id="k66a_2"><sup>2</sup></a>
</p><p>
	Their<a id="k66a_3"><sup>3</sup></a>&nbsp; difference extends only so far that one Master<a id="k66a_4"><sup>4</sup></a>&nbsp; maintains that a change transfers and the other Master<a id="k66a_5"><sup>5</sup></a>&nbsp; maintains that a change does not transfer ownership, but regarding payment they both agree that the payment is made on the basis of the original value, even as it is stated:<a id="k66a_6"><sup>6</sup></a>&nbsp; 'He has to make double payment or fourfold and five-fold payments on the basis of the value at the time of the theft.' Are we to say that this [Baraitha] confutes the view of Rab in the statement made by Rab that the principal will be reckoned as at the time of theft, whereas double payment or four-fold and five-fold payments will be reckoned on the basis of the value when the case comes into Court? &mdash; Said Raba: [Where he pays with] sheep, [he pays] in accordance with the original value,<a id="k66a_7"><sup>7</sup></a>&nbsp; but [where he pays with] money [he pays] in accordance with the present value.
</p><p>
	Rabbah said: That a change<a id="k66a_8"><sup>8</sup></a>&nbsp; transfers ownership is indicated in Scripture and learnt in Mishnah. It is indicated in Scripture in the words, <i>He shall restore the misappropriated object which he violently took away</i>.<a id="k66a_9"><sup>9</sup></a>&nbsp; What is the point of the words 'which he violently took away'? &mdash; It is to imply that if it is still as [it was when] he violently took it<a id="k66a_10"><sup>10</sup></a>&nbsp; he shall restore it, but if not, it is only the value of it that he will have to pay.<a id="k66a_11"><sup>11</sup></a>&nbsp; It is learnt [in the Mishnah]: If one misappropriates timber and makes utensils out of it, or wool and makes it into garments, he has to pay in accordance with the value at the time of robbery.<a id="k66a_12"><sup>12</sup></a>&nbsp; Or as also [learnt elsewhere]: If the owner did not manage to give the first of the fleece to the priest<a id="k66a_13"><sup>13</sup></a>&nbsp; until it had already been dyed, he is exempt,<a id="k66a_14"><sup>14</sup></a>&nbsp; thus proving that a change transfers ownership. So has Renunciation<a id="k66a_15"><sup>15</sup></a>&nbsp; been declared by the Rabbis to transfer ownership. We, however, do not know whether this rule is derived from the Scripture, or is purely Rabbinical. Is it Scriptural, it being on a par with the case of one who finds a lost article?<a id="k66a_16"><sup>16</sup></a>&nbsp; For is not the law in the case of a finder of lost property that, if the owner renounced his interest in the article before it came into the hands of the finder the ownership of it is transferred to the finder? So in this case, the thief similarly acquires title to the article as soon as the owner renounces his claim. It thus seems that the transfer is of Scriptural origin! Or are we to say that this case is not comparable to that of a lost article?<a id="k66a_16"><sup>16</sup></a>&nbsp; For it is only in the case of a lost article that the law applies, since when it comes into the hands of the finder,<a id="k66a_17"><sup>17</sup></a>&nbsp; it does so lawfully, whereas in the case of the thief into whose hands it entered unlawfully, the rule therefore might be merely of Rabbinic authority, as the Rabbis might have said that ownership should be transferred by Renunciation in order to make matters easier for repentant robbers. But R. Joseph said: Renunciation does not transfer ownership even by Rabbinic ordinance.
</p><p>
	R. Joseph objected to Rabbah's view [from the following:] If a man misappropriated leavened food [before Passover],<a id="k66a_18"><sup>18</sup></a>&nbsp; when Passover has passed<a id="k66a_19"><sup>19</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k66b_1:" As no change took place in the substance of the misappropriated article. (<I>Infra</I> p. 561.)"
,k66b_2:" I.e., on the eve of Passover."
,k66b_3:" Since the misappropriated article became his."
,k66b_4:" Rabbah to R. Joseph."
,k66b_5:" That Renunciation transfers the ownership."
,k66b_6:" As it was not in his interest to do so."
,k66b_7:" Lev. I, 3."
,k66b_8:" <i>Infra</i> p. 388."
,k66b_9:" That a stolen object could not be brought to the altar."
,k66b_10:" In contradiction to the view expressed by Rabbah."
,k66b_11:" <i>Var. lec</i>., 'Rabbah'."
,k66b_12:" Lev. XV, 5."
,k66b_13:" With the exception of that of Beth Shammai (cf. <i>supra</i> p. 380). whose view is disregarded when in conflict with Beth Hillel (Tosaf.)."
,k66b_14:" Would the bed in this case not become the legal property of the robber?"
,k66b_15:" In the case of the sacrifice."
,k66b_16:" [In which case the sacrifice is not acceptable even if offered after renunciation on the part of the original owner.]"
,k66b_17:" As his mental determination is final, and the skins could thus be considered as fully finished articles and thus subject to the law of defilement. (V. Kel. XXVI, 7.)"
,k66b_18:" To use them as they are."
,k66b_19:" As a tanner usually prepares his skins for the public, and it is for the buyer to decide what article he is going to make out of them."
,k66b_20:" On the part of the thief to use them as they are."
,k66b_21:" For the skins became the property of the thief, as Renunciation usually follows theft on account of the fact that the owner does not know against whom to bring an action."
,k66b_22:" On the part of the robber to use them as they are."
,k66b_23:" For the skins did not become the property of the robber as robbery does not usually cause Renunciation, since the owner knows against whom to bring an action."
,k66b_24:" For the skins became the property of the robber as the owner has surely renounced every hope of recovering them for fear of the robber who acted openly."
,k66b_25:" Kel. XXVI, 8; <i>infra</i> p. 672."
,k66b_26:" In contradiction to the view maintained by R. Joseph."
,k66b_27:" R. Joseph to Abaye."
,k66b_28:" On account of which the ownership was transferred."
,k66b_29:" Since the case of the skins follows in the Mishnah that of the (dining) cover. [The dining cover (Heb. 'izba), was spread over the ground in the absence of a proper table from which to eat; cf. Rashi and Krauss, Talm. Arch., I, 376.]"
,k66b_30:" Kel. XXVI, 7."
,k66b_31:" V. p. 384, n. 5."
,k66b_32:" Since even without trimming the skins could be used as a cover."
,k66b_33:" I.e., all the days when Rabbah was the head of the college at Pumbeditha; cf. Ber. 64a; Hor. 14a and Rashi Keth. 42b."
,k66b_34:" In succession to Rabbah."
,k66b_35:" Whereas mere Renunciation in the case of theft or robbery would not transfer ownership."
,k66b_36:" 'Ed. VII, 9. "
}

txt:
<p>
he can say to the plaintiff, 'Here is your stuff before you.'<a id="k66b_1"><sup>1</sup></a>&nbsp; Now, as this plaintiff surely renounced his ownership when the time for prohibiting leavened food arrived,<a id="k66b_2"><sup>2</sup></a>&nbsp; if you assume that Renunciation transfers ownership, why should the thief be entitled to say, 'Here is your stuff before you', when he has a duty upon him to pay the proper value?<a id="k66b_3"><sup>3</sup></a>&nbsp; &mdash; He replied:<a id="k66b_4"><sup>4</sup></a>&nbsp; I stated the ruling<a id="k66b_5"><sup>5</sup></a>&nbsp; only where the owner renounces ownership at the time when the thief is desirous of acquiring it, whereas in this case, though the owner renounced ownership, the thief had no desire to acquire it.<a id="k66b_6"><sup>6</sup></a>
</p><p>
	Abaye objected to Rabbah's statement [from the following]: [The verse says,] 'His offering,<a id="k66b_7"><sup>7</sup></a>&nbsp; [implying] but not one which was misappropriated.'<a id="k66b_8"><sup>8</sup></a>&nbsp; Now, what were the circumstances? If we assume before Renunciation, why do I require a text, since this is quite obvious?<a id="k66b_9"><sup>9</sup></a>&nbsp; Should we therefore not assume after Renunciation, which would show that Renunciation does not transfer ownership?<a id="k66b_10"><sup>10</sup></a>&nbsp; Said Raba<a id="k66b_11"><sup>11</sup></a>&nbsp; to him: According to your reasoning [how are we to explain] that which was taught: [The verse says,] 'His bed<a id="k66b_12"><sup>12</sup></a>&nbsp; [implying] but not one which was misappropriated'? Under what circumstances? That, for instance, wool was misappropriated and made into a bed? But is there any [accepted] view<a id="k66b_13"><sup>13</sup></a>&nbsp; that a change [in substance] resulting from an act does not transfer ownership?<a id="k66b_14"><sup>14</sup></a>&nbsp; What you have to say is that it refers to a case where the robber misappropriated a neighbour's bed. So also here<a id="k66b_15"><sup>15</sup></a>&nbsp; it refers to a case where he misappropriated a neighbour's offering.<a id="k66b_16"><sup>16</sup></a>&nbsp; Abaye objected to R. Joseph's view [from the following]: In the case of skins belonging to a private owner, mere mental determination renders them capable of becoming [ritually] unclean<a id="k66b_17"><sup>17</sup></a>&nbsp; whereas in the case of those belonging to a tanner no mental determination<a id="k66b_18"><sup>18</sup></a>&nbsp; would render them capable of becoming unclean.<a id="k66b_19"><sup>19</sup></a>&nbsp; Regarding those in the possession of a 'thief', mental determination<a id="k66b_20"><sup>20</sup></a>&nbsp; will make them capable of becoming unclean,<a id="k66b_21"><sup>21</sup></a>&nbsp; whereas those in the possession of a 'robber' no mental determination<a id="k66b_22"><sup>22</sup></a>&nbsp; will render capable of becoming unclean.<a id="k66b_23"><sup>23</sup></a>&nbsp; R. Simeon says that the rulings are to be reversed: Regarding those in the possession of a 'robber', mental determination<a id="k66b_22"><sup>22</sup></a>&nbsp; will render them capable of becoming unclean,<a id="k66b_24"><sup>24</sup></a>&nbsp; whereas regarding those in the possession of a 'thief', no mental determination<a id="k66b_20"><sup>20</sup></a>&nbsp; will render them capable of becoming unclean, as in the last case the owners do not usually abandon hope of discovering who was the thief.<a id="k66b_25"><sup>25</sup></a>&nbsp; Does not this prove that Renunciation transfers ownership?<a id="k66b_26"><sup>26</sup></a>&nbsp; &mdash; He replied:<a id="k66b_27"><sup>27</sup></a>&nbsp; We are dealing here with a case where for example he had already trimmed the stolen skins [so that some change in substance was effected].<a id="k66b_28"><sup>28</sup></a>&nbsp; Rabbah son of R. Hanan demurred to this, saying: This was learnt here in connection with a [dining] cover,<a id="k66b_29"><sup>29</sup></a>&nbsp; and [skins intended to be used as] a cover do not require trimming as we have learnt:<a id="k66b_30"><sup>30</sup></a>&nbsp; Wherever there is no need for [finishing] work to be done, mental resolve<a id="k66b_31"><sup>31</sup></a>&nbsp; will render the article capable of becoming unclean, whereas where there is still need for [finishing] work to be done no mental resolve<a id="k66b_31"><sup>31</sup></a>&nbsp; will render it capable of becoming unclean, with the exception however, of a [dining] cover!<a id="k66b_32"><sup>32</sup></a>&nbsp; &mdash; Raba therefore said: This difficulty was pointed out by Rabbah to R. Joseph for twenty-two years<a id="k66b_33"><sup>33</sup></a>&nbsp; without his obtaining any answer. It was only when R. Joseph occupied the seat as Head<a id="k66b_34"><sup>34</sup></a>&nbsp; that he explained it [by suggesting that] a change in name is equivalent [in the eye of the law] to a change in substance; for just as a change in substance has an effect because, for instance, what was previously timber is now utensils, so also a change in name should have an effect as what was previously called skin is now called [dining] cover.<a id="k66b_35"><sup>35</sup></a>&nbsp; But what about a beam where there is similarly a change in name as previously it was called a post and now ceiling, and we have nevertheless learnt that 'where a misappropriated beam has been built into a house, the owner will recover only its value, so as to make matters easier for repentant robbers'.<a id="k66b_36"><sup>36</sup></a>&nbsp; The reason is, to make matters easier for repentant robbers,
</P>


lvr: 41
dfh: a
notes:
 ntes={k67a_1:" In spite of the fact that a change in name took place."
,k67a_2:" Ezek. XLI, 26."
,k67a_3:" Hence after it became part of the ceiling it is still called beam."
,k67a_4:" A beam by becoming part of a ceiling did not therefore really undergo a change in name, as the beam could be taken out and thus revert to its original state."
,k67a_5:" Such as in the case of the skins made into covers."
,k67a_6:" B.B. 65b."
,k67a_7:" Through which rain or well water was conducted to a mikweh which should be a gathering of well or rain water that has not passed through a receptacle."
,k67a_8:" Lit., 'a gathering of water' for ritual immersion; cf. <a href=\"../tglossary.html\">Glos.</a>"
,k67a_9:" As the trough in this case was considered a receptacle before it was fixed to the ground."
,k67a_10:" As when the trough was fixed it was not a receptacle in the eye of the law and could not become such after it became part of the ground to which it was fixed."
,k67a_11:" As by hollowing out the material which was originally called plank the name was changed into trough, and it should thus become a receptacle in the eye of the law. [Although this change was effected after it had been fixed to the soil, the fact that it goes by the name of a trough should in itself be sufficient to disqualify it for the use of the Mikweh; v. Asheri and Shittah Mekubezeth, a.l.]"
,k67a_12:" In receptacles poured into a mikweh."
,k67a_13:" Cf. B.B. (Sonc. ed.) pp. 263 ff."
,k67a_14:" Where he first hollowed it out and subsequently fixed it."
,k67a_15:" The same as the hamsan, who, as explained <i>supra</i> p. 361 is prepared to pay for the objects which he misappropriates."
,k67a_16:" In accordance with Num. XVIII, 11-12."
,k67a_17:" V. <a href=\"../tglossary.html\">Glos.</a>"
,k67a_18:" Cf. Num. XVIII, 21."
,k67a_19:" V. <i>infra</i> p. 674."
,k67a_20:" For otherwise what right have they to consecrate or set aside the portions for the priest and Levite?"
,k67a_21:" I.e., produce from which the priest's and Levite's portion has not been set aside."
,k67a_22:" I.e., unconsecrated property."
,k67a_23:" Lev. V. 23."
,k67a_24:" V. p. 382, n. 3."
,k67a_25:" V. p. 382, n. 4."
,k67a_26:" I.e., that the son should in this case not be subject to Lev. V, 24-25."
,k67a_27:" Mal. I, 13. "
}

txt:
<p>
but if not for this, it would have to be restored intact?<a id="k67a_1"><sup>1</sup></a>&nbsp; &mdash; R. Joseph replied: A beam retains its name [even subsequently], as taught: 'The sides of the house';<a id="k67a_2"><sup>2</sup></a>&nbsp; these are the casings: 'and the thick planks'; these are the beams.<a id="k67a_3"><sup>3</sup></a>&nbsp; R. Zera said: A change which can revert to its original state is, in the case of a change in name, not considered a change.<a id="k67a_4"><sup>4</sup></a>&nbsp; But is a change in name that cannot revert to its original state<a id="k67a_5"><sup>5</sup></a>&nbsp; considered a change? What then about a trough, the material of which was originally called a plank but now trough, and we have nevertheless been taught<a id="k67a_6"><sup>6</sup></a>&nbsp; that a trough<a id="k67a_7"><sup>7</sup></a>&nbsp; which was first hollowed out and subsequently fixed [into a mikweh]<a id="k67a_8"><sup>8</sup></a>&nbsp; will disqualify the mikweh,<a id="k67a_9"><sup>9</sup></a>&nbsp; but where it was first fixed [in to the mikweh] and subsequently hollowed out, it will not disqualify the mikweh!<a id="k67a_10"><sup>10</sup></a>&nbsp; But if you maintain that a change in name has a legal effect, why then, even where he fixed it first and subsequently hollowed it out, should it not disqualify the mikweh!<a id="k67a_11"><sup>11</sup></a>&nbsp; &mdash; The law regarding disqualification through drawn water<a id="k67a_12"><sup>12</sup></a>&nbsp; is different altogether, as it is only of Rabbinic sanction.<a id="k67a_13"><sup>13</sup></a>&nbsp; But if so, why even in the prior clause<a id="k67a_14"><sup>14</sup></a>&nbsp; should it not also be the same? &mdash; There, however, the law of a receptacle applied to it while it was still detached, whereas here it was never subject to the law of a receptacle while it was detached.
</p><p>
	An objection was raised [from the following]: If a thief, a robber or an annas<a id="k67a_15"><sup>15</sup></a>&nbsp; consecrates a misappropriated article, it will be consecrated; if he sets aside a portion for the priest's gift,<a id="k67a_16"><sup>16</sup></a>&nbsp; it will be <i>terumah</i>;<a id="k67a_17"><sup>17</sup></a>&nbsp; or again if he sets aside a portion for the Levite's gift<a id="k67a_18"><sup>18</sup></a>&nbsp; the tithe will be valid.<a id="k67a_19"><sup>19</sup></a>&nbsp; [Now, does this not prove that Renunciation transfers ownership?]<a id="k67a_20"><sup>20</sup></a>&nbsp; &mdash; It may be said that in that case there was also a change in name, as previously it was called <i>tebel</i><a id="k67a_21"><sup>21</sup></a>&nbsp; while now it is called <i>terumah</i>.<a id="k67a_17"><sup>17</sup></a>&nbsp; So also in the case of consecration: previously it was called hullin,<a id="k67a_22"><sup>22</sup></a>&nbsp; but now it is called consecrated.
</p><p>
	R. Hisda stated that R. Jonathan said: How do we learn [from Scripture] that a change transfers ownership? &mdash; Because it is said: <i>He shall restore the misappropriated object</i>.<a id="k67a_23"><sup>23</sup></a>&nbsp; What [then] is the point of the words, <i>'which he took violently away'</i>?<a id="k67a_23"><sup>23</sup></a>&nbsp; [It must be to imply that] if it still is as when he took it violently<a id="k67a_24"><sup>24</sup></a>&nbsp; he shall restore it, but if not, it is only the value of it that he will have to pay.<a id="k67a_25"><sup>25</sup></a>&nbsp; But is this [text] <i>'which he took violently away</i>'<a id="k67a_23"><sup>23</sup></a>&nbsp; not needed to exclude the case of robbery committed by a father, in which the son need not add a fifth [to the payment] for robbery committed by his father?<a id="k67a_26"><sup>26</sup></a>&nbsp; &mdash; But if so, the Divine Law should have written only 'he shall restore the misappropriated object.' Why should it further be written,<i> 'which he took violently away'</i>? Thus we can draw from it the two inferences. Some report: R. Hisda stated that R. Jonathan said: How do we learn [from Scripture] that a change does not transfer ownership? &mdash; Because it is said: He shall restore the misappropriated object, i.e., in all cases. But is it not written 'which he took violently away'? &mdash; That text is needed to indicate that it is only for robbery committed by himself that he has to add a fifth, but has not to add a fifth for robbery committed by his father.
</p><p>
	'Ulla said: How do we learn [from Scripture] that Renunciation does not transfer ownership? Because it is said: And ye brought that which was misappropriated, and the lame and the sick.<a id="k67a_27"><sup>27</sup></a>&nbsp; 'That which was misappropriated' is thus compared to 'the lame': just as 'the lame' has no remedy at all
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k67b_1:" Cf. Lev. XXII, 19-25."
,k67b_2:" V. p. 353, n. 9."
,k67b_3:" <i>Supra</i> p. 383."
,k67b_4:" V. p. 383, n. 11."
,k67b_5:" <i>Supra</i> p. 384."
,k67b_6:" As was the case with the same sage in Shab. 27a; Bez. 18a; Keth. 11b; B.B. 24a; Bek. 54b and Ker. 7a."
,k67b_7:" Who was a disciple of Raba, and the views of the disciples were regarded as those of the Master. [This supports the reading (on p. 383), 'Raba', instead of 'Rabbah', given in our edition; v. Tosaf.]"
,k67b_8:" Deut. V, 14."
,k67b_9:" As <i>supra</i> 54b."
,k67b_10:" Ex. XXI, 37."
,k67b_11:" 'An ox and sheep', whether on the first or second occasion."
,k67b_12:" [I.e., if we were to assume that there is a payment of nine in each case.]"
,k67b_13:" V. <a href=\"../tglossary.html\">Glos.</a>"
,k67b_14:" That the payment should be in accordance with the animal slaughtered or sold, but this would still afford no proof against the assumption that there is a payment of nine in each case."
,k67b_15:" ['Ox and sheep' of the earlier clause are therefore similarly indispensable.]"
,k67b_16:" Of five-fold and four-fold payments respectively."
,k67b_17:" Who through Renunciation on the part of the owner became the legal possessor of the article."
,k67b_18:" [His sin struck root in that he has deprived beyond retrieve the owner of his belongings.] "
}

txt:
<p>
[to render it qualified for the altar],<a id="k67b_1"><sup>1</sup></a>&nbsp; so also 'that which was misappropriated' has no remedy at all, no matter before Renunciation or after Renunciation. Raba said: [We derive it] from the following: 'His offering,<a id="k67b_2"><sup>2</sup></a>&nbsp; but not one which was misappropriated.'<a id="k67b_3"><sup>3</sup></a>&nbsp; When is this? If we say before Renunciation, is this not obvious?<a id="k67b_4"><sup>4</sup></a>&nbsp; What then is the point of the verse? It must therefore apply to the time after Renunciation, and it may thus be proved from this that Renunciation does not transfer ownership. But did not Raba himself say<a id="k67b_5"><sup>5</sup></a>&nbsp; that the text referred to a robber misappropriating an offering of his fellow &mdash; If you wish I may say that he changed his mind on this matter.<a id="k67b_6"><sup>6</sup></a>&nbsp; Or if you wish I may say that one of these statements was made by R. Papa.<a id="k67b_7"><sup>7</sup></a>
</p><p>
	THE MEASURE OF FOUR-FOLD AND FIVE-FOLD PAYMENTS DOES NOT APPLY EXCEPT IN THE CASE OF AN OX OR A SHEEP ALONE. But why not compare [the term] 'ox' to 'ox' in the case of Sabbath,<a id="k67b_8"><sup>8</sup></a>&nbsp; so that just as there beasts and birds are on the same footing with them [i.e. ox and ass],<a id="k67b_9"><sup>9</sup></a>&nbsp; so also here beasts and birds should be on the same footing with them [i.e. ox and sheep]? &mdash; Raba said: Scripture says 'an ox and a sheep', 'an ox and a sheep'<a id="k67b_10"><sup>10</sup></a>&nbsp; twice, [to indicate that] only ox and sheep are subject to this law but not any other object whatsoever. I may ask: Which of these<a id="k67b_11"><sup>11</sup></a>&nbsp; would otherwise be superfluous? Shall we say that 'ox and sheep' of the concluding clause would be superfluous, and the Divine Law should have written 'if a man shall steal an ox or a sheep and slaughter it or sell it, he should restore five oxen instead of it and four sheep instead of it'? Were the Divine Law to have thus written, would I not have thought that he should pay nine for each of them? And should you rejoin that it is written 'instead of it', 'instead of it' [twice in the text, so that] one 'instead of it' would then have been superfluous,<a id="k67b_12"><sup>12</sup></a>&nbsp; [I might retort that] this is required for a further exposition, as taught: It might be maintained that one who stole an ox worth a mina<a id="k67b_13"><sup>13</sup></a>&nbsp; would be able to restore for it five frail oxen. The text says, however, 'instead of it', 'instead of it' twice.<a id="k67b_14"><sup>14</sup></a>&nbsp; ['Ox and sheep' of the concluding clause is thus indispensable]. It thus appears that it is 'ox and sheep' of the prior clause which would have been superfluous, as the Divine Law should have written: 'If a man shall steal and slaughter it or sell it, he shall restore five oxen for the ox and four sheep for the sheep.' But had the Divine Law to have thus written, I might have thought that it was only where he stole the two animals and slaughtered them [that liability would be attached]! &mdash; But surely it is written 'and slaughtered it', implying one animal! It might still be thought that it was only where he stole the two animals and sold them [that liability would be attached]! &mdash; But surely it is written, 'and he sold it' implying one animal! It could still be argued that I might have thought that it was only where he stole the two animals and slaughtered one and sold the other [that liability would be attached]! &mdash; But surely it is written, 'or he sold it' [indicating that slaughtering and selling were alternative]! I might nevertheless still argue that it was only where he stole the two of them and slaughtered one and left the other, or sold one and left the other!<a id="k67b_15"><sup>15</sup></a>&nbsp; &mdash; We must say therefore that it is 'ox' of the concluding clause and 'sheep' of the first clause which would have been superfluous, as the Divine Law should have written: 'If a man shall steal an ox and slaughter it or sell it, he shall restore five oxen instead of it and four sheep instead of the sheep.' Why then do I require 'ox' of the concluding clause and 'sheep' of the first clause? To prove from it that only ox and sheep are subject to this law,<a id="k67b_16"><sup>16</sup></a>&nbsp; but not any other object whatsoever.
</p><p>
	ONE WHO STEALS FROM A THIEF [WHAT HE HAS ALREADY STOLEN] NEED NOT MAKE DOUBLE PAYMENT etc. Rab said: This Mishnaic ruling applies only where the theft took place before Renunciation; for if after Renunciation, the first thief would have acquired title to the article and the second thief would have had to make double payment to the first thief.<a id="k67b_17"><sup>17</sup></a>&nbsp; Said R. Shesheth: I am inclined to say that it was only when he was half asleep and in bed that Rab could have enunciated this ruling. For it was taught: R. Akiba said: Why has the Torah laid down that where the thief slaughtered or sold [the sheep or ox] he would have to make fourfold and five-fold payments [respectively]? Because he became thereby rooted in sin.<a id="k67b_18"><sup>18</sup></a>&nbsp; Now, when could this be said of him? If before Renunciation,
</P>


lvr: 41
dfh: a
notes:
 ntes={k68a_1:" In which case the article will have to remain with the purchaser, as a transfer of possession taking place after Renunciation certainly transfers ownership."
,k68a_2:" For slaughtering or selling after Renunciation when the thief has already become the legal owner of the animal."
,k68a_3:" <i>Infra</i> p. 393."
,k68a_4:" Lit., 'repeated'."
,k68a_5:" By selling the animal even though the sale is of no validity."
,k68a_6:" V. p. 388, n. 11."
,k68a_7:" For a transfer of possession before Renunciation will certainly transfer no ownership to the buyer."
,k68a_8:" P. 390, n. 5."
,k68a_9:" V. p. 394, n. 4."
,k68a_10:" Not to be subject to the law of selling or slaughtering."
,k68a_11:" To the first thief."
,k68a_12:" To the purchaser."
,k68a_13:" For a transfer of possession before Renunciation will certainly transfer no ownership to the buyer."
,k68a_14:" For selling after Renunciation when the thief has already become the legal owner of the animal."
,k68a_15:" Why not pay double to the first thief who had already become the legal owner of the object through Renunciation?"
,k68a_16:" [Why not pay double to the first thief who had already become the legal owner through effecting a change in the substance of the article stolen?]"
,k68a_17:" V. p. 391, n. 4."
,k68a_18:" Even though the teaching refers to the time after Renunciation."
,k68a_19:" <i>Supra</i> p. 380."
,k68a_20:" And for this reason the second in the middle clause has to make double payment to the buyer."
,k68a_21:" In accordance with the view of Rab."
,k68a_22:" [Mss. omit rightly 'to the thief'; v. D.S. a.l.]"
,k68a_23:" For if Renunciation took place while the article was still in the hands of the first thief, he would not have to make four-fold and five-fold payments for a subsequent sale or slaughter."
,k68a_24:" In which case the article will have to remain with the purchaser, as a transfer of possession taking place after Renunciation certainly transfers ownership."
,k68a_25:" V. p. 391, n. 6."
,k68a_26:" By selling the animal even though the sale is of no validity."
,k68a_27:" Ex. XXI, 37."
,k68a_28:" V. p. 391, n. 6."
,k68a_29:" I.e., where the sale is of legal avail."
,k68a_30:" But not any other case. "
}

txt:
<p>
could he then be called 'rooted in sin' [since the sale is of no validity]? It must therefore be after Renunciation.<a id="k68a_1"><sup>1</sup></a>&nbsp; But if you assume that Renunciation transfers ownership, why should he make four-fold and five-fold payments,<a id="k68a_2"><sup>2</sup></a>&nbsp; when it is his that he slaughters and his that he sells? &mdash; It may, however, be said as Raba stated elsewhere,<a id="k68a_3"><sup>3</sup></a>&nbsp; that it means 'because he doubled<a id="k68a_4"><sup>4</sup></a>&nbsp; his sin,' so likewise here it means, 'because he doubled his sin.'<a id="k68a_5"><sup>5</sup></a>
</p><p>
	Come and hear: 'He slaughtered it and sold it;<a id="k68a_6"><sup>6</sup></a>&nbsp; just as the slaughter cannot be undone so the sale cannot be undone.' Now, when could this be so? If before Renunciation, why can it not be undone?<a id="k68a_7"><sup>7</sup></a>&nbsp; It must surely therefore be after Renunciation.<a id="k68a_1"><sup>1</sup></a>&nbsp; But if you assume that Renunciation transfers ownership, why should he pay fourfold and five-fold<a id="k68a_8"><sup>8</sup></a>&nbsp; when it is his that he slaughters and his that he sells? &mdash; As R. Nahman stated elsewhere, that it means to except a case where he transferred the animal for thirty days,<a id="k68a_9"><sup>9</sup></a>&nbsp; so also here it means to except a case where he transferred the beast for thirty days.<a id="k68a_10"><sup>10</sup></a>
</p><p>
	An objection was raised [against this]: If a man steals an article and another comes and steals it from him, the first thief has to make double payment, whereas the second will not pay [anything] but the principal alone.<a id="k68a_11"><sup>11</sup></a>&nbsp; If, however, one stole [a sheep or an ox] and sold it, after which another one came and stole it, the first thief has to make four-fold and five-fold payments [respectively], while the second has to make double payment.<a id="k68a_12"><sup>12</sup></a>&nbsp; If one stole [a sheep or an ox] and slaughtered it, and another one came and stole it, the first thief will make four-fold and five-fold payments [respectively], whereas the second has not to make double payment but to repay the principal only.<a id="k68a_11"><sup>11</sup></a>&nbsp; Now, it has been taught in the middle clause: 'If however, one stole [a sheep or an ox] and sold it, after which another came and stole it, the first thief has to make four-fold and five-fold payments [respectively], while the second has to make double payment.'<a id="k68a_12"><sup>12</sup></a>&nbsp; But when could this be? If before Renunciation, why should the second make<a id="k68a_12"><sup>12</sup></a>&nbsp; double payment?<a id="k68a_13"><sup>13</sup></a>&nbsp; Is there any authority who maintains that a change in possession without Renunciation transfers ownership? It must therefore be after Renunciation. But if you assume that Renunciation transfers ownership, why then has he to make four-fold and five-fold payments,<a id="k68a_14"><sup>14</sup></a>&nbsp; seeing that it is his which he sold? And further, it was taught in the opening clause: 'If a man steals an article and another comes and steals it from him, the first thief has to make double payment, but the second will not pay [anything] but the principal.'<a id="k68a_11"><sup>11</sup></a>&nbsp; Now, since it is the time after Renunciation with which we are dealing, if you assume that Renunciation transfers ownership, why should the second 'not pay anything but the principal'?<a id="k68a_15"><sup>15</sup></a>&nbsp; Does not this show that Renunciation does not transfer ownership, in contradiction to the view of Rab? &mdash; Raba said: Do you really think that the text of this teaching is correct? For was it not taught in the concluding clause: 'If one stole [a sheep or an ox] and slaughtered it and another came and stole it, the first thief will make fourfold and five-fold payments [respectively], whereas the second has to pay nothing but the principal'? Now, is there any authority who maintains that a change in substance does not transfer ownership?<a id="k68a_16"><sup>16</sup></a>&nbsp; It must therefore surely still be said that the whole teaching refers to the time before Renunciation, but we have to transpose the ruling of the concluding clause to the case in the middle clause, and the ruling of the middle clause to the case in the concluding clause and read thus: If one stole [a sheep or an ox] and sold it, and another came and stole it, the first thief has to make four-fold and five-fold payments [respectively], but the second has not to pay anything but the principal, as a change in possession without Renunciation transfers no ownership. If, however, one stole [a sheep or an ox] and slaughtered it and another came and stole it, the first thief makes four-fold and five-fold payments [respectively], and the second makes double payment,<a id="k68a_17"><sup>17</sup></a>&nbsp; as ownership was transferred [to the first thief] by the change in substance.' R. Papa, however, said: All the same<a id="k68a_18"><sup>18</sup></a>&nbsp; you need not transpose [the rulings], since [we may say that] the concluding clause is in accordance with Beth Shammai, who maintain<a id="k68a_19"><sup>19</sup></a>&nbsp; that a change leaves the article in its previous status. But if so [that it was after Renunciation], will not the opening clause and middle clause be in contradiction to the view of Rab? &mdash; R. Zebid therefore said: The whole text could still refer to the time before Renunciation, as we are dealing here with a case where the owner abandoned hope [of regaining the stolen object] when it was already in the possession of the buyer, but had not abandoned it while it was still in the possession of the thief, so that [so far as the buyer was concerned] there was Renunciation [as well as a change in possession].<a id="k68a_20"><sup>20</sup></a>&nbsp; You should, however, not think [that this is so] because we need both Renunciation and a change in possession for the purpose of transferring ownership, as even Renunciation alone would also transfer ownership<a id="k68a_21"><sup>21</sup></a>&nbsp; to the thief.<a id="k68a_22"><sup>22</sup></a>&nbsp; It is, however, impossible to find a case in which both the first thief and the second thief should simultaneously pay except in this way.<a id="k68a_23"><sup>23</sup></a>
</p><p>
	It was stated: If the thief sells before Renunciation, R. Nahman said that he is liable, while R. Shesheth said that he is exempt. R. Nahman who said that he would be liable held that since the Divine Law says <i>'and he sold it</i>' and as the thief [in this case] did sell it, it makes no difference whether it was before Renunciation or after Renunciation, while R. Shesheth, who said that he would be exempt, held that the liability was only where he sold it after Renunciation,<a id="k68a_24"><sup>24</sup></a>&nbsp; where the act has a legal validity, whereas before Renunciation, when the act has no legal validity,<a id="k68a_25"><sup>25</sup></a>&nbsp; there could be no liability, as selling is compared to slaughter where it is necessary that the act should be of practical avail. R. Shesheth said: Whence have I inferred the view expressed by me? It was taught: 'R. Akiba said: Why does the Torah say that where the thief slaughtered and sold the stolen [sheep or ox] he should make four-fold and five-fold payments respectively? Because he became thereby rooted in sin.' Now, when could this be said of him? If before Renunciation, could he then be called 'rooted in sin' [since the sale is of no legal validity]?<a id="k68a_25"><sup>25</sup></a>&nbsp; Must it therefore not be after Renunciation?<a id="k68a_24"><sup>24</sup></a>&nbsp; &mdash; Raba said: It only means, because he doubled his sin.<a id="k68a_26"><sup>26</sup></a>
</p><p>
	Come and hear: <i>'And he slaughtered it or sold it</i>,'<a id="k68a_27"><sup>27</sup></a>&nbsp; just as slaughter cannot be undone, so the sale [must be one] which cannot be undone.' Now, when could this be so? If before Renunciation, why can it not be undone?<a id="k68a_28"><sup>28</sup></a>&nbsp; Must it therefore not be after Renunciation,<a id="k68a_29"><sup>29</sup></a>&nbsp; thus proving that the liability is only if it is sold<i> after</i> Renunciation?<a id="k68a_29"><sup>29</sup></a>&nbsp; &mdash; But R. Nahman interpreted it merely to except a case where he transferred the animal for thirty days.<a id="k68a_30"><sup>30</sup></a>&nbsp; Also R. Eleazar maintained that the liability would be only after Renunciation, as R. Eleazar stated:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k68b_1:" [Since he conditions the liability of the fourfold and five-fold by the fact that the owner had despaired of the stolen article, it is evident that he agrees with R. Shesheth.]"
,k68b_2:" [Even where the sale is of no legal avail.]"
,k68b_3:" R. Eleazar thus inferred from this that in ordinary thefts there is immediate Renunciation on the part of the owner."
,k68b_4:" I.e., R. Eleazar."
,k68b_5:" Ex. XXI, 16."
,k68b_6:" For surely no human being will abandon himself."
,k68b_7:" As also maintained by R. Nahman."
,k68b_8:" Does he agree in this with Rab, <i>supra</i> p. 390?"
,k68b_9:" V. p. 390, n. 5."
,k68b_10:" For the theft."
,k68b_11:" For the slaughter as it was a consecrated animal that he slaughtered, and there is no liability for stealing and selling and slaughtering consecrated animals (<i>infra</i> p. 427; Git. 55b)."
,k68b_12:" Lev. XXVII, 14."
,k68b_13:" For immovables even when misappropriated always remain in the possession of the owner"
,k68b_14:" Excluding thus a thief consecrating misappropriated property."
,k68b_15:" In which case the article could become consecrated, as a transfer of possession following Renunciation transfers ownership."
,k68b_16:" V. p. 390, n. 2."
,k68b_17:" I.e., Resh Lakish to R. Johanan."
,k68b_18:" Not the thief."
,k68b_19:" [Before Renunciation.]"
,k68b_20:" <i>Infra</i> p. 397; B.M. 7a."
,k68b_21:" The robber."
,k68b_22:" The owner."
,k68b_23:" I.e., Resh Lakish."
,k68b_24:" [ [H] (plur. [H]) 'denotes a positive quality, probably nothing else but discretion or modesty', Buchler, Types (<I>contra</I> Kohler, who identifies the <I>Zenu'im</I> with Essenes) pp. 59 ff.]"
,k68b_25:" In its fourth year, the fruit of which is prohibited unless redeemed, cf. Lev. XIX, 24."
,k68b_26:" Which seems to show that fruits already misappropriated could also be redeemed by the owner and thus also consecrated. (M.Sh. V, 1)."
,k68b_27:" For the distinction between robber and thief in this respect cf. <i>infra</i> p. 452. >"
}

txt:
<p>
'You can take it for granted that in the ordinary run of thefts there is Renunciation on the part of the owner; since the Torah has laid down that where the thief slaughtered or sold [the stolen sheep or ox] he should pay fourfold or five-fold payments [respectively]. For is there not a possibility that the owner had not abandoned hope? We must therefore say that in the ordinary run of thefts there is Renunciation on the part of the owner.'<a id="k68b_1"><sup>1</sup></a>&nbsp; But why should the liability not hold good even where hope was not abandoned?<a id="k68b_2"><sup>2</sup></a>&nbsp; &mdash; I would say, let not this enter your mind. For selling is placed on a par with slaughter: just as in the case of slaughter his act is of practical avail, so also in the case of selling his act should be of practical validity; and if it takes place before Renunciation, what would be the legal validity?<a id="k68b_1"><sup>1</sup></a>&nbsp; But again can it not be [that the liability is confined to cases] where we actually heard the owner abandoning hope? &mdash; I would reply, let not this enter your mind. For selling is put on a par with slaughter, and just as slaughter involves liability [if carried out] immediately [after the theft], so would selling similarly involve liability soon after the theft.<a id="k68b_3"><sup>3</sup></a>
</p><p>
	R. Johanan said to him:<a id="k68b_4"><sup>4</sup></a>&nbsp; The law in the case of stealing a man<a id="k68b_5"><sup>5</sup></a>&nbsp; could prove that even where there is no Renunciation on the part of the owner<a id="k68b_6"><sup>6</sup></a>&nbsp; there will be liability. This statement seems to show that R. Johanan held that selling before Renunciation involves liability.<a id="k68b_7"><sup>7</sup></a>&nbsp; What then about selling after Renunciation?<a id="k68b_8"><sup>8</sup></a>&nbsp; &mdash; R. Johanan said that the thief is liable, but Resh Lakish said he is exempt. R. Johanan who said that he would be liable held that the liability was both before Renunciation and after Renunciation. But Resh Lakish, who said that he would be exempt,<a id="k68b_9"><sup>9</sup></a>&nbsp; maintained that the liability was only before Renunciation, whereas after Renunciation he would have already acquired title to the animal, and it was his that he slaughtered and his that he sold.
</p><p>
	R. Johanan objected to Resh Lakish's view [from the following:] If he stole [a sheep or an ox] and after consecrating it slaughtered it, he should make double payment<a id="k68b_10"><sup>10</sup></a>&nbsp; but would not make four-fold and five-fold payments.<a id="k68b_11"><sup>11</sup></a>&nbsp; Now, when could this be? If before Renunciation, how does the animal become consecrated? Does not the Divine Law say 'And when a man shall sanctify his house to be holy',<a id="k68b_12"><sup>12</sup></a>&nbsp; [implying that] just as his house is his,<a id="k68b_13"><sup>13</sup></a>&nbsp; so also anything he consecrates must be his?<a id="k68b_14"><sup>14</sup></a>&nbsp; It must therefore apply to the time after Renunciation.<a id="k68b_15"><sup>15</sup></a>&nbsp; Now the reason is that he consecrated it: he has not to make four-fold and five-fold payments because when he slaughtered the animal it was a consecrated animal that he slaughtered; had he not, however, consecrated it he would have had to make four-fold and five-fold payments if he would have slaughtered it. Now, if you assume that Renunciation transfers ownership why should he<a id="k68b_16"><sup>16</sup></a>&nbsp; pay since it was his that he slaughtered and his that he sold? &mdash; He replied:<a id="k68b_17"><sup>17</sup></a>&nbsp; We are dealing here with a case where, for instance, the owner<a id="k68b_18"><sup>18</sup></a>&nbsp; consecrated the animal while it was in the possession of the thief.<a id="k68b_19"><sup>19</sup></a>&nbsp; But will it in that case become consecrated? Did not R. Johanan say<a id="k68b_20"><sup>20</sup></a>&nbsp; that where a robber misappropriated an article and the owner has not abandoned hope of recovering it, neither of them is able to consecrate it: the one<a id="k68b_21"><sup>21</sup></a>&nbsp; because it is not his, the other<a id="k68b_22"><sup>22</sup></a>&nbsp; because it is not in his possession? &mdash; We might reply that he<a id="k68b_23"><sup>23</sup></a>&nbsp; had in mind the practice of the virtuous, as we have learnt: The virtuous<a id="k68b_24"><sup>24</sup></a>&nbsp; used to set aside money and to declare that whatever has been gleaned [by passers-by] from this [vineyard]<a id="k68b_25"><sup>25</sup></a>&nbsp; shall be redeemed by this money.<a id="k68b_26"><sup>26</sup></a>&nbsp; But [if the owner consecrated the animal], has not the principal thus been restored to the owner? [Why then should a thief pay double on it? &mdash; We assume a case where the consecration took place] after the case came into court [and evidence had already been given against the thief]. What were the circumstances? If the judges had already ordered him to go and pay the owner, why should exemption be only where he consecrated the animal? Why even where the owner did not consecrate it should the thief be liable? For did Raba not say that if [after the judges said], 'Go forth and pay him,' the thief slaughtered or sold the animal, he would be exempt, the reason being that since the judges had given their final sentence on the matter, when he sold or slaughtered the animal, he became [in the eye of the law] a 'robber', and a 'robber' has not to pay four-fold and five-fold payments,<a id="k68b_27"><sup>27</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k69a_1:" Subject to the law of paying four-fold and five-fold payments."
,k69a_2:" <i>Supra</i> p. 396."
,k69a_3:" The robber."
,k69a_4:" The owner."
,k69a_5:" Shab. 46a."
,k69a_6:" M.Sh. V, I."
,k69a_7:" In time, as after tilling, sowing and reaping."
,k69a_8:" Cf. Lev, XIX, 24."
,k69a_9:" I.e., during the first three years when the fruits are totally forbidden in accordance with Lev. XIX, 23."
,k69a_10:" As nothing could grow in them properly."
,k69a_11:" Cf. Lev. XXV, 6-7."
,k69a_12:" When the fruits were not ownerless."
,k69a_13:" As it was wrong for passers-by to misappropriate the fruits, they need not be warned by all these signs to abstain from using them in the forbidden manner. [This last passage occurs only in the Jerusalem version of the Mishnah, not in the Babylonian.]"
,k69a_14:" V. p. 396, n. 8."
,k69a_15:" Who made the immediately preceding statement."
,k69a_16:" B.M. 38b."
,k69a_17:" In B.B. 174a."
,k69a_18:" In Git. 77a."
,k69a_19:" In Sanh. 31a."
,k69a_20:" In the words of the 'virtuous'."
,k69a_21:" In the past."
,k69a_22:" In the future, so that the redemption will take effect retrospectively from the moment this statement was made, when the gleanings were still in the possession of the owner."
,k69a_23:" Tosef. <i>Pe'ah</i> II, 4."
,k69a_24:" As each two ears falling together may be gleaned by the poor who need not tithe them, but not so is the case regarding three ears falling together. Not all the poor, however, know this distinction. It is therefore meritorious on the part of the owner to abandon those which are gleaned by the poor unlawfully."
,k69a_25:" I.e., retrospectively."
,k69a_26:" [From this it follows that the declaration of the virtuous was likewise related to the past.]"
,k69a_27:" So that it was R. Dosa who said 'whatever the poor shall glean.'"
,k69a_28:" Of 'the virtuous and R. Dosa.'"
,k69a_29:" Where R. Judah and R. Dosa differ."
,k69a_30:" I.e., Retrospective designation of that which was abandoned at a time when it was not defined; cf. also <i>supra</i> 51b."
,k69a_31:" Tosef. Dem. VIII, 5. "
}

txt:
<p>
but if they merely said to him, 'You are liable to pay him,' and after that he slaughtered or sold the animal, he would be liable to pay four-fold or five-fold payment, the reason being that since they have not pronounced final sentence upon the matter he is still a thief?<a id="k69a_1"><sup>1</sup></a>&nbsp; &mdash; No, its application is necessary where they have as yet merely said to him, 'You are liable to pay him'.
</p><p>
	The above text states:<a id="k69a_2"><sup>2</sup></a>&nbsp; 'R. Johanan said: If a robber misappropriated an article and the owner has not abandoned hope of recovering it neither of them is able to consecrate it: the one<a id="k69a_3"><sup>3</sup></a>&nbsp; because it is not his, the other<a id="k69a_4"><sup>4</sup></a>&nbsp; because it is not in his possession.' Could R. Johanan really have said this? Did not R. Johanan say<a id="k69a_5"><sup>5</sup></a>&nbsp; that the <i>halachah</i> is in accordance with an anonymous Mishnah; and we have learnt:<a id="k69a_6"><sup>6</sup></a>&nbsp; 'In the case of a vineyard in its fourth year, the owners used to mark it with clods of earth', the sign implying an analogy to earth: just as in the case of earth a benefit may ensue from it,<a id="k69a_7"><sup>7</sup></a>&nbsp; so also the fruit of this vineyard<a id="k69a_8"><sup>8</sup></a>&nbsp; will after being redeemed be permitted to be enjoyed. 'That of <i>'orlah</i><a id="k69a_9"><sup>9</sup></a>&nbsp; used to be marked with potsherds', the sign indicating a similarity with potsherds: just as in the case of potsherds no benefit ensues from them,<a id="k69a_10"><sup>10</sup></a>&nbsp; so also the fruit of <i>'orlah</i><a id="k69a_9"><sup>9</sup></a>&nbsp; could not be enjoyed for any use whatever. 'A field of graves used to be marked with lime', the sign having the colour of white, like corpses. 'The lime was dissolved in water and then poured out' so as to make its colour more white. 'R. Simeon b. Gamaliel said: These practices were recommended only for the Sabbatical year,' when the fruits on the trees were ownerless;<a id="k69a_11"><sup>11</sup></a>&nbsp; 'for in the case of the other years of the Septennate,<a id="k69a_12"><sup>12</sup></a>&nbsp; you may let the wicked stuff themselves with it till they die.<a id="k69a_13"><sup>13</sup></a>&nbsp; The virtuous however used to set aside money and to declare that whatever has been gleaned from this [vineyard] shall be redeemed by this money.'<a id="k69a_14"><sup>14</sup></a>&nbsp; Does not this contradict R. Johanan? Nor can you urge in reply that the Tanna who recorded the practice of the virtuous was R. Simeon b. Gamaliel,<a id="k69a_15"><sup>15</sup></a>&nbsp; [and R. Johanan might therefore not have concurred with this anonymous view stated by a single Tanna] for did not Rabbah b. Bar Hanah say<a id="k69a_16"><sup>16</sup></a>&nbsp; that R. Johanan stated that whenever R. Simeon expressed a view in a Mishnah the <i>halachah</i> is in accordance with him, with the exception of his view regarding 'Suretyship'.<a id="k69a_17"><sup>17</sup></a>&nbsp; 'Sidon'<a id="k69a_18"><sup>18</sup></a>&nbsp; and the 'last [case dealing with] evidence'?<a id="k69a_19"><sup>19</sup></a>&nbsp; &mdash; I may reply that you should not read,<a id="k69a_20"><sup>20</sup></a>&nbsp; 'whatever has been gleaned'<a id="k69a_21"><sup>21</sup></a>&nbsp; but read 'whatever will be gleaned'<a id="k69a_22"><sup>22</sup></a>&nbsp; from this [vineyard]. But could R. Johanan have said this: Did not R. Johanan say that the virtuous and R. Dosa said the same thing, and, as we know, R. Dosa definitely stated 'whatever has been gleaned'?<a id="k69a_21"><sup>21</sup></a>&nbsp; For was it not taught:<a id="k69a_23"><sup>23</sup></a>&nbsp; R. Judah says: In the morning the owner of the field should get up and say 'whatever the poor shall glean during the day should be considered ownerless<a id="k69a_24"><sup>24</sup></a>&nbsp; [from the present moment]'.<a id="k69a_25"><sup>25</sup></a>&nbsp; whereas R. Dosa says: It is at eveningtide that he should say, 'Whatever the poor have gleaned shall be ownerless'!<a id="k69a_26"><sup>26</sup></a>&nbsp; &mdash; I must transpose the view of R. Judah to R. Dosa<a id="k69a_27"><sup>27</sup></a>&nbsp; and the view of R. Dosa to R. Judah. But why transpose this teaching, and not transpose instead<a id="k69a_28"><sup>28</sup></a>&nbsp; the statement of R. Johanan, assigning to 'the virtuous and to R. Judah the same thing'? &mdash; It may, however, be said that it was impossible not to transpose this teaching,<a id="k69a_29"><sup>29</sup></a>&nbsp; since in this teaching<a id="k69a_29"><sup>29</sup></a>&nbsp; it is stated that R. Judah upholds <i>bererah</i><a id="k69a_30"><sup>30</sup></a>&nbsp; and we find R. Judah holding in other places that there is not <i>bererah</i> as we have learnt<a id="k69a_31"><sup>31</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k69b_1:" And has thus to set aside both the priestly portion, called <i>terumah</i>, and the first tithe for the Levite and the second tithe to be redeemed or partaken of in Jerusalem."
,k69b_2:" And without having the time to separate the portions to be set aside."
,k69b_3:" Logs (v. <a href=\"../tglossary.html\">Glos.</a>) which he bought."
,k69b_4:" For the priests, (v. <a href=\"../tglossary.html\">Glos.</a>)."
,k69b_5:" For the Levites, v. Num. XVIII, 21."
,k69b_6:" Cf. Deut. XIV, 22-25."
,k69b_7:" Maintaining retrospective designation, so that the wine set aside after Sabbath for the respective portions will be considered the very wine which was destined at the outset to be set aside."
,k69b_8:" As they maintain no retrospective designation which would make the wine drunk the unconsecrated and that which remained the part originally consecrated. [This shows that R. Judah does not uphold <I>Bererah</I>, thus necessitating the transposition of the Baraitha in <i>Pe'ah</i>.]"
,k69b_9:" V. p. 398, n. 7."
,k69b_10:" V. p. 398, n. 8."
,k69b_11:" V. p. 398, n. 16."
,k69b_12:" Bez. 37b; Git. 25a and 48a."
,k69b_13:" For the portion chosen by each brother for himself could not be considered as having thus retrospectively become the very inheritance designated for him."
,k69b_14:" In accordance with Lev. XXV, 13."
,k69b_15:" In the words of the 'virtuous'."
,k69b_16:" [In maintaining that a consecration made by the owner even before renunciation is not valid, in opposition to the principle underlying the declaration of the 'virtuous'.]"
,k69b_17:" <i>Supra</i> p. 363."
,k69b_18:" Ex. XXII, 6."
,k69b_19:" The first thief."
,k69b_20:" The owner."
,k69b_21:" This proves that the lack of possession is a defect in the very ownership, and if an article out of possession is not subject to double payment it could neither be subject to the law of consecration and alienation which are incidents of ownership."
,k69b_22:" V. I.e., R. Johanan."
,k69b_23:" V. p. 396, n. 8."
,k69b_24:" V. Lev. XXII, 14."
,k69b_25:" V. p. 395, n. 8."
,k69b_26:" Excluding thus an owner consecrating movables out of his possession; and because of this Scriptural authority R. Johanan deviated from the view of the 'virtuous'."
,k69b_27:" Dealing with the vineyard in the fourth year misappropriated by passers by."
,k69b_28:" Dealing with the gleaning of the poor."
,k69b_29:" V. <i>supra</i> p. 398."
,k69b_30:" To safeguard him from partaking of forbidden fruits."
,k69b_31:" Who are not out to commit theft and should consequently the more so be safeguarded from partaking of produce that has not been tithed."
,k69b_32:" Kid. 24a."
,k69b_33:" To be partaken of in Jerusalem, cf. Deut. XIV, 22-26."
,k69b_34:" So that the original owner is but an invitee without possessing any legal ownership."
,k69b_35:" Lev. XXVII, 31."
,k69b_36:" Whereas one redeeming the second tithe of another person does not add a fifth."
,k69b_37:" Lev. XIX, 24."
,k69b_38:" Ibid. XXVII, 30."
,k69b_39:" In the case of each three ears falling together."
,k69b_40:" [Thus, had not R. Johanan said that the virtuous and R. Dosa said the same thing, it could rightly be argued that the virtuous would not apply their principle to the gleaning.] "
}

txt:
<p>
: 'If a man buys wine from among the Cutheans<a id="k69b_1"><sup>1</sup></a>&nbsp; [and it was late on Friday towards sunset and he has no other wine for the Sabbath]<a id="k69b_2"><sup>2</sup></a>&nbsp; may say 'two logs [out of a hundred<a id="k69b_3"><sup>3</sup></a>] which I intend to set aside are <i>terumah</i>,<a id="k69b_4"><sup>4</sup></a>&nbsp; ten are the first tithe<a id="k69b_5"><sup>5</sup></a>&nbsp; and nine the second tithe,' and these he may redeem [upon money anywhere in his possession],<a id="k69b_6"><sup>6</sup></a>&nbsp; and he may commence drinking at once. So R. Meir.<a id="k69b_7"><sup>7</sup></a>&nbsp; But R. Judah, R. Jose and R. Simon prohibit this.<a id="k69b_8"><sup>8</sup></a>&nbsp; To this I may rejoin: When all is said and done, why have you transposed [the views mentioned in the Baraitha]? Because R. Judah would otherwise contradict R. Judah! But would not now R. Johanan contradict R. Johanan? For you stated according to R. Johanan that we should not read 'whatever has been gleaned'<a id="k69b_9"><sup>9</sup></a>&nbsp; but read 'whatever will be gleaned',<a id="k69b_10"><sup>10</sup></a>&nbsp; thus proving that he upholds <i>bererah</i><a id="k69b_11"><sup>11</sup></a>&nbsp; whereas in fact R. Johanan does not uphold <i>bererah</i>. For did not R. Assi say<a id="k69b_12"><sup>12</sup></a>&nbsp; that R. Johanan stated that brothers dividing an inheritance are like purchasers<a id="k69b_13"><sup>13</sup></a>&nbsp; [in the eye of the law], so that they will have to restore the portions to one another on the advent of the jubilee year?<a id="k69b_14"><sup>14</sup></a>&nbsp; &mdash; We must therefore still read<a id="k69b_15"><sup>15</sup></a>&nbsp; 'whatever has been gleaned',<a id="k69b_9"><sup>9</sup></a>&nbsp; and [say that] R. Johanan<a id="k69b_16"><sup>16</sup></a>&nbsp; found another anonymous Mishnah, as we have indeed learnt: ONE WHO STEALS [ARTICLES ALREADY STOLEN] IN THE HANDS OF A THIEF NEED NOT MAKE DOUBLE PAYMENT.<a id="k69b_17"><sup>17</sup></a>&nbsp; Why should this be? We grant you that he need not pay the first thief, [since Scripture says:] And it be stolen out of the man's house,<a id="k69b_18"><sup>18</sup></a>&nbsp; [implying] 'but not out of the house of the thief'. But why not pay the owner? We must say that this shows that the one<a id="k69b_19"><sup>19</sup></a>&nbsp; is not entitled to payment because the stolen article is not his, and the other one<a id="k69b_20"><sup>20</sup></a>&nbsp; is not entitled to payment as the article is not in his possession.<a id="k69b_21"><sup>21</sup></a>&nbsp; &mdash; But what induced him<a id="k69b_22"><sup>22</sup></a>&nbsp; to follow that anonymous Mishnah?<a id="k69b_17"><sup>17</sup></a>&nbsp; Why should he not act in accordance with the anonymous Mishnah dealing with the virtuous?<a id="k69b_23"><sup>23</sup></a>&nbsp; &mdash; Because he was supported by the verse: And when the man shall sanctify his house to be holy unto the Lord,<a id="k69b_24"><sup>24</sup></a>&nbsp; just as his house is in his possession,<a id="k69b_25"><sup>25</sup></a>&nbsp; so anything also which is in his possession can be sanctified.<a id="k69b_26"><sup>26</sup></a>
</p><p>
	Abaye said: If R. Johanan had not stated that the virtuous<a id="k69b_27"><sup>27</sup></a>&nbsp; and R. Dosa<a id="k69b_28"><sup>28</sup></a>&nbsp; said the same thing,<a id="k69b_29"><sup>29</sup></a>&nbsp; I might have said that while the virtuous accepted the view of R. Dosa, R. Dosa did not uphold the practice of the virtuous. The virtuous accepted the view of R. Dosa; for if the Rabbis made things easier for a thief,<a id="k69b_30"><sup>30</sup></a>&nbsp; need we say they did so for the poor?<a id="k69b_31"><sup>31</sup></a>&nbsp; But R. Dosa did not uphold the practice of the virtuous: for it was only for the poor<a id="k69b_31"><sup>31</sup></a>&nbsp; that the Rabbis made things easier, whereas for the thief they did not make things easier.<a id="k69b_30"><sup>30</sup></a>&nbsp; Raba said: Had R. Johanan not stated that the virtuous and R. Dosa said the same thing, I should have said that the Tanna followed by the virtuous was R. Meir. For did not R. Meir say<a id="k69b_32"><sup>32</sup></a>&nbsp; that the [second] tithe<a id="k69b_33"><sup>33</sup></a>&nbsp; is Divine property,<a id="k69b_34"><sup>34</sup></a>&nbsp; and even so the Divine Law placed it in the owner's possession in respect of redemption, as written: <i>And if a man will redeem aught of</i> his tithe, <i>he shall add unto it the fifth part thereof</i>,<a id="k69b_35"><sup>35</sup></a>&nbsp; the Divine Law thus designating it 'his tithe' and ordering him to add a fifth.<a id="k69b_36"><sup>36</sup></a>&nbsp; The same applies to the vineyard in the fourth year, as can be derived from the occurrence of the term <i>'holy</i>' there<a id="k69b_37"><sup>37</sup></a>&nbsp; and in the case of the tithe.<a id="k69b_38"><sup>38</sup></a>&nbsp; For it is written here<i> 'shall be holy to praise'</i>,<a id="k69b_37"><sup>37</sup></a>&nbsp; and it is written in the case of tithe, <i>'And all tithe of the land whether of seed of the land or of the fruit of the tree it is holy</i>':<a id="k69b_38"><sup>38</sup></a>&nbsp; just as the 'holy' mentioned in connection with tithe although it is divine property, has nevertheless been placed by the Divine Law in the possession of the owner for the purpose of redemption, so also the 'holy' mentioned in connection with a vineyard of the fourth year, although the property is not his own, has been placed by the Divine Law in his possession for the purpose of redemption; now seeing that even when it is in his possession it is not his and yet he may redeem it; hence he may be able to redeem it [also when out of his possession]. But in the case of the gleaning [of ears of corn] which is his own property,<a id="k69b_39"><sup>39</sup></a>&nbsp; it is only when it is [still] in his [own] possession that he is able to declare it ownerless, whereas when not in his possession he should not be entitled to declare it ownerless.<a id="k69b_40"><sup>40</sup></a>
</p><p>
	Rabina said: Had R. Johanan not stated that the virtuous and R. Dosa said the same thing, I should have said that the Tanna stating the case of the virtuous was R. Dosa, so that this anonymous Mishnah would not refute the view of R. Johanan, for R. Johanan
</P>


lvr: 41
dfh: a
notes:
 ntes={k70a_1:" Shebu. 33b and Bek. 49a."
,k70a_2:" But if they are in the possession of a bailee they could be assigned as they are considered in the possession of the depositor (Tosaf.)."
,k70a_3:" Since the bailee denies them."
,k70a_4:" The assignee."
,k70a_5:" V. B.M. 8a."
,k70a_6:" For the benefit of the defendant even where the prescribed clause 'to go forth and secure for himself' etc. was not inserted in the instrument of assignment. According, however, to Gaonic interpretation it means that the assignee may retain the articles against the assignor (v. Rashi)."
,k70a_7:" By the assignor."
,k70a_8:" And could therefore not retain the articles either against the defendant in the circumstances dealt with in the first interpretation, or against the assignor in accordance with the Gaonic interpretation."
,k70a_9:" Whether he was made a partner or an agent."
,k70a_10:" [Asheri and Alfasi omit, 'The law is, etc.']"
,k70a_11:" Cf. Deut. XIX, 15."
,k70a_12:" Respectively."
,k70a_13:" For though it is prohibited to do any business transactions on the Sabbath day, no capital charge is thereby involved, and civil liability could thus be established; cf. Gemara."
,k70a_14:" As for desecrating the Day of Atonement in contradistinction to the Sabbath no capital charge is involved, the sole punishment at the hand of man being thirty-nine lashes."
,k70a_15:" And the thief became an heir to the estate."
,k70a_16:" For the slaughter which preceded the consecration."
,k70a_17:" I.e., ritually unfit to be eaten owing to an organic defect in the animal; v. <a href=\"../tglossary.html\">Glos.</a>"
,k70a_18:" I.e., the precincts of the Temple where only sacrificial animals might be slaughtered."
,k70a_19:" As the ritual unfitness of the animal in the last two cases is not due to a defect in the act of slaughter but arises through other circumstances."
,k70a_20:" For he is of the opinion that if the slaughter does for any reason whatsoever not effect the ritual fitness of the animal to be eaten, it is not considered in the eye of the law as a slaughter."
,k70a_21:" A matter shall be established by two witnesses, Deut. XIX, 15."
,k70a_22:" V. B.B. 56a. "
}

txt:
<p>
would have been right in not concurring with an anonymous statement of a single Tanna.
</p><p>
	The Nehardeans said: We do not execute an assignment on movables<a id="k70a_1"><sup>1</sup></a>&nbsp; [which are outside the possession of the parties].<a id="k70a_2"><sup>2</sup></a>&nbsp; Said R. Ashi to Amemar: On what ground? He replied: Because of the view of R. Johanan. For R. Johanan said: If a robber has misappropriated an article and the owner has not abandoned hope of recovering it, neither of them is able to consecrate it; the one because it is not his, the other because it is not in his possession. Some read that the Nehardeans said: We do not execute an assignment on movables [the claim upon which] was denied [by a bailee]. The reason is that the claim was denied, as the deed of assignment would then appear a lie,<a id="k70a_3"><sup>3</sup></a>&nbsp; whereas where it is not denied, we would be able to execute. The Nehardeans further said: An assignment which does not contain the words, 'Go forth and take legal action so that you may acquire title to it and secure the claim for yourself' is of no validity, the reason being that the defendant might say to him:<a id="k70a_4"><sup>4</sup></a>&nbsp; 'You have no claim against me'. But Abaye said: If it is written, 'You will be entitled to a half or a third or a fourth of the claim', it would be valid, for since he is entitled to litigate regarding the half, he is also entitled to litigate regarding the whole.<a id="k70a_5"><sup>5</sup></a>&nbsp; Amemar said: [In any case] where the assignee became possessed of articles belonging to the defendant, we would not take them away from him.<a id="k70a_6"><sup>6</sup></a>&nbsp; But R. Ashi said: Since it was written for him,<a id="k70a_7"><sup>7</sup></a>&nbsp; 'Whatever will be imposed by the Court of Law I accept upon myself', he was surely appointed but an agent.<a id="k70a_8"><sup>8</sup></a>&nbsp; Some, however, say that he is made a partner. What is the practical difference?<a id="k70a_9"><sup>9</sup></a>&nbsp; Whether he may remain possessed of a half. The law is that he is appointed only an agent.<a id="k70a_10"><sup>10</sup></a>
<P>
	<B><I>MISHNAH</I></B>. IF A THIEF IS CONVICTED OF THE THEFT [OF A SHEEP OR AN OX] ON THE EVIDENCE OF TWO WITNESSES,<a id="k70a_11"><sup>11</sup></a>&nbsp; AND OF THE SLAUGHTER OR SALE [OF IT] BY THE SAME TWO, OR ON THE EVIDENCE OF ANOTHER TWO WITNESSES, HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT.<a id="k70a_12"><sup>12</sup></a>&nbsp; IF HE STEALS AND SELLS ON THE SABBATH DAY,<a id="k70a_13"><sup>13</sup></a>&nbsp; OR IF HE STEALS AND SELLS FOR IDOLATROUS PURPOSES, OR IF HE STEALS AND SLAUGHTERS ON THE DAY OF ATONEMENT,<a id="k70a_14"><sup>14</sup></a>&nbsp; OR IF HE STEALS FROM HIS OWN FATHER, AND AFTER HE HAD SLAUGHTERED OR SOLD, HIS FATHER DIED,<a id="k70a_15"><sup>15</sup></a>&nbsp; OR AGAIN, WHERE HE STEALS AND SLAUGHTERS AND THEN CONSECRATES IT, HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT.<a id="k70a_16"><sup>16</sup></a>&nbsp; IF HE STEALS AND SLAUGHTERS TO USE THE MEAT FOR CURATIVE PURPOSES OR TO GIVE TO DOGS, OR IF HE SLAUGHTERS AND FINDS THE ANIMAL <I>TREFA</I>,<a id="k70a_17"><sup>17</sup></a>&nbsp; OR IF HE SLAUGHTERS IT AS UNCONSECRATED IN THE 'AZARAH,<a id="k70a_18"><sup>18</sup></a>&nbsp; HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT.<a id="k70a_19"><sup>19</sup></a>&nbsp; R. SIMEON, HOWEVER, RULES THAT THERE IS EXEMPTION IN THESE [LAST] TWO CASES.<a id="k70a_20"><sup>20</sup></a>
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	<B><I>GEMARA</I></B>. Are we to say that the Mishnah is not in accordance with R. Akiba? For how could it be in accordance with R. Akiba who said that [the Scriptural term] <i>'Matter</i>'<a id="k70a_21"><sup>21</sup></a>&nbsp; implies 'not half a matter'? As indeed taught:<a id="k70a_22"><sup>22</sup></a>&nbsp; R. Jose said: 'When [my] father Halafta went to R. Johanan b. Nuri to learn Torah, or as others, when R. Johanan b. Nuri went to [my] father
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lvr: 41
dfh: b
notes:
 ntes={k70b_1:" [In accordance with B.B. III, 1, that three years of undisturbed possession are required to establish a presumptive title on the part of a possessor.]"
,k70b_2:" [And here no two witnesses testify to more than one year of occupation, which is only a third of the matter in hand. And in our Mishnah the second set of witnesses testify to no more than half a matter, i.e. the slaughter, and according to R. Akiba, should not be able to convict the thief.]"
,k70b_3:" By a valid act of <i>Kiddushin</i> (v. <a href=\"../tglossary.html\">Glos.</a>), thus making her his wife."
,k70b_4:" Lev. XX, 10."
,k70b_5:" In which case even R. Akiba will allow such evidence to be given independently by separate sets."
,k70b_6:" Who even in the case of undisturbed possession admit evidence given independently by three sets of witnesses testifying to each of the three years respectively."
,k70b_7:" The reference is to the two hairs which are the sign of puberty in a girl. V. Nid. 52a."
,k70b_8:" Whose evidence in such a case is of no effect whatsoever; cf. Deut. XIX, 15."
,k70b_9:" And it is quite obvious that evidence of this kind is of no avail."
,k70b_10:" As the appearance of one hair is no sign of puberty; but where different witnesses testify to different years, each year is considered a 'whole matter'."
,k70b_11:" To the thief who sold him the animal."
,k70b_12:" Which is a capital offence if done on the Sabbath; v. Shab. VII, 2."
,k70b_13:" It thus follows that at the very moment when the sale was completed the thief was desecrating the Sabbath by an act which renders him liable to a capital charge in which all possible civil liabilities to take effect at that time have to merge."
,k70b_14:" To give some consideration for the fig."
,k70b_15:" For since the thief would have by law to pay nothing for the consideration given him on the part of the purchaser, there should in the eye of the law be lacking any consideration at all rendering the purchase null and void."
,k70b_16:" And it is a capital offence to throw anything on Sabbath from a public thoroughfare to private premises; cf. Shab. XI, 1."
,k70b_17:" I.e., by the animal entering into the premises of the prospective purchaser in accordance with B.M. 11a and <i>supra</i> p. 283."
,k70b_18:" V. p. 405, n. 7."
,k70b_19:" Shab. 4b; 97a and Git. 79a."
,k70b_20:" So that the capital offence was committed at the very moment the transaction of sale became complete by the animal entering the air of the purchaser's court-yard; cf. B.M. 12a and Git. 79a."
,k70b_21:" Who maintain that the capital offence of desecrating the Sabbath by throwing anything from a public thoroughfare into private premises will be committed only at the moment when the object thrown falls upon the ground."
,k70b_22:" B.M. 12a and Git. 79a."
,k70b_23:" That the purchaser said to the thief, 'Pluck off a fig of my fig-tree' etc., despite your objection as to the lack of consideration."
,k70b_24:" Deut. XXIII, 19."
,k70b_25:" As the very act that should cause pecuniary liability is a capital offence in which all possible civil liabilities have to merge. "
}

txt:
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Halafta, he said to him: Suppose a man had the use of a piece of land for one year as testified by two witnesses, for a second year as testified by two other witnesses, and for a third year as testified by still two other witnesses, what is the position? &mdash; He replied: 'This is a proper usucaption'.<a id="k70b_1"><sup>1</sup></a>&nbsp; Whereupon the other rejoined: 'I also say the same, but R. Akiba joins issue on the matter for R. Akiba used to say: [Scripture states] A matter [implying] "but not half a matter"'!<a id="k70b_2"><sup>2</sup></a>&nbsp; &mdash; Abaye, however, said: You may even say that this is in accordance with R. Akiba. For would R. Akiba not agree in a case where two witnesses state that a certain person had betrothed a woman<a id="k70b_3"><sup>3</sup></a>&nbsp; and two other witnesses testify that another person had subsequently had intercourse with her,<a id="k70b_4"><sup>4</sup></a>&nbsp; that though the evidence regarding the intercourse presupposes the evidence regarding the betrothal [in order to become relevant], nevertheless, since the evidence of betrothal does not presuppose the evidence of intercourse, each testimony should be considered a matter [complete in itself]? So also here, though the evidence regarding the slaughter presupposes the evidence regarding the theft [if it is to be relevant] nevertheless since the evidence regarding the theft does not presuppose the evidence regarding the slaughter, each testimony should be considered a matter [complete in itself].<a id="k70b_5"><sup>5</sup></a>&nbsp; But according to the Rabbis<a id="k70b_6"><sup>6</sup></a>&nbsp; what will this term 'matter' [implying] 'but not half a matter' exclude? &mdash; It will exclude a case where one witness testified that there was one hair on her back<a id="k70b_7"><sup>7</sup></a>&nbsp; and the other states that there was one hair in front. But [since each hair is testified to by one witness],<a id="k70b_8"><sup>8</sup></a>&nbsp; would this not be both half a matter and half a testimony?<a id="k70b_9"><sup>9</sup></a>&nbsp; &mdash; [We must say] therefore that it excludes a case where two witnesses testify that there was one hair on her back and two other witnesses state that there was one hair in front, as in this case the one set testify that she was still a minor<a id="k70b_10"><sup>10</sup></a>&nbsp; and the others similarly testify that she was still a minor.
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	IF HE STEALS AND SELLS ON THE SABBATH DAY&nbsp;&hellip; [HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT]. But has it not been taught [elsewhere] that he would be exempt? &mdash; Said Rami b. Hama: If it was taught there that he would be exempt, it was only where the purchaser said to him:<a id="k70b_11"><sup>11</sup></a>&nbsp; 'pluck figs off my fig-tree<a id="k70b_12"><sup>12</sup></a>&nbsp; and transfer to me [in consideration of them] the objects you have stolen.'<a id="k70b_13"><sup>13</sup></a>&nbsp; It may however, be argued that seeing that if the purchaser claimed from him before us in the court<a id="k70b_14"><sup>14</sup></a>&nbsp; we would be unable to order him to go and to pay since [at the time of the alleged liability,] he became subject to a capital charge, why should not even the sale itself be declared no sale at all?<a id="k70b_15"><sup>15</sup></a>&nbsp; &mdash; R. Papa therefore said: There would be exemption [where the purchaser said to him], 'Throw your stolen objects [from a public thoroughfare] into my private courtyard,<a id="k70b_16"><sup>16</sup></a>&nbsp; and transfer to me [thereby]<a id="k70b_17"><sup>17</sup></a>&nbsp; the objects you have stolen.'<a id="k70b_18"><sup>18</sup></a>&nbsp; Whom does this follow? R. Akiba,<a id="k70b_19"><sup>19</sup></a>&nbsp; who said that an object intercepted in the air is on the same footing [regarding the law of Sabbath] as if it had already come to rest.<a id="k70b_20"><sup>20</sup></a>&nbsp; For if we were to follow the other Rabbis,<a id="k70b_21"><sup>21</sup></a>&nbsp; while the possession of the stolen objects would be transferred as soon as they reached the air of the court-yard of the purchaser's house,<a id="k70b_22"><sup>22</sup></a>&nbsp; in regard to Sabbath the capital liability would not be incurred until they have reached the actual ground!<a id="k70b_19"><sup>19</sup></a>&nbsp; &mdash; Raba thereupon said: It may still be in accordance with Rami b. Hama.<a id="k70b_23"><sup>23</sup></a>&nbsp; For the hire [of a harlot] was prohibited by the Torah<a id="k70b_24"><sup>24</sup></a>&nbsp; [from being used for the Temple] even [when given by a son] for having incestuous intercourse with his mother, irrespective of the fact that were she to have claimed it from him before us in the court, we should not have been able to order him to go and give her the hire.<a id="k70b_25"><sup>25</sup></a>&nbsp; We see then that although were she to have claimed it from him by law, we should have been unable to order him to go and pay her,<a id="k70b_25"><sup>25</sup></a>&nbsp; nevertheless when he of his own accord pays her [the hire] it will be subject to the law of the hire [of a harlot].<a id="k70b_24"><sup>24</sup></a>&nbsp; So also here regarding payment [for the figs plucked by the thief on the Sabbath], if the purchaser had claimed it by law in our presence, we should have been unable to order the thief to go and pay;<a id="k70b_25"><sup>25</sup></a>
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