# snc

lvr: 41
dfh: a
notes:
 ntes={k19a_1:" The compensation is therefore in full."
,k19a_2:" Consequently only half damages will be paid."
,k19a_3:" Coming thus under the category of Horn only half damages should be paid in the case of <i>Tam</i>."
,k19a_4:" Done by an animal making pebbles fly through kicking."
,k19a_5:" But the compensation of half damages will be made in all cases of Pebbles."
,k19a_6:" <i>Supra</i> p. 85."
,k19a_7:" For compensation in full."
,k19a_8:" And no more than half damages will ever be paid"
,k19a_9:" For if otherwise, and quarter damages will be paid in the first instance of an unusual act in the case of Pebbles, how could the compensation rise above half damages?"
,k19a_10:" Who orders full compensation in the case of Pebbles; <i>supra</i> p. 79."
,k19a_11:" I.e., Symmachus."
,k19a_12:" Ordering only half damages; v <i>supra</i> p. 79."
,k19a_13:" Who, against the view of Symmachus, order only half damages to be paid, <i>supra</i> p. 79."
,k19a_14:" Who orders full compensation in the case of Pebbles; ibid."
,k19a_15:" As to the reading of the Mishnaic text."
,k19a_16:" As queried by R. Ashi himself, <i>supra</i> p. 88."
,k19a_17:" Coming thus under the law applicable to Pebbles in the usual way."
,k19a_18:" Which is an unusual act and should thus be subject to the query put forward by Raba regarding pebbles that were caused to fly by means of an unusual act."
,k19a_19:" On account of the liability only for half damages."
,k19a_20:" Where there is liability even on public ground."
,k19a_21:" Cf. <i>supra</i> p. 9."
,k19a_22:" Since it took place on public ground."
,k19a_23:" Which is a refutation of R. Zera's first ruling."
,k19a_24:" I.e., on the last point."
,k19a_25:" Which shows that there is liability for Pebbles, i.e., for 'the second utensil,' on public ground, against the ruling of R. Zera. "
}

txt:
<p>
so that the point at issue [between the contradictory statements] will be that the one Master [the former] maintains that the law of <i>Mu'ad</i> applies [also to Pebbles]<a id="k19a_1"><sup>1</sup></a>&nbsp; whereas the other Master [the latter] holds that the law of <i>Mu'ad</i> does not apply [to Pebbles]?<a id="k19a_2"><sup>2</sup></a>&nbsp; &mdash; No, we suppose the act not to have been repeated, the point at issue being the same as that between Symmachus and the Rabbis. But is it not unusual [for a cock to crow into a utensil]?<a id="k19a_3"><sup>3</sup></a>&nbsp; &mdash; There had been some seeds there [in which case it was not unusual].
</p><p>
	R. Ashi asked: Would an unusual act<a id="k19a_4"><sup>4</sup></a>&nbsp; reduce Pebbles [by half, i.e.,] to the payment of quarter damages or would an unusual act not reduce Pebbles to the payment of quarter damages?<a id="k19a_5"><sup>5</sup></a>&nbsp; &mdash; But why not solve this question from that of Raba, for Raba asked [the following]:<a id="k19a_6"><sup>6</sup></a>&nbsp; Is there such a thing as becoming <i>Mu'ad</i> in the case of Pebbles<a id="k19a_7"><sup>7</sup></a>&nbsp; or is there no such thing as becoming <i>Mu'ad</i> in the case of Pebbles?<a id="k19a_8"><sup>8</sup></a>&nbsp; Now, does not this query imply that no unusual act [affects the law of Pebbles]?<a id="k19a_9"><sup>9</sup></a>&nbsp; &mdash; Raba may perhaps have formulated his query upon a mere supposition as follows: If you suppose that no unusual act [affects the law of Pebbles], is there such a thing as becoming <i>Mu'ad</i> [in the case of Pebbles] or is there no such thing as becoming <i>Mu'ad</i>? &mdash; Let it stand undecided.
</p><p>
	R. Ashi further asked: Is [damage occasioned by] indirect force, according to Symmachus,<a id="k19a_10"><sup>10</sup></a>&nbsp; subject to the law applicable to direct force or not so? Is he<a id="k19a_11"><sup>11</sup></a>&nbsp; acquainted with the special halachic tradition [on the matter]<a id="k19a_12"><sup>12</sup></a>&nbsp; but he confines its effect to damage done by indirect force or is he perhaps not acquainted at all with this tradition? &mdash; Let it stand undecided.
</p><p>
	IF IT WAS KICKING OR PEBBLES WERE FLYING FROM UNDER IT'S FEET AND UTENSILS WERE BROKEN, [ONLY] HALF DAMAGES WILL BE PAID. The following query was put forward: Does the text mean to say: 'If it was kicking so that damage resulted from the kicking, or in the case of pebbles flying in the usual way &hellip; [only] half damages will be paid,' being thus in accordance with the Rabbis;<a id="k19a_13"><sup>13</sup></a>&nbsp; or does it perhaps mean to say: 'If it was kicking so that damage resulted from the kicking, or when pebbles were flying as a result of the kicking&nbsp;&hellip; [only] half damages will be paid.' thus implying that in the case of pebbles flying in the usual way, the payment would be in full, being therefore in accordance with Symmachus?<a id="k19a_14"><sup>14</sup></a>
</p><p>
	Come and hear the concluding clause: IF IT TROD UPON A UTENSIL AND BROKE IT, AND A FRAGMENT [OF IT] FELL UPON ANOTHER UTENSIL WHICH WAS ALSO BROKEN, FOR THE FIRST UTENSIL FULL COMPENSATION MUST BE PAID, BUT FOR THE SECOND, [ONLY] HALF DAMAGES. Now, how could the Mishnah be in accordance with Symmachus,<a id="k19a_14"><sup>14</sup></a>&nbsp; who is against half damages [in the case of Pebbles]? If you, however, suggest that THE FIRST UTENSIL refers to the utensil broken by a fragment that flew off from the first [broken] utensil, and THE SECOND refers thus to the utensil broken by a fragment that flew off from, the second [broken] utensil, and further assume that according to Symmachus there is a distinction between damage done by direct force and damage done by indirect force [so that in the latter case only half damages will be paid], then [if so] what about the question of R. Ashi: 'Is [damage occasioned by] indirect force, according to Symmachus, subject to the law of direct force or not subject to the law of direct force?' Why is it not evident to him [R. Ashi] that it is not subject to the law applicable to direct force? &mdash; R. Ashi undoubtedly explains the Mishnah in accordance with the Rabbis, and the query<a id="k19a_15"><sup>15</sup></a>&nbsp; is put by him as follows: [Does it mean to say:] 'If it was kicking so that damage resulted from the kicking, or in the case of pebbles flying in the usual way&nbsp;&hellip; [only] half damages will be paid', thus implying that [in the case of Pebbles flying] as a result of kicking, [only] quarter damages would be paid on account of the fact that an unusual act reduces payment [in the case of Pebbles]<a id="k19a_16"><sup>16</sup></a>&nbsp; or [does it perhaps mean to say:] 'If it was kicking so that damage resulted from the kicking or when pebbles were flying as a result of the kicking &hellip; half damages will be paid,' thus making it plain that an unusual act does not reduce payment [in the case of Pebbles]? &mdash; Let it stand undecided.
</p><p>
	R. Abba b. Memel asked of R. Ammi, some say of R. Hiyya b. Abba, [the following Problem]: In the case of an animal walking in a place where it was unavoidable for it not to make pebbles fly [from under its feet], while in fact it was kicking and in this way making pebbles fly and doing damage, what would be the law? [Should it be maintained that] since it was unavoidable for it not to make pebbles fly there, the damage would be considered usual;<a id="k19a_17"><sup>17</sup></a>&nbsp; or should it perhaps be argued otherwise, since in fact the damage resulted from kicking<a id="k19a_18"><sup>18</sup></a>&nbsp; that caused the pebbles to fly? &mdash; Let it stand undecided.
</p><p>
	R. Jeremiah asked R. Zera: In the case of an animal walking on public ground and making pebbles fly from which there resulted damage, what would be the law? Should we compare this case<a id="k19a_19"><sup>19</sup></a>&nbsp; to Horn<a id="k19a_20"><sup>20</sup></a>&nbsp; and thus impose liability; or since, on the other hand, it is a derivative of Foot, should there be exemption [for damage done on public ground]? &mdash; He answered him: It stands to reason that [since] it is a secondary kind of Foot [there is exemption on Public ground].<a id="k19a_21"><sup>21</sup></a>
</p><p>
	Again [he asked him]: In a case where the pebbles were kicked up on public ground but the damage that resulted therefrom was done in the plaintiff's premises, what would be the law? &mdash; He answered him: if the cause of raising [the pebbles] is not there [to institute liability],<a id="k19a_22"><sup>22</sup></a>&nbsp; how could any liability be attached to the falling down [of the pebbles]?
</p><p>
	Thereupon he [R. Jeremiah] raised an objection [from the following]: In the case of an animal walking on the road and making pebbles fly either in the plaintiff's premises or on public ground, there is liability to pay. Now, does not this Baraitha deal with a case where the pebbles were made both to fly up on public ground and to do damage on public ground?<a id="k19a_23"><sup>23</sup></a>&nbsp; &mdash; No, though the pebbles were made to fly on public ground, the damage resulted on the plaintiff's premises. But did you not say [he asked him further, that in such a case there would still be exemption on account of the argument].'If the cause of raising [the pebbles] is not there [to institute liability], how could any liability be attached to the falling down [of the pebbles]?' He answered him: 'I have since changed my mind [on this matter].'<a id="k19a_24"><sup>24</sup></a>
</p><p>
	He raised another objection: IF IT TROD UPON A UTENSIL AND BROKE IT, AND A FRAGMENT [OF IT] FELL UPON ANOTHER UTENSIL WHICH WAS ALSO BROKEN, FOR THE FIRST UTENSIL FULL COMPENSATION MUST BE PAID, BUT FOR THE SECOND [ONLY] HALF DAMAGES. And it was taught on the matter: This ruling is confined to [damage done on] the plaintiff's premises, whereas if it took place on public ground there would be exemption regarding the first utensil though with respect to the second there would be liability to pay. Now, does not the Baraitha present a case where the fragment was made both to fly up on public ground and to do damage on public ground?<a id="k19a_25"><sup>25</sup></a>&nbsp; &mdash; No, though the fragment was made to fly on public ground, the damage resulted on the plaintiff's premises.
</p><p>
	But did you not say [that in such a case there would still be exemption on account of the argument]: 'If the cause of raising [the pebbles] is not there [to institute liability], how could any liability be attached to the falling down [of the pebbles?]'
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k19b_1:" Where indeed there is no distinction between public ground and the plaintiff's premises; (cf. however, the views of R. Tarfon, <i>supra</i> 14a; 18a and <i>infra</i> 24b), but in regard to Pebbles, there is a distinction, and liability is restricted to the plaintiff's premises, according to the ruling of R. Zera."
,k19b_2:" There will therefore be no liability."
,k19b_3:" Coming thus under the category of Foot, for which there is no liability on public ground."
,k19b_4:" Why should it not be regarded as a derivative of Foot?"
,k19b_5:" Whether it is still usual for it or not."
,k19b_6:" On public ground."
,k19b_7:" And there will be liability."
,k19b_8:" It should therefore come under the category of Tooth and Foot, for which there is no liability on public ground."
,k19b_9:" Not being the owner of the poultry."
,k19b_10:" He should consequently be freed altogether."
,k19b_11:" Ex. XXI, 33."
,k19b_12:" I.e., no responsibility is involved in cattle creating a nuisance. Cf. <i>infra</i> 48a; 51a."
,k19b_13:" As there was no owner to the string, while the owner of the poultry could not be made liable for damage that resulted from a nuisance created by his poultry on the principle that Cattle, creating a nuisance, would in no way involve the owner in any obligation."
,k19b_14:" Since that human being was neither the owner of the poultry nor the owner of the string, and the damage did not occur at the spot where he attached the string."
,k19b_15:" For which there is liability, as explained <i>supra</i> p. 19."
,k19b_16:" V. <i>supra</i> p. 68."
,k19b_17:" For being an unusual act, it comes under the category of Horn."
,k19b_18:" Cf. <i>supra</i> p. 17."
,k19b_19:" E.g., horse-beans by an ass, or meat by a pig."
,k19b_20:" Or 'split it', 'picked it to pieces' (Rashi)."
,k19b_21:" On the ground that the act was unusual and as such would come under the category of Horn."
,k19b_22:" This shows that bread is not the usual food of animal."
,k19b_23:" Which is in such a state not usually consumed even by a wild beast."
,k19b_24:" Which, as a rule, does not feed on meat."
,k19b_25:" Which was indeed unusual. "
}

txt:
<p>
 &mdash; He answered him: 'I have since changed my mind [on this matter].''
</p><p>
	But behold R. Johanan said that in regard to the liability of half damages there is no distinction between the plaintiff's premises and public ground. Now, does not this statement also deal with a case where the pebbles were made both to fly up on public ground and to do damage on public ground? &mdash; No, though the pebbles were made to fly up on public ground, the damage resulted on the plaintiff's premises. But did you not say [that in such a case there would still be exemption on account of the argument], 'If the cause of raising [the pebbles] is not there [to institute liability], how could any liability be attached to the falling down [of the pebbles]?' &mdash; He answered him: 'I have since changed my mind [on this matter].' Alternatively, you might say that R. Johanan referred only to [the liability attached to] Horn.<a id="k19b_1"><sup>1</sup></a>
</p><p>
	R. Judah [II] the Prince and R. Oshaia had both been sitting near the entrance of the house of R. Judah, when the following matter was raised between them: In the case of an animal knocking about with its tail, [and doing thereby damage on public ground] what would be the law? &mdash; One of them said in answer: Could the owner be asked to hold the tail of his animal continuously wherever it goes?<a id="k19b_2"><sup>2</sup></a>&nbsp; But if so, why in the case of Horn shall we not say the same: 'Could the owner be asked to hold the horn of his animal continuously wherever it goes?' &mdash; There is no comparison. In the case of Horn the damage is unusual, whereas it is quite usual [for an animal] to knock about with its tail.<a id="k19b_3"><sup>3</sup></a>&nbsp; But if it is usual for an animal to knock about with its tail, what then was the problem?<a id="k19b_4"><sup>4</sup></a>&nbsp; &mdash; The problem was raised regarding an excessive knocking about.<a id="k19b_5"><sup>5</sup></a>
</p><p>
	R. 'Ena queried: In the case of an animal knocking about with its membrum virile and doing thereby damage,<a id="k19b_6"><sup>6</sup></a>&nbsp; what is the law? Shall we say it is analogous to Horn?<a id="k19b_7"><sup>7</sup></a>&nbsp; For in the case of Horn do not its passions get the better of it, as may be said here also? Or shall we perhaps say that in the case of Horn, the animal is prompted by a malicious desire to do damage, whereas, in the case before us, there is no malicious desire to do damage?<a id="k19b_8"><sup>8</sup></a>&nbsp; &mdash; Let it stand undecided.
</p><p>
	POULTRY ARE <I>MU'AD</I> TO WALK IN THEIR USUAL WAY AND TO BREAK [THINGS]. IF A STRING BECAME ATTACHED TO THEIR FEET OR WHERE THEY HOP ABOUT AND BREAK UTENSILS, [ONLY] HALF DAMAGES WILL BE PAID. R. Huna said: The ruling regarding half damages applies only to a case where the string became attached of itself, but in a case where it was attached by a human being the liability would be in full. But in the case where the string was attached of itself, who would be liable to pay the half damages? It could hardly be suggested that the owner of the string<a id="k19b_9"><sup>9</sup></a>&nbsp; would have to pay it, for in what circumstances could that be possible? If when the string was kept by him in a safe place [so that the fact of the poultry taking hold of it could in no way be attributed to him], surely it was but a sheer accident?<a id="k19b_10"><sup>10</sup></a>&nbsp; If [on the other hand] it was not kept in a safe place, should he not be liable for negligence [to pay in full]? It was therefore the owner of the poultry who would have to pay the half damages. But again why differentiate [his case so as to excuse him from full payment]? If there was exemption from full payment on account of [the inference drawn from] the verse, If a man shall open a pit,<a id="k19b_11"><sup>11</sup></a>&nbsp; which implies that there would be no liability for Cattle opening a Pit,<a id="k19b_12"><sup>12</sup></a>&nbsp; half damages should [for the very reason] similarly not be imposed here as [there could be liability only when] Man created a pit but not [when] Cattle [created] a pit? &mdash; The Mishnaic ruling [regarding half damages] must therefore be applicable only to a case where the poultry made the string fly [from one place to another, where it broke the utensils, being thus subject to the law of Pebbles]; and the statement made by R. Huna will accordingly refer to a case which has been dealt with elsewhere [viz.]: In the case of an ownerless string, R. Huna said that if it had become attached of itself to poultry [and though damage resulted to an animate object tripping over it while it was still attached to the poultry] there would be exemption.<a id="k19b_13"><sup>13</sup></a>&nbsp; But if it had been attached to the poultry by a human being, he would be liable to pay [in full]. Under what category of damage could this liability come?<a id="k19b_14"><sup>14</sup></a>&nbsp; &mdash; R. Huna b. Manoah said: Under the category of Pit, which is rolled about by feet of man and feet of animal.<a id="k19b_15"><sup>15</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. WITH REFERENCE TO WHAT IS TOOTH <I>MU'AD</I>?<a id="k19b_16"><sup>16</sup></a>&nbsp; [IT IS <I>MU'AD</I>] TO CONSUME WHATEVER IS FIT FOR IT. ANIMAL IS MUA'D TO CONSUME BOTH FRUITS AND VEGETABLES. BUT IF IT HAS DESTROYED CLOTHES OR UTENSILS, [ONLY] HALF DAMAGES WILL BE PAID.<a id="k19b_17"><sup>17</sup></a>&nbsp; THIS RULING APPLIES ONLY TO DAMAGE DONE ON THE PLAINTIFF'S PREMISES, BUT IF IT IS DONE ON PUBLIC GROUND THERE WOULD BE EXEMPTION.<a id="k19b_18"><sup>18</sup></a>&nbsp; WHERE, HOWEVER, THE ANIMAL HAS DERIVED SOME BENEFIT [FROM THE DAMAGE DONE BY IT], PAYMENT WILL [IN ANY CASE] BE MADE TO THE EXTENT OF THE BENEFIT. WHEN WILL PAYMENT BE MADE TO THE EXTENT OF THE BENEFIT? IF IT CONSUMED [FOOD] IN THE MARKET, PAYMENT TO THE EXTENT OF THE BENEFIT WILL BE MADE; [BUT IF IT CONSUMED] IN THE SIDEWAYS OF THE MARKET, THE PAYMENT WILL BE FOR THE ACTUAL DAMAGE DONE BY THE ANIMAL. [SO ALSO IF IT CONSUMED] AT THE ENTRANCE OF A SHOP, PAYMENT TO THE EXTENT OF THE BENEFIT WILL BE MADE, [BUT IF IT CONSUMED] INSIDE THE SHOP, THE PAYMENT WILL BE FOR THE ACTUAL DAMAGE DONE BY THE ANIMAL.
</p><p>
	<B><I>GEMARA</I></B>. Our Rabbis taught: Tooth is <i>Mu'ad</i> to consume whatever is fit for it. How is that? In the case of an animal entering the plaintiff's premises and consuming food that is fit for it or drinking liquids that are fit for it, the payment will be in full. Similarly in the case of a wild beast entering the plaintiff's premises, tearing an animal to pieces and consuming its flesh, the payment will be in full. So also in the case of a cow consuming barley, an ass consuming horse-beans, a dog licking oil, or a pig consuming a piece of meat, the payment will be in full. R. Papa [thereupon] said: Since it has been stated that things which in the usual way would be unfit as food [for particular animals] but which under pressing circumstances are consumed by them,<a id="k19b_19"><sup>19</sup></a>&nbsp; come under the designation of food, in the case of a cat consuming dates, and an ass consuming fish, the payment will similarly be in full.
</p><p>
	There was a case where an ass consumed bread and chewed also the basket<a id="k19b_20"><sup>20</sup></a>&nbsp; [in which the bread had been kept]. Rab Judah thereupon ordered full payment for the bread, but only half damages for the basket. Why can it not be argued that since it was usual for the ass to consume the bread, it was similarly usual for it to chew at the same time the basket too? &mdash; It was only after it had already completed consuming the bread, that the ass chewed the basket. But could bread be considered the usual food of an animal? Here is [a Baraitha] which contradicts this: If it [the animal] consumed bread, meat or broth, only half damages will be paid.<a id="k19b_21"><sup>21</sup></a>&nbsp; Now, does not this ruling refer to [a domestic] animal?<a id="k19b_22"><sup>22</sup></a>&nbsp; &mdash; No, it refers to a wild beast. To a wild beast? Is not meat its usual food? &mdash; The meat was roasted.<a id="k19b_23"><sup>23</sup></a>&nbsp; Alternatively, you may say: It refers to a deer.<a id="k19b_24"><sup>24</sup></a>&nbsp; You may still further say alternatively that it refers to a [domestic] animal, but the bread was consumed upon a table.<a id="k19b_25"><sup>25</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k20a_1:" Which could not be exempted from liability even on public ground."
,k20a_2:" If we were to go by the place of the actual consumption there would be exemption in this case, whereas if the original place whence the food was removed is also taken into account, there would be liability to pay."
,k20a_3:" According to this Baraitha, the place of actual consumption was the basic point to be considered."
,k20a_4:" Though removed by the animal and consumed outside."
,k20a_5:" Which was lying partly inside and partly outside, and as, unlike grain, it constituted one whole, the place of the consumption was material."
,k20a_6:" For which there would be no liability on public ground, although, being unusual, it would come under the category of Horn."
,k20a_7:" By allowing his clothes or utensils to be on public ground."
,k20a_8:" Cf. <i>supra</i> p. 17."
,k20a_9:" As the damage would come under the category of Horn."
,k20a_10:" V. p. 97, n. 5."
,k20a_11:" V. <i>infra</i> 32a."
,k20a_12:" It was therefore a misconduct on the the part of the animal to lie down, which makes it liable for any damage it caused, whilst it is not entitled to payment for any damage sustained."
,k20a_13:" I.e., the value of the food actually consumed by the animal."
,k20a_14:" Even when the animal consumed barley, as it might be alleged that straw would have sufficed it."
,k20a_15:" A certain measure: v. <a href=\"../tglossary.html\">Glos.</a>"
,k20a_16:" Lit. 'in our district,' 'domain' [H]. This word is omitted in some texts, v. D. S. a.l."
,k20a_17:" For the past."
,k20a_18:" And would in any case have remained vacant."
,k20a_19:" As he had friends who were willing to accommodate him without any pay. "
}

txt:
<p>
	There was a case where a goat, noticing turnips upon the top of a cask, climbed up there and consumed the turnips and broke the jar. &mdash; Raba thereupon ordered full payment both for the turnips and for the jar; the reason being that since it was usual with it to consume turnips it was also usual to climb up [for them].
</p><p>
	Ilfa stated: In the case of an animal on public ground stretching out its neck and consuming food that had been placed upon the back of another animal, there would be liability to pay; the reason being that the back of the other animal would be counted as the plaintiff's premises. May we say that the following teaching supports his view: 'In the case of a plaintiff who had a bundle [of grain] hanging over his back and [somebody else's animal] stretched out its neck and consumed [the grain] out of it, there would be liability to pay'? &mdash; No, just as Raba elsewhere referred to a case where the animal was jumping [an act which being quite unusual would be subject to the law of Horn<a id="k20a_1"><sup>1</sup></a>], so also this teaching might perhaps similarly deal with a case of jumping.
</p><p>
	With reference to what was Raba's statement made? &mdash; [It was made] with reference to the following statement of R. Oshaia: In the case of an animal on public ground going along and consuming, there would be exemption, but if it was standing and consuming there would be liability to pay. Why this difference? If in the case of walking [there is exemption, since] it is usual with animal to do so, is it not also in the case of standing usual with it to do so? &mdash; [It was on this question that] Raba said: 'Standing' here implies jumping [which being unusual was therefore subject in the law of Horn].<a id="k20a_1"><sup>1</sup></a>
</p><p>
	R. Zera asked: [In the case of a sheaf that was] rolling about, what would he the law? (In what circumstances? &mdash; When, e.g., grain had originally been placed in the plaintiff's premises, but was rolled thence into public ground [by the animal, which consumed the grain while standing on public ground], what would then be the law?)<a id="k20a_2"><sup>2</sup></a>&nbsp; &mdash; Come and hear that which R. Hiyya taught: 'In the case of a bag of food lying partly inside and partly outside [of the plaintiff's premises], if the animal consumed inside, there would be liability [to pay], but if it consumed outside there would be exemption.' Now, did not this teaching refer to a case where the bag was being continually rolled?<a id="k20a_3"><sup>3</sup></a>&nbsp; &mdash; No; read '&hellip; which the animal consumed, for the part which had originally been lying inside<a id="k20a_4"><sup>4</sup></a>&nbsp; there would be liability but for the part that had always been outside there would be exemption.' You might alternatively say that R. Hiyya referred to a bag containing long stalks of grass.<a id="k20a_5"><sup>5</sup></a>
</p><p>
	ANIMAL IS MUA'D TO CONSUME BOTH FRUITS AND VEGETABLES. BUT IF IT HAS DESTROYED CLOTHES OR UTENSILS, [ONLY] HALF DAMAGES WILL BE PAID. THIS RULING APPLIES ONLY TO DAMAGE DONE ON THE PLAINTIFF'S PREMISES, BUT IF IT IS DONE ON PUBLIC GROUND THERE WOULD BE EXEMPTION. To what ruling does the last clause refer? &mdash; Rab said: [It refers] to all the cases [dealt with in the Mishnah, even to the destruction of clothes and utensils];<a id="k20a_6"><sup>6</sup></a>&nbsp; the reason being that whenever the plaintiff himself acted unlawfully,<a id="k20a_7"><sup>7</sup></a>&nbsp; the defendant, though guilty of misconduct, could be under no liability to pay. Samuel on the other hand said: It refers only to the ruling regarding [the consumption of] fruits and vegetables,<a id="k20a_8"><sup>8</sup></a>&nbsp; whereas in the case of clothes and utensils<a id="k20a_9"><sup>9</sup></a>&nbsp; there would be liability [even when the damage was done on public ground]. [The same difference of opinion is found between Resh Lakish and R. Johanan, for] Resh Lakish said: [It refers] to all the cases [even to the destruction of clothes and utensils].<a id="k20a_10"><sup>10</sup></a>&nbsp; In this Resh Lakish was following a view expressed by him in another connection, where he stated:<a id="k20a_11"><sup>11</sup></a>&nbsp; In the case of two cows on public ground, one lying down and the other walking about, if the one that was walking kicked the one that was lying there would be exemption [since the latter too misconducted itself by laying itself down on public ground], whereas if the one that was lying kicked the one that was walking there would be liability to pay. R. Johanan on the other hand said: The ruling in the Mishnah refers only to the case of fruits and vegetables, whereas in the case of clothes and utensils there would be liability [even when the damage was done on public ground]. Might it thus be inferred that R. Johanan was also against the view expressed by Resh Lakish even in the case of the two cows? &mdash; No; [in that case] he could indeed have been in full agreement with him; for while in the case of clothes [and utensils] it might be customary with people to place [their] garments [on public ground] whilst having a rest near by, [in the case of the cows] it is not usual [for an animal to lie down on public ground].<a id="k20a_12"><sup>12</sup></a>
</p><p>
	WHERE, HOWEVER, THE ANIMAL HAS DERIVED SOME BENEFIT [FROM THE DAMAGE DONE BY IT]. PAYMENT WILL [IN ANY CASE] BE MADE TO THE EXTENT OF THE BENEFIT. How [could the extent of the benefit be] calculated? &mdash; Rabbah said: [It must not exceed] the value of straw [i.e. the coarsest possible food for animals]. But Raba said: The value of barley<a id="k20a_13"><sup>13</sup></a>&nbsp; on the cheapest scale [i.e. two-thirds of the usual price]. There is a Baraitha in agreement with Rabbah, and there is another Baraitha in agreement with Raba. There is a Baraitha in agreement with Rabbah [viz.]: R. Simeon b. Yohai said: The payment [to the extent of the benefit] would not be more than the value of straw.<a id="k20a_14"><sup>14</sup></a>&nbsp; There is a Baraitha in agreement with Raba [viz.]: When the animal derived some benefit [from the damage done by it], payment would [in any case] be made to the extent of the benefit. That is to say, in the case of [an animal] having consumed [on public ground] one <i>kab</i><a id="k20a_15"><sup>15</sup></a>&nbsp; or two <i>kabs</i> [of barley], no order would be given to pay the full value of the barley [that was consumed], but it would be estimated how much might an owner be willing to spend to let his animal have that particular food [which was consumed] supposing it was good for it, though in practice he was never accustomed to feed it thus. It would therefore follow that in the case of [an animal] having consumed wheat or any other food unwholesome for it, there could be no liability at all.
</p><p>
	R. Hisda said to Rami b. Hama: You were not yesterday with us in the House of Study<a id="k20a_16"><sup>16</sup></a>&nbsp; where there were discussed some specially interesting matters. The other thereupon asked him: What were the specially interesting matters? He answered: [The discussion was whether] one who occupied his neighbour's premises unbeknown to him would have to pay rent<a id="k20a_17"><sup>17</sup></a>&nbsp; or not. But under what circumstances? It could hardly be supposed that the premises were not for hire,<a id="k20a_18"><sup>18</sup></a>&nbsp; and he [the one who occupied them] was similarly a man who was not in the habit of hiring any,<a id="k20a_19"><sup>19</sup></a>&nbsp; for [what liability could there be attached to a case where] the defendant derived no benefit and the plaintiff sustained no loss? If on the other hand the premises were for hire and he was a man whose wont it was to hire premises, [why should no liability be attached since] the defendant derived a benefit and the plaintiff sustained a loss? &mdash; No; the problem arises in a case where the premises were not for hire, but his wont was to hire premises. What therefore should be the law? Is the occupier entitled to plead [against the other party]: 'What loss have I caused to you [since your premises were in any case not for hire]?'
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k20b_1:" 'Then will I let you know the source.' The service thus rendered would on the one hand prove the eagerness of the enquirer and on the other make him appreciate the answer."
,k20b_2:" I.e.. the other's."
,k20b_3:" B.B. 4b."
,k20b_4:" Such as in the case before us where the fences were of course erected primarily for the plaintiff's own use."
,k20b_5:" I.e., the fencing which was erected between the field of the defendant and the surrounding fields that belong to the plaintiff. This interpretation is given by Rashi but is opposed by the Tosaf. a.l. who explain the case to refer to fencing set up between the fields of the plaintiff and those of the surrounding neighbours."
,k20b_6:" B.B. 4b."
,k20b_7:" A small coin; v. <a href=\"../tglossary.html\">Glos.</a>"
,k20b_8:" B.M. 117a."
,k20b_9:" [Since in this case the owner of the ground floor refused to build.]"
,k20b_10:" The occupation of the newly-built lower storey by the owner of the upper storey is thus under the given circumstances a matter of right."
,k20b_11:" B.M. 117a."
,k20b_12:" But which has been all the time in his possession as he had been the authorized Treasurer of the Sanctuary; v. Hag. 11a and Mei. 20a"
,k20b_13:" Since the offender was the Treasurer of the Temple and the possession of the consecrated stone or beam has thus not changed hands, no conversion has been committed in this case. As to the law of Sacrilege, v. Lev. V, 15-16, and <i>supra</i>, p. 50."
,k20b_14:" For the conversion that has been committed."
,k20b_15:" Since the article has already been desecrated by the act of delivery."
,k20b_16:" Mei. V, 4. <i>Perutah</i> is the minimum legal value; cf. also Glossary."
,k20b_17:" [As otherwise the mere conversion involved would render him liable to the law of Sacrilege.]"
,k20b_18:" For if in the case of private premises there would be no liability to pay rent, why should the law if Sacrilege apply on account of the benefit of the <i>perutah</i> derived from the stone or the beam?"
,k20b_19:" Cf. B.M. 99b, where the reading is Raba."
,k20b_20:" As nothing escapes the knowledge of Heaven which ordered the law of Sacrilege to apply to all cases of conversion."
,k20b_21:" Dealt with in Lev. V, 15-16. >"
}

txt:
<p>
Or might the other party retort: 'Since you have derived a benefit [as otherwise you would have had to hire premises], you must pay rent accordingly'? Rami b. Hama thereupon said to R. Hisda: 'The solution to the problem is contained in a Mishnah.' &mdash; 'In what Mishnah?' He answered him: 'When you will first have performed for me some service.'<a id="k20b_1"><sup>1</sup></a>&nbsp; Thereupon he, R. Hisda, carefully lifted up his<a id="k20b_2"><sup>2</sup></a>&nbsp; scarf and folded it. Then Rami b. Hama said to him: [The Mishnah is:] WHERE, HOWEVER, THE ANIMAL HAS DERIVED SOME BENEFIT [FROM THE DAMAGE DONE BY IT,] PAYMENT WILL [IN ANY CASE] BE MADE TO THE EXTENT OF THE BENEFIT. Said Raba: How much worry and anxiety is a person [such as Rami b. Hama] spared whom the Master [of all] helps! For though the problem [before us] is not at all analogous to the case dealt with in the Mishnah, R. Hisda accepted the solution suggested by Rami b. Hama. [The difference is as follows:] In the case of the Mishnah the defendant derived a benefit and the plaintiff sustained a loss, whereas in the problem before us the defendant derived a benefit but the plaintiff sustained no loss. Rami b. Hama was, however, of the opinion that generally speaking fruits left on public ground have been [more or less] abandoned by their owner [who could thus not regard the animal that consumed them there as having exclusively caused him the loss he sustained, and the analogy therefore was good].
</p><p>
	Come and hear: 'In the case of a plaintiff who [by his fields] has encircled the defendant's field on three sides, and who has made a fence on the one side as well as on the second and third sides [so that the defendant is enjoying the benefit of the fences], no payment can be enforced from the defendant [since on the fourth side his field is still open wide to the world and the benefit he derives is thus incomplete].'<a id="k20b_3"><sup>3</sup></a>&nbsp; Should, however, the plaintiff make a fence also on the fourth side, the defendant would [no doubt] have to share the whole outlay of the fences. Now, could it not he deduced from this that wherever a defendant has derived benefit, though the plaintiff has thereby sustained no loss,<a id="k20b_4"><sup>4</sup></a>&nbsp; there is liability to pay [for the benefit derived]? &mdash; That case is altogether different, as the plaintiff may there argue against the defendant saying: It is you that [by having your field in the middle of my fields] have caused me to erect additional fences<a id="k20b_5"><sup>5</sup></a>&nbsp; [and incur additional expense].
</p><p>
	Come and hear: [In the same case] R. Jose said: [It is only] if the defendant [subsequently] of his own accord makes a fence on the fourth side that there would devolve upon him, a liability to pay his share [also] in the existing fences [made by the plaintiff].<a id="k20b_6"><sup>6</sup></a>&nbsp; The liability thus applies only when the defendant fences [the fourth side], but were the plaintiff to fence [the fourth side too] there would be no liability [whatsoever upon the defendant]. Now, could it not be deduced from this that in a case where, though the defendant has derived benefit, the plaintiff has [thereby] sustained no loss, there is no liability to pay? &mdash; That ruling again is based on a different principle, since the defendant may argue against the plaintiff saying: 'For my purposes a partition of thorns of the value of <i>zuz</i><a id="k20b_7"><sup>7</sup></a>&nbsp; would have been quite sufficient.'
</p><p>
	Come and hear: '[A structure consisting of] a lower storey and an upper storey, belonging respectively to two persons, has collapsed. The owner of the upper storey thereupon asks the owner of the lower storey to rebuild the ground floor, but the latter does not agree to do so. The owner of the upper storey is then entitled to build the lower storey and to occupy it until the owner of the ground floor refunds the outlay.'<a id="k20b_8"><sup>8</sup></a>&nbsp; Now, seeing that the whole outlay will have to be refunded by the owner of the lower storey, it is evident that no rent may be deducted [for the occupation of the lower storey]. Could it thus not be inferred from this ruling that in a case where, though the defendant has derived a benefit, the plaintiff has [thereby] sustained no loss,<a id="k20b_9"><sup>9</sup></a>&nbsp; there is no liability to pay? &mdash; That ruling is based on a different principle as the lower storey is by law accessory to the upper storey.<a id="k20b_10"><sup>10</sup></a>
</p><p>
	Come and hear: [In the same case] R. Judah said: Even this one who occupies another man's premises without an agreement with him must nevertheless pay him rent.<a id="k20b_11"><sup>11</sup></a>&nbsp; Is not this ruling a proof that in a case where the defendant has derived benefit, though the plaintiff has [thereby] sustained no loss, there is full liability to pay? &mdash; That ruling is based on a different principle, since we have to reckon there with the blackening of the walls [in the case of newly built premises, the plaintiff thus sustaining an actual loss].
</p><p>
	The problem was communicated to R. Ammi and his answer was: 'What harm has the defendant done to the other party? What loss has he caused him to suffer? And finally what indeed is the damage that he has done to him?' R. Hiyya b. Abba, however, said: 'We have to consider the matter very carefully.' When the problem was afterwards again laid before R. Hiyya b. Abba he replied: 'Why do you keep on sending the problem to me? If I had found the solution, would I not have forwarded it to you?'
</p><p>
	It was stated: R. Kahana quoting R. Johanan said: [In the case of the above problem] there would be no legal obligation to pay rent; but R. Abbahu similarly quoting R. Johanan said: There would be a legal obligation to pay rent. R. Papa thereupon said: The view expressed by R. Abbahu [on behalf of R. Johanan] was not stated explicitly [by R. Johanan] but was only arrived at by inference. For we learnt: He who misappropriates a stone or a beam belonging to the Temple Treasury<a id="k20b_12"><sup>12</sup></a>&nbsp; does not render himself subject to the law of Sacrilege.<a id="k20b_13"><sup>13</sup></a>&nbsp; But if he delivers it to his neighbour, he is subject to the law of Sacrilege,<a id="k20b_14"><sup>14</sup></a>&nbsp; whereas his neighbour is not subject to the law of Sacrilege.<a id="k20b_15"><sup>15</sup></a>&nbsp; So also when he builds it into his house he is not subject to the law of Sacrilege until he actually occupies that house for such a period that the benefit derived from that stone or that beam would amount to the value of a <i>perutah</i>.<a id="k20b_16"><sup>16</sup></a>&nbsp; And Samuel thereupon said that the last ruling referred to a case where the stone or the beam was [not fixed into the actual structure but] left loose on the roof.<a id="k20b_17"><sup>17</sup></a>&nbsp; Now, R. Abbahu sitting in the presence of R. Johanan said in the name of Samuel that this ruling proved that he who occupied his neighbour's premises without an agreement with him would have to pay him rent.<a id="k20b_18"><sup>18</sup></a>&nbsp; And he [R. Johanan] kept silent. [R. Abbahu] imagined that since he [R. Johanan] remained silent, he thus acknowledged his agreement with this inference. But in fact this was not so. He [R. Johanan] paid no regard to this view on account of his acceptance of an argument which was advanced [later] by Rabbah; for Rabbah<a id="k20b_19"><sup>19</sup></a>&nbsp; said: The conversion of sacred property even without [the] knowledge [of the Temple Treasury] is [subject<a id="k20b_20"><sup>20</sup></a>&nbsp; to the law of Sacrilege]<a id="k20b_21"><sup>21</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k21a_1:" Cf. <i>infra</i> 97a; B.M. 64b."
,k21a_2:" In which case the owner sustains a loss and rent must be paid."
,k21a_3:" The Hebrew word <I>She'iyyah</I> [H] rendered<I> 'emptiness'</I>, is taken to be the name of a demon that haunts uninhabitated premises; cf. Rashi a.l."
,k21a_4:" Isa. XXIV, 12."
,k21a_5:" Lit. '&hellip; him' referring, to the demon."
,k21a_6:" Who look after premises."
,k21a_7:" I.e., between the reason adduced by Rab and that given by R. Joseph."
,k21a_8:" In which case the premises had in any case not been empty and thus not haunted by the so-called demon 'She'iyyah'. There would therefore be liability to pay rent. But according to the reason given by R. Joseph that premises inhabited by tenants keep in better condition as the tenants look after their repairs, there would even in this case be no liability of rent upon the tenant who trespassed into his neighbour's premises that had previously been used only for the keeping of wood and straw and thus liable to fall into dilapidation."
,k21a_9:" I.e., persons who came from Carmania. According to a different reading quoted by Rashi a.l. and occurring also in MS.M., it only means 'Former settlers'."
,k21a_10:" In which case the plaintiffs suffered an actual loss, however small it was."
,k21a_11:" Since the body of the animal is still on public ground."
,k21a_12:" <i>Supra</i> p. 94."
,k21a_13:" Supporting thus the view of Samuel but contradicting that of Rab."
,k21a_14:" I.e., R. Nahman b. Isaac."
,k21a_15:" But only for the benefit the animal derived from the fruits."
,k21a_16:" The fruits kept near the public ground are a public nuisance and equal a pit, the ownership of which was retained and which was dug on a site to which the public has full access."
,k21a_17:" Cf. <i>infra</i> 30a."
,k21a_18:" Since the pit still remains private property. "
}

txt:
<p>
just as the use of private property under an agreement [is subject to the law of Contracts].
</p><p>
	R. Abba b. Zabda sent [the following message] to Mari the son of the Master:<a id="k21a_1"><sup>1</sup></a>&nbsp; 'Ask R. Huna as to his opinion regarding the case of one who occupies his neighbour's premises without any agreement with him, must he pay him rent or not?' But in the meanwhile R. Huna's soul went to rest. Rabbah b. R. Huna thereupon replied as follows: 'Thus said my father, my Master, in the name of Rab: He is not legally bound to pay him rent; but he who hires premises from Reuben may have to pay rent to Simeon.' But what connection has Simeon with premises [hired from Reuben, that the rent should be paid to him]? &mdash; Read therefore thus: '&hellip; [Reuben] and the premises were discovered to be the property of Simeon, the rent must be paid to him.' But [if so], do not the two statements [made above in the name of Rab] contradict each other? &mdash; The latter statement [ordering payment to Simeon] deals with premises which were for hire,<a id="k21a_2"><sup>2</sup></a>&nbsp; whereas the former ruling [remitting rent in the absence of an agreement] refers to premises which were not for hire. It has similarly been stated: R. Hiyya b. Abin quoting Rab said, (some say that R. Hiyya b. Abin quoting R. Huna said): 'He who occupies his neighbour's premises without any agreement with him is not under a legal obligation to pay him rent. He, however, who hires premises from the representatives of the town must pay rent to the owners.' What is the meaning of the reference to 'owners'? &mdash; Read therefore thus: '&hellip; [representatives of the town,] and the premises are discovered to be the property of [particular] owners, the rent must be paid to them.' But [if so,] how can the two statements be reconciled with each other? The latter statement [ordering payment to the newly discovered owners] deals with premises which are for hire,<a id="k21a_2"><sup>2</sup></a>&nbsp; whereas the former ruling [remitting rent in the absence of an agreement] refers to premises which are not for hire.
</p><p>
	R. Sehorah slated that R. Huna quoting Rab had said: He who occupies his neighbour's premises without having any agreement with him is under no legal obligation to pay him rent, for Scripture says, Through emptiness<a id="k21a_3"><sup>3</sup></a>&nbsp; even the gate gets smitten.<a id="k21a_4"><sup>4</sup></a>&nbsp; Mar, son of R. Ashi, remarked: I myself have seen such a thing<a id="k21a_5"><sup>5</sup></a>&nbsp; and the damage was as great as though done by a goring ox. R. Joseph said: Pre mises that are inhabited by tenants<a id="k21a_6"><sup>6</sup></a>&nbsp; keep in a better condition. What however is the [practical] difference between them?<a id="k21a_7"><sup>7</sup></a>&nbsp; &mdash; There is a difference between them in the case where the owner was using the premises for keeping there wood and straw.<a id="k21a_8"><sup>8</sup></a>
</p><p>
	There was a case where a certain person built a villa upon ruins that had belonged to orphans. R. Nahman thereupon confiscated the villa from him [for the benefit of the orphans]. May it therefore not be inferred that R. Nahman is of the opinion that he who occupies his neighbour's premises without having any agreement with him must still pay him rent? &mdash; [The case of the orphans is based on an entirely different principle, as] that site had originally been occupied by certain Carmanians<a id="k21a_9"><sup>9</sup></a>&nbsp; who used to pay the orphans a small rent.<a id="k21a_10"><sup>10</sup></a>&nbsp; When the defendant had thus been advised by R. Nahman to go and make a peaceful settlement with the orphans, he paid no heed. R. Nahman therefore confiscated the villa from him.
</p><p>
	WHEN WILL PAYMENT BE MADE TO THE EXTENT OF THE BENEFIT? [IF IT CONSUMED [FOOD]&nbsp;&hellip; IN THE SIDEWAYS OF THE MARKET, THE PAYMENT WILL BE FOR THE ACTUAL DAMAGE DONE BY THE ANIMAL.] Rab thereupon said: [The last ruling ordering payment for the actual damage done extends] even to a case where the animal itself [stood in the market place but] turned its head to the sideways [where it in this wise consumed the food]. Samuel on the other hand said: Even in the case of the animal turning its head to the sideways no payment will be made for the actual damage done.<a id="k21a_11"><sup>11</sup></a>&nbsp; But according to Samuel, how then can it happen that there will be liability to pay for actual damage? &mdash; Only when, e.g., the animal had quitted the market place altogether and walked right into the sideways of the market place. There are some [authorities] who read this argument [between Rab and Samuel] independent of any [Mishnaic] text: In the case of an animal [standing in a market place but] turning its head into the sideways [and unlawfully consuming food which was lying there], Rab maintains that there will be liability [for the actual damage] whereas Samuel says that there will be no liability [for the actual damage]. But according to Samuel, how then can it happen that there will be liability to pay for actual damage? &mdash; Only when, e.g., the animal had quitted the market place altogether and had walked right into the sideways of the market place. R. Nahman b. Isaac raised an objection: [SO ALSO IF IT CONSUMED] AT THE ENTRANCE OF A SHOP, PAYMENT TO THE EXTENT OF THE BENEFIT WILL BE MADE.<a id="k21a_12"><sup>12</sup></a>&nbsp; How could the damage in this case have occurred unless, of course, by the animal having turned [its head to the entrance of the shop]? Yet the text states, PAYMENT TO THE EXTENT OF THE BENEFIT. [That is to say,] only to the extent of the benefit [derived by the animal] but not for the actual damage done by it?<a id="k21a_13"><sup>13</sup></a>&nbsp; &mdash; He raised the objection and he himself<a id="k21a_14"><sup>14</sup></a>&nbsp; answered it: The entrance to the shop might have been at a corner [in which case the animal had access to the food placed there without having to turn its head].
</p><p>
	There are some [authorities], however, who say that in the case of an animal turning [its head to the sideways of the market place] there was never any argument whatsoever that there would be liability [for the actual damage done]. The point at issue between Rab and Samuel was in the case of a plaintiff who left unfenced a part of his site abutting on public ground, and the statement ran as follows: Rab said that the liability for the actual damage done could arise only in a case where [the food was placed in the sideways of the market to which] the animal turned [its head]. But in the case of a plaintiff leaving unfenced a part of his site abutting on public ground [and spreading out there fruits which were consumed by the defendant's animal] there would be no liability to pay [for the loss sustained].<a id="k21a_15"><sup>15</sup></a>&nbsp; Samuel, however, said that even in the case of a plaintiff leaving unfenced a part of his site abutting on to the public ground, there would be liability to pay [for the loss sustained]. Might it not be suggested that the basic issue [between Rab and Samuel] would be that of a defendant having dug a pit on his own site [and while abandoning the site still retains his ownership of the pit]?<a id="k21a_16"><sup>16</sup></a>&nbsp; Rab who here upholds exemption [for the loss sustained by the owner of the fruits] maintains that a pit dug on one's own site is subject to the law of Pit [so that fruits left on an unfenced site adjoining the public ground constitute a nuisance which may in fact be abated by all and everybody],<a id="k21a_17"><sup>17</sup></a>&nbsp; whereas Samuel who declares liability [for the loss sustained by the owner of the fruits] would maintain that a pit dug on one's own site could never be subject to the law of Pit!<a id="k21a_18"><sup>18</sup></a>&nbsp; &mdash; Rab could, however, [refute this suggestion and] reason thus: [In spite of your argument] I may nevertheless maintain
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k21b_1:" And since they were kept on private ground they could not be considered a nuisance. The animal consuming them there has indeed committed trespass."
,k21b_2:" I.e., R. Meir and R. Judah; for the point at issue could hardly be the case of consumption on public ground where none would think of imposing full liability for the actual damage done, but it must be in regard to the sideways of the market."
,k21b_3:" For in the case of turning the head it was none the more lawful to consume the fruits."
,k21b_4:" Ex. XXII, 4."
,k21b_5:" R. Jose and R. Eleazar."
,k21b_6:" [But there would be no exemption according to R. Jose for consuming fruits even on the market.]"
,k21b_7:" There should thus be no need of explicit exemption."
,k21b_8:" <i>Supra</i> p. 96."
,k21b_9:" Dealing with an animal stretching out its head and consuming fruits kept on the back of the plaintiff's animal, in which case R. Meir and R. Judah impose the liability only to the extent of the benefit, whereas R. Jose and R. Eleazar order compensation for the actual damage sustained by the plaintiff."
,k21b_10:" Imposing liability in the case of an animal jumping and consuming fruits kept in baskets: R. Meir and R. Judah thus limit the liability to the extent of the benefit derived, whereas R. Jose and R. Eleazar do not limit it thus."
,k21b_11:" Coming thus within the purview of the law of Foot."
,k21b_12:" Being subject to the law of Tooth."
,k21b_13:" An act which is usual with either of them and thus subject to the law of Foot."
,k21b_14:" By mere accident."
,k21b_15:" By mere accident."
,k21b_16:" For the owner should have taken precautions against its jumping."
,k21b_17:" Since it fell down."
,k21b_18:" Cf. <i>infra</i> 56a; 58a; B.M. 42a and 93b."
,k21b_19:" But mere accident all through."
,k21b_20:" The defendant is thus guilty of negligence."
,k21b_21:" From the wall, which the defendant kept in a dilapidated state."
,k21b_22:" Where opinions differ."
,k21b_23:" Or very sloping. It was thus natural that the animal would be unable to remain there very long, but should slide down and do damage."
,k21b_24:" An act unusual with any of them."
,k21b_25:" From full compensation, whereas half damages will be paid in accordance with the law applicable to Horn."
,k21b_26:" I.e., complete liability, as the act is usual with them and is thus subject to the law of Foot."
,k21b_27:" As the act is quite usual with poultry, and as to man, he is always <i>Mu'ad</i>, v. <i>supra</i> p. 8. "
}

txt:
<p>
that in other respects a pit dug on one's own site is not subject to the law of Pit, but the case before us here is based on a different principle, since the defendant is entitled to plead [in reply to the plaintiff]: 'You had no right at all to spread out your fruits so near to the public ground as to involve me in liability through my cattle consuming them.' Samuel on the other hand could similarly contend: In other respects a pit dug on one's own site may be subject to the law of Pit, for it may be reasonable in the case of a pit for a plaintiff to plead that the pit may have been totally overlooked [by the animals that unwittingly fell in]. But in the case of fruits [spread out on private ground], is it possible to plead with reason that they may have been overlooked? Surely they must have been seen.<a id="k21b_1"><sup>1</sup></a>
</p><p>
	May it not be suggested that the case of an animal 'turning its head [to the sideways]' is a point at issue between the following Tannaitic authorities? For it has been taught: In the case of an animal [unlawfully] consuming [the plaintiff's fruits] on the market, the payment will be [only] to the extent of the benefit; [but when the fruits had been placed] on the sideways of the market, the payment would be assessed for the damage done by the animal. This is the view of R. Meir and R. Judah. But R. Jose and R. Eleazar say: It is by no means usual for an animal to consume [fruits], Only to walk [there]. Now, is not R. Jose merely expressing the view already expressed by the first-mentioned Tannaitic authorities,<a id="k21b_2"><sup>2</sup></a>&nbsp; unless the case of an animal 'turning its head [to the sideways]' was the point at issue between them, so that the first-mentioned Tannaitic authorities<a id="k21b_2"><sup>2</sup></a>&nbsp; maintained that in the case of an animal 'turning its head [to the sideways]' the payment will still be fixed to the extent of the benefit it had derived, whereas R. Jose would maintain that the payment will be in accordance with the actual damage done by it?<a id="k21b_3"><sup>3</sup></a>&nbsp; &mdash; No; all may agree that in the case of an animal 'turning its head [to the sideways]' the law may prevail either in accordance with Rab or in accordance with Samuel; the Point at issue, however, between the Tannaitic authorities here [in the Baraitha] may have been as to the qualifying force of in another man's field.<a id="k21b_4"><sup>4</sup></a>&nbsp; The first Tannaitic authorities<a id="k21b_2"><sup>2</sup></a>&nbsp; maintain that the clause, And it [shall] feed in another man's field, is meant to exclude liability for damage done on public ground, whereas the succeeding authorities<a id="k21b_5"><sup>5</sup></a>&nbsp; are of the opinion that the clause And it [shall] feed in another man's field exempts [liability only for damage done to fruits which had been spread on] the defendant's domain.<a id="k21b_6"><sup>6</sup></a>&nbsp; On the defendant's domain! Is it not obvious that the defendant may plead: What right had your fruit to be on my ground?<a id="k21b_7"><sup>7</sup></a>&nbsp; &mdash; But the point at issue [between the authorities mentioned in the Baraitha] will therefore be in reference to the cases dealt With [above]<a id="k21b_8"><sup>8</sup></a>&nbsp; by Ilfa<a id="k21b_9"><sup>9</sup></a>&nbsp; and by R. Oshaia.<a id="k21b_10"><sup>10</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF A DOG OR A GOAT JUMPS DOWN FROM THE TOP OF A ROOF AND BREAKS UTENSILS [ON THE PLAINTIFF'S GROUND] THE COMPENSATION MUST BE IN FULL, FOR ANY OF THEM IS CONSIDERED <I>MU'AD</I> IN RESPECT OF THAT DAMAGE].<a id="k21b_11"><sup>11</sup></a>&nbsp; IF [HOWEVER] A DOG TAKES HOLD OF A CAKE [WITH LIVE COALS STICKING TO IT] AND GOES [WITH IT] TO A BARN, CONSUMES THE CAKE AND SETS THE BARN ON FIRE, [THE OWNER OF THE DOG] PAYS FULL COMPENSATION FOR THE CAKE,<a id="k21b_12"><sup>12</sup></a>&nbsp; WHEREAS FOR THE BARN [HE] PAYS [ONLY] HALF DAMAGES.
</p><p>
	<B><I>GEMARA</I></B>. The reason of [the liability in the commencing clause] is that the dog or goat has jumped [from the roof],<a id="k21b_13"><sup>13</sup></a>&nbsp; but were it to have fallen down<a id="k21b_14"><sup>14</sup></a>&nbsp; [from the roof and thus broken utensils] there would be exemption. It can thus be inferred that the authority here accepted the view that the inception of [potential] negligence resulting in [mere] accident carries exemption.
</p><p>
	It has been explicitly taught to the same effect: 'If a dog or goat jumps down from the top of a roof and breaks utensils [on the plaintiff's ground] the compensation must be in full; were it, however, to have fallen down<a id="k21b_15"><sup>15</sup></a>&nbsp; [and thus broken the utensils] there would be exemption.' This ruling seems to be in accord with the view that where there is negligence at the beginning<a id="k21b_16"><sup>16</sup></a>&nbsp; but the actual damage results from [mere] accident<a id="k21b_17"><sup>17</sup></a>&nbsp; there is exemption,<a id="k21b_18"><sup>18</sup></a>&nbsp; but how could the ruling be explained according to the view that upholds liability? &mdash; The ruling may refer to a case where the utensils had, for example, been placed very near to the wall so that were the animal to have jumped it would by jumping have missed them altogether; in which case there was not even negligence at the beginning.<a id="k21b_19"><sup>19</sup></a>
</p><p>
	R. Zebid in the name of Raba, however, said: There are certain circumstances where there will be liability even in the case of [the animal] falling down. This might come to pass when the wall had not been in good condition.<a id="k21b_20"><sup>20</sup></a>&nbsp; Still what was the negligence there? It could hardly be that the owner should have borne in mind the possibility of bricks falling down<a id="k21b_21"><sup>21</sup></a>&nbsp; [and doing damage], for since after all it was not bricks that came down but the animal that fell down, why should it not be subject to the law applicable to a case where the damage which might have been done by negligence at the inception actually resulted from accident?<a id="k21b_22"><sup>22</sup></a>&nbsp; &mdash; No, it has application where the wall of the railing was exceedingly narrow.<a id="k21b_23"><sup>23</sup></a>
</p><p>
	Our Rabbis taught: In the case of a dog or goat jumping [and doing damage], if it was in an upward direction<a id="k21b_24"><sup>24</sup></a>&nbsp; there is exemption;<a id="k21b_25"><sup>25</sup></a>&nbsp; but if in a downward direction there is liability.<a id="k21b_26"><sup>26</sup></a>&nbsp; In case, however, of man or poultry jumping [and doing damage], whether in a downward or upward direction, there is liability.<a id="k21b_27"><sup>27</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k22a_1:" Because the act is considered unusual with them."
,k22a_2:" That exempts in acts towards all directions."
,k22a_3:" For though the acts are unusual, they should be subject to the law of Horn imposing payment of half damages for unusual occurrences."
,k22a_4:" Lit., 'his fire is due to his arrows'. Damage done by Fire equals thus damage done by Man himself."
,k22a_5:" Lit., 'his property'."
,k22a_6:" Since it travels and spreads of itself."
,k22a_7:" That Fire is chattel."
,k22a_8:" I.e., the flame; cf. Bez. 39a."
,k22a_9:" <i>Supra</i> p. 109."
,k22a_10:" All the damage to the barn that resulted from the fire is thus considered as if done altogether by the dog that caused the live coals to start burning the barn."
,k22a_11:" On account of the law applicable to Tooth."
,k22a_12:" For the damage to this spot is solely imputed to the action of the dog throwing there the burning coal. The liability, however, is only for half damages on account of the law of Pebbles to which there is subject any damage resulting from objects thrown by cattle: cf. <i>supra</i> P. 79."
,k22a_13:" Since the fire in this case could not be said to have been the obnoxious chattel of the owner of the dog [Nor could it be treated as Pebbles, since it spread of itself.]"
,k22a_14:" As the damage to this spot is directly attributed to the action of the dog."
,k22a_15:" For any damage that results not from the direct act, but from a mere agency of chattels, is subject to the law of Pebbles ordering only half damages to be paid."
,k22a_16:" Which has to be kept in the open thoroughfare; see <i>infra</i> p. 361."
,k22a_17:" Ibid."
,k22a_18:" The damage done to every bit of the building is thus directly attributed to the action of the camel."
,k22a_19:" V. n. 4."
,k22a_20:" For not having instantly driven away the camel from such a dangerous spot."
,k22a_21:" And while it was impossible to drive it away quickly from that spot, the camel meanwhile managed to set every bit of the building on fire. "
}

txt:
<p>
But was it not [elsewhere] taught: 'In the case of a dog or goat jumping [and doing damage], whether in a downward or upward direction, there is exemption'?<a id="k22a_1"><sup>1</sup></a>&nbsp; &mdash; R. Papa thereupon interpreted the latter ruling<a id="k22a_2"><sup>2</sup></a>&nbsp; to refer to cases where the acts done by the animals were the reverse of their respective natural tendencies: e.g, the dog [jumped] by leaping and the goat by climbing. If so, why [complete] exemption?<a id="k22a_3"><sup>3</sup></a>&nbsp; &mdash; The exemption indeed is only from full compensation while there still remains liability for half damages.<a id="k22a_3"><sup>3</sup></a>
</p><p>
	IF A DOG TAKES HOLD etc. It was stated: R. Johanan said: Fire [involves liability] on account of the human agency that brings it about.<a id="k22a_4"><sup>4</sup></a>&nbsp; Resh Lakish, however, maintained that Fire is chattel.<a id="k22a_5"><sup>5</sup></a>&nbsp; Why did Resh Lakish differ from R. Johanan? &mdash; His contention is: Human agency must emerge directly from human force whereas Fire does not emerge from human force.<a id="k22a_6"><sup>6</sup></a>&nbsp; Why, on the other hand, did not R. Johanan agree with Resh Lakish?<a id="k22a_7"><sup>7</sup></a>&nbsp; &mdash; He may say: Chattel contains tangible properties, whereas Fire<a id="k22a_8"><sup>8</sup></a>&nbsp; has no tangible properties.
</p><p>
	We have learnt:<a id="k22a_9"><sup>9</sup></a>&nbsp; IF A DOG TAKES HOLD OF A CAKE [TO WHICH LIVE COALS WERE STUCK] AND GOES [WITH IT] TO A BARN, CONSUMES THE CAKE AND SETS THE BARN ALIGHT, [THE OWNER] PAYS FULL COMPENSATION FOR THE CAKE, WHEREAS FOR THE BARN [HE] PAYS [ONLY] HALF DAMAGES. This decision accords well with the view that the liability for Fire is on account of the human agency that caused it; in the case of the dog, there is thus some liability upon the owner of the dog as the fire there was caused by the action of the dog.<a id="k22a_10"><sup>10</sup></a>&nbsp; But according to the principle that Fire is chattel, [why indeed should the owner of the dog be liable?] Could the fire be said to be the chattel of the owner of the dog? &mdash; Resh Lakish may reply: The Mishnaic ruling deals with a case where the burning coal was thrown by the dog [upon the barn]: full compensation must of course be made for the cake,<a id="k22a_11"><sup>11</sup></a>&nbsp; but only half will be paid for the damage done to the actual spot upon which the coal had originally been thrown,<a id="k22a_12"><sup>12</sup></a>&nbsp; whereas for the barn as a whole there is exemption altogether.<a id="k22a_13"><sup>13</sup></a>&nbsp; R. Johanan, however, maintains that the ruling refers to a dog actually placing the coal upon the barn: For the cake<a id="k22a_11"><sup>11</sup></a>&nbsp; as well as for the damage done to the spot upon which the coal had originally been placed the compensation must be in full,<a id="k22a_14"><sup>14</sup></a>&nbsp; whereas for the barn as a whole only half damages will be paid.<a id="k22a_15"><sup>15</sup></a>
</p><p>
	Come and hear: A camel laden with flax passes through a public thoroughfare. The flax enters a shop, catches fire by coming in contact with the shopkeeper's candle and sets alight the whole building. The owner of the camel is then liable. If, however, the shopkeeper left his candle outside [his shop], he is liable. R. Judah says: In the case of a Chanucah candle<a id="k22a_16"><sup>16</sup></a>&nbsp; the shopkeeper would always be quit.<a id="k22a_17"><sup>17</sup></a>&nbsp; Now this accords well with the view that Fire implies human agency: the agency of the camel could thus be traced in the setting alight of the whole building. But according to the view that Fire is chattel, [why should the owner of the camel be liable?] Was the fire in this case the chattel of the owner of the camel? &mdash; Resh Lakish may reply that the camel in this case [passed along the entire building and] set every bit of it on fire.<a id="k22a_18"><sup>18</sup></a>&nbsp; If so, read the concluding clause: If, however, the shopkeeper left his candle outside [his shop] he is liable. Now, if the camel set the whole of the building on fire, why indeed should the shopkeeper be liable? &mdash; The camel in this case stood still [all of a sudden].<a id="k22a_19"><sup>19</sup></a>&nbsp; But [it is immediately objected] if the camel stood still and yet managed to set fire to every bit of the building, is it not still more fitting that the shopkeeper should be free but the owner of the camel fully liable?<a id="k22a_20"><sup>20</sup></a>&nbsp; &mdash; R. Huna b. Manoah in the name of R. Ika [thereupon] said: The rulings apply to [a case where the camel] stood still to pass water;<a id="k22a_21"><sup>21</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k22b_1:" To the extent that the flax should penetrate the shop."
,k22b_2:" But not for the slave, who should have quitted the spot before it was too late; cf. <i>infra</i> 27a."
,k22b_3:" Whether chained or loose."
,k22b_4:" <i>Infra</i> 43b and 61b. For all civil actions merge in capital charges and the defendant in this case is charged with murder (since the slave was chained and thus unable to escape death), and thus exempt from all money payment arising out of the charge; cf. <i>infra</i> 70b."
,k22b_5:" V. Ex. XXI, 32, where the liability of thirty <i>shekels</i> is imposed upon the owner."
,k22b_6:" The defendant has thus committed murder by his own hands."
,k22b_7:" V. p. 113. n. 8."
,k22b_8:" Though the capital charge is not instituted by the owner of the goat, no damages could be enforced for the goat, since the defendant has in the same act also committed murder, and is liable to the graver penalty."
,k22b_9:" Who does not bear responsibility before the law."
,k22b_10:" Upon the person who entrusted the fire to the deaf-mute, etc. Mishnah, <i>infra</i> 59b."
,k22b_11:" Cf. <i>supra</i> p. 38."
,k22b_12:" <i>Supra</i> p. 36; <i>infra</i> 59b."
,k22b_13:" <i>Supra</i> 9b."
,k22b_14:" Lit., 'the tongs of'."
,k22b_15:" Ex. XXII, 5."
,k22b_16:" The damage that resulted is thus emphatically imputed to human agency."
,k22b_17:" Ex. XXII 5. "
}

txt:
<p>
[so that] in the commencing clause the owner of the camel is liable, for he should not have overloaded [his camel],<a id="k22b_1"><sup>1</sup></a>&nbsp; but in the concluding clause the shopkeeper is liable for leaving his candle outside [his shop].
</p><p>
	Come and hear: In the case of a barn being set on fire, where a goat was bound to it and a slave [being loose] was near by it, and all were burnt, there is liability [for barn and goat].<a id="k22b_2"><sup>2</sup></a>&nbsp; In the case, however, of the slave being chained to it and the goat<a id="k22b_3"><sup>3</sup></a>&nbsp; near by it and all being burnt, there is exemption [for barn and goat].<a id="k22b_4"><sup>4</sup></a>&nbsp; Now this is in accordance with the view maintaining the liability for Fire to be based upon human agency: there is therefore exemption here [since capital punishment is attached to that agency].<a id="k22b_4"><sup>4</sup></a>&nbsp; But, according to the view that Fire is chattel, why should there be exemption? Would there be exemption also in the case of cattle killing a slave?<a id="k22b_5"><sup>5</sup></a>&nbsp; &mdash; R. Simeon b. Lakish may reply to you that the exemption refers to a case where the fire was actually put upon the body of the slave<a id="k22b_6"><sup>6</sup></a>&nbsp; so that no other but the major punishment is inflicted.<a id="k22b_7"><sup>7</sup></a>&nbsp; If so, [is it not obvious?] Why state it at all? &mdash; No; it has application [in the case] where the goat belonged to one person and the slave to another.<a id="k22b_8"><sup>8</sup></a>
</p><p>
	Come and hear: In the case of fire being entrusted to a deaf-mute, an idiot or a minor<a id="k22b_9"><sup>9</sup></a>&nbsp; [and damage resulting], no action can be instituted in civil courts, but there is liability<a id="k22b_10"><sup>10</sup></a>&nbsp; according to divine justice.<a id="k22b_11"><sup>11</sup></a>&nbsp; This again is perfectly consistent with the view maintaining that Fire implies human agency, and as the agency in this case is the action of the deaf mute [there is no liability]; but according to the [other] view that Fire is chattel, [why exemption?] Would there similarly be exemption in the case of any other chattel being entrusted to a deaf-mute, an idiot, or a minor?<a id="k22b_12"><sup>12</sup></a>&nbsp; &mdash; Behold, the following has already been stated in connection therewith:<a id="k22b_13"><sup>13</sup></a>&nbsp; Resh Lakish said in the name of Hezekiah that the ruling<a id="k22b_11"><sup>11</sup></a>&nbsp; applies only to a case where it was a [flickering] coal that had been handed over to [the deaf-mute] who fanned it into flame, whereas In the case of a [ready] flame having been handed over there is liability on the ground that the instrument of damage has been fully prepared. R. Johanan, on the other hand, stated that even in the case of a ready flame there is exemption, maintaining that it was only the handling by<a id="k22b_14"><sup>14</sup></a>&nbsp; the deaf-mute that caused [the damage]; there could therefore be no liability unless chopped wood, chips and actual fire were [carelessly] given him.
</p><p>
	Raba said: [Both] Scripture and a Baraitha support [the View of] R. Johanan. 'Scripture': For it is written, If fire break out;<a id="k22b_15"><sup>15</sup></a>&nbsp; 'break out' implies 'of itself' and yet [Scripture continues], He that kindled the fire<a id="k22b_16"><sup>16</sup></a>&nbsp; shall surely make restitution.<a id="k22b_17"><sup>17</sup></a>&nbsp; It could thus be inferred that Fire implies human agency. 'A Baraitha': For it was taught. The verse,<a id="k22b_17"><sup>17</sup></a>&nbsp; though commencing with damage
</P>


lvr: 41
dfh: a
notes:
 ntes={k23a_1:" I.e., by fire breaking out of itself."
,k23a_2:" As implied in the clause, He that kindled the fire."
,k23a_3:" Since in the case of Man doing damage such an exemption does not exist."
,k23a_4:" V. <i>supra</i> pp. 18 and 39 and <i>infra</i> 61b."
,k23a_5:" It is in this case (where the human agency is at an end) that there is exemption for hidden goods but liability for unconcealed articles."
,k23a_6:" And there should therefore be exemption for damage done to all kinds of property."
,k23a_7:" So that whenever the human agency is at an end, there would still be a possibility of liability being incurred."
,k23a_8:" Lit., 'his ox'."
,k23a_9:" Cf. <i>infra</i> 55b."
,k23a_10:" I.e., what is the difference in law whether the liability for Fire is for the principles of human agency and chattel combined, or only on account of the principle of chattel? The difference could of course be only in the case where the human agency involved in Fire was not yet brought to an end. For otherwise the liability according to both views would only be possible on account of the principle of chattel, a principle which is according to the latest conclusion maintained by all."
,k23a_11:" In cases where the human agency was not yet at an end."
,k23a_12:" I.e., Pain, Healing, Loss of Time and Degradation, which in the case of Man, but not Ox, injuring men are paid in addition to Depreciation which is a liability common in all cases; v. <i>supra</i> p. 12. According to R. Johanan who considers Fire a human agency, the liability will be not only for Depreciation but also for the additional Four Items: whereas Resh Lakish maintains that only Depreciation will be paid, as in the case of damage done by Cattle."
,k23a_13:" Since it was his coal that did the damage."
,k23a_14:" He is therefore not to blame."
,k23a_15:" For if otherwise the breaking in should be an act of unusual occurrence that should be subject to the law applicable to Horn, involving only the compensation of half damages for the consumption of the cake."
,k23a_16:" I.e., a barn not belonging to the owner of the cake."
,k23a_17:" Ex. XXII, 4. "
}

txt:
<p>
done by property,<a id="k23a_1"><sup>1</sup></a>&nbsp; concludes with damage done by the person<a id="k23a_2"><sup>2</sup></a>&nbsp; [in order] to declare that Fire implies human agency.
</p><p>
	Raba said: The following difficulty confronted Abaye: According to the view maintaining that Fire implies human agency, how [and when] was it possible for the Divine law to make exemption<a id="k23a_3"><sup>3</sup></a>&nbsp; for damage done by Fire to hidden things?<a id="k23a_4"><sup>4</sup></a>&nbsp; He solved it thus: Its application is in the case of a fire which would ordinarily not have spread beyond a certain point, but owing to the accident of a fence collapsing not on account of the fire, the conflagration continued setting alight and doing damage in other premises where the original human agency is at an end.<a id="k23a_5"><sup>5</sup></a>&nbsp; If so, even regarding unconcealed goods is not the human agency at an end?<a id="k23a_6"><sup>6</sup></a>&nbsp; &mdash; Hence the one maintaining that Fire implies human agency also holds that Fire is chattel,<a id="k23a_7"><sup>7</sup></a>&nbsp; so that liability for unconcealed goods would arise in the case where the falling fence could have been, but was not, repaired in time [to prevent the further spread of the fire], since it would equal chattel<a id="k23a_8"><sup>8</sup></a>&nbsp; left unguarded by the owner.<a id="k23a_9"><sup>9</sup></a>&nbsp; But if the one who holds that fire implies human agency also maintains that Fire is chattel,<a id="k23a_7"><sup>7</sup></a>&nbsp; what then is the practical point at issue?<a id="k23a_10"><sup>10</sup></a>&nbsp; &mdash; The point at issue is whether Fire<a id="k23a_11"><sup>11</sup></a>&nbsp; will involve the [additional] Four Items.<a id="k23a_12"><sup>12</sup></a>
</p><p>
	[THE OWNER OF THE DOG] PAYS FULL COMPENSATION FOR THE CAKE WHEREAS FOR THE BARN [HE] PAYS [ONLY] HALF DAMAGES. Who is liable [for the barn]? &mdash; The owner of the dog. But why should not the owner of the coal also be made liable?<a id="k23a_13"><sup>13</sup></a>&nbsp; &mdash; His [burning] coal was [well] guarded by him.<a id="k23a_14"><sup>14</sup></a>&nbsp; If the [burning] coal was well guarded by him, how then did the dog come to it? &mdash; By breaking in. R. Mari the son of R. Kahana thereupon said: This ruling implies that the average door is not beyond being broken in by a dog.<a id="k23a_15"><sup>15</sup></a>
</p><p>
	Now in whose premises was the cake devoured? It could hardly be suggested that it was devoured in the barn of another party,<a id="k23a_16"><sup>16</sup></a>&nbsp; for do we not require <I>And shall feed in the field of another</I><a id="k23a_17"><sup>17</sup></a>&nbsp; [the plaintiff], which is not the case here? &mdash; No, it applies where it was devoured in the barn of the owner of the cake. You can thus conclude that [the plaintiff's food carried in] the mouth of [the defendant's] cattle
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k23b_1:" And liability for the consumption of the food is not denied."
,k23b_2:" [I.e., why should I be liable for the bread consumed in my (the defendant's) premises?]"
,k23b_3:" Ex. XXII, 4."
,k23b_4:" Cf. <i>supra</i> p. 6."
,k23b_5:" I Kings XIV, 10."
,k23b_6:" On account of the fact that the corpus is in any of these cases not being destroyed; v. <i>supra</i> pp. 4-5."
,k23b_7:" In which case there is total destruction of the corpus."
,k23b_8:" Sanh. IX, 1; v. also <i>infra</i> 24b."
,k23b_9:" For which the dog is not much to blame since it was incited to do it."
,k23b_10:" I.e., both inciter and dog-owner will not be made liable."
,k23b_11:" In which case his hand has never been kept in the mouth of the dog."
,k23b_12:" Sanh. 78a."
,k23b_13:" V. Sanh. IX. 1."
,k23b_14:" In accordance with Ex. XXI, 28-29."
,k23b_15:" Being a mere accessory."
,k23b_16:" Lit., 'atonement', v. <a href=\"../tglossary.html\">Glos.</a>"
,k23b_17:" Contrary to the ruling of Ex. XXI, 30."
,k23b_18:" A p.n. of a certain family."
,k23b_19:" Ex. XXII. 4."
,k23b_20:" Without waiting for the market day."
,k23b_21:" Committed by his cattle."
,k23b_22:" Making the law of </I>Mu'ad</I> depend upon the days of goring."
,k23b_23:" Ex. XXI, 36."
,k23b_24:" The Hebrew term [H] denoting 'From<I> yesterday'</I> is thus taken to indicate two days."
,k23b_25:" Expressed in the one Hebrew word [H]."
,k23b_26:" According to Rashi a.l. even for the third goring. But Tosaf. a.l. and Rashi B.B. 28a explain it to refer only to the goring of the fourth time and onwards."
,k23b_27:" That the number of days is immaterial. "
}

txt:
<p>
is still considered [kept in] the plaintiff's premises.<a id="k23b_1"><sup>1</sup></a>&nbsp; For if it is considered to be in the defendant's premises why should not he say to the plaintiff: What is your bread doing in the mouth of my dog?<a id="k23b_2"><sup>2</sup></a>&nbsp; For there had been propounded a problem: Is [the plaintiff's food carried in] the mouth of [the defendant's] cattle considered as kept in the premises of the plaintiff, or as kept in the premises of the defendant? (Now if you maintain that it is considered to be in the defendant's premises, how can Tooth, for which the Divine Law imposes liability,<a id="k23b_3"><sup>3</sup></a>&nbsp; ever have practical application? &mdash; R. Mari the son of R. Kahana, however, replied: [It can have application] in the case where [the cattle] scratched against a wall for the sake of gratification [and pushed it down], or where it soiled fruits [by rolling upon them] for the purpose of gratification.<a id="k23b_4"><sup>4</sup></a>&nbsp; But Mar Zutra demurred: Do we not require, As a man taketh away dung till it all be gone,<a id="k23b_5"><sup>5</sup></a>&nbsp; which is not the case here?<a id="k23b_6"><sup>6</sup></a>&nbsp; &mdash; Rabina therefore said; [It has application] in the case where [the cattle] rubbed paintings<a id="k23b_7"><sup>7</sup></a>&nbsp; off [the wall]. R. Ashi similarly said: [It may have application] in the case where the cattle trampled on fruits [and spoilt them completely].<a id="k23b_7"><sup>7</sup></a>&nbsp; )
</p><p>
	Come and hear: If he incited a dog against him [i.e. his fellowman], or incited a serpent against him [to do damage], there is exemption.<a id="k23b_8"><sup>8</sup></a>&nbsp; For whom is there exemption? &mdash; There is exemption for the inciter, but liability upon the owner of the dog. Now if you contend that [whatever is kept in] the mouth of the defendant's cattle is considered [as kept in] the defendant's premises, why should he not say to the plaintiff: What is your hand doing in the mouth of my dog?<a id="k23b_9"><sup>9</sup></a>&nbsp; &mdash; Say, therefore, there is exemption also for the inciter;<a id="k23b_10"><sup>10</sup></a>&nbsp; or if you like, you may say: The damage was done by the dog baring its teeth and wounding the plaintiff.<a id="k23b_11"><sup>11</sup></a>
</p><p>
	Come and hear: If a man caused another to be bitten by a serpent, R. Judah makes him liable whereas the Sages exempt him.<a id="k23b_8"><sup>8</sup></a>&nbsp; And R. Aha b. Jacob commented:<a id="k23b_12"><sup>12</sup></a>&nbsp; Should you assume that according to R. Judah the poison of a serpent is ready at its fangs, so that the defendant [having committed murder is executed by] the sword,<a id="k23b_13"><sup>13</sup></a>&nbsp; whereas the serpent [being a mere instrument] is left unpunished, then according to the view of the Sages, the poison is spitten out by the serpent of its own free will, so that the serpent [being guilty of slaughter] is stoned,<a id="k23b_14"><sup>14</sup></a>&nbsp; whereas the defendant, who caused it, is exempt.<a id="k23b_15"><sup>15</sup></a>&nbsp; Now if you maintain that [whatever is kept in] the mouth of the defendant's cattle is considered [to be in] the defendant's premises, why should not the owner of the serpent say to the plaintiff: 'What is your hand doing in the mouth of my serpent?' &mdash; Regarding [the] killing [of the serpent] we certainly do not argue thus. Whence can you derive [this]? &mdash; For it was taught: Where a man enters another's premises without permission and is gored there to death by the owner's ox, the ox is stoned,<a id="k23b_14"><sup>14</sup></a>&nbsp; but the owner is exempted [from paying] <i>kofer</i><a id="k23b_16"><sup>16</sup></a>&nbsp; [for lost life].<a id="k23b_17"><sup>17</sup></a>&nbsp; Now 'the owner is exempted [from paying] <i>kofer</i>.' Why? Is it not because he can say, 'What were you doing on my premises?' Why then regarding the ox should not the same argument be put forward [against the victim]: 'What had you to do on my premises?' &mdash; Hence, when it is a question of killing [obnoxious beasts] we do not argue thus.
</p><p>
	The goats of Be Tarbu<a id="k23b_18"><sup>18</sup></a>&nbsp; used to do damage to [the fields of] R. Joseph. He therefore said to Abaye: 'Go and tell their owners that they should keep them indoors.' But Abaye said: 'What will be the use in my going? Even if I do go, they will certainly say to me "Let the master construct a fence round his land."' But if fences must be constructed, what are the cases in which the Divine Law imposed liability for Tooth?<a id="k23b_19"><sup>19</sup></a>&nbsp; &mdash; [Perhaps only] when the cattle pulled down the fence and broke in, or when the fence collapsed at night. It was, however, announced by R. Joseph, or, as others say, by Rabbah: 'Let it be known to those that go up from Babylon to Eretz Yisrael as well as to those that come down from Eretz Yisrael to Babylon, that in the case of goats that are kept for the market day but meanwhile do damage, a warning is to be extended twice and thrice to their owners. If they comply with the terms of the warning well and good, but if not, we bid them: "Slaughter your cattle immediately<a id="k23b_20"><sup>20</sup></a>&nbsp; and sit at the butcher's stall to get whatever money you can."'
</p><p>
	<B><I>MISHNAH</I></B>. WHAT IS <I>TAM</I>, AND WHAT IS <I>MU'AD</I>? &mdash; [CATTLE BECOME] <I>MU'AD</I> AFTER [THE OWNER HAS] BEEN WARNED FOR THREE DAYS [REGARDING THE ACTS OF GORING],<a id="k23b_21"><sup>21</sup></a>&nbsp; BUT [RETURN TO THE STATE OF] <I>TAM</I> AFTER REFRAINING FROM GORING FOR THREE DAYS; THESE ARE THE WORDS OF R. JUDAH. R. MEIR, HOWEVER, SAYS: [CATTLE BECOME] <I>MU'AD</I> AFTER [THE OWNER HAS] BEEN WARNED THREE TIMES [EVEN ON THE SAME DAY], AND [BECOME AGAIN] <I>TAM</I> WHEN CHILDREN KEEP ON TOUCHING THEM AND NO GORING RESULTS.
</p><p>
	<B><I>GEMARA</I></B>. What is the reason of R. Judah?<a id="k23b_22"><sup>22</sup></a>&nbsp; &mdash; Abaye said: [Scripture states, Or, if it be known from yesterday, and the day before yesterday, that he is a goring ox, and yet his owner does not keep him in&nbsp;&hellip;<a id="k23b_23"><sup>23</sup></a>]: 'Yesterday', denotes one day; 'from yesterday' &mdash; two;<a id="k23b_24"><sup>24</sup></a>&nbsp; and 'the day before yesterday' &mdash; three [days]; 'and yet his owner does not keep him in' &mdash; refers to the fourth goring. Raba said: 'Yesterday' and 'from yesterday'<a id="k23b_25"><sup>25</sup></a>&nbsp; denote one day; 'the day before yesterday' &mdash; two, 'and he [the owner] does not keep him in,' then, [to prevent a third goring,] he is liable [in full].<a id="k23b_26"><sup>26</sup></a>&nbsp; What then is the reason of R. Meir?<a id="k23b_27"><sup>27</sup></a>&nbsp; &mdash; As it was taught: R. Meir said:
</P>


lvr: 41
dfh: a
notes:
 ntes={k24a_1:" I.e., by goring three times in one and the same day."
,k24a_2:" The other Rabbis headed by R. Judah his opponent."
,k24a_3:" I.e., a woman who within the eleven days between one menstruation period and another had discharges on three consecutive days; cf. Lev.XV, 25-33."
,k24a_4:" For seven days."
,k24a_5:" I.e., for more than one day."
,k24a_6:" Lev. XV, 3. This text checks the application of the <i>a fortiori</i> in this case as the explanation goes on."
,k24a_7:" I.e., a male person afflicted with discharges of issue on three different occasions; cf. Lev. XV, 1-15."
,k24a_8:" On one and the same day."
,k24a_9:" So that he is affected only by that of the cases of 'noticing'."
,k24a_10:" Lev. XV, 33."
,k24a_11:" So that if one discharge lasted with him two or three days, it will render him <i>zab</i> proper."
,k24a_12:" Lev. XV, 3."
,k24a_13:" In Lev. ibid."
,k24a_14:" Regarding zabah."
,k24a_15:" In the case of <i>zab</i>."
,k24a_16:" Regarding three acts of goring by their cattle."
,k24a_17:" For three acts of goring."
,k24a_18:" Thus constituting a majority against R. Meir on this point."
,k24a_19:" I.e., the return to the state of <i>Tam</i>."
,k24a_20:" Lit., 'his depth is with him.' v. Git. 67a."
,k24a_21:" Regarding three acts of goring committed by his cattle even on one day."
,k24a_22:" Though the evidence was given in one day."
,k24a_23:" I.e., proved alibi of a set of witnesses, v. Mak. (Sonc. ed.) p. 1, n. 1."
,k24a_24:" I.e., proved to have been absent at the material time of the alleged goring; v. <a href=\"../tglossary.html\">Glos.</a>"
,k24a_25:" As his cattle 'would have to be dealt with as <i>Tam</i>."
,k24a_26:" In accordance with law of retaliation. Deut. XIX, 19. Since regarding the declaration of <I>Mu'ad</I> all the three pairs of witnesses constitute one set, and the law of hazamah applies only when the whole set has been convicted of an alibi."
,k24a_27:" I.e., the half damages added on account of the declaration of <I>Mu'ad</I>, whereas the original half damages on account of <i>Tam</i> will be imposed only upon the last pair of witnesses."
,k24a_28:" Deut. XIX. 19."
,k24a_29:" And since they waited until the last day when they were summoned by the plaintiff of that day, it is plain that their object in giving evidence was to render the ox <I>Mu'ad</I>. "
}

txt:
<p>
If for goring at long intervals [during three days], there is [full] liability, how much more so for goring at short intervals.<a id="k24a_1"><sup>1</sup></a>&nbsp; They,<a id="k24a_2"><sup>2</sup></a>&nbsp; however, said to him: 'A zabah<a id="k24a_3"><sup>3</sup></a>&nbsp; disproves your argument, as by noticing her discharges at long intervals [three cases of discharge in three days], she becomes [fully] unclean,<a id="k24a_4"><sup>4</sup></a>&nbsp; whereas by noticing her discharges at short intervals [i.e. on the same day] she does not become [fully unclean].'<a id="k24a_5"><sup>5</sup></a>&nbsp; But he answered them: Behold, Scripture says: And this shall be his uncleanness in his issue.<a id="k24a_6"><sup>6</sup></a>&nbsp; <i>Zab</i><a id="k24a_7"><sup>7</sup></a>&nbsp; has thus been made dependent upon [the number of] cases of 'noticing', and zabah upon that of 'days'. But whence is it certain that 'And this'<a id="k24a_6"><sup>6</sup></a>&nbsp; is to exempt zabah from being affected by cases of 'noticing'?<a id="k24a_8"><sup>8</sup></a>&nbsp; Say perhaps that it meant only to exempt <i>zab</i> from being affected by the number of 'days'?<a id="k24a_9"><sup>9</sup></a>&nbsp; &mdash; The verse says, And of him that hath on issue, of the man, and of the woman.<a id="k24a_10"><sup>10</sup></a>&nbsp; Male is thus made analogous to female: just as female is affected by [the number of] 'days' so is man affected by 'days'.<a id="k24a_11"><sup>11</sup></a>&nbsp; But why not make female analogous to male [and say]: just as male is affected by cases of 'noticing',<a id="k24a_8"><sup>8</sup></a>&nbsp; so also let female be affected by cases of 'noticing'?<a id="k24a_8"><sup>8</sup></a>&nbsp; &mdash; But Divine Law has [emphatically] excluded that by stating, 'And this'.<a id="k24a_12"><sup>12</sup></a>&nbsp; On what ground, however, do you say [that the Scriptural phrase excludes the one and not the other]? &mdash; It only stands to reason that when cases of 'noticing' are dealt with,<a id="k24a_13"><sup>13</sup></a>&nbsp; cases of 'noticing' are excluded;<a id="k24a_14"><sup>14</sup></a>&nbsp; [for is it reasonable to maintain that] when cases of 'noticing' are dealt with,<a id="k24a_13"><sup>13</sup></a>&nbsp; 'days' should be excluded?<a id="k24a_15"><sup>15</sup></a>
</p><p>
	Our Rabbis taught: What is <I>Mu'ad</I>? After the owner has been warned for three days;<a id="k24a_16"><sup>16</sup></a>&nbsp; but [it may return to the state of] <i>Tam</i>, if children keep on touching it and no goring results; this is the dictum of R. Jose. R. Simeon says: Cattle become <I>Mu'ad</I>, after the owner has been warned three times,<a id="k24a_17"><sup>17</sup></a>&nbsp; and the statement regarding three days refers only to the return to the state of <i>Tam</i>.
</p><p>
	R. Nahman quoting Adda b. Ahabah said: 'The <i>Halachah</i> is in accordance with R. Judah regarding <I>Mu'ad</I>, for R. Jose agrees with him.<a id="k24a_18"><sup>18</sup></a>&nbsp; But the <i>Halachah</i> is in accordance with R. Meir regarding <i>Tam</i>,<a id="k24a_19"><sup>19</sup></a>&nbsp; since R. Jose agrees with him [on this point].' Raba, however, said to R. Nahman: 'Why, Sir, not say that the <i>Halachah</i> is in accordance with R. Meir regarding <I>Mu'ad</I> for R. Simeon agrees with him, and the <i>Halachah</i> is in accordance with R. Judah regarding <i>Tam</i>, since R. Simeon agrees with him [on this point]?' He answered him: 'I side with R. Jose, because the reasons of R. Jose are generally sound.'<a id="k24a_20"><sup>20</sup></a>
</p><p>
	There arose the following question: Do the three days [under discussion] apply to [the goring of] the cattle [so that cases of goring on the same day do not count as more than one], or to the owner [who has to be warned on three different days]?<a id="k24a_21"><sup>21</sup></a>&nbsp; The practical difference becomes evident when three sets of witnesses appear on the same day [and testify to three cases of goring that occurred previously on three different days]. If the three days apply to [the goring of] the cattle there would in this case be a declaration of <I>Mu'ad</I>;<a id="k24a_22"><sup>22</sup></a>&nbsp; but, if the three days refer to the warning given the owner, there would in this case be no declaration of <I>Mu'ad</I>, as the owner may say: 'They have only just now testified against me [while the law requires this to be done on three different days].'
</p><p>
	Come and hear: Cattle cannot be declared <I>Mu'ad</I> until warning is given the owner when he is in the presence of the Court of Justice. If warning is given in the presence of the Court while the owner is absent, or, on the other hand, in the presence of the owner, but outside the Court, no declaration of <I>Mu'ad</I> will be issued unless the warning be given before the Court and before the owner. In the case of two witnesses giving evidence of the first time [of goring], and another two of the second time, and again two of the third time [of goring], three independent testimonies have been established. They are, however, taken as one testimony regarding haza mah.<a id="k24a_23"><sup>23</sup></a>&nbsp; Were the first set found <i>zomemim</i>,<a id="k24a_24"><sup>24</sup></a>&nbsp; the remaining two sets would be unaffected; the defendant would, however, escape [full] liability<a id="k24a_25"><sup>25</sup></a>&nbsp; and the <i>zomemim</i> would still not have to pay him [for conspiring to make his cattle <I>Mu'ad</I>].<a id="k24a_26"><sup>26</sup></a>&nbsp; Were also the second set found <i>zomemim</i>, the remaining testimony would be unaffected; the defendant would escape [full] liability<a id="k24a_25"><sup>25</sup></a>&nbsp; and the <i>zomemim</i> would still not have to compensate him [for conspiring to make his cattle <I>Mu'ad</I>].<a id="k24a_26"><sup>26</sup></a>&nbsp; Were the third set also found <i>zomemim</i>, they would all have to share the liability [for conspiring to make the cattle <I>Mu'ad</I>];<a id="k24a_27"><sup>27</sup></a>&nbsp; for it is with reference to such a case that it is stated, Then shall ye do unto him as he had thought to have done unto his brother.<a id="k24a_28"><sup>28</sup></a>&nbsp; Now if it is suggested that the three days refer to [the goring of] the cattle [whereas the owner may be warned in one day], the ruling is perfectly right [as the three pairs may have given evidence in one day].<a id="k24a_29"><sup>29</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k24b_1:" In which case the three sets dealt with could not have given their evidence in one and the same day, but each set on the day the respective goring took place."
,k24b_2:" Why then should the first set ever be made responsible for the subsequent rendering of the cattle <I>Mu'ad</I>."
,k24b_3:" In which case the three pairs may have given their evidence in one day."
,k24b_4:" I.e., the witnesses that constituted the former sets."
,k24b_5:" The former sets, however, cannot plead thus since they waited with their evidence until the last day, when they appeared to the summons of the plaintiff of that day, in which case it is more than evident that all that concerned that plaintiff regarding the evidence of the earlier times of goring was solely to render the ox <I>Mu'ad</I>."
,k24b_6:" And all gave evidence in one and the same day. Rashi a.l. maintains that this would still prove that the three days refer to the goring of the cattle and not to warning the owner. According to an interpretation suggested by Tosaf., however, the first and second sets who also appeared on the third day together with the third set, had already given their evidence on the first and second day respectively. The requirement of the three days could thus accordingly refer to warning the owner."
,k24b_7:" Cf. n. 2."
,k24b_8:" In which case the sole intention of all the sets of witnesses was the declaration of <I>Mu'ad</I>. They could not have intended to make the defendant liable for half damages since half damages in the case of <i>Tam</i> is paid only out of the body of the goring ox which the witnesses in this case were unable to identify. This explanation holds good only regarding the intention of the last set of witnesses, whereas the former sets, if for the declaration of <I>Mu'ad</I> they would necessarily have to record their evidence before the third time of goring, could then not have foreseen that the same ox (whose identity was not established by them) would continue goring for three and four times. Rashi thus proves that the three days refer not to warning the owner but to the times of goring committed by the cattle."
,k24b_9:" Since the identity of the goring ox could not be established."
,k24b_10:" For he, not having actually done the damage, is but an accessory."
,k24b_11:" Cf. <i>supra</i> p. 117."
,k24b_12:" Meaning thus that both inciter and owner are free."
,k24b_13:" <i>Supra</i> p. 98."
,k24b_14:" Even in the case of the walking cow kicking the lying cow."
,k24b_15:" Referred to <i>supra</i> p. 68."
,k24b_16:" While in the state of <i>Tam</i>; cf. <i>supra</i> p. 73."
,k24b_17:" V. <i>supra</i> p. 68."
,k24b_18:" <i>Supra</i> p. 17."
,k24b_19:" I.e., Horn doing damage on the plaintiff's premises."
,k24b_20:" I.e., Horn doing damage on public ground. "
}

txt:
<p>
But if it be suggested that the three days refer to the warning given the owner,<a id="k24b_1"><sup>1</sup></a>&nbsp; why should not the first set say: 'Could we have known that after three days there would appear other sets to render the cattle <I>Mu'ad</I>?'<a id="k24b_2"><sup>2</sup></a>&nbsp; &mdash; R. Ashi thereupon said: I repeated this argument to R. Kahana, and he said to me: 'And even if the three days refer to [the goring of] the cattle,<a id="k24b_3"><sup>3</sup></a>&nbsp; is the explanation satisfactory? Why should not the last set say: "How could we have known that all those present at the Court<a id="k24b_4"><sup>4</sup></a>&nbsp; had come to give evidence against the [same] ox? Our aim in coming was only to make the defendant liable for half damages."?'<a id="k24b_5"><sup>5</sup></a>&nbsp; &mdash; [But we may be dealing with a case where] all the sets were hinting to one another<a id="k24b_6"><sup>6</sup></a>&nbsp; [thus definitely conspiring to act concurrently]. R. Ashi further said that we may deal with a case where all the sets appeared [in Court] simultaneously.<a id="k24b_7"><sup>7</sup></a>&nbsp; Rabina even said: 'Where the witnesses know only the owner but could not identify the ox.'<a id="k24b_8"><sup>8</sup></a>&nbsp; How then can they render it <I>Mu'ad</I>?<a id="k24b_9"><sup>9</sup></a>&nbsp; &mdash; By saying: 'As you have in your herd an ox prone to goring, it should be your duty to control the whole of the herd.'
</p><p>
	There arose the following question: In the case of a neighbour's dog having been set on a third person, what is the law? The inciter could undoubtedly not be made liable,<a id="k24b_10"><sup>10</sup></a>&nbsp; but what about the owner of the dog? Are we to say that the owner is entitled to plead: 'What offence have I committed here?' Or may we retort: 'Since you were aware that your dog could easily be incited and do damage you ought not to have left it [unguarded]'?
</p><p>
	R. Zera [thereto] said: Come and hear: [CATTLE BECOME AGAIN] <I>TAM</I>, WHEN CHILDREN KEEP ON TOUCHING THEM AND NO GORING RESULTS, implying that were goring to result therefrom there would be liability [though it were caused by incitement]! &mdash; Abaye however said: Is it stated: If goring results therefrom there is liability? What perhaps is meant is: If goring does result therefrom there will be no return to the state of <i>Tam</i>, though regarding that [particular] goring no liability will be incurred.
</p><p>
	Come and hear: If he incited a dog or incited a serpent against him, there is exemption.<a id="k24b_11"><sup>11</sup></a>&nbsp; Does this not mean that the inciter is free, but the owner of the dog is liable? &mdash; No, read: '&hellip; the inciter too is free.'<a id="k24b_12"><sup>12</sup></a>
</p><p>
	Raba said: Assuming that in the case of inciting a neighbour's dog against a third person, the owner of the dog is liable, if the incited dog turns upon the inciter, the owner is free on the ground that where the plaintiff himself has acted wrongly, the defendant who follows suit and equally acts wrongly [against the former] could not be made liable [to him]. R. Papa thereupon said to Raba: A statement was made in the name of Resh Lakish agreeing with yours; for Resh Lakish said:<a id="k24b_13"><sup>13</sup></a>&nbsp; 'In the case of two cows on public ground, one lying and the other walking, if the walking cow kicks the other, there is no liability [as the plaintiff's cow had no right to be lying on the public ground], but if the lying cow kicks the other cow there will be liability.' Raba, however, said to him: In the case of the two cows I would always order payment<a id="k24b_14"><sup>14</sup></a>&nbsp; as [on behalf of the plaintiff] we may argue against the defendant: 'Your cow may be entitled to tread upon my cow, she has however no right to kick her.'
</p><p>
	<B><I>MISHNAH</I></B> WHAT IS MEANT BY 'OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES'?<a id="k24b_15"><sup>15</sup></a>&nbsp; IN CASE OF GORING, PUSHING, BITING, LYING DOWN OR KICKING, IF ON PUBLIC GROUND THE PAYMENT<a id="k24b_16"><sup>16</sup></a>&nbsp; IS HALF, BUT IF ON THE PLAINTIFF'S PREMISES R. TARFON ORDERS PAYMENT IN FULL<a id="k24b_17"><sup>17</sup></a>&nbsp; WHEREAS THE SAGES ORDER ONLY HALF DAMAGES.
</p><p>
	R. TARFON THERE UPON SAID TO THEM: SEEING THAT, WHILE THE LAW WAS LENIENT TO TOOTH AND FOOT IN THE CASE OF PUBLIC GROUND ALLOWING TOTAL EXEMPTION,<a id="k24b_18"><sup>18</sup></a>&nbsp; IT WAS NEVERTHELESS STRICT WITH THEM REGARDING [DAMAGE DONE ON] THE PLAINTIFF'S PREMISES WHERE IT IMPOSED PAYMENT IN FULL, IN THE CASE OF HORN, WHERE THE LAW WAS STRICT REGARDING [DAMAGE DONE ON] PUBLIC GROUND IMPOSING AT LEAST THE PAYMENT OF HALF DAMAGES, DOES IT NOT STAND TO REASON THAT WE SHOULD MAKE IT EQUALLY STRICT WITH REFERENCE TO THE PLAINTIFFS PREMISES SO AS TO REQUIRE COMPENSATION IN FULL? THEIR ANSWER WAS: IT IS QUITE SUFFICIENT THAT THE LAW IN RESPECT OF THE THING INFERRED<a id="k24b_19"><sup>19</sup></a>&nbsp; SHOULD BE EQUIVALENT TO THAT FROM WHICH IT IS DERIVED:<a id="k24b_20"><sup>20</sup></a>&nbsp; JUST AS FOR DAMAGE DONE ON PUBLIC GROUND THE COMPENSATION [IN THE CASE OF HORN] IS HALF, SO ALSO FOR DAMAGE DONE ON THE PLAINTIFF'S PREMISES THE COMPENSATION SHOULD NOT BE MORE THAN HALF. R. TARFON, HOWEVER, REJOINED: BUT NEITHER DO I
</P>


lvr: 41
dfh: a
notes:
 ntes={k25a_1:" V. p. 125, n. 5."
,k25a_2:" V. ibid. n. 6. [As in whatever way the argument is put the result is the same &mdash; namely, inferring Horn on the plaintiff's premises from Horn on public ground.]"
,k25a_3:" The Hebrew term meaning 'it is sufficient for it', and denoting the qualification applied by the Rabbis to check the full force of the <I>a fortiori</I>; v. <a href=\"../tglossary.html\">Glos.</a>"
,k25a_4:" B.B. II 1a; Zeb. 69b."
,k25a_5:" The technical term for the logical inference, 'From minor to major,' v. <a href=\"../tglossary.html\">Glos.</a>"
,k25a_6:" Num. XII, 14."
,k25a_7:" I.e., in the case of Divinity."
,k25a_8:" I.e., the case of her father. [Hence, even in the case of Divinity, no more than seven days are inferred proving that <I>Dayyo</I> has a Biblical basis.]"
,k25a_9:" I.e., render it completely ineffective."
,k25a_10:" Regarding compensation whether it be half or full in the case of Horn doing damage."
,k25a_11:" V. p. 126, n. 9."
,k25a_12:" I.e., the Sages in the Mishnah: how do they meet R. Tarfon's objection?"
,k25a_13:" Num. XII, 14."
,k25a_14:" How can he state that no mention is made of seven days in connection with divine reproof?"
,k25a_15:" But not a decree per se."
,k25a_16:" Num. XII, 15."
,k25a_17:" A person afflicted with gonorrhoea: cf. Lev. XV, 1-15."
,k25a_18:" As is the case with gonorrhoeal discharge."
,k25a_19:" Such as saliva."
,k25a_20:" Cf. Lev. XV, 8, and <i>Niddah</i>, 55b."
,k25a_21:" Such as semen virile."
,k25a_22:" Cf. Lev. XV, 16-17, and <i>supra</i> p. 2."
,k25a_23:" As it is based on the law applicable to the saliva of <I>zab</I>."
,k25a_24:" As is the case with the law applicable to semen virile of a clean person."
,k25a_25:" Whose semen virile causes defilement by touching."
,k25a_26:" Deut. XXIII, 11."
,k25a_27:" I.e., by the affliction of gonorrhoea. [I may therefore have assumed that the semen virile of a <I>zab</I> causes no defilement, not even by 'touching'.]"
,k25a_28:" And since the <I>a fortiori</I> would still serve a useful purpose regarding defilement by 'touching', why should not the principle of <I>Dayyo</I> be employed to exclude defilement by mere 'carrying'? Hence this Tanna does not resort to Dayya even where the employment thereof would not render the <I>a fortiori</I> ineffective."
,k25a_29:" The law applicable to semen virile to cause defilement by 'touching' is thus per se common with all kinds of persons. The inference by means of the <I>a fortiori</I> would therefore indeed be rendered useless if <I>Dayyo</I>, excluding as a result defilement by 'carrying', were admitted."
,k25a_30:" Naz. 66a."
,k25a_31:" Which defile both by 'touching' and by 'carrying'."
,k25a_32:" That semen virile of <I>zab</I> defiles by mere 'carrying' even on its own."
,k25a_33:" I.e., the three primary Defilements: Dead Reptile, Semen Virile and the Person contaminated by contact with a corpse, all of which do not defile by mere carrying'. v. <i>supra</i> p. 2. "
}

txt:
<p>
INFER HORN [DOING DAMAGE ON THE PLAINTIFF'S PREMISES] FROM HORN [DOING DAMAGE ON PUBLIC GROUND]; I INFER HORN FROM FOOT: SEEING THAT IN THE CASE OF PUBLIC GROUND THE LAW, THOUGH LENIENT WITH REFERENCE TO TOOTH AND FOOT, IS NEVERTHELESS STRICT REGARDING HORN, IN THE CASE OF THE PLAINTIFF'S PREMISES, WHERE THE LAW IS STRICT WITH REFERENCE TO TOOTH AND FOOT, DOES IT NOT STAND TO REASON THAT WE SHOULD APPLY THE SAME STRICTNESS TO HORN? THEY, HOWEVER, STILL ARGUED: IT IS QUITE SUFFICIENT IF THE LAW IN RESPECT OF THE THING INFERRED IS<a id="k25a_1"><sup>1</sup></a>&nbsp; EQUIVALENT TO THAT FROM WHICH IT IS DERIVED.<a id="k25a_2"><sup>2</sup></a>&nbsp; JUST AS FOR DAMAGE DONE ON PUBLIC GROUND THE COMPENSATION [IN THE CASE OF HORN] IS HALF, SO ALSO FOR DAMAGE DONE ON THE PLAINTIFF'S PREMISES, THE COMPENSATION SHOULD NOT BE MORE THAN HALF.
</p><p>
	<B><I>GEMARA</I></B>. Does R. Tarfon really ignore the principle of <I>Dayyo</I>?<a id="k25a_3"><sup>3</sup></a>&nbsp; Is not <I>Dayyo</I> of Biblical origin as taught:<a id="k25a_4"><sup>4</sup></a>&nbsp; How does the rule of <I>Kal wa-homer</I><a id="k25a_5"><sup>5</sup></a>&nbsp; work? <I>And the Lord said unto Moses, If her father had but spit in her face, should she not be ashamed seven days?</I><a id="k25a_6"><sup>6</sup></a>&nbsp; How much the more so then in the case of divine [reproof] should she be ashamed fourteen days? Yet the number of days remains seven, for it is sufficient if the law in respect of the thing inferred<a id="k25a_7"><sup>7</sup></a>&nbsp; be equivalent to that from which it is derived!<a id="k25a_8"><sup>8</sup></a>&nbsp; &mdash; The principle of <I>Dayyo</I> is ignored by him [R. Tarfon] only when it would defeat the purpose of the <I>a fortiori</I>,<a id="k25a_9"><sup>9</sup></a>&nbsp; but where it does not defeat the purpose of the <I>a fortiori</I>, even he maintains the principle of <I>Dayyo</I>. In the instance quoted there is no mention made at all of seven days in the case of divine reproof; nevertheless, by the working of the <I>a fortiori</I>, fourteen days may be suggested: there follows, however, the principle of <I>Dayyo</I> so that the additional seven days are excluded, whilst the original seven are retained. Whereas in the case before us<a id="k25a_10"><sup>10</sup></a>&nbsp; the payment of not less than half damages has been explicitly ordained [in all kinds of premises]. When therefore an <I>a fortiori</I> is employed, another half-payment is added [for damage on the plaintiff's premises], making thus the compensation complete. If [however] you apply the principle of <I>Dayyo</I>, the sole purpose of the <I>a fortiori</I> would thereby be defeated.<a id="k25a_11"><sup>11</sup></a>&nbsp; And the Rabbis?<a id="k25a_12"><sup>12</sup></a>&nbsp; &mdash; They argue that also in the case of divine [reproof] the minimum of seven days has been decreed in the words: Let her be shut out from the camp seven days.<a id="k25a_13"><sup>13</sup></a>&nbsp; And R. Tarfon?<a id="k25a_14"><sup>14</sup></a>&nbsp; &mdash; He maintains that the ruling in the words, 'Let her be shut out etc.', is but the result of the application of the principle of <I>Dayyo</I><a id="k25a_15"><sup>15</sup></a>&nbsp; [decreasing the number of days to seven]. And the Rabbis? &mdash; They argue that this is expressed in the further verse: And Miriam was shut out from the camp.<a id="k25a_16"><sup>16</sup></a>&nbsp; And R. Tarfon? &mdash; He maintains that the additional statement was intended to introduce the principle of <I>Dayyo</I> for general application so that you should not suggest limiting its working only to that case where the dignity of Moses was involved, excluding thus its acceptance for general application: it has therefore been made known to us [by the additional statement] that this is not the case.
</p><p>
	R. Papa said to Abaye: Behold, there is a Tanna who does not employ the principle of <I>Dayyo</I> even when the <I>a fortiori</I> would thereby not be defeated, for it was taught: Whence do we know that the discharge of semen virile in the case of <I>zab</I><a id="k25a_17"><sup>17</sup></a>&nbsp; causes defilement [either by 'touching' or by 'carrying']?<a id="k25a_18"><sup>18</sup></a>&nbsp; It is a logical conclusion: For if a discharge<a id="k25a_19"><sup>19</sup></a>&nbsp; that is clean in the case of a clean person is defiling in the case of <I>zab</I>,<a id="k25a_20"><sup>20</sup></a>&nbsp; is it not cogent reasoning that a discharge<a id="k25a_21"><sup>21</sup></a>&nbsp; which is defiling in the case of a clean person,<a id="k25a_22"><sup>22</sup></a>&nbsp; should defile in the case of <I>zab</I>? Now this reasoning applies to both 'touching' and 'carrying',<a id="k25a_23"><sup>23</sup></a>&nbsp; But why not argue that the <I>a fortiori</I> serves a useful purpose in the case of 'touching', whilst the principle of <I>Dayyo</I> can be employed to exclude defilement by mere 'carrying'?<a id="k25a_24"><sup>24</sup></a>&nbsp; If, however, you maintain that regarding 'touching' there is no need to apply the <I>a fortiori</I> on the ground that [apart from all inferences] <I>zab</I> could surely not be less defiling than an ordinary clean person,<a id="k25a_25"><sup>25</sup></a>&nbsp; my contention is [that the case may not be so, and] that the <I>a fortiori</I> may [still] be essential. For I could argue: By reason of uncleanness that chanceth him by night<a id="k25a_26"><sup>26</sup></a>&nbsp; is stated in Scripture to imply that the law of defilement applies only to those whose uncleanness has been occasioned solely by reason of their discharging semen virile, excluding thus <I>zab</I>, whose uncleanness has been occasioned not [solely] by his discharging semen virile but by another cause altogether.<a id="k25a_27"><sup>27</sup></a>&nbsp; May not the <I>a fortiori</I> thus have to serve the purpose of letting us know that <I>zab</I> is not excluded?<a id="k25a_28"><sup>28</sup></a>&nbsp; &mdash; But where in the verse is it stated that the uncleanness must not have [concurrently] resulted also from any other cause?<a id="k25a_29"><sup>29</sup></a>
</p><p>
	Who is the Tanna whom you may have heard maintain that semen virile of <I>zab</I> causes [of itself] defilement by mere 'carrying'? He could surely be neither R. Eliezer, nor R. Joshua, for it was taught:<a id="k25a_30"><sup>30</sup></a>&nbsp; The semen virile of <I>zab</I> causes defilement by 'touching', but causes no defilement by mere 'carrying'. This is the view of R. Eliezer. R. Joshua, however, maintains that it also causes defilement by mere 'carrying', for it must necessarily contain particles of gonorrhoea.<a id="k25a_31"><sup>31</sup></a>&nbsp; Now, the sole reason there of R. Joshua's view is that semen virile cannot possibly be altogether free from particles of gonorrhoea, but taken on its own it would not cause defilement. The Tanna who maintains this<a id="k25a_32"><sup>32</sup></a>&nbsp; must therefore be he who is responsible for what we have learnt: More severe than the former [causes of defilement]<a id="k25a_33"><sup>33</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k25b_1:" Kelim I, 3."
,k25b_2:" It is thus proved that semen virile of <I>zab</I> causes of itself defilement by 'carrying' and not on account of the particles of gonorrhoea it contains."
,k25b_3:" Which are not included among the articles referred to in Num. XXXI, 20."
,k25b_4:" [As he is unable to insert even his small finger within. Earthenware is susceptible to levitical uncleanness only through the medium of its interior. Lev. XI, 33.]"
,k25b_5:" As stated in Num. XIX, 15; and every open vessel&nbsp;&hellip; is unclean."
,k25b_6:" In accordance with Lev. XV, 4."
,k25b_7:" Shab. 84a."
,k25b_8:" Lit., 'defilement (until) sunset,' which applies to defilements caused by <I>zab</I>; v. Lev. XV, 5-11."
,k25b_9:" Usual in defilements through a corpse; cf. Num. XIX, 11-16."
,k25b_10:" [As is the case with the bed of a <I>zab</I> (cf. Lev. XV, 4), since it is derived from <I>zab</I>.]"
,k25b_11:" But not at all regarding corpses; the whole problem thus concerns only defilement for a day; v. <i>infra</i>."
,k25b_12:" As mats are not included among the articles referred to in Lev. XI, 32."
,k25b_13:" The minimum quantity for defilement by which is the size of a lentil, a quantity which can easily pass through the opening of the smallest bottle."
,k25b_14:" As he is unable to insert even his small finger within. Earthenware is susceptible to levitical uncleanness only through the medium of its interior. Lev. XI, 33."
,k25b_15:" Lev. XI, 32:&nbsp;&hellip; whether it be any vessel of wood or raiment or skin&nbsp;&hellip; it shall be unclean until the even."
,k25b_16:" In accordance with Lev. XV, 4."
,k25b_17:" Which are not included among the articles referred to in Num. XXXI, 20."
,k25b_18:" Num. XXXI, 20: And as to every raiment and all that is made of skin&nbsp;&hellip; ye shall purify."
,k25b_19:" The technical term for (an inference from) a verbal congruity in two different portions of the Law; v. <a href=\"../tglossary.html\">Glos.</a>"
,k25b_20:" Heb. vbpun (Mufnah), 'free', that is, for exegetical use, having no other purpose to serve, but solely intended to indicate this particular similarity in law."
,k25b_21:" Hag. 11a; Naz. 52a."
,k25b_22:" Naz. 49b."
,k25b_23:" Lev. XXII, 4."
,k25b_24:" Ibid. XV, 17."
,k25b_25:" Lev. XI, 32."
,k25b_26:" Thus to make the <I>Gezerah shawah</I> irrefutable."
,k25b_27:" I.e., in the case of dead reptiles."
,k25b_28:" Nid. 22b."
,k25b_29:" Shab. 131a; Yeb. 70b."
,k25b_30:" Since the refutation referred to above may be entertained."
,k25b_31:" Num. XXXI, 20."
,k25b_32:" Yeb. 78b."
,k25b_33:" Becoming subject to the specific laws applicable to its own category. [So here mats in the tent of a corpse, though derived by analogy from reptiles, are subject to the laws of defilement by corpses. i.e., a defilement of 7 days.]"
,k25b_34:" Usual in defilements through a corpse; cf. Num. XIX, 11-16."
,k25b_35:" Lev. XI, 32."
,k25b_36:" Num. XXXI, 24."
,k25b_37:" While in the state of <i>Tam</i>; cf. <i>supra</i> p. 73."
,k25b_38:" Ex. XXII, 4. "
}

txt:
<p>
are the gonorrhoeal discharge of <I>zab</I>, his saliva, his semen virile, his urine and the blood of menstruation, all of which defile whether by 'touching' or by mere 'carrying'.<a id="k25b_1"><sup>1</sup></a>&nbsp; But why not maintain that the reason here is also because the semen virile of <I>zab</I> cannot possibly be altogether free from particles of gonorrhoea? &mdash; If this had been the reason, semen virile should have been placed in juxtaposition to gonorrhoeal discharge. Why then was it placed in juxtaposition to saliva if not on account of the fact that its causing defilement is to be inferred from the law applicable to his saliva?<a id="k25b_2"><sup>2</sup></a>
</p><p>
	R. Aha of Difti said to Rabina: Behold there is this Tanna who does not employ the principle of <I>Dayyo</I> even when the purpose of the <I>a fortiori</I> would thereby not be defeated. For it was taught: Whence do we learn that mats<a id="k25b_3"><sup>3</sup></a>&nbsp; become defiled if kept within the tent where there is a corpse? &mdash; It is a logical conclusion: For if tiny [earthenware] jugs that remain undefiled by the handling of <I>zab</I><a id="k25b_4"><sup>4</sup></a>&nbsp; become defiled when kept within the tent where there is a corpse,<a id="k25b_5"><sup>5</sup></a>&nbsp; does it not follow that mats, which even in the case of <I>zab</I> become defiled,<a id="k25b_6"><sup>6</sup></a>&nbsp; should become defiled when kept within the tent where there is a corpse.<a id="k25b_7"><sup>7</sup></a>&nbsp; Now this reasoning applies not only to the law of defilement for a single day,<a id="k25b_8"><sup>8</sup></a>&nbsp; but also to defilement for full seven<a id="k25b_9"><sup>9</sup></a>&nbsp; [days]. But why not argue that the <I>a fortiori</I> well serves its purpose regarding the defilement for a single day,<a id="k25b_10"><sup>10</sup></a>&nbsp; whilst the principle of <I>Dayyo</I> is to be employed to exclude defilement for seven days? &mdash; He [Rabina] answered him: The same problem had already been raised by R. Nahman b. Zachariah to Abaye, and Abaye answered him that it was regarding mats in the case of a dead reptile<a id="k25b_11"><sup>11</sup></a>&nbsp; that the Tanna had employed the <I>a fortiori</I>, and the text should run as follows: 'Whence do we learn that mats<a id="k25b_12"><sup>12</sup></a>&nbsp; coming in contact with dead reptiles<a id="k25b_13"><sup>13</sup></a>&nbsp; become defiled? It is a logical conclusion: for if tiny [earthenware] jugs that remain undefiled by the handling of <I>zab</I>,<a id="k25b_14"><sup>14</sup></a>&nbsp; become defiled when in contact with dead reptiles,<a id="k25b_15"><sup>15</sup></a>&nbsp; does it not follow that mats which even in the case of <I>zab</I> become defiled,<a id="k25b_16"><sup>16</sup></a>&nbsp; should become defiled by coming in contact with dead reptiles?' But whence the ruling regarding mats<a id="k25b_17"><sup>17</sup></a>&nbsp; kept within the tent of a corpse? &mdash; In the case of dead reptiles it is stated <I>raiment or skin</I>,<a id="k25b_15"><sup>15</sup></a>&nbsp; while in the case of a corpse it is also stated, <I>raiment&nbsp;&hellip; skin</I>:<a id="k25b_18"><sup>18</sup></a>&nbsp; just as in the case of <I>raiment or skin</I> stated in connection with dead reptiles,<a id="k25b_15"><sup>15</sup></a>&nbsp; mats [are included to] become defiled, so is it regarding <I>raiment&nbsp;&hellip; skin</I> stated in connection with a corpse<a id="k25b_18"><sup>18</sup></a>&nbsp; that mats similarly become defiled. This <i>Gezerah shawah</I><a id="k25b_19"><sup>19</sup></a>&nbsp; must necessarily be 'free',<a id="k25b_20"><sup>20</sup></a>&nbsp; for if it were not 'free' the comparison made could be thus upset: seeing that in the case of dead reptiles [causing defilement to mats], their minimum for causing uncleanness is the size of a lentil,<a id="k25b_21"><sup>21</sup></a>&nbsp; how can you draw an analogy to corpses where the minimum to cause uncleanness is not the size of a lentil but that of an olive?<a id="k25b_22"><sup>22</sup></a>&nbsp; &mdash; The <I>Gezerah shawah</I> must thus be 'free'. Is it not so? For indeed the law regarding dead reptiles is placed in juxtaposition to semen virile as written, <I>Or a man whose seed goeth from him</I>,<a id="k25b_23"><sup>23</sup></a>&nbsp; and there immediately follows, <I>Or whosoever toucheth any creeping thing</I>. Now in the case of semen virile it is explicitly stated, <I>And every garment, and every skin, whereon is the seed of copulation</I>.<a id="k25b_24"><sup>24</sup></a>&nbsp; Why then had the Divine Law to mention again <I>raiment or skin</I> in the case of dead reptiles?<a id="k25b_25"><sup>25</sup></a>&nbsp; It may thus be concluded that it was [inserted] to be 'free' [for exegetical purposes].<a id="k25b_26"><sup>26</sup></a>&nbsp; Still it has so far only been proved that one part [of the <I>Gezerah shawah</I>]<a id="k25b_27"><sup>27</sup></a>&nbsp; is 'free'. This would therefore be well in accordance with the view maintaining<a id="k25b_28"><sup>28</sup></a>&nbsp; that when a <I>Gezerah shawah</I> is 'free', even in one of its texts only, an inference may be drawn and no refutation will be entertained. But according to the view holding<a id="k25b_29"><sup>29</sup></a>&nbsp; that though an inference may be drawn in such a case, refutations will nevertheless be entertained, how could the analogy [between dead reptiles and corpses] be maintained?<a id="k25b_30"><sup>30</sup></a>&nbsp; &mdash; The verbal congruity in the text dealing with corpses is also 'free'. For indeed the law regarding corpses is similarly placed in juxtaposition to semen virile, as written, <I>And whoso toucheth any thing that is unclean by the dead or a man whose seed goeth from him</I> etc.<a id="k25b_23"><sup>23</sup></a>&nbsp; Now in the case of semen virile it is explicitly stated, <I>And every garment, and every skin, whereon is the seed of copulation</I>. Why then had the Divine Law to mention again <I>raiment&nbsp;&hellip; skin</I> in the case of corpses?<a id="k25b_31"><sup>31</sup></a>&nbsp; It may thus be concluded that it was [inserted] to be 'free' for exegetical purposes.<a id="k25b_26"><sup>26</sup></a>&nbsp; The <I>Gezerah shawah</I> is thus 'free' in both texts. Still this would again be only in accordance with the view maintaining<a id="k25b_32"><sup>32</sup></a>&nbsp; that when an inference is made by means of reasoning [from an analogy] the subject of the inference is placed back on its own basis.<a id="k25b_33"><sup>33</sup></a>&nbsp; But according to the view that when an inference is made [by means of an analogy] the subject of the inference must be placed on a par with the other in all respects, how can you establish the law [that mats kept in the tent of a corpse become defiled for seven days,<a id="k25b_34"><sup>34</sup></a>&nbsp; since you infer it from dead reptiles where the defilement is only for the day]?<a id="k25b_35"><sup>35</sup></a>&nbsp; &mdash; Said Raba: Scripture states, <I>And ye shall wash your clothes on the seventh day</I>,<a id="k25b_36"><sup>36</sup></a>&nbsp; to indicate that all defilements in the case of corpses cannot be for less than for seven [days].
</p><p>
	But should we not let Tooth and Foot involve liability for damage done [even] on public ground because of the following <I>a fortiori</I>: If in the case of Horn<a id="k25b_37"><sup>37</sup></a>&nbsp; where [even] for damage done on the plaintiff's premises only half payment is involved, there is yet liability to pay for damage done on public ground, does it not necessarily follow that in the case of Tooth and Foot where for damage done on the plaintiff's premises the payment is in full, there should be liability for damage done on public ground? &mdash; Scripture, however, says, And it shall feed in another man's field,<a id="k25b_38"><sup>38</sup></a>&nbsp; excluding thus [damage done on] public ground.
</P>


lvr: 41
dfh: a
notes:
 ntes={k26a_1:" On the analogy to Horn where the liability is only for half damages in the case of <i>Tam</i>. The Scriptural text may have been intended to exclude only full compensation."
,k26a_2:" Ex. XXI, 35."
,k26a_3:" I.e., the division of compensation."
,k26a_4:" With the exception of course of damage done by Pebbles according to the Rabbis, who by the authority of a special Mosaic tradition order the payment of half damages; cf. <i>supra</i> p. 80."
,k26a_5:" In accordance with the Rabbis who differ from R. Tarfon; v. <i>supra</i> p. 125."
,k26a_6:" <i>Supra</i> p. 132."
,k26a_7:" Ex. XXII, 4."
,k26a_8:" Lit., 'good', 'perfect'."
,k26a_9:" [Ex. XXI, 35; the phrase being superfluous, as the text could have read, They shall divide the money of it and the dead.]"
,k26a_10:" Cf. <i>supra</i> p. 92."
,k26a_11:" V. <i>Supra</i> p. 12."
,k26a_12:" I.e., Pain, Medical Expenses, Loss of Time and Degradation, in addition to Depreciation, when injuring a human being; v. <i>supra</i> ibid."
,k26a_13:" Ex. XXI, 30."
,k26a_14:" V. <i>supra</i> p. 12."
,k26a_15:" V. p. 133, n. 8."
,k26a_16:" V. Ex. XXI, 30."
,k26a_17:" Lev. XXIV, 19."
,k26a_18:" Which becomes <i>Mu'ad</i>; v. <i>supra</i> p. 119."
,k26a_19:" Ex. XXI, 30."
,k26a_20:" With Foot, which is always considered <i>Mu'ad</i>; v. <i>supra</i> p. 11."
,k26a_21:" <i>Supra</i> p. 66 and <i>infra</i> 48b."
,k26a_22:" I.e., R. Tarfon."
,k26a_23:" In the same way as he derived compensation in full for damage done by Horn on the plaintiff's premises, as argued by him, <i>supra</i> p. 125. [Thus: If in the case of Tooth and Foot, where there is no liability at all involved on public ground, there is liability to pay full ransom on the plaintiff's premises, does it not follow that Horn, which does involve at least payment of half ransom on public ground, should on the plaintiff's premises be liable to pay full ransom.]"
,k26a_24:" V. p. 134, n. 9."
,k26a_25:" And not from the law applicable to manslaughter committed by Foot, in which case there may be no ransom at all. [Thus: If in the case of Foot, which involves no liability for damage on public ground, there is liability to pay in full in the plaintiff's premises, does it not follow that, in the case of Horn, involving as it does payment of half ransom on public ground, there should be payment of full ransom in plaintiff's premises.]"
,k26a_26:" For the person liable for arson may, in such a case, be indicted for manslaughter; cf. <i>supra</i> pp. 37-38 and p. 113."
,k26a_27:" [Thus: If in the case of Foot, which involves no liability at all on public ground, there is full liability for hidden goods on the plaintiff's premises, does it not follow that, in the case of Horn, which involves liability to pay half damages on public ground, there should be payment of full ransom in plaintiff's premises?] Cf. <i>supra</i> p. 18."
,k26a_28:" As stated <i>supra</i> p. 37."
,k26a_29:" Cf. notes 2 and 4."
,k26a_30:" V. <i>supra</i> p. 18."
,k26a_31:" For all civil complaints are merged in the capital accusation of manslaughter; cf. <i>supra</i>, p. 113 and Num. XXXV, 32."
,k26a_32:" I.e., R. Tarfon."
,k26a_33:" V. <i>supra</i>. 134, n. 10."
,k26a_34:" I.e., R. Tarfon"
,k26a_35:" V. <i>supra</i> p. 135, n. 2."
,k26a_36:" V, <i>supra</i> p. 134, n. 10."
,k26a_37:" Cf. <i>supra</i> p. 8."
,k26a_38:" I.e., Pain, Medical Expenses, Loss of Time and Degradation; cf. <i>supra</i> p. 133 n. 8. "
}

txt:
<p>
But have we ever suggested payment in full? It was only half payment that we were arguing for!<a id="k26a_1"><sup>1</sup></a>&nbsp; &mdash; Scripture further says, And they shall divide the money of it<a id="k26a_2"><sup>2</sup></a>&nbsp; [to indicate that this<a id="k26a_3"><sup>3</sup></a>&nbsp; is confined to] 'the money of it' [i.e.. the goring ox] but does not extend to compensation [for damage caused] by another ox.<a id="k26a_4"><sup>4</sup></a>
</p><p>
	But should we not let Tooth and Foot doing damage on the plaintiff's premises involve the liability for half damages only because of the following <I>a fortiori</I>: If in the case of Horn, where there is liability for damage done even on public ground, there is yet no more than half payment for damage done on the plaintiff's premises,<a id="k26a_5"><sup>5</sup></a>&nbsp; does it not follow that, in the case of Tooth and Foot where there is exemption for damage done on public ground,<a id="k26a_6"><sup>6</sup></a>&nbsp; the liability regarding damage done on the plaintiff's premises should be for half compensation only? &mdash; Scripture says, He shall make restitution,<a id="k26a_7"><sup>7</sup></a>&nbsp; meaning full<a id="k26a_8"><sup>8</sup></a>&nbsp; compensation.
</p><p>
	But should we not [on the other hand] let Horn doing damage on public ground involve no liability at all, because of the following <I>a fortiori</I>: If in the case of Tooth and Foot where the payment for damage done on the plaintiff's premises is in full there is exemption for damage done on public ground.<a id="k26a_6"><sup>6</sup></a>&nbsp; does it not follow that, in the case of Horn where the payment for damage done on the plaintiff's premises, is only half, there should be exemption for damage done on public ground? &mdash; Said R. Johanan: Scripture says. [And the dead also] they shall divide,<a id="k26a_9"><sup>9</sup></a>&nbsp; to emphasise that in respect of half payment there is no distinction between public ground and private premises.<a id="k26a_10"><sup>10</sup></a>
</p><p>
	But should we not let [also] in the case of Man ransom be paid [for manslaughter]<a id="k26a_11"><sup>11</sup></a>&nbsp; because of the following <I>a fortiori</I>: If in the case of Ox where there is no liability to pay the [additional] Four Items,<a id="k26a_12"><sup>12</sup></a>&nbsp; there is yet the liability to pay ransom [for manslaughter,<a id="k26a_13"><sup>13</sup></a>&nbsp; does it not follow that in the case of Man who is liable for the [additional] Four Items,<a id="k26a_12"><sup>12</sup></a>&nbsp; there should be ransom [for manslaughter]? &mdash; But Scripture states, Whatsoever is laid upon him: upon him<a id="k26a_13"><sup>13</sup></a>&nbsp; excludes [the payment of ransom] in the case of Man [committing manslaughter].
</p><p>
	But should we not [on the other hand] let Ox involve the liability of the [additional] Four Items because of the following <I>a fortiori</I>: If Man who by killing man incurs no liability to pay ransom<a id="k26a_14"><sup>14</sup></a>&nbsp; has, when injuring man, to pay [additional] Four Items,<a id="k26a_15"><sup>15</sup></a>&nbsp; does it not follow that, in the case of Ox where there is a liability to pay ransom [for killing man],<a id="k26a_16"><sup>16</sup></a>&nbsp; there should similarly be a liability to pay the [additional] Four Items when injuring [man]? &mdash; Scripture states, <I>If a man cause a blemish in his neighbour</I>,<a id="k26a_17"><sup>17</sup></a>&nbsp; thus excluding Ox injuring the [owner's] neighbour.
</p><p>
	It has been asked: In the case of Foot treading upon a child [and killing it] in the plaintiff's premises, what should be the law regarding ransom? Shall we say that this comes under the law applicable to Horn, on the ground that just as with Horn in the case of manslaughter being repeated twice and thrice it becomes habitual with the animal,<a id="k26a_18"><sup>18</sup></a>&nbsp; involving thus the payment of ransom,<a id="k26a_19"><sup>19</sup></a>&nbsp; so also seems to be the case here<a id="k26a_20"><sup>20</sup></a>&nbsp; with hardly any distinction; or shall it perhaps be argued that in the case of Horn there was on the part of the animal a determination to injure, whereas in this case the act was not prompted by a determination to injure? &mdash; Come and hear: In the case of an ox having been allowed [by its owner] to trespass upon somebody else's ground and there goring to death the owner of the premises, the ox will be stoned, while its owner must pay full ransom whether [the ox was] <i>Tam</i> or <i>Mu'ad</i>. This is the view of R. Tarfon. Now, whence could R. Tarfon infer the payment of full ransom in the case of <i>Tam</i>, unless he shared the view of R. Jose the Galilean maintaining<a id="k26a_21"><sup>21</sup></a>&nbsp; that <i>Tam</i> involves the payment of half ransom for manslaughter committed on public ground, in which case he<a id="k26a_22"><sup>22</sup></a>&nbsp; could rightly have inferred ransom in full [for manslaughter on the plaintiff's premises] by means of the <I>a fortiori</I> from the law applicable to Foot?<a id="k26a_23"><sup>23</sup></a>&nbsp; This thus proves that ransom has to be paid for [manslaughter committed by] Foot. R. Shimi of Nehardea, however, said that the Tanna<a id="k26a_24"><sup>24</sup></a>&nbsp; might have inferred it from the law applicable to [mere] damage done by Foot.<a id="k26a_25"><sup>25</sup></a>&nbsp; But [if so] cannot the inference be refuted? For indeed what analogy could be drawn to damage done by Foot, the liability for which is common also with Fire [whereas ransom does not apply to Fire]?<a id="k26a_26"><sup>26</sup></a>&nbsp; &mdash; [The inference might have been] from damage done to hidden goods [in which case the liability is not common with Fire].<a id="k26a_27"><sup>27</sup></a>&nbsp; Still what analogy is there to hidden goods, the liability for which is common with Pit [whereas ransom for manslaughter does not apply to Pit]?<a id="k26a_28"><sup>28</sup></a>&nbsp; &mdash; The inference might have been from damage done to inanimate objects<a id="k26a_29"><sup>29</sup></a>&nbsp; [for which there is no liability in the case of Pit].<a id="k26a_30"><sup>30</sup></a>&nbsp; Still what analogy is there to inanimate objects, the liability for which is again common with Fire? &mdash; The inference might therefore have been from damage done to inanimate objects that were hidden [for which neither Fire nor Pit involve liability]. But still what comparison is there to hidden inanimate objects, the liability for which is common at least with Man [whereas ransom is not common with Man]?<a id="k26a_31"><sup>31</sup></a>&nbsp; &mdash; Does this therefore not prove that he<a id="k26a_32"><sup>32</sup></a>&nbsp; must have made the inference from ransom [for manslaughter] in the case of Foot,<a id="k26a_33"><sup>33</sup></a>&nbsp; proving thus that ransom has to be paid for manslaughter committed by Foot? &mdash; This certainly is proved.
</p><p>
	R. Aha of Difti said to Rabina: It even stands to reason that ransom has to be paid in the case of Foot. For if you say that in the case of Foot there is no ransom, and that the Tanna<a id="k26a_34"><sup>34</sup></a>&nbsp; might have made the inference from the law applicable to mere damage done by Foot,<a id="k26a_35"><sup>35</sup></a>&nbsp; his reasoning could easily be refuted. For what analogy could be drawn to damage done by Foot for which there is liability in the case of Foot [whereas this is not the case with ransom]? Does this [by itself] not show that the inference could only have been made from ransom in the case of Foot,<a id="k26a_36"><sup>36</sup></a>&nbsp; proving thus that ransom has to be paid for [manslaughter conmitted by] Foot? &mdash; It certainly does show this.
</p><p>
	<B><I>MISHNAH</I></B>. MAN IS ALWAYS <I>MU'AD</I> WHETHER [HE ACTS] INADVERTENTLY OR WILFULLY, WHETHER AWAKE OR ASLEFP.<a id="k26a_37"><sup>37</sup></a>&nbsp; IF HE BLINDED HIS NEIGHBOUR'S EYE OR BROKE HIS ARTICLES, FULL COMPENSATION MUST [THEREFORE] BE MADE.
</p><p>
	<B><I>GEMARA</I></B>. Blinding a neighbour's eye is placed here in juxtaposition to breaking his articles [to indicate that] just as in the latter case only Depreciation will be indemnified, whereas the [additional] Four Items [of liability]<a id="k26a_38"><sup>38</sup></a>&nbsp; do not apply, so also in the case of inadvertently blinding his neighbour's eye only Depreciation will be indemnified, whereas the [additional] Four Items do not apply.
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k26b_1:" That Man is <i>Mu'ad</i> to pay Depreciation for damage done by him under all circumstances."
,k26b_2:" [Literal rendering of Ex. XXI, 25, which is superfluous having regard to Lev. XXIV, 19, If a man maim his neighbour, as he hath done so shall it be done to him.]"
,k26b_3:" That one is not merged in the other; cf. <i>infra</i> 85a."
,k26b_4:" Expressed in Hebrew only by two words [H] [H]"
,k26b_5:" For which three words are employed in the Hebrew text."
,k26b_6:" For Man is <I>Mu'ad</I> to pay Depreciation even for damage done while asleep."
,k26b_7:" On account of the absence of a purpose to do damage."
,k26b_8:" I.e., if while unaware of the stone in his bosom he carried it with him into the open public thoroughfare, thus violating the Sabbath; cf. Shab. 96b."
,k26b_9:" V. <i>infra</i> 60a; Hag. 10b."
,k26b_10:" I.e., if, when the stone fell down, it killed a human being; v. Num. XXXV. 9-34."
,k26b_11:" Since he never had any knowledge of the stone being in his bosom, he could in no way be made responsible criminally for the accidental manslaughter."
,k26b_12:" I.e., when the stone in falling down destroyed the eye or the tooth of a slave; v. Ex. XXI. 26-27."
,k26b_13:" Kid. 24b."
,k26b_14:" Ex. XXI, 26."
,k26b_15:" For Man is <i>Mu'ad</i> to pay Depreciation even for damage done while asleep."
,k26b_16:" On account of the absence of a will to do damage."
,k26b_17:" I.e., if when the stone fell down, it killed a human being; v. Num. XXXV, 9-34."
,k26b_18:" Num. XXXV, 11, 15."
,k26b_19:" I.e., if while unaware of the stone in his bosom he carried it with him into the open public thoroughfare, thus violating the Sabbath; cf. Shab. 96b."
,k26b_20:" <i>Supra</i> p. 137."
,k26b_21:" For the minimum of distance to constitute the violation of Sabbath by throwing an object in a public thoroughfare is four cubits; v. Shab. 96b."
,k26b_22:" v. <i>supra</i> p. 137, n. 7."
,k26b_23:" I.e., if when the stone fell down, it killed a human being; v. Num. XXXV, 9-34."
,k26b_24:" Ex. XXI, 13."
,k26b_25:" [According to one interpretation of Rashi, this is a case for exile; according to another, a case which is excluded from enjoying the protection of the city of refuge: v. Mak. 7b.]"
,k26b_26:" V. p. 137, n. 7."
,k26b_27:" V. p. 138 n. 3."
,k26b_28:" Ex. XXI, 13."
,k26b_29:" V. <i>supra</i> p. 137."
,k26b_30:" Belonging to another. According to the interpretation of Rashi a.l. the utensil was thrown by its owner; cf. however, Rashi, <i>supra</i> 17b."
,k26b_31:" Belonging to another."
,k26b_32:" Lit., 'he had let his arrow off', it had spent its force; i.e., when the act of throwing took place it was by no means calculated to do any damage."
,k26b_33:" According to R. Judah, the latter who caught it on the edge of his sword will be guilty of murder, but according to the Rabbis, no one is guilty of it. "
}

txt:
<p>
	Whence is this ruling<a id="k26b_1"><sup>1</sup></a>&nbsp; deduced? Hezekiah said, and thus taught a Tanna of the School of Hezekiah: Scripture states, Wound instead of a wound<a id="k26b_2"><sup>2</sup></a>&nbsp; &mdash; to impose the liability [for Depreciation] in the case of inadvertence as in that of willfulness, in the case of compulsion as in that of willingness. [But] was not that [verse] required to prescribe [indemnity for] Pain even in the case where Depreciation is independently paid? &mdash; If that is all,<a id="k26b_3"><sup>3</sup></a>&nbsp; Scripture should have stated, 'Wound for a wound',<a id="k26b_4"><sup>4</sup></a>&nbsp; why state, [wound] instead of a wound,<a id="k26b_5"><sup>5</sup></a>&nbsp; unless to indicate that both inferences be made from it?
</p><p>
	Rabbah said: In the case of a stone lying in a person's bosom without his having knowledge of it, so that when he rose it fell down &mdash; regarding damage, there will be liability for Depreciation<a id="k26b_6"><sup>6</sup></a>&nbsp; but exemption regarding the [additional] Four Items;<a id="k26b_7"><sup>7</sup></a>&nbsp; concerning Sabbath<a id="k26b_8"><sup>8</sup></a>&nbsp; [there will similarly be exemption] as it is [only] work that has been [deliberately] purposed that is forbidden by the Law;<a id="k26b_9"><sup>9</sup></a>&nbsp; in a case of manslaughter<a id="k26b_10"><sup>10</sup></a>&nbsp; there is exemption from fleeing [to a city of refuge];<a id="k26b_11"><sup>11</sup></a>&nbsp; regarding [the release of] a slave,<a id="k26b_12"><sup>12</sup></a>&nbsp; there exists a difference of opinion between R. Simeon b. Gamaliel and the Rabbis, as it was taught:<a id="k26b_13"><sup>13</sup></a>&nbsp; If the master was a physician and the slave requested him to attend to his eye and it was accidentally blinded, or [the slave requested the master] to scrape his tooth and it was accidentally knocked out, he may now laugh at the master, for he has already obtained his liberty. R. Simeon b. Gamaliel, however, says: [Scripture states] <I>and [he] destroy it</I>,<a id="k26b_14"><sup>14</sup></a>&nbsp; to make the freedom conditional upon the master intending to ruin the eye of the slave.
</p><p>
	If the person, however, had at some time been aware of the stone in his bosom but subsequently forgot all about it, so that when he rose it fell down, &mdash; in the case of damage there is liability for Depreciation;<a id="k26b_15"><sup>15</sup></a>&nbsp; but though the exemption regarding the [additional] Four Items still holds good,<a id="k26b_16"><sup>16</sup></a>&nbsp; in the case of manslaughter<a id="k26b_17"><sup>17</sup></a>&nbsp; he will have to flee [to a city of refuge], for Scripture says, at unawares,<a id="k26b_18"><sup>18</sup></a>&nbsp; implying the existence of some [previous] knowledge [as to the dangerous weapon] and in the case before us such knowledge did at a time exist: concerning Sabbath,<a id="k26b_19"><sup>19</sup></a>&nbsp; however, there is still exemption; regarding [the release of] a slave the difference of opinion between R. Simeon b. Gamaliel and the Rabbis<a id="k26b_20"><sup>20</sup></a>&nbsp; still applies.
</p><p>
	Where he intended to throw the stone to a distance of two cubits, but it fell at a distance of four,<a id="k26b_21"><sup>21</sup></a>&nbsp; if it caused damage, there is liability for Depreciation; regarding the [additional] Four Items there is still exemption;<a id="k26b_16"><sup>16</sup></a>&nbsp; so also concerning Sabbath,<a id="k26b_19"><sup>19</sup></a>&nbsp; for work [deliberately] planned is required [to make it an offence];<a id="k26b_22"><sup>22</sup></a>&nbsp; in the case of manslaughter,<a id="k26b_23"><sup>23</sup></a>&nbsp; And if a man lie not in wait,<a id="k26b_24"><sup>24</sup></a>&nbsp; is stated by Divine law, excluding a case where there was mention to throw a stone to a distance of two cubits but which fell at a distance of four.<a id="k26b_25"><sup>25</sup></a>&nbsp; Regarding [the release of] a slave, the difference of opinion between R. Simeon b. Gamaliel and the Rabbis<a id="k26b_20"><sup>20</sup></a>&nbsp; still applies. Where the intention was to throw the stone to a distance of four<a id="k26b_21"><sup>21</sup></a>&nbsp; cubits but it fell eight cubits away, &mdash; if it caused damage there will be liability for Depreciation; regarding the [additional] Four Items there is still exemption;<a id="k26b_16"><sup>16</sup></a>&nbsp; concerning Sabbath, if there was express intention that the stone should fall anywhere, there is liability for an offence,<a id="k26b_21"><sup>21</sup></a>&nbsp; but in the absence of such express intention no offence was committed;<a id="k26b_26"><sup>26</sup></a>&nbsp; in the case of manslaughter,<a id="k26b_27"><sup>27</sup></a>&nbsp; And if a man lie not in wait,<a id="k26b_28"><sup>28</sup></a>&nbsp; excludes a case where there was intention to throw a stone to a distance of four cubits, but which fell at a distance of eight. Regarding [the release of] a slave the difference of opinion between R. Simeon b. Gamaliel and the Rabbis<a id="k26b_29"><sup>29</sup></a>&nbsp; still applies.
</p><p>
	Rabbah again said: In the case of one throwing a utensil<a id="k26b_30"><sup>30</sup></a>&nbsp; from the top of a roof and another one coming and breaking it with a stick [before it fell upon the ground where it would in any case have been broken], the latter is under no liability to pay; the reason being that it was only a utensil which was already certain to be broken that was broken by him.
</p><p>
	Rabbah further said: In the case of a man throwing a utensil<a id="k26b_31"><sup>31</sup></a>&nbsp; from the top of the roof while there were underneath mattresses and cushions which were meanwhile removed by another person, or even if he [who had thrown it] removed them himself, there is exemption; the reason being that at the time of the throwing [of the utensil] his agency had been void of any harmful effect.<a id="k26b_32"><sup>32</sup></a>
</p><p>
	Rabbah again said: In the case of one throwing a child from the top of the roof and somebody else meanwhile appearing and catching it on the edge of his sword, there is a difference of opinion between R. Judah b. Bathyra and the Rabbis.<a id="k26b_33"><sup>33</sup></a>&nbsp; For it was taught: In the case of ten persons beating one [to death] with ten sticks, whether simultaneously or consecutively, none of them
</P>


lvr: 41
dfh: a
notes:
 ntes={k28a_1:" I.e., the majority of Rabbis."
,k28a_2:" I.e., the Judges."
,k28a_3:" In which case the Court would order compensation in full."
,k28a_4:" Where compensation is only for a half, the plaintiff losing the other half."
,k28a_5:" V. p. 145, n. 9."
,k28a_6:" [Although there was the danger of his losing the full value of his ox.]"
,k28a_7:" Thus contradicting the view of Rab Judah."
,k28a_8:" But no more."
,k28a_9:" Ex. XXI, 6."
,k28a_10:" Lev. XXV, 10, and Kid. 14b, 15a."
,k28a_11:" Num. XXXV, 32."
,k28a_12:" According to another rendering quoted by Rashi, it means 'that has to return' to his family, as prescribed in Lev. XXV, 10."
,k28a_13:" In which case an irreparable loss is pending."
,k28a_14:" I.e., the arrival of the Jubilee year."
,k28a_15:" Ex. XXI, 4; Kid. 15a."
,k28a_16:" Cf. <i>Onkelos</i> on Deut. XXIII, 18; hence the Master may use force to eject him."
,k28a_17:" Thus opposing the view of R. Nahman."
,k28a_18:" Deut. XXV, 12."
,k28a_19:" Thus proving that even where irreparable loss is pending, as in this case, it is not permitted to take the law into one's own hands."
,k28a_20:" In which case she acted ultra vires, i.e., beyond the permission granted by law."
,k28a_21:" Deut. XXV, 11."
,k28a_22:" Dealing with a woman coming to rescue her husband."
,k28a_23:" V. p. 147. n. 6."
,k28a_24:" Lit. 'her hand is like the hand of the officer'."
,k28a_25:" B. B. 99b."
,k28a_26:" To keep away intruders; v. p. 147 n. 5."
,k28a_27:" Which is of course not an equitable exchange in accordance with the law."
,k28a_28:" B.B. 12a; 26b; 60b and 100a."
,k28a_29:" I.e., the portion of the harvest left at a corner of the field for the poor in accordance with Lev. XIX. 9; XXIII, 22; v. <a href=\"../tglossary.html\">Glos.</a>"
,k28a_30:" Thus proving that even where irreparable loss is pending, as in this case, it is not permitted to take the law into his own hands."
,k28a_31:" I.e., keeping the poor away from the <I>Pe'ah</I> on the former side."
,k28a_32:" But they will by no means belong to the poor, for the portion left on the former side remains the owner's property."
,k28a_33:" <i>Infra</i> 94a; Ned. 44b."
,k28a_34:" So that ownership has been re-established."
,k28a_35:" I.e.. grapes fallen off during cutting which are the share of the poor as prescribed in Lev. XIX, 10."
,k28a_36:" Small single bunches reserved for the poor in accordance with Lev. XIX, 10, and Deut. XXIV, 21."
,k28a_37:" I.e., produce forgotten in the field, belonging to the poor in accordance with Deut. XXIV, 19."
,k28a_38:" I.e., the portion of the harvest left at a corner of the field for the poor in accordance with Lev. XIX, 9; XXIII, 22; v. <a href=\"../tglossary.html\">Glos.</a>"
,k28a_39:" V. <i>infra</i> 94a. For the law of tithing applies only to produce that has never been abandoned even for the smallest space of time; v. Rashi and Tosaf. a.l."
,k28a_40:" Rab maintains that the Mishnah deals with a case where the water of the broken pitcher has not been abandoned, so that it still remains the chattel of the original owner who is liable for any damage caused by it "
}

txt:
<p>
: It is true that Ben Bag Bag supports thy view; but he is only one against the Rabbis<a id="k28a_1"><sup>1</sup></a>&nbsp; who differ from him. R. Jannai [even] suggested that 'Break his teeth' may also mean to bring him before a court of justice. But if so, why 'and thou mayest tell him?' Should it not read 'and they<a id="k28a_2"><sup>2</sup></a>&nbsp; will tell him'? Again, 'I am taking possession of what is mine'; should it not be 'he is taking possession of what is his'? &mdash; This is indeed a difficulty.
</p><p>
	Come and hear: In the case of an ox throwing itself upon the back of another's ox so as to kill it, if the owner of the ox that was beneath arrived and extricated his ox so that the ox that was above dropped down and was killed, there is exemption. Now, does not this ruling apply to <i>Mu'ad</i><a id="k28a_3"><sup>3</sup></a>&nbsp; where no irreparable loss is pending? &mdash; No, it only applies to <i>Tam</i><a id="k28a_4"><sup>4</sup></a>&nbsp; where an irreparable loss is indeed pending. But if so, read the subsequent clause: If [the owner of the ox that was beneath] pushed the ox from above, which was thus killed, there would be liability to compensate. Now if the case dealt with is of <i>Tam</i>,<a id="k28a_5"><sup>5</sup></a>&nbsp; why liability? &mdash; Since he was able to extricate his ox from beneath, which in fact he did not do, [he had no right to push and directly kill the assailing ox].<a id="k28a_6"><sup>6</sup></a>
</p><p>
	Come and hear: In the case of a trespasser having filled his neighbour's premises with pitchers of wine and pitchers of oil, the owner of the premises is entitled to break them when going out and break them when coming in. [Does not this prove that a man may take the law into his own hands for the protection of his rights?]<a id="k28a_7"><sup>7</sup></a>&nbsp; &mdash; R. Nahman b. Isaac explained: He is entitled to break them [and make a way]<a id="k28a_8"><sup>8</sup></a>&nbsp; when going out [to complain] to the Court of Justice, as well as break them when coming back to fetch some necessary documents.
</p><p>
	Come and hear: Whence is derived the ruling that in the case of a [Hebrew] bondman whose term of service, that had been extended by the boring of his ear,<a id="k28a_9"><sup>9</sup></a>&nbsp; has been terminated by the arrival of the Jubilee year<a id="k28a_10"><sup>10</sup></a>&nbsp; if it so happened that his master, while insisting upon him to leave, injured him by inflicting a wound upon him, there is yet exemption? We learn it from the words, And ye shall take no satisfaction for him that is&nbsp;&hellip; come again&nbsp;&hellip;<a id="k28a_11"><sup>11</sup></a>&nbsp; implying that we should not adjudicate compensation for him that is determined to 'come again' [as a servant].<a id="k28a_12"><sup>12</sup></a>&nbsp; [Does not this prove that a man may take the law into his own hands for the protection of his interests?]<a id="k28a_7"><sup>7</sup></a>&nbsp; &mdash; We are dealing here with a case where the servant became suspected of intending to commit theft.<a id="k28a_13"><sup>13</sup></a>&nbsp; But how is it that up to that time he did not commit any theft and just at that time<a id="k28a_14"><sup>14</sup></a>&nbsp; he became suspected of intending to commit theft? &mdash; Up to that time he had the fear of his master upon him, whereas from that time<a id="k28a_14"><sup>14</sup></a>&nbsp; he is no more subject to his master's control.<a id="k28a_10"><sup>10</sup></a>&nbsp; R. Nahman b. Isaac said: We are dealing with a bondman to whom his master assigned a Canaanite maidservant as wife:<a id="k28a_15"><sup>15</sup></a>&nbsp; up to the expiration of the term this arrangement was lawful<a id="k28a_15"><sup>15</sup></a>&nbsp; whereas from that time this becomes unlawful.<a id="k28a_16"><sup>16</sup></a>
</p><p>
	Come and hear: IF A MAN PLACES A PITCHER ON PUBLIC GROUND AND ANOTHER ONE COMES AND STUMBLES OVER IT AND BREAKS IT, HE IS EXEMPT. Now, is not this so only when the other one stumbled over it, whereas in the case of directly breaking it there is liability?<a id="k28a_17"><sup>17</sup></a>&nbsp; &mdash; R. Zebid thereupon said in the name of Raba: The same law applies even in the case of directly breaking it; for 'AND STUMBLES' was inserted merely because of the subsequent clause which reads, IF THE OTHER ONE WAS INJURED BY IT, THE OWNER OF THE BARREL IS LIABLE TO COMPENSATE FOR THE DAMAGE, and which, of course, applies only to stumbling but not to direct breaking, as then it is of course the plaintiff who is to blame for the damage he caused to himself. It was therefore on this account that 'stumbling' was inserted in the commencing clause.
</p><p>
	Come and hear: <I>Then thou shalt cut off her hand</I>,<a id="k28a_18"><sup>18</sup></a>&nbsp; means only a monetary fine. Does not this ruling apply even in a case where there was no other possibility for her to save [her husband]?<a id="k28a_19"><sup>19</sup></a>&nbsp; &mdash; No, it applies only where she was able to save [him] by some other means.<a id="k28a_20"><sup>20</sup></a>&nbsp; Would indeed no fine be imposed upon her in a case where there was no other possibility for her to save [her husband]? But if so, why state in the subsequent clause: '<I>And putteth forth her hand</I>,<a id="k28a_21"><sup>21</sup></a>&nbsp; excludes an officer of the Court of Justice [from any liability for degradation caused by him while carrying out the orders of the Court]'? Could not the distinction be made by continuing the very case<a id="k28a_22"><sup>22</sup></a>&nbsp; [in the following manner]: 'Provided that there were some other means at her disposal to save [him],<a id="k28a_20"><sup>20</sup></a>&nbsp; whereas if she was unable to save [him] by any other means there would be exemption'? &mdash; This very same thing was indeed meant to be conveyed [in the subsequent clause:] 'Provided that there were some other means at her disposal to save [him],<a id="k28a_23"><sup>23</sup></a>&nbsp; for were she unable to save [him] by any other means, the resort to force in her case should be considered as if exercised by an officer of the Court<a id="k28a_24"><sup>24</sup></a>&nbsp; [in the discharge of his duties] and there would be exemption.'
</p><p>
	Come and hear:<a id="k28a_25"><sup>25</sup></a>&nbsp; In the case of a public road passing through the middle of a field of an individual, who appropriates the road but gives the public another at the side of his field, the gift of the new road holds good, whereas the old one will not thereby revert to the owner of the field. Now, if you maintain that a man may take the law into his own hands for the protection of his interests, why should he not arm himself with a whip and sit there?<a id="k28a_26"><sup>26</sup></a>&nbsp; &mdash; R. Zebid thereupon said in the name of Raba: This is a precaution lest an owner [on further occasions] might substitute a round- about way<a id="k28a_27"><sup>27</sup></a>&nbsp; [for an old established road]. R. Mesharsheya even suggested that the ruling applies to an owner who actually replaced [the old existing road by] a roundabout way.<a id="k28a_27"><sup>27</sup></a>&nbsp; R. Ashi said: To turn a road [from the middle] to the side [of a field] must inevitably render the road roundabout, for if for those who reside at that side it becomes more direct, for those who reside at the other side it is made far [and roundabout]. But if so, why does the gift of the new road hold good? Why can the owner not say to the public authorities: 'Take ye yours [the old path] and return me mine [the new one]'? &mdash; [That could not be done] because of Rab Judah, for Rab Judah said:<a id="k28a_28"><sup>28</sup></a>&nbsp; A path [once] taken possession of by the public may not be obstructed.
</p><p>
	Come and hear: If an owner leaves <I>Pe'ah</I><a id="k28a_29"><sup>29</sup></a>&nbsp; on one side of the field, whereas the poor arrive at another side and glean there, both sides are subject to the law of <I>Pe'ah</I>. Now, if you really maintain that a man may take the law into his own hands for the protection of his interests why should both sides be subject to the law of <I>Pe'ah</I>?<a id="k28a_30"><sup>30</sup></a>&nbsp; Why should the owner not arm himself with a whip and sit?<a id="k28a_31"><sup>31</sup></a>&nbsp; &mdash; Raba thereupon said: The meaning of 'both sides are subject to the law of <I>Pe'ah</I>' is that they are both exempt from tithing,<a id="k28a_32"><sup>32</sup></a>&nbsp; as taught:<a id="k28a_33"><sup>33</sup></a>&nbsp; If a man, after having renounced the ownership of his vineyard, rises early on the following morning and cuts off the grapes,<a id="k28a_34"><sup>34</sup></a>&nbsp; there applies to them the laws of Peret,<a id="k28a_35"><sup>35</sup></a>&nbsp; 'Oleloth,<a id="k28a_36"><sup>36</sup></a>&nbsp; 'Forgetting'<a id="k28a_37"><sup>37</sup></a>&nbsp; and <I>Pe'ah</I><a id="k28a_38"><sup>38</sup></a>&nbsp; whereas there is exemption from tithing.<a id="k28a_39"><sup>39</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF HIS PITCHER BROKE ON PUBLIC GROUND AND SOMEONE SLIPPED IN THE WATER OR WAS INJURED BY THE POTSHERD HE IS LIABLE [TO COMPENSATE]. R. JUDAH SAYS: IF IT WAS DONE INTENTIONALLY HE IS LIABLE, BUT IF UNINTENTIONALLY HE IS EXEMPT.
</p><p>
	<B><I>GEMARA</I></B>. Rab Judah said on behalf of Rab: The Mishnaic ruling refers only to garments soiled in the water.<a id="k28a_40"><sup>40</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k28b_1:" Lit., 'ground of the world'."
,k28b_2:" Whereas the water was only the remote cause of it."
,k28b_3:" Even when not abandoned; cf. <i>supra</i> p. 7."
,k28b_4:" Ex. XXI, 33."
,k28b_5:" Excluding man."
,k28b_6:" For killing and injury could not be distinguished in the case of inanimate objects. How then could Rab make him liable for soiled garments (and exempt for injury to the person)?"
,k28b_7:" The difference in principle between Samuel and Rab is that the former maintains that nuisances of all kinds, whether abandoned by their owners or not, are subject to the law applicable to Pit, in which case there is no liability either for damage done to inanimate objects or death caused to human beings, whereas the view of Rab is that only abandoned nuisances are subject to these laws of Pit, but nuisances that have not been abandoned by their owners are still his chattels, and as such have to be subject to the law applicable to ox doing damage, in which case no discrimination is made as to the nature of the damaged objects, be they men, beasts or inanimate articles; cf. also <i>supra</i> p. 38."
,k28b_8:" In which case they are equal (in law) to Pits dug on public ground."
,k28b_9:" They are thus subject to the law applicable to ox; v. <i>supra</i> p. 18."
,k28b_10:" V. <i>infra</i> 52a."
,k28b_11:" Even when not abandoned; cf. <i>supra</i> p. 7."
,k28b_12:" Since the case of stone, knife and luggage is far less obvious than this case which is explicitly dealt with in Scripture."
,k28b_13:" Making a stone, a knife and luggage subject to the law applicable to Pit."
,k28b_14:" Who maintains that unless they have been abandoned they are subject to the law of Ox."
,k28b_15:" Imposing liability in the case of a bottle having been smashed against the stone."
,k28b_16:" According to whom it should be subject to the law applicable to Pit imposing no liability for damage done to inanimate objects."
,k28b_17:" Even for damage done to inanimate objects, as they are subject not to the law of Pit but to that applicable to Ox."
,k28b_18:" <i>Supra</i> p. 18."
,k28b_19:" Since it was ownerless ground that was the primary cause of the accident."
,k28b_20:" Who holds that where no payment can be exacted from one defendant, the co-defendant, if any, will himself bear the whole liability; cf <i>supra</i> p. 54 and <i>infra</i> 53a"
,k28b_21:" To constitute liability."
,k28b_22:" Though there was no intention whatever to break it."
,k28b_23:" Who is usually taken to have been the author of anonymous Mishnaic statements, especially when contradicting those of R. Judah b. Il'ai, his colleague."
,k28b_24:" I.e., Rabbah to Abaye."
,k28b_25:" Deut. XXII, 26."
,k28b_26:" For so far as she is concerned it was a mishap."
,k28b_27:" <i>Infra</i> 55a. "
}

txt:
<p>
For regarding injury to the person there is exemption, since it was public ground<a id="k28b_1"><sup>1</sup></a>&nbsp; that hurt him.<a id="k28b_2"><sup>2</sup></a>&nbsp; When repeating this statement in the presence of Samuel he said to me: 'Well, is not [the liability for damage occasioned by] a stone, a knife or luggage<a id="k28b_3"><sup>3</sup></a>&nbsp; derived from Pit?<a id="k28b_4"><sup>4</sup></a>&nbsp; So that I adopt regarding them all [the interpretation]: An ox<a id="k28b_4"><sup>4</sup></a>&nbsp; excluding man, An ass<a id="k28b_4"><sup>4</sup></a>&nbsp; excluding inanimate objects! This qualification<a id="k28b_5"><sup>5</sup></a>&nbsp; however applies only to cases of killing, whereas as regards [mere] injury, in the case of man there is liability, though with respect to inanimate objects there is [always] exemption?'<a id="k28b_6"><sup>6</sup></a>&nbsp; &mdash; Rab [however, maintains<a id="k28b_7"><sup>7</sup></a>&nbsp; that] these statements apply only to nuisances abandoned [by their owners],<a id="k28b_8"><sup>8</sup></a>&nbsp; whereas in cases where they are not abandoned they still remain [their owner's] chattel.<a id="k28b_9"><sup>9</sup></a>
</p><p>
	R. Oshaia however raised an objection: <I>'And an ox or an ass fall therein'</I>:<a id="k28b_4"><sup>4</sup></a>&nbsp;<I> 'An ox'</I> excluding man; <I>'an ass'</I> excluding inanimate objects. Hence the Rabbis stated: If there fell into it an ox together with its tools and they thereby broke, [or] an ass together with its equipment which rent, there is liability for the beast but exemption as regards the inanimate objects.<a id="k28b_10"><sup>10</sup></a>&nbsp; To what may the ruling in this case be compared? To that applicable in the case of a stone, a knife and luggage<a id="k28b_11"><sup>11</sup></a>&nbsp; that had been left on public ground and did damage. (Should it not on the contrary read, 'What case may be compared to this ruling?'<a id="k28b_12"><sup>12</sup></a>&nbsp; &mdash; It must therefore indeed mean thus: 'What may [be said to] be similar to this ruling? The case of a stone, a knife and luggage that had been left on public ground and did damage'.) 'It thus follows that where a bottle broke against the stone there is liability.' Now, does not the commencing clause<a id="k28b_13"><sup>13</sup></a>&nbsp; contradict the view of Rab,<a id="k28b_14"><sup>14</sup></a>&nbsp; whereas the concluding clause<a id="k28b_15"><sup>15</sup></a>&nbsp; opposes that of Samuel?<a id="k28b_16"><sup>16</sup></a>&nbsp; &mdash; But [even] on your view, does not the text contradict itself, stating exemption in the commencing clause<a id="k28b_13"><sup>13</sup></a>&nbsp; and liability in the concluding clause!<a id="k28b_15"><sup>15</sup></a>&nbsp; Rab therefore interprets it so as to accord with his reasoning, whereas Samuel [on the other hand] expounds it so as to reconcile it with his view. Rab in accordance with his reasoning interprets it thus: The [above] statement<a id="k28b_13"><sup>13</sup></a>&nbsp; was made only regarding nuisances that have been abandoned, whereas where they have not been abandoned there is liability.<a id="k28b_17"><sup>17</sup></a>&nbsp; It therefore follows that where a bottle broke against the stone there is liability. Samuel [on the other hand] in reconciling it with his view expounds it thus: Since you have now decided that a stone, a knife and luggage [constitute nuisances that] are equivalent [in law] to Pit, it follows that, according to R. Judah who orders compensation for inanimate objects damaged by Pit,<a id="k28b_18"><sup>18</sup></a>&nbsp; where a bottle smashed against the stone there is liability.
</p><p>
	R. Eleazar said: This ruling<a id="k28b_15"><sup>15</sup></a>&nbsp; refers only to a case where the person stumbled over the stone and the bottle broke against the stone. For if the person stumbled because of the public ground, though the bottle broke against the stone, there is exemption.<a id="k28b_19"><sup>19</sup></a>&nbsp; Whose view is here followed? &mdash; Of course not that of R. Nathan.<a id="k28b_20"><sup>20</sup></a>&nbsp; There are, however, some who [on the other hand] read: R. Eleazar said: Do not suggest that it is only where the person stumbled upon the stone and the bottle broke against the stone that there is liability, so that where the person stumbled because of the public ground, though the bottle broke against the stone, there would be exemption. For even in the case where the person stumbled because of the public ground, provided the bottle broke against the stone there is liability. Whose view is here followed? &mdash; Of course that of Nathan.<a id="k28b_20"><sup>20</sup></a>
</p><p>
	R. JUDAH SAYS: IF IT WAS DONE INTENTIONALLY HE IS LIABLE, BUT IF UNINTENTIONALLY HE IS EXEMPT. What does INTENTIONALLY denote? &mdash; Rabbah said: [It is sufficient<a id="k28b_21"><sup>21</sup></a>&nbsp; if there was] an intention to bring the pitcher below the shoulder.<a id="k28b_22"><sup>22</sup></a>&nbsp; Said Abaye to him: Does this imply that R. Meir<a id="k28b_23"><sup>23</sup></a>&nbsp; imposes liability even when the pitcher slipped down [by sheer accident]? &mdash; He answered him:<a id="k28b_24"><sup>24</sup></a>&nbsp; 'Yes, R. Meir imposes liability even where the handle remained in the carrier's hand.' But why? Is it not sheer accident, and has not the Divine Law prescribed exemption in cases of accident as recorded,<a id="k28b_25"><sup>25</sup></a>&nbsp; But unto the damsel thou shalt do nothing?<a id="k28b_26"><sup>26</sup></a>&nbsp; You can hardly suggest this ruling to apply only to capital punishment, whereas regarding damages there should [always] be liability, for it was taught:<a id="k28b_27"><sup>27</sup></a>&nbsp; If his pitcher broke and he did not remove the potsherds, [or] his camel fell down and he did not raise it, R. Meir orders payment for any damage resulting therefrom, whereas the Sages maintain
</P>


lvr: 41
dfh: a
notes:
 ntes={k29a_1:" For not having removed the potsherds or the camel that fell down."
,k29a_2:" Which the defendant should have anticipated."
,k29a_3:" For carelessness."
,k29a_4:" Which could hardly have been anticipated."
,k29a_5:" For in this case the defendant is not to blame for carelessness."
,k29a_6:" I.e., R. Judah and the anonymous view which is that of R. Meir."
,k29a_7:" As it was owing to the defendant having stumbled that his pitcher gave way."
,k29a_8:" I.e., R. Meir."
,k29a_9:" I.e., R. Judah."
,k29a_10:" 'INTENTIONALLY' stated in the Mishnah would thus mean where there was intention actually to break the pitcher, for if the intention was merely to bring the pitcher below the shoulder it would come under the term 'UNINTENTIONALLY', the ground advanced by R. Judah is that in the case of stumbling and breaking a pitcher and doing thereby damage, no negligence was necessarily involved."
,k29a_11:" Of which the defendant is no longer the owner."
,k29a_12:" For the liability in the case of Pit is also where it has been dug in public ground and is thus ownerless."
,k29a_13:" For he holds that the liability in the case of Pit is only where the defendant had dug it in his own ground and though he subsequently abandoned it he retained the ownership of the pit itself; cf. <i>supra</i> p. 107; and <i>infra</i> 50a."
,k29a_14:" That the points at issue are twofold."
,k29a_15:" Why then would one case not have sufficed?"
,k29a_16:" And the water was still in the process of being poured out."
,k29a_17:" <i>Supra</i> p. 152."
,k29a_18:" The point at issue thus consisting in the law applicable to abandoned nuisances."
,k29a_19:" For the problem whether 'stumbling' implies negligence or not has surely no application where it was not the driver but the camel that stumbled."
,k29a_20:" The stumbling of the camel is thus imputed to the driver."
,k29a_21:" I.e., grave fault, which has nothing to do with the problem of stumbling."
,k29a_22:" Which is the second point at issue between R. Judah and R. Meir."
,k29a_23:" [R. Judah therefore means this: If he had the intention of retaining the shards he is liable; if he had no intention to do so but abandoned them, he is exempt.]"
,k29a_24:" <i>Supra</i> p. 152."
,k29a_25:" <i>Supra</i> p. 153. "
}

txt:
<p>
that no action can be instituted against him in civil courts though there is liability<a id="k29a_1"><sup>1</sup></a>&nbsp; according to divine justice. The Sages agree however, with R. Meir that, in the case of a stone, a knife and luggage which were left on the top of the roof and fell down because of a wind of usual occurrence<a id="k29a_2"><sup>2</sup></a>&nbsp; and did damage, there will be liability.<a id="k29a_3"><sup>3</sup></a>&nbsp; R. Meir [on the other hand] agrees with the Sages that, regarding bottles that were placed upon the top of the roof for the purpose of getting dry and fell down because of a wind of unusual occurrence<a id="k29a_4"><sup>4</sup></a>&nbsp; and did damage, there is exemption.<a id="k29a_5"><sup>5</sup></a>&nbsp; [Does not this prove that even regarding damages all agree that there is exemption in cases of sheer accident?] &mdash; Abaye therefore said: It is on two points that they<a id="k29a_6"><sup>6</sup></a>&nbsp; differ [in the Mishnah]; they differ regarding damage done at the time of the fall [of the pitcher] and they again differ regarding damage occasioned [by the potsherds] subsequently to the fall. The difference of opinion regarding damage done at the time of the fall of the pitcher arises on the question whether stumbling implies negligence [or not];<a id="k29a_7"><sup>7</sup></a>&nbsp; one Master<a id="k29a_8"><sup>8</sup></a>&nbsp; maintaining that stumbling does imply negligence, whereas the other Master<a id="k29a_9"><sup>9</sup></a>&nbsp; is of the opinion that stumbling does not [necessarily] imply negligence.<a id="k29a_10"><sup>10</sup></a>&nbsp; The point at issue in the case of damage occasioned [by the potsherds] subsequently to the fall, is the law as applicable to abandoned nuisances;<a id="k29a_11"><sup>11</sup></a>&nbsp; one Master<a id="k29a_8"><sup>8</sup></a>&nbsp; maintaining that for damage occasioned by abandoned nuisances there is liability,<a id="k29a_12"><sup>12</sup></a>&nbsp; whereas the other Master<a id="k29a_9"><sup>9</sup></a>&nbsp; maintains exemption.<a id="k29a_13"><sup>13</sup></a>&nbsp; But how can you prove this?<a id="k29a_14"><sup>14</sup></a>&nbsp; &mdash; From the text which presents two [independent] cases [as follows]; SOMEONE SLIPPED IN THE WATER OR WAS INJURED BY THE POTSHERD; for indeed is not one case the same as the other,<a id="k29a_15"><sup>15</sup></a>&nbsp; unless it was intended to convey, 'Someone slipped in the water while the pitcher had been falling<a id="k29a_16"><sup>16</sup></a>&nbsp; or was injured by the potsherd subsequently to the fall.'
</p><p>
	Now that the Mishnah presents two independent cases, it is only reasonable to assume that the Baraitha<a id="k29a_17"><sup>17</sup></a>&nbsp; similarly deals with the same two problems. That is all very well as regards the 'pitcher' where the two [problems] have application [in the case of damage done] at the time of the fall or subsequently to the fall [respectively]. But how in the case of the 'camel'? For though concerning damage occasioned subsequently to the fall, it may well have application where the carcass has been abandoned,<a id="k29a_18"><sup>18</sup></a>&nbsp; yet in the case of damage done at the time of the fall, what point of difference can be found?<a id="k29a_19"><sup>19</sup></a>&nbsp; &mdash; R. Aha thereupon said: [It deals with a case] where the camel was led in water along the slippery shore of a river.<a id="k29a_20"><sup>20</sup></a>&nbsp; But under what circumstances? If where there was another [better] way, is it not a case of culpa lata?<a id="k29a_21"><sup>21</sup></a>&nbsp; If on the other hand there was no other way [to pass through], is it not a case of no alternative? &mdash; The point at issue can therefore only be where the driver stumbled and together with him the camel also stumbled.
</p><p>
	But in the case of abandoning nuisances,<a id="k29a_22"><sup>22</sup></a>&nbsp; where could [the condition of] intention [laid down by R. Judah] come in? &mdash; Said R. Joseph: The intention [in this case] refers to the retaining of the ownership of the potsherd.<a id="k29a_23"><sup>23</sup></a>&nbsp; So also said R. Ashi, that the intention [in this case] refers to the retaining of the ownership of the potsherd.
</p><p>
	R. Eleazar said: 'It is regarding damage done at the time of the fall that there is a difference of opinion.' But how in the case of damage done subsequently to the fall? Would there be unanimity that there is exemption? Surely there is R. Meir who expressed [his opinion]<a id="k29a_24"><sup>24</sup></a>&nbsp; that there is liability! What else [would you suggest? That in this case] there is unanimity [imposing] liability? Surely there are the Rabbis who stated [their view] that there is exemption! &mdash; Hence, what he means [to convey by his statement] 'damage done at the time of the fall', is that there is difference of opinion 'even regarding damage done at the time of the fall', making thus known to us [the conclusions arrived at] by Abaye.<a id="k29a_25"><sup>25</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k29b_1:" <i>Infra</i> p. 166."
,k29b_2:" Dealing with the case of the two potters, <i>infra</i> p. 166."
,k29b_3:" For damage done at the time of the fall."
,k29b_4:" I.e., when the pitcher gave way or the camel fell down."
,k29b_5:" The statement made by R. Johanan that it was regarding damage occasioned after the fall (of the pitcher) that there was a difference of opinion would thus mean that the difference of opinion between R. Meir and the other Rabbis was only where the inception of the nuisance was with a fall, i.e. with an accident, as where the nuisance had originally been wilfully exposed to the public there would be liability according to all opinions."
,k29b_6:" V. p. 155, n. 1."
,k29b_7:" For R. Meir imposes liability for abandoned nuisances even where their very inception was by accident; v. Rashi, but also Tosaf. 29a."
,k29b_8:" <i>Supra</i> p. 153."
,k29b_9:" As when the pitcher gave way or the camel fell down."
,k29b_10:" Pes. 6b."
,k29b_11:" Which is not the property of the defendant, but for which he is nevertheless responsible on account of his having dug it."
,k29b_12:" Lit., 'from the sixth hour upwards', when in accordance with Pes. I. 4, it becomes prohibited for any use and is thus rendered ownerless, but for its destruction the original owner is still held responsible."
,k29b_13:" That according to R. Eleazar abandoning nuisances does not release from responsibility."
,k29b_14:" <i>Infra</i> p. 161."
,k29b_15:" In which case the defendant did not aggravate the position."
,k29b_16:" According to the principle of Labud, which is the legal consideration of separated parts as united, one substance is not regarded as removed from another unless a space of not less than three handbreadths separates them."
,k29b_17:" <i>Infra</i> p. 161."
,k29b_18:" Lit., 'and the reason is because he intended', etc."
,k29b_19:" Which would necessarily mean above the first three handbreadths of the ground level."
,k29b_20:" In the case of abandoned nuisances that have caused damage."
,k29b_21:" <i>Infra</i> p. 159."
,k29b_22:" Although he subsequently abandoned it to the public."
,k29b_23:" It is therefore the plaintiff himself who is to blame."
,k29b_24:" That abandoning nuisances releases from responsibility."
,k29b_25:" Shab. 46a."
,k29b_26:" <i>Infra</i> 50b. "
}

txt:
<p>
	R. Johanan, however, said: 'It is regarding damage occasioned after the fall [of the pitcher] that there is a difference of opinion.' But how in the case of damage done at the time of the fall? Would there be unanimity [granting] exemption? Surely R. Johanan's statement further on<a id="k29b_1"><sup>1</sup></a>&nbsp; that we should not think that the Mishnah<a id="k29b_2"><sup>2</sup></a>&nbsp; [there] follows the view of R. Meir who maintains that stumbling constitutes carelessness, implies that R. Meir imposes liability.<a id="k29b_3"><sup>3</sup></a>&nbsp; What else [would you suggest? That there] be unanimity [imposing] liability? Surely the very statement made further on<a id="k29b_1"><sup>1</sup></a>&nbsp; by R. Johanan [himself] that we should not think that the Mishnah<a id="k29b_2"><sup>2</sup></a>&nbsp; [there] follows the view of R. Meir, implies that the Rabbis would exempt!<a id="k29b_3"><sup>3</sup></a>&nbsp; &mdash; Hence what he [R. Johanan] intends to convey to us is that abandoned nuisances have only in this connection been exempted from liability by the Rabbis since the very inception [of the nuisances]<a id="k29b_4"><sup>4</sup></a>&nbsp; was by accident, whereas abandoned nuisances in other circumstances involve liability [even according to the Rabbis].<a id="k29b_5"><sup>5</sup></a>
</p><p>
	It was stated: In the case of abandoned nuisances [causing damage], R. Johanan and R. Eleazar [differ]. One imposes liability and the other maintains exemption. May we not say that the one imposing liability follows the view of R. Meir,<a id="k29b_6"><sup>6</sup></a>&nbsp; whereas the other, who maintains exemption follows that of the Rabbis?<a id="k29b_6"><sup>6</sup></a>&nbsp; &mdash; As to R. Meir's view no one could dispute [that there should be liability].<a id="k29b_7"><sup>7</sup></a>&nbsp; Where they differ is as to the view of the Rabbis. The one who exempts does so because of the Rabbis,<a id="k29b_8"><sup>8</sup></a>&nbsp; while the other who imposes liability can say to you, 'It is I who follow the view even of the Rabbis, for the Rabbis who declare abandoned nuisances exempt do so only in one particular connection, where the very inception [of the nuisances]<a id="k29b_9"><sup>9</sup></a>&nbsp; had been by accident, whereas abandoned nuisances in other connections involve liability.' May it not be concluded that it was R. Eleazar who imposed liability? For R. Eleazar said in the name of R. Ishmael:<a id="k29b_10"><sup>10</sup></a>&nbsp; There are two [laws dealing with] matters that are really not within the ownership of man but which are regarded by Scripture as if they were under his ownership. They are [the following]: Pit in public ground,<a id="k29b_11"><sup>11</sup></a>&nbsp; and Leaven after midday [on Passover eve].<a id="k29b_12"><sup>12</sup></a>&nbsp; It may indeed be concluded thus.<a id="k29b_13"><sup>13</sup></a>
</p><p>
	But did R. Eleazar really say so? Did not R. Eleazar express himself to the contrary? For we have learnt;<a id="k29b_14"><sup>14</sup></a>&nbsp; 'If a man turns up dung that had been lying on public ground and another person is [subsequently] injured thereby, there is liability for the damage.' And R. Eleazar thereupon said: This Mishnaic ruling applies only to one who [by turning over the dung] intended to acquire title to it. For if he had not intended to acquire title to it there would be exemption. Now, does not this prove that abandoned nuisances are exempt? &mdash; R. Adda b. Ahabah suggested [that the amendment made by R. Eleazar] referred to one who has restored the dung to its previous position.<a id="k29b_15"><sup>15</sup></a>&nbsp; Rabina [thus] said: The instance given by R. Adda b. Ahabah may have its equivalent in the case of one who, on coming across an open pit, covered it, but opened it up again. But Mar Zutra the son of R. Mari said to Rabina: What a comparison! In the latter case, [by merely covering the pit] the [evil] deed of the original [offender] has not yet been undone, whereas in the case before us [by removing the dung from its place] the [evil] deed of the original [offender] has been undone! May it not therefore [on the other hand] have its equivalent only in the case of one who, on coming across an open pit, filled it up [with earth] but dug it out again, where, since the nuisance created by the original [offender] had already been completely removed [by filling in the pit], it stands altogether under the responsibility of the new offender? &mdash; R. Ashi therefore suggested [that the amendment made by R. Eleazar] referred to one who turned over the dung within the first three [handbreadths]<a id="k29b_16"><sup>16</sup></a>&nbsp; of the ground [in which case the nuisance created by the original offender is not yet considered in law as abated]. But what influenced R. Eleazar to make the [Mishnaic] ruling<a id="k29b_17"><sup>17</sup></a>&nbsp; refer to one who turned over the dung within the first three [handbreadths of the ground], and thus to confine its application only to one who intended to acquire title to the dung,<a id="k29b_18"><sup>18</sup></a>&nbsp; excluding thereby one who did not intend to acquire title to it? Why not indeed make the ruling refer to one who turned over the dung above the first three handbreadths, so that even where one did not intend to acquire title to it the liability should hold good? &mdash; Raba [thereupon] said: Because of a difficulty in the Mishnaic text<a id="k29b_17"><sup>17</sup></a>&nbsp; [which occurred to him]: Why indeed have 'turning up' in the Mishnaic text and not simply 'raising,'<a id="k29b_19"><sup>19</sup></a>&nbsp; if not to indicate that 'turning up' implies within the first three handbreadths [of the ground].
</p><p>
	Now [then] that R. Eleazar was the one who maintained liability,<a id="k29b_20"><sup>20</sup></a>&nbsp; R. Johanan would [of course] be the one who maintained exemption. But could R. Johanan really maintain this? Surely we have learnt: If a man hides thorns and broken glass [in public ground], or makes a fence of thorns, or if a man's fence falls upon public ground and damage results therefrom to another person, there is liability for the damage.<a id="k29b_21"><sup>21</sup></a>&nbsp; And R. Johanan thereupon said: This Mishnaic ruling refers to a case where the thorns were projecting into the public thoroughfare. For if they were confined within private premises<a id="k29b_22"><sup>22</sup></a>&nbsp; there would be exemption. Now, why should there be exemption in the case where they were confined within private premises if not because they would only constitute a nuisance on private premises? Does this then not imply that it is only a nuisance created upon public ground that involves liability, proving thus that abandoned nuisances do involve liability? &mdash; No, it may still be suggested that abandoned nuisances are exempt. The reason for the exemption in the case of thorns confined to private premises is, as it has already been stated in this connection,<a id="k29b_21"><sup>21</sup></a>&nbsp; that R. Aha the son of R. Ika said: Because it is not the habit of men to rub themselves against walls.<a id="k29b_23"><sup>23</sup></a>
</p><p>
	But again, could R. Johanan [really] maintain this?<a id="k29b_24"><sup>24</sup></a>&nbsp; Surely R. Johanan stated:<a id="k29b_25"><sup>25</sup></a>&nbsp; The <i>halachah</i> is in accordance with anonymous Mishnaic rulings. And we have learnt: If a man digs a pit in public ground, and an ox or ass falls in and dies, there is liability.<a id="k29b_26"><sup>26</sup></a>&nbsp; [Does this not prove that there is liability for a pit dug in public ground?] &mdash; [It must] therefore [be concluded that] R. Johanan was indeed the one who maintained liability. Now then that R. Johanan was the one who maintained liability, R. Eleazar would [of course] be the one who maintained exemption. But did not R. Eleazar say
</P>


lvr: 41
dfh: a
notes:
 ntes={k31a_1:" It was therefore a specially aggravated offence."
,k31a_2:" <i>Supra</i> pp. 153 and 155."
,k31a_3:" The first potter."
,k31a_4:" The second potter to stop."
,k31a_5:" The carrier of the beam."
,k31a_6:" <i>Infra</i> p. 169."
,k31a_7:" Which would thus support the interpretation given by R. Nahman and contradict the view expounded by R. Johanan."
,k31a_8:" According to the view of R. Johanan."
,k31a_9:" <i>Infra</i> p. 170."
,k31a_10:" V. p. 166, n. 7."
,k31a_11:" Being subject to the law applicable to damage done by Man."
,k31a_12:" Which are subject to the law applicable to Pit."
,k31a_13:" V. p. 167, n. 4"
,k31a_14:" Even if caused by his chattels. "
}

txt:
<p>
the refuse of boiled dates [that had been placed on public ground] ownerless? We can well understand this in the case of R. Adda b. Ahabah who acted in accordance with his own dictum, but in the case of R. Huna, are we to say that he changed his view? &mdash; These owners [in that case] had been warned [several times not to repeat the nuisance].<a id="k31a_1"><sup>1</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF TWO POTTERS WERE FOLLOWING ONE ANOTHER AND THE FIRST STUMBLED AND FELL DOWN AND THE SECOND STUMBLED BECAUSE OF THE FIRST, THE FIRST IS LIABLE FOR THE DAMAGE DONE TO THE SECOND.
</p><p>
	<B><I>GEMARA</I></B>. R. Johanan said: Do not think [that the Tanna of] this Mishnah is R. Meir who considers stumbling as implying carelessness that involves liability.<a id="k31a_2"><sup>2</sup></a>&nbsp; For even according to the Rabbis who maintain [that stumbling is] mere accident for which there is exemption,<a id="k31a_2"><sup>2</sup></a>&nbsp; there should be liability here where he<a id="k31a_3"><sup>3</sup></a>&nbsp; had [meanwhile had every possibility] to rise and nevertheless did not rise. [But] R. Nahman b. Isaac said: You may even say that [the Mishnah speaks also of a case] where he<a id="k31a_3"><sup>3</sup></a>&nbsp; did not yet have [any opportunity] to rise, for he<a id="k31a_3"><sup>3</sup></a>&nbsp; was [surely able] to caution<a id="k31a_4"><sup>4</sup></a>&nbsp; and nevertheless did not caution. R. Johanan, however, considers that where he<a id="k31a_3"><sup>3</sup></a>&nbsp; did not yet have [any opportunity] to rise, he<a id="k31a_3"><sup>3</sup></a>&nbsp; could hardly be expected to caution as he was [surely] somewhat distracted.
</p><p>
	We have learnt: If the carrier of the beam was in front, the carrier of the barrel behind, and the barrel broke by [colliding with] the beam, he<a id="k31a_5"><sup>5</sup></a>&nbsp; is exempt. But if the carrier of the beam stopped suddenly, he is liable.<a id="k31a_6"><sup>6</sup></a>&nbsp; Now, does this not mean that he stopped for the purpose of shouldering the beam as is usual with carriers, and it yet says that he is liable, [presumably] because [he failed] to caution?<a id="k31a_7"><sup>7</sup></a>&nbsp; &mdash; No, he suddenly stopped to rest [which is rather unusual in the course of carrying]. But what should be the law<a id="k31a_8"><sup>8</sup></a>&nbsp; in the case where he stopped to shoulder the beam? Would there then be exemption? Why then state in the subsequent clause,<a id="k31a_9"><sup>9</sup></a>&nbsp; 'Where he, however, warned the carrier of the barrel to stop, he is exempt'? Could the distinction not be made in the statement of the same case [in the following manner]: 'Provided that he stopped to rest; but if he halted to shift the burden on his shoulder, he is exempt'? &mdash; It was, however, intended to let us know that even where he stopped to rest, if he warned the carrier of the barrel to stop, he is exempt.
</p><p>
	Come and hear: If a number of potters or glass-carriers were walking in line and the first stumbled and fell and the second stumbled because of the first and the third because of the second, the first is liable for the damage [occasioned] to the second, and the second is liable for the damage [occasioned] to the third. Where, however, they all fell because of the first, the first is liable for the damage [sustained] by them all. If [on the other hand] they cautioned one another, there is exemption. Now, does this teaching not deal with a case where there has not yet been [any opportunity] to rise?<a id="k31a_10"><sup>10</sup></a>&nbsp; &mdash; No, [on the contrary] they [have already] had [every opportunity] to rise. But what should be the law<a id="k31a_8"><sup>8</sup></a>&nbsp; in the case where they [have not yet] had [any opportunity] to rise? Would there then be exemption? If so, why state in the concluding clause, 'If [on the other hand] they cautioned one another, there is exemption'? Could the distinction not be made in the statement of the same case [in the following manner]: 'Provided that they have already had every opportunity to rise; but if they have not yet had any opportunity to rise, there is exemption'? &mdash; This is what it intended to let us know: That even where they [have already] had [every opportunity] to rise, if they cautioned one another, there is exemption.
</p><p>
	Raba said: The first is liable for damage [done] to the second whether directly by his person<a id="k31a_11"><sup>11</sup></a>&nbsp; or by means of his chattels,<a id="k31a_12"><sup>12</sup></a>&nbsp; whereas the second is liable for damage to the third only if done by his person<a id="k31a_13"><sup>13</sup></a>&nbsp; but not if caused by his chattels. [Now,] in any case [how could these rulings be made consistent]? [For] if stumbling implies carelessness, why should not also the second be liable [for all kinds of damage]?<a id="k31a_14"><sup>14</sup></a>&nbsp; If [on the other hand] stumbling does not amount to carelessness, why should even the first not enjoy immunity?
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k31b_1:" [Since stumbling implies carelessness.]"
,k31b_2:" To the third."
,k31b_3:" I.e., the nuisance was created not by the second, but caused by the first who fell."
,k31b_4:" Whether to the person or to the chattels of the plaintiff."
,k31b_5:" Who, according to Raba, is liable for damage caused even by his chattels to the person of the second as being subject to the law applicable to Pit. This Baraitha thus refutes Raba."
,k31b_6:" The first is thus, as a matter of course, not included."
,k31b_7:" Being subject to the law applicable to damage done by Man."
,k31b_8:" Should be subject to the law applicable in Pit."
,k31b_9:" Though done by the person of the second."
,k31b_10:" <i>Supra</i> p. 18."
,k31b_11:" <i>Supra</i> p. 150. [The person of the second may therefore be treated as Pit.]"
,k31b_12:" But is subject to the law applicable to Ox where damage to inanimate objects is also compensated."
,k31b_13:" For the person of the second, though lying on the ground, has surely never been abandoned by him. Why then exemption for damage done by him to inanimate objects?"
,k31b_14:" Of the statement of Raba, according to which the first is liable for damage done whether by his person or by his chattels, whereas the second is liable for damage done only by his person but not if done by his chattels."
,k31b_15:" For damage done by their person, but exempt for damage done by their chattels, including thus also the first."
,k31b_16:" Which are subject to the laws of Pit involving no liability for inanimate objects. Were, however, the person of the plaintiff to have been injured, there would be no exemption even if the injury were caused by the chattels of the first, as expounded by Raba."
,k31b_17:" [With which the blind gropes his way on either side of the road.]"
,k31b_18:" Cf. <i>supra</i> p. 142."
,k31b_19:" The owner of the beam."
,k31b_20:" For the carrier of the barrel who was behind should not have proceeded so fast. "
}

txt:
<p>
 &mdash; The first was certainly [considered] careless,<a id="k31b_1"><sup>1</sup></a>&nbsp; whilst, as to the second, he is liable for damage done by his person, [that is,] only where he [has already] had [the opportunity] to rise and did [nevertheless] not rise; for damage caused by his chattels he is [however] exempt, as he may say to him:<a id="k31b_2"><sup>2</sup></a>&nbsp; It is not I who dug this pit.<a id="k31b_3"><sup>3</sup></a>
</p><p>
	An objection was raised [from the following Baraitha]: All of them are liable for damage [done] by their person,<a id="k31b_4"><sup>4</sup></a>&nbsp; but exempt for damage [caused] by their chattels.<a id="k31b_4"><sup>4</sup></a>&nbsp; Does [this Baraitha] not refer even to the first?<a id="k31b_5"><sup>5</sup></a>&nbsp; &mdash; No, with the exception of the first. But is it not stated, 'All of them&hellip;'? &mdash; R. Adda b. Ahabah said: 'All of them' refers to [all] the plaintiffs.<a id="k31b_6"><sup>6</sup></a>&nbsp; [But] how is this? If you maintain that the first [is] also [included], we understand why the Baraitha says 'All of them'. But if you contend that the first is excepted, what [meaning could there be in] 'All of them'? Why [indeed] not say 'The plaintiffs'? &mdash; Raba [therefore] said: The first<a id="k31b_7"><sup>7</sup></a>&nbsp; is liable for both injuries inflicted upon the person of the second and damage caused to the chattels of the second, whereas the second<a id="k31b_8"><sup>8</sup></a>&nbsp; is liable to compensate the third only for injuries inflicted upon his person but not for damage<a id="k31b_9"><sup>9</sup></a>&nbsp; to his chattels; the reason being that the [person of the] second is subject to the law applicable to Pit, and no case can be found where Pit would involve liability for inanimate objects.<a id="k31b_10"><sup>10</sup></a>&nbsp; This accords well with the view of Samuel, who holds that all nuisances are [subject to the law applicable to] Pit.<a id="k31b_11"><sup>11</sup></a>&nbsp; But according to Rab who maintains that it is only where the nuisance has been abandoned that this is so, whereas if not [abandoned] it is not so,<a id="k31b_12"><sup>12</sup></a>&nbsp; what reason could be advanced?<a id="k31b_13"><sup>13</sup></a>&nbsp; &mdash; We must therefore accept the first version,<a id="k31b_14"><sup>14</sup></a>&nbsp; and as to the objection raised by you [from the Baraitha], 'All of them are liable',<a id="k31b_15"><sup>15</sup></a>&nbsp; it has already been interpreted by R. Adda b. Minyomi in the presence of Rabina to refer to a case where inanimate objects have been damaged by the chattels [of the defendant].<a id="k31b_16"><sup>16</sup></a>
</p><p>
	The Master stated: 'Where, however, they all fell because of the first, the first is liable for the damage [sustained] by them all.' How [indeed can they all] fall [because of the first]? &mdash; R. Papa said: Where he blocked the road like a carcass, [closing the whole width of the road]. R. Zebid said: Like a blind man's staff.<a id="k31b_17"><sup>17</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF ONE COMES WITH HIS BARREL AND AN OTHER COMES WITH HIS BEAM AND THE PITCHER<a id="k31b_18"><sup>18</sup></a>&nbsp; OF THIS ONE BREAKS BY [COLLISION WITH] THE BEAM OF THIS ONE, HE<a id="k31b_19"><sup>19</sup></a>&nbsp; IS EXEMPT, FOR THE ONE IS ENTITLED TO WALK [THERE AND CARRY BEAMS] AND THE OTHER IS ENTITLED TO WALK [THERE AND CARRY BARRELS]. WHERE THE CARRIER OF THE BEAM WAS IN FRONT, AND THE CARRIER OF THE BARREL BEHIND, AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, THE CARRIER OF THE BEAM IS EXEMPT.<a id="k31b_20"><sup>20</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k32a_1:" For he is to blame."
,k32a_2:" For the carrier of the beam, who was in this case second, should have taken care to keep at a reasonable distance."
,k32a_3:" This proves that where the act is sanctioned no liability is involved."
,k32a_4:" Referring to Deut. XIX, 5: <I>As when a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree and the head slippeth from the helve and lighteth upon his neighbour&hellip;</I> cf. also <i>infra</i> p. 175"
,k32a_5:" I.e., the problem in hand."
,k32a_6:" The husband."
,k32a_7:" The wife."
,k32a_8:" Of liability."
,k32a_9:" V. p. 170 n. 6."
,k32a_10:" I.e., the husband."
,k32a_11:" I.e., the wife."
,k32a_12:" Lev. XVIII, 29. [The plural indicates that both are regarded as having participated in the act.]"
,k32a_13:" <i>Supra</i> pp. 98 and 124."
,k32a_14:" I.e., that misconduct involves liability for damage that may result."
,k32a_15:" As here, too, the offender is to blame for misconduct."
,k32a_16:" Consequently the liability extends even to accidental damage."
,k32a_17:" [There could therefore be no liability attached except where the lying cow maliciously kicked her, but not for accidental damage.]"
,k32a_18:" In that there was contributory misconduct on the part of the plaintiff and his cow respectively."
,k32a_19:" The carrier of the beam."
,k32a_20:" Lit., 'she can say to her'."
,k32a_21:" It was therefore requisite that Resh Lakish should express his rejection of this plausible argument."
,k32a_22:" So long as they had no intention of injuring each other."
,k32a_23:" Cf. <i>supra</i> p. 158."
,k32a_24:" That there should be exemption."
,k32a_25:" Where there was contributory negligence."
,k32a_26:" Cf. Shab. 119a. "
}

txt:
<p>
BUT IF THE CARRIER OF THE BEAM [SUDDENLY] STOPPED, HE IS LIABLE.<a id="k32a_1"><sup>1</sup></a>&nbsp; IF, HOWEVER, HE CRIED TO THE CARRIER OF THE BARREL, HALT!' HE IS EXEMPT. WHERE, HOWEVER, THE CARRIER OF THE BARREL WAS IN FRONT, AND THE CARRIER OF THE BEAM BEHIND AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, HE IS LIABLE.<a id="k32a_2"><sup>2</sup></a>&nbsp; IF, HOWEVER, THE CARRIER OF THE BARREL [SUDDENLY] STOPPED, HE IS EXEMPT. BUT WHERE HE CRIED TO THE CARRIER OF THE BEAM, 'HALT!' HE IS LIABLE. THE SAME APPLIES TO ONE CARRYING A [BURNING] CANDLE WHILE ANOTHER WAS PROCEEDING WITH FLAX.
</p><p>
	<B><I>GEMARA</I></B>. Rabbah b. Nathan questioned R. Huna: If a man injures his wife through conjugal intercourse, what is [the legal position]? Since he performed this act with full permission is he to be exempt [for damage resulting therefrom], or should perhaps greater care have been taken by him? &mdash; He said to him. We have learnt it: &hellip; FOR THE ONE IS ENTITLED TO WALK [THERE AND CARRY BEAMS] AND THE OTHER IS ENTITLED TO WALK [THERE AND CARRY BARRELS].<a id="k32a_3"><sup>3</sup></a>&nbsp; Raba [however] said: There is an <i>a fortiori</i> [to the contrary]: If in the case of the Wood,<a id="k32a_4"><sup>4</sup></a>&nbsp; where this one [the defendant] was entering [as if] into his own domain, and the other [the plaintiff] was [similarly] entering [as if] into his own domain, it is nevertheless considered [in the eye of the law]<a id="k32a_4"><sup>4</sup></a>&nbsp; that he entered his fellow's [the plaintiff's] domain, and he is made liable, should this case<a id="k32a_5"><sup>5</sup></a>&nbsp; where this one [the defendant]<a id="k32a_6"><sup>6</sup></a>&nbsp; was actually entering the domain of his fellow [the plaintiff]<a id="k32a_7"><sup>7</sup></a>&nbsp; not be all the more [subject to the same law]?<a id="k32a_8"><sup>8</sup></a>&nbsp; But surely [the Mishnah] states,&nbsp;&hellip; FOR THE ONE IS ENTITLED TO WALK THERE [AND CARRY BEAMS] AND THE OTHER IS ENTITLED TO WALK [THERE AND CARRY BARRELS, indicating exemption where the entry was sanctioned]! &mdash; There, both of the parties were simultaneously [active against each other], whereas here<a id="k32a_9"><sup>9</sup></a>&nbsp; it was only he<a id="k32a_10"><sup>10</sup></a>&nbsp; that committed the deed. Is she<a id="k32a_11"><sup>11</sup></a>&nbsp; [considered] not [to have participated in the act at all]? Is it not written, The souls that commit them shall be cut off from among their people?<a id="k32a_12"><sup>12</sup></a>&nbsp; &mdash; [It is true that] enjoyment is derived by both of them, but it is only he to whom the active part can be ascribed.
</p><p>
	WHERE THE CARRIER OF THE BEAM WAS IN FRONT etc. Resh Lakish stated:<a id="k32a_13"><sup>13</sup></a>&nbsp; In the case of two cows on public ground, one lying down [maliciously] and the other walking about, if the one that was walking kicked the one that was lying, there is exemption [since the latter too misconducted itself by laying itself down on public ground], whereas if the one that was lying kicked the one that was walking, there is liability to pay. May not [the following be cited in] support of this:<a id="k32a_14"><sup>14</sup></a>&nbsp; WHERE THE CARRIER OF THE BEAM WAS IN FRONT AND THE CARRIER OF THE BARREL BEHIND, AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, HE IS EXEMPT. BUT IF THE CARRIER OF THE BEAM [SUDDENLY] STOPPED HE IS LIABLE. For surely [this latter case] here is similar to that of the lying cow kicking the walking cow,<a id="k32a_15"><sup>15</sup></a>&nbsp; and liability is stated! &mdash; But do you really think that this [liability] need be proved?<a id="k32a_14"><sup>14</sup></a>&nbsp; [The Mishnaic text however] not only fails to be of any support [in this respect], but affords a contradiction to Resh Lakish, [in whose view] the reason [even for the liability] is that the lying cow kicked the walking cow, thus [implying] that [the latter] sustained damage [because of the former cow] through sheer accident, and there would be exemption. Now, [the case of] the Mishnah surely deals with accidental damage, and still states liability? &mdash; The Mishnah [deals with a case] where the beam blocked the [whole] passage as if by a carcass,<a id="k32a_16"><sup>16</sup></a>&nbsp; whereas here [in the case dealt with by Resh Lakish] the cow was lying on one side of the road so that the other cow should have passed on the other side.<a id="k32a_17"><sup>17</sup></a>
</p><p>
	But the concluding clause may [be taken to] support Resh Lakish. For it is stated, BUT IF THE CARRIER OF THE BARREL WAS IN FRONT AND THE CARRIER OF THE BEAM BEHIND, AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, HE IS LIABLE. IF, HOWEVER, THE CARRIER OF THE BARREL [SUDDENLY] STOPPED, HE IS EXEMPT. Now, surely this case resembles that of the walking cow kicking the lying cow,<a id="k32a_18"><sup>18</sup></a>&nbsp; and the text states exemption? &mdash; No! The Mishnah [deals with the case where the damage was done in a usual manner as] he<a id="k32a_19"><sup>19</sup></a>&nbsp; was passing in the ordinary way, whereas here [in the case dealt with by Resh Lakish] it may be argued for the lying cow,<a id="k32a_20"><sup>20</sup></a>&nbsp; 'Even if you are entitled to tread upon me, you have still no right to kick me.'<a id="k32a_21"><sup>21</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF TWO [PERSONS] WERE PASSING ONE ANOTHER ON PUBLIC GROUND, ONE [OF THEM] RUNNING AND THE OTHER WALKING OR BOTH OF THEM RUNNING, AND THEY WERE INJURED BY EACH OTHER, BOTH OF THEM ARE EXEMPT.<a id="k32a_22"><sup>22</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. Our Mishnah is not in accordance with Issi b. Judah. For it has been taught: Issi b. Judah maintains that the man who had been running is liable, since his conduct was unusual. Issi, however, agrees [that if it were] on a Sabbath eve before sunset there would be exemption, for running at that time is permissible.
</p><p>
	R. Johanan stated that the <I>halachah</I> is in accordance with Issi b. Judah. But did R. Johanan [really] maintain this? Has R. Johanan not laid down the rule that the <I>halachah</I> is in accordance with [the ruling of] an anonymous Mishnah?<a id="k32a_23"><sup>23</sup></a>&nbsp; Now, did we not learn&nbsp;&hellip; ONE [ OF THEM] RUNNING AND THE OTHER WALKING OR BOTH OF THEM RUNNING&nbsp;&hellip; BOTH OF THEM ARE EXEMPT? &mdash; Our Mishnah [deals with a case] of a Sabbath eve before sunset. What proof have you of that? &mdash; From the text, OR BOTH OF THEM RUNNING&nbsp;&hellip; BOTH OF THEM ARE EXEMPT; [for indeed] what need was there for this to be inserted? If in the case where one was running and the other walking there is exemption, could there be any doubt<a id="k32a_24"><sup>24</sup></a>&nbsp; where both of them were running?<a id="k32a_25"><sup>25</sup></a>&nbsp; It must accordingly mean thus: 'Where one was running and the other walking there is exemption; provided, however, it was on a Sabbath eve before sunset. For if on a weekday, [in the case of] one running and the other walking there would be liability, [whereas where] both of them were running even though on a weekday they would be exempt.'
</p><p>
	The Master stated: 'Issi, however, agrees [that if it were] on a Sabbath eve before sunset there would be exemption, for running at that time is permissible.' On Sabbath eve, why is it permissible? &mdash; As [shown by] R. Hanina: for R. Hanina used to say:<a id="k32a_26"><sup>26</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k32b_1:" I.e., his own premises."
,k32b_2:" Of a neighbour."
,k32b_3:" V. p. 173, n. 5."
,k32b_4:" Lit., 'I might have said no'."
,k32b_5:" V. p. 173. n. 6."
,k32b_6:" Of splitting wood."
,k32b_7:" From fleeing to the city of refuge. Cf. Num. XXXV, 11-28, Deut. XIX, 4-6; and <i>supra</i> p. 137."
,k32b_8:" In the case of mere injury; cf. <i>supra</i> p. 133."
,k32b_9:" Laid down in the case of manslaughter."
,k32b_10:" Referred to in the verse, As when a man goes into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve and lighteth upon his neighbour, that he die, he shall flee unto one of those cities, and live; Deut. XIX, 5. Cf. also <i>supra</i> p. 170."
,k32b_11:" I.e., that of the joiner."
,k32b_12:" In which case the taking of refuge is insufficient; cf. e.g. Num. XXXV, 16-21, and Deut. XIX, 11-13."
,k32b_13:" On an offender sentenced to lashes."
,k32b_14:" The victim's. Mak. III, 14."
,k32b_15:" To draw his attention."
,k32b_16:" Deut. XXVIII, 58 etc.; Ps LXXVIII, 38."
,k32b_17:" Lit., says, \"Smite him\". Mak. 23a."
,k32b_18:" Ibid. II. 2."
,k32b_19:" In which case the taking of refuge is insufficient; cf. e.g. Num XXXV, 16-21 and Deut. XIX, 11-13."
,k32b_20:" Cf. Mak. 8a."
,k32b_21:" Why then be subject to the law of refuge?"
,k32b_22:" In the case of mere injury; cf. <i>supra</i> p. 133."
,k32b_23:" In the case of manslaughter."
,k32b_24:" Where the entrance had been made with the knowledge of the joiner."
,k32b_25:" Where the entrance had been made without any imitation."
,k32b_26:" From having to take refuge. "
}

txt:
<p>
'Come, let us go forth to meet the bride, the queen!' Some [explicitly] read:'&hellip; to meet Sabbath, the bride, the queen.' R. Jannai, [however,] while dressed in his Sabbath attire used to remain standing and say: 'Come thou, O queen, come thou, O queen!'
</p><p>
	<B><I>MISHNAH</I></B>. IF A MAN SPLITS WOOD ON PRIVATE PREMISES<a id="k32b_1"><sup>1</sup></a>&nbsp; AND DOES DAMAGE ON PUBLIC GROUND, OR ON PUBLIC GROUND AND DOES DAMAGE ON PRIVATE PREMISES,<a id="k32b_2"><sup>2</sup></a>&nbsp; OR ON PRIVATE PREMISES<a id="k32b_3"><sup>3</sup></a>&nbsp; AND DOES DAMAGE ON ANOTHER'S PRIVATE PREMISES, HE IS LIABLE.
</p><p>
	<B><I>GEMARA</I></B>. And [all the cases enumerated] are necessary [as serving respective purposes]. For if the Mishnah had stated only the case of splitting wood on private premises and doing damage on public ground, [the ruling could have been ascribed to the fact] that the damage occurred at a place where many people were to be found, whereas in the case of splitting wood on public ground and doing damage on private premises, since the damage occurred in a place where many people were not to be found, the opposite ruling might have been suggested.<a id="k32b_4"><sup>4</sup></a>&nbsp; Again, if the Mishnah had dealt only with the case of splitting wood on public ground and doing damage on private premises,<a id="k32b_5"><sup>5</sup></a>&nbsp; [the ruling could have been explained] on the ground that the act<a id="k32b_6"><sup>6</sup></a>&nbsp; was even at the very outset unlawful, whereas in the case of splitting wood on private premises<a id="k32b_3"><sup>3</sup></a>&nbsp; and doing damage on public ground, [in view of the fact] that the act<a id="k32b_6"><sup>6</sup></a>&nbsp; [as such] was quite lawful, the opposite view might have been suggested.<a id="k32b_4"><sup>4</sup></a>&nbsp; Again, if the Mishnah had dealt only with these two cases [the ruling could have been explained in] the one case on account of the damage having occurred at a place where many people were to be found, and [in] the other on account of the unlawfulness of the act,<a id="k32b_6"><sup>6</sup></a>&nbsp; whereas in the case of splitting wood on private premises<a id="k32b_3"><sup>3</sup></a>&nbsp; and doing damage on another's private premises, since the damage occurred in a place where many people were not to be found and the act<a id="k32b_6"><sup>6</sup></a>&nbsp; was quite lawful even at the very outset, the opposite view might have been suggested.<a id="k32b_4"><sup>4</sup></a>&nbsp; It was [hence] essential [to state explicitly all these cases].
</p><p>
	Our Rabbis taught: 'If a man entered the workshop of a joiner without permission and a chip of wood flew off and struck him in the face and killed him, he [the joiner] is exempt.<a id="k32b_7"><sup>7</sup></a>&nbsp; But if he entered with [the] permission [of the joiner], he is liable.' Liable for what? &mdash; R. Jose b. Hanina said: He is liable for the four [additional] items,<a id="k32b_8"><sup>8</sup></a>&nbsp; whereas regarding the law of refuge<a id="k32b_9"><sup>9</sup></a>&nbsp; he is [still] exempt on account of the fact that the [circumstances of this] case do not [exactly] resemble those of the Wood.<a id="k32b_10"><sup>10</sup></a>&nbsp; For in the case of the Wood the one [the plaintiff] was entering [as if] into his own domain and the other [the defendant] was [similarly] entering [as if] into his own domain, whereas in this case the one [the plaintiff] had [definitely] been entering into his fellow's [the defendant's] workshop. Raba [however,] said: There is an <i>a fortiori</i> [to the contrary]: If in the case of the Wood where the one [the plaintiff] was entering to his own [exclusive] knowledge and that one [the defendant] was similarly entering of his own accord, it is nevertheless considered [in the eye of the law]<a id="k32b_10"><sup>10</sup></a>&nbsp; as if he had entered with the consent of his fellow [the defendant] who thus becomes liable to take refuge, should the case before us, where the one [the plaintiff] entered the workshop with the knowledge of his fellow [the joiner], be not all the more subject to the same liability? Raba therefore said: What is meant by being exempt from [being subject to the law of] refuge is that the sin could not be expiated by mere refuge; the real reason of the statement of R. Jose b. Hanina being this: that his offence,<a id="k32b_11"><sup>11</sup></a>&nbsp; though committed inadvertently, approaches wilful carelessness.<a id="k32b_12"><sup>12</sup></a>&nbsp; Raba [on his own part] raised [however] an objection: If an officer of the Court inflicted on him<a id="k32b_13"><sup>13</sup></a>&nbsp; an additional [unauthorized] stroke, from which he died, he [the officer] is liable to take refuge on his account.<a id="k32b_14"><sup>14</sup></a>&nbsp; Now, does not [the offence] here committed inadvertently approach wilful carelessness?<a id="k32b_12"><sup>12</sup></a>&nbsp; For surely he had to bear in mind that a person might sometimes die just through one [additional] stroke. Why then state, 'he is liable to take refuge on his account'? &mdash; R. Shimi of Nehardea there upon said: [The officer committed the offence as he] made a mistake in [counting] the number [of strokes]. [But] Naba tapped R. Shimi's shoe<a id="k32b_15"><sup>15</sup></a>&nbsp; and said to him: Is it he who is responsible for the counting [of the strokes]? Was it not taught: The senior judge recites [the prescribed verses],<a id="k32b_16"><sup>16</sup></a>&nbsp; the second [to him] conducts the counting [of the strokes], and the third directs each stroke to be administered?<a id="k32b_17"><sup>17</sup></a>&nbsp; &mdash; No, said R. Shimi of Nehardea; it was the judge himself who made the mistake in counting.
</p><p>
	A [further] objection was raised: If a man throws a stone into a public thoroughfare and kills [thereby a human being], he is liable to take refuge.<a id="k32b_18"><sup>18</sup></a>&nbsp; Now, does not [the offence] here committed inadvertently approach wilful carelessness?<a id="k32b_19"><sup>19</sup></a>&nbsp; For surely he had to bear in mind that on a public thoroughfare many people were to be found, yet it states, 'he is liable to take refuge'? &mdash; R. Samuel b. Isaac said: The offender [threw the stone while he] was pulling down his wall.<a id="k32b_20"><sup>20</sup></a>&nbsp; But should he not have kept his eyes open? &mdash; He was pulling it down at night. But even at night time, should he not have kept his eyes open? &mdash; He was [in fact] pulling his wall down in the day time, [but was throwing it] towards a dunghill. [But] how are we to picture this dunghill? If many people were to be found there, is it not a case of wilful carelessness?<a id="k32b_19"><sup>19</sup></a>&nbsp; If [on the other hand] many were not to be found there, is it not sheer accident?<a id="k32b_21"><sup>21</sup></a>&nbsp; &mdash; R. Papa [thereupon] said: It could [indeed] have no application unless in the case of a dunghill where it was customary for people to resort at night time, but not customary to resort during the day, though it occasionally occurred that some might come to sit there [even in the day time]. [It is therefore] not a case of wilful carelessness since it was not customary for people to resort there during the day. Nor is it sheer accident since it occasionally occurred that some people did come to sit there [even in the day time].
</p><p>
	R. Papa in the name of Raba referred [the remark of R. Jose b. Hanina] to the commencing clause: 'If a man entered the workshop of a joiner without permission and a chip of wood flew off and struck him in the face and killed him, he is exempt.' And R. Jose b. Hanina [thereupon] remarked; He would be liable for the four [additional] items,<a id="k32b_22"><sup>22</sup></a>&nbsp; though he is exempt from [having to take] refuge.<a id="k32b_23"><sup>23</sup></a>&nbsp; He who refers this remark to the concluding clause<a id="k32b_24"><sup>24</sup></a>&nbsp; will, with more reason, refer it to the commencing clause,<a id="k32b_25"><sup>25</sup></a>&nbsp; whereas he who refers it to the commencing clause<a id="k32b_25"><sup>25</sup></a>&nbsp; maintains that, in the [case dealt with] in the concluding clause where the entrance had been made with [the] permission [of the joiner], he would be liable to take refuge.<a id="k32b_23"><sup>23</sup></a>&nbsp; But would he be liable to take refuge [in that case]?<a id="k32b_24"><sup>24</sup></a>&nbsp; Was it not taught: If a man enters the workshop of a smith and sparks fly off and strike him in the face causing his death, he [the smith] is exempt<a id="k32b_26"><sup>26</sup></a>&nbsp; even where the entrance had been made by permission of the smith? &mdash; [In this Baraitha] here, we are dealing with an apprentice of the smith. Is an apprentice of a smith to be killed [with impunity]? &mdash; Where his master had been urging him to leave but he did not leave. But even where his master had been urging him to leave, [which he did not do,] may he be killed [with impunity]? &mdash; Where the master believed that he had already left. If so, why should not the same apply also to a stranger?
</P>


lvr: 41
dfh: a
notes:
 ntes={k33a_1:" Who should thus have borne in mind that the stranger might not yet have left the place. The smith should therefore not yet have allowed the the sparks to fly off."
,k33a_2:" Who should not resonably have expected him to have still been there."
,k33a_3:" Deut. XIX, 5; v. <i>supra</i>, p. 175, n. 3."
,k33a_4:" Cf. Mak. 8a."
,k33a_5:" In the case of manslaughter."
,k33a_6:" Since it was an act of negligence to throw a stone where people are to be found."
,k33a_7:" In the case of the joiner, who at least knew that a newcomer had entered his workshop."
,k33a_8:" Dealt with by R. Eliezer b. Jacob, where the defendant is to blame as he put out his head after the stone had already been in motion."
,k33a_9:" For which cf. Ex. XXI, 30. The vicious beast is, however, stoned; v. <i>supra</i> p. 118."
,k33a_10:" According to Hor. 13b, the views of R. Meir were sometimes quoted thus; cf. however Ber. 9b; Sot. 12a; A.Z. 64b."
,k33a_11:" I.e., that of 'Others'."
,k33a_12:" Put forward by the first Tanna."
,k33a_13:" Where the entrance had been made by permission."
,k33a_14:" Cf. <i>supra</i> p. 73."
,k33a_15:" Cf <i>supra</i> p. 15."
,k33a_16:" Ex. XXI, 31."
,k33a_17:" Ibid. XXI, 29 dealing with <i>Mu'ad</i>."
,k33a_18:" Ibid. XXI, 28 dealing with <i>Tam</i>."
,k33a_19:" As in the case of an injury done by <i>Mu'ad</i>. Cf. <i>supra</i>, p. 73."
,k33a_20:" Cf. <i>supra</i> p. 15."
,k33a_21:" V. <i>supra</i> p. 133."
,k33a_22:" Lev. XXIV, 19."
,k33a_23:" [Wherefore apply 'this' to deduce exemption from the four items, since that is already derived from this latter verse?]"
,k33a_24:" The liability for which is not in respect of an actual loss of value."
,k33a_25:" The liability for which is in respect of an actual loss of money sustained."
,k33a_26:" By the expression 'this'."
,k33a_27:" As the full value of it corresponds in this case to the amount of half-damages."
,k33a_28:" And if its value is not less than the amount of the half-damages, the defendant will have to pay that amount in full, whereas where the value of the ox that did the damage is less than the amount of the half-damages, the defendant will have to pay no more than the actual value of the ox that did the damage."
,k33a_29:" Where its value is more than the amount of the half-damages."
,k33a_30:" Ex. XXI, 35."
,k33a_31:" I.e., to sell the live ox which is still the property of the defendant."
,k33a_32:" As the live ox became their property in common where its value had been more than the amount of the half-damages."
,k33a_33:" [According to R. Ishmael the consecration is of no legal effect, whereas R. Akiba would declare it valid.] "
}

txt:
<p>
 &mdash; A stranger need not fear the master-smith<a id="k33a_1"><sup>1</sup></a>&nbsp; whereas the apprentice is in fear of his master.<a id="k33a_2"><sup>2</sup></a>
</p><p>
	R. Zebid in the name of Raba referred [the remark of R Jose b. Hanina] to the following: [The verse,] <I>And [it] lighteth [upon his neighbour]</I>,<a id="k33a_3"><sup>3</sup></a>&nbsp; excludes [a case] where the neighbour brings himself [within the range of the missile]. Hence the statement made by R. Eliezer b. Jacob: If a man lets [fly] a stone out of his hand and another [at that moment] puts out his head [through a window] and receives the blow [and is killed], he is exempt.<a id="k33a_4"><sup>4</sup></a>&nbsp; [Now, it was with reference to this case that] R. Jose b. Hanina said: He is exempt from having to take refuge,<a id="k33a_5"><sup>5</sup></a>&nbsp; but he would be liable for the four [additional] items.<a id="k33a_6"><sup>6</sup></a>&nbsp; He who refers this remark to this [last] case will with more reason refer it to the cases dealt with previously,<a id="k33a_7"><sup>7</sup></a>&nbsp; whereas he who refers it to those dealt with previously<a id="k33a_7"><sup>7</sup></a>&nbsp; would maintain that in this [last] case<a id="k33a_8"><sup>8</sup></a>&nbsp; the exemption is from all [kinds of liability].
</p><p>
	Our Rabbis taught: If employees come to [the private residence of] their employer to demand their wages from him and [it so happens that] their employer's ox gores them or their employer's dog bites them, with fatal results, he [the employer] is exempt [from ransom].<a id="k33a_9"><sup>9</sup></a>&nbsp; Others,<a id="k33a_10"><sup>10</sup></a>&nbsp; however, maintain that employees have the right to [come and] demand their wages from their employer. Now, what were the circumstances [of the case]? If the employer could be found in [his] city [offices], what reason [could be adduced] for [the view maintained by] the 'Others'.<a id="k33a_10"><sup>10</sup></a>&nbsp; If [on the other hand] he could be found only at home, what reason [could be given] for [the anonymous view expressed by] the first Tanna? &mdash; No, the application [of the case] is where the employer could [sometimes] be found [in his city offices] but could not [always] be found [there]. The employees therefore called at his [private] door, when the reply was 'Yes'. One view<a id="k33a_11"><sup>11</sup></a>&nbsp; maintains that 'Yes' implies: 'Enter and come in.' But the other view<a id="k33a_12"><sup>12</sup></a>&nbsp; maintains that 'Yes' may signify: 'Remain standing in the place where you are.' It has indeed been taught in accordance with the view<a id="k33a_12"><sup>12</sup></a>&nbsp; maintaining that 'Yes' may [in this case] signify: 'Remain standing in the place where you are.' For it has been taught: 'If an employee enters the [private] residence of his employer to demand his wages from him and the employer's ox gores him or the employer's dog bites him, he [the employer] is exempt even where the entrance had been made by permission.' Why should there indeed be exemption<a id="k33a_13"><sup>13</sup></a>&nbsp; unless in the case where he called at the door and the employer said: 'Yes'? This thus proves that 'Yes' [in such a case] signifies: 'Remain standing in the place where you are.
</p><p>
	<B><I>MISHNAH</I></B>. IN THE CASE OF TWO <I>TAM</I> OXEN INJURING EACH OTHER, THE PAYMENT OF THE DIFFERENCE WILL BE IN ACCORDANCE WITH THE LAW OF HALF-DAMAGES.<a id="k33a_14"><sup>14</sup></a>&nbsp; WHERE BOTH WERE <I>MU'AD</I> THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL.<a id="k33a_14"><sup>14</sup></a>&nbsp; WHERE ONE WAS <I>TAM</I> AND THE OTHER <I>MU'AD</I> THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY <I>MU'AD</I> TO <I>TAM</I> WILL BE ON THE BASIS OF FULL COMPENSATION, WHEREAS THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY <I>TAM</I> TO <I>MU'AD</I> WILL BE IN ACCORDANCE WITH THE LAW OF HALF-DAMAGES. SIMILARLY IN THE CASE OF TWO PERSONS INJURING EACH OTHER, THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL. WHERE MAN HAS DAMAGED <I>MU'AD</I> AND <I>MU'AD</I> HAS INJURED MAN, THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL. BUT WHERE MAN DAMAGED <I>TAM</I> AND <I>TAM</I> INJURED MAN, THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY MAN TO <I>TAM</I> WILL BE ON THE BASIS OF FULL COMPENSATION, WHEREAS THE PAYMENT OF THE DIFFERENCE FOR DAMAGE DONE BY <I>TAM</I> TO <I>MU'AD</I> WILL BE IN ACCORDANCE WITH THE LAW OF HALF-DAMAGES. R. AKIBA, HOWEVER, SAYS: EVEN IN THE CASE OF <I>TAM</I> INJURING MAN THE PAYMENT OF THE DIFFERENCE WILL BE IN FULL.<a id="k33a_15"><sup>15</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. Our Rabbis taught: [The words of the Torah] <I>According to this judgement shall be done unto it</I><a id="k33a_16"><sup>16</sup></a>&nbsp; [imply that] the judgement in the case of Ox damaging ox applies also in the case of Ox injuring man. Just as where Ox has damaged ox half-damages are paid in the case of <i>Tam</i> and full compensation in the case of <i>Mu'ad</i>, so also where Ox has injured man only half damages will be paid in the case of <i>Tam</i> and full compensation in the case of <i>Mu'ad</i>. R. Akiba, however, says: [The words,] 'According to this judgement' refer to [the ruling that would apply to the circumstances described in] the latter verse<a id="k33a_17"><sup>17</sup></a>&nbsp; and not in the former verse.<a id="k33a_18"><sup>18</sup></a>&nbsp; Could this then mean that the [full] payment is to be made out of the best [of the estate]?<a id="k33a_19"><sup>19</sup></a>&nbsp; [Not so; for] it is stated 'Shall it be done unto it [self],' to emphasise that payment will be made out of the body of <i>Tam</i>, but no payment is to be made out of any other source whatsoever.<a id="k33a_20"><sup>20</sup></a>&nbsp; According to the Rabbis then, what purpose is served by the word 'this'? &mdash; To exempt from liability for the four [additional] items.<a id="k33a_21"><sup>21</sup></a>&nbsp; Whence then does R. Akiba derive the exemption [in this case] from liability for the four [additional] items? &mdash; He derives it from the text, And if a man cause a blemish in his neighbour<a id="k33a_22"><sup>22</sup></a>&nbsp; [which indicates that there is liability only where] Man injures his neighbour but not where Ox injures the neighbour [of the owner]. And the Rabbis?<a id="k33a_23"><sup>23</sup></a>&nbsp; &mdash; Had the deduction been from that text we might have referred it exclusively to Pain,<a id="k33a_24"><sup>24</sup></a>&nbsp; but as to Medical Expenses and Loss of Time<a id="k33a_25"><sup>25</sup></a>&nbsp; we might have held there is still a liability to pay. We are therefore told<a id="k33a_26"><sup>26</sup></a>&nbsp; [that this is not the case].
</p><p>
	<B><I>MISHNAH</I></B>. IF AN OX [<I>TAM</I>] OF THE VALUE OF ONE HUNDRED <I>ZUZ</I> HAS GORED AN OX OF THE VALUE OF TWO HUNDRED <I>ZUZ</I> AND THE CARCASS HAD NO VALUE AT ALL, THE PLAINTIFF WILL TAKE POSSESSION OF THE [DEFENDANT'S] OX [THAT DID THE DAMAGE].<a id="k33a_27"><sup>27</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. Who is the author of our Mishnah? &mdash; It is R. Akiba, as it has been taught: The ox [that did the damage] has to be assessed by the Court of law;<a id="k33a_28"><sup>28</sup></a>&nbsp; this is the view of R. Ishmael. R. Akiba, however, says: The [body of the] ox becomes transferred [to the plaintiff]. What is the point at issue? &mdash; R. Ishmael maintains that he [the plaintiff] is but a creditor and that he has only a claim of money against him [the defendant], whereas R. Akiba is of the opinion that they both [the plaintiff and defendant] become the owners in common of the ox<a id="k33a_29"><sup>29</sup></a>&nbsp; [that did the damage]. They [thus also] differ as to the interpretation of the verse, Then they shall sell the live ox and divide the money of it.<a id="k33a_30"><sup>30</sup></a>&nbsp; R. Ishmael maintains that it is the Court on which this injunction is laid by Divine Law,<a id="k33a_31"><sup>31</sup></a>&nbsp; whereas R. Akiba is of the opinion that it is the plaintiff and defendant on which it is laid.<a id="k33a_32"><sup>32</sup></a>&nbsp; What is the practical difference between R. Ishmael and R. Akiba? &mdash; There is a practical difference between them where the plaintiff consecrated the ox [that did the damage].<a id="k33a_33"><sup>33</sup></a>
</p><p>
	Raba put the following question to R. Nahman: Should the defendant meanwhile dispose of the ox, what would be the law according to R. Ishmael? [Shall we say that] since R. Ishmael considers the plaintiff to be a creditor whose claim [against the defendant] is only regarding money, the sale is valid, or that
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k33b_1:" For if payment were not forthcoming the plaintiff would be entitled to distrain on the ox to the extent of the amount of the half-damages."
,k33b_2:" V. p. 181, n. 8."
,k33b_3:" Who will thus not have to pay for the use of the animal, [or, who will be permitted to put the ox to such service, v. Wilna Gaon, Glosses.]"
,k33b_4:" Whereas according to established law this is usually the case only with immovable property, cf. <i>supra</i> p. 62 but also B.B. 44b."
,k33b_5:" That did damage by goring while still in the state of <i>Tam</i>."
,k33b_6:" <i>Supra</i> p. 47. Cf. also B.B. 44b."
,k33b_7:" Why then distrain on the ox in the case of goring when it had already been sold?"
,k33b_8:" V. B.B. <i>loc. cit</i>."
,k33b_9:" The Palestinian."
,k33b_10:" 'Ar. 33a."
,k33b_11:" In the case of one who consecrates property on which there is a lien of a <i>kethubah</i> or a debt."
,k33b_12:" It is therefore a better policy to declare the consecration valid and prescribe a nominal sum for redemption."
,k33b_13:" Since when the ox is legally transferred to the plaintiff."
,k33b_14:" Which will be only half of the actual amount of the loss sustained."
,k33b_15:" Cf. <i>supra</i> p. 73."
,k33b_16:" Cf. Tosef. B.K. V."
,k33b_17:" Ex. XXI. 35."
,k33b_18:" For which the defendant is thus not made responsible."
,k33b_19:" That such an inference could be made; why then the special statement made by R. Huna?"
,k33b_20:" In the case of the ox that had been slaughtered."
,k33b_21:" <i>Infra</i> p. 570."
,k33b_22:" Since the damage is visible. "
}

txt:
<p>
since the ox is mortgaged to the plaintiff,<a id="k33b_1"><sup>1</sup></a>&nbsp; the defendant has no right [to dispose of it]? &mdash; He replied: The sale is not valid. But has it not been taught: In the case of [the defendant] having disposed of the ox, the sale is valid? &mdash; The plaintiff will still be entitled to come forward and distrain on it [from the purchaser].<a id="k33b_2"><sup>2</sup></a>&nbsp; But if he is entitled to come forward and distrain on it, to what purpose is the sale valid? &mdash; For the ploughing [the ox did with the purchaser].<a id="k33b_3"><sup>3</sup></a>&nbsp; Can we infer from this that in the case of a debtor having sold his chattels, a Court of law will distrain on them for a creditor?<a id="k33b_4"><sup>4</sup></a>&nbsp; &mdash; The case there [of the ox]<a id="k33b_5"><sup>5</sup></a>&nbsp; is altogether different, since the ox is regarded as if [the owner] had mortgaged it [for half-damages]. But did Raba not say<a id="k33b_6"><sup>6</sup></a>&nbsp; that where a debtor has mortgaged his slave and then sold him [to a third person] the creditor is entitled to distrain on him, whereas where an ox has been mortgaged and then sold [to a third party] the creditor cannot distrain on it?<a id="k33b_7"><sup>7</sup></a>&nbsp; &mdash; Is not the reason in the case of the slave that the transaction has been widely talked about?<a id="k33b_8"><sup>8</sup></a>&nbsp; So also in the case of this ox; since it gored it has been talked about, and the name 'The ox that gored' given it.
</p><p>
	R. Tahlifa the Western<a id="k33b_9"><sup>9</sup></a>&nbsp; recited in the presence of R. Abbahu: 'Where he sold the ox, the sale is not valid, but where he consecrated it [to the altar], the consecration holds good.' Who sold it? Shall I say the defendant? [In that case the opening clause,] 'Where he sold the ox, the sale is not valid', would be in accordance with the view of R. Akiba that the ox becomes transferred [to the plaintiff], while [the concluding clause.] 'Where he consecrated it, the consecration holds good' could follow only the view of R. Ishmael who said that the ox has to be assessed by the Court. If [on the other hand, it has been disposed of by] the plaintiff, would not [the opening clause.] 'Where he sold the ox, the sale is not valid', be in accordance with the view of R. Ishmael, while [the concluding clause.,] 'Where he consecrated it, the consecration holds good' could follow only the view of R. Akiba? &mdash; We may still say that it was the defendant [who disposed of it], and yet [both rulings] will be in agreement with all. 'Where he sold the ox, the sale is valid' [may be explained] even in accordance with R. Ishmael, for the ox is mortgaged to the plaintiff. 'Where he consecrated it, the consecration holds good,' [may again be interpreted] even in accordance with R. Akiba, on account of [the reason given] by R. Abbahu; for R. Abbahu [elsewhere] stated:<a id="k33b_10"><sup>10</sup></a>&nbsp; An extra precaution was taken<a id="k33b_11"><sup>11</sup></a>&nbsp; lest people should say that consecrated objects could lose their status even without any act of redemption.<a id="k33b_12"><sup>12</sup></a>
</p><p>
	Our Rabbis taught: If an ox does damage while still <i>Tam</i>, then, as long as its case has not been brought up in Court, if it is sold the sale is valid; if it is consecrated, the consecration holds good; if slaughtered and given away as a gift, what has been done is legally effective. But after the case has come into Court,<a id="k33b_13"><sup>13</sup></a>&nbsp; if it is sold the sale is not valid; if consecrated, the consecration does not hold good; if slaughtered and given away as a gift, the acts have no legal effect; so also where [other] creditors stepped in first and distrained on the ox [while in the hands of the defendant], no matter whether the debt had been incurred before the goring took place or whether the goring had occurred before the debt was incurred, the distraint is not legally effective, since the compensation [for the damage]<a id="k33b_14"><sup>14</sup></a>&nbsp; must be made out of the body of the ox [that did it].<a id="k33b_15"><sup>15</sup></a>&nbsp; But in the case of <i>Mu'ad</i> doing damage there is no difference whether the case had already been brought into Court or whether it had not yet come into Court; if it has been sold, the sale is valid; if consecrated, the consecration holds good; if slaughtered and given away as a gift, what has been done is legally effective, where [other] creditors have stepped in and distrained on the ox, no matter whether the debt had been contracted before the goring took place or whether the goring had taken place before the debt was incurred, the distraint is legally effective, since the compensation is paid out of the best of the general estate [of the defendant].<a id="k33b_16"><sup>16</sup></a>
</p><p>
	The Master stated: 'If it is sold, the sale is valid'. [This can refer] to ploughing [done by the ox while with the vendee]. 'If consecrated, the consecration holds good'; on account of the reason given by R. Abbahu. 'If slaughtered and given away as a gift, what has been done is legally effective'. We can quite understand that where it has been given away as a gift the act should be legally effective, in respect of the ploughing [meanwhile done by the ox]. But in the case of it having been slaughtered, why should [the claimant] not come and obtain payment out of the flesh? Was it not taught: '[The] live [ox]:<a id="k33b_17"><sup>17</sup></a>&nbsp; this states the rule for when it was alive; whence do we know that the same holds good even after it has been slaughtered? Because it says further: And they shall sell the ox,<a id="k33b_17"><sup>17</sup></a>&nbsp; i.e., in all circumstances'? &mdash; R. Shizbe therefore said: What is referred to must be the diminution in value occasioned by its having been slaughtered.<a id="k33b_18"><sup>18</sup></a>&nbsp; R. Huna the son of Joshua thereupon said: This proves that if a man impairs securities mortgaged to his creditor, he incurs no liability. Is this not obvious?<a id="k33b_19"><sup>19</sup></a>&nbsp; &mdash; It might perhaps have been suggested that it was only there<a id="k33b_20"><sup>20</sup></a>&nbsp; where the defendant could argue, 'I have not deprived you of anything at all [of the quantity]', and could even say, 'it is only the mere breath [of life] that I have taken away from your security' [that there should be exemption], whereas in the case of impairing securities in general there should be liability; we are therefore told [that this is not the case]. But has not this been pointed out by Rabbah? For has not Rabbah stated: 'If a man destroys by fire the documents of a neighbour, he incurs no liability'?<a id="k33b_21"><sup>21</sup></a>&nbsp; &mdash; It might perhaps have been suggested that it was only there where the defendant could contend 'It was only a mere piece of paper of yours that has actually been burnt' [that there should be exemption], whereas in the case [of spoiling a field held as security] by digging there pits, ditches and caves there should be liability; we are therefore told that [this is not so, for] in the case here the damage resembles that occasioned by digging pits, ditches and caves,<a id="k33b_22"><sup>22</sup></a>&nbsp; and yet it is laid down that 'what has been done is legally effective'.
</p><p>
	'Where [other] creditors stepped in first and distrained on the ox [in the hands of the defendant] no matter whether the debt had been incurred before the goring took place or whether the goring had taken place before the debt was incurred, the distraint is not legally effective, since the compensation must be made out of the body of the ox [that did the damage].' We understand this where the goring has taken place before the debt was incurred, in which case the plaintiff for damages has priority. But [why should it be so] where the debt has been contracted before the goring took place, [seeing that in that case] the creditor for the debt has priority?
</P>


lvr: 41
dfh: a
notes:
 ntes={k34a_1:" Why should then the plaintiff for damages override the right of another creditor who had already taken possession of the ox?"
,k34a_2:" Whereas this is a point on which opinions differ; cf. Keth. 94a."
,k34a_3:" Dealing with two creditors for loans."
,k34a_4:" Where one of the creditors was a plaintiff for damages."
,k34a_5:" Against the other creditor."
,k34a_6:" In the state of <i>Tam</i>."
,k34a_7:" And the defendant cannot put up the increase in the value of the injured ox as a defence, for but for the injury the ox might have reached the value of even eight hundred <i>zuz</i>."
,k34a_8:" To the detriment of the defendant."
,k34a_9:" This view apparently maintains that the plaintiff does not become an owner of a definite portion in the ox that did the damage, but becomes entitled merely to a certain sum of money to be collected out of the body of that ox."
,k34a_10:" Seemingly because the plaintiff is according to this ruling regarded as having become at the time the goring took place an owner of a definite portion in the ox which has subsequently depreciated. For if he became entitled to a certain sum of money in the body of that ox, why should he suffer on account of depreciation?"
,k34a_11:" In which case it is only reasonable that the plaintiff should not be entitled to any share in the improvement that resulted from the fattening carried out by the defendant."
,k34a_12:" Dealing with the case where it was the injured ox that improved and increased in value."
,k34a_13:" Giving the law where the ox that had done the damage improved."
,k34a_14:" I.e., the ox that had been injured, dealt with in the opening clause."
,k34a_15:" By hard work."
,k34a_16:" The depreciation is thus a direct result of the injury for which the defendant is responsible."
,k34a_17:" In the state of <i>Tam</i>."
,k34a_18:" Ex. XXI, 35."
,k34a_19:" That half-damages should be paid in the case of <i>Tam</i>."
,k34a_20:" As in the case specified by R. Meir the carcass had no value at all."
,k34a_21:" Amounting altogether to one hundred and twenty-five <i>zuz</i>. The plaintiff would thus get seventy-five <i>zuz</i> in respect of the damage that amounted to one hundred and fifty <i>zuz</i>. Together with the fifty of the carcass of his ox the sum total will be one hundred and twenty-five <i>zuz</i>."
,k34a_22:" Of the animal attacked resulting from the injuries inflicted upon it."
,k34a_23:" Specified by R. Judah, where the carcass was worth fifty <i>zuz</i>."
,k34a_24:" I.e., half of the value of the living ox and half of the value of the carcass."
,k34a_25:" Since the death of the attacked ox."
,k34a_26:" Before it has been sold."
,k34a_27:" As according to R. Meir, the defendant has no interest whatsoever in the carcass."
,k34a_28:" Since according to R. Judah, both the defendant and the plaintiff have to divide the value of the carcass."
,k34a_29:" Raba. "
}

txt:
<p>
Moreover, even where the goring had taken place before the debt was contracted, was not the creditor actually first [in taking possession of the ox]?<a id="k34a_1"><sup>1</sup></a>&nbsp; Can it be concluded from this that where a creditor of a subsequent date has preceded a creditor of an earlier date in distraining on [the property of the debtor], the distraint is of no legal avail?<a id="k34a_2"><sup>2</sup></a>&nbsp; &mdash; No; I may still maintain that [in this case]<a id="k34a_3"><sup>3</sup></a>&nbsp; the distraint holds good, whereas in the case there,<a id="k34a_4"><sup>4</sup></a>&nbsp; it is altogether different; as the plaintiff [for damages] may argue,<a id="k34a_5"><sup>5</sup></a>&nbsp; 'Had the ox already been with you [before it gored], would I not have been entitled to distrain on it while in your hands? For surely out of the ox that did the damage I am to be compensated.'
</p><p>
	Our Rabbis taught: Where an ox<a id="k34a_6"><sup>6</sup></a>&nbsp; of the value of two hundred [<i>zuz</i>] gored an ox of the same value of two hundred [<i>zuz</i>] and injured it to the amount of fifty <i>zuz</i>, but it so happened that the injured ox [subsequently] improved and reached the value of four hundred <i>zuz</i>, since it can be contended that but for the injury it would have reached the value of eight hundred <i>zuz</i>, compensation will be [still] paid as at the time of the damage.<a id="k34a_7"><sup>7</sup></a>&nbsp; Where it has depreciated, the compensation will be paid in accordance with the value at the time of the case being brought into Court.<a id="k34a_8"><sup>8</sup></a>&nbsp; Where it was the ox which did the damage that [subsequently] improved, the compensation will still be made in accordance with the value at the time of the damage.<a id="k34a_9"><sup>9</sup></a>&nbsp; Where it has [on the other hand] depreciated, the compensation will be made in accordance with the value at the time of the case being brought into Court.<a id="k34a_10"><sup>10</sup></a>
</p><p>
	The Master has said: 'Where it was the ox which did the damage that [subsequently] improved, the compensation will still be made as at the time of the damage.' This ruling is in accordance with R. Ishmael, who maintains that the plaintiff is a creditor and he has a pecuniary claim against him [the defendant]. Read now the concluding clause: 'Where it [on the other hand] depreciated, the compensation will be made in accordance with the value at the time of the case being brought into Court'. This ruling, on the other hand, follows the view of R. Akiba, that they both [plaintiff and defendant] become the owners in common [of the ox that did the damage]. [Is it possible that] the first clause should follow the view of R. Ishmael and the second clause follow that of R. Akiba? &mdash; No; the whole teaching follows the view of R. Akiba, for we deal here with a case where the improvement was due to the defendant having fattened the ox.<a id="k34a_11"><sup>11</sup></a>&nbsp; If the improvement was due to fattening, how could you explain the opening clause, 'where&nbsp;&hellip; the injured ox [subsequently] improved and reached the value of four hundred <i>zuz</i>&nbsp;&hellip; compensation will be paid as at the time of the damage'? For where the improvement was due to the act of fattening [by the owner], what need could there have been to state [that compensation for the original damage has still to be paid]? &mdash; R. Papa thereupon said: The ruling in the opening clause<a id="k34a_12"><sup>12</sup></a>&nbsp; applies to all cases, whether where the ox improved by special fattening or where it improved by itself: the statement of the rule was required for the case where the ox improved by itself &mdash; even then compensation will be paid as at time of the damage. The ruling in the concluding clause,<a id="k34a_13"><sup>13</sup></a>&nbsp; however, could apply only to a case where the improvement was due to special fattening.
</p><p>
	'Where it<a id="k34a_14"><sup>14</sup></a>&nbsp; has depreciated, the compensation will be made in accordance with the value at the time of the case being brought into Court.' Through what can it have depreciated? Shall I say that it has depreciated through hard work? In that case [surely] the defendant can say, 'You cause it to depreciate!<a id="k34a_15"><sup>15</sup></a>&nbsp; Could you expect me to pay for it?' &mdash; R. Ashi thereupon said: The depreciation [referred to] is due to the injury, in which case the plaintiff is entitled to contend, '[The evil effect of] the horn of your ox is still buried within the suffering animal.'<a id="k34a_16"><sup>16</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. WHERE AN OX<a id="k34a_17"><sup>17</sup></a>&nbsp; OF THE VALUE OF TWO HUNDRED [<I>ZUZ</I>] GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [<I>ZUZ</I>] AND THE CARCASS HAD NO VALUE AT ALL, R. MEIR SAID THAT IT WAS WITH REFERENCE TO THIS CASE THAT IT IS WRITTEN, AND THEY SHALL SELL THE LIVE OX AND DIVIDE THE MONEY OF IT.<a id="k34a_18"><sup>18</sup></a>&nbsp; R. JUDAH, HOWEVER, SAID: THIS IS CERTAINLY THE <I>HALACHAH</I>,<a id="k34a_19"><sup>19</sup></a>&nbsp; BUT WHILE YOU FULFIL [BY THIS RULING THE INJUNCTION], 'AND THEY SHALL SELL THE LIVE OX AND DIVIDE THE MONEY OF IT,' YOU DO NOT FULFIL [THE NEXT INJUNCTION], 'AND THE DEAD OX ALSO THEY SHALL DIVIDE.'<a id="k34a_20"><sup>20</sup></a>&nbsp; THE CASE DEALT WITH BY SCRIPTURE IS THEREFORE WHERE AN OX OF THE VALUE OF TWO HUNDRED [<I>ZUZ</I>] GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [<I>ZUZ</I>] AND THE CARCASS WAS WORTH FIFTY <I>ZUZ</I>: ONE PARTY WOULD HERE GET HALF OF THE LIVING OX TOGETHER WITH HALF OF THE DEAD OX<a id="k34a_21"><sup>21</sup></a>&nbsp; AND THE OTHER PARTY WOULD SIMILARLY GET HALF OF THE LIVING OX TOGETHER WITH HALF OF THE DEAD OX.
</p><p>
	<B><I>GEMARA</I></B>. Our Rabbis taught: Where an ox of the value of two hundred [<i>zuz</i>] gored an ox of the same value of two hundred [<i>zuz</i>] and the carcass was worth fifty <i>zuz</i>, one party would get half of the living ox together with half of the dead ox and the other party would similarly get half of the living ox together with half of the dead ox. This is the [case of the goring] ox dealt with in the Torah, according to the view of R. Judah. R. Meir, however, says; This is not the [case of the goring] ox dealt with in the Torah, but where an ox of the value of two hundred [<i>zuz</i>] gored an ox of the same value of two hundred [<i>zuz</i>] and the carcass was of no value at all &mdash; this is the case regarding which it is laid down, <I>'And they shall sell the live ox and divide the money of it</I>.' But how could I [in this case] carry out [the other direction], <I>'And the dead ox also they shall divide'</I>? [This only means that] the diminution [in value] brought about by the death<a id="k34a_22"><sup>22</sup></a>&nbsp; has to be [compensated] to the extent of one-half out of the body of the living ox. Now, since [in the former case]<a id="k34a_23"><sup>23</sup></a>&nbsp; according to both R. Meir and R. Judah one party will get a hundred and twenty-five [<i>zuz</i>]<a id="k34a_24"><sup>24</sup></a>&nbsp; and the other party will similarly get a hundred and twenty-five [<i>zuz</i>], what is the [practical] difference between them? &mdash; Raba thereupon said: The difference arises where<a id="k34a_25"><sup>25</sup></a>&nbsp; there has been a decrease in the value of the carcass,<a id="k34a_26"><sup>26</sup></a>&nbsp; R. Meir maintains that the loss in the value of the carcass has to be [wholly] sustained by the plaintiff,<a id="k34a_27"><sup>27</sup></a>&nbsp; whereas R. Judah is of the opinion that the loss in the value of the carcass will be borne by the defendant to the extent of a half.<a id="k34a_28"><sup>28</sup></a>&nbsp; Said Abaye to him:<a id="k34a_29"><sup>29</sup></a>&nbsp; If this be the case, will it not turn out that according to R. Judah
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k34b_1:" For in the case of <i>Mu'ad</i> it is certainly the plaintiff who has to bear the whole loss occasioned by a decrease in the value of the carcass; cf. <i>supra</i> p. 65."
,k34b_2:" And <i>Tam</i> will indeed involve a penalty more severe than that involved by <i>Mu'ad</i>."
,k34b_3:" B.K. IV, 9."
,k34b_4:" For which cf. <i>infra</i>, p. 259."
,k34b_5:" Amounting to fifty <i>zuz</i>."
,k34b_6:" That would amount to another ten <i>zuz</i>."
,k34b_7:" The result would be that the plaintiff whose injured ox had altogether been worth twenty <i>zuz</i> would get damages amounting to sixty <i>zuz</i>."
,k34b_8:" In Scripture; cf. Ex. XXI, 36."
,k34b_9:" Why should then the defendant in the case of <i>Tam</i> share the loss occasioned by a decrease in the value of the carcass which he would not have to do in the case of <i>Mu'ad</i>?"
,k34b_10:" R. Meir and R. Judah."
,k34b_11:" R. Meir, according to whom the defendant has no interest in the carcass."
,k34b_12:" V. <i>supra</i> p. 189, n. 7."
,k34b_13:" Amounting to ten <i>zuz</i>."
,k34b_14:" That would amount to another twenty-five <i>zuz</i>."
,k34b_15:" The result would be that the defendant instead of paying compensation would make a profit out of the offence, as in lieu of his ox which did the damage and which was worth twenty <i>zuz</i> he would get a total of thirty-five <i>zuz</i>."
,k34b_16:" Ex. XXI, 36."
,k34b_17:" I.e., why is not the first objection sufficient?"
,k34b_18:" Of the ten <i>zuz</i> that make the carcass worth more than the ox while alive."
,k34b_19:" As e.g.. where an ox of the value of fifty <i>zuz</i> gored another's ox of the value of forty <i>zuz</i> and the carcass was worth twenty <i>zuz</i>, in which case the actual damage amounted to twenty <i>zuz</i>, half of which would be ten <i>zuz</i>, whereas if the plaintiff will get half of the living ox and half of the dead ox he shall be in receipt for damages, in addition to the value of the carcass, not of ten but of fifteen <i>zuz</i>."
,k34b_20:" The sum total received by the plaintiff will therefore never be more than half of the actual loss sustained by him after allowing him, of course, the full value of the carcass of his ox."
,k34b_21:" Since he is in disagreement with R. Meir as to the implication of the last clause of Ex. XXI, 35."
,k34b_22:" Ex. XXI, 35."
,k34b_23:" I.e., that the decrease in value brought about by the death will be compensated for by half in the body of the living ox. V. <i>Supra</i> p. 189."
,k34b_24:" Viz., the principle laid down in the preceding note and the principle maintained by R. Judah, that the defendant as well as the plaintiff has an interest in the carcass and will share the profits of any increase in its value."
,k34b_25:" Lit., 'ox'."
,k34b_26:" As explained <i>supra</i> p. 134."
,k34b_27:" Cf. B. K. VIII 1-2."
,k34b_28:" To the law laid down in Ex. XXI, 26-27."
,k34b_29:" In accordance with ibid, cf. also <i>supra</i> p. 137."
,k34b_30:" For damages."
,k34b_31:" Involving thus a capital charge, for which cf Ex. XXI, 15."
,k34b_32:" As wherever a capital charge is involved by an offence, all civil liabilities that may otherwise have resulted from that offence merge in the capital charge; cf. <i>supra</i> p. 113."
,k34b_33:" For which cf. Ex. XXXI, 14-15; but v. also ibid. XXXV, 2-3, Mekilta a.l. and Yeb. 7b, 33b and Shab. 70a."
,k34b_34:" Cf. Shab. 106a."
,k34b_35:" [I.e., your teaching is fit only for outside and not to be admitted within the <i>Beth Hamidrash</i>; v. Sanh. (Sonc. ed.) p. 425.]"
,k34b_36:" Cf. Shab. 75a; v. also B.K. VIII, 5."
,k34b_37:" Which case involves the violation of the Sabbath because the purpose has not been altogether destructive. "
}

txt:
<p>
[injury by] <i>Tam</i> would involve a more severe penalty than [injury by] <i>Mu'ad</i>?<a id="k34b_1"><sup>1</sup></a>&nbsp; And should you maintain that this indeed is so,<a id="k34b_2"><sup>2</sup></a>&nbsp; as we have learned: R. Judah says: In the case of <i>Tam</i> there is liability [where the precaution taken to control the ox has not been adequate] whereas in the case of <i>Mu'ad</i> there is no liability,<a id="k34b_3"><sup>3</sup></a>&nbsp; it may be contended that you only heard R. Judah maintaining this with reference to precaution, which is specified in Scripture,<a id="k34b_4"><sup>4</sup></a>&nbsp; but did you ever hear him say this regarding compensation? Moreover, it has been taught: R. Judah says: One might say that where an ox of the value of a <i>maneh</i> [a hundred <i>zuz</i>] gored an ox of the value of five <i>sela'</i> [i.e., twenty <i>zuz</i>] and the carcass was worth a <i>sela'</i> [i.e., four <i>zuz</i>], one party should get half of the living ox<a id="k34b_5"><sup>5</sup></a>&nbsp; together with half of the dead ox<a id="k34b_6"><sup>6</sup></a>&nbsp; and the other party should similarly get half of the living ox and half of the dead ox?<a id="k34b_7"><sup>7</sup></a>&nbsp; [This cannot be so]; for we reason thus: Has <i>Mu'ad</i> been singled out<a id="k34b_8"><sup>8</sup></a>&nbsp; to entail a more severe penalty or a more lenient one? You must surely say: [to entail] a more severe penalty. Now, if in the case of <i>Mu'ad</i> no payment is made but for the amount of the damage, should this not the more so be true in the case of <i>Tam</i> the [penalty in respect of which is] less severe?<a id="k34b_9"><sup>9</sup></a>&nbsp; &mdash; R. Johanan therefore said: The practical difference between them<a id="k34b_10"><sup>10</sup></a>&nbsp; arises where there has been an increase in the value of the carcass, one Master<a id="k34b_11"><sup>11</sup></a>&nbsp; maintaining that it will accrue to the plaintiff whereas the other Master holds that it will be shared equally [by the two parties].<a id="k34b_12"><sup>12</sup></a>
</p><p>
	And it is just on account of this view that a difficulty was felt by R. Judah: Now that you say that the Divine Law is lenient to the defendant, allowing him to share in the increase [of the value of the carcass], you might then presume that where an ox of the value of five <i>sela'</i> [i.e. twenty <i>zuz</i>] gored an ox of the value of a <i>maneh</i> [a hundred <i>zuz</i>] and the carcass was valued at fifty <i>zuz</i>, one party would take half of the living ox<a id="k34b_13"><sup>13</sup></a>&nbsp; together with half of the dead ox<a id="k34b_14"><sup>14</sup></a>&nbsp; and the other party would similarly take half of the living ox and half of the dead ox?<a id="k34b_15"><sup>15</sup></a>&nbsp; Say [this cannot be so, for] where could it elsewhere be found that an offender should [by order of the Court] be made to benefit as you would have the offender here in this case to benefit? It is moreover stated, He shall surely make restitution,<a id="k34b_16"><sup>16</sup></a>&nbsp; [emphasising that] the offender could only have to pay but never to receive payment. Why that additional quotation?<a id="k34b_17"><sup>17</sup></a>&nbsp; &mdash; [Otherwise] you might have thought this principle to be confined only to a case where the plaintiff was the loser,<a id="k34b_18"><sup>18</sup></a>&nbsp; and that where no loss would be incurred to the plaintiff &mdash; as e.g. where an ox of the value of five <i>sela'</i> gored an ox similarly of the value of five <i>sela'</i> [i.e. twenty <i>zuz</i>] and it so happened that the carcass [increased in value and] reached the amount of thirty <i>zuz</i> &mdash; the defendant should indeed be entitled to share in the profit;<a id="k34b_18"><sup>18</sup></a>&nbsp; hence the verse, He shall surely make full restitution, is adduced [to emphasise that in all cases] an offender could only have to pay but never to receive payment.
</p><p>
	But R. Aha b. Tahlifa said to Raba: If so [that the principle to compensate by half for the decrease in value brought about by the death is maintained only by R. Meir], will it not be found that according to R. Judah <i>Tam</i> will involve the payment of more than half damages,<a id="k34b_19"><sup>19</sup></a>&nbsp; whereas the Torah [emphatically] stated, <I>And they shall sell the live ox and divide the money of it</I>? &mdash; [No;] R. Judah also holds that the decrease in value brought about by the death will be [compensated] by half in the body of the living ox.<a id="k34b_20"><sup>20</sup></a>&nbsp; Whence could he derive this?<a id="k34b_21"><sup>21</sup></a>&nbsp; &mdash; From [the verse], <I>And the dead ox also they shall divide</I>.<a id="k34b_22"><sup>22</sup></a>&nbsp; But did not R. Judah derive from this verse that one party will take half of the living ox together with half of the dead ox and the other party will similarly take half of the living ox and half of the dead ox?<a id="k34b_23"><sup>23</sup></a>&nbsp; &mdash; If that were all, the text could have run, 'And the dead ox [they shall divide].' Why insert <I>'also'</I>? It shows that two lessons are to be derived from the verse.<a id="k34b_24"><sup>24</sup></a>
<P>
<B><I>MISHNAH</I></B>. THERE ARE CASES WHERE THERE IS LIABILITY FOR OFFENCES COMMITTED BY ONE'S CATTLE<a id="k34b_25"><sup>25</sup></a>&nbsp; THOUGH THERE WOULD BE NO LIABILITY SHOULD THESE OFFENCES BE COMMITTED BY ONESELF. THERE ARE, AGAIN, CASES WHERE THERE IS NO LIABILITY FOR OFFENCES COMMITTED BY ONE'S CATTLE<a id="k34b_25"><sup>25</sup></a>&nbsp; THOUGH THERE WOULD BE LIABILITY WERE THESE OFFENCES COMMITTED BY ONESELF. FOR INSTANCE, IF CATTLE HAS BROUGHT INDIGNITY [UPON A HUMAN BEING] THERE IS NO LIABILITY,<a id="k34b_26"><sup>26</sup></a>&nbsp; WHEREAS IF THE OWNER CAUSES THE INDIGNITY THERE WOULD BE LIABILITY.<a id="k34b_27"><sup>27</sup></a>&nbsp; SO ALSO IF AN OX PUTS OUT THE EYE OF THE OWNER'S SLAVE OR KNOCKS OUT HIS TOOTH THERE IS NO LIABILITY,<a id="k34b_28"><sup>28</sup></a>&nbsp; WHEREAS IF THE OWNER HIMSELF HAS PUT OUT THE EYE OF HIS SLAVE OR KNOCKED OUT HIS TOOTH HE WOULD BE LIABLE [TO LET HIM GO FREE].<a id="k34b_29"><sup>29</sup></a>&nbsp; AGAIN, IF AN OX HAS INJURED THE FATHER OR MOTHER OF THE OWNER THERE IS LIABILITY,<a id="k34b_30"><sup>30</sup></a>&nbsp; THOUGH WERE THE OWNER HIMSELF TO INJURE HIS FATHER OR HIS MOTHER<a id="k34b_31"><sup>31</sup></a>&nbsp; THERE WOULD BE NO [CIVIL] LIABILITY.<a id="k34b_32"><sup>32</sup></a>&nbsp; SO ALSO WHERE CATTLE HAS CAUSED FIRE TO BE SET TO A BARN ON THE DAY OF SABBATH THERE IS LIABILITY,<a id="k34b_30"><sup>30</sup></a>&nbsp; WHEREAS WERE THE OWNER TO SET FIRE TO A BARN ON SABBATH<a id="k34b_33"><sup>33</sup></a>&nbsp; THERE WOULD BE NO [CIVIL] LIABILITY, AS HE WOULD BE SUBJECT TO A CAPITAL CHARGE.<a id="k34b_32"><sup>32</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. R. Abbahu recited in the presence of R. Johanan:<a id="k34b_34"><sup>34</sup></a>&nbsp; Any work [on the Sabbath] that has a destructive purpose entails no penalty [for the violation of the Sabbath], with the exception, however, of the act of inflicting a bodily injury, as also of the act of setting on fire. Said R. Johanan to him: Go and recite this outside<a id="k34b_35"><sup>35</sup></a>&nbsp; [for the exception made of] the act of inflicting a bodily injury and of setting on fire is not part of the teaching; and should you find grounds for maintaining that it is,<a id="k34b_36"><sup>36</sup></a>&nbsp; [you may say that] the infliction of a bodily injury refers to where the blood was required to feed a dog;<a id="k34b_37"><sup>37</sup></a>&nbsp; and in the case of setting on fire, where there was some need of the ashes.<a id="k34b_37"><sup>37</sup></a>
</p><p>
	We have learnt: WHERE CATTLE HAS CAUSED FIRE TO BE SET TO A BARN ON THE DAY OF SABBATH THERE IS LIABILITY, WHEREAS WERE THE OWNER TO HAVE SET FIRE TO A BARN ON SABBATH THERE WOULD BE NO [CIVIL] LIABILITY. Now, the act of the owner is here placed on a level with that of Cattle; which would show, would it not, that just as in the act of Cattle there was certainly no intention to satisfy any need,
</P>


lvr: 41
dfh: a
notes:
 ntes={k35a_1:" Which would show that setting fire on Sabbath even for purely destructive purposes is a violation of the Sabbath, supporting thus the view of R. Abbahu and contradicting that of R. Johanan."
,k35a_2:" Though with cattle there would really be no legal difference whatsoever whether this was the case or not."
,k35a_3:" V. p. 192, n. 2."
,k35a_4:" Being as it is altogether devoid of the whole conception of insult."
,k35a_5:" <i>Supra</i> p. 141."
,k35a_6:" Which exempts man setting fire on Sabbath from any civil liability involved."
,k35a_7:" Exempting from civil liability in the case of Man."
,k35a_8:" Keth. 35a, 38a; Sanh. 79b and 84b."
,k35a_9:" Lev. XXIV, 21."
,k35a_10:" Which, however, forms a distinction in the case of unintentional manslaughter with reference to the liability to take refuge, for which cf. Mak. 7b."
,k35a_11:" As indeed stated <i>supra</i> p. 136."
,k35a_12:" Even when there is no actual death penalty involved, and likewise in the Mishnah the man setting fire though inadvertently is exempt from all civil liability, so that you cannot infer therefrom that death penalty is attached to setting fire on Sabbath even for destructive purposes. V. <i>supra</i> p. 192. n. 8."
,k35a_13:" In which case the capital punishment could never be applied."
,k35a_14:" V. p. 192, n. 8."
,k35a_15:" On the basis of the teaching of Hezekiah."
,k35a_16:" Denying thus any liability. "
}

txt:
<p>
so also the owner similarly had no intention to satisfy thereby any need, and yet it is stated THERE WOULD BE NO [CIVIL] LIABILITY AS HE WOULD BE SUBJECT TO A CAPITAL CHARGE?<a id="k35a_1"><sup>1</sup></a>&nbsp; No; it is the act of Cattle, which is placed on the same level as that of the owner himself, to show that just as in the act of the owner there had surely been the intention to satisfy some need, so also in the act of Cattle there must have been the intention to satisfy some need.<a id="k35a_2"><sup>2</sup></a>&nbsp; But how is this possible in the case of Cattle? &mdash; R. Iwiya replied: The case here supposed is one of an intelligent animal which, owing to an itching in the back, was anxious to burn the barn so that it might roll in the [hot] ashes. But how could we know [of such an intention]? [By seeing that] after the barn had been burnt, the animal actually rolled in the ashes. But could such a thing ever happen? &mdash; Yes, as in the case of the ox which had been in the house of R. Papa, and which, having a severe toothache, went into the brewery, where it removed the lid [that covered the beer] and drank beer until it became relieved [of the pain]. The Rabbis, however, argued in the presence of R. Papa: How can you say that [the Mishnah places the act of] Cattle on a level with [the act of] the owner himself? For is it not stated: IF CATTLE HAS BROUGHT INDIGNITY [UPON A HUMAN BEING] THERE IS NO LIABILITY,<a id="k35a_3"><sup>3</sup></a>&nbsp; WHEREAS IF THE OWNER CAUSES THE INDIGNITY THERE IS LIABILITY? Now, if we are to put the act of Cattle on a level with that of the owner himself, how are we to find intention [in the case of Cattle]?<a id="k35a_4"><sup>4</sup></a>&nbsp; &mdash; Where, for instance, there was intention to do damage, as stated by the Master<a id="k35a_5"><sup>5</sup></a>&nbsp; that where there was intention to do damage though no intention to insult, [liability for insult will attach]. Raba, however, suggested that the Mishnah here<a id="k35a_6"><sup>6</sup></a>&nbsp; deals with a case of inadvertence, [resembling thus Cattle which acts as a rule without any specific purpose] and [the law<a id="k35a_7"><sup>7</sup></a>&nbsp; was laid down] in accordance with the teaching at the School of Hezekiah. For it was taught at the School of Hezekiah:<a id="k35a_8"><sup>8</sup></a>&nbsp; [Scripture places in juxtaposition] <I>He that killeth a man&nbsp;&hellip; and he that killeth a beast</I><a id="k35a_9"><sup>9</sup></a>&nbsp;&hellip; [to imply that] just as in the case of killing a beast you can make no distinction whether it was inadvertent or malicious, whether intentional or unintentional, whether by way of coming down or by way of coming up,<a id="k35a_10"><sup>10</sup></a>&nbsp; so as to exempt from pecuniary obligation, but [in all cases] there is pecuniary liability,<a id="k35a_11"><sup>11</sup></a>&nbsp; so also in the case of killing man you should make no distinction whether it was inadvertent or malicious, whether intentional or unintentional, whether by way of coming down or by way of coming up so as to impose a pecuniary liability, but [in all cases] there should be exemption from pecuniary obligation.<a id="k35a_12"><sup>12</sup></a>&nbsp; Said the Rabbis to Raba: How can you assume that the ruling in the Mishnah refers to an inadvertent act?<a id="k35a_13"><sup>13</sup></a>&nbsp; Is it not stated there [that were the owner to have set fire to a barn on Sabbath there would be no civil liability] AS HE WOULD BE SUBJECT TO A CAPITAL CHARGE?<a id="k35a_14"><sup>14</sup></a>&nbsp; &mdash; It only means to say this: Since if he would have committed it maliciously he would have been liable to a capital charge, as, e.g., where he had need of the ashes, there should be exemption [from civil liability] even in such a case as this where he did it inadvertently.<a id="k35a_15"><sup>15</sup></a>
</p><p>
	<B><I>MISHNAH</I></B>. IF AN OX WAS PURSUING AN OTHER'S OX WHICH WAS [AFTERWARDS FOUND TO BE] INJURED, AND THE ONE [PLAINTIFF] SAYS, 'IT WAS YOUR OX THAT DID THE DAMAGE, WHILE THE OTHER PLEADS, 'NOT SO, BUT IT WAS INJURED BY A ROCK [AGAINST WHICH IT HAD BEEN RUBBING ITSELF]',<a id="k35a_16"><sup>16</sup></a>&nbsp; THE BURDEN OF PROOF LIES ON THE CLAIMANT. [SO ALSO] WHERE TWO [OXEN] PURSUED ONE AND THE ONE DEFENDANT ASSERTS, 'IT WAS YOUR OX THAT DID THE DAMAGE', WHILE THE OTHER DEFENDANT ASSERTS, 'IT WAS YOUR OX THAT DID THE DAMAGE',
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k35b_1:" And were in the state of <i>Tam</i>, in which case the half-damages are paid only out of the body of the ox that did the damage, as <i>supra</i> p. 73."
,k35b_2:" And the body of the big one should secure the payment of the half damages."
,k35b_3:" And the compensation should thus be made in full."
,k35b_4:" That it is the claimant on whom falls the onus probandi."
,k35b_5:" <i>Infra</i> p. 262 and B.M. 2b, 6a, 98b, 100a; B.B. 141a."
,k35b_6:" In which case not the defendant but only the Court is in doubt."
,k35b_7:" And suggest that where the defendant has been positive even Symmachus admits that the claimant will get nothing unless by proving his case."
,k35b_8:" For in the cases dealt with in the Mishnah the defendant is usually unable to speak positively, as in most cases he was not present at the place when the alleged damage was done; cf. also Tosaf. a.l."
,k35b_9:" Which is apparently a definite defence."
,k35b_10:" For the claim of wheat has been repudiated by the defendant while the claim for barley admitted by him has tacitly been dispensed with by the plaintiff. The very same thing could be argued in the case of the Mishnah quoted above, where the claim was made in respect of the big one or the <i>Mu'ad</i>, and the defence admitted the little one or the <i>Tam</i> respectively."
,k35b_11:" In which case the argument contained in the preceding note could no more be maintained."
,k35b_12:" For surely the plaintiff, by his definite claim in respect of the big one or the <i>Mu'ad</i>, has tacitly waived his claim in respect of the little one or the <i>Tam</i> respectively."
,k35b_13:" Where the defendant pleads that 'the pursued ox was injured by a rock&hellip;'."
,k35b_14:" Which is really an absurdity, to maintain that a plaintiff pleading mere supposition against a defendant submitting a definite denial should in the absence of any evidence be entitled to any payment whatsoever."
,k35b_15:" [How then could R. Hiyya maintain that our Mishnah deals with a case where both were certain in their pleas.]"
,k35b_16:" [If so, what is the objection of R. Papa to R. Hiyya's statement, since even on his view there is a lack of co-ordination between these two clauses in the Mishnah.]"
,k35b_17:" As in the case dealt with in the commencing clause."
,k35b_18:" Which is the case in the concluding clause."
,k35b_19:" Lit., 'are one thing'."
,k35b_20:" R. Papa was therefore loth to explain the commencing clause as dealing with a case where the defence as well as the claim was put forward on a certainty, but preferred to explain it as presenting a law-suit where, though the claim had been put forward positively, the defence was urged tentatively."
,k35b_21:" V. p. 197. n. 2."
,k35b_22:" Shebu. 38b."
,k35b_23:" Which was denied by the defendant."
,k35b_24:" Admitted by the defendant."
,k35b_25:" In the case of the oxen."
,k35b_26:" In which case the principle of complete exemption maintained by Rabbah b. Nathan apparently does not apply."
,k35b_27:" V. p. 196. n. 1. "
}

txt:
<p>
NEITHER OF THE DEFENDANTS WILL BE LIABLE. BUT WHERE BOTH OF THE [PURSUING] OXEN BELONGED TO THE SAME OWNER,<a id="k35b_1"><sup>1</sup></a>&nbsp; LIABILITY WILL ATTACH TO BOTH OF THEM. WHERE, HOWEVER, ONE [OF THE OXEN] WAS BIG AND THE OTHER LITTLE<a id="k35b_1"><sup>1</sup></a>&nbsp; AND THE CLAIMANT MAINTAINS THAT THE BIG ONE DID THE DAMAGE,<a id="k35b_2"><sup>2</sup></a>&nbsp; WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR IT WAS THE LITTLE ONE THAT DID THE DAMAGE', OR AGAIN WHERE ONE [OX] WAS <I>TAM</I> AND THE OTHER <I>MU'AD</I> AND THE CLAIMANT MAINTAINS THAT THE <I>MU'AD</I> DID THE DAMAGE<a id="k35b_3"><sup>3</sup></a>&nbsp; WHILE THE DEFENDANT ASSERTS, 'NOT SO, FOR IT WAS THE <I>TAM</I> THAT DID THE DAMAGE,' THE BURDEN OF PROOF LIES ON THE CLAIMANT. [SO ALSO] WHERE THERE WERE TWO INJURED OXEN, ONE BIG AND ONE LITTLE, SIMILARLY TWO PURSUERS, ONE BIG AND ONE LITTLE, AND THE PLAINTIFF ASSERTS THAT THE BIG ONE INJURED THE BIG ONE AND THE LITTLE ONE THE LITTLE ONE, WHILE THE DEFENDANT CONTENDS, 'NOT SO, FOR [IT WAS] THE LITTLE ONE [THAT INJURED] THE BIG ONE AND THE BIG ONE [THAT INJURED] THE LITTLE ONE'; OR AGAIN WHERE ONE WAS <I>TAM</I> AND THE OTHER <I>MU'AD</I>, AND THE PLAINTIFF MAINTAINS THAT THE <I>MU'AD</I> INJURED THE BIG ONE AND THE <I>TAM</I> THE LITTLE ONE, WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR [IT WAS THE] <I>TAM</I> [THAT INJURED] THE BIG ONE AND THE <I>MU'AD</I> [THAT INJURED] THE LITTLE ONE,' THE BURDEN OF PROOF FALLS ON THE CLAIMANT.
</p><p>
	<B><I>GEMARA</I></B>. R. Hiyya b. Abba stated: This [Mishnaic ruling]<a id="k35b_4"><sup>4</sup></a>&nbsp; shows that [in this respect] the colleagues differed from Symmachus who maintained<a id="k35b_5"><sup>5</sup></a>&nbsp; that money of which the ownership cannot be decided has to be equally divided [between the two parties]. Said R. Abba b. Memel to R. Hiyya b. Abba: Did Symmachus maintain his view even where the defendant was as positive as the claimant?<a id="k35b_6"><sup>6</sup></a>&nbsp; &mdash; He replied: Yes, Symmachus maintained his view even where the defendant was as positive as the claimant. But [even if you assume otherwise],<a id="k35b_7"><sup>7</sup></a>&nbsp; how do you know that the Mishnah is here dealing with a case where the defendant was as positive as the claimant?<a id="k35b_8"><sup>8</sup></a>&nbsp; &mdash; Because it says, THE PLAINTIFF STATES 'IT WAS YOUR OX THAT DID THE DAMAGE', WHILE THE DEFENDANT PLEADS 'NOT SO&hellip;'<a id="k35b_9"><sup>9</sup></a>&nbsp; R. Papa, however, demurred to this, saying: If in the case presented in the opening clause the defendant was as positive as the claimant, we must suppose that in the case presented in the concluding clause the defendant was similarly as positive as the claimant. [Now,] read the concluding clause; WHERE, HOWEVER, ONE OX WAS BIG AND THE OTHER LITTLE, AND THE PLAINTIFF ASSERTS THAT THE BIG ONE DID THE DAMAGE WHILE THE DEFENDANT PLEADS 'NOT SO, FOR IT WAS THE LITTLE ONE THAT DID THE DAMAGE'; OR AGAIN WHERE ONE OX WAS <I>TAM</I> AND THE OTHER <I>MU'AD</I>, AND THE CLAIMANT MAINTAINS THAT THE <I>MU'AD</I> DID THE DAMAGE, WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR IT WAS THE <I>TAM</I> THAT DID THE DAMAGE', THE BURDEN OF PROOF IS ON THE CLAIMANT. [Now this implies, does it not, that] where he does not produce evidence he will get paid in accordance with the pleading of the defendant. May it now not be argued that this [ruling] is contrary to the view of Rabbah b. Nathan, who said that where the plaintiff claims wheat and the defendant admits barley, he is not liable [for either of them]?<a id="k35b_10"><sup>10</sup></a>&nbsp; &mdash; You conclude then that the Mishnah deals with a case where one party was certain and the other doubtful.<a id="k35b_11"><sup>11</sup></a>&nbsp; Which then was certain and which doubtful? It could hardly be suggested that it was the plaintiff who was certain, and the defendant who was doubtful, for would this still not be contrary to the view of Rabbah b. Nathan?<a id="k35b_12"><sup>12</sup></a>&nbsp; It would therefore seem that it was the plaintiff who was doubtful<a id="k35b_11"><sup>11</sup></a>&nbsp; and the defendant certain. And if the concluding clause deals with a case where the plaintiff was doubtful and the defendant certain, we should suppose that the opening clause<a id="k35b_13"><sup>13</sup></a>&nbsp; likewise deals with a case where the plaintiff was doubtful and the defendant certain. But could Symmachus indeed have applied his principle even to such a case,<a id="k35b_14"><sup>14</sup></a>&nbsp; that the Mishnah thought fit to let us know that this view ought not to be accepted? &mdash; [Hence it must be said:] No; but that the concluding clause [deals with a case where] the plaintiff was doubtful and the defendant certain, and the opening clause<a id="k35b_13"><sup>13</sup></a>&nbsp; [presents a case where it was] the plaintiff who was certain and the defendant doubtful.<a id="k35b_15"><sup>15</sup></a>&nbsp; But [even in that case] the opening clause is not co-ordinate with the concluding clause?<a id="k35b_16"><sup>16</sup></a>&nbsp; &mdash; I can reply that [a case where the plaintiff is] certain and [the defendant] doubtful<a id="k35b_17"><sup>17</sup></a>&nbsp; and [a case where the claimant is] doubtful and [the defendant] certain<a id="k35b_18"><sup>18</sup></a>&nbsp; are co-ordinate<a id="k35b_19"><sup>19</sup></a>&nbsp; whereas [a case where the claimant is] certain and [the defendant also] certain is not co-ordinate with [a case where the claimant is] doubtful and [the defendant] certain.<a id="k35b_20"><sup>20</sup></a>
</p><p>
	The above text states: 'Rabbah b. Nathan said: Where the plaintiff claimed wheat and the defendant admitted barley, he is not liable [for either of them].'<a id="k35b_21"><sup>21</sup></a>&nbsp; What does this tell us? Have we not already learnt [in a Mishnah]: where the plaintiff claimed wheat and the defendant admitted barley he is not liable?<a id="k35b_22"><sup>22</sup></a>&nbsp; If we had only [the Mishnah] there<a id="k35b_22"><sup>22</sup></a>&nbsp; to go by, I might have argued that the exemption was only from the value of the wheat,<a id="k35b_23"><sup>23</sup></a>&nbsp; while there would still be liability for the value of barley;<a id="k35b_24"><sup>24</sup></a>&nbsp; we are therefore told by Rabbah b. Nathan that the exemption is complete.
</p><p>
	We have learnt: WHERE THERE WERE TWO INJURED OXEN, ONE BIG AND THE OTHER LITTLE etc. [Now this implies that] where he does not produce evidence he will get paid in accordance with the pleading of the defendant. But why not apply here [the principle of complete exemption laid down in the case of] wheat and barley? &mdash; The plaintiff<a id="k35b_25"><sup>25</sup></a>&nbsp; is entitled to get paid [only where he produces evidence to substantiate the claim], but will have nothing at all [where he fails to do so]. But has it not been taught; He will be paid for [the injury done to] the little one out of the body of the big and for [the injury done to] the big one out of the body of the little one? &mdash; Only where he had already seized them.<a id="k35b_26"><sup>26</sup></a>&nbsp; We have learnt: IF ONE WAS <I>TAM</I> AND THE OTHER <I>MU'AD</I>, AND THE PLAINTIFF CLAIMS THAT THE <I>MU'AD</I> INJURED THE BIG ONE<a id="k35b_27"><sup>27</sup></a>&nbsp; AND THE <I>TAM</I> THE LITTLE ONE WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR [IT WAS THE] <I>TAM</I> [THAT INJURED] THE BIG ONE AND THE <I>MU'AD</I> [THAT INJURED] THE LITTLE ONE', THE BURDEN OF PROOF FALLS ON THE CLAIMANT. [Now this implies that] where he does not produce evidence he will get paid in accordance with the pleading of the plaintiff. But why should [the principle of complete exemption laid down in the case of] wheat and barley not be applied here? &mdash; 
</P>


lvr: 41
dfh: a
notes:
 ntes={k37a_1:" Cf. <i>supra</i> p. 48, n. 4 and <a href=\"../tglossary.html\">Glos.</a>"
,k37a_2:" V. p. 204, n. 16."
,k37a_3:" Lit., 'father'."
,k37a_4:" As stated by the anonymous view."
,k37a_5:" The disciples."
,k37a_6:" Apparently we are to supply the words, 'what is the rule regarding it' the remark being intended as a question. But v. <i>infra</i> p. 208."
,k37a_7:" As indeed rendered in the Mishnaic text."
,k37a_8:" The Mishnah should accordingly open thus: 'If an ox is <i>Mu'ad</i> to do damage to its own species, it is not (therefore) <i>Mu'ad</i> to any other species (of animals)' etc., etc."
,k37a_9:" E.g., by letting other animals pass in front of it and seeing that it does not gore them."
,k37a_10:" Since it is much less likely to attack big animals than small ones. Why then, on R. Papa's reading, have this clause at all in the Mishnah?"
,k37a_11:" Which it would be more ready to attack than human beings."
,k37a_12:" Cf. <i>supra</i> p. 119."
,k37a_13:" In contradiction to the view of R. Zebid."
,k37a_14:" I.e., we have to read their remark as a statement and not as a question."
,k37a_15:" After they had already decided the question in the wording of the problem."
,k37a_16:" V. p. 205, n. 6."
,k37a_17:" V. p. 206, n. 1"
,k37a_18:" Cf. <i>supra</i> p. 73."
,k37a_19:" That in absence of knowledge to the contrary it is not <i>mu'ad</i>."
,k37a_20:" And we should not require three gorings for each. "
}

txt:
<p>
do not require a <i>prosbul</i>:<a id="k37a_1"><sup>1</sup></a>&nbsp; and so also Rami b. Hama learned that orphans do not require a <i>prosbul</i>,<a id="k37a_2"><sup>2</sup></a>&nbsp; since Rabban Gamaliel and his Court of law are the representatives<a id="k37a_3"><sup>3</sup></a>&nbsp; of orphans.
</p><p>
	The scoundrel Hanan, having boxed another man's ear, was brought before R. Huna, who ordered him to go and pay the plaintiff half a <i>zuz</i>.<a id="k37a_4"><sup>4</sup></a>&nbsp; As [Hanan] had a battered <i>zuz</i> he desired to pay the plaintiff the half <i>zuz</i> [which was due] out of it. But as it could not be exchanged, he slapped him again and gave him [the whole <i>zuz</i>].
</p><p>
	<B><I>MISHNAH</I></B>. IF AN OX WAS <I>MU'AD</I> TO DO DAMAGE TO ITS OWN SPECIES BUT WAS NOT <I>MU'AD</I> TO DO DAMAGE TO ANY OTHER SPECIES [OF ANIMALS] OR IF IT WAS <I>MU'AD</I> TO DO DAMAGE TO THE HUMAN SPECIES BUT NOT <I>MU'AD</I> TO ANY SPECIES OF BEASTS, OR IF IT WAS <I>MU'AD</I> TO SMALL [CATTLE] BUT NOT <I>MU'AD</I> TO LARGE [CATTLE], IN RESPECT OF DAMAGE DONE TO THE SPECIES TO WHICH IT WAS <I>MU'AD</I> THE PAYMENT WILL HAVE TO BE IN FULL, BUT IN RESPECT OF DAMAGE DONE TO THAT TO WHICH IT WAS NOT <I>MU'AD</I>, THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. THEY<a id="k37a_5"><sup>5</sup></a>&nbsp; SAID BEFORE R. JUDAH: HERE IS ONE WHICH WAS <I>MU'AD</I> TO DO DAMAGE ON SABBATH DAYS BUT WAS NOT <I>MU'AD</I> TO DO DAMAGE ON WEEK DAYS.<a id="k37a_6"><sup>6</sup></a>&nbsp; HE SAID TO THEM: FOR DAMAGE DONE ON SABBATH DAYS THE PAYMENT WILL HAVE TO BE IN FULL, WHEREAS FOR DAMAGE DONE ON WEEK DAYS THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. WHEN [CAN THIS OX] RETURN TO THE STATE OF <I>TAM</I>? WHEN IT REFRAINS [FROM GORING] ON THREE [CONSECUTIVE] SABBATH DAYS.
</p><p>
	<B><I>GEMARA</I></B>. It was stated: R. Zebid said: The proper reading of the Mishnah [in the first clause is], 'BUT WAS NOT <I>MU'AD</I>&nbsp;&hellip;';<a id="k37a_7"><sup>7</sup></a>&nbsp; whereas R. Papa said: The proper reading is 'IT IS NOT [THEREFORE] <I>MU'AD</I> &hellip; '<a id="k37a_8"><sup>8</sup></a>&nbsp; R. Zebid, who said that' &hellip; BUT WAS NOT <I>MU'AD</I>&nbsp;&hellip;'is the proper reading of the Mishnah, maintained that until we know the contrary<a id="k37a_9"><sup>9</sup></a>&nbsp; such an ox is considered <i>Mu'ad</i> [to all species]. But R. Papa, who said that '&hellip; IT IS NOT [THEREFORE] <I>MU'AD</I> &hellip; is the correct reading of the Mishnah, maintained that even though we do not know the contrary the ox is not considered <i>mu'ad</i> [save to the species to which it had actually been <i>Mu'ad</i>]. R. Zebid inferred his view from the later clause [of the Mishnah], whereas R. Papa inferred his view from the opening clause. R. Zebid inferred his view from the later clause which states, IF IT WAS <I>MU'AD</I> TO SMALL [CATTLE] BUT NOT <I>MU'AD</I> TO LARGE [CATTLE]. Now this is quite in order if you maintain that BUT WAS NOT MU'AD' is the reading in the Mishnah, implying thus that in the absence of definite knowledge to the contrary the ox should be considered <i>Mu'ad</i> [to all species]. This clause would then teach us [the further point] that even where the ox was <i>mu'ad</i> to small [cattle] it would be <i>mu'ad</i> also to large [cattle] in the absence of knowledge to the contrary. But if you maintain that '&hellip; IT IS NOT [THEREFORE] <I>MU'AD</I>&nbsp;&hellip;' is the correct reading of the Mishnah, implying that even though we know nothing to the contrary the ox would not be considered <i>mu'ad</i>, could it not then be argued thus: Since in the case where the ox was <i>mu'ad</i> to do damage to small creatures of one species it would not be considered <i>mu'ad</i> with reference to small creatures of another species even if we have no definite knowledge to the contrary, was there any need to state that where the ox was <i>mu'ad</i> to small [cattle] it would not be considered <i>mu'ad</i> to big [cattle]?<a id="k37a_10"><sup>10</sup></a>&nbsp; &mdash; R. Papa, however, may say to you: It was necessary to state this, since otherwise you might have been inclined to think that since the ox started to attack a particular species, it was going to attack the whole of that species without making a distinction between the large creatures of that species and the small creatures of that species, it was therefore necessary to let us know that [with reference to the large creatures] it would not be considered <i>Mu'ad</i>. R. Papa on the other hand based his view on the opening clause, which states: WHERE IT WAS <I>MU'AD</I> TO THE HUMAN SPECIES IT WOULD NOT BE <I>MU'AD</I> TO ANY SPECIES OF BEASTS. Now this would be quite in order if you maintain that 'IT IS NOT [THEREFORE] <I>MU'AD</I>&nbsp;&hellip;' is the text in the Mishnah denoting that even where we have no knowledge to the contrary the ox would not be considered <i>mu'ad</i> [to other species]; it was therefore necessary to make it known to us that even where the ox was <i>mu'ad</i> to the human species and though we knew nothing to the contrary, it would still not be <i>Mu'ad</i> to animals. But if you maintain that '&hellip; BUT WAS NOT <I>MU'AD</I>&nbsp;&hellip;' is the correct reading of the Mishnah, implying that in the absence of knowledge to the contrary the ox would be considered <i>mu'ad</i> [to all species], could we not then argue thus: Since in the case where the ox was <i>Mu'ad</i> to one species of beast it would in the absence of knowledge to the contrary be considered <i>mu'ad</i> also to any other species of beast, was there any need to state that where the ox was <i>mu'ad</i> to the human species it would also be considered <i>mu'ad</i> to animals?<a id="k37a_11"><sup>11</sup></a>&nbsp; &mdash; R. Zebid may, however, say to you: The opening clause refers to the reversion of the ox to the state of <i>Tam</i>, as, e.g., where the ox had been <i>mu'ad</i> to man and <i>mu'ad</i> to beast but has subsequently refrained from [doing damage to] beast, having stood near cattle on three different occasions without goring. It might then have been argued that since it has not refrained from injuring men, its refraining from goring cattle should [in the eye of the law] not be considered a proper reversion [to the state of <i>Tam</i>].<a id="k37a_12"><sup>12</sup></a>&nbsp; We are therefore told that the refraining from goring cattle is in fact a proper reversion.
</p><p>
	An objection was raised [from the following]: Symmachus says: If an ox is <i>Mu'ad</i> to man it is also <i>Mu'ad</i> to beast, <i>a fortiori</i>: if it is <i>Mu'ad</i> to injure man, how much more so is it <i>Mu'ad</i> to injure beast? Does this not prove that the view of the previous Tanna was that it would not be <i>Mu'ad</i>?'<a id="k37a_13"><sup>13</sup></a>&nbsp; &mdash; R. Zebid may, however, say to you: Symmachus was referring to the reversion to the state of <i>Tam</i>, and what he said to the previous Tanna was this: 'Referring to your statement that the refraining [from goring] beasts is a proper reversion, [I maintain that] the refraining [from goring] beasts is not a proper reversion, [and can prove it] by means of an argument <i>a fortiori</i> from the case of man. For since it has not refrained from [attacking] man, will it not assuredly continue attacking beasts?
</p><p>
	R. Ashi said: Come and hear: THEY SAID BEFORE R. JUDAH: HERE IS ONE WHICH IS <I>MU'AD</I> TO DO DAMAGE ON SABBATH DAYS BUT NOT <I>MU'AD</I> TO DO DAMAGE ON WEEK DAYS. HE SAID TO THEM: FOR DAMAGE DONE ON SABBATH DAYS, THE PAYMENT WILL HAVE TO BE IN FULL, WHEREAS FOR DAMAGE DONE ON WEEK DAYS THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. Now this is quite in order if you maintain that '&hellip; BUT WAS NOT <I>MU'AD</I>&nbsp;&hellip;' is the correct reading. The disciples were thus putting a question before him and he was replying to them accordingly. But If you contend that '&hellip; IS NOT [THEREFORE] <I>MU'AD</I>&nbsp;&hellip;' is the correct text, [would it not appear as if his disciples] were giving instruction to him?<a id="k37a_14"><sup>14</sup></a>&nbsp; Again, what would then be the meaning of his reply to them?<a id="k37a_15"><sup>15</sup></a>&nbsp; R. Jannai thereupon said: The same can also be inferred from the opening clause, where it is stated: IN RESPECT OF DAMAGE DONE TO THE SPECIES TO WHICH IT WAS <I>MU'AD</I>, THE PAYMENT WILL HAVE TO BE IN FULL, BUT IN RESPECT OF DAMAGE DONE TO THAT TO WHICH IT WAS NOT <I>MU'AD</I>, THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. Now, this would be in order if you maintain that 'BUT IT WAS NOT <I>MU'AD</I>&nbsp;&hellip;'<a id="k37a_16"><sup>16</sup></a>&nbsp; is the correct text, in which case the clause just quoted would be explanatory. But if you maintain that '&hellip; IT IS NOT [THEREFORE] <I>MU'AD</I>&nbsp;&hellip;'<a id="k37a_17"><sup>17</sup></a>&nbsp; is the correct text, this statement is complete in itself, and why then the further statement 'IN RESPECT OF DAMAGE DONE TO THE SPECIES TO WHICH IT WAS <I>MU'AD</I>, THE PAYMENT WILL HAVE TO BE IN FULL, BUT IN RESPECT OF DAMAGE DONE TO THAT TO WHICH IT WAS NOT <I>MU'AD</I>, THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY? Have we not been told before how that in the case of <i>mu'ad</i> the payment is for half the damage whereas in the case of <i>Mu'ad</i> the payment has to be in full?<a id="k37a_18"><sup>18</sup></a>&nbsp; Yet even if you adopt the view of R. Papa,<a id="k37a_19"><sup>19</sup></a>&nbsp; where the animal gored an ox, an ass and a camel [successively] it would still become <i>mu'ad</i> to all [species of beasts].<a id="k37a_20"><sup>20</sup></a>
</p><p>
	Our Rabbis taught: If the animal sees an ox and gores it, another ox and does not gore it, a third ox and gores it, a fourth ox and does not gore it, a fifth ox and gores it, a sixth ox and does not gore it, the animal becomes <i>Mu'ad</i> to alternate oxen.
</p><p>
	Our Rabbis taught: If an animal sees an ox and gores it, an ass and does not gore it, a horse and gores it a camel and does not gore it, a mule and gores it, a wild ass and does not gore it, the animal becomes <i>Mu'ad</i> to alternate beasts of all species.
</p><p>
	The following question was raised: If the animal [successively] gored
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k37b_1:" Assuming that in the previous case we decide that the last ox will be counted with the first two oxen."
,k37b_2:" According to Rab it would become <i>Mu'ad</i> to gore every month by missing a day, so that if in the fourth month it gores on the eighteenth day, the compensation would have to be in full, whereas according to Samuel the compensation would still be a half, as the animal could not become <i>Mu'ad</i> until the act of missing a day is repeated three times, so that full compensation would begin with the goring on the nineteenth day of the fifth month."
,k37b_3:" Nid. 67a."
,k37b_4:" [MS.M. adds 'in skipping', cf. Rashi.]"
,k37b_5:" And the menstruation could accordingly be expected on the eighteenth day of the fourth month."
,k37b_6:" I.e., until in the fourth month the menstruation recurs on the eighteenth day, in which case it would be expected on the nineteenth day of the fifth month,"
,k37b_7:" So that full compensation should begin with the fifth occasion."
,k37b_8:" And full liability will commence with the fourth goring at the sound of a trumpet."
,k37b_9:" [Mishnah text: 'of an Israelite'.]"
,k37b_10:" Lit., 'ox'."
,k37b_11:" Ex. XXI, 35."
,k37b_12:" As Canaanites did not recognise the laws of social justice, they did not impose any liability for damage done by cattle. They could consequently not claim to be protected by a law they neither recognised nor respected, cf. J. T. a.l. and Maim. Yad, Niz. Mam. VIII, 5. [In ancient Israel as in the modern state the legislation regulating the protection of life and property of the stranger was, as Guttmann. M. (HUCA. III 1 ff.) has shown, on the basis of reciprocity. Where such <font style=\"background-color:#A0FFFF\">reciprocity was not recognised, the stranger could not claim to enjoy the same protection of the law as the citizen</font>.]"
,k37b_13:" I.e., the ox that did the damage."
,k37b_14:" So that they should guard their cattle from doing damage. (Maim. <i>loc. cit</i>.)"
,k37b_15:" V. p. 211, n. 5."
,k37b_16:" Cf. <i>supra</i> p. 23."
,k37b_17:" To mean the ox of his peer, of his equal. [This would not exclude Gentiles in general as the term [H], <I>his neighbour</I> applies also to them (cf. Ex. XI, 2); cf. next page.]"
,k37b_18:" R. Simeon"
,k37b_19:" V. <i>supra</i> p. 126."
,k37b_20:" Viz. consecrated cattle."
,k37b_21:" Viz. private cattle."
,k37b_22:" As in the case of <I>mu'ad</I> where in contradistinction to <i>Tam</i> no mention was made of 'his neighbour': cf. Ex. XXI, 36. "
}

txt:
<p>
one ox, a [second] ox, and a [third] ox, an ass, and a camel, what is the legal position? Shall the last ox be counted together with the [first two] oxen, in which case the animal that gored will still be <i>Mu'ad</i> only to oxen whereas to any other species it will not be considered <i>Mu'ad</i>, or shall perhaps the last ox be counted together with the ass and camel, so that the animal that gored will become <i>Mu'ad</i> to all species [of beasts]? [Again,<a id="k37b_1"><sup>1</sup></a>&nbsp; where an animal has successively gored] an ass, a camel, an ox, another ox, and a [third] ox, what is the legal position? Shall the first ox be counted together with the ass and camel, so that the animal that gored will become <i>Mu'ad</i> to all species [of beasts], or shall it perhaps [rather] be counted together with the [other] oxen, in which case it will still be <i>Mu'ad</i> only to oxen, but not <i>Mu'ad</i> to any other species [of beasts]? [Again, where the consecutive gorings took place on] one Sabbath, [the next] Sabbath and [the third] Sabbath, and then on the [subsequent] Sunday and Monday, what is the legal position? Shall the last Sabbath be counted together with the [first two] Sabbaths, in which case the ox that gored would still be <i>Mu'ad</i> only for Sabbaths, whereas in respect of damage done on week days it would not yet be considered <i>mu'ad</i>, or shall it perhaps be counted together with Sunday and Monday and thus become <i>Mu'ad</i> in respect of all the days [of the week]? [Again, where the consecutive gorings took place on] a Thursday, the eve of Sabbath and the Sabbath, then on [the next] Sabbath and [the third] Sabbath, what is the legal position? Shall the first Sabbath be counted together with Thursday and the eve of Sabbath and the goring ox thus become <i>mu'ad</i> for all days, or shall perhaps the first Sabbath be counted together with the subsequent Sabbaths, in which case the goring ox would become <i>mu'ad</i> only for Sabbaths? &mdash; These questions must stand over.
</p><p>
	If [an ox has] gored an ox on the fifteenth day of a particular month, and [another ox] on the sixteenth day of the next month, and [a third ox] on the seventeenth day of the third month, there would he a difference of opinion between Rab and Samuel.<a id="k37b_2"><sup>2</sup></a>&nbsp; For it was stated:<a id="k37b_3"><sup>3</sup></a>&nbsp; If the symptom of menstruation has once been noticed on the fifteenth day of a particular month, [then] on the sixteenth day of the next month, and [then] on the seventeenth day of the third month, Rab maintained that a periodical recurrence<a id="k37b_4"><sup>4</sup></a>&nbsp; has thereby been established,<a id="k37b_5"><sup>5</sup></a>&nbsp; whereas Samuel said [that this periodicity is not established] until the skipping is repeated [yet] a third time.<a id="k37b_6"><sup>6</sup></a>
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	Raba said: Where an ox upon hearing the sound of a trumpet gores and upon hearing [again] the sound of a trumpet gores [a second time], and upon hearing [again] the sound of a trumpet gores [a third time], the ox will become <i>Mu'ad</i> with reference to the hearing of the sound of trumpets. Is not this self-evident? &mdash; You might have supposed that [the goring at] the first [hearing of the sound of the] trumpet [should not be taken into account as it] might have been due merely to the sudden fright that came over the ox.<a id="k37b_7"><sup>7</sup></a>&nbsp; We are therefore told [that it would be taken into account].<a id="k37b_8"><sup>8</sup></a>
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	<B><I>MISHNAH</I></B>. IN THE CASE OF PRIVATE OWNER'S<a id="k37b_9"><sup>9</sup></a>&nbsp; CATTLE<a id="k37b_10"><sup>10</sup></a>&nbsp; GORING AN OX CONSECRATED TO THE TEMPLE, OR CONSECRATED CATTLE GORING A PRIVATE OX, THERE IS NO LIABILITY, FOR IT IS STATED: THE OX OF HIS NEIGHBOUR,<a id="k37b_11"><sup>11</sup></a>&nbsp; NOT [THAT IS TO SAY] AN OX CONSECRATED TO THE TEMPLE. <font style="background-color:#A0FFFF">WHERE AN OX BELONGING TO AN ISRAELITE HAS GORED AN OX BELONGING TO A CANAANITE, THERE IS NO LIABILITY</font>,<a id="k37b_12"><sup><font style="background-color:#FF9DFF">12</font></sup></a>&nbsp; WHEREAS WHERE AN OX BELONGING TO A <font style="background-color:#A0FFFF">CANAANITE</font> GORES AN OX BELONGING TO AN ISRAELITE, WHETHER WHILE <I>TAM</I> OR <I>MU'AD</I>,<a id="k37b_13"><sup>13</sup></a>&nbsp; THE COMPENSATION IS TO BE MADE IN FULL.<a id="k37b_14"><sup>14</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. The [ruling in the] Mishnah is not in accordance with [the view of] R. Simeon b. Menasya; for it was taught: Where a private ox has gored consecrated cattle or where consecrated cattle has gored a private ox, there is not liability, as it is stated: The ox of his neighbour,<a id="k37b_15"><sup>15</sup></a>&nbsp; not [that is to say] an ox consecrated to the Temple. R. Simeon b. Menasya, however, says: Where consecrated cattle has gored a private ox there is no liability, but if a private ox has gored consecrated cattle, whether while <i>Tam</i> or <i>mu'ad</i>, payment is to be made for full damage.<a id="k37b_16"><sup>16</sup></a>&nbsp; I might ask, what was the principle adopted by R. Simeon? If the implication of 'his neighbour'<a id="k37b_15"><sup>15</sup></a>&nbsp; has to be insisted upon,<a id="k37b_17"><sup>17</sup></a>&nbsp; why then even in the case of a private ox goring consecrated cattle should there not be exemption? If on the other hand the implication of 'his neighbour' has not to be insisted upon, why then in the case of consecrated cattle goring a private ox should there also not be liability? If, however, you argue that he<a id="k37b_18"><sup>18</sup></a>&nbsp; does in fact maintain that the implication of 'his neighbour' has to be insisted upon, yet where a private ox has gored consecrated cattle there is a special reason for liability inferred by means of an <i>a fortiori</i> argument from the case of private cattle [as follows]: If where a private ox has gored private cattle there is liability, should not there be all the more liability where it has gored consecrated cattle? Why then [did he] not employ the principle of Dayyo<a id="k37b_19"><sup>19</sup></a>&nbsp; [i.e. that it was sufficient] that the object<a id="k37b_20"><sup>20</sup></a>&nbsp; to which the inference is made should be on the same footing as the object from which it was made?<a id="k37b_21"><sup>21</sup></a>&nbsp; And since <i>Tam</i> involves there the payment of half damages, [why then should it not] here also involve the payment of half damages [only]? &mdash; Resh Lakish therefore said: Originally all cases came under the law of full compensation;<a id="k37b_22"><sup>22</sup></a>&nbsp; when Scripture therefore particularised 'his neighbour' in the case of <i>Tam</i>, it  meant that it was only where damage had been done to a neighbour that <i>Tam</i> would involve half damages [only], thus implying that where the damage had been done to consecrated property, whether by <i>Tam</i> or <i>Mu'ad</i>, the compensation must be in full;
</P>


lvr: 41
dfh: a
notes:
 ntes={k38a_1:" V. p. 212, n. 8."
,k38a_2:" Hab. III, 6."
,k38a_3:" V. A.Z. (Sonc. ed.) p. 5, n. 7."
,k38a_4:" The exemption from the protection of the civil law of Israel thus referred only to the Canaanites and their like who had wilfully rejected the elementary and basic principles of civilised humanity."
,k38a_5:" Deut. XXXIII, 2. [The Mount at which God appeared to offer the Law to the nations, who, however, refused to accept it. V. A.Z. 2b.]"
,k38a_6:" On account of what occurred thereat."
,k38a_7:" V. p. 211, n. 6."
,k38a_8:" Cf. A. Z. 2a."
,k38a_9:" Hab. III, 2."
,k38a_10:" V. p. 213, n. 3."
,k38a_11:" As described in Deut. II, 10-23."
,k38a_12:" I.e., wa-yatter."
,k38a_13:" Lev. XI, 21."
,k38a_14:" <I>Targum Onkelos</i>, the Aramaic version of the Hebrew Bible; cf. J.E. s.v."
,k38a_15:" [Ms.M.: Rabina.]"
,k38a_16:" Sanh. 59a; A. Z. 3a."
,k38a_17:" Lev. XVIII, 5."
,k38a_18:" <i>Infra</i> p. 501. and Kid. 31a."
,k38a_19:" [For the idea underlying this dictum v. A.Z. (Sonc. ed.) p. 6, n. 1.]"
,k38a_20:" V. p. 211, n. 6."
,k38a_21:" [The same incident is related with some variations in J.B.K. IV, 4, and Sifre on Deut. XXXIII, 3, where R. Gamaliel (II) is mentioned as the Sage before whom the Commissioners appeared, Graetz, Geschichte, IV, 108, places this in the days of Domitian (81-96) whose distrust of the Jews led him to institute an inquisition into their beliefs and teachings; Halevy, Doroth I.e. 350, in the days of Nerva who wished to find out whether there was any truth in the slander against the Jews encouraged by Domitian.]"
,k38a_22:" I.e., Babylonian Rabbis."
,k38a_23:" Deut. II, 9."
,k38a_24:" Cf. Num. XXII, 4."
,k38a_25:" Ibid XXV, 17. "
}

txt:
<p>
for if this was not its intention, Scripture should have inserted [the expression] 'his neighbour' in the text dealing with <i>Mu'ad</i>.<a id="k38a_1"><sup>1</sup></a>
</p><p>
	WHERE AN OX BELONGING TO AN ISRAELITE HAS GORED AN OX BELONGING TO A CANAANITE THERE IS NO LIABILITY etc. But I might here assert that you are on the horns of a dilemma. If the implication of 'his neighbour' has to be insisted upon, then in the case of an ox of a Canaanite goring an ox of an Israelite, should there also not be exemption? If [on the other hand] the implication of 'his neighbour' has not to be insisted upon, why then even in the case of an ox of an Israelite goring an ox of a Canaanite, should there not be liability? &mdash; R Abbahu thereupon said: The Writ says, <I>He stood and measured the earth; he beheld and drove asunder the nations</I>,<a id="k38a_2"><sup>2</sup></a>&nbsp; [which may be taken to imply that] God beheld the seven commandments<a id="k38a_3"><sup>3</sup></a>&nbsp; which were accepted by all the descendants of Noah, but since they did not observe them, He rose up and declared them to be outside the protection of the civil law of Israel [with reference to damage done to cattle by cattle].<a id="k38a_4"><sup>4</sup></a>&nbsp; R. Johanan even said that the same could be inferred from this [verse], He shined forth from Mount Paran,<a id="k38a_5"><sup>5</sup></a>&nbsp; [implying that] from Paran<a id="k38a_6"><sup>6</sup></a>&nbsp; He exposed their money to Israel. The same has been taught as follows: If the ox of an Israelite gores an ox of a Canaanite there is no liability,<a id="k38a_7"><sup>7</sup></a>&nbsp; but if an ox of a Canaanite gores an ox of an Israelite whether the ox [that did the damage] was <i>Tam</i> or whether it had already been Mu 'ad, the payment is to be in full, as it is said: <I>He stood and measured the earth, he beheld and drove asunder the nations</I>,<a id="k38a_2"><sup>2</sup></a>&nbsp; and again, <I>He shined forth from Mount Paran</I>.<a id="k38a_5"><sup>5</sup></a>&nbsp; Why this further citation? &mdash; [Otherwise] you might perhaps think that the verse <I>'He stood and measured the earth'</I> refers exclusively to statements [on other subjects] made by R. Mattena and by R. Joseph; come therefore and hear: <I>'He shined forth from Mount Paran</I>,' implying that from Paran<a id="k38a_8"><sup>8</sup></a>&nbsp; he exposed their money to Israel.
</p><p>
	What was the statement made by R. Mattena [referred to above]? &mdash; It was this. R. Mattena said: <I>He stood and measured the earth; He beheld</I> etc.<a id="k38a_9"><sup>9</sup></a>&nbsp; What did He behold? He beheld the seven commandments<a id="k38a_10"><sup>10</sup></a>&nbsp; which were accepted by all the descendants of Noah, and since [there were some clans that] rejected them, He rose up and exiled them from their lands.<a id="k38a_11"><sup>11</sup></a>&nbsp; But how can the word in the text<a id="k38a_12"><sup>12</sup></a>&nbsp; be [etymologically] explained to mean 'exile'? &mdash; Here it is written '"<I>wa-yatter" the nations'</I> and in another place it is [similarly] written, '"<I>le-natter" withal upon the earth</I>,'<a id="k38a_13"><sup>13</sup></a>&nbsp; which is rendered in the <I>Targum</I><a id="k38a_14"><sup>14</sup></a>&nbsp; 'to leap withal upon the earth'.
</p><p>
	What was the statement made by R. Joseph [referred to above]? &mdash; It was this. R. Joseph said: <I>'He stood and measured the earth; he beheld'</I> etc. What did He behold? He beheld the seven commandments which had been accepted by all the descendants of Noah, and since [there were clans that] rejected them He rose up and granted them exemption. Does this mean that they benefited [by breaking the law]? And if so, will it not be a case of a sinner profiting [by the transgression he committed]? &mdash; Mar the son of Rabana<a id="k38a_15"><sup>15</sup></a>&nbsp; thereupon said: 'It only means that even were they to keep the seven commandments [which had first been accepted but subsequently rejected by them] they would receive no reward.' Would they not? But it has been taught:<a id="k38a_16"><sup>16</sup></a>&nbsp; 'R. Meir used to say, Whence can we learn that even where a Gentile occupies himself with the study of the Torah he equals [in status] the High Priest? We find it stated:&nbsp;&hellip; <I>which if a man do he shall live in them</I>;<a id="k38a_17"><sup>17</sup></a>&nbsp; it does not say "priests, Levites and Israelites", but "<I>a man</I>", which shows that even if a Gentile occupies himself with the study of the Torah he equals [in status] the High Priest.' &mdash; I mean [in saying that they would receive no reward] that they will receive reward not like those who having been enjoined perform commandments, but like those who not having been enjoined perform good deeds: for R. Hanina has stated:<a id="k38a_18"><sup>18</sup></a>&nbsp; Greater is the reward of those who having been enjoined do good deeds than of those who not having been enjoined [but merely out of free will] do good deeds.<a id="k38a_19"><sup>19</sup></a>
</p><p>
	Our Rabbis taught: The Government of Rome had long ago sent two commissioners to the Sages of Israel with a request to teach them the Torah. It was accordingly read to them once, twice and thrice. Before taking leave they made the following remark: We have gone carefully through your Torah, and found it correct with the exception of this point, viz. your saying that if an ox of an Israelite gores an ox of a Canaanite there is no liability,<a id="k38a_20"><sup>20</sup></a>&nbsp; whereas if the ox of a Canaanite gores the ox of an Israelite, whether <i>Tam</i> or Mu 'ad, compensation has to be paid in full. In no case can this he right. For if the implication of <I>'his neighbour'</I> has to be insisted upon, why then in the case of an ox of a Canaanite goring an ox of an Israelite should there also not be exemption? If [on the other hand] the implication of 'his neighbour' has not to be insisted upon, why then even in the case of an ox of an Israelite goring an ox of a Canaanite, should there not be liability? We will, however, not report this matter to our Government.<a id="k38a_21"><sup>21</sup></a>
</p><p>
	When R. Samuel b. Judah lost a dauther the Rabbis<a id="k38a_22"><sup>22</sup></a>&nbsp; said to 'Ulla: 'Let us go in and console him.' But he answered them: 'What have I to do with the consolation of the Babylonians,<a id="k38a_22"><sup>22</sup></a>&nbsp; which is [almost tantamount to] blasphemy? For they say "What could have been done," which implies that were it possible to do anything they would have done it.' He therefore went alone to the mourner and said to him: [Scripture says,] <I>And the Lord spake unto me, Distress not the Moabites, neither contend with them in battle</I>.<a id="k38a_23"><sup>23</sup></a>&nbsp; Now [we may well ask], could it have entered the mind of Moses to wage war without [divine] sanction? [We must suppose] therefore that Moses of himself reasoned <i>a fortiori</i> as follows: If in the case of the Midianites who came only to assist the Moabites<a id="k38a_24"><sup>24</sup></a>&nbsp; the Torah commanded <I>'Vex the Midianites and smite them</I>,'<a id="k38a_25"><sup>25</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k38b_1:" The Moabites and the Ammonites, who must therefore be saved."
,k38b_2:" Naz. 23b and Hor. 10b."
,k38b_3:" Of Lot; cf. Gen. XIX, 30-38."
,k38b_4:" Lit., 'From father'."
,k38b_5:" Lit., 'The son of my people'"
,k38b_6:" Deut. II, 19."
,k38b_7:" Naz. ibid; and Hor. 11a."
,k38b_8:" V. p. 216, n. 6."
,k38b_9:" Cf. Ruth IV, 13-22."
,k38b_10:" I Kings XIV, 31."
,k38b_11:" I.e., members of the mixed tribes who had been settled on the territory of the former Kingdom of Israel by the Assyrian king and who were subsequently a great hindrance to the Jews who returned from the Babylonian captivity to revive their country and their culture; cf. II Kings, XVII. 24-41; Ezra IV, 1-24 and Neh. III, 33; IV, V, VI, 13."
,k38b_12:" I.e., they accepted some of the Jewish practices not out of appreciation or with sincerity but simply out of the fear of the lions, which as stated in Scripture had been slaying them; cf. II Kings, XVII, 25."
,k38b_13:" Nid. VII. 3."
,k38b_14:" A place mainly inhabited by heathens who are not subject to the laws of purity and menstruation. [Rekem is identified by <i>Targum Onkelos</i> Gen. XVI, 14, with Kadesh; by Josephus (Ant. IV, 7, 1), with Petra.]"
,k38b_15:" As the underwear might naturally be supposed to have been worn by a heathen woman."
,k38b_16:" Who are subject to all the laws of Scripture and whose menstrual discharge defiles any garment which comes in contact with it."
,k38b_17:" And have lapsed from the observance of the Law."
,k38b_18:" Those who have never embraced the religion of Israel and have thus never been subject to the laws of purity and menstruation."
,k38b_19:" Who as a rule do not expose to the public garments stained with menstrual discharge."
,k38b_20:" For both Israelites and Cutheans are subject to the laws of purity and menstruation."
,k38b_21:" The bracketed passage follows the interpretation of this Mishnah given in Nid. 56b."
,k38b_22:" For Cutheans in contradistinction to Israelites were, according to R. Meir, suspected of being lax in the matter of exposing to the public garments stained with menstrual discharge."
,k38b_23:" I.e. Cutheans."
,k38b_24:" Who in other respects considered them true proselytes."
,k38b_25:" For seduction in accordance with Ex. XXII, 15-16, or for rape in accordance with Deut. XXII, 28-29."
,k38b_26:" Cf. Deut. XXII, 29 and ibid. XXIII, 3."
,k38b_27:" A Gibeonite, v. <a href=\"../tglossary.html\">Glos.</a>"
,k38b_28:" Keth. III, 1."
,k38b_29:" By not allowing them to recover compensation for seduction. "
}

txt:
<p>
in the case of the Moabites [themselves] should not the same injunction apply even more strongly? But the Holy One, blessed be He, said to him: The idea you have in your mind is not the idea I have in My mind. Two doves have I to bring forth from them;<a id="k38b_1"><sup>1</sup></a>&nbsp; Ruth the Moabitess and Naamah the Ammonitess. Now cannot we base on this an <i>a fortiori</i> argument as follows: If for the sake of two virtuous descendants the Holy One, blessed be He, showed pity to two great nations so that they were not destroyed, may we not be assured that if your honour's daughter had indeed been righteous and worthy to have goodly issue, she would have continued to live?
</p><p>
	R. Hiyya B. Abba said that R. Johanan had stated:<a id="k38b_2"><sup>2</sup></a>&nbsp; The Holy One, blessed be He, does not deprive any creature of any reward due to it, even if only for a becoming expression: for in the case of the [descendants of the] elder [daughter]<a id="k38b_3"><sup>3</sup></a>&nbsp; who named her son 'Moab',<a id="k38b_4"><sup>4</sup></a>&nbsp; the Holy One, Blessed be He, said to Moses, Distress not the Moabites, neither contend with them in battle, [implying that] while actual hostilities against them were forbidden, requisitioning from them was allowed, whereas in the case of the younger [daughter]<a id="k38b_3"><sup>3</sup></a>&nbsp; who called her son 'Ben Ammi',<a id="k38b_5"><sup>5</sup></a>&nbsp; the Holy One, Blessed be He, said to Moses: And when thou comest nigh over against the children of Ammon, distress them not, nor meddle with them at all,<a id="k38b_6"><sup>6</sup></a>&nbsp; thus implying that they were not to be subjected even to requisitioning.
</p><p>
	R. Hiyya B. Abba further said that R. Joshua b. Korha had stated:<a id="k38b_7"><sup>7</sup></a>&nbsp; At all times should a man try to be first in the performance of a good deed, as on account of the one night by which the elder [daughter]<a id="k38b_8"><sup>8</sup></a>&nbsp; preceded the younger she preceded her by four generations [in having a descendant] in Israel: Obed, Jesse, David and Solomon.<a id="k38b_9"><sup>9</sup></a>&nbsp; For the younger [had no descendant in Israel] until [the advent of] Rehoboam, as it is written: And the name of his mother was Naamah the Ammonitess.<a id="k38b_10"><sup>10</sup></a>
</p><p>
	Our Rabbis taught: If cattle of an Israelite has gored cattle belonging to a Cuthean<a id="k38b_11"><sup>11</sup></a>&nbsp; there is no liability. But where cattle belonging to a Cuthean gored cattle belonging to an Israelite, in the case of <i>Tam</i> the payment will be for half the damage, whereas in the case of <i>Mu'ad</i> the payment will be in full. R. Meir, however, says: Where cattle belonging to an Israelite gored cattle belonging to a Cuthean there is no liability, whereas in the case of cattle belonging to an Israelite, whether in the case of <i>Tam</i> or in that of <i>Mu'ad</i>, the compensation is to be in full. Does this mean to say that R. Meir maintains that the Cutheans were lion-proselytes?<a id="k38b_12"><sup>12</sup></a>&nbsp; But if [so], an objection would be raised [from the following]:<a id="k38b_13"><sup>13</sup></a>&nbsp; All kinds of stains [found on women's underwear] brought from Rekem<a id="k38b_14"><sup>14</sup></a>&nbsp; are [levitically] clean.<a id="k38b_15"><sup>15</sup></a>&nbsp; But R. Judah considers them unclean, as the inhabitants [of that place] are mainly proselytes<a id="k38b_16"><sup>16</sup></a>&nbsp; who are in error;<a id="k38b_17"><sup>17</sup></a>&nbsp; from among Gentiles<a id="k38b_18"><sup>18</sup></a>&nbsp; they are considered clean. But [where they were brought] from among Israelites<a id="k38b_19"><sup>19</sup></a>&nbsp; or from Cutheans [after having been obtained from private places all agree in declaring them unclean.<a id="k38b_20"><sup>20</sup></a>&nbsp; But where they were brought from Cutheans who had already abandoned them to the public at large]<a id="k38b_21"><sup>21</sup></a>&nbsp; R. Meir considers them unclean,<a id="k38b_22"><sup>22</sup></a>&nbsp; whereas the Sages consider them clean, for [even] they<a id="k38b_23"><sup>23</sup></a>&nbsp; were not suspected of being lax in [the exposing of women's stained underwear]. Now does this not prove that R. Meir was of the opinion that Cutheans were true proselytes? &mdash; R. Abbahu thereupon said: This was only a pecuniary disability that R. Meir<a id="k38b_24"><sup>24</sup></a>&nbsp; imposed upon them, so that [Israelites] should not intermingle with them.
</p><p>
	R. Zera raised an objection [from the following]: These are the damsels through whom the fine<a id="k38b_25"><sup>25</sup></a>&nbsp; is imposed: If a man has connexion with a girl that is a bastard,<a id="k38b_26"><sup>26</sup></a>&nbsp; a <I>Nethinah</I><a id="k38b_27"><sup>27</sup></a>&nbsp; or a Cuthean.<a id="k38b_28"><sup>28</sup></a>&nbsp; Now if you maintain that R. Meir imposed a pecuniary disability on them, why then not impose it in this case too,<a id="k38b_29"><sup>29</sup></a>&nbsp; so that [Israelites] should not mix with them? Abaye thereupon said:
</P>


lvr: 41
dfh: a
notes:
 ntes={k39a_1:" The seducer."
,k39a_2:" So that the sinner should not benefit, but why pay the money to the Cuthean if R. Meir was inclined to impose a disability upon Cutheans?"
,k39a_3:" Any poor man claiming the money could be put off by the plea that he (the seducer) wished to give it to another poor man."
,k39a_4:" If the Cuthean would not have been entitled to claim it."
,k39a_5:" Usually up to the age of thirteen. These three form a category for themselves as they are not subject to the obligations of either civil or criminal law."
,k39a_6:" In the case of <I>Tam</I>: v. the discussion in Gemara."
,k39a_7:" By evidence having been delivered in the presence of the appointed guardian."
,k39a_8:" [ [G], the arena used for wild beast hunts and gladiatorial contests, v. Krauss, <i>op. cit</i>. III, 119.]"
,k39a_9:" Ex. XXI, 28."
,k39a_10:" Cf.<i>supra</i> p. 73."
,k39a_11:" But no payment will be made for damage done while the ox was <i>Tam</i>."
,k39a_12:" V. p. 219, n. 6."
,k39a_13:" Who were minors."
,k39a_14:" 'Ar. 22a."
,k39a_15:" I.e., marriage settlement; v. <a href=\"../tglossary.html\">Glos.</a>"
,k39a_16:" For as long as the widow does not collect her <i>kethubah</i>, she receives her maintenance from the property of the orphans, v. Keth. XI, 1."
,k39a_17:" [Raba regarded it as an adopted ruling not to distrain upon the estate of orphans. V. Asheri, a.l.]"
,k39a_18:" I.e., here and in 'Ar. 22a."
,k39a_19:" Presumably on account of public safety and public interest it is more expedient not to postpone payment until the orphans come of age. "
}

txt:
<p>
[No exception was made in this case] so that the sinner<a id="k39a_1"><sup>1</sup></a>&nbsp; should not profit thereby. But let him pay the amount of the fine to the poor?<a id="k39a_2"><sup>2</sup></a>&nbsp; &mdash; R. Mari said: It would [in that case have remained] a pecuniary obligation without definite claimants<a id="k39a_3"><sup>3</sup></a>&nbsp; [and would thus never have been discharged].<a id="k39a_4"><sup>4</sup></a>
<P>
	<B><I>MISHNAH</I></B>. IF AN OX OF AN OWNER WITH UNIMPAIRED FACULTIES GORES AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR,<a id="k39a_5"><sup>5</sup></a>&nbsp; THE OWNER IS LIABLE. WHERE, HOWEVER, AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR HAS GORED AN OX OF AN OWNER WHOSE FACULTIES ARE UNIMPAIRED, THERE IS NO LIABILITY.<a id="k39a_6"><sup>6</sup></a>&nbsp; IF AN OX OF A DEAF-MUTE AN IDIOT OR A MINOR<a id="k39a_7"><sup>7</sup></a>&nbsp; HAS GORED, THE COURT OF LAW APPOINT A GUARDIAN, IN WHOSE PRESENCE WITNESSES WILL BE ABLE TO TESTIFY [THAT THE OX HAS GORED SO THAT IT WILL EVENTUALLY BE DECLARED <I>MU'AD</I>]. IF THE DEAF-MUTE RECOVERS HIS HEARING [OR SPEECH], OR IF THE IDIOT BECOMES SANE, OR IF THE MINOR COMES OF AGE, THE OX PREVIOUSLY DECLARED <I>MU'AD</I> WILL RETURN TO THE STATE OF <I>TAM</I>: THESE ARE THE WORDS OF R. MEIR. R. JOSE, HOWEVER, SAYS THAT THE OX WILL REMAIN IN STATUS QUO. IN THE CASE OF A STADIUM OX<a id="k39a_8"><sup>8</sup></a>&nbsp; [KILLING A PERSON], THE DEATH PENALTY IS NOT IMPOSED [UPON THE OX], AS IT IS WRITTEN: IF AN OX GORE,<a id="k39a_9"><sup>9</sup></a>&nbsp; EXCLUDING CASES WHERE IT IS GOADED TO GORE.
</p><p>
	<B><I>GEMARA</I></B>. Is not the text in contradiction with itself? [In the first clause] you state, IF AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR GORES AN OX BELONGING TO ONE WHOSE FACULTIES ARE UNIMPAIRED THERE IS NO LIABILITY, implying that a guardian is not appointed in the case of <i>Tam</i> to collect [the payment of half-damages] out of its body.<a id="k39a_10"><sup>10</sup></a>&nbsp; But read the following clause: IF AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR HAS GORED, THE COURT OF LAW APPOINT A GUARDIAN IN WHOSE PRESENCE WITNESSES WILL BE ABLE TO  TESTIFY [SO THAT IT WILL EVENTUALLY BE DECLARED <I>MU'AD</I>]. Now, does this not prove that a guardian is appointed in the case of <i>Tam</i> to collect [the payment of half-damages] out of its body? &mdash; Raba replied [that the text of the concluding clause] should be understood thus: If the oxen are presumed to be gorers, then a guardian is appointed and witnesses will give evidence for the purpose of having the cattle declared <i>Mu'ad</i>, so that should another goring take place,<a id="k39a_11"><sup>11</sup></a>&nbsp; the payment would have to come from the best [of the general estate].<a id="k39a_12"><sup>12</sup></a>
</p><p>
	From the best of whose estate [would the payment have to come]? &mdash; R. Johanan said: From the best [of the estate] of the orphans;<a id="k39a_13"><sup>13</sup></a>&nbsp; R. Jose b. Hanina said: From the best [of the estate] of the guardian. But did R. Johanan really say so? [Has it not been stated that] R. Judah said in the name of R. Assi:<a id="k39a_14"><sup>14</sup></a>&nbsp; The estate of the orphans<a id="k39a_13"><sup>13</sup></a>&nbsp; must not be distrained upon unless where usury is consuming it, and R.. Johanan said: [Unless there is a liability] either for a bond bearing interest or to a woman for her <i>kethubah</i>,<a id="k39a_15"><sup>15</sup></a>&nbsp; [so as to save from further payment] on account of [her] maintenance?<a id="k39a_16"><sup>16</sup></a>&nbsp; &mdash; You must therefore reverse names [to read as follows]: R. Johanan said: From the best [of the estate] of the guardian, whereas R. Jose b. Hanina said: From the best [of the estate] of the orphans. Raba, however, objected, saying: Because there is a contradiction between R. Johanan in one place and R. Johanan in another place, are you to ascribe to R. Jose b. Hanina an erroneous view?<a id="k39a_17"><sup>17</sup></a>&nbsp; Was not R. Jose b. Hanina a judge, able to penetrate to the innermost intention of the Law? &mdash; We must therefore not reverse the names, [and the contradiction between the two views of R. Johanan<a id="k39a_18"><sup>18</sup></a>&nbsp; can be reconciled by the consideration that] a case of damage is altogether different.<a id="k39a_19"><sup>19</sup></a>&nbsp; R. Johanan stated that the payment must be made out of the best [of the estate] of the orphans, because if you were to say that it is to be out of the best [of the estate] of the guardians
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k39b_1:" Lit., 'the Province of the Sea'."
,k39b_2:" [H]"
,k39b_3:" V. the discussion which follows."
,k39b_4:" In the commencing clause."
,k39b_5:" Reading [H] instead of [H]."
,k39b_6:" Such as from guardian to owner."
,k39b_7:" I.e., from the state of <i>Mu'ad</i> to that of <i>Tam</i>."
,k39b_8:" That he personally should have to pay compensation."
,k39b_9:" Why then state this at all?"
,k39b_10:" Since so far as the owner was concerned the damage occurred by accident."
,k39b_11:" For the various degrees of precaution cf. <i>infra</i> 55b."
,k39b_12:" <i>Supra</i> p. 84 and <i>infra</i> p. 260."
,k39b_13:" <i>Infra</i> p. 259."
,k39b_14:" But this would not be sufficient in the case of <i>Tam</i>. Where therefore such a precaution has been taken to control a <i>Mu'ad</i>, the half-damages for which the <i>Tam</i> is liable would be enforced, but not the additional damages for which the <i>Mu'ad</i> is liable."
,k39b_15:" The Sages, whose view was explained <i>supra</i>."
,k39b_16:" Hence R. Jacob's ruling for the payment of half-damages."
,k39b_17:" I.e., to Raba."
,k39b_18:" R. Jacob and R. Judah."
,k39b_19:" Who thus makes precise what R. Judah left unspecified."
,k39b_20:" Which is paid out of the general estate."
,k39b_21:" I.e., that R. Jacob maintained that no guardian could be appointed in the case of <i>Tam</i>, and R. Judah that he could."
,k39b_22:" Where the view of R. Judah was not mentioned at all."
,k39b_23:" Where no precaution to control the ox has been taken. >"
}

txt:
<p>
people would certainly refrain from accepting this office and would do nothing at all [in the matter]. R. Jose b. Hanina, however, said that the payment should be made out of the best [of the estate] of the guardians. and that these should be reimbursed out of the estate of the orphans when the latter will have come of age.
</p><p>
	Whether [or not] guardians could be appointed in the case of <i>Tam</i> to collect payment out of its body, is a point at issue between the following Tannaim: In the case of an ox whose owner has become a deaf-mute, or whose owner became insane or whose owner has gone abroad,<a id="k39b_1"><sup>1</sup></a>&nbsp; Judah b. Nakosa said on behalf of Symmachus that it would have to remain <i>Tam</i><a id="k39b_2"><sup>2</sup></a>&nbsp; until witnesses could give evidence in the presence of the owner. The Sages, however, say that a guardian should be appointed in whose presence the evidence may be given. Should the deaf-mute recover his faculty [of hearing or speech], or the idiot become sane, or the minor come of age, or the owner return from abroad, Judah b. Nakosa said on behalf of Symmachus that the ox would revert to the state of <i>Tam</i><a id="k39b_3"><sup>3</sup></a>&nbsp; until evidence is given in the presence of the owner, whereas R. Jose said that it would retain its status quo. Now, we have here to ask, what is the meaning of 'it would have to remain Tam'<a id="k39b_4"><sup>4</sup></a>&nbsp; in the dictum of Symmachus? It could hardly mean that the ox cannot become <i>Mu'ad</i> at all, for since it is stated in the concluding clause, 'The ox would revert to the state of Tam', it is implied that it had formerly been <i>Mu'ad</i>. What then is the meaning of, 'it would have to remain Tam'?<a id="k39b_4"><sup>4</sup></a>&nbsp; We must say, 'It would remain <i>Tam</i> [complete],'<a id="k39b_5"><sup>5</sup></a>&nbsp; that is, we do nothing to diminish its value, which would, of course, show that [Symmachus holds] no guardian is appointed in the case of <i>Tam</i> to collect payment out of its body. 'The Sages, however, say that a guardian should be appointed in whose presence evidence may be given', from which it follows that [they hold] a guardian may be appointed in the case of <i>Tam</i> to collect payment out of its body.
</p><p>
	And what is the point at issue in the concluding clause? The point at issue there is [whether or not a change of] control<a id="k39b_6"><sup>6</sup></a>&nbsp; should cause a change [in the state of the ox].<a id="k39b_7"><sup>7</sup></a>&nbsp; Symmachus maintains that [a change in] control causes a change [in the state of the ox],<a id="k39b_7"><sup>7</sup></a>&nbsp; whereas R. Jose holds that [a change of] control causes no change [in the state of the ox].
</p><p>
	Our Rabbis taught: Where an ox of a deaf-mute, an idiot or a minor has gored, R. Jacob pays half-damages. What has R. Jacob to do with it?<a id="k39b_8"><sup>8</sup></a>&nbsp; &mdash; But read, 'R. Jacob orders the payment of half-damages.' With what case are we here dealing? If with a <i>Tam</i>, is this not obvious?<a id="k39b_9"><sup>9</sup></a>&nbsp; For does not any other owner similarly pay half-damages? If [on the other] hand we are dealing with a <i>Mu'ad</i>, then where proper precautions were taken to control it, why should any payment be made at all?<a id="k39b_10"><sup>10</sup></a>&nbsp; And if no precautions were taken to control it, why should not damages be paid in full? &mdash; Raba thereupon said: We are in fact dealing with a <i>Mu'ad</i>, and with a case where precautions of some inferior sort<a id="k39b_11"><sup>11</sup></a>&nbsp; were taken to control the ox, but not really adequate precautions. R. Jacob concurred with R. Judah who said<a id="k39b_12"><sup>12</sup></a>&nbsp; that [even in the case of <i>Mu'ad</i>, half of the payment, i.e.] the part due from <i>Tam</i> remains unaffected [being still subject to the law of <i>Tam</i>]; he also concurred with R. Judah in holding<a id="k39b_13"><sup>13</sup></a>&nbsp; that to procure exemption from the law of <i>Mu'ad</i> even inadequate precautions are sufficient;<a id="k39b_14"><sup>14</sup></a>&nbsp; and he furthermore followed the view of the Rabbis<a id="k39b_15"><sup>15</sup></a>&nbsp; who said that a guardian could be appointed in the case of <i>Tam</i> to collect payment out of its body.<a id="k39b_16"><sup>16</sup></a>&nbsp; Said Abaye to him:<a id="k39b_17"><sup>17</sup></a>&nbsp; Do they<a id="k39b_18"><sup>18</sup></a>&nbsp; really not differ? Has it not been taught: 'Where the ox of a deaf-mute, an idiot or a minor has gored, R. Judah maintains that there is liability to pay and R. Jacob says that the payment will be only for half the damage'? &mdash; Rabbah b. 'Ulla thereupon said: The 'liability to pay' mentioned by R. Judah is here defined [as to its amount] by R. Jacob.<a id="k39b_19"><sup>19</sup></a>&nbsp; But according to Abaye who maintained that they did differ, what was the point at issue between them? &mdash; He may tell you that they were dealing with a case of <i>Mu'ad</i> that had not been guarded at all, in regard to which R. Jacob would concur with R. Judah on one point but differ from him on another point. He would concur with him on one point, in that R. Judah lays down that [even with <i>Mu'ad</i> half of the payment, i.e.] the part due from <i>Tam</i> remains unaffected; but he would differ from him on another point, in that R. Judah lays down that a guardian should be appointed in the case of <i>Tam</i> to collect payment out of its body, whereas R. Jacob is of the opinion that a guardian could not be appointed and there could therefore be no payment except the half [which should be subject to the law] of <i>Mu'ad</i>.<a id="k39b_20"><sup>20</sup></a>&nbsp; Said R. Aha b. Abaye to Rabina: All would be very well according to Abaye who maintained that they differ;<a id="k39b_21"><sup>21</sup></a>&nbsp; he is quite right [in explaining the earlier statement of R. Jacob<a id="k39b_22"><sup>22</sup></a>&nbsp; to apply only to <i>Mu'ad</i>].<a id="k39b_23"><sup>23</sup></a>&nbsp; But according to Raba who maintained that they do not differ, why should the former statement [of R. Jacob] be referred only to <i>Mu'ad</i>? Why not also to <i>Tam</i>,
</P>


lvr: 41
dfh: a
notes:
 ntes={k40a_1:" I.e., R. Jacob."
,k40a_2:" That an inferior degree of precaution is not sufficient in the case of <i>Tam</i>; v. <i>infra</i> p. 259."
,k40a_3:" Hence the liability to pay half-damages, a guardian being appointed to collect payment out of the body of the <i>Tam</i>."
,k40a_4:" That a precaution of even an inferior degree suffices with <i>Tam</i> as well as with <i>Mu'ad</i>."
,k40a_5:" V. p. 223, n. 10."
,k40a_6:" I.e., Rabina."
,k40a_7:" [So MS.M. deleting 'he means thus' in cur. edd. of Rashi.]"
,k40a_8:" [By explaining R. Jacob's earlier statement as referring to <i>Mu'ad</i>, he informs us that he shares the views of R. Judah both in regard to the question of precaution and that of the part due from <i>Tam</i> in case of a <i>Mu'ad</i> ox, whilst incidentally we also learn that guardians are appointed in case of <i>Tam</i> etc.]"
,k40a_9:" Between R. Jacob and R. Judah in the second cited Baraitha."
,k40a_10:" Lit., 'atonement', or 'a sum of money', i.e., compensation paid for manslaughter committed by a beast in lieu of the life of the owner of the beast, as appears from Ex. XXI, 29-30; v. <a href=\"../tglossary.html\">Glos.</a>"
,k40a_11:" And not an ordinary civil obligation like damages."
,k40a_12:" Ex. XXI, 30"
,k40a_13:" I.e., between R. Ishmael and the other Rabbis his opponents."
,k40a_14:" The payment must therefore correspond to the value of the loss sustained through the death of the person killed."
,k40a_15:" For since it was the life of the owner of the beast that should be redeemed the payment must surely correspond to the value of his life."
,k40a_16:" Ex. XXI, 30."
,k40a_17:" Ibid. XXI, 22."
,k40a_18:" R. Nahman."
,k40a_19:" R. Aha b. Jacob."
,k40a_20:" V. p. 225, n. 6."
,k40a_21:" V. ibid., n. 7."
,k40a_22:" 'Ar. 21a."
,k40a_23:" I.e. vows of value dealt with in Lev. XXVII, 2-8."
,k40a_24:" Which are intended to procure atonement and which will consequently not be put off."
,k40a_25:" [Lit., 'To the (Most) High.' Read with MS.M. 'Since it has to be given to a fellow man and not to the Treasury, it is a civil liability.']"
,k40a_26:" R. Nahman."
,k40a_27:" Though he did not know that the ox had been declared <i>Mu'ad</i>."
,k40a_28:" And not from my own estate."
,k40a_29:" In payment of the ox you borrowed from me. >"
}

txt:
<p>
if he<a id="k40a_1"><sup>1</sup></a>&nbsp; follows the view of R. Judah,<a id="k40a_2"><sup>2</sup></a>&nbsp; in a case where the precautions taken to control the ox were of an inferior kind and not really adequate,<a id="k40a_3"><sup>3</sup></a>&nbsp; or if he<a id="k40a_1"><sup>1</sup></a>&nbsp; follows the view of R. Eliezer b. Jacob,<a id="k40a_4"><sup>4</sup></a>&nbsp; where no precautions to control the ox had been taken at all,<a id="k40a_5"><sup>5</sup></a>&nbsp; as it has been taught: R. Eliezer b. Jacob says: Whether in the case of <i>Tam</i> or in the case of <i>Mu'ad</i>, if precautions of [at least] some inferior sort have been taken to control the ox, there would be no liability. The new point made known to us by R. Jacob would thus have been that guardians should be appointed even in the case of <i>Tam</i> to collect payment out of its body. [Why then did Raba explain the former statement of R. Jacob to refer only to <i>Mu'ad</i>? Why did he not explain it to refer to <i>Tam</i> also?] &mdash; [In answer] he<a id="k40a_6"><sup>6</sup></a>&nbsp; said: Raba made<a id="k40a_7"><sup>7</sup></a>&nbsp; one statement express two principles [in which R. Jacob is in agreement with R. Judah].<a id="k40a_8"><sup>8</sup></a>
</p><p>
	Rabina stated that [the question whether or not a change of] control should cause a change [in the state of the ox] might have been the point at issue between them,<a id="k40a_9"><sup>9</sup></a>&nbsp; e.g., where after the ox had been declared <i>Mu'ad</i>, the deaf-mute recovered his faculty, or the idiot became sane, or the minor came of age, [in which case] R. Judah would maintain that the ox should remain in its status quo whereas R. Jacob would hold that [a change of] control should cause a change [in the state of the ox].
</p><p>
	Our Rabbis taught: In the case of guardians, the payment [for damages] will be out of the best of the general estate, though no <i>kofer</i><a id="k40a_10"><sup>10</sup></a>&nbsp; will be paid by them. Who is the Tanna who holds that [the payment of] <i>kofer</i> is but an act of atonement<a id="k40a_11"><sup>11</sup></a>&nbsp; [which would justify the exemption in this case], as [minor] orphans are not subject to the law of atonement? &mdash; R. Hisda said: It is R. Ishmael the son of R. Johanan b. Beroka. For it was taught: [The words,] Then he shall give for the ransom of his life<a id="k40a_12"><sup>12</sup></a>&nbsp; [indicate] the value [of the life] of the person killed. But R. Ishmael the son of R. Johanan b. Beroka interprets it to refer to the value [of the life] of the defendant. Now, is this not the point at issue between them,<a id="k40a_13"><sup>13</sup></a>&nbsp; that the Rabbis consider <i>kofer</i> to constitute a civil liability<a id="k40a_14"><sup>14</sup></a>&nbsp; whereas R. Ishmael the son of R. Johanan b. Beroka holds <i>kofer</i> to be of the nature of propitiation?<a id="k40a_15"><sup>15</sup></a>&nbsp; &mdash; R. Papa said that this was not the case. For we may suppose all to agree that <i>kofer</i> is a kind of propitiation, and the point at issue between them here is merely that the Rabbis hold that this propitiatory payment should be fixed by estimating the value [of the life] of the person killed, whereas R. Ishmael the son of R. Johanan b. Beroka maintains that it should be fixed by estimating the value of [the life of] the defendant. What reason have the Rabbis for their view? &mdash; The expression 'laying upon' is used in the later context<a id="k40a_16"><sup>16</sup></a>&nbsp; and the same expression 'laying upon' is used in an earlier context;<a id="k40a_17"><sup>17</sup></a>&nbsp; just as there it refers to the plaintiff, so does it here also refer to the plaintiff. But R. Ishmael the son of R. Johanan b. Beroka argued that it is written, 'Then he shall give for the ransom of his life' [referring of course to the defendant]. And the Rabbis? &mdash; [They reply,] Yes, it does say 'The ransom of his life', but the amount must be fixed by valuing [the life of] the person killed.
</p><p>
	Raba in his conversations with R. Nahman used to praise R. Aha b. Jacob as a great man. He<a id="k40a_18"><sup>18</sup></a>&nbsp; therefore said to him: 'When you come across him, bring him to me.' When he<a id="k40a_19"><sup>19</sup></a>&nbsp; later came to see him he<a id="k40a_18"><sup>18</sup></a>&nbsp; said to him: 'You may put problems to me', whereupon he<a id="k40a_19"><sup>19</sup></a>&nbsp; asked him: 'If an ox of two partners [kill a person] how is the payment of <i>kofer</i> to be made? Shall this one pay <i>kofer</i> and the other one <i>kofer</i>? But one <i>kofer</i> is mentioned by Divine Law and not two kofers! Shall this one [pay] half of the <i>kofer</i> and the other one half of the <i>kofer</i>? A full <i>kofer</i> is commanded by Divine Law and not half of a <i>kofer</i>!' While he<a id="k40a_20"><sup>20</sup></a>&nbsp; was still sitting and pondering over this, he<a id="k40a_21"><sup>21</sup></a>&nbsp; further asked him: We have learnt:<a id="k40a_22"><sup>22</sup></a>&nbsp; 'In the case of debtors for valuations<a id="k40a_23"><sup>23</sup></a>&nbsp; the Sanctuary treasury may demand a pledge, whereas in the case of those who are liable to sin-offerings or for trespass-offerings<a id="k40a_24"><sup>24</sup></a>&nbsp; no pledge can be enforced.' Now, what would be the law in the case of those liable to <i>kofer</i>? [Shall it be said that] since <i>kofer</i> is a kind of propitiation it should be subject to the same ruling as sin-offerings and trespass-offerings,<a id="k40a_24"><sup>24</sup></a>&nbsp; the matter being of serious moment to the defendant so that there is no necessity of enforcing a pledge from him; or [shall it] perhaps [be argued that] since it has to be given to a fellow man it is [considered] a civil liability, and as it does not go to the Temple treasury,<a id="k40a_25"><sup>25</sup></a>&nbsp; it is consequently not taken too seriously by the defendant, for which [reason there may appear to be some] necessity for requiring a pledge? Or, again, since the defendant did not [in this case] himself commit the wrong, for it was his chattel that did the wrong [and committed manslaughter], the whole matter  might be considered by him as of no serious moment, and a pledge should therefore be enforced? &mdash; He<a id="k40a_26"><sup>26</sup></a>&nbsp; said to him: 'Leave me alone; I am still held prisoner by your first problem [that has not yet been answered by me].'
</p><p>
	Our Rabbis taught: If a man borrowed an ox on the assumption that it is in the state of <i>Tam</i> but is subsequently discovered to have already been declared <i>Mu'ad</i>, [if goring is repeated while still with the borrower] the owner will pay one half of the damages and the borrower will pay [the other] half of the damages. But if it was declared <i>Mu'ad</i> while in the possession of the borrower, and [after it] was returned to the owner [it gored again], the owner will pay half the damages while the borrower is exempt from any liability whatsoever.
</p><p>
	The Master stated: 'If a man borrowed an ox on the assumption that it is in the state of <i>Tam</i> but was subsequently discovered to have already been declared <i>Mu'ad</i>, [if goring is repeated] the owner will pay one half of the damages and the borrower will pay [the other] half of the damages.' But why should the borrower not plead against the owner, 'I wanted to borrow an ox, I did not want to borrow a lion?' &mdash; Rab said: we are dealing here with a case where the borrower knew the ox to be a gorer.<a id="k40a_27"><sup>27</sup></a>&nbsp; Still why can he not plead against him: 'I wanted to borrow an ox in the state of <i>Tam</i> but I did not want to borrow an ox that had already been declared Mu'ad'? &mdash; [This could not be pleaded] because the owner might argue against him: 'In any case, even had the ox been still <i>Tam</i>, would you not have to pay half-damages? Now, also, you have to pay one half of the damages.' But still why can he not plead against him: 'Had the ox been <i>Tam</i>, damages would have been paid out of its body'?<a id="k40a_28"><sup>28</sup></a>&nbsp; &mdash; [This could similarly not be pleaded] because the owner might contend: 'In any case would you not have had to reimburse me [to the full extent of] the value of the ox?'<a id="k40a_29"><sup>29</sup></a>&nbsp; Why can he still not plead against him:
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k40b_1:" For since the liability of half-damages in the case of <i>Tam</i> is only of a penal nature, confession by the defendant would have annulled the obligation; cf. <i>supra</i>. p. 62."
,k40b_2:" V. <i>supra</i> p. 64."
,k40b_3:" And confession would bring no exemption."
,k40b_4:" And since the payment in the case of <i>Tam</i> is only out of its body he would have evaded it."
,k40b_5:" V. p. 227, n. 7."
,k40b_6:" For in fact the ox had already been declared <i>Mu'ad</i> in the hands of the owner."
,k40b_7:" To return the ox."
,k40b_8:" Pes. 31a; Git. 37a; Keth. 19a, 82a; Kid. 15a."
,k40b_9:" 100 <i>zuz</i>; cf. <a href=\"../tglossary.html\">Glos.</a>"
,k40b_10:" Num. V, 7."
,k40b_11:" Pointing thus to the last creditor."
,k40b_12:" I.e. from the hands of the borrower to those of the owner."
,k40b_13:" I.e., from the hands of the owner to those of the borrower."
,k40b_14:" And it is because of this fact but not because of the change in the control that the ox reverts to the state of <i>Tam</i>."
,k40b_15:" V. p. 228, n. 8."
,k40b_16:" The ox therefore did not, by leaving the owner and coming into the hands of a borrower, undergo any change at all."
,k40b_17:" From Bek. 41a; Tem. 28a."
,k40b_18:" Lev. I, 2."
,k40b_19:" Cf. Lev., XVIII, 23 and ib. XX, 15-16."
,k40b_20:" Since in both cases the animal is to be killed where the crime has been testified to by witnesses."
,k40b_21:" As in the case of animal copulating with man."
,k40b_22:" V. p. 229, n. 7."
,k40b_23:" V. p. 224. n. 6."
,k40b_24:" See the discussion which follows."
,k40b_25:" Since this was the point under consideration, which solves the question as to the eligibility of a stadium ox for the altar."
,k40b_26:" [In respect of which the difference between compulsory goring and voluntary goring is admitted.] "
}

txt:
<p>
'Were the ox to have been <i>Tam</i> I would have admitted [the act of goring] and become exempt from having to pay'?<a id="k40b_1"><sup>1</sup></a>&nbsp; Moreover even according to the view<a id="k40b_2"><sup>2</sup></a>&nbsp; that the payment of half-damages [for goring in the case of <i>Tam</i>] is a civil liability,<a id="k40b_3"><sup>3</sup></a>&nbsp; why should the borrower still not argue: 'Had the ox been <i>Tam</i> I would have caused it to escape to the pasture'?<a id="k40b_4"><sup>4</sup></a>&nbsp; &mdash; We must therefore suppose the case to have been one where the Court of law stepped in first and took possession of the ox. But if so why should the owner pay one half of the damages? Why not plead against the borrower: 'You have allowed my ox to fall into the hands of a party against whom I am powerless to bring any legal action'? &mdash; [This could not be pleaded] because the borrower might retort to him: 'Were I even to have returned the ox to you, would the Court of Law not have taken it from you?' But why should the owner still not plead against the borrower: 'Were you to have returned it to me, I would have caused it to escape to the pasture'?<a id="k40b_5"><sup>5</sup></a>&nbsp; &mdash; [This could not be pleaded] because the borrower might argue against him: 'In any case would the damages not have been paid out of the best [of your general estate]?'<a id="k40b_6"><sup>6</sup></a>&nbsp; This indeed could be effectively argued [by the borrower] where the owner possessed property, but what could be argued in the case where the owner possessed no property? &mdash; What therefore the borrower could always argue against the owner is [as follows]: 'Just as I am under a personal obligation to you,<a id="k40b_7"><sup>7</sup></a>&nbsp; so am I under a personal obligation<a id="k40b_7"><sup>7</sup></a>&nbsp; to that party [who is your creditor], in virtue of the rule of R. Nathan, as it was taught,<a id="k40b_8"><sup>8</sup></a>&nbsp; 'R. Nathan says: Whence do we conclude that if A claims a <i>maneh</i><a id="k40b_9"><sup>9</sup></a>&nbsp; from B, and B [claims a similar sum] from C, the money is collected from C and [directly] handed over to A? From the statement of Scripture:<a id="k40b_10"><sup>10</sup></a>&nbsp; <I>And give it unto him against whom he hath trespassed</I>.<a id="k40b_11"><sup>11</sup></a>
</p><p>
	'If it was declared <i>Mu'ad</i> while in the possession of the borrower, and [after it] was returned to the owner [it gored again], the owner will pay half damages while the borrower is exempt from any liability whatsoever.' Does this concluding clause [not appear to prove that a change in the] control [of the ox]<a id="k40b_12"><sup>12</sup></a>&nbsp; causes a change [in its status], while the preceding clause [tends to prove that a change in the] control [of the ox]<a id="k40b_13"><sup>13</sup></a>&nbsp; causes no change [in its status]? &mdash; R. Johanan thereupon said: The contradiction [is obvious]; he who taught one clause certainly did not teach the other clause [in the text of the Baraitha]. Rabbah, however, said: Since the opening clause [tends to prove that a change in the] control<a id="k40b_13"><sup>13</sup></a>&nbsp; does not cause a change [in the status], the concluding clause [may also maintain that a change in the] control does not cause a change [in the status]. For the ruling in the concluding clause could be based on the fact that the owner may argue against the borrower, 'You had no legal right to cause my ox to be declared <i>Mu'ad</i>.'<a id="k40b_14"><sup>14</sup></a>&nbsp; R. Papa, however, said: Since the concluding clause [proves that a change in the] control<a id="k40b_15"><sup>15</sup></a>&nbsp; [of the ox] causes a change [in its status], the opening clause [may also maintain that a change in the] control [of the ox] causes a change [in its status]. For the ruling in the opening clause could be based upon the reason that wherever the ox is put, it bears the name of its owner upon it.<a id="k40b_16"><sup>16</sup></a>
</p><p>
	IN THE CASE OF A STADIUM OX [KILLING A PERSON], THE DEATH PENALTY IS NOT IMPOSED [UPON THE OX] etc. The question was raised: What [would have been the position of such an ox] with reference to [its being sacrificed upon] the altar? &mdash; Rab said that it would have been eligible, whereas Samuel maintained that it would have been ineligible. Rab considered it eligible since it committed manslaughter only by compulsion, whereas Samuel considered it ineligible since it had been used as an instrument for the commission of a crime.
</p><p>
	An objection was raised:<a id="k40b_17"><sup>17</sup></a>&nbsp; [<I>Ye shall bring your offering</I>] <I>of the cattle</I><a id="k40b_18"><sup>18</sup></a>&nbsp; excludes an animal that has copulated with a woman and an animal that has copulated with a man;<a id="k40b_19"><sup>19</sup></a>&nbsp; <I>even of the herd</I><a id="k40b_18"><sup>18</sup></a>&nbsp; excludes an animal that has been used as an instrument of idolatry; <I>of the flock</I><a id="k40b_18"><sup>18</sup></a>&nbsp; excludes an animal that has been set apart for idolatrous purposes; and <I>of the flock</I> excludes an animal that has gored [and committed manslaughter]. R. Simeon remarked upon this: If it is laid down that an animal that has copulated with a woman<a id="k40b_19"><sup>19</sup></a>&nbsp; [is to be excluded] why was it necessary to lay down that an animal goring [and committing manslaughter is also excluded]?<a id="k40b_20"><sup>20</sup></a>&nbsp; Again, if it is laid down that an animal that gored [and committed manslaughter is to be excluded], why was it necessary to lay down that an animal copulating with a woman [is also excluded]?<a id="k40b_20"><sup>20</sup></a>&nbsp; [The reason is] because there are features in an animal copulating with a woman which are not present in an animal goring [and committing manslaughter], and again there are features in an animal goring [and committing manslaughter] which are not present in the case of an animal copulating with a woman. In the case of an animal copulating with a human being the law makes no distinction between a compulsory<a id="k40b_21"><sup>21</sup></a>&nbsp; and a voluntary act [on the part of the animal],<a id="k40b_22"><sup>22</sup></a>&nbsp; whereas in the case of an animal goring [and committing manslaughter] the law does not place a compulsory act on the same footing as a voluntary one. Again, in the case of an animal goring [and committing manslaughter] there is liability to pay <i>kofer</i>,<a id="k40b_23"><sup>23</sup></a>&nbsp; whereas in the case of an animal copulating with a woman there is no liability to pay <i>kofer</i>.<a id="k40b_24"><sup>24</sup></a>&nbsp; It is on account of these differences that it was necessary to specify both an animal copulating with a woman and an animal goring [and committing manslaughter]. Now, it is here taught that in the case of an animal copulating with a human being the law makes no distinction between a compulsory and a voluntary act, whereas in the case of an animal goring [and committing manslaughter the law] does not place a compulsory act on the same footing as a voluntary one. What rule are we to derive from this? Is it not the rule in respect of eligibility for becoming a sacrifice [upon the altar]?<a id="k40b_25"><sup>25</sup></a>&nbsp; &mdash; No; the rule in respect of stoning.<a id="k40b_26"><sup>26</sup></a>&nbsp; This indeed stands also to reason, for if you maintain that it is with reference to the sacrifice that the law does not place a compulsory act on the same footing as a voluntary one in the case of an animal goring, [I would point out that with reference to its eligibility for the altar] the Scripture says nothing explicitly with regard either to a compulsory act or a voluntary act on its part. Does it therefore not [stand to reason that what we are to derive from this is] the rule in respect of stoning?
</p><p>
	The Master stated: 'In the case of an animal goring [and committing manslaughter] there is liability to pay <i>kofer</i>, whereas in the case of an animal copulating with a woman there is no liability to pay <i>kofer</i>.' What are the circumstances? It could hardly be that while copulating with a woman it killed her, for what difference could be made between killing by means of a horn and killing by means of copulating? If on the other hand the act of copulating did not result in manslaughter, is the exemption from paying <i>kofer</i> not due to the fact that no killing took place? &mdash; Abaye said: We suppose, in fact, that it deals with a case where, by the act of copulating, the animal did not kill the woman, who, however, was brought to the Court of Law and by its orders executed. [In such a case] you might perhaps have thought
</P>


lvr: 41
dfh: a
notes:
 ntes={k41a_1:" Given by Abaye and Raba respectively."
,k41a_2:" Discussed <i>supra</i> p. 134."
,k41a_3:" Since the intention of the animal was not to do damage."
,k41a_4:" Ex. XXI, 30."
,k41a_5:" Ibid. 28-29."
,k41a_6:" Ibid. 31"
,k41a_7:" Ibid. 32."
,k41a_8:" V. <a href=\"../tglossary.html\">Glos.</a>"
,k41a_9:" V. <a href=\"../tglossary.html\">Glos.</a>"
,k41a_10:" The ox."
,k41a_11:" As <i>Mu'ad</i> could be only on the fourth occasion; cf. however Rashi a.l.; also Tosaf. a.l. and <i>supra</i> p. 119."
,k41a_12:" Whom the ox pursued but who had a very narrow escape from death by running away to a safe place."
,k41a_13:" Since no actual goring took place."
,k41a_14:" Who, however, did not die until after the ox gored again on the fourth occasion, and it was on account of this delay that the ox was not stoned previously."
,k41a_15:" In which case the ox should not be put to death."
,k41a_16:" Cf. <i>supra</i> p. 4, and p. 205."
,k41a_17:" The ox thus escaped death."
,k41a_18:" Cf. <i>supra</i> p. 121."
,k41a_19:" As in this case also the first three times of goring took place on three successive days."
,k41a_20:" I.e. the defendant."
,k41a_21:" How then could this be called warning?"
,k41a_22:" Ex. XXI. 28."
,k41a_23:" I.e.. the carcass of an animal not ritually slaughtered."
,k41a_24:" In accordance with Deut XIV, 21."
,k41a_25:" V. p. 233, n. 6."
,k41a_26:" For without this implication it would have followed the general rule that an animal which was not slaughtered in accordance with the requirements of the law could be used for any purpose but food; cf. Deut. XIV, 21 and Lev. VII, 24."
,k41a_27:" Pes. 21b; Kid. 56b."
,k41a_28:" Such e.g. as in Ex. XIII, 3."
,k41a_29:" See Lev. XVII, 12 but also Pes. 22a."
,k41a_30:" Cf. e.g., Gen. XXXII, 33 and Pes. 22a and Hul. 100b. "
}

txt:
<p>
that the execution amounted to manslaughter on the part of the animal; we are therefore told [that this is not the case]. Raba on the other hand held that [we deal here with a case where] while copulating with a woman the animal did kill her, and as for the objection what difference could be made between killing committed by means of horns and killing committed by means of copulating, [the answer would be that] in the case of Horn the animal purposes to do damage, whereas in this case [of copulating] the intention of the animal is merely for self-gratification. What is the point at issue [between these two explanations]?<a id="k41a_1"><sup>1</sup></a>&nbsp; &mdash; [Whether <I>kofer</I> should be paid] in the case of Foot treading upon a child in the premises of the plaintiff [and killing it].<a id="k41a_2"><sup>2</sup></a>&nbsp; According to Abaye there would be liability to pay <I>kofer</I>, whereas according to Raba no payment of <I>kofer</I> would have to be made.<a id="k41a_3"><sup>3</sup></a>
</p><p>
	It was taught in accordance with the view of Rab: An ox trained for the arena [that killed a person] is not liable [to be stoned] to death, and is eligible for the altar, for it had been compelled [to commit the manslaughter].
</p><p>
	<B><I>MISHNAH</I></B>. IF AN OX GORES A MAN AND DEATH RESULTS, IN THE CASE OF <I>MU'AD</I> THERE IS LIABILITY TO PAY <I>KOFER</I>,<a id="k41a_4"><sup>4</sup></a>&nbsp; BUT IN THE CASE OF <I>TAM</I>, THERE IS NO LIABILITY TO PAY <I>KOFER</I>. IN BOTH CASES, HOWEVER, THE OXEN ARE LIABLE [TO BE STONED] TO DEATH.<a id="k41a_5"><sup>5</sup></a>&nbsp; THE SAME [JUDGMENT APPLIES] IN THE CASE OF A [MINOR] SON AND THE SAME [JUDGMENT APPLIES] IN THE CASE OF A [MINOR] DAUGHTER.<a id="k41a_6"><sup>6</sup></a>&nbsp; BUT WHERE THE OX HAS GORED A MANSERVANT OR A MAIDSERVANT [AND DEATH HAS RESULTED], COMPENSATION HAS TO BE GIVEN TO THE AMOUNT OF THIRTY <I>SELA'</I>,<a id="k41a_7"><sup>7</sup></a>&nbsp; WHETHER THE KILLED SERVANT WAS WORTH A HUNDRED <I>MANEH</I><a id="k41a_8"><sup>8</sup></a>&nbsp; OR NOT WORTH ANY MORE THAN ONE <I>DENAR</I>.<a id="k41a_9"><sup>9</sup></a>
</p><p>
	<B><I>GEMARA</I></B>. But since when it was still the state of <I>Tam</I> it had to be killed [for manslaughter], how could it ever have been possible to declare it <i>Mu'ad</i>? &mdash; Rabbah said: We are dealing here with a case where, e.g. it had been estimated that it<a id="k41a_10"><sup>10</sup></a>&nbsp; might have killed three<a id="k41a_11"><sup>11</sup></a>&nbsp; human beings.<a id="k41a_12"><sup>12</sup></a>&nbsp; R. Ashi, however, said that such estimation amount to nothing,<a id="k41a_13"><sup>13</sup></a>&nbsp; and that we are therefore dealing here with a case where the ox gored and endangered the lives of three human beings.<a id="k41a_14"><sup>14</sup></a>&nbsp; R. Zebid [on the other hand] said: [The case is one] where, for instance, it killed three animals.<a id="k41a_15"><sup>15</sup></a>&nbsp; But is an ox [which has been declared] <i>Mu'ad</i> to kill animals also <i>Mu'ad</i> to kill men?<a id="k41a_16"><sup>16</sup></a>&nbsp; &mdash; R. Shimi therefore said: [The case is one] where for instance it killed three heathens.<a id="k41a_15"><sup>15</sup></a>&nbsp; But is an ox [which has been declared] <i>Mu'ad</i> to gore persons who are heathens also <i>Mu'ad</i> with reference to those who are Israelites? &mdash; R. Simeon b. Lakish therefore said: [The case is one] where, for instance, it killed three persons who had already been afflicted with fatal organic diseases.<a id="k41a_15"><sup>15</sup></a>&nbsp; But is an ox [which has been declared] <i>Mu'ad</i> with reference to persons afflicted with fatal organic diseases also <i>Mu'ad</i> regarding persons in sound condition? &mdash; R. Papa therefore said: [The case is one where] the ox [on the first occasion] killed [a sound person] but escaped to the pasture,<a id="k41a_17"><sup>17</sup></a>&nbsp; killed again [a sound person] but similarly escaped to the pasture. R. Aha the son of R. Ika said: [The case is one] where, for instance, [two witnesses alleged in every case an alibi against the three pairs of witnesses who had testified to the first three occasions of goring,<a id="k41a_17"><sup>17</sup></a>&nbsp; and] it so happened that [after evidence had been given regarding the fourth time of goring the accusation of the alibi with reference to the first three times of goring fell to the ground as] a new pair of witnesses gave evidence of an alibi against the same two witnesses who alleged the alibi [against the three sets of witnesses who had testified to the first three occasions of goring]. Now this explanation would be satisfactory [if the three days required for] the declaration of <i>Mu'ad</i> refer to [the goring of] the ox<a id="k41a_18"><sup>18</sup></a>&nbsp; [so as to make sure that it has an ingrained tendency].<a id="k41a_19"><sup>19</sup></a>&nbsp; But if the three days are needed to warn the owner,<a id="k41a_18"><sup>18</sup></a>&nbsp; why should he not plead [against the plaintiff], 'I was not aware [that the evidence as to the first three gorings was genuine]'? &mdash; [This could not be pleaded where] e.g., it was stated [by the very last pair of witnesses] that whenever the ox had [gored and] killed he<a id="k41a_20"><sup>20</sup></a>&nbsp; had been present [and witnessed every occasion]. &mdash; Rabina said: [The case of an ox not being stoned after any of the first three fatal gorings might be] where, though recognising the owner of the ox<a id="k41a_20"><sup>20</sup></a>&nbsp; [the witnesses who testified to the first three time of goring] did not at that time recognise the identity of the ox [also].<a id="k41a_17"><sup>17</sup></a>&nbsp; But what could the owner<a id="k41a_20"><sup>20</sup></a>&nbsp; have done [where the ox that gored and killed had not been identified]?<a id="k41a_21"><sup>21</sup></a>&nbsp; &mdash; [He is culpable because] they could say to him: 'Knowing that an ox inclined to gore has been among your herd, you ought to have guarded the whole of your herd.'
</p><p>
	IN BOTH CASES, HOWEVER, THE OXEN ARE LIABLE [TO BE STONED] TO DEATH. Our Rabbis taught: From the implication of the statement <I>The ox shall be surely stoned</I><a id="k41a_22"><sup>22</sup></a>&nbsp; would I not have known that it becomes <i>nebelah</i><a id="k41a_23"><sup>23</sup></a>&nbsp; and that by becoming <i>nebelah</i> it should be forbidden to be consumed for food?<a id="k41a_24"><sup>24</sup></a>&nbsp; Why then was it necessary to state further <I>And his flesh shall not be eaten</I>?<a id="k41a_25"><sup>25</sup></a>&nbsp; Scripture must therefore have intended to tell us that were the ox to be slaughtered after the sentence has been passed upon it, it would be forbidden to be consumed as food. This rule is thus established as regards food; whence could it be derived that it would also be forbidden for any [other] use whatsoever? The text therefore says, But the owner of the ox shall be quit.<a id="k41a_25"><sup>25</sup></a>&nbsp; How does this bear [on the matter in hand]? &mdash; Simeon B. Zoma said: [The word 'quit' is used here] as in [the colloquial expression,] So-and-so went out quit from his possessions without having any benefit of them whatsoever.
</p><p>
	But how do we know that '<I>his flesh shall not be eaten'</I> refers to a case where the ox has been slaughtered after the sentence had been passed on it, to indicate that it should be forbidden to be used as food? Why not rather suppose that where it has been slaughtered after the sentence had been passed on it, the ox would be eligible to be used for food, and take the words <I>'his flesh shall not be eaten'</I> as referring to a case where the ox had already been stoned, and indicating that it should [then] be forbidden for any use whatsoever?<a id="k41a_26"><sup>26</sup></a>&nbsp; Such an implication is even in conformity with the view of R. Abbahu, for R. Abbahu said on behalf of R. Eleazar:<a id="k41a_27"><sup>27</sup></a>&nbsp; Wherever Scripture says either <I>it shall not be eaten</I><a id="k41a_28"><sup>28</sup></a>&nbsp; or <I>thou shalt not eat</I><a id="k41a_29"><sup>29</sup></a>&nbsp; or you shall not eat,<a id="k41a_30"><sup>30</sup></a>&nbsp; a prohibition both in respect of food and in respect of any [other] use is implied, unless where Scripture makes an explicit exception, as it did make an exception in the case of a thing that dies of itself, which may be given unto a stranger or sold unto a heathen!<a id="k41a_24"><sup>24</sup></a>&nbsp; &mdash; It may, however, be argued against this that these words [of R. Abbahu] hold good only where the prohibition both in respect of food and in respect of any [other] use is derived from the one Scriptural text, [viz.,] 'it <I>shall not be eaten'</I>, but here where the prohibition in respect of food is derived from '[the ox] shall be surely stoned', should you suggest that [the words] <I>'his flesh shall not be eaten'</I> were meant as a prohibition for any use, [we may ask] why then did the Divine Law not plainly state 'No benefit shall be derived from it'? Or again, why not merely say, <I>'It shall not be eaten'</I>? Why [the additional words] 'his flesh', if not to indicate that even where it had been made and prepared to resemble other meat, as where the ox was slaughtered, it should still be forbidden. Mar Zutra strongly demurred to this: Why not [he said] take this prohibition
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k41b_1:" Lit., 'tested', that is, to see whether it was fit for ritual slaughtering."
,k41b_2:" Hul. 15b."
,k41b_3:" V. pp. 236-239."
,k41b_4:" Who needs the whole of the text to imply the prohibition of the skin."
,k41b_5:" Kid. 57a; Bek. 6b and Pes 22b."
,k41b_6:" To imply some amplification of the statement actually made."
,k41b_7:" Deut VI. 13"
,k41b_8:" Being loth to put any being whatsoever on a par with God."
,k41b_9:" In the case of <I>Tam</I>."
,k41b_10:" As <i>supra</i> p. 73."
,k41b_11:" But since the ox is put to death and the carcass including also the skin is proscribed for any use whatsoever, is it not evident that no payment could be made in the case of <I>Tam</I> killing a human being? Why then give a special indication to this effect?"
,k41b_12:" [In which case the ox is not stoned (v. Zeb. 71a: Rashi and Tosaf. s.v. [H]).]"
,k41b_13:" For the payment of half-damages in the case of <I>Tam</I> is, as decided <i>supra</i> p. 67 of a penal character and as such liability for it could in any case not be established by the admission of the defendant, for which cf. <i>supra</i> p. 62 and <i>infra</i> p. 429."
,k41b_14:" And liability to it would thus have been established even by the admission of the defendant."
,k41b_15:" V. <i>supra</i> p. 232. n. 11. "
}

txt:
<p>
to refer to a case where the slaughterer prepared<a id="k41b_1"><sup>1</sup></a>&nbsp; a piece of sharp flint and with it slaughtered the ox, which was thus dealt with as if it has been stoned, whereas where it had been slaughtered by means of a knife the prohibition should not apply? &mdash; To this it may be replied: Is a knife specifically mentioned in Scripture? Moreover we have learnt:<a id="k41b_2"><sup>2</sup></a>&nbsp; If one slaughters with a hand-sickle, with a flint or with a reed, the act of slaughtering has been properly executed.<a id="k41b_2"><sup>2</sup></a>
</p><p>
	And now that the prohibition in respect both of food and of any [other] use has been derived from [the text] <I>'his flesh shall not be eaten'</I>, what additional teaching is afforded to me by [the words] <I>'The owner of the ox shall be quit'</I>? &mdash; [The prohibition of] the use of the skin. For otherwise you might have been inclined to think that it was only the flesh that had been proscribed from being used, whereas the skin should be permitted to be used; we are therefore told [that this is not the case but] that <I>'the owner of the ox shall be quit</I>.' But what of those Tannaim who employ this [text], <I>'The owner of the ox shall be quit'</I> for deriving other implications (as we will indeed have to explain <i>infra</i>);<a id="k41b_3"><sup>3</sup></a>&nbsp; whence do they derive the prohibition against the making use of the skin? &mdash; They derive it from [the auxiliary term in the Hebrew text] <I>'eth</I> his flesh', meaning, 'together with that which is joined to its flesh', that is, its skin. This Tanna,<a id="k41b_4"><sup>4</sup></a>&nbsp; however, does not stress [the term] <I>'eth'</I> for legal expositions, as it has been taught:<a id="k41b_5"><sup>5</sup></a>&nbsp; Simeon the Imsonite, or as others read, Nehemiah the Imsonite, used to expound [the term] <I>'eth'</I><a id="k41b_6"><sup>6</sup></a>&nbsp; wherever it occurred in the Torah. When, however, he reached, <I>Thou shalt fear eth the Lord thy God</I>,<a id="k41b_7"><sup>7</sup></a>&nbsp; he abstained.<a id="k41b_8"><sup>8</sup></a>&nbsp; His disciples said to him: Rabbi, what is to be done with all the expositions of [the term] <I>'eth'</I> which you have already given?<a id="k41b_6"><sup>6</sup></a>&nbsp; He said to them: Just as I have received reward for the [previous] expositions so have I received reward for the [present] abstention. When R. Akiba, however, came, he taught: '<I>Thou shalt fear</I> eth<I> the Lord thy God'</I> implies that the scholarly disciples are also to be feared.
</p><p>
	Our Rabbis taught: <I>'But the owner of the ox shall be quit'</I> means, according to the view of R. Eliezer, quit from [paying] half <I>kofer</I>.<a id="k41b_9"><sup>9</sup></a>&nbsp; Said R. Akiba to him: Since any actual liability in the case of the ox itself [being a <I>Tam</I>] is not paid except out of its body,<a id="k41b_10"><sup>10</sup></a>&nbsp; [why cannot the owner say to the plaintiff,] 'Bring it to the Court of Law and be reimbursed out of it'?<a id="k41b_11"><sup>11</sup></a>&nbsp; R. Eliezer then said to him: 'Do I really appear so [simple] in your eyes that [you should take] my exposition to refer to a case of an ox liable [to be stoned] to death? My exposition referred only to one who killed the human being in the presence of one witness or in the presence of its owner.'<a id="k41b_12"><sup>12</sup></a>&nbsp; In the presence of its owner! Would he not be admitting a penal liability?<a id="k41b_13"><sup>13</sup></a>&nbsp; &mdash; R. Eliezer maintains that <I>kofer</I> partakes of a propitiatory character.<a id="k41b_14"><sup>14</sup></a>
</p><p>
	Another [Baraitha] teaches: R. Eliezer said to him: Akiba, do I really appear so [simple] in your eyes that [you take] my exposition to refer to an ox liable [to be stoned] to death? My exposition referred only to one who had been intending to kill a beast but [by accident] killed a man, [or where it had been intending to kill] an Egyptian and killed an Israelite, [or] a non-viable child and killed a viable child.<a id="k41b_15"><sup>15</sup></a>&nbsp; Which of the answers, was given first? &mdash; R. Kahana in the name of Raba said that [the answer about] intention was given first, whereas R. Tabyomi in the name of Raba said that [the answer about] having killed [the man in the presence of one witness etc.] was given first. R. Kahana, who in the name of Raba said [that the answer about] intention was given first, compared him to a fisherman who had been catching fishes in the sea;
</P>


lvr: 41
dfh: a
notes:
 ntes={k42a_1:" So also here where the better answer was given first and the inferior one later. The answer about intention is considered the better one."
,k42a_2:" Here also when R. Eliezer subsequently found a better answer he withdrew the answer which he had given first."
,k42a_3:" Ex. XXI, 22."
,k42a_4:" Why then a special implication to exempt <i>Tam</i>?"
,k42a_5:" V. <i>supra</i> p. 68."
,k42a_6:" I.e., how would it be possible to have exemption in the case of <i>Mu'ad</i> and liability in the case of <i>Tam</i>?"
,k42a_7:" Deut. XXV, 11."
,k42a_8:" But <i>Mu'ad</i> is liable."
,k42a_9:" I.e., death."
,k42a_10:" For the embryo."
,k42a_11:" As all civil claims would merge in the capital charge; cf. <i>supra</i> p. 113 and <i>infra</i> p. 427, n. 2."
,k42a_12:" For the civil liability of the owner should not be affected by the ox having to be put to death."
,k42a_13:" V. p. 238, n. 4."
,k42a_14:" For where he intended to kill another person and it was only by accident that the woman and her embryo were killed, there would, according to R. Adda b. Ahabah, be no capital charge but a civil liability; cf. for such a view <i>infra</i> p. 252 and Sanh. 79a."
,k42a_15:" V. <i>supra</i> p. 232. >"
}

txt:
<p>
when he caught big ones he took them and when he [subsequently] caught little ones he took them also.<a id="k42a_1"><sup>1</sup></a>&nbsp; But R. Tabyomi, who in the name of Raba said that [the answer about] having killed [the man in the presence of one witness etc.] was given first, compares him to a fisherman who was catching fishes in the sea and when he caught little ones he took them, but when he [subsequently] caught big ones he threw away the little ones and took the big ones.<a id="k42a_2"><sup>2</sup></a>
</p><p>
	Another [Baraitha] teaches: <I>'And the owner of the ox shall be quit'</I> [implies] according to the statement of R. Jose the Galilean, quit from compensating [in the case of <i>Tam</i> killing] embryos. Said R. Akiba to him: Behold Scripture states: If men strive together and hurt a woman with child etc.,<a id="k42a_3"><sup>3</sup></a>&nbsp; [implying that only] men but not oxen [are liable for killing embryos]!<a id="k42a_4"><sup>4</sup></a>&nbsp; Was not this a good question on the part of R. Akiba? &mdash; R. 'Ulla the son of R. Idi said: [The implication drawn by R. Jose] is essential. For otherwise it might have occurred to you to apply [R. Akiba's] inference 'Men but not oxen' [exclusively to such] oxen as are comparable to men: Just as men are <i>Mu'ad</i>,<a id="k42a_5"><sup>5</sup></a>&nbsp; so also here the oxen referred to are <i>Mu'ad</i>, whereas in the case of <i>Tam</i> there should be liability. The Divine Law has therefore stated, <I>'The owner of the ox shall be quit'</I>, implying exemption [also in the case of <i>Tam</i>]. Said Raba thereupon: Is the native born to be on the earth and the stranger in the highest heavens?<a id="k42a_6"><sup>6</sup></a>&nbsp; No, said Raba. [The implication drawn by R. Jose] is essential [for this reason, that] you might have been inclined to apply the inference 'Men but not oxen' only to oxen which could be compared to men &mdash; just as men are <i>Mu'ad</i> so the oxen here referred to are <i>Mu'ad</i> &mdash; and to have extended the exemption to cases of <i>Tam</i> by an argument <i>a fortiori</i>. Therefore the Divine Law purposely states [further], <I>The owner of the ox shall be quit</I> [to indicate that only] in the case of <i>Tam</i> will there be exemption whereas in the case of <i>Mu'ad</i> there will be liability. Said Abaye to him: If that is so, why not argue in the same way in the case of payment for degradation; thus: [Scripture says] 'Men',<a id="k42a_7"><sup>7</sup></a>&nbsp; excluding oxen which could be compared with men: just as the men are <i>Mu'ad</i> so the oxen [thus exempted] must be <i>Mu'ad</i>, and <i>a fortiori</i> exemption is extended to cases of <i>Tam</i>. Thereupon the Divine Law on another occasion purposely states, <I>'The owner of the ox shall be quit'</I> [to indicate that only] in the case of <i>Tam</i> will there be exemption, whereas in the case of <i>Mu'ad</i> there will be liability [for degradation]? Now you could hardly say that this is indeed the case, for if so why not teach that, <I>'the owner of the ox shall be quit'</I> [means], according to R. Jose the Galilean, quit from compensating [both in the case of <i>Tam</i> killing] embryos and [in the case of it having caused] degradation?<a id="k42a_8"><sup>8</sup></a>&nbsp; &mdash; Abaye and Raba both therefore said: [You might have been inclined to suppose that] in the case of 'men' it is only where no mischief<a id="k42a_9"><sup>9</sup></a>&nbsp; [resulted to the woman] that a liability to pay [for the embryo is imposed] upon them whereas where a mischief [resulted to the woman] no civil liability<a id="k42a_10"><sup>10</sup></a>&nbsp; [is imposed] upon them,<a id="k42a_11"><sup>11</sup></a>&nbsp; but that it is not so with oxen, as in their case even if mischief [results to the woman] a liability to pay is imposed.<a id="k42a_12"><sup>12</sup></a>&nbsp; The Divine Law has therefore on another occasion purposely stated, <I>The owner of the ox shall be quit</I>, to indicate exemption [in all cases]. R. Adda b. Ahabah demurred to this, saying: Does then the matter of civil liability<a id="k42a_13"><sup>13</sup></a>&nbsp; depend upon the non-occurrence of mischief to the woman? Does this matter not depend upon intention [of the defendant]?<a id="k42a_14"><sup>14</sup></a>&nbsp; &mdash; R. Adda b. Ahabah therefore said: [You might have been inclined to think thus:] In the case of men where their purpose was to kill one another, even if mischief results to a woman, a civil liability<a id="k42a_13"><sup>13</sup></a>&nbsp; will be imposed, whereas where they purposed to kill the woman herself [who was in fact killed], no civil liability<a id="k42a_13"><sup>13</sup></a>&nbsp; would be imposed. In the case of oxen, however, even where their purpose was to kill the woman [who is indeed killed by them] a civil liability should be imposed for the embryo. [To prevent your reasoning thus] the Divine Law on another occasion purposely states, <I>'The owner of the ox shall be quit'</I> to indicate exemption [altogether in the case of oxen]. And so also R. Haggai upon returning from the South, came [to the College] and brought the teaching [of a Baraitha] with him stating the case in accordance with the interpretation given by R. Adda b. Ahabab.
</p><p>
	Another [Baraitha] teaches: <I>'The owner of the ox shall be quit'</I> [implies], according to the statement of R. Akiba, quit from compensating for [the killing of] a slave.<a id="k42a_15"><sup>15</sup></a>
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k42b_1:" Exactly as he argued against R. Eliezer, <i>supra</i> p. 236."
,k42b_2:" In which case the flesh could legitimately be used as food; cf. <i>infra</i> p. 255."
,k42b_3:" <i>Supra</i> p. 236."
,k42b_4:" This was the reason why R. Eliezer answered as he did, and not as suggested here that the ox was slaughtered before the sentence had been passed on it."
,k42b_5:" And if so, the original problem will recur: Why should R. Akiba not argue against himself as he did against R. Eliezer, <i>supra</i> p. 236."
,k42b_6:" <i>Supra</i> p. 179."
,k42b_7:" Cf. <i>supra</i> p. 180."
,k42b_8:" In the case of <i>Tam</i> injuring a human being."
,k42b_9:" Ex. XXI, 31."
,k42b_10:" In the case of <i>Mu'ad</i>."
,k42b_11:" I.e. <i>kofer</i>."
,k42b_12:" In the case of <i>Tam</i>."
,k42b_13:" There can thus no more arise the question, 'Since any actual liability in the case of the ox itself (being <i>Tam</i>) is not paid except out of its body, (why should not the owner say to the plaintiff) \"Bring it to the Court and be reimbursed out of it\"?' Cf. <i>supra</i> p. 236."
,k42b_14:" Wherefore then the special inference from the verse?"
,k42b_15:" That in the case of <i>Mu'ad</i>, <i>kofer</i> is paid, but not in the case of <i>Tam</i>."
,k42b_16:" In the case of <i>Mu'ad</i>."
,k42b_17:" V. p. 241, n. 3."
,k42b_18:" Ex. XXI, 29."
,k42b_19:" Ibid. 28."
,k42b_20:" Not to her husband."
,k42b_21:" Num. XXVII, 11."
,k42b_22:" B.B. 111b."
,k42b_23:" [So MS.M., v. Rashi.]"
,k42b_24:" That the husband does not inherit the compensation due to the woman."
,k42b_25:" As at the last moment of her life the liability for <i>kofer</i> was neither a chose in possession nor even a chose in action"
,k42b_26:" Cf. B. B. 113a and 125b."
,k42b_27:" Why not say that as soon as the blow was ascertained to have been fatal the payment of <i>kofer</i> should be enforced?"
,k42b_28:" Implying that the payment of money as <i>kofer</i> is, like the killing of the ox, not enforced before the victim has actually died."
,k42b_29:" <i>Infra</i> p. 280."
,k42b_30:" V. Ex. XXI, 22."
,k42b_31:" And the husband was of the same category. "
}

txt:
<p>
But why should R. Akiba not argue against himself,<a id="k42b_1"><sup>1</sup></a>&nbsp; Since any actual liability in the case of the ox itself [being a <i>Tam</i>] is not paid except out of its body [why should not the owner say to the plaintiff] 'Bring it to the Court of Law and be reimbursed out of it'? &mdash; R. Samuel son of R. Isaac thereupon said: [This creates no difficulty; the case is one] where the owner of the ox slaughtered it before [the passing of the sentence].<a id="k42b_2"><sup>2</sup></a>&nbsp; You might suggest in that case that payment should be made out of the flesh; we are therefore told that since the ox [as such] had been liable [to be stoned] to death, no payment could be made out of it even where it was slaughtered [before the passing of the sentence]. But if so, why [did not R. Akiba think of this reply to the objection he made] to R. Eliezer<a id="k42b_3"><sup>3</sup></a>&nbsp; also, viz. that the owner of the ox slaughters it beforehand? &mdash; He could indeed have done this, but he thought that R. Eliezer<a id="k42b_3"><sup>3</sup></a>&nbsp; also probably had another explanation better than this which he would tell him. But why did R. Eliezer [himself] not answer him that he referred to a case where the owner slaughtered the ox beforehand? &mdash; He could answer: It was only there where the ox aimed at killing a beast but [by accident] killed a man, in which case it is not liable [to be stoned] to death, and you might therefore have thought there was a liability [for <i>kofer</i>], that there was a need for Scripture to indicate that there is [in fact] no liability. But here where the ox had originally been liable [to be stoned] to death, no Scriptural indication should be needed [to exempt from liability] even where the ox has meanwhile been slaughtered.<a id="k42b_4"><sup>4</sup></a>&nbsp; But should not the same argument be employed also regarding the exposition of R. Akiba?<a id="k42b_5"><sup>5</sup></a>&nbsp; &mdash; R. Assi therefore said: The explanation of this matter was delivered to me from the mouth of a great man, to wit, R. Jose b. Hanina [who said]: You might be inclined to think that since R. Akiba said, 'Even in the case of <i>Tam</i> injuring Man the payment of the difference must be in full',<a id="k42b_6"><sup>6</sup></a>&nbsp; the compensation for killing a slave should also be paid out of the best [of the general estate]. Divine Law therefore states, The owner of the ox shall be quit, [implying that this is not the case]. Said R. Zera to R. Assi: Did R. Akiba himself not qualify this liability? For it was taught:<a id="k42b_7"><sup>7</sup></a>&nbsp; R. Akiba says, As it might be thought that this full payment<a id="k42b_8"><sup>8</sup></a>&nbsp; has to be made out of the best [of the general estate], it is therefore further stated, According to this judgment shall it be done unto him,<a id="k42b_9"><sup>9</sup></a>&nbsp; [to emphasize that] payment is to be made out of its body, but no payment is to be made out of any other source whatsoever? &mdash; Raba therefore [gave a different explanation] saying: The implication is still essential, for otherwise you might have thought that since<a id="k42b_10"><sup>10</sup></a>&nbsp; I have to be more strict in the case of [killing] a slave than in the case of a freeman &mdash; for in the case of a freeman worth one <i>sela'</i> the payment<a id="k42b_11"><sup>11</sup></a>&nbsp; will be one <i>sela'</i>, and of one worth thirty the payment will be thirty, whereas in the case of a slave even where he was worth one <i>sela'</i> the payment will have to be thirty<a id="k42b_10"><sup>10</sup></a>&nbsp; &mdash; there should be compensation for [the killing of] a slave<a id="k42b_12"><sup>12</sup></a>&nbsp; even out of the best of the estate,<a id="k42b_13"><sup>13</sup></a>&nbsp; the Divine Law therefore states, 'The owner of the ox should be quit' [implying that this is not the case]. It was taught in accordance with [the explanation given by] Raba: 'The owner of the ox should be quit' [implies], according to the statement of R. Akiba, quit from compensation for [the killing of] a slave. But is this not strictly logical?<a id="k42b_14"><sup>14</sup></a>&nbsp; For since there is liability [to pay compensation] for [the killing of] a slave and there is liability [to pay compensation] for [the killing of] a freeman;<a id="k42b_11"><sup>11</sup></a>&nbsp; just as where there is liability [to pay compensation] for [the killing of] a freeman a distinction has been made by you between <i>Tam</i> and <i>Mu'ad</i>,<a id="k42b_15"><sup>15</sup></a>&nbsp; why then in the case where compensation has to be paid for [the killing of] a slave should you similarly not make a distinction between <i>Tam</i> and <i>Mu'ad</i>? This conclusion could moreover be arrived at by the <i>a fortiori</i> argument: If in the case of [killing] a freeman where the compensation<a id="k42b_11"><sup>11</sup></a>&nbsp; is for the whole of his value a distinction has been made by you between <i>Tam</i> and <i>Mu'ad</i>,<a id="k42b_15"><sup>15</sup></a>&nbsp; then in the case of [killing] a slave where the compensation amounts only to thirty [<i>sela'</i>] should it not stand to reason that a distinction must be made by us between <i>Tam</i> and <i>Mu'ad</i>? &mdash; Not so, because (on the other hand] I am<a id="k42b_16"><sup>16</sup></a>&nbsp; more strict in the case of [killing] a slave than in that of [killing] a freeman. For in the case of a freeman, where he was worth one <i>sela'</i> the compensation will be one <i>sela'</i>,<a id="k42b_17"><sup>17</sup></a>&nbsp; [where he was worth] thirty the compensation will be thirty, whereas in the case of a slave even where he was worth one <i>sela'</i> the compensation has to be thirty.<a id="k42b_16"><sup>16</sup></a>&nbsp; This might have inclined us to think that [even in the case of <i>Tam</i>] there should be liability. It was therefore [further stated], The owner of the ox shall be quit, implying quit from compensation for [the killing of] a slave.
</p><p>
	Our Rabbis taught: [It is written,] <I>But it hath killed a man or a woman</I>.<a id="k42b_18"><sup>18</sup></a>&nbsp; R. Akiba says: What does this clause come to teach us? If that there is liability for the goring to death of a woman as of a man, has it not already been stated, <I>if an ox gore a man or a woman</I>?<a id="k42b_19"><sup>19</sup></a>&nbsp; It must therefore have intended to put the woman on the same footing as the man: just as in the case of a man the compensation<a id="k42b_17"><sup>17</sup></a>&nbsp; will go to his heirs, so also in the case of a woman the compensation will go to her heirs.<a id="k42b_20"><sup>20</sup></a>&nbsp; Did R. Akiba thereby mean [to put forward the view] that the husband was not entitled to inherit her? But has it not been taught: <I>'And he shall inherit her</I>;<a id="k42b_21"><sup>21</sup></a>&nbsp; this shows that the husband is entitled to inherit his wife. This is the view of R. Akiba'?<a id="k42b_22"><sup>22</sup></a>&nbsp; &mdash; Resh Lakish therefore said: R. Akiba<a id="k42b_23"><sup>23</sup></a>&nbsp; stated this<a id="k42b_24"><sup>24</sup></a>&nbsp; only with reference to <i>kofer</i> which, since it has not to be paid save after [the] death [of the victim], is regarded as property in anticipation,<a id="k42b_25"><sup>25</sup></a>&nbsp; and a husband is not entitled to inherit property in anticipation as he does property in actual possession.<a id="k42b_26"><sup>26</sup></a>&nbsp; But why [should <i>kofer</i> not be paid except after death]?<a id="k42b_27"><sup>27</sup></a>&nbsp; &mdash; Scripture says: <I>But it hath killed a man or a woman; the ox shall be stoned, and its owner also shall be put to death. If there be laid on him a ransom</I>.<a id="k42b_28"><sup>28</sup></a>&nbsp; But did R. Akiba not hold that damages [for injury also are not inherited by the husband]? Has it not been taught:<a id="k42b_29"><sup>29</sup></a>&nbsp; If one hurt a woman so that her embryo departed from her, compensation for Depreciation and for Pain should be given to the woman, compensation for the value of the embryo to the husband.<a id="k42b_30"><sup>30</sup></a>&nbsp; If the husband is not [alive], his due should be given to his heirs, and if the woman is not [alive at the time of payment] her due should be given to her heirs. [Hence] if the woman was a slave that had been emancipated<a id="k42b_31"><sup>31</sup></a>
</P>


lvr: 41
dfh: a
notes:
 ntes={k43a_1:" For otherwise the husband would inherit her claim for damages."
,k43a_2:" Since she was his wife no more."
,k43a_3:" The Hebrew term [H] (<I>'husband'</I> E.V.) is thus understood."
,k43a_4:" Ex. XXI, 22."
,k43a_5:" That the damages will be paid to her heirs and not to the husband."
,k43a_6:" B.B. 124b."
,k43a_7:" After the death of a creditor."
,k43a_8:" In accordance with Deut. XXI. 17."
,k43a_9:" Because the debt collected after the death of the father was not a <I>chose</I> in possession in the lifetime of the creditor, and the first-born takes a double portion only <I>'of all that'</I> his father<I> 'hath'</I> at the time of death. A husband is in a similar position, as he too has the right to inherit only <I>chooses</I> in possession at the lifetime of his wife."
,k43a_10:" V. p. 243, n. 10."
,k43a_11:" For the money collected is considered in the eye of the law as the money which was lent to the father of the debtor."
,k43a_12:" V. p. 243, n. 13."
,k43a_13:" V. p. 243, n. 10."
,k43a_14:" That debts collected after the death of a creditor whether in species or out of land will be subject to the law of double portion in the case of a first-born and similarly to the law of a husband inheriting his wife. v. B.B. (Sonc. ed.) p. 518."
,k43a_15:" V. Ex. XXI, 32."
,k43a_16:" As e.g., where it killed a human being by accident."
,k43a_17:" Ex. XXI, 29."
,k43a_18:" Keth. III, 9."
,k43a_19:" Where the defendant admitted that his ox killed a man."
,k43a_20:" Without the corroboration of witnesses; v. <i>supra</i> p. 236, n. 8."
,k43a_21:" I.e., the pecuniary loss sustained through the man's death. [It is distinguished from <I>kofer</I> in that the payment of the latter is an act of atonement to be compounded in no circumstance; v. Tosaf. s.v. [H].]"
,k43a_22:" As the payment of thirty <i>shekels</i> in the case of a slave is of the nature of a penalty which could not be inflicted on the strength of the word of mouth of the defendant."
,k43a_23:" Does this not prove that in the case of manslaughter committed by cattle no payment for the pecuniary loss would have to be made if you except <I>kofer</I> in the case of a freeman, and the thirty <i>shekels</i> in the case of a slave?"
,k43a_24:" I.e. the pecuniary loss sustained through his death."
,k43a_25:" Which has to be paid even where <I>kofer</I> could for some reason or other not be imposed upon the defendant. "
}

txt:
<p>
or a proselytess the defendant would be the first to acquire title [to all the claims and thus be released from any liability]? &mdash; Rabbah thereupon said: We deal [in this latter case] with a divorced woman.<a id="k43a_1"><sup>1</sup></a>&nbsp; So also said R. Nahman [that we deal here] with a divorced woman. [But] I might [here] object: If she was divorced, why should she not also share in the compensation for the value of the embryo?<a id="k43a_2"><sup>2</sup></a>&nbsp; &mdash; R. Papa thereupon said: The Torah awarded the value of embryos to the husband even where the cohabitation had taken place not in a married state, the reason being that Scripture says: <I>According as the cohabitator<a id="k43a_3"><sup>3</sup></a>&nbsp; of the woman will lay upon him</I>.<a id="k43a_4"><sup>4</sup></a>
</p><p>
	But why should not Rabbah refer the ruling<a id="k43a_5"><sup>5</sup></a>&nbsp; to the case where the payment of the compensation had been collected in money, and R. Nahman to the case where it had been collected out of land? For did Rabbah not say<a id="k43a_6"><sup>6</sup></a>&nbsp; that where an outstanding debt had been collected<a id="k43a_7"><sup>7</sup></a>&nbsp; out of land, the first-born son would take in it [a double portion],<a id="k43a_8"><sup>8</sup></a>&nbsp; but where it had been collected in money the first-born son would not [take in it a double portion]?<a id="k43a_9"><sup>9</sup></a>&nbsp; Or again did R. Nahman not say<a id="k43a_10"><sup>10</sup></a>&nbsp; that [on the contrary] where the debt had been collected in money the first-born would take [in it a double portion],<a id="k43a_11"><sup>11</sup></a>&nbsp; but where it has been collected out of land, the first-born son would not [take in it a double portion]?<a id="k43a_12"><sup>12</sup></a>&nbsp; &mdash; It could, however, be answered that these statements were made on the basis of the despatch of the Western Sages according to the view of the Rabbis,<a id="k43a_13"><sup>13</sup></a>&nbsp; whereas in the case here [where Rabbah and R. Nahman interpreted it to have referred to a divorced woman] they were stating the law as maintained by Rabbi.<a id="k43a_14"><sup>14</sup></a>
</p><p>
	R. Simeon b. Lakish said: Where an ox killed a slave without purposing to do so, there would be exemption from the payment of thirty <i>shekels</i>, since it is written, He shall give unto their master thirty <i>shekels</i> of silver, and the ox shall be stoned,<a id="k43a_15"><sup>15</sup></a>&nbsp; [implying that] where the ox would be liable to be stoned the owner is to pay thirty <i>shekels</i>, but where the ox would not be liable to be stoned<a id="k43a_16"><sup>16</sup></a>&nbsp; the owner need not pay thirty <i>shekels</i>. Rabbah [similarly] said: Where an ox killed a freeman without purposing to do so there would be exemption from <I>kofer</I>, for it is written<a id="k43a_17"><sup>17</sup></a>&nbsp; The ox should be stoned and its owner also shall be put to death. If there be laid on him a ransom, [implying that] where the ox has to be stoned<a id="k43a_16"><sup>16</sup></a>&nbsp; the owner has not to pay <I>kofer</I>. Abaye raised an objection to this [from the following Mishnah]:<a id="k43a_18"><sup>18</sup></a>&nbsp; If a man says: 'My ox has killed so-and-so' or 'has killed so-and-so's' ox, [in either case] the defendant has to pay in virtue of his own admission. Now, does the payment [in the former case]<a id="k43a_19"><sup>19</sup></a>&nbsp; not mean <I>kofer</I> [though the ox would not become liable to be stoned through the owner's admission]?<a id="k43a_20"><sup>20</sup></a>&nbsp; &mdash; No; [it means for] the actual value.<a id="k43a_21"><sup>21</sup></a>&nbsp; If [it means payment for] the pecuniary loss, read the concluding clause: [If he says], 'My ox has killed so-and-so's slave,' the defendant is not liable to pay in virtue of his own admission.<a id="k43a_22"><sup>22</sup></a>&nbsp; Now, if [the payment referred to in the first clause was meant for] the pecuniary loss, why is there no liability [to pay for the pecuniary loss in the case of a slave]?<a id="k43a_23"><sup>23</sup></a>&nbsp; &mdash; He, however, said to him: I could have answered you that the opening clause refers to the actual value<a id="k43a_24"><sup>24</sup></a>&nbsp; [of the killed person],<a id="k43a_25"><sup>25</sup></a>&nbsp; whereas the concluding clause refers to the fixed fine [of thirty <i>shekels</i>]. As, however, I have no intention to answer you by means of forced interpretations, [I will say that] both clauses do in fact refer to the actual value [of the killed person].
</P><hr noshade size="1" width="100%"><P></P>


lvr: 41
dfh: b
notes:
 ntes={k43b_1:" As the ox in this case would be subject to be stoned, [and where the ox is stoned, the owner pays <I>kofer</I>]."
,k43b_2:" I.e. <I>kofer</I>."
,k43b_3:" V. p. 244, n. 6."
,k43b_4:" [This shows that pecuniary loss is paid in the case of a slave on his own admission even as in the case of a freeman.]"
,k43b_5:" [Though in the case of self-admission there will still be a distinction between the death of a freeman and that of a slave (by an ox) in regard to the payment of pecuniary loss.]"
,k43b_6:" [That there is payment of pecuniary loss, even where <I>kofer</I> is not payable.]"
,k43b_7:" [If intentionally, the civil liability would merge with the graver capital charge.]"
,k43b_8:" For the barn and the goat but not for the slave, as he should have run away."
,k43b_9:" <i>Infra</i> 61b."
,k43b_10:" By not extending the ruling in the second clause to refer also to the barn but confining it to the goat which should have run away, and to the slave, on the alleged ground that no compensation should be paid for the value of the loss occasioned by fire burning a human being to death."
,k43b_11:" The ruling of exemption in the second clause is thus extended even to the barn."
,k43b_12:" <i>Supra</i> p. 38."
,k43b_13:" For which see <i>supra</i> p. 18 and <i>infra</i> 50b."
,k43b_14:" For it merges with the graver capital charge."
,k43b_15:" Ex. XXI, 30; for it is surely neither an optional nor a conditional liability."
,k43b_16:" ['If' [H] implying a case where <I>kofer</I> is imposed, though the ox is not stoned, i.e. where there was no intention (contrary to the view of Rabbah, <i>supra</i>); v. Malbim on Ex. XXI, 30.]"
,k43b_17:" As R. Johanan and Resh Lakish might perhaps have differed on this point."
,k43b_18:" In Ex. XXI, 32."
,k43b_19:" It could thus hardly have any bearing on the law of payment."
,k43b_20:" Ibid. 31."
,k43b_21:" Cf. Nid. 44a."
,k43b_22:" See Lev. XXIV, 17 and Mek. on Ex. XXI, 12. "
}

txt:
<p>
But [it is only in the case of] a freeman where <I>kofer</I> may sometimes be paid on the strength of the defendant's own admission &mdash; as where witnesses appeared and testified to the ox having killed [a freeman] without, however, knowing whether it was still <i>Tam</i> or already <I>Mu'ad</I> and the owner admits it to have been <I>Mu'ad</I>, in which case <I>kofer</I> would be paid on the strength of his own admission<a id="k43b_1"><sup>1</sup></a>&nbsp; &mdash; that [we say] where witnesses are not at all available payment will be made for the actual value [of the loss]. [Whereas] in the case of a slave where the fixed fine could never be paid through the defendant's own admission &mdash; since even where witnesses appear and testify to the ox having killed [a slave], without knowing whether it had still been <i>Tam</i> or already <I>Mu'ad</I>, and the owner admits that it had already been <I>Mu'ad</I>, no fine would be paid &mdash; [we say] where no witnesses at all are available there will be no payment even for the amount of the value [of the loss].
</p><p>
	R. Samuel son of R. Isaac raised an objection [from the following teaching]: Wherever there is liability in the case of a freeman,<a id="k43b_2"><sup>2</sup></a>&nbsp; there is liability in the case of a slave both for <I>kofer</I> and for stoning. Now, how could <I>kofer</I> ever be [paid] in the case of a slave?<a id="k43b_3"><sup>3</sup></a>&nbsp; Does it therefore not surely mean the payment for the amount of the value [of the loss]?<a id="k43b_4"><sup>4</sup></a>&nbsp; &mdash; Some say that he raised the objection and he himself answered it, others say that Rabbah said to him: What is meant is as follows: Wherever there is liability for <I>kofer</I> [i.e.] in the case of a freeman killed intentionally [by the ox] as testified by witnesses, there is [a similar] liability for the fine in the case of a slave, and wherever there is liability for the amount of the value [of the loss, i.e.,] in the case of a freeman killed unintentionally, as testified by witnesses, there is also liability for the amount of the value [of the loss] in the case of a slave killed unintentionally, as testified by witnesses.<a id="k43b_5"><sup>5</sup></a>&nbsp; Raba, however, said to him: If so,<a id="k43b_6"><sup>6</sup></a>&nbsp; why in the case of Fire unintentionally<a id="k43b_7"><sup>7</sup></a>&nbsp; burning a human being [to death], as testified by witnesses, should there also not be liability to pay the amount of the value [of the loss]? And how did Raba know that no payment would be made [in this case]? Shall we say from the following Mishnah: '[Where fire was set to a barn and] a goat had been bound to it and a slave was loose near by it and all were burnt [with the barn] there would be liability.<a id="k43b_8"><sup>8</sup></a>&nbsp; But where the slave had been chained to it, and the goat loose near by it and all were burnt with it there would be no liability.'<a id="k43b_9"><sup>9</sup></a>&nbsp; [But how could Raba prove his point from this case here?]<a id="k43b_10"><sup>10</sup></a>&nbsp; Did Resh Lakish not state that this case here should be explained as one where e.g., the defendant put the actual fire upon the body of the slave so that [no other<a id="k43b_11"><sup>11</sup></a>&nbsp; but] the major punishment had to be inflicted? But [it may perhaps be suggested that Raba derived his point] from the following [Baraitha]: For it has been taught: 'The excess in [the liability] for Fire over [that for] Pit is that Fire is apt to consume both things fit for it and things unfit for it, whereas this is not so in the case of Pit.'<a id="k43b_12"><sup>12</sup></a>&nbsp; It is not, however, said that 'in the case of Fire [where a human being has been burnt to death] unintentionally there is liability to pay for the pecuniary loss, whereas it is not so in Pit'.<a id="k43b_13"><sup>13</sup></a>&nbsp; But might [the Baraitha] not perhaps have stated [some points] and omitted [others]? &mdash; It must therefore have been that Raba himself was questioning whether in the case of Fire [burning a human being] unintentionally there would be payment for the amount of the value [of the loss] or whether there would be none. Should we say that it was only in the case of cattle &mdash; where if the manslaughter was unintentional <I>kofer</I> would be paid &mdash; that for unintentional manslaughter the amount of the value [of the loss] is to he paid &mdash; whereas in the case of Fire &mdash; where for intentional manslaughter no <I>kofer</I> would be paid<a id="k43b_14"><sup>14</sup></a>&nbsp; &mdash; there should be no payment of the amount of the value [of the loss] for unintentional manslaughter? Or [shall we] perhaps [rather say that] since in the case of Cattle [killing a person] unintentionally where no <I>kofer</I> is paid, the value [of the loss] is nevertheless paid, so should it also be with Fire where no <I>kofer</I> would be paid for intentional manslaughter, that nevertheless the value [of the loss] caused by unintentional manslaughter should be paid? But as no information was available to us [on this matter], it remained undecided.
</p><p>
	When R. Dimi arrived [from Palestine] he said on behalf of R. Johanan: [The word] <I>kofer</I> [I understand]. What is taught by [the expression] If <I>kofer</I>?<a id="k43b_15"><sup>15</sup></a>&nbsp; It implies the inclusion of [the payment of] <I>kofer</I> in cases where there was no intention<a id="k43b_16"><sup>16</sup></a>&nbsp; [to kill] just as <I>kofer</I> [is paid] where there was intention. Abaye however said to him: If so, the same could now surely also be argued in the case of a slave: viz.: What is taught by [the expression] <i>If a slave</i>?<a id="k43b_15"><sup>15</sup></a>&nbsp; [It implies] that a slave killed unintentionally is subject to the same law as a slave, killed intentionally? If that is so, why did Resh Lakish say that where an ox killed a slave unintentionally there would be exemption from the thirty <i>shekels</i>? He replied: Would you confute one person's view by citing another?<a id="k43b_17"><sup>17</sup></a>
</p><p>
	When Rabin arrived [from Palestine] he said on behalf of R. Johanan: [The word] a slave<a id="k43b_18"><sup>18</sup></a>&nbsp; [I understand], What is taught by [the expression] If a slave? [It implied] that a slave [killed] unintentionally is subject to the same law as a slave [killed] intentionally. Now as regards Resh Lakish [who was of a different view in this respect] shall we also assume that just as he drew no lesson from the distinction between <i>'a slave'</i> and <i>'if a slave'</i>, so he drew no lesson from the distinction between '<I>kofer</I>' and 'if <I>kofer</I>'? &mdash; I may say that this was not so. From the distinction between <i>'a slave'</i> and <i>'if a slave'</i> he did not draw a lesson, whereas from the distinction between '<I>kofer</I>' and 'if <I>kofer</I>' he did draw a lesson. Why this difference? The expressions <i>'a slave'</i> and '<i>if a slave'</i> do not occur in the context dealing with payment,<a id="k43b_19"><sup>19</sup></a>&nbsp; whereas the expressions '<I>kofer</I>' and 'if <I>kofer</I>' do occur in a context dealing with payment.
</p><p>
	THE SAME JUDGMENT APPLIES IN THE CASE OF A SON OR IN THAT OF A DAUGHTER. Our Rabbis taught: [The text] <i>Whether it have gored a son or have gored a daughter</i><a id="k43b_20"><sup>20</sup></a>&nbsp; [implies] that there is liability in the case of little ones just as in that of grown-ups. But surely this is only logical! For since there is a liability in the case of Man killing man there is similarly a liability in the case of Cattle killing man, just as where Man has killed man no distinction is made between [the victims being] little ones or grown-ups,<a id="k43b_21"><sup>21</sup></a>&nbsp; so also where Cattle killed man no distinction should be made between [the victims being] little ones or grown-ups? Moreover there is an <i>a fortiori</i> argument [to the same effect]; for if in the case of Man killing man where the law did no make [murderers who are] minors liable as [it did make] grown-ups,<a id="k43b_22"><sup>22</sup></a>&nbsp; it nevertheless imposed there liability for little ones as for grown-ups,
</P>


