Babylonian Talmud: Tractate Baba Kamma

Folio 3a

to entirety.¹

The Master has [just] enunciated: 'And he shall send forth denotes Foot, as it is [elsewhere] expressed, That send forth the feet of the ox and the ass.' His reason then is that the Divine Law²  [also] says, That send forth the feet of the ox and the ass, but even were it not so, how else could you interpret the phrase?³  It could surely not refer to Horn which is already [elsewhere] set down,⁴  nor could it refer to Tooth since this is likewise [already] set down?³  — It was essential⁵  as otherwise it might have entered your mind to regard both [phrases]⁶  as denoting Tooth: the one when there is destruction of the corpus and the other when the corpus remains unaffected; it is therefore made known to us that this is not the case. Now that we have identified it with Foot, whence could be inferred the liability of Tooth in cases of non-destruction of the corpus? From the analogy of Foot;⁷  just as [in the case of] Foot no difference in law is made between destruction and non-destruction of corpus, so [in the case of] Tooth no distinction is made between destruction and non-destruction of corpus.

The Master has [just] enunciated: 'And it shall consume denotes Tooth, as elsewhere expressed, As the tooth consumeth to entirety.' His reason then is that the Divine Law [also] says, As the tooth consumeth to entirety, but even were it not so, how else could you interpret the phrase? It could surely not refer to Horn which is already elsewhere set down,⁴  nor could it refer to Foot, since this is likewise elsewhere set down?³  — It is essential,⁸  as otherwise it might have entered your mind to regard both phrases⁶  as denoting Foot: the one when the cattle went of its own accord and the other⁹  when it was sent by its owner [to do damage]; it is, therefore, made known to us that this is not so. Now that we have identified it with Tooth, whence could be inferred the liability of Foot in cases when the cattle went of its own accord? — From the analogy of Tooth;¹⁰  just as in the case of Tooth there is no difference in law whether the cattle went of its own accord or was sent by its owner, so [in the case of] Foot there is no difference in law whether the cattle went of its own accord or was sent by its owner.

But supposing Divine Law had only written, And he shall send forth,¹¹  omitting And it shall consume, would it not imply both Foot and Tooth? Would it not imply Foot, as it is written, That send forth the feet of the ox and the ass? Again, would it not also imply Tooth, as it is written, And the teeth of beasts will I send upon them?¹²  — If there were no further expression I would have said either one or the other [might be meant], either Foot, as the damage done by it is of frequent occurrence, or Tooth, as the damage done by it affords gratification.¹³  Let us see now, they are equally balanced, let them then both be included, for which may you exclude?¹⁴  — It is essential [to have the further expression], for [otherwise] it might have entered your mind to assume that these laws [of liability] apply only to intentional trespass,¹⁵  exempting thus cases where the cattle went of its own accord; it is, therefore, made known to us that this is not the case.

The derivative of Tooth, what is it? — When [the cattle] rubbed itself against a wall for its own pleasure [and broke it down], or when it spoiled fruits [by rolling on them] for its own pleasure. Why are these cases different? Just as Tooth affords gratification from the damage [it does] and, being your possession, is under your control, why should not this also be the case with its derivatives which similarly afford gratification from the damage [they do] and, being your possession are under your control? — The derivative of Tooth is therefore equal to Tooth, and R. Papa's statement [to the contrary]¹⁶  refers to the derivative of Foot.

What is the derivative of Foot? — When it did damage while in motion either with its body or with its hair, or with the load [which was] upon it, or with the bit in its mouth, or with the bell on its neck. Now, why should these cases be different? Just as Foot does frequent damage and, being your possession, is under your control, why should not this also be the case with its derivatives which similarly do frequent damage and, being your possession, are under your control? The derivative of Foot is thus equal to Foot, and R. Papa's statement [to the contrary]¹⁷  refers to the derivative of the Pit.

What is the derivative of Pit? It could hardly be said that the Principal is a pit of ten handbreadths deep and its derivative one nine handbreadths deep, since neither nine nor ten is stated in Scripture! — That is no difficulty: [as] And the dead beast shall be his¹⁸  the Divine Law declares, and it was quite definite with the Rabbis¹⁹  that ten handbreadths could occasion death, whereas nine might inflict injury but could not cause death. But however this may be, is not the one [of ten] a principal [cause] in the event of death, and the other [of nine] a principal [cause] in the event of [mere] injury? — Hence [Rab Papa's statement] must refer to a stone, a knife and luggage which were placed on public ground and did damage. In what circumstances? If they were abandoned [there], according to both Rab and Samuel,²⁰  they would be included in [the category of] Pit;²¹

1. I Kings XIV, 10. ['Galal', E.V.: 'dung', is interpreted as 'marble', 'ivory', which teeth resemble; cf. Ezra V, 8. V. Tosaf. a.l.]
2. [Lit., 'The Merciful One,' i.e., God, whose word Scripture reveals. V. Bacher, Exeg. Term., II, 207f.]
3. V. p. 4, n. 6.
4. Ex. XXI, 35-36.
5. To cite the verse from Isaiah.
6. Send forth and consume, cf. n. 2.
7. Where no term expressing 'Consumption' is employed.
8. To cite the verse from Kings.
9. I.e., 'He shall send forth'.
10. Where no term expressing 'sending forth' is employed.
11. V. p. 4, n. 6.
12. Deut. XXXII, 24.
13. And thus there would be no definite sanction for action in either.
14. V., however, infra p. 17, that Tooth and Foot were recorded in Scripture not for the sake of liability but to be immune for damage done by them on public ground.
15. As signified by, 'He shall send forth'.
16. Cf. supra p. 2.
17. V. p. 6, n. 6.
18. Ex. XXI, 34.
19. Infra 50b.
20. Infra p. 150.
21. Being, like Pit, a public nuisance.

if [on the other hand] they were not abandoned, then, according to Samuel, who maintains that all public nuisances come within the scope of the law applicable to Pit, they would be included in Pit, whereas according to Rab, who maintains that in such circumstances they rather partake of the nature of Ox, they are equivalent in law to Ox.¹

[And even according to Samuel] why should [the derivatives of Pit] be different? Just as Pit is from its very inception a source of injury, and, being your possession, is under your control, so is the case with these [derivatives] which from their very inception [as nuisances] also are sources of injury and being your possession, are under your control! — The derivative of Pit is therefore equal to Pit, and R. Papa's statement [to the contrary] refers to the derivative of 'Spoliator'.

But what is it? If we are to follow Samuel, who takes 'Spoliator' to denote Tooth,²  behold we have [already] established that the derivative of Tooth equals Tooth;³  if on the other hand Rab's view is accepted, identifying 'Spoliator' With Man,²  what Principals and what derivatives could there be in him? You could hardly suggest that Man [doing damage] while awake is Principal, but becomes derivative [when causing damage] while asleep, for have we not learnt:⁴  'Man is in all circumstances Mu'ad,⁵  whether awake or asleep'? — Hence [R. Papa's statement⁶  will] refer to phlegm⁷  [expectorated from mouth or nostrils]. But in what circumstances? If it did damage while in motion, it is [man's] direct agency! If [on the other hand] damage resulted after it was at rest, it would be included, according to both Rab and Samuel,⁸  in the category of Pit! — The derivative of 'Spoliator' is therefore equal to 'Spoliator'; and R. Papa's statement [to the contrary]⁶  refers to the derivative of Fire.

What is the derivative of Fire? Shall I say it is a stone, a knife and luggage which having been placed upon the top of one's roof were thrown down by a normal wind and did damage? Then in what circumstances? If they did damage while in motion, they are equivalent to Fire; and why should they be different? Just as Fire is aided by an external force, and, being your possession, is under your control, so also is the case with these [derivatives] which are aided by an external force, and, being your possession, are under your control! — The derivative of Fire is therefore equal to Fire; and R. Papa's statement [to the contrary]⁶  refers to the derivative of Foot.

'Foot'! Have we not established that the derivative of Foot is equal to Foot?⁹  — There is the payment of half damages done by pebbles [kicked from under an animal's feet] — a payment established by tradition.¹⁰  On account of what [legal] consequence is it designated 'derivative of Foot'?¹¹  So that the payment should likewise be enforced [even] from the best of the defendant's possessions.¹²  But did not Raba question whether the half-damage of Pebbles is collected only from the body of the animal or from any of the defendant's possessions?¹³  — This was doubtful [only] to Raba, whereas R. Papa was [almost] certain about it [that the latter is the case]. But according to Raba, who remained doubtful [on this point], on account of what [legal] consequence is it termed 'derivative of Foot'?¹⁴  — So that it may also enjoy exemption [where the damage was done] on public ground.¹⁵

THE SPOLIATOR [MAB'EH] AND THE FIRE etc. What is [meant by] MAB'EH? — Rab said: MAB'EH denotes Man [doing damage], but Samuel said: MAB'EH signifies Tooth [of trespassing cattle]. Rab maintains that MAB'EH denotes Man,¹⁶  for it is written: The watchman said: The morning cometh, and also the night — if ye will enquire, enquire ye.¹⁷  Samuel [on the other hand] holds that MAB'EH signifies Tooth, for it is written: How is Esau searched out! How are his hidden places sought out!¹⁸  But how is this deduced?¹⁹  As rendered by R. Joseph:²⁰  How was Esau ransacked? How were his hidden treasures exposed?²¹

Why did not Rab agree with [the interpretation of] Samuel? — He may object: Does the Mishnah employ the term NIB'EH²²  [which could denote anything 'exposed']?

Why [on the other hand] did not Samuel follow [the inter pretation of] Rab? — He may object: Does the Mishnah employ the term BO'EH²³  [which could denote 'an enquirer']?

But in fact the Scriptural quotations could hardly bear out the interpretation of either of them. Why then did not Rab agree with Samuel? — THE OX [in the Mishnah] covers all kinds of damage done by ox.²⁴  How then will Samuel explain the fact that ox has already been dealt with? — Rab Judah explained: THE OX [in the Mishnah] denotes Horn, while MAB'EH stands for Tooth; and this is the sequence in the Mishnah: The aspects of Horn, which does not afford gratification from the injury [are not of such order of gravity] as those of Tooth which does afford gratification from the damage;²⁵

1. The derivatives of which are equal to the Principal.
2. Infra p. 9.
3. Supra p. 7.
4. Infra p. 136.
5. I.e., civilly liable in full for all misdeeds.
6. V. p. 6, n. 6.
7. I.e., the derivative of Man.
8. V. p. 7, n. 4.
9. Supra p. 7.
10. Cf. infra p. 80.
11. Since it pays only half the damage.
12. Unlike half damages in the case of Horn where the payment is collected only out of the body of the animal that did the damage.
13. Infra p. 83.
14. V. p. 8, n. 10.
15. Just as is the case with Foot, cf. infra p. 17.
16. As possessing freedom of will and the faculty of discretion and enquiry, i.e., constituting a cultural and rational being; idiots and minors are thus excluded, cf. infra p. 502.
17. [H] Isa. XXI, 12; the root in each case being the same.
18. [H] Ob. I, 6; the root in each case being the same.
19. I.e., how could a term denoting 'seeking out' stand for Tooth?
20. Who was exceptionally well conversant with Targumic texts. Some explain it on account of his having been blind (v. infra p. 501), and thus unable to cite the original Biblical text because of the prohibition to recite orally passages from the Written Law, cf. Git. 60a. [Others ascribe the edition of the Targum on the prophets to him, v. Graetz (Geschichte IV, 326.]
21. [H] (E.V.: sought out), translated exposed, indicates exposure and may therefore designate Tooth which is naturally hidden but becomes exposed in grazing.
22. In the passive voice.
23. In the kal denoting mere action; the causative (hiph'il) is used with reference to Tooth which the animal exposes in grazing.
24. Cattle, including Tooth.
25. And therefore the liability of Tooth could not he derived from that of Horn.