Babylonian Talmud: Tractate Baba Kamma

Folio 93a

but subsequently it is written: Behold I send an angel before thee to keep thee by the way.¹

Raba [again] said to Rabbah b. Mari: Whence can be derived the popular saying: 'Behind an owner of wealth chips are dragged along'? — He replied: As it is written: And Lot also who went with Abram had flocks and herds and tents.²

R. Hanan said: He who invokes the judgment of Heaven against his fellow is himself punished first, as it says, And Sarai said unto Abram, My wrong be upon thee³  etc., and it is subsequently written, And Abraham came to mourn for Sarah, and to weep for her.⁴  This, however, is the case only where justice could be obtained in a temporal Court of Law. R. Isaac said: Woe to him who cries [for divine intervention] even more than to him against whom it is invoked! It was taught likewise: Both the one who cries for divine intervention and the one against whom it is invoked come under the Scriptural threat,⁵  but punishment is meted out first to the one who cries, [and is] more severe than for the one against whom justice is invoked.⁶  R. Isaac again said: The curse of an ordinary man should never be considered a trifling matter in your eyes,⁷  for when Abimelech called a curse upon Sarah it was fulfilled in her seed, as it says, Behold it is for thee a covering of the eyes,⁸  [which implies that] he said to her, 'Since thou hast covered the truth from me and not disclosed that he was thy husband, and hast thus caused me all this trouble, let it be the will [of Heaven] that there shall be to thee a covering of the eyes,'⁹  and this was actually fulfilled in her seed, as it is written: And it came to pass that when Isaac was old and his eyes were dim so that he could not see.¹⁰  R. Abbahu said: A man should always strive to be rather of the persecuted than of the persecutors as there is none among the birds more persecuted than doves and pigeons, and yet Scripture made them [alone]¹¹  eligible for the altar.¹²

IF THE PLAINTIFF SAID: PUT OUT MY EYE … ON THE UNDERSTANDING THAT HE WOULD BE EXEMPT, HE WOULD STILL BE LIABLE. IF THE PLAINTIFF SAID: TEAR MY GARMENT ON THE UNDERSTANDING THAT YOU WILL BE EXEMPT HE WOULD BE EXEMPT. R. Assi b. Hama¹³  said to Rabbah:¹⁴  Why is the rule differing in the former case and in the latter case? — He replied: [There is liability in] the former case because no man truly pardons the wounding of his principal limbs. The others rejoined: Does a man then pardon the inflicting of pain, seeing that it was taught: 'If the plaintiff had said, "Smite me and wound me on the understanding that you will be exempt," the defendant would be exempt.' He had no answer and said: Have you heard anything on this matter? — He¹⁵  thereupon said to him: This is what R. Shesheth has said: The liability is because [the plaintiff had no right to pardon] the discredit to the family. It was similarly stated: R. Oshaia said: Because of the discredit to the family, whereas Raba said: Because no man could truly pardon the injury done to his principal limbs. R. Johanan, however, said: Sometimes the term 'Yes' means 'No'¹⁶  and the term 'No' means 'Yes' [as when spoken ironically].¹⁷  It was also taught likewise: If the plaintiff said, 'Smite me and wound me,' and when the defendant interposed, 'On the understanding of being exempt, the plaintiff replied, 'Yes,' there may be a 'Yes' which implies 'No' [i.e., when spoken ironically]. If the plaintiff said, 'Tear my garment,' and when the defendant interposed, 'On the Understanding of being exempt, he said to him, 'No', there may be a 'No' which means 'Yes' [such as when spoken ironically].¹⁷

IF THE DEFENDANT SAID: BREAK MY PITCHER AND TEAR MY GARMENT, THE DEFENDANT WOULD STILL BE LIABLE. A contradiction was pouched out: "'To keep"18 but not to destroy; "to keep", but not to tear; "to keep" but not to distribute to the poor,' [in which case the liability of bailees would not apply. Why then liability in the Mishnah]?¹⁹  — Said R. Huna: There is no difficulty, as here²⁰  the article came into his hands,²¹  whereas there²²  the article did not come into his hands.²³  Said Rabbah to him: Does the expression 'To keep'²⁴  not imply that the article has come into his hands? — Rabbah therefore said: This case as well as the other is one in which the article has come into his hands, and still there is no difficulty, as in the case here²⁵  the article originally came into his hands²¹  for the purpose of being guarded, whereas there²²  it came to his hands for the purpose of being torn.

A purse of money for charity having been brought to Pumbeditha, R. Joseph deposited it with a certain person who, however, was so negligent that thieves came and stole it. R. Joseph declared liability [to pay], but Abaye said to him: Was it not taught: 'To keep'²⁴  but not to distribute to the poor? — R. Joseph rejoined: The poor of Pumbeditha have a fixed allowance,²⁶  and the charity money could thus be considered as having been deposited 'to keep' [and not to distribute it to the poor].²⁷

1. Ibid. XXIII, 20.
2. Gen. XIII, 5.
3. Ibid. XVI, 5.
4. Ibid. XXIII, 2.
5. Cf. Ex. XXII, 23.
6. As in the case of Sarah; Gen. XVI, 5 and ibid. XXIII, 2.
7. Cf. Ex. XXII, 23.
8. Gen. XX, 16.
9. I.e., blindness.
10. Gen. XXVII, 1.
11. Among birds.
12. Cf. Lev.I, 14.
13. [MS.M.: 'R. Joseph b. Hama' the father of Raba.]
14. Raba in the text and 'Rab' in the text of Asheri, v. Marginal Glosses in cur. edd.
15. I.e., R. Assi.
16. Cf. supra pp. 178-9.
17. According to Rashi there is strictly speaking no difference between the case dealt with in the commencing and that of the concluding clause; as all depends upon the implied intention, the illustration being in each case taken from what is usual, for while a man will pardon damage done to his chattel, he will not do so in regard to personal pain. But that this was not so was maintained by Tosaf.
18. Ex. XXII, 6.
19. Where he gave him the pitcher to break it and the garment to tear it.
20. In the case of the Mishnah.
21. I.e., to the hand of the one who did the damage.
22. In Ex.
23. But was destroyed before it actually reached the hand of the bailee.
24. Ibid.
25. In the case of the Mishnah.
26. So much per week.
27. As there were in that case definite plaintiffs.

CHAPTER IX

MISHNAH. IF ONE MISAPPROPRIATES PIECES OF WOOD AND MAKES UTENSILS OUT OF THEM, OR PIECES OF WOOL AND MAKES GARMENTS OUT OF THEM, HE HAS TO PAY FOR THEM IN ACCORDANCE WITH [THEIR VALUE AT] THE TIME OF THE ROBBERY.¹  IF ONE MISAPPROPRIATED A PREGNANT COW WHICH MEANWHILE GAVE BIRTH [TO A CALF], OR A SHEEP BEARING WOOL WHICH HE SHEARED, HE WOULD PAY THE VALUE OF A COW WHICH WAS ABOUT TO GIVE BIRTH [TO A CALF], AND THE VALUE OF A SHEEP WHICH WAS READY TO BE SHORN [RESPECTIVELY]. BUT IF HE MISAPPROPRIATED A COW WHICH BECAME PREGNANT WHILE WITH HIM AND THEN GAVE BIRTH, OR A SHEEP WHICH WHILE WITH HIM GREW WOOL WHICH HE SHEARED, HE WOULD PAY IN ACCORDANCE WITH [THE VALUE AT] THE TIME OF THE ROBBERY. THIS IS THE GENERAL PRINCIPLE: ALL ROBBERS HAVE TO PAY IN ACCORDANCE WITH [THE VALUE OF THE MISAPPROPRIATED ARTICLES AT] THE TIME OF THE ROBBERY.

GEMARA. Shall we say that it is only where he actually made utensils out of the pieces of wood [that the Mishnaic ruling will apply], whereas if he merely planed them this would not be so?²  Again, it is only where he made garments out of the wool that this will be so, whereas where he merely bleached it this would not be so! But could not a contradiction be raised from the following: 'One who misappropriated pieces of wood and planed them, stones and chiselled them, wool and bleached it or flax and cleansed it, would have to pay in accordance with [the value] at the time of the robbery'?³  — Said Abaye: The Tanna of our Mishnah stated the ruling where the change [in the article misappropriated] is only such as is recognised by the Rabbis, that is, where it can still revert [to its former condition] and of course it applies all the more where the change is such⁴  as is recognised by the pentateuch:⁵  [for the expression ONE WHO MISAPPROPRIATES] PIECES OF WOOD AND MAKES OUT OF THEM UTENSILS refers to pieces of wood already planed, such as ready-made boards, in which a reversion to the previous condition is still possible, since if he likes he can easily pull the boards out [and thus have them as they were previously]; PIECES OF WOOL AND MADE GARMENTS OUT OF THEE also refers to wool which was already spun, in which [similarly] a reversion to the previous condition is possible, since if he likes he can pull out the threads and restore them to the previous condition; the same law would apply all the more in the case of a change [where the article could no more revert to the previous condition and] which would thus be recognised by the pentateuch.⁵  But the Tanna of the Baraitha deals only with a change [where the article could no more revert to its previous condition and] which would thus be recognised by the pentateuch, but does not deal with a change [in which the article could revert to its previous condition and which would be] recognised only by the Rabbis. R. Ashi, however, said: The Tanna of our [Mishnah also] deals with a change which would be recognised by the pentateuch, for by PIECES OF WOOD AND MAKES UTENSILS OUT OF THEM he means clubs, which were changed by planing them; by PIECES OF WOOL AND MAKES GARMENTS OUT OF THEM he similarly means felt cloths, which involves a change that can no more revert to its previous condition.

But should bleaching be considered a change?⁶  Could no contradiction be raised [from the following]: 'If the owner did not manage to give the first of the fleece to the priest until it had already been dyed, he would be exempt,⁷  but if he only bleached it without having dyed it, he would still be liable'?⁸  — Said Abaye: This is no difficulty, as the former statement is in accordance with R. Simeon and the latter in accordance with the Rabbis; for it was taught: 'If after the owner had shorn his sheep he span the wool or wove it, this portion would not be taken into account⁹  [with the other wool which was still left in a raw state];¹⁰  but if he only purified it, R. Simeon says: It would [still] not be taken into account, whereas the Sages say that it would be taken into account. But Raba said that both statements might be in accordance with R. Simeon, and there would still be no difficulty, as in one case¹¹  [the process of bleaching was] by beating the wool [where no actual change took place], whereas in the other case¹²  the wool was corded with a comb. R. Hiyya b. Abin said that in one case¹¹  the wool was merely washed [so that no actual change took place]. whereas in the other¹²  it was whitened with sulphur. But since even dyeing is according to R. Simeon not considered a change, how could bleaching be considered a change, for was it not taught: 'Where the owner had shorn one sheep after another and in the interval dyed the [respective] fleeces, [or shorn] one after another and in the interval spun the wool, [or shorn] one after another and in the interval wove the wool, this portion would not be taken into account,⁹  but R. Simeon b. Judah said in the name of R. Simeon¹³  that if he [only] dyed the wool it would be taken into account'?¹⁴  — Said Abaye: There is no difficulty, as the former statement was made by the Rabbis according to R. Simeon whereas the latter¹⁵  was made by R. Simeon b. Judah according to R. Simeon. But Raba said: You may still say that the Rabbis did not differ from R. Simeon b. Judah on this point,¹⁶  for dyeing might be different, the reason being that since the colour could be removed by soap, [it is not considered a change], and as to the statement made there, 'If the owner did not manage to give the first of his fleece to the priest until it had already been dyed he would be exempt' which has been stated to be accepted unanimously, this deals with a case where it was dyed with indigo [which could not be removed by soap].

Abaye said: R. Simeon b. Judah, Beth Shammai, R. Eliezer b. Jacob. R. Simeon b. Eleazar and R. Ishmael all maintain that a change leaves the article in its previous status: R. Simeon b. Judah here in the text quoted by us; but what about Beth Shammai? — As it was taught:¹⁷  'Where he gave her as her hire wheat of which she made flour, or olives of which she made oil, or grapes of which she made wine,' one [Baraitha] taught that 'the produce is forbidden to be sacrificed upon the altar,' whereas another [Baraitha] taught 'it is permitted'. and R. Joseph said: Gorion

1. I.e., of the pieces of wood and wool but not of the utensils and garments respectively, as by the change which took place he acquired title to them; cf. supra p. 384.
2. I.e., the ownership would thereby not be transferred to the robber.
3. The reason being that through the change which took place the ownership was transferred.
4. I.e., where the article can no longer revert to its former condition; v. supra p. 386.
5. To transfer ownership.
6. In regard to which it was stated in the Baraitha that the robber will thereby acquire title to the wool.
7. As by this change the original obligation was annulled and the owner acquired unqualified and absolute right to the wool.
8. Hul. XI, 2; v. supra p. 382. Does not this prove that mere bleaching unlike dyeing does not constitute a change?
9. In regard to the first fleece offering the minimum of which is according to R. Dosa b. Harkinas the weight of seven maneh and a half collected equally from not less than five sheep, but according to the Rabbis one maneh and a half collected equally from the same number of sheep would suffice; cf. Hul. XI, 2. A maneh amounts to twenty-five sela's; for Samuel's view according to the Rabbis cf ibid. 137b.
10. On account of the change which had been made.
11. Not considering it a change.
12. Considering it a change.
13. I.e., R. Simeon b. Yohai; cf. Sheb. 2b.
14. This shows that R. Simeon b. Yohai does not consider dyeing a change, much less bleaching.
15. v. p. 443. n. 5.
16. As to the view of R. Simeon b. Yohai on this matter.
17. For notes on passage following v. supra p. 380.