Bava Kamma 6b:11-26בבא קמא ו׳ ב:י״א-כ״ו
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6bו׳ ב

שור יוכיח

The Gemara suggests: The primary category of Ox will prove that this fact, that the ox, i.e., the cause of the damage, entered the public domain with permission, is not a reason to exempt its owner from payment, as that is the nature of the primary category of Ox, and one is liable for damage caused by his ox.

מה לשור שכן דרכו לילך ולהזיק

The Gemara questions the derivation from Ox: What is notable about Ox? It is notable in that it is the typical manner of the animals in these categories to proceed from one place to another and cause damage. By contrast, in the case of the sewage, it is not its typical manner to proceed and cause damage. Accordingly, how can one learn the halakha in this case from the primary category of Ox?

בור תוכיח וחזר הדין

The Gemara suggests: If one attempts to challenge the derivation from Ox in this manner, it is possible to respond: The halakha of the primary category of Pit will prove that the lack of this characteristic, of the typical manner being to proceed and cause damage, is not a reason to exempt one from paying restitution for the damage, as that is the nature of Pit, and one is liable for damage caused by his pit. The Gemara notes: And as Pit and Ox each prove that the defining characteristic of the other is not decisive in establishing liability or exemption, the derivation has reverted to its starting point, and liability in these cases is derived from the common denominator of Pit and Ox. This is the halakha added by the common denominator stated in the mishna.

רבינא אמר לאתויי הא דתנן הכותל והאילן שנפלו לרה"ר והזיקו פטור מלשלם נתנו לו זמן לקוץ את האילן ולסתור את הכותל ונפלו בתוך הזמן והזיקו פטור לאחר הזמן חייב

Ravina said: The stating of the common denominator in the mishna serves to add the halakha that one is liable to pay damages in this case that we learned in a mishna (117b): In the case of a wall or a tree that fell on its own into the public domain and caused damage, the owner of the wall or tree is exempt from paying damages because he is a victim of circumstances beyond his control. But if the court had sensed the potential danger and had allotted him a certain amount of time during which he was obligated to chop down the tree or to demolish the wall, and he had not yet done so, and the wall or tree fell into the public domain within the allotted time and caused damage, he is exempt from paying damages. If he did not do so and it fell after the allotted time expired, he is liable to pay the damages.

היכי דמי אי דאפקרה בין לרב בין לשמואל היינו בור מאי שנא בור דהזיקו מצוי ושמירתו עליך הני נמי הזיקן מצוי ושמירתן עליך

The Gemara asks: What are the circumstances? If it is a case where one declared the fallen tree or wall ownerless, both according to Rav and according to Shmuel, this is a subcategory of Pit. What is different about the primary category of Pit that it is defined as a unique category? What is different is that its damage is commonplace, and it is your property, and responsibility for its safeguarding, to prevent it from causing damage, is incumbent upon you. In these cases involving the tree and the wall, too, their damage is commonplace, and they are your property, and responsibility for their safeguarding, to prevent them from causing damage, is incumbent upon you.

אי דלא אפקרינהו לשמואל דאמר כולם מבורו למדנו היינו בור

If it is a case where one did not declare them ownerless, according to Shmuel, who says: We learned that one is liable for damage caused by all obstacles that he places in the public domain whether or not he declares them ownerless, from the halakhot with regard to one’s pit, this is a subcategory of Pit.

לעולם דאפקרינהו ולא דמי לבור מה לבור שכן תחילת עשייתו לנזק תאמר בהני שאין תחילת עשייתן לנזק

The Gemara answers: Actually, the mishna teaches one’s liability in a case where one declared the tree or wall ownerless, and even if he declared them ownerless, they are not similar to the primary category of Pit. What is notable about the primary category of Pit? It is notable in that its initial formation, i.e., the digging of the pit, is done in a manner that can result in damage. Will you say the same with regard to these cases, where their initial formation, i.e., the planting of the tree and the building of the wall, is not done in a manner that can result in damage?

שור יוכיח

The Gemara suggests: The primary category of Ox will prove that this factor, of not being initially formed in a manner that can result in damage, is not a reason to exempt its owner from payment, as that is the nature of the primary category of Ox, i.e., an ox is not born in a manner that results in damage, and one is liable for damage caused by his ox.

מה לשור שכן דרכו לילך ולהזיק

The Gemara questions the derivation from Ox: What is notable about Ox? It is notable in that it is the typical manner of the animals in these categories to proceed from one place to another and cause damage. By contrast, in the case of the tree and wall, it is not their typical manner to proceed and cause damage. Accordingly, how can one learn the halakha in these cases from the primary category of Ox?

בור תוכיח וחזר הדין

The Gemara suggests: If one attempts to challenge the derivation from Ox in this manner, it is possible to respond: The halakha of the primary category of Pit will prove that the lack of this characteristic, of the typical manner being to proceed and cause damage, is not a reason to exempt one from paying restitution for the damage, as that is the nature of Pit, and one is liable for damage caused by his pit. The Gemara notes: And as Pit and Ox each prove that the defining characteristic of the other is not decisive in establishing liability or exemption, the derivation has reverted to its starting point, and liability in the cases of the tree and the wall is derived from the common denominator of Pit and Ox. This is the halakha added by the common denominator stated in the mishna.

כשהזיק חב המזיק חב המזיק חייב המזיק מיבעי ליה אמר רב יהודה אמר רב האי תנא ירושלמי הוא דתני לישנא קלילא

§ The mishna states: And when a component of any of these categories causes damage, the owner or generator of the component that caused damage is obligated [ḥav] to pay restitution with best-quality land. The Gemara asks: Why does the tanna of the mishna use the unusual expression: The one liable for the damage is ḥav to pay? He should have used the more standard expression for liability: The one liable for the damage is ḥayyav to pay. The Gemara explains: Rav Yehuda said that Rav said: This tanna is a Jerusalemite, who teaches using a light and concise formulation, as ḥav is more concise than ḥayyav.

לשלם תשלומי נזק ת"ר (שמות כב, ד) מיטב שדהו ומיטב כרמו ישלם מיטב שדהו של ניזק ומיטב כרמו של ניזק דברי רבי ישמעאל

§ The mishna continues: The owner or generator of the component that caused damage is obligated to pay restitution for damage with best-quality land. The one liable for the damage is indebted to pay payments of restitution for damage with his superior-quality land. The Sages taught in a baraita: The Torah states with regard to paying damages: “Of the best of his field, and of the best of his vineyard he shall pay” (Exodus 22:4). What is the meaning of “his field” and “his vineyard”? It refers to that property of the injured party; the one liable for the damage pays from land of a quality that is commensurate to the best-quality field of the injured party and to the best-quality vineyard of the injured party, even if the property he damaged was of a lesser quality; this is the statement of Rabbi Yishmael.

ר' עקיבא אומר לא בא הכתוב אלא לגבות לנזקין מן העידית וק"ו להקדש

Rabbi Akiva says that the verse comes only to allow injured parties to collect compensation from superior-quality land belonging to the one liable for the damage, in the event that he has no money or movable property. And by means of an a fortiori inference one can derive that the Temple treasury of consecrated property collects from superior-quality land.

ור' ישמעאל אכל שמינה משלם שמינה אכל כחושה משלם שמינה

The Gemara asks: And according to the opinion of Rabbi Yishmael, if one’s animal ate from a rich garden bed, it is understandable that he must pay the injured party the value of a rich garden bed. But if it ate from a poor garden bed, is it reasonable that he pays the value of a rich garden bed? While this is the straightforward meaning of his statement, it is untenable, as he would be paying more than the value of the damage he caused.

אמר רב אידי בר אבין הכא במאי עסקינן כגון שאכל ערוגה בין הערוגות ולא ידעינן אי כחושה אכל אי שמינה אכל דמשלם שמינה

Rav Idi bar Avin said: With what are we dealing here? We are dealing with a case where the animal that caused the damage ate from one garden bed among other garden beds, and we do not know whether it ate from a poor one or it ate from a rich one. In such a case, the halakha is that the animal’s owner pays the injured party the value of a rich one.

אמר רבא ומה אילו ידעינן דכחושה אכל לא משלם אלא כחושה השתא דלא ידעינן אי כחושה אכל אי שמינה אכל משלם שמינה המוציא מחבירו עליו הראיה

Rava raised a question and said: And if we would know that the animal ate from a poor garden bed, its owner would have to pay only the value of a poor garden bed. Now that we do not know whether it ate from a poor garden bed or if it ate from a rich garden bed, is it reasonable that he should have to pay the value of a rich garden bed? There is a general principle governing monetary disputes that the burden of proof falls on the claimant. Therefore, so long as the injured party cannot prove that the animal ate from the rich garden bed, he should not be entitled to collect the value of such a garden bed.

אלא אמר רב אחא בר יעקב הכא במאי עסקינן כגון שהיתה עידית דניזק כזיבורית דמזיק

Rather, Rav Aḥa bar Ya’akov said: With what are we dealing here? We are dealing with a case where, after appraising the damage, the court comes to collect from the one liable for the damage, but he does not have money available to pay for the damage. And the tanna’im disagree in a case where the superior-quality land [iddit], i.e., the best land, of the injured party is equal in quality to the inferior-quality land of the one liable for the damage, and the one liable for the damage also has land of superior quality.

ובהא פליגי רבי ישמעאל סבר בדניזק שיימינן ורבי עקיבא סבר בדמזיק שיימינן

And they disagree with regard to this: Rabbi Yishmael holds: We appraise the value of the land of the injured party, and therefore the one liable for the damage can pay with his inferior-quality fields, which are equal in quality to the best fields owned by the injured party. And Rabbi Akiva holds: We appraise the value of the land of the one liable for the damage and have him pay with his fields of superior quality.

מ"ט דרבי ישמעאל נאמר שדה למטה ונאמר שדה למעלה מה שדה האמור למעלה דניזק אף שדה האמור למטה דניזק

The Gemara explains: What is the reason of Rabbi Yishmael? The word “field” is stated below, toward the end of the verse: “Of the best of his field, and of the best of his vineyard he shall pay” (Exodus 22:4). And the word “field” is also stated above, at the beginning of that same verse: “If a man causes a field or vineyard to be eaten, and he sends forth his animal, and it consumed in the field of another.” Just as the field which is stated above belongs to the injured party, so too the field stated below belongs to the injured party.

ורבי עקיבא מיטב שדהו ומיטב כרמו ישלם דהאיך דקא משלם

And Rabbi Akiva holds: When the verse says: “Of the best of his field and of the best of his vineyard he shall pay,” it means from the best of the one who is paying, i.e., from the best fields belonging to the one liable for the damage.

ורבי ישמעאל אהני גזרה שוה ואהני קרא אהני גזרה שוה כדקאמינא

And how would Rabbi Yishmael respond to this? The verbal analogy between the two instances of the word “field” is effective, and the straightforward meaning of the verse itself is effective. The verbal analogy is effective, as I stated. It serves to teach that when it says that he pays from the best of his field, it means from land equal in quality to the best field owned by the injured party.

אהני קרא כגון דאית ליה למזיק עידית וזיבורית ועידית לניזק וזיבורית דמזיק לא שויא כעידית דניזק דמשלם ליה ממיטב דידיה

And the straightforward meaning of the verse itself is effective, as it serves to teach a different halakha, in a case where the one liable for the damage has superior-quality land and inferior-quality land, and the injured party has inferior-quality land, and the inferior-quality land of the one liable for the damage is not as good as the superior-quality land of the injured party. In this case, the halakha is that the one liable for the damage pays the injured party from his best land, i.e., from the superior-quality land that he owns.

דלא מצי אמר ליה תא את גבי מזיבורית אלא גבי ממיטב

This is as the one liable for the damage is legally unable to say to him: You should come and collect from my inferior-quality land. He cannot say this because the standard for classifying land as being of superior-quality is set according to the injured party’s superior-quality land, and the inferior-quality land of the one liable for the damage is of a lower quality than that. Rather, the injured party collects his damages from the best-quality land of the one liable for the damage.

ר' עקיבא אומר לא בא הכתוב אלא לגבות לניזקין מן העידית וקל וחומר להקדש מאי קל וחומר להקדש

§ The baraita cited above teaches: Rabbi Akiva says that the verse comes only to allow injured parties to collect compensation from superior-quality land belonging to the one liable for the damage, in the event that he has no money or movable property. And by means of an a fortiori inference one can derive that the Temple treasury of consecrated property collects from superior-quality land. The Gemara asks: What is the a fortiori inference from ordinary damage to damage involving the consecrated property? To which case does this refer?

אילימא דנגח תורא דידן לתורא דהקדש (שמות כא, לה) שור רעהו אמר רחמנא ולא שור של הקדש

If we say that our ox, i.e., an ox belonging to a Jew, gored an ox that is consecrated property, there is a difficulty, as the Merciful One states: “And if one man’s ox hurts the ox of another” (Exodus 21:35). This teaches that the halakha applies only if the ox hurt an ox belonging to another Jew, but not if it hurt an ox that is consecrated property. In the latter case no damages are collected.

אלא לאומר הרי עלי מנה לבדק הבית דאתי גזבר ושקיל מעידית

Rather, we say that the a fortiori inference is referring not to a case of damage but to one who vows and says: It is incumbent upon me to donate one hundred dinars for Temple maintenance. And the inference teaches that if the one who took the vow has no money, then the Temple treasurer comes and collects the hundred dinars from his superior-quality land.

לא יהא אלא בעל חוב

The Gemara challenges this understanding: The Temple treasurer should not be treated any better than an ordinary creditor,