Babylonian Talmud

Rodkinson 1918 — source 10, scan section 1

NEW EDITION ^^ OF THE BABYLONIAN TALMOD ©rtgtnal XTcjt, TBMtcb, Correcte&, fformulateO, an6 Xi;ran0late5 into Bngltab BV MICHAEL L. RODKINSON SECTION JURISPRUDENCE (DAMAGES) TRACTS BABA KAMA (FIRST GATH) Volume 11. (X.) Boston THE TALMUD SOCIETY 1918 EXPLANATORY REMARKS. In our translation we adopted these principles: }. Tfnan of the original — We have learned in a Mishna; Tania^^Vft haTC learned in a Boraitha; Iteniar — It was taught. 2. Questions are indicated by the interrogation point, and are immediately followed by the answers, without being so marked. 3. When in the original there occur two statements separated by the phrase, Lishna achrena or Wa'ibayith Aema ox Ikha ^'a/«r? (literally, "otherwise interpreted"), we translate only the second. 4. As the pages of the original are indicated in our new Hebrew edition, it is not deemed necessary to mark them in the English edition, this being only a translation from the latter. 5. Words or passages enclosed in round parentheses ( ) denote the explanation rendered by Rashi to the foregoing sentence or word. Square parentheses [ ] contain commentaries by authorities of the last period of construction of the Gemara. CorYKIGMT, 1903, 8V MICHAEL L. RODKINSON. Copyright 1916, by NEW TALMUD PUBLISHING SOCIETY CONTENTS. Introduction to the Three Gates of Section Jurisprudence, v Synopsis of Subjects of Vol. X. — Tract Baba Kama (The First Gate), « CHAPTER I. The Four Principal Tort-feasors ; the Different Modes of Restitution ; the Vicious and Non-vicious Animals ; the Appraisement before the Court, i CHAPTER n. Rules regulating the Principle of Viciousness and Non-vi- CIOUSNESS IN the FoUR PRINCIPAL TORT-FEASORS ENUMERATED IN THE First Mishna, 30 CHAPTER HI. Rules concerning Placing Vessels on Public Ground. Injuries CAUSED BY Pedestrians to Each Other with Their Loads, The Vicious and Non-vicious Oxen— if They have Done Injury to Each Other or to Human Beings, etc., . • 57 CHAPTER IV. Rules in regard to Oxen repeatedly Goring Other Oxen and Human Beings. Oxen of Orphans and Guardians and What is Considered "Guarded," 82 CHAPTER V. Rules concerning a Goring Ox; Excavations on Public and Private Premises; Excavations made by Partners, etc., . 106 iv CONTENTS. CHAPTER VI. PAGK Regulations concerning the Guarding of Animals against DOING Damage. Concerning the Starting of Fire; if It Passes over a Wall. For What Distances passed by a OF Fire is the One Who Started it Liable? . . • 131 CHAPTER VII. Rules and Regulations concerning the Payment of Double, and Four and Five, and Collusive Witnesses ; the Raising Young Cattle in Palestine, etc., 149 CHAPTER VIII. The Five Items of Payment in Case of Injury to a Human Being, independently of the Criminal Liability. The Liability for Assault when no Injury is Sustained, . .182 INTRODUCTION TO THE THREE GATES OF SECTION JURISPRUDENCE. The three tracts Baba Kama, Metzia, and Bathra (the First, Second, and Third Gates) are unique in the whole Talmud in this respect, that they bear no name indicating the contents, as is the case with all other tracts of the Talmud, and we do not find in any commentary any explanation or discussion of the fact. • It may be because the reason is very simple, namely, that these three tracts are the only ones which treat purely of civil law, for even in cases of larceny only the civil side (as the actual damage, and the fine for causing it) is treated of (if there is here and there mentioned some criminal liability, it is only incident- ally as a citation in course of the discussion) ; and as the cases are very numerous and varying in character, no appropriate title could be found to indicate the contents of each tract. Indeed, so numerous are they that we may safely say there is no civil case which can possibly arise between man and man that is not treated of in these tracts. The other tracts of this section, which are enumerated in our introduction to Volume I. (IX.), treat each of a separate and distinct subject and not of purely civil law. For those especially interested in comparative jurisprudence we give below two articles by prominent publicists, which illustrate only two of the many important principles scattered all over the Talmud. The first, ''The Talmud," by I. DTsraeli, is an extract from '' Curiosities of Literature," and is as follows : In the order of damages containing rules how to tax the damages done by man or beast or other casualties their distinctions are as nice as their cases are numerous. What beasts are innocent and what convict. By the one they mean creatures not naturally used to do mischief in any particular way, and by the other, those that naturally or by a vicious habit are mischievous that way. The tooth of a beast is convict, when it is proved to eat its usual food, the property of another man, and full restitution must be made ; but if a beast that is used to eat fruit and herbs, gnaws clothes or damages tools, which are not its usual food, the owner of the beast shall pay but half the vi INTRODUCTION. damage when committed on the property of the injured person ; but if the injury is committed on the property of the person who does the damage, he is free, because the beast gnawed what was not its usual food. And thus, if the beast of A gnaws or tears the clothes of B in B's house or grounds, A shall pay half the damages, but if B's clothes are injured in A's grounds by A's beast, A is free, for what had B to do to put his clothes in A's grounds ? They made such subtile distinctions, as when an ox gores a man or beast, the law inquired into the habits of the beast ; whether it was an ox that used to gore, or an ox that was not used to gore. However acute these niceties sometimes were, they were often ridiculous. No beast could be cottvicted of being vicious till evidence was given that he had done mischief three successive days ; but if he leaves off those vicious tricks for three days more, he is innocent again. An ox may be convict of goring an ox and not a man, or of goring a man and not an ox ; naj^ of gor- ing on the Sabbath and not on a working day. Their aim was to make the punishment depend on the proofs of the design of the beast that did the in- jury, but this attempt evidently led them to distinctions much too subtile and obscure. Thus some rabbins say that the morning prayer of the Shem'ah must be read at the time they can distinguish blue from white; but another, more indulgent, insists it may be when we can distinguish blue from green ! which latter colors are so near akin as to require a stronger light. With the same remarkable acuteness in distinguishing things is their law respect-