Babylonian Talmud

Rodkinson 1918 — source 10, scan section 14

hold in case one ox has pushed another ox into a pit) that only the owner of the ox has to pay, but not the owner of the pit (although it is not sufficient); then this is self-evident. If it is according to R. Nathan, who in the above case holds that the owner of the pit must complete it, why should in this case the parts sacrificed be exempt ? This can be according to both R. Nathan and the rabbis; according to the rabbis, because we might say that the rabbis held so only where there are two distinct elements (the ox and the pit), but in this case where there is only one body, the plaintiff may say : I will collect my damage from any part I wish. And according to R. Nathan : In that case the owner of the ox may say to the owner of the pit : I found the ox in thy pit ; whatever I cannot collect from that party, I will collect from thee. But in the case herein can he then say the flesh has done the damage, but not those pieces in question ? (Hence the statement.) ''And that property that has owners. ' ' What does this mean to exclude ? We have learned in a Boraitha, this means to ex- clude ownerless property. How is the case ? If our ox gore an ownerless ox, who claims damages ? If the reverse is the case, let him go and take the ox ? The case is that (after he has done the damage) he was appropriated by some one. Rabhina said: " This means to exclude the case where he first did the damage, and then was consecrated by his owner, or declared ownerless (by driving him out)." So also we have learned in a Boraitha: " Further than that said R. Jehudah: Even if he damaged and then was consecrated, or his owner declared him ownerless he is exempt, as it is written [Ex. xxi. 29], ' and warn- ing have been given to his owner, and he killeth a man or a woman,* etc., which signifies that during the killing, the bring- 22 THE BABYLONIAN TALMUD. ing of the suit and the making of the award there shall be one and the same owner." ' * Except on the property of the defendant. * ' For he can say to him: " What has your ox to do on my premises ? ** '* And on the property of both the defendant and the plaintiff .'' Said R. Hisda in the name of Abimi: In a partnership court one partner is liable to the other partner for damages done by the tooth and foot, and our Mishna is to be explained thus: ** Except on property exclusively belonging to the defendant, where he is free, but on premises belonging to both the defendant and the plaintiff, if damage is done, the one doing it is liable." R. Elazar, however, makes them free and explains the Mishna that there is no liability for foot and tooth when it belongs to the plaintiff or to both the defendant and the plaintiff, and what is stated further on of one's liability refers to damage done by the horn, because partnership property is for that purpose considered a public ground. It is right according to Samuel (ante, p. 5), but according to Rabh, who says that the expression " ox " in the Mishna includes everything in relation thereto, what does this mean to include ? It means to include that which the rabbis taught: ** If damage is done the defendant is responsible." This means to include the depositary, the loan for use, the loan for hire, and the bailor for hire ; if an animal has done damage on their ground, a non-vicious ox pays half and a vicious ox pays the full amount of damages. If the enclosure wall in good condition broke in in the night time, or it was broken in by burglars and (the animal) went out and has done damage, there is no liability." How was the case ? Shall we assume that the ox of the bailor for hire has injured the ox of the bailee, let the bailor say to the bailee : If he should damage some stranger's property you would have to pay (because you are charged with taking care of him); why should I pay you when he has injured your ox ? And if the reverse were the case (and still it is said that only one-half is paid), let the owner say to the bailee : If he were injured by an ox of a third person would you not have to pay me the full amount of damage ? (because in the case of a loan for use he is liable for damages occurring by accident), now whenj^wr own ox has caused the injury you want to pay me only one-half ? The case is that the ox of the bailor has injured the ox of the bailee, and the objection just stated can be ex- plained that the bailee has agreed to take care that the ox shall not he injured, but not that he shall do no injury to others. TRACT BABA KAMA (THE FIRST GATE). 23 If so, how will be explained the later part which states that if the wall was broken in in the night-time, or the same was broken in by burglars, and the animal went out and did damage, he is free, from which is to be inferred that if in the daytime there is liability. Why should it be so? Did he then warrant against his injury to others? The Boraitha meant thus: If he has war- ranted against his injury to others he is liable only in the day- time, but not if in the night-time or by accident. Is that so ? Has not R. Joseph taught: " In a partnership court and an inn, one is liable for damages done by the tooth and the foot ? " Is this not contrary to the statement of R. Elazar ? R. Elazar might answer: Do not the Boraithas themselves contradict each other ? Have we not learned in another Boraitha : R. Simeon b. Elazar laid down four rules in regard to damages: ** If done on ground exclusively belonging to the plaintiff and not to the defendant, the liability is for the whole (even if done by the horn and in case of a non-vicious animal) ; if vice versa there is no liability at all ; if on ground belonging to both, as e.g, a part- nership courtyard or valley, there is no liability for the foot and tooth, but for goring, pushing, biting, lying upon, and kicking, a non-vicious pays one-half and a vicious pays the whole. If on ground belonging to neither of them, as, for instance, a court- yard belonging to neither of them, there is a liability for the tooth and foot ; for goring and biting, pushing and lying upon and kicking, a non-vicious ox pays one-half and a vicious pays the whole damage." Hence, we see that it is stated that in a partnership courtyard or a valley there is no liability for the tooth and the foot, and hence do the two Boraithas contradict each other. That one (which says there is no liability) treats of a courtyard which is held in partnership for both storing fruit and keeping oxen (in which case it is considered a partnership court- yard as to both the foot and the horn), and therefore in case of the tooth he is free, and in case of the horn he pays half, as it is equal to public ground ; and that Boraitha taught by R. Joseph