Babylonian Talmud

Rodkinson 1918 — source 10, scan section 28

in that he placed the jug in a corner (where it could not be noticed). Said R. Papi : Our Mishna cannot be explained un- less according to Samuel's or R. Johanan 's interpretation, but not according to Rabh, because if it should be according to Rabh's interpretation he would not be liable if even he should break the barrel intentionally, as he had no passage way. (The Gemara, however, says that it can be explained also according S8 THE BABYLONIAN TALMUD. to Rabh's interpretation, as R. Zbid in the name of Rabha ex- plains it further on.) Said R. Aba to R. Ashi : In the West it was said in the name of Ula that the reason for the statement of the Mishna is that pedestrians are not in the habit of looking around. Such a case happened in Nahardea, and Samuel held him liable. In Pumbeditha — and Rabba held him liable. It is cor- rect of Samuel, for he follows his theory; but Rabba, shall we assume that he concurs with Samuel ? Said R. Papa: It was in a corner of an oil-mill (and it was customary with those who came to the mill to place their vessels outside when waiting for their turn to enter the mill), and because it was customary to place there the vessels the pedestrian had to take care not to break them. R. Hisda sent the following message to R. Na'h- man : " It was said (it is the custom of the judges to fine) one who kicks the other with his knees three (selas) ; one who kicks the other with the foot, five; one who strikes the other with his . fist, thirteen — what is the fine if one strikes his neighbor with the handle of a hoe or with the iron of the hoe ? " He returned the following answer: " Hisda, Hisda, you are collecting fines in Babylon; state to me the facts in the case." He then sent him the following facts: There was a partnership water-basin out of which each of the partners irrigated his land every second day. Once one was irrigating his land from the basin when it was not his turn, and when the other one asked him why he did so and the former did not heed him, he struck him with the handle of the hoe. Said he (R. Na'hman) to him (R. Hisda): He would have been justified if he had even struck him a hundred blows, for even according to the one who holds that a man ought not to take the law into his own hands, in cases of loss one may do so, for when one is in the right he need not trouble himself (to go to court). And R. Na'hman says this, according to his theory which was taught elsewhere, that a man may take the law into his own hands even not in case of loss. According to R. Jehudah, however, this is permitted only in case of loss. R. Kahana objected: There is aTosephtha: " Ben Bag Bag says: Do not enter the courtyard of thy neighbor secretly to take what belongs to you, for fear that he may look upon you as upon a thief, but do so publicly, and tell him that you take your own (in contradiction to R. Jehudah, who holds that one must not take the law into his own hands)." R. Jehudah rejoined: Your support, Ben Bag Bag, is an individual, TRACT BABA KAMA (THE FIRST GATE). 59 and the majority differ with him. R. Janai, however, explained that " take it publicly " means to do so with the aid of the law. Come and hear: If an ox mount another to kill him, and the owner of the latter come along and pull out his own ox, and the former drop on the ground and is killed, he is not liable. Shall we not assume that this is in the case of a vicious ox, in which case there is no loss (for if he had not acted thus, and his ox should have been killed, he would have been paid in full; hence even where there is no loss one may take the law into his own hands) ? Nay, it is in case of a non- vicious ox where there is loss (for if he should have waited to be paid by law, he would have received only one half). If so, how is the latter part of the Boraitha: " If, however, he pushed down the ox that mounted, and the ox was killed, he is liable." Now, if it is in case of a non-vicious ox, why should he be liable (there is loss, and he acted according to law) ? Because he should have pulled out his own ox and not pushed the other so as to kill him. Come and hear : " For one who obstructs the court of another by placing there jugs of wine and oil, the owner of the court may break the jugs while going in and out of the court." (Hence we see that one may do so although there is no loss ?) Said R. Na'hman bar Itzhak: It means that he may break them while going out to go to court and also when coming in to get his documentary evidence (in case such is necessary; e.g.^ when there is a dispute as to the ownership of the courtyard). Come and hear the statement of our Mishna : ' * One who places a jug," etc., "he is not liable." The reason being that he stumbled over it, but if he broke it without stumbling over he is liable. (Hence we see that even when there is loss [for Rabh explained, above, this to be when the whole thoroughfare has been filled with jugs] no person is allowed to take the law into his own hand.) Said R. Zbid, in the name of Rabha: Nay, the same is the case even if he broke it intentionally, but the reason why he mentioned stumbling is because he had to state In the latter part that if he was injured the owner of the barrel is liable, in which case stumbling is essential, for if otherwise he himself caused his own injury; he mentioned that also in the first part. Come and hear: ** It is written [Deut. xxv. 12] : * Then shalt thou cut off her hand * ; this means that a fine of money shall be imposed upon her." May we not assume that this is only when she could not save herself otherwise ? (Hence one may 6o THE BABYLONIAN TALMUD. take the law into his own hands ?) Nay, that means when she could do otherwise. Then how is the case when she could not — is she free ? If so, instead of the Boraitha stating in the latter part: It is written [ibid, ii]: "If she putteth forth her hand," this signifies to exclude the messenger of the court, if he has done a similar thing he is free (from paying for disgrace), let the Boraitha teach that there is a difference also in her own act ; viz., the case is when she could save herself otherwise, but if she could not she is free? The Boraitha maintains thus : The case is when she could save herself otherwise, but if she could not, her hand is to be considered as a messenger of the court and she is free. Come and hear: ** One who set aside the due corner-tithe at one corner of his field and the poor came and took their due share at another corner, both are considered corner-tithe." Now if you should say that one may take the law into his own hands, let the owner prevent them from taking at another corner by