Babylonian Talmud

Rodkinson 1918 — source 10, scan section 53

the vendee expressly, " Draw, and acquire title to them." What is meant by Mashkhukhith ? It means the bell. R. Jacob said: " It means the forerunning goat kept at the head of the flock as leader, as a certain Galilean lectured in the presence of R. Hisda: When the shepherd gets angry at his flock, he blinds the leading-goat at the head of the flock (so that the leader falls and with him all the flock)." MISHNA VII. : If the first one covered it, but when the second one passed by he found it uncovered and did not cover it, the latter is liable. If the owner of a pit properly cover it, and still an ox or an ass fall into it and is killed, there is no liability. If however, he do not properly cover it, he is liable. * See Erubin, pages 80-82. 124 THE BABYLONIAN TALMUD. If an ox fall forward, face downward, into a pit by reason of the noise caused by the digging, there is a liability; if, however, it fall backward, there is none. If an ox or an ass with its hous- ings fall into it and the housings be damaged, there is a liability for the animal but not for the housings. If there fall therein an ox, deaf, raging, or young, there is a liability (explained further on). If a boy or a girl, a male or a female slave, fall in, there is none. GEMARA: Until what time is the first one free? Said Rabh : Until he again knows of his own knowledge that the pit is uncovered. Samuel, however, says: Until he is informed, even if he has not seen it himself. R. Johanan says: Time must be allowed him until he could be informed and could hire workmen to cut wood and cover it. '* If he cover it properly^'' etc. If he covered it properly, how could the animal fall in ? Said R. Itz'hak bar bar Hana: The case was, that the cover became rotten from the inside (and could not be noticed). The schoolmen propounded the following question: " If he covered it sufficiently to withstand oxen but not camels, and camels came along and made the cover shaky and then oxen fell therein, what is the law ? Let us see. How was the case? If camels are usual there, then certainly the act is wilful ; if they are not, then it is only an accident ? The question is only where camels come there at times. Shall we say that, because camels do come there, it is considered wilful, for he should have had it in mind, or do we say that because at that time they were not there it might be considered an accident ?" According to others the schoolmen did not question as to such a case; for there is no doubt that, as long as they came at times, he should have had it in mind, but what they did question was this: If he covered it sufficiently to withstand oxen but not camels, and the latter are usual there and the cover became rotten from within, what is the law ? Do we say that because it is consid- ered wilful as to camels it is so also as to allowing it to rot, or that the theory of because does not apply here ? Come and hear : ** An ox that was deaf, raging, young, or blind, or an ox that walked in the night-time, he is liable ; if, however, the ox was sound and it was in the day-time, he is free." Now, why should it be so ? Why not say because it is considered wilful as to an unsound ox it is also considered so as to a sound one ? Infer from this that the theory of because does not apply to such cases. TRACT BABA KAMA (THE FIRST GATE). 125 '' If it fell iri forward,'' etc. Said Rabh : By" forward" is meant that it fell on his face, and by ' * backward ' ' that it struck the back of its head against the bottom of the pit. And both of them have reference to the pit. [And this is in accordance with his theory that the Scripture made one liable in case of a pit only because of the vapors, but not because of the shock.] Samuel, however, says: " In case of a pit there is no difference whether it fall forward or backward, but he is liable." [For he follows his theory as to the vapors, and so much the more because of the shock.] But how is the case possible that when it fall backward from the sound of the digging he shall be free ? As, for instance, when it stumbles over the pit and falls back- ward and strikes outside of the pit. Samuel objected to Rabh from the following Boraitha: " As regards a pit, whether it fall backward or forward, he is liable ?" This objection remains. R. Hisda said: Rabh admits in case of a pit on one's own premises that he is liable, because the owner of the ox may say, " You are liable either way; for whether he died from the vapors or from the shock, it was yours." Rabha, however, says: The case in the above Boraitha, which states that he is liable if even the ox fall backward, was that he turned over; that is, he first fell face downward, but before he reached the ground he turned over and fell on his back, and therefore it is the vapors that he inhaled while falling face downward that kill him. R. Joseph says : The Boraitha in question docs not mean to say that the owner of the pit is liable, but, on the contrary, that the owner of the ox is liable, and it treats of a case where the ox did dam- age to a well, namely, by (entering a courtyard without permis- sion, the owner of which renounced ownership neither to the courtyard nor to the well, and) falling into the well, spoiling the water therein contained ; in which case he is liable, no matter which way it fell. R. Hanina taught in support of Rabh : It is written: " And fall " — that means that the falling should be in the usual manner, face downward. From this it was said that if he fell face forward into a pit from the sound of the digging there is a liability; if backward from the same cause, there is none. The Master said: "If he fall face downward from the sound of the digging, there is a liability." Why so ? Was this not caused by the one who was doing the digging ? (In this case it is assumed that the owner has hired another person to do the digging, and the latter is only the germon (medium), and there 126 THE BABYLONIAN TALMUD. is no liability for being \.\iQ ger^non ?) Said R. Simi b. Ashi: It is in accordance with R. Nathan, who said that the damage must be paid by the owner of the place where it was done, for the reason that the digger cannot be liable, because he is only the germon of the damage, as we have learned in the following Boraitha: " An ox that pushed another ox into a pit, the owner of the ox, and not the owner of the pit, is liable. R. Nathan, however, said that each one of them pays half (for both have their share in it)." But have we not learned in another Bo- raitha: " R. Nathan said: The pit-owner pays three-fourths and the owner of the ox one-fourth " ? This presents no difficulty: One case treats of a vicious and the other of a non-vicious ox.