Babylonian Talmud

Rodkinson 1918 — source 10, scan section 54

But what does he hold in case of a non-vicious ox ? If he holds that each one has done the whole damage, let each one pay half ? And if, on the other hand, he holds that each one has done half the damage (and therefore the owner of the ox pays as for a non-vicious one one-fourth, which is half of the damage he did), only three-fourths are paid and one-fourth is suffered by the plaintiff ? Said Rabha: R. Nathan was a judge, and he dived into the very depth of the Halakha. He holds that each has done only half the damage ; but as to the objection raised that the owner of the ox should pay only one-fourth, it may be said that the owner of the killed ox may say to the owner of the pit: " I found my ox in your pit and you killed him; therefore, whatever I can realize from the owner of the ox who pushed mine in I will, and the balance you will have to pay." Rabha said: " One who places a stone on the edge of the opening of a pit and an ox stumbles over the stone and falls into the pit," as to this question the difference of the rabbis and R. Nathan comes in (according to the rabbis the one who placed the stone is liable, for he caused the fall, and he cannot be con- sidered as the germon, for the placing of a stone in itself is con- sidered the same as a pit ; and according to R. Nathan both are liable, for both contributed). Is this not self-evident ? Lest one say: In that case the pit-owner may say to the owner of the ox, " Were it not for my pit your ox would have (instead of pushing him in) killed him " ; but here, in this case, the one who placed the stone may say to the pit-owner, " Were it not for your pit, what harm would my stone have done him ? Had he stumbled over, he would have gotten up at once ?" It there- fore teaches that he may, however, say to him, " Were it not for your stone, he would not have fallen into the pit." TRACT BABA KAMA (THE FIRST GATE). 127 Rabha said: An ox and a man who together push some other into a pit (so that the ox, the man, and the pit have all con- tributed), as regards damages all are liable ; as regards the four things and the value of the infant (if it should be the case), the man is liable and the others are free; as to payment of atone- ment money and the thirty shekels for a slave, the ox is liable and the others are free ; as regards damage to vessels and an ox that became desecrated and was redeemed, the man and the owner of the ox are liable, and the owner of the pit is free. Why is the owner of the pit free in this latter case of a redeemed ox ? Because it is written [Ex. xxi. 36]: " And the dead shall belong to him,** which means in a case where the dead can belong to him, excepting this case (for although it was redeemed the carcass cannot be sold but must be buried). '' If an ox fall in,'" etc. Our Mishna is not in accordance with R. Jehudah of the following Boraitha: " R. Jehudah makes one liable for damages to vessels caused by a pit." What is the reason for the rabbis' theory ? It is written [ibid.]: " And an ox or an ass fall therein," which signifies an ox but not a man, an ass but not vessels. R. Jehudah, however, holds that the " or*' means to add also vessels. Now, according to R. Jehu- dah, who admits that the word *' ox" means to exclude man, what does the word " ass " mean to exclude ? Therefore said Rabha: The necessity of stating " ass " as regards a pit accord- ing to R. Jehudah, and ** lamb " as regards a lost thing accord- ing to all, is really difficult to explain. '' If an ox^ deaf'' etc. What does this mean ? Shall we assume that the ox belongs to a deaf person, etc., but if he belongs to a sound person there is no liability ? How is that possible ? Said R. Johanan: It means that the ox was deaf, etc. But if he was sound, there is no liability ? Said Rabha: " Yea, an ox that is deaf, etc., but if he was sound there is no liability, because a sound ox is capable of taking care of himself. The following Boraitha is plainly in support of the above: If there fall therein a deaf, raging, young, or blind ox, or an ox walking in the night-time, there is a liability. If it was a sound one, however, and in the day-time, there is no liability. MISHNA VIII, \ There is no difference between an ox and another animal as regards falling into a pit ; to have been kept distant from Mount Sinai [Ex. xiii.], as to payment of double, to restitution of lost property; as regards unloading; muzzling, kilayim [of species], and as regards Sabbath. Neither is there 128 THE BABYLONIAN TALMUD. any difference between the above-mentioned and a beast or bird. If so, why does the Scripture mention " ox or ass " ? Because the verse speaks of what is usuaL GEMARA: Concerning falling into a pit, it reads [Ex. xxi. 34]: " In money unto the owner thereof," which signifies any animal that has an owner. Concerning Mount Sinai, it reads [ibid. xix. 13]: " Whether it be animal'^ or man, it shall not live," which includes also beasts; and the word " whether" in- cludes also birds. Concerning payment of double, it reads [ibid, xxii. 8]: " For all manner of trespass," which signifies that every manner of trespass (wilfulness and even as regards inani- mate subjects). Concerning restitution of a lost thing, it reads [Deut. xxii. 3]: " Every lost thing of thy brother's." Con- cerning unloading, we deduce it from the analogy of expression of " ass" used here, and in regard to Sabbath [Deut. v. 14] (as concerning the latter, other animals are also included, so also here). Concerning muzzling [Deut. xxv. 4], we deduce it from the analogy of the term " ox " used here, and concerning Sab- bath [ibid.]. Concerning kilayim, if it relates to that of plough- ing, we deduce it from the analogy of the term " ox" in the manner just stated; if it relates to that of coupling of animals, it is deduced from the analogy of the word " any of thy cattle " used here, and concerning Sabbath. And whence do we know that it is so as to Sabbath itself ? From the following Boraitha: R. Jose says in the name of R. Ishmael: At the first command- ments it is written [Ex. xx. 10]: "Thy man-servant, nor thy maid-servant, nor thy cattle"; and at the second command- ments it is written [Deut. v. 14]: " Nor thy ox, nor thy ass, nor any of thy cattle." Why were they expressly stated ? Are, then, the ox and the ass not included in " cattle" ? To tell thee that, as the terms " ox" and " ass" mentioned here in- clude beasts and birds, to put them on the same footing, so also, wherever these two terms are mentioned, they include beasts and birds. But perhaps the statement in the first command- ments should be taken as ^^«^r<3;/ and that of the last command- ments as particular, and as there is a rule that the geiteral in-