Babylonian Talmud

Rodkinson 1918 — source 10, scan section 7

Mishna states ox. Said Rabh: ** It states * ox * for the damage done by the foot, and * mabeh * for that done by the tooth, and it must be explained as follows: The law of damages done by the foot, which is of frequent occurrence, cannot be applied to that of the tooth, which is not of frequent occurrence; on the other hand, the law of damage done by the tooth, which usually benefits thereby, cannot be applied to that of the foot, which derives no benefit." But what is the matter with the horn ? Why is it left out ? This is included in the statement, ** And if they do damage, the one responsible," etc. Why is it not mentioned expressly? * Modern scholars come to the conclusion that originally the Mishna read l^y^DH, which means one who started a fire, instead of ny3Dn, which latter word cannot be found either in the Scripture or in the Mishna elsewhere, and that this latter word originates from an error on the part of the transcriber in writing an n instead of "V. And it seems to us that this view of the scholars is correct, for we find in one Tosephtha plainly the word " Hamabir " instead of*' Hamabeh." We may add to this that Rabh's explanation, *' It means a man," shows also that " Hamabir" is the correct word. We have therefore omitted all the citations of the passages to explain the meaning of the word " Hamabeh," as they are too far-fetched and were probably added by the expounders of Rabh's statement. Abraham Krochmal, however, main- tains that in the first Mishna)^oth it was used *' Hamabir," but Rabbi, the editor of his Mishnayoth, wrote " Hamabeh," for the reason that this word has two meanings which can be applied to foot and tooth. (See his Notes on the Talmud, Lemberg, 18S1, page 260.) 4 THE BABYLONIAN TALMUD. The Mishna states only cases of those which are considered vicious from the very beginning (and must pay the full amount of damage, as tooth and foot, etc.), but not cases of those which are not considered vicious from the beginning (as the horn, which pays the full amount of damages only on the third time of doing damage). Why does Samuel not concur with Rabh ? He maintains that it cannot mean a " man," because this latter is enumerated in a subsequent Mishna: " A vicious ox, and an ox doing damage on the estate of the party suffering the dam- age, and the man.'' Why is ** man " not mentioned in the first part of the Mishna ? Our Mishna treats only of injuries done by one's property, but not of injuries done by one's person. Now as to Rabh, is then the " man" not enumerated in the subsequent Mishna ? (Why, then, state it also in our Mishna ?) Rabh may say: "It is mentioned in the later Mishna only be- cause other vicious ones are mentioned therein, and according to him (who says that * mabeh ' means a man) the statement in the Mishna, * the law of damages,' etc., must be explained thus: " The law of damages of an ox differs from that of a man in that the former pays ' atoning money,' while the latter does not (if a vicious ox kill a man by goring he pays atoning money, therefore if only the law of the ox would be stated, that of the man could not be deduced therefrom, because if a man kill an- other man unintentionally he is banished; if intentionally he suffers the death penalty, and pays no atoning money); and the law of a man differs from that of an ox in that the former is liable (in case of personal injuries caused to another man, in addition to the payment of actual damages) to four things (ex- plained further on), which is not the case with the ox ; the one thing common to both is that they are likely to do damage, and one is charged with taking care of them." [Is it then usual for an ox to do harm ? It means a vicious one. But is it then usual for a man to do harm ? Yea, when asleep. How is it to be understood ? It is usual for a man when asleep to contract and stretch out his limbs, and all that is then in his way he damages.] But is not the man charged with his own care of himself ? This can be explained as R. Abbuhu said elsewhere to one Tana: " Read, 'The man is charged with his own care of himself ' " ; so also is it to be read in our Mishna (and the state- ment in the Mishna that one is charged with taking care of them refers to the others mentioned). R. Oshiyah taught : There are thirteen principal tort-fea TRACT BABA KAMA (THE FIRST GATE). 5 sors: the depositary; the one loaning for use; the bailee for hire ; the bailor for hire ; the actual damage sustained through the personal injury; the expense incurred in curing the injury ; the earnings lost through such injury and the shame suffered (this will be explained in Chapter VIII.), and those four princi- pals mentioned in our Mishna, which make thirteen. (The de- positary is liable for arbitrary damage; the one loaning for use is liable even for an accident ; and the bailee for hire and the bailor for hire are responsible even for theft and loss, and, mani- festly, for arbitrary damage ; actual damage means that if one inflicts an injury on another person he must pay the difference in value of the person injured; the pain suffered, i.e., so much as one whose arm, for instance, was to be amputated by an instrument would pay to be relieved by a drug from such pain as amputation would cause ; all the others are explained further on in this volume.) Why did the Tana of our Mishna not state those nine ? It is correct according to Samuel, because the Mishna treats only of injuries done by one's property, and not of injuries by one's person, but according to Rabh (who says that " mabeh " means a man, and so injuries by one's per- son are treated of) why does he not state them ? The Mishna treating of ** a man " means to include all damages done by a man. And according to R. Oshiyah, are they not included in the "man" stated in the Mishna? There are two kinds of damages done by man, viz., those done by him to another man (which constitute a crime), and those done by him to an ox (in which case the liability is restricted to civil damages only). If so, why not state the same thing in regard to an ox ? Let him state a case where an ox injured a man, and a case where he in- jured another ox. What question is this ? As to a man there is a difference between the injury done to a man and that done to an ox, for in the former he is liable for the four things, and in the latter case he pays only actual damages (and therefore both are stated) ; but in the case of an ox, what difference is there between the injury done by him to a man and that done by him to an ox ? In both cases he pays only actual damages. R. Hyya taught: "There are twenty-four principal tort- feasors, viz., those who pay double [see Ex. xxii. 4] ; those who