Babylonian Talmud

Rodkinson 1918 — source 10, scan section 9

is originally made to do damage, which is not the case with the above things (the building of a wall or the planting of a tree), then the case of the ox proves that ; and lest one say that the ox is different because of its usual way of doing damage with its feet, then again the case of the pit may prove and so the con- clusion will return (and the original argument is reinstated). " To pay the damages^' The rabbis taught: It is written [Ex. xxii. 4]: " With the best of his own field, and with the best of his own vineyard shall he make restitution." That means the best field and the best vineyard of the plaintiff (e.g.y if A's ox grazed upon a parcel of land belonging to B, the best land of B is taken as a standard, and A must pay an amount of damages equal to the difference in value of such a parcel of land before and after having been grazed upon). Such is the dictum of R. Ishmael; R. Aqiba, however, said: " The passage intends to state only that damages are collected from the best estates of the defendant (i.e., the parcel of land of the plaintiff is ap- praised, and if the defendant wishes to pay in land he must do so with land of his own best estates), and so much the more in case of damages to consecrated articles. Is it possible that ac- * This is no contradiction of what was stated above, that a pit does not do damage often, for it means that it does not do so as often as the foot, which treads on everything in its way. TRACT BABA KAMA (THE FIRST GATE). 9 cording to R. Ishmael restitution must be made with the best land even if land of an inferior quality be damaged ? Said R. A'ha bar Jacob: "The case treated of here is that the best land of the plaintiff was of the same quality as the worst land of the defendant, and they differ on this point. R. Ishmael holds that the land of the plaintiff is taken as a standard, and the passage stating that he shall pay from the best estates, means from the best estates of the plaintiff, and R. Aqiba holds that that of the defendant is taken as a standard for best." What is the reason of R. Ishmael's statement ? The word " field" is written below (with the best of his ov^n field) and also above (and they feed in another ma.ns field) (ibid., ibid.); as above it has reference to the land of the plaintiff, so also in the statement below (and the passage is to be expounded thus : When the defendant has land which equals the best of the plaintiff's, he must pay out of such land the amount of the dam- age). And R. Aqiba ? He may say, it is written: " With the best of his own fields, etc., he shall make restitution." That means not that of the plaintiff (and no deduction by analogy is admissible when the statement is so plain). R. Ishmael, how- ever, may say: In this case we must derive the benefit of both the analogy of expression and the passages ; the analogy of ex- pression as I have explained, and the benefit from the passage I derive for explaining that it refers to a case where the defendant has both best and worst land, and the plaintiff has only best land, and the worst land of the defendant is inferior to the best of the plaintiff, in which case he cannot say to the plaintiff, collect your damages from my worst (because the passage gives the benefit to the plaintiff to be paid from the best), and therefore he must make restitution from his own 3est estates. Abayi propounded the contradiction of the following pas- sages to Rabha: It is written [ibid., ibid.]: "With the best oi his own fields," etc., which means from the best estates only and with nothing else, and we have learned in another Boraitha : " It is written [Ex. xxi. 34]: * And to return money (make restitution) ' ; means this to include equivalents of money, even bran ? " (Rabha answered): This presents no difficulty. When he returns of his own will he may give even bran, but if through the court he pays from the best estates. Said Ula, the son of R. Ilai: " The wording of the passage seems to lead to the same lo THE BABYLONIAN TALMUD. conclusion, for it is written * shall he make restitution,* which signifies involuntarily.'' Said Abayi to him : " Is it then written 'restitution shall be made*?" (which would mean involun- tarily). It is written " he shall make," etc., which can also mean voluntarily. When R. Papa and R. Huna, the son of R. Jehoshua, returned from the college they explained the above passage as follows: "Anything (of personal property) is con- sidered as the best of estates, for if he cannot sell it (at a reasonable price) at one place, he can take it to another place (and therefore if he makes restitution with personal property he may do so even with bran); except (if he makes restitution with) land, he must do so only with the best estates in order to enable him to procure a buyer.*' R. Samuel bar Abba of Akkrunia propounded the following question to R. Abba : When the standard (as to which are the best and which are the worst lands) is taken, is it taken of those lands of his own, or of those of the public in general ? {i.e., has the defendant to make restitution out of his own best estates, and if his worst lands are as good as the best of the public in general, must he nevertheless pay out of his own best, or if his worst lands are as good as those of the public in general, may he make restitution out of his worst lands ? — for they are as good as those of the public in general). According to R. Ishmael this is no question, for he says that those of the defendant are taken as a standard (and therefore if his worst are as good as those of the plaintiff he pays out of his worst estates), but the question is only according to R. Aqiba, who holds that those of the de- fendant are to be taken as a standard. How is it ? Shall we assume that the passage ** the best of his own fields ** means to exclude the lands of the plaintiff, or it means to exclude the lands of the public in general? And he answered him: The Scripture states expressly *' of his ow7i land," and you ask whether the land of the public in general is taken as a stand- ard ? R. Samuel objected : We have learned (in case there ar^ to be collected a woman's claim under her marriage contract [Kethubah], damages, and other debts): If one has only good lands, all the claims are collected from the good lands ; if he has only medium lands, all are collected from those lands ; if only poor-quality lands, all are collected from those lands ; if he has all the three, damages are collected from the good ; ordinary cred- itors collect from the medium ; the Kethubah is collected from the poor-quality lands ; if he has good and medium land only, TRACT BABA KAMA (THE FIRST GATE). ii damages are collected from the good ; ordinary debts and the