Babylonian Talmud: Tractate Baba Kamma

Folio 117a

whether it is a judgment or a fine?' — He replied: If it is a judgment we may derive other cases from it,¹  whereas if it is a fine²  we would be unable to derive other cases from it. But what is your ground for saying that from a matter of [mere] fine we cannot derive any other case? — As it was taught: 'Originally it was said that [liability will attach] for defiling [terumah]³  or for vitiating [wine],⁴  but it was subsequently laid down that [it will also attach] for mixing⁴  [common grain with terumah grain].'⁵  Now, this is so only because it was so laid down subsequently, whereas had it not been so laid down subsequently this would not have been so. Is the reason for this not because liability here is a [matter of mere] fine, [thus proving that] we cannot derive anything from a fine?⁶  — No, originally it was thought⁷  that it is only where a great loss⁸  is involved that we have to be on our guard,⁹  whereas where only a small loss¹⁰  is involved, we need not be particular, whereas subsequently it was decided that even in the case of a small loss¹⁰  we should be particular. But this is not so!¹¹  For the father of R. Abin¹²  learnt: Originally it was said that [liability will attach] for defiling [terumah] or for mixing¹³  [it with unconsecrated grain], but it was subsequently laid down that it will also attach for vitiating [wine]. Now, this is so [only] because it was so laid down subsequently, whereas had it not been so stated subsequently this would not have been so. Is the reason for this not because we are unable to derive anything from a matter of mere fine? — No: originally the view of R. Abin was taken,⁷  but subsequently the view of R. Jeremiah was adopted. 'Originally the view of R. Abin was taken,' — for R. Abin said: If one shot an arrow¹⁴  from the beginning to the end of a space of four cubits¹⁵  and it cut through some silk in its passage, he would be exempt,¹⁶  for the outset [of the motion] was subservient to its termination, for which he is liable to capital punishment;¹⁷  but subsequently it was decided in accordance with R. Jeremiah, for R. Jeremiah said: From the moment the defendant lifted up the wine¹⁸  it entered into his possession,¹⁹  and he thus became liable to make pecuniary compensation¹⁹  whereas he does not become liable to capital punishment until the very moment of the [idolatrous] libation.²⁰

Happening to be at Be-Ebyone²¹  R. Huna b. Judah visited Raba who said to him: Has any case [about which you are in doubt] recently been decided by you? — He replied: I had to decide the case of an Israelite whom heathens forced to show them another man's possessions and I ordered him to pay. He, however, said to him: Reverse the judgment in favour of the defendant, as taught: An Israelite who was forced by heathens to show them another man's possessions is exempt, though if he personally took it and gave it [to the heathens] with [his own] hand, he would be liable. Rabbah²²  said: If he showed it on his own accord it is the same [in law] as if he personally took it and gave it to the robber with [his own] hand.

A certain man was forced by heathens to show them the wine of Mari the son of R. Phine has²³  the son of R. Hisda. The heathens then said to him, 'Carry the wine and bring it along with us,' so he carried it and brought it along with them. When he was brought before R. Ashi he exempted him. The Rabbis said to R. Ashi: Was it not taught: 'If he personally took it and gave it to the heathens with [his own] hand, he would be liable'? — He said to them: This ruling applies only where the heathens were not standing near it,²⁴  whereas where they stood near it is the same [in the eye of the law] as if it had already been burnt.²⁵  R. Abbahu²⁶  raised an objection to [the explanation of] R. Ashi [from the following]: 'If a ruffian said²⁷  to him, "Hand me this bunch of sheaves or this cluster of grapes," and he handed it to him, he would be liable'?²⁸  [No,] we are dealing here with a case where they were standing on two banks of a river.²⁹  That this was the case could also be proved from the use of the word 'hand' instead of 'give'.³⁰  This indeed proves it.

Two persons were quarrelling about a certain net. One said, 'It is mine', and the other said, 'It is mine.' One of them eventually went and surrendered it to the Parangaria³¹  of the King [for confiscation]. Abaye thereupon said that he should be entitled to plead: 'When I surrendered the article it was my own property that I surrendered.' Said Raba to him: 'Why [should he be] believed [if he says so]?' Raba therefore said: We would have to impose a Shamta³²  upon him until be brings back [the net]³³  and appears before the Court.

A certain man who was desirous of showing another man's straw [to be confiscated] appeared before Rab, who said to him: 'Don't show it! Don't show it!' He retorted: 'I will show it! I will show it!' R. Kahana was then sitting before Rab, and he tore [that man's] windpipe out of him. Rab thereupon quoted: Thy sons have fainted, they lie at the heads of all the streets as a wild bull in a net;³⁴  just as when a 'wild bull' falls into a 'net' no one has mercy upon it, so with the property of an Israelite, as soon as it falls into the hands of heathen oppressors no mercy is exercised towards it.³⁵  Rab therefore said to him: 'Kahana, until now the Greeks³⁶  who did not take much notice of bloodshed were [here and had sway, but] now the persians³⁷  who are particular regarding bloodshed are here, and they will certainly say, "Murder, murder!";³⁸  arise therefore and go up to the Land of Israel but take it upon yourself that you will not point out any difficulty to R. Johanan³⁹  for the next seven years. When he arrived there he found Resh Lakish sitting and going over⁴⁰  the lecture of the day for [the younger of] the Rabbis.⁴¹  He thereupon said to them: 'Where is Resh Lakish?'⁴²  They said to him: 'Why do you ask?' He replied: 'This point [in the lecture] is difficult and that point is difficult, but this could be given as an answer and that could be given as an answer.' When they mentioned this to Resh Lakish, Resh Lakish went and said to R. Johanan: 'A lion⁴³  has come up from Babylon; let the Master therefore look very carefully into tomorrow's lecture.' On the morrow R. Kahana was seated on the first row of disciples before R. Johanan, but as the latter made one statement and the former did not raise any difficulty, another statement, and the former raised no difficulty, R. Kahana was put back through the seven rows until he remained seated upon the very last row. R. Johanan thereupon said to R. Simeon b. Lakish: 'The lion you mentioned turns out to be a [mere] fox.'⁴⁴  R. Kahana thereupon⁴⁵  whispered [in prayer]: 'May it be the will [of Heaven] that these seven rows be in the place of the seven years mentioned by Rab.' He thereupon immediately stood on his feet⁴⁶  and said to R. Johanan: 'Will the Master please start the lecture again from the beginning.' As soon as the latter made a statement [on a matter of law], R. Kahana pointed out a difficulty, and so also when R. Johanan subsequently made further statements, for which he was placed again on the first row. R. Johanan was sitting upon seven cushions. Whenever he made a statement against which a difficulty was pointed out, one cushion was pulled out from under him, [and so it went on until] all the cushions were pulled out from under him and he remained seated upon the ground. As R. Johanan was then a very old man and his eyelashes were overhanging he said to them, 'Lift up my eyes for me as I want to see him.' So they lifted up his eyelids with silver pincers. He saw that R. Kahana's lips were parted⁴⁷  and thought that he was laughing at him. He felt aggrieved and in consequence the soul of R. Kahana went to rest.⁴⁸  On the next day R. Johanan said to our Rabbis, 'Have you noticed how the Babylonian was making [a laughing-stock of us]?' But they said to him, 'This was his natural appearance.' He thereupon went to the cave [of R. Kahana's grave] and saw

1. By means of analogy.
2. Imposed for that particular occasion on account of some aggravation of the offence; cf., e.g., supra p. 561.
3. V. Glos.
4. Cf. supra p. 14.
5. Git. 53a.
6. For if not so, why was it necessary to state explicit liability to the new case.
7. Lit., 'maintained'.
8. Such as defiling terumah, vitiating wine and the like.
9. And impose a penalty for preventive purposes.
10. Such as in the case of mixing, [where the loss is small, as the mixture can still be sold to priests though at a somewhat reduced price].
11. That the law in another case could be derived from a ruling merely imposing a fine.
12. V. Sanh. 51b.
13. Cf. Git. 53a.
14. In a public thoroughfare on the Sabbath day, thus committing a capital offence; v. Shab. XI, 1-3.
15. I.e., passing through a distance of not less than four cubits which is the minimum required to make him liable for the violation of Sabbath; v. supra p. 138.
16. From civil liability for the silk.
17. Into which all civil offences committed at that time merge (Keth. 31a); v. supra 192; no civil liability was therefore maintained in the case of vitiating wine by idolatrous libation which is a capital offence; cf. Sanh. VII, 4-6.
18. I.e., before he ever started to commit the idolatrous libation.
19. In the capacity of robbery.
20. Git. 52b. And since the civil liability is neither for the same act nor for the same moment which occasions the liability for capital punishment, each liability holds good.
21. Lit., 'poor-house', but according to Rashi 'a proper name of a place.' [Funk, Monumenta Talmudica, I, 290, identifies it with a locality Abjum, N. of Mosul on the Tigris; Goldschmidt renders: in an Ebionite town.]
22. 'Raba' according to MS.M.
23. But according to MS.M. 'R. Mari and R. Phineas, the sons of …' The fact, however, that R. Ashi was a contemporary is rather in favour of the reading in the text; but cf. also Alfasi and Asheri.
24. I.e., where they have not yet become possessed of it; cf. Rashi and the Codes.
25. The defendant could thus be made liable neither for the act of showing, for at that time be did not handle the wine, nor for the act of carrying which was after the wine had virtually entered the possession of the heathens.
26. More probably 'R. Abba' [since R. Abbahu lived much earlier than R. Ashi; v. D.S.]. Asheri: 'Rabina', Alfasi: 'R. Kahana'.
27. [ [H] another term for 'massik' of the Mishnah. Klein, NB. p. 14, n. 11.]
28. Is this not a case where the ruffian had already been standing nearby the misappropriated article?
29. Which separates the robber from the articles he intended to misappropriate.
30. Cf. 'A.Z. 6b.
31. I.e., the office of public service; cf. B.M. 83b.
32. A ban.
33. Cf. MS.M. and also Alfasi and Asheri a.l.
34. Isa. LI, 20.
35. More correctly perhaps, 'towards him', referring thus to the Israelite; v. Ab. II, 2, also Asheri B.K. X, 27; the act of R. Kahana was in this way vindicated.
36. So MS.M.; cur. edd.: Persians. [The reference is to the Parthians whose sway over Babylon came to an end in 266, when they were defeated by the Sassanians.]
37. So MS.M.; curr. edd.: Greeks. [Ardeshir, the first of the Sassanian kings, deprived the Jews of the right they had hitherto exercised under the Parthians of inflicting capital punishment, v. Funk, Die fuden in Babylonien, I, 68.]
38. [Or 'Rebellion '; v. B.M. (Sonc. ed.) p. 235, n. 7.]
39. V. Hul. 95b.
40. [So Rashi. Kaplan, J. The Redaction of the Babylonion Talmud, p. 206, explains the phrase [H] as referring to a particular kind of lecture, devoted to the defining of the terse conclusions reached during the day in the academy.]
41. Cf. B.M. 84a; also Sanh. 24a.
42. MS.M. adds, 'and R. Kahana did not know that it was Resh Lakish (who was repeating the other lecture).'
43. Cf. Ab. IV, 15, and B.M. 84b.
44. V. p. 699, n. 9.
45. MS.M.: 'he went out of the college.'
46. This is missing in MS.M. according to which it was on another day when R. Johanan made new statements that R. Kahana said so.
47. A physical defect owing to an accidental wound.
48. V. B.M. 84a regarding R. Johanan and Resh Lakish.

a snake coiled round it. He said: 'Snake, snake, open thy mouth¹  and let the Master go in to the disciple.' But the snake did not open its mouth. He then said: 'Let the colleague go in to [his] associate!' But it still did not open [its mouth, until he said,] 'Let the disciple enter to his Master,' when the snake did open its mouth.²  He then prayed for mercy and raised him.³  He said to him, 'Had I known that the natural appearance of the Master was like that, I should never have taken offence; now, therefore let the Master go with us.' He replied, 'If you are able to pray for mercy that I should never die again [through causing you any annoyance],⁴  I will go with you, but if not I am not prepared to go with you. For later on you might change again.' R. Johanan thereupon completely awakened and restored him and he used to consult him on doubtful points, R. Kahana solving them for him. This is implied in the statement made by R. Johanan: 'What⁵  I had believed to be yours⁶  was In fact theirs.'⁷

There was a certain man who showed a silk⁸  ornament of R. Abba [to heathen ruffians]. R. Abbahu and R. Hanina b. Papi and R. Isaac the Smith were sitting in judgment with R. Elai sitting near them. They were inclined to declare the defendant liable, as we have learnt: Where a judge in deciding [on a certain case], declared innocent the person who was really liable, or made liable the person who was really innocent, declared defiled a thing which was [levitically] clean, or declared clean a thing which was really defiled, his decision would stand, but he would have to make restitution out of his own estate.⁹  Thereupon Elai said to them: Thus stated Rab: provided the defendant¹⁰  actually took and gave it away with his own hand.¹¹  They therefore said to the plaintiff: Go and take your case to R. Simeon b. Eliakim and R. Eleazar b. Pedath who adjudicate liability for damage done by Garmi.¹²  When he went to them they declared the defendant liable on the strength of our Mishnah: IF THIS WAS CAUSED THROUGH THE ROBBER HE WOULD HAVE TO PROVIDE HIM WITH ANOTHER FIELD, which we intrepreted¹³  to refer to a case where he showed [the field to oppressors].

A certain man had a silver cup which had been deposited with him, and being attacked by thieves he took it and handed it over to them. He was summoned before Rabbah¹⁴  who declared him exempt. Said Abaye to Rabbah: Was this man not rescuing himself by means of another man's money?¹⁵  R. Ashi said: We have to consider the circumstances. If he was a wealthy man,¹⁶  the thieves came [upon him] probably with the intention of stealing his own possessions, but if not, they came for the silver cup.

A certain man had a purse¹⁷  of money for the redemption of captives deposited with him. Being attacked by thieves he took it and handed it over to them. He was thereupon summoned before Raba¹⁸  who nevertheless declared him exempt. Said Abaye to him: Was not that man rescuing himself by means of another man's money? — He replied: There could hardly be a case of redeeming captives more pressing than this.¹⁹

A certain man managed to get his ass on to a ferry boat before the people in the boat had got out on to shore.²⁰  The boat was in danger of sinking, so a certain person came along and pushed that man's ass over in to the river, where it drowned. When the case was brought before Rabbah²¹  he declared him exempt. Said Abaye to him: Was that person not rescuing himself by means of another man's money? — He, however, said to him: The owner of the ass was from the very beginning in the position of a pursuer.²²  Rabbah follows his own line of reasoning, for Rabbah [elsewhere] said: If a man was pursuing another with the intention of killing him, and in his course broke utensils, whether they belonged to the pursued or to any other person, he would be exempt, for he was at that time²²  incurring capital liability.²³  If, however, he who was pursued broke utensils, he would be exempt only if they belonged to the pursuer, whose possessions could surely not be entitled to greater protection than his body,²⁴  whereas if they belonged to any other person he would be liable, as it is forbidden to rescue oneself by means of another man's possessions. But if a man ran after a pursuer with the intention of rescuing [some one from him] and [in his course accidentally] broke utensils, whether they belonged to the pursued or to any other person he would be exempt; this,²⁵  however, is not a matter of [strict] law, but is based upon the consideration that if you were not to rule thus,²⁶  no man would ever put himself out to rescue a fellow-man from the hands of a pursuer.²⁷

MISHNAH. IF A RIVER FLOODED [A MISAPPROPRIATED FIELD, THE ROBBER] IS ENTITLED TO SAY TO THE OTHER PARTY, 'HERE IS YOURS BEFORE YOU'.²⁸

GEMARA. Our Rabbis taught: If a man robbed another of a field and a river flooded it, he would have to present him with another field. This is the opinion of R. Eleazar²⁹  but the Sages maintain that he would be entitled to say to him: 'Here is yours before you.'³⁰  What is the ground of their difference? — R. Eleazar expounds [Scripture] on the principle of amplifications and limitations.³¹  [The expression,] And lie unto his neighbour,³²  is an amplification;³³  In that which was delivered him to keep …³²  constitutes a limitation;³⁴  Or all that about which he hath sworn falsely³⁵  forms again an amplification;³³  and where an amplification is followed by a limitation which precedes another amplification,³⁵  everything is included. What is thus included? All articles. And what is excluded?³⁴  Bills.³⁶  But the Rabbis expound [Scripture] on the principle of generalisation and specification,³¹  [thus: The expression,] and lie³⁷  is a generalisation;³⁸  In that which was delivered him to keep …³⁷  is a specification;³⁹  Or all that [about which he has sworn falsely]⁴⁰  is again a generalisation;⁴⁰  and where a generalisation is followed by a specification that precedes another generalisation⁴⁰  you surely cannot include anything save what is similar to the specification.⁴¹  So here, just as the specification is an article which is movable and of which the intrinsic value lies in its substance, you include any other matter which is movable and of which the intrinsic value lies in its very substance. Land is thus excluded⁴²  as it is not movable; so also are slaves excluded⁴²  as they are compared [in law] to lands,⁴³  and bills are similarly excluded,⁴²  for though they are movables, their substance does not constitute their intrinsic value. But was it not taught: If one misappropriated a cow and a river swept it away, he would have to present him with another cow,⁴⁴  according to the opinion of R. Eleazar, whereas the Sages maintain that he would be entitled to say to him: 'Here is yours before you'?⁴⁴  Now in what principle did they differ there [in the case of the cow]?⁴⁵  — Said R. papa: We are dealing there with a case where, e.g., he robbed a man of a field on which

1. [The snake holds its tail in its mouth. MS.M. reads 'open the door'.]
2. Cf. B.M. 84b; Hill. 7b.
3. Cf. Ber. 5b.
4. So Rashi a.l.
5. I.e., the knowledge of the law.
6. I.e., the Palestinian scholars'.
7. I.e., the Babylonians'; v. Suk. 44a.
8. [G].
9. Bek. IV, 4; v. supra p. 584. Thus proving that for a mere utterance that caused a loss there is liability to pay.
10. I.e., the judge.
11. Cf. supra p. 585, Bek. 28b and Sanh. 33a.
12. I.e., a direct cause; for the difference between Gerama and Garmi, viz. between an indirect and direct cause, v. Asheri, B.B. II, 17.
13. Supra p. 695.
14. MS.M.: Raba.
15. V. supra p. 351 and Sanh. 74a.
16. Cf. supra p. 360.
17. [G] (Krauss, Lehnworter, II, 133.)
18. 'Rabbah' according to Asheri.
19. For even if the depositee was not poor, since at that time he had nothing else with which to rescue himself from the thieves, he was allowed to do so; v. Tosaf. a.l.
20. So MS.M.; curr. edd.: 'had embarked on the ferry boat'.
21. MS.M.: 'Raba'.
22. I.e., of threatening to endanger human life, which involves even a capital liability during the continuance of the threat; v. Ex. XXII, I, and Sanh. VIII, 7
23. V. supra p. 680, n. 7.
24. Cf. infra p. 713.
25. I.e., the latter ruling.
26. But make him liable.
27. Sanh. 74a.
28. Cf. supra p. 694.
29. I.e., b. Shamua'; MS.M.: Eliezer [b. Horkenos]; as also in Shebu. 37b; v. D.S. n. 2.
30. Shebu. 37b.
31. Cf. Shebu. (Sonc. ed.) p. 12, n. 3; and supra 54b.
32. Lev. V, 21.
33. Including all matters.
34. By the fact that it specifies certain transactions.
35. Ibid. 24.
36. As their intrinsic value does not lie in their substance; v. also supra p. 364.
37. V. p. 703, n. 9.
38. V. p. 703, n. 10.
39. V. p. 703, n. 11.
40. V. p. 703, n. 12.
41. V. supra p. 364.
42. From the general law of robbery.
43. Cf. Lev. XXV, 46 and supra p. 364.
44. V. p. 569, n. 2.
45. Which is certainly subject to the law of robbery.