Babylonian Talmud: Tractate Baba Kamma

Folio 24a

If for goring at long intervals [during three days], there is [full] liability, how much more so for goring at short intervals.¹  They,²  however, said to him: 'A zabah³  disproves your argument, as by noticing her discharges at long intervals [three cases of discharge in three days], she becomes [fully] unclean,⁴  whereas by noticing her discharges at short intervals [i.e. on the same day] she does not become [fully unclean].'⁵  But he answered them: Behold, Scripture says: And this shall be his uncleanness in his issue.⁶  Zab⁷  has thus been made dependent upon [the number of] cases of 'noticing', and zabah upon that of 'days'. But whence is it certain that 'And this'⁶  is to exempt zabah from being affected by cases of 'noticing'?⁸  Say perhaps that it meant only to exempt zab from being affected by the number of 'days'?⁹  — The verse says, And of him that hath on issue, of the man, and of the woman.¹⁰  Male is thus made analogous to female: just as female is affected by [the number of] 'days' so is man affected by 'days'.¹¹  But why not make female analogous to male [and say]: just as male is affected by cases of 'noticing',⁸  so also let female be affected by cases of 'noticing'?⁸  — But Divine Law has [emphatically] excluded that by stating, 'And this'.¹²  On what ground, however, do you say [that the Scriptural phrase excludes the one and not the other]? — It only stands to reason that when cases of 'noticing' are dealt with,¹³  cases of 'noticing' are excluded;¹⁴  [for is it reasonable to maintain that] when cases of 'noticing' are dealt with,¹³  'days' should be excluded?¹⁵

Our Rabbis taught: What is Mu'ad? After the owner has been warned for three days;¹⁶  but [it may return to the state of] Tam, if children keep on touching it and no goring results; this is the dictum of R. Jose. R. Simeon says: Cattle become Mu'ad, after the owner has been warned three times,¹⁷  and the statement regarding three days refers only to the return to the state of Tam.

R. Nahman quoting Adda b. Ahabah said: 'The Halachah is in accordance with R. Judah regarding Mu'ad, for R. Jose agrees with him.¹⁸  But the Halachah is in accordance with R. Meir regarding Tam,¹⁹  since R. Jose agrees with him [on this point].' Raba, however, said to R. Nahman: 'Why, Sir, not say that the Halachah is in accordance with R. Meir regarding Mu'ad for R. Simeon agrees with him, and the Halachah is in accordance with R. Judah regarding Tam, since R. Simeon agrees with him [on this point]?' He answered him: 'I side with R. Jose, because the reasons of R. Jose are generally sound.'²⁰

There arose the following question: Do the three days [under discussion] apply to [the goring of] the cattle [so that cases of goring on the same day do not count as more than one], or to the owner [who has to be warned on three different days]?²¹  The practical difference becomes evident when three sets of witnesses appear on the same day [and testify to three cases of goring that occurred previously on three different days]. If the three days apply to [the goring of] the cattle there would in this case be a declaration of Mu'ad;²²  but, if the three days refer to the warning given the owner, there would in this case be no declaration of Mu'ad, as the owner may say: 'They have only just now testified against me [while the law requires this to be done on three different days].'

Come and hear: Cattle cannot be declared Mu'ad until warning is given the owner when he is in the presence of the Court of Justice. If warning is given in the presence of the Court while the owner is absent, or, on the other hand, in the presence of the owner, but outside the Court, no declaration of Mu'ad will be issued unless the warning be given before the Court and before the owner. In the case of two witnesses giving evidence of the first time [of goring], and another two of the second time, and again two of the third time [of goring], three independent testimonies have been established. They are, however, taken as one testimony regarding haza mah.²³  Were the first set found zomemim,²⁴  the remaining two sets would be unaffected; the defendant would, however, escape [full] liability²⁵  and the zomemim would still not have to pay him [for conspiring to make his cattle Mu'ad].²⁶  Were also the second set found zomemim, the remaining testimony would be unaffected; the defendant would escape [full] liability²⁵  and the zomemim would still not have to compensate him [for conspiring to make his cattle Mu'ad].²⁶  Were the third set also found zomemim, they would all have to share the liability [for conspiring to make the cattle Mu'ad];²⁷  for it is with reference to such a case that it is stated, Then shall ye do unto him as he had thought to have done unto his brother.²⁸  Now if it is suggested that the three days refer to [the goring of] the cattle [whereas the owner may be warned in one day], the ruling is perfectly right [as the three pairs may have given evidence in one day].²⁹

1. I.e., by goring three times in one and the same day.
2. The other Rabbis headed by R. Judah his opponent.
3. I.e., a woman who within the eleven days between one menstruation period and another had discharges on three consecutive days; cf. Lev.XV, 25-33.
4. For seven days.
5. I.e., for more than one day.
6. Lev. XV, 3. This text checks the application of the a fortiori in this case as the explanation goes on.
7. I.e., a male person afflicted with discharges of issue on three different occasions; cf. Lev. XV, 1-15.
8. On one and the same day.
9. So that he is affected only by that of the cases of 'noticing'.
10. Lev. XV, 33.
11. So that if one discharge lasted with him two or three days, it will render him zab proper.
12. Lev. XV, 3.
13. In Lev. ibid.
14. Regarding zabah.
15. In the case of zab.
16. Regarding three acts of goring by their cattle.
17. For three acts of goring.
18. Thus constituting a majority against R. Meir on this point.
19. I.e., the return to the state of Tam.
20. Lit., 'his depth is with him.' v. Git. 67a.
21. Regarding three acts of goring committed by his cattle even on one day.
22. Though the evidence was given in one day.
23. I.e., proved alibi of a set of witnesses, v. Mak. (Sonc. ed.) p. 1, n. 1.
24. I.e., proved to have been absent at the material time of the alleged goring; v. Glos.
25. As his cattle 'would have to be dealt with as Tam.
26. In accordance with law of retaliation. Deut. XIX, 19. Since regarding the declaration of Mu'ad all the three pairs of witnesses constitute one set, and the law of hazamah applies only when the whole set has been convicted of an alibi.
27. I.e., the half damages added on account of the declaration of Mu'ad, whereas the original half damages on account of Tam will be imposed only upon the last pair of witnesses.
28. Deut. XIX. 19.
29. And since they waited until the last day when they were summoned by the plaintiff of that day, it is plain that their object in giving evidence was to render the ox Mu'ad.

But if it be suggested that the three days refer to the warning given the owner,¹  why should not the first set say: 'Could we have known that after three days there would appear other sets to render the cattle Mu'ad?'²  — R. Ashi thereupon said: I repeated this argument to R. Kahana, and he said to me: 'And even if the three days refer to [the goring of] the cattle,³  is the explanation satisfactory? Why should not the last set say: "How could we have known that all those present at the Court⁴  had come to give evidence against the [same] ox? Our aim in coming was only to make the defendant liable for half damages."?'⁵  — [But we may be dealing with a case where] all the sets were hinting to one another⁶  [thus definitely conspiring to act concurrently]. R. Ashi further said that we may deal with a case where all the sets appeared [in Court] simultaneously.⁷  Rabina even said: 'Where the witnesses know only the owner but could not identify the ox.'⁸  How then can they render it Mu'ad?⁹  — By saying: 'As you have in your herd an ox prone to goring, it should be your duty to control the whole of the herd.'

There arose the following question: In the case of a neighbour's dog having been set on a third person, what is the law? The inciter could undoubtedly not be made liable,¹⁰  but what about the owner of the dog? Are we to say that the owner is entitled to plead: 'What offence have I committed here?' Or may we retort: 'Since you were aware that your dog could easily be incited and do damage you ought not to have left it [unguarded]'?

R. Zera [thereto] said: Come and hear: [CATTLE BECOME AGAIN] TAM, WHEN CHILDREN KEEP ON TOUCHING THEM AND NO GORING RESULTS, implying that were goring to result therefrom there would be liability [though it were caused by incitement]! — Abaye however said: Is it stated: If goring results therefrom there is liability? What perhaps is meant is: If goring does result therefrom there will be no return to the state of Tam, though regarding that [particular] goring no liability will be incurred.

Come and hear: If he incited a dog or incited a serpent against him, there is exemption.¹¹  Does this not mean that the inciter is free, but the owner of the dog is liable? — No, read: '… the inciter too is free.'¹²

Raba said: Assuming that in the case of inciting a neighbour's dog against a third person, the owner of the dog is liable, if the incited dog turns upon the inciter, the owner is free on the ground that where the plaintiff himself has acted wrongly, the defendant who follows suit and equally acts wrongly [against the former] could not be made liable [to him]. R. Papa thereupon said to Raba: A statement was made in the name of Resh Lakish agreeing with yours; for Resh Lakish said:¹³  'In the case of two cows on public ground, one lying and the other walking, if the walking cow kicks the other, there is no liability [as the plaintiff's cow had no right to be lying on the public ground], but if the lying cow kicks the other cow there will be liability.' Raba, however, said to him: In the case of the two cows I would always order payment¹⁴  as [on behalf of the plaintiff] we may argue against the defendant: 'Your cow may be entitled to tread upon my cow, she has however no right to kick her.'

MISHNAH WHAT IS MEANT BY 'OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES'?¹⁵  IN CASE OF GORING, PUSHING, BITING, LYING DOWN OR KICKING, IF ON PUBLIC GROUND THE PAYMENT¹⁶  IS HALF, BUT IF ON THE PLAINTIFF'S PREMISES R. TARFON ORDERS PAYMENT IN FULL¹⁷  WHEREAS THE SAGES ORDER ONLY HALF DAMAGES.

R. TARFON THERE UPON SAID TO THEM: SEEING THAT, WHILE THE LAW WAS LENIENT TO TOOTH AND FOOT IN THE CASE OF PUBLIC GROUND ALLOWING TOTAL EXEMPTION,¹⁸  IT WAS NEVERTHELESS STRICT WITH THEM REGARDING [DAMAGE DONE ON] THE PLAINTIFF'S PREMISES WHERE IT IMPOSED PAYMENT IN FULL, IN THE CASE OF HORN, WHERE THE LAW WAS STRICT REGARDING [DAMAGE DONE ON] PUBLIC GROUND IMPOSING AT LEAST THE PAYMENT OF HALF DAMAGES, DOES IT NOT STAND TO REASON THAT WE SHOULD MAKE IT EQUALLY STRICT WITH REFERENCE TO THE PLAINTIFFS PREMISES SO AS TO REQUIRE COMPENSATION IN FULL? THEIR ANSWER WAS: IT IS QUITE SUFFICIENT THAT THE LAW IN RESPECT OF THE THING INFERRED¹⁹  SHOULD BE EQUIVALENT TO THAT FROM WHICH IT IS DERIVED:²⁰  JUST AS FOR DAMAGE DONE ON PUBLIC GROUND THE COMPENSATION [IN THE CASE OF HORN] IS HALF, SO ALSO FOR DAMAGE DONE ON THE PLAINTIFF'S PREMISES THE COMPENSATION SHOULD NOT BE MORE THAN HALF. R. TARFON, HOWEVER, REJOINED: BUT NEITHER DO I

1. In which case the three sets dealt with could not have given their evidence in one and the same day, but each set on the day the respective goring took place.
2. Why then should the first set ever be made responsible for the subsequent rendering of the cattle Mu'ad.
3. In which case the three pairs may have given their evidence in one day.
4. I.e., the witnesses that constituted the former sets.
5. The former sets, however, cannot plead thus since they waited with their evidence until the last day, when they appeared to the summons of the plaintiff of that day, in which case it is more than evident that all that concerned that plaintiff regarding the evidence of the earlier times of goring was solely to render the ox Mu'ad.
6. And all gave evidence in one and the same day. Rashi a.l. maintains that this would still prove that the three days refer to the goring of the cattle and not to warning the owner. According to an interpretation suggested by Tosaf., however, the first and second sets who also appeared on the third day together with the third set, had already given their evidence on the first and second day respectively. The requirement of the three days could thus accordingly refer to warning the owner.
7. Cf. n. 2.
8. In which case the sole intention of all the sets of witnesses was the declaration of Mu'ad. They could not have intended to make the defendant liable for half damages since half damages in the case of Tam is paid only out of the body of the goring ox which the witnesses in this case were unable to identify. This explanation holds good only regarding the intention of the last set of witnesses, whereas the former sets, if for the declaration of Mu'ad they would necessarily have to record their evidence before the third time of goring, could then not have foreseen that the same ox (whose identity was not established by them) would continue goring for three and four times. Rashi thus proves that the three days refer not to warning the owner but to the times of goring committed by the cattle.
9. Since the identity of the goring ox could not be established.
10. For he, not having actually done the damage, is but an accessory.
11. Cf. supra p. 117.
12. Meaning thus that both inciter and owner are free.
13. Supra p. 98.
14. Even in the case of the walking cow kicking the lying cow.
15. Referred to supra p. 68.
16. While in the state of Tam; cf. supra p. 73.
17. V. supra p. 68.
18. Supra p. 17.
19. I.e., Horn doing damage on the plaintiff's premises.
20. I.e., Horn doing damage on public ground.