Babylonian Talmud: Tractate Baba Kamma

Folio 25a

INFER HORN [DOING DAMAGE ON THE PLAINTIFF'S PREMISES] FROM HORN [DOING DAMAGE ON PUBLIC GROUND]; I INFER HORN FROM FOOT: SEEING THAT IN THE CASE OF PUBLIC GROUND THE LAW, THOUGH LENIENT WITH REFERENCE TO TOOTH AND FOOT, IS NEVERTHELESS STRICT REGARDING HORN, IN THE CASE OF THE PLAINTIFF'S PREMISES, WHERE THE LAW IS STRICT WITH REFERENCE TO TOOTH AND FOOT, DOES IT NOT STAND TO REASON THAT WE SHOULD APPLY THE SAME STRICTNESS TO HORN? THEY, HOWEVER, STILL ARGUED: IT IS QUITE SUFFICIENT IF THE LAW IN RESPECT OF THE THING INFERRED IS¹  EQUIVALENT TO THAT FROM WHICH IT IS DERIVED.²  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.

GEMARA. Does R. Tarfon really ignore the principle of Dayyo?³  Is not Dayyo of Biblical origin as taught:⁴  How does the rule of Kal wa-homer⁵  work? And the Lord said unto Moses, If her father had but spit in her face, should she not be ashamed seven days?⁶  How much the more so then in the case of divine [reproof] should she be ashamed fourteen days? Yet the number of days remains seven, for it is sufficient if the law in respect of the thing inferred⁷  be equivalent to that from which it is derived!⁸  — The principle of Dayyo is ignored by him [R. Tarfon] only when it would defeat the purpose of the a fortiori,⁹  but where it does not defeat the purpose of the a fortiori, even he maintains the principle of Dayyo. In the instance quoted there is no mention made at all of seven days in the case of divine reproof; nevertheless, by the working of the a fortiori, fourteen days may be suggested: there follows, however, the principle of Dayyo so that the additional seven days are excluded, whilst the original seven are retained. Whereas in the case before us¹⁰  the payment of not less than half damages has been explicitly ordained [in all kinds of premises]. When therefore an a fortiori is employed, another half-payment is added [for damage on the plaintiff's premises], making thus the compensation complete. If [however] you apply the principle of Dayyo, the sole purpose of the a fortiori would thereby be defeated.¹¹  And the Rabbis?¹²  — They argue that also in the case of divine [reproof] the minimum of seven days has been decreed in the words: Let her be shut out from the camp seven days.¹³  And R. Tarfon?¹⁴  — He maintains that the ruling in the words, 'Let her be shut out etc.', is but the result of the application of the principle of Dayyo¹⁵  [decreasing the number of days to seven]. And the Rabbis? — They argue that this is expressed in the further verse: And Miriam was shut out from the camp.¹⁶  And R. Tarfon? — He maintains that the additional statement was intended to introduce the principle of Dayyo for general application so that you should not suggest limiting its working only to that case where the dignity of Moses was involved, excluding thus its acceptance for general application: it has therefore been made known to us [by the additional statement] that this is not the case.

R. Papa said to Abaye: Behold, there is a Tanna who does not employ the principle of Dayyo even when the a fortiori would thereby not be defeated, for it was taught: Whence do we know that the discharge of semen virile in the case of zab¹⁷  causes defilement [either by 'touching' or by 'carrying']?¹⁸  It is a logical conclusion: For if a discharge¹⁹  that is clean in the case of a clean person is defiling in the case of zab,²⁰  is it not cogent reasoning that a discharge²¹  which is defiling in the case of a clean person,²²  should defile in the case of zab? Now this reasoning applies to both 'touching' and 'carrying',²³  But why not argue that the a fortiori serves a useful purpose in the case of 'touching', whilst the principle of Dayyo can be employed to exclude defilement by mere 'carrying'?²⁴  If, however, you maintain that regarding 'touching' there is no need to apply the a fortiori on the ground that [apart from all inferences] zab could surely not be less defiling than an ordinary clean person,²⁵  my contention is [that the case may not be so, and] that the a fortiori may [still] be essential. For I could argue: By reason of uncleanness that chanceth him by night²⁶  is stated in Scripture to imply that the law of defilement applies only to those whose uncleanness has been occasioned solely by reason of their discharging semen virile, excluding thus zab, whose uncleanness has been occasioned not [solely] by his discharging semen virile but by another cause altogether.²⁷  May not the a fortiori thus have to serve the purpose of letting us know that zab is not excluded?²⁸  — But where in the verse is it stated that the uncleanness must not have [concurrently] resulted also from any other cause?²⁹

Who is the Tanna whom you may have heard maintain that semen virile of zab causes [of itself] defilement by mere 'carrying'? He could surely be neither R. Eliezer, nor R. Joshua, for it was taught:³⁰  The semen virile of zab causes defilement by 'touching', but causes no defilement by mere 'carrying'. This is the view of R. Eliezer. R. Joshua, however, maintains that it also causes defilement by mere 'carrying', for it must necessarily contain particles of gonorrhoea.³¹  Now, the sole reason there of R. Joshua's view is that semen virile cannot possibly be altogether free from particles of gonorrhoea, but taken on its own it would not cause defilement. The Tanna who maintains this³²  must therefore be he who is responsible for what we have learnt: More severe than the former [causes of defilement]³³

1. V. p. 125, n. 5.
2. V. ibid. n. 6. [As in whatever way the argument is put the result is the same — namely, inferring Horn on the plaintiff's premises from Horn on public ground.]
3. The Hebrew term meaning 'it is sufficient for it', and denoting the qualification applied by the Rabbis to check the full force of the a fortiori; v. Glos.
4. B.B. II 1a; Zeb. 69b.
5. The technical term for the logical inference, 'From minor to major,' v. Glos.
6. Num. XII, 14.
7. I.e., in the case of Divinity.
8. I.e., the case of her father. [Hence, even in the case of Divinity, no more than seven days are inferred proving that Dayyo has a Biblical basis.]
9. I.e., render it completely ineffective.
10. Regarding compensation whether it be half or full in the case of Horn doing damage.
11. V. p. 126, n. 9.
12. I.e., the Sages in the Mishnah: how do they meet R. Tarfon's objection?
13. Num. XII, 14.
14. How can he state that no mention is made of seven days in connection with divine reproof?
15. But not a decree per se.
16. Num. XII, 15.
17. A person afflicted with gonorrhoea: cf. Lev. XV, 1-15.
18. As is the case with gonorrhoeal discharge.
19. Such as saliva.
20. Cf. Lev. XV, 8, and Niddah, 55b.
21. Such as semen virile.
22. Cf. Lev. XV, 16-17, and supra p. 2.
23. As it is based on the law applicable to the saliva of zab.
24. As is the case with the law applicable to semen virile of a clean person.
25. Whose semen virile causes defilement by touching.
26. Deut. XXIII, 11.
27. I.e., by the affliction of gonorrhoea. [I may therefore have assumed that the semen virile of a zab causes no defilement, not even by 'touching'.]
28. And since the a fortiori would still serve a useful purpose regarding defilement by 'touching', why should not the principle of Dayyo be employed to exclude defilement by mere 'carrying'? Hence this Tanna does not resort to Dayya even where the employment thereof would not render the a fortiori ineffective.
29. The law applicable to semen virile to cause defilement by 'touching' is thus per se common with all kinds of persons. The inference by means of the a fortiori would therefore indeed be rendered useless if Dayyo, excluding as a result defilement by 'carrying', were admitted.
30. Naz. 66a.
31. Which defile both by 'touching' and by 'carrying'.
32. That semen virile of zab defiles by mere 'carrying' even on its own.
33. I.e., the three primary Defilements: Dead Reptile, Semen Virile and the Person contaminated by contact with a corpse, all of which do not defile by mere carrying'. v. supra p. 2.

are the gonorrhoeal discharge of zab, his saliva, his semen virile, his urine and the blood of menstruation, all of which defile whether by 'touching' or by mere 'carrying'.¹  But why not maintain that the reason here is also because the semen virile of zab cannot possibly be altogether free from particles of gonorrhoea? — If this had been the reason, semen virile should have been placed in juxtaposition to gonorrhoeal discharge. Why then was it placed in juxtaposition to saliva if not on account of the fact that its causing defilement is to be inferred from the law applicable to his saliva?²

R. Aha of Difti said to Rabina: Behold there is this Tanna who does not employ the principle of Dayyo even when the purpose of the a fortiori would thereby not be defeated. For it was taught: Whence do we learn that mats³  become defiled if kept within the tent where there is a corpse? — It is a logical conclusion: For if tiny [earthenware] jugs that remain undefiled by the handling of zab⁴  become defiled when kept within the tent where there is a corpse,⁵  does it not follow that mats, which even in the case of zab become defiled,⁶  should become defiled when kept within the tent where there is a corpse.⁷  Now this reasoning applies not only to the law of defilement for a single day,⁸  but also to defilement for full seven⁹  [days]. But why not argue that the a fortiori well serves its purpose regarding the defilement for a single day,¹⁰  whilst the principle of Dayyo is to be employed to exclude defilement for seven days? — He [Rabina] answered him: The same problem had already been raised by R. Nahman b. Zachariah to Abaye, and Abaye answered him that it was regarding mats in the case of a dead reptile¹¹  that the Tanna had employed the a fortiori, and the text should run as follows: 'Whence do we learn that mats¹²  coming in contact with dead reptiles¹³  become defiled? It is a logical conclusion: for if tiny [earthenware] jugs that remain undefiled by the handling of zab,¹⁴  become defiled when in contact with dead reptiles,¹⁵  does it not follow that mats which even in the case of zab become defiled,¹⁶  should become defiled by coming in contact with dead reptiles?' But whence the ruling regarding mats¹⁷  kept within the tent of a corpse? — In the case of dead reptiles it is stated raiment or skin,¹⁵  while in the case of a corpse it is also stated, raiment … skin:¹⁸  just as in the case of raiment or skin stated in connection with dead reptiles,¹⁵  mats [are included to] become defiled, so is it regarding raiment … skin stated in connection with a corpse¹⁸  that mats similarly become defiled. This Gezerah shawah¹⁹  must necessarily be 'free',²⁰  for if it were not 'free' the comparison made could be thus upset: seeing that in the case of dead reptiles [causing defilement to mats], their minimum for causing uncleanness is the size of a lentil,²¹  how can you draw an analogy to corpses where the minimum to cause uncleanness is not the size of a lentil but that of an olive?²²  — The Gezerah shawah must thus be 'free'. Is it not so? For indeed the law regarding dead reptiles is placed in juxtaposition to semen virile as written, Or a man whose seed goeth from him,²³  and there immediately follows, Or whosoever toucheth any creeping thing. Now in the case of semen virile it is explicitly stated, And every garment, and every skin, whereon is the seed of copulation.²⁴  Why then had the Divine Law to mention again raiment or skin in the case of dead reptiles?²⁵  It may thus be concluded that it was [inserted] to be 'free' [for exegetical purposes].²⁶  Still it has so far only been proved that one part [of the Gezerah shawah]²⁷  is 'free'. This would therefore be well in accordance with the view maintaining²⁸  that when a Gezerah shawah is 'free', even in one of its texts only, an inference may be drawn and no refutation will be entertained. But according to the view holding²⁹  that though an inference may be drawn in such a case, refutations will nevertheless be entertained, how could the analogy [between dead reptiles and corpses] be maintained?³⁰  — The verbal congruity in the text dealing with corpses is also 'free'. For indeed the law regarding corpses is similarly placed in juxtaposition to semen virile, as written, And whoso toucheth any thing that is unclean by the dead or a man whose seed goeth from him etc.²³  Now in the case of semen virile it is explicitly stated, And every garment, and every skin, whereon is the seed of copulation. Why then had the Divine Law to mention again raiment … skin in the case of corpses?³¹  It may thus be concluded that it was [inserted] to be 'free' for exegetical purposes.²⁶  The Gezerah shawah is thus 'free' in both texts. Still this would again be only in accordance with the view maintaining³²  that when an inference is made by means of reasoning [from an analogy] the subject of the inference is placed back on its own basis.³³  But according to the view that when an inference is made [by means of an analogy] the subject of the inference must be placed on a par with the other in all respects, how can you establish the law [that mats kept in the tent of a corpse become defiled for seven days,³⁴  since you infer it from dead reptiles where the defilement is only for the day]?³⁵  — Said Raba: Scripture states, And ye shall wash your clothes on the seventh day,³⁶  to indicate that all defilements in the case of corpses cannot be for less than for seven [days].

But should we not let Tooth and Foot involve liability for damage done [even] on public ground because of the following a fortiori: If in the case of Horn³⁷  where [even] for damage done on the plaintiff's premises only half payment is involved, there is yet liability to pay for damage done on public ground, does it not necessarily follow that in the case of Tooth and Foot where for damage done on the plaintiff's premises the payment is in full, there should be liability for damage done on public ground? — Scripture, however, says, And it shall feed in another man's field,³⁸  excluding thus [damage done on] public ground.

1. Kelim I, 3.
2. It is thus proved that semen virile of zab causes of itself defilement by 'carrying' and not on account of the particles of gonorrhoea it contains.
3. Which are not included among the articles referred to in Num. XXXI, 20.
4. [As he is unable to insert even his small finger within. Earthenware is susceptible to levitical uncleanness only through the medium of its interior. Lev. XI, 33.]
5. As stated in Num. XIX, 15; and every open vessel … is unclean.
6. In accordance with Lev. XV, 4.
7. Shab. 84a.
8. Lit., 'defilement (until) sunset,' which applies to defilements caused by zab; v. Lev. XV, 5-11.
9. Usual in defilements through a corpse; cf. Num. XIX, 11-16.
10. [As is the case with the bed of a zab (cf. Lev. XV, 4), since it is derived from zab.]
11. But not at all regarding corpses; the whole problem thus concerns only defilement for a day; v. infra.
12. As mats are not included among the articles referred to in Lev. XI, 32.
13. The minimum quantity for defilement by which is the size of a lentil, a quantity which can easily pass through the opening of the smallest bottle.
14. As he is unable to insert even his small finger within. Earthenware is susceptible to levitical uncleanness only through the medium of its interior. Lev. XI, 33.
15. Lev. XI, 32: … whether it be any vessel of wood or raiment or skin … it shall be unclean until the even.
16. In accordance with Lev. XV, 4.
17. Which are not included among the articles referred to in Num. XXXI, 20.
18. Num. XXXI, 20: And as to every raiment and all that is made of skin … ye shall purify.
19. The technical term for (an inference from) a verbal congruity in two different portions of the Law; v. Glos.
20. Heb. vbpun (Mufnah), 'free', that is, for exegetical use, having no other purpose to serve, but solely intended to indicate this particular similarity in law.
21. Hag. 11a; Naz. 52a.
22. Naz. 49b.
23. Lev. XXII, 4.
24. Ibid. XV, 17.
25. Lev. XI, 32.
26. Thus to make the Gezerah shawah irrefutable.
27. I.e., in the case of dead reptiles.
28. Nid. 22b.
29. Shab. 131a; Yeb. 70b.
30. Since the refutation referred to above may be entertained.
31. Num. XXXI, 20.
32. Yeb. 78b.
33. Becoming subject to the specific laws applicable to its own category. [So here mats in the tent of a corpse, though derived by analogy from reptiles, are subject to the laws of defilement by corpses. i.e., a defilement of 7 days.]
34. Usual in defilements through a corpse; cf. Num. XIX, 11-16.
35. Lev. XI, 32.
36. Num. XXXI, 24.
37. While in the state of Tam; cf. supra p. 73.
38. Ex. XXII, 4.