Babylonian Talmud: Tractate Baba Kamma

Folio 59a

If it consumed grapes while still in the budding stage, R. Joshua says that they should be estimated as if they were grapes ready to be plucked off. But the Sages [here too] say that it will have to be ascertained how much it was worth [previously] and how much it is worth [now]. R. Simeon b. Judah says in the name of R. Simeon:¹  These rulings apply where it consumed sprouts of vines or shoots of fig-trees, but where it consumed [actual] figs or half-ripe grapes they would be estimated as if they were grapes ready to be plucked off.²  Now, it is definitely taught here, 'The Sages say that it will have to be ascertained how much it was worth [previously] and how much it is worth [now]' and it is not said [explicitly that the valuation will be made] in conjunction with sixty [times as much]. Nevertheless you must say that it is implied that [the valuation is to be made] in conjunction with sixty [times as much]. So also then here, [in the case of Man it is implied that the valuation is to be] in conjunction with Sixty [times as much].

Abaye said: R. Jose the Galilean and R. Ishmael expressed the same view [in this matter]. R. Jose the Galilean as stated by us [above],³  and R. Ishmael as taught [elsewhere]:⁴  'Of the best of his own field and of the best of his own vineyard shall he make restitution;⁵  this means the best of the field of the plaintiff and the best of the vineyard of the plaintiff. This is the view of R. Ishmael. R. Akiba, however, says: Scripture only intended to lay down that damages should be collected out of the best and this applies even more to sacred property. Nor can you say that he [R. Ishmael] meant this in the sense of R. Idi b. Abin, who said [that it deals with a case where] e.g., the cattle consumed one bed out of several beds and we could not ascertain whether its produce was meagre or fertile, so that R. Ishmael would [thus be made to] order the defendant to go and pay for a fertile bed in accordance with the value of the best bed at the time of the damage. This could not be maintained by us, for the reason that the onus probandi falls upon the claimant. R. Ishmael⁶  must therefore have meant the best of anticipation, i.e., as it would have matured [at the harvest time].

The Master stated: 'R. Simeon b. Judah says in the name of R. Simeon: These rulings apply only where it consumed sprouts of vines or shoots of fig-trees,' [thus implying that] where it consumed grapes in the budding stage they would be estimated as if they were grapes ready to be plucked off. Read [now] the concluding clause: 'Where it consumed [actual] figs or half-ripe grapes they would be estimated as if they were grapes ready to be plucked off', [implying to the contrary that] where it consumed grapes in the budding stage it would have to be ascertained how much it was worth [previously] and how much it is worth [now]. [Is this not a contradiction?] — Rabina said: Embody [the new case in the text] and teach thus: 'These rulings apply only where it consumed sprouts of vines or shoots of fig-trees, for where it consumed grapes in the budding stage, or [actual] figs or half-ripe grapes they would be estimated as if they were grapes ready to be plucked off.' But if so would R. Simeon b. Judah's view not be exactly the same as that already stated by R. Joshua? — There is a practical difference between them as to [the deduction to be made for] the depreciation of the vines [themselves, through exhaustion, if the grapes had remained there until fully ripe],⁷  though the views cannot be identified.⁸  Abaye, however, said: They most assuredly could be identified. For who could be the Tanna who takes into consideration the depreciation of the vine, if not R. Simeon b. Judah? For it was taught: R. Simeon b. Judah says in the name of R. Simeon b. Menasya:⁹  [Even] in the case of Rape no compensation is made for Pain, as the female would [in any case] have subsequently to undergo the same pain through her husband.¹⁰  The Rabbis however said to him: A woman having intercourse by her free will is not to be compared to one having intercourse by constraint.

Abaye further said: The following Tannaim and R. Simeon b. Judah expressed on this point the same view?¹¹  R. Simeon b. Judah's view as stated by us [above]. Who are the other Tannaim [referred to]? — As taught: R. Jose says: Deduct the fees of the midwife,¹²  but Ben 'Azzai says: Deduct food.¹³  The one who says, 'deduct the fees for the midwife' would certainly deduct food,¹⁴  but the one who says, 'deduct food', would not deduct the fees for the midwife, as the plaintiff might say, 'My wife is a lively person and does not need a midwife.'¹⁵  R. Papa and R. Huna the son of R. Joshua in an actual case¹⁶  followed the view of R. Nahman and valued in conjunction with sixty times [as much]. According to another report, however, R. Papa and R. Huna the son of R. Joshua valued a palmtree in conjunction with the small piece of ground.¹⁶  The law is in accordance with R. Papa and R. Huna the son of R. Joshua¹⁷  in the case of an Aramean palm,¹⁸  but it is in accordance with the Exilarch¹⁹  in the case of a Persian palm.²⁰

Eliezer²¹  Ze'era

1. B. Yohai.
2. Keth. 105a.
3. That it will have to be considered in the light of the future value of that which was left in the field.
4. V. supra 6b.
5. Ex. XXII, 4.
6. [In the case where the quality of the bed consumed by the cattle was not in doubt.]
7. [I.e., one view would maintain that this deduction has to be made, while the other would not maintain this.]
8. [It cannot be stated precisely which authority is of the one and which of the other view.]
9. Keth, 39a.
10. Proving that a deduction from the amount of the damages is made on a similar accord.
11. That a deduction should be made on this accord.
12. From the payment for injuring a pregnant woman resulting in a miscarriage; cf. Ex. XXI, 22 and supra 49a.
13. I.e. the special diet which would have been necessary during the confinement period.
14. As the special diet would have been an inevitable expense.
15. He would therefore have spared this expense.
16. Where a human being did damage with his body.
17. To value in conjunction with sixty times as much where a human being did damage with his body.
18. Which is by itself of no great value.
19. To value the tree by itself.
20. Which is even by itself of considerable value.
21. [V.l. Eleazar].

once put on a pair of black shoes and stood in the market place of Nehardea. When the attendants of the house of the Exilarch met him there, they said to him: 'What ground have you for wearing black shoes?'¹  — He said to them: 'I am mourning for Jerusalem.' They said to him: 'Are you such a distinguished person as to mourn over Jerusalem?'²  Considering this to be a piece of arrogance on his part they brought him and put him in prison. He said to them, 'I am a great man!' They asked him: 'How can we tell?' He replied, 'Either you ask me a legal point or let me ask you one.' They said to him: '[We would prefer] you to ask.' He then said to them: 'If a man cuts a date-flower, what payment should he have to make?' — They answered him: 'The payment will be for the value of the date-flower.' 'But would it not have grown into dates?'³  — They then replied: 'The payment should be for the value of the dates.' 'But', he rejoined, 'surely it was not dates which he took from him!'⁴  They then said to him: 'You tell us.' He replied: 'The valuation would have to be made in conjunction with sixty times as much.'⁵  They said to him: 'What authority can you find to support you?' — He thereupon said to them: 'Samuel is alive and his court of law flourishes [in the town].' They sent this problem to be considered before Samuel who answered them: 'The statement he⁶  made to you, that the valuation should be in conjunction with sixty times [as much as the damaged date-flower]⁵  is correct.' They then released him.

R. SIMEON SAYS: IF IT CONSUMED RIPE FRUITS etc. On what ground?⁷  — The statement of the Divine Law, And shall feed in another man's field,⁸  teaching that valuation is to be made in conjunction with the field applies to produce which was still in need of a field, whereas these fruits [in the case before us],⁹  since they were no more in need of a field, must be compensated at their actual value.

R. Huna b. Hiyya said that R. Jeremiah stated that Rab gave judgment [in contradistinction to the usual rule]¹⁰  in accordance with R. Meir and [on another legal point] decided the law to be in accordance with R. Simeon. He gave judgment in accordance with R. Meir on the matter taught: If the husband drew up a deed for a would-be purchaser [of a field which had been set aside for the payment of the marriage settlement of his wife] and she did not endorse it, and [when a deed on the same field was drawn up] for another purchaser she did endorse it, she has thereby lost her claim to the marriage settlement; this is the view of R. Meir.¹¹  R. Judah, however, says: She might still argue, 'I made the endorsement merely to gratify my husband; why therefore should you go against me?'¹²  [The legal point where] he decided the law to be in accordance with R. Simeon was that which we learnt: R. SIMEON SAYS: IF IT CONSUMED RIPE FRUITS, THE PAYMENT SHOULD BE FOR RIPE FRUITS, IF ONE SE'AH [IT WOULD BE FOR] ONE SE'AH, IF TWO SE'AHS, [FOR] TWO SE'AHS.

MISHNAH. IF A MAN PUTS HIS STACKS OF CORN IN THE FIELD OF ANOTHER WITHOUT PERMISSION, AND THE ANIMAL OF THE OWNER OF THE FIELD EATS THEM, THERE IS NO LIABILITY. MOREOVER, IF IT SUFFERED HARM FROM THEM, THE OWNER (OF THE STACKS WOULD BE LIABLE. IF, HOWEVER, HE PUT THE STACKS THERE WITH PERMISSION, THE OWNER OF THE FIELD WOULD BE LIABLE.

GEMARA. May we say that this Mishnah is not in accordance with Rabbi? For if in accordance with Rabbi, did he not say¹³  that unless the owner of the premises explicitly took upon himself to safeguard he would not be liable?¹⁴  — R. Papa said: [Here we were dealing with] the watchman of the barns.¹⁵  For since he said, 'Enter and place your stacks', it surely amounted to, 'Enter and I will guard for you'.¹⁶

MISHNAH. IF A MAN SENT OUT SOMETHING BURNING THROUGH A DEAF MUTE, AN IDIOT, OR A MINOR [AND DAMAGE RESULTED] HE WOULD BE EXEMPT FROM THE JUDGMENTS OF MAN, BUT LIABLE IN ACCORDANCE WITH THE JUDGMENTS OF HEAVEN. BUT IF HE SENT [IT] THROUGH A NORMAL PERSON, THE NORMAL PERSON WOULD BE LIABLE. IF ONE PERSON [FIRST] SUPPLIES THE FIRE AND ANOTHER THE WOOD, HE WHO SUPPLIES THE WOOD WOULD BE LIABLE.¹⁷  WHERE, [ON THE OTHER HAND], THE FIRST SUPPLIES THE WOOD AND THE SECOND THE FIRE, HE WHO SUPPLIES THE FIRE WOULD BE LIABLE.¹⁷  BUT WHERE ANOTHER PERSON CAME ALONG AND FANNED THE FLAME, THE ONE WHO FANNED IT WOULD BE LIABLE.¹⁷  IF IT WAS THE WIND THAT FANNED IT, ALL WOULD BE EXEMPT.

GEMARA. Resh Lakish said in the name of Hezekiah: The Mishnaic ruling¹⁸  holds good only where he handed over a [flickering] coal to [the deaf mute] who fanned it into flame, but if he handed over to him something already in flame he would be liable, the reason being that it was his acts that were the [immediate] cause. R. Johanan, however, said: Even where he handed something already in flame to him, he would still be exempt, the reason being that it was the handling of the deaf mute that caused the damage; he could therefore not be liable unless where he handed over to him tinder,

1. Cf. Ta'an. 22a. [Tosaf. regards the black lacing as the distinguishing mark of mourning, v. also Krauss, Talm. Arch. I, 628.]
2. In such a manner.
3. Why then not pay for actual dates of which the owner was deprived?
4. Why then pay for ripe dates?
5. Including the ground occupied by them.
6. I.e. Eliezer Ze'era.
7. Should the valuation not be made in conjunction with the field where ripe fruits were consumed.
8. Ex. XXII, 4.
9. In the statement of R. Simeon.
10. That the law does not prevail in accordance with R. Meir against R. Judah: cf. 'Er. 46b
11. For by endorsing the deed drawn up for the second purchaser and not that drawn up for the first one, she made it evident that on the one hand she was not out to please her husband by confirming his sale, and on the other that she was finally prepared to forego her claim.
12. Keth. 95a.
13. Supra 47b.
14. Why then should the owner of the field be liable where the corn was stacked with his permission?
15. As it was the custom to pile all the stacks of the villagers in one place and appoint a guardian to look after them.
16. In accordance with the custom of the place.
17. For he being last is mostly to blame.
18. Of exemption from the judgments of Man.