The Gemara suggests a number of kal v’chomer arguments to reach conclusions opposite of what is known to be the case, such as, one should be obligated for shen and regel damages in the public domain as can be derived from keren in the public domain. Each suggestion is rejected based on inferences from the verses in the Torah. Is there a ransom payment only by keren damages or would one also pay a ransom payment if an animal killed a person by trampling them on the property of the one who was killed? From a braita, they derived that Rabbi Tarfon holds that there can be a ransom payment for one who kills by trampling. The Mishna discusses the responsibility of a person for damages. A person is always responsible, even if it was an accident or someone damaged while sleeping. Raba brings a list of cases where an act was done unintentionally and discusses the law for different areas of law – damages, melacha on Shabbat, going to a refuge city for killing unintentionally, and damage to a Caananite slave on account of which a slave may go free.
Bava Kamma 26
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Bava Kamma
Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.
This month’s learning is sponsored by Marci Glazer in loving memory of her teacher and chevruta, Rachel Brodie, Rachel Aviva bat Devora Chana, on her 4th yahrzeit. “She brought her love of Torah to thousands of people in her all-too-short life. A lover of Midrash, she still invited me on this Daf Yomi journey.”
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Bava Kamma
Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.
This month’s learning is sponsored by Marci Glazer in loving memory of her teacher and chevruta, Rachel Brodie, Rachel Aviva bat Devora Chana, on her 4th yahrzeit. “She brought her love of Torah to thousands of people in her all-too-short life. A lover of Midrash, she still invited me on this Daf Yomi journey.”
Bava Kamma 26
מִידֵּי כּוּלֵּיהּ קָאָמְרִינַן?! פַּלְגָא קָאָמְרִינַן!
The Gemara asks: Are we saying that based on the a fortiori inference one should have to pay the full cost of the damage caused in the public domain for Eating and Trampling? That would be false, as the verse indicating one’s liability to pay the full cost of the damage limits the application to damage caused in “the field of another.” We are saying only that he should be liable for half the cost of the damage there, just as with regard to Goring.
אָמַר קְרָא: ״וְחָצוּ אֶת כַּסְפּוֹ״ – כַּסְפּוֹ שֶׁל זֶה, וְלֹא כַּסְפּוֹ שֶׁל אַחֵר.
The Gemara rejects this as well: This is also incorrect, as the verse states with regard to the payment of half the damages: “And divide its monetary value” (Exodus 21:35). The use of the expression “its monetary value,” and not “the monetary value,” emphasizes that it is specifically the price of this ox that caused damage classified as Goring whose money will be divided, i.e., the owner of the ox will be obligated to pay half the cost of the damage, but not the price of another, i.e., not in other cases of damage caused by one’s ox.
וְלֹא תְּהֵא שֵׁן וָרֶגֶל חַיֶּיבֶת בִּרְשׁוּת הַנִּיזָּק אֶלָּא חֲצִי נֶזֶק – מִקַּל וָחוֹמֶר מִקֶּרֶן; וּמָה קֶרֶן, שֶׁבִּרְשׁוּת הָרַבִּים חַיֶּיבֶת – בִּרְשׁוּת הַנִּיזָּק אֵינָהּ מְשַׁלֶּמֶת אֶלָּא חֲצִי נֶזֶק; שֵׁן וָרֶגֶל, שֶׁבִּרְשׁוּת הָרַבִּים פְּטוּרָה – אֵינוֹ דִּין שֶׁבִּרְשׁוּת הַנִּיזָּק מְשַׁלֵּם חֲצִי נֶזֶק?
The Gemara suggests a derivation from a different inference: And let one be held liable to pay only half the cost of the damage caused by Eating and Trampling even if the incident took place on the property of the injured party. This can be inferred via an a fortiori inference drawn from Goring, as follows: And if for damage classified as Goring, which is governed by a stricter halakha, as one is held liable for damage classified as Goring even if it occurs in the public domain, yet one nevertheless pays only half the cost of the damage caused on the property of the injured party, then with regard to damage classified as Eating and Trampling, which are governed by more lenient halakhot, as one is completely exempt from liability for damage caused in the public domain, is it not right that he should have to pay only half the cost of the damage caused on the property of the injured party?
אָמַר קְרָא: ״יְשַׁלֵּם״ – תַּשְׁלוּמִין מְעַלְּיָא.
The Gemara answers: The verse states with regard to Eating and Trampling: “The best of his field and the best of his vineyard he shall pay” (Exodus 22:4). The intent of the verse is to emphasize that the owner of the ox pays a proper, meaning complete, amount of payment, and not half the cost of the damage.
וְלֹא תְּהֵא קֶרֶן בִּרְשׁוּת הָרַבִּים חַיָּיב – מִקַּל וָחוֹמֶר; וּמָה שֵׁן וָרֶגֶל, שֶׁבִּרְשׁוּת הַנִּיזָּק נֶזֶק שָׁלֵם – בִּרְשׁוּת הָרַבִּים פְּטוּרָה; קֶרֶן, שֶׁבִּרְשׁוּת הַנִּיזָּק חֲצִי נֶזֶק – אֵינוֹ דִּין שֶׁבִּרְשׁוּת הָרַבִּים פְּטוּרָה?
The Gemara suggests a derivation from a different inference: And let one not be held liable at all with regard to damage classified as Goring in the public domain. This can be inferred via an a fortiori inference, as follows: And if for damage classified as Eating and Trampling, for which one is liable to pay the full cost of the damage for incidents that took place on the property of the injured party, one is completely exempt for damage caused in the public domain, then with regard to damage classified as Goring, which is governed by a more lenient halakha, as one is held liable for only half the cost of the damage caused on the property of the injured party, is it not right that one should be exempt in the public domain?
אָמַר רַבִּי יוֹחָנָן, אָמַר קְרָא: ״יֶחֱצוּן״ – אֵין חֲצִי נֶזֶק חָלוּק לֹא בִּרְשׁוּת הָרַבִּים וְלֹא בִּרְשׁוּת הַיָּחִיד.
Rabbi Yoḥanan said: The verse states in reference to an innocuous ox: “And the carcass they shall also divide” (Exodus 21:35), to indicate that there is no difference with regard to the payment of half the cost of the damage, whether the damage occurs in a public domain or whether it occurs on private property.
וִיהֵא אָדָם חַיָּיב בְּכוֹפֶר – מִקַּל וָחוֹמֶר; וּמָה שׁוֹר, שֶׁאֵינוֹ חַיָּיב בְּאַרְבָּעָה דְּבָרִים – חַיָּיב בְּכוֹפֶר; אָדָם, שֶׁחַיָּיב בְּאַרְבָּעָה דְּבָרִים – אֵינוֹ דִּין שֶׁיְּהֵא חַיָּיב בְּכוֹפֶר?
The Gemara suggests a derivation from a different inference: And let a person who inadvertently kills another be liable to pay ransom. This can be inferred via an a fortiori inference, as follows: And if the owner of an ox, who is not liable to pay the four types of indemnity, i.e., pain, medical costs, loss of livelihood, and humiliation, if his ox injures a person, is nevertheless liable to pay ransom if it killed someone, then with regard to a person, who is liable to pay the four types of indemnity if he injures another, is it not right that he should be liable to pay ransom if he were to kill him?
אָמַר קְרָא: ״כְּכֹל אֲשֶׁר יוּשַׁת עָלָיו״; ״עָלָיו״ – וְלֹא עַל אָדָם.
The Gemara answers: The verse states with regard to an ox killing a person: “He shall give for the redemption of his life whatever is imposed upon him” (Exodus 21:30). “Upon him”: This means upon the owner of an ox who kills a person, but not upon a person who kills another.
וִיהֵא שׁוֹר חַיָּיב בְּאַרְבָּעָה דְּבָרִים – מִקַּל וְחוֹמֶר; וּמָה אָדָם, שֶׁאֵינוֹ חַיָּיב בְּכוֹפֶר – חַיָּיב בְּאַרְבָּעָה דְּבָרִים; שׁוֹר, שֶׁחַיָּיב בְּכוֹפֶר – אֵינוֹ דִּין שֶׁיְּהֵא חַיָּיב בְּאַרְבָּעָה דְּבָרִים?
The Gemara suggests the reverse derivation: And let the owner of an ox that injured a person be liable to pay the four types of indemnity. This can be inferred via an a fortiori inference, as follows: And if a person, who is not obligated to pay ransom if he kills someone, is nevertheless liable to pay four types of indemnity if he injures another, then with regard to the owner of an ox, who is liable to pay ransom, is it not right that he should also be liable to pay the four types of indemnity?
אָמַר קְרָא: ״אִישׁ בַּעֲמִיתוֹ״ – וְלֹא שׁוֹר בַּעֲמִיתוֹ.
The Gemara answers: The verse states with regard to this matter: “And if a man maims another” (Leviticus 24:19), from which it can be derived that this halakha applies when a man harms another person but not when an ox harms another person.
אִיבַּעְיָא לְהוּ: רֶגֶל שֶׁדָּרְסָה עַל גַּבֵּי תִּינוֹק בַּחֲצַר הַנִּיזָּק, מַהוּ שֶׁתְּשַׁלֵּם כּוֹפֶר? מִי אָמְרִינַן: מִידֵּי דְּהָוֵה אַקֶּרֶן – קֶרֶן, כֵּיוָן דַּעֲבַד תְּרֵי וּתְלָתָא זִמְנֵי – אוֹרְחֵיהּ הוּא, וּמְשַׁלֵּם כּוֹפֶר; הָכָא נָמֵי לָא שְׁנָא;
§ A dilemma was raised before the Sages: With regard to Trampling, in the case of an animal that tramples a child in the courtyard of the injured party and kills the child, what is the halakha with regard to the liability of the owner of the animal to pay ransom? The Gemara explains the different sides of the question: Do we say that this halakha is just as it is with regard to Goring? Accordingly, just as with regard to Goring, once an animal has gored two or three times this becomes defined as its usual manner and therefore it is deemed forewarned and the owner must pay ransom in the event that it kills a person by an act classified as Goring, here too it is not different, as with regard to the category of Trampling the owner is deemed forewarned from the start and he must therefore pay ransom.
אוֹ דִלְמָא, קֶרֶן כַּוּוֹנָתוֹ לְהַזִּיק, הַאי אֵין כַּוּוֹנָתוֹ לְהַזִּיק?
Or perhaps, should we say that the halakha with regard to Goring is more stringent, as Goring requires the animal’s intent to cause damage, and that is why the owner must pay ransom in the event of a death; but in a case of Trampling, where there is no intent to cause damage, the owner would be exempt from paying ransom?
תָּא שְׁמַע: הִכְנִיס שׁוֹרוֹ לַחֲצַר בַּעַל הַבַּיִת שֶׁלֹּא בִּרְשׁוּת, וּנְגָחוֹ לְבַעַל הַבַּיִת וָמֵת; הַשּׁוֹר – בִּסְקִילָה, וּבְעָלָיו – בֵּין תָּם בֵּין מוּעָד, מְשַׁלֵּם כּוֹפֶר שָׁלֵם; דִּבְרֵי רַבִּי טַרְפוֹן.
The Gemara suggests: Come and hear a solution to this dilemma from a baraita: If one brought his ox into the courtyard of a homeowner without his permission, and it gored the homeowner and he died, the ox is killed by stoning and the owner of the ox is obligated to pay the full amount of the ransom, regardless of whether the animal was innocuous or forewarned. This is the statement of Rabbi Tarfon.
כּוֹפֶר שָׁלֵם בְּתָם, לְרַבִּי טַרְפוֹן – מְנָא לֵיהּ? לָאו מִשּׁוּם דְּסָבַר לֵיהּ כְּרַבִּי יוֹסֵי הַגְּלִילִי, דְּאָמַר: תָּם מְשַׁלֵּם חֲצִי כוֹפֶר בִּרְשׁוּת הָרַבִּים – וּמַיְיתֵי לַהּ מִקַּל וָחוֹמֶר מֵרֶגֶל? אַלְמָא אִיכָּא כּוֹפֶר בְּרֶגֶל!
The Gemara proceeds to clarify: From where does Rabbi Tarfon derive that with regard to an innocuous ox the owner must also pay the full amount of the ransom? Is it not because he holds in accordance with the opinion of Rabbi Yosei HaGelili, who says that the owner of an innocuous ox that killed a person pays half the ransom if the incident took place in the public domain? And he derived this ruling via an a fortiori inference from the halakhot of Trampling: And if in a case of Trampling, for which one is exempted entirely from liability when it occurs in the public domain, one must nevertheless pay the full ransom if the incident took place on the property of the injured party, with regard to Goring, for which one must pay half the ransom when it occurs in the public domain, is it not right that one should be obligated to pay full ransom for an incident that took place on the property of the injured party? Evidently, it is clear that there is a ransom payment in the case of Trampling.
אָמַר רַב שִׁימִי מִנְּהַרְדְּעָא: תַּנָּא – מִנְּזָקִין דְּרֶגֶל מַיְיתֵי לַהּ.
Rav Shimi of Neharde’a said: It is possible to explain that the tanna derived his a fortiori inference from damage caused by Trampling: And if in a case of Trampling, for which one is completely exempt from liability when it happens in the public domain, one pays the full cost of the damage done on the property of the injured party, with regard to Goring, for which one must pay half the ransom payment if the ox kills a person in the public domain, is it not right that one would certainly be obligated to pay the full ransom if the person was killed on his own property? According to this reasoning there is no indication that one pays a ransom payment in the case of a child that was killed by Trampling.
וְלִפְרוֹךְ: מָה לִנְזָקִין דְּרֶגֶל – שֶׁכֵּן יֶשְׁנָן בְּאֵשׁ! מִטָּמוּן.
The Gemara asks: But if this is the basis for Rabbi Tarfon’s opinion, let the Gemara refute it in this way: What can be learned about ransom from damage caused by Trampling? These same halakhot apply to Fire; nevertheless, there is no obligation to pay ransom when a person is killed by Fire, as was stated explicitly in a baraita above (10a). Consequently, the attempt to derive an a fortiori inference about ransom from Trampling is obviously flawed. The Gemara answers: The a fortiori inference can be based on the damage to concealed articles caused by Trampling on the property of the injured party. One would be exempt for damage such as this if it were caused by Fire.
מָה לְטָמוּן – שֶׁכֵּן יֶשְׁנוֹ בְּבוֹר! מִכֵּלִים.
The Gemara responds to this challenge with a different one: What is notable about damage to concealed articles caused by Trampling? It is notable in that these same halakhot apply to the category of Pit, but nevertheless there is no ransom paid if a person is killed by a pit. Consequently, an attempt to derive an a fortiori inference about ransom from this halakha is obviously flawed. The Gemara answers: The a fortiori inference can be based on damage caused to vessels by Trampling on the property of the injured party. One would be exempt for damage of this nature if it were caused by a pit.
מָה לְכֵלִים – שֶׁיֶּשְׁנָן בְּאֵשׁ! מִכֵּלִים טְמוּנִים. מָה לְכֵלִים טְמוּנִים – שֶׁיֶּשְׁנָן בְּאָדָם!
The Gemara rejects this as well: What is notable about damage caused to vessels by Trampling? It is notable in that these same halakhot apply to the category of Fire. The Gemara answers: The a fortiori inference can be based on damage caused to concealed vessels by Trampling. In this case, one would be liable for Trampling but exempt from liability for both Fire and Pit, so this can be the basis for the ransom payment, via the a fortiori inference stated by Rav Shimi of Neharde’a. The Gemara rejects this as well: What is notable about damage caused to concealed vessels by Trampling? It is notable in that these same halakhot apply to the category of Man, as a person is liable for damage to these items but does not pay ransom if he inadvertently kills another person.
אֶלָּא לָאו שְׁמַע מִינַּהּ מִכּוֹפֶר דְּרֶגֶל מַיְיתֵי לַהּ? אַלְמָא אִיכָּא כּוֹפֶר בְּרֶגֶל! שְׁמַע מִינַּהּ.
Rather, isn’t it correct to conclude from it that since the halakhot of the ransom payment with regard to Goring cannot be deduced from the halakhot of damages with regard to Trampling, the tanna derived his a fortiori inference based on the halakhot of ransom in a case of Trampling, and therefore it may be concluded that apparently there is ransom in a case of Trampling? The Gemara affirms: Conclude from it that this is so. Consequently, in the case of a child trampled to death by Trampling while on his parents’ property, the owner of the animal must pay ransom.
אֲמַר לֵיהּ רַב אַחָא מִדִּפְתִּי לְרָבִינָא: הָכִי נָמֵי מִסְתַּבְּרָא – דְּאִיכָּא כּוֹפֶר בְּרֶגֶל; דְּאִי סָלְקָא דַעְתָּךְ לֵיכָּא כּוֹפֶר בְּרֶגֶל – וְתַנָּא מִנְּזָקִין דְּרֶגֶל מַיְיתֵי לַהּ, לִפְרוֹךְ: מָה לִנְזָקִין דְּרֶגֶל – שֶׁכֵּן יֶשְׁנָן בְּרֶגֶל!
Rav Aḥa of Difti said to Ravina: So too, it is reasonable to say that there is an obligation to pay ransom in a case of Trampling, as, if it enters your mind to say that there is no obligation to pay ransom in a case of Trampling, and the tanna derived his a fortiori inference from damage caused by Trampling, let the Gemara refute it in this way: What is notable about damage caused by Trampling? It is notable in that these same halakhot apply to Trampling, while there is no obligation to pay ransom in a case of Trampling. In other words, it would be possible to derive the obligation to pay a full ransom where a person was killed by the Goring of an innocuous ox while on the property of the victim only if there is also an obligation to pay ransom where the person was killed by Trampling.
אֶלָּא לָאו שְׁמַע מִינַּהּ מִכּוֹפֶר דְּרֶגֶל מַיְיתֵי לַהּ? אַלְמָא אִיכָּא כּוֹפֶר בְּרֶגֶל! שְׁמַע מִינַּהּ.
Rather, isn’t it correct to conclude from it that an a fortiori inference must be based on the obligation to pay ransom in a case of Trampling, and therefore it may be concluded that evidently, there is an obligation to pay ransom in a case of Trampling? The Gemara affirms: Conclude from it that this is so.
מַתְנִי׳ אָדָם מוּעָד לְעוֹלָם – בֵּין שׁוֹגֵג בֵּין מֵזִיד, בֵּין עֵר בֵּין יָשֵׁן. סִימֵּא אֶת עֵין חֲבֵירוֹ וְשִׁיבֵּר אֶת הַכֵּלִים – מְשַׁלֵּם נֶזֶק שָׁלֵם.
MISHNA: The legal status of a person is always that of one forewarned. Therefore, whether the damage was unintentional or intentional, whether he was awake while he caused the damage or asleep, whether he blinded another’s eye or broke vessels, he must pay the full cost of the damage.
גְּמָ׳ קָתָנֵי ״סִימֵּא אֶת עֵין חֲבֵירוֹ״ דּוּמְיָא דְּ״שִׁיבֵּר אֶת הַכֵּלִים״; מָה הָתָם – נֶזֶק אִין, אַרְבָּעָה דְּבָרִים לָא; אַף סִימֵּא אֶת עֵין חֲבֵירוֹ – נֶזֶק אִין, אַרְבָּעָה דְּבָרִים לָא.
GEMARA: The Gemara infers: It teaches in the mishna: He blinded another’s eye, and presumably this is similar to the other example: Broke vessels. From this it can be inferred that just as there, in the case of the broken vessels, yes, one must pay for the damage he caused but he does not pay the four types of indemnity, so too, in a case where he blinds another, yes, he must pay for the damage he caused, but he does not pay the four types of indemnity, since he caused the injury while asleep or unintentionally.
מְנָא הָנֵי מִילֵּי? אָמַר חִזְקִיָּה, וְכֵן תָּנָא דְּבֵי חִזְקִיָּה, אָמַר קְרָא: ״פֶּצַע תַּחַת פָּצַע״ – לְחַיְּיבוֹ עַל הַשּׁוֹגֵג כְּמֵזִיד, וְעַל הָאוֹנֶס כְּרָצוֹן.
With regard to the halakha that one must pay the full cost of the damage in a case where there was no intent to cause damage, the Gemara asks: From where are these matters derived? Ḥizkiyya says, and similarly, the school of Ḥizkiyya taught: The verse states: “Wound for wound [petza taḥat patza]” (Exodus 21:25). This phrase is superfluous, as the Torah states elsewhere (see Leviticus 24:19) that one is liable to pay compensation when injuring another. This verse serves to render him liable to pay for the unintentional damage just as he pays for the intentional damage; and he pays for damage caused by accident just as he pays for damage caused willingly.
הַאי מִבְּעֵי לֵיהּ לִיתֵּן צַעַר בִּמְקוֹם נֶזֶק! אִם כֵּן, לִכְתּוֹב קְרָא: ״פֶּצַע בְּפָצַע״; מַאי ״תַּחַת פָּצַע״ – שְׁמַע מִינַּהּ תַּרְתֵּי.
The Gemara asks: But this verse is necessary in order to indicate that one must pay compensation for pain, even in a case where he pays compensation for damage caused by the injury. Consequently, it seems that that verse cannot also be the source of the principle derived by the school of Ḥizkiyya. The Gemara answers: If it is so that the superfluous phrase is intended to teach only that, then let the verse write: Petza befatza, which carries the same meaning. What, then, is meant by the superfluous word taḥat in the phrase “petza taḥat patza”? It indicates that we must derive two conclusions from it: That one is liable to pay for pain even in a case where he pays compensation for damage, and that he is liable for unintentional damage as he is for intentional damage, and for damage caused by accident as for damage caused willingly.
אָמַר רַבָּה: הָיְתָה אֶבֶן מוּנַּחַת לוֹ בְּחֵיקוֹ וְלֹא הִכִּיר בָּהּ, וְעָמַד וְנָפְלָה; לְעִנְיַן נְזָקִין – חַיָּיב, לְעִנְיַן אַרְבָּעָה דְּבָרִים – פָּטוּר, לְעִנְיַן שַׁבָּת – מְלֶאכֶת מַחְשֶׁבֶת אָסְרָה תּוֹרָה, לְעִנְיַן גָּלוּת – פָּטוּר,
§ Rabba says: If there was a stone lying in one’s lap and he was unaware of it, and he arose and it fell and caused damage, with regard to damages he is liable to pay the full cost of the damage caused by the stone. With regard to the four types of indemnity, he is exempt. With regard to Shabbat, if the falling stone caused him to violate one of the prohibited categories of labor; for example, if the stone fell from a private domain to the public domain, he is exempt. The reason is that the Torah prohibited only planned, constructive labor on Shabbat, and he did not plan to perform this labor. With regard to exile, the punishment prescribed for one who unintentionally but negligently kills another, were this stone to kill someone he is exempt, as the incident is deemed accidental.
לְעִנְיַן עֶבֶד – פְּלוּגְתָּא דְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְרַבָּנַן. דְּתַנְיָא: הֲרֵי שֶׁהָיָה רַבּוֹ רוֹפֵא, וְאָמַר לוֹ: ״כְּחוֹל עֵינִי״, וְסִימְּאָהּ; ״חֲתוֹר לִי שִׁינִּי״, וְהִפִּילָהּ – שִׂיחֵק בָּאָדוֹן, וְיָצָא לְחֵרוּת.
With regard to a Canaanite slave whose tooth was destroyed or eye was blinded by the stone, potentially enabling the slave to earn his freedom (see Exodus 21:26–27), this is the subject of a dispute between Rabban Shimon ben Gamliel and the Rabbis, as it is taught in a baraita (Tosefta 9:25): If the master was a doctor and the slave said to him: Paint the lid of my eye in order to heal it, and the master blinded it during the procedure, or if the slave requested from his master: Scrape my tooth in order to heal it, and the master knocked out the tooth while scraping it, the slave has mocked the master, as he is emancipated due to the act of the master himself.
רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: ״וְשִׁחֲתָהּ״ – עַד שֶׁיִּתְכַּוֵּין לְשַׁחֲתָהּ.
By contrast, Rabban Shimon ben Gamliel says: The slave is not emancipated in these cases because the verse states: “And destroy it” (Exodus 21:26), from which it is derived that the slave is emancipated only in a case where the master intends to destroy the eye or the tooth, but not if he intended to heal the slave. So too, in the case where a stone fell and accidentally blinded a slave’s eye or knocked out his tooth, according to the Rabbis the slave would be emancipated and according to Rabban Shimon ben Gamliel he would not. All of the above cases relate to situations where the individual did not know the stone was in his lap.
הִכִּיר בָּהּ וּשְׁכֵחָהּ, וְעָמַד וְנָפְלָה; לְעִנְיַן נְזָקִין – חַיָּיב. לְעִנְיַן אַרְבָּעָה דְּבָרִים – פָּטוּר. לְעִנְיַן גָּלוּת – חַיָּיב, דְּאָמַר קְרָא: ״בִּשְׁגָגָה״ – מִכְּלָל דַּהֲוָה לֵיהּ יְדִיעָה, וְהָא הַוְיָא לֵיהּ יְדִיעָה. לְעִנְיַן שַׁבָּת – פָּטוּר. לְעִנְיַן עֶבֶד – פְּלוּגְתָּא דְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְרַבָּנַן.
If he was initially aware of it but forgot about it and he arose and it fell, with regard to damages he is certainly liable, being that he is liable even if he was unaware of the stone. With regard to the four types of indemnity, here too he is exempt, as he did not intend to cause injury. With regard to exile he is liable, as the verse states: “One who unwittingly strikes a person mortally” (Numbers 35:11), indicating by inference that the assailant had some previous awareness, and in this case he was in fact previously aware of the stone in his lap. The term “unwittingly” is employed to describe someone who possessed knowledge of the potential transgression then forgot about it. With regard to Shabbat he is exempt, as this was not a planned, constructive labor. With regard to a slave, the same dispute between Rabban Shimon ben Gamliel and the Rabbis applies.
נִתְכַּוֵּין לִזְרוֹק שְׁתַּיִם, וְזָרַק אַרְבַּע; לְעִנְיַן נְזָקִין – חַיָּיב. לְעִנְיַן אַרְבָּעָה דְּבָרִים – פָּטוּר. לְעִנְיַן שַׁבָּת – מְלֶאכֶת מַחְשֶׁבֶת בָּעֵינַן. לְעִנְיַן גָּלוּת – ״אֲשֶׁר לֹא צָדָה״ אָמַר רַחֲמָנָא, פְּרָט לְנִתְכַּוֵּין לִזְרוֹק שְׁתַּיִם וְזָרַק אַרְבַּע. לְעִנְיַן עֶבֶד – פְּלוּגְתָּא דְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְרַבָּנַן.
In a case where he intended to throw the stone, and he intended to throw it for a distance of only two cubits but instead he threw it a distance of four cubits, as it went farther than he wanted it to go, with regard to damages he is liable. With regard to the four types of indemnity he is exempt. With regard to Shabbat he is exempt, as we require planned, constructive labor as a condition for liability. With regard to exile he is liable, as the Merciful One states in the Torah: “If a man lie not in wait” (Exodus 21:13), which serves to exclude from the death penalty a situation where one intended to throw the stone for two cubits but he actually threw it for four cubits, as he did not intend to kill, so he is exiled. With regard to a slave, the same dispute between Rabban Shimon ben Gamliel and the Rabbis applies.
נִתְכַּוֵּין לִזְרוֹק אַרְבַּע, וְזָרַק שְׁמֹנֶה; לְעִנְיַן נְזָקִין – חַיָּיב. לְעִנְיַן אַרְבָּעָה דְּבָרִים – פָּטוּר. לְעִנְיַן שַׁבָּת – בְּאוֹמֵר ״כׇּל מָקוֹם שֶׁתִּרְצֶה תָּנוּחַ״, אִין; אִי לָא, לָא. לְעִנְיַן גָּלוּת – ״אֲשֶׁר לֹא צָדָה״, פְּרָט לְנִתְכַּוֵּין לִזְרוֹק אַרְבַּע וְזָרַק שְׁמֹנֶה. לְעִנְיַן עֶבֶד – פְּלוּגְתָּא דְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְרַבָּנַן.
And if he intended to throw the stone four cubits but instead he threw it eight cubits, with regard to damages he is liable. With regard to the four types of indemnity he is exempt. With regard to Shabbat, if he said to himself when he threw the stone that he would be satisfied wherever it may land, then yes, he is liable, as he intended to throw it a distance of four cubits, which is the minimum necessary to violate the prohibited labor of carrying in the public domain. If he did not throw the stone aimlessly but rather had selected a target that was four cubits away, then he is not liable as he did not perform the precise planned, constructive labor that he had intended. With regard to exile, the Torah states: “If a man lie not in wait” (Exodus 21:13), which serves to exclude from the death penalty a situation where one intended to throw it four cubits but he actually threw it eight cubits, as he did not intend to kill, so he is exiled. With regard to a slave, the same dispute between Rabban Shimon ben Gamliel and the Rabbis applies.
וְאָמַר רַבָּה: זָרַק כְּלִי מֵרֹאשׁ הַגָּג, וּבָא אַחֵר וּשְׁבָרוֹ בְּמַקֵּל – פָּטוּר. מַאי טַעְמָא? מָנָא תְּבִירָא תָּבַר.
§ Since the Gemara cited Rabba’s comments about various actions for which the perpetrator is liable with regard to certain matters but exempt with regard to others, the Gemara cites similar rulings: And Rabba says: If one threw a vessel, such as an earthenware jug, from a roof and another came along and broke it with a stick during its descent, the latter is exempt from liability. What is the reason? It is because he broke a broken vessel, meaning that once the vessel was thrown from the roof it was clear that it would be broken upon landing, and therefore it is considered as if it were already broken and the one who broke it while it was still in the air is not liable.
וְאָמַר רַבָּה: זָרַק כְּלִי מֵרֹאשׁ הַגָּג, וְהָיוּ תַּחְתָּיו כָּרִים אוֹ כְסָתוֹת; בָּא אַחֵר וְסִלְּקָן, אוֹ קָדַם [הוּא] וְסִלְּקָן – פָּטוּר. מַאי טַעְמָא? בְּעִידָּנָא דְּשַׁדְיֵיהּ – פַּסּוֹקֵי מְפַסְּקִי גִּירֵיהּ.
And Rabba says: If one threw a vessel from a roof and there were cushions or blankets below so that if the vessel would land on them it would not break, and then another came and removed the cushions or blankets, or if the individual who threw the vessel went quickly before it landed and removed the cushions or blankets himself, and as a result the vessel shattered, the one who threw the vessel is exempt from liability even though the vessel broke as a consequence of his actions. What is the reason? At the time that he threw the vessel, his arrows were stopped, i.e., what he did at the time he threw the vessel, which is an act comparable to the shooting of an arrow, did not have the capacity to break the vessel. Therefore, he is not viewed as having broken the vessel, and is exempt.
וְאָמַר רַבָּה: זָרַק תִּינוֹק מֵרֹאשׁ הַגָּג, וּבָא אַחֵר וְקִבְּלוֹ בְּסַיִיף – פְּלוּגְתָּא דְּרַבִּי יְהוּדָה בֶּן בְּתֵירָא וְרַבָּנַן. דְּתַנְיָא: הִכּוּהוּ עֲשָׂרָה בְּנֵי אָדָם בַּעֲשָׂרָה מַקְלוֹת – בֵּין בְּבַת אַחַת בֵּין בָּזֶה אַחַר זֶה, כּוּלָּן
And Rabba says: If one threw a child from a roof and another came along and impaled him on his sword and the child died, the question of who is liable to receive the death penalty for killing the child is dependent upon the dispute between Rabbi Yehuda ben Beteira and the Rabbis. As it is taught in a baraita: If ten people beat a victim with ten sticks, whether they did so simultaneously or sequentially, they are all
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Bava Kamma 26
מִידֵּי כּוּלֵּיהּ קָאָמְרִינַן?! פַּלְגָא קָאָמְרִינַן!
The Gemara asks: Are we saying that based on the a fortiori inference one should have to pay the full cost of the damage caused in the public domain for Eating and Trampling? That would be false, as the verse indicating one’s liability to pay the full cost of the damage limits the application to damage caused in “the field of another.” We are saying only that he should be liable for half the cost of the damage there, just as with regard to Goring.
אָמַר קְרָא: ״וְחָצוּ אֶת כַּסְפּוֹ״ – כַּסְפּוֹ שֶׁל זֶה, וְלֹא כַּסְפּוֹ שֶׁל אַחֵר.
The Gemara rejects this as well: This is also incorrect, as the verse states with regard to the payment of half the damages: “And divide its monetary value” (Exodus 21:35). The use of the expression “its monetary value,” and not “the monetary value,” emphasizes that it is specifically the price of this ox that caused damage classified as Goring whose money will be divided, i.e., the owner of the ox will be obligated to pay half the cost of the damage, but not the price of another, i.e., not in other cases of damage caused by one’s ox.
וְלֹא תְּהֵא שֵׁן וָרֶגֶל חַיֶּיבֶת בִּרְשׁוּת הַנִּיזָּק אֶלָּא חֲצִי נֶזֶק – מִקַּל וָחוֹמֶר מִקֶּרֶן; וּמָה קֶרֶן, שֶׁבִּרְשׁוּת הָרַבִּים חַיֶּיבֶת – בִּרְשׁוּת הַנִּיזָּק אֵינָהּ מְשַׁלֶּמֶת אֶלָּא חֲצִי נֶזֶק; שֵׁן וָרֶגֶל, שֶׁבִּרְשׁוּת הָרַבִּים פְּטוּרָה – אֵינוֹ דִּין שֶׁבִּרְשׁוּת הַנִּיזָּק מְשַׁלֵּם חֲצִי נֶזֶק?
The Gemara suggests a derivation from a different inference: And let one be held liable to pay only half the cost of the damage caused by Eating and Trampling even if the incident took place on the property of the injured party. This can be inferred via an a fortiori inference drawn from Goring, as follows: And if for damage classified as Goring, which is governed by a stricter halakha, as one is held liable for damage classified as Goring even if it occurs in the public domain, yet one nevertheless pays only half the cost of the damage caused on the property of the injured party, then with regard to damage classified as Eating and Trampling, which are governed by more lenient halakhot, as one is completely exempt from liability for damage caused in the public domain, is it not right that he should have to pay only half the cost of the damage caused on the property of the injured party?
אָמַר קְרָא: ״יְשַׁלֵּם״ – תַּשְׁלוּמִין מְעַלְּיָא.
The Gemara answers: The verse states with regard to Eating and Trampling: “The best of his field and the best of his vineyard he shall pay” (Exodus 22:4). The intent of the verse is to emphasize that the owner of the ox pays a proper, meaning complete, amount of payment, and not half the cost of the damage.
וְלֹא תְּהֵא קֶרֶן בִּרְשׁוּת הָרַבִּים חַיָּיב – מִקַּל וָחוֹמֶר; וּמָה שֵׁן וָרֶגֶל, שֶׁבִּרְשׁוּת הַנִּיזָּק נֶזֶק שָׁלֵם – בִּרְשׁוּת הָרַבִּים פְּטוּרָה; קֶרֶן, שֶׁבִּרְשׁוּת הַנִּיזָּק חֲצִי נֶזֶק – אֵינוֹ דִּין שֶׁבִּרְשׁוּת הָרַבִּים פְּטוּרָה?
The Gemara suggests a derivation from a different inference: And let one not be held liable at all with regard to damage classified as Goring in the public domain. This can be inferred via an a fortiori inference, as follows: And if for damage classified as Eating and Trampling, for which one is liable to pay the full cost of the damage for incidents that took place on the property of the injured party, one is completely exempt for damage caused in the public domain, then with regard to damage classified as Goring, which is governed by a more lenient halakha, as one is held liable for only half the cost of the damage caused on the property of the injured party, is it not right that one should be exempt in the public domain?
אָמַר רַבִּי יוֹחָנָן, אָמַר קְרָא: ״יֶחֱצוּן״ – אֵין חֲצִי נֶזֶק חָלוּק לֹא בִּרְשׁוּת הָרַבִּים וְלֹא בִּרְשׁוּת הַיָּחִיד.
Rabbi Yoḥanan said: The verse states in reference to an innocuous ox: “And the carcass they shall also divide” (Exodus 21:35), to indicate that there is no difference with regard to the payment of half the cost of the damage, whether the damage occurs in a public domain or whether it occurs on private property.
וִיהֵא אָדָם חַיָּיב בְּכוֹפֶר – מִקַּל וָחוֹמֶר; וּמָה שׁוֹר, שֶׁאֵינוֹ חַיָּיב בְּאַרְבָּעָה דְּבָרִים – חַיָּיב בְּכוֹפֶר; אָדָם, שֶׁחַיָּיב בְּאַרְבָּעָה דְּבָרִים – אֵינוֹ דִּין שֶׁיְּהֵא חַיָּיב בְּכוֹפֶר?
The Gemara suggests a derivation from a different inference: And let a person who inadvertently kills another be liable to pay ransom. This can be inferred via an a fortiori inference, as follows: And if the owner of an ox, who is not liable to pay the four types of indemnity, i.e., pain, medical costs, loss of livelihood, and humiliation, if his ox injures a person, is nevertheless liable to pay ransom if it killed someone, then with regard to a person, who is liable to pay the four types of indemnity if he injures another, is it not right that he should be liable to pay ransom if he were to kill him?
אָמַר קְרָא: ״כְּכֹל אֲשֶׁר יוּשַׁת עָלָיו״; ״עָלָיו״ – וְלֹא עַל אָדָם.
The Gemara answers: The verse states with regard to an ox killing a person: “He shall give for the redemption of his life whatever is imposed upon him” (Exodus 21:30). “Upon him”: This means upon the owner of an ox who kills a person, but not upon a person who kills another.
וִיהֵא שׁוֹר חַיָּיב בְּאַרְבָּעָה דְּבָרִים – מִקַּל וְחוֹמֶר; וּמָה אָדָם, שֶׁאֵינוֹ חַיָּיב בְּכוֹפֶר – חַיָּיב בְּאַרְבָּעָה דְּבָרִים; שׁוֹר, שֶׁחַיָּיב בְּכוֹפֶר – אֵינוֹ דִּין שֶׁיְּהֵא חַיָּיב בְּאַרְבָּעָה דְּבָרִים?
The Gemara suggests the reverse derivation: And let the owner of an ox that injured a person be liable to pay the four types of indemnity. This can be inferred via an a fortiori inference, as follows: And if a person, who is not obligated to pay ransom if he kills someone, is nevertheless liable to pay four types of indemnity if he injures another, then with regard to the owner of an ox, who is liable to pay ransom, is it not right that he should also be liable to pay the four types of indemnity?
אָמַר קְרָא: ״אִישׁ בַּעֲמִיתוֹ״ – וְלֹא שׁוֹר בַּעֲמִיתוֹ.
The Gemara answers: The verse states with regard to this matter: “And if a man maims another” (Leviticus 24:19), from which it can be derived that this halakha applies when a man harms another person but not when an ox harms another person.
אִיבַּעְיָא לְהוּ: רֶגֶל שֶׁדָּרְסָה עַל גַּבֵּי תִּינוֹק בַּחֲצַר הַנִּיזָּק, מַהוּ שֶׁתְּשַׁלֵּם כּוֹפֶר? מִי אָמְרִינַן: מִידֵּי דְּהָוֵה אַקֶּרֶן – קֶרֶן, כֵּיוָן דַּעֲבַד תְּרֵי וּתְלָתָא זִמְנֵי – אוֹרְחֵיהּ הוּא, וּמְשַׁלֵּם כּוֹפֶר; הָכָא נָמֵי לָא שְׁנָא;
§ A dilemma was raised before the Sages: With regard to Trampling, in the case of an animal that tramples a child in the courtyard of the injured party and kills the child, what is the halakha with regard to the liability of the owner of the animal to pay ransom? The Gemara explains the different sides of the question: Do we say that this halakha is just as it is with regard to Goring? Accordingly, just as with regard to Goring, once an animal has gored two or three times this becomes defined as its usual manner and therefore it is deemed forewarned and the owner must pay ransom in the event that it kills a person by an act classified as Goring, here too it is not different, as with regard to the category of Trampling the owner is deemed forewarned from the start and he must therefore pay ransom.
אוֹ דִלְמָא, קֶרֶן כַּוּוֹנָתוֹ לְהַזִּיק, הַאי אֵין כַּוּוֹנָתוֹ לְהַזִּיק?
Or perhaps, should we say that the halakha with regard to Goring is more stringent, as Goring requires the animal’s intent to cause damage, and that is why the owner must pay ransom in the event of a death; but in a case of Trampling, where there is no intent to cause damage, the owner would be exempt from paying ransom?
תָּא שְׁמַע: הִכְנִיס שׁוֹרוֹ לַחֲצַר בַּעַל הַבַּיִת שֶׁלֹּא בִּרְשׁוּת, וּנְגָחוֹ לְבַעַל הַבַּיִת וָמֵת; הַשּׁוֹר – בִּסְקִילָה, וּבְעָלָיו – בֵּין תָּם בֵּין מוּעָד, מְשַׁלֵּם כּוֹפֶר שָׁלֵם; דִּבְרֵי רַבִּי טַרְפוֹן.
The Gemara suggests: Come and hear a solution to this dilemma from a baraita: If one brought his ox into the courtyard of a homeowner without his permission, and it gored the homeowner and he died, the ox is killed by stoning and the owner of the ox is obligated to pay the full amount of the ransom, regardless of whether the animal was innocuous or forewarned. This is the statement of Rabbi Tarfon.
כּוֹפֶר שָׁלֵם בְּתָם, לְרַבִּי טַרְפוֹן – מְנָא לֵיהּ? לָאו מִשּׁוּם דְּסָבַר לֵיהּ כְּרַבִּי יוֹסֵי הַגְּלִילִי, דְּאָמַר: תָּם מְשַׁלֵּם חֲצִי כוֹפֶר בִּרְשׁוּת הָרַבִּים – וּמַיְיתֵי לַהּ מִקַּל וָחוֹמֶר מֵרֶגֶל? אַלְמָא אִיכָּא כּוֹפֶר בְּרֶגֶל!
The Gemara proceeds to clarify: From where does Rabbi Tarfon derive that with regard to an innocuous ox the owner must also pay the full amount of the ransom? Is it not because he holds in accordance with the opinion of Rabbi Yosei HaGelili, who says that the owner of an innocuous ox that killed a person pays half the ransom if the incident took place in the public domain? And he derived this ruling via an a fortiori inference from the halakhot of Trampling: And if in a case of Trampling, for which one is exempted entirely from liability when it occurs in the public domain, one must nevertheless pay the full ransom if the incident took place on the property of the injured party, with regard to Goring, for which one must pay half the ransom when it occurs in the public domain, is it not right that one should be obligated to pay full ransom for an incident that took place on the property of the injured party? Evidently, it is clear that there is a ransom payment in the case of Trampling.
אָמַר רַב שִׁימִי מִנְּהַרְדְּעָא: תַּנָּא – מִנְּזָקִין דְּרֶגֶל מַיְיתֵי לַהּ.
Rav Shimi of Neharde’a said: It is possible to explain that the tanna derived his a fortiori inference from damage caused by Trampling: And if in a case of Trampling, for which one is completely exempt from liability when it happens in the public domain, one pays the full cost of the damage done on the property of the injured party, with regard to Goring, for which one must pay half the ransom payment if the ox kills a person in the public domain, is it not right that one would certainly be obligated to pay the full ransom if the person was killed on his own property? According to this reasoning there is no indication that one pays a ransom payment in the case of a child that was killed by Trampling.
וְלִפְרוֹךְ: מָה לִנְזָקִין דְּרֶגֶל – שֶׁכֵּן יֶשְׁנָן בְּאֵשׁ! מִטָּמוּן.
The Gemara asks: But if this is the basis for Rabbi Tarfon’s opinion, let the Gemara refute it in this way: What can be learned about ransom from damage caused by Trampling? These same halakhot apply to Fire; nevertheless, there is no obligation to pay ransom when a person is killed by Fire, as was stated explicitly in a baraita above (10a). Consequently, the attempt to derive an a fortiori inference about ransom from Trampling is obviously flawed. The Gemara answers: The a fortiori inference can be based on the damage to concealed articles caused by Trampling on the property of the injured party. One would be exempt for damage such as this if it were caused by Fire.
מָה לְטָמוּן – שֶׁכֵּן יֶשְׁנוֹ בְּבוֹר! מִכֵּלִים.
The Gemara responds to this challenge with a different one: What is notable about damage to concealed articles caused by Trampling? It is notable in that these same halakhot apply to the category of Pit, but nevertheless there is no ransom paid if a person is killed by a pit. Consequently, an attempt to derive an a fortiori inference about ransom from this halakha is obviously flawed. The Gemara answers: The a fortiori inference can be based on damage caused to vessels by Trampling on the property of the injured party. One would be exempt for damage of this nature if it were caused by a pit.
מָה לְכֵלִים – שֶׁיֶּשְׁנָן בְּאֵשׁ! מִכֵּלִים טְמוּנִים. מָה לְכֵלִים טְמוּנִים – שֶׁיֶּשְׁנָן בְּאָדָם!
The Gemara rejects this as well: What is notable about damage caused to vessels by Trampling? It is notable in that these same halakhot apply to the category of Fire. The Gemara answers: The a fortiori inference can be based on damage caused to concealed vessels by Trampling. In this case, one would be liable for Trampling but exempt from liability for both Fire and Pit, so this can be the basis for the ransom payment, via the a fortiori inference stated by Rav Shimi of Neharde’a. The Gemara rejects this as well: What is notable about damage caused to concealed vessels by Trampling? It is notable in that these same halakhot apply to the category of Man, as a person is liable for damage to these items but does not pay ransom if he inadvertently kills another person.
אֶלָּא לָאו שְׁמַע מִינַּהּ מִכּוֹפֶר דְּרֶגֶל מַיְיתֵי לַהּ? אַלְמָא אִיכָּא כּוֹפֶר בְּרֶגֶל! שְׁמַע מִינַּהּ.
Rather, isn’t it correct to conclude from it that since the halakhot of the ransom payment with regard to Goring cannot be deduced from the halakhot of damages with regard to Trampling, the tanna derived his a fortiori inference based on the halakhot of ransom in a case of Trampling, and therefore it may be concluded that apparently there is ransom in a case of Trampling? The Gemara affirms: Conclude from it that this is so. Consequently, in the case of a child trampled to death by Trampling while on his parents’ property, the owner of the animal must pay ransom.
אֲמַר לֵיהּ רַב אַחָא מִדִּפְתִּי לְרָבִינָא: הָכִי נָמֵי מִסְתַּבְּרָא – דְּאִיכָּא כּוֹפֶר בְּרֶגֶל; דְּאִי סָלְקָא דַעְתָּךְ לֵיכָּא כּוֹפֶר בְּרֶגֶל – וְתַנָּא מִנְּזָקִין דְּרֶגֶל מַיְיתֵי לַהּ, לִפְרוֹךְ: מָה לִנְזָקִין דְּרֶגֶל – שֶׁכֵּן יֶשְׁנָן בְּרֶגֶל!
Rav Aḥa of Difti said to Ravina: So too, it is reasonable to say that there is an obligation to pay ransom in a case of Trampling, as, if it enters your mind to say that there is no obligation to pay ransom in a case of Trampling, and the tanna derived his a fortiori inference from damage caused by Trampling, let the Gemara refute it in this way: What is notable about damage caused by Trampling? It is notable in that these same halakhot apply to Trampling, while there is no obligation to pay ransom in a case of Trampling. In other words, it would be possible to derive the obligation to pay a full ransom where a person was killed by the Goring of an innocuous ox while on the property of the victim only if there is also an obligation to pay ransom where the person was killed by Trampling.
אֶלָּא לָאו שְׁמַע מִינַּהּ מִכּוֹפֶר דְּרֶגֶל מַיְיתֵי לַהּ? אַלְמָא אִיכָּא כּוֹפֶר בְּרֶגֶל! שְׁמַע מִינַּהּ.
Rather, isn’t it correct to conclude from it that an a fortiori inference must be based on the obligation to pay ransom in a case of Trampling, and therefore it may be concluded that evidently, there is an obligation to pay ransom in a case of Trampling? The Gemara affirms: Conclude from it that this is so.
מַתְנִי׳ אָדָם מוּעָד לְעוֹלָם – בֵּין שׁוֹגֵג בֵּין מֵזִיד, בֵּין עֵר בֵּין יָשֵׁן. סִימֵּא אֶת עֵין חֲבֵירוֹ וְשִׁיבֵּר אֶת הַכֵּלִים – מְשַׁלֵּם נֶזֶק שָׁלֵם.
MISHNA: The legal status of a person is always that of one forewarned. Therefore, whether the damage was unintentional or intentional, whether he was awake while he caused the damage or asleep, whether he blinded another’s eye or broke vessels, he must pay the full cost of the damage.
גְּמָ׳ קָתָנֵי ״סִימֵּא אֶת עֵין חֲבֵירוֹ״ דּוּמְיָא דְּ״שִׁיבֵּר אֶת הַכֵּלִים״; מָה הָתָם – נֶזֶק אִין, אַרְבָּעָה דְּבָרִים לָא; אַף סִימֵּא אֶת עֵין חֲבֵירוֹ – נֶזֶק אִין, אַרְבָּעָה דְּבָרִים לָא.
GEMARA: The Gemara infers: It teaches in the mishna: He blinded another’s eye, and presumably this is similar to the other example: Broke vessels. From this it can be inferred that just as there, in the case of the broken vessels, yes, one must pay for the damage he caused but he does not pay the four types of indemnity, so too, in a case where he blinds another, yes, he must pay for the damage he caused, but he does not pay the four types of indemnity, since he caused the injury while asleep or unintentionally.
מְנָא הָנֵי מִילֵּי? אָמַר חִזְקִיָּה, וְכֵן תָּנָא דְּבֵי חִזְקִיָּה, אָמַר קְרָא: ״פֶּצַע תַּחַת פָּצַע״ – לְחַיְּיבוֹ עַל הַשּׁוֹגֵג כְּמֵזִיד, וְעַל הָאוֹנֶס כְּרָצוֹן.
With regard to the halakha that one must pay the full cost of the damage in a case where there was no intent to cause damage, the Gemara asks: From where are these matters derived? Ḥizkiyya says, and similarly, the school of Ḥizkiyya taught: The verse states: “Wound for wound [petza taḥat patza]” (Exodus 21:25). This phrase is superfluous, as the Torah states elsewhere (see Leviticus 24:19) that one is liable to pay compensation when injuring another. This verse serves to render him liable to pay for the unintentional damage just as he pays for the intentional damage; and he pays for damage caused by accident just as he pays for damage caused willingly.
הַאי מִבְּעֵי לֵיהּ לִיתֵּן צַעַר בִּמְקוֹם נֶזֶק! אִם כֵּן, לִכְתּוֹב קְרָא: ״פֶּצַע בְּפָצַע״; מַאי ״תַּחַת פָּצַע״ – שְׁמַע מִינַּהּ תַּרְתֵּי.
The Gemara asks: But this verse is necessary in order to indicate that one must pay compensation for pain, even in a case where he pays compensation for damage caused by the injury. Consequently, it seems that that verse cannot also be the source of the principle derived by the school of Ḥizkiyya. The Gemara answers: If it is so that the superfluous phrase is intended to teach only that, then let the verse write: Petza befatza, which carries the same meaning. What, then, is meant by the superfluous word taḥat in the phrase “petza taḥat patza”? It indicates that we must derive two conclusions from it: That one is liable to pay for pain even in a case where he pays compensation for damage, and that he is liable for unintentional damage as he is for intentional damage, and for damage caused by accident as for damage caused willingly.
אָמַר רַבָּה: הָיְתָה אֶבֶן מוּנַּחַת לוֹ בְּחֵיקוֹ וְלֹא הִכִּיר בָּהּ, וְעָמַד וְנָפְלָה; לְעִנְיַן נְזָקִין – חַיָּיב, לְעִנְיַן אַרְבָּעָה דְּבָרִים – פָּטוּר, לְעִנְיַן שַׁבָּת – מְלֶאכֶת מַחְשֶׁבֶת אָסְרָה תּוֹרָה, לְעִנְיַן גָּלוּת – פָּטוּר,
§ Rabba says: If there was a stone lying in one’s lap and he was unaware of it, and he arose and it fell and caused damage, with regard to damages he is liable to pay the full cost of the damage caused by the stone. With regard to the four types of indemnity, he is exempt. With regard to Shabbat, if the falling stone caused him to violate one of the prohibited categories of labor; for example, if the stone fell from a private domain to the public domain, he is exempt. The reason is that the Torah prohibited only planned, constructive labor on Shabbat, and he did not plan to perform this labor. With regard to exile, the punishment prescribed for one who unintentionally but negligently kills another, were this stone to kill someone he is exempt, as the incident is deemed accidental.
לְעִנְיַן עֶבֶד – פְּלוּגְתָּא דְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְרַבָּנַן. דְּתַנְיָא: הֲרֵי שֶׁהָיָה רַבּוֹ רוֹפֵא, וְאָמַר לוֹ: ״כְּחוֹל עֵינִי״, וְסִימְּאָהּ; ״חֲתוֹר לִי שִׁינִּי״, וְהִפִּילָהּ – שִׂיחֵק בָּאָדוֹן, וְיָצָא לְחֵרוּת.
With regard to a Canaanite slave whose tooth was destroyed or eye was blinded by the stone, potentially enabling the slave to earn his freedom (see Exodus 21:26–27), this is the subject of a dispute between Rabban Shimon ben Gamliel and the Rabbis, as it is taught in a baraita (Tosefta 9:25): If the master was a doctor and the slave said to him: Paint the lid of my eye in order to heal it, and the master blinded it during the procedure, or if the slave requested from his master: Scrape my tooth in order to heal it, and the master knocked out the tooth while scraping it, the slave has mocked the master, as he is emancipated due to the act of the master himself.
רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: ״וְשִׁחֲתָהּ״ – עַד שֶׁיִּתְכַּוֵּין לְשַׁחֲתָהּ.
By contrast, Rabban Shimon ben Gamliel says: The slave is not emancipated in these cases because the verse states: “And destroy it” (Exodus 21:26), from which it is derived that the slave is emancipated only in a case where the master intends to destroy the eye or the tooth, but not if he intended to heal the slave. So too, in the case where a stone fell and accidentally blinded a slave’s eye or knocked out his tooth, according to the Rabbis the slave would be emancipated and according to Rabban Shimon ben Gamliel he would not. All of the above cases relate to situations where the individual did not know the stone was in his lap.
הִכִּיר בָּהּ וּשְׁכֵחָהּ, וְעָמַד וְנָפְלָה; לְעִנְיַן נְזָקִין – חַיָּיב. לְעִנְיַן אַרְבָּעָה דְּבָרִים – פָּטוּר. לְעִנְיַן גָּלוּת – חַיָּיב, דְּאָמַר קְרָא: ״בִּשְׁגָגָה״ – מִכְּלָל דַּהֲוָה לֵיהּ יְדִיעָה, וְהָא הַוְיָא לֵיהּ יְדִיעָה. לְעִנְיַן שַׁבָּת – פָּטוּר. לְעִנְיַן עֶבֶד – פְּלוּגְתָּא דְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְרַבָּנַן.
If he was initially aware of it but forgot about it and he arose and it fell, with regard to damages he is certainly liable, being that he is liable even if he was unaware of the stone. With regard to the four types of indemnity, here too he is exempt, as he did not intend to cause injury. With regard to exile he is liable, as the verse states: “One who unwittingly strikes a person mortally” (Numbers 35:11), indicating by inference that the assailant had some previous awareness, and in this case he was in fact previously aware of the stone in his lap. The term “unwittingly” is employed to describe someone who possessed knowledge of the potential transgression then forgot about it. With regard to Shabbat he is exempt, as this was not a planned, constructive labor. With regard to a slave, the same dispute between Rabban Shimon ben Gamliel and the Rabbis applies.
נִתְכַּוֵּין לִזְרוֹק שְׁתַּיִם, וְזָרַק אַרְבַּע; לְעִנְיַן נְזָקִין – חַיָּיב. לְעִנְיַן אַרְבָּעָה דְּבָרִים – פָּטוּר. לְעִנְיַן שַׁבָּת – מְלֶאכֶת מַחְשֶׁבֶת בָּעֵינַן. לְעִנְיַן גָּלוּת – ״אֲשֶׁר לֹא צָדָה״ אָמַר רַחֲמָנָא, פְּרָט לְנִתְכַּוֵּין לִזְרוֹק שְׁתַּיִם וְזָרַק אַרְבַּע. לְעִנְיַן עֶבֶד – פְּלוּגְתָּא דְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְרַבָּנַן.
In a case where he intended to throw the stone, and he intended to throw it for a distance of only two cubits but instead he threw it a distance of four cubits, as it went farther than he wanted it to go, with regard to damages he is liable. With regard to the four types of indemnity he is exempt. With regard to Shabbat he is exempt, as we require planned, constructive labor as a condition for liability. With regard to exile he is liable, as the Merciful One states in the Torah: “If a man lie not in wait” (Exodus 21:13), which serves to exclude from the death penalty a situation where one intended to throw the stone for two cubits but he actually threw it for four cubits, as he did not intend to kill, so he is exiled. With regard to a slave, the same dispute between Rabban Shimon ben Gamliel and the Rabbis applies.
נִתְכַּוֵּין לִזְרוֹק אַרְבַּע, וְזָרַק שְׁמֹנֶה; לְעִנְיַן נְזָקִין – חַיָּיב. לְעִנְיַן אַרְבָּעָה דְּבָרִים – פָּטוּר. לְעִנְיַן שַׁבָּת – בְּאוֹמֵר ״כׇּל מָקוֹם שֶׁתִּרְצֶה תָּנוּחַ״, אִין; אִי לָא, לָא. לְעִנְיַן גָּלוּת – ״אֲשֶׁר לֹא צָדָה״, פְּרָט לְנִתְכַּוֵּין לִזְרוֹק אַרְבַּע וְזָרַק שְׁמֹנֶה. לְעִנְיַן עֶבֶד – פְּלוּגְתָּא דְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְרַבָּנַן.
And if he intended to throw the stone four cubits but instead he threw it eight cubits, with regard to damages he is liable. With regard to the four types of indemnity he is exempt. With regard to Shabbat, if he said to himself when he threw the stone that he would be satisfied wherever it may land, then yes, he is liable, as he intended to throw it a distance of four cubits, which is the minimum necessary to violate the prohibited labor of carrying in the public domain. If he did not throw the stone aimlessly but rather had selected a target that was four cubits away, then he is not liable as he did not perform the precise planned, constructive labor that he had intended. With regard to exile, the Torah states: “If a man lie not in wait” (Exodus 21:13), which serves to exclude from the death penalty a situation where one intended to throw it four cubits but he actually threw it eight cubits, as he did not intend to kill, so he is exiled. With regard to a slave, the same dispute between Rabban Shimon ben Gamliel and the Rabbis applies.
וְאָמַר רַבָּה: זָרַק כְּלִי מֵרֹאשׁ הַגָּג, וּבָא אַחֵר וּשְׁבָרוֹ בְּמַקֵּל – פָּטוּר. מַאי טַעְמָא? מָנָא תְּבִירָא תָּבַר.
§ Since the Gemara cited Rabba’s comments about various actions for which the perpetrator is liable with regard to certain matters but exempt with regard to others, the Gemara cites similar rulings: And Rabba says: If one threw a vessel, such as an earthenware jug, from a roof and another came along and broke it with a stick during its descent, the latter is exempt from liability. What is the reason? It is because he broke a broken vessel, meaning that once the vessel was thrown from the roof it was clear that it would be broken upon landing, and therefore it is considered as if it were already broken and the one who broke it while it was still in the air is not liable.
וְאָמַר רַבָּה: זָרַק כְּלִי מֵרֹאשׁ הַגָּג, וְהָיוּ תַּחְתָּיו כָּרִים אוֹ כְסָתוֹת; בָּא אַחֵר וְסִלְּקָן, אוֹ קָדַם [הוּא] וְסִלְּקָן – פָּטוּר. מַאי טַעְמָא? בְּעִידָּנָא דְּשַׁדְיֵיהּ – פַּסּוֹקֵי מְפַסְּקִי גִּירֵיהּ.
And Rabba says: If one threw a vessel from a roof and there were cushions or blankets below so that if the vessel would land on them it would not break, and then another came and removed the cushions or blankets, or if the individual who threw the vessel went quickly before it landed and removed the cushions or blankets himself, and as a result the vessel shattered, the one who threw the vessel is exempt from liability even though the vessel broke as a consequence of his actions. What is the reason? At the time that he threw the vessel, his arrows were stopped, i.e., what he did at the time he threw the vessel, which is an act comparable to the shooting of an arrow, did not have the capacity to break the vessel. Therefore, he is not viewed as having broken the vessel, and is exempt.
וְאָמַר רַבָּה: זָרַק תִּינוֹק מֵרֹאשׁ הַגָּג, וּבָא אַחֵר וְקִבְּלוֹ בְּסַיִיף – פְּלוּגְתָּא דְּרַבִּי יְהוּדָה בֶּן בְּתֵירָא וְרַבָּנַן. דְּתַנְיָא: הִכּוּהוּ עֲשָׂרָה בְּנֵי אָדָם בַּעֲשָׂרָה מַקְלוֹת – בֵּין בְּבַת אַחַת בֵּין בָּזֶה אַחַר זֶה, כּוּלָּן
And Rabba says: If one threw a child from a roof and another came along and impaled him on his sword and the child died, the question of who is liable to receive the death penalty for killing the child is dependent upon the dispute between Rabbi Yehuda ben Beteira and the Rabbis. As it is taught in a baraita: If ten people beat a victim with ten sticks, whether they did so simultaneously or sequentially, they are all
