Bava Kamma 93

הנה אנכי שלח מלאך לפניך לשמרך בדרך

“Behold, I send an angel before you, to keep you by the way” (Exodus 23:20), indicating that an angel was sent in place of God to guard the Jewish people.

אמר ליה רבא לרבה בר מרי מנא הא מילתא דאמרי אינשי בתר מרי ניכסי ציבי משך אמר ליה דכתיב וגם ללוט ההלך את אברם היה צאן ובקר ואהלים

Rava said to Rabba bar Mari: From where is this matter derived whereby people say: Drag wood after a property owner. In other words, help out a wealthy man even in a small way, as this may lead to your benefiting from him. Rabba bar Mari said to him that the source is as it is written: “And Lot also, who went with Abram, had flocks, and herds, and tents” (Genesis 13:5).

אמר רב חנן המוסר דין על חבירו הוא נענש תחילה שנאמר ותאמר שרי אל אברם חמסי עליך וכתיב ויבא אברהם לספד לשרה ולבכתה והני מילי דאית ליה דינא בארעא

§ In connection with the incident of Abraham and Abimelech mentioned in the mishna, the Gemara quotes a related statement. Rabbi Ḥanan says: One who passes the judgment of another to Heaven is punished first, as it is stated: “And Sarai said to Abram: My wrong be upon you, I gave my handmaid into your bosom; and when she saw that she had conceived, I was despised in her eyes: The Lord judge between me and you” (Genesis 16:5). Sarai stated that God should judge Abram for his actions. And it is written: “And Abraham came to mourn for Sarah, and to weep for her” (Genesis 23:2), as Sarah died first. The Gemara comments: And this matter applies only in a situation where he has someone to do judgment for him on earth and has no need to appeal to the heavenly court.

אמר רבי יצחק אוי לו לצועק יותר מן הנצעק תניא נמי הכי אחד הצועק ואחד הנצעק במשמע אלא שממהרין לצועק יותר מן הנצעק

Concerning this, Rabbi Yitzḥak says: Woe to he who cries out to Heaven more than the one about whom he is crying out. The Gemara comments: This concept is also taught in a baraita: Both the one who cries out and the one about whom he is crying out are included in the verse discussing the cries of an orphan who is mistreated: “If you afflict them, for if they cry at all to Me, I will surely hear their cry. My wrath shall wax hot, and I will kill you with the sword” (Exodus 22:22–23). But they are quicker to punish the one who cries out than the one about whom he is crying out, as in the incident with Sarai.

ואמר רבי יצחק לעולם אל תהי קללת הדיוט קלה בעיניך שהרי אבימלך קלל את שרה ונתקיים בזרעה שנאמר הנה הוא לך כסות עינים אמר לה הואיל וכסית ממני ולא גילית שהוא אישך וגרמת אלי הצער הזה יהי רצון שיהו לך בני כסויי עינים ונתקיים בזרעה דכתיב ויהי כי זקן יצחק ותכהין עיניו מראת

The Gemara provides another lesson from the story of Abraham and Abimelech. And Rabbi Yitzḥak says: The curse of an ordinary person should never be regarded as light in your eyes, for Abimelech cursed Sarah and it was fulfilled in her descendant. The curse on Sarah is as it is stated: “Behold, it is to you a covering of the eyes” (Genesis 20:16), meaning that he said to her: Since you concealed your status from me and you did not reveal that Abraham is your husband, and you caused me this suffering, may it be God’s will that you should have children with covered eyes. And this curse was fulfilled in her descendant, as it is written: “And it came to pass, that when Isaac was old, and his eyes were dim, so that he could not see” (Genesis 27:1).

אמר רבי אבהו לעולם יהא אדם מן הנרדפין ולא מן הרודפין שאין לך נרדף בעופות יותר מתורים ובני יונה והכשירן הכתוב לגבי מזבח

Rabbi Abbahu says: A person should always be among those who are pursued and not among the pursuers. One can prove that this is so, as none among birds are pursued more than doves and pigeons, as all predators hunt them, and from all birds the verse deemed them fit to be sacrificed on the altar.

האומר סמא את עיני כו׳ אמר ליה רב אסי בר חמא לרבא מאי שנא רישא ומאי שנא סיפא

§ The mishna teaches: With regard to one who says to another: Blind my eye, or: Cut off my hand, or: Break my leg, and he does so, the latter is liable to pay for the damage, even if the injured party explicitly instructed him to do so on the condition that he will be exempt from payment. But if one instructs another to damage his property on the condition that he will be exempt from payment, he is exempt. Rav Asi bar Ḥama said to Rava: What is different in the first clause and what is different in the latter clause?

אמר ליה רישא לפי שאין אדם מוחל על ראשי אברים

Rava said to him: In the case of the first clause he is liable, despite the fact that he was instructed to carry out the injury on the condition that he would be exempt, because a person does not forgo compensation for damage to his extremities such as his eyes, hands, and feet, mentioned in the mishna (92a). Consequently, when he told the assailant that he would be exempt, the presumption is that he was not sincere.

אמר ליה וכי אדם מוחל על צערו דתניא הכני פצעני על מנת לפטור פטור אישתיק

Rav Asi bar Ḥama said to him: But does a person forgo compensation for his pain when he doesn’t lose a limb? As it is taught in a baraita: With regard to one who said to another: Strike me, or wound me, on the condition that you will be exempt from payment, he is exempt. According to Rava’s reasoning, he should be liable in this case as well, as the presumption should be that he was not sincere. Rava was silent, as he did not have a response.

אמר מידי שמיע לך בהא אמר ליה הכי אמר רב ששת משום פגם משפחה

Rava said to him: Have you heard anything with regard to this matter? Rav Asi bar Ḥama said to him that this is what Rav Sheshet said: It is because loss of a limb may result in a family flaw, i.e., it may cause harm to the family name. One who loses a limb not only suffers pain; his family suffers as well. He is not in a position to forgive the assailant for the harm caused to his family, but he may forgo compensation for his own pain. Consequently, if he instructed another merely to injure him, without causing loss of limb, on condition that the assailant will be exempt from payment, the assailant will be exempt.

איתמר רבי אושעיא אמר משום פגם משפחה רבא אמר משום שאין אדם מוחל על ראשי אברים שלו

It was stated that the amora’im disagreed concerning the explanation for the ruling of the first clause of the mishna. Rabbi Oshaya says: It is because loss of a limb may result in a family flaw. Rava says: It is because a person does not forgo compensation for damage to his extremities.

רבי יוחנן אמר יש הן שהוא כלאו ויש לאו שהוא כהן

Rabbi Yoḥanan says: There is a yes that, based on other factors, is like a no and is not viewed as giving consent. And conversely, there is a no that, based on other factors, is like a yes, and although one said no it is as though he gave consent. In this case as well, where he said: On condition to be exempt, he was not sincere.

תניא נמי הכי הכני פצעני על מנת לפטור ואמר לו הן הרי יש הן שהוא כלאו קרע את כסותי על מנת לפטור ואמר לו לאו הרי לאו שהוא כהן

The Gemara comments that this is also taught in a baraita. With regard to one who said to another: Strike me, or wound me; and the other asks: Is this on the condition that I will be exempt from payment? And the first one said to him, in the tone of a question: Yes, this is an example of the principle: There is a yes that is like a no. It is as if the victim asked: Even if I give you permission to do it, do you think that I would forgo the compensation? By contrast, if one said: Tear my garment, and the other asks: Is this on the condition that I will be exempt from payment? And he said to him, in the tone of a question: No, this is an example of a no that is like a yes, since he meant to say that if he did not want to exempt him from payment he would not ask him to do it.

שבר את כדי קרע את כסותי חייב ורמינהי לשמור ולא לאבד לשמור ולא לקרוע לשמור ולא לחלק לעניים

§ The mishna teaches that if one instructed another: Break my jug, or: Tear my garment, and the other did so, he is liable to pay for the damage. And the Gemara raises a contradiction from a baraita: The verses state with regard to bailees: “If a man delivers to his neighbor money or vessels to safeguard” (Exodus 22:6), and: “If a man delivers to his neighbor an ass, or an ox, or a sheep, or any beast, to safeguard” (Exodus 22:9). The Sages derived from these verses that the bailee is liable if the item was given to him to safeguard, but not where it was given to him to destroy; if it was given to him to safeguard, but not where it was given to him to tear; if it was given to him to safeguard, but not where it was given to him to distribute to the poor. This indicates that a bailee is not liable for damage to an item if he was told to tear it, even if the owner did not state that it is on condition to be exempt.

אמר רב הונא לא קשיא הא דאתי לידיה הא דלא אתי לידיה

Rav Huna said: This is not difficult, as this mishna that obligates him to pay for the damage is dealing with a case where it came into his possession, and he was responsible for it before the owner instructed him to tear it. Therefore, even if he was instructed to tear it, he is liable. And that baraita, which exempts him from paying, is discussing a case where it did not come into his possession, but he simply tore it.

אמר ליה רבה לשמור דאתי לידיה משמע

Rabba said to Rav Huna: But the phrase in the verse “to safeguard,” which obligates a bailee, indicates that it came into his possession already, and this is the case of the baraita that rules he is exempt.

אלא אמר רבה הא והא דאתא לידיה ולא קשיא הא דאתא לידיה בתורת שמירה הא דאתא לידיה בתורת קריעה

Rather, Rabba said: This and that are discussing a case where it came into his possession, and it is not difficult. This mishna is discussing a case where it came into his possession as an item given for safeguarding, and he is exempt if the owner stated explicitly that this will be the case, and that baraita is discussing a case where it came into his possession as an item given for tearing.

ההוא ארנקא דצדקה דאתי לפומבדיתא אפקדה רב יוסף גבי ההוא גברא פשע בה אתו גנבי גנבוה חייביה רב יוסף אמר ליה אביי והתניא לשמור ולא לחלק לעניים

The Gemara relates: There was a certain purse full of charity money that came to the city of Pumbedita. Rav Yosef deposited it with a certain man. That man was negligent in safeguarding it and thieves came and stole it. Rav Yosef deemed the bailee liable to pay compensation. Abaye said to Rav Yosef: But isn’t it taught in a baraita: To safeguard, but not where it was given to him to distribute to the poor? This seems to teach that with regard to money that is distributed to the poor, there is no halakha of safeguarding.

אמר ליה עניי דפומבדיתא מיקץ קיץ להו ולשמור הוא

Rav Yosef said to him: The poor of Pumbedita have an amount that is set for them to receive. Each poor person already had a specific sum designated for him, and accordingly is in the category of: To safeguard. Therefore, he is liable.

הדרן עלך החובל

MISHNA: In the case of one who robs another of wood and fashions it into vessels, or one who robs another of wool and fashions it into garments, he pays the robbery victim according to the value of the goods at the time of the robbery, but he need not return the vessels or garments. He has acquired the stolen items because they had undergone a change.

מתני׳ הגוזל עצים ועשאן כלים צמר ועשאן בגדים משלם כשעת הגזלה

If one robbed another of a pregnant cow and it then gave birth while in his possession, or if one robbed another of a ewe that was laden with wool and the robber then sheared it, the robber pays the value of a cow that is ready to give birth or the value of a ewe that is ready to be shorn. He pays the value of the animal at the time of the robbery, and the calf or the wool remains his.

גזל פרה מעוברת וילדה רחל טעונה וגזזה משלם דמי פרה העומדת לילד ודמי רחל העומדת ליגזז

If one robbed another of a cow, and it became pregnant in his possession, and it then gave birth; or if one robbed another of a ewe, and it became laden with wool in his possession, and he then sheared it, then the robber pays according to the value of the animal at the time of the robbery. This is the principle: All robbers pay according to the value of the stolen item at the time of the robbery.

גזל פרה ונתעברה אצלו וילדה רחל ונטענה אצלו וגזזה משלם כשעת הגזלה זה הכלל כל הגזלנים משלמין כשעת הגזלה

GEMARA: The Sages say: It can be inferred from the mishna that if one robbed another of wood and fashioned it into vessels, yes, the robber acquires the wood due to the change. If he merely sanded it, no, the robber does not acquire it, as this is not a significant change. Similarly, if one robbed another of wool and fashioned it into garments, yes, he has acquired the wool due to the change. If he merely washed it, no, he has not acquired it.

גמ׳ אמרי עצים ועשאן כלים אין שיפן לא צמר ועשאן בגדים אין ליבנן לא

And the Gemara raises a contradiction from a baraita: If one robbed another of wood and sanded it, or stones and smoothed them, or wool and washed it, or flax and cleaned it, he pays according to the value of the stolen item at the time of the robbery. This baraita teaches that even a change such as sanding wood is regarded as a significant change.

ורמינהי גזל עצים ושיפן אבנים וסיתתן צמר וליבנן פשתן ונקהו משלם כשעת הגזלה

Abaye said: This does not contradict the mishna. The tanna of our mishna teaches the halakha with regard to a change deemed significant by rabbinic law, which is not deemed significant by Torah law, as it is reversible. And all the more so, if the robber effects a change deemed significant by Torah law, i.e., an irreversible change, he acquires the stolen item due to the change.

אמר אביי תנא דידן קתני שינוי דרבנן דהדרא וכל שכן שינוי דאורייתא

The Gemara explains: Accordingly, it must be that the case in the mishna, where the change is reversible, where one robbed another of wood and fashioned it into vessels, is stated with regard to one who robbed another of sanded wood. And what are they? Boards that the robber used to construct a vessel, which is a change in which the item can revert to its original state, as, if the robber desires, he can disassemble them. Similarly, the case of one who robbed another of wool and fashioned it into garments refers to wool that was already spun, as fashioning them into garments is a change in which the item can revert to its original state, as, if the robber desires, he can unravel them. The mishna teaches that the robber acquires the stolen item by making these changes, and all the more so the robber acquires the stolen item through a change deemed significant by Torah law.

עצים ועשאן כלים בעצים משופין ומאי נינהו נסרים דשינוי דהדר לברייתא הוא דאי בעי משליף להו צמר ועשאן בגדים בצמר טווי דשינוי דהדר לברייתא הוא דאי בעי סתר ליה וכל שכן שינוי דאורייתא

Abaye continues his explanation: And the tanna of the baraita teaches the halakha with regard to a change deemed significant by Torah law, but he does not teach the halakha with regard to a change deemed significant by rabbinic law. It is possible that he maintains that the robber does not acquire the stolen item due to such a change.

ותנא ברא שינוי דאורייתא קתני ושינוי דרבנן לא קתני

Rav Ashi stated another answer: The tanna of our mishna is also teaching the halakha with regard to a change deemed significant by Torah law. The case in the mishna of one who robbed another of wood and fashioned it into vessels is referring to one who constructed pestles [bukhanei], which is analogous to the case mentioned in the baraita where one sanded them, since a pestle is formed by trimming the wood in an irreversible manner. Similarly, the case in the mishna of one who robbed another of wool and fashioned it into garments is referring to one who fashioned the wool into pieces of felt [namtei], which is an irreversible change.

רב אשי אמר תנא דידן נמי שינוי דאורייתא קתני עצים ועשאן כלים בוכאני דהיינו שיפן צמר ועשאן בגדים נמטי דהיינו שינוי דלא הדר

The Gemara asks a question with regard to the baraita: But does washing effect a significant change, so that one who robs another of wool and washes it acquires the wool and pays its value at the time of robbery? And the Gemara raises a contradiction from a mishna that discusses the halakhot of the first of the sheared wool, which one must give to a priest (Ḥullin 135a): If the owner of the sheep did not manage to give the sheared wool to the priest before he dyed it, he is exempt from giving it to the priest, as the obligation is in effect only with regard to wool remaining in its original state. By contrast, if he washed it but did not dye it, he is obligated to give it to the priest. This indicates that washing does not effect a significant change.

וליבון מי הוי שינוי ורמינהי לא הספיק ליתנו לו עד שצבעו פטור לבנו ולא צבעו חייב

Abaye said: It is not difficult. This baraita is in accordance with the opinion of Rabbi Shimon, whereas that mishna is in accordance with the opinion of the Rabbis, as it is taught in a baraita with regard to the first of the sheared wool: If one sheared it, spun it, and wove it, the sheared wool does not combine with the wool from other sheep to constitute the minimum quantity of wool for which one is obligated to give the first of the sheared wool to the priest. If one washed it, then Rabbi Shimon says that it does not combine with the wool of other sheep, as washing effects a significant change, and the Rabbis say that it combines with the wool of other sheep, as washing does not effect a significant change. Their opinions correspond to the opinions in the baraita and mishna previously quoted.

אמר אביי לא קשיא הא רבי שמעון הא רבנן דתניא גזזו טוואו וארגו אין מצטרף לבנו רבי שמעון אומר אין מצטרף וחכמים אומרים מצטרף

Rava stated another answer: This and that, i.e., both the mishna and the baraita, are in accordance with the opinion of Rabbi Shimon, and it is not difficult. This mishna is referring to a case where one untangled the strands of wool by hand before washing it. In this case, the washing is not fully effective, and does not effect a significant change. That baraita is referring to a case where one combed it before washing it. The washing is more effective and consequently effects a significant change.

רבא אמר הא והא רבי שמעון ולא קשיא הא דנפציה נפוצי הא דסרקיה סרוקי

Rabbi Ḥiyya bar Avin stated another answer: This mishna is referring to a case where one merely whitened it, which is not a significant change. That baraita is referring to a case where one bleached it with sulfur, which is a significant change.

רבי חייא בר אבין אמר הא דחווריה חוורי הא דכבריה כברויי

Having demonstrated that, according to Rabbi Shimon, washing effects a significant change, the Gemara asks: Now that it can be said that, according to Rabbi Shimon, dye does not effect a significant change, as the Gemara will prove, can it be said that washing effects a significant change? As it is taught in a baraita: If he sheared sheep one by one and dyed the wool of each sheep before shearing the next sheep, or sheared them one by one and spun the wool, or sheared them one by one and wove the wool, then the wool sheared from the different sheep does not combine to constitute the minimum quantity of wool for which one is obligated to give the first of the sheared wool to the priest. Rabbi Shimon ben Yehuda says in the name of Rabbi Shimon: Even if he dyed it, it combines with the other wool. This indicates that, according to Rabbi Shimon, even dyeing the wool is not a significant change, so how could he maintain that washing it is?

השתא יש לומר צבע לרבי שמעון לא הוי שינוי ליבון הוי שינוי דתניא גזז ראשון ראשון וצבעו ראשון ראשון וטוואו ראשון ראשון וארגו אין מצטרף רבי שמעון בן יהודה אומר משום רבי שמעון צבעו מצטרף

Abaye said: This is not difficult. This statement, that washed wool does not combine with other wool, is the opinion of the Rabbis in accordance with the opinion of Rabbi Shimon, while that statement, that even dyed wool combines with other wool, is the opinion of Rabbi Shimon ben Yehuda in accordance with the opinion of Rabbi Shimon. There is a dispute as to what Rabbi Shimon rules with regard to this issue.

אמר אביי לא קשיא הא רבנן אליבא דרבי שמעון הא רבי שמעון בן יהודה אליבא דרבי שמעון

Rava said: Actually, the Rabbis do not disagree with Rabbi Shimon ben Yehuda, and they are also of the opinion that Rabbi Shimon holds that washing effects a significant change. And as for the apparent contradiction, dye is different and it does not effect a significant change, since one is able to remove it with soap [tzafon] and return the wool to its previous state. And when it is taught there, in the mishna cited above, that if one did not manage to give the sheared wool to the priest before he dyed it he is exempt, and this ruling was established in accordance with all opinions, it was not stated with regard to ordinary dye but with regard to indigo, which cannot be removed with soap and therefore effects a permanent and therefore significant change.

רבא אמר לעולם לא פליגי רבנן עליה דרבי שמעון בן יהודה ושאני צבע הואיל ויכול להעבירו על ידי צפון וכי קתני התם לא הספיק ליתנו לו עד שצבעו פטור ואוקימנא כדברי הכל בקלא אילן דלא עבר

§ Abaye said: Rabbi Shimon ben Yehuda, and Beit Shammai, and Rabbi Eliezer ben Ya’akov, and Rabbi Shimon ben Elazar, and Rabbi Yishmael all hold that despite a change, the changed item remains in its place, i.e., the changed item is still considered to have the status it had before the change. The Gemara proceeds to prove that each of these tanna’im holds this way: The opinion of Rabbi Shimon ben Yehuda is that which we just said. He says that, according to Rabbi Shimon, even if the wool is dyed it still combines with the wool of other animals to constitute the minimum quantity of wool for which one is obligated to give the first of the sheared wool to the priest.

אמר אביי רבי שמעון בן יהודה ובית שמאי ורבי אליעזר בן יעקב ורבי שמעון בן אלעזר ורבי ישמעאל כולהו סבירא להו שינוי במקומו עומד רבי שמעון בן יהודה הא דאמרן

What is the source that indicates that Beit Shammai maintain that an item that undergoes a change is considered to have the same status that it had before the change? As it is taught in a baraita: If one gave a prostitute wheat as her payment, and she ground it and converted it into flour; or if he gave her olives, and she squeezed them and converted them into oil; or if he gave her grapes, and she squeezed them and converted them into wine; and if, in any of these cases, she subsequently consecrated the final product, it is taught in one baraita that it is prohibited to sacrifice them upon the altar as a meal-offering or libation, as the Torah states: “You shall not bring the hire of a harlot or the price of a dog into the House of the Lord your God” (Deuteronomy 23:19). And it is taught in another baraita that it is permitted, as the Gemara will explain. And Rav Yosef says: It was taught by Guryon

בית שמאי מאי היא דתניא נתן לה חטין באתננה ועשאן סולת זיתים ועשאן שמן ענבים ועשאן יין תני חדא אסור ותניא אידך מותר ואמר רב יוסף תני גוריון