Torah Community Connections

Week 92 - Wednesday - 29 August 2001

BAVA KAMMA: CHAPTER 2: MISHNAH 5

The ox which causes damage in the domain of the injured party, how so? If it gored, pushed, bit, lay down, or kicked in the public domain, he pays half-damages; in the domain of the injured party, Rabbi Tarfon says, Full damages, and the Sages say, Half-damages. Rabbi Tarfon said to them, if in the place where it was lenient with respect to the tooth and the foot in the public domain where he is exempt, it was stringent with them in the domain of the injured party to pay full damages. A place where it was stringent with regard to the horn, in the public domain to pay half-damages, should not certainly be stringent with regard to it, in the domain of the injured party to pay full damages? They said to him, It is sufficient for that which is deduced a fortiori to be like that from which it is inferred: just as in the public domain half-damages, so in the domain of the injured party half-damages. He said to them, I shall not deduce horn from horn; I shall deduce horn from foot: if in the place where it was lenient concerning tooth and foot in the public domain, it was stringent with the horn, in the place where it was stringent with the tooth and foot in the domain of the injured party, should not the law be that we should be stringent with the horn? They said to him, It is sufficient for that which is deduced a fortiori to be like that from which it is inferred: just as in the public domain half-damages, so in the domain of the injured party half-damages.

Kehati

The ox which causes damage in the domain of the injured party - which was taught above (1:4), and which is mu'ad ab initio - how so? - i.e., to which type of damage does the above mishnah refer, and according to whose opinion is it mu'ad?

If it - the ox - gored - with its horns, pushed - with its body, bit - sank its teeth into another animal intending to injure it, lay down - on vessels, intending to break them, or kicked - with its feet, intending to cause damage; concerning damage caused in any of these ways, which are 'horn" and its derivatives - in the public domain - and the ox is tam, he - the owner of the ox - pays half-damages - from its body, as was taught above (at the end of chapter 1);

And if the ox caused damage in one of these ways - in the domain of the injured party, Rabbi Tarfon says - even though the ox has the status of tam, since it caused damage in the domain of the injured party, the owner of the ox is nevertheless obligated to pay - Full damages - this is what was taught above (1:4): the ox which caused damage in the domain of the injured party is mu'ad ab initio (i.e. that Mishnah is taught in accord with Rabbi Tarfon's opinion), and the Sages say, Half-damages - for there is no difference with regard to damages caused by the horn between the public domain and the domain of the injured party, and even if it caused damage in the domain of the injured party, if the ox is a tam, its owner pays only half-damages.

Rabbi Tarfon said to them - the Sages, we may declare a fortiori that for damage caused by the horn in the domain of the injured party the owner pays full damages thus: If in the place where it - the Torah - was lenient with respect to the tooth and the foot - i.e., in the public domain, where he is exempt, it - the Torah - was stringent with them in the domain of the injured party to pay full damages - as was taught above (mishnayot 1-2 in our chapter),

then in - A place where it - the Torah - was stringent with regard to the horn in the public domain to pay half'-damages, should we not certainly be stringent with regard to it in the domain of the injured party to pay full damages? - Is this not an inference a fortiori? They - the Sages - said to him - Rabbi Tarfon, The rule is that for something which is learned a fortiori - It is sufficient for that - the law which is deduced a fortiori to be like that from which it is inferred - i.e., since you learn the case of horn in the domain of the injured party from the law of horn in the public domain, for you said, "it was stringent with respect to the horn in the public domain, should we not certainly be stringent with respect to it in the domain of the injured party?" It is sufficient for the law applying to horn in the domain of the injured party to be as the law applying to horn in the public domain: just as in the public domain half-damages, so in the domain of the injured party half-damages - just as when a shor tam gored or pushed in the public domain, its owner pays only half damages, so too if it gored or pushed in the domain of the injured party, the owner is obligated to pay only half-damages.

He - Rabbi Tarfon - said to them - the Sages, I shall not deduce horn - in the domain of the injured party - from horn - in the public domain; as I learned above, I shall deduce horn - in the domain of the injured party - from - tooth and - foot - in the domain of the injured party: If in the place where it was lenient concerning tooth and foot - i.e., in the public domain, it was stringent with the horn - If the Torah was lenient in the public domain concerning tooth and foot, ruling that for these types of damage the owner is exempt, but was stringent in the public domain concerning horn, ruling that for this type of damage he is obligated to pay half-damages, then surely - in the place where it - the Torah - was stringent with the tooth and foot, in the domain of the injured party - to pay full damages, should not the law be that we should be stringent with the horn? - to pay full damages?

They - the Sages - said to him - Rabbi Tarfon, Even this argument a fortiori is based on the law of horn in the public domain, for if it had not been for the special strict ruling which the Torah had imposed concerning horn in the public domain to pay half-damages, you would not have been able to draw this inference, so that the basis for the argument is the case of horn in the public domain; therefore, It is sufficient for that which is deduced a fortiori to be like that from which it is inferred: just, as in the public domain half-damages, so in the domain of the injured party half-damages - The Gemara explains that even Rabbi Tarfon holds that "It is sufficient for that which is deduced a fortiori to be like that from which it is inferred," since this principle is learned from the Torah. The Torah states, concerning Miriam, "If her father had spat in her face, should she not hide in shame seven days? Let her be shut up seven days" (Num. 12:14); this means, if her father had been angry with her, and had spat in her face as a mark of censure, she would be embarrassed for seven days. A fortiori, if the Holy One, blessed be He, had been angry with her and censured her, should this censure not last fourteen days? The law, however, is that "It is sufficient for that which is deduced a fortiori to be like that from which it is inferred," accordingly, "Let her be shut up seven days" only.

In the case under discussion in our mishnah, however, Rabbi Tarfon holds that the "It is sufficient" rule does not apply, since, in his opinion, this rule applies only in instances where the a fortiori argument is not entirely refuted, such as in the case of Miriam, where the matter of confinement is not stated explicitly, but rather a fortiori. Since it was possible to learn a fortiori that she should be confined for fourteen days, this passage teaches, "It is sufficient for that which is deduced a fortiori to be like that from which it is inferred," with Miriam to be confined only for seven days. In the case in our mishnah, however, there was no need to learn about half-damages a fortiori, since these are explicitly stated in the Torah. We employ the argument to learn the obligation to pay full damages in the domain of the injured party; if we were to employ the "it is sufficient" rule, i.e., that the owner is obligated to pay only half-damages, this would completely refute the a fortiori argument, and we do not employ the "it is sufficient" rule in such a case.

Rabbi Tarfon replied to the Sages that he would not deduce horn from horn, but rather horn from foot, only in response to their statement, since they hold here that the "it is sufficient" rule applies. Rabbi Tarfon himself holds, however, that horn may indeed be deduced from horn, as he argued initially.

The Sages hold that the "it is sufficient" rule applies, even in a case where this refutes the a fortiori argument entirely since, according to them, also in the case of Miriam the argument was refuted by the "it is sufficient" rule, since the seven-day confinement is written there twice: (1) "Let her be shut up seven days" (Num. 12:14); (2) "And Miriam was shut up outside the camp seven days" (Num. 12:15). The Sages hold that the first verse explicitly mentions the matter of confinement for seven days, with the a fortiori argument teaching only about confinement for fourteen days; the second verse therefore teaches the "it is sufficient" rule. They learn from this that the "it is sufficient" rule applies even when it entirely refutes an a fortiori argument.

Rabbi Tarfon, on the other hand, holds that the two verses - "Let her be shut up seven days" and "And Miriam was shut up seven days" only teach the "it is sufficient" rule: the first verse teaches it with respect to explicit argument stated with respect to Miriam; the second verse teaches that the "it is sufficient" rule applies to any argument a fortiori. This, since it might have been possible to think that the verse "and Miriam was shut up" was written only because the dignity of Moses was involved but we do not apply the "it is sufficient" rule in other a fortiori arguments; hence the second verse, to teach that the rule applies in every case.

BAVA KAMMA: CHAPTER 2: MISHNAH 6

A man is always mu'ad, whether inadvertently or intentionally, awake or asleep. If he blinded the eye of his fellow or broke vessels, he pays full damages.

Kehati

As was taught above (1:4), A man is always mu'ad - ab initio, and he pays full compensation for all damages, whether - he caused damage - inadvertently or intentionally, whether awake or - even if he caused damage while - asleep - he is obligated to pay. The Jerusalem Talmud explains this by giving the following example: if a person was asleep and his fellow came to sleep next to him and he caused him damage, he is responsible. If the first one caused damage to the second, however, he is exempt. If they lay down to sleep together, then whoever causes damage to his fellow is liable, since each of them is mu'ad in relationship to the other (Rambam). Similarly, if someone went to sleep in a place where there were vessels and he broke them while sleeping, he is liable. If however, the vessels were placed there after he went to sleep, and he broke them, then he is exempt.

If he blinded the eye of his fellow or broke the vessels, he pays full damages - The Gemara explains that our mishnah teaches that if someone inadvertently blinded the eye of his fellow, the law is the same as for the person who breaks his fellow's vessels, who is obligated to pay only damages. He is not obligated for the other payments obligatory for someone who wounds his fellow (pain, healing, loss of time, and insult, as will be explained in chap. 8, below) unless he caused the damage intentionally or almost intentionally (Rashi, Bartenura, Nimukei Yosef).

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