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NEW EDITION

OF THE

BABYLONIAN TALMUD

Original Text, Edited, Corrected, Formulated and Translated into English

BY

MICHAEL L. RODKINSON

SECTION JURISPRUDENCE (DAMAGES)

TRACTS BABA KAMA (FIRST GATE

p. ii

EXPLANATORY REMARKS.

In our translation we adopted these principles:

Tenan of the original–We have learned in a Mishna; Tania–We have learned in a Boraitha;

Itemar–It was taught.

Questions are indicated by the interrogation point, and are immediately followed by the answers, without being so marked.

When in the original there occur two statements separated by the phrase, Lishna achrena or

Waïbayith Aema or Ikha d’amri (literally, “otherwise interpreted”), we translate only the second.

As the pages of the original are indicated in our new Hebrew edition, it is not deemed necessary to mark them in the English edition, this being only a translation from the latter.

Words or passages enclosed in round parentheses () denote the explanation rendered by Rashi to the foregoing sentence or word. Square parentheses [] contain commentaries by authorities of the last period of construction of the Gemara.

COPYRIGHT, 1903,

BY MICHAEL L. RODKINSON. COPYRIGHT 1916, BY

NEW TALMUD PUBLISHING SOCIETY

Next: Contents

Index Previous Next

CONTENTS.

PAGE

INTRODUCTION TO THE THREE GATES OF SECTION JURISPRUDENCE, v

SYNOPSIS OF SUBJECTS OF VOL. X.–TRACT BABA KAMA (THE FIRST GATE), ix

CHAPTER I.

THE FOUR PRINCIPAL TORT-FEASORS; THE DIFFERENT MODES OF RESTITUTION; THE VICIOUS AND NON-VICIOUS 11

ANIMALS THE APPRAISEMENT BEFORE THE COURT,

CHAPTER II.

RULES REGULATING THE PRINCIPLE OF VICIOUSNESS; AND NON-VICIOUSNESS IN THE FOUR PRINCIPAL TORT- 30

FEASORS ENUMERATED IN THE FIRST MISHNA,

CHAPTER III.

RULES CONCERNING PLACING VESSELS ON PUBLIC GROUND. INJURIES CAUSED BY PEDESTRIANS TO EACH OTHER 51

WITH THEIR LOADS. THE VICIOUS AND NON-VICIOUS OXEN–IF THEY HAVE DONE INJURY TO EACH OTHER OR To HUMAN BEINGS, ETC.,

CHAPTER IV.

RULES IN REGARD TO OXEN REPEATEDLY GORING OTHER OXEN AND HUMAN BEINGS. OXEN OF ORPHANS AND 82

GUARDIANS AND WHAT IS CONSIDERED “GUARDED,”

CHAPTER V.

RULES CONCERNING A GORING OX; EXCAVATIONS ON PUBLIC AND PRIVATE PREMISES; EXCAVATIONS MADE BY PARTNERS, ETC.,

106

p. iv

PAGE

CHAPTER VI.

REGULATIONS CONCERNING THE GUARDING OF ANIMALS AGAINST DOING DAMAGE. CONCERNING THE STARTING OF FIRE; IF IT PASSES OVER A WALL. FOR WHAT DISTANCES PASSED BY A FIRE IS THE ONE WHO STARTED IT LIABLE?

131

CHAPTER VII.

RULES AND REGULATIONS CONCERNING THE PAYMENT OF DOUBLE, AND ‘FOUR AND FIVE, AND COLLUSIVE WITNESSES; THE RAISING OF YOUNG CATTLE IN PALESTINE, ETC.,

149

CHAPTER VIII.

THE FIVE ITEM OF PAYMENT IN CASE OF INJURY TO A HUMAN BEING, INDEPENDENTLY OF THE CRIMINAL LIABILITY. THE LIABILITY FOR ASSAULT WHEN NO INJURY IS SUSTAINED,

182

Next: Introduction to the Three Gates of Section Jurisprudence

p. v

INTRODUCTION TO THE THREE GATES OF SECTION JURISPRUDENCE.

THE three tracts Baba Kama, Metzia, and Bathra (the First, Second, and Third Gates) are unique in the whole Talmud in this respect, that they bear no name indicating the contents, as is the case with all other tracts of the Talmud, and we do not find in any commentary any explanation or discussion of the fact. It may be because the reason is very simple, namely, that these three tracts are the only ones which treat purely of civil law, for even in cases of larceny only the civil side (as the actual damage, and the fine for causing it) is treated of (if there is here and there mentioned some criminal liability, it is only incidentally as a citation in course of the discussion); and as the cases are very numerous and varying in character, no appropriate title could be found to indicate the contents of each tract. Indeed, so numerous are they that we may safely say there is no civil case which can possibly arise between man and man that is not treated of in these tracts. The other tracts of this section, which are enumerated in our introduction to Volume I. (IX.), treat each of a separate and distinct subject and not of purely civil law.

For those especially interested in comparative jurisprudence we give below two articles by prominent publicists, which illustrate only two of the many important principles scattered all over the Talmud.

The first, “The Talmud,” by I. D’Israeli, is an extract from “Curiosities of Literature,” and is as follows:

In the order of damages containing rules how to tax the damages done by man or beast or other casualties their distinctions are as nice as their cases are numerous. What beasts are innocent and what convict. By the one they mean creatures not naturally used to do mischief in any particular way, and by the other, those that naturally or by a vicious habit are mischievous that way. The tooth of a beast is convict, when it is proved to eat its usual food, the property of another man, and full restitution must be made; but if a beast that is used to eat fruit and herbs, gnaws clothes or damages tools, which are not its usual food, the owner of the beast shall pay but half the

p. vi

damage when committed on the property of the injured person but if the injury is committed on the property of the person who does the damage, he is free, because the beast gnawed what was not its usual food. And thus, if the beast of A gnaws or tears the clothes of B in B’s house or grounds, A shall pay half the damages, but if B’s clothes are injured in A’s grounds by A’s beast, A is free, for what had B to do to put his clothes in A’s grounds? They made such subtile distinctions, as when an ox gores a man or beast, the law inquired into the habits of the beast; whether it was an ox that used to gore, or an ox that was not used to gore.

However acute these niceties sometimes were, they were often ridiculous. No beast could be convicted of being vicious till evidence was given that he had done mischief three successive days; but if he leaves off those vicious tricks for three days more, he is innocent again. An ox may be convict of goring an ox and not a man, or of goring a man and not an ox; nay, of goring on the Sabbath and not on a working day. Their aim was to make the punishment depend on the proofs of the design of the beast that did the injury, but this attempt evidently led them to distinctions much too subtile and obscure. Thus some rabbins say that the morning prayer of the Shem’ah must be read at the time they can distinguish blue from white; but another, more indulgent, insists it may be when we can distinguish blue from green! which latter colors are so near akin as to require a stronger light. With the same remarkable acuteness in distinguishing things is their law respecting not touching fire on the Sabbath. Among those which are specified in this constitution, the rabbins allow the minister to look over young children by lamp-light but he shall not read himself. The minister is forbidden to read by lamp-light, lest he should trim his lamp; but he may direct the children where they should read, because that is quickly done, and there would be no danger of trimming his lamp in their presence, or suffering any of them to do it in his. All these regulations, which some may conceive as minute and frivolous, show a great intimacy with the human heart, and a spirit of profound observation which had been capable of achieving great purposes.

The owner of an innocent beast only pays half the costs for the mischief incurred. Man is always convict and for all mischief he does he must pay full costs. However, there are casual damages–as when a man pours water accidentally on another man; or makes a thorn-hedge which annoys his neighbour; or falling down, and another by stumbling on him incur I harm: how such compensations are to be made. He that has a vessel of another’s in his keeping, and removes it, but in the removal breaks it, must swear to his own integrity; i.e., that he had no design to break it. All offensive or noisy trades were to be carried on at a certain distance from a town. Where there is an estate, the sons inherit, and the daughters are maintained, but if there is not enough for all, the daughters are maintained and the sons must get their living as they can, or even beg. The contrary to this excellent ordination has been observed in Europe.

The second, of which a literal translation follows, was written in Hebrew by Dr. D. H. Farbstein, a counsellor-at-law in Zurich,

p. vii

Switzerland, in the “Hashana” (Year-book) for 1900, under the title “One Cannot Grant that Which is not in Existence.”

There is no law which has not its reason. Every legal principle is the result of a certain economic and political condition; it is the product of a certain epoch, aiming to benefit the political and economic life of that historic epoch.

The legal principle that one cannot grant that which is not yet in existence had its origin in the Hebrew nation and was the product of a certain epoch, and we shall endeavor here to explain the motives which prompted the development of this legal precept.

This principle existed also in the laws of other Semitic nations in general, and in the Mahometan laws in particular. It was, however, unknown to the Roman law, as according to the Roman law one could grant that which was not yet in existence, and the sale of an article which existed only in expectation was valid, and even the mere expectation could form the subject matter of a purchase or sale.

The reason of this difference between the Semitic laws in general, and the Jewish laws in particular, and the Roman laws on this point lies, in my judgment, in the prohibition of taking usury.

“Thy money shalt thou not give him upon usury, nor lend him thy victuals for increase” [Lev. xxv. 37] is one of the principal Mosaic laws. And as it is prohibited to give money upon usury, so also is it prohibited to raise the price; as, for instance, if the price of an article is such and such in cash, it is prohibited to raise the price of such article if sold on credit for a certain time, for it is nothing but indirect usury.

This law was necessary as long as it was prohibited to give money upon usury; in our own times, however, when industry and commerce have developed so much, it is very usual to buy and sell things which exist only in expectation. In the time of the Talmudists the one who sold that which was not in existence was not an ordinary merchant, but only one who needed money. For instance, a farmer needed money. He applied to the money-lender for a loan. The money-lender was willing to make the loan, but was kept back by the prohibition to give money on usury. In order to evade this prohibition he bought of the farmer the future products of his farm, paying him only a very low price. The difference between the actual value of the products and the price paid by the lender is nothing but indirect usury.

Similar methods are practised even now in those countries where usury is prohibited by the law of the land. The Talmudists, in order to prevent such and similar evasions of the prohibition to take usury, have established the principle that no one can grant that which is not yet in existence; for the same reason, they also prohibited the fixing of a price upon future products before the market price is established.

They were, at the same time, careful in stating that one cannot grant, and not that one cannot buy, affording thereby protection to the grantor only that he may rescind the sale if he elects to do so.

We see, then, that the rule that “one cannot grant,” etc., was established with the end in view of preventing any evasion of the prohibition to take usury.

p. viii

In those days commerce was not so developed as it is in our days, nor was money of such established currency as it is now. Nowadays one invests money in merchandise and then sells the merchandise and realizes his money with a profit, which was not so in those days; and for that reason the taking of usury was prohibited, for money could bring no economic benefit to its owner.

But although it was prohibited to grant that which was not yet in existence, still it was allowed to grant that which would bring benefit in the future–as, for instance, to lease land for cultivation-for the substance producing the benefit is in existence.

This distinction between interest (compensation for the use of money) and rent (compensation for the use of an article producing benefit) was drawn also by the Catholic theologians of the middle ages, who also prohibited the taking of usury, but permitted the receipt of rent.

We, however, cannot fully agree with Dr. Farbstein, for the following reasons:

The principal things concerning which this rule was made were marriage and inheritance. If one marries a woman upon the condition that she should become a proselyte, the marriage is null and void, because it is on condition of something which was not yet in existence. The same is the case as regards inheritance-one cannot say to a woman: “I will leave my estate to the children you may bear.” In both these cases, usury cannot be the reason.

The rule that a man cannot grant that which is not yet in existence is not an established one by all the sages, for there were many of the most popular–as R. Eliezer b. Jacob, R. Meir, and

R. Juhudah the Prince–who held that one might grant that which is not yet in existence (see Kiddushin, 62 b, at the end), and certainly all of those sages were aware of the prohibition of usury.

It seems to us, therefore, that the sages who hold that such a thing cannot be sold is because they considered speculative transactions as robbery, so that they prohibited all kinds of gaming existing at that time; and the one who participated in such games was disqualified as a witness, because he was considered a robber. We find, however, in this volume, p. 198, that a woman

may sell the benefit of her marriage contract, although it looks like speculation; for she may die during the life-time of her husband, and her husband will inherit from her. But even this is discussed, and seems to be an enactment of some sages for the benefit of the woman. (See text.)

Next: Synopsis of Subjects of Tract Baba Kama (The First Gate)

p. ix

SYNOPSIS OF SUBJECTS

OF

TRACT BABA KAMA (THE FIRST GATE). 1

CHAPTER I.

MISHNA I. There are four principal cases of tort, etc. One thing is common to all. They are all likely to do damage and must be guarded against. The case of doing damage by digging up gravel. The different explanations of the word “mabeh” by Rabh and Samuel (foot-note). There are thirteen principal tort-feasors. The depository, 2 etc. There are twenty-four principal tort- feasors. What are the derivatives of all those principals? Why are the four principals, ox, excavation, mabeh, and fire, enumerated separately in the Scripture? From what and what kind of property must damage be collected? When the standard is taken, is it taken of one’s own lands or of those of the public in general? In order not to close the door to borrowers, the sages have enacted that creditors should be paid out of the medium estates. If one conveys his estates to one or several persons, from whom and from what estates shall the creditors collect the money due them? In case one does a meritorious thing he shall do it up to one-third, 1-16

MISHNAS II. TO V. In all that I am charged with taking care of I have prepared the damage. There is a more rigorous rule in case of the ox than in the cases of the pit and the fire, and vice versa. How so? If one left his ox in charge of five persons, and one of them left intentionally and the ox caused damage, what is the law? No appraisement is made for a thief or robber. If one hypothecates his slave or his ox and thereafter sells him. There is a difference between movable and immovable real estate. Slaves are considered movable real estate. During the killing, the bringing of the suit, and the making of the award there shall be one and the same owner. There are five cases which are considered non-vicious and

p. x

five which are considered vicious. The tooth is considered vicious to consume, etc. What is a Bardalis? What is meant by “best estates”? The meaning of the verse Is. xxxii. 20, 16-29

CHAPTER II.

MISHNAS I TO III. What tendency makes the foot to be considered vicious? Cocks that were flying from one place to another, and broke vessels with their wings. Cocks that were hopping on dough or on fruit, and made the same dirty, or that were flying and the wind produced by their wings damaged vessels, or that were pecking at a rope from which a water-pail was

suspended, and, severing the rope, broke the water-pail–what is the law? The distinction between primary and secondary force. A dog that snatched and carried off a cake from the burning coals, and with the burning coal that stuck in the cake set fire to the barn, etc. There can be viciousness in case of “gravel in the usual way.” If an animal was walking in a place where it was impossible not to kick up gravel, and she kicked, and by so doing kicked up gravel and caused damage; or if an animal caused damage by shaking the tail–what is the law? What tendency makes the tooth to be considered vicious? It happened that an ass consumed a loaf of bread contained in a basket and chewed up the basket, etc. If an animal was standing on private ground and an article was rolling toward the private ground, etc. About one who takes up his dwelling in the court of his neighbor without the latter’s knowledge. One who rents a house from Reuben must pay the rent to Simeon, etc. If one uses an unoccupied house of another for storing wood and straw, etc., what is the law? A certain person erected a palace on the ruins belonging to orphans, etc. A dog or a goat that jumps down from the top of a roof and breaks vessels liable for the whole damage. If, however, they fall down, there is no liability. Is one’s fire considered one’s arrow or one’s property? There is no liability for damages done by fire to concealed articles. How can such a case be found in the biblical law? The mouth of an animal (consuming something on the premises of the plaintiff), is it considered as if yet in the court of the plaintiff? There were certain goats belonging to the family of Tarbu that were doing damage to the property of R. Joseph, 30-47

MISHNAS IV. TO VI. What ox is considered non-vicious and what vicious? One that has been warned for three days. The three days in question, are they such as to make the ox vicious, or do they also involve the owner? For one who sets his neighbor’s dog on a third person, what is the law? An ox that gored, pushed, bit, lay down on, or kicked while on public ground pays half.

The a fortiori argument regarding the half-payment of the horn. An ox that steps with his foot on a child lying on the premises of the plaintiff, what is the law in regard to the payment of atonement money? A human being is considered always vicious. One who carries a stone in his lap without being aware of it, and while getting up from his seat drops it, as regards damages he is liable. One who drops a vessel from the top of a roof upon the ground which has been covered with

p. xi

pillows, and if another person remove them before the dropping of the vessel, etc., what is the law? Is a slave considered one’s body, and an ox one’s property? 47-56

CHAPTER III.

MISHNAS I. TO V. If one place a jug on public ground and another person stumble over it and break it, what is the law? One who kicks another with his knee is fined three selas; with the foot, five; with the fist, thirteen; what is the fine if one strike his neighbor with the handle or the iron of the hoe? A jug that broke on public ground and its contents caused a person to slip and fall, or one to be injured by its fragments, what is the law? About one who renounces ownership to his articles that cause damage. One who empties water into public ground, or one who builds his fence of thorns; or a fence that falls into public ground, and some persons were injured thereby, he is liable. The former pious men used to bury their thorns and broken glass in their fields three spans below the surface. All those who obstruct a public thoroughfare by placing chattels therein and cause damage are liable. If one carrying a barrel followed one carrying a beam, and the barrel was broken by the beam, what is the law? Potters and glaziers that walked one following

the other, and one stumbled and fell, etc. If they all fell because of the first one, the first is liable for the damage of all of them, 57-69

MISHNAS VI. TO XIII. Two that walked on public ground, one running and the other one walking, etc., what is the law? One who chopped wood on public ground and caused damage on private ground, etc. One who enters a carpenter’s shop without permission, and was struck on his face by a flying splinter. About employees who came to demand their wages from their employer and were gored by his ox or bitten by his dog. About two non-vicious oxen that wounded each other.

The difference in the explanation of the verse Exod. xxi. 35. About a non-vicious ox that has done damage and was sold, consecrated, slaughtered, or presented to somebody. About an ox of the value of two hundred selas that gored another ox of equal value and the carcass was of no value what ever. There are cases when one is liable for the acts of his ox and is free if they are his own acts, and vice versa. How so? The rule is that the burden of proof is upon the plaintiff. If one claims that he is positive, while the other one is not positive, what is the law? 6981

CHAPTER IV.

MISHNAS I. TO IV. An ox that gores four or five oxen one after another, the last of them must be paid from the body of the goring ox, if he was yet considered non-vicious. About an ox that is vicious towards his own species, but not towards other species, or towards human beings, etc.

There is a case where an ox became vicious -in alternate order.” About an ox

p. xii

belonging to an Israelite that gored an ox belonging to the sanctuary (see footnote). An ox of a sound person that gored an ox belonging to a deaf-mute, idiot, or minor, there is a liability. If the reverse was the case there is none. There is a difference of opinion of the Tanaim as to whether a guardian is appointed in order to collect from the body of the ox. Guardians pay from the best estates, but do not pay the atonement money. About one who borrows an ox with the understanding that he was non-vicious and it was found out that he was vicious, 82-93

MISHNAS V. TO IX. An ox that killed a man by goring him, if he was a vicious one, the atonement money is to be paid, but not when he was a non-vicious one. How can there be found a vicious ox in regard to man? If one confers, saying, “My ox has killed a certain person,” or “his ox,” he has to pay on his own testimony. If one’s fire has done damage without intention, is there a liability or not? About an ox that was rubbing against a wall, whereby the wall fell upon a human being and killed him. About an ox belonging to a woman, to orphans, or their guardian, etc., that killed a man. About an ox that was sentenced to be put to death and his owner consecrated him. About an ox delivered to a gratuitous bailee or a borrower, etc. About an ox which was properly locked up, but yet broke out and did damage. Whence is it deduced that one must not raise a noxious dog in his house, nor maintain a defective ladder? 93-105

CHAPTER V.

MISHNAS I. TO VI. About an ox that gored a cow and the new-born calf was found dead at her

side. The cow and her offspring are not separately appraised. A potter that placed his pottery in the court of another, or one who led his ox into the court of another without permission, what is the law? When he assured the safety of the ox, did it only extend to himself or also to all cattle? About a woman that entered a house to bake, and the house-owner’s goat, having consumed the dough, became feverish and died. About one who enters a court without permission and injures the court. owner, or the latter is injured through him. About one who said: “Lead in your ox and take care of him,” and he did damage or was injured. About an ox which intended to gore another ox, and injured a woman and caused her to miscarry. To whom must the compensation for the miscarriage be paid, to the woman or to her husband? Does the increase in the valuation also belong to the husband? About an Israelite’s pledge which is in the hands of a proselyte, and the latter dies without heirs. About one who digs a pit on private ground and opens it into public ground, or vice versa. One who digs and opens a well and delivers it over to the community is free. About one who digs a pit on public ground and an ox or an ass falls into it. Are the vapors therein contained, or is the shock received by the animal, the cause of death when falling into a pit? 106-120

MISHNAS VII. TO IX. When a pit belongs to two partners, and one of them passes by and does not cover it, and so also does the second, the latter only is liable. About a pit which was ten spans deep and which was completed

p. xiii

by another one to be twenty, and still by another one to be thirty spans deep. Each span of water equals two of dry ground. If one dig a pit ten spans deep and another widen it toward one direction only, what is the law? One who sells his house, the title passes with the delivery of the keys. If he sells a flock of cattle, title passes with the delivery of the Mashkhukhith (the forerunning goat kept at the head of the flock as a leader). If he covered the pit sufficiently to withstand oxen but not camels, and .camels came along and made the cover shaky and then oxen fell therein, what is the law? What about the germon of damage? About one who places a stone on the edge of the opening of a pit, and an ox stumbles over the stone and falls into the pit.

About an ox and a man who together push some other into a pit. There is no difference between an ox and another animal as regards falling into a pit, to have been kept distant from Mount Sinai, payment of double, restitution of lost property, unloading, muzzling, Kilayim, and Sabbath. Nor is there any difference between the above-mentioned and a beast or bird. Why in the first commandments is it not written “that it maybe well with thee,” while in the second commandments it is? 120-130

CHAPTER VI.

MISHNAS I. TO III. If one drive his sheep into a sheep-cot and properly bolt the gate, but still they manage to come out and do damage, he is free. There are four things for which one who does them cannot be held responsible before an earthly tribunal, although he will be punished for them by the Divine court. Is armed robbery, when not committed publicly, still considered theft as regards the payment of double? For frightening away a lion from one’s neighbor’s field the law awards no compensation. How does it pay what it damaged? About one who came before the Exilarch and complained of another who destroyed one of his trees. One who destroys a young date-tree, what amount of damage must he pay? There was a case, and Rabh acted in accordance with R. Meir; but in his lectures, however, he declared that the Halakha prevails in accordance with R. Simeon b. Gamaliel (see foot-note). About one who puts up a

stack of grain on another’s land without permission. One who started a fire through the medium of a deaf-mute, etc., 131-142

MISHNAS IV. TO VIII. The law about one who starts a fire and it consumes wood, stones, or earth. No chastisements come upon the world unless there are wicked ones in existence. When pestilence is raging in town, stay indoors, etc. Why does the verse begin with the damage by one’s property and end with damage done by one’s person? About a fire that passed over a fence four ells high. If one starts a fire on his own premises, how far must it pass to make the starter liable? About one who causes his neighbor’s stack of grain to burn down, and there are vessels therein which also are burned. If one allowed another to place a stack of wheat and he covered it with barley, or vice versa, what is the law? Is it customary with people to keep pearls in a money-pouch? The law about a spark that escapes from under a blacksmith’s hammer and does damage, 142-148

p. xiv

CHAPTER VII.

MISHNA I. The payment of double is more rigorous than the payment of four and five fold. The law about one who stole a lamb, and while in his possession it grew into a ram, etc. That a change acquires title is both written and taught. Why did the Scripture say that if he slaughtered and sold it he must pay four and five fold? A stolen thing, which the owners have not resigned hope to regain, cannot be consecrated, etc. The pious man used to place money in the vineyard on a Sabbatical year, declaring: “All that is plucked and gathered of this fruit shall be redeemed by this money.” A writ of replevin which does not contain the following directions “Investigate, take possession, and retain it for yourself,” is invalid, 149-159

MISHNAS II. TO VI. About two witnesses who testify that the one stole an ox or a sheep, and either the same or other witnesses testify that he slaughtered or sold the same. If he stole from his father. From what time on is a collusive witness disqualified to give testimony? If two witnesses testify that a certain person blinded his slave’s eye, and thereafter knocked out one of his teeth, and they also testify that the owner of the slave admitted it, and subsequently the witnesses are found collusive, what must the collusive witnesses pay? If two witnesses testify that he stole it, and one witness, or he himself, testified that he slaughtered or sold it, he pays only two, but not four and five fold. One who admits that he has incurred the liability of a fine, and thereafter witnesses appear, what is the law? About a confession which is made after the appearance of witnesses, and the different opinions in regard to it. If the thief sells all but one hundredth part of it or he is a co-owner of it, what is the law? One who steals an animal which is lame or blind, or which belongs to a copartnership is liable, but partners that steal together are free. About one who steals an animal within the premises of the owner and slaughters or sells it outside of it, or vice versa. Why did the Scripture treat more rigorously with the thief than with the robber? Ponder over the greatness of labor, etc., 159-174

MISHNA VII. No tender cattle must be raised in Palestine but in its forests. A shepherd (who raises tender cattle) that repented, we do not compel him to sell out all his cattle at once. No tender beasts shall be raised in Palestine, except dogs, cats, and monkeys. R. A’ha b. Papa said in the name of R. Hanina b. Papa three things. Upon ten conditions did Joshua divide the land among the settlers. The ten enactments of Ezra. No swine is permitted to be raised at anyplace.

Rabbi, the Prince of Pales tine, objected to the use of the Syriac language, and insisted that only the Holy and the Greek languages should be used in Palestine. R. Jose objected to the use of the Aramean language in Babylon, and insisted that the Holy and the Persian languages should be used. No dogs shall be kept unless on a chain. In the towns adjoining the frontier they must be kept on a chain only in the day time, 174-181

CHAPTER VIII.

MISHNAS I. AND II. The four items of damage: pain, healing, loss of time, and disgrace. How so? It happened that an ox lacerated the arm

p. xv

of a child, and the case came before Rabha, etc. When the damage is paid for, how should the pain be appraised separately? Healing. If pus collected by reason of the wound, and the wound broke out again, etc. The sages say that healing and loss of time go together. If the defendant should say, “I will cure you myself, the plaintiff may object,” etc. Shall we assume that the appraisement for the deafness is sufficient, or each of the injuries must be appraised separately? (See foot-note.) If one strikes another and makes him temporarily unfit to labor, what is the law? Disgrace–all those who sustain injury are looked upon as if they were independent men, etc.

One who causes disgrace to a nude, blind, or sleeping person is liable. If one causes shame to a sleeping person who subsequently dies while asleep, what is the law? Is the reason because of the hurting of his own feelings, or because of the feelings of his family? Is a blind person required to per form all the commandments? and what R. Joseph, who was blind, said of that, 182-193

MISHNAS III. TO V. The law is more rigorous in regard to a man than in regard to an ox, etc. One who assaults his father or mother, but does not bruise them, and one who wounds another on the Day of Atonement, are liable to pay all the items of damage. To whom belongs the compensation received by one’s minor daughter for a wound? About an investment for a minor and the nature thereof, Is a slave considered a “brother”? The Halakha prevails that the benefit in case of a woman who sells her right in the marriage contract belongs to herself; and if she bought estates therewith, her husband has nothing even in their income. If one blow into the ear of another, he pays one sela for the disgrace he caused him. What if one strikes another with the palm or with the back of his hand on the cheek? This is the rule: Rank and station of the parties are taken into consideration. May a witness be a judge in the same case? A non-vicious ox that killed a man and also caused damage to another, must his owner pay for the damage, besides the payment of the atonement money? All that was said concerning disgrace is only for the civil court, as to how much the plaintiff should receive, but there can be no satisfaction for the injury to the feelings, for which, if he would even offer all the best rams of the world, they would not atone, unless he prays the plaintiff for forgiveness. The origin of a series of sayings by the rabbis as well as by ordinary people. If one says to another, “Break my pitcher,” etc. A money-pouch containing charity funds was sent to Pumbeditha, and R. Joseph deposited it with a certain man who did not take good care of it and it was stolen from him, and R. Joseph held him responsible. What Abayi said to him about it, 193-210

Footnotes

ix:1 See introduction to Synopsis in Tract Aboth, Vol. I. (IX.), p. xi.

ix:2 Farther on we use the term “gratuitous bailee,” as being more comprehensive.

Next: Chapter I.

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