MISHNAH: There are four main categories of damages [Most rules of payment for damages may be derived from the examples of damages treated in Ex. 21–22, as explained in the Halakhah.] : The bull [An agressive bull goring with his horns; Ex. 21:28–32;35–36.] , and the pit [A person digging a pit in the public domain is responsible for any damage caused by his action; Ex. 21:33–34.] , and the devourer [Damage caused by an animal other than goring: feeding (“the tooth”) and trampling (“the foot”), Ex. 22:4. The Aramaic root בעי is found in Pseudo-Jonathan to Num. 22:2 as translation of Hebrew לחך “to devour”. The unusual expression מַבְעֶה is used to subsume two legal terms under one.] , and the setting on fire [Ex. 22:5.] . The bull is not like the devourer, nor the devourer like the bull [Since goring, trampling, and devouring are all ascribed to the same animal, the question arises why the bull has to be mentioned in two different categories both in the Mishnah and in the biblical text. The details are given only in the Babli: An animal which gores is intent on causing damage; therefore the rules are different for known agressive or generally not agressive animals since these require different levels of supervision. But the rules for damage caused by feeding and trampling are the same for all animals.] ; neither of them who are alive is like the pit [It is obvious and confirmed by all other sources that the positions of “pit” and “fire” have to be switched.] which is not alive, nor either of them which move in causing damage is like the fire [It is obvious and confirmed by all other sources that the positions of “pit” and “fire” have to be switched.] which does not move in causing damage. The common theme of them is that they are usually causing damage and you are obligated to watch them, and if damage was caused the person causing the damage is obligated to pay the damages in best quality land [If the person causing the damage cannot pay, the person collecting damages can foreclose the culprit’s land with the highest value per unit of surface area. As biblical law, this applies to damages caused by unattended animals, Ex. 22:4.] .
HALAKHAH: “There are four main categories of damages,” etc. The bull means the horn, as is written: “If a man’s bull smite another person’s bull, [Ex. 21:35.] ” etc. So far a harmless animal [It has no history of attacking other animals. The owner only has to pay half the damage caused.] . From where a notorious [dangerous] one [For which full damages have to be paid.] ? “Or it was known that it be a goring bull, [Ex. 21:36.] ” etc. The pit, “if a man open a pit,” etc.; “the pit’s owner has to pay, [A person digging a pit in the public domain is responsible for any damage caused by his action; Ex. 21:33–34.] ” etc. The devourer: “If a person causes a field or a vineyard to be despoiled by sending his animals; [Ex. 22:4. The meaning of יַבְעֵר is in doubt because of lack of parallels. It might as well be referring to damage by excessive grazing as to destruction by trampling.] ” this is the foot as it is written [Is. 32:20. The same explanation of Ex. 22:4 by Is. 32:20 is in the Babli, 2b.] : “Those who send the foot of bull and donkey.” And it is written [Is. 5:5.] : “Remove its cover and it will be despoiled,” that is the tooth, “tear down its fence and it will be trampled,” that is the foot. And the setting on fire, as it is written [Ex. 22:5.] : “If fire starts and finds thistles,” etc.
We have stated: “Four main categories of damages.” But Rebbi Ḥiyya stated thirteen [Tosephta 9:1; Babli 4b in the name of R. Hoshaia. The list contains 9 items; together with the 4 mentioned in the Mishnah there are 13.] : Damages, suffering, medical costs, loss of earning power, shame [These five kinds of payment are due for injuries suffered at the hands of another person, Mishnah 8:1; it is based on Ex. 21:19. “Suffering” means [payment for]bodily pain; “shame” refers to [payment for] mental anguish caused by loss of face.] ; the unpaid trustee, and the borrower, the paid trustee, and the renter [These four entries do not refer to kinds of payments for damages but to the obligations of persons who hold other people’s property in case that property is lost, stolen, or damaged, as specified in Mishnah Bava meṣi‘a 7:9 (based on Ex. 22:6–12). The unpaid trustee does not pay if he can swear that he did not use the property; the borrower pays for everything; the paid trustee and the renter have to pay for what was lost or stolen but may swear that it was not their fault if the damage was caused by an act of God or forcible robbery.] . Say now, what we stated [refers to] responsibility for damages [A literal translation would be: “Qualification for damages”. The reference is to Mishnah 2: “Anything which I am obliged to guard, I qualify [myself as responsible] for damages.” [Noted by S. Pinchas, New explanations of some unclear passages in the Yerushalmi, Sinai 133 (2004) 174–180 (Hebrew); but the relation was already noted by Eliahu Fulda.]. All damages payable for actions of one’s animals are really fines for the owner’s negligence in watching his animal.] . What Rebbi Ḥiyya stated [refers to] both responsibility for damages and bodily injury [In the Babli, 4b, this explanation is attributed to Samuel.] . Rebbi Ḥaggai asked: How can we state “four main categories”? If everything was said about one bull; let us state “three,” if it was said about three bulls, let us state “five” [Of the categories of damages indicated in the Mishnah, three refer to actions of cattle: goring, trampling, and feeding. If one classifies the damages according to their origins, there should be three (cattle, humans, fire); if by categories there should be five.] ! But as it is presented in the verse, thus it is presented in the Mishnah [Since foot and tooth are interpretations of one and the same verse, they are counted as one in the Mishnah.] [A similar expression is used in Berakhot 2:4 (Note 192).] .
The derivatives of the horn [In a differently formulated version in Šabbat 7 (9d l. 61), “pushing” is missing. In the Babli, 2b, the list is even shorter. In Mekhilta dR. Ismael, Mišpaṭim 12, the formulation of the list is attributed to R. Josia. The Babli’s list is also in Mekhilta dR. Simeon ben Ioḥai, Mišpaṭim, p. 278.] : Goring [The biblical expression (Ex.21:28,31) used to describe the attack by an animal on a human.] , hitting [Ex. 22:35, used for attacks on other animals.] , biting [Since the animal bites with the intent of causing damage, biting is put in the category of goring, “horn”, rather than under feeding, “the mouth”.] , wallowing, kicking, and pushing [Pushing with its body, not its horns.] . Rebbi Isaac asked: Hitting and goring are fundamental [Anything mentioned in the biblical text is fundamental; any damage not mentioned in the biblical text is a derivative of one of the biblical causes.] , and you call them derivative? But he starts with the fundamentals and ends with the derivatives [In the Babli, this is a declarative statement.] .
Derivatives of the pit: The entire third Chapter of Mishnah Neziqin [Bava qamma Chapter 3. The “pit” is the paradigm for any obstacle put in the public domain by a private person.] . Rebbi stated: Somebody put a glowing coal in the public domain, another person came and stumbled over it while a flask was in his hand [A typical scenario discussed in Chapter 3.] . If as a consequence that person’s clothing was singed and the flask in his hand was broken, he [The person who caused the accident by leaving the burning coal in the public domain.] is obligated for the flask because of ‘pit’, and for the garments because of ‘fire’.
Derivatives of the ‘foot’: It was stated [Tosephta 1:6; a different version in the Babli 17b.] : For an animal which entered a private property [Since Ex. 22:4 limits strict responsibility of the owner to an animal of his which causes damage “on another person’s field”; full damages for foot and tooth are due only for damages caused on private property of a person other than the animal’s owner.] and caused damage, whether by its forefoot, or by its hindfoot, or by its horn [Not by goring but by causing damage walking.] , or by the yoke on it, or by a sack on it, or by the carriage it was drawing, one pays full damages. And one who causes damage in a karmelit pays full damages [This sentence refers to the topic of Chapter Two and states that the notion of “private domain” for torts is not identical with the same notion for property rights. Karmelit is a part of the public domain not really accessible to the public. The two main examples are “the sides of a thoroughfare”, the part of a street close to the houses if that part is not easy to use for walking because of stairs extending from houses or the fronts of the houses do not form a straight line. The other is “valley”, a rural access path which is public domain, not a thoroughfare but meant only as path for use by the farmers working adjacent fields. For the rules of the Sabbath, karmelit is neither private nor public.] .
Derivatives of the tooth. They wanted to say that if a cow ate barley [Babli 19b. It will be established later that the owner of an animal is guilty of negligence if he does not prevent his animal from causing foreseeable damage. But if the animal shows unusual, not foreseeable, behavior, he pays only half the damage caused by it. One might assume that if an animal eats anything that does not belong to its regular feed the owner should pay only half of the damages. This is rejected; all edibles are potential feed for all animals.] , or a donkey ate leeks, or a dog licked olive oil, or a pig [Rashba reads: “A cat ate a large piece of meat”.] ate meat, all of these are derivatives of the tooth. Rebbi Isaac said, all these are of the essence of the tooth. But did we not state “derivatives of the tooth”? If it stepped on a skin full of oil [The animal steps on a container of olive oil, breaks it, and by this has its foot drenched in oil. One has to judge this under the rules of damage by “tooth”, not “foot”.] , since its body enjoys anointing. As one says in general, the tooth eats and the body enjoys, so also here the body enjoys. Rebbi Jeremiah asked: If in walking if was disgorging grasses [Usually ruminants lie down while ruminating. Kosher animals are all ruminants. If an animal was ruminating while walking, losing some of its cud in walking and thereby causing damage: is this foreseeable or not foreseeable damage?] , what is the rule? Rebbi Yose said, just as one who puts a burning coal to [The expression מניח ל is very unusual. One would have expected either מניח ב or an additional word like מַנִּיחַ סָמוּךְ לִרְשׁוּת הָרַבּים “puts close to the public domain”. This may be intended here, viz., that the hot coal was put on the border but not strictly inside the public domain.] the public domain, it causes damage as far as it moves [The animal is expected to cause damage anywhere it moves; the damage is foreseeable.] . What does this mean? Rebbi Yose ben Rebbi Abun said, explain it if somebody puts a knife close to the public domain [And somebody in the public domain is hurt by it. He shows that this damage has to be judged under the rules of damage by fire.] . As you say there, if the fire touches one side, it trembles in its entirety, so also here, a human touches [The knife.] on one side and trembles in his entirety. Rebbi Yose ben Rebbi Abun in the name of Rebbi Levi: If a pit is full of water and a small lamb fell in, if water enters its ears it trembles in its entirety, so here it trembles in its entirety. Rebbi Jeremiah asked: If in walking it tore out grasses with its body or its horns, what is the rule? Is this out of the ordinary? It is its common behavior [The animal’s owner is responsible for the entire damage.] .
Rebbi Abun bar Ḥiyya in the name of Rebbi Samuel bar Rav Isaac: If “the bull” had not been written, I would have inferred the bull from the pit [He wants to prove that the different categories mentioned in the biblical text are necessary; one cannot be subsumed under the other.] . Since for the pit, which is not usually moving, one has to pay full damages, not so much more for the bull which usually is moving [But for damages inflicted through goring by an animal which has no history of doing so the owner pays only half, Ex.. 21:35.] ? Either since for the pit one pays full damages, also the bull pays full damages, or since the bull pays half damages, also for the pit one should have to pay half damages [This is the preceding argument in a different formulation. Since the rules of payment are different for bull and pit, they cannot be subsumed under one rule.] . If “the bull” had not been written, I would have inferred the bull from the pit; if “the pit” had not been written, I would have inferred the bull from the pit. Why was it stated here? Because there are many things [The later text shows that one should read here: “Because there are many things to be stated;” the differences between the rules for bull and pit are many.] . Similarly, the seat is not like the bed and the bed is not like the seat [In the rules of impurity of the sufferer from gonorrhea, Lev. 15:4–5 proclaims the impurity of his bed and v. 6 that of his seat. Why do seat and bed have to be mentioned separately? In the baraita of R. Ismael (Sifra, Introduction 5) the rules common to seat and bed are declared valid for any implement used for human rest, as illustration of the third hermeneutical rule “a principle derived from one paragraph”.] . One understands that the seat is not like the bed. The seat a square ṭephaḥ large can become impure; the bed four ṭephaḥim large can become impure [Babli Me‘ilah 18a. While textiles in general can become impure, small snippets cannot. Cloth being woven cannot become impure unless it has a size which makes it usable. This depends on the intended use. Cloth intended as cover of a seat becomes impure once it contains a square of side length of one handbreadth (probably 9.1 cm); for the cover of a bed one requires a square of four handbreadths.] . Because He declared a bed four ṭephaḥim large as impure, would a seat a square ṭephaḥ large become impure [There is no logical necessity here. The rules for the impurity of beds are detailed in Sifra Meṣora‘, Pereq Zabim, Pereq 2, Parašah 2; those for seats are in Pereq 3:1–4.] ? If the seat had not been written, I would have inferred seat from bed. Why was it stated here? Because there are many things to be stated. Similarly, the paragraph on lighting the candles is not like the paragraph about exiling the impure and the paragraph on exiling the impure is not like the paragraph about lighting the candles [Baraita of R. Ismael (Sifra, Introduction 6) as illustration of the second part of the third hermeneutical rule “a principle derived from two paragraphs”; the main argument is in Sifry Num. 1. In Num. 5:1–4, Moses is instructed to command the Children of Israel to remove lepers, sufferers from gonorrhea, and those impure from the impurity of the dead from the camp. It is noted that the command was executed immediately. In Num. 8:3 it is stated that Aaron lit the lights in the Sanctuary exactly as the Eternal had commanded Moses. R. Ismael infers that everywhere in the Pentateuch, a command is to be executed immediately (and permanently).] . If the paragraph about exiling the impure had not been written, I would have inferred the rules of the paragraph on exiling the impure from the paragraph on lighting the candles. Why was it stated here? Because there are many things to be stated [As Ravad notes in his Commentary to Sifra, these differences are nowhere noted.] . So what is equal about them is that they are “command” here and in future generations, so everything by “command” is for here and for future generations [Quoted in Sifra Ṣaw 1:1, Emor Parašah 13:1;] . Rebbi La said, it is necessary that all [The four categories mentioned in the Mishnah.] be written; and the bull teaches that the owners have to deal with the cadaver [Ex. 21:36, speaking of the bull with a history of goring, requires the owner of the goring bull to pay full damages and concludes “the cadaver shall be his.” This “his” (and the parallel in v. 34) is interpreted as “the claimant’s” in Babli 10b,53b; Mekhilta dR. Ismael, Mišpaṭim 11,12; Mekhilta dR. Simeon b. Ioḥai p. 186. The argument is that since full damages are due, one could assume that the payor had acquired the carcass and no mention of it would be necessary.] . But it is written, “and the cadaver shall be his”, and it is written for the pit, “and the cadaver shall be his” [This seems to disprove R. La’s statement. If the same rule is explicit for the agressive goring bull and the pit, one would have to assume that it does not hold for any other kinds of damages.] ! Rebbi Ismael said, this excludes real estate which cannot be moved [This is difficult to understand since real estate cannot fall into a pit. In Tosephta 6:14, one excludes payment for broken vessels if there is no residual value in the pieces.] ; it excludes a human because there can be no usufruct from him in death [Similarly in Tosephta 6:14; Babli 53b.] . But the fire teaches for all of them that one is responsible for accidents [This is another commentary on R. La’s statement. Also damages for losses by fire teach another principle. Since Ex. 22:5 reads “If fire gets out of control … the person who started the fire has to pay,” even if he started the fire perfectly legally on his own property. This establishes general liability for damages caused by accident. A similar text is in Mekhilta dR. Ismael Mišpaṭim 14. The Babli, 26b, derives a similar principle from Ex. 21:24–25.] .
Rebbi Yose said: This means that a person who injured another first has to pay even if he later becomes injured, as is written: “He who injures an animal has to pay for it,” he has to pay the diminution in value [The statement of R. Yose belongs to the discussion of the last part of the Mishnah, that if damage was caused the person responsible is obligated to pay for the damages. The sentence starting with “as is written” does not belong to R. Yose’s text.] .
New Paragraph. “If damage was caused the person responsible is obligated to pay for the damages,” etc. Rebbi Ḥanina said, “he who injures an animal has to pay for it [Lev. 24:18, incorrect quote. In the Babli, 10b, R. Ammi (Immi) explains יְשַׁלְּמֶנָּה “pay for it” by יַשְׁלִימֶנָּה “shall supplement it,” i. e., pay the difference between the value of the living animal and the carcass. This argument has to be read into the quote here.] ,” he has to pay the diminution in value. Bar Pedaiah said, “if it was torn, he shall bring it up to the place of the carcass, for which he does not have to pay. [Ex. 22:12. The sentence has become unintelligible because it mixes quote and two distinct interpretations. Verses 9–12 refer to the person who undertook to watch over another’s property and is paid for his services. If there was a loss because of theft, the watchman has to pay because he failed to prevent the theft (v. 11). If livestock was lost to predatory animals, the watchman “has to bring it עד”. The masoretic vocalization עֵד means (Mekhilta dR. Ismael, Mišpaṭim 15 in the name of R. Joshia; Babli 11a) that witnesses who testify that the loss was caused by a lion or similar large animal against which the watchman was powerless, will free the watchman from his obligation to pay. He will have to pay for losses caused by smaller animals which attack by stealth. The other interpretations read עַד, either עַד I “until”, or עַד III “torn, robbed by the enemy”. In the Babli, 11a, and Mekhilta dR. Simeon ben Ioḥai22:12, Abba Shaul reads “he shall bring the torn,” meaning that he does not have to pay for the residual value of the carcass. In Mekhilta dR. Ismael, Mišpaṭim 15, R. Jonathan reads “he has to bring the owners to the place [of the attack]” to support his claim that the attack was by a large animal against whom he was powerless. The insertion of “up to the place” into Bar Pedaiah’s quote follows R. Jonathan, but his interpretation is that of Abba Shaul.] ” Rebbi Nasa said, the quote of Rebbi Ḥanina is needed and the quote of Bar Pedaiah is needed. If only the quote of Rebbi Ḥanina was given but not that of Bar Pedaiah, I would have said that if he made the damage possible he should not have to pay anything but for bodily damage he has to pay the diminution in value [Since the verse in Lev. only requires payment by a person who attacks an animal, not if the damage was caused by negligence.] . Therefore, Bar Pedaiah’s quote is necessary. But if only the quote of Bar Pedaiah was given but not that of Rebbi Ḥanina, I would have said that if he made the damage possible [By his negligence.] he has to pay the diminution in value, but for bodily damage he has to pay the whole [As one would understand from Lev. 24:18 without R. Immi’s interpretation.] . Therefore, the quote of Rebbi Ḥanina is needed and the quote of Bar Pedaiah is needed.
[A consistent text is in the Babli, 11a.] Rav Jehudah in the name of Samuel: One estimates [Thiefs, robber, and borrowers who broke what they borrowed have to pay the entire damage which they caused, without deduction for the residual value of what they might return of the things they took.] neither for the thief nor for the robber nor for the borrower but only for damages, and I [This is Samuel speaking. After he reported the traditional opinion, he adds his own extension of the rule.] am saying that even for the borrower one does not estimate, and Abba agrees with me. Who is Abba? Rebbi [This certainly should read: “Rav”, who in the Babli is recorded as having ruled in an actual case that the borrower has to pay in full.] or Rabba bar Abuha [Rav Abba, a slightly younger contemporary of Samuel and, like Samuel, teacher of R. Naḥman bar Jacob.] . Rav Ḥisda said, this treats the main event as an accessory [Since the borrower has to pay for accidental damage, Ex. 22:13, it should be obvious that he has to pay in full by biblical standards. One cannot understand why Samuel would treat the case of the borrower as an appendix to the laws of torts.] . There came [Here the name of a Galilean Amora who adopted the positions of Rav Jehudah and Samuel is missing.] Rav Jehudah in the name of Samuel: One estimates neither for the thief nor for the robber nor for the borrower [The Babli, 11a and Bava meṣi‘a97a, comes to the opposite conclusion.] but only for damages, and watchmen fall under the rules of damages [As explained in the preceding paragraph.] .
[There exists a parallel text, from a different redaction, in Qiddušin1:4, Notes 466–468.] Rav Jehudah sent and asked Rebbi Eleazar: Does one estimate for the extortionist, the thief, and the robber? He anwered him: one estimates neither for the thief nor for the robber. From where that one does not estimate for them? Rebbi Abba bar Mamal said, “alive, he shall pay double [Ex. 22:3; the thief has to pay in full if he cannot return the stolen animal in the shape in which he stole it.] ;” alive, not dead. That refers to theft; from where for robbery? Rebbi Abin said, “he shall return the robbed object in the state in which he robbed it. [Lev. 5:23. The explanation adds one letter to the biblical text, changing the somewhat redundant description וְהֵשִׁיב אֶת־הַגְּזֵלָה אֲשֶׁר גָּזַל “let him return the robbed object which he robbed” into וְהֵשִׁיב אֶת־הַגְּזֵלָה כַּאֲשֶׁר גָּזַל “let him return the robbed object in the state in which he robbed it.”] ”
MISHNAH: [Compared to the Mishnah in the Babli and in the independent Mishnah mss., this Mishnah is very much abridged. The Halakhah in parts refers to the longer version. The Mishnah is explained in detail in the Tosephta 1:1.] Anything I am obligated to watch [E. g., cattle or a pit in the ground.] I did set up for damage claims. If I partially set up for damage claims I am liable for claims as if I had set up for any claims [If there was a shallow pit in the ground and a person came and deepened it to become a real danger, that person becomes liable for any damages caused by the pit.] . [Missing here: “Properties not subject to the laws of misappropriation of sancta,” i. e., the laws of restitution only apply to profane objects.] Properties of people of the covenant [Damages to Gentile property cannot be prosecuted in rabbinic court.] and private property, except for property belonging solely to the person responsible for the damage [Where usually the property owner cannot be sued.] ; but property common to the person suffering the damage and the person responsible for the damage [Who might have to share the cost of damages.] falls under the rules of restitution.
HALAKHAH: “Anything I am obligated to watch I did set up for damage claims,” etc. Rebbi Ḥiyya stated [Tosephta 1:1.] : This refers to cattle and pit. But he did not state “fire” [The same question in the Babli, 9b.] . Rebbi Jeremiah said, the fire set up for damage claims [If a person is injured by fire, even if the fire was started completely legally, he is treated as being injured by the direct action of the person starting the fire. This responsibility exceeds by far the responsibility of a rancher to watch his herd or of the person digging a pit in the public domain.] ? Rebbi Yose said, if the fire were [more than] damage claims, should he not accept warning according to this opinion and be whipped [Injuring another person is a criminal act subject to prosecution. We do not find that a person making a legal fire might be criminally prosecuted.] ? How is this? The fire in setting up for damage claims he accepts [responsibility] for damages, suffering, medical costs, loss of earning power, shame [These five kinds of payment are due for injuries suffered at the hands of another person, Mishnah 8:1; it is based on Ex. 21:19. “Suffering” means [payment for]bodily pain; “shame” refers to [payment for] mental anguish caused by loss of face.] [This is the excess liability which puts fire in a category different from cattle and pit.] .
“If I partially set up for damage claims” “as if I had set up for any claims.” This is the pit [Tosephta 1:1.] , as it was stated [Tosephta 6:8; Babli 10a (missing in Munich ms.), 51a.] : If somebody dug a pit ten handbreadths deep [Since it is stated later in the Halakhah that an animal might be killed if it falls into a pit ten handbreadths deep, it is clear that here it must be assumed that the first digger stopped short of a full ten handbreadths. The second digger then turned an obstacle which might cause damage into an obstacle which endangered the life of animals. In Tosephta and Babli one reads “nine handbreadths”.] and another came and deepened it another handbreadth, the latter is responsible. Rebbi [This also is the reading of the Babli and one Tosephta ms. In the Vienna ms. of the Tosephta and the editio princeps: R. Jehudah.] says, one goes after the latter in case of death and after the former for damages. Rebbi Isaac says: So is the baraita: After the latter in case of death and after both of them for damages [This is the Babli’s version of Rebbi’s statement. For material damage, anybody who digs in the public domain and does not securely cover the pit is liable for damages.] . If he dug [a pit] ten handbreadths deep and another person came, whitewashed and lined it, both of them are liable [Tosephta 6:9, Babli 51a.] . Is he liable because he whitewashed and lined it [In Mekhilta dR. Ismael Mišpaṭim 11, and Babli the second one is liable not because he improved the pit but because he did not cover it correctly when he had finished his work, as Ex. 21:33 states: “If somebody would open a pit or dig a pit without covering it.” Therefore, the last one to work on the pit is liable if he failed to cover it.] ? When he told him, whitewash this (house) [pit] [The text in brackets is that of the original scribe (correct); that in parentheses is the corrector’s, copied in editio princeps (incorrect).] and acquire it [By ḥazaqah, cf. Ketubot 5:5, Note 100.] , for Rebbi Immi said in the name of Rebbi Eleazar, the prevention of damages follows the rules of guarding an acquisition [Any transfer of property is at the same time transfer of liability for that property.] . Rebbi Simon said, explain it when he was digging in the dunes [Where a simple pit would have disappeared in a short time. The second person by installing permanent walls only created the danger.] . And it was stated: If each of them dug ten, or each one twenty, or each one a hundred, they are all liable [Tosephta 6:8; Babli 10a (missing in Munich ms.), 51a.] [In the Babylonian sources, one person digs ten, the next enlarges it two twenty, the third digs down to 100.] . How deep does it have to be [To require a cover to protect the digger from damage suits; Tosephta 6:12.] ? To be deadly, ten handbreadths [This is undisputed in both Talmudim. If an animal is killed falling into a pit less than ten handbreadths deep, it is purely a matter of material damage.] . To do damage, anything. Symmachos says [He disagrees only with the statement that any pothole in the public domain is cause for a damage suit; he requires a minimal size.] , three in depth and four in width. Rebbi Eleazar the caper grower says, the length of the animal which falls in. What means the length of the animal which falls in? Whether chicken or camel.
New paragraph. “Properties not subject to the laws of misappropriation of sancta. [Missing here: “Properties not subject to the laws of misappropriation of sancta,” i. e., the laws of restitution only apply to profane objects.] [The laws of torts are “between a man and his neighbor,” which exludes all Temple property and those sacrifices which do not remain the owner’s property.] ” As it was stated: “These properties [Since this baraita is not quoted elsewhere, it is not known what “these properties” are. Some commentators want to read הַנְּכָסִים שֶּׁחִלְּלוֹ “properties which he redeemed” (from the Temple administrator). This is very farfetched.] are acquired together with properties subject to the laws of misappropriation of sancta [Since the Temple acquires and sells property by monetary transaction without any other act of acquisition (Qiddušin 1:6), other property can be acquired together with Temple property under the same rules. For example, if the Temple treasurer sold some Temple property together with his own, the entire transaction is legal if done under Temple rules. Similarly, if a person acquires two animals, one dedicated as “Heaven’s property” (elevation, purification, or reparation offering) subject to the laws of misappropriation of sancta, the other as “simple sacrifice” (well-being sacrifice) which remains private property, the holier sacrifice determines the rules.] .” Rav Jehudah in the name of Samuel: This [He disagrees with the interpretation given and holds that the Mishnah means what it says; only sacrificial animals not under the laws of misappropriation of sancta are subject to the laws of torts.] follows Rebbi Yose the Galilean, as it was stated [Sifra Wayyiqra Dibbura Deḥoba Pereq 22(3); Babli Bava qama 12b–13a, Temurah 8a; a related text in Tosephta 7:21. Partial quotes in Bava batra123b, Qiddušin 52b, Sanhedrin 112a, Zebaḥim 114a, Bekhorot 53b.] : “ ‘He commits larceny before the Eternal [Lev. 5:21.] ,’ Rebbi Yose the Galilean says, this includes simple sancta [In the Babli: “Simple sancta which are his property.” The question raised is the status of firstlings and animal tithe, which are Heaven’s property in the hands of the rancher. Since Lev. 5:21 reads: “If a person sins, commits fraud against the Eternal, and lies against his fellow …” it perfectly describes wrongdoing involving simple sancta which in one action represents wrong both against the Eternal and one’s fellow man.] . Ben Azzai says, this includes well-being sacrifices [And all sacrifices following rules of well-being sacrifices, firstlings, and animal tithe. The firstling has to be given to a Cohen, the animal tithe is eaten by the rancher and his family in Jerusalem; in both cases the altar only receives the blood but no part of the meat.] . Abba Yose ben Dosai [Since this statement is already implied by the preceding one.] says, Ben Azzai said this only for the firstling [Animal tithes.] .” What is between them? He who says well-being sacrifices certainly include tithes [It seems that in the entire argument one should read “tithes” instead of “firstling” and vice versa. While the unblemished firstling at some time has to be handed over to a Cohen, as long as it is in the rancher’s hand it is his property and can be sold; but the unblemished animal tithe by its count becomes Heaven’s property and cannot be sold. The blemished firstling may be sold as food.] . But he who says tithes [It seems that in the entire argument one should read “tithes” instead of “firstling” and vice versa. While the unblemished firstling at some time has to be handed over to a Cohen, as long as it is in the rancher’s hand it is his property and can be sold; but the unblemished animal tithe by its count becomes Heaven’s property and cannot be sold. The blemished firstling may be sold as food.] excludes the firstling [It seems that in the entire argument one should read “tithes” instead of “firstling” and vice versa. While the unblemished firstling at some time has to be handed over to a Cohen, as long as it is in the rancher’s hand it is his property and can be sold; but the unblemished animal tithe by its count becomes Heaven’s property and cannot be sold. The blemished firstling may be sold as food.] . “Rebbi Simeon says, both most holy and simple sancta; about any sancta for which he is responsible if alienated [If a person vows “an animal” as sacrifice and anything happens to the animal designated as sacrifice, he is obligated to provide a replacement; he is responsible for its alienation. But if he vows “this animal” and anything happens to it, he is not obligated to provide a replacement; he is not responsible for its alienation. In Lev., the first kind of vow is called נֶדֶר “vow”, the second kind is נְדָבָה “free offering”.] , I am reading ‘against his neighbor and he lied [Lev. 5:21.] ’; but about any sancta for which he is not responsible if alienated, I am reading ‘against the Eternal and he lied’ ” [An anonymous baraita in the Babli, Bava meṣi‘a 58a/b. Debts towards Heaven have to be discharged at the rate of 125%; those towards one’s fellow man by the rate of 100%.] . Rav Huna said, both qualified and disqualified sancta [Which for some reason are not accepted by the altar.] , if he is responsible if alienated, even if they are for the Eternal [Most holy sacrifices which either are holocausts on the altar or whose meat is eaten by male Cohanim within the Temple precinct.] , I am reading “against his fellow and he denied”, but if he is not responsible if alienated [Even for well-being sacrifices, most of which is eaten by the donor’s family.] , I am reading “against the Eternal and he lied” but not “against his fellow and he lied”.
New paragraph. “Properties of people of the Covenant,” excluding cattle of a Jew which gored cattle of a Gentile [The Gentile cannot claim damages in a Jewish court. In particular, claims for half damages are only possible between Jewish parties; for all others it is all or nothing.] . “Private property,” excluding ownerless property. “Except for property belonging solely to the person responsible for the damage” who cannot be sued [Since any animal not belonging to the owner of the property is trespassing; the rancher does not have to interfere if his animals defend their territory.] . “But [the rules] apply to property common to the person suffering the damage and the person responsible for the damage.” Rebbi Jeremiah said, if it were stated “except for property belonging solely to the person responsible for the damage” and had stopped, I would have said that [responsibility applies] both to a common courtyard and to a courtyard belonging to neither party. Why did it state: “[the rules] apply to property common to the person suffering the damage and the person responsible for the damage” [Since this statement is already implied by the preceding one.] ? [To indicate] that it applies to the unpaid trustee, the borrower, the paid trustee, and the renter [These four entries do not refer to kinds of payments for damages but to the obligations of persons who hold other people’s property in case that property is lost, stolen, or damaged, as specified in Mishnah Bava meṣi‘a 7:9 (based on Ex. 22:6–12). The unpaid trustee does not pay if he can swear that he did not use the property; the borrower pays for everything; the paid trustee and the renter have to pay for what was lost or stolen but may swear that it was not their fault if the damage was caused by an act of God or forcible robbery.] [If somebody received an animal under the terms of one of the four kinds of trusteeship and that animal did damage, the owner is responsible.] . Rebbi Yose said, since it stated “except for property belonging solely to the person responsible for the damage”, would we not know that “[the rules] apply to property common to the person suffering the damage and the person responsible for the damage”? Why was it stated that “[the rules] apply to property common to the person suffering the damage and the person responsible for the damage”? To exclude a courtyard belonging to neither of them [The formulation “courtyard” instead of “property” indicates that in this case both animals are illegally in the place where the damage occurred.] . Some Tannaїm state: A condominium courtyard is obligated, a courtyard belonging to neither of them is free. Some Tannaїm state: Even a courtyard belonging to neither of them is obligated. He who says, a condominium courtyard is obligated, a courtyard belonging to neither of them is free, for it is written: “the best of his fields. [Ex. 22:4, speaking of damage inflicted by animals grazing (tooth) and trampling (foot). This paragraph only deals with damage caused by foot and tooth.] ” But he who says, even a courtyard belonging to neither of them is obligated, for it is written: “It ravages another person’s field. [Ex. 22:4, speaking of damage inflicted by animals grazing (tooth) and trampling (foot). This paragraph only deals with damage caused by foot and tooth.] ”
Rebbi Yasa in the name of Rebbi Joḥanan: A condominium courtyard is obligated [Based on the preceding paragraph and the following Tosephta, one would have expected “free”, not “obligated”. I. Lewy emends the text in this sense, but R. Eliahu Fulda notes: “I do not feel empowered to emend.”] . Rebbi Yasa said: and I deduced that from what Rebbi Hoshaia stated [Tosephta 1:9, Babli 14a.] : Four principles about damages Rebbi Simeon ben Eleazar enunciated in Rebbi Meїr’s name: Any place which is permitted to both the person who sustained the damage and the person who caused it, such as a hostelry or a condominium courtyard and similar situations, he is not liable for tooth and foot; for goring, and hitting, and biting, and wallowing, and kicking, and pushing by a tame animal he pays half the damages, for a notorious one he pays full damages from [real estate] of the best quality. [Permitted] to the person who sustained the damage but not the person who caused it, he pays everyting. [Permitted] to the person who caused the damage but not the person who sustained it, he is free from everything. And everybody agrees that if neither of them had access, as a valley [בקעה “valley” is agricultural land accessible only by footpaths, without roadway. During the growing season it is clear that the only animals allowed there are the owners’ beasts used for agricultural work; one has to assume that the Tosephta refers to the time between harvest and new ploughing. In both Babylonian texts, the “valley” is classified as permitted to both parties.] or public property [It is difficult to understand what is meant; in both Babylonian texts, “public domain” is classified as permitted to both parties. One has to assume that what is meant is neither a public road nor commons, but public property barred to private animals, such as a park. In the Babylonian texts, the sentence refers to a courtyard owned by a third party.] and similar situations, he is not liable [In both Babylonian texts: “is liable”.] for tooth and foot; for goring, and hitting, and biting, and wallowing, and kicking, and pushing from a tame animal he pays half the damages [It has no history of attacking other animals. The owner only has to pay half the damage caused.] , for a notorious one he pays full damages from his storage room [For which full damages have to be paid.] .
MISHNAH: Estimation [The estimation of the damage sustained.] and determination [The determination of the value of land which the person liable for the damage has to pay.] of money’s worth is by a court based on testimony of free persons of the Covenant. Women are under the rule of torts [In contrast to minors and slaves who cannot be sued.] and sometimes both the person who causes and the one who suffers the damage pay [In cases of damage through goring by a tame animal, when the owner of the animal only pays for half the damage. This is considered a fine; a restitution would be payment of full damages; the rules of fines do not apply to Gentiles.] .
HALAKHAH: “Estimation and determination of money’s worth,” etc. [The Halakhah is a parallel, shorter version of Tosephta 1:2,3 and parallel beraitot in the Babli, 14b, 15a.] One does not say that a cow be compensated for by a stole [In Tosephta and Babli (and a Genizah fragment of the Yerushalmi): “a cow is compensated for by a stole and a stole by a cow”, explained in the Babli that the stole injured the cow and the cow tore the stole. This sentence is only an amplification of the expression “estimation of money’s worth”.] , but one appraises all property in court. “Money’s worth,” this teaches that the court only appraises mortgageable property [The Babli, 14b, after a lengthy discussion comes to the conclusion that “money’s worth” in contrast to “money” means real estate whose value can only be established by appraisal, not by barter.] . But if the person suffering damage appropriated movables, one appraises those [The two Babylonian sources point out that in case the person liable for damages had died, the injured party is absolutely barred from appropriating movables from the estate.] . “By a court”, this teaches that one only appraises in court [The two Babylonian sources insist that the only court competent in the matter is the permanent court of the community. This interpretation also has to be accepted in the Yerushalmi since imposing fines is restricted to judges qualified to sit in criminal cases.] . “Based on testimony”, for one only appraises by testimony [Since payment of half the damages has the status of a fine, not of restitution, the court cannot recognize an admission of liability by either of the parties since “nobody can be sentenced to a fine based on his confession” (Babli 14b).] . “Of free persons of the Covenant”, this excludes Gentiles, and slaves, and persons disqualified for testimony [While the same statement is also found in the Tosephta, it is clear that people disqualified for testimony, such as professional gamblers, are excluded by the requirement of testimony in court.] . “Women are under the rule of torts”; since the verse [Ex. 21–22.] speaks only of men, it is necessary to include women: Rebbi Ismael stated, “these are the laws which you shall put before them [The introductory sentence, Ex.21:1, is formulated gender neutral. In the Babli, 15b, this argument is attributed to R. Eleazar.] ” “And sometimes [It has no history of attacking other animals. The owner only has to pay half the damage caused.] both the person who causes and the one who suffers the damage pay”; they pay half the damage. From here, that one splits the damage; each one loses half the value of the damage.
MISHNAH: Five harmless [Domesticated animals (cattle, sheep, or goats) are not supposed to be agressive unless known to be so. The shephard is not required to watch the animals as if they were ready to be agressive. Even if it is known that an animal is prone to bite, one need not assume that it also will gore, hit with its body, kick with its feet, or lie down on other animals or vessels in order to cause damage. For each one of these categories, the danger from the animal has to be established separately; otherwise the owner only pays half of the damage caused.] and five notorious animals. An animal is not known to gore, nor to hit, nor to bite, nor to lie down, nor to kick. The tooth is known to eat what is appropriate for it [If a shepherd leads his flock through a market place, he must assume that his animals will eat any fruit or vegetables near them when they pass by, and he has to take appropriate precautions or pay full damages. But he does not have to assume that his animals will start to eat clay vessels or other inedible matter. A sentence is missing here, found in E, the Mishnah in the Babli, and the independent Mishnah: “The foot is notorious to break anything in its way.” As the Mishnah stands here, there are only four categories of notorious sources of damage.] . A notorious bull, a bull of the person who causes the damage on the property of the person who suffered the damage, and the human [These three categories pay full damages under any circumstances.] .
HALAKHAH: “Five harmless and five notorious animals,” etc. Rebbi Joḥanan said, this [That any damage caused in another person’s domain has always to be paid in full. The quote is from Mishnah 2:7. In the Babli, 15b, the statement is attributed to Samuel who takes pains to make clear that the first half of the Mishnah not be in dispute.] follows Rebbi Ṭarphon: “In the domain of the person sustaining the damage, Rebbi Ṭarphon said, full damages; but the Sages say, half damages.”
MISHNAH: The wolf and the lion, the bear, and the tiger [As in Arabic, the word denotes leopard, panther, or tiger, i. e., a predator with a striped or dotted fur.] , and the panther [Most moderns identify the word as Greek πάρδαλις “panther”, Arabic ابرد. Rashi everywhere translates putois “pole cat”. In the Babli, 16a, Rav Jehudah translates ברדלס by נפריזא which the later Rav Joseph explains as אפא, ὕαινα ὄφις “hyena-snake”. The latter explanation is excluded here by the Halakhah.] , and the snake, are notorious [The owner of dangerous pets is always 100% responsible.] . Rebbi Eliezer says, when they are trained [Trained circus performers.] they are not notorious; except for the snake which always is notorious [The snake charmer does not control his snakes the way a trainer controls his performing animals.] . What is the difference between tame and notorious? The tame pays half the damages from its body [Ex. 21:35: “They shall sell the bovine and split the money.”] and the notorious pays full damages from the storage room [I. e., from the owner’s valuables if he does not have enough cash.] .
HALAKHAH: “The wolf, and the lion, and the bear,” etc. It was stated [Tosephta 1:4; Babli 16a.] : Rebbi Meїr says, also the hyena. Rebbi Yose ben Rebbi Abin said, Rebbi Meїr only said this for a male hyena which at times is as dangerous as a lion.