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Babylonian Talmud: Tractate Baba Kamma
INFER HORN [DOING DAMAGE ON THE PLAINTIFF'S PREMISES] FROM HORN [DOING DAMAGE ON PUBLIC GROUND]; I INFER HORN FROM FOOT: SEEING THAT IN THE CASE OF PUBLIC GROUND THE LAW, THOUGH LENIENT WITH REFERENCE TO TOOTH AND FOOT, IS NEVERTHELESS STRICT REGARDING HORN, IN THE CASE OF THE PLAINTIFF'S PREMISES, WHERE THE LAW IS STRICT WITH REFERENCE TO TOOTH AND FOOT, DOES IT NOT STAND TO REASON THAT WE SHOULD APPLY THE SAME STRICTNESS TO HORN? THEY, HOWEVER, STILL ARGUED: IT IS QUITE SUFFICIENT IF THE LAW IN RESPECT OF THE THING INFERRED IS1 EQUIVALENT TO THAT FROM WHICH IT IS DERIVED.2 JUST AS FOR DAMAGE DONE ON PUBLIC GROUND THE COMPENSATION [IN THE CASE OF HORN] IS HALF, SO ALSO FOR DAMAGE DONE ON THE PLAINTIFF'S PREMISES, THE COMPENSATION SHOULD NOT BE MORE THAN HALF.
GEMARA. Does R. Tarfon really ignore the principle of Dayyo?3 Is not Dayyo of Biblical origin as taught:4 How does the rule of Kal wa-homer5 work? And the Lord said unto Moses, If her father had but spit in her face, should she not be ashamed seven days?6 How much the more so then in the case of divine [reproof] should she be ashamed fourteen days? Yet the number of days remains seven, for it is sufficient if the law in respect of the thing inferred7 be equivalent to that from which it is derived!8 — The principle of Dayyo is ignored by him [R. Tarfon] only when it would defeat the purpose of the a fortiori,9 but where it does not defeat the purpose of the a fortiori, even he maintains the principle of Dayyo. In the instance quoted there is no mention made at all of seven days in the case of divine reproof; nevertheless, by the working of the a fortiori, fourteen days may be suggested: there follows, however, the principle of Dayyo so that the additional seven days are excluded, whilst the original seven are retained. Whereas in the case before us10 the payment of not less than half damages has been explicitly ordained [in all kinds of premises]. When therefore an a fortiori is employed, another half-payment is added [for damage on the plaintiff's premises], making thus the compensation complete. If [however] you apply the principle of Dayyo, the sole purpose of the a fortiori would thereby be defeated.11 And the Rabbis?12 — They argue that also in the case of divine [reproof] the minimum of seven days has been decreed in the words: Let her be shut out from the camp seven days.13 And R. Tarfon?14 — He maintains that the ruling in the words, 'Let her be shut out etc.', is but the result of the application of the principle of Dayyo15 [decreasing the number of days to seven]. And the Rabbis? — They argue that this is expressed in the further verse: And Miriam was shut out from the camp.16 And R. Tarfon? — He maintains that the additional statement was intended to introduce the principle of Dayyo for general application so that you should not suggest limiting its working only to that case where the dignity of Moses was involved, excluding thus its acceptance for general application: it has therefore been made known to us [by the additional statement] that this is not the case.
R. Papa said to Abaye: Behold, there is a Tanna who does not employ the principle of Dayyo even when the a fortiori would thereby not be defeated, for it was taught: Whence do we know that the discharge of semen virile in the case of zab17 causes defilement [either by 'touching' or by 'carrying']?18 It is a logical conclusion: For if a discharge19 that is clean in the case of a clean person is defiling in the case of zab,20 is it not cogent reasoning that a discharge21 which is defiling in the case of a clean person,22 should defile in the case of zab? Now this reasoning applies to both 'touching' and 'carrying',23 But why not argue that the a fortiori serves a useful purpose in the case of 'touching', whilst the principle of Dayyo can be employed to exclude defilement by mere 'carrying'?24 If, however, you maintain that regarding 'touching' there is no need to apply the a fortiori on the ground that [apart from all inferences] zab could surely not be less defiling than an ordinary clean person,25 my contention is [that the case may not be so, and] that the a fortiori may [still] be essential. For I could argue: By reason of uncleanness that chanceth him by night26 is stated in Scripture to imply that the law of defilement applies only to those whose uncleanness has been occasioned solely by reason of their discharging semen virile, excluding thus zab, whose uncleanness has been occasioned not [solely] by his discharging semen virile but by another cause altogether.27 May not the a fortiori thus have to serve the purpose of letting us know that zab is not excluded?28 — But where in the verse is it stated that the uncleanness must not have [concurrently] resulted also from any other cause?29
Who is the Tanna whom you may have heard maintain that semen virile of zab causes [of itself] defilement by mere 'carrying'? He could surely be neither R. Eliezer, nor R. Joshua, for it was taught:30 The semen virile of zab causes defilement by 'touching', but causes no defilement by mere 'carrying'. This is the view of R. Eliezer. R. Joshua, however, maintains that it also causes defilement by mere 'carrying', for it must necessarily contain particles of gonorrhoea.31 Now, the sole reason there of R. Joshua's view is that semen virile cannot possibly be altogether free from particles of gonorrhoea, but taken on its own it would not cause defilement. The Tanna who maintains this32 must therefore be he who is responsible for what we have learnt: More severe than the former [causes of defilement]33
Baba Kamma 25b
are the gonorrhoeal discharge of zab, his saliva, his semen virile, his urine and the blood of menstruation, all of which defile whether by 'touching' or by mere 'carrying'.1 But why not maintain that the reason here is also because the semen virile of zab cannot possibly be altogether free from particles of gonorrhoea? — If this had been the reason, semen virile should have been placed in juxtaposition to gonorrhoeal discharge. Why then was it placed in juxtaposition to saliva if not on account of the fact that its causing defilement is to be inferred from the law applicable to his saliva?2
R. Aha of Difti said to Rabina: Behold there is this Tanna who does not employ the principle of Dayyo even when the purpose of the a fortiori would thereby not be defeated. For it was taught: Whence do we learn that mats3 become defiled if kept within the tent where there is a corpse? — It is a logical conclusion: For if tiny [earthenware] jugs that remain undefiled by the handling of zab4 become defiled when kept within the tent where there is a corpse,5 does it not follow that mats, which even in the case of zab become defiled,6 should become defiled when kept within the tent where there is a corpse.7 Now this reasoning applies not only to the law of defilement for a single day,8 but also to defilement for full seven9 [days]. But why not argue that the a fortiori well serves its purpose regarding the defilement for a single day,10 whilst the principle of Dayyo is to be employed to exclude defilement for seven days? — He [Rabina] answered him: The same problem had already been raised by R. Nahman b. Zachariah to Abaye, and Abaye answered him that it was regarding mats in the case of a dead reptile11 that the Tanna had employed the a fortiori, and the text should run as follows: 'Whence do we learn that mats12 coming in contact with dead reptiles13 become defiled? It is a logical conclusion: for if tiny [earthenware] jugs that remain undefiled by the handling of zab,14 become defiled when in contact with dead reptiles,15 does it not follow that mats which even in the case of zab become defiled,16 should become defiled by coming in contact with dead reptiles?' But whence the ruling regarding mats17 kept within the tent of a corpse? — In the case of dead reptiles it is stated raiment or skin,15 while in the case of a corpse it is also stated, raiment … skin:18 just as in the case of raiment or skin stated in connection with dead reptiles,15 mats [are included to] become defiled, so is it regarding raiment … skin stated in connection with a corpse18 that mats similarly become defiled. This Gezerah shawah19 must necessarily be 'free',20 for if it were not 'free' the comparison made could be thus upset: seeing that in the case of dead reptiles [causing defilement to mats], their minimum for causing uncleanness is the size of a lentil,21 how can you draw an analogy to corpses where the minimum to cause uncleanness is not the size of a lentil but that of an olive?22 — The Gezerah shawah must thus be 'free'. Is it not so? For indeed the law regarding dead reptiles is placed in juxtaposition to semen virile as written, Or a man whose seed goeth from him,23 and there immediately follows, Or whosoever toucheth any creeping thing. Now in the case of semen virile it is explicitly stated, And every garment, and every skin, whereon is the seed of copulation.24 Why then had the Divine Law to mention again raiment or skin in the case of dead reptiles?25 It may thus be concluded that it was [inserted] to be 'free' [for exegetical purposes].26 Still it has so far only been proved that one part [of the Gezerah shawah]27 is 'free'. This would therefore be well in accordance with the view maintaining28 that when a Gezerah shawah is 'free', even in one of its texts only, an inference may be drawn and no refutation will be entertained. But according to the view holding29 that though an inference may be drawn in such a case, refutations will nevertheless be entertained, how could the analogy [between dead reptiles and corpses] be maintained?30 — The verbal congruity in the text dealing with corpses is also 'free'. For indeed the law regarding corpses is similarly placed in juxtaposition to semen virile, as written, And whoso toucheth any thing that is unclean by the dead or a man whose seed goeth from him etc.23 Now in the case of semen virile it is explicitly stated, And every garment, and every skin, whereon is the seed of copulation. Why then had the Divine Law to mention again raiment … skin in the case of corpses?31 It may thus be concluded that it was [inserted] to be 'free' for exegetical purposes.26 The Gezerah shawah is thus 'free' in both texts. Still this would again be only in accordance with the view maintaining32 that when an inference is made by means of reasoning [from an analogy] the subject of the inference is placed back on its own basis.33 But according to the view that when an inference is made [by means of an analogy] the subject of the inference must be placed on a par with the other in all respects, how can you establish the law [that mats kept in the tent of a corpse become defiled for seven days,34 since you infer it from dead reptiles where the defilement is only for the day]?35 — Said Raba: Scripture states, And ye shall wash your clothes on the seventh day,36 to indicate that all defilements in the case of corpses cannot be for less than for seven [days].
But should we not let Tooth and Foot involve liability for damage done [even] on public ground because of the following a fortiori: If in the case of Horn37 where [even] for damage done on the plaintiff's premises only half payment is involved, there is yet liability to pay for damage done on public ground, does it not necessarily follow that in the case of Tooth and Foot where for damage done on the plaintiff's premises the payment is in full, there should be liability for damage done on public ground? — Scripture, however, says, And it shall feed in another man's field,38 excluding thus [damage done on] public ground.
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