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Babylonian Talmud: Tractate Baba Kamma
is guilty of murder: R. Judah b. Bathyra, however says: If consecutively the last is liable, for he was the immediate cause of the death.1 In the case where an ox meanwhile appeared and caught the [falling] child on its horns there is a difference of opinion between R. Ishmael the son of R. Johanan b. Beroka and the Rabbis.2 For it was taught: Then he shall give for the redemption of his life3 [denotes] the value of the [life of] the killed person. R. Ishmael the son of R. Johanan b. Beroka interprets it to refer to the value of the [life of] the defendant.2
Rabbah further said: In the case of one falling from the top of the roof and [doing damage by] coming into close contact with a woman, there is liability for four items,4 though were she his deceased brother's wife5 he would thereby not yet have acquired her for wife.6 The Four Items [in this case] include: Depreciation, Pain, Medical Expenses and Loss of Time, but not Degradation. for we have learnt:7 There is no liability for Degradation unless there is intention [to degrade].
Rabbah further said: In the case of one who through a wind of unusual occurrence fell from the top of the roof [upon a human being] and did damage as well as caused degradation, there will be liability for Depreciation8 but exemption from the [additional] Four Items:9 if, however, [the fall had been] through a wind of usual occurrence and damage as well as degradation was occasioned, there is liability for Four Items4 but exemption from Degradation.7 If he turned over [while falling]10 there would be liability also for Degradation for it was taught: From the implication of the mere statement, And she putteth forth her hand,11 would I not have understood that she taketh him? Why then continue in the text and she taketh him?12 — In order to inform you that since there existed an intention to injure though none to cause degradation [there is liability even for Degradation].
Rabbah again said: In the case of one placing a live coal on a neighbour's heart and death resulting, there is exemption;13 if, however, it was put upon his belongings14 which were [thereby] burnt, there is liability.15 Raba said: Both of the two [latter cases] have been dealt with in Mishnah. Regarding the case 'on a neighbour's heart' we learnt:16 If one man held another fast down in fire or in water, so that it was impossible for him to emerge and death resulted, he is guilty [of murder]. If, however, he pushed him into fire or into water, and it was yet possible for him to emerge but death resulted, there is exemption. Regarding the case 'Upon his belongings' we have similarly learnt:17 [If a man says to another,] 'Tear my garment;' 'Break my jug;'18 there is nevertheless liability [for any damage done to the garment or to the jug]. But if he said, '… upon the understanding that you will incur no liability,' there is exemption. Rabbah, however, asked: If a man placed a live coal upon the heart of a slave19 [and injury20 results therefrom], what should be the law?21 Does it come under the law applicable in the case of a coal having been placed upon the body of the master himself,22 or to that applicable in the case of a coal having been placed upon a chattel of his?23 Assuming that it is subject to the law applicable in the case of a coal having been placed upon the heart of the master himself,22 what should be the law regarding a live coal placed upon an ox [from which damage resulted]? — He himself answered the query thus: His slave is on a par with his own body,22 whereas his ox is on a par with his chattels.23
MISHNAH. IF A MAN PLACES A [KAD] PITCHER ON PUBLIC GROUND AND ANOTHER ONE COMES AND STUMBLES OVER IT AND BREAKS IT, HE IS EXEMPT. IF THE OTHER ONE WAS INJURED BY IT, THE OWNER OF THE [HABITH] BARREL IS LIABLE TO COMPENSATE FOR THE DAMAGE.
GEMARA. To commence with PITCHER24 and conclude with BARREL!25 And we have likewise learnt also elsewhere:26 If one man comes with his [habith] barrel and another comes with his beam and [it so happened that] the [kad] pitcher of this one breaks by [collision with] the beam of that one, he is exempt.26 Here [on the other hand] the commencement is with barrel25 and the conclusion with pitcher!24 We have again likewise learnt elsewhere: In the case of this man coming with a [habith] barrel of wine and that one proceeding with a [kad] pitcher of honey, and as the [habith] barrel of honey cracked, the owner of the wine poured out his wine and saved the honey into his barrel, he is entitled to no more than his service.27 Here again the commencement is with pitcher25 and the conclusion with barrel!25 R. Papa thereupon said: Both kad and habith may denote one and the same receptacle. But what is the purpose in this observation?28 — Regarding buying and selling.29 But under what circumstances? It could hardly be thought to refer to a locality where neither kad is termed habith nor habith designated kad, for are not these two terms then kept there distinct? — No, it may have application in a locality where, though the majority of people refer to kad by the term kad and to habith by the term habith, yet there are some who refer to habith by the term kad and to kad by the term habith. You might perhaps have thought that the law30 follows the majority.31
Baba Kamma 27b
AND ANOTHER ONE COMES AND STUMBLES OVER IT AND BREAKS IT, HE IS EXEMPT. Why exempt? Has not one to keep one's eyes open when walking? — They said at the school of Rab, even in the name of Rab: The whole of the public ground was filled with barrels.3 Samuel said: It is with reference to a dark place that we have learnt [the law in the Mishnah]. R. Johanan said: The pitcher was placed at the corner of a turning.4 R. Papa said: Our Mishnah is not consistent unless in accordance with Samuel or R. Johanan, for according to Rab why exemption only in the case of stumbling [over the pitcher]? Why not the same ruling even when one directly broke it? — R. Zebid thereupon said in the name of Raba: The same law applies even when the defendant directly broke it; for AND STUMBLES was inserted merely because of the subsequent clause which reads, IF THE OTHER ONE WAS INJURED BY IT, THE OWNER OF THE BARREL IS LIABLE TO COMPENSATE FOR THE DAMAGE; and which of course applies only to 'stumbling' but not to direct breaking, in which case it only stands to reason that it is the plaintiff who is to blame for the damage he caused to himself. It was therefore on this account that 'stumbling' was inserted in the commencing clause.
R. Abba said to R. Ashi: In the West5 the following [explanation] is stated in the name of R. 'Ulla: [The exemption6 is] because it is not the habit of men to look round while walking on the road.7 Such a case occurred in Nehardea8 where Samuel ordered compensation [for the broken utensil] and so also in Pumbeditha8 where Raba similarly ordered compensation to he paid. We understand this in the case of Samuel who abided by the dictum he himself propounded,9 but regarding Raba are we to say that he [also] embraced the view of Samuel? — R. Papa thereupon said: [In the case of Raba] the damage was done at the corner of an oil factory; and since it was usual to keep there barrels, he10 ought to have kept his eyes open while walking there.11
R. Hisda dispatched [the following query] to R. Nahman: As there has already been fixed a fine12 of three sela's13 for kicking with the knee; five for kicking with the foot; thirteen for a blow with the saddle of an ass — what is the fine for wounding with the blade of the hoe or with the handle of the hoe? — The reply was forwarded [as follows]: 'Hisda, Hisda! Is it your practice in Babylon to impose fines?14 Tell me the actual circumstances of the case as it occurred.' He15 thereupon dispatched him thus: There was a well belonging to two persons. It was used by them on alternate days.16 One of them, however, came and used it on a day not his. The other party said to him: 'This day is mine!' But as the latter paid no heed to that, he took a blade of a hoe and struck him with it. R. Nahman thereupon replied: No harm if he would have struck him a hundred times with the blade of the hoe. For even according to the view that a man may not take the law in his own hands17 for the protection of his interests, in a case where an irreparable loss is pending18 he is certainly entitled to do so.
It has indeed been stated: Rab Judah said: No man may take the law into his own hands for the protection of his interests, whereas R. Nahman said: A man may take the law into his own hands for the protection of his interests. In a case where an irreparable loss is pending, no two opinions exist that he may take the law into his own hands for the protection of his interests: the difference of opinion is only where no irreparable loss is pending. Rab Judah maintains that no man may take the law into his own hands for the [alleged] protection of his interests, for since no irreparable loss is pending let him resort to the Judge; whereas R. Nahman says that a man may take the law into his own hands for the protection of his interests, for since he acts in accordance with [the prescriptions of the] law, why [need he] take the trouble [to go to Court]?
R. Kahana [however] raised an objection; Ben Bag Bag said;19 Do not enter [stealthily] into thy neighbour's premises for the purpose of appropriating without his knowledge anything that even belongs to thee, lest thou wilt appear to him as a thief. Thou mayest, however, break his teeth and tell him, 'I am taking possession of what is mine.'20 [Does not this prove that a man may take the law into his own hands21 for the protection of his rights?22] — He23 thereupon said
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