Bava Kamma 3

הַמַּנִּיחַ אֶת הַכַּד בִּרְשׁוּת הָרַבִּים וּבָא אַחֵר וְנִתְקַל בָּהּ וּשְׁבָרָהּ, פָּטוּר. וְאִם הֻזַּק בָּהּ, בַּעַל הֶחָבִית חַיָּב בְּנִזְקוֹ. נִשְׁבְּרָה כַדּוֹ בִּרְשׁוּת הָרַבִּים, וְהֻחְלַק אֶחָד בַּמַּיִם, אוֹ שֶׁלָּקָה בַחֲרָסֶיהָ, חַיָּב. רַבִּי יְהוּדָה אוֹמֵר, בְּמִתְכַּוֵּן, חַיָּב. בְּאֵינוֹ מִתְכַּוֵּן, פָּטוּר:

If one places a pitcher in the public domain, and another comes and trips upon it and breaks it, he (the one who broke it) is not liable, [for men (i.e., pedestrians) are not wont to look upon the ground]. And if he were injured by it, the owner of the pitcher is liable for his injury [even if he had renounced ownership of it. For if one renounces ownership of objects that can cause injury, which he had no right to make (i.e., to place there) in the beginning, it is as if he had not renounced ownership of them.] If (he tripped and) his pitcher broke in the public domain, and someone slipped on the water or were injured by its shards, he is liable. [For he (this tanna) holds that tripping is (to be regarded as ) dereliction, and not as accident, for which reason he is liable.] R. Yehudah says: If he has intent [to acquire the shards and the water after his pitcher is broken], he is liable [for the damage that they cause, for it is his bor that caused the damage], but if he does not have intent [to acquire them, then, since they originated in an accident (R. Yehudah holding that tripping is not dereliction), the shards and the water are (regarded as) hefker (renounced) after the accident, and] he is not liable. [The halachah is in accordance with R. Yehudah, that tripping is not (regarded as) dereliction. And since it is (regarded as) accident, and he had no intent to acquire the shards and the water, it is as if they never belonged to him and he is not liable for the damage they cause.]

הַשּׁוֹפֵךְ מַיִם בִּרְשׁוּת הָרַבִּים, וְהֻזַּק בָּהֶן אַחֵר, חַיָּב בְּנִזְקוֹ. הַמַּצְנִיעַ אֶת הַקּוֹץ, וְאֶת הַזְּכוּכִית, וְהַגּוֹדֵר אֶת גְּדֵרוֹ בְּקוֹצִים, וְגָדֵר שֶׁנָּפַל לִרְשׁוּת הָרַבִּים, וְהֻזְּקוּ בָהֶן אֲחֵרִים, חַיָּב בְּנִזְקָן:

If one spills water into the public domain, and another is injured by it, he is liable for his injury. [Even if he is permitted to do so, as in the rainy season, when it is permitted to spill water into the public domain, still, if another were injured by it, he is liable for his injury.] If one secretes thorns or glass [in the public domain], or if one studs his fence with thorns [so that they project into the public domain (but if he keeps them within his domain and another is injured by them, he is not liable, for men are not wont to rub themselves against walls)], or if his fence fell into the public domain and others were injured by it, he is liable.

הַמּוֹצִיא אֶת תִּבְנוֹ וְאֶת קַשּׁוֹ לִרְשׁוּת הָרַבִּים לִזְבָלִים, וְהֻזַּק בָּהֶן אַחֵר, חַיָּב בְּנִזְקוֹ, וְכָל הַקּוֹדֵם בָּהֶן זָכָה. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר, כָּל הַמְקַלְקְלִין בִּרְשׁוּת הָרַבִּים וְהִזִּיקוּ, חַיָּבִין לְשַׁלֵּם, וְכָל הַקּוֹדֵם בָּהֶן זָכָה. הַהוֹפֵךְ אֶת הַגָּלָל בִּרְשׁוּת הָרַבִּים, וְהֻזַּק בָּהֶן אַחֵר, חַיָּב בְּנִזְקוֹ:

If one takes his hay and straw out to the public domain for fertilizer, [i.e., so that it decay and become fertilizer for fields or vineyards], and another is injured thereby, he is liable for his injury. And whoever is first (to take them) acquires them, [the rabbis having penalized him.] R. Shimon b. Gamliel says: All who spoil the public domain, [even if they do so licitly (as in the time when fertilizer is taken out)], if injury is caused thereby, they must pay; and whoever is first (to take the things put there) acquires them. If one turns over animal dung in the public domain, and another is injured thereby, he is liable for his injury.

שְׁנֵי קַדָּרִין שֶׁהָיוּ מְהַלְּכִין זֶה אַחַר זֶה, וְנִתְקַל הָרִאשׁוֹן וְנָפַל, וְנִתְקַל הַשֵּׁנִי בָּרִאשׁוֹן, הָרִאשׁוֹן חַיָּב בְּנִזְקֵי שֵׁנִי:

If two potters were walking, one behind the other, and the first tripped and fell, and the second tripped over the first, the first is liable for the injury of the second. [This, in an instance where the first could have risen and did not do so, in which instance he is derelict. But if he could not have risen, he is not liable, the ruling being that tripping is not dereliction.]

זֶה בָּא בְחָבִיתוֹ, וְזֶה בָּא בְקוֹרָתוֹ, נִשְׁבְּרָה כַדּוֹ שֶׁל זֶה בְּקוֹרָתוֹ שֶׁל זֶה, פָּטוּר, שֶׁלָּזֶה רְשׁוּת לְהַלֵּךְ וְלָזֶה רְשׁוּת לְהַלֵּךְ. הָיָה בַעַל קוֹרָה רִאשׁוֹן, וּבַעַל חָבִית אַחֲרוֹן, נִשְׁבְּרָה חָבִית בַּקּוֹרָה, פָּטוּר בַּעַל הַקּוֹרָה. וְאִם עָמַד בַּעַל הַקּוֹרָה, חַיָּב. וְאִם אָמַר לְבַעַל הֶחָבִית עֲמֹד, פָּטוּר. הָיָה בַעַל חָבִית רִאשׁוֹן וּבַעַל קוֹרָה אַחֲרוֹן, נִשְׁבְּרָה חָבִית בַּקּוֹרָה, חַיָּב. וְאִם עָמַד בַּעַל חָבִית, פָּטוּר. וְאִם אָמַר לְבַעַל קוֹרָה עֲמֹד, חַיָּב. וְכֵן זֶה בָא בְנֵרוֹ וְזֶה בְפִשְׁתָּנוֹ:

If one were coming with his pitcher, and the other, with his beam, and the pitcher of the first were broken by the beam of the second, he is not liable, for both are permitted to walk there. If the beam carrier were (walking) ahead, and the pitcher carrier, behind him, and the pitcher were broken by the beam, the beam carrier is not liable, [for he was walking at a normal pace and the other was rushing.] And if the beam carrier stopped, he is liable. And if he told the pitcher carrier to stop, he is not liable. If the pitcher carrier were (walking) ahead, and the beam carrier behind, and the pitcher were broken by the beam, he is liable. And if the pitcher carrier stopped, he is not liable. And if he told the beam carrier to stop, he is liable. The same applies with one coming with his lamp and another with his flax.

שְׁנַיִם שֶׁהָיוּ מְהַלְּכִין בִּרְשׁוּת הָרַבִּים אֶחָד רָץ וְאֶחָד מְהַלֵּךְ, אוֹ שֶׁהָיוּ שְׁנֵיהֶם רָצִים, וְהִזִּיקוּ זֶה אֶת זֶה, שְׁנֵיהֶם פְּטוּרִין:

If two were walking in the public domain, one walking and one running. Or if two were running and they injured each other, both are not liable. [Our Mishnah is defective. This is what was taught: If one were running and the other walking on the eves of Sabbaths or festivals, or if both were running on the other days of the year, both are not liable. For on the eves of Sabbaths and festivals, one who runs is authorized to do so, running as he does for the sake of a mitzvah, to prepare his Sabbath and festival needs, wherefore he is not liable. And on the other days of the year, when they both run, since both are deviating from the norm, they are both not liable.]

הַמְבַקֵּעַ בִּרְשׁוּת הַיָּחִיד וְהִזִּיק בִּרְשׁוּת הָרַבִּים, בִּרְשׁוּת הָרַבִּים וְהִזִּיק בִּרְשׁוּת הַיָּחִיד, בִּרְשׁוּת הַיָּחִיד וְהִזִּיק בִּרְשׁוּת הַיָּחִיד אַחֵר, חַיָּב:

If one were chopping [wood] in a private domain and he caused damage in the public domain; in the public domain, and he caused damage in a private domain [of others]; in a private domain [his own], and he caused damage in a different private domain, he is liable. [Even though he does so in his own domain and many are not found there that we should say he should have been careful, still, he is liable.]

שְׁנֵי שְׁוָרִים תַּמִּים שֶׁחָבְלוּ זֶה אֶת זֶה, מְשַׁלְּמִים בַּמּוֹתָר חֲצִי נֶזֶק. שְׁנֵיהֶם מוּעָדִים, מְשַׁלְּמִים בַּמּוֹתָר נֶזֶק שָׁלֵם. אֶחָד תָּם וְאֶחָד מוּעָד, מוּעָד בַּתָּם מְשַׁלֵּם בַּמּוֹתָר נֶזֶק שָׁלֵם, תָּם בַּמּוּעָד מְשַׁלֵּם בַּמּוֹתָר חֲצִי נֶזֶק. וְכֵן שְׁנֵי אֲנָשִׁים שֶׁחָבְלוּ זֶה בָזֶה, מְשַׁלְּמִים בַּמּוֹתָר נֶזֶק שָׁלֵם. אָדָם בְּמוּעָד וּמוּעָד בְּאָדָם, מְשַׁלֵּם בַּמּוֹתָר נֶזֶק שָׁלֵם. אָדָם בְּתָם וְתָם בְּאָדָם, אָדָם בְּתָם מְשַׁלֵּם בַּמּוֹתָר נֶזֶק שָׁלֵם, תָּם בְּאָדָם מְשַׁלֵּם בַּמּוֹתָר חֲצִי נֶזֶק. רַבִּי עֲקִיבָא אוֹמֵר, אַף תָּם שֶׁחָבַל בְּאָדָם, מְשַׁלֵּם בַּמּוֹתָר נֶזֶק שָׁלֵם:

Two oxen, tamim, which injured each other, pay a half-nezek of the excess. [They estimate the excess of one over the other, and the one that caused the greater damage pays a half of that excess.] Both of them muadim — they pay a full nezek of the excess. One a tam; the other, a muad — the muad in the tam [i.e., if it caused greater injury to the tam than the tam to it] — it pays full nezek of the excess. The tam in the muad — it pays a half-nezek of the excess. Similarly, two men who injured each other pay a full nezek of the excess. A man in a muad, and a muad in a man — he pays a full nezek of the excess. A man in a tam, and a tam in a man — a man in a tam pays a full nezek of the excess, [a man being a muad always]; a tam in a man pays a half-nezek of the excess, [it being written (Exodus 21:31): "Or if it gore a son, or if it gore a daughter, according to this ordinance shall it be done to it." According to the ordinance of ox goring ox, so is the ordinance of ox goring man. Just as in the ordinance of ox goring ox, a tam pays a half-nezek, and a muad, a full nezek, so, in that of ox goring man, a tam pays a half-nezek, and a muad, a full nezek.] R. Akiva says: A tam, too, that injures a man pays a full nezek of the excess. [R. Akiva expounds "according to this ordinance" as referring to the law preceding this verse, that of a shor muad (an ox which is a muad), viz.: "According to this ordinance" of a shor muad, which pays a full nezek, "shall it be done to it" — to any ox that gores a man, even if it be a tam. The halachah is not in accordance with R. Akiva.]

שׁוֹר שָׁוֶה מָנֶה שֶׁנָּגַח שׁוֹר שָׁוֶה מָאתַיִם, וְאֵין הַנְּבֵלָה יָפָה כְלוּם, נוֹטֵל אֶת הַשּׁוֹר. שׁוֹר שָׁוֶה מָאתַיִם שֶׁנָּגַח שׁוֹר שָׁוֶה מָאתַיִם, וְאֵין הַנְּבֵלָה יָפָה כְלוּם, אָמַר רַבִּי מֵאִיר, עַל זֶה נֶאֱמַר (שמות כא) וּמָכְרוּ אֶת הַשּׁוֹר הַחַי וְחָצוּ אֶת כַּסְפּוֹ. אָמַר לוֹ רַבִּי יְהוּדָה, וְכֵן הֲלָכָה, קִיַּמְתָּ וּמָכְרוּ אֶת הַשּׁוֹר הַחַי וְחָצוּ אֶת כַּסְפּוֹ, וְלֹא קִיַּמְתָּ (שם) וְגַם אֶת הַמֵּת יֶחֱצוּן, וְאֵיזֶה, זֶה שׁוֹר שָׁוֶה מָאתַיִם שֶׁנָּגַח שׁוֹר שָׁוֶה מָאתַיִם, וְהַנְּבֵלָה יָפָה חֲמִשִּׁים זוּז, שֶׁזֶּה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת, וְזֶה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת:

An ox (a tam) worth one hundred which gored an ox worth two hundred, and the carcass is worth nothing — he (the nizak) takes the ox. An ox worth two hundred which gored an ox worth two hundred, and the carcass is worth nothing — R. Meir said: Of this it is written (Exodus 21:35): "And they shall sell the living ox, and they shall halve its money." R. Yehudah said to him: "And this is the halachah." [i.e., This is assuredly the halachah, that he gives him one hundred, which is half the nezek.] You have satisfied: "And they shall sell the living ox, and they shall halve its money," but you have not satisfied (Ibid.): "and also the carcass shall they halve." Which, (rather, is the instance of which Scripture writes?) An ox worth two hundred which gored an ox worth two hundred, and the carcass is worth fifty zuz. This one (the nizak) takes half of the living (animal) and half of the dead, and that one (the mazik) takes half of the living and half of the dead. [R. Meir and R. Yehudah differ where the carcass appreciated in value, as when at the time of death it was worth nothing and it acquired value thereafter, being fit to be fed to dogs or to be sold to non-Jews. R. Meir holds that the appreciation of the carcass is entirely the nizak's, the mazik receiving nothing thereof and paying a half-nezek. And this is the intent of R. Meir's statement: "Of this it is written: 'And they shall sell the living ox, and they shall halve its money.'" That is, he must give him the half-nezek payment from the sale of the living ox, and he deducts nothing because of the appreciation of the carcass. And R. Yehudah holds that half of the appreciation of the carcass goes to the mazik, so that when the mazik comes to pay the half-nezek to the nizak, he deducts half of the appreciation of the carcass from the time of death until the time of judgment. And this is the intent of R. Yehudah's statement to R. Meir: "You have satisfied: 'And they shall sell the living ox,' but you have not satisfied: 'and also the carcass shall they halve,'" it being necessary to divide the amount of appreciation of the carcass and for the mazik to take half. The halachah is in accordance with R. Yehudah.]

יֵשׁ חַיָּב עַל מַעֲשֵׂה שׁוֹרוֹ וּפָטוּר עַל מַעֲשֵׂה עַצְמוֹ, פָּטוּר עַל מַעֲשֵׂה שׁוֹרוֹ וְחַיָּב עַל מַעֲשֵׂה עַצְמוֹ. שׁוֹרוֹ שֶׁבִּיֵּשׁ, פָּטוּר, וְהוּא שֶׁבִּיֵּשׁ, חַיָּב. שׁוֹרוֹ שֶׁסִּמֵּא אֶת עֵין עַבְדּוֹ, וְהִפִּיל אֶת שִׁנּוֹ, פָּטוּר, וְהוּא שֶׁסִּמֵּא אֶת עֵין עַבְדּוֹ, וְהִפִּיל אֶת שִׁנּוֹ, חַיָּב. שׁוֹרוֹ שֶׁחָבַל בְּאָבִיו וְאִמּוֹ, חַיָּב, וְהוּא שֶׁחָבַל בְּאָבִיו וְאִמּוֹ, פָּטוּר. שׁוֹרוֹ שֶׁהִדְלִיק אֶת הַגָּדִישׁ בְּשַׁבָּת, חַיָּב, וְהוּא שֶׁהִדְלִיק אֶת הַגָּדִישׁ בְּשַׁבָּת, פָּטוּר, מִפְּנֵי שֶׁהוּא מִתְחַיֵּב בְּנַפְשׁוֹ:

Sometimes one is liable for the act of his ox and not liable for his own act; and sometimes he is not liable for the act of his ox and is liable for his own act. If his ox shamed (a man), he (the owner) is not liable, [it being written (Leviticus 24:19): "a man … in his fellow," and not "an ox in his fellow." Or else, there is no liability for shaming without intent to shame, which does not obtain with an ox.]; if he shamed (a man) he is liable. If his ox blinded his bondsman's eye or knocked out his tooth, he is not liable, [and his bondsman does not gain his freedom thereby]; if he blinded his bondsman's eye or knocked out his tooth, he is liable, [viz. (Exodus 21:26-27): "free shall he send him."] If his ox struck his father or his mother, he is liable [for damages]; if he struck his father or his mother, he is exempt [from payment, a man not being put to death and also being made to pay.] If his ox set fire to a (grain) stack on Shabbath, he is liable [a half-nezek, this being a deviation from the norm]; if he set fire to a stack on Shabbath, he is not liable, for he incurs the death penalty.

שׁוֹר שֶׁהָיָה רוֹדֵף אַחַר שׁוֹר אַחֵר, וְהֻזַּק, זֶה אוֹמֵר שׁוֹרְךָ הִזִּיק, וְזֶה אוֹמֵר לֹא כִי, אֶלָּא בְסֶלַע לָקָה, הַמּוֹצִיא מֵחֲבֵרוֹ עָלָיו הָרְאָיָה. הָיוּ שְׁנַיִם רוֹדְפִים אַחַר אֶחָד, זֶה אוֹמֵר שׁוֹרְךָ הִזִּיק, וְזֶה אוֹמֵר שׁוֹרְךָ הִזִּיק, שְׁנֵיהֶם פְּטוּרִין. אִם הָיוּ שְׁנֵיהֶן שֶׁל אִישׁ אֶחָד, שְׁנֵיהֶן חַיָּבִין. הָיָה אֶחָד גָּדוֹל וְאֶחָד קָטָן, הַנִּזָּק אוֹמֵר גָּדוֹל הִזִּיק, וְהַמַּזִּיק אוֹמֵר לֹא כִי, אֶלָּא קָטָן הִזִּיק. אֶחָד תָּם וְאֶחָד מוּעָד, הַנִּזָּק אוֹמֵר, מוּעָד הִזִּיק, וְהַמַּזִּיק אוֹמֵר לֹא כִי, אֶלָּא תָם הִזִּיק, הַמּוֹצִיא מֵחֲבֵרוֹ עָלָיו הָרְאָיָה. הָיוּ הַנִּזּוֹקִין שְׁנַיִם, אֶחָד גָּדוֹל וְאֶחָד קָטָן, וְהַמַּזִּיקִים שְׁנַיִם, אֶחָד גָּדוֹל וְאֶחָד קָטָן, הַנִּזָּק אוֹמֵר, גָּדוֹל הִזִּיק אֶת הַגָּדוֹל וְקָטָן אֶת הַקָּטָן, וּמַזִּיק אוֹמֵר לֹא כִי, אֶלָּא קָטָן אֶת הַגָּדוֹל וְגָדוֹל אֶת הַקָּטָן. אֶחָד תָּם וְאֶחָד מוּעָד, הַנִּזָּק אוֹמֵר, מוּעָד הִזִּיק אֶת הַגָּדוֹל וְתָם אֶת הַקָּטָן, וְהַמַּזִּיק אוֹמֵר לֹא כִי, אֶלָּא תָם אֶת הַגָּדוֹל וּמוּעָד אֶת הַקָּטָן, הַמּוֹצִיא מֵחֲבֵרוֹ עָלָיו הָרְאָיָה:

If one ox pursued another, and it (the second) were injured — this one (the owner of the second) says: Your ox injured (mine), and the other (the owner of the first) says: No, it bruised itself on a rock — "the burden of the proof is on him who would extract (payment) from his neighbor." If two [oxen of two different men] pursued one [belonging to another man] — one says: Your ox injured; the other: Your ox injured, both are exempt, [both pushing him off]. If both belonged to one man, both are liable. [The gemara explains the instance of the Mishnah as one of two tamin, a tam paying from its body alone. So that if both are before us, the nizak receives the half-nezek from between both. But if both are not present, he (the mazik) can say: Go and bring proof that this ox did the damage, and I will pay you!] If one were big and the other small — the nizak says: The big one injured (mine), [and his body contains the worth of a half-nezek; and the mazik says: No, the small one did the damage [Take the worth of the small one and lose the rest of your half-nezek], if one were a tam, and the other, a muad — the nizak says: The muad did the damage; and the mazik says: No, the tam did -- "the burden of the proof is on him who would extract (payment) from his neighbor." If the injured (oxen) were two — one big and one small; and the injurers were two, one big and one small — the nizak says: The big injured the big, and the small, the small; and the mazik says: No, the small injured the big, and the big the small, [and even though the half-nezek of the big one is large, you may take it only from my small one; and the half-nezek for your small one, take from my big one]; if one were a tam, and the other a muad — the nizak says: The muad injured the big one, and the tam, the small one; and the mazik says: No, the tam injured the big one, and the muad, the small one — "the burden of the proof is on him who would extract (payment) from his neighbor." [With all of these "the burden of the proof, etc." in our Mishnah, if he does not bring proof, he receives nothing, not even the value of a tam, and not even the small one that he (the mazik) admitted. For if one claims wheat from his neighbor, and he admits to barley, he is not liable even for the price of barley. But if the nizak seizes the amount admitted by the mazik, it is not confiscated from him.]