Bava Kamma

בבא קמא

Ostensibly, it should be obvious that conspiring witnesses must pay a fine. The Gemara in tractate Makkot (5b) teaches that if witnesses succeed in causing the one about whom they testified to be punished, then they are not held liable at all. Therefore, since their liability exists only in a case where they never actually succeeded in causing a loss, the sum they pay cannot be considered monetary restitution; rather, it must be a fine. Rashi explains that the Gemara entertained the possibility that the payment made by the witnesses is considered monetary restitution because the standard indicator for distinguishing between a fine and restitution is whether the amount of the payment is identical to the loss suffered. Here too, the payment is identical to the loss the witnesses sought to impose. The Gemara then immediately reconsiders, because while the size of the payment is an indicator, it does not conclusively demonstrate the nature of the payment, especially in this case where the size of the payment is parallel only to the value of the witnesses’ collusion and not to the loss. Tosafot and other early commentaries claim that the halakha that if witnesses succeed in causing the one about whom they testified to be punished they are not held liable is true only of corporal punishment. If they sought to make him liable to pay money, then even if they succeed, they are liable for their conspiracy. Accordingly, in a case where their conspiracy succeeded, it is certainly reasonable to consider the possibility that their payment should be characterized as monetary restitution.

Payment made by conspiring witnesses, which is monetary restitution

עֵדִים זוֹמְמִין דְּמָמוֹנָא הוּא

The payment made by conspiring witnesses is considered a fine, and consequently they do not pay based upon their own admission of guilt. Accordingly, if they admit to having testified falsely, and even if they admit before a court that they had previously been proven by a different court to be conspiring witnesses and they ran away before being punished, they are not made to pay. This is in accordance with the opinion of Rabbi Akiva. Furthermore, since courts nowadays are not empowered to impose fines, the halakhot of conspiring witnesses are no longer applied. Nevertheless, if their testimony succeeded in causing the one about whom they testified to forfeit his money, then once the falsehood of their testimony is uncovered, the money taken from the victim should be restored to him. If that cannot be done, then even nowadays the witnesses are required to compensate the one about whom they testified, as payment in such a case is not considered a fine but monetary restitution for causing someone else a loss (Rambam Sefer Shofetim, Hilkhot Edut 18:8; Shulḥan Arukh, Ḥoshen Mishpat 38:1 and 1:4, and in the comment of Rema, and Sma and Beur HaGra there).

Do not pay on the basis of their own admission

אֵין מְשַׁלְּמִין עַל פִּי עַצְמָן

The Gemara asks: With regard to the payment made by conspiring witnesses, which is categorized as monetary restitution, <note data-assoc="n"/>as the witnesses pay the precise sum that they conspired to cause the defendant to lose, let Rabbi Oshaya also teach it as one of the categories on his list. The Gemara answers: Rabbi Oshaya holds in accordance with the opinion of Rabbi Akiva, who says that conspiring witnesses do not pay on the basis of their own admission. <note data-assoc="h"/>

עֵדִים זוֹמְמִין דְּמָמוֹנָא הוּא, לִיתְנֵי! סָבַר לָהּ כְּרַבִּי עֲקִיבָא, דְּאָמַר: אֵין מְשַׁלְּמִין עַל פִּי עַצְמָן.

The Gemara asks: If Rabbi Oshaya holds in accordance with the opinion of Rabbi Akiva, let him teach two distinct types of categories of damage under the rubric of Ox: Let him teach one category for an ox that damages an ox or other property belonging to another person, and let him also teach the case of an ox that injures a person.

אִי סָבַר לֵיהּ כְּרַבִּי עֲקִיבָא, לִיתְנֵי תְּרֵי גַּוְונֵי שׁוֹר; לִיתְנֵי שׁוֹר דְּאַזֵּיק שׁוֹר, וְלִיתְנֵי שׁוֹר דְּאַזֵּיק אָדָם.

The Gemara explains its question: As we learned in a mishna (33a): In a case where the two parties damaged each other concurrently, Rabbi Akiva says: The owner of the innocuous ox that injured a person also pays the full cost of the damage with regard to the difference between the damage caused by his ox and the damage that the person caused the ox. Rabbi Akiva holds that if an innocuous ox injures a person, the owner pays the full cost of the damage, whereas if an innocuous ox damages another’s property then the owner is liable only for half the cost of the damage. Since the owner’s liability in the two cases is different, each case should be classified as a distinct category, and Rabbi Oshaya should list them separately in his baraita.

דִּתְנַן, רַבִּי עֲקִיבָא אוֹמֵר: אַף תָּם שֶׁחָבַל בְּאָדָם מְשַׁלֵּם בַּמּוֹתָר נֵזֶק שָׁלֵם!

If an innocuous ox injures a person, its owner is liable to pay for half the cost of the damage up to the value of the body of the ox itself, which is also the halakha in a case in which an innocuous ox gores another ox. The owner is also not liable to pay for the additional four types of indemnity incurred when one person injures another (Rambam Sefer Nezikin, Hilkhot Nizkei Mamon 7:3; Shulḥan Arukh, Ḥoshen Mishpat 405:1).

An innocuous ox that injured a person

תָּם שֶׁחָבַל בְּאָדָם

Some attribute the origin of this word to the Greek <greek>γαῖσος</greek>, gaisos, which means javelin.

His fist [gezizeih]

גְּזִיזֵיהּ

The Gemara answers: Didn’t Rabbi Akiva break the force of his fist [gezizeih], <note data-assoc="l"/>i.e., he significantly tempered the force of his statement, as it is taught in a baraita that Rabbi Akiva says: One might have thought that even in the case of an innocuous ox that injured a person, <note data-assoc="h"/>the owner of the ox would pay from his superior-quality property and not merely from the body of his animal, as in the case of an innocuous ox that damages property; therefore, the verse states with regard to an ox that gores a person: “According to this judgment shall it be done to him” (Exodus 21:31), from which it is derived that the owner of the ox pays restitution exclusively from proceeds of the sale of the body of his ox, and he does not pay from his superior-quality property. The mishna states that one pays restitution from his superior-quality property in instances of all primary categories of damage. Since in the case of an innocuous ox that injured a person even Rabbi Akiva concedes that the owner does not pay from his superior-quality property, it should not be included in a list of the primary categories.

הָא תַּבְרֵיהּ רַבִּי עֲקִיבָא לִגְזִיזֵיהּ; דְּתַנְיָא, רַבִּי עֲקִיבָא אוֹמֵר: יָכוֹל אַף תָּם שֶׁחָבַל בְּאָדָם יְשַׁלֵּם מִן הָעֲלִיָּיה? תַּלְמוּד לוֹמַר: ״יֵעָשֶׂה לּוֹ״ – מִגּוּפוֹ מְשַׁלֵּם, וְאֵינוֹ מְשַׁלֵּם מִן הָעֲלִיָּיה.

Tosafot note that the payment made by one who defames his wife is certainly not considered to be monetary restitution, because the payment is fixed at one hundred silver shekels. The subsequent opinions presented by the Gemara relate only to payments for rape and seduction. The defamer is mentioned here only because defamation is often grouped together with a rapist and a seducer; therefore, whenever the rapist and the seducer are mentioned, the slanderer is also mentioned together with them, even if it is not actually relevant to the issue.

And the defamer

וְהַמּוֹצִיא שֵׁם רַע

The Gemara asks: As for the rapist, and the seducer, and the defamer, <note data-assoc="n"/>all of which are cases in which the offender pays monetary restitution, let Rabbi Oshaya teach them as categories in his list.

הָאוֹנֵס וְהַמְפַתֶּה וְהַמּוֹצִיא שֵׁם רַע, דְּמָמוֹנָא הוּא, לִיתְנֵי!

The Gemara explains why Rabbi Oshaya did not teach them as separate categories: Whichever way you look at it, they should not be listed. If the payments listed by Rabbi Ḥiyya are for damage caused to the woman’s body, which reduces her value, he already taught it; if the payments are for pain, he already taught it; if the payments are for humiliation, he already taught it; if the payment is for degradation, that too is a payment for damage, which he already taught. What, then, have you to say? What is the nature of the payments paid by the rapist and the seducer mentioned by Rabbi Ḥiyya? In these cases, each payment paid is considered a fine [kenasa], <note data-assoc="l"/>and as explained, with regard to cases in which one is liable to pay a fine, Rabbi Oshaya does not speak.

מַה נַּפְשָׁךְ; אִי נֵזֶק – תְּנָא לֵיהּ, אִי צַעַר – תְּנָא לֵיהּ, אִי בֹּשֶׁת – תְּנָא לֵיהּ, אִי פְּגָם – הַיְינוּ נֵזֶק. מָה אִית לָךְ לְמֵימַר? קְנָסָא, בִּקְנָסָא לָא קָמַיְירֵי.

The Gemara asks further: And one who causes another’s teruma to become ritually impure, and one who mixes teruma with another’s non-sacred food, and one who pours another’s wine as a libation for idolatry, each of which is a case in which the offender must pay monetary restitution to compensate the owner for his loss due to the lowered value of his food or wine, let Rabbi Oshaya teach them as categories in his list.

הַמְטַמֵּא וְהַמְדַמֵּעַ וְהַמְנַסֵּךְ דְּמָמוֹנָא הוּא, לִיתְנֵי!

If one damages another’s property in such a way that the damage is not physically measurable, e.g., one who causes another’s teruma to become ritually impure, then even though his actions result in a depreciation of the value of the item, according to Torah law he is exempt from liability. The Sages imposed a fine upon such a person, requiring him to reimburse the injured party for the full loss of value, and to do so from his best-quality property. Since this payment is considered a fine, if the damage was caused unintentionally one is not liable to pay it, and similarly, if the one who caused the damage dies, his heirs are not obligated to pay (Rambam Sefer Nezikin, Hilkhot Ḥovel UMazik 7:1–3; Shulḥan Arukh, Ḥoshen Mishpat 385:1).

Damage that is not evident

הֶיזֵּק שֶׁאֵינוֹ נִיכָּר

The Gemara answers: Whichever way you look at it, these cases should not be listed. If Rabbi Oshaya holds that damage that is not evident, <note data-assoc="h"/>i.e., where the object is physically unchanged but its halakhic status is changed, is characterized as damage for which one is liable to pay restitution, Rabbi Oshaya already taught, i.e., included in his list, restitution for damage, and if he holds that damage that is not evident is not characterized as damage for which one is liable to pay restitution, then it is a fine, and, as explained, with regard to cases for which one is liable to pay a fine, Rabbi Oshaya does not speak.

מַה נַּפְשָׁךְ; אִי הֶיזֵּק שֶׁאֵינוֹ נִיכָּר שְׁמֵיהּ הֶיזֵּק – הָא תְּנָא לֵיהּ נֵזֶק, אִי הֶיזֵּק שֶׁאֵינוֹ נִיכָּר לָא שְׁמֵיהּ הֶיזֵּק – הֲוָה לֵיהּ קְנָסָא, וּבִקְנָסָא לָא קָמַיְירֵי.

The Gemara suggests: Since Rabbi Ḥiyya lists these cases as distinct categories, let us say that Rabbi Ḥiyya holds that damage that is not evident is not characterized as damage for which one is liable to pay restitution, as, if it were characterized as damage for which one is liable to pay restitution, didn’t he already teach, i.e., include in his list, restitution for damage? The Gemara rejects that suggestion: Even if he holds that damage that is evident is characterized as damage for which one is liable to pay restitution, he distinguishes between different types of damage. He teaches cases of damage that is evident and he teaches cases of damage that is not evident.

לֵימָא קָסָבַר רַבִּי חִיָּיא: הֶיזֵּק שֶׁאֵינוֹ נִיכָּר לָא שְׁמֵיהּ הֶיזֵּק, דְּאִי שְׁמֵיהּ הֶיזֵּק – הָא תְּנָא לֵיהּ נֵזֶק! תְּנָא הֶיזֵּקָא דְּמִינְכְּרָא, וּתְנָא הֶיזֵּקָא דְּלָא מִינְכְּרָא.

The Gemara considers the fact that each of the lists of primary categories is introduced with the number that they total: Granted, according to the tanna of our mishna, he taught the number of four primary categories in introducing his list to exclude those additional categories of Rabbi Oshaya. And similarly, Rabbi Oshaya taught the number of thirteen primary categories to exclude those additional categories of Rabbi Ḥiyya. But what does the number of twenty-four primary categories of Rabbi Ḥiyya serve to exclude?

בִּשְׁלָמָא לְתַנָּא דִּידָן, תְּנָא מִנְיָינָא לְמַעוּטֵי דְּרַבִּי אוֹשַׁעֲיָא, וְרַבִּי אוֹשַׁעֲיָא תְּנָא מִנְיָינָא לְמַעוּטֵי דְּרַבִּי חִיָּיא. אֶלָּא מִנְיָינָא דְּרַבִּי חִיָּיא לְמַעוּטֵי מַאי?

One who informs the authorities about the actions of another and causes him a monetary loss is required to fully compensate his victim. Even though, according to some opinions, one who indirectly causes another financial loss is not liable to compensate him, everyone agrees that an informer is liable because his payment is not considered monetary restitution, but rather a fine.

To exclude an informer

לְמַעוּטֵי מוֹסֵר

The Gemara answers: He taught that number in order to exclude the cases of an informer, <note data-assoc="n"/>who provides information to the authorities leading them to confiscate another person’s property; and to exclude the case of a priest who renders an offering piggul by performing the sacrificial rites for one offering with the intent to sacrifice it for the sake of another offering, in which case the person who brought the offering must replace it with another.

לְמַעוּטֵי מוֹסֵר וּמְפַגֵּל.

The Gemara asks: And let Rabbi Ḥiyya teach these cases. Granted, he did not include the case of a priest who renders an offering piggul. Perhaps, with regard to cases involving consecrated items, Rabbi Ḥiyya does not speak. But with regard to the case of an informer, what is the reason Rabbi Ḥiyya did not teach it and include it in his list of categories? The Gemara answers: The case of an informer is different, as the damage is caused through speech, and with regard to damage caused through speech, Rabbi Ḥiyya does not speak.

וְלִיתְנֵי! בִּשְׁלָמָא מְפַגֵּל – בְּקָדָשִׁים לָא קָמַיְירֵי, אֶלָּא מוֹסֵר מַאי טַעֲמָא לָא תָּנֵי? שָׁאנֵי מוֹסֵר, דְּדִיבּוּרָא, וּבְדִיבּוּרָא לָא קָמַיְירֵי.

According to the opinion, accepted as the halakha, that a husband is liable for defaming his wife only after he engaged in intercourse with her, it is clear why the case is defined as speech that is also an action. Tosafot add that even if one does not accept that opinion, the Gemara can be explained according to the opinion that liability is incurred only in a case in which the husband hires false witnesses to testify that his wife was guilty of adultery. The hiring of witnesses is sufficient to consider the defamation a case of speech involving an action.

It is a case of speech that involves an action

דִּיבּוּרָא דְּאִית בֵּיהּ מַעֲשֶׂה הוּא

The Gemara asks: But isn’t there the case of a defamer, where the damage is caused through speech, and yet Rabbi Ḥiyya teaches it and includes it in his list? The Gemara answers: He includes that case because it is a case of speech that involves an action. <note data-assoc="n"/>One who defames his wife is liable only if he made his allegation after engaging in intercourse with her.

וְהָא מוֹצִיא שֵׁם רַע דְּדִיבּוּרָא הוּא, וְקָתָנֵי! דִּיבּוּרָא דְּאִית בֵּיהּ מַעֲשֶׂה הוּא.

The Gemara asks: But isn’t the case of conspiring witnesses a case of speech that involves no action, as they are liable for their testimony, and Rabbi Ḥiyya teaches it and includes it in his list? The Gemara answers: There, although it involves no action, the Merciful One characterizes it as an action, as it is written: “And you shall do to him as he conspired to do unto his brother” (Deuteronomy 19:19).

וְהָא עֵדִים זוֹמְמִין דִּיבּוּרָא דְּלֵית בֵּיהּ מַעֲשֶׂה הוּא, וְקָתָנֵי! הָתָם אַף עַל גַּב דְּלֵית בֵּיהּ מַעֲשֶׂה – רַחֲמָנָא קָרְיֵיהּ מַעֲשֶׂה, דִּכְתִיב: ״וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם לַעֲשׂוֹת לְאָחִיו״.

The Gemara considers the subcategories of the various primary categories listed: Granted, according to the tanna of our mishna, his terminology is understandable, as he taught primary categories, which, by inference, means that there are also additional forms of damage that are subcategories of those primary categories. But according to Rabbi Ḥiyya and Rabbi Oshaya, why did they employ the terminology they employed? They employed the term primary categories, which, by inference, means that there are subcategories. What are the subcategories of the primary categories they listed? It appears that they enumerated all the various categories of damage.

בִּשְׁלָמָא לְתַנָּא דִּידָן, תְּנָא אָבוֹת – מִכְּלָל דְּאִיכָּא תּוֹלָדוֹת. אֶלָּא לְרַבִּי חִיָּיא וְרַבִּי אוֹשַׁעֲיָא, אָבוֹת – מִכְּלָל דְּאִיכָּא תּוֹלָדוֹת, תּוֹלְדוֹתֵיהֶן מַאי נִיהוּ?

According to this answer of the Gemara there are a number of difficulties that arise. First, why did the Gemara above (2a) insist that the concept of primary categories indicates that there are subcategories if it is possible that they are called primary categories because one who is liable for damage of that kind pays from his best-quality property, as the Gemara suggests here, and not because they have subcategories? Moreover, why does the Gemara presume that for damage classified as a subcategory one does not pay from his best-quality property? Tosafot explain that with regard to the subcategories mentioned in the mishna, it was clear to the Gemara that one liable for such damage also pays from his best-quality property and therefore the term primary categories had to indicate the existence of subcategories. By contrast, with regard to other forms of damage mentioned in the Gemara here, the matter is not so clear. Therefore, Rabbi Ḥiyya and Rabbi Oshaya stressed that restitution for these categories of damage is also paid from one’s best-quality property.

All of them are characterized as primary categories, to pay from one’s best-quality property

כּוּלָּן כְּאָבוֹת לְשַׁלֵּם מִמֵּיטָב

One who causes damage, whether personal injury or other forms of damage, to another, such as a priest who renders another person’s offering piggul or an informer who causes governmental authorities to confiscate another person’s property, must pay the injured party for the damage he caused with money or movable property. If he owns only land, then payment is made from his best-quality land (Rambam Sefer Nezikin, Hilkhot Ḥovel UMazik 1:1, 7:4, 7:16, 8:1; Shulḥan Arukh, Ḥoshen Mishpat 348:5).

Rabbi Abbahu says: When Rabbi Ḥiyya and Rabbi Oshaya characterize, as primary categories, the various categories of damage that they listed, it is not to indicate that there are subcategories; rather, it is to indicate that all of them are characterized as primary categories, in the sense that one is liable to pay from one’s best -quality property. <note data-assoc="nh"/>

אָמַר רַבִּי אַבָּהוּ: כּוּלָּן כְּאָבוֹת לְשַׁלֵּם מִמֵּיטָב.

The Gemara asks: What is the reason for this, i.e., from where is it derived? The Gemara explains: It is derived using a verbal analogy from the terms “in place of,” “giving,” “he shall pay,” and “money.” The term “in place of” is written with regard to a forewarned ox that gores (Exodus 21:36); “he shall give” is written with regard to an ox that kills a slave (Exodus 21:32); “he shall pay” is written with regard to the categories of damage of Eating and Trampling (Exodus 22:4); and “money” is written with regard to Pit (Exodus 21:34). The halakha that one must pay from his best-quality property is stated explicitly in each of those four verses. In each of the twenty-four categories listed by Rabbi Ḥiyya one of those four terms is written, so by means of a verbal analogy, the requirement to pay from one’s best-quality property applies to each of them.

מַאי טַעֲמָא? אָתְיָא ״תַּחַת״ ״נְתִינָה״ ״יְשַׁלֵּם״ ״כֶּסֶף״.

§ The mishna states: The defining characteristic of the primary category of Ox is not similar to the defining characteristic of the primary category of Maveh. The Gemara asks: What is the mishna saying? Rav Zevid said in the name of Rava that this is what the mishna is saying: Let the Merciful One write one of the primary categories and derive the other categories from it. Then the tanna says: It is not possible to derive one category from one other category, as each category has its unique characteristics.

״לֹא הֲרֵי הַשּׁוֹר כַּהֲרֵי הַמַּבְעֶה״. מַאי קָאָמַר? אֲמַר רַב זְבִיד מִשְּׁמֵיהּ דְּרָבָא, הָכִי קָאָמַר: לִכְתּוֹב רַחֲמָנָא חֲדָא וְתֵיתֵי אִידָךְ מִינֵּיהּ! הֲדַר אֲמַר: חֲדָא מֵחֲדָא לָא אָתְיָא.

The mishna continues: And the defining characteristics of this category of Ox and that category of Maveh, in which there is a living spirit, are not similar to the defining characteristic of the category of Fire, in which there is no living spirit. The Gemara asks: What is the tanna saying? Rav Mesharshiyya said in the name of Rava that this is what the tanna is saying:

״וְלֹא זֶה וְזֶה שֶׁיֵּשׁ בָּהֶן רוּחַ חַיִּים״. מַאי קָאָמַר? אֲמַר רַב מְשָׁרְשִׁיָּא מִשְּׁמֵיהּ דְּרָבָא, הָכִי קָאָמַר:

According to the Gemara’s interpretation of the mishna, the mishna initially rejects the possibility of deriving one’s liability in one primary category from another through a simple inductive analogy based on the fact that generally the halakha stated by the Torah with regard to one case will also apply to a similar case. The mishna rejects the use of this induction with regard to the primary categories of damage because each of the primary categories has distinct characteristics, and one cannot assume that the halakhot pertaining to them will be the same. The mishna then proceeds to suggest using a more complex form of induction that assumes that if the same halakha applies to two different cases, then it should also apply to any case that has the same characteristics as those shared by the first two cases. The mishna also rejects this because each of the primary categories has a characteristic that is unique to that category, despite sharing other characteristics with two other categories. For example, even if Fire shares some of the shared characteristics of Ox and Maveh, it does not share all of them, because whereas in Ox and Maveh the damage is caused by something with a living spirit, in Fire that is not the case.

And derive the other categories from them

וְתֵיתֵי אִידָךְ מִינַּיְיהוּ

Let the Merciful One write only two of the primary categories and derive the other categories from them. <note data-assoc="n"/>Then the tanna says: It is not possible to derive one category from two other categories, as each category has its own unique characteristics, which prevent the derivation of a new category even from a combination of two categories.

לִכְתּוֹב רַחֲמָנָא תַּרְתֵּי, וְתֵיתֵי אִידָךְ מִינַּיְיהוּ. הֲדַר אֲמַר: חֲדָא מִתַּרְתֵּי לָא אָתֵי.

One is considered forewarned with regard to all of the primary categories of damage and all of their subcategories from the outset so that he is liable for the full cost of the damage caused. There is an exception for Goring and its subcategories, with regard to which an ox is initially considered innocuous, such that one is liable for only half the cost of the damage caused; the ox is considered forewarned only after it causes damage three times and its owner is informed of the goring each of those times (Rambam Sefer Nezikin, Hilkhot Ḥovel UMazik 1:5, 2:1; Shulḥan Arukh, Ḥoshen Mishpat 389:6, 9).

In that they are forewarned from their outset

שֶׁכֵּן מוּעָדִין מִתְּחִילָּתָן

כל אבות הנזיקין וכל תולדותיהם מועדים הם מתחילתם, חוץ מקרן ותולדותיה שהם תמים בתחילה עד שיועדו. (רמב״ם ספר נזיקין הלכות נזקי ממון פ״ב ה״א).

שכן מועדין מתחילתן

אורח ההלכה

Rava said: And with regard to all of the primary categories in the mishna, when you cast the primary category of Pit among them, all of the rest of them can then be derived through an analogy based on the common factor of two categories. This is the case with all of the categories except for Goring, due to the fact that there is room to refute the analogy to teach the halakha of Goring with the following contention: What is notable about all of the other categories? They are notable in that they are forewarned from their outset. <note data-assoc="h"/>Since it is the typical manner of the animal to trample and eat, and the typical manner of fire to burn, and the typical manner of a pit to serve as an obstacle, the owner is always forewarned with regard to safeguarding against damage and is liable to pay full damages for his failure to prevent the damage even the first time. With regard to Goring, the animal is innocuous for the first three instances of damage and only thereafter is the animal forewarned, rendering its owner liable to pay full damages.

אֲמַר רָבָא: וְכוּלְּהוּ כִּי שָׁדֵית בּוֹר בֵּינַיְיהוּ, אָתְיָא כּוּלְּהוּ בְּמַה הַצַּד, לְבַר מִקֶּרֶן, מִשּׁוּם דְּאִיכָּא לְמִיפְרַךְ: מַה לְּכוּלְּהוּ שֶׁכֵּן מוּעָדִין מִתְּחִילָּתָן.

And according to the one who says: On the contrary, Goring is superior in the sense that one’s liability in a case of Goring is more apparent, as the objective of the ox’s action is to cause damage, even Goring can be derived from the common factor of two sources.

וּלְמַאן דְּאָמַר: אַדְּרַבָּה, קֶרֶן עֲדִיפָא שֶׁכַּוָּונָתוֹ לְהַזִּיק – אֲפִילּוּ קֶרֶן נַמִי אָתְיָא.

The Gemara asks: But if all the categories can be derived from another category and Pit, for the purpose of deriving what halakha did the Merciful One write all the primary categories explicitly? The Gemara answers: It is in order to derive their unique halakhot that apply exclusively to each category.

אֶלָּא לְמַאי הִלְכְתָא כָּתְבִינְהוּ רַחֲמָנָא? לְהִלְכוֹתֵיהֶן.

חמשה מיני נזקים נכללים בגדר קרן, ואם היתה הבהמה תמה — אין בעליה משלם אלא חצי נזק, ורק לאחר שהועדה הבהמה משלם נזק שלם. (רמב״ם ספר נזיקין הלכות נזקי ממון פ״א ה״ה. שו״ע חו״מ שפט, ו. חו״מ שפט, ט).

קרן לחלק בין תמה למועדת

Goring is written explicitly in order to distinguish between the halakhot of damage caused by an innocuous animal and damage caused by a forewarned animal.

קֶרֶן – לְחַלֵּק בֵּין תַּמָּה לְמוּעֶדֶת;

The owner of an animal is liable to pay for damage caused by the categories of Eating or Trampling only if his animal caused the damage on the private property of the person whose property was damaged. The owner is exempt from liability for such damage in the public domain (Rambam Sefer Nezikin, Hilkhot Ḥovel UMazik 1:8; Shulḥan Arukh, Ḥoshen Mishpat 389:15).

Eating and Trampling are written in order to exempt, etc.

שֵׁן וְרֶגֶל לְפוֹטְרָן וכו׳

על נזקי שן ורגל של בהמה אין בעליה חייב אלא אם כן הזיקה ברשות הניזק, אבל ברשות הרבים — פטור. (רמב״ם ספר נזיקין הלכות נזקי ממון פ״א ה״ח. שו״ע חו״מ שפט, טו).

שן ורגל לפוטרן ברשות הרבים

Eating and Trampling are written explicitly in order to exempt <note data-assoc="h"/>from liability those whose animals perform the actions in these categories in a public domain.

שֵׁן וְרֶגֶל – לְפוֹטְרָן בִּרְשׁוּת הָרַבִּים;

If vessels fall into a pit and are damaged or broken, the owner of the pit is exempt from having to pay for the damage (Rambam Sefer Nezikin, Hilkhot Ḥovel UMazik 13:1; Shulḥan Arukh, Ḥoshen Mishpat 410:21).

To exempt one from liability for damage to vessels

לִפְטוֹר בּוֹ אֶת הַכֵּלִים

The Sages had a tradition that the owner of a pit is not obligated to pay for damage caused by his pit to either people or vessels. Therefore, if someone fell into a pit and died, regardless of whether he was a free man or a slave, and even if he was blind or he fell in at night, the owner of the pit is exempt from liability (Rambam Sefer Nezikin, Hilkhot Nizkei Mamon 12:16, 13:1; Shulḥan Arukh, Ḥoshen Mishpat 410:20).

To exempt one from liability for the death of a person

לִפְטוֹר בּוֹ אֶת הָאָדָם

The Gemara later derives this from the verse: “And an ox or a donkey fall therein” (Exodus 21:33), indicating that the owner of the pit is liable only for damage done to animals and not for any people who fall into his pit and die. This is the traditional interpretation of this verse, but it is also based on logic. People are intelligent and aware of possible dangers to them and must be vigilant enough to avoid those dangers (Ḥizkuni; Abravanel).

כלים שנפלו לבור והוזקו או נשתברו — פטור בעל הבור. (רמב״ם ספר נזיקין הלכות נזקי ממון פי״ג ה״א. שו״ע חו״מ תי, כא).

לפטור בו את הכלים

מפי השמועה למדו שאין בעל הבור חייב לא על האדם ולא על הכלים. ולפיכך אם נפל אדם לתוך הבור ומת, בין שהיה בן חורין או עבד, ואפילו היה סומא או שנפל בלילה — בעל הבור פטור. (רמב״ם ספר נזיקין הלכות נזקי ממון פי״ג ה״א. רמב״ם ספר נזיקין הלכות נזקי ממון פי״ב הט״ז. שו״ע חו״מ תי, כ).

לפטור בו את האדם

Pit is written explicitly in order to exempt one from liability for damage to vessels <note data-assoc="h"/>caused when they fall into a pit. The Gemara adds: And according to the opinion of Rabbi Yehuda, who deems one liable even for damage to vessels caused when they fall into a pit, Pit was written in order to exempt one from liability for the death of a person <note data-assoc="nh"/>who was killed by falling into a pit. Rabbi Yehuda concedes that the possessor of the pit is exempt because the person who ultimately fell into the pit was capable of avoiding it.

בּוֹר – לִפְטוֹר בּוֹ אֶת הַכֵּלִים. וּלְרַבִּי יְהוּדָה דִּמְחַיֵּיב עַל נִזְקֵי כֵלִים בְּבוֹר – לִפְטוֹר בּוֹ אֶת הָאָדָם;

One who injures another must pay him not only for the cost of the injury, i.e., the depreciation in his value due to the injury, but also for the pain, the medical costs, his loss of livelihood, and the humiliation he endured (Rambam Sefer Nezikin, Hilkhot Ḥovel UMazik 1:1; Shulḥan Arukh, Ḥoshen Mishpat 420:3).

To render him liable for four types of indemnity

לְחַיְּיבוֹ בְּאַרְבָּעָה דְּבָרִים

החובל בחבירו משלם לו, מלבד הנזק, גם צער וריפוי ושבת ובושת, אם היו שייכים בהיזק זה שהזיקו. (רמב״ם ספר נזיקין הלכות חובל ומזיק פ״א ה״א. שו״ע חו״מ תכ, ג).

לחייבו בארבעה דברים

Man is written explicitly in order to render him liable for four additional types of indemnity, <note data-assoc="h"/>

אָדָם – לְחַיְּיבוֹ בְּאַרְבָּעָה דְּבָרִים;

If one lights a fire on his own property and it spreads to another person’s field, and there it consumes a heap of grain, and embedded in that heap were various objects that were also consumed by the fire, one is exempt from liability to pay for them, even if such objects are commonly stored in a heap of grain, e.g., threshing implements and equipment used with the cattle. Nevertheless, if one lit the fire on another’s property he does have to pay for objects ordinarily found in a heap of grain, and he is exempt from liability only for objects that are not usually found in a heap of grain (Rambam Sefer Nezikin, Hilkhot Nizkei Mamon 14:8–9; Shulḥan Arukh, Ḥoshen Mishpat 418:13).

Fire is written in order to exempt one from liability for damage caused to a concealed object

אֵשׁ לִפְטוֹר בּוֹ אֶת הַטָּמוּן

המדליק בתוך שלו ויצאה האש לשדה חבירו ושרפה שם גדיש — אפילו היו טמונים בו דברים שדרכם להיות בגדיש, כגון מוריגים וכלי הבקר — הרי זה פטור מלשלמם. אבל אם הדליק בתוך שדה חבירו חייב על דברים שדרך לטומנם בגדיש, ואינו פטור אלא על כלים שאין דרך לטומנם שם. (רמב״ם ספר נזיקין הלכות חובל ומזיכק פי״ד ה״ח–ט. שו״ע חו״מ תיח, יג).

אש לפטור בו את הטמון

חמשה מיני נזקים נכללים בגדר קרן, ואם היתה הבהמה תמה — אין בעליה משלם אלא חצי נזק, ורק לאחר שהועדה הבהמה משלם נזק שלם. (רמב״ם ספר נזיקין הלכות נזקי ממון פ״א ה״ה. שו״ע חו״מ שפט, ו. שו״ע חו״מ שפט ט).

המדליק בתוך שלו ויצאה האש לשדה חבירו ושרפה שם גדיש — אפילו היו טמונים בו דברים שדרכם להיות בגדיש, כגון מוריגים וכלי הבקר — הרי זה פטור מלשלמם. אבל אם הדליק בתוך שדה חבירו חייב על דברים שדרך לטומנם בגדיש, ואינו פטור אלא על דכלים שאין דרך לטומנם שם. (רמב״ם ספר נזיקין הלכות חובל ומזיק פי״ד ה״ח–ט. שו״ע חו״מ תיח, יג).

Fire is written explicitly in order to exempt one from liability for damage caused to a concealed object, <note data-assoc="h"/>And according to Rabbi Yehuda, who deems one liable even for damage done to a concealed object damaged by fire, to add what halakha does the Torah mention the category of Fire explicitly?

אֵשׁ – לִפְטוֹר בּוֹ אֶת הַטָּמוּן. וּלְרַבִּי יְהוּדָה דִּמְחַיֵּיב עַל נִזְקֵי טָמוּן בְּאֵשׁ, לְאַתּוּיֵי מַאי?

Let the Merciful One write only two of the primary categories and derive the other categories from them. Then the tanna says: It is not possible to derive one category from two other categories, as each category has its own unique characteristics, which prevent the derivation of a new category even 