Babylonian Talmud: Tractate Baba Kamma

Folio 22a

But was it not [elsewhere] taught: 'In the case of a dog or goat jumping [and doing damage], whether in a downward or upward direction, there is exemption'?¹  — R. Papa thereupon interpreted the latter ruling²  to refer to cases where the acts done by the animals were the reverse of their respective natural tendencies: e.g, the dog [jumped] by leaping and the goat by climbing. If so, why [complete] exemption?³  — The exemption indeed is only from full compensation while there still remains liability for half damages.³

IF A DOG TAKES HOLD etc. It was stated: R. Johanan said: Fire [involves liability] on account of the human agency that brings it about.⁴  Resh Lakish, however, maintained that Fire is chattel.⁵  Why did Resh Lakish differ from R. Johanan? — His contention is: Human agency must emerge directly from human force whereas Fire does not emerge from human force.⁶  Why, on the other hand, did not R. Johanan agree with Resh Lakish?⁷  — He may say: Chattel contains tangible properties, whereas Fire⁸  has no tangible properties.

We have learnt:⁹  IF A DOG TAKES HOLD OF A CAKE [TO WHICH LIVE COALS WERE STUCK] AND GOES [WITH IT] TO A BARN, CONSUMES THE CAKE AND SETS THE BARN ALIGHT, [THE OWNER] PAYS FULL COMPENSATION FOR THE CAKE, WHEREAS FOR THE BARN [HE] PAYS [ONLY] HALF DAMAGES. This decision accords well with the view that the liability for Fire is on account of the human agency that caused it; in the case of the dog, there is thus some liability upon the owner of the dog as the fire there was caused by the action of the dog.¹⁰  But according to the principle that Fire is chattel, [why indeed should the owner of the dog be liable?] Could the fire be said to be the chattel of the owner of the dog? — Resh Lakish may reply: The Mishnaic ruling deals with a case where the burning coal was thrown by the dog [upon the barn]: full compensation must of course be made for the cake,¹¹  but only half will be paid for the damage done to the actual spot upon which the coal had originally been thrown,¹²  whereas for the barn as a whole there is exemption altogether.¹³  R. Johanan, however, maintains that the ruling refers to a dog actually placing the coal upon the barn: For the cake¹¹  as well as for the damage done to the spot upon which the coal had originally been placed the compensation must be in full,¹⁴  whereas for the barn as a whole only half damages will be paid.¹⁵

Come and hear: A camel laden with flax passes through a public thoroughfare. The flax enters a shop, catches fire by coming in contact with the shopkeeper's candle and sets alight the whole building. The owner of the camel is then liable. If, however, the shopkeeper left his candle outside [his shop], he is liable. R. Judah says: In the case of a Chanucah candle¹⁶  the shopkeeper would always be quit.¹⁷  Now this accords well with the view that Fire implies human agency: the agency of the camel could thus be traced in the setting alight of the whole building. But according to the view that Fire is chattel, [why should the owner of the camel be liable?] Was the fire in this case the chattel of the owner of the camel? — Resh Lakish may reply that the camel in this case [passed along the entire building and] set every bit of it on fire.¹⁸  If so, read the concluding clause: If, however, the shopkeeper left his candle outside [his shop] he is liable. Now, if the camel set the whole of the building on fire, why indeed should the shopkeeper be liable? — The camel in this case stood still [all of a sudden].¹⁹  But [it is immediately objected] if the camel stood still and yet managed to set fire to every bit of the building, is it not still more fitting that the shopkeeper should be free but the owner of the camel fully liable?²⁰  — R. Huna b. Manoah in the name of R. Ika [thereupon] said: The rulings apply to [a case where the camel] stood still to pass water;²¹

1. Because the act is considered unusual with them.
2. That exempts in acts towards all directions.
3. For though the acts are unusual, they should be subject to the law of Horn imposing payment of half damages for unusual occurrences.
4. Lit., 'his fire is due to his arrows'. Damage done by Fire equals thus damage done by Man himself.
5. Lit., 'his property'.
6. Since it travels and spreads of itself.
7. That Fire is chattel.
8. I.e., the flame; cf. Bez. 39a.
9. Supra p. 109.
10. All the damage to the barn that resulted from the fire is thus considered as if done altogether by the dog that caused the live coals to start burning the barn.
11. On account of the law applicable to Tooth.
12. For the damage to this spot is solely imputed to the action of the dog throwing there the burning coal. The liability, however, is only for half damages on account of the law of Pebbles to which there is subject any damage resulting from objects thrown by cattle: cf. supra P. 79.
13. Since the fire in this case could not be said to have been the obnoxious chattel of the owner of the dog [Nor could it be treated as Pebbles, since it spread of itself.]
14. As the damage to this spot is directly attributed to the action of the dog.
15. For any damage that results not from the direct act, but from a mere agency of chattels, is subject to the law of Pebbles ordering only half damages to be paid.
16. Which has to be kept in the open thoroughfare; see infra p. 361.
17. Ibid.
18. The damage done to every bit of the building is thus directly attributed to the action of the camel.
19. V. n. 4.
20. For not having instantly driven away the camel from such a dangerous spot.
21. And while it was impossible to drive it away quickly from that spot, the camel meanwhile managed to set every bit of the building on fire.

[so that] in the commencing clause the owner of the camel is liable, for he should not have overloaded [his camel],¹  but in the concluding clause the shopkeeper is liable for leaving his candle outside [his shop].

Come and hear: In the case of a barn being set on fire, where a goat was bound to it and a slave [being loose] was near by it, and all were burnt, there is liability [for barn and goat].²  In the case, however, of the slave being chained to it and the goat³  near by it and all being burnt, there is exemption [for barn and goat].⁴  Now this is in accordance with the view maintaining the liability for Fire to be based upon human agency: there is therefore exemption here [since capital punishment is attached to that agency].⁴  But, according to the view that Fire is chattel, why should there be exemption? Would there be exemption also in the case of cattle killing a slave?⁵  — R. Simeon b. Lakish may reply to you that the exemption refers to a case where the fire was actually put upon the body of the slave⁶  so that no other but the major punishment is inflicted.⁷  If so, [is it not obvious?] Why state it at all? — No; it has application [in the case] where the goat belonged to one person and the slave to another.⁸

Come and hear: In the case of fire being entrusted to a deaf-mute, an idiot or a minor⁹  [and damage resulting], no action can be instituted in civil courts, but there is liability¹⁰  according to divine justice.¹¹  This again is perfectly consistent with the view maintaining that Fire implies human agency, and as the agency in this case is the action of the deaf mute [there is no liability]; but according to the [other] view that Fire is chattel, [why exemption?] Would there similarly be exemption in the case of any other chattel being entrusted to a deaf-mute, an idiot, or a minor?¹²  — Behold, the following has already been stated in connection therewith:¹³  Resh Lakish said in the name of Hezekiah that the ruling¹¹  applies only to a case where it was a [flickering] coal that had been handed over to [the deaf-mute] who fanned it into flame, whereas In the case of a [ready] flame having been handed over there is liability on the ground that the instrument of damage has been fully prepared. R. Johanan, on the other hand, stated that even in the case of a ready flame there is exemption, maintaining that it was only the handling by¹⁴  the deaf-mute that caused [the damage]; there could therefore be no liability unless chopped wood, chips and actual fire were [carelessly] given him.

Raba said: [Both] Scripture and a Baraitha support [the View of] R. Johanan. 'Scripture': For it is written, If fire break out;¹⁵  'break out' implies 'of itself' and yet [Scripture continues], He that kindled the fire¹⁶  shall surely make restitution.¹⁷  It could thus be inferred that Fire implies human agency. 'A Baraitha': For it was taught. The verse,¹⁷  though commencing with damage

1. To the extent that the flax should penetrate the shop.
2. But not for the slave, who should have quitted the spot before it was too late; cf. infra 27a.
3. Whether chained or loose.
4. Infra 43b and 61b. For all civil actions merge in capital charges and the defendant in this case is charged with murder (since the slave was chained and thus unable to escape death), and thus exempt from all money payment arising out of the charge; cf. infra 70b.
5. V. Ex. XXI, 32, where the liability of thirty shekels is imposed upon the owner.
6. The defendant has thus committed murder by his own hands.
7. V. p. 113. n. 8.
8. Though the capital charge is not instituted by the owner of the goat, no damages could be enforced for the goat, since the defendant has in the same act also committed murder, and is liable to the graver penalty.
9. Who does not bear responsibility before the law.
10. Upon the person who entrusted the fire to the deaf-mute, etc. Mishnah, infra 59b.
11. Cf. supra p. 38.
12. Supra p. 36; infra 59b.
13. Supra 9b.
14. Lit., 'the tongs of'.
15. Ex. XXII, 5.
16. The damage that resulted is thus emphatically imputed to human agency.
17. Ex. XXII 5.