MISHNAH: If somebody puts his jar down in the public domain and another person stumbled over it and broke it, [the second person] does not have to pay¹; if he was hurt, the owner of the amphora² has to pay his damages³.

footnotes: ¹ Even though a human is always notorious, there are cases where he does not have to pay. ² The Mishnah uses interchangeably all words which denote clay vessels used for storage, whether jar or amphora. ³ Creating an obstacle in the public domain is damage by “pit”.

HALAKHAH: “If somebody puts his jar down in the public domain,” etc. Is it not usual for a person to put things⁴ in the public domain? Rav said, if it was filling⁵ the entire public domain⁶. But if it does not fill the entire public domain, is it not usual to put things in the public domain? Samuel said, either if it was filling the entire public domain or if it is at a corner⁷. Rebbi Eleazar⁸ said, even if it does not fill the entire public domain (if he took it from here and put it down there he would create a “pit”)⁹ and even if it was at a corner; it is not usual for a person to put things⁴ in the public domain¹⁰.

footnotes: ⁴ Both in the Rome (R) and E mss. instead of להניחן one reads להיות מבחין (E), להיות מבחן (R): “do not people usually look where they are going in the public domain?” A person walking in the street should be obligated to observe a minimum of precaution. Then why does the Mishnah give a blanket exemption to the person who breaks another person’s vessel in the publich domain? The same readings are found at the end of the paragraph as declarative statements. ⁵ This should be read as feminine, מְלַלְאָה [cf. J. N. Epstein, Tarbiz 6 fasc. 1 (1934), p. 64–65.] ⁶ Babli 27b. If one does not stop traffic, one is permitted to put down his load in the public domain. ⁷ The person who turns around the corner could not see the obstacle in front of him. In the Babli, this is attributed to R. Joḥanan; Samuel applies the Mishnah to accidents in the dark. (In R, the statements of Rav and Samuel are conflated to one short text.) ⁸ In the Babli, his is confirmed as the Galilean point of view. ⁹ This has to be eliminated as dittography from the following paragraph; it is not in the parallel mss. ⁴ Both in the Rome (R) and E mss. instead of להניחן one reads להיות מבחין (E), להיות מבחן (R): “do not people usually look where they are going in the public domain?” A person walking in the street should be obligated to observe a minimum of precaution. Then why does the Mishnah give a blanket exemption to the person who breaks another person’s vessel in the publich domain? The same readings are found at the end of the paragraph as declarative statements. ¹⁰ Anything left lying in the public domain creates a “pit”.

If it was filling the entire public domain, if he took it from here and put it down there he would create a “pit”¹¹. But could he take a stick and break it or step over it and if it broke, it broke¹²? Let us hear from the following: If a bull mounted another¹³”. and the [latter’s] owner came to draw away his own, or [the bull] slipped away, and [the attacker] fell down and died, he is free from payment. If he pushed [the attacker] which then fell down and died, he must pay¹⁴. Could he¹⁵ not tell him, if you had not interferred, I would have paid your damages? But he could have answered, If I had not interferred, you would have paid me half the damage¹⁶! Think of it, if it was notorious? It is not in your power to drag me through the courts¹⁷.

footnotes: ¹¹ If the jars block the entire path, a passer-by cannot remove one of them and put it down again in the public domain since then he would create the obstacle and would be liable for any damages his “pit” would cause in the future. The Babli agrees, 31b, that any obstacle created in the public domain is under the rules of “pit”. ¹² Since the passer-by has the right of way, can he forcibly make himself a path without penalty, or does he normally walk and is free from paying only for incidental damage. ¹³ In the Babli, 28a: “If a bull mounted another to kill him ¹⁴ Therefore, the passer-by is not allowed to break the jars to clear the way for himself. ¹⁵ Could the owner of the attacking bull sue the owner of the defending animal for the value of the dead bull, claiming that even if his bull had killed the other’s animal he could have paid the damages. ¹⁶ The attacking bull is under the rules of “horn”; the owner of the defending animal never could have hoped to recover his entire loss. ¹⁷ Since damages caused by a notorious animal can only be collected by a suit, the owner of the defending animal is justified in his action; the owner of the attacking bull has no claim against him.

Somebody put down an amphora in the public domain and then another person came and put another one close to the first. If the first person comes to take his own and would move [the second] and put it down at another place, he would create a “pit”¹¹. But could he take a stick and break it or step over it and if it broke, it broke¹²? Let us hear from the following: If a bull came to mount another¹³”. and the [latter’s] owner came to draw away his own, if he drew him away before it could mount, and [the attacker] fell down and died, he is free from payment. If he pushed [the attacker] which then fell down and died, he must pay¹⁴. Rebbi Yose said, we can hear from this that if one saw a flood threatening in his irrigation canal, before the flood reached his field he is permitted to divert the water to another place¹⁹; after the flood reached his field he is not permitted to divert it to another place²⁰. If the chrysargyros²¹ Handwörterbuch der Staatswissenschaften, Jena 1900, vol. 3, pp. 949–955]. Before the repartition of the tax, the taxpayer might indicate that certain people exercised the same profession as himself without being registered as members of the guild. By this act, he increased the pool of taxpayers and reduced his own share of the tax load. But after repartition of the tax, such a denunciation would lead to the others having to pay tax without his own obligation being reduced; that is forbidden. was imposed, before [the collector of] chrysargyros arrived, one is permitted to say, X is following my profession, Y is following my professon. Once the [the collector of] chrysarguros arrived, it is forbidden. It is permitted to bribe the quartermaster²² (pure Latin term copiarius) “purveyor; furnisher of conveniences to travelling magistrates and officers in Roman provinces”. If the expression is taken as one word, cf. ξενοπάροχος, Latin xenoparochus, “one who provides for strangers” (E. G.). before the Roman [soldiers] arrive²³ and commented on in the Responsa of Simeon b. Ṣemaḥ Duran, vol. 3, # 46.; after the Roman [soldiers] arrive it is forbidden.

footnotes: ¹¹ If the jars block the entire path, a passer-by cannot remove one of them and put it down again in the public domain since then he would create the obstacle and would be liable for any damages his “pit” would cause in the future. The Babli agrees, 31b, that any obstacle created in the public domain is under the rules of “pit”. ¹² Since the passer-by has the right of way, can he forcibly make himself a path without penalty, or does he normally walk and is free from paying only for incidental damage. ¹³ In the Babli, 28a: “If a bull mounted another to kill him ¹⁴ Therefore, the passer-by is not allowed to break the jars to clear the way for himself. ¹⁹ Which would damage the property of other farmers whose fields are irrigated by the same canal. ²⁰ This is like pushing the agressive bull off its victim, which makes the victim’s owner liable for damage to the agressive bull. ²¹ Χρυσάργυρος, “alloy of gold and silver; tribute of gold and silver”, a Roman tax imposed by Constantine I, repealed by Anastasios I. The tax was imposed on professions and forced artisans into guilds. A certain sum was collected from each profession in a taxing district [cf. A. Dessau, Finanzen des alten Rom, ²² אכסניי פרכא, from Greek ξενία “hospitality, lodging”; πάροχος, Latin parochus ²³ The bribe is given to spare one’s house from receiving soldiers to put up. The entire paragraph is quoted in extenso

A person put down a stone in the public domain, another person put down another stone next to the first, a third person stumbled over the first and struck the other²⁴. Who has to pay damages, the first or the second person? Let us hear from the following²⁵: “A bull pushed another ox which then fell into a pit. The owner of the bull has to pay²⁶; the ‘owner’²⁷21:34, calls him “owner of the pit”. In the language of the Babli (29b, Pesaḥim 6b) “it is not a person’s property but the verse treats it as if it were his property.” The biblical expression is used as a technical term to denote liability. of the pit is free. Rebbi Nathan says, if the attacker was notorious, each of them pays one half²⁸; if it was tame, the owner of the bull²⁹ pays two thirds³⁰ parts” means “n parts of n+1”, following Egyptian arithmetic practice. In the statement here, all commentators, from Eliahu Fulda to S. Lieberman, claim that “two parts” means “two parts out of four”, i. e., one half. This contradicts Talmudic practice. One has to accept the statement of R. Ḥanina (in the Rome ms.: R. Isaac) that the text is corrupt and has to be corrected. Only the corrected text is mentioned in Babli and Tosephta. and the ‘owner’ of the pit²⁹ a quarter.” Rebbi Ḥanania said, so is the baraita: The owner of the bull²⁹ pays three quarters and the ‘owner’ of the pit²⁹ a quarter³¹. (A person put down a stone in the public domain, another person put down another stone next to the first, a third person stumbled over the first and struck the other. Who has to pay damages, the first or the second person?)³²

footnotes: ²⁴ He is injured by the second stone but would not have been injured had he not stumbled over the first. ²⁵ Tosephta 6:1; quoted also in the Babli, 53a. ²⁶ Under the rules of “horn”, full damages if the ox was notorious, half damages if it was tame (Tosaphot 53a, s.v. בעל). ²⁷ The pit or any obstacle classified as “pit” is in the public domain; it is not property of the person who created the obstacle. But the verse, Ex. ²⁸ As explained in the Babli, R. Nathan holds that the ‘owner’ of the pit, the place where the attacked animal died, is the primary payor and, under the rules of “pit”, has to pay 100% of the damages. Then he has regress on the owner of the attacking bull for half of his cost. ²⁹ Even though the reading of the text is confirmed by the Rome and Escurial mss., it seems that one has to read “pit” for “bull” and vice versa in all occurrences. ³⁰ In all of Talmudic literature, the expression “n ²⁹ Even though the reading of the text is confirmed by the Rome and Escurial mss., it seems that one has to read “pit” for “bull” and vice versa in all occurrences. ²⁹ Even though the reading of the text is confirmed by the Rome and Escurial mss., it seems that one has to read “pit” for “bull” and vice versa in all occurrences. ²⁹ Even though the reading of the text is confirmed by the Rome and Escurial mss., it seems that one has to read “pit” for “bull” and vice versa in all occurrences. ³¹ As explained in the Babli, the ‘owner’ of the pit has regress on the owner of the tame bull only for half the damages. Since the owner of a notorious bull has to pay ½, the owner of a tame bull pays ¼ of the damages to the ‘owner’ of the pit who had paid all damages to the owner of the animal which was killed. ³² Dittography of the corrector for the printed edition, faithfully reproduced in the Venice print.

A person put down a stone in the public domain, the wind blew it onto a private domain, another person stumbled over it. Is [the first] responsible for damages³³?

footnotes: ³³ The question is not answered; it is decided in the negative since a claimant could not prove the law to be on his side.

A person put down a stone in the public domain, another person stumbled over it and made it roll into a private domain where a third person stumbled over it. Is [the first] responsible for damages³³?

footnotes: ³³ The question is not answered; it is decided in the negative since a claimant could not prove the law to be on his side.

Rebbi Joḥanan said: A person put down a stone and his load in the public domain, a second person stumbled over it while he held a flask in his hand. Whether he stumbled over the stone and hit the ground or hit the stone and stumbled over the ground, [the first] has to pay damages to the person but is free from damages to the flask³⁴ 21:34 limits damages under the category of “pit” to humans and livestock, excluding its load (Mishnah 5:9; Tosephta 6:14; Babli 28b; Mekhilta dR. Ismael, Neziqin 11).. The statement of Rebbi Joḥanan implies that for “pit” damages one is free from damages to vessels. But if he hit it in walking³⁵, he³⁶ has to pay even for the flask.

footnotes: ³⁴ Since Ex. ³⁵ If the person was not injured by the obstacle classified as “pit”, the ‘owner’ of the pit is liable for damages. Babli 28b. ³⁶ The ‘owner’ of the “pit”.

MISHNAH: If his jar was broken in the public domain and another person slipped on the water or was hurt by one of its shards, he must pay. Rebbi Jehudah said, if intentionally, he has to pay; if unintentionally, he is free.

HALAKHAH: “If his jar was broken in the public domain,” etc. Rebbi Eleazar said, they disagree at the moment of the accident. But after the accident everybody agrees that he must pay³⁷. Rebbi Joḥanan said, the disagreement is both at the moment of the accident and afterwards³⁸. Rebbi Joḥanan objected to Rebbi Eleazar: If he does not have to pay at the moment of the accident, is it not an inference de minore ad majus afterwards³⁹ that afterwards he has to pay?” In S. Lieberman’s opinion (in his notes to A. H. Freimann’s edition of the Rome text), the Rome ms. represents an amalgamation of two different sources.? Why should he be free at the moment of the accident? For a person declares his damaged property in the public domain as ownerless⁴⁰. A baraita supports both of them, as it was stated: “The Sages agree with Rebbi Jehudah that somebody who puts down his stone or his load in the public domain does not have to pay if another person stumbled over it, for on this condition did Joshua distribute the Land⁴¹ 13:7 Note 107, Nazir 7:1 Note 40. This condition is not mentioned in any other source..” Therefore, if Joshua had not distributed the Land on this condition, he would have to pay. In the opinion of Rebbi Joḥanan, if he intended use of the potsherds⁴². In the opinion of Rebbi Eleazar, if he intended to cause damage⁴³. Rebbi Ze‘ira and Rebbi La both say that Rebbi Jehudah agrees with the Sages that one has to pay if he declares his bull who gored in the public domain ownerless. Stationary damage cannot be compared to walking damage.

footnotes: ³⁷ As explained at length in the Babli, 29a/b, Rebbi Jehudah holds that in using the public domain one has to be mindful of others who use the same space. Therefore a person who runs into the scene of an accident is negligent and has no claim for damages. The majority hold that follow-up accidents are the responsibility of the person who caused the first accident. R. Jehudah will agree that if he did not remove the obstacle which the accident created, he becomes ‘owner’ of his ‘pit’ by biblical decree. ³⁸ Since the public domain is strewn with shards and other debris, these are ownerless and no responsibility can be pinned on anybody.The position of R. Joḥanan is not clear in any of the Talmudim. The Rome text presents two opinions attributed to R. Johanan, the one quoted here and “they disagree at the moment of the accident, but after the accident everybody agrees that he is free.” ³⁹ That he should be freed from liability as explained in the preceding Note. Rome text: “is it not an inference de minore ad majus ⁴⁰ Accepted in the Babli, 29a/b. ⁴¹ Everybody has the right to fair use of public property. It is perfectly normal that one should be able to put down one’s load for a time before continuing on his journey, and other people have to be aware of this and be considerate. Private property on public grounds becomes ‘pit’ only at the moment it is left there unsupervised.In general, “conditions on which Joshua did distribute the Land” refer to public uses of private property; cf. Ketubot ⁴² Here starts the discussion of what R. Jehudah calls “intentional accident” which makes the owner of the jar liable. If the owner of the jar intends to use the shards (e. g., as writing material), he does not declare them ownerless and the reason given for freeing him from payment does not apply. ⁴³ If he does not clean up after the accident, he shows that he does not care about what happens to others; this explains R. Eleazar’s opinion that after the accident even R. Jehudah requires payment.

MISHNAH: He who pours out water in the public domain⁴⁴ is liable for the damage if another person is hurt because of this. He who puts away a thorn, or glass, or who fences his fence with thorns, or [owns] a fence which collapsed into the public domain, is liable for the damage if other persons are hurt because of this⁴⁵.

footnotes: ⁴⁴ Illicit use of public domain. ⁴⁵ This sentence is somewhat too compressed. If somebody puts away dangerous things (a thorn, broken glass) in the public domain he is liable for any ensuing damage. The same holds if he fences in his orchard by a thorny hedge and the thorns grow into the public domain; he is liable for hurt caused within the public domain. If any of his property, fence, or wall collapses into the public domain, he is liable for any damages caused.

HALAKHAH: “He who pours out water in the public domain,” etc. Rav Huna said, when he was falling to the ground. But if his garments were dirtied, one is liable. Rav said, even if his garments were dirtied, he is not liable⁴⁶. The word of Rav implies one is not liable for ‘pit’ damages of vessels.

footnotes: ⁴⁶ Since the text is confirmed by the parallel mss., it cannot be amended. In the Babli, 30a, Rav holds that the person pouring out the water is liable only for clothing, not for injury to the person slipping in the water; Rav Huna objects. Since pouring out water is intentional, even R. Jehudah (Mishnah 2) will agree that ‘pit’ was created at the moment of the pouring; in this case there is no difference in liability during or after the pouring. One has to conclude that the Yerushalmi reports a Babylonian tradition diametrically opposed to that reported in the Babli: Everybody agrees that for personal injury the person who is to blame has to pay; for vessels it is a dispute (cf. Note 34).

“If somebody hides a thorn or [a piece of] glass in another person’s wall; if the owner of the wall then tears it down and a third person is hurt, he is liable. The pious people of earlier times used to take them out⁴⁷ into their fields, lower than three handbreadths so that the plough would not lift them⁴⁸.”

footnotes: ⁴⁷ This is the text of the mss. and the Tosephta; it was changed by the corrector of the Venice edition to מצניעין “they buried them”. ⁴⁸ Tosephta 2:6; Babli 30a. It is unclear who has to pay; probably it is the person who put the glass into the hole in the wall. In the interpretation of the Babli, he only has to pay if the wall was already weakened and one could foresee that it had to be taken down; this certainly is not the position of the Yerushalmi.

New Paragraph. “He fences his fence with thorns.” Rebbi Joḥanan said, explain it according to everybody if it grew outwardly⁴⁹. Rebbi Abun bar Ḥiyya asked before Rebbi Ze‘ira: Why do we not explain it following Rebbi Yose ben Rebbi Jehudah who said, three [handbreadths] close to a domain are counted with the domain⁵⁰ handbreadths away from the boundary. The Yerushalmi version is repeated in Halakhah 5:7 Note 62.? He answered, why are you not satisfied with what Rebbi Joḥanan said; explain it according to everybody if it grew outwardly.

footnotes: ⁴⁹ If the thorns grow into the public domain, the owner of the hedge is responsible. If the hedge is cut exactly at the border of the private domain, most authorities in the Babli, 30a, hold that people do not walk too close to a wall or a hedge and, therefore, the owner of the hedge is not liable for injuries occurring on his property line. ⁵⁰ In Babylonian sources, Babli 50a, Tosephta 6:4, he is quoted as requiring any potential danger in a private domain to be at least four

“A fence which collapsed into the public domain.” Rebbi Abbahu in the name of Rebbi Simeon ben Laqish: This is Rebbi Meïr’s, since Rebbi Meïr said, one is liable for damage caused by inaction. This is the following⁵¹ 10:4, dealing with a wall or a tree close to the public domain which may constitute a danger of imminent collapse; a court order is issued to the owner to eliminate the danger.: “If he was given a deadline by which to cut the tree or demolish the wall and they collapsed, if it happened within the term, he is not liable; after the term, he is liable.” How much is a term? Rebbi Hoshaia stated: 30 days⁵² 10:4; in the Babli, Bava meṣi‘a 118a as statement of R. Joḥanan. In the Tosephta (Bava qama 2:5, Bava meṣi‘a 11:7): At least thirty days..

footnotes: ⁵¹ Mishnah Bava meṣi‘a ⁵² Also in Bava meṣi‘a

MISHNAH: If somebody take out his straw and his pressed olives⁵³ into the public domain to compost, he is liable for any damages another person might incur because of this. Anybody may take it and acquire it⁵⁴. If somebody turns over cow droppings in the public domain⁵⁵, he is liable for any damages another person might incur because of this.

footnotes: ⁵³ After they have been pressed for the production of olive oil and are squeezed dry. This is an illegal use of the public domain. ⁵⁴ By rabbinic convention, anything deposited illegally in the public domain becomes ownerless; it becomes the property of the first person to take it up and remove it from the public domain. The Mishnah in the Babli and most independent Mishnah mss. have this principle spelled out by Rabban Simeon ben Gamliel. ⁵⁵ This is an act of acquisition; he may collect the droppings but at the same time he becomes the owner of the corresponding ‘pit’.

HALAKHAH: “If somebody take out his straw and his pressed olives,” etc. What did he acquire? The House of Yannai said, the increase in value. Samuel said, the substance⁵⁶.

footnotes: ⁵⁶ The person who picks up the composted material from the public domain gets it all without paying according to Samuel; the House of Yannai would require him to pay the price of the original material to the previous owner. Babli 30b, in the names of Rav and Ze‘iri.

Ḥizqiah said, only if he turned it over to acquire⁵⁷. The word of Ḥizqiah implies that movables can be acquired by turning them over⁵⁸ 1:5 all movables can be acquired by lifting; turning over seems to be impossible without lifting.. ⁵⁹ 1:5, Notes 514 ff., in a different formulation with mostly different speakers. But could they be acquired by dragging? Rebbi Abun bar Ḥiyya said, this is reasonable for pillars and hard hides⁶⁰ 1:5, Note 514.. But soft hides one does not acquire unless one lifts them up.

footnotes: ⁵⁷ This now refers to cow dung. The parallel mss. and Medieval quotes all have an additional sentence: If he did not turn it over with the intention of acquiring, it was not acquired. ⁵⁸ This is rather obvious since by Mishnah Qiddušin ⁵⁹ From here to the end of the Halakhah there is a parallel in Qiddušin ⁶⁰ Which cannot be lifted by a single person; Qiddušin

Rebbi Aḥa said, would that not⁶¹ be obvious from the reasoning of the rabbis?⁶² ⁶³ 7:1 Notes 51–71, Ketubot 3:1 Note 30, Qiddušin 1:5 Notes 515–519. Except for the example of the rebellious son, the passage in Qiddušin is a differently formulated close parallel to the text here. Is the rebellious son liable for double restitution for his first theft?⁶⁴ 21:18–21) is stoned if convicted of financing an extravagant lifestyle by repeated theft from his parents. For a first theft he cannot be prosecuted as rebellious son; one would expect that all the rules of theft apply to him. But he cannot be prosecuted as rebellious son if he never was convicted of the first theft. Of the 200% of the stolen amount which the law on theft requires him to pay, the first 100% are restitution. But the second 100% are a fine. Can the fine be collected if in some indeterminate future the conviction might be an integral part of a capital case? Or since he is warned of a capital offense should he be freed? Let us hear from the following: If somebody steals another’s wallet⁶⁵ and removes it on the Sabbath he is liable since he already is liable for the theft of the wallet before he comes in conflict with the holiness of the Sabbath. Is he not forewarned of a capital offense and you say, he is liable! Here⁶⁶ also, even though he is forewarned of a capital offense, you say that he has to be liable. Rebbi Yannai bar Ismael said, Rebbi Hoshaia follows his own opinion, as we have stated: He who takes out is guilty even if he did not put down⁶⁷ 1:1 2b l. 40, Babli Ketubot 31a). R. Hoshaia disagrees. However, the reason might be that he follows Ben Azai (Šabbat1:1, 2c l. 41; Babli Ketubot 31b) who holds that walking is like standing still. Everybody agrees that standing still while carrying something is equivalent to putting it down.. Similarly, he who takes out is guilty even if he did not take up with the intent to take out⁶⁸ 91b, Bava batra 86a., for warning is possible only at the moment of his taking out. It was stated: If he was dragging it until he left⁶⁸ 91b, Bava batra 86a., he is free since the obligations of capital crime and restitution falls on him simultaneously. Therefore, if both obligations do not fall on him simultaneously, he is liable. Rebbi Yose ben Rebbi Abun said, explain it with large pouches which usually are dragged⁶⁰ 1:5, Note 514.; one cannot infer anything from this⁶⁹.

footnotes: ⁶¹ Reading with the Rome fragment לית for ליי in the text. With this paragraph, the fragment ends. ⁶² The negative answer is only given at the end of the paragraph. ⁶³ The principle that monetary fines are barred in cases of criminal punishment is detailed in Terumot ⁶⁴ The rebellious son (Deut. ⁶⁵ The theft occurs in the victim’s home. The thief is guilty of theft at the moment he lifts the wallet; he is guilty of desecrating the Sabbath only when he removes it from the house into the public domain. ⁶⁶ The case of the rebellious son. ⁶⁷ For the rabbis, the Sabbath is desecrated only by a complete prohibited action. Transport has three parts: Lifting an article, transporting it (which under certain circumstances is prohibited on the Sabbath) and putting the article down. For the rabbis, a person cannot be prosecuted for desecration of the Sabbath if he takes an object in a private domain, takes it out to the public domain and never stops moving until the end of the Sabbath (R. Joḥanan in Šabbat ⁶⁸ This Tanna holds that an article cannot be acquired by dragging it on the floor, but only by lifting; cf. Babli Šabbat ⁶⁸ This Tanna holds that an article cannot be acquired by dragging it on the floor, but only by lifting; cf. Babli Šabbat ⁶⁰ Which cannot be lifted by a single person; Qiddušin ⁶⁹ There is no indication that smaller articles can be acquired by dragging.

One objects from the Mishnah; sometimes one objects in support of Rebbi Joḥanan⁷⁰, sometimes one objects in support of Rebbi Simeon ben Laqish⁷¹ 14a, as “stupidity”).. ⁷² 3:4; quoted partially Šabbat 1:1, 2c l. 43.“A person may eat once and be liable for four purification and one reparation sacrifices: An impure person who ate suet which was leftover sacrifice on the Day of Atonement⁷³ 7:20), suet (v. 23), and leftover sacrificial meat (v. 18), a fourth for eating on the Day of Atonement (*Lev.*23:29). A reparation sacrifice is due for the unauthorized use of sancta(*Lev.*5:15).. Rebbi Meïr said, if it was a Sabbath and he took it out⁷⁴ on the Sabbath. They told him, it is not from that category⁷⁵.” When they objected in support of Rebbi Joḥanan: If he took it out on the Sabbath, there is no putting down⁷⁶. Why did they say, it is not from that category⁷⁷ putting it down. Since for him transporting on the Sabbath is not punishable without bringing the object being transported to rest, the liability is triggered not by carrying outside but by eating. This would be in the same category as the other transgressions.? When they objected in support of Rebbi Simeon ben Laqish: Why is he not liable if he took it out on the Day of Atonement⁷⁸? Rebbi Yose ben Rebbi Abun said, Rebbi Meïr follows Rebbi Aqiba, as it was stated⁷⁹ 9(8); Babli Ḥulin 101a (with R. Yose the Galilean instead of R. Ismael); Tosephta Keritut2:17 (attributions switched).: From where that if one unintentionally worked on a Day of Atonement which fell on the Sabbath, he is liable for each one separately? The verse says, “it is Sabbath⁸⁰ 23:3.,” “it is the Day of Atonement.⁸¹ 23:28. In this opinion, R. Meïr details obligation of 6 purification offerings.” Rebbi Ismael said, he is liable only once⁸². If he took it out] on the Sabbath and put it down. Why did they say: “it is not from that category”? I would say in explanation that he ate it. Is eating not putting it down? Therefore, it is only reasonable that if he took it out on the Sabbath, he be liable. Then if he took it out [on the Day of Atonement why should he not be liable?

footnotes: ⁷⁰ In his dispute with R. Hoshaia; Note 67. ⁷¹ It is not known to which statement or disagreement this refers. It seems that one refers to the question whether carrying from one domain to another is forbidden on the Day of Atonement since it is forbidden on the Sabbath (even though this opinion is characterized in the Babli, Keritut ⁷² Mishnah Keritut ⁷³ Three purification offerings are due for the inadvertent eating of sacrificial meat by an impure person (Lev. ⁷⁴ He put the meat in his mouth in one domain, went out and ate it in another domain. ⁷⁵ This sin is committed by carrying, not eating. ⁷⁶ If the person ate in walking, the piece of meat disappears without coming to rest. ⁷⁷ According to R. Joḥanan, eating the piece is ⁷⁸ Why could R. Meïr not mention transporting on the Day of Atonement? The E text has here an addition:הוֹצִיאוֹ [בַּשַׁבָּת וְהִנִיחוֹ. וְלָמָּה אָמְרוּ אֵינוֹ הַשֵׁם, אֵימַר תִּיפְתָּר בְּשֶׁאָכְלָהּ. וַאֲכִילָה הַנָחָה הִיא. לא מִסְתַּבְּרָה וְלֹא הוֹצִיאוֹ בַּשַׁבָּת חַייָב. הֲרֵי שֶׁהוֹצִיאוֹ] בְּיוֹם הַכִּיפּוּרִים יְהֵא פָטוּר.If he took it out [on the Sabbath and put it down. Why did they say: "it is not from that category"? I would say in explanation that he ate it. Is eating not putting it down? Therefore, it is only reasonable that if he took it out on the Sabbath, he be liable. Then if he took it out] on the Day of Atonement why should he not be liable?The additional text is between the brackets, [ ]. It seems that the scribe of L lost the text between הוציאו and שהוציאו. But since the text does not add anything to the discussion, the addition might be a gloss that entered the text. ⁷⁹ Sifra Emor Parašah ⁸⁰ Lev. ⁸¹ Lev. ⁸² Since there is only one punishment in case of willful transgression, there can be only one sacrifice in case of inadvertent sin.

MISHNAH: Two potters were walking one behind the other. The first stumbled and the second stumbled over the first; the first is liable for the damage done to the second. One came with an amphora, the other came with a beam. If the jug of the one was broken by the other’s beam he is not liable since each of them had the right to walk there⁸³.

footnotes: ⁸³ The owner of the jug had the duty to keep his distance from any obstacle which endangered his vessel.

HALAKHAH: “Two potters were walking one behind the other,” etc. Rebbi Joḥanan asked: Does one give time to the first to get up⁸⁴? Rebbi Yose said, it is obvious for Rebbi Joḥanan to give time to the first to stand up. But it is reasonable otherwise from the second one onwards⁸⁵, does one give time to the second to stand up? Let us hear from the following: ⁸⁶“Potters were walking one behind the other. The first stumbled and fell, the next one stumbled and fell, the next one stumbled and fell. The first one pays to the second, and the second to the third. But if all fell because of the first, he pays for all of them. They are liable for damage to humans but not liable for damage to vessels⁸⁷. But if they (damaged) [warned]⁸⁸ one another, none are liable. Donkey drivers were walking one behind the other. The first stumbled and fell, the next one stumbled and fell, the next one stumbled and fell. The first one pays to the second, and the second to the third. But if all fell because of the first, he pays for all of them. Donkeys were walking one behind the other. The first stumbled and fell, the next one stumbled and fell: even 100, all are liable.” Some Tannaïm state, none are liable. Rebbi La said, he who says ‘liable’, if their owner let them lie down. He who says ‘not liable’, if they fell, since animals are not responsible for accidents⁸⁹. “If the feet of a donkey were bad, one is not allowed to step over him. [ ]⁹⁰” What does it mean, ‘to step over him?’ They step on his body and pass by⁹¹. “If one was free, the other loaded, the loaded one has the right of way before the free one. One unloaded⁹², the other one loaded, the loaded one has the right of way before the unloaded one. If both were loaded or both unloaded, let them agree between themselves⁹³ 32b, the one who gives up his right of way can demand payment from the other party.. Two carriages or two ships, one empty, the other loaded, the loaded one has the right of way before the unloaded one. If both were unloaded or loaded, let them agree between themselves.” ⁹⁴ Chapter 10; Derekh Ereṣ (Maḥzor Vitry) Chapter 8, end.“The person entering the bath house gives precedence to⁹⁵ the person leaving; the person leaving the toilet gives precedence to the person entering.”

footnotes: ⁸⁴ Is stumbling alone an indication of insufficient attention which makes the stumbled person liable to damages? Or is the person who notices that he is falling down required to alert the persons following him to be careful? Or is stumbling an accident for which he is not responsible; his liability then would start only if he does not expeditously clear the way for others. Also in the Babli, 31a, R. Joḥanan is reported to accept the third alternative. ⁸⁵ If somebody sees an accident in the road in front of him, does he have to stop faster to avoid a multiple collision? ⁸⁶ The following text to the end of the paragraph, except for some interspersed editorial comments, is closely related to Tosephta 2:8–10 (partially quoted in the Babli 31a); these texts are used to correct a scribal error and fill a lacuna in the text. ⁸⁷ By the rules of ‘pit’. The Babli, 31b, denies the definition of ‘pit’ to the first person who caused the mass collision. ⁸⁸ Reading of Tosephta and Babli. ⁸⁹ The owner of an animal is not responsible for accidents caused by it. The sentence about donkey drivers was inserted only to show the difference between the drivers and their animals. ⁹⁰ With the parallels, one has to insert: “If it fell, they are permitted to step over it.” ⁹¹ If the path is narrow and does not allow for a bypass. ⁹² It carries empty packaging. ⁹³ In the Babli, Sanhedrin ⁹⁴ Derekh Ereṣ Rabba, ⁹⁵ Yields the right of way.

“One came with an amphora, another came with a beam.” Rebbi Ze‘ira asked: If they changed⁹⁶ and caused damage, what is the rule? Let us hear from the following: ⁹⁷“Five people sat on a couch; another came, saton it, and it broke. He pays for all of them. But if it broke because of all of them⁹⁸, they are all liable.”

footnotes: ⁹⁶ One of the people suddenly changed his speed so that the other crashed into him. One might read this paragraph in connection with the next Mishnah. ⁹⁷ Tosephta 2:9; partially in Babli 10b. ⁹⁸ They invited the sixth; this caused the overload.

MISHNAH: If the carrier of the beam was first and the carrier of the amphora last. If the jar broke on the beam, he⁹⁹ is not liable¹⁰⁰; but if the carrier of the beam stopped walking, he is liable, except that he is not liable if he said to the carrier of the amphora: stop! If the carrier of the amphora was first and the carrier of the beam last. If the jar broke on the beam, he⁹⁹ is liable, but if the carrier of the amphora stopped walking, he is not liable, except that he⁹⁹ is liable if he¹⁰¹ said to the carrier of the beam: stop! The same applies if one carries fire and the other flax¹⁰².

footnotes: ⁹⁹ The carrier of the beam. ¹⁰⁰ Nobody using the public domain is required to have eyes in the back of his head. ⁹⁹ The carrier of the beam. ⁹⁹ The carrier of the beam. ¹⁰¹ The carrier of the amphora. ¹⁰² And the flax was burned.

HALAKHAH: “If the carrier of the beam,” etc. Did not Rav say: If he filled the entire public domain¹¹⁰⁴? (And this filled the entire public domain.)¹⁰⁵ One said, since he stopped, he is like a street corner⁷.

footnotes: ¹ Babli 27b. If one does not stop traffic, one is permitted to put down his load in the public domain. ¹⁰⁴ The Mishnah only applies to a narrow path; on a wide road the second person is required not to walk directly behind the one carrying a dangerous load. ¹⁰⁵ A corrector’s addition; probably taken unthinkingly from the first paragraph of the Chapter. ⁷ The person who turns around the corner could not see the obstacle in front of him. In the Babli, this is attributed to R. Joḥanan; Samuel applies the Mishnah to accidents in the dark. (In R, the statements of Rav and Samuel are conflated to one short text.)

MISHNAH: Two were walking in the public domain, or one was running and one was walking, or both were running. If they caused damage one to the other, neither of them is liable¹⁰⁵.

footnotes: ¹⁰⁵ A corrector’s addition; probably taken unthinkingly from the first paragraph of the Chapter.

HALAKHAH: “Two were walking” etc. ¹⁰⁶“Yose the Babylonian said: If one ran in the public domain and caused damage, he is liable. Late Friday evening he is not liable¹⁰⁷.” They said, Yose the Babylonian is Yose ben Jehudah, is Yose the small one¹⁰⁸ 113b, bottom.. Why is he called Yose the small one? Because he was the last of the pious¹⁰⁹: Yerushalmi 9:17, Note 275; Babli 49b; Tosephta 15:5; Yoma 52b..

footnotes: ¹⁰⁶ Tosephta 2:11; Babli 32a in the language of the Tosephta. ¹⁰⁷ Anybody exceeding the speed limit is liable for any damage. But late Friday night everybody is running. ¹⁰⁸ A longer list is in the Babli, Pesaḥim ¹⁰⁹ A different version in Soṭah

MISHNAH: If somebody split [wood] in a private domain¹¹⁰ and caused damage in the public domain, in the public domain¹¹¹ and caused damage in a private domain, in a private domain and caused damage in another private domain, he is liable.

footnotes: ¹¹⁰ A legitimate act which requires precautions to be taken because it is intrinsically dangerous. ¹¹¹ An illegitimate act.

HALAKHAH: “If somebody split [wood] in a private domain,” etc. ¹¹² 2:4. The text bracketed here is an addition by the corrector, probably from Makkot, recognizable by his standard Babli spelling. The same topic is discussed in the Babli, 32b/33a. Rebbi Yose ben Ḥanina said, if he was splitting wood in his courtyard when a worker entered to claim¹¹³ “To collect”. In any case, the person entering did not trespass. his wages, and a splinter ricocheted and damaged him, he is liable. If he died he does not go into exile¹¹⁴ adds: “Because it is not as in a forest,” referring to Deut. 19:5 which describes the circumstances under which the homicide has to dwell in a city of refuge. The Babli, 33a, quotes the end of the same verse, describing how the blade of an ax “finds his neighbor and he dies”, to exclude one who walks into the path of danger (cf. Sifry Deut. 183).. But did not Rebbi Ḥiyya state, “he is not liable”? They do not disagree. What Rebbi Yose said, if he had seen him, but what Rebbi Ḥiyya said, if he had not seen him. If he had not seen him, once he said to him: enter, {should he not be liable? But did not Rebbi Ḥiyya state, “he is not liable”? Since he told him: enter, he has to take precautions¹¹⁵. Some want to say, since he told him to enter it} becomes like the courtyard of partners, about which Rebbi Joḥanan said in the name of Rebbi Yannai¹¹⁶ 5:1, Notes 22–23: Partners acquire from one another in a courtyard and are mutually liable for damages. But did not Rav say: If he filled the entire public domain¹¹⁰⁴? And did this fill the entire public domain? They said, since he¹¹⁷ walks in the entire courtyard, it is as if he had filled the entire courtyard.

footnotes: ¹¹² The entire paragraph is copied in Makkot ¹¹³ In Makkot: ¹¹⁴ The responsibility of the person splitting wood in his own backyard is in civil, not in criminal law. The text in Makkot ¹¹⁵ In Tosephta 6:27 it is stated explicitly that the worker, who has the right to go and collect his wages, enters on his own responsibility unless invited in, at which moment the responsibility shifts to his employer. ¹¹⁶ Nedarim ¹ Babli 27b. If one does not stop traffic, one is permitted to put down his load in the public domain. ¹⁰⁴ The Mishnah only applies to a narrow path; on a wide road the second person is required not to walk directly behind the one carrying a dangerous load. ¹¹⁷ The worker, looking for his employer to collect his wages.

MISHNAH: Two tame bulls which injured one another; one pays half for the excess damage¹¹⁸. If both are notorious, one pays in full for the excess damage. One tame and one notorious; the notorious over the tame pays in full for the excess damage; the tame over the notorious pays half for the excess damage. Similarly, two people who injured one another pay in full for the excess damage¹¹⁹. A human and a notorious animal, or a notorious animal and a human, one pays in full for the excess damage. A human and a tame animal; the human over the tame pays in full for the excess damage; the tame over the human pays half for the excess damage. Rebbi Akiba says, also a tame animal which injured a human pays the excess damage in full¹²⁰ 21 do not apply to damages caused to humans.. A bull worth a mina¹²¹ which gored a bull worth 200 and the cadaver is not worth anything; he¹²² takes the bull. A bull worth 200 which gored a bull worth 200 and the cadaver is not worth anything; Rebbi Meïr said, about this case it was said¹²³ 21:35.: “They shall sell the living bull and split the proceeds.” Rebbi Jehudah said to him, you upheld “they shall sell the living bull and split the proceeds,” but you did not uphold ¹²³ 21:35.“and also the cadaver they shall split.” What is this? That is a bull worth 200 which gored a bull worth 200 and the cadaver is worth 50 zuz¹²⁴ is identified with the Roman denar., in which case each owner takes half of the living bull and half from the cadaver¹²⁵ 12..

footnotes: ¹¹⁸ Since each owner has to pay damages to the other, in effect only the owner of the bull causing the greater damage has to pay for the excess damage his animal did cause, by the statutory rate of 50% for the tame, 100% for the notorious. ¹¹⁹ Since a human always is notorious (2:10). ¹²⁰ He holds that the rules of Ex. ¹²¹ 100 denars. ¹²² The owner of the dead bull. It is presumed that the aggressor was tame and the damage be paid from its body (Mishnah 1:5). ¹²³ Ex. ¹²³ Ex. ¹²⁴ The Babylonian half-šeqel, zūz, ¹²⁵ Tosephta 3:3; Mekhilta dR. Ismael, Neziqin

HALAKHAH: “A bull worth a mina” etc. ¹²⁶ is similar to Tosephta 2:5, but the latter is not an edition of the text underlying the Yerushalmi.“A bull worth a mina which gored a bull worth a mina; weakened (it) in the amount of 50 zuz; he takes the bull, for he gets only half the amount of the injury and therefore, if the bull died or was weakened, he only has that bull¹²⁷. A bull worth a mina which gored a bull worth 200 and weakened it in the amount of 50 zuz; then the second [bull] couter-attacked and injured it to the amount of three gold [denars]. The first pays half a gold denar to the second¹²⁸ pays half a gold denar to the first.” The first bull damaged the second in the amount of 50 silver denar. The second damaged the first for 3 gold denar = 75 silver denar. The excess loss to be compensated for is 25 silver denar = 1 gold denar. If the bulls were tame, half a gold denar would be due.. A bull worth 200 which gored a bull worth 200. It increased in value and now is worth 400; but if it had not gored it, it would now be worth 800 zuz. If it improved before the trial it is judged as at the time of the damage¹²⁹. If it was weakened, it is judged as at the time of the trial.” Rebbi La said, so is the baraita: The agressor improved; if it improved before the trial it is judged as at the time of the damage; if it weakened, it is judged as at the time of the trial¹³⁰.

footnotes: ¹²⁶ The text of this baraita ¹²⁷ This sentence assumes that the first bull be tame. The first bull kills the second; the first is weakened by the fight and now is worth only half the value of the bull it killed. The owner of the dead bull takes the living one as exact payment. ¹²⁸ One must read with the Tosephta: “The second ¹²⁹ The owner of the second bull can only claim the diminution of value immediately after the attack, which certainly is less than the 200 denar value of the bull at that moment, not the 400 denar of future loss. ¹³⁰ When expert testimony may be taken.

What is Rebbi Meïr’s reason? The verse says, ¹²³ 21:35.“they shall sell the living bull and split its proceeds.” How does Rebbi Jehudah support ¹²³ 21:35.“and also the cadaver they shall split”? From here that each one loses half the damages¹³¹ 12; cf. Halakhah 1:3, end. The verse proves that half damages for ‘horn’ are paid exclusively from the proceeds of the sale of the attacking animal..

footnotes: ¹²³ Ex. ¹²³ Ex. ¹³¹ Babli 34a; Tosephta 3:3; Mekhilta dR. Ismael Neziqin

MISHNAH: A person may be liable for the action of his bull but not liable for his own action, not liable for the action of his bull but liable for his own action: If his bull puts to shame, he is not liable;¹³² but if he put to shame, he is liable. If his bull blinded the eye of his slave or knocked out his tooth, he is not liable; but if he himself blinded the eye of his slave or knocked out his tooth, he is liable¹³³ 21:26–27 decree only that a slave gain his freedom if he is mistreated by his owner personally.. If his bull injured his father or his mother, he is liable¹³⁴; but if he himself injured his father or his mother, he is not liable¹³⁵ 21:15) and nobody has to pay if he is tried for his life (Terumot 7:1, Notes 3–73; Ketubot 3:1).. If his bull set fire to a stack of sheaves on the Sabbath; he is liable, but if he set fire to a stack of sheaves on the Sabbath, he is not liable since he will be tried for a capital crime¹³⁵ 21:15) and nobody has to pay if he is tried for his life (Terumot 7:1, Notes 3–73; Ketubot 3:1)..

footnotes: ¹³² An animal cannot insult a human; cf. Chapter 1, Note 17. ¹³³ The rules of Ex. ¹³⁴ As for injury to any third person. ¹³⁵ Since he committed a capital crime (Ex. ¹³⁵ Since he committed a capital crime (Ex.

HALAKHAH: ¹³⁹ the paragraph was then wrongly inserted after Halakhah 8; it refers to Mishnah 12.: “Two tame bulls,” etc. ¹⁴⁰ 2:2 (5a l. 31), Erubin 10:12 (26c l. 47), Pesaḥim6:1 (33b l. 34); Babli Bava qamma 34b, Šabbat 106a, Beṣah 12b, Yebamot 16b, Sanhedrin 62b. Ben Pedaia said: Spoilers are not liable¹⁴¹ 16:29) only leaving the camp was forbidden. In the Ten Commandments (Ex. 20:10), “all work” is forbidden without a definition of what constitutes “work”. The missing definition is deduced from Ex. 35. That Chapter starts with a repetition of the Sabbath prohibitions and then proceeds with the instructions for the building of the Tabernacle. One concludes that the work necessary for building the Tabernacle is the work forbidden on the Sabbath (Mekhilta dR. Ismael, Wayyaqhel). Then in v. 33 the work of Beṣalel and Aholiab, the builders of the Tabernacle, is defined as מְלֶכֶת מַחֲשָׁבֶת “thinking work”. The only work which constitutes a punishable desecration of the Sabbath is intentional constructive work. Therefore, any purely destructive work is not punishable. except for one making a fire and one causing a wound. Rebbi Joḥanan said, one making a fire only if he needs the ashes; one causing a wound only if he needs the blood¹⁴². But did we not state: “His bull”¹⁴³? His bull needs ashes¹⁴⁴.

footnotes: ¹³⁹ The ms. has the text placed correctly after Halakhah 11 but with a wrong header, “Halakhah 9”. In the editio princeps, ¹⁴⁰ The parallels are Šabbat ¹⁴¹ “Liable” and “not liable” here mean “guilty” and “not guilty” under the laws of the Sabbath. In the first introductory paragraph to the laws of the Sabbath (Ex. ¹⁴² Without exception, destructive work without positive effects is not punishable. ¹⁴³ In the Mishnah here. ¹⁴⁴ As the Babli explains, 35a, an intelligent bull which has a wound on its back sets a fire because it needs the ashes to wallow in them to ease its pain.

MISHNAH: If a bull was pursuing another bull which was damaged. This one says, your bull did the damage, but the other one says, it was hurt by a rock; the burden of proof is on the claimant¹³⁶. If two [bulls] were pursuing another [bull]; each of them says: your bull did the damage; neither of them is liable. But if they belonged to one owner, he is liable for both of them. If one was large, the other small. The person sustaining the damage says that the large one did the damage¹³⁷ but the person causing the damage says that the small one did the damage, the burden of proof is on the claimant. If two were damaged, one large and one small, and the [bulls] doing the damage were two, one large and one small. The person sustaining the damage says that the large one damaged the large one¹³⁷ and the small one the small; but the person causing the damage says that the small one did damage the large one and the large one the small. [Or] one tame and one notorious, the person sustaining the damage says that the notorious one damaged the large one¹³⁸ and the tame one the small; but the person causing the damage says that the tame one did damage the large one and the notorious one the small. The burden of proof is on the claimant.

footnotes: ¹³⁶ Without proof that stands up in court he cannot collect any damages. ¹³⁷ Since for claims of damages caused by a ‘tame’ animal the amount which can be recovered is limited by the value of the attacking animal (Note 131, Mishnah 1:5), the person suffering the loss is interested in raising that limit. ¹³⁷ Since for claims of damages caused by a ‘tame’ animal the amount which can be recovered is limited by the value of the attacking animal (Note 131, Mishnah 1:5), the person suffering the loss is interested in raising that limit. ¹³⁸ In order to recover his entire loss without limitation.

HALAKHAH: “A person may be liable for the action of his bull,” etc. Rebbi Yudan asked: How is the court trial¹⁴⁵? Let us hear from the following: “Two persons threw two pebbles and broke two jugs, one full of wine and one full of oil. Each of them said, I broke the one full of wine. Both of them pay for the wine. One empty and one full; each of them said, I broke the empty one. Both of them pay for the empty one. If they broke one amphora. Each of them said, you broke it. Neither of them is liable.

footnotes: ¹⁴⁵ This really is a continuation of examples to Mishnaiot 13–16 applying the principle that “the burden of proof is on the claimant”, even if the resulting judgment be logically inconsistent.