MISHNAH: ¹ he is liable. It seems that this text also underlies the Yerushalmi Halakhah; the shortened version may be a scribal error. He who brings a flock² into a corral and locks them in as he should³, but they managed to get out and caused damage, is liable. If they broke out in the night⁴ or robbers broke in and they managed to get out and caused damage, he is not liable. If robbers let them out⁵, the robbers are liable.

footnotes: ¹ In the Babli and the independent Mishnah mss., the text reads:He who brings a flock into a corral and locks it as he should, but they managed to get out and caused damage, is not liable. If he did not lock them in as he should, they managed to get out and caused damage, ² Sheep and goats are notorious for eating everything edible in their way; in this respect they can be compared to a bull known to be goring. ³ The Babli, 55b, defines “locking in as one should” as a minimal standard: fencing, including the doors, which can withstand a normal wind but not necessarily a storm. There is no reason to assume that the same minimal standard is accepted in the Yerushalmi. ⁴ When it could not have been noticed by the rancher. ⁵ As the Halakhah explains, the robbers are liable only if they led the flock out for their own purpose. The case that they broke into the corral and the flock left through the breach is covered by the preceding sentence.

HALAKHAH: “He who brings a flock into a corral,” etc. Rebbi La in the name of Rebbi Yannai: In disagreement⁶. Rebbi Eleazar said, it⁷ is everybody’s opinion. Rebbi La said, Rebbi Eleazar’s statement is convincing since watching the animal itself is written only for “horn”⁸ 21:36 require that the animal be under the control of a human 24 hours a day; Babli 55b. It follows that for damages classified as “tooth” or “foot”, even R. Meïr may agree to the long version of the Mishnah.. What about it? Rebbi Simeon ben Laqish said, in disagreement. Rebbi Eleazar said, it is everybody’s opinion. Some say, it follows Rebbi Eliezer ben Jacob who said⁹, in no case is he liable¹⁰.

footnotes: ⁶ The Babli refers the Mishnah to a disagreement in Mishnah 4:10 about a bull which was tied down with a rope and locked in, where R. Meïr does not absolve the owner from liability but R. Jehudah does. It is asserted that the Mishnah in the version of the Babli and the independent Mishnah mss. is R. Jehudah’s, but the Mishnah in the version of the Yerushalmi is R. Meïr’s. ⁷ The long version of the Mishnah. ⁸ Only for a notoriously goring bull does Ex. ⁹ In the case of Mishnah 4:10; the text is Tosephta 5:7; cf. Chapter 4 Note 127. ¹⁰ R. Jehudah would agree with the short version of the Mishnah.

¹¹ So far if [the corral] was fenced in on four sides. If it was fenced in on three sides and breached on one side¹², and [an animal] left through the breach, what is the rule? Let us hear from the following¹³ 11:7.: “If his wall fell in from the noise of earthquakes¹⁴ or thunder and he rebuilt it as required, he is not liable¹⁵, otherwise he is liable.¹⁶” The only problem is if three better built walls fell together with it¹⁷.

footnotes: ¹¹ In case the animals escaped in the night. ¹² As the text stands, it seems to make no sense. Nobody can claim that animals are “locked in as they should be” if they are brought to an area open on one side. E reads “[the robbers] breached”; it has to be rejected since the Genizah text supports L. One has to explain that the corral is fenced in on all four sides but while three sides are strong enough to withstand a concerted push by the flock, the fourth side is not. In that case, was the escape of the flock to be foreseen and should the rancher be liable? ¹³ Tosephta Bava Meṣi‘a ¹⁴ In the Genizah text and the Tosephta: “because of an earthquake”. ¹⁵ If he followed the local building code, but the wall collapsed again and somebody was hurt in the collapse, the builder is not liable. ¹⁶ Therefore, the rancher is liable for damages by animals escaping through a substandard fence. ¹⁷ The question remains whether a builder is responsible for damages from the collapse of a substandard wall (or fence) when the same incident also destroyed walls built to local standards.

It was stated¹⁸ 3:1–3, Babli 55b.: Rebbi Joshua said, four persons are not required to pay¹⁹ but Heaven will not forgive them until they pay up: A person who knows testimony beneficial to another but does not testify¹ is not required to pay but Heaven will not forgive him until he pays up. A person who hires false witnesses²⁰ against another and collects is not required to pay but Heaven will not forgive him until he pays up. A person who bends standing grain towards a fire²¹ or who makes a breach in a fence for animals²² is not required to pay but Heaven will not forgive him until he pays up.

footnotes: ¹⁸ Tosephta Šebuot ¹⁹ He holds that damages caused indirectly cannot be recovered in court. ¹ He refuses to appear as a witness in another person’s civil case who as a consequence loses his suit. The person refusing to be a witness has the moral obligation to idemnify the other. ²⁰ In money matters. This is indirect causation since “there is no agency in criminal matters”; the responsibility of a person knowingly committing a criminal act is not diminished by his performing the act for the benefit of another person. ²¹ He causes a wildfire to burn agricultural produce which but for his intervention might have been spared. ²² He lets the animals find the breach later on their own. This case explains why robbers who break into a corral and thereby create a possibility for the animals in the corral to escape cannot be sued for the damage caused later by the animals.

“If robbers let it out, the robbers are liable.” Rav Hoshaia said, if they let it out as part of their robbery²³. But if they let it out to get lost, the robbers are not liable²².

footnotes: ²³ Since they took the animals as their property, they take the liability with them. ²² He lets the animals find the breach later on their own. This case explains why robbers who break into a corral and thereby create a possibility for the animals in the corral to escape cannot be sued for the damage caused later by the animals.

MISHNAH: If he left it²⁴ in the sun²⁵ or handed it over to a deaf-and-dumb, an insane, or an underage person²⁶, he is liable. If he handed it over to a shepherd, the shepherd takes his place. If it fell²⁷ into a garden and caused damage²⁸, it²⁹ pays for what it profited³⁰. If it entered in due course³¹, it pays for what it damaged. How does it pay for what it damaged? One estimates a bet se’ah³² 2:1, Note 31. of the field; how much was it worth and how much is it worth³³. Rebbi Simeon says, if it ate ripe produce it pays for ripe produce³⁴, whether one or two se’ah.

footnotes: ²⁴ Even though Mishnah 1 is formulated for a flock, Mishnah two always refers to a single animal. ²⁵ If the corral has no shade, the animal can be expected to try to break out to find shade somewhere. Since the owner causes the break, he is liable for all consequences. ²⁶ These three categories are the paradigm of irresponsible persons. Appointing these as shepherds is the equivalent of letting the animals roam freely without supervision. ²⁷ By accident. ²⁸ In most Babli and Mishnah mss., “and profited”, by eating the produce around it. A “garden” is an irrigated plot. ²⁹ In the Halakhah and some Mishnah and Alfassi mss., in the entire Mishnah one reads מְשַׁלֵּם “he (the owner) pays”, instead of מְשַׁלֶּמֶת “it (the animal) pays”. ³⁰ The animal’s owner does not have to pay the high-priced vegetables which his animal ate but only the value of animal feed of corresponding nutritional content. ³¹ Under the control of the owner, not by accident. ³² 2’500 square cubits, the standard size of a field; cf. Peah ³³ The animal’s owner only pays the diminution in value of the crop as if the damaged parcel had been part of a standard field whose yield is sold wholesale. ³⁴ The exact retail value of what it destroyed.

HALAKHAH: It was stated³⁵: “If a shepherd handed his flock over to another shepherd, the first is liable, the second is not liable.³⁶ 1:4, Note 449; Ketubot 9:5, Notes 127–146. The first shepherd remains liable to the owner; he might sue the second shepherd once he paid the owner. The Babli, 56b, makes an exception if the second shepherd is employed by the first as his helper since then one may assume an implied consent for the transfer of control.” Rav and Rebbi Simeon ben Laqish both said, since he handed it over to a responsible person, he is not liable³⁷.

footnotes: ³⁵ Tosephta 6:20. ³⁶ If the owner did not give prior authorization for the change of control; cf. Qiddušin ³⁷ Since the Mishnah insists that the owner remain liable if he hands over control to an irresponsible person, one may infer that any change of control between responsible persons implies a change of liability.

“If he handed it over to a shepherd, the shepherd takes his place. If it fell into a garden and caused damage, he²⁹ pays for what it profited.” Rav Huna³⁸ said, if it fell on vegetables³⁹. But if it stood up and grazed, he pays for what it damaged⁴⁰.

footnotes: ²⁹ In the Halakhah and some Mishnah and Alfassi mss., in the entire Mishnah one reads מְשַׁלֵּם “he (the owner) pays”, instead of מְשַׁלֶּמֶת “it (the animal) pays”. ³⁸ In the Babli, 57b/58a, “Rav”. ³⁹ “Paying for the benefit” may be more than “paying for the damage”. If the animal would have had broken bones if the fall had not been cushioned by the vegetation, the benefit to the owner is quite large. ⁴⁰ If the shepherd does not immediately remove the animal from the field, the subsequent damage is not considered caused by the accident but under the shepherd’s control.

“If it entered in due course, he²⁹ pays for what it damaged.”⁴⁰ Rebbi Yose ben Rebbi Ḥanina said, on that field itself he is not liable, but for another field he is liable⁴¹ damages caused by an animal falling into a growing area by accident, only the corresponding value of animal feed is due. In the Babli. 58a, this position is attributed to Rav Cahana. In the entire paragraph, “liable” means “liable for the full value of the destroyed produce”.. Rebbi Joḥanan and Rebbi Simeon ben Laqish both said, even if it grazed on that entire field he is not liable; he only is liable if it left the field for the public domain and from the public domain entered another field⁴². But what is the rule if it fell into a garden and then entered another garden? In the opinion of Rebbi Yose ben Rebbi Ḥanina who said, on that field itself he is not liable, here he will be liable⁴³. In the opinion of Rebbi Joḥanan and Rebbi Simeon ben Laqish who both said, even if it grazed on that entire field he is not liable; he only is liable if it left the field for the public domain and from the public domain entered another field. But if it fell into a place which it could have entered, or it entered a place into which it could have fallen?⁴⁴ Rebbi Yose bar Ḥanina said, that is the Mishnah; it fell into a place into which it only could have fallen⁴⁵. But if it fell into a place which it could have entered? Each case is problematic for one of them⁴⁶. One needs the first case, that he pays what it profited⁴⁵; the other⁴⁷ needs the other case, that he pays what it damaged.

footnotes: ²⁹ In the Halakhah and some Mishnah and Alfassi mss., in the entire Mishnah one reads מְשַׁלֵּם “he (the owner) pays”, instead of מְשַׁלֶּמֶת “it (the animal) pays”. ⁴⁰ If the shepherd does not immediately remove the animal from the field, the subsequent damage is not considered caused by the accident but under the shepherd’s control. ⁴¹ He disagrees with Rav Huna and holds that for all ⁴² In the Babli, 58a, R. Joḥanan holds that a change in the status of liability occurs as soon as the person responsible realizes that the animal left the field into which it had fallen. ⁴³ Since he imposes full liability as soon as the animal leaves the field of the accident. ⁴⁴ In a case which could be classified in two different ways, which section of the Mishnah is applicable? ⁴⁵ A genuine accident. The leniency of the Mishnah only applies to a case in which the animal fell into a plot not accessible to it by walking. ⁴⁶ R. Yose ben Ḥanina and R. Joḥanan. ⁴⁵ A genuine accident. The leniency of the Mishnah only applies to a case in which the animal fell into a plot not accessible to it by walking. ⁴⁷ Even R. Joḥanan will agree that an animal falling into a field accessible to it by walking is judged by the rules of entering, not falling.

It was stated⁴⁸ dR. Simeon ben Ioḥai p. 195. Parts are quoted in the Babli, 58b/59a, as Amoraic statements.: “One does not estimate a bet kor⁴⁹ = 75’000 square cubits. At this wholesale level, the damage done by the animal would be considered minimal and the farmer deprived of just compensation. because it would diminish, nor a bet qab⁵⁰. In a plot of this size the damage would be complete and the farmer overpaid. because it would inflate. But one estimates a bet se’ah³² 2:1, Note 31. of the field in question, how much it was worth and how much is it worth now. Rebbi Jehudah said, when? If it ate shoots of the fig tree or plucked shoots of vines. But if it ate unripe grapes or unripe figs, one estimates them as fully grown fruits. Rebbi Jehudah said in the name of Rebbi Aqiba: If it ate fully grown produce, he pays for fully grown produce, [fruits of]⁵¹ trees, one estimates trees for him. Trees one estimates by the bet se’ah⁵² (cf. Ševi’it 1:2, Note 18). One has to estimate the diminution of value in the wholesale price of the yield of ten trees.. Rebbi Simeon ben Jehudah said in the name of Rebbi Aqiba: Produce not yet one-third ripe is estimated under the rules of trees.⁵³.” In the House of Rebbi Yannai they said, one estimates a three-qab in sixty three-qabs⁵⁴ is estimated in 30 bet se’ah, not 60.. Rebbi Yose ben Rebbi Ḥanina said, one estimates a stalk in sixty stalks⁵⁵.

footnotes: ⁴⁸ Tosephta 6:21 (partially with different tradents); Mekhilta ⁴⁹ 30 bet se’ah ⁵⁰ One sixth of a bet se’ah ³² 2’500 square cubits, the standard size of a field; cf. Peah ⁵¹ Reading of the Genizah text. ⁵² In a minimal orchard, ten trees grow on a bet se’ah ⁵³ To be estimated on a field the size of a bet se’ah ⁵⁴ A damaged plot the size of half a bet se’ah ⁵⁵ A similar statement is in the Babli, 58b.

A person stole a hard date⁵⁶. The case came before Samuel who said to him⁵⁷, go and estimate for him at the top of the date palm⁵⁸. Rebbi Yose ben Rebbi Abun said, it was a preserve of unripe dates⁵⁹.

footnotes: ⁵⁶ Which is barely edible. ⁵⁷ Probably to his student and aide, Rav Jehudah, to determine the amount of restitution due. ⁵⁸ The place most exposed to the sun, which produces the sweetest and most expensive dates. ⁵⁹ The treatment turned an almost wooden fruit into a delicacy for which a comparison with the sweetest kind of fresh date might be appropriate.

MISHNAH: If somebody stacks his sheaves on another person’s field without permission and the field’s owner’s animals ate them, he⁶⁰ is not liable. If it was damaged by it⁶¹, the owner of the stack is liable. But if he stacked his sheaves with permission, the field’s owner is liable.

footnotes: ⁶⁰ The field’s owner; cf. Mishnah 5:4. ⁶¹ If the produce stacked there was inappropriate as animal feed.

HALAKHAH: ⁶² If somebody stacks his sheaves on another person’s field without permission.” R. Isaac said, are sheaves on a field like vessels in a house? Rebbi Yose ben Rebbi Abun said, explain it by one which has a lock.

footnotes: ⁶² Halakhah 5:5, Notes 29–32.

MISHNAH: He who causes a fire through the hand of a deaf-mute, an insane, or an underage person⁶³. 22:4), his animal, and paying for בערה “arson” in v. 5; cf. Ibn Ezra ad loc. is not liable in human law⁶⁴ but liable in Heaven’s law⁶⁵. If he causes it through a hearing person, the hearing person is liable⁶⁶. If one person brings the fire and another one the wood, the one bringing the wood is liable. If one brings the wood and another one the fire, the one bringing the fire is liable⁶⁷. If another person came and fanned the flames, the one who fanned is liable. If the wind fanned it⁶⁸, none of them is liable⁶⁹.

footnotes: ⁶³ These are irresponsible; no liability can be imposed on them.The expression “to send a fire” is a pun on the expression “sending בעירה” (Ex ⁶⁴ Damages by indirect arson cannot be recovered. ⁶⁵ He cannot hope for divine forgiveness unless he pays the damages. ⁶⁶ Since “there is no agency in criminal matters”, cf. Note 20. ⁶⁷ If several ingredients are necessary, the person contributing the last ingredient makes the act possible and, therefore, bears full liability. ⁶⁸ And without wind the fire would not have caused damage. ⁶⁹ Since they did not directly cause the damages.

HALAKHAH: “He who sets a fire,” etc. ⁷⁰Ḥizqiah said, if he handed him⁷¹ a glowing coal. But if he handed him an open flame he is liable⁷². Rebbi Joḥanan said, coal and flame are the same⁷³. It is difficult according to Ḥizqiah, for if somebody saw another person’s glowing coal rolling by and did not extinguish it, is he not free from liability⁷⁴? They said, explain it if he handed him an ownerless glowing coal, or also an ownerless flame, and one cannot infer anything⁷⁵.

footnotes: ⁷⁰ A similar discussion is in the Babli, 59b–60a; but the underlying argument there seems to be different. ⁷¹ The irresponsible person. ⁷² In that case, he is directly responsible for the fire; it is not indirect causation. ⁷³ Since after handing the fire to the deaf-and-dumb, insane, or underaged, he cannot know what they are going to do with it; the causation of the damage is still indirect. R. Joḥanan will agree that if somebody hands a fire to an irresponsible person and then guides that person until the fire is set, he is the arsonist and liable for all damages. ⁷⁴ The passive bystander who fails to prevent a fire cannot be sued for damages. Then what is the differencebetween an irresponsible and a responsible person in this matter? ⁷⁵ The responsible person will acquire the coal or burning object by picking it up and becomes liable in all respects; an irresponsible person cannot acquire.E has a different version of the last sentence, which avoids the Babylonian expression אינמי:תִּיפְתָּר שֶׁמָּסַר לוֹ שַׁלְהֶבֶת שֶׁל הֶקְדֵּשׁוְלֵית שׁ״מ כְּלוּם.“Explain it if he handed him a flame belonging to the Sanctuary, and one cannot infer anything.”Taking the Sanctuary’s property is sinful; only the adult can sin.

Some Tannaĩm state: וְלִיבָּה. Some Tannaïm state: וְנִיבָּה. He who says וְלִיבָּה. As it is written, “in the flaming fire”⁷⁶. 3:2.. He who says וְנִיבָּה, “it was in my heart like burning fire.⁷⁷. 20:9. A similar argument is in the Babli, 60a. It seems that the difference between the versions is simply a dialectal switch between the liquids l and n; but a biblical source is sought. In the Babli, the reference is to Is. 57:19, where the “fruit of the lips” is interpreted as “speech”. The verse from Jer. quoted here then points out that speech can be fiery, i. e., with one’s mouth one can fan a fire.”

footnotes: ⁷⁶ Ex ⁷⁷ Jer

There⁷⁸, they say, the Mishnah speaks of a catastrophic wind, but in case of normal wind he is liable. Rebbi Joḥanan and Rebbi Simeon ben Laqish both say, even in case of normal wind he is not liable; for sometimes it blows, sometimes it does not blow⁷⁹.

footnotes: ⁷⁸ Babli 60a, in the name of Rava, the representative of Galilean Halakhah. ⁷⁹ Wind is unpredictable; wind which is fanning a fire cannot be planned. If without the wind the fire would not have spread, the person starting the fire is not liable.

MISHNAH: He who sets a fire which consumes wood, or stones, or dust, is liable since it is said: “If fire gets out of control and finds thorns, etc.”⁸⁰. 22:5. The Halakhah will explain the proof from the verse. If it crossed a wall four cubits high⁸¹, or a public road⁸² batra 6:7)., or a brook⁸³, he is not liable.

footnotes: ⁸⁰ Ex ⁸¹ A stone or brick wall which will not burn. ⁸² At least 16 cubits wide (Halakhah 6, Mishnah Bava ⁸³ At least 8 cubits wide (Halakhah 6).

HALAKHAH: “He who sets a fire which consumes wood,⁸⁴ dR. Ismael, Neziqin 14 (ed. Horovitz-Rabin p. 297), Mekhilta dR. Simeon ben Ioḥai p. 196.” etc. Since thorns are flammable, do I only include flammable material? The verse says, “a stack”. Since a stack of sheaves is particular in that it was harvested, do I only include harvested material? The verse says, “standing grain.” Since all of these are particular in that they are flammable, do I only include flammable material? If it swept his furrow or damaged his stone, from where? The verse says, “or the field.⁸⁵” Should it only have mentioned thorns, standing grain, and stack, but not mentioned field? In the opinion of Rebbi Jehudah⁸⁶ this is acceptable since he says, he pays for everything inside. But according to the rabbis, who say that he only pays for a stack of wheat or barley sheaves, why did it mention “field”⁸⁷, why did it mention “stack”⁸⁸ dR. Ismael).?

footnotes: ⁸⁴ The full verse reads: “If fire gets out of control and finds thorns, or consumes a stack of sheaves, or standing grain, or the field, the person who set the blaze shall certainly pay.” Similar discussions on what the different examples mentioned in the verse imply are in the Babli 60a, Mekhilta ⁸⁵ The earth constituting the field. ⁸⁶ Mishnah 7. Since R. Jehudah requires the arsonist to pay for everything of value stored inside the stack, nothing of value would have been excluded if “field” had not been mentioned. ⁸⁷ To include stones and require the arsonist also to pay for the work needed to plough the field anew. ⁸⁸ To include everything stacked, even limestone assembled to be burned into lime (Mekhilta

“If it crossed a wall four cubits high, or a public road, or a brook, he is not liable.” Rebbi Abba said, the Mishnah speaks of burning fire⁸⁹. But if it is wind-whipped everybody agrees that he is liable⁹⁰. Rebbi Joḥanan said, the Mishnah speaks of wind-whipped fire, but if it is burning he is not liable⁹⁰.

footnotes: ⁸⁹ A fire which spreads by burning the flammable material next to it, to be distinguished from wind-whipped fire which jumps over fire clearings and waterways. ⁹⁰ Since it can be expected to cross a fire clearing of 16 cubits and more. ⁹⁰ Since it can be expected to cross a fire clearing of 16 cubits and more.

MISHNAH: If somebody starts a fire inside his property, how far does it have to spread⁹²? Rebbi Eleazar ben Azariah says, one looks at it as if he started it at the center of a bet kor⁹³ therefore is 273.86 cubits and the distance of the center from the side is 136.93 cubits. For him, the liability stops if a strip 137 cubits wide around the fire is protected against the spread of the fire. Rebbi Eliezer says, sixteen cubits like a public road; and Rebbi Aqiba says, 50 cubits; and Rebbi Simeon says “the person setting the fire shall certainly pay,⁹⁴. 22:5.” everything depends on the setting of the fire.

footnotes: ⁹² That the spreading of the fire was not foreseeable and the person starting the fire would no longer be liable. ⁹³ Which is 75’000 square cubits (Note 49). The edge length of a bet kor ⁹⁴ Ex

HALAKHAH: “If somebody starts a fire inside his property,” etc. ⁹⁵ dR. Ismael, Neziqin 14 (ed. Horovitz-Rabin p. 297), Babli 61a.“It happened that a fire crossed the Jordan, because it was a firestorm⁹⁶. How far may a fire spread⁹⁷? Rebbi Eliezer says sixteen cubits like a public road, if there is wind thirty cubits. Rebbi Jehudah says thirty cubits, if there is wind fifty cubits. Rebbi Aqiba says 50 cubits, if there is wind a hundred cubits. It happened in Arabia that a fire jumped more than three hundred cubits. When is this? If it jumps. But if there is wood or it burns continuously⁹⁸, he is liable even up to a mil⁹⁹. If it crossed a river or a pond eight cubits wide, he is not liable.”

footnotes: ⁹⁵ Tosephta 6:22–23; cf. Mekhilta ⁹⁶ A large fire can create its own storm which carries the flames beyond the expected limits. ⁹⁷ How wide a strip has to be cleared of flammable material to protect the person who set the fire from damage claims? ⁹⁸ If the safety strip is not cleared of all flammable material. ⁹⁹ 2’000 cubits.

MISHNAH: He who sets fire to a stack of sheaves which contains implements, Rebbi Jehudah says, he has to pay everything contained in it but the Sages say, he pays only for a stack of wheat sheaves or a stack of barley sheaves¹⁰⁰. If a goat was tied to it, and a slave was nearby¹⁰¹, and they were burned, he is liable. If a slave was tied to it, and a goat was nearby, and they were burned, he is not liable¹⁰² 3:1, Notes 29ff., Terumot 7:1, Notes 3–73, and sources given there.). But the Sages agree with Rebbi Jehudah that one who sets fire to a building has to pay everything contained in it since people regularly store things in houses.

footnotes: ¹⁰⁰ He has to pay only for what was visible from the outside. ¹⁰¹ Since the slave was not bound, he could have escaped. The arsonist is not guilty of murder; he is liable for all material damage which he may cause. ¹⁰² Since the slave could not have escaped, the arsonist is a murderer. Even if he cannot be criminally prosecuted for lack of eye witnesses or for other reasons, he cannot be sued for monetary damages (Ketubot

HALAKHAH: “He who sets fire to a stack of sheaves,” etc. Rebbi Abbahu in the name of Rebbi Joḥanan: The Sages agree with Rebbi Jehudah about threshing tools which usually are hidden there¹⁰³. The argument of Rebbi Jehudah seems inverted. There¹⁰⁴ 6:9. The parallel treatment there in Halakhah 6:9 (Notes 151–154) is more explicit. he says except what is hidden, but here he says including what is hidden? But does not Rebbi Jehudah simply explain “stack”? Why was “stack” written? That he has to pay for all that is in it¹⁰⁵. 22:5. The verse states that the arsonist has to pay for “thorns, or a stack, or standing grain, or a field.” Since even without mention of “stack” the arsonist would have to pay for the grain, the inclusion of “stack” can only mean “everything in a stack, whether recognizable from the outside or not.”. The argument of the rabbis seems inverted. There they say, including what is hidden; but here they say, except what is hidden? But did not Rebbi Abbahu say in the name of Rebbi Joḥanan: The Sages agree with Rebbi Joḥanan about threshing tools which usually are hidden there?¹⁰⁶ Rebbi Hoshaia said, if there are no witnesses. But if there are witnesses, everybody agrees with Rebbi (Yose)¹⁰⁷ as it was stated: ¹⁰⁸“If it was a stack of wheat sheaves covered with barley or a stack of barley sheaves covered with wheat, he pays for a stack of barley.” As the following: A person deposited a tied sack with another person, when something happened. This one said, it was full of dross, but the other said, it was full of raw silk. [ ]¹⁰⁹ He swears and collects¹¹⁰ 62a and others) thinks that the sack was lost in a fire; the owner of the sack claims payment from the person responsible for the fire. Now Mishnah Šebuot 7:1 states that in general one only accepts an oath of a person who can absolve himself of payment by the oath. To collect money based on an oath is possible only in very few cases, one of them being the victim of a robbery. In the Babli, 62a, it is stated that R. Jehudah equates loss by fire to loss by robbery. Since the Yerushalmi holds that the Sages mostly agree with R. Jehudah, everybody must hold that the victim of a fire may swear and collect. In the case described, since the sack was deposited tightly tied, the argument of the person with whom the sack was deposited (who may have set the fire himself), that the sack might have contained scrap metal, is not more than a conjecture and may be disregarded. By the biblical law of deposits (Ex. 22:6–8), the person holding the deposit has to swear that he did nothing to impair the deposit; then he is not liable. If he set the fire, he cannot swear and, therefore, should be required to pay without the other side being forced to swear. However, this only applies if the nature of the deposit was known. If the contents of the sack were not ascertained by the trustee when he accepted the sack, the rule that the person who cannot swear must pay is irrelevant..

footnotes: ¹⁰³ The Babli (61b) agrees in the name of Rava, the proponent of Galilean Halakhah. ¹⁰⁴ Mishnah Peah ¹⁰⁵ The difference has nothing to do with positions of R. Jehudah, but with his interpretation of Ex ¹⁰⁶ They do not disagree with R. Jehudah. Their difference is about the standards of proof required from the victims of a fire. R. Jehudah holds that the arsonist would have to disprove any claim while the rabbis hold that the claimant still has the burden of proof unless he is supported by current agricultural practice. ¹⁰⁷ One has to read: Jehudah, with Rosh (Chapter 6, #16). ¹⁰⁸ Tosephta 6:24, Babli 62a. ¹⁰⁹ Add with Rosh and Alfasi (#125): “Rav said.” ¹¹⁰ The text is elliptic; it is best explained following Nahmanides (and all Spanish commentators of the Babli.) The first problem is what is the connection between the story and the question at hand; the second is why the claimant may swear and collect. Nahmanides (as quoted by Rashba ad

Rebbi Joḥanan asked: Can one argue for him an argument which does not apply to him¹¹¹ 7:2, 37d. Since the Sages agree with R. Jehudah that for matters within general practice one believes the claimant of fire damages without proof, must the “general practice” be interpreted narrowly or may one admit, e. g., practices of rich people for a poor claimant?? Let us hear from the following: Bar Ziza’s sharecropper deposited a pound¹¹² of gold with somebody. Bar Ziza and Bar Ziza’s sharecropper died; the case came before Rebbi Ismael ben Rebbi Yose. He said, does not everybody know that all Bar Ziza’s sharecrooper had was Bar Ziza’s property? It should be given to Bar Ziza’s sons. Bar Ziza had adult and underage sons. He said, the adult one should take half and when the underage ones grow up, they should receive half. Rebbi Ismael ben Rebbi Yose died; the case came before Rebbi Ḥiyya who said, that argument¹¹³ means nothing [since there are people who do not flout their wealth]¹¹⁴. In the latter text, the position of R. Ḥiyya is explicitly endorsed by R. Joḥanan who quotes Prov. 13:7: “There are those who pose as rich and have nothing, pose as poor and have great wealth”.; it should be given to the sharecropper’s sons. The trustee told him, I already disbursed half of it. He told him, what you gave, you gave by court order and what you will give, you will give by court order. May the sharecropper’s sons say to Bar Ziza’s sons, give us what you took? They can tell them, what was done was done by court order. May the underage ones say to the adult, let us share with you? May they tell them, we found a find? Rebbi Isaac said, the case between the adult and underaged ones is compared to one who gave a gift¹¹⁵.

footnotes: ¹¹¹ The entire paragraph is in a slightly different formulation in Šebuot ¹¹² A Roman pound, 345 g, an enormous value in the early 3rd Century. ¹¹³ R. Ismael ben R. Yose’s. ¹¹⁴ Missing here, added from the text of Alfasi (#125) and the parallel in Šebuot ¹¹⁵ Since R. Ismael ben R. Yose said that “it should be given to Bar Ziza’s sons,” all have to share equally.

MISHNAH: If a spark came from under a hammer and caused damage, he¹¹⁶ is liable. If a camel was loaded with flax and while it walked in the public domain the flax entered a store, was lit by the storekeeper’s light, and set the building on fire, the camel’s owner is liable. If the store owner put his light outside¹¹⁷, the store owner is liable. Rebbi Jehudah says, in case of a Ḥanukkah light he is not liable¹¹⁸.

footnotes: ¹¹⁶ The person working the hammer. ¹¹⁷ An illicit use of the public domain. ¹¹⁸ Where an outside display is required.

HALAKHAH: “If a spark is coming from under a hammer,” etc. ¹¹⁹“Rebbi Jehudah stated: In case of a Ḥanukkah light he is not liable because he acted with permission¹¹⁸. But the Sages say, in any case he is liable, as, e. g., those who build huts in front of their stores on Tabernacles because it is permitted¹²⁰; but if somebody else is hurt by them, he is liable.”

footnotes: ¹¹⁹ Tosephta 6:28. ¹¹⁸ Where an outside display is required. ¹²⁰ Because of the religious requirement, the use of public space for a hut is permitted under the jurisdiction of the Jewish court but it cannot supersede the right of others to unhindered access to the public domain.