Talmud - Bava Kamma 27a בבא קמא כ״ז א׳

exempt, as it is impossible to sentence any one of them to death since no one person killed the victim and there is no death penalty for partially killing a person. Rabbi Yehuda ben Beteira says: If they beat him sequentially the last one to beat him is liable for the death of the victim, because he brought the victim’s death closer. So too, in this case, although the first one threw the child, the one to impale him on his sword was the one to hasten his death, and therefore according to Rabbi Yehuda ben Beteira he would be liable to receive the death penalty.

The Gemara discusses a similar scenario: If one threw a child from a roof and a forewarned ox came along and impaled the child on its horns and the child died, the question of whether or not the owner of the ox is liable to pay ransom is dependent upon the dispute between Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, and the Rabbis. As it is taught in a baraita: The verse: “He shall give for the redemption of his life” (Exodus 21:30), indicates that he must pay the value of the injured party, i.e., the one who was killed. Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says: He must pay the value of the one responsible for the damage. Since the child that was thrown off the roof had no monetary value at the time he was gored by the ox, as it was as if he were already dead, the Rabbis would exempt the owner of the ox from paying ransom. According to Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, the owner of the ox must pay his own value to the family of the victim.

§ Rabba says another similar halakha: If a man fell from a roof and while falling was inserted into a woman due to the force of the fall, but he did not have the intention to engage in sexual intercourse, he is liable to pay the four types of indemnity. And if this woman was his yevama waiting for him to perform levirate marriage, he has not acquired her as his wife through this act of intercourse. This is true even though a levirate marriage is ordinarily effected through sexual intercourse, even if unintentional, i.e., if he thought she was someone else. Nevertheless, since in this case he did not intend to engage in intercourse at all, the levirate marriage is not effected.

The Gemara explains: What are the four types of indemnity that he is liable to pay? He is liable to pay for the damage, for the pain, for the medical costs, and for the loss of livelihood. But he is not liable to pay compensation for humiliation, as we learned in a mishna (86a): One is not liable to pay compensation for humiliation unless he intends to humiliate the injured party, and that was certainly not the case in this situation.

And Rabba says another, similar halakha: If one fell from a roof due to an atypical wind, such that it could not have been anticipated in advance that he would fall, and while falling he caused damage and humiliated the injured party, he is liable for the damage but exempt from paying the four types of indemnity, as he did not intend to fall. If he fell due to a typical wind and caused damage and humiliated the injured party while falling, he is liable to pay the four types of indemnity, as his fall was caused by negligence. But he is nevertheless exempt from paying compensation for humiliation, as he did not intend to fall. But if he tumbled while falling so he could fall on this person in order to protect himself from the impact with the ground, he is liable to pay compensation for humiliation as well, because although he did not intend to cause shame he did intend to land on the person.

The halakha that one is exempt from paying compensation for humiliation unless he intended to strike his victim is as it is taught in a baraita: From the fact that it is stated: “And she extended her hand” (Deuteronomy 25:11), do I not know that she took hold of something? Consequently, what is the meaning when further on in the verse it states: “And she took him by his genitals”? It is to teach you that one who intends to cause damage, even if he does not intend to humiliate the injured party, is nevertheless liable to pay compensation for humiliation.

And Rabba says: If one placed a hot coal over another’s heart and the latter was burnt and died, the one who placed the coal is exempt because the victim should have removed the coal from himself, and the one who placed it there did not need to assume that the victim might not remove it. If he placed the coal on the other’s garment and the garment was burnt, he is liable to pay for the damage, as it is possible that the one whose garment was burnt thought to sue the one who placed the coal on his clothes for the cost of the garment, and that is why he did not bother to remove it.

Rava said: We have learned both of these rulings through intimation in mishnayot elsewhere. With regard to the case of the coal placed over his heart, the halakha is as we learned in a mishna (Sanhedrin 76b): If one held another in a fire or in water, and the victim is unable to extricate himself from there and he dies as a result, the one who attacked him is liable to receive the death penalty as a murderer. If he pushed him into fire or into the water, and the victim is able to extricate himself from there but he dies anyway, the one who attacked him is exempt from the death penalty. The case of one who places a coal on another’s chest is similar to the one where he pushes the victim into the fire or the water in a situation where the victim has the ability to escape.

With regard to the case of one who placed a coal on the garment of another, it is as we learned in a mishna (92a): If one said to another: Tear my garment, or: Break my jug, and the other person does so, the latter is liable for the damage. But if one said to another: Tear my garment on the condition that you will be exempt from all liability, he is exempt. It is therefore clear that even when one is granted permission by the owner of an item to damage it, that does not grant him an exemption from liability for the damage caused unless that exemption was stated explicitly. Consequently, in a case where the owner did not grant permission, the one who caused the damage is certainly liable.

Rabba raises a dilemma in summation of this discussion: If he placed a coal over the heart of another’s Canaanite slave and the slave died as a result, what is the halakha? Is the body of the slave comparable to the body of any other person and therefore the assailant would be exempt from liability, or is it comparable to other property owned by the master and therefore the assailant would be liable? Furthermore, if you say that the body of the slave is comparable to the body of any ordinary person, as the slave had the ability to remove the coal from himself and therefore the assailant would be exempt, what is the halakha in a case where he placed the coal on the other’s ox?

After raising the dilemma Rabba then resolves it: The body of the slave is comparable to the body of any other person, as the slave possesses an intellect and should have the sense to remove the coal from himself, whereas the ox is comparable to other property.

We learned in the Mishnah:

MISHNA: In the case of one who places a kad, a type of vessel, in the public domain and another person comes and stumbles on it and breaks it, the other person is exempt from paying for what he broke. And if the one who stumbled incurred damage by it, the owner of the ḥavit, a type of vessel, is liable to pay restitution for his damage.

GEMARA: The mishna began its presentation of the case in reference to a kad, stating: In the case of one who places a kad, and ended it in reference to a ḥavit, stating: The owner of the ḥavit is liable.

And we learned this interchanging of the words kad and ḥavit in a mishna (31b) as well: If two people were walking down the street, this one coming with his ḥavit and that one coming with his cross beam, and this one’s kad was broken by that one’s cross beam, the one holding the beam is exempt. Here too the mishna changed its wording, as it began its statement in reference to a ḥavit and ended it in reference to a kad.

And we learned this in another mishna (115a) as well: If this person came with his ḥavit of wine and that person came with his kad of honey, and the ḥavit of honey, which is more valuable, cracked, and this person poured out his wine and saved the honey by collecting it into his vessel, he receives reimbursement only for his trouble, and he cannot claim the value of the wine that he poured out since the owner of the honey did not tell him to do so. Here too the mishna changed its wording, as it began its statement in reference to a kad of honey and ended it in reference to a ḥavit of honey.

Rav Pappa said: These examples show that a kad is the same as a ḥavit, and the two words are used interchangeably. With regard to what does this make a difference? This makes a difference for buying and selling. If a customer asks for a ḥavit, intending a large vessel, and the seller gives him a kad, which is a smaller vessel, the buyer cannot claim that he did not receive the item he asked for.

The Gemara asks: What are the circumstances where this is relevant? If we say that it is with regard to a locale where people do not refer to a kad as a ḥavit, nor do they refer to a ḥavit as a kad, and a ḥavit is understood to be referring to a larger vessel, clearly one who asks for a ḥavit does not wish to buy a kad, as people do not call it that.

The Gemara answers: No, it is necessary to teach that they are equivalent terms with regard to a locale where most people call a kad a kad and a ḥavit a ḥavit, i.e., most people use the term kad for the smaller vessel and the term ḥavit for the larger one, and there are also those who call a ḥavit a kad and a kad a ḥavit, not distinguishing between the two terms. Lest you say that the halakha follows the majority and the seller and the buyer must accept this distinction,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaKamma 27a explores liability in sequential injury cases, ox goring damages, and unintentional intercourse during a fall affecting levirate marriage status.