Talmud - Bava Kamma 3b בבא קמא ג׳ ב׳

And if it is a case where one did not declare them ownerless, there is still a difficulty. If Rav Pappa’s statement is in accordance with the opinion of Shmuel, who says: We learned that one is liable for damage caused by all obstacles that he places in a public domain, whether or not he declares them ownerless, from the halakhot with regard to one’s pit, these cases are a subcategory of Pit. And if Rav Pappa’s statement is in accordance with the opinion of Rav, who says: We learned that one is liable for damage caused by all obstacles that he places in a public domain that he did not declare ownerless, from the halakhot with regard to one’s ox that gored another animal, these cases are a subcategory of Ox. With regard to the subcategories of Ox, the Gemara already established that their legal status is like that of the primary category of Ox.

The Gemara asks concerning an obstacle that is a subcategory of Pit: What is different about Pit that it is defined it as a unique category? It is that its initial formation, i.e., the digging of the pit, is done in a manner that can result in damage, and it is your property, and responsibility for its safeguarding, to prevent it from causing damage to others, is incumbent upon you. In these subcategories of Pit, too, their initial formation, i.e., the placement of the obstacle in the public domain, is done in a manner that can result in damage, and they are your property, and responsibility for their safeguarding, to prevent them from causing damage, is incumbent upon you. Rather, it is apparent that the status of a subcategory of Pit is like that of the primary category of Pit, and when Rav Pappa says: There are among them some whose subcategories are dissimilar to them, he is referring to a subcategory of Maveh.

The meaning of the term Maveh is not clear; therefore, the Gemara asks: What is the primary category of Maveh to whose subcategories the Gemara referred? If one suggests that Rav Pappa said his statement in accordance with the opinion of Shmuel, who says: Maveh, this is the category of Eating, this cannot be Rav Pappa’s intent. But didn’t we already establish that the legal status of a subcategory of Eating is like that of the primary category of Eating? Clearly, Rav Pappa was not referring to subcategories of Maveh. And if one suggests that Rav Pappa said his statement in accordance with the opinion of Rav, who says: Maveh, this is the primary category of Man, which includes damage caused by a person, not by his property or animals, what primary categories and what subcategories are there in that category? The halakha is the same with regard to all damage that a person causes.

And if you would say that there is a distinction: The primary category is a case where one causes damage while awake, and a subcategory is a case where one causes damage while asleep; but didn’t we learn in a mishna (26a): The legal status of a person is always that of one forewarned, and he is liable for any damage that he causes, both when he is awake and when he is asleep? Accordingly, that is not the distinction between a primary category and a subcategory.

Rather, perhaps Rav Pappa was referring to cases where one causes damage with his phlegm or his spittle. The Gemara asks: What are the circumstances where one would be liable for damage in that case? If it is a case where his phlegm and spittle cause damage as they were moving through the air after the person expectorated, that is damage caused by his direct action and there is no room to distinguish between the damage that it caused and any other damage caused by one’s direct action. If it is a case where his phlegm or spittle causes damage after it comes to rest on the ground, e.g., if one slipped in the spittle, fell, and was injured, both according to Rav and according to Shmuel this is a subcategory of Pit, as the spittle is an ownerless obstacle in the public domain. Rather, it is apparent that the status of a subcategory of Maveh is like that of the primary category of Maveh, and when Rav Pappa says: There are among them some whose subcategories are dissimilar to them; he was referring to a subcategory of Fire.

The Gemara asks: What is a subcategory of Fire? If we say that it is a case of his stone, his knife, or his load, where he placed them on top of his roof, and they fell off the roof by means of a common wind, and they caused damage, what are the circumstances in which one would be liable for the damage that was caused? If it is a case where those items caused damage as they were moving through the air propelled by the wind, that is a case of Fire.

If so, what is different about Fire that defines it as a unique category? What is different is that another force, the wind, is involved with the fire in causing damage, as the wind causes the fire to spread, and the fire is your property, and responsibility for its safeguarding, to prevent it from causing damage, is incumbent upon you. In these subcategories of Fire too, another force is involved with the items placed on the roof and causes damage, as the wind causes them to fall, and they are your property, and responsibility for their safeguarding, to prevent them from causing damage, is incumbent upon you. Rather, it is apparent that the status of a subcategory of Fire is like that of the primary category of Fire, and when Rav Pappa says: There are among them some whose subcategories are dissimilar to them, he was referring to a subcategory of Trampling.

The Gemara questions this explanation: A subcategory of Trampling? But didn’t we already establish that the status of a subcategory of Trampling is similar to that of the primary category of Trampling? The Gemara explains: Rav Pappa was referring to one’s liability to pay half the cost of the damage caused by pebbles in a case where they were inadvertently propelled by the foot of a walking animal, which is a halakha learned through tradition and not explicitly written in the Torah.

The Gemara asks: But if it is a unique halakhic category and the payment is different, why is it characterized as a subcategory of Trampling? The Gemara explains: It is due to the fact that it shares a common aspect with Trampling. One whose animal propels pebbles while it walks and thereby causes damage is liable to pay half of the damages from his superior-quality property, and he does not pay only from the body of his animal, as is the halakha concerning half the cost of the damage paid by the owner of an innocuous ox that gored a person or an animal.

The Gemara asks: But didn’t Rava raise a dilemma with regard to that matter? As Rava raised a dilemma: With regard to one’s liability to pay half the cost of the damage caused by pebbles propelled by the foot of his animal, does one pay damages exclusively from the body of his ox that caused the damage, or does one pay damages from his superior-quality property?

The Gemara explains: Although it is a dilemma for Rava, it is obvious to Rav Pappa that one pays from his superior-quality property, and in that sense, he classified the pebbles that cause damage as a subcategory of Trampling.

The Gemara asks: According to Rava, who raises it as a dilemma, why is it characterized as a subcategory of Trampling when its legal status is different both in terms of the extent of one’s liability and in terms of the manner of payment? The Gemara explains: It is classified as a subcategory of Trampling in order to exempt from liability pebbles that cause damage in the public domain, just as damage in the category of Trampling is exempt in the public domain.

§ One of the primary categories of damage enumerated in the mishna is the category of Maveh and another is the category of Fire. The Gemara asks: What is the meaning of Maveh? Rav says: Maveh, that is the category of Man, which includes a person who causes damage, but not the property or animal of a person that causes damage. And Shmuel says: Maveh, this is the category of Eating.

The Gemara elaborates: Rav says: Maveh, this is the category of Man, as it is written: “The watchman said: Morning has come, and also night; if you will inquire [tivayun], inquire [be’ayu]” (Isaiah 21:12). The terms “tivayun” and “be’ayu,” meaning inquire, refer to a person, who is able to inquire. Accordingly, Maveh relates to an action performed by a person.

And Shmuel says: Maveh, this is the category of Eating, as it is written: “How is Esau searched out [neḥpesu]; how are his hidden places revealed [nivu]” (Obadiah 1:6)? The terms nivu and maveh share a common root. The Gemara asks: From where may it be inferred that nivu connotes Eating? The Gemara explains that it is as Rav Yosef translates the verse into Aramaic: How is Esau searched out [itbelish]; how are his hidden places revealed [itgaleyan]? The meaning of the Aramaic term itgaleyan means revealed, and that is the meaning of the Hebrew term “nivu.” Maveh references the animal’s teeth, which are covered when its mouth is closed and revealed when it eats.

The Gemara asks: And as for Rav, what is the reason that he did not say that Maveh refers to Eating, as does Shmuel? The Gemara explains that Rav could have said to you: Is it taught in the mishna: Niveh? Niveh is the passive form of the word maveh, which would be the appropriate form if the reference was to teeth that are revealed. The term in the mishna is maveh, an active form of the verb.

And as for Shmuel, what is the reason that he did not say that Maveh refers to the category of Man, as does Rav? The Gemara explains that Shmuel could have said to you: Is it taught in the mishna: Bo’eh? Bo’eh is a form of the word maveh connoting an action taken directly, which would be appropriate were the reference to one’s actions that cause damage. The term in the mishna is maveh, which connotes an action that one causes another to take.

The Gemara notes: After all, the meaning of the term in the verses is not precise according to one Sage, Rav, and it is not precise according to the other Sage, Shmuel. It is apparent that their dispute is not based upon their interpretation of the verses; it must be based on another issue. The Gemara asks again: As for Rav, what is the reason that he did not say that Maveh refers to Eating, as does Shmuel? The Gemara explains: Rav holds that the tanna teaches the primary category of Ox in the mishna. This includes damage caused by an ox and all matters involving damaging actions that are completed by an ox, i.e., the actions included in the categories of Goring, Eating, and Trampling. Perforce, Maveh refers to a different category of damage, i.e., Man.

The Gemara asks: And as for Shmuel too, who interpreted Maveh as Eating, doesn’t the mishna teach the category of Ox, which should include all matters involving damaging actions that are completed by an ox? Rav Yehuda said that according to Shmuel, the tanna teaches Ox specifically with regard to damage caused with its horn, and it teaches Maveh with regard to damage caused with its tooth. And when the mishna contrasts Ox with Maveh, this is what the tanna is saying: The defining characteristic of the primary category of Goring, where there is no inherent pleasure for the animal in the course of its causing damage, is not similar to the defining characteristic of the category of Eating, where there is pleasure for the animal in the course of its causing damage.

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

BavaKamma 3b examines whether obstacles left in public spaces fall under the categories of Pit or Ox, debating Rav and Shmuel's views on liability.