J Nidd. 4*. This principle is founded on Num. 1214: ‘If Miriam had suffered reproof from her father would she not be ashamed seven days? How much more if she has suffered reproof from Godl’ — and yet she was ‘shut up without the camp’ for seven days only.
334 FOURTH DIVISION: NEZIKIN caused by the horn] in the public domain half-damages [are imposed], so also [for like damage] in the private domain of him that was injured, half-damages [only are imposed]. He said to them: My inference is not from one case of damage caused by the horn to another case of damage caused by the horn, but from what applies in a case of damage caused by the foot to what should apply in the case of damage caused by the horn: If they have dealt leniently with damage caused by the tooth or foot in the public domain and stringently with damage caused by the horn, then since they have dealt stringently with damage caused by the tooth or foot in the private domain of him that was injured, ought we not, therefore, to deal the more stringently with damage caused by the horn [in the private domain]! They answered: It is enough if the inferred law is as strict as that from which it was inferred: [as in the case of damage caused by the horn] in the public domain half-damages [are imposed], so also [for damage caused by the horn] in the private domain of him that was injured, half¬ damages [only are imposed].
6. Human kind is always an attested danger, whether [the damage is caused] by error or wantonly, whether awake or asleep. If a man blinded his fellow’s eye or broke utensils, he must pay full damages.
3. i. If a man left a jug in the public domain and another came and stumbled over it and broke it, he is not culpable, and if he was injured thereby the owner of the jug is liable for his injury. If a man’s jug broke in the public domain, he is culpable if another slipped in the water or was hurt by the potsherds. R. Judah says: If he was still intent [on claiming the water and the potsherds] he is culpable; otherwise he is not culpable.
2. If a man poured out water in the public domain and another was injured thereby, he is liable for his injury. If a man hid thorns or glass [in the public domain], or made his hedge out of thorns, or if his hedge fell into the public domain, and others were injured thereby, he is liable for their injury.
3. If a man put out his chopped straw and stubble into the public domain to make them into manure, and another was injured thereby, he is liable for his injury; and whosoever comes first may take possession of it. Rabban Simeon b. Gamaliel says: Whosoever leaves things that are un¬ seemly in the public domain, and these cause damage, must make restitu¬ tion; and whosoever comes first may take possession of them. If a man heaped up cattle-dung in the public domain and another was injured thereby, he is liable for his injury.
4. If two pot-sellers were walking one behind the other and the first one stumbled and fell and the second stumbled over the first, the first one is liable for the injury suffered by the second.
5. If one came carrying his jar and another came carrying his beam, and the jar of the one was broken by the beam of the other, the latter is not culpable since each alike has the right of passage. If the man with the beam came first and the man with the jar came after, and the jar broke against the beam, the man with the beam is not culpable. If the man with the beam had [suddenly] stopped he is culpable, but if had said, ‘Stop!’ to the man with the jar, he is not culpable. If the man with the jar came first and the man with the beam came after, and the jar broke against the beam, the man behind is culpable. If the man with the jar had [suddenly] stopped, the other is not culpable, but if the first had said, ‘Stop!’ to the man with the beam, he is culpable. So, too, if one man came with hi3 light and the other came with his flax.
6. If two were going along in the public domain, the one running and the other walking, or both running, and they injured one another, neither is culpable.
7. If a man was splitting wood within a private domain and injured any one in the public domain, or if he was in the public domain and injured any one in a private domain; or if he was in a private domain and injured any one in another private domain, he is culpable.
8. If two oxen which were accounted harmless hurt one another, half¬ damages are payable for that one which suffered the greater hurt. If both were attested dangers full damages are payable for that one which suffered the greater hurt. If one was accounted harmless and the other was an attested danger, that which was an attested danger as against that which was accounted harmless must pay full damages for the greater hurt that the other has suffered, while that which was accounted harmless, as against that which was an attested danger, pays only half-damages for the greater hurt that the other has suffered. So, too, if two men hurt one another, full damages are payable for that one which suffered the greater hurt. If a man and a beast which was an attested danger hurt one another, full damages are payable for that one which suffered the greater hurt. If a man and a beast which was accounted harmless hurt one another, the man as against the beast accounted harmless must pay full damages for the greater hurt that the other has suffered; while the beast accounted harmless, as against the man, pays only half-damages for the greater hurt that the other has suffered. R. Akiba says: Even if a beast accounted harmless hurt a man, full damages must be paid for that one which suffered the greater hurt.
9. If an ox worth 100 zuz1 gored an ox worth 200 zuz, and the carcase was worth nothing, the injured [party] takes the other ox. If an ox worth 200 zuz gored another ox worth 200 zuz and the carcase was worth nothing, R, Meir said: Of such it is written, Then they shall sell the live ox and divide the price of it.2 R. Judah replied: Such indeed is the Halakah;3 but if thou hast fulfilled [the Scripture], Then they shall sell the live ox and divide the price of it, thou hast not yet fulfilled and the dead also they shall divide. How shall this be? If an ox worth 200 zuz gored another ox worth 200 zuz and the carcase was worth 50 zuz, then each takes half [the value] of the living and half [the value] of the dead.
10. A man may be culpable by an act of his ox but not culpable by a like act of his own, and he may not be culpable by an act of his ox but culpable by a like act of his own. If his ox inflicted indignity4 he is not culpable, but if he himself inflicted indignity he is culpable. If his ox blinded the eye of his bondman or knocked out his tooth, the owner is not culpable; but if he himself blinded the eye of his bondman or knocked out his tooth, he is culpable. If his ox hurt his father or his mother, he is culpable; but if he himself hurt his father or his mother, he is not culpable.5 If his ox set fire to a stack of com on the Sabbath he is culpable, but if he himself set fire to a stack of com on the Sabbath he is not culpable [for burning the stack], since he is become liable with his life [for profaning the Sabbath].
5 Though he pays no fine his life is forfeit (Ex. 211*). Cf. Ket. 3’.
336 FOURTH DIVISION: NEZIKIN ii. If an ox pursued another ox and this was injured, and the one owner said, ‘Thv ox did the injury’, and the other said, ‘No, but it was injured by a stone’, on him that would exact restitution from his fellow lies the burden of proof.1 If two oxen pursued a third and the owner of the one said, ‘Thy ox did the injury’, and the owner of the other said, ‘Thy ox did the injury’, neither is culpable. If the two belonged to the one owner they are both culpable. If one was large and the other small, and the injured [party] said, ‘The large one did the injury’, and the one [whose oxen] did the injury said, ‘No, but the small one did the injury’; or if the one was accounted harmless and the other was an attested danger, and the injured [party] said, ‘That which was an attested danger did the injury’, but the one [whose oxen] did the injury said, ‘No, but the one accounted harmless iid the injury’, on him that would exact restitution from his fellow lies the burden of proof. If there were two that were injured, the one large and the other small, and there were two that did the injury, the one large and the other small, and the injured [party] said, ‘The large one did the injury to the large one, and the small one the injury' to the small one’, but he [whose oxen] did the injury said, ‘No, but the small one injured the large one, and the large one the small’, or if one was accounted harmless and the other was an attested danger, and the injured [party] said, ‘That which was an attested danger injured the large one, and the one accounted harmless injured the small one’, but the one [whose oxen] did the injury said, ‘No, but the one accounted harmless injured the large one and that which was an attested danger the small one’, on him that would exact restitution from his fellow lies the burden of proof.
4. i. If an ox gored four or five oxen, one after the other, compensation is [first] paid [from the value of the goring ox]2 for the last to be injured. If there was still value to spare this is transferred to the last but one; if there was still value to spare this is transferred to the one before;3 but always the last has the advantage. So R. Meir. R. Simeon says: If an ox worth 200 zuz gored another ox worth 200 zuz and the carcase was worth nothing, each takes 100 zuz* If it again gored another ox worth 200 zuz, the owner of the last takes 100 zuzs and the two other owners take each 50 zuz. If it again gored another ox worth 200 zuz, the owner of the last takes 100 zuz, and the owner of the one before takes 50 zuz, and the first two owners take each a golden denar* 2. If an ox was an attested danger to its own kind but not to any other kind, or an attested danger to men but not to cattle, or to small beasts but not to large, full damages are payable for injuries to that to which it was an attested danger, but half-damages only for injuries to that to which it was 1 not an attested danger. They said before R. Judah: What of the ox that is an attested danger on Sabbaths but not so on weekdays? He replied: On Sabbaths it must pay full damages and on weekdays half-damages. When 2 Which had not lost its status of ‘harmless’, and so was liable to half-damages from the value of its own body (i4).
* If the five injured oxen were each worth too zuz and the injuring ox was worth 120 zuz, the last to be injured receives 50 zuz, the last but one 50, and the last but two 20; the first two receive nothing.
* They become joint -owners with equal share of responsibility.
5 The half-damages for his ox, thus becoming half-owner of the other ox, with a half¬ responsibility for the damage it does; and the others share the rest of its value equally.
* Twenty-five zuz.
can it be accounted harmless? After it has refrained from doing injury for three Sabbath days.
3. If an ox of an Israelite gored an ox that belonged to the Temple, or an ox that belonged to the Temple gored the ox of an Israelite, the owner is not culpable, for it is written, The ox of his neighbour,1 — not an ox that belongs to the Temple. If the ox of an Israelite gored the ox of a gentile, the owner is not culpable. But if the ox of a gentile gored the ox of an Israelite, whether it was accounted harmless or an attested danger, the owner must pay full damages.
4. If the ox of a man of sound senses gored the ox of a deaf-mute, an imbecile, or a minor, the owner is culpable; but if the ox of a deaf-mute, an imbecile, or a minor gored the ox of a man of sound senses, the owner is not culpable. If the ox of a deaf-mute, an imbecile, or a minor had gored another, the court must appoint a guardian over them and their oxen are testified against in the presence of the guardian. If the deaf-mute became of sound senses, or the imbecile recovered his reason, or the minor became of age, the ox is thereupon deemed harmless once more. So R. Meir. R. Jose says: It remains as it was before. An ox from the stadium2 is not liable to be put to death [if it causes death], for it is written, If an ox gore,3 and not ‘If it be made to gore’.
5. If an ox gored a man and he died, if it was an attested danger its owner must pay the ransom price,4 but if it was accounted harmless he is exempt from paying the ransom price. But in either case the oxen are guilty of death.5 So, too, if it killed a man’s son or daughter. But if it gored a bond- man or a bondwoman, the owner must pay thirty selas* whether [the slave was] worth a hundred minas or only a denar.
6. If an ox rubbed itself against a wall and it fell upon a man [and killed him]; or if it intended to kill a beast but killed a man, or a gentile but killed an Israelite, or an untimely birth but killed a child like to live, it is exempt [from death by stoning].7 7. The ox of a woman, or the ox of orphans, or the ox of a guardian, or a wild ox, or an ox belonging to the Temple, or an ox belonging to a proselyte who died without heirs8 — these are all liable to death [if they kill a man]. R. Judah says: A wild ox, or an ox belonging to the Temple, or an ox belonging to a proselyte who died are exempt from death, since they have no owner.
8. If an ox was condemned to be stoned and its owner dedicated it, its dedication is not valid. If he slaughtered it its flesh is forbidden. But if its owner dedicated it before it was condemned its dedication is valid, and if he slaughtered it its flesh is permitted.
9. If he delivered it to an unpaid guardian or to a borrower, or to a paid guardian or to a hirer,9 they stand in place of the owner and must pay full damages [for injury] if the beast was an attested danger, or half-damages if it was accounted harmless. If its owner had tied it with a halter, or shut it in properly, but it nevertheless came out and caused damage, the owner is culpable whether it was an attested danger or accounted harmless. So R. Meir. R. Judah says: If it was accounted harmless he is liable, but if an 1 Ex. a i**. 1 Where it is incited or trained to fight other beasts or men.
3 Ex. at**. * Pay to the heirs the dead man’s value.
* And must be stoned. Ex. 21”. 6 App. II, A. Ex. 21”. The ox must be stoned.
7 There was no intention to kill (Sanh. 91), but the owner must pay the ransom price for the dead. * Cf. 9". » See B.M. f.
FOURTH DIVISION: NEZIKIN attested danger he is not culpable, for it is written, [ And it hath been testified to his owner] and he hath not kept him in;1 but this one was ‘kept in’. R. Eleazar says: Its only safe-keeping is the knife.
5. x. If an ox gored a cow and her newly-born young was found beside her, and it is not known whether she gave birth before the ox gored her or after it gored her, half-damages must be paid for the cow and quarter-damages for the young. So, too, if a cow gored an ox and her newly-born young was found beside her and it is not known whether she gored the ox before she gave birth or after she gave birth, half-damages must be paid from the cow and quarter-damages from the young.
2. If a potter brought his pots into the courtyard of a householder without permission and the householder’s cattle broke them, the house¬ holder is not culpable; and if the cattle were injured by them the owner of the pots is culpable; but if he brought them in by permission the owner of the courtyard is culpable. If a man brought his produce into the courtyard of a householder without permission and the householder’s cattle ate it, the householder is not culpable, and if the cattle suffered injury the owner of the produce is culpable; but if he brought the produce in by permission the owner of the courtyard is culpable.
3. If a man brought his ox into the courtyard of a householder without permission and the householder’s ox gored it or the householder’s dog bit it, the householder is not culpable. But if it gored the householder’s ox the other is culpable. If [the first man’s ox] fell into the householder’s cistern and befouled its water, he is culpable. If the householder’s father or son was therein [and it killed them] the ox’s owner must pay the ransom price. But if he had brought his ox in by permission the owner of the courtyard is culpable. Rabbi says: In no case is the householder culpable unless he had undertaken to watch over it.
4. If an ox intended [to gore] another ox and struck a woman and her young came forth, its owner is not liable for the value of the young.2 But if a man intended to strike his fellow and struck a woman and her young came forth he must pay the value of the young. How does he pay the value of the young? They assess how much the woman was worth before she brought forth and how much after. Rabban Simeon b. Gamaliel said: If so [he pays naught, for] after she brings forth she is the more valuable!3 — but, rather, they assess how much the young would be worth, and he pays it to the husband or, if she has no husband, to his heirs. But if she was a freed bondwoman or a proselyte no penalty is incurred.
5. If a man digged a pit4 in a private domain and opened it into the public domain, or if he digged it in the public domain and opened it into a private domain, or if he digged it in a private domain and opened it into another private domain, he is culpable [if any is injured thereby]. If he digged a pit in the public domain and an ox or an ass fell into it and died, he is culpable. No matter whether he digs a pit, trench or cavern or ditches or channels, he is culpable. Then why is it written, a pit [only]? As a pit which is deep enough to cause death is ten handbreadths deep, so any [cavity] is deep enough to cause death if it is ten handbreadths deep. If they were less than ten handbreadths and an ox or an ass fell therein and 1 i.e. her life was in danger by reason of the imminent birth, but now she is free from died, the owner is not culpable; but if it suffered damage thereby he is culpable.
6. If a pit belonged to two jointholders and one went over it and left it uncovered, and the other also went over it and left it uncovered,' the second is culpable. If the first covered it and the second came and found it un¬ covered and did not cover it, the second is culpable. If he had covered it properly and nevertheless an ox or an ass fell into it and died, he is not culpable; but if he had not covered it properly and an ox or an ass' fell into it and died, he is culpable. If it fell forward [into the pit, frightened] because of the sound of the digging, the owner of the pit is culpable; but if backward [outside the pit] because of the sound of the digging, he is not culpable. If an ox fell into it with its trappings and these were broken, or if an ass fell into it with its trappings and these were torn, he is culpable in what concerns the beast, but not culpable in what concerns the trappings.2 If an ox that was deaf, foolish, or young fell therein he is culpable. If a boy or a girl or a bondman or a bondwoman fell therein, he is not culpable.
7. An ox and all other cattle are alike under the laws concerning falling into a pit, keeping apart from the mount Sinai,3 two-fold restitution,4 the restoring of lost property,* unloading,6 muzzling,7 diverse kinds,8 and the Sabbath.9 The like applies also to wild animals and birds. If so, why is it written,10 an ox or an ass [only]? Because Scripture speaks only of what happens in fact."
6. 1. If a man brought his flock into a fold and shut it in properly and it nevertheless came out and caused damage, he is not culpable. If he had not shut it in properly and it came out and caused damage, he is culpable. If the fold was broken through in the night, or if robbers broke into it, and the flock came out and caused damage, he is not culpable. If the robbers brought out the flock the robbers are culpable.
2. If he left the flock in the sun, or if he delivered it to the care of a deaf-mute, an imbecile, or a minor, and it came out and caused damage, he is culpable. If he delivered it to the care of a herdsman, the herdsman stands in the place of the owner. If the flock fell into a garden and derived any benefit, the owner must pay for the benefit that they have derived. If the flock went down in its usual way and caused damage, he must pay for the damage that they have caused. How does he pay for the damage that they have caused? They assess what a seah' s space12 of ground in that field was worth before and what it is worth now. R. Simeon says: If they consumed fully grown produce he must repay with fully grown produce; if [the flock destroyed] one seah13 he must repay one seah; if two seahs, two seahs.
3. If a man stacked his sheaves in his fellow’s field without permission and the cattle of the owner of the field consumed them, the owner of the field is not culpable, and if the cattle suffered injury through them the owner of the sheaves is culpable; but if he stacked his sheaves there by permission, the owner of the field is culpable.
4. If a man caused fire to break out at the hand of a deaf-mute, an im¬ becile, or a minor, he is not culpable by the laws of man, but he is culpable 1 Some texts omit this last sentence.
* Since Ex. 2t” speaks only of ‘an ox or an ass’ and not of their trappings.
to Ex. 21**. » Cf. Shab. 6‘-»; Erub. i“; Yeb. 15s; Ned. 5‘; Eduy. t'».
FOURTH DIVISION: NEZIKIN by the laws of Heaven. If he caused it to break out at the hand of one of sound senses, this one is culpable. 1 If one brought the fire and then another brought the wood, he that brought the wood is culpable. If one brought wood and then another brought the fire, he that brought the fire is culpable. If a third came and set the wood ablaze, he that set it ablaze is culpable. If the wind set it ablaze none of them is culpable. If a man caused fire to break out and it consumed wood or stones or dust, he is culpable, for it is written, If fire break out and catch in thorns so that the shocks of com or the standing corn or the field be consumed, he that kindled the fire shall surely make restitu¬ tion. 2 If it passed over a fence four cubits high, or over a public way3 or a river, he that caused it is not culpable. If a man kindled fire within his own domain, how far may it spread?4 R. Eleazar b. Azariah says: It is looked upon as though it was in the midst of a kor's space5 of land. R. Eliezer says: Sixteen cubits [in every direction], like a public highway. R. Akiba says: Fifty cubits. R. Simeon says: [It is written,] He that kindled the fire shall surely make restitution — all is in accordance with the nature of the fire.
5. If a man set fire to a stack and in it there were utensils and these caught fire, R. Judah says: He must make restitution for what was therein. But the Sages say: He need only make restitution for a stack of wheat or barley. If a kid was fastened to it and a bondman stood near by, and they were burnt together, he that kindled the fire is liable [for the kid but not for the bondman]. If the bondman was bound and a kid stood near by and they were burnt together, he that kindled the fire is not liable6 [for either]. And the Sages agree with R. Judah that if a man set fire to a large building he must make restitution for everything therein; for such is the custom among men to leave [their goods] in their houses.
6. If a spark flew out from under the hammer and caused damage [the striker] is culpable. If a camel laden with flax passed by in the public domain and its load of flax entered into a shop7 and caught fire from the shopkeeper’s light, and so set fire to a large building, the owner of the camel is culpable; but if the shopkeeper left his light outside, the shop¬ keeper is culpable. R. Judah says: If it was a Hanukkah-light8 he is not culpable.
7. 1. More common in use is the rule of twofold restitution9 than the rule of fourfold and fivefold restitution, for the rule of twofold restitu¬ tion applies both to what has life and to what has not life; while the rule of fourfold and fivefold restitution applies only to an ox or a sheep, for it is written, If a man shall steal an ox or a sheep and kill it, or sell it, he shall pay five oxen for an ox and four sheep for a sheep.10 If a man stole [stolen beasts] from a thief he does not make twofold restitution; nor does he that kills or sells what is stolen make fourfold or fivefold restitution.
2. If a man stole [an ox or a sheep] according to the evidence of two wit¬ nesses, and killed or sold it according to their evidence or that of two others, he must make fourfold or fivefold restitution. If a man stole [an ox or a 1 Cf. below, 8’ (end). 4 Ex. 22*. J Sixteen cubits; cf. B.B. 6’.
4 And he still be accountable for what damage it causes within that area.
5 App. II, E. 6 To make money restitution. As to the bondman, cf. 3“ (end), 8‘.
7 It is a common sight in the East to see a camel bearing a' load so bulky as almost to touch both sides of the narrow street. The entire fronts of the shops lie open to the street.
* The lights lit at the windows of houses during the eight days of Hanukkah, the Feast of the Dedication, beginning on the 23th of Chislev. * Ex. 22’. 10 Ex. 221.
sheep] and sold it on the Sabbath, or stole it and sold it for idolatrous use, or stole it and killed it on the Day of Atonement; if he stole what was his father’s and killed or sold it, and his father afterward died; or if he stole it and killed it and then dedicated it; — in every' case he must make fourfold or fivefold restitution. If he stole it and then killed it as a means of healing, or for dogs, or if he slaughtered it and it was found to be terefah or if he slaughtered it in the Temple Court [intending to consume it] as common food,2 he must make fourfold or fivefold restitution. In these [last] two cases R. Simeon declares him exempt.