Talmud zu Schemot 22:4

HALAKHAH: “There are four main categories of damages,” etc. The bull means the horn, as is written: “If a man’s bull smite another person’s bull,⁹Ex. 21:35.” etc. So far a harmless animal¹⁰It has no history of attacking other animals. The owner only has to pay half the damage caused.. From where a notorious [dangerous] one¹¹For which full damages have to be paid.? “Or it was known that it be a goring bull,¹²Ex. 21:36.” etc. The pit, “if a man open a pit,” etc.; “the pit’s owner has to pay,³A person digging a pit in the public domain is responsible for any damage caused by his action; Ex. 21:33–34.” etc. The devourer: “If a person causes a field or a vineyard to be despoiled by sending his animals;¹³Ex. 22:4. The meaning of יַבְעֵר is in doubt because of lack of parallels. It might as well be referring to damage by excessive grazing as to destruction by trampling.” this is the foot as it is written¹⁴Is. 32:20. The same explanation of Ex. 22:4 by Is. 32:20 is in the Babli, 2b.: “Those who send the foot of bull and donkey.” And it is written¹⁵Is. 5:5.: “Remove its cover and it will be despoiled,” that is the tooth, “tear down its fence and it will be trampled,” that is the foot. And the setting on fire, as it is written⁵Ex. 22:5.: “If fire starts and finds thistles,” etc.

“His field¹²Ex. 22:4: “If a person destroys a field or a vineyard through animals by sending his livestock to graze on another’s field, the best of his field or the best of his vineyard he shall give in payment.” This is the basis of the Mishnah requiring that damages be paid with best quality real estate.”, except if it was mortgaged¹³“His field” excludes third-party interests.. “His vineyard”, except Temple property. Where do we hold¹⁴What relation can Temple property have with damages due from a private person?? If somebody caused damage and then dedicated to the Temple, that is what we have stated¹⁵Mishnah ‘Arakhin 6:2: “If somebody dedicated his property to the Temple while he owed a ketubah to his wife or a debt to a creditor, neither the woman nor the creditor can collect from the Temple; but the redeemer redeems on condition to pay the ketubah to the woman or the debt to the creditor. If he dedicated 90 minas but his debt was 100 minas, [the redeemer] adds another denar and redeems these properties on condition to pay the debt to the creditor.” In order to combine two conflicting principles, viz., that vows cannot be used to escape obligations towards third parties, and that Temple obligations override all others, it is decreed that the Temple has to put the dedicated properties up for sale but collects only for the amount by which the value of the properties exceeds the obligation, with the third party buyer accepting the obligation to pay off the liens on the property. (It has to be a third party buyer since the person making the dedication would have to add another 25% to the redemption amount, Lev. 27:19.) Claims for damages have to be handled in the same way.: “If he dedicated 90 minas but his debt was 100 minas.” If somebody dedicated to the Temple and then caused damage, that is what we have stated: “ ‘His neighbor’s ox⁵Ex. 21:35; Mishnah Baba Qama 4:3. The rules of damages do not apply to Temple property, not for damages inflicted by Temple animals nor damages done to them. Quoted in the Babli, 49a.’ but not the ox of Temple property.” Rebbi Yudan said, explain it if an ox of Temple property grazed on a private field. Rebbi Mana told him, we require Temple real estate and you say “on a private field”? But we must hold about one who said: I am obligating myself for 100 minas to the Temple; then went and caused damage. You should not say that between damages and a loan given before witnesses¹⁶Not in documented form; the witnesses do not sign anything. Such a loan is not a mortgage and is not privileged. damages are privileged, and here damages are privileged against the Temple; therefore it was necessary to say “his vineyard”, except Temple property¹⁷The statement about Temple property is not to exclude Temple property from damage claims but to privilege Temple property relative to all civil claims..

“The best of his field and the best of his vineyard he shall pay,¹²Ex. 22:4: “If a person destroys a field or a vineyard through animals by sending his livestock to graze on another’s field, the best of his field or the best of his vineyard he shall give in payment.” This is the basis of the Mishnah requiring that damages be paid with best quality real estate.” i. e., the party responsible for the damage, the words of Rebbi Ismael²²In the Babli, 48a, the attribution of names is switched; the same is implied by Mekhilta dR. Ismael, ed. Horovitz-Rabin p. 296; the interpretation of R. Ismael is quoted anonymously in Mekhilta dR. Simeon bar Ioḥai, ed. Epstein-Melamed p. 196, together with the interpretation given later to the opinion of R. Aqiba.. Rebbi Aqiba says, “the best of his field and the best of his vineyard”, of the person suffering the damage. It is difficult for Rebbi Aqiba, he suffered damage, and you say so²³Why should the person responsible only pay corresponding to the best remaining parts of a ruined field?? But the court see what the field was worth before it was damaged and estimates accordingly. As it was stated, it is possible if the grazing was on best quality land, one estimates from best quality, from lowest quality one estimates from lowest quality. How is this? The best of the lowest quality is quite good. If you say so you provide a windfall for the person suffering the damage²⁴According to R. Aqiba, the holdings of the person suffering the damage are graded into best, average, and lowest quality. In each category, the value of the damage is established and paid by the person responsible with his best real estate in the given category, up to the value established in court.. One looks at the field as if it was full of first quality [produce] and estimates for him from the best quality land; least quality one estimates from least quality land. It turns out that he pays with best quality for best quality and from least quality for least quality. From where has Rebbi Aqiba that “for tort victims one estimates with best quality land”²⁵Since he reads the verse as referring to the method of estimating the damage, not payment, the Mishnah has no biblical foundation.? It is not from the Torah, it is a decree. ²⁶This is a baraita, quoted in the Babli, 49b, in the name of R. Simeon (in some sources, R. Simeon ben Eleazar.) A similar, anonymous, text is in Tosephta Ketubot 12:2.“Why did they say, ‘for tort victims one estimates with best quality land’? Because of the robbers²⁷Since a robber of land is also inflicting damage on the person robbed.. That a man should say, why should I have robbed [land] in my hand, or land subject to a suit for damages on my hand? Tomorrow, the court will see my good field, take it from me, and support it by the verse, ‘the best of his field and the best of his vineyard he shall pay.’ ” So far his real estate. His pledge²⁸If the person responsible cannot pay directly, any pledge taken should be of his most valuable possessions. was inferred from his real estate. Since his real estate [is taken] from the best quality, also his pledge [is taken] from the best.

New paragraph. “Properties of people of the Covenant,” excluding cattle of a Jew which gored cattle of a Gentile¹²³The Gentile cannot claim damages in a Jewish court. In particular, claims for half damages are only possible between Jewish parties; for all others it is all or nothing.. “Private property,” excluding ownerless property. “Except for property belonging solely to the person responsible for the damage” who cannot be sued¹²⁴Since any animal not belonging to the owner of the property is trespassing; the rancher does not have to interfere if his animals defend their territory.. “But [the rules] apply to property common to the person suffering the damage and the person responsible for the damage.” Rebbi Jeremiah said, if it were stated “except for property belonging solely to the person responsible for the damage” and had stopped, I would have said that [responsibility applies] both to a common courtyard and to a courtyard belonging to neither party. Why did it state: “[the rules] apply to property common to the person suffering the damage and the person responsible for the damage”¹²⁵Since this statement is already implied by the preceding one.? [To indicate] that it applies to the unpaid trustee, the borrower, the paid trustee, and the renter^18,These four entries do not refer to kinds of payments for damages but to the obligations of persons who hold other people’s property in case that property is lost, stolen, or damaged, as specified in Mishnah Bava meṣi‘a 7:9 (based on Ex. 22:6–12). The unpaid trustee does not pay if he can swear that he did not use the property; the borrower pays for everything; the paid trustee and the renter have to pay for what was lost or stolen but may swear that it was not their fault if the damage was caused by an act of God or forcible robbery.¹²⁶If somebody received an animal under the terms of one of the four kinds of trusteeship and that animal did damage, the owner is responsible.. Rebbi Yose said, since it stated “except for property belonging solely to the person responsible for the damage”, would we not know that “[the rules] apply to property common to the person suffering the damage and the person responsible for the damage”? Why was it stated that “[the rules] apply to property common to the person suffering the damage and the person responsible for the damage”? To exclude a courtyard belonging to neither of them¹²⁷The formulation “courtyard” instead of “property” indicates that in this case both animals are illegally in the place where the damage occurred.. Some Tannaїm state: A condominium courtyard is obligated, a courtyard belonging to neither of them is free. Some Tannaїm state: Even a courtyard belonging to neither of them is obligated. He who says, a condominium courtyard is obligated, a courtyard belonging to neither of them is free, for it is written: “the best of his fields.¹²⁸Ex. 22:4, speaking of damage inflicted by animals grazing (tooth) and trampling (foot). This paragraph only deals with damage caused by foot and tooth.” But he who says, even a courtyard belonging to neither of them is obligated, for it is written: “It ravages another person’s field.¹²⁸Ex. 22:4, speaking of damage inflicted by animals grazing (tooth) and trampling (foot). This paragraph only deals with damage caused by foot and tooth.”

HALAKHAH: It is written about torts that the collection be from the best quality, as it is said: “his best field, etc.⁹³Ex. 22:4; Babli Giṭṭin 48b.” And it is written about a loan that the collection be from average quality, as it is said: “and the man to whom you are creditor, etc.^87,Deut. 24:11.⁹⁴The inference is explained later by R. Simai.” They inferred real estate from pledges⁹⁵Since Deut. 24:14 refers to a pledge of movables, it is not obvious that the same rule should be applied to the foreclosure of a mortgage.. Similarly, should not pledges be inferred from real estate⁹⁶If payment for torts is made by cash or movables, not in real estate, that only best quality would be acceptable. But any debt can be liquidated by money or money’s worth to avoid foreclosure.? ⁹⁷A parallel to the remainder of the paragraph is in Giṭṭin 5:1, Notes 30–32. Rebbi Simai explained: It is a word of the Torah that the court’s bailiff enter and collect from average quality. For if the creditor enter, he would bring out the best. And if the debtor enter, he would bring out the worst. But the court’s bailiff enters and collects from average quality. Rebbi Ismael stated: It is a word of the Torah that the debtor enter, as it is said: “and the man to whom you are creditor etc.⁹⁸Deut. 24:10–11: “If you are a creditor to your neighbor for anything, do not enter his house to take his pledge. Stand outside, and the man to whom you are creditor shall bring the pledge outside to you.” This clearly indicates that it is up to the debtor to determine what to give as pledge; the requirement that it be of medium quality is purely rabbinical for R. Ismael; in the words of the Babli “not to lock the door before borrowers” (Babli 113b). The obligation to stand outside extends to the bailiff (Sifry Deut. 276).
But R. Simai, and the Masoretes who follow him in their punctuation, read: “Stand outside, and the man, acting on behalf of the one to whom you are creditor, shall bring …” The man is the court’s employee.” Rebbi La said, it was stated there⁹⁹In Babylonia.: “to seize as pledge”, by the court. Outside the court, from where¹⁰⁰The court has to give authorization; it does not have to oversee the execution.? The verse¹⁰¹Ex. 22:25. says, “if to seize as pledge you seize as pledge.” If he took the pledge without authorization, he transgresses all these verses¹⁰²Tosephta 10:8: Ex. 22:25, Deut.24:10–13, for a total of five sins committed by one action.. Rebbi La said, he caused himself to transgress all these verses¹⁰³If he received the pledge through the court’s bailiff and did not return it, he still would transgress Ex.22:25 and Deut. 24:13, but not the other commandments..