Author: Michael L. Rodkinson
Date: 2023-04-20T23:00:00+00:00
Keywords: Judaism; Religion
Description: Description This is the fifth book of The Babylonian Talmud by Jewish scholar Michael L. Rodkinson. This ten-volume set was an attempt to translate the Talmud, the vast collection of Jewish laws and traditions. Rodkinsons' edition contains complete translations of the 'Festivals' and 'Jurisprudence' sections of the Talmud, comprising only about a third of the Talmud. This fifth book commences with three segments dedicated to ethics, which include the powerful and eloquent Sayings of the Fathers, or Pirqe Aboth (which can also be found on Global Grey as a Charles Taylor translation), along with
Publisher: Global Grey ebooks

The Babylonian Talmud, Book 5
by Michael L. Rodkinson

This book is taken from a 1918 edition

This ebook edition was created and published by Global Grey on the 21st April 2023

The artwork for the cover is Bar Mitzvah
painted by Édouard Brandon.

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Contents

Tract Aboth

Explanatory Remarks

Dedication

Introduction To Section Jurisprudence

Synopsis Of Subjects

Chapter I

Chapter II

Chapter III

Chapter IV

Chapter V

Chapter VI

Tract Derech Eretz-Rabba (Worldly Affairs)

Synopsis Of Subjects

Chapter II

Chapter III

Chapter IV

Chapter V

Chapter VI

Chapter VII

Chapter VIII

Chapter IX

Chapter X

Chapter XI

Tract Derech Eretz-Zuta

Chapter I

Chapter II

Chapter III

Chapter IV

Chapter V

Chapter VI

Chapter VII

Chapter IX

The Chapter On Peace

Tracts Baba Kama (First Gate)

Explanatory Remarks

Introduction To The Three Gates Of Section Jurisprudence

Synopsis Of Subjects

Chapter I

Chapter II

Chapter III

Chapter IV

Chapter V

Chapter VI

Chapter VII

Chapter VIII

Tract Aboth

Explanatory Remarks

In our translation we adopted these principles:

1. Tenan of the original--We have learned in a Mishna; Tania--We have learned in a Boraitha; Itemar--It was taught.

2. Questions are indicated by the interrogation point, and are immediately followed by the answers, without being so marked.

3. When in the original there occur two statements separated by the phrase, Lishna achrena or Waïbayith Aema or Ikha d’amri (literally, “otherwise interpreted”), we translate only the second.

4. As the pages of the original are indicated in our new Hebrew edition, it is not deemed necessary to mark them in the English edition, this being only a translation from the latter.

5. Words or passages enclosed in round parentheses () denote the explanation rendered by Rashi to the foregoing sentence or word. Square parentheses [] contain commentaries by authorities of the last period of construction of the Gemara.

Dedication

TO HIS EXCELLENCY

THE WELL-KNOWN PHILANTHROPIST, WHO WARMLY ESPOUSES THE CAUSE OF JUDAISM AND ITS LITERATURE

BARON EDMUND DE ROTHSCHILD

THIS VOLUME IS MOST RESPECTFULLY INSCRIBED BY THE EDITOR AND TRANSLATOR

MICHAEL L. RODKINSON

New York, Purim, 5660
March 15th, 1900

Introduction To Section Jurisprudence

WITH the present volume we begin the Section “Damages,” also called “Jurisprudence,” from the occurrence of discussions on criminal law. This section forms the fourth in the old edition, and comprises the following treatises: “First Gate,” “Middle Gate,” “Last Gate,” “Sanhedrin,” “Stripes,” “Oaths,” “Testimonies,” “Idolatry,” “Fathers” (or “Ethics of the Fathers of the Synagogue”), and “Decisions.”

Notwithstanding the fact that in the old edition of the Talmud “Fathers” stands next to the last tract, we have placed it at the head of the section, relying upon the decision of Sherira Gaon in his letter (Goldberg edition, Mayence, 1872, p. 14) declaring that it is perfectly permissible to change the order of sequence of tracts in the several sections. Therefore, because the treatise entitled “Fathers” deals entirely with the ethics of life, we have deemed it best to give it precedence over the other treatises. Just as in the Pentateuch we find the ten commandments--the basis of all ethical religion--heading the subsequent detailed laws and ordinances, so it seems but fit that the Section ‘‘Damages” should be headed by the tract setting forth the main ethical principles, and be continued by the detailed discussions. We are further borne out by the Talmud itself, which reads (First Gate, Chap. III., Mishna 3): “One who wishes to be pious should observe the laws of damages. Rabhina said: ‘He should observe the teachings of the Fathers.’” Rabhina’s statement should, in our opinion, not be taken literally, but as indicative of the opinion that the decisions contained both in “Fathers” and in “Damages” generally are equivalent.

“Fathers” is one of the few treatises which consists of Mishna only; i.e., has no supplementary Gemara either in the Babylonian or the Palestinian Talmud, although interspersed throughout the contents of the entire Talmud may be found amplifications or comments on some of the sentences of the “Fathers.” There is, however, a Tosephtha entitled “Fathers of Rabbi Nathan” which discusses most sentences of the original “Fathers” separately; in fact, begins the discussion of each sentence with the interrogation “How so?” Forming, therefore, a valuable addition to the much-valued literature of the “Fathers,” we have considered it our duty to incorporate it in our edition, and we have therefore inserted the said Tosephtha in the place where, in other tracts, we have placed the Gemara.

Owing to the fact that the Tosephtha named above bears the name of Rabbi Nathan of Babylon, one of the most distinguished masters of his generation, but at the same time contains ethics similar to those of the Mishna, as well as lectures and discussions which could not have been compiled by that author and are evidently contributions from scholars of a later period, the historians of modern times, from Zunz in his “Gottesdienstliche Vortraege” to Brill in his “Jahrbuecher” and Weiss in his “Dor Dor Vedorshov,” engage in elaborate speculation as to who was the compiler of the “Fathers of R. Nathan” and at what time it was compiled. The complicated nature of the Tosephtha in question brought to the front a number of commentators and text-revisers, and finally Solomon Tausik and Solomon Shechter made a search of manuscripts, and published new editions of the Tosephtha, with additions from the material found in the manuscripts. The latter, in fact, searched so thoroughly that he found an entirely different version of the Tosephtha, and then published in his edition two separate texts, calling them First Text and Second Text, respectively, with his own corrections, notes, and a long introduction (Vienna, 1887).

True to our methods of translating the Talmud, we have, however, ignored the new versions of “Fathers of Rabbi Nathan,” and have merely adapted the old version which forms part of the Talmud, simply adhering to the corrections made by Elias Wilner and the commentaries of Joshua Falk and others contained in the great Wilna (1890) edition of the Talmud. Further, in accordance with our wont we have omitted such of the passages as have already appeared in the preceding tracts of our edition, merely indicating the places where they can be found. Wherever necessary, of course, we have added footnotes, remarks, etc.

Our reasons for not making use of the new versions of the Tosephtha in question are as follows:

In a previous article touching upon the subject, which appeared in our publication “Hakol,” we have pointed out that we cannot give preference to recently discovered manuscripts over those used by the compilers of the Talmud, and for a reason that is perfectly obvious, viz.: If those manuscripts were in existence during the construction period of the Talmud, the compilers, who sifted every manuscript with the utmost care, undoubtedly rejected them as valueless. If, on the other hand, they were at that time not in existence, but were written at a later period, they certainly cannot be used as a medium for correcting the antedating manuscripts.

As for Schechter’s revised and corrected texts, we cannot accept them for the reason that he presumes to remark, anent Elias Wilner’s corrections, “I do not favor them,” or, “They are unnecessary.” After careful investigation we have, however, found that almost all the corrections made by Elias Wilner, and adopted by us, are founded directly on Talmudical and Midrashic passages scattered throughout the Talmud, a fact the learned Dr. Schechter no doubt overlooked.

On the other hand, we find that the commentaries published in the above-mentioned Wilna edition and credited to Joshua Falk, Chayim Joseph David Azulayi, and Baruch Frankel Theomim are referred directly to passages of the Talmud in the several treatises. Therefore we have used these well-known authorities in our translation, eliminating merely their lengthy discussions and adductions of proof.

As to the origin of the sayings of the “Fathers of Rabbi Nathan,” the period during which they were compiled, and other historical events attending their conception, we refrain from rendering our opinion, even though it has become customary to do this in an introduction, leaving these matters to the philologists and historians in whose province such discussions properly fall. Our sole reason for the translation is that the said sayings have never before been rendered into any modern language and without them our work would not be complete.

The “Fathers of Rabbi Nathan” contains in the original forty-one chapters. As we render them, however, in the form of a Gemara to the Mishna of “Fathers,” we have not numbered the chapters, but merely indicated at the foot of the page to which chapter each paragraph belongs.

Regarding the translation of “Fathers,” i.e., the original Mishna in the first five chapters, we have found that the translation of C. Taylor (Cambridge, 1877) is entirely too literal and almost incomprehensible without foot-notes and commentaries.

On the other hand, the partial translation contained in the Home Prayer Book, compiled in the main by Dr. G. Gottheil and Dr. F. De Sola Mendes, is lucid and in accord with the original text. We have therefore made use of the latter rendition, with slight changes. The part remaining untranslated in the Prayer Book we have adapted from C. Taylor’s version, rendering it somewhat more comprehensively. In the rendition of the sixth chapter, which does not really form part of the Mishna but is added by the sages in Mishnaic language, we have followed Taylor, making numerous notes and corrections, in order to make it intelligible to the lay reader.

We have not deemed it necessary to add a commentary to the “Fathers” as we did to Tracts Shekalim and Ebel Rabbathi, because the “Fathers” has been translated into all modern languages and because there is already considerable literature concerning the ethics of Judaism, especially the recent publication by Prof. Dr. M. Lazarus entitled “Ethik des Judenthums” an admirable work, issued at Leipzig (1899), and giving a masterly exposition of the philosophical tendencies of “Fathers.” We have also devoted a special chapter to this subject in our forthcoming “History of the Talmud.”

We have also thought it well to give in this volume, which treats exclusively of the ethics of Judaism, the two Tracts Derech Eretz (Rabba and Zuta), which contain the essential “rules of conduct of life,” as construed by Dr. Mielziner, or Worldly Affairs, as named by us, which latter is the prevailing interpretation among Hebrew readers.

As to the origin of these two tracts, elaborate discussions may be found in Zunz, “Gottesdienstliche Vortraege,” pp. 110-112, as well as in “Der Talmud--Tract Derech Erez Sutta Kritisch bearbeitet, übersetzt und erläutert” (Berlin, 1885), by Abr. Tawrogi. For Tawrogi’s reasons for not translating Derech Eretz Rabba, see his work; nevertheless, inasmuch as Derech Eretz Rabba has never been translated into any language, a d of Derech Eretz Zuta, while there is a critical translation into German, there is none in English, in order to make this volume, which treats of the ethics of Judaism, complete, we have considered it expedient to translate into English both tracts almost literally, although they are not counted among the thirty-seven treatises proper of the Babylonian Talmud, but only among the minor treatises added to them. We do not, however, deem it necessary to add any commentary, for the reason that the sayings are very plain and lucid, and can easily be understood even by those who are not students of the Talmud.

Because of the similarity in language and style of these two treatises and of the so-called Mishnayoth of the sixth chapter of Aboth, they appear in the same large type as the Mishnayoth. Following this treatise will be published the other tracts of this section in the regular sequence of the old edition.

THE EDITOR AND TRANSLATOR.

NEW YORK, March, 1900.

Synopsis Of Subjects

OF TRACT ABOTH (FATHERS OF THE SYNAGOGUE).

[Several requests have been received by the translator that an index should be made to the volumes of the Talmud, as is customary with all modern works. It would be an utter impossibility to give a complete index of everything contained in the Talmud. Were it like other scientific works, which treat each subject separately, this could easily be done; but with the Talmud it is different. On one page many different subjects may be discussed, and again a single subject may occupy several pages. The Talmud, therefore, has never had an index.

After careful examination of the volumes, page by page, it has been decided to make a synopsis, i.e., to give briefly the heads of the discussions and conversations upon each Mishna, indicating the page where the Mishna is to be found, and the Gemara of each one, which serves as a commentary. By this the reader should be able to refer to what he desires to know.

A synopsis is therefore given of every Mishna which discusses a single subject, with its accompanying Gemara--in this volume, the Tosephtha; but when several short Mishnas cover the same subject, a single synopsis is given of the whole, including the Gemara of each one; and where a chapter is short, a synopsis of the whole chapter is made, without dividing it into Mishnas.

This is the best that can be done, and it is hoped that readers will find it satisfactory.]

CHAPTER I.

MISHNA A. The Great Assembly originated three maxims. Be deliberate in judgment. How so? The books of Proverbs, Song of Songs, and Ecclesiastes were hidden. How was Adam created? Why was Adam created on the last hour of the sixth day? On the same day on which he was formed, on the very same day his countenance was created. According to others: “Be deliberate in judgment” means not to have an irascible manner. Erect safeguards for the Law. The safeguard of the Lord, of Adam the First. The legend about Eve and the serpent, etc. The ten curses with which Eve was cursed at that time. “Shall I and my cattle eat out of the same trough?” The tradition about the ox of Adam, the steer of Noah, and the ram sacrificed by Abraham.

CONTINUATION OF CHAPTER II. OF TOSEPHTHA.--What is the safeguard that the Torah made to its words? What Elijah the prophet answered the widow of the scholar who died in the prime of his life. What is the safe guard that Moses made to his words? The reason why Moses broke the Tables? What is the safeguard that Job made to his words? The safe guard that the prophets made to their words. The safeguard that the Hagiographers made to their words. The safeguard that the sages made to their words.

CONTINUATION OF CHAPTER III. OF TOSEPHTHA.--Whoever takes a coin from charity when not in need of it, etc. Study the Law in thy old age, even if thou hast studied it in thy youth. If you gave a coin to a poor man in the morning, and another one begs of you in the evening, give him also. What happened to a poor man with R. Aqiba. What happened to Benjamin the just.

MISHNA B. The motto of Simeon the Just. Upon the Torah, how so? Upon service, how so? Upon bestowal of favors, how so? Rabban Johanan b. Zakkai and Vespasian. In three things mankind differ one from the other.

MISHNAS C AND D. Be not like slaves who serve their masters for the sake of compensation. Let the fear of Heaven be upon you. Let your house be the meeting place of the wise. How did R. Aqiba begin his wonderful career? Not less astonishing was the literary career of R. Eliezer. How his father Hyrkanus reached the seats of Ben Zizith Ha Kesseth, Nakdimon b. Gurion, and Calba Shebua.

MISHNAS E AND F. Let thy house be wide open for the poor. When the great affliction came upon Job, he prayed, etc. Teach thy house humility--the different explanations of this saying. Get thee a wise teacher. Judge everyone from his favorable side. The legend about a maiden who was led into captivity and the pious men who went to redeem her. Not only were the upright of former times themselves very strict and particular, but also their cattle were so. The ass of R. Hanina b. Dosa.

MISHNA G. Keep aloof from a wicked neighbor. Slanderers are punished with plagues. The legend about Moses, Aaron, and Miriam. Do not consider thyself exempt from God’s chastisement.

MISHNAS H TO K. Make thyself not as those that predispose the Judges. Love work--how so? Do not care for superiority. See to it that your name be not known to the Government. Ye wise, be guarded in your words. Love peace--how so? Moses desired to die the same death Aaron did--how so? The legend of the death of Moses, at length. Pursue peace--how so? Love all men too, and bring them nigh unto the Law.

MISHNAS L TO Q. If I do not look to myself, who will do so? And if not now, when? He who does not desire to learn from his masters is not worthy to live. He who increases not, decreases--how so? He who serves himself with a tiara perishes. Fix a time for study. Promise little and do much. Receive everyone with friendly countenance. Make a master to thyself. “I have never found anything better for a man than silence.” Three things support the world. The disciples of Hillel; of R. Johanan b. Zakkai--what was said about them and what they used to say. The consolation of R. Johanan b. Zakkai by his disciples when his son died. Thy fellow’s honor must be as dear to thee as thine own. Do not allow thyself to be easily angered. The two proselytes that came before Hillel and Shammai. Repent one day before thy death.

CHAPTER II.

MISHNAS A TO M. In choosing the right path, see that it is one which is honorable to thyself and without offence to others. All who occupy them selves with communal affairs should do it in the name of Heaven. Do His will as if it were thy own, that He may do thy will as if it were His. Pass not judgment upon thy neighbor until thou hast put thyself in his place. The boor can never fear sin, and the ignorant can never be truly pious. The more feasting the more food for worms. What is the best thing to cultivate. Which is the evil way a man should shun. Warm thyself before the light of the wise. An envious eye, evil propensities, and misanthropy drive a man out of the world. The legend about Joseph the Just, R. Zadoq, R. Aqiba, R. Eliezer the Great, etc. How difficult it is for man to avoid the evil propensities. Love everyone except the infidels, the enticers, the misleaders, and the informers. Thy neighbor’s property must be as sacred as thine own.

MISHNA N. Set thyself to learn the Law. Johanan b. Zakkai and the daughter of Nakdimon b. Gurion. Let noble purpose underlie thy every action. The sages who were recounted of R. Jehudah the Prince. How they were named by Issi b. Jehudah.

CHAPTER III.

MISHNAS A TO V. Consider three things, and you will not fall into transgression. Pray always for the welfare of the Government. Whoever takes the words of the Torah to his heart. Render unto God what belongs to Him, for thou and all thou hast are His. Whomsoever fear of sin precedes, his wisdom prevails. He whose works are in excess of his wisdom, his wisdom will endure. Be pliant with thy chief. Receive every man with cheerfulness. Mockery and frivolity are the forerunners of immorality. Everything is foreseen and free will is given. The world is judged by grace. All that we possess is merely a trust. Without knowledge of religion there can be no true culture, and without true culture there is no knowledge of religion. Qinim, canons, astronomy, and geometry are after-courses of wisdom.

CHAPTER IV.

MISHNAS A TO P. Who is a wise man? He who learns from everybody. Despise no man, and consider nothing as too far removed to come to pass. Be exceedingly lowly of spirit. Wear not the law of God as a crown to exalt thyself withal. Judge not alone, for none may judge alone save One. Whatsoever congregation is for the sake of Heaven will in the end succeed. Let the honor of thy disciple be as dear unto thee as the honor of thine associate.

Be careful in thy study, for error in study counts for an intentional sin.

MISHNA Q. Neither the security of the wicked nor the afflictions of the righteous are within the grasp of our understanding. Be beforehand in saluting every man. Be the lion’s tail rather than the fox’s head. Do not seek to appease thy friend in the hour of his passion. Look not upon the pitcher, but upon what it contains. Envy, sensuality, and ambition destroy life. Accept not the assurance of thy passions, that the grave will be a place of refuge for thee. Without thy consent wert thou created, born into the world without thy choice. Thou art living without thine own volition, without thine approval thou wilt have to die. About the death of Eliezer the Great. Set something apart for charity, before you are compelled to do so by others. Lower thy seat two or three rows from the place you intend to occupy. There are three persons whose life is not worth living. The safeguard for honor is refraining from laughter. The safeguard for wisdom is silence. Whoever marries a woman not suitable to him transgresses five negative commandments. Do not be as the lintel, which no hand can reach, etc.

MISHNA Q. (continued). Those that despise me shall be lightly esteemed. The support of the wise, etc. Do not keep away from a precept which has no limit. Let the honor of thy disciple, etc. There is grain in Judea, straw in Galilee, and chaff on the other side of the Jordan. There is no love such as the love of the Torah. There is no wisdom such as the wisdom of manners. Whoever maintains peace in his own household, etc. The words of the Torah are as difficult to acquire as silken garments and are lost as easily as, etc. All those things which are done in private shall be done as if they were done publicly. Do not isolate thyself from the community. The disciples are divided into three classes, etc. Whoever constitutes the Torah as the chief good, and considers worldly affairs as a secondary thing, etc. Conciliate not thy friend in the hour of his anger. The scholars are divided into four classes . One studies but does not teach others, etc. If one honor his friend for pecuniary considerations, he will in the end be dismissed in disgrace, etc. On account of the four different means of forgiveness, etc. Repentance must be to every one of them. However, one who has profaned the name of heaven has not the power to repent. Wherefore do scholars die before their time. Be careful in greeting thy neighbor He who neglects the words of the Law on account of his riches. There is a case where one transgresses ignorantly, etc. One who connects himself with transgressors, etc. The punishment of the liar is that even when he tells the truth he is not believed.

CHAPTER V.

MISHNAS A TO G. By ten sayings the world was created. For what purpose is this stated? Whence is it deduced that a single person is equal to the whole creation? The Holy One, blessed be He, showed unto Adam all succeeding generations, together with their preachers, directors, leaders, prophets, heroes, criminals, and their pious. Nine hundred and seventy-four generations before the creation of the world, the Torah was already written, etc. He created in man all that he created in his world--how So? Ten generations were there from Adam to Noah. For what purpose was this stated? The Lord said: I will not equal the evil thoughts to the good thoughts so long as their fate has not yet been sealed. Ten generations were there from Noah to Abraham. For what purpose was it necessary to state this? With ten temptations was Abraham our father tempted. They are as follows, etc. In contrast with these ten temptations the Lord performed ten miracles for his descendants in Egypt. When our fathers stood by the sea, etc. “Arise, and pass through it,” etc. With ten temptations did our ancestors tempt God in the wilderness. By means of ten trials the Holy One, blessed be He, tested our forefathers. This sin with which the Israelites were afflicted is enough for that time, etc. Ten names of praise are applied to the Holy One, blessed be He. Ten ignominious names are applied to the idols. There are two sons of the clear oil. This refers to Aaron and Messiah. In the Torah there is written eleven times the word “she” when it ought to be “he.” Ten times did the Shekhina descend upon the earth. Ten degrees the Shekhina removed itself from one place to another. A prophet is called by ten different names. There are ten names for the Holy Spirit. Ten are called “living.” Ten miracles were wrought for our fathers in Egypt.

MISHNAS H TO O. Ten miracles were performed for our forefathers in Jerusalem. Jerusalem never was defiled by leprosy. How Kimchith, the mother of R. Ishmael, saw her two sons as high-priests on the same day. The men of Sodom have no share in the world to come. About Kora’h and his company. “The Lord killeth, and maketh alive; he bringeth down to the grave, and bringeth up,” has reference to them. The generation of the desert. “Gather together unto me my pious servants, who make a covenant with me by sacrifice,” has reference to them. The ten tribes have no share in the world to come. R. Aqiba, however, said: “As the day is first dark and then lightens up, so also their darkness will be followed by light.” The following seven have no share in the world to come, etc. There are three kings and four commoners who have no share in the world to come. Absalom has no share in the world to come. Seven things mark the clod, and seven there are for the sage. There are seven creations of as many grades of importance. Man possesses six qualifications, three of which belong also to the beast, and three to the angels. The evil spirits possess six qualifications, three of which belong to man. There are seven sorts of hypocrites. That which is hidden is only so from human beings, but not from Heaven. There are seven things which, if used moderately, are wholesome to the body, and if in excess are the reverse. With seven things God created the world. Seven attributes are serving before the throne of Grace. There are seven dwelling-places. A wise man does not speak before those who surpass him in wisdom and years; and does not interrupt another in his speech; admits the truth, etc. Seven kinds of punishments come on account of seven cardinal transgressions. About the execution of R. Simeon b. Gamaliel and R. Ishmael b. Elisha the high-priest. Captivity comes upon the world, etc. Five are not to be forgiven. Four kinds of views are held by men concerning property.

MISHNAS P TO GG. There are four kinds of dispositions among men. There are four kinds of pupils. There are four kinds of charity-givers. There are four kinds of visitors of the house of learning. There are four kinds of the disciples of the wise. Love inspired by ulterior motives, etc. Whatsoever gainsaying is for the sake of Heaven will have good results. Whosoever causes many to be righteous, sin prevails not over him. In whomsoever are the following three things, he is a disciple of Abraham, etc, Be courageous as the panther, light-winged as the eagle, swift as the deer, and strong as the lion, One five years old should study Scripture, etc. Turn it and turn it again, for everything can be found therein.

CHAPTER VI.

MISHNAS A TO R. Whosoever is busied in Torah for the love thereof merits many things. Every day a Heavenly voice goes forth from Mount Horeb and proclaims as follows, etc. He who learns from his companion one chapter, etc., is bound to do him honor. The path of Torah, etc. Seek not greatness for thyself, and desire not honor. Greater is Torah than the priesthood, and than the kingdom. There are four things which bear good fruit in this world. A meritorious act has both principal and benefit. One who causes many to be righteous, no sin prevails upon him. Regarding dreams, there are four sages, three scholars, three books of the prophets, and three books of the Hagiographa. Every assembly that is for the sake of performing a religious duty remains everlasting. Comeliness, strength, wealth, honor, wisdom, age, hoariness, and sons are becoming to the righteous, etc. If thou shouldst give me all the silver, gold, and goodly stones and pearls that are in the world, I would not dwell but in a place of Torah. Five possessions had the Holy One in this world. Whatsoever the Lord created in this world He created only for His glory. There are three crowns: the crown of Torah, priesthood, and kingdom. Three things were said of charitable men. There are three different kinds among scholars. There are three different kinds of sweat that are beneficial to the body. There are six kinds of tears. There are three advantages in an earthen vessel. There are three advantages in a glass vessel. The money that the Israelites carried away from Egypt returned to Egypt. If you do the least wrong to your companion, it shall be considered by you the greatest wrong, etc. The following articles were hidden, etc.

Chapter I

MISHNA A. Moses received the Law on Sinai and delivered it to Joshua; Joshua in turn handed it down to the Elders (not to the seventy Elders of Moses’ time but to the later Elders who have ruled Israel, and each of them delivered it to his successor); from the Elders it descended to the prophets (beginning with Eli and Samuel), and each of them delivered it to his successors until it reached the men of the Great Assembly. The last, named originated three maxims: “Be not hasty in judgment; Bring up many disciples; and, Erect safe guards for the Law.”

Tosephhta--Aboth of R. Nathan.

[1]Moses was sanctified in the cloud, and received the Torah from Sinai, as it is written [Ex. xxiv. 16]: “And the glory of the Lord abode upon Mount Sinai,” which means on Moses (for what purpose?), to purify him; this occurred after the ten commandments had been given. So says R. Jose the Galilean; R. Aqiba, however, says: It is written [ibid.]: “And the cloud covered it six days.” This refers to the mountain, before the ten commandments had been given, and this is what is written further on [ibid.]: “And he called unto Moses the seventh day out of the cloud” (for what purpose?--only) to confer honor upon him.

Said R. Nathan: Why did Moses stay the entire six days without communication from the Shekhina? To cleanse his body of all the food and drink it contained, that he might be like angels at the time of his consecration.

Said R. Mathia b. Heresh to him: Rabbi, all this stated above was done only to overawe him, that he might receive the words of the Torah with awe, terror, fear and trembling, as it is written [Ps. ii. “Serve the Lord with fear and rejoice with trembling.”

It happened that R. Josiah and R. Mathia b. Heresh were both sitting and studying the Law. R. Josiah then departed to attend to worldly affairs. Said R. Mathia to him: “Rabbi, what dost thou gain by forsaking the words of the living God, and devoting thyself to worldly affairs? Even though thou art my master, and I thy disciple, yet I dare say that it is not right to do so.” (Lest one say that R. Josiah did so from jealousy,) it was said: While sitting and studying the Torah they were jealous of each other, but when they parted they were like friends from youth.

Through Moses the Torah was given on Sinai, as it is written [Deut. v. 19]: “And he wrote them on two tables of stone, and he gave them unto me.” And also [Lev. xxvi. 46]: “These are the statutes and ordinances and laws, which the Lord made between him and the children of Israel on Mount Sinai, by the hand of Moses.” The Law which the Holy One, blessed be He, has given to Israel, was given only in the hand of Moses, as it is written [Ex. xxxi. 17]: “Between me and the children of Israel.” So Moses (because of his purification and sanctification) was privileged to be the representative of Israel before the Lord.

Moses offered the ram of consecration and prepared the oil of anointment, and anointed therewith Aaron and his sons during all the seven days of consecration. With the same oil high-priests and kings were afterward anointed, and Elazar burned the (first) red-cow, with the ashes of which the unclean were purified in later generations. Said R. Eliezer: “The oil of anointment was of such importance that it remained even for the later generations, for Aaron and his sons were consecrated with the oil of anointment, as it is written [Ex. xxx. 30]: ‘And Aaron and his sons shalt thou anoint, and consecrate them to be priests.’” (Hence we see that although Aaron was a high-priest, his sons, nevertheless, stood in need of anointment.)

Joshua received it (the Law) from Moses, as it is written [Numb. xxvii. 20]: “And thou shalt put some of thy greatness upon him, in order that all the congregation of the children of Israel may be obedient.” The elders (who lived after Moses) received it from Joshua, as it is written [Judges ii. 7]: “And the people served the Lord all the days of Joshua, and all the days of the elders that lived many days after Joshua, who had seen all the great deeds of the Lord, which he had done for Israel.” The judges received it from the elders, as it is written [Ruth, i. 1]: “And it came to pass in the days when the judges judged.”[2] The prophets received it from the judges (beginning with Samuel the prophet, who was also a judge), as it is written [Jerem. vii. 25]: “And I sent unto you all my servants the prophets, sending them daily in the morning early.” Haggai, Zechariah, and Malachi received it from the prophets. The men of the Great Assembly received it from. Haggai, Zechariah, and Malachi, and they said the following three things mentioned in the Mishna:

“Be deliberate in judgement.” How so? It means a man shall be slow in his judgment, for he who is slow is deliberate, as it is written [Prov. xxv. 1]: “Also these are the proverbs of Solomon, which the men of Hezekiah the king of Judah have collected.” They have not collected them,, but they were deliberating upon them before (making them public). Abba Saul, however, said: “Not only were they deliberating over them, but they also explained them.”

Formerly it was said: The books of Proverbs, Song of Songs, and Ecclesiastes were hidden, because they are only parables, and do not belong to the Hagiographa; the men of the Great Assembly, however, came and explained them, as it is written [Prov. vii. 7-20]: “And I beheld among the simple ones, I discerned among the youths, a lad void of sense, etc. and, behold, a woman came to meet him with the attire of a harlot and obdurate of heart; she is noisy and ungovernable; in her house her feet never rest; at one time she is in the street, at another in the open places, and near every corner doth she lurk, and she caught hold of him, and kissed him, and with an impudent face she said to him, ‘I had bound myself to bring peace-offerings; this day have I paid my vows; therefore I am come forth to meet thee, to seek thy presence diligently, and I have found thee. With tapestry coverings have I decked my bed, with embroidered coverlids of the fine linen of Egypt. I have sprinkled my couch with myrrh, aloes, and cinnamon. Come, let us indulge in love until the morning: let us delight ourselves with dalliances. For the man is not in his house, he is gone on a journey a great way off; the bag of money hath he taken with him; by the day of the new-moon festival only will he come home.’” And it is written also in Song of Songs [vii. 12, 13]: “Come, my friend, let us go into the field; let us spend the night in the villages; let us get up early to the vineyards; let us see if the wine have blossomed, whether the young grape have opened (to the view), whether the pomegranate have budded: there will I give my caresses unto thee.” And it is written again in Ecclesiastes [xi. 9]: “Rejoice, O young man, in thy childhood; and let thy heart cheer thee in the days of thy youthful vigor, and walk firmly in the ways of thy heart, and in (the direction which) thy eyes see; but know thou, that concerning all these things God will bring thee into judgment.” And again in Song of Songs [vii. 10]: “I am my friend’s, and toward me is his desire.” So we see that the last-mentioned passage of the Song of Songs explains all that was mentioned above; under the term “my friend’s” the Lord is understood. Hence (it is sure) that they were not only deliberating, but also explaining them.

According to others the statement “Be deliberate in judgment means to teach that one shall be careful with his words, and also not to have an irascible manner against those who have received his words, for one who is easily provoked by those who have received his words often forgets his (original) words; for so we find with Moses, our master, who had forgotten his (original) words. (See Pesachim, p. 129: “Resh Lakish said,” etc.)

And where do we find that Moses was irascible with his hearers? It is written [Numb. xxxi. 14]: “And Moses was wroth. . . . Have you allowed all the females to live?” And it is written [ibid., ibid. 16]: “Behold . . . through the counsel of Bil’am.” How so? Infer from this that this was the advice of Bil’am given to Balak: “These people, your enemies, are hungry for food and are thirsty for drink, as they have nothing but manna. Go and put up tents for them, place in them food and drink, and seat in them beautiful women, daughters of nobles, so that the people may turn to Baal Peor.” (This will be given in Sanhedrin in detail.)

Now from this we may draw an a fortiori conclusion. If Moses our master, the wisest of the wise and the father of the prophets, at the time he became angry at his listeners forgot his original words, so much the more would we commoners. From this we should learn how necessary it is to be careful and not irascible.

Ben Azai says: Be careful in thy words, that thy hearers shall not err through them.

“And erect safeguards for the Law.” That means that one shall make a safeguard to his words as the Holy One, blessed be He, has done. Adam the First made one to his; the Torah made one to its words; Moses and job likewise made safeguards to their words, and so also the Prophets and Hagiographers have all made safeguards to their words.

The safeguard that the Holy One, blessed be He, made is this [Deut. xxix. 23]: “Even all the nations will say, wherefore hath the Lord done thus unto this land?” Infer from this that it was known beforehand to Him, by whose one word the universe was created, that the future generations will ask this; therefore he said to Moses: Write the answer for the future generations [ibid., ibid. 24, 25]: “Then shall men say, because they have forsaken the covenant of the Lord, etc., and they went and served other gods and bowed down to them--gods which they knew not, and which he had not assigned unto them.”

We see, then, that the Holy One, blessed be He, made these answers, to prevent His people from incurring His wrath by their questions, and that they might live in peace.

Adam the First’s safeguard to his words was thus [Gen. ii. 16, 17]: “And the Lord God commanded the man, saying, Of every tree of the garden thou mayest freely eat; but of the tree of the knowledge of good and evil, thou shalt not eat of it; for on the day that thou eatest thereof thou shalt surely die.”

We see, then, that Adam did not want to give Eve the exact words he received, but he added [ibid. iii. 3]: “Ye shall not eat of it, neither shall ye touch it, lest ye die,” in order that they should take care even not to touch the tree. At that time the wicked serpent said to himself: “As it is impossible for me to make Adam stumble (for he himself received the words from the Lord), I will make Eve stumble.” He sat by her and had a long conversation with her. He said to her: “As thou sayest that the Holy One, blessed be He, has forbidden thee to touch it, see that I am touching it and will not die, and the same will be with thee.” And so he did: he arose and shook the tree with his hands and feet till the fruit fell down. [According to others the serpent did not actually touch the tree at all, because as soon as the tree saw the serpent it stopped him and said: “Thou wicked one, do not touch me,” as it is written [Ps. xxxvi. 12]: “Let not come against me the foot of pride, and let not the hand of the wicked chase me off.” Another explanation of the above passage is, that it has referred to Titus, who beckoned with his hand, and struck the altar, saying: “λυχος! λυχος! (wolf!) thou art a king, and I am a king, come and engage with me in battle. How many oxen were slaughtered upon thee; how many heads of birds were pinched off on thee; how many measures of wine were poured upon thee; how much incense of spices was burned upon thee, thou art the one who destroys the whole world,” as it is written [Is. xxix. 1]: “Woe to Ariël, to Ariël, the town where David dwelt! Add ye year to year; let the festivals come round in order.”]

The serpent said again to her (Eve): “If thou sayest that the Holy One, blessed be He, forbade to eat it, see I eat of it, and do not die, and thou mayest do the same and thou wilt not die.” So Eve said to herself, the injunctions of my master are unfounded. [(There is a tradition that) at first Eve called Adam nothing but master.] She then herself ate of the fruit and gave it to Adam, and he too ate, as it is written [Gen. iii. 6]: “And when the woman saw that the tree was good for food, and that, it was pleasant to the eyes,” etc.

With ten curses was Eve cursed at that time, as it is written [ibid., ibid. 16]: “Unto the woman he said, I will greatly multiply thy pain and (the suffering of) thy conception; in pain shalt thou bring forth (children), and for thy husband shall be thy desire, but he shall rule over thee.” “I will greatly multiply”--those are the two afflictions of blood that a woman has to suffer: that of her menstruation and that primæ noctis. “And thy suffering” means the rearing of children; “and thy conception” means the pain of pregnancy. “In pain shalt thou bring forth children” is to be taken in its literal sense. “And for thy husband shall be thy desire”; infer from this that the woman is longing for her husband during his absence on a journey. She is wrapped like a mourner, separated from all men as if she were in prison and as if she were excommunicated from all mankind. And who caused all this? The words that Adam added: “Ye shall not touch it.” From this they deduced the maxims that if one makes a safeguard to his words (without stating that it is such) he cannot stand by it. Consequently they said that one must not add to what he has heard. Said R. Jose (this is what people say): “It is better to have a wall of ten spans which is solid, than one of a hundred ells which is tottering.”

What were the thoughts of the wicked serpent at that time? “I will slay Adam and marry his wife, and I will be king of the whole world, I will walk erect, and will banquet on the best of the land.” Then the Holy One, blessed be He, said to him: “Thou hast thought to slay Adam and marry his wife, therefore I will put enmity (between thee and the woman); thou hast thought to be king of the world, therefore be thou cursed among all the cattle; thou hast thought to walk erect, therefore upon thy belly shalt thou go; thou hast thought to banquet on the best of the land, therefore dust shalt thou eat all the days of thy life.”

R. Simeon b. Menassia says: “Woe that a great servant was lost to the world, for if the serpent had not been accursed, every one would have had two serpents in his house. He would send one to the West, and the other to the East, and they would bring him diamonds, precious stones and pearls, and all the valuable things of the world, and no creature could stand against them, and furthermore they could be used instead of a camel, ass, and mule in the field, garden,” etc.

R. Jehudah b. Bathyra says: “Adam was sitting in the Garden of Eden and the angels served him with roasted meat and chilled wine.” When the serpent saw this and observed this honor, he became jealous.

How was Adam created? The first hour his dust was gathered, the second the form was created, the third he became a body, the fourth his members were joined, the fifth the openings were developed, the sixth the soul was put unto him, the seventh he rose to his feet, the eighth Eve was mated to him, the ninth he was brought into the Garden of Eden, the tenth the command was given to him, the eleventh he sinned, the twelfth he was driven out and went away; this is what is written [Ps. xlix. 21]: “Ve Adam bikor bal yolin.”[3] (Adam, “Bal Yolin”--he shall not stay over night.) [We have learned in Tract Rosh Hashana, p. 55: On the first day which psalm did they say? “Unto the Lord belongeth the earth with what filleth it” [Ps. xxi. 17]; this was because He created and is still continuing to create, and He is judging the world. On the second day they said: “Great is the Lord and highly praised, in the city of our God” [ibid. xlviii. 2]; it is because He divided all His creatures and became the one ruler of the universe. On the third they said: “God standeth in the congregation of God, in the midst of judges doth He judge” [ibid. lxxxii. 1]; it is because He then created the sea, the land, and the earth was rolled to its right place, and room was made for His congregation. On the fourth day they said: “O God of vengeance, Lord! O God of vengeance, shine forth” [Ps. xciv. 1]; because then He created the sun, the moon, the stars, and the planets which give light to the world, and the Lord will punish those who worship them. On the fifth they said: “Sing aloud unto God our strength; shout joyfully unto the God of Jacob” [Ps. lxxxi. 2]; because He then created the birds, the fishes, and the great sea monsters, who (the birds) fill the world with song. On the sixth they said: “The Lord reigneth, He is clothed with excellency; the Lord is clothed, He had girded Himself with strength: (therefore) also the world is firmly established, that it cannot be moved.” Because then He finished all His work He became exalted and placed Himself on the loftiest point of the world. On the seventh they said: “A psalm or song for the Sabbath day” [ibid. xcii. 1]. A day of entire rest, when there is no eating nor no drinking and no traffick, but the upright sit with their crowns on their heads and are nourished from the glory of the Shekhina, as it is written [Ex. xxiv. 11]: “And they saw (the glory of) God, and did eat and drink,” just like the angels.]

Why was Adam created on the last hour of the sixth day? In order that he might immediately partake of the sabbatical meal.

R. Simeon b. Elazar said: Adam can be likened to an Israelite who married a proselyte woman, and he constantly sought to impress upon her mind the following regulations: “My daughter, eat not bread when thy hands are unclean, eat not of fruits which were not tithed, do not violate the Sabbath, do not get into the habit of making vows, and walk not with another man. If thou shouldst violate any of the commands, thou wilt die.” Another one, who wished to mislead her, did those very things before her that she had been told were sinful: he ate bread when his hands were unclean, partook of fruits which were not tithed, violated the Sabbath, etc., and thereby caused this proselyte to think that everything that her husband told her was entirely false, so she violated all his commandments.

R. Simeon b. Johai said: The case of Adam can be likened to one who, when intending to leave his house, took a barrel and put therein a certain number of dates and nuts; then he caught a scorpion and put it in the top of the barrel, be covered it well and put it in a corner, and said to his wife: “My daughter, everything I have in this house is placed at thy disposal, except this barrel, which thou must touch not at all.” As soon as her husband went away, she, however, opened the barrel, put her hand into it, and the scorpion bit her. She took sick and went to her bed. When her husband returned, he asked her what the trouble was. She said: “I put my hand in the barrel, and the scorpion bit me, and I am dying.” He said to her: “Did I not tell thee before that thou must not touch the barrel?” He became angry, and drove her out of his house. The same happened to Adam when the Holy One, blessed be He, told him: “Of every tree in the garden thou mayest freely eat; but of the tree of the knowledge of good and evil, thou shalt not eat of it; for on the day that thou eatest thereof thou shalt surely die”; but as soon as he did eat he was driven out of the Garden of Eden, and this is what the passage said [Ps. xlix.] (see above).

On the same day on which he was formed, on the very same day his countenance was created; on the very same day he was made a body, and his members were joined and his openings developed, and on the very same day the soul was put unto him. On the same day he stood upon his feet, and Eve was mated to him. On the same day he pronounced the names of all the creatures, and on the very same day he was placed in the Garden of Eden and received the command (not to eat, etc.), and on the very same day he violated it and was driven out, to comply with what is written [Ps. xlix.] (see above). On the same day they went to bed two, and descended from the bed four. R. Jehudah b. Bathyra, however, says that they descended six (two sons and two daughters). On that day three sentences were pronounced over Adam, as it is written [Gen. iii. 17, 18]: “And unto Adam he said, because thou hast hearkened unto the voice of thy wife, etc., cursed be the ground for thy sake, in pain shalt thou eat of it, etc., and thorns and thistles shall it bring forth to thee, and thou shalt eat the herbs of the field.” As soon as Adam the First heard that the Holy One, blessed be He, said: “And thou shalt eat the herbs of the field,” he trembled in his whole body. He said before Him: “Lord of the Universe, shalt I and my cattle eat out of the same trough?” Said the Holy One, blessed be He: “As thou hast trembled, therefore in the sweat of thy face shalt thou eat bread” [ibid., ibid. 19].

As Adam was laid under three sentences, likewise was it with Eve. As it is written [ibid., ibid. 16]: “I will greatly multiply thy pain and (the suffering of) thy conception; in pain shalt thou bring forth children.” The first few days of menstruation are painful. So also are the first few moments of her sexual intercourse with a man. Also when the woman becomes pregnant, her face loses its beauty and becomes yellow the first three months.

When evening drew near, and Adam, looking toward the west, saw that it was becoming darker and darker, he said: “Woe to me is this, because I have sinned, that the Lord darkens the world upon me!” He did not know that it was the course of nature. In the morning, when he saw it lighted up and the sun risen in the east, he rejoiced greatly. He built an altar and sacrificed on it as a burnt-offering an ox, the horns of which were formed before his hoofs. (Rashi explains this elsewhere as follows: All the creatures of the first days of creation were created in their full-grown sizes, and as the head was formed first the horns thereon preceded the hoofs in point of time. This means to say that Adam sacrificed an ox of the first creation.) As it is written [Ps. lxix. 32]: “And this will please the Lord better than an ox or bullock having horns and cloven hoofs.”

(There is a tradition) that the ox of Adam, the steer of Noah, the ram sacrificed by Abraham in place of his son, were all of the first creation, as it is written [Gen. xxii. 13]: “And Abraham lifted up his eyes and saw, and behold, there was a ram Achar” (another one, which signifies that it was one differing from the usual ones). At that time (of the sacrifice of the ox, the Holy One, blessed be He, became merciful to him and) three divisions of angels came down with harps, and psalteries, and all musical instruments, and they sang with Adam, as it is written [Ps. xcii. 1-3]: “A psalm song for the Sabbath day. It is a good thing to give thanks to the Lord, etc. To tell in the morning of thy kindness, and of thy faithfulness in the nights.” “To tell in the morning of thy kindness,” this means the world to come, which is likened to the morning, as it is written [Lam. iii. 23]: “They are new every morning, great is thy faithfulness”; and [Ps. xcii.] “And of thy faithfulness in the night” means this world, which is likened to night, as it is written [Is. xxi. 11]: “The doom of Dumah. Unto me one calleth out of Se’ir, Watchman, what of the night? Watchman, what of the night?”

The Holy One, blessed be He, said then: “If I will not punish the serpent, that would be as if I Myself were destroying the world, because it would be said that the one that I set up as king over the entire world has disobeyed My command and ate of the forbidden fruit”; therefore immediately He turned to the serpent and cursed him, as it is written [Gen. iii. 14]: “And the Lord God said unto the serpent,” etc. R. Jose said: “If the serpent had not been cursed, the world would have been destroyed immediately afterward.”

When God created Adam, He formed him with two countenances, front and back, as it is written [Ps. cxxxix. 5]: “Behind and before hast thou hedged me in, and thou placest upon me thy hand.” And the angels came down to serve him, and the Holy One, blessed be He, took him under His wings, as it is written: “And thou placest upon me thy hand.”

According to others, from this passage is to be inferred that Adam and the Temple were both created with both hands. This view is supported by the following passages [Ps. cxix. 73]: “Thy hands have made me and established me”; and it is also written about the Temple [Ex. xv. 17]: “The sanctuary, O Lord, which thy hands have established.”

Tosephtha--Aboth of R. Nathan.

[4]What is the safeguard that the Torah made to its words? It is written [Lev. xviii. 19]: “And a woman in the separation of her uncleanness shalt thou not approach.” One might say it is allowed to embrace and kiss her, and converse with her, therefore it is written: “Shalt thou not approach”; test one say it is allowed to sleep with her on one bed when they are both dressed, therefore it is written [Lev. xv. 33]: “And of her that is suffering in her separation,” that means during all the days of her separation she shall be as if under a ban;[5] from this it may be said that a woman who makes herself homely during her separation does it in accordance with the will of the sages, and one that adorns herself during that time incurs the dissatisfaction of the sages.

It happened that a man, although faithfully studying (the Bible), learning (the Mishna), and serving (in the colleges) of the sages, died in the prime of life. His wife used to take his phylacteries[6] and go around and visit all the synagogues and colleges, weeping and crying: “My masters, in the Law it is written [Deut. xxx. 20]: ‘For he is thy life and the length of thy days’; now there is my husband, who read and learned much and served the sages, why did he die in the prime of life?” And there was no one that gave her a satisfactory answer. Once she met Elijah the prophet, of blessed memory, and he said to her: “My daughter, wherefore criest thou?” and she made to him the same complaint. He then said to her: “What was his wont with thee in the first days of thy separation?” She answered: “Rabbi, he did not even touch me with his little finger; furthermore, he told me, ‘Do not touch anything, that thou mayest not bring it into suspicion.’” “And what was his habit with thee in the last days of thy separation?” he said again. She answered: “Rabbi, I used to eat and drink with him, and to sleep with him fully dressed on the bed, and his body touched mine, but with no intention of anything else.” Elijah then said: “Blessed be the Omnipotent that killed him, because it is written [Lev. xviii. 19]: ‘Shalt thou not approach.’”

It is written [ibid., ibid. 6]: “None of you shall approach to any that are near of kin to him.” From this it was said one must not stay in a separate room with any woman in a hostelry, though she be his sister or daughter, because of public opinion. For the same reason one must not converse with a woman in the market, not even with his wife. For the same reason a man shall not walk behind a woman, even though she be his wife. This was deduced from the following analogy of expression: It is written in the passage of illegal unions, “Ye shall not approach,” and here is also written, “Thou shalt not approach,” from which it is to be inferred that one shall not approach such things as can cause him to sin (or cause people to talk about him).

There is an ancient saying: Keep thyself apart from the abominable, and from things which are equal to it; and the sages explained it thus: Keep thyself from trivial sin, that it may not lead thee to a grave one. Run to perform a slight meritorious deed, for it will lead thee to the performance of a great one.

It is written [Song of Songs, vii. 3]: “Thy body is like a heap of wheat fenced about with lilies.” “Thy body is like a heap of wheat” refers to the assembly of Israel, and “fenced about with lilies” refers to the seventy elders. Another explanation of the words, “Thy body is like a heap of wheat,” is that they refer to the lenient religious duties which seem to be of no consequence; “fenced about with lilies,” nevertheless when the Israelites perform them they bring them to the world to come. How so? When one is with his wife in his house he can do with her what he pleases even during the separation, as there is nobody to control him or reprove him; but when he refrains from having intercourse with her until she submerge herself, he is doing so only because he is afraid of him who commanded the submerging (in the legal bath); and the same is the case with the first dough, the first wool of shearing (no control can be exercised). Hence such duties, which are as light as lilies, bring the Israelites who perform them to the world to come.

Which is the safeguard that Moses made to his words? It is written [Ex. xix. 10]: “And the Lord said unto Moses, Go unto the people and sanctify them to-day and to-morrow.” As Moses the upright regarded it inexpedient to speak to the people in the manner God spake to him, he added one day of his own volition, and said to them [Ex. xix. 15]: “Prepare yourselves for three days.”[7] Why did he do so? Because he thought it might happen that one could have seminal intercourse with his wife that day, and so they will receive the Torah when they are unclean; “therefore I will add a third day, that in all the three days they shall refrain from intercourse, in order that they may be clean when receiving the Torah from Mount Sinai.

This is one of the things that Moses did of his own accord by drawing an a fortiori conclusion (as will be explained farther on), and his act was afterward sanctioned by the Omnipotent. The same was the case with the breaking of the tables, with his leaving the Tabernacle, and with his separation from a woman. How so? He said: “Since relative to the Israelites who were to be sanctified for the time being only, for the purpose of receiving the ten commandments from Mount Sinai, the Holy One, blessed be He, said unto me, ‘Go unto the people and sanctify them to-day and to-morrow,’ how much more incumbent is it on me to be particular about the cleanliness of my person, as I must be ready for such a divine call every day and every hour, and do not know when He would speak to me by day or by night.” And this was exactly in accordance with the will of God. R. Jehudah b. Bathyra, however, said: Moses did not leave his wife before he was told to do so by the Mighty One, as it is written [Numb. xii. 8]: “Mouth to mouth do I speak with him.” It means, mouth to mouth have I told him to separate himself from a woman. According to others, it is from the following passage: It is written [Deut. v. 27]: “Go say to them, return ye unto your tents”; and immediately after [ibid., ibid. v. 28]: “But as for thee, remain thou here by me.” Therefore he returned and separated himself. This was exactly the meaning of this passage.

The a fortiori in the case of the Tabernacle was thus: He said: As for my brother Aaron, who is anointed with the oil of anointment, and clothed in holy garments for service, the Holy One, blessed be He, regarding him said [Lev. xvi. 2]: “Speak unto Aaron thy brother, that he come not at all times into the holy place.” Now I who am not chosen for such service, as I am not a priest, how much more reason is there for me to leave the Tabernacle? He did so, and it was in accordance with the will of the Omnipotent.

The a fortiori in the case of the tables was thus: It is said when Moses ascended on high to receive the tables [which were written and preserved since the creation of the world, as it is written [Ex. xxxii. 16]: “And the tables were the work of God, and the writing was the writing of God, engraved upon the tables,” do not read “Charuth” (engraved), but Cheiruth (free), for every one who is studying the Law is a free man]. The angels conspired against Moses, saying: “Lord of the Universe, what is the mortal, that thou rememberest him?” etc. [Ps. viii. 5-9]. They murmured against Moses and said: What is the distinction of one born of woman, that he should come into the council on high? As it is written [Ps. 1xviii. 19]: “Thou didst ascend on high, lead away captives, receive gifts.” He nevertheless took the tables and descended with great rejoicing. When he saw the contamination with which they had stained themselves in worshipping the golden calf, he said: If I should give them the tables, I impose upon them a responsibility which might result in capital punishment by divine power, for on the tables is written: “Thou shalt have no other gods before me” [Ex. xx. 3]. He started to return, but the seventy elders saw him and ran after him, and grasped the tables on one end, the other end being still in Moses’ hand, and he overpowered them all, as it is written [Deut. xxxiv. 12]: “And in respect to all that mighty hand, and in all the great, terrific deeds which Moses displayed before the eyes of all Israel.” He looked at the tables, and saw that they were without writing upon thern. He then said: How shall I give Israel the tables, now that they have no value? I will rather break them. As it is written [Deut. ix. 17]: “And I took hold of the two tables, and cast them out of my two hands, and I broke them.” Said R. Jose the Galilean: I will explain this with a parable. A king said to his ambassador: “Go, betroth to me a maiden who is beautiful, chaste, and of pleasing manners.” The ambassador went and betrothed such to him. Soon he found that she acted the harlot. The ambassador was in a predicament. “What is to be done? If I grive her the marriage contract now, I may subject her to capital punishment. No,” he said, “I will tear the marriage contract and thereby release her from my master and save her.” So Moses the upright said, as stated above: “Rather will I seize and break them (the tables) and save the Israelites by enabling them, in case they should be charged with idolatry, to say: ‘Where are the tables? They did not exist at all.’”

R. Jehudah b. Bathyra said: Moses would not have broken the tables had he not been told by the Mighty One to do so, as it is written: “Mouth to mouth do I speak with him”; that means, I told him to break the tables. According to others, that thought is expressed in the following passage [Deut. ix. 16]: “And I looked, and behold, ye had sinned against the Lord.” He would not say “I looked,” unless he saw the writing of the tables flying away. Anonymous teachers find the same in the following passage [Deut. x. 5]: “And they have remained there, as the Lord hath commanded me.” He would not have said he was commanded unless he had been told to break them. R. Elazar b. Azariah infers it from the following passage [ibid. xxxiv. 12]: “Which Moses displayed before the eye of all Israel”; or, “All that Moses did was by the command of the Lord,” as in other cases Moses acted according to the command of God. [R. Aqiba infers it from the following passage: “And I took hold of the two tables.” What can a man take hold of? Only what he can destroy (i.e., if he had not been commanded to do so he could not have been able to destroy a thing given by God). R. Meir infers it from the following passage: “Which thou hast broken”; it really means, “which thou didst break rightfully” (see Sabbath, p. 165).]

Also Hezekiah, King of Judah, did four things of his own volition which were in accordance with the will of the Lord (see Pesachim, p. 99 in the Mishna): “And Hezekiah prospered in all his works” [II Chron. xxxii. 30].

What is the safeguard that Job made to his words? (Let us see), it is written [Job i. 1]: “And this man was perfect and upright, and fearing God, and eschewing evil.” We learn therefrom that job kept aloof from anything that led to sin, from abomination and from what is equal to it. It may be asked [if it is so, are not the terms “perfect” and “upright” superfluous? (the words “fearing God” and “eschewing evil,” are they not sufficient)? Infer from this that the term “perfect” means that he was born circumcised. Adam the first man also came forth circumcised, as it is written [Gen. i. 27]: “And God created man in his image.” Also Seth was so born, as it is written [ibid. v. 3]: “And begat a son in his likeness, after his image.” Noah, too, was born circumcised, as [ibid. vi. 9] the term “perfect” was used in reference to Noah. Shem was also so born, as it is written [ibid. xiv. 19]: “And Malkizedek, king of Salem.”[8] Jacob the patriarch was also so born, as the appellation “perfect” was also applied to him [ibid. xxv. 27]. And Joseph was also so born, as it is written [ibid. xxxvii. 2]: “These are the generations of Jacob: Joseph.” It ought to be the generation of Jacob: Reuben (as he was the first-born). Why is it Joseph? Infer from this, that as Jacob was born circumcised, so also was Joseph. And Moses was born circumcised, as it is written [Ex. ii. 2]: “And when she saw him, that he was a goodly child.” What good could his mother see in him? Was he then more beautiful than all mankind? Say, then, he was born circumcised. Also Balaam the wicked was born circumcised, as it is written [Numb. xxiv. 4]: “Thus saith he who heareth the sayings of God.” (According to the tradition of the Talmudists, one who is not circumcised could not hear the words of God, and as Balaam was a Gentile, and not circumcised by his parents, and yet he heard the words of God, consequently he must have been born circumcised.) Samuel was also born so, as he is also graced with the appellation good [I Sam. ii. 26]. David was also born so, traditionally, as (the support from Ps. xvi. 1 does not imply anything). Also Jeremiah was born circumcised, as it is written [Jer. i. 5]: “Before yet I had formed thee in thy mother’s body I knew thee, and before thou wast yet come forth out of the womb I sanctified thee.” Also Zerubabel was born so, as it is written [Haggai, ii. 23]: “On that day, saith the Lord of hosts, will I take thee, O Zerubabel, the son of Shealtiel, my servant.”] And he (Job) said [Job xxxi. 1]: “A covenant have I made with my eyes: how then should I fix my looks on a virgin?” Infer from this that job was so scrupulous with himself that he did not even look at a virgin. This is to be made an a fortiori conclusion--namely, if a virgin whom he could marry himself, or to his son, brother, or relatives was not looked upon by him because he was so rigorous with himself, so much the more did he refrain from looking at a married woman. But what was the reason that Job was so rigorous with himself as regards looking at a virgin? Because he thought, if I look at her to-day (and like her) and to-morrow she marries some one else, I will have looked on (and liked) a married woman.

What safeguard have the prophets made to their words? It is written [Is. xlii. 13]: “The Lord--as a mighty one will he go forth, like a man of war will he arouse his vengeance: he will shout, yea, raise the war-cry.” Is then the Lord as one mighty one? Is He not stronger than all the mighty ones of the world put together? The same is in Amos [iii. 8]: “The lion hath roared, who will not fear? the Lord Eternal hath spoken, who will not prophesy?” Is then the voice of the Lord equal to one lion--is it not as of all the lions of the whole world put together? The same meaning is conveyed by the following passage [Ezek. xliii. 2]: “Behold, the glory of the God of Israel came from the way of the east; and his voice was like a noise of many waters; and the earth gave light from his glory.” (Now let us see. We know from a tradition that the words) “like a noise of many waters” mean the angel Gabriel; and by “the earth gave light,” etc., is meant the appearance of the Shekhina. Is not here an a fortiori conclusion to be drawn? Gabriel, who is only one of the thousands of millions of servants who minister before the Lord, if his voice reached from one end of the world to the other, so much the more would that of the King of kings, the Holy One, blessed be He, who has created the universe, who has created the higher and the lower; but the reason why the prophets spake so is, that only such things are mentioned that the eye of a human being can see, and only such things are written that the car of a human being can hear.

What was the safeguard that the Hagiographers made to their words? It is written [Prov. v. 8]: “Remove far from her thy way and come not nigh to the door of her house.” “Remove far from her thy way” means heresy against which one is warned. Lest one say, I have confidence in myself and I am sure that it would not influence me, therefore it is written [Ps. ii. 19]: “All that come unto her return not again, and they will not reach the paths of life.” [It is written [ibid. ix. 2]: “She hath killed her cattle, she hath mingled her wine; she hath also set in order her table.” This refers to the: wicked. When one goes away with them, they give him food and drink, they clothe and cover him, and give him plenty of money; but as soon as he becomes one of them, each one recognizes what belonged to him and takes it away from him. Concerning them it is written [ibid. vii. 23]: “Till an arrow cleaveth through his liver, as a bird hasteneth into the snare, and knoweth not that it is done to take his life.”]

Another explanation to the above passage is this: “Remove far from her thy way” refers to a harlot. When one is warned not to go in this market, and not to enter into that alley, as there is a celebrated and much-spoken-of harlot, and he says, I have confidence in myself even though I go there I would not be seduced by her; nevertheless they must say to him, Go not, for after all thou canst be seduced by her. Did not our sages say: “A man shall not be in the habit of passing by the door of a harlot, for it is written [ibid. vii. 26]: ‘For many deadly wounded hath she caused to fall: yea, very numerous are all those slain by her’”?

What is the safeguard that the sages made to their words? e.g., the reading of Shema (see Berachoth), and so also have the latter sages made a safeguard to their words; and they have multiplied disciples who did the same thing. As to this, however, the schools of Shammai and Hillel differ. The School of Shammai maintain that one shall teach only those who are wise, modest, rich, and come from a good family; the School of Hillel, however, hold that one may teach every one, as there were many transgressors in Israel, and after they had become upright, pious, and righteous men, engaged in the study of the Law, they had the good fortune that from them descended men of uprightness, piety, and righteousness.

Tosephtha--Aboth of R. Nathan.

[9]R. Aqiba said: “Whoever takes a coin from the fund intended for charity to the poor when he is not in need of it, will not die before he will really be in need of assistance.”[10] He used to say: One that bandages his eyes or his shoulders, and says: “Give charity to the blind or to the leper,” will in the end speak the truth-that is, he will be such. He also said: One that throws his bread on the ground, or scatters his money in his anger, will not die before he will be in actual need of assistance. He said again: One that tears his garments or breaks his vessels in his wrath, will eventually worship idols, for this is the way of the evil thoughts: to-day they urge him to tear his garments, and to-morrow they will advise him to worship idols. And again: One that is desirous that his wife shall die in order to inherit her property, or to marry her sister, or one who is desirous that his brother shall die in order to marry his wife, in the end will be buried by them. Regarding such it is written [Eccl. x. 8]: “He that diggeth a pit will fall into it; and him who breaketh down a fence, a serpent will bite him.”

(Here follows a repetition of a Mishna in Baba Kama, which, according to our method, we have omitted.) R. Dostai b. Janai said: Though thou hast chosen and sown in the first quarter, sow also in the second: perhaps a hail might destroy the first, but the second will be preserved; for thou knowest not which will succeed, whether this or that, or both may be preserved, and both of them will be alike good, as it is written [Eccl. xi. 6]: “In the morning sow thy seed, and in the evening let not thy hand rest.” And even though thou hast sown in the first and second quarters, do not neglect to do so also in the third, as it may happen that a blast might destroy the first, but the latter will be preserved, as is said in the passage just mentioned.

R. Ishmael b. R. Jose said: The above passage refers to study, thus: Study the Law in thy old age, even if thou hast studied it in thy youth. Do not say: “I do not want to study when I am aged”; but study it always, because thou knowest not which will succeed. If thou hast studied the Law in years of plenty, do not count it for the years of famine. The study during times of ease does not count for those of distress, because one thing done in distress is better than a hundred in ease, as it is written [ibid.]: “In the morning sow thy seed, and in the evening let not thy hand rest.” R. Aqiba also said the same.

R. Meir said: When thou hast studied under one master, say not: “It is enough,” but go and study under another; yet do not go to all of them, but only to those who were near to the Law from the start (meaning a scholar from a scholarly house), as it is written [Ps. v. 15]: “Drink water out of thy own cistern, and running water out of thy own well.”

It is a duty to study under three masters, such as R. Eliezer, R. Joshua, and R. Aqiba, as it is written [Ps. viii. 34]: “Happy is the man that hearkeneth unto me, waiting day by day at my gates, waiting at the posts of my doors.”[11] Because thou canst not know which master’s teaching will remain with thee, or perhaps all are good, as may be learned from the above-mentioned passage.

R. Joshua said: “The same passage applies also to this: Marry a woman in thy youth; marry one also (if need be) when you are old; beget children in thy youth, and do so also in thy old age. Do not say, I will not marry again as I have children, but marry and beget more children, as you do not know which of them will be the good.”

He used also to say: “If thou hast given a coin to a poor man in the morning, and another one begs of you in the evening, give him also, as thou knowest not whether both will be benefited by thy donation, and whether both are alike deserving, as it is written: “In the morning sow thy seed.”[12]

It happened that a pious man who used to spend much in charity, while aboard a ship encountered a great storm, and the ship foundered. R. Aqiba saw him go down, and came to testify before the court in order that his wife might marry again. Before the court adjourned, the man came and stood before them. Said R. Aqiba to him: “Did you not sink into the sea?” He answered: “Yea.” “And who brought thee out of the sea?” R. Aqiba asked again. He answered: “The charities that I have given have saved me from the sea.” “Whence dost thou know this?” He said: “When I went down in the deep, I heard the noise of the waves. It seemed to me that they said to each other: This man has done charity all his days (and they actually threw me on land).” R. Aqiba then arose and said: Blessed be the Lord the God of Israel, who has chosen the words of the Torah and the words of the sages, for they are preserved everlastingly. As it is written [Eccl. xi. 1]: “Cast thy bread upon the face of the waters; for after many days wilt thou find it again.” It is written again [Prov. x. 2]: “And charity will deliver from death.”

It happened that to Benjamin the upright, who was the treasurer of charities, there came a woman and asked for food. He said: “I assure you that the treasury is empty.’’ She said: “Rabbi, if thou wilt not help me, thou wilt kill a widow and her seven children.” He then fed them at his own expense. Years afterward Benjamin the upright fell ill, and he suffered very much on his sick-bed. Said the angels before the Holy One, blessed be He: “Lord of the Universe, Thou hast said: He who preserves one soul of Israel is regarded (by Scripture) as if he preserved an entire world. Benjamin the upright, who has preserved a widow and seven children, (is entitled) so much more to such consideration, yet he is pining on the couch. of a painful disease.” They implored the mercy of God in his behalf, and His decree was annulled, and twenty-two years were added to his life.

MISHNA B. Simeon the just was one of the remnants of the Great Assembly. His motto was: “The order of the world rests upon three things: on law, on worship, and on bestowal of favors.”

Tosephtha--Aboth of R. Nathan.

[13]“Upon the Torah.” How so? It is written [Hosea, vi. 6]: For piety I desired, and not sacrifice; and the knowledge of God more than burnt-offerings.” Infer from this that the burnt-offering is more favored than ordinary sacrifices, because it is all burnt up in the fire, as it is written [Lev. i. 9]: “And the priest shall burn the whole on the altar,” and elsewhere [I Sam. vii. 9]: “And Samuel took the sucking lamb and offered it for an entire burnt-offering unto the Lord.” Yet the study of the Law is more acceptable in the sight of the Lord than burnt-offerings, because he who is studying the Torah knows the will of the Lord, as it is written [Prov. ii. 5]: “Then wilt thou understand the fear of the Lord, and the knowledge of God wilt thou find.” From this it may be inferred that when a sage lectures to the public it is accounted to him in Scripture as if sacrificing fat and blood upon the altar.

Two scholars studying together, when a bride or a bier carrying a corpse passes before them, must observe the following rule: If the bride has all she needs to feel that she is such, and if the dead has all that is needed for decent burial, the students shall not interrupt themselves; but if such be not the case, let them suspend their study and go to add to the joy of the bride and to do honor to the dead. [It happened that a wedding procession passed by while R. Tarphon was studying with his disciples, and he directed that the bride be brought up to his house, and he told his mother and his wife to wash, anoint, and ornament her, and to dance for her until she should reach her groom. According to Elias Wilna.]

It also happened that, while R. Judah b. Ilai was teaching his disciples, a wedding procession, which had not sufficient followers, passed by, and he with his disciples took part in the procession until the bride passed.

It happened again that while the same was engaged in teaching his disciples, a bridal party passed by. He asked: “What is that and they answered: “A bridal party.” He then said: “My sons, arise, evince your interest in the bride.” So we find that the Holy One, blessed be He, bestowed His favor upon a bride, as it is written [Gen. ii. 22]: “And the Lord God formed the rib.” And in the cities by the sea a bride is called Beniatha, “the formed one.” If He has done so, how much more reason is there for us so to do? Infer from this that the Lord formed Eve and ornamented her like a bride, and brought her to Adam, as it is written [ibid.]: “And brought her unto Adam.” Only once has the Lord become a mediator to Adam; henceforward man must procure a mediator for himself, as it is written [ibid., ibid. 23]: “Bone of my bones, and flesh of my flesh.” Once only was Eve formed out of Adam; henceforward man betroths the daughter of his fellowman.

“On service.” How so? As long as the service of the Temple existed, the world was blessed for the sake of its inhabitants, and the rain came down in due season, as it is written [Deut. xi. 13, 14]: “I love the Lord your God, and to serve him . . . that I will send rain for your land in due season.” But when the service of the Temple ceased, the inhabitants were not blessed, and the rain did not come down in due time, as it is written [ibid., ibid. 16]: “Take heed to yourselves that your heart be not deceived . . . and he will shut up the heavens that there be no rain.” Also Haggai said [ii. 15, 16]: “Direct, I pray you, your heart from this day and upward, before the time that a stone was laid upon a stone in the temple of the Lord: since those days were, when one came to a heap of sheaves of twenty (in number), and there were but ten; when he came to the wine-press to draw off fifty measures out of the vat, and there were but twenty.” [Why was it not said of the wine-press also “twenty, and there were but ten,” the same as of the wheat? Because the wine-press is a better sign than the wheat. There is a tradition that when the vine is spoiled it is a bad sign for the current year.]

Said the Israelites before the Holy One, blessed be He: “Lord of the Universe, why hast Thou done thus to us?” The Holy Spirit answered: “Ye looked for much, and, lo, it came to be little, . . . because of my house that lieth in ruins, while ye ran every man unto his own house” [Haggai, i. 9]. “If ye will employ yourselves with the service of the Temple, I will bless ye as heretofore,” as it is written [ibid. ii. 18, 19]: “Direct, I pray, your heart . . . from the four and twentieth day of the ninth month, even from the day that the foundation of the Lord’s temple was laid. . . . Is the seed yet in the barn? Yea, as yet the wine, and the fig-tree, and the pomegranate, and the olive-tree have not brought forth; (but) from this day will I bless you.” Infer from this that there is no service which is favored by the Lord more than the Temple service.

“Upon bestowal of favors.” How so? It is written [Hosea, vi. 6]: “For kindness I desired, and not sacrifice.” Moreover, at the beginning the world was created with kindness, as it is written [Ps. lxxxix. 3]: “To eternity will kindness be built up (e.g., the world is built up with kindness), the heavens--yea, in these wilt thou establish thy faithfulness.”

R. Johanan b. Zakkai once went out of Jerusalem, followed by R. Joshua, and seeing the destroyed Temple, R. Joshua said: “Woe to us, that this is destroyed, the only place where the sins of the Israelites were atoned!” R. Johanan corrected him, saying: “My son, do not grieve over it. We have other means of atonement as effective--namely, bestowal of favors, as it is written [Hosea, vi. 6]: ‘For kindness I desired, and not sacrifice.’ As we find with Daniel, who was occupied in doing good. And what good did he do? He certainly did not sacrifice burnt-offerings and voluntary offerings, as he was in Babylon, and with regard to the place of sacrifice, it is written [Deut. xii. 13, 14]: ‘Take heed to thyself that thou offer not thy burnt-offering in every place which thou mayest see; but in the place which the Lord will choose in one of thy tribes, there shalt thou offer thy burnt-offerings.’ What good, then, did he do? He rejoiced with people in their joy, he wept with them in their sorrow, he helped and cheered poor brides, he honored the dead by following them to the last resting-place, he gave material aid to the needy, and prayed three times every day, and his prayers were received with favor, as it is written [Dan. vi. 11]: ‘And three times every day he kneeled upon his knees, and prayed, and offered thanks before his God,’ etc.”

When Vespasian came to destroy Jerusalem, he said to the inhabitants: “Fools, wherefore do ye seek to destroy this city and to burn the Temple? All I want of you is to send me a bow or an arrow--i.e., to acknowledge my dominion over you. I will leave you in peace.” They, however, said: “just as we killed the two who came before thee, so will it be with thee.” When R. Johanan b. Zakkai heard this, he invited the leaders of Jerusalem to a conference, and said unto them: “My sons, why should you occasion the destruction of the city and insist upon it, as it were, that the Temple be burnt? All the enemy wants is that you send to him a bow or an arrow, and is willing on that condition to depart.” But they answered him in the manner they answered Vespasian. The latter had spies within the walls of Jerusalem, and whatever they heard they wrote upon an arrow and threw it outside the wall. In this manner Vespasian learned that R. Johanan b. Zakkai was friendly to Cæsar (and so he really was, and confessed it frankly to the leaders of Jerusalem). When R. Johanan b. Zakkai saw that his efforts during several days in succession to win the leaders for peace proved futile, for the leaders did not listen to him, he sent for his disciples, R. Eliezer and R. Joshua, and said: “My sons, try to take me out of here. Make me a coffin, and I will sleep in it.” They did so, and R. Eliezer held the coffin by one end, and R. Joshua held it by the other, and thus carried him at sunset to the gates of Jerusalem. When the gate-keepers asked them whom they had there, they answered: “A corpse; and you know that a corpse cannot remain in Jerusalem over night.” They were allowed to go, and they carried him till they came to Vespasian. There they opened the coffin, and he arose and introduced himself to Vespasian, who said: “Since thou art the Rabban Johanan b. Zakkai, I give thee the privilege to ask a favor of me.” He answered: “I request nothing but that the city of Jamnia shall be free to me to instruct there my disciples. I will build there a prayer-house, and will perform all the commandments of the Lord.” Hereupon Vespasian said: “It is well. Thou mayest go thither, and undisturbed carry out the object of thy desire.” R. Johanan b. Zakkai then asked permission to say something to Vespasian. This having been granted, he said: “I can assure you that you will become a king.” “How dost thou know it?” He answered: “We have a tradition that the Temple will not be delivered to a common man (in the name of the king), but to the king himself.” As it is written [Is. x. 34]: “And he will cut down the thickets of the forest with iron, and the Lebanon shall fall by (means of) a mighty one.”[14] It was said that scarcely had a few days elapsed when a messenger came from the city of Rome with the tidings that Cæsar was dead, and the resolution was adopted that Vespasian be his successor.

At the time when Jerusalem was taken, R. Johanan b. Zakkai, with a trembling heart, was sitting and watching as Eli did, as it is written [I Sam. iv, 13]: “Lo, Eli was sitting upon a chair by the wayside, watching; for his heart was anxious for the ark of God.” When he heard that Jerusalem was destroyed and the Temple burnt, he and his disciples tore their garments, wept, cried, lamented, and said: “Open thy doors, O Lebanon!” [Zech. xi. 1]--that is, the Temple; “and the fire shall eat on thy cedars”--that is, the priests of the Temple, who took the keys and threw them up high and said, before the Holy One, blessed be He: “Lord of the Universe, here are the keys which thou hast intrusted us with, as we were no faithful treasurers and we are no longer worthy to do the work of the King and to eat at his table.”

Abraham, Isaac, and Jacob, and the twelve tribes all wept, cried, lamented, and said [ibid. 2, 3]: “Wail, fir-tree, for fallen is the cedar; those that were mighty are despoiled,” etc. “Wail, fir-tree, for fallen is the cedar”--that is, the Temple; “those that were mighty are despoiled,” applies to Abraham, Isaac, Jacob and his twelve sons. “Wail, O ye oaks of Bashan”--that is, Moses, Aaron, and Miriam; “for the impervious forest is come down”--that is, the Holy of Holies; “the noise of the wailing of the shepherds, for wasted is their glory”--that is, David and Solomon his son; “the noise of the roaring of young lions, for wasted is the pride of the Jordan”--that is, Elijah and Elisha.

In three things has the Holy One, blessed be he, made mankind differ one from the other: in voice, behavior, and features. “In voice”: for what purpose?, The Holy One, blessed be He, has varied the voices of mankind one from the other, to prevent the generations from adultery; because if it would not be so, when a man would leave his house, some one else might come in (in the night time) and do violence to his wife; but as the voices are different, she could recognize that of her husband.

“In behavior”: for what purpose? The Holy One, blessed be He, has varied the behavior of mankind one from another, to prevent jealousy; if not so, mankind would be jealous of each other; therefore the behavior of one is different from that of another. “In features”: for what purpose? The Holy One, blessed be He, has varied the features of mankind that the women might recognize their husbands, and the men their wives, otherwise all would be mixed up.

MISHNA C. Antigonus of Socho, who received it from Simeon the just, was in the habit of saying: “Be not like slaves who serve their master for the sake of the compensation; be like such servants as labor for their master without reward; and let the fear of Heaven be upon you.”

Tosephtha--Aboth of R. Nathan.

[15]“The fear of God shall be upon you, that your reward may be double in the world to come.” Antigonus from Socho had two disciples, who were studying his words. They communicated them to their disciples, and they in turn to theirs, who sought the reason which prompted the sage to make such an utterance. “Wherefore,” they asked, “have our ancestors said such a thing? Is it possible that a laborer will work all day, and not expect to be rewarded in the evening?” What if they had known that there is a hereafter, and that there will be a resurrection? They would in that case not have expressed themselves in that manner. The result was, that these disciples deviated from the path of the Torah, and formed two new schools with exclusively worldly tendencies, that of the Sadducees and that of the Baitusees: Sadducces--because the name of the founder of their school was Zadok; and Baitusees--because the name of the founder of their school was Baitus. They surrounded themselves with pomp and the brilliancy of shining metals, gold and silver, not so much for the delight and pleasure which they derived from those things as to spite the Pharisees, who deprived themselves of enjoyment here, in order to inherit the world to come, which in their opinion was a mere delusion.

MISHNA D. Jose b. Joezer of Zereda and Jose b. Johanan of Jerusalem received from them. Jose b. Joezer used to say: “Let thy house be the meeting place of the wise; sit gladly at their feet, and drink in their words with avidity.”

Tosephtha--Aboth of R. Nathan.

[16]“Thy house shall be the meeting-place for the wise.” What does this mean? That the house should be for the use of scholars, their disciples and their disciples, in the sense that one man says to the other: “I shall wait for you at that place.” Another explanation of that phrase is this: If a scholar comes to thee for the purpose of being instructed by thee, and thou art able to comply with his wish, do so; if thou art not able to teach him, dismiss him at once. Neither shall he sit before thee on the bed, chair, or bench, but on the floor; and every word that thou utterest he shall receive with awe, terror, fear, and trembling.

“Sit gladly at their feet.” It means that when a renowned scholar comes to the city you shall not say: “I need him not,” but go to him; and do not sit before him on the bed, chair, or bench, but con the floor; and every word that comes from his lips, receive with awe, terror, fear, and trembling, for so our ancestors received the Torah from Mount Sinai. According to another explanation the words: “Sit gladly at their feet,” are referred to Rabbi Eliezer, and the words: “Drink their words as a thirsty man drinks water,” are referred to Rabbi Aqiba.

For how did R. Aqiba begin his wonderful career? (Was it not in the manner hinted in the above words?) It has been said that when he was forty years old he had not learned yet anything. (At that age, however, he conceived the idea of applying himself to study.) It once happened that, standing at a well, he asked: “Who has made that hollow in the stone?” The people whom he asked answered: “The water which continuously, day after day, falls upon it.” They also said (by way of reproach): “O Aqiba, it is strange that thou knowest not the passage in Scripture which reads: ‘Water weareth out stones’”, [Job, xiv. 19]. Aqiba then drew an a fortiori conclusion. He said: “If the soft has so much power over the hard as to bore it (water over stone), how much more power will the Torah, the words of which are as hard as iron, have over my heart, which is flesh and blood?” He at once turned to the study of the Law. He and his son[17] went to a school where children were instructed, and addressed one of the teachers: “Master, teach me Torah.” Aqiba and his son took hold of the slate, and the teacher wrote upon it the alphabet, and he quickly learned it; and then wrote it in the reversed order, and learned as fast; then he learned the Book of Leviticus, and proceeded from one book to the other, until he finished the study of the Bible. He then sat down at the feet of R. Eliezer and R. Joshua, and said: “Masters, I beg of you to open to me the underlying principal Mishnayoth.” As soon as they recited one Halakha to him, he went away; and, contemplating what they had told him, a new realm of thought was open to him. He saw that there must be a reason why this thing was written here; why this thing was written there, and why this thing has been said so and not otherwise, and why it has been said at all. He went back to his masters questioning, and made them rise and deliberate.

Rabbi Simeon b. Elazar said: I shall illustrate this point with the following parable: A stone-cutter who was doing his work in the mountains was once seen standing upon a rocky height, knocking off small pieces thereof. “What art thou doing?” people asked him. His answer was: “I am trying to uproot this mountain and throw it into the Jordan.” They laughed at him. He, however, continued his work; knocked off piece after piece, and when he had reduced the mountain to a big rock, he planted himself against it, and pushed and pushed until he had uprooted the rock, and then threw it into the Jordan, saying: “This is not thy place, that one is.” So has R. Aqiba done too, with R. Eliezer and R. Joshua (he compelled them to improve and to rectify their method).

Said R. Tarphon to him: Aqiba, to thee applies the following passage [Job, xxviii. 11]: “The various droppings of water he uniteth into streams, and what is hidden he bringeth forth to light.” Things which were hidden from mankind, R. Aqiba brought forth to light.

Every day during the entire time of his learning he used to cut a bundle of straw, half of which he would sell for his needs and the other half he used for light. His neighbors murmured, saying: “Aqiba, thou greatly dost annoy us with the smoke; rather sell it to us, and buy oil with the money and study by its light.” He answered them: “The straw supplies me with many things: first, it gives me light for studying; secondly, I warm myself by its flame; and, thirdly, I make my bed on it when I go to sleep.”

In the world to come, R. Aqiba will be a menace to the poor who have neglected study.[18] When they will be questioned why they had not studied the Law, and they shall answer because they were poor and had to work for a livelihood, then R. Aqiba will be held up to them as one who was also poor and wearied, and yet did study; and if they should say because of their little children, again R. Aqiba a will be pointed to, who had many sons and daughters, and yet supported them and his wife Rachel. At the age of forty Rabbi Aqiba began his studies, and at the end of thirteen years he lectured in public. It was said that he did not leave this world until he had tables of gold and silver, and also golden step-ladders to ascend to his bed. His wife went out with an ornament of gold which represented Jerusalem “on her head; and when his disciples said to him: Rabbi, thou hast put us to shame by the profuse jewelry thy wife is wearing,” he answered: “She has undergone much suffering, great troubles and privations, for the sake of my study.”

Not less astonishing is the beginning of the literary career of Rabbi Eliezer. He was twenty-two years old when, for the first time, he felt a desire for study; and when he intimated to his father that his intention was to sit at the feet of R. Johanan b. Zakkai, his father Hyrcanus told him to plough a full Maanah (a piece of land) without eating anything. R. Eliezer got up early in the morning and did the will of his father, but then left him. It is said that that day was Friday, and that he went in the evening to his father-in-law to eat. Others say that he did not eat at all, that he fasted from the sixth hour of the eve of Sabbath to the sixth hour from the expiration of Sabbath. On the road he saw something which looked to him like food--it is said that it was cow-dung--he picked it up and put it to his mouth. He continued his journey, and finally came to the place where R. Johanan b. Zakkai had his residence and his school. R. Eliezer remained over night at an hostelry in the neighborhood. In the morning he sat at the feet of the great sage, and whose attention he attracted by the offensive odor that came from his mouth. R. Johanan, attributing the bad smell to an empty stomach, said to him: “Hast thou eaten anything today?” R. Eliezer made no answer. Again the master put the same question to him, and again he was silent. His host was sent for, of whom the sage inquired whether Rabbi Eliezer partook of any food at his place. “No, he did not,” the host said. “I did not offer him any food, thinking that he might eat with the Rabbi.” “And I,” the Rabbi said, “did not offer him any food, assuming that he had eaten at your place. But while we are conversing Eliezer is starving.” (Food was given to Eliezer, and then) Rabbi Johanan blessed Eliezer, and said unto him: “As thy offensive odor is the result of privation for the sake of study, may thy name shine forth with the glory of scholarship.”

Hyrcanus was angry at his son for the course he had taken, and made up his mind to disgrace and disinherit him. But it came to the ears of R. Johanan what Hyrcanus resolved upon to do. It was the day when R. Johanan was lecturing to the great men in Israel that Hyrcanus meant to punish his disobedient son. And the Rabbi appointed watchmen, and advised them: “Should Hyrcanus come, do not allow him to enter the auditorium.” They tried to carry out his instruction. But Hyrcanus managed to push himself through and to reach the seats of Ben Zizith Ha Kesseth, Nakdimon b. Gurion, and Calba Shebua, where he sat down with trembling. It is said that on that occasion R. Johanan threw glances of affection at Eliezer, and requested him to open an argument. Modestly did R. Eliezer attempt to decline the honor, saying that he did not know how to begin. But the master and his disciples prevailed, and Eliezer rose and discussed things in an astounding manner, and every subject he touched upon and elucidated pleased Rabbi Johanan to such an extent that he got up and kissed him on the forehead. But Rabbi Eliezer remarked: “Master, everything I said I have learned from thee.” Before adjournment Hyrcanus, Eliezer’s father, got up and said: “Masters, I had come here with the intention to disgrace my son Eliezer by disinheriting him; but now, however (after I have seen this), I say that all my properties shall be given to him, and his brother shall get none of them.”

(It is mentioned that Hyrcanus took his seat by Zizith Ha Kesseth, etc., and is explained why he was so called; but as it is not completed here, the full explanation is given in Tract Gittin.)

Concerning Nakdimon b. Gurion, it was said that the bedding of his daughter was of the value of twelve thousand golden dinars from the city of Tyre, and a golden dinar of Tyre she used to spend for spicing the cookery for every week. She was a childless widow, and was waiting for her brother-in-law to marry her.

And why was he named Nakdimon? Because the sun hastened for his sake. (See Vol. VIII. of Section Moed, Tract Taanith, pp. 51, 52.)

Why was he called Calba Shebua? Because whoever entered, his house hungry as a dog, left satiated.[19] When Vespasian came to destroy Jerusalem, the zealous fanatics were going to burn all his wealth. Said he to them: “Wherefore are ye, destroying this city, and are going to burn my wealth? Wait until I find out what I have in my house.” He found that he had food for twenty-two years, of which at least one meal a day could be had by each inhabitant of Jerusalem. He at once gave orders to thresh, to sift and to grind, to knead and to bake, and prepared food for twenty-two years for every one in Jerusalem, but they paid no attention to him. What did the Jerusalemites do? They brought the wagons, sawed them, and smeared them with clay. They also did more than this: they boiled straw and ate it, and every Israelite who took part in the war was placed on the city walls. Said one: If any one give me five dates, I will go down and bring back five heads of the enemy. He received five dates, and he went down and took five heads of Vespasian’s men. When Vespasian observed their excrement, and found there was nothing cereal in it, he said to his army: “If those who eat nothing but straw are still slaughtering so many of you, if they would eat and drink as you do, how many more of you would they have killed?

MISHNA E. Jose b. Johanan of Jerusalem was in the habit of saying: “Let thy house be so wide open that the poor may enter it as were they inmates there; and do not hold too much discourse with woman.” The sages have cautioned against talking too much with one’s own wife. An inference can then be made with regard to talking with the wife of a neighbor. Hence the wise man said The man who does talk overmuch with woman causes evil unto himself, makes himself insusceptive of the words of the Thora, and in the end will be an heir to Gehenna.”

Tosephtha--Aboth of R. Nathan.

[20]“Thy house should be wide open.” This means that one’s house should be wide open south, east, west, and north, as was the house of Job, which had four entrances made, so that the poor should not have the trouble of walking around the house looking for the entrance, but should find it whichever way they came without any difficulty.

“As were they inmates there” [literally: “The poor shall be of thy household”]. It is not meant that the people of thy house shall be poor, but that the poor shall speak of what they ate and what they drank in thy house as they used to tell what they ate and drank in the house of Job. And when they met one another on the road, and asked, “Whence do you come?” the answer was: “From the house of Job.” “Whereto are you going?” “To the house of Job.” Job’s house was in a measure the house of the poor.

When the great afflictions came upon job, he prayed before the Holy One, blessed be He: “Lord of the Universe, have I not fed the hungry and have I not given drink to the thirsty?” as it is written [Job, xxxi. 17 ]: “Or if ever I ate my bread alone and the fatherless did not eat thereof.” “And have I not clothed the naked?” as it is written [ibid., ibid. 20]: “And if be have not been warmed with the fleece of my sheep.” (Nevertheless I am so punished.) The Holy One, blessed be He, answered him: job, as yet thou hast not reached one-half of the performances of Abraham. Thou sittest and waitest in thy house, and wayfarers enter. The one who is used to wheat-bread gets wheat-bread, one who is used to meat gets meat, one who is used to drink wine gets wine. Not so Abraham. He was in the habit of going out of his house to hunt up wayfarers, whom he brought under his roof, and entertained them in a better manner than they had been accustomed to. He offered wheat-bread, meat, and wine to those who at home lived on coarser food. Moreover, he built booths on the road and supplied them with refreshments, and those who entered ate and drank, and blessed God for it. He was favored by heaven, and all that the heart desired and the mouth asked for was to be found in Abraham’s house, as it is written [Gen. xxi. 33]: “And Abraham planted an ‏אשּל‎ (orchard) in Beer-Sheba. “(The letters of the word ‏אשל‎ are the initial letters of the words ‏אכילה‎,‏שּתיה‎, ‏לויה‎, eating, drinking, and accompanying. Hence the above statement.)

“Teach thy household humility.” For if he is humble, the members of his household are also humble, and the consequence then is that if a poor man comes to the door and asks: “Is your father at home?” they answer: “Yes, sir. Please walk in.” As soon as he enters he finds a set table, and eats and drinks, and blesses heaven for the enjoyment afforded him.” When, however, one is not humble, and the members of his household are irascible, the outcome then is that if a poor man asks: “Is your father at home?” they answer harshly: “No,” and assail the poor man with angry and menacing words.

Others take the words: “Teach the members of thy household humility,” to mean this: When a man is humble and the members of his household are also so, the result is that when he has to go away to countries on the other side of the sea, he says: “I thank thee, Lord my God, that my wife is at peace with her neighbors”; and so his mind is tranquil when he is away from home. But when one is not humble and the members of his household are irascible, it follows that when he has to go away to countries on the other side of the sea he has to pray: “May it be Thy will, Lord my God, that my wife shall not quarrel with her neighbors, and my children shall not quarrel among themselves”; his heart is always trembling and his mind is restless until he returns. It has been said: “And prolong not converse with a woman.” It means not even with his own wife, much less with the wife of his neighbor; for he who holds much discourse with a woman causes evil to himself, neglects the teaching of the Law, and finally he is doomed to Gehenna.

Another explanation of the above saying is, that when one enters the house of learning and is not treated with the honor due to him, or has a quarrel with his neighbor, he should not inform his wife of what took place, for in informing her he disgraces himself, and so also his neighbor; and his wife, who has heretofore respected him, will now laugh at him. When his neighbor hears of this, he says: Woe to me, words which were strictly between him and me, he revealed to his wife. The consequence of this is that he degrades himself, his wife, and his neighbor.

MISHNA F. Joshua b. Pera’hia and Nithai the Arbelite received from them. The former used to say: “Get thee a wise teacher, acquire a comrade, and judge every one by his good qualities (i.e., from his favorable side).”

Tosephtha--Aboth of R. Nathan.

[21]“Get thee a wise teacher.” This means that one should procure a constant teacher of whom he should learn the Scripture, Mishna, Midrash, Halakhoth, and Agadoth. What he has left unexplained in the Scripture, he will finally explain in the Mishna, what is unexplained in the Mishna will be explained in the Halakha, and what is unexplained in the latter will be explained in the Agadah. The consequence of all this is, that one acquires all he desires in his own place and is full of blessings.

R. Meir used to say: One that learns the Torah of one teacher, may be compared to one who has one field, part of which he sowed with wheat and part with barley; in one part he planted olives, and in another fruit-trees. And so this man acquires wealth and blessings. The one, however, who studies under two or three masters is to be compared to one who has many fields: in one he sows wheat, in another barley; in one he plants olives, and in the other fruit-trees. And so this man has to go from place to place in many countries, and has no enjoyment of his wealth.

It is said: “Win a friend.” How is a friend won? This is to teach us that a man has to acquire an associate with whom he should eat, drink, read, learn, and sleep; to whom he should reveal his secrets, the secrets of the Torah, and the secrets of every-day life. The good to accrue from such an intimacy is that, if one of them should blunder in the recital of a traditional law or in the division of chapters, or one should declare anything which is unclean as clean, and vice versa, and anything which is prohibited as permissible, and vice versa, his associate will correct him. How do we know that, if the associate really turns his attention to the mistake and sets him right, both will be rewarded greatly for their good endeavor? We learn it from the biblical passage which reads [Eccl. iv. 9]: “Two are better than one”; that is to say, the efforts of both will be crowned with success.

When three are sitting and studying the Law together, the Holy One, blessed be His name, accounts it to them as if they had formed a league for His praise, as it is written: “He that buildeth in the heavens his palace and established on earth his tabernacle.” From this passage thou art to learn that if three sit and study together it is accounted to them as if they constituted a league to glorify the Holy One, blessed be He.

When two persons are studying the Law together their reward will be received above, as it is written [Mal. iii. 16]: “Then conversed they that fear the Lord one with the other: and the Lord listened and heard it,” etc. But what is meant by the words: “They that fear the Lord? That when they have made up their mind to redeem the captives and release the prisoners, and the Holy One, blessed be He, has given them the opportunity to do so, they embrace it at once. What is meant by the words: “And for those who think after his name”?[22] They whose thought of doing the above-mentioned great things never ripens into firm resolution, but are doubtful in the Lord whether they will succeed, and therefore the Lord gives them not the opportunity, and they are lost before doing anything they thought of doing. Also an individual who engages in the study of the Law, his reward is marked in Heaven, as it is written [Lam. iii. 28]: “That he sit in solitude because he hath laid it upon him.” This is illustrated by the following anecdote: A man had a little son whom he left alone when he went to attend to some business. The boy, instead of spending his time in play, took a scroll and spread it upon his knees, and thus he sat and studied. When his father returned and found his son in that commendable position, he joyfully said: “See what my little son has done! Left alone, he took to study of his own accord . Even so the Almighty regards an individual who is absorbed in holy thought. His reward is marked in Heaven.

“Judge everyone from his favorable side.” It happened that a girl was led in captivity, and two pious men went to redeem her. One of them entered into a house of harlots. When he came out again, he said to his companion: “What were thy suspicions of me (when you saw me enter this house)?” He said: “I thought you went to investigate what sum her ransom would be.” He answered: “I assure you that so it was. As thou hast judged me from my favorable side, so may the Lord judge thee in the same manner.”

It happened, again, that a maiden was led into captivity, and two pious men went to redeem her. One of them was suspected as a robber, and was confined in prison, and his wife brought him food and water every day. One day he asked her: “Go to my companion and tell him that I am in prison because I went to redeem the maiden in question, and he who intended to take part in it is doing nothing and pays no attention to her.” She rejoined: “Thou art in prison, and thou think about foolish things?” She therefore did not listen to him. He again requested her to go and to notify his companion, and finally she did so. What did this man do? He took gold and silver, and, accompanied by other people, came and released them both. When he was released he said: “Let this maiden sleep with me[23] in bed with her clothes on.” In the morning he said: “Let me go and dip (in a legal bath), and let her do the same.” They did so. He then said to them: “Of what did ye suspect me when I went to dip myself?” They answered: “We thought that in all the days thou wast in prison thou wert hungry and thirsty, and now, when thou hast seen fresh air, thou hast grown hot and perhaps thou hast become Keri.” “And what did ye suspect when she was dipped?” They answered: “We thought that in all the time that she was in prison among the idolaters, she was compelled to eat and drink with them, and you therefore ordered her to dip for the purpose of purification.” He then rejoined: “I assure you such was the case, and as you have judged me favorably, so may the Lord judge you.”

Not only were the upright people of former times themselves very strict and particular, but also their cattle were so. There is a tradition that the camels of Abraham our father never entered a place where there were idols, as it is written [Gen. xxiv. 31]: “While I have cleaned the house, and room for the camels.” The first part of this passage relates that he cleared the house from Teraphim; but what is meant by the second part, which seems to be superfluous? Infer from this, that the camels did not enter the abode of Laban the Aramite until all the idols were cleared away.

It happened that the ass of R. Hanina b. Dosa was stolen by robbers. They tied him in the yard, and put straw, barley, and water before him; but he neither ate nor drank. They said then: “If we leave him here, he will die and infect the yard.” Therefore they opened the gate and let him out, and he went on rejoicing until he reached the place of R. Hanina b. Dosa.

When the latter’s son heard his voice, he said to his father: “Is not the voice of this ass similar to that of ours?” He rejoined: “My son, hasten to open the gate for him, or else he will die of hunger.” He did so; he put food and water before him, and he fed and drank. Hence the above saying: “In former times the upright men were pious, so were their cattle.”

MISHNA G. Nithai the Arbelite was accustomed to say: “Keep aloof from a wicked neighbor, associate not with a sinner, and never consider thyself exempt from God’s chastisement.”

Tosephtha--Aboth of R. Nathan.

[24]“Keep aloof from a wicked neighbor.” This means any bad neighbor in the house, or outside, or in the field. “In the house,” because plagues come only in the house of the wicked, as it is written [Prov. v. 22]: “His own iniquities will truly catch the wicked.” Infer from this, that the plagues come only for the sins of the wicked. The sins of the wicked have caused the demolition of the wall of the upright. For instance, if leprosy breaks out on the wall of the house of the wicked, which is also the wall of the adjoining house of the upright, the entire wall must be demolished. Hence the wall of the upright is demolished for the sins of the wicked. That is what R. Ishmael, son of R. Johanan b. Brokah, said: “Woe to the wicked, and woe to his neighbors.”

With ten trials have our ancestors tried the Holy One, blessed be He, but they were punished only for one of them, which is calumny. They are as follows: One at the sea, one at, the beginning of the manna period and one at the termination of it, one at the first and last appearance of quails, and at Marah, at Rephidim, one at Horeb, one on the occasion of the golden calf, and one when they sent spies. That of the spies was the hardest of all, as it is written [Numb. xiv. 22]: “And (they) have tempted me these ten times, and have not hearkened to my voice.” It is also written [ibid., ibid. 37]: “Even those men that had brought up the evil report of the land died by the, plague before the Lord.” From this is drawn an a fortiori conclusion: If on account of the land, which has no mouth to talk with, no countenance and no shame, the Holy One, blessed be He, punished the spies who made it suffer, how much the more reason is there for the Holy One, blessed be He, to avenge the suffering of one who has been slandered and put to shame by his neighbor.

R. Simeon said: Slanderers are punished with plagues, for we find that Aaron and Miriam, who slandered Moses, were stricken with plagues, as it is written [ibid. xii. 1]: “And Miriam and Aaron spoke against Moses.” Why is Miriam mentioned before Aaron? Infer from this, that Miriam made the beginning. (How so?) What she had heard from Zipporah [the wife of Moses] she told to Aaron, and they both spoke against this upright man; therefore plagues came upon them, as it is written [ibid. xii. 9]: “And the anger of the Lord was kindled against them, and he went away.” For what purpose is it written: “and he went away”? To intimate that the anger was removed from Aaron, and placed upon Miriam, because Aaron did not go into such details of the matter as did Miriam; therefore she was punished more. Miriam said: “Although I have not separated myself from my husband, still the Lord has spoken to me.” Aaron said: “The word of the Lord came to me, although I have not separated myself from my wife; and also to our ancestors came the word of the Lord, although they were not separated from their wives; but he (Moses) who is too proud in his mind separated himself from his wife.” Furthermore, they judged him not in his presence but in his absence, and by a mere supposition. From this draw an a fortiori conclusion: If Miriam, who had spoken against her brother (secretly), and not in his presence, was so severely punished, how much severer must be the punishment of a common person who speaks against his neighbor in his presence and shames him.

[At that time Aaron said to Moses: “Moses, my brother, dost thou think that the leprosy is placed on Miriam’s flesh only, it is also on the flesh of our father Amram.” This is to be compared to one who takes a live coal in his hand, and even if he keeps on turning it from one place to another, still every place it touches is blistered (and as Miriam is the flesh and blood of our father, the leprosy afflicts also his flesh), as it is written [ibid., ibid. 12]: “Let her not be as a dead-born child.” At the same time, Aaron began to appease Moses, saying: “Moses, my brother, have we ever injured anybody in the world?” He said: “No, you have not.” “Now then,” he said, “if we have,, not injured anybody else, how could we intend to do an injury to our own brother? But what can we do? Shall, through this error, our brotherly covenant be abolished, and our own sister be lost?” Then Moses made a circle, entered in it, and prayed for his sister and said: “I will not stir from here till she be healed,” as it is written [ibid., ibid. 13]: “O God, do thou heal her, I beseech thee.” The Holy One, blessed be He, then said to Moses: “If a human king would rebuke her, or her own father would do this to her, would she not be ashamed seven days? Now if I, who am the King of the kings of kings, rebuke her, were it not proper that she should be ashamed fourteen days? Yet for thy sake I will forgive her,” as it is written [ibid., ibid. 14]: “If her father had spit in her face,” etc.

“But the man Moses was very meek” [ibid., ibid. 3]. Shall we assume that he was meek, but not beautiful and praised? Is it not written [Ex. xl. 19]: “And he spread the tent over the tabernacle”? As the Tabernacle was ten ells in height, so was Moses. Shall we assume that he was as meek as the angels, since it is written [Numb. xii. 3]: “More so than any man”? Consider that man is said, but not angels. Perhaps you think that he would have been considered meek in the former generation. Mark that it is written [ibid.]: “Upon the face of the earth,” implying only his own generation. [But what is meant by “he was meek”? . . . There are three kinds of leprous people: moist, dry, and polypous (ulcer in the nose), yet Moses was humbler than the afflicted.]

R. Simeon b. Elazar said: Leprosy comes also for the sin of slander, as we find in the case of Gehazi, who slandered his master, and was so punished, as it is written [II Kings, V. 27]: “May then the leprosy of Naaman cleave unto thee . . . and he went out from his presence a leper, (white) as snow.”

He also used to say that leprosy came upon those who were haughty, for so we find in the case of Uzziyahu, as it is written [II Chron. xxvi. 16-19]: “His heart was lifted up to his destruction, unfaithful against the Lord his God, and went into the temple of the Lord to burn incense upon the altar of incense. And there went in after him . . . the leprosy even broke out on his forehead.” At this time the Temple was split for a distance of twelve square miles, and the priests hurried out. “And he also made haste to go out, because the Lord had afflicted him. And he was a leper until the day of his death, and dwelt in the leper-house as such; for he was excluded from the house of the Lord, and Jotham his son was over the king’s house, (and) judged the people of the land” [ibid. 20, 21].

“And thou shalt not associate with a sinner.” By this is meant, that one should not attach himself to a bad or wicked man, as we find with King Jehoshaphat, who became attached to Ahab and went up with him to Ramoth-Gilead, and there was a wrath over him from before the Lord. The same was the case when be became a party to King Ahazyahu, with whom he made ships in ‘Ezyon-geber, which the Lord broke down, as it is written [II Chron. xx. 37]: “Because thou hast connected thyself with Ahazyahu, the Lord hath broken down thy work. And the ships were wrecked.” And so we find with Amnon, who associated with Jonadab, and received from him wicked advice, as it is written [II Sam. xiii. 3]: “But Amnon had a friend whose name was Jonadab, the son of Shim’ah, David’s brother; and Jonadab was a very sensible man--sensible in wickedness, as it is written [Jer. iv. 22]: “Wise are they to do evil.” According to others, it is meant that one shall not associate with the wicked, even to study the Torah.

“Do not consider thyself exempt from God’s chastisement.” How so? One should always fear in his heart every day lest affliction come on him to-day or to-morrow, for thus it is written about Job [Job, iii. 25]: “What I greatly dreaded,” etc. Another explanation of it is: If one sees that he is successful in all that he undertakes, he should not say: “I deserve it all; the Lord gives me food and drink (as interest), and the principal remains for the world to come”; but he shall be afraid and think: “Perhaps I possess but one desert and all the reward for it is given to me in this world, so that I have no claim in the world to come.”

MISHNA H. Jehudah b. Tobai and Simeon b. Shata’h received from them. The former was wont to say: “Make not thyself as those that predispose the judges,[25] and while the litigants stand before thee let them be in thine eyes as guilty; and when dismissed from before thee let them be in thine eyes as righteous, because that they have received the verdict upon them.”

Simeon b. Shata’h used to say: “Interrogate the witnesses very closely, and be careful with thy words, lest they be put by them on the track of falsehood.”

Tosephtha--Aboth of R. Nathan.

[26]“Make thyself not as those that predispose the judges.” Learn from this, that when entering a college and hearing there a saying or a Halakha, thou shalt not be hasty in answering, but sit and think over the reason why they have said so [and from what sources they derived such judgment; also investigate about which Halakha they were questioned, and also consider the time when it happened]. When two litigants come before thee for judgment, one of whom is poor and the other rich, say not: “How shall I declare the poor innocent, and the rich guilty, or vice versa? If I declare one of them guilty, he will become my enemy”; neither say: How shall I take away one’s money and give it to the other? for the Torah said [Deut. i. 17]: “Ye shall not respect persons in judgment.”

According to others, for what purpose is the following passage written: “The small as well as the great shall ye hear” [ibid.]? That means that both litigants shall receive the same treatment: one shall not be allowed to sit down while the other is standing, or one shall not be allowed to plead at length while the other shall be directed to be short in his pleading.

Said R. Jehudah: “I have heard say that it is not forbidden to have both litigants sit down (at the hearing), but what is forbidden is, to allow one to sit down while the other one is directed to be standing,” etc. From the above passage is to be inferred that the treatment must be alike, even if one of the litigants is a great man. The case of a common man shall be as carefully considered as that of a great man. The lawsuit of a very small amount shall receive the attention of a lawsuit of a great sum of money.

He also used to say: Whoever would have told me before I had entered this great position, “Enter,” I would have challenged him, and now that I am the incumbent hereof, should anybody dare to tell me to abandon it, I would be of a mind to throw at his head a kettle of boiling water, for there is a difficulty in the ascent, but when one has reached the top, it is as hard for him to descend. So we find it was with Saul, that when he was told to ascend the throne he hid himself, as it is written [I Sam. X. 22]: “And the Lord said, Behold, be hath hidden himself among the vessels”; but when told to give up the crown, he followed David even to take his life.

Simeon b. Shata’h said: Examine the witnesses very closely, but while thou art so doing, be careful with thy words on account of the deceivers. Thy words may give them the clue to lying.

MISHNA I. Shemayah and Abtalion received from them. The former was in the habit of saying: “Love work and hate to attain superiority, and see to it that your name be not known to the government.”[27]

Tosephtha--Aboth of R. Nathan.

[28]“Love work.” How so? That is, one should love work; at all events, he ought not to hate it, for as the Torah was given in a covenant, so was labor, as it is written [Ex. xx. 9, 10]: “Six days shalt thou labor, and do all thy work, but the seventh day is the Sabbath in honor of the Lord thy God.”

Said R. Aqiba: There comes a time when one does his work, and thereby escapes death; and on the other band there comes a time when one does no work, and incurs the penalty of death by heaven. How so? One who is idle the whole week and has nothing to eat on the eve of Sabbath, but having in his possession consecrated money misappropriates it for his own use, incurs the penalty of death by heaven; but if he was making repairs in the Temple, and is paid with consecrated money and uses it, he escapes the death penalty.

R. Dostai said: “How can it happen that one who did no work all the six days shall finally be compelled to labor all seven days? Strange as this appears, yet it may happen. For instance, a man who did no work during the week, Friday comes and he has nothing to eat. He starts to look for work, but is seized by conscription officers, who, holding him by an iron chain, compel him to make up on Sabbath for what he neglected during the six days.”

R. Simeon b. Elazar said: Even Adam the First tasted nothing before he performed some work, as it is written [Gen. ii. 15]: “And put him into the garden of Eden, to, till it and to keep it”; and afterward he was commanded: “Of every tree in the garden thou mayest freely eat” [ibid., ibid. 16].

R. Tarphon said: Even the Holy One, blessed be He, rested not His Shekhina in the midst of Israel before some work was performed by them, as them is; written [Ex. xxv. 9]: “And they shall make me a sanctuary; and I will dwell in the midst of them.”

Rabbi Jehudah b. Bathyra said: What shall one do who is without work? (Let him seek it, and he will find it.) Let him see whether there is no demolition in his Yard or field, and employ himself in that manner, as it is written [ibid. xx. 9]: “Six days shalt thou labor, and do all thy work.” Wherefore is it said, “And do all thy work”? R. Tarphon said: One is doomed to death only through idleness. R. Jose the Galilean explained (the saying of R.. Tarphon) thus: If one through idleness stood upon the edge of a roof, castle, or building, or upon the edge of a river and fell down and died, his death was caused through idleness.

R. Nathan said: Moses worked at the Tabernacle without consulting the princes of Israel, who right along thought that at any moment he might solicit their coöperation. When they heard the voice which went throughout the camp proclaiming that the material prepared was sufficient for all the work, they cried: “Woe to us, that we have not participated in the work of the holy Tabernacle.” They, therefore, rose and added a great thing of their own accord, as it is written [Ex. xxxv. 27]: And the princes brought the onyx stones.”

“Do not care for superiority.” It means that one must not place the crown merited by him upon his own head, but should let others do it, as it is written [Prov. xxvii. 2]: “Let another man praise thee, and not thy own mouth; a. stranger, and not thy own lips.”

R. Aqiba said: One that makes himself superior to the Law is compared to a putrefied carcass which lies in the road, so that every passer-by puts his hand to his; nose and hastens away, as it is written [Prov. xxx. 32]: “If thou hast become degraded by lifting up thyself, or if thou hast devised evil, put thy hand to thy mouth.” Said Ben Azai to him: The sense of this passage seems to be thus: One who degrades himself for the sake of the Law, and eats decayed dates, and dresses in worn-out clothes, and is watching at the door of the sages, the passers-by call him an idiot, but be sure that in the end it will be found that he is full of knowledge. This is what people say: One who makes himself superior to the Law will finally be put down, and one who lowers himself for the sake of the Law will finally be greatly elevated.

“And see to it that your name be not known to the government.” One should not have the ambition to be prominent among government officials, otherwise they will become jealous of him, slay him, and confiscate his property. Neither shall one proclaim his neighbor’s name to the government; that is, one shall not say: “May the Lord protect so and so, from whose house to-day went out a hundred oxen, a hundred ewes, and a hundred goats,” etc., as it may happen that just at that time the officer passes by and hears this and reports it to his chief, and the latter surrounds his house and takes away all he has. As to this, the following passage applies [Prov. xxvii. 14]: “When one saluteth his friend with a loud voice . . . it will be counted a curse to him.” According to others, the word Rashuth means not the government but publicity, and the passage is to be construed thus: If one’s friends say publicly in the market: “May God protect so and so; to-day he brought into his house many measures of wheat and barley,” etc., etc., robbers may hear of it and come in the night, surround the house, and take away all he possesses, and in the morning he has nothing left. Of him it is said in Scripture: “When one saluteth his friend with a loud voice,” etc.

Others, again, say that it means the government, and the expression “he shall not announce,” etc., means one shall not endeavor to be a solicitor for the governor of the city or his vice, for they rob the money of Israel.

Still another explanation is: One shall not seek any governing power, for although in the beginning it appears very pleasing, in the end he will find it very burdensome.

MISHNA I. Abtalion was wont to say: “Ye wise, be guarded in your words; lest you load upon yourselves the penalty of exile and be exiled to the place of evil waters; and the disciples that come after you may drink and die, and the name of Heaven be profaned.”

Tosephtha--Aboth of R. Nathan.

“Ye wise men, be guarded in your words.” Perhaps they will decide something in your name which will not be according to the teachings of Law, and ye will become liable to the punishment of exile, and be banished to a place where the water is bad. What is meant by “bad water”? It is permissible to say that it has reference to the vices of that place, as it is written [Ps. xvi. 35]: “And they will mingle with the nations and will learn their doings.” Some think that it is to be taken literally. Others, however, think that it refers to hard labor.

MISHNA K. Hillel and Shammai received from them. Hillel said: “Be a disciple of Aaron, love peace, pursue peace, love all men too, and bring them nigh unto the Law.”

Tosephtha--Aboth of R. Nathan.

[29]“Love peace.” How so? One should love to see peace in Israel and peace everywhere, as Aaron loved peace, about whom it is written [Mal. ii. 6]: “The love of truth was in his mouth, and falsehood was not found on his lips; in peace and equity he walked with me, and many did he turn away from iniquity.” When Aaron went on the highway and met a wicked man, he bade him peace in the customary form of salutation. The result was that that man reformed. For when he was about to commit a sin, he remembered that Aaron the high-priest saluted him, and would say: “Woe, if I sin, how will I dare to raise my eyes and look Aaron in the face, who was so friendly to me?” and thus he is prevented from sin.

Likewise, when two men quarrelled with each other (and it came to the ears of Aaron), he went to one of them and said: “My son, see what thy neighbor does. He beats his breast, tears his clothes and cries, saying: ‘Woe is me! How will I dare to lift up my eyes to look my neighbor in the face? I am ashamed of myself, for it is I who wronged him.’” Thus Aaron allayed the bitterness of that man’s feeling. Then Aaron went to the other man and addressed him in the same style, and likewise pacified his heart. When those two men met, they no longer eyed one another as enemies, but embraced and kissed each other, as friends do. Because of Aaron’s peace-making, it is written about him [Numb. xx. 29]: “They wept for Aaron thirty days.”

The passages about the mourning of Moses and Aaron are differently written. About Aaron it is written “even all the house of Israel,” which includes also women; about Moses, however, it is written only, “and the children of Israel,” which excludes women. To explain this, there are different opinions. Some say because Moses, who was a true judge and judged justly without favoritism, used to rebuke the sinner and say to him: Thou hast sinned in so and so. Aaron, however, when judging them, judged them truly, but at the same time he did not rebuke them, even when the sinners were males, much less when, they were females. And, secondly, many thousands were named Aaron, after the high-priest. For were it not for Aaron they, would not have been brought to the world at all, as Aaron’s special efforts were directed toward making peace between man and Wife, so that if, after that, a child was born to them they named him after their peace-maker.

According to others, the reason why even all the house of Israel wept is because they had seen Moses our master sitting and weeping, and who then would not weep? And they also saw Elazar and Pinechas, who were high-priests, weeping, and who would not weep with them?

Then Moses desired to die the same death that Aaron died. Why so? Because it was said that Moses saw his bier decked out with great pomp and many divisions of angels lamenting over him. And although Moses never expressed that wish, but only thought so in his heart, the Holy One, blessed be He, granted him his desire, as it is written [Deut. xxxii. 50]: “And die in the mount whither thou goest up, and be gathered unto thy people; as Aaron thy brother died on Mount Hor.” From this is to be inferred that Moses had a desire to die the death of Aaron.

At the time (when Moses was about to die), God said to the angel of death: “Go and bring unto me the soul of Moses.” Coming to Moses, he demanded his soul. But Moses censured the angel of death. He said to him: “Thou art not entitled to be where I am, and thou art asking of me my soul?” and Moses drove him away with degradation. At length the Lord said unto Moses: “Moses, Moses, thou hast lived long enough in this world, as thy share in the world to come has awaited thee ever since creation,” as it is written [Ex. xxxiii. 21]: “And the Lord said, Behold, there is a place by me, and thou shalt stand upon the rock.” Thereupon the Lord Himself took the soul of Moses and placed it under His throne, as it is written [I Sam. xxv. 29]: “Yet will the soul of my Lord be bound in the bond of life.” And He took his soul with a kiss, as it is written [Deut. xxxiv. 5]: “Through the mouth of God.”[30]

[Not merely the soul of Moses is placed under His throne, but all the souls of the righteous, as it is written: “Yet will the soul of my Lord be bound in the bond of life.” Should one assume that the souls of the wicked are also hidden there, therefore it is written [I Sam. xxv. 29]: “And the soul of thy enemies will he hurl away, as out of the middle of the sling.”

For the better understanding of this, let us think of who puts a stone in his sling: although he hurls it from one place to another, he knows not where it will finally land. So are the souls of the wicked: they are wandering and hovering in the world without rest.

After the death of Moses the Lord again commanded the angel of death to bring Him the soul of Moses. He went to the place where he used to be found when alive, but did not find him. He then went to the ocean, and asked whether Moses was there. It answered: Since the day when the Israelites passed through me, I have not seen him. He went to the mountains and hills, and put to them the same question, and they said: Since the day when the Israelites received the Law from Mount Sinai, we have not seen him. So he went to the nether world and place of perdition, and asked them the same question, and they said: We have heard of his name, but have never seen him. Finally, he inquired of the angels, and they said: “God (alone) understandeth her way, and he knoweth her place” [Job, xxviii. 23]. The Lord preserved him for a life in the world to come, and no creature knows where he is, as it is written [Job, xxviii. 20-22]: “But wisdom . . . a report of her.” At the same time Joshua was sitting and grieving because he did not know where his master was, till the Holy One, blessed be He, said to him: Joshua, do not grieve. My servant Moses is dead.]

“Pursue peace.” How so? One shall be a pursuer of peace in Israel among all kinds of people. If a man remains in his place silent, he cannot be a pursuer of peace. But what shall he do? He should leave his place in search of peace, as it is written [ibid.]: “Seek peace, and pursue it.” Which means, seek it in thy place, and if thou canst not find it, pursue it in another.

The Holy One, blessed be He, also made peace in heaven, in that he did not name ten angels Gabriel, Michael, Uriel, or Raphael, as, for instance, many people bear the same name; otherwise, when He would summon one of them, they would all respond, and be jealous of one another. Therefore He gave each one a separate name. When He summons one, only that one comes, and He sends him wherever He desires. They reverence and respect one another, and are meeker than human beings, for when they begin to sing the praises of the Lord, one says to another: “Begin thou, as thou art greater than I am”; and the other says: “Thou art greater than I am, and therefore begin thou.” With human beings, however, it is the reverse. Every one says: “I am greater than thou art.” Some say that not individual angels, but divisions of angels, say to each other: “Begin ye, ye are greater than we are,” as it is written [Is. vi. 3]: And one called unto the other and said.”

“Love all men too.” That is to say, that one should love all men, and not hate them; for so we find with the men of the “generation of the division,” because they loved each other, the Lord was reluctant to destroy them, but only scattered them to all four corners of the world. The men of Sodom, however, because they hated each other, were annihilated by the Lord, both in this and the world to come, as it is written [Gen. xiii. 13]: “But the men of Sodom were wicked and sinners before the Lord exceedingly. “And sinners” implies that they were guilty of illegal unions; “before the Lord” implies that they were guilty of desecration of the Holy name; “and exceedingly,” that they sinned wilfully.

“And bring them nigh unto the Law.” How so? One should try to uplift[31] people and bring them under the wings of the Shekhina, as our father Abraham did; and not only Abraham, but also Sarah, as it is written [Gen. xii. 5]: “And Abraham took Sarah his wife, and Lot his brother’s son, and all their substance that they had acquired, and the persons that they made[32] in Charan.” Is it possible? Even all mankind combined could not create even a small insect. We must, therefore, say that the Lord considered the people that they brought under the wings of the Shekhina as if they had made them.

As one cannot divide his life with his neighbor in this world, so he cannot divide with him his deserved reward in the world to come, as it is written [Eccl. iv. 1]: “And, behold, there are the tears of the oppressed, and they have no comforter; and from the hand of their oppressors they suffer violence, and they have no comforter.” Why is it written “and they have no comforter” twice? To infer that, although there are men who eat (plentily), drink, and are successful with their sons and daughters in this world, they may have nothing in the world to come, and they will have no comforter there. In this world, when something is stolen from one, or a death occurs in one’s family, his son, brother, and other relatives come and console him, but this cannot be done in the world to come, as it is written [ibid., ibid. 8]: “Yea, he hath neither son nor brother.”

The same is the case with one who has begotten an illegitimate son; for the latter may say to him: “Scoundrel, thou hast lost thyself as well as me.” For the bastard may have a thirst for knowledge, and therefore desire to study the Law in Jerusalem together with the other disciples, but cannot do so because, being a bastard, he is prohibited from entering Jerusalem. It happened once that a bastard was not allowed to pass Ashdad, as it is written [Zech. ix. 6]: “And bastards shall dwell in Ashdad, and I will cut off the pride of the Philistines.”

MISHNA L. He also used to say: “A name made great is a name destroyed; he who increases not, decreases; and he who will not learn from his masters is not worthy to live; and he who uses his knowledge as a tiara perishes.”

MISHNA M. He also used to say: “If I do not look to myself, who will do so? But if I look only to myself, what am I? And if not now, when?”

Tosephtha--Aboth of R. Nathan.

“He used to say: ‘If I do not look to myself, who will do so?’” (That is), if I cannot reach any reward while I am alive, who can reach it for me after my death?

“And if not now, when?” (That is), if I can do nothing for myself while I am alive, who can do it for me after my death? So also said Ecclesiastes [ix. 4]: “For a living dog fareth better than a dead lion.” By “a living dog” is meant a wicked person who exists in this world, and “than a dead lion” refers to all the righteous, who are highly received in the world to come, including even the patriarchs Abraham, Isaac, and Jacob. The living dog, that is, a wicked man who is still alive, fareth better is accepted by the Holy One, blessed be He, when he repents and becomes virtuous and receives a share in the world to come, while a dead lion cannot add aught to his good deeds after he is dead. The same, used to say: “If thou wilt come to my house,” etc. (See Section Moed, Vol. vii.; Succah, pp. 83, 84.)

It happened that Hillel the First, while on a journey, met men carrying wheat. He inquired how much was a saah, and was told two dinars. Afterward he met others, who gave him the price of the same as three dinars. He said: “Did not the first men say it was only two dinars?” They rejoined: “Thou foolish Babylonian, dost thou not know that the reward is according to the trouble?” (They came from a farther distance.) But he said: “Is that your answer to my civil question?” Finally he succeeded in making them gentle and accommodating.

He also used to say four things in the Babylonian dialect:

“A name made great is a name destroyed.” It means, a man shall not desire to have his name proclaimed to the government, for the reason stated above, p. 45.

“And he who does not desire to learn from his masters.” It was said that it happened to an inhabitant of Beth Ramah who adopted the customs of the pious, and Rabban Johanan b. Zakkai sent one of his disciples to examine him. He found him occupied in heating oil on a range and then pouring it into peeled grain. On being questioned what he was doing, he answered, I am careful with the heave-offering, to eat it in its purity, just as if I were a high-priest. Then he asked again: Is this range clean or unclean? He rejoined: Do we then find anywhere in the Torah that a range can be unclean? An oven only is mentioned, as it is written [Lev. xi. 33]: “Whatsoever is in it shall be unclean.” Then the disciple again rejoined: The law of the oven applies also to the range, as it is written [ibid., ibid. 35]: “An oven or range shall be broken down, they are unclean.” The same added: If such was thy habit, thou hast never in thy life eaten clean heave-offerings.

“He who increases not, decreases.” How so? If one has learned one, two, or even three treatises, and has not added anything thereto, he will finally forget even that.

“And he who serves himself with the tiara perishes.” Any one that uses the name of the Lord, as it is written, which is prohibited, has no share in the world to come.

MISHNA N. Shammai was in the habit of saying: “Fix a time for study; promise little, and do much receive every one with friendly countenance.”

MISHNA O. Rabban Gamaliel said: “Make to thyself a master, and free thyself of doubt, and tithe not much by estimation.”

MISHNA P. Simeon his son was wont to say: “All the days of my life have been passed among the sages, and I have never found anything better for a man than silence; and the discussion of the law is not of such import as is the practice thereof. He who talks much, cannot avoid sin.”

MISHNA Q. He also said: “Three things support the world--law, truth, and peace--as it is written [Zechariah, viii. 16]: ‘Truth and the judgment of peace, judge ye in your gates.’”

Tosephtha--Aboth of R. Nathan.

[33]“Fix a time for study,” etc. It means, when one has heard something from a sage in the college, he shall not treat it as something unessential, but as a standard saying to be studied diligently, and what he learns from the wise he shall teach it to others, as it is written [Deut. v. 1]: “That ye may learn them, and that ye may observe to do them.” And also of Ezra it is first written [vii. 10]: “For Ezra had directed his heart to inquire in the law of the Lord, and to do it.” And immediately after it is written [ibid.]: “And to teach in Israel statutes and ordinances.”

“Promise little, and do much.” As such is the custom of the righteous, who promise little but do much; the custom of the wicked, however, is to promise much and do nothing. Whence do we know that the upright promise little, and do much? From Abraham our father, who said to the angels: “Ye will eat with me a morsel of bread,” as it is written [Gen. xviii. 5]: “And I will fetch a morsel of bread, and comfort ye your heart.” But what did he in reality do? He prepared for them three oxen and nine saah of fine meal. And whence do we know that he baked for them nine measures of fine meal? From [ibid. 6]: “And Abraham hastened into the tent unto Sarah and said: Make ready quickly three measures of fine meal.” “Three” is literal, “meal” is six, and “fine meal” is nine. And whence is it derived that he roasted for them three oxen? From the following [ibid., ibid. 7]: “And Abraham ran unto the herd,” etc. “The herd” means one, “a calf” one, “tender” one. According to others it was four, because the word “good,” which is added, is also counted as one. “And gave it unto a young man” [ibid.]. This means Ishmael his son, to accustom him to religious practice.

Also the Holy One, blessed be He, promised little and did much, as it is written [ibid. xv. 13, 14]: “And he said unto Abram, know of a surety that thy seed shall be a stranger in a land which is not theirs, and they will make them serve, and they will afflict them four hundred years. And also that nation whom they shall serve, will I judge; and afterward shall they go out with great substance.” He promised him with ‏ד‎ and ‏ן‎ the numerical value of which is 54. But when the Lord at last avenged Himself on Israel’s enemies, He did so with seventy-two letters (contained in verse 34, Deut. xxxiv.):[34] ”Or hath a god essayed to go to take to himself a nation from the midst of a nation, by proofs, by signs, and by wonders . . . and by great terrors.”

Whence is it derived that the wicked promise much and do nothing? From Ephron, who said to Abraham [Gen. xxiii. 15]: “A piece of land worth four hundred shekels of silver, what is that between me and thee?” Nevertheless, in the end he accepted the whole sum of the money, as it is written [ibid., ibid. 16]: “And Abraham understood the meaning of Ephron; and Abraham weighed out to Ephron the silver.”

“Receive every one with friendly countenance.” How so? That means, that even if one presents to his neighbor the most precious things with bad grace, it is accounted to him in Scripture as if he had given nothing; but if one receives his neighbor with a friendly countenance, although he give him nothing, it is accounted to him in Scripture as if he had conferred upon him great favors.

Tosephtha--Aboth of R. Nathan.

[35]Rabban Johanan b. Zakkai received from Hillel and Shammai. Hillel the First had eighty disciples, thirty of whom were worthy that the Shekhina rest upon them as on Moses, but their generation was not deserving of it. Thirty others were worthy to institute the intercalary years, etc., etc. (Continued in Succah, pp. 36, 37.)

“He used to say: ‘If thou hast accumulated much knowledge, do not boast of it, for it is for that that thou wast created.’”

There are five disciples of Rabbi Johanan b. Zakkai whom he characterized in the following manner: Eliezer b. Hyrcanus as “a plastered cistern which loseth not a drop”; Joshua b. Hananiah as “a threefold cord that cannot quickly be torn asunder”; Jose the priest as “the most pious in his generation”; Ishmael b. Hananiah as “a garden-bed in the desert which absorbs water”; and Elazar b. Arach he named “as a flowing brook and swelling spring whose waters rise and overflow abroad,” as it is written [ibid. v. 16]: “So will thy springs overflow abroad; and in the open streets will be thy rivulets of water.

“I consider the judgment of R. Elazar b. Arach,” etc. Happy is the disciple who receives from his master such a testimonial of praise and acknowledgment. When the son of Rabban Johanan b. Zakkai died, his disciples came to console him. R. Eliezer entered first, sat down before him, and asked his permission to say something. The request having been granted, he said: “Adam the First accepted consolation when his son died. And whence do we find it so? It is written [Gen. iv. 25]: ‘And Adam knew his wife again’ (‘again’ means after this consolation). Thou also shouldst accept consolation.” He rejoined: “Is not my own grief sufficient, that thou must remind me of that of Adam the First?”

Next entered R. Joshua, and also asked for permission to say something, which was granted, who then said: “Job, who had many sons and daughters, all of whom died in one day, yet he accepted consolation. As it is written [Job, i. 21]: ‘The Lord gave and the Lord hath taken away; may the name of the Lord be blessed.’” He rejoined: “Is not my own grief sufficient, that thou remindest me of that of Job?”

Next entered R. Jose. He sat down before him and said: “Be it thy wish that I say something.” And being encouraged by the sage, he continued: “Aaron had two full-grown sons, and both died on one day, yet he accepted consolation, as it is written [Lev. x. 3]: ‘And Aaron held his peace,’ which means that he was consoled. Would it not be right that thou shouldst do likewise?” The sage rejoined: “Have I not enough of my own grief? Why do you remind me of the grief of Aaron?”

Then entered R. Simeon, and said: “Rabbi, may I be favored by thee to say a word in thy august presence?” And the sage answered: “Proceed.” Then the former said: King David had a son who died, and he received condolence. It well becomes thee to persuade thyself into comfort. As to King David, it is written [II Sam. xii. 24]: ‘And David comforted Bathsheba his wife, and he went in unto her, and lay with her; and she bore a son, and called his name Solomon.’” He rejoined: “Is not my own grief sufficient, that you all remind me of the grief of others?”

Finally R. Elazar b. Arach entered, and when the master saw him he said to his servant: “Take a vessel and follow me to the bath-house; the man who is entering now is a great man, and I am sure that I could not withstand his arguments.” He entered, sat down before him, and said: “I will entertain thee by telling a parable: A king had intrusted one of his subjects with a precious article. The man used to exclaim, weeping: ‘Woe is me! When will I be relieved of this responsibility?’ This, O Rabbi, is thy case. Thy son, who spent his time in sacred study, departed from the world sinless. What a comfort it ought to be to thee that thou hast returned the article intrusted to thy care intact!” Hereupon the sage said: “Elazar, my son, thou hast consoled me as people should console each other.”

When they left him, Elazar said: “I will go to Damsith, which is a fine place with excellent waters”; and the other disciples said: “We will go to Jamnia, where there are many scholars, and love the study of Law.” He that went to Damsith lost a good deal of his authority, but the names of those who went to Jamnia, the seat of great scholarship, became legion in learned circles.

Tosephtha--Aboth of R. Nathan.

[36]“Thy fellow’s honor must be as dear to thee as thine own.” How so? As one watches over his own honor, so should he guard the honor of his neighbor, and as one is loath to see his own honor assailed, he should be so in regard to the honor of his neighbor.

Another explanation of the above is: When one is possessed of an hundred thousand, and all is taken away from him, he should keep his conscience clear even of the value of a small coin.

“Do not allow thyself to be easily angered.” That is, one should be as meek as Hillel the Elder, and not as irritable as Shammai the Elder. It is said about Hillel that two men once wagered the sum of four hundred zuz upon his patience; the one who could succeed to provoke his anger was to receive the amount. (See Sabbath, p. 50; the whole legend ending with): “Take care of thy temper. A Hillel is, worthy that twice that amount be lost through him; a Hillel must not get excited.”

[37]What was the irascibility of Shammai the Elder? It was related that once a man came to Shammai and said: “Rabbi, how many Laws have you?” “Two Laws: the written and the oral Law.” He answered: “I believe in the written, but not in the oral Law,” said the man. But Shammai rebuked him, and drove him away.

The same man came to Hillel and said: “Rabbi, how many Laws were given?” And he told him two--the written and the oral. The man said: “I believe in the written, but not in the oral Law.” And Hillel said: “Sit down, my son, and write for me the Aleph-Beth. After he did so, he asked him what the first letter was. “An Aleph,” said the man. “It is not an Aleph, but a Beth,” said Hillel. And be again asked him: “What is this?” And the man said: “A Beth.” “It is not a Beth, but a Gimel,” said Hillel. “Whence knowest thou that this is Aleph, the other a Beth, and the third a Gimel? Because it is a tradition of our forefathers, and whereas thou believest in one tradition, believe also in the other.”

It happened that a Gentile passing by a synagogue heard a child reading: “And these are the garments which they shall make: a breastplate, and an ephod, and a robe” [Ex. xxviii. 4]. He came to Shammai and said: “Rabbi, to whom belongeth all that honor?” “To the high-priest who serves at the altar,” was the answer. The Gentile then said: “Convert me, on the condition that I be made a high-priest.” Said Shammai: “Are there no priests in Israel, or have we no high-priests, but that we should raise to this dignity this lowly stranger, who came to us but with his staff and knapsack?” He rebuked him, and drove him away.

He then came to Hillel with the same request, and the latter said: “Sit down, and I will tell thee something. If one is to appear before a human king, is it not demanded of him that he learn how to make his entrance and exit?” “It is so,” said the Gentile. Then continued Hillel: “Thou, who art desirous of appearing before the King of kings of kings, how much more necessary for thee to learn how to enter the Holy of Holies, how to trim the lamps, how to approach the altar, how to order the table, and how to prepare the fire on the altar.” The man then replied: “What seems right to thee?” So Hillel wrote for him the Aleph-Beth, and he learned it; then he instructed him in Leviticus, and he went on learning till he came to the passage: And the stranger that cometh nigh shall be put to death [Numb. i. 51]. Then he of himself made the following deduction: If the people of Israel, who are called the children of the Lord, and of whom the Shekhina said [Ex. xix. 6]: “And ye shall be unto me a kingdom of priests, and a holy nation,” were so warned by Scripture, should not I, an insignificant stranger who has come merely with his knapsack, take the hint? Thus the stranger became reconciled of his own accord.

He came to Hillel the Elder and said: “All the blessings that are contained in the Torah shall rest upon thy head, for hadst thou been as Shammai the Elder, I would not have become as one of Israel. His irascibility came near causing me to be lost both in this world and the one to come; but the patience of Hillel has brought me to a life in this world and the one to come.” It was said that to this proselyte were born two sons: he named one Hillel and the other Gamaliel, and they were called Hillel’s proselytes.

“Repent one day before thy death.” The disciples of R. Eliezer asked him: “How can one know the day of his death, that he may then repent?” He answered: “For that very reason he should make every to-day a day of repentance”; that is, he should be repenting all his life.

R. Jose bar Jehudah said in the name of his father R. Jehudah bar Ilai, who said it in the name of Ilai, quoting R. Eliezer the Great: “Repent one day before thy death, and warm thyself before the light of the wise, but beware of their embers, perchance thou mayest be singed; for their bite is the bite of a fox, and their sting is the sting of a scorpion and also their words are as coals of fire.”

Chapter II

MISHNA A. Rabbi (Jehudah the Prince) was in the habit of saying: “In choosing the right path, see that it is one which is honorable to thyself and without offence to others. Be as scrupulous about the lightest command as about the weightiest, for no man knoweth the result of his actions. Weigh the present temporal disadvantages of a dutiful course against the reward of the future, and the present desirable fruits of a sinful deed against the injury to thine immortal soul. In general, consider three things and thou wilt never fall into sin: remember that there is above thee an all-seeing eye, an all-hearing ear, and a record of all thine actions.”

MISHNA B. Rabban Gamaliel, the son of R. Jehudah the Prince, was wont to say: “Beautiful is the study of the Law when conjoined with a worldly avocation, for the efforts demanded by both stifle all inclination to sin. But study which is not associated with some worldly pursuit must eventually cease, and may lead to iniquity. All who occupy themselves with communal affairs should do it in the name of Heaven, for the merit of their fathers sustains them and their righteousness stands forever. And ye yourselves shall have reward reckoned unto you, as if ye had wrought it.”

MISHNA C. [“Be cautious with those in authority, for they let not a man approach them but for their own purposes; and they appear like friends when it is to their advantage, and stand not by a man in the time of his need.]

MISHNA D. He also used to say: “Do His will as if it were thy own, that He may do thy will as if it were His.

Annul thy will before His, that He may annul the will of others before thy will.”

MISHNA E. Hillel was in the habit of saying: “Do not isolate thyself from the community and its interest. Do not rely upon thy spiritual strength until the day of thy death. Pass not judgment upon thy neighbor until thou hast put thyself in his place. Say not a thing which must not be heard, because eventually it will be heard, Say never, ‘Sometime or other, when I enjoy leisure, I will attend to my spiritual advancement’; perhaps thou wilt then never have the leisure.”

MISHNA F. He also said: “The boor can never fear sin, the ignorant can never be truly pious. Whoso is ashamed to ask will never learn; no irritable man can be a teacher. He whose mind is given to worldly gain will not acquire wisdom. Where a man is needed, endeavor that thou be the man.”

MISHNA G. Moreover, he saw a skull which floated on the face of the water, and he said to it: “Because thou drownedst they drowned thee, and in the end they that drowned thee will be drowned.”[38]

MISHNA H. He furthermore said: “The more feasting the more food for worms; the more wealth the more cares; more women, more witchcraft; more maid-servants, more lewdness; more men-servants, more theft. But the more knowledge the more food for life; the more study the more wisdom; the more reflection the better the counsel; the more charity the more peace. He who earns a good name gains something that can never be taken away. He who has gotten to himself words of Law has gotten to himself the life of the world to come.”

MISHNA I. Rabban Johanan b. Zakkai received it from Hillel and Shammai. He was wont to say: “If thou hast learned much, do not boast of it, for it is for that that thou wast created.”

MISHNA J. The above had the following five disciples: R. Eliezer b. Hyrkanos, R. Joshua b. Hananiah, R. Jose the priest, R. Simeon b. Nathaniel, and R. Elazar b. Arach. He used to recount their praises: “Eliezer b. Hyrkanos is a plastered cistern, which loseth not a drop; Joshua b. Hananiah--happy is she that bare him; Jose is pious; Simeon b. Nathaniel is a sin-fearer; Elazar b. Arach is a welling spring.”

He used to say: “If all the wise of Israel were in a scale of the balance, and Eliezer b. Hyrkanos in the other scale, he would outweigh them all.” Abba Saul, however, said in his name: “If all the wise of Israel were in a scale of the balance and Eliezer b. Hyrkanos with them, and Elazar b. Arach in the other scale, he would outweigh them all.”

MISHNA K. He (Johanan b. Zakkai) said to their. once: “Go out and find what is the best thing to cultivate.” R. Eliezer said: A generous eye; R. Joshua said: A loyal friend; R. Jose said: A good neighbor; R. Simeon thought: Prudence and foresight; R. Elazar said: A good heart. Thereupon the Master said: “I consider R. Elazar b. Arach’s judgment the best, for in his all of yours are included.”

He said to them again: “Go and find out which is the evil way a man should shun.” R. Eliezer said: An evil eye; R. Joshua said: An evil companion; R. Jose said: An evil neighbor; and R. Simeon said; He that borrowed and repayeth not; he that borrows from a man is the same as if he borroweth from the Omnipotent, as it is written [Ps. xxxvii. 2 1]: “The wicked borroweth and repayeth not, but the righteous is beneficent and giveth.”, R. Elazar said: An evil heart. Thereupon the Master said: “I consider R. Elazar b. Arach’s judgment the best, for in his all of yours are included.”

MISHNA L. Each of these disciples had three maxims. R. Eliezer: “Thy fellowman’s honor must be as dear to thee as thine own. Do not allow thyself to be easily angered. Repent one day before thy death.” (He also said:) “Warm thyself before the light of the wise, but beware of their embers, perchance thou mayest be singed; for their bite is the bite of a fox, and their sting the sting of a scorpion, and their hiss is that of a fiery-serpent; and all their words are as coals of fire.”

MISHNA M. R. Joshua: “An envious eye, sinful propensities, and misanthropy drive a man out of the world.”

Tosephtha--Aboth of R. Nathan.

[39]“An envious eye,” etc. How so? It means one shall look upon the house of his neighbor with the same eye as he looks upon his own; and as one is anxious that there be no bad repute against his wife and children, so should he be anxious in regard to his neighbor’s or his children’s.

Another explanation of this passage is: One shall not be envious of the erudition of his neighbor. It happened to one who was envious, that his days were shortened, and he departed prematurely from this world in consequence thereof.

“Sinful propensities.” How so? It is said that the evil propensities are thirteen years older than the good propensities, as they begin to grow with the child in the mother’s womb, so that he defiles the Sabbath and commits other transgressions, and there is nothing in his mind to remonstrate with him. But when he is thirteen years old, the good thoughts are born. If he defiles the Sabbath, they tell him: Scoundrel, is it not written [Ex. xxxi. 14]: “Every one that defileth it shall surely be put to death.” If he is about to commit adultery, they say to him: Scoundrel, is it not written [Lev. xx. 16]: “Then shall the adulterer be put to death, together with the adulteress.” When one becomes excited and is about to commit incest, all the members of his body are willing, for the evil thoughts reign over all the two hundred and forty-eight members; but when he is about to perform a meritorious deed, all his members begin to pain him, for the evil thoughts within him reign over all the two hundred and forty-eight members of his body; and the good thoughts are compared to one who is imprisoned, as it is written [Eccl. iv. 14]: “For out of the prison cometh the one to reign,” which refers to the good thoughts.

[There are others who say that it refers to Joseph the upright. This wicked woman (his mistress) used to persecute him with her words. She said: “I will imprison thee.” He answered: “The Lord looseneth the prisoners.” She said: “I will dig out thy eyes.” He answered: “The Lord causeth the blind to see.” She said: “I will bend thy stature.” He answered: The Lord raiseth up those who are bowed down.”

And in reality there is no wonder that Joseph the upright refused to listen to her, as the same happened to R. Zadoq, as it was said: To R. Zadoq, who was great in his generation, while he was in captivity, a certain matron sent a beautiful female slave; but as soon as he noticed her he turned around to the wall, so as not to see her, and absorbed himself with the Torah all night. In the morning she went to complain to her mistress, and said: “Death is preferable to me than to be with this man.” The matron sent for him and asked: “Why hast thou not treated this woman as men usually treat women?” He answered: “I could not do otherwise. I belong to a great family of priests. I have entirely ignored her, so as not to be tempted to have intercourse with her, and add bastards to Israel.” When she heard this, she gave orders concerning him, and then dismissed him with great honor. Neither is there any wonder for the refusal of R. Zadoq, as R. Aqiba was greater in his act; and to him happened the following:

R. Aqiba, while at one time in a certain country, was calumniated before the Sultan (and was imprisoned). He sent to him two beautiful women, who were washed, anointed, and adorned as brides. They were hugging him all night, each one inviting him to herself. He, however, repulsed them. They complained before the Sultan, and said: “Death is preferable to us than to be with that man.” He sent for him and asked; “Why hast thou not treated these women as men treat even homely women--are they not human beings as thyself? Hath not thy Creator also created them?” He answered: “I could not do otherwise: their odor seemed to me to be that of putrefied carcasses.”

And even R. Aqiba is not to be admired for his act, for R. Eliezer the Great exceeded him by the following act: He brought up his own sister’s daughter, and for thirteen years slept with her in one bed. When she became of marriageable age, he told her to get married. She, however, replied: “Am I not thy servant? Use me as a slave to wash thy disciples’ feet.” He again told her: “I am too old. Get married to one suitable to thy age.” She answered: “Have I not already told thee I am thy servant, and to use me as a slave to wash thy disciples’ feet?” When he heard this, he proposed to her and married her.]

Said R. Reuben b. Aztrobli: How difficult it is for one to avoid the evil propensities which are within him from the minute of his birth! As it is written [Gen. iv. 7]: “Sin lieth at the door.” So we see that a young animal is always careful not to approach harmful things, as fire or a well, because it has no evil propensities, while a human child must always be guarded against putting his hand into fire, and other harmful things, because he has a desire to do those things, and this is due to the evil propensities born with him.

Said R. Simeon b. Elazar: “What are the evil thoughts to
be compared to? To a piece of iron which is placed in the fire;
so long as it is there, various vessels can be formed out of it.

The same is the case with evil thoughts: there is no other preventive but the Torah, which is likened to fire. As it is written [Prov. xxv. 21, 22]: “If thy enemy be hungry, give him bread
to eat; and if he be thirsty, give him water to drink; for though thou gatherest coals of fire upon his head, yet will the Lord repay it unto thee.” Do not read ‏יְשלֵמ לךְ‎ (repay unto thee), but ‏יַשְלִים לךְ‎(make thee at peace).

Said R. Jehudah the Prince: To the following parable the evil thoughts can be compared: Two men entered a hostelry, and one of them was arrested for robbery. When asked for an accomplice he said he had one, although he could easily have denied it, yet he said so in order to implicate also his companion and make him share his own fate. The same applies to evil thoughts: they are not satisfied with their destruction of the soul, they also destroy the body.

Said R. Simeon b. Johai: From the following is to be deduced that the Israelites will never see Gehenna. The following parable can be applied to this: A king who had a barren field rented it to some persons at a yearly rental of ten measures of wheat. The land was manured, watered, and surrounded with ditches, and generally properly cared for. Still, at the end of the year the lessees paid the king only one measure of wheat instead of ten. When the king asked them for an explanation, they said: “Our lord and king, thou knowest well that the land was barren, and brought thee no revenue at all; now even after so much of our labor invested, it did not produce more than this measure.” A similar plea will the Israelites make in the future before the Holy One, blessed be He: “Lord of the Universe! thou knowest how the evil thoughts allure us.” As it is written [Ps. ciii. 14]: “For he knoweth our frame” (and on that consideration will be forgiven).

“And misanthropy.” This means: One should not say: Love the sages, but hate the disciples; or, Love the disciples, and hate the common people; but, Love every one except the infidels, the enticers, the misleaders, and the informers. So also says David [Ps. cxxxix. 21, 22]: “Behold, those that hate thee I ever hate, O Lord! and for those that rise up against thee do I feel loathing. With the utmost hatred do I hate them: enemies are they become unto me.”

It is also written [Lev. xix. 18]: “But thou shalt love thy neighbor as thyself: I am the Lord.” Because I have created him; and if he practiseth what thy people do thou shalt love him, but not otherwise.

R. Simeon b. Elazar said: The above passage was said as a strict admonition: If thou wilt love him, thou art assured of a good reward; otherwise (remember), I am the judge and I will see to it that thou art punished.

MISHNA N. R. Jose: “Thy neighbor’s property must be as sacred as thine own. Set thyself to learn the Law, for it is not an heirloom unto thee. Let noble purpose underlie thine every action.”

MISHNA O. R. Simeon: “Be careful in reading the Shema, and, in prayer; do not look upon the prayer as an obligatory task, but as a privilege granted by mercy and grace before God, for it is written [Joel, ii. 13]: ‘For gracious and merciful is he, long-suffering and of great kindness, and he bethinketh himself of the evil.’ Never think thyself too great a sinner to approach Him.”

MISHNA P. R. Elazar:[40] ”Be most zealous in the pursuit of study; be prepared always to answer a scoffer; remember in whose service thou laborest.” (He also added:) “Know who is thy Master, that he may be trusted to recompense thee for thy work.”

MISHNA Q. R. Tarphon was in the habit of saying: “The day is short, the work is great, the workmen are slothful, the reward is rich, and the Master is urgent.”

MISHNA R. He also said: “It is not incumbent on thee to complete the whole task, but thou art not at liberty therefore to neglect it entirely. If thou hast learned much Law thou wilt be given much reward; and faithful is the Master of thy work, who will pay thee the reward of thy work; and know also that the gift of the recompense of the righteous is for the world to come.”

Tosephtha--Aboth of R. Nathan.

[41]“Thy neighbor’s property must be as sacred as thine.” It means that one should be as careful of his friend’s property as he is of his own; and as he is desirous that there shall be no slur cast on his belongings, so shall he desire that there should be none on those of his friend.

Others explain the above thus: When a disciple comes to thee with the request to teach him, if thou art able comply with his request; otherwise, dismiss him at once, and do not accept his money, as it is written [Prov. iii. 28]: “Say not unto thy neighbor, Go, and return, and to-morrow will I give, when thou hast it by thee.”

“Set thyself to learn the Law.” How so? When Moses our master saw that his sons knew not enough of the Law to be able to succeed him, he wrapped himself up and prayed: Lord of the Universe! designate to me the one who should be at the head of the people, as it is written [Numb. xxvii. 15-17]: “And Moses spake unto the Lord, saying, Let the Lord, the God of the spirits of all flesh, appoint a man over the congregation, who may go out before them, and who may come in before them.” Said the Holy One, blessed be He: “Moses, take Joshua, appoint an interpreter for him, and at the head of the great men in Israel let him lecture in thy presence.” Thereupon Moses said to Joshua: Joshua! these people which I deliver in your care are not to be regarded as he-goats or sheep, but as kids and lambs; for they have not as yet had experience in the commandments, and therefore cannot be considered as such. As it is written [Songs, i. 8]: “If thou knowest this not, O thou fairest of women! go but forth in the footsteps of the flock, and feed thy kids around the shepherds’ dwellings.”

Rabban Johanan b. Zakkai once went in the market,, and he noticed a girl picking up barley from under the feet of the cattle of the Arabians. “My daughter, who art thou?” he asked her, but she made no reply. Again he put the same question to her, but again she was silent. Finally she said: “Wait a little.” She enveloped herself with her hair, stepped up to him, and said: “Rabbi, I am the daughter of Nakdimon b. Gurion.” “And what has become of thy father’s money?” he asked her; and she answered. “Rabbi, on him was verified the saying which was proverbial in Jerusalem: ‘One who desires to preserve his wealth, should lessen it (spending it in charities; but as my father did not sufficiently spend in charities, it all vanished).’” “And what has become of that of thy father-in-law?” he again interrogated her; and she answered: “Rabbi, through my father also his was lost.’’ Thereupon said Rabban Johanan b. Zakkai to his disciples: “Whenever I used to read the passage: ‘If thou knowest this not, O thou fairest of women! go but forth in the footsteps of the flocks,’ I could not make out what punishment was contained therein; but after what I have seen today, I can safely say that the punishment is meant that Israel must be under the domination of the lowest nation of the heathens; and not merely that, but also must lie among the manure of their cattle.”

The same girl then asked him: “Rabbi, dost thou recall that thou hast signed thy name to my marriage contract?” He answered: “I do”; and turning to his disciples, he continued: “Verily, I signed my name to the marriage contract of this girl, which was for a million Tyrian dinars. Her father’s family never left their house to enter the Temple, until a woollen cloth was spread for them.”

It happened that a girl and her ten maids were captured, and a heathen brought her up in his house. One day he gave her a pitcher and told her to bring him some water. One of her maids got up and took it from her. “Why hast thou done this?” he inquired of her; and she answered: “Master, I swear by thy life that I am one of five hundred maids belonging to her mother.” When he heard this, he liberated the girl and her ten maids.

The following happened to another young girl who was captured and brought up in the house of a heathen. One night he had a dream, in which he was commanded to send her away. His wife, however, prevented him from doing so. Again he had a dream, in which he was told that if he would not send away the girl he would die. He did so, but desiring to know what became of her, be followed her. She kept on walking until she became thirsty. She went down to a spring to drink, and placing her hand upon the wall, she was bitten by a snake and died. She floated upon the water until he went down, took her out, and buried her. When he returned home, be said to his wife: “The people to which this girl belonged is punished by no other but their Father in heaven.”

“Let noble purpose underlie their every action.” It means, for the sake of the Torah, as it is written [Prov. iii. 6]: “In all thy ways acknowledge him, and he will make level thy paths.”

Said R. Simeon: Be punctual in the reading of Shema, and in prayer; and when thou prayest, let it not be as a conversation, but supplication before the Holy One, blessed be He, as it is written [Jonah, iv. 2]: “That thou art a gracious God, and merciful, long-suffering, and abundant in kindness, and repentant of the evil.”

Said R. Elazar (see Mishna, and in addition he said): “Nothing of the Torah shall be forgotten by thee. Know for whom thy exertion is and with whom thou hast made a covenant; and who is thy master, who is surely to be trusted that he will recompense thee for thy work.”

Tosephtha--Aboth of R. Nathan.

[42](As Rabban Johanan b. Zakkai used to recount the praise of his disciples), so was R. Jehudah the Nassi recounted of the following sages: R. Tarphon, R. Aqiba, R. Elazar b. Azariah, R. Johanan b. Nuri, and R. Jose the Galilean.

He called R. Tarphon “a pile of stones”; others say, “a pile of nuts,” which, should one be taken away, the whole pile is stirred and there is a rolling of nuts one upon the other. So it was with R. Tarphon, when a disciple came to him and said. “Teach me,” he taught him the Scriptures, Mishna, Midrash, Halakhoth, and Agadoth; and when he left him, he was full of the blessing of the Torah.

He called R. Aqiba “a sealed treasure,” and compared him to a workman who, taking his basket, goes outside, and whatever he may chance to find he puts into it. However, when he returns home, he assorts every article. So has R. Aqiba done (when he was studying), and made rules to the Torah to be easily comprehended, as rings are made to vessels to make it easy to take a hold of them.

He called R. Elazar b. Azariah “a huckster’s basket,” and compared him to a huckster who, taking his basket, goes about the country, and the people come flocking around him inquiring for various articles, and find that he has everything. So it was with R. Elazar b. Azariah, when a disciple came to him, he taught him everything that he desired; and when he left him, he was full of the blessings of the Torah.

He called R. Jose the Galilean “a gatherer of good things with no pride about him,” who collected the good manners of all the sages and the Mishnaioth that all the sages have taught.

When R. Jehoshua became of old age, etc. (See Section Moed, Vol. VI., Tract Hagiga, pp. 3 and 4: “It happened that Johanan b. Broka,” etc., till paragraph beginning with “It happened once.”)

Issi b. Jehudah gave the sages names. To R. Meir he gave the name of “sage and scribe”; to R. Jehudah, “a sage when he desires to be”; to R. Elazar b. Jacob, “a small vessel (not of much knowledge), but very clear”; to R. Jose, “a man of good reasoning in the science of the Law”; to R. Johanan b. Nuri, “a basket of a peddler containing a variety of everything”; to R. Jose the Galilean, “a gatherer of the very best things, with no pride about him”; to R. Simeon b. Gamaliel, “a vault full of the best purple dye”; to R. Simeon, “learns much and forgets little.”

When, later on, R. Simeon met Issi b. Jehudah, he asked him: “Why hast thou attacked me before the scholars?” And he answered: “I have said only that thou learnest much and forgettest little, and even that little is of no importance.”

Chapter III

MISHNA A. Aqabia b. Mahalallel used to say: “Consider three things, and thou wilt not fall into transgression: know whence thou comest, whither thou art going, and before whom thou art about to give account and reckoning; know whence thou comest--from a fetid drop, and whither thou art going--to worm and maggot; and before whom thou art about to give account and reckoning: before the King of the kings of kings, the Holy One, blessed be He.”

Tosephtha--Aboth of R. Nathan.

[43]“Said Aqabia b. Mahalallel, whoever takes to his heart the following four things will never sin”: Whence he comes; whither he goes; what will become of him; and who is his judge. Whence he comes? from a dark place! Whither he goes? to a dark place! What will become of him? dust and worms! And who is his judge? the King of the kings of kings, the Holy One, blessed be He!

Said R. Simeon: He comes from a dark place and returns thither; he springs from a fetid drop, from a place which no eye can behold, and finally becomes dust and worms, as it is written [Job, xxv. 6]: “How much less the mortal, the mere worm? and the son of earth, the mere maggot?”

Said R. Elazar b. Jacob: He is a worm while living, and a maggot when dead. What is meant by “a worm while living”? the vermin that infest him; “and a maggot when dead” applies to those that are bred from him after his death.

Said R. Simeon b. Elazar: To what can this be compared? To a king who built a magnificent palace, in which he dwelt, and a tanner’s ditch passed in front of its entrance. Whoever passed by said: “How beautiful and how glorious this palace would have been, if this tanner’s ditch had not passed in front of its entrances.” So is man. If now, when from his entrails issues forth a rancid stream, he is so proud and haughty, had a stream of sweet-smelling water or oil issued from him, how much the more proud and haughty would he have been.

When R. Eliezer fell ill, his disciples came to visit him. They sat before him and said: “Our master, teach us the best of all the things you taught us.” He said: “Be careful of your friend’s honor; and when you pray, know before whom you are standing, and through this you will be rewarded with life in the world to come.”

MISHNA B. R. Haninah, the Segan of the high-priest, said: “Pray always for the welfare of the government; were it not for the fear of it, men would swallow each other alive.” R. Haninah b. Phradyon said: “Two that sit together and do not discuss any portion of the Law, their sitting is considered that of scorners, as it is written [Ps. i. 1]: ‘And sitteth not in the seat of scorners’; but two that sit together and are discussing some words of the Law have the Shekhina among them, as it is written [Mal. iii. 16]: ‘Then conversed they that feared the Lord one with the other; and the Lord listened and heard it,’ etc.”

This is as to two. Whence is it deduced of even one who occupies himself with the study of the Law, that the Holy One, blessed be He, fixes his reward? It is written [Sam. iii. 28]: “That he sit in solitude and be silent; because He hath laid it upon him.”

Tosephtha--Aboth of R. Nathan.

[44]Said R. Hananiah the Segan: Whoever takes the words of the Torah to his heart, all thoughts of the sword and hunger, of foolishness and fornication, evil thoughts in general and thoughts of adultery, thoughts of nonsense and thoughts of human cares, are destroyed for him, for so it is written in David’s Psalms [xix. 9]: “The precepts of the Lord are upright, rejoicing the heart: the commandment of the Lord is clear, enlightening the eyes. P, But one that does not take to heart the words of the Torah, to him the reverse comes, as Moses wrote in his Deuteronomy [xxviii. 46-48]: “And they shall remain on thee for a sign and for a token, and on thy seed for ever. For the reason that thou didst not serve the Lord thy God with joyfulness, and with gladness of heart, while there was an abundance of all things; therefore, shalt thou serve thy enemies whom the Lord will send out against thee, in hunger, and in thirst, and in nakedness, and in want of everything.”

Since it says: “In hunger,” what is meant by it? At the time when one has not even a piece of barley-bread, his enemies demand of him wheat bread and fat meat. And what is meant by the words: “And in thirst”? At the time when one has not even a drop of vinegar, or beer, his enemies demand of him the best wine of the land. And what is meant by the words: “And in nakedness”? When one has not even a woollen or linen shirt, his enemies demand of him silken ones, the best of all lands. The words, “And in want of everything,” mean that he will be without a light, knife, and table. Others says: Without vinegar and salt. This corresponds with the manner in which people curse when they say: “May there be no vinegar nor salt in thy house!”

He used to say the words: “Look not so at me, because I am somewhat black, because the sun hath looked fiercely at me” [Song of Songs, i. 6], refer to the counsellors of Judah, who relieved themselves of the yoke of the Holy One, blessed be He, and chose a human king to reign over them.

“My mother’s children were angry with me” [ibid.] refers to Moses, who slew the Egyptian, as it is written [Ex. ii. 11, 12]: “And it came to pass in those days, when Moses was grown up, that he went out unto his brethren, and looked on their burdensome labors. . . . And he looked this way and that way, and when he saw that there was no one by.” What is meant by “and when he saw that there was no one by”? Infer from this, that Moses inquired of the deliberating groups of angels, whether he should slay him (the Egyptian). They told him. to do so, and he did it, not with a sword, but by a word, as it is written [ibid., ibid. 14]: “Sayest (intendest) thou to kill me, as thou hast killed the Egyptian?” From this can be learned that he killed him by the Holy Name.

Others say that the passage: “My mother’s children were angry with me,” refers to Moses, who fled to Midian, as it is written [Ex. ii. 15-17]: “And Pharaoh heard this thing, and he sought to slay Moses; but Moses fled from the face of Pharaoh, and tarried in the land of Midian, and he sat down by a well. . . . And the shepherds came and drove them away, but Moses arose and helped them and watered their flocks.” Moses constituted himself as judge, and said: “It is usual for the males to draw the water and for the females to water the flocks, and here I see the reverse. There is in this place much perversion.”

There are others who say that as long as Moses stood by the well, the water surged and came toward him, but when he left, the water also receded. At the same time, he said: “Woe to me, that I have left my people and come to dwell among heathens.”

Another explanation of the above passage is, that it refers to the Israelites who made the golden calf, for although at first they said [Ex. xxiv. 7]: “All that the Lord hath spoken will we do and obey,” nevertheless they soon afterward exclaimed: “These are thy gods, O Israel” [Ex. xxxii. 4].

Still others say that the above passage refers to the spies who brought and spread an evil report about the land, and caused that carcasses of Israelites fell in the desert, as it is written [Numb. xiv. 29]: “In this wilderness shall your carcasses fall.”

“They appointed me to be keeper of the vineyards” [Song of Songs, i. 6]. Said the Holy One, blessed be He: Who has caused me to shower kindness upon the heathens, but Israel himself? For when the heathens live in prosperity they are pushed, cursed, and persecuted.

Others say that the above passage refers to the Israelites who were exiled in Babylon, and the prophets who were then among them told them to observe the laws of offerings and tithes. They, however, answered: “We were exiled because we refused to observe those laws, and you wish us to observe them now?”

MISHNA C. R. Simeon said Three that have eaten at our table, and have not blessed the Lord for His kindness, are as if they have eaten of the sacrifices of the dead, as it is written [Is. xxviii. 8]: ‘For all tables are full of vomit of filthiness, there is no place (clean).’ But three that have blessed the Lord when eating at our table, are as if they had eaten of the table of the Omnipotent, as it is written [Ezek. xli. 22]: And he spoke unto me: This is the table that is before the Lord.’”

MISHNA D. R. Hanina b. ‘Hakhinai used to say: “He who awakens by night, and he who is walking alone on the road and turns aside his heart to idleness, it is his own fault if he incurs trouble for himself.”

MISHNA E. R. Nehunia b. Haqanah said: “Whoso receives upon him the yoke of the Law (i.e., one who devotes himself wholly to study), the community removes from him the yoke of the government and the yoke of worldly cares; but a student who breaks from him the yoke of the Law, the community lays upon him the yoke of the government and the yoke of worldly cares.”

MISHNA F. R. ‘Halaphtha of the village of Hananiah said: “When ten sit and are occupied in words of Law the Shekhina is among them, as it is written [Ps. lxxxii. 1]: ‘God standeth in the Congregation of God.’ And whence is it proved of even five? It is written [Amos, ix. 6]: ‘And hath founded his bundle[45] on the earth’ (and a bundle is at least of five). And whence even three? It is written [Ps. lxxxii. 1]: ‘In the midst of judges doth he judge’ (and the number of judges is generally three). And whence even two? It is written [Mal. iii. 16]: ‘Then they that favored the Lord spake often one to another.’ (The least number of persons who can speak to each other is two.) And whence even one? It is written [Ex. xx. 24 (21)]: ‘In every place where I shall permit my name to be mentioned, I will come unto thee and will bless thee.’”

MISHNA G. R. Eliezer of Bartota said: “Render unto God what belongs to Him, for thou and all thou hast are His, as David said [I Chron. xxix. 14]: ‘For all things come from thee, and of thine own have we given thee.’”

MISHNA H. R. Jacob said: “One who walks by the way and learns, and breaks off his study and says, ‘How beautiful is this tree!’ and, ‘How fine is this furrow field!’ is endangering his own life.”

MISHNA I. R. Dosithai b. R. Janai said in the name of R. Meir: “When a scholar of the sages sits and studies, and subsequently forgets what he studied, Scripture likens him to one who endangers his own life, as it is written [Deut. iv. 9]: ‘Only take heed to thyself, and guard thy soul, diligently, that thou do not forget the things which thy eyes have seen and that they depart not from thy heart all the days of thy life,’ etc. It might be thought that he is culpable of forgetting even when his study had grown hard to him, therefore it is written [Deut. iv. 19]: ‘And they depart not from thy heart all the days of thy life,’ from which it is to be inferred that he is not guilty unless he intentionally leads such a life as to forget them.

Tosephtha--Aboth of R. Nathan.

[46]R. Hanina b. Dosa said: Whomsoever fear of sin precedes, his wisdom prevails, as it is written [Ps. cxi. 10]: The beginning of wisdom is the fear of the Lord.”

“He also used to say: ‘Whosesoever deeds exceed,’” etc., as it is written [Ex. xxiv.]: “We will do and obey.” It was asked of R. Johanan b. Zakkai: “What praise is to be applied to one who is wise and sin-fearing? He answered: “A mechanic who has his tools with him.” And what praise is to be applied to the one who is only wise, but not sin-fearing?” And he answered: “He is a mechanic who has no tools.” He was asked again as to what praise is to be applied to the one who is sin-fearing but lacks wisdom, and he answered: “No mechanic but has tools.”

“R. Elazar b. Azariah said: ‘If there is no Law,’” etc. He used to say: One who is possessed of good deeds and who has studied much law, to what is he to be compared? unto a tree that is planted by waters, whose branches; are few but whose roots are many, and which can withstand the severest storm, as it is written [Ps. i. 3]: “And he shall be like a tree planted by rivulets of water,” etc. One who lacks good deeds but who has studied law, to what is he to be compared? to a tree planted in the desert whose branches are many and his roots few, which is easily uprooted by any wind, as it is written [Jer. xvii. 6]: “He shall be like a lonely tree in the desert.”

“R. Gamaliel said: ‘Set a teacher,’” etc. A teacher for wisdom and a companion to study with, and be quit of doubt and do not tithe much by estimation.

Simeon his son used to say: All my days I spent among the sages, and I found silence to be the most advisable thing, and that not discussion but practice is the principal thing; and if silence is advisable for intelligent persons, so much the more for fools. Wisdom does not bring to much talk, nor does much talk bring to wisdom; the main thing is practice. Whosoever talks much causes sin, as it is written [Prov. x. 19]: “In a multitude of words transgression cannot be avoided”; and it is also written [ibid. xvii. 28]: “Even a fool, when he keepeth silence, is counted wise.” R. Simeon b. Eliezer said: “He who studies the law and is sin-fearing is like a physician who is consulted about a wound and who has his instruments and drugs with him; but one who studies the Law and is not sin-fearing is like a physician who, when consulted about a wound, has the instruments to operate with but has no drugs to heal the wound up.”

MISHNA J. R. Hanina b. Dosa said: “He in whom fear of sin precedes his wisdom, (may be sure that) his wisdom will endure; and he in whom wisdom precedes his fear of sin, (may be sure that) his wisdom will not endure.”

He also used to say: “He whose works are in excess of his wisdom, (it is certain that) his wisdom will endure; and he whose wisdom is in excess of his works, (it is certain that) his wisdom will not endure.”

He also said: “He who has earned man’s esteem and love, will also receive the favor of Heaven; but he who is not worthy of such esteem, cannot expect to find favor with God.”

MISHNA K. R. Dosa b. Horkhinas said: “Sleeping away the morning, carousing at noonday, childish trifling, and the company of the vulgar waste a man’s life away.

MISHNA L. R. Elazar the Modai said: “He that profanes things sacred and contemns the festivals; he who causes his neighbor to blush in public, and annuls the covenant of Abraham our father, and acts barefacedly against the Torah,[47] even though he is possessed of Torah and good deeds, he has no share in the world to come.”

MISHNA H. R. Ishmael said: “Be pliant with thy chief (although he is not deserving) and yielding to the impressment,[48] and receive every man with cheerfulness.”

MISHNA N. R. Aqiba said: “Mockery and frivolity are the forerunners of immorality. Tradition is the rampart about the Law; tithes (charity) are the rampart of wealth; good resolutions are the preservative of abstinence; and the safeguard of wisdom is--silence.”

MISHNA O. He used to say: “Beloved is man, that he was created in His image, and, moreover, that he was notified that he was so created, as it is written [Gen. ix. 6]: ‘For in the image of God made he man.”‘

MISHNA P. “Beloved are Israel, that they are called children of God; moreover, that it was made known to them that they are so called, as it is written [Deut. xiv. 1]: ‘Ye are the children of the Lord your God.’”

MISHNA Q. “Beloved are Israel, that there was given to them a precious article; moreover, that it was made known to them that there was given to them the precious article” [as it is stated elsewhere that with this the world was created, as it is written [Prov. iv. 2]: “For good information do I give you; my teaching must ye not forsake”].

MISHNA R. “Everything is foreseen and free-will is given. And the world is judged by grace; and every one is judged according to the majority of his deeds” (i.e., if one has done more good than evil, he is judged more favorably--Rashi).

MISHNA S. He (Aqiba) used to say: “All that we possess is merely a trust, and over all life a net is spread out. The storehouse is open, the proprietor sells on credit; the ledger lies ready and the purchaser’s hand makes the entry; whoever wishes may come and borrow, but the collectors are continually going the rounds of the debtors, and obtain payment from them voluntarily or involuntarily; they know whereupon they base their claims, and their court is a tribunal of justice, and everything is prepared for the banquet” (i.e., even the wicked have a share in the world to come--Rashi).

MISHNA T. R. Elazar b. Azariah was wont to say: “Without knowledge of religion there can be no true culture, and without true culture there is no knowledge of religion. Where there is no wisdom, there is no fear of God; and without fear of God there is no wisdom. Without learning there can be no counsel, and without counsel there will be lack of learning. Where there is a dearth of bread, culture cannot thrive, and lack of culture causes dearth of bread.”

MISHNA U. He also used to say: “With what is he to be compared, who can boast of more learning than charitable deeds? With a tree of many branches and but few roots--there comes a storm that uproots and prostrates it, as it is written [Jer. xvii. 6]: ‘And he shall be like a lonely tree in the desert, which feeleth not when the good cometh; but abideth in the parched places in the wilderness, in a salty land which cannot be inhabited. ‘But what does he resemble, who can show more deeds than learning? A tree of few branches and many roots: all the storms, and winds may bear down and rage upon it, they cannot move it from its place. As it is written [Jer. xvii. 8]: ‘And he shall be like a tree that is planted by the waters, and by a stream spreadeth out its roots, which feeleth not when heat cometh, but its leaf remaineth green, and in a year of drought it is undisturbed by care, and ceaseth not from yielding fruit.’”

MISHNA V. R. Elazar b. ‘Hasma said: “‘Qinim’[49] and ‘Pitteche Niddah’[50] are essentials of Torah; canons of astronomy and geometry are after-courses of wisdom.”

Tosephtha--Aboth of R. Nathan.

[51]“Sleeping away the morning.” It means: One shall not wilfully sleep till past the hour of reading the Shema, for by so doing he neglects the Law, as it is written [Prov. xxvi. 13]: “As a door turneth upon its hinges, so doth the slothful upon his bed. The slothful saith, There is a leopard in the way: a lion is between the streets.”

“Carousing at noonday” means: One should not make a practice of drinking wine at midday, for by so doing he is prevented from observing the Law, as it is written [Eccl. x. 16]: “Woe to thee, O land! when thy king is low-minded, and when thy princes eat in the morning.” Also: “Happy art thou, O land, when thy king is noble-spirited, and thy princes eat in proper time.” When is the proper time? Say, then, in the world to come, as it is written [Is. ix. 22]: “I the Lord will hasten it in its time”; also: “At the proper time shall it be said to Jacob and to Israel,” etc. [Numb. xxiii. 23]. Said the Holy One, blessed be He, to Balaam: “At the time, but not in the time; not in your time, but at the time when I will redeem Israel.”

“Childish trifling.” By this is meant, that one should not make a practice of talking to his wife, sons, or daughters when he is studying at home; for by so doing he neglects the Torah, as it is written [Josh. i. 8]: “This book of the law shall not depart out of thy mouth; but thou shalt meditate therein, day and night.”

“The company of the vulgar” means: One should not lounge with idlers in the market, lest he neglect the Torah, as it is written [Ps. i. 1, 2]: “Happy is the man who walketh not in the counsel of the wicked . . . and sitteth not in the way of scorners; but whose delight is the law of the Lord.” Said R. Meir: For what purpose is it said: “And sitteth not in the way of scorners”? Say, then, it refers to the assembly halls of the scoffers, as it is written [ibid. xxvi. 5]: “I have hated the assemblage of evil-doers; and with the wicked will I not sit”; and it is also written [Mal. iii. 19]: “For, behold, the day is coming, which shall burn as an oven, and all the presumptuous, yea, and all who practise wickedness, shall be stubble”; and “presumptuous yea, are scoffers, as it is written [Prov. xxi. 24]: “The presumptuous and proud, scorner is his name.”

Once it happened that R. Aqiba, while sitting and teaching his disciples, was reminded of the way he spent his younger days. He said: “I thank thee, Lord my God, that thou hast placed me among the studious, and not among the idlers in the markets.”

Chapter IV

MISHNA A. Ben Zoma was in the habit of saying: Who is a wise man? He who learns from everybody, as it is written [Ps. cxix. 99]: ‘Above all my teachers have I obtained intelligence!’ Who is a hero? He who conquers his passions, as it is written [Prov. xvi. 32]: ‘One that is slow to anger is better than a hero; and he that ruleth his spirit, than the conqueror of a city.’ Who is a rich man? He who is satisfied with his lot, as it is written [Ps. cxxviii. 2]: ‘For thou eatest the labor of thy hands: then wilt thou be happy, and it shall be well with thee.’ ‘Wilt thou be happy’ in this world, ‘it shall be well with thee’ in the world to come. Who is honored? He who honors his fellowmen, as it is written [I Samuel ii. 30]: “For those that honor me will I honor, and those that despise me shall be lightly esteemed.’”

MISHNA B. Ben Azai was in the habit of saying: “Hasten to fulfil the commandment of little importance as if it were of much importance, and flee from all manner of sin, for the fulfilment of one precept brings about that of another, and one transgression brings about another; for the reward of virtue is virtue itself, and the reward of sin is sin.” He likewise said: “Despise no man, and consider nothing as too far removed to come to pass; for there is no man but hath his day, and no event that may not come.”

MISHNA C. R. Levitas of Jabneh said: “Be exceedingly lowly of spirit, for the hope of man is the worm.” “R. Johanan b. Baroquah said: “Whoso profanes the name of Heaven in secret, they punish him openly. Error, like design, is punishable as to the profanation of His name.”

MISHNA D. R. Ishmael said: “He that learns in order to teach, they grant him the faculty to learn and to teach; he that learns in order to practise, they grant him the faculty to learn, to teach, to preserve, and to practise.”

MISHNA E. R. Zadoq was in the habit of saying: “Wear not the law of God as a crown to exalt thyself withal, nor use it as a spade to dig therewith (for wealth).” [And thus was Hillel wont to say: “And he who serves himself with the tiara perishes.”] Thus thou art to learn that he who makes use of his learning in the Law to further his own selfish ends loses all merit.

MISHNA F. R. Jose said: “Whosoever honors the Torah is himself held in honor, and whosoever dishonors the Torah is himself dishonored with men.”

MISHNA G. R. Ishmael said: “He that refrains himself from judgment, frees himself from enmity, and rapine, and false swearing; and he that is arrogant in decision is foolish, wicked, and puffed up in spirit.”

MISHNA H. He used to say: “Judge not alone, for none may judge alone save One; and say not, ‘Accept ye my opinion,’ for they are free to choose, and not thou.”

MISHNA I. R. Jonathan said: “Whosoever fulfils the Law in poverty will at length fulfil it in wealth, and whosoever neglects the Law in wealth will at length neglect it in poverty.”

MISHNA J. R. Meir said: “Lessen your business, that you have more time for the study of the Law, and be lowly in spirit unto every man; and if thou idlest away thy time without study of the Law, thou wilt have many idlers against thee; and if thou laborest in the Law, He hath much reward to give unto thee.”

MISH NA K. R. Eliezer b. Jacob said: “He who performs one precept has acquired unto himself one advocate, and he who commits one transgression has gotten to himself one accuser. Repentance and good deeds are as a shield against punishment.”

MISHNA L. R. Jehudah the Sandlar said: “Whatsoever congregation is for the sake of Heaven will in the end succeed; and that which is not for a divine purpose will in the end not succeed.”

MISHNA M. R. Elazar b. Shamna said: “Let the honor of thy disciple be as dear unto thee as the honor of thine associate; and the honor of thine associate as the fear[52] of thy master; and the fear of thy master as the fear of Heaven.”

MISHNA N. R. Jehudah said: “Be careful in thy study, for error in study counts for an intentional sin.”

MISHNA O. R. Simeon was wont to say: “There are three crowns--the crown of the Law, the crown of the priesthood, and the crown of royalty. But the crown of a fair name excelleth them all.”

MISHNA P. R. Nehorai said: “Betake thyself to a place of Torah, and say not that it will come after thee, because thine associates will confirm it unto thee, and (moreover) lean not unto thine own understanding.”

Tosephtha--Aboth of R. Nathan.

[53]“Who is a wise man? he who learns from everybody.” Who is the most modest? One who is as modest as Moses our master was, as it is written [Numb. xii. 3]: “But the man Moses was very meek.” Who is the richest of all? One that is satisfied with his lot, as it is written [Ps. cxxviii. 2]: “When thou eatest the labor of thy hands: (then) wilt thou be happy, and it shall be well with thee.” Who is the greatest of all heroes? One that controls his passion, as it is written [Prov. xvi. 32]: “One that is slow to anger is better than a hero; and he that ruleth his spirit, than the conqueror of a city.” And one that is the ruler of his spirit is considered as if he had conquered a city full of heroes, as it is written [ibid. xxi. 22]: “A wise man scaleth the city of the mighty”; and “mighty” means mighty in the Torah, as it is written [Ps. ciii. 20]: “Mighty in strength, that execute his word.” There are others who say that it means the ministering angels, as it is written [ibid.]: “Bless the Lord, ye his angels, mighty in strength,” etc. There are still others who say that the greatest hero is he who makes his enemy his friend.

“Despise no man.” As it is written [Prov. xiii. 13]: “Whoso despiseth the word shall fall in debt to it; but he that feareth the commandment will be rewarded.”

He also used to say: “One who is taught the Law while young is like unto a heifer which was tamed while yet small, as it is written [Hosea, x. 11]: “And Ephraim is as a well-taught heifer that loved to tread out the corn.” The one who is taught the Torah in his old age, however, is like a cow which was tamed when already old, as it is written [ibid. iv. 16]: “For like an untamable cow is Israel disobedient.”

He also used to say: “He that is taught the Torah in his youth is similar to a woman who kneads her dough with warm water, and one that is taught the Torah in his old age is similar to a woman who kneads her dough with cold water.”

[54]R. Eliezer b. Jacob said: “One that is taught the Law when young is similar to a screed which was written on new paper, and one who is taught the Law when old is similar to a screed which was written on old paper.”

R. Simeon b. Gamaliel adds to the above the following: “One that is taught the Law when young is similar to a young man who marries a young woman; they are suited to and desire each other. One that is taught in his old age, however, is similar to an old man who marries a young woman: she is suitable to him, but not he to her. She desires him, but he avoids her, as it is written [Ps. cxxvii. 4]: “Like arrows in the hand of a mighty man, so are the children of youth”; and immediately after it is written [ibid., ibid. 5]: “Happy is the man that hath his quiver filled with them.”

One that learns and forgets is similar to a woman who bears children but buries them, as it is written [Hosea, ix. 12]: “But though they were to bring up their children, yet would I bereave them, that there should be no man.” Do not read ‏ושכלתים‎ (would I bereave them), but ‏ושכחתים‎(would I forget them). As it is written [Deut. xi. 18]: “Therefore shall ye lay up these my words in your heart,” etc., i.e., the words of the Torah shall be distinguished from each other, and at same time shall be marked upon thee side by side, as it is written [Prov. vii. 3]: “Bind them around thy fingers; write them upon the table of thy heart” (i.e., as the fingers are separate from each other and still side by side of each other), and it is also written [ibid. vi. 21]: “Bind them upon thy heart continually, tie them about thy throat.”

MISHNA Q. R. Janai said: “Neither the security of the wicked nor the afflictions of the righteous are within the grasp of our understanding.”

MISHNA R. R. Mathia b. ‘Heresh was in the habit of saying: “Be beforehand in saluting every man! Be the lion’s tail rather than the fox’s head!”

MISHNA S. R. Jacob said: “This world is, as it were, the antechamber of the world hereafter; therefore, prepare thyself in the antechamber, that thou mayest be admitted into the banqueting hall!”

MISHNA T. He used to say: “Better is one hour of repentance and good deeds in this world than all the life of the world to come, though one hour of refreshment of spirit in the world to come is better than all the life in this world.”

MISHNA U. R. Simeon b. Elazar said: “Do not seek to appease thy friend in the hour of his passion, and do not seek to console him in the hour when his dead is laid out before him; and do not interrogate him in the hour of his vow, and strive not to see him in the hour of his disgrace.”

MISHNA V. Samuel the Little used always to repeat the following passage [Prov. xxiv. 17, 18]: “At the fall of thy enemy do not rejoice, and at his stumbling let not thy heart be glad, lest the Lord see it, and it be displeasing in his eyes, and he turn away from him his wrath.’”

MISHNA W. Elisha b. Abuyah said: “He who learns as a lad, to what is he like? To ink written on fresh paper. And he who learns when old, to what is he like? To ink written on blotted paper.

MISHNA X. R. Jose b. Jehudah, the villager of Babylon,[55] said: “Whom does he resemble, who learns from the young? Him who eats unripe grapes and drinks the wine fresh from the wine-press! But whom does he resemble, who learns from old men? Him who eats ripe grapes and drinks old wine!”

MISHNA Y. Rabbi was in the habit of saying: “Look not upon the pitcher, but upon what it contains. Many a new pitcher is full of old wine, and many an old one does not even hold new wine.”

MISHNA Z. Rabbi Eliezer the Kapar said, “Envy, sensuality, and ambition destroy life.”

MISHNA AA. He likewise said: “Those born unto the world are destined to die; the dead to live on again; and those who enter the eternal life, to be judged. Therefore let it be recognized, understood, and remembered, that He the Almighty, the Creator, Architect, He is the counsellor, He the judge, He the witness, He the accuser. He is always ready to give judgment; blessed be He! for, before Him there is no injustice, no oversight, no regard for rank, no bribery. Know that all will appear in the account! Accept not the assurance of thy passions, that the grave will be a place of refuge for thee. For without thy consent wert thou created, wert born into the world without thy choice; thou art now living without thine own volition, without thine approval thou wilt have to die; so likewise without thy consent thou wilt have to render account before the Supreme King, the Holy One, blessed be He!”

Tosephtha--Aboth of R. Nathan.

[56]Said Elisha b. Abuyah: “A virtuous man who has studied the Law diligently is similar to one who builds a foundation of stones and a superstructure of bricks; though they be inundated, yet they cannot be moved. One who is not virtuous, in spite of having studied the Law, is similar to one who lays stones on a brick foundation: the smallest freshet will overturn the building.”

He used to say: “The former is also similar to lime which is spread upon stones, even heavy rain cannot melt it; and the latter is similar to lime which is spread on bricks, the lightest shower will melt it.”

He also used to say: “The former is also similar to a cup which has a ψηφος (a four-cornered polished stone), even when it is turned over, still some of its contents remain; but the latter is similar to a cup without a ψηφος, as soon as it is turned over, everything in it is spilled.

He used to say: “The former is also similar to a horse which has a complete harness; and the latter is similar to a horse which lacks a bridle: the man who mounts him is soon thrown off.”

He also used to say: One who is taught when young, absorbs the words of the Torah in his blood, and he can utter them explicitly, but the reverse is with one who is taught when old. There is also a proverb to this effect: “If thou hast not desired them in thy youth, how wilt thou reach them in thy old age?”

He also used to say: “The words of the Torah are as hard to purchase as golden vessels, and as easy to lose as glassware, as it is written [Job, xxviii. 17]: ‘She cannot be estimated after gold and glass.’” He brings together gold with glass, as golden vessels when broken can be repaired; but glassware when broken cannot be repaired, unless melted and formed again. And what does it mean: “And not in exchange for her (can) vessels of refined gold (be taken)”? [ibid.]. That the countenance of him who occupies himself with the words of the Torah, and observes them, shines as refined gold; but the countenance of him who occupies himself with them, and does not observe them, becomes dark as glass does.

He also used to say: “It is possible for a man to study the Law continuously for twenty years and forget it in the course of two years.” How so? If he has not gone over what he had learned for six months, he will pronounce the unclean clean, or vice versa. If he has neglected to go over his studies for twelve months, he will confuse the sayings of the sages; in eighteen months, he will forget the beginning of the Tracts; and in twenty-four, even that of the chapters; and finally will have to be silent altogether. Of him said Solomon [Prov. xxiv. 30, 31]: “By the field of a slothful man I once passed along, and by the vineyard of a man void of sense: and, lo, it was all grown over with thorns, nettles had covered its surface, and its stone wall was broken down.” And when the wall of a vineyard falls, the entire vineyard is soon destroyed.

He also used to say: “One who causes his friend to perform a meritorious deed, it is as if be himself had done it.” This can be compared to a human king who caught a bird and gave it to one of his servants, saying: “If thou wilt be careful of this bird, I will reward thee; otherwise, I will take thy life for its.” So also has the Holy One, blessed be He, said to the Israelites: “The words of the Torah which I gave to you, if you will observe them I will reward you; otherwise, I will take your lives for them,” as it is written [Deut. iv. 9]: “For it is not a vain word for you; on the contrary, it is your life.”

Tosephtha--Aboth of R. Nathan.

[57]Ben Azai said: “If the mind is tranquil because of acquired wisdom, it is a good sign;[58] but if made restless by acquired wisdom, it is a bad sign. If the mind is tranquil on account of faith in the Creator, it is a good sign; but if the mind is restless on account of believing in the Creator, it is a bad sign. If one has the sympathies of the sages at the hour of his death, it is a good sign for him; if he has not, it is a bad sign for him. When dying, if his face is turned upward, or he looks straight in the faces of the persons around him, or if his countenance shines, it is a good sign for him. The reverse is unfavorable.”

When R. Johanan b. Zakkai was dying, he raised his voice in weeping. Said his disciples to him: “Master, thou art as a high pillar, the light of the world, a strong hammer--wherefore criest thou?” He answered: “Am I going before a human king? Such a one is angry at me, it can be only for this world; if he imprisons or slays me, it is only for this world. Moreover, I might appease him with words or bribe him with money. But I am going before the King of kings of kings, the Holy One, blessed be He: if He should be angry at me, it includes both worlds, and whom I cannot appease with words or bribe with money. Besides, there are two ways before me: one leads to the garden of Eden and the other to Gehenna, and I do not know whether I will be condemned to Gehenna, or I will enter the Garden of Eden, as it is written [Ps. xxii. 30]: ‘Before him shall bend the knee all that are going down into the dust,’ etc.

It is also written [Ex. xxx. 23]: “And then will I take away my hand”; also [Ezek. ii. 10]: “And he spread it out before me, and it was written within and without,” etc. “Within” means this world; “without” means the world to come. Others say: “Within” means the sufferings of the righteous, and the welfare of the wicked in this world; and “without” refers to the reward of the upright, and the expiation of the wicked in the world to come.

“And there were written therein lamentations, and dirges, and woe” [ibid.]. “Lamentations” refers to the expiation of the wicked in this world, as it is written [ibid. xxxii. 16]: “This is the lamentation wherewith they shall lament for her; the daughters of the nations shall lament for her.” “Dirge”[59] refers to the reward of the upright in the world to come, as it is written [Ps. xcii. 4]: “Upon a ten-stringed instrument, and upon the psaltery; and with the sweet sound[60] of the harp.” “And woe” refers to the expiation of the wicked in the world to come, as it is written [Ezek. vii. 26]: “Mishap shall come upon mishap, and report shall be spread upon report.”

Before he (Rabban Johanan b. Zakkai) died, he said: “Clean the house of all defilement, and put in a chair for Hezekiah, King of Judah.”

He used to say: “Whoever dies with a sound mind, or when yet able to talk, or while conversing about the Law, or while doing something meritorious, or in a state of gladness, or while laughing, it is a good omen for him; if otherwise, it is a bad omen. If one die on the eve of Sabbath, or at the close of the Day of Atonement, it is a good omen for him; but if at the close of the Sabbath or on the eve of the Day of Atonement, it is a bad omen.”

There is a tradition that when R. Eliezer fell ill, it was on the eve of a Sabbath. When R. Aqiba and his comrades visited him, he was sleeping in his chamber; so they stayed in the dining-room. When Hyrcanus his son entered to remove his phylacteries, he was prevented from doing so by his father, who began to cry. He left the chamber, and said to the sages: “My masters, methinks that my father is not clear in his mind.” R. Eliezer, however, overheard him, and rejoined: “My son, it is not I who am not clear in my mind, but thou. For thou hast neglected the lighting of the lamps, for which thou art liable to a death penalty by the hand of heaven, and hast instead occupied thyself with the removal of my phylacteries, for which thou art guilty only because of Shbuth.” When the sages heard that his mind was clear, they sat down at a distance of four ells[61] from his bedside. They inquired of him as to cleanness and uncleanness of many subjects among them; also an amulet or torn phylacteries, are they subject to defilement or not? He answered: “They are. Dip them as they are, and be careful about them, for they form part of the great Halakhoth which were told to Moses on Sinai.” And they kept on asking him concerning cleansing, defilement, and the legal baths, saying: Rabbi, What is this? and, What is that? and he answered accordingly--clean, or unclean.

Then R. Eliezer said to the sages: “I wonder whether the scholars of this generation will be punished with death by the hand of heaven?” They inquired: “Rabbi, why so?” And he rejoined: “Because they have not served me.”

Later on he said to Aqiba b. Joseph: “Aqiba, why hast thou not served me?” He answered: “Rabbi, I had not the opportunity.” And he rejoined: “I wonder whether thou wilt die a natural death.” There are others who say that he did not rejoin anything.

When R. Eliezer spoke thus to his disciples, his blood froze within him. Said R. Aqiba: “Rabbi, what will my death be?” He answered: “Aqiba, thine will be the hardest of all!” Thereupon the latter sat down before him, and said: “Rabbi, now teach me.” And he taught him three hundred Halakhoth concerning a bright spot (in the skin of one’s flesh). At the same time he raised his two arms, and laid them on his breast, saying: “Woe to me! that my two arms, which are like two holy scrolls, must leave this world. If all the seas were ink, and all the reeds were pens, and all mankind were writers, they could not write down everything I have learned and repeated, and what I heard while serving the sages in the college, and I have not left out of the Torah even as much as a drop of the sea. Moreover, I learn three hundred Halakhoth in the verse, ‘Thou shalt not suffer a witch to live’ [Ex. xxii. 17] [there are others who say three thousand Halakhoth], and nobody ever asked me about them, except Aqiba b. Joseph; for he said to me once: ‘Rabbi, teach me how melons are planted, and how they are pulled out.’ I said one thing, and the entire field became covered with melons, He then said: ‘Rabbi, thou hast taught me their planting; teach me also how they are pulled out.’ And I said one thing, and all the melons were gathered together in a heap.”

R. Elazar b. Azariah inquired of him as to cleanness and uncleanness of many subjects, and he answered: “It is clean,” or “unclean,” accordingly, correctly; and when answering of one thing that it was clean, his soul left him while saying “clean.” Whereupon R. Elazar b. Azariah rent his garments, and, weeping, went out and told the sages: “My masters, come and see R. Eliezer, who is clean for the world to come, because his soul left him while saying ‘clean.’”

After the Sabbath, R. Aqiba came and found his coffin while being borne from Cesarius to Luda; he immediately rent his garments, and tore his hair till the blood flowed and dropped to the ground. He wept and cried: “Woe to me! Rabbi, because thou hast died. Woe to me! my master, because thou hast left the whole generation as an orphan.” When standing in line he said: “‘My father, my father, the chariot of Israel and its horsemen’ [II Kings, ii. 12], there are many foreign coins which no money-changer can change besides you (i.e., I have many hard questions of law which cannot be solved by any one besides you).”

[62]“Ben Azai said: ‘Hasten to,’” etc. He used to say: If thou hast performed a meritorious deed, and art not sorry for it, it will draw many meritorious deeds in its train; but if one transgresses, and is not sorry for it, it will draw many sins in its train. For one meritorious deed draws another, and one transgression draws another in its train, as the reward for a meritorious deed is the performance of another, and the punishment for a transgression is a transgression.”

He also used to say: “Set something apart for charity, before you are compelled to do so by others, so that you get the reward of both the charity and the setting it apart, and not that the reward for the latter shall go to the one who compelled you to do it.”

He also used to say: “Lower thy seat two or three rows, from the place you intend to occupy. For it is better thou shalt be told to ascend than to descend, as it is written [Prov. xxv. 7]: ‘For better it is that it be said unto thee, Come up higher, than that thou shouldst be put lower in the presence of the prince.’”

There are three persons whose life is not worth living: one who must eat at the table of others; one who lives in an attic; and one whose wife dominates over him. There are others who say: One who suffers in his body.

He used to say: “It is easier to rule the whole world than to associate and discuss with hypocrites.”

Tosephtha--Aboth of R. Nathan.

[63]R. Aqiba said: “The safeguard for honor is refraining from laughter; the safeguard for wisdom is silence; the safeguard for vows is abstinence; that for cleanness is holiness; and that for meekness is the fear of sin.”

He used to say: Do not mingle with the scoffers, for thou mayest learn their doings; do not eat with an ignorant priest, for thou runnest the risk of desecration. Be not free with vows, lest thou wilt trespass upon oaths; do not get into the habit of dining sumptuously, for this may bring thee to eat the bread of charity; do not come to a doubt (upon slight evidence), and it will prevent thy coming to a certainty (upon scant proof); and do not go to a foreign country, for thou mayest be compelled to follow the ways of idolaters. So also said David [I Sam. xxvi. 19]: “Because they have driven me out this day so that I cannot attach myself on the inheritance of the Lord, saying, Go, serve other gods.” Canst thou for a moment think that King David was an idolater? He only meant to infer that he who leaves Palestine and goes to a foreign country is considered as if he were an idolater.

He also used to say: “Whoever is buried in other countries, it is as if he were buried in Babylon; whoever is buried in Babylon, it is as if he were buried in Palestine; whoever is buried in Palestine, it is as if he were buried under the altar, because the whole (soil) of Palestine is fit for an altar; and whoever is buried under the altar, it is as if he were buried under the throne of glory, as it is written [Jer. xvii. 12]: ‘A throne of glory, exalted from the beginning, is the place of our sanctuary.’”

He used to say: “The ignorant can never be truly pious.”

He also used to say: “Why do disciples die while young? Not because they are adulterers, or robbers, but because they interrupt their studies, and occupy themselves in idle conversation, and also because they do not begin again where they stopped.”

R. Simeon b. Elazar said: “The Israelites who live outside of Palestine are unconsciously worshipping idols. How so? And idolater gives a feast in honor of his son, and he invites all the Jews of the place, and although they eat and drink of their own, and their own servants wait on them, yet it is considered as if they had eaten the sacrifices of the dead, as it is written [Ex. xxxiv. 15]: ‘Any one call thee, and thou eat of his sacrifice.’”

“And contemns festivals.” R. Aqiba said: “Whoever marries a woman not suitable to him transgresses five negative commandments; for ‘thou shalt not avenge,’ ‘nor bear any grudge’ [Lev. xix. 18]; for ‘thou shalt not hate thy brother in thy heart’ [ibid., ibid. 17]; for ‘thou shalt love thy neighbor as thyself’ [ibid., ibid. 18]; and [Lev. xxv. 36] ‘that thy brother may live with thee’: as he hates her, he desires her death, consequently he abolishes the commandment of the multiplication of mankind.”

He also used to say: “Whoever eats unhealthy food transgresses thrice: he despises himself, as well as the food, and pronounces a benediction upon unwholesome things.”

R. Jehudah b. Ilai said: “When one dies and leaves a son, who did not care to learn the Torah from him, and he goes and learns it from others, his only desire is to be flattered (and as the father was too proud to flatter, therefore be did not have the merit of teaching his son).”

R. Elazar the Kapar said: “Do not be as the lintel, which no hand can reach; neither as the upper cross-beam, on which the engravings are defaced; and not as the middle threshold, at which sometimes the feet strike; but as the lowest one, on which every one steps, and which, when in the end the entire building is demolished, is still left in its place.”

Tosephtha--Aboth of R. Nathan.

[64]R. Jose said: Whoever venerates the Torah is himself honored by the people, as it is written [I Sam. ii. 30]: “For those that honor me will I honor, and those that despise me shall be lightly esteemed.” “Those that honor me” refers to Pharaoh, King of Egypt, who honored the One who said, “Let there be the world,” and went out at the head of his court; and when his servant remarked that kings usually went in the rear of’ their court, he answered: Am I then going before a human king? I am going before the King of kings of kings, the Holy One, blessed be He. Therefore the Holy One, blessed be He, also honored him and meted out his retribution Himself, as it is written [Habakkuk, iii. 15]: “Thou didst pass along over the sea with thy horses.”

R. Joshua b. Kar’hah said: “Pharaoh rode into the sea on a stallion, as it is written [Ex. xv. 19]: ‘For the horse of Pharaoh went in,’ etc.; but when his retribution came, it was done with a horse and chariot, as it is written [Habakkuk, iii. 15]: ‘Thou didst pass along over the sea with thy horses,’” etc.

“Those that despise me shall be lightly esteemed,” refers to Sennacherib, who despised the One who said, “Let there be the world”; therefore be was despised by the Holy One, blessed be He, as it is written [Is. xxxvii. 24, 25]: “Through thy servants hast thou . . . till besieged places.” Therefore the Lord punished him through an angel, who shaved his head and beard, and he returned to his kingdom shamefacedly.

“R. Ishmael the son of R. Johanan b. Broka said: ‘Whoever learns for the purpose of teaching,’” etc. He used to say: “Though thou hast not undertaken to accomplish the entire Law, yet thou art not free to neglect it altogether; and the more one occupies himself with it, the more reward he accumulates.”

“R. Eliezer b. Hisma said,” etc. R. Johanan b. Nuri, however, said: “The Halakhoth, the purification, and the law of menstruation and Qinim are the essentials of the Torah.”

He used to say: “The support of the wise, the institution of courts and their maintenance, bring much good to the world.”

R. Johanan b. Dehabai said: “Whoever says this Halakha is not seemly, forfeits his share in the world to come.”

He used to say: “Do not keep away from a precept which has no limit, or from a labor which has no end. This can be compared to one who was hired to take water from the sea and spill it on the land. When, seeing that the sea does not decrease and the land is not submerged, he becomes disgusted and refuses to continue the work, he is to be told as follows: ‘You ignoramus! Why should you become disgusted? Continue your work, and get your pay of a golden dinar every day.’”

“R. Eliezer b. Shamua said: ‘Let the honor of thy disciple,’” etc. Whence do we know that one shall be as particular regarding the honor of his disciple as regarding that of his colleague? From Moses our Master, who said to Joshua: “Choose for us men” [Ex. xvii. 9]. He did not say choose for me, but for us. Infer from this that he regarded him as his equal, although he was master and Joshua the disciple. And whence do we know that one should be as particular regarding the honor of his colleague as regarding that of his master? It is written [Numb. xii. 11]: “Then said Aaron unto Moses, Alas, my lord.” Was not (Moses) his younger brother? Infer from this that he regarded him as if he were his master. And whence do we know that one should be as particular in regard of the honor of his master as regarding that of Heaven? As it is written [ibid. xi. 28]: “And Joshua the son of Nun, the servant of Moses from his youth, answered and said, My lord Moses, forbid them,” We see that Joshua equalled Moses to the Shekhina.

At first they used to say: There is grain in Judea, straw in Galilee, and chaff on the other side of the Jordan; afterward they changed it to: There is no grain in Judea; there is no straw in Galilee, but chaff; and on the other side of the Jordan there is neither.

Tosephtha--Aboth of R. Nathan.

[65]R. Nathan said: “There is no love such as the love of the Torah; there is no wisdom such as the wisdom of manners; there is no beauty such as the beauty of Jerusalem; there are no riches such as the riches of Modea; there is no strength such as the strength of Persia; there is no adultery such as the adultery of the Arabians; there is no haughtiness such as the haughtiness of Elam; there is no hypocrisy such as the hypocrisy of Babylon, as it is written [Zech. v. 11]: ‘And he said unto me, To build for it a house in the land of Shinar’; and there is no witchcraft such as the witchcraft of Egypt.”

R. Simeon b. Elazar said: “A sage living in Palestine is praiseworthy. When he leaves it for a foreign country, his wisdom diminishes; and although his wisdom diminishes, still he has preference to a sage who never lived in Palestine. This can be compared to metal of Nadai which is brought to the countries of the sea: although depreciated in its original value, it is nevertheless more valuable than all other iron of the world.”

Rabban Simeon b. Gamaliel said: “Whoever maintains peace in his own household, it is considered as if he maintains it among every one in Israel; and whoso causes envy and contention in his household, it is considered as if he had done so among every one in Israel; for every one is king in his own house, as it is written [Esther, i. 22]: ‘That every man should bear rule in his own house.’”

Rabban Gamaliel said: “The following four regulations of the Romans annihilated the subjugated nations: the unlimited taxes, the high license on bath-houses, and theatres, and grain tithe.”

He used to say: “The words of the Torah are as difficult to acquire as silken garments, and are lost as easily as linen ones. Nonsense and foolish things are easily acquired, but are hard to lose as a sack is; for sometimes one buys a sack in the market for a sela, and uses it for four or five years.”

R. Jehudah the Prince said: “Whoever indulges in the pleasures of this world, the pleasures of the next are withheld from him; but one who does not, will not forego them there.”

He also used to say: “The upright who fare badly in this world can be compared to a cook who prepares a feast for himself: although it had cost him much trouble, still he has done it for himself. The wicked, however, who fare badly in this world, are as the cook who prepared a feast for others: although it had cost him much trouble, nevertheless he has done nothing for himself, but for others.”

He further used to say: “All those things which are done in private shall be done as if they were done publicly.”

“Hillel said: ‘Do not isolate thyself from the community.’” He also used to say: “One who eats much, merely increases his excrement, and who (adds flesh to his body) multiplies worms and moths; but whoever increases his good deeds, secures bodily rest.”

R. Elazar b. Shamua said: “The disciples are divided into three classes: Hewn stones, corner-stones, and a polished stone. A disciple who has studied Midrash, and only knows how to answer the question of the scholar appertaining to Midrash, and answers in that is compared to a hewn stone which has only one surface; one who has studied Midrash as well as Halakhoth, and he is able to answer a scholar in both, is like a corner-stone which has two surfaces; and one who has acquired a knowledge in Midrash, Halakhoth, Agadoth, and Tosephthas, and is enabled to answer in all four branches, is like a polished stone which has four surfaces, one on each of its four sides.”

R. Jehudah b. Ilai said: “Whoever constitutes the Torah as the chief good, and considers worldly affairs as a secondary thing, will attain importance in the world. If, however, he does the contrary, he will become insignificant in the world. This can be compared to a regiment which has to go between two roads, one of fire and the other of snow. If it keeps near that of fire, it will be scorched; and if near that of snow, it will freeze. It is therefore best to go in the middle, and it will thus be guarded from heat and cold.”

Tosephtha--Aboth of R. Nathan.

[66]“R. Simeon b. Elazar (in the name of R. Meir) said: ‘Conciliate not thy friend in the hour of his anger,’” etc. He used to say: “If some of thy neighbors praise, and others reprimand thee, love the latter and hate the former; for the latter are bringing thee to a life in the world to come, and the others are withdrawing thee from it.”

He also used to say: “Wherever a righteous man goes his heart goes along; if he stands still, his heart does so also.”

He further used to say: “One who applies himself to the study of the Law is assisted in his application. However, if he neglects it, he is further prevented from it by such as a lion, wolf, tiger, hyena, and snake; or soldiers or robbers surround and punish him, as it is written [Ps. lviii. 12]: ‘Verily, there is a God that judgeth in the earth.’”

Abba Saul (b. Nanes) said: “The scholars are divided into four classes: One studies, but does not teach others; a second teaches others, but does not study himself; a third one both studies for himself and teaches others; and a fourth neither studies himself nor teaches others. The first class learn a chapter, or two or three, study them repeatedly until they know them by heart, but do not teach them to others; the second learn an entire section two or three times, teach it to others, but not having studied it repeatedly forget it; the third learn one, or two, or even three, entire sections, teach them to others, and study them themselves, and therefore do not forget them; and the fourth class are those who have learned an entire section two or three times, but have not taught it to others, neither have they studied it themselves, and thus they forget it.”

R. Hanania b. Jacob said: “One who keeps awake at night studying the Law, it is a good omen for him; however, if he spends the night only in conversation, it is a bad omen for him.”

R. Jacob b. Hananiah said: “One who is awake by night, but does not study, it were better for him not to have been born.”

R. Elazar the Kapar said: “If one honor his friend for pecuniary considerations, he will in the end be dismissed in disgrace; but if he scorns him for a meritorious purpose, in the end he will be dismissed honorably. Whence is the former deduced? From the case of Balaam the wicked, who honored Balak for a mercenary purpose, as it is written [Numb. xxii. 18]: “And Balaam answered and said unto the servants of Balak: If Balak would give me his house full of silver and gold.” And whence do we know that he was dismissed in disgrace? As it is written [ibid. xxiv. 11]: “And now flee thou to thy place . . . but, lo, the Lord hath kept them back from honor.” Whence is the latter case derived? From that of Moses our master, who scorned Pharaoh for a meritorious purpose, as it is written [Ex. xi. 8]: “And all these thy servants shall come down unto me, and bow themselves down unto me, saying.” Was, then, Pharaoh standing upon the roof, and Moses on the ground? Say, then, that Moses said to Pharaoh: “Even all thy servants who bow before thee on thy altar will come down and entreat me, but I will not listen to them.” And whence do we know that he was dismissed honorably? It is written [ibid. xii. 3 1]: “And he called for Moses and Aaron by night.”

They answered: “Are we, then, thieves, that we shall go out in the night?” Wait till the Holy One, blessed be He, will bring us seven pillars of honors, and accompanied ‘by them we will go forth joyfully and openly, as it is written [Numb. xxxiii. 3]: “On the morrow after the passover-sacrifice the children of Israel went out with a high hand.”

On account of the four different means of forgiveness, R. Mathia b. Heresh went to visit R. Ishmael b. Elazar the Kapar in Ladakia. He interrogated him: “Hast thou heard the four different means of forgiveness on which R. Ishmael used to lecture?” He rejoined: “I have heard they are three, but repentance must be to every one of them.” It is written [Jer. iii. 22]: “Return, ye backsliding children, I will heal your backslidings.” And again [Lev. xvi. 30]: “For on that day shall (the high-priest) make an atonement for you to cleanse you.” Also [Ps. lxxxix. 33]: “Then will I visit with the rod their transgressions, and with plagues their iniquity.” And also [Is. xxii. 14]: “Surely this iniquity shall not be forgiven unto you until ye die.” How can these four contradictory passages be explained? Thus: If one has violated a positive precept, and has repented, he is forgiven immediately--to this case the first passage is applied. If one has violated a negative precept and has repented, the repentance is suspended until the Day of Atonement, when he is forgiven--to this the second passage is applied. If one has committed a sin for which he is liable to Kareth, or death by the court, and has repented, the repentance and the Day of Atonement are suspended until he is cleared by sufferings--to this case the third passage is applied. However, one who has profaned the name of heaven has not the power to repent, and no sufferings clear him, and the Day of Atonement does not atone for him; but repentance and sufferings are suspended, and only death absolves him--to him is applied the last passage.

Issi b. Jehudah said: “Wherefore do scholars die before their time? Not because they commit adultery or robbery, only because they condemn themselves.”

R. Itz’hak b. Pin’has said: “Whoever is versed in Midrash, but not in Halakha, has not tasted of wisdom; and he who is the opposite, has not tasted of the fear of sin.”

He used to say: “One who is versed in Midrash, but not in Halakha, is like unto a strong man, but who is unarmed; one who is the opposite is like an armed weakling. One, however, who is versed in both is like unto a man who is both strong and armed.”

He further used to say: “Be careful in greeting thy neighbors. Do not enter a house of strife, neither strive to see it. Be among thy colleagues, and be thou a head to a fox rather than a tail to a lion.”

Tosephtha--Aboth of R. Nathan.

[67]“R. Nathan b. Joseph said:[68] ’He who neglects the words of the Law on account of his riches, he will finally do so on account of poverty; but he who observes the Law even when he is poor, he will finally do so when rich.’” He used to say: “The consoling of the mourners, the visiting of the sick, and the bestowing of favors bring much good to the world.”

R. Meir said: “One who transgresses one precept doubtfully, it is considered as if he had done it in certainty. How so? One commits a sin and has cognition of it, he brings a sin-offering of the value of a sela, or the tenth part of an ephah of the value of a Dupondius. However, if he is in doubt whether he sinned or not, he must bring a trespass-offering of the value of two selaim. (So is the Law.) Now, let us see. It is certain that goodness of heaven exceeds considerably heavenly chastisement, is there not room to draw an a fortiori conclusion that if chastisement, which is less than goodness, still if one is in doubt whether he did or did not sin, heaven requires him to bring a trespass-offering to pacify his conscience and to be rewarded for bringing the offering, so much the more in case of goodness of heaven which exceeds chastisement, that heaven rewards him in case of doubt as if it were sure that he did it.”

R. Nathan b. Joseph said: There is a case where one transgresses ignorantly, and nevertheless it is considered as if he had done it wantonly. How so? If one has killed a person unawares, and escapes to a city of refuge, and the avenger of the blood find him before he reach the city of refuge and kill him, he is free. However, if one killed a person wantonly, and the avenger of the blood kills him (before the court has pronounced sentence, not heeding the warning of witnesses), it is equal to ordinary murder, although the avenger thought that he might do so as a relative of the murdered person, and he may be killed for the crime. Now let us see: Which is in excess, goodness or chastisement of heaven? Surely the former. Now, if chastisement, which is less, if one commits a sin erroneously, still in such a case, it is considered as if done intentionally, so much the more so in case of goodness which is in excess.

R. Aqiba said: “One who connects himself with transgressors, although he has not done as they did, he is nevertheless punished as they are. However, if he connects himself with the performers of the precepts, although he has not taken part in the performance, he nevertheless is rewarded as they are. How so? When two persons give their testimony that some one has killed a person, and it is found that their testimony is collusive, they are sentenced to death; and as they are brought to the stoning place, somebody comes running up, saying: ‘I know something about these witnesses’; and when his testimony is also found to be collusive, he, too, is sentenced to death; and when he is brought to the stoning place, he wails: ‘Woe to me! had I not come with them, I would not have been sentenced.’ Hence the same a fortiori conclusion stated before must be drawn. If one connects himself with transgressors and it is so, much the more one will be rewarded if he connects himself with performers of precepts.”

R. Simeon said: “The punishment of the liar is that even when he tells the truth he is not believed, as we find with the sons of Jacob, who at first lied to their father, and he believed them, as it is written [Gen. xxxvii. 31]: ‘And they took Joseph’s coat, and killed a he-goat’; also [ibid., ibid. 33]: ‘And he recognized it, and said: It is my son’s coat.’ In the end, however, when they spoke the truth, he did not believe them, as it is written [ibid. XIV. 26]: ‘But his heart remained cold, for he believed them not’; and [ibid.]: ‘And they told him, saying: Joseph is yet alive, and he believed them not.’” There are others who say: “The holy spirit which had left Jacob our father during the absence of Joseph returned to him at that time, as it is written [ibid., ibid. 27]: ‘The spirit of Jacob their father revived.’”

Tosephtha--Aboth of R. Nathan.

[69]R. A’hai b. Joshiah said: “One who buys grain from the market is compared to an infant whose mother died, and which, although nursed by many other nurses, is never satiated. One who buys bread from the market, is comparable to one for whom a grave was dug for interment. One who eats of his own is like an infant reared at the breasts of his mother.”

He used to say: “One who eats of his own, his mind is tranquil; but if he eats of that belonging to his father, mother, or his children, and especially of that belonging to strangers, his mind can never be tranquil.”

Chapter V

MISHNA A. By ten sayings the world was created; and why so? Could it not have been created by one saying? But it was that vengeance might be taken on the wicked, who destroy the world that was created by ten sayings; and to give a goodly reward to the righteous, who maintain the world that was created by ten sayings.

Tosephtha--Aboth of R. Nathan.

“By ten sayings the world was created.” For what purpose is this stated? To teach that if one carries out a precept, or observes one Sabbath, or preserves a soul, it is considered as if he had preserved the entire world, which was created with ten sayings. But he who transgresses once, or violates one Sabbath, or destroys one soul, is considered like unto one who has destroyed the entire world, which was created with ten sayings. And so we find with Cain, who killed his brother Abel, as it is written [Gen. iv. 10]: “The voice of thy brother’s blood (in plural).” He shed only the blood of one person--why is the plural used? Infer from this that the blood of the decedent’s children, grandchildren, and all the descendants which were destined to be descended from him, were all crying before the Holy One, blessed be He.

R. Nehemiah said: “Whence is it deduced that a single person is equal to the whole creation? It is written [ibid. v. 1]: ‘This is the book of the generations of Adam.’ And before that it is written [ibid. ii. 4]: ‘These are the generations of the heavens and of the earth when they were created.’ We see that with reference to the creation of man almost the same wording is used as with reference to the creation of heaven and earth, which goes to show that one is as much as the other. Likewise may be inferred from this, that the Holy One, blessed be He, showed him (Adam) all the generation which were to spring from him, as if they were standing and playing before him.” There are others who say that the righteous only were shown to him, as it is written [Is. iv. 3]: “Every one that is written down into life in Jerusalem.

R. Joshua b. Kar’hah said: “It is written [Ps. cxxxix. 16]: ‘My undeveloped substance did thy eyes see, and in thy book,’ etc. Infer from this that the Holy One, blessed be He, showed unto Adam all succeeding generations, together with their preachers, directors, leaders, prophets, heroes, criminals, and their pious. In this or that generation, such and such a king will reign; in another, a certain sage will exist, etc.”

R. Eliezer the son of R. Jose the Galilean said: “Nine hundred and seventy-four generations before the creation of the world, the Torah was already written and reposing in the lap of the Lord, and sung praises together with the angels, as it is written [Ps. viii. 8, 9]: ‘Then was I near him as a nursling; and I was day by day (his) delight, playing before him at all times; playing in the world, his earth.’ They have compared this to one who desired to engrave many subjects on a piece of wood, and as it was not of sufficient size, he was in despair. What could he do? Let him engrave upon the earth, where he has enough space. So also did the Holy One, blessed be He, whose great name shall be praised for ever and evermore, when He in His wisdom and understanding created the entire world. He created the heavens and the earth in the upper and lower regions, and created in man all that he created in his world: the world contains forests, so also does man, viz., his hair; the world contains evil beasts, so does man, viz., lice; there are thorns in the world, so also are they in man--his ears; there is odor, so also in man--his nose; light--man’s sight; evil-smelling liquids, so also in man--the excretion of the nose; salty water, so also in man--tears; rivers, so also in man--his urine; castles, so also in man--his lips; gates, so also in man--his teeth; sweet water, so also in man--his saliva; stars, so also in man--his cheeks; towers, so also in man--his neck; cathedrals, so also in man--his arms; nails, so also in man--his fingers; a king, so also in man--his head; advisers, so also in man--his kidneys; millstones, so also in man--his stomach; regulations, so also in man--his spleen; manure, so also in man--his belly; pits, so also in man--his navel; spring-water, so also in man--his blood; trees, so also in man--his bones; hills, so also in man--his ashes; a mortar and pestle, so also in man--his knees; horses, so also in man--his legs; hills and valleys, so also in man—when standing he is like a hill and when lying he is like a valley Hence all that which the Holy One, blessed be He, created in His world, He also created in man.”

MISHNA B. Ten generations were there from Adam to Noah, to show how great was His long-suffering; for all the generations were provoking him, till He brought the deluge upon them.

Tosephtha--Aboth of R. Nathan.

[70]“Ten generations were there from Adam to Noah.” For what purpose was this stated? To teach that all these generations persisted in provoking the Lord, nevertheless He did not bring the flood on the world, for the sake of the upright and pious. There are others who say: As long as Methuselah lived, the flood descended not upon the world; and it was even suspended for seven days after his demise; as it is written [Gen. vii. 10]: “And it came to pass, after the seven days.” What seven days? The period of mourning for the upright, who prevented the retribution.

Another explanation is: The above passage teaches that the Holy One, blessed be He, granted them an additional respite, after the original one hundred and twenty years, of seven days, in which time to repent.

Still another explanation is, that the Lord changed the order of the world for seven days, causing the sun to rise in the west and to set in the east, so that perchance they would notice it, become frightened, and repent; however, it had no effect.

Still another explanation is, that the Lord spread His table before them during seven days, and gave them an inkling of what there was in the world to come, so they might reflect and say: Woe to us, for all this good which is lost to us, and for the destruction of our offspring, as it is written [ibid. vi. 12]: And God looked upon the earth, and, behold, it was corrupt.

R. Elazar b. Parta said: “It is written [ibid., ibid. 3]: ‘My spirit shall not always strive for the sake of man.’ It means that the Lord said: ‘I will not judge them until I will double their rewards,’ as it is written [Job, xxi. 13]: ‘They wear out their days in happiness; and in a moment they go down to the nether world.’

R. Jose the Galilean said: “It is written: ‘My spirit shall not always strive.’ It means that the Lord said: ‘I will not equal the evil thoughts to the good thoughts so long as their fate has not yet been sealed.’ After that, however, both are equal in transgression.”

He used to say: “The evil spirit is removed from the upright and the good spirit predominates, as it is written [Ps. cix. 22]: ‘And my heart is deeply wounded within me.’ From the wicked, however, the good thoughts are removed and evil thoughts are given them instead, as it is written [ibid. xxxvi. 2]: ‘Saith vice itself to the wicked, So I feel it within my heart, that he should have no dread of God before his eyes.’ To people of mediocrity both are given: the one who is nearer to the good thoughts is ruled by them, and one who is nearer to the evil thoughts is ruled by them, as it is written [ibid. cix. 31]: ‘For he ever standeth at the right hand of the needy, to save him from those that judge his soul.’”

R. Simeon b. Elazar said It is written [Gen. vi. 3]: ‘My spirit shall not strive,’ etc. This means the Lord said: ‘I will not judge them before I have rewarded the upright.’ This is only as to this world; but as to the world to come, it is written [ibid. cxlvi. 46]: ‘When his spirit goeth forth, he returneth to his (native) earth.’”

R. Aqiba said, of the same verse: “The Lord said: ‘They have not reflected that they are flesh and blood.’ On the contrary, they were haughty, and said unto God: ‘Depart from us’” [Job, xxi. 14].

R. Meir said, of the same verse: “This means that the Holy One, blessed be He, said: ‘This generation said: God does not judge, there is no judge in the world; God has left it.’”

Rabbi said, of the same verse: “This means that the Holy One, blessed be He, said: ‘They have not instituted a Sanhedrin on earth, therefore will I institute for them a Sanhedrin on high.’”

MISHNA C. Ten generations were there from Noah to Abraham, to show how great was His long-suffering; for all the generations were provoking Him till Abraham our father came, and received the reward of them all.

Tosephtha-Aboth of R. Nathan.

[71]“Ten generations,” etc. For what purpose was it necessary to state this? To teach that all these generations have provoked Him, and there was not one who walked in the way of the Holy One, blessed be He, till Abraham our father, as it is written [Gen. xxvi. 5]: “Because that Abraham obeyed my voice . . . and my laws.” Are there then two Laws? Infer from this that the Lord provided Abraham with two reins, which, like two sages, made him understand, advised him and taught him all night, as it is written [Ps. xvi. 7]: “I will bless the Lord, who hath given me counsel: also in the night season my reins admonish me.” And not only that, but Abraham our father was wont to practise charity first and justice afterward, as it is written [Gen. xviii. 19]: “For I know him, that he will command,” etc. When two disputants came before him, and, one of them complained that the other owed him a manah, Abraham was wont to deposit a manah of his own with one of them, and then said: Make your complaints. When he found that one really owed the other, he said to the one with whom he deposited the manah: “Give it to thy neighbor”; and if neither owed the other, he said: “Divide it between yourselves, and depart in peace.” However, David the king practised justice first and charity after, as it is written [II Samuel, viii. 15]: “And David did what was just and right unto all his people.” When two disputants came to him, and one of them claimed that the other owed him a manah, he told them to make their complaints, and after finding one of them liable, he used to give the other the manah; otherwise, he said: “Divide your claims, and depart in peace.”

MISHNA D. With ten temptations was Abraham our, father tempted, and he withstood them all, to show how great was the love of Abraham our father.

Tosephtha--Aboth of R. Nathan.

“With ten temptations,” etc. They are as follows: two at “get thee out of thy country”; two with his two sons; two with his two wives; one with the kings; one at “the pieces”; one at Ur of the Chaldees; and one at the circumcision. Wherefore so many? For the reason that when Abraham our father will claim his reward, the angels shall say: More than us, even more than all of us, is he worthy to receive his rewards, as it is written [Eccl. ix. 7]: “Go, eat with joy thy bread, and drink with a merry heart thy wine.”

In comparison to these ten temptations, the Holy One, blessed be He, performed ten miracles for his descendants in Egypt, and also brought ten plagues (on the Egyptians); and performed ten miracles for the Israelites at the sea, and brought ten plagues on the Egyptians at the sea. The Egyptians roared at them with their voices, so also did the Lord roar at them at the sea, as it is written [Job, xxxvii. 5]: “God thundereth with his marvellous voice.” The Egyptians came to the sea with bows and arrows, so also did the Lord appear, as it is written [Habakkuk, iii. 9]: “Laid quite bare is thy bow”; also [Ps. xviii. 15]: “And he sent out his arrows, and scattered them.” The Egyptians came to the sea armed with swords, so also did the Lord, as it is written [ibid.]: “And he shot forth lightnings, and discomfited them”--lightning means sword, as it is written [Ezek. xxi. 14, 15]: “The sword, the sword is sharpened, and also polished: in order to make a thorough slaughter it is sharpened, in order that it may glitter is it polished.”[72] The Egyptians came armed with spears, so also did the Lord, as it is written [Habakkuk, iii. 11]: “At the shining of the flaming glitter of thy spear.” The Egyptians were proud of their shield and buckler; so was the Lord, as it is written [Ps. xxxv. 2]: “Take hold of shield and buckler, and rise up for my help.” The Egyptians came with sling-stones, but the Lord with hailstones, as it is written [Ps. xviii. 13]: “From the brightness before him his thick clouds passed away (with) hail-stones and coals of fire.”

When our fathers stood by the sea, Moses said to them: “Arise and pass through it!” and they rejoined: “We will not pass, till we see the sea become chips, chips.”[73] Whereupon Moses struck the sea with his staff, and it was converted into chips, as it is written [Habakkuk, iii. 14]: “Thou didst strike through with his own spears the chiefs of his villages.” Again Moses said to them: “Arise and pass through it,” and they rejoined: “We will not pass till the sea becomes a valley.” Moses struck the sea again, and it became a valley, as it is written [Ps. lviii. 13]: “He divided the sea, and caused them to pass through”; also [Is. lxiii. 14]: “As a beast goeth down into the valley.” Moses again urged them to pass through the sea, and they answered: “We will not, till it becomes separated into parts”; as it is written [Ps. cxxxvi. 13]: “To him who divided the Red Sea into parts.” When urged again, they said: “We will not pass till the bottom becomes loamy.” Whereupon Moses struck the sea with his staff, and the bottom became loamy, as it is written [Habakkuk, iii. 15]: “But (thou) didst pass along over the sea with thy horses, over the piled-up billows[74] of great waters.” Again they refused to pass through, until the bottom of the sea should become a desert; and Moses caused it to be so, as it is written [Ps. cvi. 9]: “And he led them through the depths, as through the wilderness.” They refused again until the sea became converted into small particles, and Moses caused it to be so, as it is written [ibid. lxxiv. 13]: “It was thou that didst divide by thy strength the sea.” They again refused until it should become rocky, and Moses caused it to be so, as it is written [ibid.]: “Thou brokest in pieces the heads of the crocodiles on the water,” and that can be broken on rocks only. They again refused until the sea should become dry land, and Moses made it so, as it is written [ibid. lxvi. 6]: “He changed the sea into dry land”; also [Ex. xv. 19]: “But the children of Israel went on dry ground through the midst of the sea.” They refused again until the waters became as walls, and Moses made them so, as it is written [Ex. xiv. 22]: “And the waters were a wall unto them, on their right hand, and on their left.” They still refused till there should be bottles, and Moses complied again, as it is written [ibid. xv. 8]: “The flood stood upright as a wall.”[75] And the infants were drinking oil and honey out of these bottles, as it is written [Deut. xxxii. 13]: “And he made him to suck honey out of the rock,” etc. There are others who say: “Living water issued out of the sea, when they were between the walls, and they drank of it, as the sea water is salty; for it is stated “the flood,” and that means sweet water, as it is written [Songs, iv. 15]: “A well of living waters, and flowing down from Lebanon.” The clouds of glory were above their heads, to protect them from the sun.

R. Eliezer said: “The deep was arched over their heads, while passing through the sea, to save them from pain.” The former and the latter both say: The upper and the lower waters overthrew the Egyptians, as it is written [Ex. xiv. 27]: “And the Lord overthrew the Egyptians in the midst of the sea.”

MISHNA F. With ten temptations did our ancestors tempt God in the wilderness, as it is written [Numb. xxv. 22]: “And have tempted me these ten times, and have not hearkened to my voice.”

Tosephtha--Aboth of R. Nathan.

[76]“By means of ten trials the Holy One, blessed be He, tested our forefathers,” and they were found wanting in all of them. They are as follows: In the wilderness, in the plain, opposite Suph, between Paran and Thophel and Laban and Chazeroth and Di-zahab. “In the wilderness” they made the golden calf, as it is written [Ex. xxxii. 8]: “They have made themselves a molten calf.” “In the plain” they quarrelled with Moses on account of water, as it is written [ibid. xvii. 3]: “And the people thirsted there for water.” “Opposite Suph”--their rebellion at the Red Sea. There are others who say: This has reference to Michah’s graven image. “Between Paran”--where the incident of the spies occurred [Numb. xiii. 3]: “And Moses sent them out from the wilderness of Paran.” “And Thophel” refers to the nonsense (slander)[77] they talked of the manna. “And Laban”--this is the dissension of Korah. “And Chazeroth”--near which place the incident of the quails occurred. All these are seven, and somewhere else it is written [Deut. ix. 22]: “And at Thah’erah, and at Massah, and at Kibroth-hat-thavah.” (Making altogether ten.) What does Di-zahab refer to? Aaron said to them: “Ye have enough of the sin of the gold which ye brought for the calf.”

R. Eliezer b. Jacob said: “This sin with which the Israelites were afflicted, is enough for that time till the resurrection of the dead.”

Ten names of praise are applied to the Holy One, blessed be He: “Adonai,” “Jah,” “Eloim,” “Eloah,” “Eloechu,” “Eloechem,” “El,” “Eheh-ascher-Eheh,” “Shadai,” “Zebaoth.” Said R. Jose: “I do not agree as to the name “Zebaoth,” for it is written [Deut. xx. 9]: “That they shall appoint captains for the armies,” the Hebrew term for “army” being “Zebaoth.” (These being proper names of God, we have not translated them.)

Ten ignominious names are applied to the idols. They are as follows: Abominations, idols, molten images, graven images, false gods, groves, sun-images, Atzabim, Aven, images.

Two signs (the inverted letter Nun) are placed in the Torah at a small section, viz.: “And it came to pass, when the ark set forward,” etc. [Numb. x. 35, 36]. Said Rabban Simeon b. Gamaliel: “It would have been advisable to remove this section and put it in another place. Something like this we find elsewhere [Judges, xviii. 20]: ‘And Jonathan, the son of Gershom, the son of Menasseh,’ was he the son of Menasseh, and not the son of Moses? But because his deeds were not like those of his father Moses, therefore he is traced to Menasseh.”

Likewise we find [Zech. iv. 14]: “These are the two sons of the clear oil, that stand by the Lord of the whole earth.” This refers to Aaron and the Messiah, and we do not know who is more beloved; but, as it is written [Ps. cx. 4]: “The Lord hath sworn, and will not repent of it, thou shalt be a priest for ever.” It is to be inferred from this that the latter is more beloved.

It is said [Ps. lxxx. 14]: “The boar out of the forest doth gnaw at it.” Is it not written out of the river?[78] The difference in the two words implies this: As long as Israel act contrary to the will of the Omnipotent, the idolaters are likened to them as a boar out of the forest, which kills the people, damages the cattle, and is an affliction to mankind. However, when the Israelites act according to the will of the Omnipotent, the idolaters are likened unto them, as the boar out of the river (hippopotamus), which does not kill people, nor injures any creatures. Many words of the Torah are dotted. They are as follows: “May the Lord judge between me and thee” [Gen. xvi. 5]. The second Yod is dotted in the word “ubenecha,” which hints that she (Sarah) applied it to Hagar. Others say she meant those who caused quarrelling between her and him. “And they said unto him, Where is Sarah thy wife?” [ibid. xviii. 9]. The Aleph, Yod, and Vav are dotted to imply that, although they knew where she was, still they inquired after her. “And he perceived not when she lay down, nor when she arose” [ibid. xix. 33]. The second Vav is dotted, to imply that he perceived only when the younger arose. “And Esau ran to meet him, and embraced him, and fell on his neck and kissed him” [ibid. xxxiii. 4]. All the letters of the word “vayishokehu” are dotted, to signify that he was not sincere. R. Simeon b. Elazar said: “It implies, on the contrary, that this kissing was sincere, but all his other acts were insincere.” “And his brothers went to feed his father’s flocks in Shechem” [ibid. xxxvii. 12]. There are dots on the word “eth,” to imply that they did not go to feed the flocks, but to eat, drink, and commit follies. “All that were numbered of the Levites, whom Moses numbered with Aaron” [Numb. iii. 39]. The entire word is dotted, to imply that Aaron was not included in the number. “Or be on a distant journey” [ibid. ix. 10]. The Heh in the word “rechokah” is dotted, to imply that it does not really mean a distant journey, only that he was prohibited from passing the threshold of the outer court (of the Temple). “And we have laid waste (all) up to Naphach, which reacheth unto Medeba” [ibid. xxi. 30]. The Resh in the word “asher” is dotted, to imply that only the idolaters laid waste the countries. Concerning the first day of Tabernacles, it is written [ibid. xxix. 15]: “And a tenth part each.” The Vav of the word “eissoron” is dotted, to imply that there should be only one-tenth part. And, lastly: “The secret things belong unto the Lord out God; but those things which are publicly known belong to us and to our children for ever” [Deut. xxix. 30]. The entire two first words and the Ayin of the third are dotted, to imply that Ezra said: If Elijah will come and question me why I have written thus, will answer: ‘I have already dotted them.’ However, if he will say: ‘Thou hast written well,’ I will erase the dots.”

In the Torah there is written eleven times the word ‏היא‎ (which means “she”), when it ought to be ‏הוא‎ (he). (See Massorah.)

Ten times did the Shekhina descend upon the earth. Once in the Garden of Eden, as it is written [Gen. iii. 8]: “And they heard the voice of the Lord God walking in the garden.” Once in the generation of the (builders of) the tower, as it is written [ibid. xi. 5]: “And the Lord came down to see the city and the tower.” Once in Sodom, as it is written [ibid. xviii. 21]: “And I will go down now, and see if they have done according to the cry against them.” Once in Egypt, as it is written [Ex. iii. 8]: “And I am come down to deliver it out of the hand of the Egyptians.” Once at the sea, as it is written [Ps. xviii. 10]: “And he bent the heavens, and came down.” Once at Sinai, as it is written [Ex. xix. 20]: “And the Lord came down upon Mount Sinai.” Once at the Temple, as it is written [Ezek. xliv. 2]: “This gate shall remain locked, it shall not be opened . . . because the Lord, the God of Israel, hath entered in by it.” Once at the pillar of cloud, as it is written [Numb. xi. 25]: “And the Lord came down in a cloud.” And once when it will come down in the days of Gog and Magog, as it is written [Zech. xiv. 4]: “And his feet will stand on that day upon the Mount of Olives.”

Ten degrees the Shekhina removed itself from one place to another: From the cover to the cherub, as it is written [II Samuel, xxii. ii]: “And he rode upon a cherub, and flew along”; from the cherub to the threshold, as it is written [Ezek. ix. 3]: “And the glory of the God of Israel ascended up from the cherub whereupon it had been, to the threshold of the house”; from the threshold to the two cherubim, as it is written [ibid. x. 18]: “And the glory of the Lord went forth from off the threshold of the house, and halted over the cherubim”; from the cherubim to the roof, as it is written [Prov. xxi. 9]: “It is better to dwell in a corner of a roof”; from the roof to the wall of the outer court, as it is written [Amos, vii. 7]: “And, behold, the Lord was standing upon a wall (made) by a plumbline”; from the wall of the outer court to the altar, as it is written [ibid. ix. 1]: “I saw the Lord standing upon the altar”; from the altar to the city, as it is written [Micah, vi. 9]: “The voice of the Lord calleth unto the city”; from the city to the mount, as it is written [Ezek. xi. 23]: “And the glory of the Lord ascended from the midst of the city, and halted upon the mount,” etc.; from the mount to the desert, as it is written [Prov. xxi. 19]: “It is better to dwell in a desert land”; and once when it ascended on high, as it is written [Hosea, v. 15]: “I will go (hence, and) return to my place.”

A prophet is called by ten different names. They are as follows: Ambassador, faithful, servant, messenger, seer, watchman, man of scrutiny, dreamer, prophet, man of God.

There are ten names for the Holy Spirit, namely: Proverb, metaphor, riddle, word, saying, calling, commandment, prophecy, sacred speech, and vision.

Joy has ten different expressions: Gladness, joy, rejoicing, joyfulness, pleasure, relish, satisfaction, complacency, delight, cheer.

Ten are called “living”: The Holy One, blessed be He, as it is written [Jer. x. 10]: “But the Lord God is the truth: he is the living God”; the Torah, as it is written [Prov. iii. 18]: “A tree of life is she to those that lay hold on her: and every one that firmly graspeth her will be made happy”; Israel, as it is written [Deut. iv. 41: “But ye that cleave unto the Lord your God are alive, every one of you, this day”; good deeds, as it is written [Prov. xi. 30]: “The fruit of the righteous is of the tree of life”; the Garden of Eden, as it is written [Ps. cxvi. 9]: “I will walk before the Lord in the lands of life”; the tree, as it is written [Gen. ii. 9]: “And the tree of life in the midst of the garden”; Palestine, as it is written [Ezek. xxvi. 20]: “But I will bestow glory in the land of life”; charitable deeds, as it is written [Prov. Xii. 28]: “On the path of righteousness there is life”; the wise, as it is written [ibid. xiii. 14]: “The instruction of the wise is a source of life”; light, as it is written [Job, xxxiii. 30]: “In the light of life.”

MISHNA E. Ten miracles were wrought for our fathers in Egypt, and ten by the sea.

MISHNA G. Ten miracles were wrought in the Sanctuary: No woman miscarried from the scent of the holy meat, and the holy meat never stank; and a fly was not seen in the slaughter-house; and an uncleanness befell not the high-priest on the Day of Atonement; and a defect was not found in the sheep, nor in the two loaves, nor in the shew-bread; and rains did not extinguish the fire of the fuel heaped upon the altar, and wind prevailed not against the pillar of smoke; they stood serried, and bowed down at ease; and serpent and scorpion harmed not in Jerusalem, and a man never said to his fellow, “The place is too strait for me to lodge in Jerusalem,”

MISHNA H. Ten things were created at twilight of the eve of Sabbath: the mouth of the earth and the mouth of the well, and the mouth of the ass, and the bow, and the manna, and the rod, and the Shomir worm, and the character and the writing, and the tables. And some say the evil spirits also; and the sepulchre of Moses, and the ram of Abraham our father; and some say the first tongs with which subsequently other tongs were made.

Tosephtha--Aboth of R. Nathan.

[79]Ten miracles were performed for our forefathers in Jerusalem: The holy meat was never spoiled; no woman miscarried from the scent of the holy meat; no one was ever injured; no accident ever happened to any one; no one ever stumbled; no conflagration ever occurred; no rain was ever there; no man ever said: “I could find no oven wherein to roast the paschal lamb”; no man ever said. “I could find no bed wherein to sleep”; no man ever said to another: “I could find no quarters in which to pass the night.”

Jerusalem never was defiled by leprosy, nor condemned as a misled city; no ledges, galleries, or channels could be built on the public streets, because they would form a tent for uncleanness; a corpse could not be left there over night, nor human bones be carried through the streets, and no stranger was permitted to settle within its walls. No graves could be maintained there except those of the house of David and the prophetess Huldah, which existed since the days of the early prophets. It was said that there was a grotto which caused the uncleanness to run into the brook Kidron. No plants must be planted there, and no gardens or parks might be laid out there, except gardens of roses, which existed there since the days of the early prophets. No geese nor hens might be bred there, much less swine; no dung might remain there, because of defilement. A stubborn and rebellious son is not judged there, such is the decree of R. Nathan, for it is written [Deut. xxi. 19]: “Then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place but as they are not his city and place, he cannot be judged. Houses cannot be sold there together with the ground on which they stand. No house can remain as a permanent possession after a twelve-month. No rent may be taken for houses, but it may be for beds and mattresses. Said R. Jehudah: “It is not allowed to take rent even for that.” What did they do with the skins of the holocaust? They were given to the lodging-house keepers. R. Simeon b. Gamaliel said: “The innkeepers were in the inside and the lodging-house keepers on the outside. The innkeepers used to buy sheep, having nice wool, for four to five selahs, and sell them to the Jerusalemites, and made big profits on them.”

One verse says: “In one of thy tribes” [Deut. xii. 14]; and another says: “Out of all your tribes” [ibid., ibid. 5]. The first relates to the tribes of Judah and Benjamin, and the second to Jerusalem, which belongs to all Israel. What belonged to Judah? The Temple Mount, the chambers, and the outer courts; and to Benjamin belonged the Temple, the porch, and the Holy of Holies, and a triangle extended into the part of Judah in which the altar was built. Benjamin was favored, and became the host of the Mightiness, as it is written [ibid. xxxiii. 12]: “And between his shoulders will he dwell.”

Said R. Jehudah: At the time when it became known that the Temple would be built on the boundaries of Judah and Benjamin, they had improved and separated the suburb of Jericho. And who ate its products all these years? The children of the Kenite, the father-in-law of Moses, as it is written [Numb. x. 32]: “It shall be, that the same goodness which the Lord may do unto us will we do unto thee.” However, when the Temple was built, they vacated. And whence do we know that they were sustained by charity? They said: “When the Lord will reveal His Shekhina, He will reward Jethro and his children, as it is written [ibid., ibid. 29]: For the Lord hath spoken (to bring) good upon Israel.” Said R. Simeon: They were prominent men and were proprietors of houses, fields, and vineyards. However, because of the work of the Lord they left everything and went away, as it is written [I Chron. iv. 23]: “There were the potters, and those that dwelt in plantations,” etc. They dwelt with the king in his work. And where did they then go? To Jabez, to study the Torah, and thus have become a people of the Omnipotent. Jabez was a very good and righteous man: he was a truthful man and pious, and occupied himself with the study of the Law; therefore the pious went to a pious.

“Ten miracles were wrought, etc.; and an uncleanness befell not the high-priest on the Day of Atonement”--except R. Ishmael b. Kimchith, who went out to converse with a certain dignitary, and some saliva dropped out of his mouth on his garments; and his brother entered and officiated as high-priest in his stead, and their mother had the satisfaction of seeing her two sons as high-priests on the same day.

The sages saw her, and said to her: “What piety hast thou practised?” And she rejoined: “The ceilings of my house never saw my hair.”

“No woman miscarried.” It never happened that there was anything left of the holy meat; and when they ate too much of it, they drank the waters of Shiloach, which assisted digestion.

“And a defect was not found,” etc. Broken earthen vessels were sunk in the ground.

“And wind prevailed not,” etc. And when the pillar of smoke went up from the sacrificial altar, the smoke went up straight as a staff until it reached the clouds; but the pillar of the incense went up from the golden altar in the direction of the Holy of Holies.

“They stood serried and bowed down,” etc. When the Israelites came up to kneel before their Father in Heaven, it was so that they were compact and no one could put his finger between them, but when kneeling every one had ample space. The greatest wonder of all was, that even when a hundred people entered at once there was no need for the inspectors of the synagogue to proclaim: “Make room for your brother!” (Some think that) the greatest wonder of all was, that when all stood up in prayer they were compact and no one could put his finger between them, but when they bowed there was a space of a man’s height between them.

Said Rabban Simeon b. Gamaliel: Jerusalem is destined that all the nations and kingdoms should be gathered together in it, as it is written [Jer. iii. 17]: “And all the nations shall be gathered unto it, to the name of the Lord”; and further: “Let the waters be gathered together” [Gen. i. 9]. As “the gathering together” there means that all the waters of creation shall be in one place, so also “the gathering together” here means that all the nations and kingdoms shall be assembled in it.

Tosephtha--Aboth of R. Nathan.

[80]“The men of Sodom”--have no share in the world to come, and they are not judged, as it is written [Gen. xiii. 13]: “But the men of Sodom were wicked and sinners before the Lord exceedingly.” “Wicked”--one with another; “sinners”--in consanguinity; “before the Lord”--inasmuch as they desecrated the name of God; “exceedingly”--they did all that intentionally. And it is written [Ps. i. 5]: “Therefore shall the wicked not be able to stand in the judgment, nor sinners in the congregation of the righteous.” The first part of the passage relates to the generation of the flood, and the second to the men of Sodom. R. Nehemiah said: “Even in the congregation of the wicked they are not included, as it is written [ibid. civ. 35]: ‘May the sinners cease from off the earth, and the wicked be no more.’”

Small children of the wicked have no share in the world to come, and are not judged, as it is written [Mal. iii. 19]: “For, behold, the day is coming which shall burn as an oven . . . who will not leave them root or bough.” Such is the dictum of R. Eliezer. R. Joshua, however, said: They are included, and the words, “who will not leave them root or bough,” refer to their own bodies, as it is written [Dan. iv. ii]: “He called with might, and thus he said: Hew down the tree and lop off its branches, strip off its leaves and scatter its fruit”; and further [ibid. 12]: “Nevertheless leave the body of its roots in the earth, but (bound) with fetters of iron and copper.” As in both passages roots are mentioned, and as the roots mentioned there refer to the trunk of the tree, so the roots here refer to the body of man. If so, what do the words, “who will not leave them root or bough,” imply? That no reward shall be found on which they could depend.

Others say: “They are included, and to them refers what is written [Is. xliv. 5]: “This one will say, I belong to the Lord; and the other will call himself by the name of Jacob; and the other will inscribe himself with his hand unto the Lord, and surname himself by the name of Israel.” “This one will say, I belong to the Lord,” refers to the perfectly righteous; “and the other will call himself by the name of Jacob” refers to the small children of the wicked; “and the other will inscribe himself with his hand unto the Lord” refers to the wicked who left off their wickedness, turned back, and repented; and, “and surname himself by the name of Jacob” refers to proselytes.

Korah and his company have no share in the world to come, and are not judged, as it is written [Numb. xvi. 33]: “And the earth closed over them, and they disappeared from the midst of the congregation.” Such is the decision of R. Eliezer. R. Joshua, however, said: “They are included, and the words, ‘The Lord killeth, and maketh alive: he bringeth down to the grave, and bringeth up’ [I Samuel, ii. 6], have reference to them, because here is mentioned the grave, as it is written [Numb. xvi. 33]: ‘And they went down, they and all they that appertained to them, alive into the pit.’[81] Also there it is mentioned. in both cases the bringing up from the grave is included.” Said R. Eliezer to him: “If so, how are we to understand, ‘And the earth closed over them and they disappeared from the midst of the congregation’?” He answered: “We are to understand that they disappeared from the midst of the congregation, but not from the world to come.”

The generation of the desert have no share in the world to come, and are not judged, as it is written [ibid. xiv. 35]: “In this wilderness shall they be spent, and therein shall they die”; and further [Ps. xcv. ii]: “So that I sware in my wrath that they should not enter into my rest.” Such is the dictum of R. Eliezer. R. Joshua, however, said: “They are included, and the words, ‘Gather together unto me my pious servants, who make a covenant with me by sacrifice’ [Ps. l. 5], have reference to them.” Said R. Eliezer to him: “If so, how dost thou explain the words, ‘so that I sware in my wrath’?” He answered that this had reference to the spies, and all equally wicked of that generation. “But,” continued R. Joshua, “I am anxious to know how thou dost apply the words: ‘Gather together.’” “I apply them,” said the other, “to Moses, Aaron, the pious of the generation, and the tribe of Levi.” R. Jose the Galilean said: “They are not included, for it is written [Numb. xiv. 35]: ‘In this wilderness shall they be spent, and therein shall they die’; and further [Deut. xxi. 4]: ‘And they shall break there the neck of the heifer in the valley.’ As the word ‘there’ mentioned here means that it shall die and not be moved from its place, so also the ‘there’ mentioned in that passage means that they shall die and not be moved from their places.” An objection was raised, namely: Is in that passage the word “there” mentioned in connection with the wicked only, and not with the upright? Is it not said [Gen. xlix. 31]: “There they buried Abraham and Sarah his wife”; and further [ibid. 5]: “In my grave, which I have dug for me in the land of Canaan, there shalt thou bury me”; and also [Numb. xx. 1]: “And Miriam died there and was buried there”; and further [ibid. xxxiii. 38]: “And Aaron the priest went up . . . and died there”; and further [Deut. xxxiv. 5]: “And Moses the servant of the Lord died there in the land of Moab, according to the order of the Lord”? Said Rabban Gamaliel: It is written [Deut. xi. 21]: “In order that your days may be multiplied, and the days of your children in the land which the Lord sware unto your fathers to give unto them.” It refers to the resurrection, when the parents and the children both will enjoy the same longevity. R. Jose the Galilean sides with R. Eliezer, and R. Gamaliel sides with R. Joshua.

The ten tribes have no share in the world to come, and are not judged, as it is written [Deut. xxix. 27]: “And the Lord plucked them out of their land . . . and he cast them into another land, as it is this day.” Said R. Simeon b. Jacob: “As the day in which they have rebelled will never return, even so will they not return.” R. Aqiba, however, said: “As the day is first dark and then lightens up, so also their darkness will be followed by light.”

The following seven have no share in the world to come: A scribe, a teacher of little children, even the best of physicians, the city judge, the store-keeper, the beadle, and the butcher.

There are three kings and four commoners who have no share in the world to come. The three kings are: Jeroboam, Achab, and Menasseh; the, four commoners are: Balaam, Doeg, Achitophel, and Gechazi. Said R. Jehudah: Menasseh has already repented, as it is written [II Chron. xxxiii. 13]: “And he prayed unto him, and he permitted himself to be entreated by him . . . and brought him back to Jerusalem, unto his kingdom.” They argued against him thus: “Had the verse stated merely, ‘and brought him back to Jerusalem,’ we would then agree with thee, but since it is added, ‘unto his kingdom,’ it can be said that He returned him to His kingdom, but not to a life in the world to come.”

Said R. Meir: “Absalom has no share in the world to come.” Said R. Simeon b. Elazar: “Achaz, Achaziah, and all the kings of Israel who were wicked have no share in the world to come.” Said R. Johnan b. Nuri: “Also one who pronounces the Name as it is written has no share in the world to come.”

He used to say: “One who scans the Song of Songs (like a secular poem), and one who cannot speak above whispering or has turned yellow in consequence of a wound or recites (in ridicule) the passage, ‘I will put none of those diseases upon them,’ etc. [Gen. xv. 26], has no share in the world to come.” And the sages say: Every disciple who has studied, and then abandons his studies, has no share in the world to come, as it is written [Numb. xv. 31]: “Because the word of the Lord hath he despised”; and further [Jer. ii. 5]: “What fault did your fathers find in me, that they went away far from me?”

R. Meir said: “Whoever does not visit the college which is in his city has no share in the world to come”; and R. Aqiba said: “Also those who do not serve the sages.”

MISHNA I. Seven things mark the clod,[82] and seven there are for the sage. The wise man does not speak before those who surpass him in wisdom and years; he does not interrupt another in his speech, he is not hasty in answering; he does not ask questions rashly; asks with propriety and to the point; speaks first upon the matter first in order, and last upon last; when he does not understand the matter under discussion, he confesses, “I do not understand it”; and admits it when he has been convinced. The opposite of these things mark the clod.

Tosephtha--Aboth of R. Nathan.

[83]There are seven creations of as many grades of importance. The sky is very important; but more important are the stars, because they light up the world. Of a higher grade than the stars are the trees, because they produce fruit, and the stars do not. More significant than the trees are the pernicious winds, because they move hither and thither, and the trees do not. Greater than the pernicious winds is the beast, for the beast is active and eats, which the former cannot do. Of a higher kind of development is man; for man is intellectual, and the beast is not. More excellent than man are the ministering angels; for they are able to traverse from one end of the world to another, which man cannot do.

Man possesses six qualifications three of which belong also to the beast, and three to the angels: Man eats and drinks, multiplies, and excretes just like a beast; but he is endowed with intellect, walks erect, and speaks in the holy language, just as the angels do.

The evil spirits (Shedim; Deut. xxxii. 17) possess six qualifications three of which belong to man, and three to the angels; namely, they eat and drink, multiply, and die as men do; but they have wings, a knowledge of the future, and traverse from one end of the world to another, just as the angels do.[84] There are others who say: They also can assume any shape and form they like, and see but are not seen.

The rabbis taught:[85] There are seven sorts of hypocrites (who try to show themselves as if they were of the true Pharisees), and they are: Shichmi; Niqpi; Qoosai; Medukhia; “What more is my duty, and I will do it?”; Pharisee of love; and Pharisee of fear.

Shichmi--i.e., who acts like Shechem (Gen. xxxiv.), (who allowed himself to be circumcised, not to please God but for his own benefit). Niqpi--i.e., one who walks tiptoe (so that he strikes his feet against stones or other obstacles in the way), in order to show his meekness and thereby attract attention. Qoosai--i.e., one who shows himself as walking with his eyes shut in order not to look upon women, and strikes his head against a wall and bleeds. Such is the interpretation of R. Nahman b. Itz’hak. Medukhia--i.e., who so bends his body while walking that he resembles a pestle. Such is the interpretation of Rabba b. Shila. “What more is my duty,” etc. Why is this hypocrisy? It means that he is boasting of having done every possible good thing, and challenges that he shall be told what more there is to be done and he will do it. “Pharisee of love,” etc. Abayi and Rabha both said to the scholar who repeated this: “Do not place love and fear with the hypocrites, as R. Jehudah said in the name of Rabh: ‘Always shall one occupy himself with Torah and merits even not for the sake of Heaven, for once he makes it his custom to do so he will finally come to do it for the sake of Heaven.’”

Said R. Nahman b. Itz’hak: “That which is hidden (in one’s heart) is only so from human beings, but not from Heaven; and even visible hypocrisy can only be punished by the Upper Court.” Said Janai the king to his wife: “Do not fear of the Pharisees, neither of those who claim to be their opponents; but do fear of the colored ones (who put on false colors), who in reality act like Zimri (Numb. xxv.), and demand the reward of Phinehas.”

There are seven things which, if used moderately, are wholesome to the body, and if in excess, are the reverse: Wine, work, sleep, wealth, travel, warm water, and the letting of blood.

With seven things God created the world. They are as follows: Wisdom, understanding, knowledge, strength, might, kindness, and mercy. And as He has created the world with seven things, so also has He created seven ancestors--three fathers and four mothers.

Seven attributes are serving before the Throne of Grace, viz.: Faithful, Righteous, Justice, Kind, Merciful, Truth, Peace, as it is written [Hosea, ii. 21, 22]: “And I will betroth thee unto me for ever: yea, I will betroth thee in righteousness, and in justice, and in loving-kindness, and in mercy. And I will betroth thee unto me in faithfulness; and thou shalt know the Lord”; and further [Ps. lxxxv. 11]: “Kindness and truth are encountered together; righteousness and peace kiss each other.” And what signifies, “and thou shalt know the Lord”? Any one who is possessed of these attributes has a knowledge of the wisdom of the Omnipotent.

There are seven dwelling-places: The high, the low, the atmosphere, and the four winds. Said R. Meir: There are seven heavens: Curtain, firmament, welkin, dwelling-house, habitation, settled place, nebulæ. Accordingly the earth has seven names: Land, earth, realm, dry land, globe, and nether world. Why is it so named? Because it is seasoned with every thing. Others say, because it destroys all.

“A wise man does not speak before those who surpass him in wisdom and years.” This refers to Moses, as it is written [Ex. iv. 30]: “And Aaron spoke all the words which the Lord had spoken unto Moses, and he did the signs before the eyes of the people.” Now, then, who of the two was competent to speak? Naturally, Moses; for he had the message direct from God, and Aaron only heard it from Moses. But Moses considered that it was not seemly to speak in the presence of his elder brother; he therefore conferred upon Aaron the honor of being speaker.

“Does not interrupt,” etc.--refers to Aaron, as it is written [Lev. x. 19]: “And Aaron spoke unto Moses: Behold, this day have they offered their sin-offering, and their burnt-offering,” etc. He was silent till Moses ceased speaking, and did not even say to Moses to be brief in his utterances. There are others who say that Aaron took him aside and said: “My brother Moses, tithes, which are less important than any other offering, a mourner (before the burial of the dead) is prohibited from eating them; a sin-offering, which is of great importance, so much the more should it be forbidden to him.” And Moses at once admitted that he was right, as it is written [ibid. 20]: “And when Moses heard this, it was pleasing in his eyes,” and in the eyes of the Mightiness.

“And he was angry with Elazar and Ithamar the sons of Aaron” [ibid. 16]. Learn from this that when one teaches his disciples he usually keeps his eyes on the great one, and when he is angry, he turns his anger to the one who is least: for he was angry even with Aaron.

Aaron was older than Moses, and the Lord is greater than Aaron, and why did He not speak to Aaron? Because his other sons did not prevent Nadab and Abihu from committing a sin.

We find with Abraham our father, when he was praying for the men of Sodom, the Holy One, blessed be He, said: “If I find in Sodom fifty righteous within the city, then will I spare the whole place for their sake” [Gen. xviii. 26]. The One who said: “There shall be the world,” very well knew that there were not in Sodom even four or five righteous, only He waited till Abraham finished, and then answered him, as it is written [ibid. 33]: “And the Lord went away when he had finished speaking with Abraham; and Abraham returned unto his place.”

“He is not hasty in answering”--refers to Elihu the son of Barachel the Buzite, as it is written [Job, xxxii. 7]: “I had said, Days shall speak.” Infer from this that they were sitting silently before Job. When he rose, they also arose; when he sat down, they did likewise; when he ate or drank, they did as he did, until Job asked their permission to speak, as it is writ ten [ibid. iii. 1-3]: “And after this time job opened his mouth, and cursed his day. . . . Let that day whereon I was born perish, and the night when it was said, There hath been a male child conceived.” The night when my mother came to my father and told him that she was pregnant shall perish. And whence do we know that they did not all speak at once? As it is written [ibid. 2]: “And Job commenced, and said”; and, “Then answered Eliphaz the Themanite, and said” [ibid. iv. 1]; and, “Then answered Bildad the Shuchite, and said” [ibid. viii. 1]; and, “Then answered Zophar the Naamathite, and said” [ibid. xi. 1]; and, “And Elihu the son of Barachel the Buzite commenced, and said” [ibid. xxxii. 6]. Scripture has enumerated them one by one for the purpose of informing all who come into the world that the wise does not speak before one who is greater than he.

“And does not interrupt another in his speech; asks with propriety”--refers to Jehudah, as it is written [Gen. xliii. 9]: “I will be surety for him.”

“Asks unwarranted”--refers to Reuben, as it is written [ibid. xlii. 37]: “And Reuben said unto his father, thus: Two of my sons shalt thou slay.”

“Speaks first upon the matter which is first in order,”--etc. refers to Jacob. Others say to Rebecca, and still others say to the men of Haran.

“And says: ‘I have not heard it,’ when he actually did not hear”--refers to Moses, as it is written [Numb. ix. 7, 8]: “And these men said unto him . . . and Moses said unto them, Wait ye, and I will hear what the Lord,” etc.

“Admits the truth”--also refers to Moses, as it is written [Lev. x. 20]: “And when Moses heard this, it was pleasing in his eyes.” Also the Holy One, blessed be He, confessed to the truth, as it is written [Numb. xxvii. 7]: “The daughters of Zelophchad speak rightly.”

MISHNA J. Seven kinds of punishments come on account of seven cardinal transgressions. When some men tithe, and some do not tithe, dearth comes from drought; some of them are hungry, and some of them are satiated. When they have not tithed at all, a dearth comes from tumult and from drought. And when they have not separated the first dough, a deadly dearth comes.

MISHNA K. Pestilence comes unto the world for the capital crimes mentioned in the Torah, which are not to be brought before the tribunal,[86] and for the seventh-year fruits.

MISHNA L. The sword comes upon the world for suppression or perversion of judgment, and also for false interpretation of the Law.

MISHNA M. Noisome beasts come into the world for vain swearing, and for profanation of the Name. Captivity comes upon the world for idolatry, for incest and for shedding of blood, and for not observing the Sabbatical year.

MISHNA N. At four seasons the pestilence waxes: in the fourth year, in the Sabbatical year; at the ending of the latter, and at the ending of the Feast in every year--in the fourth, on account of the poor’s tithe in the third; in the seventh, on account of the poor’s tithe in the sixth; and at the ending of the seventh, on account of the fruit of the Sabbatical year; and at the ending of the feast in every year, on account of the largesses of the poor.

Tosephtha--Aboth of R. Nathan.

[87]“Seven kinds of chastisements,” etc. Said R. Jose: Because of the sin of the first dough, there is no blessing in the fruit, and the people are delivered into the hands of their enemies, as it is written [Lev. xxvi. 16]: “And ye shall sow in vain your seed; for your enemies shall eat it.” For the sin of offerings and tithes the heavens withheld the rain and dew, as it is written [Job, xxiv. 19]: “Drought and heat speedily consume the snow waters,” etc.

A plague comes to the world because of the sin of gleanings, forgotten sheaves, the corners and the tithes for the poor.

It happened that a woman who was the neighbor of a landowner sent her two children to glean in his field, but he did not let them. In their absence their mother wished that they return home, thinking they might bring something to eat; and they, too, wished to return home, thinking that their mother might have something to give them to eat. Coming home empty-handed and finding nothing at home to eat, the disappointment and the sorrow all around were so great that all three died in one day. Said the Lord: Ye took away their lives, I also will take away your lives, as it is written [Prov. xxii. 22, 23]: “Rob not the poor, because he is poor, neither crush the afflicted in the gate; for the Lord will plead their cause, and despoil the life of those that despoil them.”

“The sword comes upon the world,” etc. When R. Simeon b. Gamaliel and R. Ishmael b. Elisha the high-priest were seized and condemned to die, and the former was wondering and saying: “Woe to us, that we are to be slain as intentional violators of the Sabbath, idolaters, uncoverers of consanguinity, or blood-shedders.” Said the latter to him: “Dost thou desire that I shall say something before thee?” And he answered: “Say!” Whereupon he said: “Mayhap when thou wert dining poor people came to thy door, but were forbidden to enter by the doorkeeper?” And R. Simeon answered: “By heaven, this was not done. On the contrary, watchmen were placed at my door: when they saw the poor approaching, they brought them to my table and were given food and drink, and they blessed heaven.” “Perhaps when thou wert sitting at the Temple mount and lecturing, and all the multitudes of Israel were sitting before thee, thou hadst become haughty for a moment?” “No, my brother Ishmael, I have never done that; but man should be prepared for affliction (without any reason whatever).”

They then beseeched the executioner in the following manner: One said: “I am a priest, the son of a high-priest. Kill me first, and spare me the pain of seeing my colleague die.” And the other said: “I am a prince, the son of a prince. Kill me first, and spare me the pain of seeing my colleague die.” And he advised them to cast lots. They did so, and it fell on Rabban Simeon b. Gamaliel. Whereupon the executioner took the sword and cut off his head. R. Ishmael held it to his bosom, and wept and cried: “The holy mouth, the truthful mouth, a mouth whence issued precious stones, diamonds, and pearls, who has hidden thee in the dust, and who has filled thy tongue with dust and ashes? Thou art meant in the prophetic exclamation [Zech. xiii. 7]: ‘Awake, O sword, against my shepherd, and against the man whom I have associated with me.’” Scarcely had he finished when also his head was struck off. To them Scripture refers when it is said [Ex. xxii. 23]: “My wrath shall wax hot, and I will slay you with the sword; and your wives shall be widows, and your children fatherless.” As the men are slain, is it not self-evident that the women become widows? (Why, then, does Scripture say: “And your wives shall be widows”?) To convey the idea that they were and were not widows; i.e., there was no evidence that the men were killed, as it happened in Bythar, where not a soul escaped to give evidence of any man’s death, and consequently the women could not marry again. “And the children shall become fatherless” means that they could not inherit the property of their father, for the same reason.

“Captivity comes upon the world,” etc. Because of idolatry, as it is written [Lev. xxvi. 30]: “And I will destroy your high places and [ibid. 33]: “And you will I scatter among the nations and further [Deut. iv. 25]: “When thou begettest children,” etc.; and [ibid. 27]: “And the Lord will scatter you among the nations”; and [ibid. 28]: “And ye will serve their gods, the work of man’s hands.” The Holy One, blessed be He, said: “As you are desirous of being idolatrous, I will exile you to a place where idolatry prevails.”

For not observing the Sabbatical year. Whence do we know this? It is written [Lev. xxvi. 34]: “Then shall the land satisfy its Sabbaths,” etc. Said the Holy One, blessed be He: “Because ye do not observe the Sabbatical year, the land itself will observe it; and the number of months that ye fail to observe it, the land itself will observe it.” For that reason it is written [ibid.]: “Then shall the land satisfy its Sabbaths, all the days of its desolation.”

Tosephtha--Aboth of R. Nathan.

[88]Five are not to be forgiven: The one who sins relying that he will repent, and repents and sins again (and thus he sins too much and repents too much); the one who sins relying upon the forgiveness of the day of atonement; and the one who instigates others to sin; and the one who is guilty of profaning the Holy Name. And were it not for the sins of mankind, the keys to the mysteries would have been intrusted to man, and he would know by what means earth and heaven were created and also what there is above. R. Aqiba used to say: “Everything is foreseen and unconcealed, and everything is according to one’s understanding.” He also used to say that everything was given as a pledge, and a net is spread out for all living, etc. The repentance of the wicked delays the execution of their judgment; their verdict, however, remains sealed until they make restitution. The quietness of the wicked (without having remorse) ends badly. Superiority buries its claimers.

A man arrives into this world naked and leaves it in the same state, and it is desirable that the leaving should be as (sinless) as the coming. For profaning the Holy Name there is no repentance pending, and the Day of Atonement does not forgive. Repentance forgives till the day of death, and that day wipes out (all sin). The wicked are paid (in this world) and the upright are given credit (that is to say, the wicked that have studied the Law without performing what is written therein and otherwise have done nothing good, and those upright that have studied the Law with a good intention and have done no evil--these and those are given a small portion of what they earned), and the greater part is counted to them for the future.

R. Elazar b. Zadoq says: The upright in this world can be compared with a tree whose trunk grows on a clean spot, while one of its branches extends over an unclean spot, of which people say: Cut off the branch, and the whole tree will be on a clean spot. The wicked ones can be compared with a tree standing on an unclean spot and extending its branches to a clean spot, in which case, if the branches would be cut off, the whole tree would stand on an unclean spot.

Six different names were applied to the lion: Arjah, Cphir, Lobhi, Laish, Sha’hal, Sha’haz. Six names were applied to the serpent; viz., Na’hash, Soroph, Tanin, Ziphoni, Epheh, Achshubh. Six names were applied to Solomon; namely, Solomon, Jedidiah, Koeleth, Ben Iokoh, Ogur, L’muel.

MISHNA O. Four kinds of views are held by men concerning property. He who says: “What belongs to me shall continue to be mine, and thou shalt keep thine own,” holds the common view. Some consider this the view of the men of Sodom.[89] ”Mine shall be thine, and thine shall be mine,” thus say the ignorant. “Mine shall be thine, and thou shalt also keep thine own,” thus says the magnanimous. “Thine shall be mine, and mine shall continue to be mine,” are the words of the godless.

MISHNA P. There are four kinds of dispositions among men. Some are easily enraged, but as quickly soothed--there the fault is neutralized by the merit. Some are slow to anger, but are calmed only with difficulty--there the merit is counterbalanced by the fault. One is slow to anger and easily pacified--he is of a gentle disposition. Another is easily irritated and hard to soothe--he is a wicked man.

MISHNA Q. There are four kinds of pupils: one understands readily but forgets soon--there the advantage is swallowed by the failing; another grasps but slowly, and seldom forgets--there the failing is outweighed by the talent; a third understands readily and is slow to forget--his is a good portion; a fourth understands slowly and forgets quickly--his is a poor endowment.

MISHNA R. There are four kinds of charity-givers: He who gives but does not care that others should give--his eye is evil towards others (i.e., the charity-giver shall not have the pleasure of doing charity and the poor shall be deprived of it); he who makes others give, but does not give himself, does not make the best use of his own; he who gives, and makes others give, is pious; but he who neither gives nor suffers others to give is a cruel man.

MISHNA S. There are four kinds of visitors of the house of learning: he that goes and does not practise (i.e., he accepts the lessons without any examination or study of them), the reward of going only remains with him; he that practises (i.e., he who studies at home) and does not go, the reward of practice remains with him; he that does both is pious; he that enrols among the college visitors, but neither goes nor practises, is wicked.

MISHNA T. There are four kinds of the disciples of the wise: sponge, funnel, strainer, and sieve; sponge--sucking up all things; funnel--allowing all that is received in the one end to flow out at the other; strainer--letting the wine run through and retaining the dregs; sieve--blowing off the bran and keeping the flour.

MISHNA U. Love, inspired by ulterior motives, dies out when those motives disappear; but love without such motives never fades.

MISHNA V. What love is that which is inspired by ulterior motives? E.g. the love of Amnon and Thamar. And what love is without such motives? E.g., the love of David and Jonathan.

MISHNA W. Whatsoever gainsaying is for the sake of Heaven will have good results, and that which is not for the sake of Heaven will not have the desired result.

MISHNA X. What gainsaying is that which is for the sake of Heaven? E.g., the gainsaying of Hillel and Shammai. And that which is not for the sake of Heaven? E.g., the gainsaying of Korah and his followers.

MISHNA Y. Whosoever causes many to be righteous, sin prevails not over him; and whosoever causes many to sin, they grant him not the faculty to repent.

MISHNA Z. Moses, who was righteous and caused many to become righteous, the righteousness of the many was therefore laid upon him, as it is written [Deut. xxxiii. 21]: “He executed the justice of the Lord, and his judgment with Israel.”

Jeroboam, who on the contrary sinned and caused many to sin, the sin of the many, therefore, was laid upon him, as it is written [I Kings xiv. 16]: “For the sake of the sins of Jeroboam, who did sin, and who induced Israel to sin.”

MISHNA AA. In whomsoever are the following three things, he is a disciple of Abraham, and in whomsoever are the contrary three things, he is a disciple of Balaam.

MISHNA BB. He who possesses a good eye, a modest spirit, and a humble mind is to be counted the disciple of Abraham our father; an evil eye, a haughty spirit, and a bombastic mind is to be counted the disciple of Balaam. And what difference is there between the disciples of Abraham and those of Balaam? The disciples of Balaam go down to Gehenna, as it is written [Ps. lv. 24]: “But thou, O God, thou wilt bring them down into the pit of destruction: let not the men of blood and deceit live out half their days; but I will indeed trust in thee.” But the disciples of Abraham derive benefit in this world and inherit the world to come, as it is written [Prov. viii. 21]: “That I may cause those that love me to inherit a lasting possession; and their treasures will I fill.”

MISHNA CC. Jehudah b. Tema was in the habit of saying: “Be courageous as the panther, light-winged as the eagle, swift as the deer, and strong as the lion, to execute the will of thy Heavenly Father.”

MISHNA DD. He used to say: “Gehenna will be the place for the bold of face, and the Garden of Eden will be that for the shamefaced.”

MISHNA EE. He used to say: “One five years old should study Scripture; ten years--Mishna; thirteen years--should practise the commandments; fifteen years old--should study Gemara; eighteen years old--the bridal; at twenty--pursuits; at thirty--strength; at forty--discernment; at fifty--counsel; at sixty--age; at seventy--hoariness; at eighty--power; at ninety--decrepitude; at one hundred--it is as though he were dead and gone and had ceased from the world.”

MISHNA FF. Ben Bag-Bag said: “Turn it, and turn it again (the Torah), for everything can be found therein. Study it, get old and gray with it, and never depart from it; for there is no better gauge of a moral life than--the Torah.”

MISHNA GG. Ben He-He said: “The reward is commensurate with the affliction.”

Chapter VI

[Wise men have taught in the Mishna tongue. Blessed is He that made choice of them and their Mishna.]

MISHNA A. R. Meir said: “Whosoever is busied in Torah for the love thereof merits many things; and not. only so, but he is worth the whole world, as he is called friend, beloved, loves the Omnipotent and mankind; pleases the Omnipotent and mankind. And it clothes him with meekness and fear, and fits him to become righteous, pious, upright, and faithful; and removes him from sin, and brings him toward the side of merit. And they derive from him the benefit of good counsel, and sound wisdom, understanding, and strength, as it is written [Prov. viii. 14]: ‘Mine are counsel and sound wisdom: I am understanding; mine is might.’ And it gives him kingdom and dominion, and faculty of judgment. And they reveal to him secrets of Torah; and he is made, as it were, a spring that ceases not and as a river that flows on increasing. And he becomes modest and long-suffering, and forgiving of insult, and it magnifies him and exalts him over all things.”

MISHNA B. Said R. Jehoshua b. Levi: “Every day a Heavenly voice goes forth from Mount Horeb, and proclaims as follows: ‘Woe to the creatures for contempt of the Law, for whosoever does not occupy himself in the, Law is called “blameworthy,”‘ as it is written [Prov. xi. 22]: ‘As a golden ring in a swine’s snout, so is a hand some woman that hath thrown off discretion’; and it is also written [Ex. xxxii. 16]: ‘And the tables were the work of God, and the writing, was the writing of God, engraved (charuth) upon the tables.’ Do not read charuth, graven, but cheruth, freedom, for there is no free man but him who is occupied in the study of the Law; as whosoever is occupied in such study, behold he exalts himself, as it is written [Numb. xxi. 19]: ‘And from Mattanah to Nachaliël; and from Nachaliël to Barmoth.’”

MISHNA C. He who learns from his companion one chapter, or one Halakha, or one verse, or one word, or even one letter is bound to do him honor, for thus we find with David, King of Israel, who learned from Achitophel two things only, and nevertheless he named him his master, his guide, and his acquaintance, as it is written [Ps. lv. 14]: “But it is thou, a man my equal, my guide, and my acquaintance.” And is there not an a fortiori conclusion to be drawn from this, that as David, King of Israel, who learned from Achitophel two things only, called him his master, his guide, and his acquaintance, he who learns from his companion one chapter, or one Halakha, or one verse, or even one letter is so much the more bound to do him honor? And honor is nothing but the Torah, as it is written [Prov. iii. 35]: “The wise shall inherit glory”; and also [ibid. xxviii. 10]: “But the men of integrity will inherit what is good”; and good is nothing but the Torah, as it is written [ibid. iv. 2]: “For good information do I give you, my teaching (Torah) must ye not forsake.”

MISHNA D. This is the path of Torah: A morsel with salt shalt thou eat. Thou shalt drink also water by measure (Ezek. v. 11) and shalt sleep upon the ground, and live a life of painfulness, and in Torah shalt thou labor. If thou doest thus, “happy shalt thou be and it shall be well with thee” [Ps. cxxviii. 2]. “Happy shalt thou be” in this world, and “it shall be well with thee” in the world to come.

MISHNA E. Seek not greatness for thyself, and desire not honor. Practise more than thou learnest, and lust not for the table of kings, for thy table is greater than theirs, and thy crown greater than their crown, and faithful is thy taskmaster, who will pay thee the wage of thy work.

MISHNA F. Greater is Torah than the priesthood, and than the kingdom; for the kingdom is acquired by thirty degrees, and the priesthood by twenty-four, and the Torah is acquired by forty-eight. And these are they: by learning, by a listening ear, by orderly speech, by discernment of heart, by reverence, by fear, by meekness, by cheerfulness, by purity, by attendance upon the wise, by discussion with associates, by argumentation of disciples, by sedateness, by Scripture, by Mishna, by moderation of business, limitation of worldly things, by temperance in pleasure, by little sleep, by lessening converse, by reducing merriment, by long-suffering, by a good heart, by faith in the wise, by acceptance of chastisements; he that knows his place, and that rejoices in his portion, and that makes a face to his words, and does not claim merit to himself: he is loved, loves God, loves all creatures, loves righteousness, loves uprightness, loves reproofs, and retires from honor, and does not puff up his heart on account of his learning, and does not rejoice because he is privileged to give decision, bears the yoke with his associates, and inclines him to the scale of Merit, and grounds him upon the truth and upon peace, and concentrates his mind in study, asks and answers, hears and adds thereto; he that learns in order to teach, and learns in order to practise; that makes his master wiser, and that considers what he has heard, and tells a thing in the name of him that said it. Lo, thou hast learned that whosoever tells a thing in the name of him that said it brings redemption to the world, as it is written [Esther, ii. 22]: “And Esther said it to the king in the name of Mordecai.”

Tosephtha--Aboth of R. Nathan.

[90]There are four things which bear good fruit in this world, and yield greater benefits for the world to come, if man observes them. They are honoring of parents, conferring favors, reconciliation of adversaries, and, above all, the study of the Law. There are four things for which one who is guilty of them is punished both in this and in the world to come; namely, idolatry, incest, shedding of blood, and, above all, slander.

A meritorious act has both principal and benefit, as it is written [Is. iii. 10]: “Say ye to the righteous, that be hath done well; for the fruit of their doings shall they eat.” A transgression has principal but no benefit, as it is written [ibid. 11]: “Woe unto the wicked . . . for the recompense of his hands,” etc. According to others, transgressors have benefit, as it is written [Prov. i. 31]: “Therefore shall they eat of the fruit of their own way,” etc.

“One who causes many to be righteous, no sin prevails upon him.” In order that he might not go to Gehenna, while his disciples will enjoy the world to come, as it is written [Ps. xvi. 10]: “For thou wilt not abandon my soul to the grave.” On the other hand, “One who causes others to sin is never afforded the faculty to repent”--also for the reason that the reverse of the above shall not be the case, as it is written [Prov. xxviii. 17]: “A man oppressed by the load of having shed human blood will flee even to the pit.”

One who says, “I will sin and then do repentance,” is not afforded the opportunity to repent; “I will sin, and the Day of Atonement will atone for it,” or, “I will sin, and the day of death will wipe it out”--it does not do so.

R. Elazar b. Jose says: “One who has sinned and repented, and thenceforward seeks to perfect himself, does not move from his place until he is forgiven; and one who says that he will sin and repent thereafter, he is forgiven only up to three times, and no more.”

“There are four characters among men,” etc. There are four characters among disciples: one who desires to teach and that others shall do likewise, he is of a good disposition; if he desires to teach, but does not like to see others do the same thing, he is of bad disposition. That others shall teach, and not he--this is medium. According to others, this is the character of Sodom (as the Sodomites did not want any one to derive any benefit from them). If, however, he wishes that neither he nor others shall teach, he is decidedly wicked.

There are four characters among those who sit in the house of learning. One who becomes friendly (with the sages who study there) and studies with them has a share (with the sages); one who befriends himself but does not study with them has no share; one who estranges himself (from the sages) but studies himself has a share; and the one who both estranges himself and does not study has no share.

One who propounds questions and gives their answers has a share (in the world to come); one who only questions has none; one who sits and keeps silent has a share. One who befriends himself in order that he might listen and learn has a share; if he befriends himself in order that others might say that he befriends himself and sits before a wise man, he has none. If he sits at a distance in order to accord honor to one who is superior to him, he has a share; if, however, the reason is that others might say that he does not need that sage, he has none. One that propounds questions and gives their answers in order that others might say that he propounds questions and gives their answers and serves the scholars, has no share; if, however, he does so in order really to learn something, he has. If he sits silent in order to listen and learn, be has a share; if, however, the purpose is that others might say that he does so, he has none.

“There are four different characters among students,” etc. One resembles a sponge: as a sponge absorbs all liquids, so does that kind of student absorb all that he studies: Scripture, Mishnah, Midrash, Halakhoth, and Agadoth. One is like a sieve: as a sieve passes through the fine flour and retains the coarse particles, so an intelligent student retains what is good in the study and leaves out what is not. One is like a funnel: as it lets in the liquid through one opening and lets it out through the other, so is it with the unintelligent student--what enters his one ear goes out through the other, until all is gone. The fourth student is like a wine-strainer which lets the wine pass through and absorbs the dregs: so also the wicked student forgets the good teachings and retains the bad ones.

R. Eliezer b. Jacob named the last one a horn (which lets in the liquids at one end and lets them out at the other). How so? For instance, a child who is given a pearl, he will drop the latter when given a slice of bread; and when given a potsherd he will drop the bread, and finally he has nothing but the potsherd.

As to disciples, R. Gamaliel the elder compares them to the following four kinds of fish: an unclean, a clean fish, a fish found in the Jordan, and one found in the Ocean. By an unclean fish is meant a disciple of poor intellect, who, notwithstanding his study of Scripture, Mishna, Halakhoth, and Agadoth, still remains poor-minded. By a clean fish is meant a disciple of rich intellect, who studies Scripture, Mishna, Halakhoth, and Agadoth, and develops his mind. By a fish from the Jordan is meant a scholar who has studied all the mentioned subjects, but has not acquired the faculty of answering questions put to him. And by a fish found in the Ocean is meant a scholar who studied all the above subjects and has the ability of answering the questions put to him.

With regard to sight, it may be said that there are four different misfortunes: those that see and are visible, e.g., the wolf, the lion, the leopard, the bear, the hyena, the serpent, robbers, and soldiers (who in time of war commit robbery); those that are visible but do not see, e.g., the sword, the arrow, the spear, the knife, the stick, the lance; those that see but are not visible, e.g., the plague of an evil spirit; and those that neither see nor are visible, e.g., the plague of stomach trouble.

There are four sages: One who sees R. Johanan b. Nuri in his dream may hope to be fearful of sin; R. Elazar b. Azariah--he may hope for riches and greatness; R. Ishmael--he may hope for wisdom; R. Aqiba--he may fear being chastised.

There are other three scholars (regarding dreams): One who sees Ben Azai may hope to be one of the pious; Ben Zoma--he may hope for knowledge; Elisha b. Abuyah--may fear being chastised.

(The same is the case) with the following three books of the prophets: Kings--he may hope for riches, greatness; Isaiah--satisfaction; and Jeremiah--chastisement.

(The same is the case) with the following books of the Hagiographa: Psalms--he may hope to be modest; Proverbs--he may hope for wisdom; and Job--he may fear being chastised.

There are also three things regarding the righteous and the wicked ones (which will be explained in Tract Sanhedrin).

“Every gainsaying,” etc. Every assembly that is for the sake of performing a religious duty remains everlasting; e.g., the Great Assembly. And every assembly which is not for such purpose will finally cease; e.g., the assembly for division [Gen. xi.].

MISHNA G. Great is Torah, that gives life to those who practise it in this world and in the world to come, as it is written [Prov. iv. 22]: “For they are life unto every one of those that find them, and to all his body a healing.” And it is also written [ibid. iii. 8]: “It will be healing to thy body, and marrow to thy bones.” And it is again written [ibid., ibid. 18]: “A tree of life is she to those who lay hold on her, and every one that firmly graspeth her will be made happy.” And again [ibid. i. 9]: “For a wreath of grace are they unto thy head, and chains for thy throat.” And again [ibid. iv. 9]: “She will give to thy head a wreath of grace; a crown of ornament will she deliver to thee.” And again [ibid. iii. 16]: “Length of days is in her right hand; in her left are riches and honor.” And again [ibid. iii. 2]: “For length of days, and years of life, and peace, will they increase unto thee.”

MISHNA H. R. Simeon b. Menassia said in the name of R. Simeon b. Jo’hai: “Comeliness, and strength, and wealth, and honor, and wisdom, and age, and hoariness, and sons are becoming to the righteous, and becoming to the world, as it is written [Prov. xvi. 31]: ‘An ornamental crown is the hoary head, on the way of righteousness can it be found.’ And it is also written [ibid. XX. 29]: ‘The ornament of young men is their strength; and the glory of old men is a hoary head’; and again [ibid. xvii. 6]: ‘The crown of old men is children’s children; and the ornament of children are their fathers’; and again [Is. xxiv. 23]; ‘And the moon shall be put to the blush, and the sun be made ashamed; for the Lord of Hosts will reign on Mount Zion, and in Jerusalem, and before his ancients in glory.’”

S. Simeon b. Menassia said: “Those seven qualities which the wise have reckoned to the righteous were all of them confirmed in Rabbi and his sons.”

MISHNA I. R. Jose b. Qisma said: “Once I was walking by the way and there met a man, and he gave me ‘Peace!’ and I returned him ‘Peace!’ He said to me: ‘Rabbi, from what place art thou?’ I said to him: ‘From a great city of wise men and scribes am I.’ He said to me: ‘Rabbi, should you like to dwell with us in our place? I will give thee a thousand thousand dinars of gold, and goodly stones, and pearls.’ I said to him: I If thou shouldest give me all the silver, gold, and goodly stones, and pearls that are in the world, I would not dwell but in a place of Torah, as it is written in the Book of Psalms by the hand of David, King of Israel [Ps. cxix. 72]: “Better is unto me the law of thy mouth than thousands of gold and silver.” Moreover, in the hour of a man’s decease, not silver, not gold, nor goodly stones and pearls, accompany the man, but Torah and good words alone, as it is written [Prov. vi. 22]: “When thou walkest it shall lead thee, when thou liest down it shall watch over thee; when thou art awake it shall converse with thee.” “When thou walkest it shall lead thee” in this world; “when thou liest down it shall watch over thee” in the grave; “when thou art awake it shall converse with thee” in the world to come; and it is also written [Haggai ii. 8]: “Mine is the silver, and mine is the gold, saith the Lord of Hosts.”‘

Five possessions had the Holy One, blessed be He, in this world, and these are they: Torah, one possession; Heaven and earth, one possession; Abraham, one possession; Israel, one possession; the Sanctuary, one possession. Torah, whence? As it is written [Prov. viii. 22]: “The Lord created 1 me as the beginning of his way; the first of his works from the commencement.” Heaven and earth, whence? As it is written [Is. lxvi. 2] “The heaven is my throne, and the earth is my footstool where is there a house that ye can build unto me? and where is the place of my rest?” And it is also written [Ps. civ. 24]: “How manifold are thy works, O Lord! in wisdom hast thou made them all; the earth is full of thy riches.”[91] Abraham, whence? It is written [Gen. xiv. 19]: “And he blessed him, and said, Blessed be Abram of the most high God, the possessor of heaven and earth.” Israel, whence? As it is written [Ex. xv. 16]: “Till thy people pass over, O Lord, till this people pass over which thou hast purchased.” And it is also written [Ps. xvi. 3]: “In the saints who are on the earth, and in the excellent--in them is all my delight.” The Sanctuary, whence? As it is written [Ex. xv. 7]: “The sanctuary, O Lord, which thy hands have established.” And it is also written [Ps. lxxviii, 54]: “And he brought them to his holy territory, even to this mount, which his right hand had acquired.”[92]

Whatsoever the Holy One, blessed be He, created in this world, He created not but for his glory, as it is written [Ps. xliii. 7]: “Every one that is called by my name, and whom I have created for my glory; whom I have formed; yea, whom I have made.” And it is also written [Ex. xv. 18]: “The Lord will reign for ever and ever.”

R. Hanania b. Aqashia said: “The Holy One, blessed be He, was pleased to give merit to Israel, therefore he multiplied unto them Torah and precepts, as it is written [Is. xlii. 21]: ‘The Lord willed to do this for the sake of his righteousness; therefore he magnifieth the law and maketh it honorable.’”

Tosephtha--Aboth of R. Nathan.

[93]R. Simeon said there are three crowns: the crown of Torah, that of priesthood, and that of kingdom; the crown of a good name, however, is above all. Concerning the crown of priesthood: If one would offer all the gold and silver in the world for it, he could not acquire it, as it was only for Aaron and his children [Numb. xxv. 13].

The same is the case with the crown of kingdom, which cannot be gotten for all the gold and silver in the world, as it was only for David, as it is written [Ezek. xxxvii. 24]: “My servant David will be the prince for ever.” But with the crown of Torah it is different; every one who wants to possess it, he may come and take it, as it is written [Is. Iv. 1]: “Every one of ye that thirsteth, come ye to the water” (meaning the Torah). Occupy thyself with the words of the Torah, and do not occupy thyself with idle things.

It happened to R. Elazar b. Simeon, etc.[94]

Three things were said of charitable men: he who gives charity may be blessed, but if he gives it in the form of a loan is still better; but he, however, who gives one money to do business with, with the understanding that he shall pay him half of the profits, is above all.

There are three different kinds among scholars; one who is able to ask questions and to answer them is a wise one; one who is only able to ask questions but not to answer them is inferior to him; but he who is able neither to ask nor to answer questions is not to be considered at all.

There are three different kinds of sweat that are beneficial to the body: the sweat following a sickness; the sweat produced by a bath; the sweat of labor. The sweat following a sickness is healing, but the sweat produced by a bath has no equal.

There are six kinds of tears: three of them are good and three are bad. Those produced by weeping, smoke, and in the toilet are bad (see Sabbath, p. 355). Those produced by spices, laughing, and by sharp fruit are good.

There are three advantages in an earthen vessel: it absorbs, does not exude, and gives no bad smell to the thing that is in it.

There are three advantages in a glass vessel: it does neither absorb nor exude, and it exposes to view what is therein contained; and keeps warm in a warm temperature, and cold in a cold temperature.

The money that the Israelites carried away from Egypt returned to Egypt, as it is written [Ex. xii. 36]: “And they emptied out Egypt”; and it is also written [Gen. xlvii. 14]: “And Joseph gathered up all the money,” etc.; and it is written [I Kings, xiv. 25, 26]: “And it came to pass in the fifth year,” etc.

The heavenly writing on the tables returned to its origin (see Pesachim, 178).

“R. Jehuda b. Thema said,” etc. He used also to say: Love Heaven, love all the commandments. If you do the least wrong to your companion, it shall be considered by you the greatest wrong; but if you have done him good, though it have been a great deal, you shall consider it little. On the contrary, if your companion has done you the least good, you shall consider it much; and if he has done you a great wrong, consider it little. Be as a tight leather-bag that has no opening to let in the wind. Be prepared to receive affliction, and be forgiving to those who oppress you.

The following articles were made and were hidden: The first tabernacle, and the vessels therein contained; the ark, the broken tables and the receptacle of the manna, the staff, the bottle of the oil of anointment; the staff of Aaron, its buds and blossoms; the garments of the first priests and the garments of the anointed priest. But the mortar of the house of Abtinas, the table, the candelabra of the Temple, the curtain, the golden plate, are still in Rome.

All that the Holy One, blessed be He, created in His world was so created only for His glory, as it is written [Is. xliii. 7]: “Every one that is called by my name, and whom I have created for my glory, whom I have formed-yea, whom I have made”; and it is also written [Ex. xv. 18]: “The Lord will reign for ever and ever.”

R. Hananiah b. Akashia said: The Holy One, blessed be He, desired to reward Israel in the world to come, and therefore He magnified the Law for them and gave them a great number of merits, as it is written [Is. xlii. 21]: “The Lord willed to do this for the sake of his righteousness; therefore he magnifieth the law, and maketh it honorable.”

END OF TRACT ABOTH AND OF ABOTH OF R. NATHAN.

Tract Derech Eretz-Rabba (Worldly Affairs)

Synopsis Of Subjects

Redactors note: for technical reasons, the Synopsis of Subjects for this volume has been moved from its original location in volume one. The page numbers (from volume I) have been retained, hence the gap in page numbers.

OF TRACT DERECH ERETZ-RABBA AND ZUTA RABBA.

CHAPTER II.

OF the Sadducees, common informers, the wicked, the hypocrites, the heretics, the Scripture says, etc. Of the terrifying, the overbearing, the haughty, the barefaced, and of those who develop only their muscular strength, the Scripture says, etc. Of evil-thinkers, story-tellers, tale-bearers, smooth-tongued persons, the Scripture says, etc. Who assaults his neighbor in private, and who insults him in public, etc. Who forestalls fruit, raises the prices, diminishes the measure, accepts payment in large-sized shekels only, and who lives on usury, The following leave no inheritance to their children, etc. The conceited, the slanderers, and those who indulge in obscene language, who are wise in their own eyes, etc. Who lets his young son marry an older woman, and who marries off his daughter to an old man, and who bestows favors upon those who are unworthy, etc. Who betrays his partner, does not return a lost thing to its rightful owner, loans money to another in order to get possession of his house and field, and who lives immorally with his wife, and maliciously slanders his wife, etc. Who are wronged and do not wrong, who consider themselves contemptible, and who overcome their passion, etc. Who loves his wife as himself, honors her more than himself, who leads his children on the right path, and who marries off his son in due time, etc. Who loves his neighbor, loans even a small amount to a poor man, etc. Who truthfully repent, who receive the repentant into their midst, who judge rightfully, reprove truthfully, propagate purity, are pure of heart, are merciful, distribute charity, exert themselves in the study of the Law. Search for an opportunity to do good, pursue righteousness, etc. On account of the following four things an eclipse of the sun occurs, etc. On account of the following four things an eclipse of both the sun and the moon occurs, etc. On account of the following four things the estates of the citizens are destroyed, etc. Do not fret thyself to be equal to the evil-doers. There is no sitting above, neither is there eating, etc.

CHAPTERS III. TO VI.

ONE who bears in mind the following four things, etc., will never sin. Think of a big palace in the centre of which the vat of a tanner is placed. If a man allows his lips to pass only respectable words. Be careful, each of you, in honoring your neighbor. Be always pleasant at your entering and at your leaving. The angels, Abraham, and Lot. It is customary that, when entering, the master of the house enter first and the guest after him; the reverse when leaving. Never shall a man enter the house of his neighbor without permission. The philosopher, Rabban Gamaliel, and his comrades. Always consider strangers as burglars, and at the same time honor them as if each of them were R. Gamaliel himself. One who enters his neighbor’s house shall do what he is told by the host (provided it is legitimate). The legend about Simon b. Antiptaris, his guests, and R. Jehoshua. A man shall never be angry at his meals. Always shall a man try to agree with the majority of the people. Hillel the Elder, his wife, and the poor man. One shall not begin to eat the heads, but the leaves, of garlic or onions.

CHAPTERS VII. TO IX.

WHEN two are sitting at the table, the elder one commences to eat first and the younger one after him. One shall not eat before the fourth hour. One who enters a house shall not ask for food, but shall wait until he is invited. One should not offer presents to his neighbor, knowing that he would not accept them. When one who does not intend to buy is in the market, he should not ask for the prices, for he misleads the sellers. One should not use a slice of bread to cover therewith a dish. Five things said Rabbi in regard to bread. One who comes to the table to take his meal shall not take his portion and give it to the waiter. Guests must not give anything to the son of the host, etc.

CHAPTERS X. AND XI.

ONE who enters the bath-house may say, etc. How should one conduct himself before bathing? One who is not careful is an ass’s equal; one who eats in the market is a dog’s equal. One must not spit in the presence of his neighbor, even in a bath-house. One shall not greet his neighbor when he is washing himself. He who walks the road. A common informer is considered a murderer. He who hates his neighbor without cause is also considered such. One who sets a definite time for the redemption of Israel through Messiah will have no share in the world to come.

ZUTA.

CHAPTERS I. TO IV.

WHAT are the qualities of sages? Their thought concerning this world. If you have sustained a loss of your property, remember that job, etc. When you hear others insult you, do not answer them. Love the Law; love all creatures and respect them. Love doubtfulness. Keep aloof from everything that. may bring to sin. Keep aloof from grumbling. Seven patriarchs are resting in glory. Let all thy ways be for the sake of Heaven. Do not discuss in the presence of one who is greater than you in wisdom. Accept the words of Law, even when you are in affliction. Be afraid of a light sin. Do not say, “I will flatter this man,” etc. If thou hast done much good to some one, consider it as very little. If others have done thee much wrong, etc. Do not hate the one who reproves thee. Let it be thy habit to say, “I do not know,” The commencement of making vows is the door to foolishness. Fifteen customs are ascribed to the sages. Be as the lower threshhold, upon which all persons tread. The society of scholars is always agreeable. What should one study more--Scripture, Mishnayoth, or Talmud? No pay shall be exacted for teaching. Do not complain of your being less wise than another. Do not complain that another one is beautiful and you are ugly. Let. your ears not listen to vain talk. Be not afraid of the court of justice on earth. If you perform all the commandments with joy, etc. All that is said above is a warning to you.

CHAPTERS V. TO IX

A SCHOLAR must not eat standing, etc., etc. By four things the scholar is recognized, etc. The beauty of wisdom is modesty. The beauty of noble performance is secrecy. Four things are derogatory to scholars, etc. When entering, the greater shall be first, etc. For saying benediction, the greater is first. The first step to sin is in one’s thoughts. A scholar must be careful in his eating, drinking, washing, anointing, etc. After peace but not after war. Rather follow behind a lion than behind a woman. Who respects the sages?, etc. Keep aloof from anger. Love the poor in order that your children shall not come to poverty, etc. If you keep your mouth from slander, you will spend all the days of life in peace. When you see your neighbor has become poor, do not refuse to help him. If you lower yourself, the Lord will lift you up. This world resembles the eyeball of a Man, etc..

THE CHAPTER ON PEACE.

ALTHOUGH evil decrees are enacted, one after another, against Israel, still they endure forever. Seek peace at the place where you are, and if you do not find it, seek it in other places. All manner of lying is prohibited, except it be to make peace between one and his neighbor. Great is peace, in that the covenant of the priests was made with peace. When the Messiah shall come to Israel, he will begin with peace. Great is peace, in that all the benedictions and prayers conclude with peace. He who loves peace runs after peace, offers peace, and answers peace, the Holy One, etc.

Chapter II

Chapter I. belongs to Tract Kedushin, and will be added to that tract.

THE Sadducees, the common informers, the wicked, the hypocrites, the heretics, of them the Scripture says [Job, xiii. 16]: “For a hypocrite cannot come before him”; the terrifying, the overbearing, the haughty, the barefaced, those who develop only their muscular strength, of them the Scripture says [Psalms, xxxvii. 17]: “For the ovens of the wicked shall be broken; but the upholder of the righteous is the Lord.” Evil-thinkers, story-tellers, talebearers, smooth-tongued persons, of them the Scripture says [ibid. xxxv. 5]: “May their way be dark and slippery, and may the angel of the Lord pursue them.” Those who assault their neighbor in private and those who insult him in public, those who trifle with majorities, and those who cause quarrels, they will become as Korah and his society, of whom the Scripture says [Numb. xvi. 33]: “And the earth closed over them, and they disappeared from the midst of the congregation.” Those who forestall fruit, those who raise the prices, those who diminish the measure, those who accept payment in large-sized shekels, and those who live on usury, of them the Scripture says [Amos, viii. 7]: “Sworn hath the Lord by the excellency of Jacob. Surely I will not forget to eternity all their works.”

The following leave no inheritance to their children, and if they do leave to their children, nothing of it comes to their grandchildren: viz., those who play at dice, and those who raise tender cattle (in Palestine); those who do business with the money obtained from the fruit of the Sabbatical year, and those who pay with coins (of doubtful genuineness) coming from the sea-countries, and a priest and a Levite who obtained advances on their shares (of heave-offering and tithes), and those who disgrace the Holy Name, of them the Scripture says [Ps. ix. 18]: “The wicked shall return into hell, all the nations that are forgetful of God.” And of them it is also written [Eccles. i. 15]: “What is crooked cannot be made straight.” Those who motion with their hands, stamp their feet, walk on their toes (to show pride), of them the Scripture says [Ps. xxxvi. 12]: “Let not come against me the foot of pride, and let not the hand of the wicked chase me off.” The conceited, the slanderers, those who indulge in obscene language, those who are wise in their own eyes, of them the Scripture says [Mal. iii. 19]: “For, behold, the day is coming which shall burn as an oven,” etc,

One who lets his young son marry an older woman, and one who marries off his daughter to an old man, and one who bestows favors upon those who are unworthy, concerning such Scripture says [Deut. xxix. 19]: “The Lord will not pardon him.” The collectors, the war-instigators, the publicans, of them Scripture says [Ezek. xxvii. 27]: “Thy wealth and thy warehouses, thy commerce, thy mariners and thy pilots, thy caulkers and the conductors of thy commerce, and all thy men of war that were in thee, and in all thy assemblage which was in the midst of thee, fell into the heart of the seas on the day of thy downfall.” One who betrays his partner, one who does not return a thing found to its rightful owner, one who loans money to another in order to get possession of his house or fields in case of non-payment, and one who lives immorally with his wife, and one who maliciously slanders his wife in order to divorce her, of them the Scripture says [Jer. xvii. 10]: “I the Lord search the heart, probe the veins.”

Those who are wronged and do not wrong, etc. [see Yomah, p. 33, l. 9]; those who consider themselves contemptible and despicable, those who overcome their passion, and are altogether modest, of them the Scripture says [Is. xlix. 8]: “Thus hath said the Lord, In the time of favor have I answered thee, and on the day of salvation have I helped thee, and I will preserve thee, and I will appoint thee as a people of my covenant to raise up the land, to divide out desolate heritages.” Trustworthy men, those who keep other people’s secrets, those who gladly return articles intrusted to their care, and found things to their rightful owners, of them Scripture says [Ps. ci. 6]: “My eyes shall be upon the faithful of the land, that they may abide with me.” One who loves his wife as himself, who honors her more than himself, and one who leads his children on the right path, and one who marries off his son in due time to prevent him from sin, of them it is written [Job, v. 24]: “And thou shalt know that there is peace in thy tent; and thou wilt look over thy habitation, and shalt miss nothing. And thou shalt know that thy seed is numerous, and thy offspring as the herbage of the earth.”

One who loves his neighbors and is friendly to his relatives, and one who marries off his sister’s daughter, and one who loans even a small amount to a poor man in his need,[95] of them the Scripture says [Is. lviii. 9]: “Then shalt thou call, and the Lord will answer.”

One who executes his trust rightfully,[96] those who truthfully repent, and those who receive the repentant into their midst and instruct them so that they shall not return to their former sins, of them it is written [ibid. 8] Then shall break forth as the morning-dawn thy light.

Those who judge rightfully, those who reprove truthfully, those who propagate purity, and those who are pure of heart, of them it is written [Ps. lxxiii. 1]: “Truly, God is good to Israel, to such as are pure of heart.” Those who sigh, weep, and in their lamentations are hopeful of the redemption of Jerusalem, of them it is written [Is. lxi. 3]: “To grant unto the mourners of Zion, to give unto them ornament in the place of ashes.” Those who are merciful, feed the hungry, quench the thirst of the thirsty, clothe the naked, and distribute charity, of them the Scripture says [ibid. iii. 10]: “Say ye to the righteous that he hath done well.” The poor, the bashful, and those who are humble in spirit, and those who are submissive to youth, and those who carry out their promises, of them the Scripture says [Job, xxii. 23]: “And if thou decree a thing, it will be fulfilled unto thee, and upon thy ways the light will shine.” Those who exert themselves in the study of the Law, and study it for the purpose of observing it, and those who search for the opportunity to do good, and those who frequent the temples, of them the Scripture says [Prov. viii. 24]: “Happy is the man that hearkeneth unto me, watching day by day at my gates, waiting at the posts of my doors.” Those who pursue righteousness, and seek peace for their nation, and those who participate in the affliction of the community, and those who stand by the community in case of distress, of them the Scripture says [Nahum, i. 7]: “The Lord is good, a stronghold on the day of distress.”

On account of the following four things an eclipse of the sun occurs (see Succah, p. 40): When the head of a college (Ab Beth Din) died and was not properly lamented; when a betrothed damsel cried for help (Deut. xxii. 23-28) in town and no one offered help; male sodomy; and the shedding of the blood of two brothers at one and the same time (there is no explanation of this in any of the commentaries, and it seems to us that there happened something like that in the author’s time which is unknown to us).

On account of the following four things the eclipse of both the sun and the moon occurs: Those who write defamatory reports about others, giving false testimony, raising tender cattle, and destroying fruit-bearing trees. On account of the following four things the personal property of citizens is seized by the government: For keeping paid notes (with the intention to demand another payment), for the practice of usury, for not exercising one’s power to prevent sin when he could do so, for subscribing publicly to charity and not paying the subscription.

On account of the following four things the estates of the citizen are destroyed: For robbing or withholding the wages of a wage-earner [Lev. xix. 13]; for removing the yoke from one’s own neck and placing it upon the neck of another, and for haughtiness above all.

R. Dusthai b. R. Jehudah said: Do provoke the wicked (see Megilla, p. 13), as it is written [Prov. xxviii. 41: “They that forsake the law praise the wicked, but such as observe the law contend with them”; but lest one say, is it not written [Ps. xxxvii. 1]: “Do not fret thyself because of the evil-doers, neither be thou envious against the workers of iniquity”? say to him that this is the answer of him whose heart-beating prevents him from doing so (because of this passage), but the true interpretation of this passage is thus: “Do not fret thyself to be equal to the evil-doers, neither be thou envious to be like them of the workers of iniquity.”

There is no sitting above (in heaven), neither is there eating, drinking, sleep, multiplication, animosity, hatred, provocation, envy, nor stubbornness, weariness nor delay, and that is what David the King of Israel said [ibid. xviii. 12]: “He made darkness his hiding-place” (i.e., it is dark and hidden to all mortals). To what end did David say this? To none other than to praise of the Holy One, blessed be He, who is “Yah,” rules on high, whose unity is one, whose name is one, and who rests in three hundred and ninety heavens, and on each His name and mode of pronunciation are marked; and in each of them there are servants, seraphim, ophanim (wheels, Ezek. I.), cherubim, galgalim, and a throne of glory; and there is no wonder at that, for even as a mortal king has many palaces for the seasons of the year, so much the more the Everlasting, since all is His. And when Israel are doing His will, He rests in the seventh heaven, named Araboth, and does not keep distant from His world, as it is written [Numb. vii. 89]: “From between the two cherubim: and thus he spake unto him.” When offended He ascends to the highest heaven, and all cries and weeping are not listened to, and fasts are ordered, and they roll themselves in ashes, cover themselves with sacks, and shed tears (and all in vain, until He has mercy upon them).

Chapter III

BEN AZAI said: One who bears in mind the following four things, and never loses sight of them, will never sin namely, whence he came, and whither he goes, who is his judge, and what will become of him. Whence he came?,--from a place of darkness; and whither he goes?--to darkness. Whence he came?--from a dirty place; whither he goes?--to make unclean every one who will touch him. Whence he came?--from a fetid secretion, and from a place which is invisible to a human being; whither he goes?---to sheol and Gehenna, to be, burned in fire. And who is his Judge? Remember that his Judge is not of flesh and blood, but the Lord of all the creation, blessed be He, before whom there is no, iniquity, no oblivion, no consideration of person, no, bribery. And what will become of him?--worms and maggot, as it is written [Job, xxv. 6]: “How much less the mortal, the mere worm? and the son of earth, the mere maggot?” R. Simeon said: A human being has worms in his body when alive--i.e., lice, and he is converted into a maggot after his death.

R. Eliezer b. Jacob said: Think of a big palace in the centre of which the vat of a tanner is placed: so is a handsome and respected man who lets an unbecoming word pass his lips. If a human being would issue from his body perfume (instead of excrement), how would he pride himself against all other creatures? (So, if this man allows his lips to pass only respectable words, he can pride himself.) When R. Eliezer was about to depart, his disciples paid him a visit and requested him to teach them only one more thing. And he said unto them: Go, and be careful, each of you, in honoring your neighbor; and when you are praying, remember before whom you stand and pray, and for the observation of these you will have a share in the world to come.

Chapter IV

BE always pleasant at your entering and at your leaving. Lessen your worldly business in order to study the law. It happened with R. Simeon b. Elazar, etc. (See Taanith, pp. 52 and 53, for the whole legend repeated here.) How shall one honor his master? (See Yomah, p. 52.) And so also we find with the three angels Gabriel, Michael, and Raphael, who came to Abraham our father. Gabriel’s errand was to destroy Sodom and Gomorrah; Raphael’s was to heal Abraham; and Michael’s, to inform Sarah. And when Abraham saw the angels, the Shekhina came and stood above him, and he addressed the angels, saying: “My masters, wait awhile, until I take leave of the Shekhina, for you also must respect her,” as it is written [Gen. xviii. 3]: “And he said, My Lord, if now I have found favor in thy eyes, pass not away, I pray thee, from thy servant.” And after Abraham took leave of the Shekhina he returned, and bowed to them and brought them under the tree, as it is written [ibid. 4]: “Let a little water, etc., be fetched, and wash, etc.”; And then he said [ibid., ibid.]: “I will fetch a morsel of bread.” Lot, however, said [ibid. xix. 2]: “And tarry all night, and (then) wash your feet?” Some of the anonymous teachers observe that in this very point Lot showed his prudence. He reasoned: If the Sodomites will see them after they have washed their faces, hands, and feet (i.e., I give them shelter overnight), they will kill me, my wife, and my daughters; but let the Sodomites see them with the dust on their feet, they will then think that they have just arrived.

He who accompanies his master ought not to depart from him without permission. When two disciples go or sit together (they need not ask for permission from each other), they are both equal.

It is customary that when entering, the master of the house enters first and the guest after him, and when leaving the house the guest leaves first and the master after him. And he who departs from his comrade, whether his comrade is greater than he or he is greater than his,,, comrade, he must inform him of his leaving. And every one may learn this from the Lord, who said to Abraham, “I leave you,” as it is written [Gen. xviii. 33]: “And the Lord went away when he had finished speaking with Abraham; and Abraham returned unto his place” (from the wording, “and the Lord went away,” it is inferred that He informed him).

Chapter V

NEVER shall a man enter the house of his neighbor without permission, and this conduct may be learned, from the Holy One, blessed be He, who stood at the gate of the garden, and called to Adam [Gen. iii. 9]: “And the Lord God called unto the man, and said unto him, Where art thou?” It happened with the four elders Rabban Gamaliel, R. Jehoshua, R. Elazar b. Azariah, and R. Aqiba, who went to the interior cities of Rome, in one of which there lived a friend of theirs, a philosopher--R. Jehoshua asked Rabban Gamaliel if he would like to go and see their friend the philosopher, and he answered he would not. On the next morning, however, he asked him again, and he said he would. They then went, and R. Jehoshua knocked at the door of the philosopher, and at once the philosopher concluded that this must be the manner of a wise man. When he knocked again, the philosopher arose and washed his face, hands, and feet. When he knocked the third time, the philosopher opened the door, and saw that the sages of Israel were coming from both sides of the street; namely, Rabban Gamaliel being in. the centre, R. Jehoshua and R. Elazar b. Azariah to his right, and R. Aqiba to his left, and the philosopher was somewhat puzzled as to the manner of saluting them. He said within himself: “Whom of the sages shall I greet first? If I should greet R. Gamaliel first, I might thereby offend the other sages; and if I should address my greeting to all of them (without naming the head of them), I will offend R. Gamaliel.” He therefore concluded to address them thus: “Peace to you, sages of Israel, and to R. Gamaliel first.”

Always consider strangers as burglars, and at the same time honor them as if each of them were R. Gamaliel himself. It happened to R. Jehoshua that a man called at his house, and he gave him to eat and drink, and took him up to the roof to sleep there, and then removed the step-ladder leading to the roof. The man was a thief, and arose by night, and took things of value that Rabbi Jehoshua had on the roof and packed them up in his garment, and in the attempt to descend and carry off the booty he fell down and almost broke his neck. When R. Jehoshua came in the morning and found him in that condition, he said to him: “You ignoramus, is this the way people like you do?” He answered: “Rabbi, I did not suspect that persons of your station would remove the ladder.” And he rejoined: “Did you not notice yesterday that I was cautious about you?” From that time on R. Jehoshua proclaimed that always should strangers be considered as burglars, and still one should honor them as he would R. Gamaliel.

Chapter VI

ONE who enters his neighbor’s house shall do what he is told by the host (provided it is legitimate). And it happened that guests came to the house of Simeon b. Antiptaris, and he invited them to eat and drink, and they vowed by the Torah that they would not do so. Nevertheless, they afterwards ate and drank; but when they were about to depart, he punished them with stripes. When this came to the ears of R. Johanan b. Zakkai and the sages, they became angry, and said, “Who will go and inform him of our displeasure?” Said R. Jehoshua: “I will go and investigate.” When he came there he found him on the threshold of his house, and he greeted him, saying: “Peace to you, master”; and he answered, “Peace to you, my master and teacher.” Then Rabbi Jehoshua said: “I need shelter.” And he answered: “Take it here in peace.” They then occupied themselves with the study of the Law until evening. In the morning he told him: “Rabbi, I would like to take a bath.” And he rejoined: “Do as you please.” R. Jehoshua, however, was afraid that he would beat him. When he returned from the bath, they ate and drank. When he desired to leave, he said: “Who will accompany me?” And the host said: “I will.” R. Jehoshua then thought to himself: “What information can I give to the sages who sent me here?” He then looked backward, and when he asked him: “Rabbi, what are you looking for?” he answered: “I would like to question you about one thing. Why did you beat others who came to your house with stripes, and you did not do so to me?” He rejoined: “You are my master. You are a great sage, and of course your manners are refined. The other men, however, that came to me, I told to eat and drink, and they vowed by the Torah that they would not, and afterwards they disregarded their vow; and I have heard from the sages that one who vows by the Torah and disregards his vows is to be punished with forty stripes.” He then answered: “Be thou blessed by Heaven, that thou hast done so. I swear by thy life that he who thus conducts himself deserves that thou give him forty stripes in thy name, and another forty in the name of the sages who sent me to investigate thy method.” R. Jehoshua then came back and informed the sages of what he had discovered in Simeon Antiptaris.

A man shall never be angry at his meals. It happened with Hillel the First that he invited a man to a meal. In the meantime a poor man came and stood at his door, and said to his wife: “I am to marry to-day, and I have nothing in my house.” His wife then took the meal she had prepared for the house, and gave it to him. She then kneaded a new dough, and cooked other dishes, and served them before her husband and the guest. Hillel said then to her: “My child, what is the reason of the delay?” And she related to him what happened. He then remarked: “My daughter, I have also judged you from the favorable side, because it is known to me that all that you do is for the sake of Heaven.”

Corner-tithe for the poor is not set aside in the cooking-pot, but in the dish. It happened with R. Jehoshua, etc. (See Erubin, pp. 120, 121, for the whole legend repeated here.)

Always shall a man try to agree with the majority of the people (this is explained in Khethuboth, p. 16b, and will be translated there). For the first meal-benediction, the hard part and not the soft part of the bread is to be used. Never shall a man hold a slice of bread of the size of an egg and bite from it, and one who does so is called a glutton; and one shall not drain his cup of wine at a draught (see Pesachim, p. 171), and if he does so he is considered a glutton. But how shall he do? If he does it in two draughts, it is respectable; if in three. it is considered putting on airs.

One shall not begin to eat the heads, but the leaves of garlic or onions. If he does so, he also is called a glutton. One shall not drink two cups of wine before the after-meal benediction (and subsequently pronounce the benediction without a goblet, but he shall leave one goblet for the benediction. The commentaries explained this otherwise, the reason being that there should be no “pairs”--see Betzah, p. 49--but we cannot agree with them); if he do so, he can be taken for a glutton.

Chapter VII

WHEN two are sitting at the table, the elder one commences to eat first and the younger one after him; and if the younger commences first, he is a glutton. It happened that R. Aqiba prepared a meal for his disciples consisting of two dishes of meat, one half-roasted and the other one well cooked. The half-roasted was served first; the most sensible of them took the whole piece into his one hand and with his other hand he tried to break off some part of it, but could not, and he placed it back and ate bread alone. One of them, who was less sensible, took the whole piece and bit off a piece. Said R. Aqiba to him: “Not so, my son. Put thy foot on it in the dish, and then you will probably succeed better.” Finally, the well-cooked meat was served, and they ate and were satisfied. Then said R. Aqiba to them: “My children, I did all that to see whether you had refined manners.”

One shall not eat before the fourth hour, neither shall he take a bath prior to that hour. Hot water in large quantities is injurious to one’s body, but in small ones is beneficial. The same is the case with wine. Three things are equal one to the other: wisdom, fear of God, and modesty. One shall not rejoice among those who are weeping, neither shall he weep among those who rejoice; he shall not be awake among those who are asleep, nor shall he sleep among those who are awake; he shall not be standing among those who are seated, nor shall he be seated among those who are standing. This is the rule: One shall not have different manners from those of his friends and of people in general among whom he is.

Chapter VIII

ONE who enters a house shall not ask for food, but shall wait until invited. When the goblet is filled, he shall drink it slowly. What is meant by slowly? If it is a cold beverage--in four draughts; if a warm beverage--in three. Said R. Jehudah: This applies to the goblets of Galilee, but as regards the goblets of Judah, which were larger, he may drink it as slow as he pleases. One must not say to his friend: “Come and eat with me, as I did with you,” for it gives the impression that he wants to repay with interest. In Jerusalem, however, they invited each other in turn. One shall not send to his friend a barrel of wine with oil on the top thereof, because a serious accident may result from it. It actually happened that one invited his friends to his son’s wedding, and when going down to his cellar to get wine, he noticed that the barrel had oil (on the top, and thinking that it was all filled with oil) he hanged himself for shame, and died. Hence the above warning is given.

One should not say to his neighbor, “Take oil from that jug and anoint thyself,” knowing that it is empty (even when knowing that the man has no habit of anointing himself), because he puts the man under obligation to him for nothing. The same holds good of food: one should not ask his neighbor to take a meal with him when he knows that he would not do so. One should also not offer presents to his neighbor, knowing that he would not accept them, for the same reason. One should not serve his neighbor with new wine, telling him that it is old wine, because it is equivalent to robbery (if he takes money from him, and even if he does not take money from him he deceives him). For the same reason, when one serves wine to ass-drivers, he shall not say: “Take it away from this one (whom he does not like), and give it to the other one.” When one is in the grain-market and has no intention of buying, he should not ask for the prices, for he misleads the sellers.

Chapter IX

ONE should not use a slice of bread to cover therewith a dish. One should not wipe the dish with a piece of bread and lay it on the table, for he disturbs the mind of his neighbor. For the same reason, one shall not bite off a piece of bread and place the remainder in the dish intended for another person. One should also not drink from a goblet and give the balance to another one to drink, for it may cause danger to life. It happened that R. Aqiba stopped at the inn of a certain person, who offered him a goblet, first tasting its contents, and R. Aqiba told him to drink the whole of it. He offered him another one, first having tasted it. R. Aqiba told him to drink it all, until Ben Azai said to him: “How long wilt thou continue doing so?” It again happened that R. Aqiba was lodging with a certain person, and he placed a piece of bread underneath the dish to support it, and R. Aqiba took hold of it and swallowed it. Said the man to R. Aqiba: “Rabbi, had you no other bread to eat than that piece with which I supported the dish?” And he answered: “First, I thought that you could burn yourself with lukewarm water (i.e., you will understand a slight hint). Now I see that you cannot burn yourself even with boiling water.” One shall also not empty his cup and then place it on the table, but he shall keep it in his hand until taken away by the waiter.

Five things said Rabbi in regard to bread, namely: Raw meat must not be placed on bread, nor shall a cup or dish be placed on bread, nor shall bread be used to support a dish, nor shall it be thrown from place to place; nor shall one sit at the table when others are eating, for he disturbs their appetite. One who comes to the table to take his meal shall not take his portion and give it to the waiter, for the reason that some unforeseen thing may happen during the meal (and his portion may be needed); but he shall place it in front of him until the end of the meal, and then give it to him. Guests must not give anything to the son of the host, nor to his servant or messenger, without the permission of the host. It happened once with a man who invited three guests in years of famine, that he served them three eggs. The son of the host then came and stood in front of them, and the first guest took his portion and gave it to him, and so did the second and third. When the host returned, and found his son holding one in his mouth and one in each hand, he raised him full height and struck him to the ground, and he died. The mother, hearing of what happened when standing on the roof, was so shocked that she fell down dead. When the father heard this, he also threw himself from the roof, and died. Then R. Elazar said: “Three human beings were killed on account of this.”

Chapter X

ONE who enters the bath-house may say: “Let it be thy will, God my Lord, that thou cause me to come in and go out in peace, that thou cause me to return to my place in peace, and save me from this and from similar peril in the world to come.”

How should one conduct himself before bathing? Thus: He shall first remove his shoes, take off his hat, remove his overcoat, take off his girdle, then take off his shirt, and after all the drawers. After bathing, when a towel is brought to him, he first wipes his head and then the other parts of his body. When the oil is brought to him, he shall first anoint his head and then other members of his body, and then he shall put on first his drawers, then his shirt, the girdle, then he shall wrap himself in his mantle, and then he shall put on his hat, and then his shoes. And if he has his son, his slave, or bondsman, they shall do it for him. Always shall the right shoe be put on first, and then the left one; and when taking off the shoes, the left one shall be taken off first. One who enters a bath-house must not fatigue himself, nor excite himself, but let him be in every respect careful. Said R. Simeon b. Gamaliel: “One who is not careful is an ass’s equal; one who eats in the market is a dog’s equal”; and according to others, he is ineligible to be a witness. In the toilet-room the one who enters must not hurry the one who is sitting there, and the same is in a bath-house. One shall not bring oil into a bath-house in a glass vessel (for it may break and cause injury). One must not spit in the presence of his neighbor, even in a bath-house. The law relating to a bathhouse and toilet may be discussed in the respective places, but other things must not be discussed, not alone in the bathing-room but in the dressing-room, and even when the majority of the persons were dressed as well, because when even a few are undressed all are considered undressed. One shall not greet his neighbor when he is washing himself; and if he does so, the other may answer him that it is a bath-house. According to others, he may answer the greeting, and there is nothing in it. One should not put his foot in a bath-tub when another one is sitting in it, for it is a disgrace for the one bathing.

Chapter XI

HE who walks the road, etc. (See the whole Boraitha in Yomah, pages 27, 28, paragraph: “We have learned according to R. Shila”). One who, soon after returning from the road, takes a bath, gets intoxicated, sleeps on the bare floor, and indulges in congressu feminæ, his blood is on his head (it is equivalent to suicide).[97] He who sells his books, or his daughter, etc. (See Megilla, p. 73.) R. Itzhak says: “A common informer is considered a murderer, as it is written [Lev. xix. 16]: ‘Thou shalt not go up and down as a tale-bearer among thy people.’” R. Eliezer said: “He who hates his neighbor without cause is also considered such, as it is written [Deut. xix. ii]: ‘But if any man be an enemy to his neighbor,’ etc. (i.e., if he is so, he is capable of doing what is further written in the verse).” Ben Azai says: “He who hates his wife is also considered such, as it is written [ibid. xxii. 13 and 14] (i.e., if he hates her he will finally lay an accusation against her, etc., and he will hire witnesses to accuse her with a view to take her life).” R. Jose says: “One who sets a definite time for the redemption of Israel through Messiah will have no share in the world to come. And the same applies to one who hates the scholars and their disciples. The same applies to a false prophet and a slanderer.” R. Meir says: “One who has a house of learning in his town, and is able to go there but does not do so, is not worthy of living, as it is written [Numb. xv. 31]: ‘Because the word of the Lord hath he despised;’ etc.” Haughtiness is equivalent to idolatry, as it is written [Deut. vii. 26]: “And thou shalt not bring an abomination with thy house;” and it is also written [Prov. xvi. 5]: “An abomination of the Lord is every one that is proud of heart.” Since the abomination mentioned in Deuteronomy is idolatry, and the same expression is used in Proverbs, hence we learn that haughtiness is equivalent to idolatry.[98]

Tract Derech Eretz-Zuta

Chapter I

THE qualities of the sages are: Modesty, meekness, eagerness, courage, bearing wrongs done to them, and being endeared to every one; submission to the members of their household, fear of sin, and judging every one according to his deeds.

Their thought concerning this world is: All that is in this world is of no importance to me, for this world is not mine. They are occupied in teaching others, and no one can see in their teaching anything wrong. Their questions are to the point and their answers are according to the Law.

One shall always be like an air-bag which is open to receive the air, and as a deep excavation which preserves the water therein contained, and as a glazed jug that preserves the wine therein; as a sponge that absorbs everything. Be as the lower threshold that all tread upon, and as a nail in the wall that is within the reach of every one to hang his clothes on.

If you have sustained a loss of your property, remember that job lost his property, children, and health. Be careful about all that you see with your eyes, for the principal deception is by the eye. Be careful with your teeth (with your meals), that you should not eat too much. Do not discuss with the Sadducees, that you shall not fall into the Gehenna. When you hear others insult you, do not answer them. If people are praising you for having done a great thing, you shall nevertheless consider it of no importance. An ordinary man shall be considered to your eyes great, if you have insulted him, until you shall have asked him to forgive you. This passage may also be so rendered: If others say something bad about thee, though it be of a serious nature, treat it as insignificant. But, on the other hand, if thou say something bad about others, though it be insignificant, thou shouldst regard it as serious and have no rest until thou beg pardon. Your behavior shall not be bad, for this is no praise for the Torah (which you possess, but let your behavior be good, for this is a praise for the Torah).

Love the Law, and respect it; love all creatures, and respect them. Subject your will to the will of others, as was done by Leah for Rachel and by David for Saul. But ignore your will, and even the will of others, for the will of Heaven, as we find by Jacob that he did not kiss Joseph (because he was engaged in prayer). Love doubtfulness (i.e., everything shall be doubtful to you until you convince yourself of it), and hate the expression: “And what of it?” (i.e., even of the most unimportant things you should not express yourself thus). Keep aloof from everything that may bring to sin, and from the abominable, and from what is equal to it, that you should not be suspected by others of transgression. Do not slander your neighbor, because he who does so has no remedy. Keep aloof from grumbling, for by grumbling you may come to growl at others, and it will be added to your transgressions. With seven patriarchs covenants were made, and they are: Abraham, Isaac, Jacob, Moses, Aaron, Pinchas, and David--Abraham [Gen. xv. 18], Isaac [ibid. xvii. 21], Jacob [Lev. xxvi. 421, Moses [Ex. xxxiv. 271, Aaron [Numb. xviii. 19], Pinchas [ibid. xxv. 12], David [Ps. lxxxix. 41. Seven patriarchs are resting in glory, and worm and maggot do not affect their earthly remains, and they are: Abraham, Isaac, Jacob, Moses, Aaron, Amram their father, and, according to others, also David, as it is written [ibid. xvi. 9]: “Therefore is rejoiced my heart, and my spirit is glad; also my flesh shall rest in safety.” Nine entered the Garden of Eden when they were still alive, and they are: Enoch (Chanoch) the son of Jared, Elijah Messiah, Eliezer the bondsman of Abraham, Hirom the king of Zor, Ebed-melech the Cushi [Jer. xxxviii. 7], and Jabetz the son of R. Jehudah the Prince, Bothiah the daughter of Pharaoh and Serech the daughter of Ascher, and, according to others, also R. Jehoshua b. Levi.

Chapter II

LET all thy ways be for the sake of Heaven. Love Heaven, and fear it. Tremble at, and at the same time rejoice Over, all commandments. Sit before the elders, and let thy cars be attentive to their words. Incline thine ears to the words of thy comrade. Be not hasty in answering, and consider everything from the right point, and answer to the first question first, and to the last, last; and always confess the truth. Do not discuss in the presence of one who is greater than you in wisdom. If somebody wants to teach you something, do not say that you have heard it already. If you are questioned on the most unimportant matter, and you do not know it, be not ashamed to say, “I do not know.” If somebody taught you something and you did not listen to it, be not ashamed to say, “Repeat it again”; and say not that you have not listened to it, but that you did not understand it. Do everything for the sake of the Creator, and talk of thy deeds in the same sense (according to Elias Wilna). Do not make thy merits as a crown to be glorified by it, and not as a hatchet to cleave with it, nor a spade to dig with it. Accept the words of Law, even when you are in affliction. Do not seek to wrong him who wronged you. Let thy accounts always be correct, and thy conduct excellent. Keep thy promise. Love the Law, righteousness, rebukes, straightforwardness. Do not run after honor. Be not proud when rendering a decision: Consider that all of which thou art possessed to-day may not be thine to-morrow; and if thou art not certain, as to property already in thy possession, that it will remain with thee, what is the use of thy striving to possess what belongs to others? Remember what the prophet says [Habakkuk, ii. 6]: “Woe to him that increaseth what is not his! for how long? and to him that loadeth himself with a burden of guilt!” Let it be thy habit to finish everything in a good manner. Let thy tongue be always soft. Be a good merchant, pay well, and strive always to do good. Be afraid of a light sin, for this may bring you to a grave sin. Respect all kind of men. Do not say, I will flatter this man, that he may give me food; that man, to give me beverages; that man, to cover me: for it is better that thou shouldst bear thine own shame than to be ashamed of others who will do so unto thee. Take care that thy teeth shall not shame thee, and thou shalt not be disgraced by thy mouth, and not cursed by thy tongue, and not put to shame by thy lips. Take care that thou shouldst not need to bow to some one on account of thine own words. If thou wishest to become attached to thy neighbor through bonds of love, always consider what good thou art able to do unto him. If it be thy wish to be kept away from sin, always look to the result of it. If thou art craving for merits, consider carefully their details. If thou hast done much good to some one consider it as very little; and thou must also not say that thou hast done it from what belongs to thee, because there is One who has done that unto thee, and thou art obliged to thank Heaven for it. If, however, some one has done thee some good, consider it as if he has done much. Do not say that Heaven has done good to me because of my good deeds; on the contrary, be afraid that it was done unto thee because of thine unworthy deeds [Deut. vii. 10]: “And repayeth those that hate him to their face, to destroy them.” If, however, thou hast done any wrong, consider it much, and say: “Woe is me that I have sinned,” or, “Woe is me that I was the cause of the wrong.” If others have done thee much wrong, it shall be considered in thine eyes as little, and say: “This is only a part of the retribution that I deserve.”

Chapter III

DELIBERATE before a word passes thy lips, and be thoughtful how thou shouldst act in worldly affairs. See always that thy steps shall be rewarded. justify the judgment that was imposed upon thee and free thyself from anger. judge favorably thy neighbor, and see that thy verdict shall not make him guilty (if his guilt is not fully established). Be content with thy share, and adorn thyself with the little thou dost possess. Do not hate the one who reproves thee. Thy share wilt be blessed forever if thine eye will always be: good, and thy soul always satisfied. Let it be thy habit to say, “I do not know” (of a thing that thou art doubtful about), for thou mayest be caught lying. If thou neglect one command, thou wilt finally be negligent of other commandments. The same is if thou hast overlooked the words of the Law willingly: finally thou wilt be overlooked, willingly or unwillingly. If thou hast taken away others’ property, thine will be taken away.

The commencement of making vows is the door to foolishness. Frivolity with women is the beginning of adultery. If thou hast guaranteed for some one, remember that it must be paid by thyself. If thou hast borrowed money, know that thou hast borrowed it to be repaid in time. If thou hast loaned money to somebody, be prepared to have difficulty in collecting it. Remember the time thou hast to repay, and settle thy accounts.

The following fifteen customs are ascribed to the sages: He is pleasant in entering, and so also when leaving; is prudent in his fear for Heaven; versed in wisdom; wise in his ways, has a good conception, a retentive memory, is clear in his answers, questions to the point, and answers according to the Law; he learns something new from every chapter taught to him; he is going to the wise; he learns for the purpose of teaching it and performing it.

Be as the lower threshold, upon which all persons tread, and still it lasts even when the whole building is demolished.

Chapter IV

SCHOLARS always are agreeable in society, but not so ordinary people. He who occupies himself only with study of the Scripture pursues the right course, yet the sages do not think so; with Mishnayoth, it is a course to be rewarded; but he who occupies himself with the study of the Talmud pursues a course than which there is no better. Still, it is advisable that one shall occupy himself with the study of Mishnayoth more than with that of the Talmud. Do not exact pay for thy teaching. Moreover, take no compensation whatever for it, for the Omnipotent has given His teaching to thee gratuitously; for the one who asks for reward destroys the whole world (because there are many who cannot afford to pay and will remain ignorant). And do not say: “I have no money to live on, and therefore I must take reward for my teaching.” Remember all money is the Lord’s, as it is written [Haggai, ii. 8]: “Mine is the silver, and mine is the gold, saith the Lord of hosts” (and He will supply you with money).

If you have done charity, be sure that you will be favored with money; and if it has been your good lot to acquire money, do charity with it so long as it is in your power. Give it to those who need it in this world, in order that you may get the world to come; for if you do not use it for charitable purposes, it will disappear suddenly, as it is written [Prov. xxiii. 5]: “When thou lettest merely thy eyes fly over it, it is no more.” Do not complain of your being less wise than another, for you have not served (the sages) as much as he did. Neither shall you complain that the other one is rich and you are not, for it is not every man who is favored with two tables (of this and of the world to come). Do not complain that another one is beautiful and you are ugly, for at the time of death a man becomes a carcass; moreover, a carcass of any animal may be sold or presented to somebody, while no one cares even to look at a human carcass. Do not say: “That man is righteous, while I am not”; for both of you will have to account. Do not say: “That man is powerful, while I am weak”; for there is no power aside from the Torah, as it is written [Ps. ciii. 20]: “Bless the Lord, ye his angels, mighty in strength, that execute his word, hearkening unto the voice of his word.” Bear always in mind the following: Know whence you come, whither you go, and before whom you will have to render an account, and do not turn your eyes on money which is not yours; for they close the gates of heaven against. prayer. Let your ears not listen to vain talk, for they are most likely to get burned. Do not slander, for the mouth will be first on the day of judgment to give account. Be not possessed of slander or other bad things, or of robbery, for all the members of thy body will testify against thee on the day of judgment. Let thy feet not hasten thee to evil-doing, because it is likely that the angel of death will get there sooner, and wait for thee. Be not afraid of the court of justice on earth, where only witnesses may be bought, but fear the Court above, because thou art certain that there will be witnesses who will testify against thee. And not only this, but your own deeds proclaim thy accusation from time to time.

If you have performed all my commandments with joy, my attendants will come to meet you, and even I my self will say to you: “Let thy coming be in peace.” Your eyes that never looked at property not belonging to you shall have light in darkness, as it is written [Is. lviii. 10]: “Then shall shine forth in the darkness thy light, and thy obscurity be as the noonday.” Your ears that have not listened to vain talk shall hear of peace in the world to come, as it is written [ibid. xxx. 21]: “And thy ears shall hear the world behind thee, saying, This is the way, walk ye in it, when ye turn to the right hand, and when ye turn to the left.” Your mouth that has not slandered will be coveted by those who were used to slander. Your mouth that has studied the Torah will be a blessing to those who wish to be blessed. Your hands that have kept away from robbery, what can do unto you those who do injustice? Your hands that you have not withdrawn from doing charity, what can do to you those mighty men? Your feet that have not carried you to sin, what can the angel of death do unto you?

All that is said above is a warning to you, and you may do as you please, but do not say that you were not warned.

Chapter V

A SCHOLAR must not eat standingly, nor lick his fingers, nor yawn in presence of others. Talk little, laugh little, sleep little, indulge little in pleasure, say little “yea” and little “nay.” One has always to know with whom he is sitting, near whom he is standing, with whom he is eating, with whom he is conversing, for whom he signs contracts and notes of debt. By four things the scholar is recognized: his pocket, his goblet, his anger, and his dress; and, some say, even his talk. The beauty of the Law is wisdom; the beauty of wisdom is modesty; the beauty of modesty is the fear of Heaven; the beauty of the fear of Heaven is noble performance; the beauty of noble performance is secrecy (i.e., not publicly, for the purpose of being praised). One shall not be awake, etc. (see above).

Chapter VI

FOUR things are derogatory to scholars: to walk alone in the dark (and arouse suspicion); to be perfumed; to be the last in entering a prayer-house, and to hold much discourse at a meeting of dunces.

When entering, the greater shall be first; when leaving, the smaller shall be first. When ascending steps, the greater shall be first; when descending, the smaller shall be the first. At a public meeting, the greater shall have the preference. When entering a prison, the smaller shall do so first. For saying benedictions, the greater is first. The one entering the house must always greet first the one who is in the house. One must not lean at meals (as was the custom in the Orient) when a greater man than he is at the table. One shall not drink in public unless he turns away his face from the bystanders. The first step to sin is in one’s thoughts, the second is scorn, the third is haughtiness, the fourth is cruelty, the fifth is idleness, the sixth is causeless hatred, and the seventh is an evil eye; and these were meant by Solomon [Prov. xxvi. 25]: “For there are seven abominations in his heart.”

Chapter VII

SEVEN things mark the clod, etc. (See Aboth, Chap. V., Mishna J.) A scholar must be careful in his eating, drinking, washing, anointing, in wearing the sandals, in his walking, dressing, in the use of his voice, in the act of spitting, and also with all his good deeds. As a bride, who so long as she is in her father’s house pursues privacy and modesty, and when she is given away in marriage announces publicly, saying: “All those who can come to testify against me, let them come and do so,” so a scholar must pursue privacy in his deeds but publicity in his ways; namely, he must run after truth but not after falsehood, after honesty but not after robbery, after modesty but not after haughtiness, after peace but not after war, after the advice of the old but not after that of the young. He shall rather follow behind a lion than behind a woman.

Who respects the sages? he who gives food, drink, dress, shoes, goes out to meet and accompanies when leaving, without distinction between rabbi or disciple. And who shows them disrespect? he who occupies the seat of his master even during his absence, or substitutes him (without permission) in lecturing, or contradicts him.

Chapter IX

Chapters VIII. and X. are a repetition of what was stated in other places.

R. Eliezer the Kapar said: Keep aloof from anger, for by being angry at others you will add to your transgression. Love your admonisher, for by doing so you, will add wisdom to your ability; and rather shun the one who honors you, that your wisdom be not lessened. Love the prayer-house, in order that you shall be rewarded daily; and the house of learning, in order that your children shall come to study. Love the poor, in order that your children shall not come to poverty. Love modesty, that you may enjoy longevity; love the pious, in order that you may be saved from the black angel. Be careful in the reading of Shema, and prayer in general, in order that you be saved from Gehenna. Your house shall be wide open, in order that you shall never lack food.’ Be careful that the doors of your house shall not be closed when you take your meals, that you may not be punished therefor with poverty. Be careful about the honor of your wife. Be glad of your chastisement, for this probably saves you from Gehenna. Be joyful at your table when the hungry derive benefit from it, in order that you enjoy longevity and have a share in the world to come. Be also joyful when giving charity from your house, in order that you may pacify the anger of death, as it is written [Prov. xxi. 14]: “A gift in secret pacifieth anger, and a bribe in the bosom, strong fury.” If you have troubled your feet for the poor or for the sake of a merit, the following passages may be applied to you [Deut. xxviii . 6]: “Blessed shalt thou be at thy coming in, and blessed shalt thou be at thy coming out.” If you keep your mouth from slander, you will spend all the days of life in peace. One who is audacious towards one who is greater than he will finally be punished with a plague. If you run to do honor to a sage, you will be rewarded with enviable children; and for running to do honor to the poor, you will be rewarded with sons of learning and a law-abiding record in Israel. Dost thou see a sage die, do not turn away from him until after burial, that thou, too, mayest receive respect and attention when it will be thy time to die. When you see your neighbor has be come poor and his power is on the decline, do not refuse to help him, as it is written [Eccl. viii. 5]: “Whoso keepeth the commandment will experience no evil thing.” If you have loaned him something when he was in need, the following passage will be fulfilled on you [Is. lviii. 9]: “Then shalt thou call, and the Lord will answer.” If you lower yourself, the Lord will lift you up; but if you assume superiority over your fellowmen, the Lord will lower you. If others quarrel with thee, whether in a house of learning or at an ordinary meeting-place, do not leave until peace is restored, and they shall praise thee in thy absence as Pinchas b. Elazar. Great is peace, that even when it reigns among idolaters nothing can be done to them, as it is written [Hosea, iv. 17]: “Ephraim is bound (bound together) to idols; let him alone.” But if they quarrel among themselves, it is said of them [ibid. X. 2]: “Their heart is divided; now shall they bear their guilt.” Hence that house in which there is strife will be destroyed, and the sages say that even a prayer-house in which there is strife will be demolished. The same is it with two chiefs of the court who live in one town and quarrel with each other, they will finally die. Abba Saul said: Strife between courts is a destruction of the world. Abba Issi b. Johanan said in the name of Samuel the Little: This world resembles the eyeball of a man. The white is the ocean that surrounds the whole land; the black is the world; the circle in the black is Jerusalem, and the image (the pupil) in the circle is the Temple, which will be rebuilt in the near future. Amen.

The Chapter On Peace

This chapter is considered a separate treatise. See Zunz and other bibliographers.

R. Jehoshua b. Levi said: Great is peace, for it is as the leaven to dough. If the Holy One had not given peace to the world, sword and beast would devour up the whole world, as it is written [Lev. xxvi. 6]: “And I will give peace in the land.”

It is written [Eccl. i. 4]: “One generation passeth away, and another generation cometh, but the earth endureth for ever.” King Solomon meant to say thus: Although one generation passes away and another one comes, one kingdom disappears and another one appears; and although evil decrees one after another are enacted against Israel, still they endure forever. The Lord does not abandon them, and they are never abandoned. They are never annihilated, neither do they decrease, as it is written [Mal. iii. 6]: “For I the Lord have not changed: and ye sons of Jacob, ye have not ceased to be” (i.e., as I have never changed and will never change, so ye sons of Jacob have never ceased and will never cease to be). But [Deut. iv. 4]: “Ye that did cleave unto the Lord your God are alive, every one of you, this day.” R. Jehoshua said: Great is peace, for at the time Israel arose and said [Exod. xxiv. 7]: “All that the Lord hath spoken will we do and obey,” the Holy One was pleased to give unto them His Torah and blessed them with peace, as it is written [Ps. xxix. 11]: “The Lord will bless his people with peace.” Hezekiah said: Great is peace, for at every commandment in the Torah it is written “if,” as, for instance, Exod. xxiii. 4, “If thou meet,” etc., which means, if such a thing occurs to you, you must do the commandment; but concerning peace, it is different, there it is written [Ps. xxxiv. 15]: “Seek peace, and pursue it,” which means, seek peace at the place where you are, and if you do not find it, seek it in other places. Great is peace: about all the journeys of Israel it is written, “And they removed . . . and . . . encamped,” which means they removed in strife and encamped in strife, but when they came to Sinai there was no more strife, and they encamped in peace, as it is written [Exod. xix. 2]: “And Israel encamped opposite the Mount” (i.e., all Israel were united). The Holy One, blessed be He, then said: “Because Israel hates discord and loves peace, and all are united, this is a favorable time that I should give them my Torah.” Adoniah the son of David was killed because he was quarrelsome, and it is permitted to support the accusation of a quarrelsome man, as Nathan the prophet did when Bath-Sheba accused Adoniah [I Kings, i. 14]: “I myself will come in after thee, and confirm thy words.” And Rabbi said: All manner of lying is prohibited, except it be to make peace between one and his neighbor. Bar Kappara said: Great is Peace, as among the angels there is no animosity, no jealousy, no hatred, no commanding, no quarrelling, because the Holy One, blessed be He, has made peace among them, as it is written [Job, xxv. 2]: “Dominion and dread are with him: he maketh peace in his high places.” “Dominion” is the angel Michael and “Dread” is Gabriel, one of whom is of fire and the other one of water, and still they do not oppose each other, for the Holy One, blessed be He, has made peace between them.

R. Jehoshua said: Great is peace, in that the covenant of the priests was made with peace, as it is written [Numb. xxv. 12]: “I give unto him my covenant of peace.” The name of the Holy One, blessed be He, is also “peace” (Shalom), as it is written [Judges, vi. 24]: “And called it Adonay-shalom.” R. Jose the Galilean said: The name of the Messiah is also “peace” (Shalom), as it is written [Is. ix. 5]: “The prince of peace.” Said R. Jehoshua: Israel is also called “peace,” as it is written [Zech. viii. 12]: “For the seed shall be undisturbed, the vine shall give its fruit,” which is to be interpreted thus: “The vine will give its fruit to the seed of peace” (Israel). R. Jose the Galilean said: When the Messiah shall come to Israel, he will begin with peace, as it is written [Is. lii. 7]: “How beautiful upon the mountains are the feet of the messenger of good tidings, that publisheth peace, that announceth tidings of happiness, that publisheth salvation, that saith unto Zion, Thy God reigneth.” He also said: Great is peace, because even wars are waged for the sake of peace, as it is written [Deut. xx. 10]: “When thou comest nigh unto a city to make war against it, then summon it with the word of peace.” R. Jehoshua said: In the future the Holy One, blessed be He, will uphold the righteous with peace, as it is written [Is. xxvi. 3]: “The confiding mind wilt thou keep in perfect peace; because he trusteth in thee.” Again he said: Great is peace, because it accompanies the living as well as the dead--the living, as it is written [Exod. iv. 18]: “And Jethro said to Moses, Go in peace”; the dead, as it is written [Gen. xv. 15]: “But thou shalt come to thy fathers in peace,”

R. Jehoshua of Sachnin said in the name of R. Levi: Great is peace, in that all the benedictions and prayers conclude with “peace.” The reading of Shema we conclude with “peace,” “and spread the tent of thy peace”; the blessing of the priests concludes with peace, “and give thee peace”; and the eighteen benedictions conclude: “Blessed be thou, master of peace.”

Said R. Jehoshua b. Levi: The Holy One, blessed be He, said to Israel, You have caused me to destroy my house and to exile my children, now pray for peace and I will forgive you, as it is written [Ps. cxxii. 6]: “Pray ye for the peace of Jerusalem.” Therefore he who loves peace, runs after peace, offers peace, and answers peace, the Holy One, blessed be He, will make him inherit the life of this world and the life of the world to come, as it is written [Ps. xxxvii. 11]: “But the meek shall inherit the land, and shall delight themselves because of the abundance of peace.”

END OF TRACT DERECH ERETZ--RABBA AND ZUTA.

Tracts Baba Kama (First Gate)

Explanatory Remarks

In our translation we adopted these principles:

1. Tenan of the original--We have learned in a Mishna; Tania--We have learned in a Boraitha; Itemar--It was taught.

2. Questions are indicated by the interrogation point, and are immediately followed by the answers, without being so marked.

3. When in the original there occur two statements separated by the phrase, Lishna achrena or Waïbayith Aema or Ikha d’amri (literally, “otherwise interpreted”), we translate only the second.

4. As the pages of the original are indicated in our new Hebrew edition, it is not deemed necessary to mark them in the English edition, this being only a translation from the latter.

5. Words or passages enclosed in round parentheses () denote the explanation rendered by Rashi to the foregoing sentence or word. Square parentheses [] contain commentaries by authorities of the last period of construction of the Gemara.

Introduction To The Three Gates Of Section Jurisprudence

THE three tracts Baba Kama, Metzia, and Bathra (the First, Second, and Third Gates) are unique in the whole Talmud in this respect, that they bear no name indicating the contents, as is the case with all other tracts of the Talmud, and we do not find in any commentary any explanation or discussion of the fact. It may be because the reason is very simple, namely, that these three tracts are the only ones which treat purely of civil law, for even in cases of larceny only the civil side (as the actual damage, and the fine for causing it) is treated of (if there is here and there mentioned some criminal liability, it is only incidentally as a citation in course of the discussion); and as the cases are very numerous and varying in character, no appropriate title could be found to indicate the contents of each tract. Indeed, so numerous are they that we may safely say there is no civil case which can possibly arise between man and man that is not treated of in these tracts. The other tracts of this section, which are enumerated in our introduction to Volume I. (IX.), treat each of a separate and distinct subject and not of purely civil law.

For those especially interested in comparative jurisprudence we give below two articles by prominent publicists, which illustrate only two of the many important principles scattered all over the Talmud.

The first, “The Talmud,” by I. D’Israeli, is an extract from “Curiosities of Literature,” and is as follows:

In the order of damages containing rules how to tax the damages done by man or beast or other casualties their distinctions are as nice as their cases are numerous. What beasts are innocent and what convict. By the one they mean creatures not naturally used to do mischief in any particular way, and by the other, those that naturally or by a vicious habit are mischievous that way. The tooth of a beast is convict, when it is proved to eat its usual food, the property of another man, and full restitution must be made; but if a beast that is used to eat fruit and herbs, gnaws clothes or damages tools, which are not its usual food, the owner of the beast shall pay but half the damage when committed on the property of the injured person but if the injury is committed on the property of the person who does the damage, he is free, because the beast gnawed what was not its usual food. And thus, if the beast of A gnaws or tears the clothes of B in B’s house or grounds, A shall pay half the damages, but if B’s clothes are injured in A’s grounds by A’s beast, A is free, for what had B to do to put his clothes in A’s grounds? They made such subtile distinctions, as when an ox gores a man or beast, the law inquired into the habits of the beast; whether it was an ox that used to gore, or an ox that was not used to gore.

However acute these niceties sometimes were, they were often ridiculous. No beast could be convicted of being vicious till evidence was given that he had done mischief three successive days; but if he leaves off those vicious tricks for three days more, he is innocent again. An ox may be convict of goring an ox and not a man, or of goring a man and not an ox; nay, of goring on the Sabbath and not on a working day. Their aim was to make the punishment depend on the proofs of the design of the beast that did the injury, but this attempt evidently led them to distinctions much too subtile and obscure. Thus some rabbins say that the morning prayer of the Shem’ah must be read at the time they can distinguish blue from white; but another, more indulgent, insists it may be when we can distinguish blue from green! which latter colors are so near akin as to require a stronger light. With the same remarkable acuteness in distinguishing things is their law respecting not touching fire on the Sabbath. Among those which are specified in this constitution, the rabbins allow the minister to look over young children by lamp-light but he shall not read himself. The minister is forbidden to read by lamp-light, lest he should trim his lamp; but he may direct the children where they should read, because that is quickly done, and there would be no danger of trimming his lamp in their presence, or suffering any of them to do it in his. All these regulations, which some may conceive as minute and frivolous, show a great intimacy with the human heart, and a spirit of profound observation which had been capable of achieving great purposes.

The owner of an innocent beast only pays half the costs for the mischief incurred. Man is always convict and for all mischief he does he must pay full costs. However, there are casual damages--as when a man pours water accidentally on another man; or makes a thorn-hedge which annoys his neighbour; or falling down, and another by stumbling on him incur I harm: how such compensations are to be made. He that has a vessel of another’s in his keeping, and removes it, but in the removal breaks it, must swear to his own integrity; i.e., that he had no design to break it. All offensive or noisy trades were to be carried on at a certain distance from a town. Where there is an estate, the sons inherit, and the daughters are maintained, but if there is not enough for all, the daughters are maintained and the sons must get their living as they can, or even beg. The contrary to this excellent ordination has been observed in Europe.

The second, of which a literal translation follows, was written in Hebrew by Dr. D. H. Farbstein, a counsellor-at-law in Zurich, Switzerland, in the “Hashana” (Year-book) for 1900, under the title “One Cannot Grant that Which is not in Existence.”

There is no law which has not its reason. Every legal principle is the result of a certain economic and political condition; it is the product of a certain epoch, aiming to benefit the political and economic life of that historic epoch.

The legal principle that one cannot grant that which is not yet in existence had its origin in the Hebrew nation and was the product of a certain epoch, and we shall endeavor here to explain the motives which prompted the development of this legal precept.

This principle existed also in the laws of other Semitic nations in general, and in the Mahometan laws in particular. It was, however, unknown to the Roman law, as according to the Roman law one could grant that which was not yet in existence, and the sale of an article which existed only in expectation was valid, and even the mere expectation could form the subject matter of a purchase or sale.

The reason of this difference between the Semitic laws in general, and the Jewish laws in particular, and the Roman laws on this point lies, in my judgment, in the prohibition of taking usury.

“Thy money shalt thou not give him upon usury, nor lend him thy victuals for increase” [Lev. xxv. 37] is one of the principal Mosaic laws. And as it is prohibited to give money upon usury, so also is it prohibited to raise the price; as, for instance, if the price of an article is such and such in cash, it is prohibited to raise the price of such article if sold on credit for a certain time, for it is nothing but indirect usury.

This law was necessary as long as it was prohibited to give money upon usury; in our own times, however, when industry and commerce have developed so much, it is very usual to buy and sell things which exist only in expectation. In the time of the Talmudists the one who sold that which was not in existence was not an ordinary merchant, but only one who needed money. For instance, a farmer needed money. He applied to the money-lender for a loan. The money-lender was willing to make the loan, but was kept back by the prohibition to give money on usury. In order to evade this prohibition he bought of the farmer the future products of his farm, paying him only a very low price. The difference between the actual value of the products and the price paid by the lender is nothing but indirect usury.

Similar methods are practised even now in those countries where usury is prohibited by the law of the land. The Talmudists, in order to prevent such and similar evasions of the prohibition to take usury, have established the principle that no one can grant that which is not yet in existence; for the same reason, they also prohibited the fixing of a price upon future products before the market price is established. They were, at the same time, careful in stating that one cannot grant, and not that one cannot buy, affording thereby protection to the grantor only that he may rescind the sale if he elects to do so.

We see, then, that the rule that “one cannot grant,” etc., was established with the end in view of preventing any evasion of the prohibition to take usury.

In those days commerce was not so developed as it is in our days, nor was money of such established currency as it is now. Nowadays one invests money in merchandise and then sells the merchandise and realizes his money with a profit, which was not so in those days; and for that reason the taking of usury was prohibited, for money could bring no economic benefit to its owner.

But although it was prohibited to grant that which was not yet in existence, still it was allowed to grant that which would bring benefit in the future--as, for instance, to lease land for cultivation-for the substance producing the benefit is in existence.

This distinction between interest (compensation for the use of money) and rent (compensation for the use of an article producing benefit) was drawn also by the Catholic theologians of the middle ages, who also prohibited the taking of usury, but permitted the receipt of rent.

We, however, cannot fully agree with Dr. Farbstein, for the following reasons:

(a) The principal things concerning which this rule was made were marriage and inheritance. If one marries a woman upon the condition that she should become a proselyte, the marriage is null and void, because it is on condition of something which was not yet in existence. The same is the case as regards inheritance-one cannot say to a woman: “I will leave my estate to the children you may bear.” In both these cases, usury cannot be the reason.

(b) The rule that a man cannot grant that which is not yet in existence is not an established one by all the sages, for there were many of the most popular--as R. Eliezer b. Jacob, R. Meir, and R. Juhudah the Prince--who held that one might grant that which is not yet in existence (see Kiddushin, 62 b, at the end), and certainly all of those sages were aware of the prohibition of usury.

It seems to us, therefore, that the sages who hold that such a thing cannot be sold is because they considered speculative transactions as robbery, so that they prohibited all kinds of gaming existing at that time; and the one who participated in such games was disqualified as a witness, because he was considered a robber. We find, however, in this volume, p. 198, that a woman may sell the benefit of her marriage contract, although it looks like speculation; for she may die during the life-time of her husband, and her husband will inherit from her. But even this is discussed, and seems to be an enactment of some sages for the benefit of the woman. (See text.)

Synopsis Of Subjects

OF TRACT BABA KAMA (THE FIRST GATE).[99]

CHAPTER I.

MISHNA I. There are four principal cases of tort, etc. One thing is common to all. They are all likely to do damage and must be guarded against. The case of doing damage by digging up gravel. The different explanations of the word “mabeh” by Rabh and Samuel (foot-note). There are thirteen principal tort-feasors. The depository,[100] etc. There are twenty-four principal tort-feasors. What are the derivatives of all those principals? Why are the four principals, ox, excavation, mabeh, and fire, enumerated separately in the Scripture? From what and what kind of property must damage be collected? When the standard is taken, is it taken of one’s own lands or of those of the public in general? In order not to close the door to borrowers, the sages have enacted that creditors should be paid out of the medium estates. If one conveys his estates to one or several persons, from whom and from what estates shall the creditors collect the money due them? In case one does a meritorious thing he shall do it up to one-third.

MISHNAS II. TO V. In all that I am charged with taking care of I have prepared the damage. There is a more rigorous rule in case of the ox than in the cases of the pit and the fire, and vice versa. How so? If one left his ox in charge of five persons, and one of them left intentionally and the ox caused damage, what is the law? No appraisement is made for a thief or robber. If one hypothecates his slave or his ox and thereafter sells him. There is a difference between movable and immovable real estate. Slaves are considered movable real estate. During the killing, the bringing of the suit, and the making of the award there shall be one and the same owner. There are five cases which are considered non-vicious and five which are considered vicious. The tooth is considered vicious to consume, etc. What is a Bardalis? What is meant by “best estates”? The meaning of the verse Is. xxxii. 20.

CHAPTER II.

MISHNAS I TO III. What tendency makes the foot to be considered vicious? Cocks that were flying from one place to another, and broke vessels with their wings. Cocks that were hopping on dough or on fruit, and made the same dirty, or that were flying and the wind produced by their wings damaged vessels, or that were pecking at a rope from which a water-pail was suspended, and, severing the rope, broke the water-pail--what is the law? The distinction between primary and secondary force. A dog that snatched and carried off a cake from the burning coals, and with the burning coal that stuck in the cake set fire to the barn, etc. There can be viciousness in case of “gravel in the usual way.” If an animal was walking in a place where it was impossible not to kick up gravel, and she kicked, and by so doing kicked up gravel and caused damage; or if an animal caused damage by shaking the tail--what is the law? What tendency makes the tooth to be considered vicious? It happened that an ass consumed a loaf of bread contained in a basket and chewed up the basket, etc. If an animal was standing on private ground and an article was rolling toward the private ground, etc. About one who takes up his dwelling in the court of his neighbor without the latter’s knowledge. One who rents a house from Reuben must pay the rent to Simeon, etc. If one uses an unoccupied house of another for storing wood and straw, etc., what is the law? A certain person erected a palace on the ruins belonging to orphans, etc. A dog or a goat that jumps down from the top of a roof and breaks vessels liable for the whole damage. If, however, they fall down, there is no liability. Is one’s fire considered one’s arrow or one’s property? There is no liability for damages done by fire to concealed articles. How can such a case be found in the biblical law? The mouth of an animal (consuming something on the premises of the plaintiff), is it considered as if yet in the court of the plaintiff? There were certain goats belonging to the family of Tarbu that were doing damage to the property of R. Joseph.

MISHNAS IV. TO VI. What ox is considered non-vicious and what vicious? One that has been warned for three days. The three days in question, are they such as to make the ox vicious, or do they also involve the owner? For one who sets his neighbor’s dog on a third person, what is the law? An ox that gored, pushed, bit, lay down on, or kicked while on public ground pays half. The a fortiori argument regarding the half-payment of the horn. An ox that steps with his foot on a child lying on the premises of the plaintiff, what is the law in regard to the payment of atonement money? A human being is considered always vicious. One who carries a stone in his lap without being aware of it, and while getting up from his seat drops it, as regards damages he is liable. One who drops a vessel from the top of a roof upon the ground which has been covered with pillows, and if another person remove them before the dropping of the vessel, etc., what is the law? Is a slave considered one’s body, and an ox one’s property?

CHAPTER III.

MISHNAS I. TO V. If one place a jug on public ground and another person stumble over it and break it, what is the law? One who kicks another with his knee is fined three selas; with the foot, five; with the fist, thirteen; what is the fine if one strike his neighbor with the handle or the iron of the hoe? A jug that broke on public ground and its contents caused a person to slip and fall, or one to be injured by its fragments, what is the law? About one who renounces ownership to his articles that cause damage. One who empties water into public ground, or one who builds his fence of thorns; or a fence that falls into public ground, and some persons were injured thereby, he is liable. The former pious men used to bury their thorns and broken glass in their fields three spans below the surface. All those who obstruct a public thoroughfare by placing chattels therein and cause damage are liable. If one carrying a barrel followed one carrying a beam, and the barrel was broken by the beam, what is the law? Potters and glaziers that walked one following the other, and one stumbled and fell, etc. If they all fell because of the first one, the first is liable for the damage of all of them.

MISHNAS VI. TO XIII. Two that walked on public ground, one running and the other one walking, etc., what is the law? One who chopped wood on public ground and caused damage on private ground, etc. One who enters a carpenter’s shop without permission, and was struck on his face by a flying splinter. About employees who came to demand their wages from their employer and were gored by his ox or bitten by his dog. About two non-vicious oxen that wounded each other.

The difference in the explanation of the verse Exod. xxi. 35. About a non-vicious ox that has done damage and was sold, consecrated, slaughtered, or presented to somebody. About an ox of the value of two hundred selas that gored another ox of equal value and the carcass was of no value what ever. There are cases when one is liable for the acts of his ox and is free if they are his own acts, and vice versa. How so? The rule is that the burden of proof is upon the plaintiff. If one claims that he is positive, while the other one is not positive, what is the law?

CHAPTER IV.

MISHNAS I. TO IV. An ox that gores four or five oxen one after another, the last of them must be paid from the body of the goring ox, if he was yet considered non-vicious. About an ox that is vicious towards his own species, but not towards other species, or towards human beings, etc. There is a case where an ox became vicious -in alternate order.” About an ox belonging to an Israelite that gored an ox belonging to the sanctuary (see footnote). An ox of a sound person that gored an ox belonging to a deaf-mute, idiot, or minor, there is a liability. If the reverse was the case there is none. There is a difference of opinion of the Tanaim as to whether a guardian is appointed in order to collect from the body of the ox. Guardians pay from the best estates, but do not pay the atonement money. About one who borrows an ox with the understanding that he was non-vicious and it was found out that he was vicious.

MISHNAS V. TO IX. An ox that killed a man by goring him, if he was a vicious one, the atonement money is to be paid, but not when he was a non-vicious one. How can there be found a vicious ox in regard to man? If one confers, saying, “My ox has killed a certain person,” or “his ox,” he has to pay on his own testimony. If one’s fire has done damage without intention, is there a liability or not? About an ox that was rubbing against a wall, whereby the wall fell upon a human being and killed him. About an ox belonging to a woman, to orphans, or their guardian, etc., that killed a man. About an ox that was sentenced to be put to death and his owner consecrated him. About an ox delivered to a gratuitous bailee or a borrower, etc. About an ox which was properly locked up, but yet broke out and did damage. Whence is it deduced that one must not raise a noxious dog in his house, nor maintain a defective ladder?

CHAPTER V.

MISHNAS I. TO VI. About an ox that gored a cow and the new-born calf was found dead at her side. The cow and her offspring are not separately appraised. A potter that placed his pottery in the court of another, or one who led his ox into the court of another without permission, what is the law? When he assured the safety of the ox, did it only extend to himself or also to all cattle? About a woman that entered a house to bake, and the house-owner’s goat, having consumed the dough, became feverish and died. About one who enters a court without permission and injures the court. owner, or the latter is injured through him. About one who said: “Lead in your ox and take care of him,” and he did damage or was injured. About an ox which intended to gore another ox, and injured a woman and caused her to miscarry. To whom must the compensation for the miscarriage be paid, to the woman or to her husband? Does the increase in the valuation also belong to the husband? About an Israelite’s pledge which is in the hands of a proselyte, and the latter dies without heirs. About one who digs a pit on private ground and opens it into public ground, or vice versa. One who digs and opens a well and delivers it over to the community is free. About one who digs a pit on public ground and an ox or an ass falls into it. Are the vapors therein contained, or is the shock received by the animal, the cause of death when falling into a pit?

MISHNAS VII. TO IX. When a pit belongs to two partners, and one of them passes by and does not cover it, and so also does the second, the latter only is liable. About a pit which was ten spans deep and which was completed by another one to be twenty, and still by another one to be thirty spans deep. Each span of water equals two of dry ground. If one dig a pit ten spans deep and another widen it toward one direction only, what is the law? One who sells his house, the title passes with the delivery of the keys. If he sells a flock of cattle, title passes with the delivery of the Mashkhukhith (the forerunning goat kept at the head of the flock as a leader). If he covered the pit sufficiently to withstand oxen but not camels, and .camels came along and made the cover shaky and then oxen fell therein, what is the law? What about the germon of damage? About one who places a stone on the edge of the opening of a pit, and an ox stumbles over the stone and falls into the pit. About an ox and a man who together push some other into a pit. There is no difference between an ox and another animal as regards falling into a pit, to have been kept distant from Mount Sinai, payment of double, restitution of lost property, unloading, muzzling, Kilayim, and Sabbath. Nor is there any difference between the above-mentioned and a beast or bird. Why in the first commandments is it not written “that it maybe well with thee,” while in the second commandments it is?

CHAPTER VI.

MISHNAS I. TO III. If one drive his sheep into a sheep-cot and properly bolt the gate, but still they manage to come out and do damage, he is free. There are four things for which one who does them cannot be held responsible before an earthly tribunal, although he will be punished for them by the Divine court. Is armed robbery, when not committed publicly, still considered theft as regards the payment of double? For frightening away a lion from one’s neighbor’s field the law awards no compensation. How does it pay what it damaged? About one who came before the Exilarch and complained of another who destroyed one of his trees. One who destroys a young date-tree, what amount of damage must he pay? There was a case, and Rabh acted in accordance with R. Meir; but in his lectures, however, he declared that the Halakha prevails in accordance with R. Simeon b. Gamaliel (see foot-note). About one who puts up a stack of grain on another’s land without permission. One who started a fire through the medium of a deaf-mute, etc.

MISHNAS IV. TO VIII. The law about one who starts a fire and it consumes wood, stones, or earth. No chastisements come upon the world unless there are wicked ones in existence. When pestilence is raging in town, stay indoors, etc. Why does the verse begin with the damage by one’s property and end with damage done by one’s person? About a fire that passed over a fence four ells high. If one starts a fire on his own premises, how far must it pass to make the starter liable? About one who causes his neighbor’s stack of grain to burn down, and there are vessels therein which also are burned. If one allowed another to place a stack of wheat and he covered it with barley, or vice versa, what is the law? Is it customary with people to keep pearls in a money-pouch? The law about a spark that escapes from under a blacksmith’s hammer and does damage.

CHAPTER VII.

MISHNA I. The payment of double is more rigorous than the payment of four and five fold. The law about one who stole a lamb, and while in his possession it grew into a ram, etc. That a change acquires title is both written and taught. Why did the Scripture say that if he slaughtered and sold it he must pay four and five fold? A stolen thing, which the owners have not resigned hope to regain, cannot be consecrated, etc. The pious man used to place money in the vineyard on a Sabbatical year, declaring: “All that is plucked and gathered of this fruit shall be redeemed by this money.” A writ of replevin which does not contain the following directions “Investigate, take possession, and retain it for yourself,” is invalid.

MISHNAS II. TO VI. About two witnesses who testify that the one stole an ox or a sheep, and either the same or other witnesses testify that he slaughtered or sold the same. If he stole from his father. From what time on is a collusive witness disqualified to give testimony? If two witnesses testify that a certain person blinded his slave’s eye, and thereafter knocked out one of his teeth, and they also testify that the owner of the slave admitted it, and subsequently the witnesses are found collusive, what must the collusive witnesses pay? If two witnesses testify that he stole it, and one witness, or he himself, testified that he slaughtered or sold it, he pays only two, but not four and five fold. One who admits that he has incurred the liability of a fine, and thereafter witnesses appear, what is the law? About a confession which is made after the appearance of witnesses, and the different opinions in regard to it. If the thief sells all but one hundredth part of it or he is a co-owner of it, what is the law? One who steals an animal which is lame or blind, or which belongs to a copartnership is liable, but partners that steal together are free. About one who steals an animal within the premises of the owner and slaughters or sells it outside of it, or vice versa. Why did the Scripture treat more rigorously with the thief than with the robber? Ponder over the greatness of labor, etc.

MISHNA VII. No tender cattle must be raised in Palestine but in its forests. A shepherd (who raises tender cattle) that repented, we do not compel him to sell out all his cattle at once. No tender beasts shall be raised in Palestine, except dogs, cats, and monkeys. R. A’ha b. Papa said in the name of R. Hanina b. Papa three things. Upon ten conditions did Joshua divide the land among the settlers. The ten enactments of Ezra. No swine is permitted to be raised at anyplace. Rabbi, the Prince of Pales tine, objected to the use of the Syriac language, and insisted that only the Holy and the Greek languages should be used in Palestine. R. Jose objected to the use of the Aramean language in Babylon, and insisted that the Holy and the Persian languages should be used. No dogs shall be kept unless on a chain. In the towns adjoining the frontier they must be kept on a chain only in the day time.

CHAPTER VIII.

MISHNAS I. AND II. The four items of damage: pain, healing, loss of time, and disgrace. How so? It happened that an ox lacerated the arm of a child, and the case came before Rabha, etc. When the damage is paid for, how should the pain be appraised separately? Healing. If pus collected by reason of the wound, and the wound broke out again, etc. The sages say that healing and loss of time go together. If the defendant should say, “I will cure you myself, the plaintiff may object,” etc. Shall we assume that the appraisement for the deafness is sufficient, or each of the injuries must be appraised separately? (See foot-note.) If one strikes another and makes him temporarily unfit to labor, what is the law? Disgrace--all those who sustain injury are looked upon as if they were independent men, etc. One who causes disgrace to a nude, blind, or sleeping person is liable. If one causes shame to a sleeping person who subsequently dies while asleep, what is the law? Is the reason because of the hurting of his own feelings, or because of the feelings of his family? Is a blind person required to per form all the commandments? and what R. Joseph, who was blind, said of that.

MISHNAS III. TO V. The law is more rigorous in regard to a man than in regard to an ox, etc. One who assaults his father or mother, but does not bruise them, and one who wounds another on the Day of Atonement, are liable to pay all the items of damage. To whom belongs the compensation received by one’s minor daughter for a wound? About an investment for a minor and the nature thereof, Is a slave considered a “brother”? The Halakha prevails that the benefit in case of a woman who sells her right in the marriage contract belongs to herself; and if she bought estates therewith, her husband has nothing even in their income. If one blow into the ear of another, he pays one sela for the disgrace he caused him. What if one strikes another with the palm or with the back of his hand on the cheek? This is the rule: Rank and station of the parties are taken into consideration. May a witness be a judge in the same case? A non-vicious ox that killed a man and also caused damage to another, must his owner pay for the damage, besides the payment of the atonement money? All that was said concerning disgrace is only for the civil court, as to how much the plaintiff should receive, but there can be no satisfaction for the injury to the feelings, for which, if he would even offer all the best rams of the world, they would not atone, unless he prays the plaintiff for forgiveness. The origin of a series of sayings by the rabbis as well as by ordinary people. If one says to another, “Break my pitcher,” etc. A money-pouch containing charity funds was sent to Pumbeditha, and R. Joseph deposited it with a certain man who did not take good care of it and it was stolen from him, and R. Joseph held him responsible. What Abayi said to him about it.

Chapter I

THE FOUR PRINCIPAL TORT-FEASORS; THE DIFFERENT MODES OF RESTITUTION; THE VICIOUS AND NON-VICIOUS ANIMALS; THE APPRAISEMENT BEFORE THE COURT.

MISHNA I: There are four principal causes of tort (expressly mentioned in the Scripture): the ox; the (uncovered) excavation; the mabeh (the pasture of one’s cattle in another’s field); and the fire. The measure of the damages done by the ox is different from that of the damages done by the mabeh, and vice versa; and that of both, which are animated beings, is not like that of the damages caused by the fire, which is not animated. And the measure of damages caused by the three last mentioned, which are movable, is different from that of the damages caused by the (uncovered) excavation, which is stationary. One thing, however, is common to all, and that is, that they are all likely to do damage, which must be guarded against, and if damage is done, the one responsible for it must make good from his best estates.

GEMARA: If the Mishna states that there are “principals there must be derivatives. Are those derivatives as their principals or not? Said R. Papa: “Some of them are and some of them are not?” (as explained further on). The rabbis taught: “It was said of the ox that he has three principals, the horn, the tooth, and the foot. Of the horn the rabbis taught: It is written [Ex. xxi. 28]: “If an ox gore,” and goring is only with the horn, as it is written [Deut. xxxiii. 17]: “And his horns are like the horns of reem; with them shall he push (gore),” etc. What is the derivative of the horn? Hurting, biting, lying upon,[101] and kicking; (because they are usually done intentionally, as goring). Why is “goring” called a principal? Because it is written [Ex. xxi. 28]: “If an ox gore?” Let also hurting be a principal, because it is written [ibid., ibid. 35]. “And if a man’s ox hurt.” That hurting means goring, as we have learned in the following Boraitha: “It starts out with hurting, and it ends with goring, to teach thee that the hurting mentioned here means goring.” Why does the Scripture in case of a man use the term “gore,” while in the case of an animal it uses the term “hurt”? For a man, who is fortunate,[102] (who is guarded by his planet) “gore” is used (because it is certain that the ox gored him intentionally with all his might to harm him), but of an animal, which is not fortunate, “hurt” is used, and by the way it teaches us that an ox which is vicious toward a human being is considered vicious toward an animal, which case is not so in the reverse. But is then “biting” not the derivative of the “tooth”? Nay, the tooth usually derives benefit by doing the damage (consuming), which is not the case with biting. Are not lying upon and kicking the derivatives of the foot (because it cannot be done without bending of the feet)? Nay, damage by the foot is of frequent occurrence (because whenever the animal walks and there is something in the way it damages it), which is not the case with the above. But to what does R. Papa refer in stating that the derivatives are not like their principals? Shall we assume that he refers to those just stated? This cannot be, for they are all of the same nature, as stated above, and the owner must guard against it, and he must pay the damage. We must therefore say that there is no difference between the principal and derivatives of the horn, and R. Papa’s statement refers to the derivative of the foot, in case of doing damage by digging up gravel with the foot, in which case only one-half of the amount of the damage must be paid, and which is Sinaic (i.e., the restitution is for actual damage and not as a fine, which is always the case whenever one-half damage is paid). But why is this case called a derivative of the foot? (only one-half of the damage is paid, while in the case Of the principal the whole must be paid). It is a derivative in respect that (by the same tradition that if the damage-doing animal is not of sufficient value to pay the amount of the damage) the balance must be paid from the best of one’s estates, which is only so in case of damage by the foot. Is the latter part of this then certain? Did not Rabha further on propound a question wherefrom the damages shall be collected? (This does not matter.) Rabha was not certain about it, but R. Papa was. Why, then, is it called a derivative of the foot, even according to Rabha’s theory, who was not certain about it? To equal it to the foot in that respect, that it is not liable if the damage was done on public ground (as damages done by the foot are not paid unless done on the ground belonging to the party damaged).

“And, mabeh,” etc., “and fire,” etc. What is meant by mabeh[103]“? Said Rabh: “It means a man”; Samuel, however, said it means the tooth (of the ox). Why does Rabh not explain it as Samuel? Because when the Mishna states “ox,” it means everything with which an ox can do damage (consequently “mabeh” must be something else). And what is the reason of Samuel? Is Rabh’s opinion, then, not correct? The Mishna states ox. Said Rabh: “It states ‘ox’ for the damage done by the foot, and ‘mabeh’ for that done by the tooth, and it must be explained as follows: The law of damages done by the foot, which is of frequent occurrence, cannot be applied to that of the tooth, which is not of frequent occurrence; on the other hand, the law of damage done by the tooth, which usually benefits thereby, cannot be applied to that of the foot, which derives no benefit.”

But what is the matter with the horn? Why is it left out? This is included in the statement, “And if they do damage, the one responsible,” etc. Why is it not mentioned expressly? The Mishna states only cases of those which are considered vicious from the very beginning (and must pay the full amount of damage, as tooth and foot, etc.), but not cases of those which are not considered vicious from the beginning (as the horn, which pays the full amount of damages only on the third time of doing damage). Why does Samuel not concur with Rabh? He maintains that it cannot mean a “man,” because this latter is enumerated in a subsequent Mishna: “A vicious ox, and an ox doing damage on the estate of the party suffering the damage, and the man.” Why is “man” not mentioned in the first part of the Mishna? Our Mishna treats only of injuries done by one’s property, but not of injuries done by one’s person. Now as to Rabh, is then the “man” not enumerated in the subsequent Mishna? (Why, then, state it also in our Mishna?) Rabh may say: “It is mentioned in the later Mishna only because other vicious ones are mentioned therein, and according to him (who says that ‘mabeh’ means a man) the statement in the Mishna, ‘the law of damages,’ etc., must be explained thus: “The law of damages of an ox differs from that of a man in that the former pays ‘atoning money,’ while the latter does not (if a vicious ox kill a man by goring he pays atoning money, therefore if only the law of the ox would be stated, that of the man could not be deduced therefrom, because if a man kill another man unintentionally he is banished; if intentionally he suffers the death penalty, and pays no atoning money); and the law of a man differs from that of an ox in that the former is liable (in case of personal injuries caused to another man, in addition to the payment of actual damages) to four things (explained further on), which is not the case with the ox; the one thing common to both is that they are likely to do damage, and one is charged with taking care of them.” [Is it then usual for an ox to do harm? It means a vicious one. But is it then usual for a man to do harm? Yea, when asleep. How is it to be understood? It is usual for a man when asleep to contract and stretch out his limbs, and all that is then in his way he damages.] But is not the man charged with his own care of himself? This can be explained as R. Abbuhu said elsewhere to one Tana: “Read, ‘The man is charged with his own care of himself’”; so also is it to be read in our Mishna (and the statement in the Mishna that one is charged with taking care of them refers to the others mentioned).

R. Oshiyah taught: There are thirteen principal tort-feasors: the depositary; the one loaning for use; the bailee for hire; the bailor for hire; the actual damage sustained through the personal injury; the expense incurred in curing the injury; the earnings lost through such injury and the shame suffered (this will be explained in Chapter VIII.), and those four principals mentioned in our Mishna, which make thirteen. (The depositary is liable for arbitrary damage; the one loaning for use is liable even for an accident; and the bailee for hire and the bailor for hire are responsible even for theft and loss, and, manifestly, for arbitrary damage; actual damage means that if one inflicts an injury on another person he must pay the difference in value of the person injured; the pain suffered, i.e., so much as one whose arm, for instance, was to be amputated by an instrument would pay to be relieved by a drug from such pain as amputation would cause; all the others are explained further on in this volume.) Why did the Tana of our Mishna not state those nine? It is correct according to Samuel, because the Mishna treats only of injuries done by one’s property, and not of injuries by one’s person, but according to Rabh (who says that “mabeh” means a man, and so injuries by one’s person are treated of) why does he not state them? The Mishna treating of “a man” means to include all damages done by a man. And according to R. Oshiyah, are they not included in the “man” stated in the Mishna? There are two kinds of damages done by man, viz., those done by him to another man (which constitute a crime), and those done by him to an ox (in which case the liability is restricted to civil damages only). If so, why not state the same thing in regard to an ox? Let him state a case where an ox injured a man, and a case where he injured another ox. What question is this? As to a man there is a difference between the injury done to a man and that done to an ox, for in the former he is liable for the four things, and in the latter case he pays only actual damages (and therefore both are stated); but in the case of an ox, what difference is there between the injury done by him to a man and that done by him to an ox? In both cases he pays only actual damages.

R. Hyya taught: “There are twenty-four principal tort-feasors, viz., those who pay double [see Ex. xxii. 4]; those who pay four or five [ibid. xxi. 37]; the thief (who confesses his guilt, in which case he pays only the actual value) and the robber (who is also a principal because he is mentioned in the Scripture [Lev. V. 23]; the collusive witness; the one who commits rape (is a principal because mentioned in Deut. xxii. 29); the seducer [mentioned in Ex. xxii. 16]; the slanderer [Deut. xxii. 19]; the one who defiles heave-offering; the mingler (one who mingles together heave-offering with ordinary food); the one who brings a drink-offering (to the idols); (the three latter are not mentioned in the Scripture, but still they are principals for they pay pecuniary damage, and the latter is stated in the Scripture); and these with those thirteen mentioned above make twenty-four.

But why does R. Oshiyah not enumerate these mentioned here? He enumerates only those who pay actual damages, but not those who pay in form of a fine. If so, why does he not enumerate the thief and the robber who pay actual damages (as explained above)? He does so, for he states the depositary and the one loaning for use (in the case of the depositary it very often occurs that he sets up as a defence that it was stolen from him, and we have learned elsewhere that if one sets up a defence of theft or robbery he is responsible as a thief and robber). And as to R. Hyya, does it not state the depositary and the one loaning for use? He states separately property which came lawfully into his possession (as in the case of the depositary, etc.), and property which came unlawfully into his possession (as the thief).

It is correct according to the Tana of our Mishna, who states “principals” because there are also derivatives (which were enumerated above), but according to R. Hyya and R. Oshiyah if they state “principals” there must be derivatives; what are they? Said R. Abbuhu: They are all as principals in that respect that the damage must be paid from the best estates. What is the reason? It is deduced by an analogy of expression; in all those cases either the word “for” or “give” or “pay” or “money” is written. (Where it is written “for” we deduce it by analogy from the “for” stated as to the vicious ox, as there it is from the best estates (which in turn is deduced from the tooth and foot); so also it is here, if “give” or “pay” is written we deduce it from the ox that gored a slave where these words are written; if “money” is written we deduce it from the pit where the same word is written; and in all those cases it is paid from the best estates.)

“The law of the damage done by an ox is not like that,” etc. For what purpose does he mention this here at all? Said R. Zbid in the name of Rabha: “He means to say with that, that no question should be raised why the Scripture does not state one of the tort-feasors and leave the others to be deduced (by way of analogy) therefrom, for one cannot be deduced from the other (as it is stated above; Rabh according to his theory and Samuel according to his).

“And that of both which are animated,” etc. For what purpose does the Tana mention this? Said R. Mesharshia in the name of Rabha: “He means to say that it should not be questioned why the Scripture does not state two of the tort-feasors (the ox and the mabeh), and fire would be deduced from these two; for this one cannot be deduced from those two (for the one is not like the others, etc., as stated in the Mishna). Said Rabha: “If any one of these should be mentioned with the ‘pit,’ all others could be deduced from those two by reason of having something common to all (as e.g., if he would state the pit and the horn, the tooth could be deduced thus: the pit, the nature of which is not to move and do damage, must pay; the more so the tooth, the nature of which is to do so; and if you should say the pit is made from the very beginning to do damage, which is not so with the tooth, I will cite you the horn (which is not made so); and if you will say that the horn does the damage intentionally, I will cite you the pit and the conclusion will return (the former argument will be reinstated); the one thing common to all is that it is their nature to do damage, and one is charged with taking care of them, etc. I will also bring in the tooth. In such a way I would also deduce the foot, if the pit and the horn should be stated; and if it should be objected that the pit is from the beginning made to do damage, which is not so with the foot, the horn would be cited; and if it should be objected to on the ground that the horn does damage intentionally, the pit would be cited. And so forth as to all, with the exception of the horn, for the objection might be raised that they are all considered vicious from the beginning (which is not so with the horn). For what purpose, then, did the Scripture enumerate all of them? To teach their different peculiarities; viz., the horn--to distinguish between a vicious and a non-vicious one; the tooth and foot--to exempt them from liability if the damage was done on public ground (for it is written, Ex. xxii. 4, “and they feed in another man’s field,” but not on public ground); the pit--to exempt it from liability if vessels fell into it (and were damaged); the man--to make him liable to pay for the four things (which is not so in the case of the others); fire--to exempt it from liability if it consumed concealed articles (as e.g., if articles were concealed in a stack of grain, in which case the liability is only for the grain, but not for the articles).

“The one thing, common to them all,” etc. What does this mean to include? (As from the statement it seems to include all other things the nature of which is to do damage, and one is charged with taking care of them, what other such things can there be?) Said Rabhina: “It means to include that which we have learned in the following Mishna: ‘If notice be given to one to remove (within a certain time usually given by a Beth Din) a wall, or to cut a certain tree, (and he failing so to do within such time) they fall, he is liable.’” How is the case? If he renounced his ownership of them, then according to both Rabh and Samuel it is like the case of the pit; as a pit because it does often damage one must take care of it, so also is the case here.[104] If he has not renounced ownership, then, according to Samuel who says that they are all deduced from the pit, are they the same as the pit? Nay, the case is that he has renounced ownership, but lest one say that they are not like the pit which is originally made to do damage, which is not the case with the above things (the building of a wall or the planting of a tree), then the case of the ox proves that; and lest one say that the ox is different because of its usual way of doing damage with its feet, then again the case of the pit may prove and so the conclusion will return (and the original argument is reinstated).

“To pay the damages.” The rabbis taught: It is written [Ex. xxii. 4]: “With the best of his own field, and with the best of his own vineyard shall he make restitution.” That means the best field and the best vineyard of the plaintiff (e.g., if A’s ox grazed upon a parcel of land belonging to B, the best land of B is taken as a standard, and A must pay an amount of damages equal to the difference in value of such a parcel of land before and after having been grazed upon). Such is the dictum of R. Ishmael; R. Aqiba, however, said: “The passage intends to state only that damages are collected from the best estates of the defendant (i.e., the parcel of land of the plaintiff is appraised, and if the defendant wishes to pay in land he must do so with land of his own best estates), and so much the more in case of damages to consecrated articles. Is it possible that according to R. Ishmael restitution must be made with the best land even if land of an inferior quality be damaged? Said R. A’ha bar Jacob: “The case treated of here is that the best land of the plaintiff was of the same quality as the worst land of the defendant, and they differ on this point. R. Ishmael holds that the land of the plaintiff is taken as a standard, and the passage stating that he shall pay from the best estates, means from the best estates of the plaintiff, and R. Aqiba holds that that of the defendant is taken as a standard for best.”

What is the reason of R. Ishmael’s statement? The word “field” is written below (with the best of his own field) and also above (and they feed in another man’s field) (ibid., ibid.); as above it has reference to the land of the plaintiff, so also in the statement below (and the passage is to be expounded thus: When the defendant has land which equals the best of the plaintiff’s, he must pay out of such land the amount of the damage). And R. Aqiba? He may say, it is written: “With the best of his own fields, etc., he shall make restitution.” That means not that of the plaintiff (and no deduction by analogy is admissible when the statement is so plain). R. Ishmael, however, may say: In this case we must derive the benefit of both the analogy of expression and the passages; the analogy of expression as I have explained, and the benefit from the passage I derive for explaining that it refers to a case where the defendant has both best and worst land, and the plaintiff has only best land, and the worst land of the defendant is inferior to the best of the plaintiff, in which case he cannot say to the plaintiff, collect your damages from my worst (because the passage gives the benefit to the plaintiff to be paid from the best), and therefore. he must make restitution from his own best estates.

Abayi propounded the contradiction of the following passages to Rabha: It is written [ibid., ibid.]: “With the best of his own fields,” etc., which means from the best estates only and with nothing else, and we have learned in another Boraitha: “It is written [Ex. xxi. 34]: ‘And to return money (make restitution)’; means this to include equivalents of money, even bran?” (Rabha answered): This presents no difficulty. When he returns of his own will he may give even bran, but if through the court he pays from the best estates. Said Ula, the son of R. Ilai: “The wording of the passage seems to lead to the same conclusion, for it is written ‘shall he make restitution,’ which signifies involuntarily.” Said Abayi to him: “Is it then written ‘restitution shall be made’?” (which would mean involuntarily). It is written “he shall make,” etc., which can also mean voluntarily. When R. Papa and R. Huna, the son of R. Jehoshua, returned from the college they explained the above passage as follows: “Anything (of personal property) is considered as the best of estates, for if he cannot sell it (at a reasonable price) at one place, he can take it to another place (and therefore if he makes restitution with personal property he may do so even with bran); except (if he makes restitution with) land, he must do so only with the best estates in order to enable him to procure a buyer.”

R. Samuel bar Abba of Akkrunia propounded the following question to R. Abba: When the standard (as to which are the best and which are the worst lands) is taken, is it taken of those lands of his own, or of those of the public in general? (i.e., has the defendant to make restitution out of his own best estates, and if his worst lands are as good as the best of the public in general, must he nevertheless pay out of his own best, or if his worst lands are as good as those of the public in general, may he make restitution out of his worst lands?--for they are as good as those of the public in general). According to R. Ishmael this is no question, for he says that those of the defendant are taken as a standard (and therefore if his worst are as good as those of the plaintiff he pays out of his worst estates), but the question is only according to R. Aqiba, who holds that those of the defendant are to be taken as a standard. How is it? Shall we assume that the passage “the best of his own fields” means to exclude the lands of the plaintiff, or it means to exclude the lands of the public in general? And he answered him: The Scripture states expressly “of his own land,” and you ask whether the land of the public in general is taken as a standard? R. Samuel objected: We have learned (in case there are to be collected a woman’s claim under her marriage contract [Kethubah], damages, and other debts): If one has only good lands, all the claims are collected from the good lands; if he has only medium lands, all are collected from those lands; if only poor-quality lands, all are collected from those lands; if he has all the three, damages are collected from the good; ordinary creditors collect from the medium; the Kethubah is collected from the poor-quality lands; if he has good and medium land only, damages are collected from the good; ordinary debts and the claim of his wife are collected from the medium lands; if he has medium and poor-quality lands only, damages and ordinary debts from the medium and the wife’s claim from the poor-quality lands; if he has only good and poor land, damages from the good and the other two from the poor-quality land. Now, we see that the middle part of this Boraitha states “that if he had medium and poor land, damages and ordinary debts are collected from the medium and the other two from the poor land,” and if it is as you say, that his own lands are taken as a standard, let the medium he has be considered the best (as they are his best), and the creditors shall be referred to the poor lands? Therefore said Rabhina: They differ as to the statement of Ula. For Ula said: “According to the Scripture the creditors are paid out of the poorest, for it is written [Deut. xxiv. 11]: ‘In the street shalt thou stand, and the man to whom thou dost lend shall bring out unto thee the pledge into the street.’ Now if it depends on the will of the debtor, he usually brings out the poorest article he possesses as a pledge; but why have the sages enacted that creditors shall be paid out of the medium? In order not to close the door to the borrowers.” The one master holds of Ula’s enactment, the other one does not (but adheres strictly to the meaning of the passage).

The rabbis taught: “(One who had to pay damages, ordinary debts, and the wife’s claim), if he convey all his estates (the good, medium, and poor) to one person, or to three different persons at the same time, they pass to the grantees subject to the same liabilities as if in the hands of the grantors (i.e., the one who bought the good pays off the damages, the one who bought the medium pays off the creditors, etc.). If at different times, all are paid from the estate sold last (for the buyers of the prior estates may each say: When I bought my land there were other lands from which to pay). If this estate is not sufficient, the last but one is resorted to; if still insufficient, the last but two is resorted to.” How is the case, if he conveyed to one person? Shall we assume that he conveyed them by one deed, then surely they pass subject to the original liability, for even if he sold them to three persons, in which case one must have priority, you say that they pass subject to such liabilities, still more so if he sold to one? (what was the necessity of stating it?) Therefore we must say that it means that they were conveyed one after another (on three different days), and why does he state three? To teach that although each one of them may say: “I left room enough for payment,” the same thing may be said even if sold to one. He will say on each parcel of land: When I bought this parcel of land there were other parcels out of which to pay. The case here is that the good lands were the last to be sold (in which case it is more advantageous for him to let them collect according to their rights than to advance the argument that he left room for payment). So also said R. Shesheth. If so, shall they all collect of the good lands? (for at the time the first two estates were sold all the liability shifted over to the best lands). The grantee may tell them: “If you will be quiet and collect according to your original rights well and good, but if not I will return the deed for the sale of the poor land to the grantor (and then the liability will shift over to those lands, for no claims are collected from conveyed lands when there are free lands), and all of you will have to collect your claims from the poor land.”

It is certain that when the grantee conveyed the medium and the poor lands, and left the best for himself, that they all collected their claims from the best lands, for those were the only ones which remained, and the others were no more in his possession so that he could refer to them saying, “I do not care for the enactment of the sages (for my benefit)” but in case he conveyed the good land and left for himself the medium and the poor, how is it? (shall the claims be collected from the second grantee because he took his lands subject to the liability? and from the first grantee they cannot collect, for he can say he accepts the enactment of the sages, and the good estates which were at the time of the first conveyance free were subject to the liability for payment of the claims?). Abayi intended to decide that all collect from the best estates. Said Rabha to him: “Did not the first grantee convey to the second grantee all his rights and interests he may have in them? And now, if they would come to the first grantee, they could collect from the medium lands only, and although at the time the medium and poor lands were conveyed the good ones were still free, he could say, “I do not want to avail myself of the enactment of the sages”; so also the second grantee can tell them: “Collect your claims from the medium and poor lands,” for when the second grantee bought the estates he did so with the intention to acquire all the rights and interest the first grantee had at the time. R. Huna, however, said: (The above passages, one mentioning “money” and the other “the best estates,” do not contradict each other), it means either money or best estates.[105]

R. Assi, however, said: “Money is as good as land.” For what purpose is this statement? If for the purpose that it is considered the “best” (i.e., although he has good land he may pay in money), then it is the same that R. Huna stated, and it would be sufficient to say “and so also said R. Assi” Shall we assume that it is for the purpose of teaching as in the case of two brothers who have divided up land between themselves, and subsequently a creditor (of their father) comes and levies upon the share of one of them (that the other may pay his share of contribution either in land or in money)? Did not R. Assi already state this case? For it was taught: “Two brothers partitioned their estates and subsequently a creditor came and levied upon the share of one of them; Rabh said the partition is thereby annulled (and a new partition must take place of the lands which remained), because he holds that brothers in such a case are as heirs. Samuel, however, said that it is valid, because he holds it is as an ordinary sale and as one who buys without a responsibility. R. Assi says he (the other brother) must pay his share of one-fourth in land and one-fourth in money, for he was in doubt whether they are considered as heirs, and he must contribute his share in land and not in money, or as an ordinary sale with responsibility, and he must pay to him what he lost, but in money, and therefore he must pay one-fourth in money and one-fourth in land), therefore he must pay one-fourth in land and one-fourth in money. But what is meant by the statement “it is as good as land”? that it is considered “best”? then it is again the same statement made by R. Huna? Say: “And so also said R. Assi.”

R. Zera in the name of R. Huna said: In case one does a meritorious thing he shall do it up to one-third. What does this mean? Shall we assume that it means up to one-third of his own property? If so, then if he has occasion to perform three meritorious things he must spend his whole property? Said R. Zera: It means up to one-third in endeavoring to adorn the meritorious thing (e.g., if there are two scrolls of Law, and one is more expensive than the other, he shall spend one-third more to buy the more expensive one). R. Assi questioned: Does it mean one-third of the cheaper one, or does it mean one-third should be added? This question remains unanswered. In the West it was said in the name of R. Zera: Up to one-third he shall spend from his own (without expectation to be rewarded in this world), thenceforward from the Holy One’s, blessed be He (i.e., that part will be repaid to him in this world).

MISHNA II.: (The following is the rule:) In all that which I am charged with taking care of I have prepared the damage (i.e., if damage was done it is considered that I was instrumental in doing it). If I prepare only a part of the damage I am responsible nevertheless for the whole, as if I prepared the whole. And only as to property which cannot be desecrated (but for that which is desecrated there is no responsibility), or property of persons governed by laws adopted by their community,[106] or such that has an owner, and at any place (the damage was done), except if done on the ground exclusively belonging to the defendant, or on that belonging to both together, the defendant and the plaintiff. If damage was done, the defendant must complete the payment of the damages with the best of his estates.

GEMARA: The rabbis taught: “In all that which I am charged with taking care of,” etc. How so? If one intrusts a deaf man, a fool, or a minor with the charge over a pit, or an ox, and they cause damage he must pay for such damage, which is not so in case of fire (explained further on). What case is treated of here? when the ox was kept on a rope, or the pit was covered, equivalent to which in case of fire is as if it were live coals; and if you should ask why there should be a difference (between the former and the latter), (it may be said) in the case of the ox he is likely to get loosened, and in the case of a pit the cover is likely to slip off (and therefore the owner should have that in mind and bestow better care), but in the case of coal it is the reverse, for it is likely to get more and more extinguished. But according to R. Johanan, who said (elsewhere) that if one intrusts even a flame (to those stated above) he is also free (and consequently the statement above, “which is not so in case of fire,” must be explained as meaning a flame), and in such a case the equivalent thereof here would be a loosened ox and an uncovered pit. Why should there be a difference? There (in case of fire) the deaf man has so closely connected himself with the fire (i.e., if he would not move it, it would remain stationary), that it is considered that he himself has done the damage (this is according to Rashi’s second explanation, and it is stated elsewhere that if a deaf man, etc., do damage there is no liability), but here it is not so (for the ox or the pit did the damage without the aid of those mentioned).

The rabbis taught: There is a more rigorous rule in the case of the ox than in the cases of the pit and the fire, and vice versa. (How so?) The rigorousness of the rule in case of the ox is that he (the owner) pays the atoning money (when the ox kills a free man, and 30 shekels if a slave) which is not so in the case of the pit and fire. The rigorousness of the rule in the cases of the pit and the fire is that the pit is originally made to do damage, and the fire is considered “noxious from the beginning,” which is not so in case of the ox. There is a more rigorous rule in the case of fire than in the case of the pit, and vice versa. The rigorousness of the rule in case of the pit, which is made originally to do damage, lies in that one is responsible if he intrusted it to a deaf man, minor, or fool, which is not so in case of fire, and the more rigorousness is in the case of fire, which has in its nature to move and to do damage, and is considered noxious in that it consumes everything whether fit or unfit for it, which is not so in the case of the pit. Let him also teach that the case of the ox is more rigorous because he is liable for damages to vessels (by breaking them intentionally either with the horn or with the foot), which is not so with the pit. The Tana enumerates some and leaves out others. Is then anything else left out that also this is left out? Yea, the case of concealed articles (e.g., if an ox has kicked upon a sack containing vessels, or an ox carrying a sack containing vessels fell into a pit and the vessels broke, the owner is responsible for the vessels, which is not so in case of fire).

“If I have prepared a part of the damage,” etc. The rabbis taught: “How so? If one dug a pit nine spans deep and another one came and completed it to be ten spans deep, the latter is responsible (whether the ox falling into it was killed or only injured). Shall we assume that this is not according to Rabbi (who said further on that for damages both are liable)? Said R. Papa: The case is that the ox that fell in was killed (in which case Rabbi also agrees that the one who dug the last span must pay). R. Zera opposed: Is this the only case--is it not the same if one left his ox in charge of five persons, and one of them left intentionally and the ox caused damage--is the, one who left responsible? And R. Shesheth also opposed, saying that there is another case when one added fuel to a burning fire, and the latter caused damage; the last one is responsible, and R. Papa himself opposed, saying there is also another case of the following Boraitha when five persons sit on a bench, and it does not break, and another one comes and sits down and it breaks, the last one is responsible (for the whole damage); and he himself explained it as it had been, Papa bar Abba (who was a heavy-weight man). Now, let us then see; in all those three cases how is it to be understood? If without the last one no damage would have been caused, then is it self-evident that he is responsible? And if even without him damage would have been caused, then what has he done that makes him liable? (and therefore these illustrations cannot be cited, because in the, case of the pit the one who dug it nine spans can say to the other: If you had not dug the tenth span the animal would not have been killed (as there is a tradition that a pit less than ten spans deep cannot kill), but only injured, and I would have had to pay only for the injury, but not for the whole animal). But finally how is this Boraitha, after all, to be explained? (for the former two cases which are not Boraithas we do not care). It can be said that if he would not have sat down it would have not broken before the lapse of two hours, and he hastened it to break in one hour, in which case the first five can say to the last one: “If not for you, we would have remained sitting a little longer, and would have left (and the bench would not have broken).” But why should he not reverse the argument and say: “If you were not with me on the bench, it would not have broken at all?” The case is that it broke while he was leaning on them. What is the difference? Lest one should say that, as he caused the damage only by his strength (leaning) and not by sitting down, he should not be liable, he comes to teach us that one’s strength is equivalent to one’s weight of body.

“I am responsible to pay the whole damage.” It does not state “I am responsible for the damage,” but “I am responsible to complete the compensation for the damage”; this is a support to what was taught by the rabbis: “The completion of the compensation for the damage.” This is to teach that the plaintiff must trouble himself with the disposal of the carcass. Whence do we deduce it? Said R. Ami: It is written [Lev. xxiv. 21]: “And he that killeth a beast shall make restitution for it” (yeshalmenah). Do not read “yeshalmenah,” but read “yashlimenah,” he shall complete her (i.e., the plaintiff shall take the final trouble of disposing of it by sale and the defendant shall pay the balance of the damage). Hezkyah says, it can be deduced from the following passage [Ex. xxi. 34]: “And the dead beast shall be his,” which signifies it shall be that of the plaintiff. So it was explained by the disciples of Hezkyah. “Thou sayest it belongs to the plaintiff perhaps the passage means that it belongs to the defendant? It was said: “It was not so.” What does that mean? Said Abayi: If thou shouldst think that the carcass belongs to the defendant, it should have been written “an ox for an ox” [ibid., ibid.], and no more (and I would know that the defendant can have the carcass); why the addition of the above passage? Infer here from that the passage means that it shall remain the plaintiff’s. Said R. Kahana to Rabh: Is that so, that without the addition of that passage it could be thought that it belongs to the defendant? Where is the common sense? Since if he (the defendant) has a number of carcasses he may give them to the other party (in payment of the damages), for the master said above: It is written [ibid.] “He shall ‘return’; that includes equivalents of money, and even bran.” The more so the carcass in question, which is his own? This statement (as to who has to trouble himself with the disposal of the carcass) was necessary as to the loss in value of the carcass (i.e., that from the time the animal was killed its owner is charged with its disposal, and if through his negligence it was not disposed of, and there resulted a loss in value, that loss is charged to the plaintiff).

Shall we assume that the Tanaim of the following Boraitha differ as to this case? It is written [ibid. xxii. 12]: “If it be torn in pieces let him bring it in evidence that it happened so by accident, and he will not be liable” (for a bailee for hire is not responsible for accident). Abba Saul, however, says it means he shall bring the carcass into court (to be appraised). May we not suppose that they differ thus (for we cannot suppose that they differ in case it was done by accident, for even Abba Saul must concede that a bailee for hire is not responsible in such a case, but they probably differ in a case where the bailee is liable): One holds that the loss in value is chargeable to the plaintiff, and the other holds that it is chargeable to the defendant?

Nay, both agree that it is chargeable to the plaintiff, but they differ as to the trouble of transportation of the carcass.

As we have learned in the following Boraitha: The anonymous teachers say: Whence do we deduce that the owner of the pit has to bring up the killed ox from the pit (at his expense)? It is written [ibid. xxi. 34]: “He shall make restitution in money unto the owner thereof; and the dead” (i.e., he must give also the carcass, which cannot be done unless brought up from the pit). Said Abayi to Rabha: “How is this case of transportation of the carcass? Shall we assume that when in the pit it is worth one Zuz and when on the brink thereof it is worth four? Then this trouble is for his own benefit? Why the passages?” He answered him: “The case is that it is in either case not worth more than one Zuz” (and even then he must bring it up). But can there ever happen such a case? Yea, as people usually say: “A beam in the forest is worth one Zuz, and the same, although, in the city, is also only of same value.”

Samuel said: “(It is the custom of the courts that) no appraisement is made for a thief or robber (i.e., if one stole an article, etc., and the same was broken, he does not return the broken parts and pay the difference in value, but must return good articles), but only in case of damages. And I, however, add also the borrower, and Aba (Rabh) agrees with me.”

It was taught: Ula said in the name of R. Elazar: An appraisement is made for a thief and a robber. R. Papi, however, said: No appraisement is made. And the Halakha prevails that no appraisement is made for a thief and robber; but for a borrower, however, it may be made, according to R. Kahana and R. Assi. Ula said again in the name of R. Elazar: “A firstborn (of a man) which was killed by an animal within the thirty days need not be redeemed.” So also has Rami bar Hama taught: Because it is written [Numb. xviii. 15] “thou shalt redeem” one might think that this were so even if it were killed within the thirty days; therefore it is written [ibid., ibid.] “nevertheless”[107] to distinguish (that in case it was killed it need not).

The same said again in the name of the same authority: “Of brothers who have divided up (their estates of inheritance), that wearing apparel which they have on is appraised, but that which their sons and daughters have on is not appraised, because they have no case in court, and therefore we do not trouble them to come.” Said R. Papa: “Sometimes, however, even what they have on is also not appraised; this may be the case if the eldest brother was the manager of the estates, and he was dressed in better clothes for business purposes.”

The same said again in the name of the same authority: The Halakha prevails that debts are collected from slaves (because they are considered as real property). Said R. Na’hman to Ula: Did R. Elazar say so even when the slaves fall inheritance to orphans? Nay, only from him. From him? Would you say even from the only garment he has on? The case here is that he has hypothecated the slave, as Rabha said: “If one hypothecates his slave and thereafter sells him, the creditors nevertheless replevy the slave. If he has, however, hypothecated his ox, and thereafter sold him, the creditor cannot replevy him. Why so? Because when a slave is hypothecated people talk about it, and therefore the vendee is charged with notice, which is not the case with an ox.” After R. Na’hman left, Ula said to those present: “So said R. Elazar: ‘Even from the orphans (for a slave is as real estate).’” Said R. Na’hman (when he heard of this): “Ula avoided me (to state that in my presence, for fear I would cut him off with numerous objections).” Such a case happened in Nahardea and her judges collected a debt (from the slaves which fell an inheritance to orphans). In Pumbeditha such a case happened, and R. Hana bar Bizna collected it. Said R. Na’hman to them: “Go and return it, and if not I will collect it from your property.” Said Rabha to R. Na’hman: “Ula, R. Elazar, the judges of Nahardea, and R. Hana bar Bizna are all your opponents; according to whom then is your decision?” He answered: “I know a Boraitha, which was taught by Abimi: “A premonition (πρεοβολη) is effective as to land, but not as to slaves; personal property passes with land (if personal property is sold with land, and only the land is taken possession of, the personal property also passes), but not with slaves.” (Hence we see that slaves are considered personal property.) Shall we assume that the Tanaim of the following Boraithas differ as to this case: If one sold slaves and land, and the vendee took possession of the slaves, the land does not pass. The same is the case if vice versa. Land and personal property, if the vendee took possession of the land, the personal property passes, but not vice versa. Slaves and personal property do not pass, unless the vendee takes possession of both of them, as one does not pass with the other. In another Boraitha it was taught that if one takes possession of the slaves the personal property sold therewith passes. Shall we not assume that they differ in this: One holds that slaves are considered real, and the other holds that they are personal property? Said R. Ika, the son of R. Ami: “Nay, all agree that a slave is personal property, and that Boraitha which states that it does not pass is correct, and that Boraitha that states that it does pass, treats of a case where the clothes which are on the body of the slave were sold.” [And even when so, what of it? Is this then not considered a moving court, and with a moving court (personal property) does not pass? And if you should say that he was then not moving, did not Rabha say (Baba Metzia, Chap. I.) that if it does not pass when moving, it does not do so also when standing or sitting?] The Halakha prevails that it passes only when the slave is tied and cannot move.

But have we not learned in another Boraitha that if he takes possession of the land the slaves also pass? There is the case that the slaves are standing upon it. Would you say that the Boraitha which states that they do not pass means that they do not stand upon it? This would be correct according to the one who says that slaves are considered personal property, and therefore if they stand upon it they do, and if not they do not pass; but according to the one who says that slaves are as real property, why is it necessary that they should stand upon it? Did not Samuel say that if one convey to another ten different parcels of land located in as many different states, the taking possession of one of them acquires title to all? (Says the Gemara: What a question is this?) Even according to the opinion of him who says that slaves are considered personal estates, why is it needed that they should stand upon it? Have we not the tradition that if personal property be sold with real property, the former need not be upon the latter when possession is taken of the latter? What answer can you give to this, that there is a difference between personal estates that are movable and those that are not? Say the same thing here: There is a difference between movable and immovable real estate. Slaves are considered movable real estate, the body of the earth is one wherever it is (consequently all his lands are attached to each other).

“Property which cannot be desecrated,” etc. R. Abba said: “An ox intended to be sacrificed as a peace-offering, which has done damage, the (half) damage is paid out of his meat, but not out of those pieces prepared for the altar.” Is that not self-evident, for those pieces are for the Lord? It means to teach that the value of the half of these pieces is not collected from the other half of the flesh (e.g., a non-vicious ox consecrated for a peace-offering, of the value of two hundred Zuz when slaughtered, that has killed another ox of the same value when alive, in which case according to law he must pay the damage out of half of his body. Now the pieces being burnt the value of the half body is diminished, nevertheless the amount diminished cannot be collected from the other half of the body). According to whom is this? According to the rabbis, (who hold in case one ox has pushed another ox into a pit) that only the owner of the ox has to pay, but not the owner of the pit (although it is not sufficient); then this is self-evident. If it is according to R. Nathan, who in the above case holds that the owner of the pit must complete it, why should in this case the parts sacrificed be exempt? This can be according to both R. Nathan and the rabbis; according to the rabbis, because we might say that the rabbis held so only where there are two distinct elements (the ox and the pit), but in this case where there is only one body, the plaintiff may say: I will collect my damage from any part I wish. And according to R. Nathan: In that case the owner of the ox may say to the owner of the pit: I found the ox in thy pit; whatever I cannot collect from that party, I will collect from thee. But in the case herein can he then say the flesh has done the damage, but not those pieces in question? (Hence the statement.)

“And that property that has owners.” What does this mean to exclude? We have learned in a Boraitha, this means to exclude ownerless property. How is the case? If our ox gore an ownerless ox, who claims damages? If the reverse is the case, let him go and take the ox? The case is that (after he has done the damage) he was appropriated by some one. Rabhina said: “This means to exclude the case where he first did the damage, and then was consecrated by his owner, or declared ownerless (by driving him out).” So also we have learned in a Boraitha: “Further than that said R. Jehudah: Even if he damaged and then was consecrated, or his owner declared him ownerless he is exempt, as it is written [Ex. xxi. 29], ‘and warning have been given to his owner, and he killeth a man or a woman,’ etc., which signifies that during the killing, the bringing of the suit and the making of the award there shall be one and the same owner.”

“Except on the property of the defendant.” For he can say to him: What has your ox to do on my premises?

“And on the property of both the defendant and the plaintiff.” Said R. Hisda in the name of Abimi: In a partnership court one partner is liable to the other partner for damages done by the tooth and foot, and our Mishna is to be explained thus: “Except on property exclusively belonging to the defendant, where he is free, but on premises belonging to both the defendant and the plaintiff, if damage is done, the one doing it is liable.” R. Elazar, however, makes them free and explains the Mishna that there is no liability for foot and tooth when it belongs to the plaintiff or to both the defendant and the plaintiff, and what is stated further on of one’s liability refers to damage done by the horn, because partnership property is for that purpose considered a public ground. It is right according to Samuel (ante, p. 5), but according to Rabh, who says that the expression “ox” in the Mishna includes everything in relation thereto, what does this mean to include? It means to include that which the rabbis taught: “If damage is done the defendant is responsible.” This means to include the depositary, the loan for use, the loan for hire, and the bailor for hire; if an animal has done damage on their ground, a non-vicious ox pays half and a vicious ox pays the full amount of damages. If the enclosure wall in good condition broke in in the night time, or it was broken in by burglars and (the animal) went out and has done damage, there is no liability.” How was the case? Shall we assume that the ox of the bailor for hire has injured the ox of the bailee, let the bailor say to the bailee: If he should damage some stranger’s property you would have to pay (because you are charged with taking care of him); why should I pay you when he has injured your ox? And if the reverse were the case (and still it is said that only one-half is paid), let the owner say to the bailee: If he were injured by an ox of a third person would you not have to pay me the full amount of damage? (because in the case of a loan for use he is liable for damages occurring by accident), now when your own ox has caused the injury you want to pay me only one-half? The case is that the ox of the bailor has injured the ox of the bailee, and the objection just stated can be explained that the bailee has agreed to take care that the ox shall not be injured, but not that he shall do no injury to others.

If so, how will be explained the later part which states that if the wall was broken in in the night-time, or the same was broken in by burglars, and the animal went out and did damage, he is free, from which is to be inferred that if in the daytime there is liability. Why should it be so? Did he then warrant against his injury to others? The Boraitha meant thus: If he has warranted against his injury to others he is liable only in the daytime, but not if in the night-time or by accident. Is that so? Has not R. Joseph taught: “In a partnership court and an inn, one is liable for damages done by the tooth and the foot?” Is this not contrary to the statement of R. Elazar? R. Elazar might answer: Do not the Boraithas themselves contradict each other? Have we not learned in another Boraitha: R. Simeon b. Elazar laid down four rules in regard to damages: “If done on ground exclusively belonging to the plaintiff and not to the defendant, the liability is for the whole (even if done by the horn and in case of a non-vicious animal); if vice versa there is no liability at all; if on ground belonging to both, as e.g. a partnership courtyard or valley, there is no liability for the foot and tooth, but for goring, pushing, biting, lying upon, and kicking, a non-vicious pays one-half and a vicious pays the whole. If on ground belonging to neither of them, as, for instance, a courtyard belonging to neither of them, there is a liability for the tooth and foot; for goring and biting, pushing and lying upon and kicking, a non-vicious ox pays one-half and a vicious pays the whole damage.” Hence, we see that it is stated that in a partnership courtyard or a valley there is no liability for the tooth and the foot, and hence do the two Boraithas contradict each other. That one (which says there is no liability) treats of a courtyard which is held in partnership for both storing fruit and keeping oxen (in which case it is considered a partnership courtyard as to both the foot and the horn), and therefore in case of the tooth he is free, and in case of the horn he pays half, as it is equal to public ground; and that Boraitha taught by R. Joseph treats of a court held in partnership only as to fruit, but not as to oxen, in which case as to the tooth it is considered the exclusive ground of the plaintiff. It seems to be so also from the difference used in the wording of the Boraithas. In one case things similar to an inn (which is not used for oxen), and in the other-those similar to a valley (where generally oxen are pastured) are stated. Infer herefrom. R. Zera opposed: If there was a partnership for fruit, can it be called another man’s field, as required by Ex. xxii. 4? Said Abayi to him: “So long as it is not partnership as to oxen it is considered another man’s field.”

MISHNA III.: Damages are assessed in money, and are collected from what has a value of money; and it must be done before the court, and only on testimony of witnesses who are freemen, and they must be members of a community who have adopted a set of laws for their government; and women are on the same footing with men as to damages; both the defendant and the plaintiff must contribute (sometimes) toward the payment of the damages. (The whole Mishna will be explained further on in the Gemara.)

GEMARA: What is the meaning of “assessing in money”? Said R. Jehudah: It means the assessment shall be made by the Beth Din in money only, and this is explained in the following Tosephtha which the rabbis taught: “If a cow has damaged a garment (on the ground belonging to the owner thereof), and subsequently the garment of same owner lying on public ground was trod upon by the cow, and was damaged, it is not said, because each party is entitled to damage from the other, that both shall be relieved from paying each other at all, but the damages in each case are separately assessed, and the excess paid to the party due.”

“They are collected only from what is valued in money.” The rabbis taught: The expression in the Mishna “what is valued in money” teaches that the Beth Din is not obliged to collect damages unless from real estates, but if the party entitled to be paid, however, has anticipated and has seized upon personal property the Beth Din may collect his claim from that property. How is it so inferred from the Mishna? Said R. Ashi: The expression “which is valued in money” means to say but real money itself, and all those things (personal property, slaves, evidences of debt, etc.) are considered money itself. R. Jehudah bar Hinna propounded the following contradiction to R. Huna, the son of R. Jehoshua: It states “what is valued in money”; this teaches that the Beth Din is not obliged to collect unless from real estates; and another Boraitha states: It is written [Ex. xxi. 34]: “(he shall give) unto the owner,” which includes even equivalents of money, and even bran? (Hence a contradiction?) The case treated of here is that if they are to be collected from orphans’ estates, for damages due from their deceased father, in which case they are to be collected from realty only. If it is from orphans, what does the last part state-that if the party has seized personal property the Beth Din may collect therefrom? The case is as Rabha said in the name of R. Na’hman elsewhere, that he made the seizure during the lifetime of the father, so also is the case here.

“On testimony of witnesses.” This is to exclude the case when one admits his guilt, and thereafter witnesses appear, so that he is no more liable to pay a fine. This is correct according to the one who holds that if one admits his guilt and thereafter witnesses appear that he is no more liable to fine, but according to the one who says that in such a case he is, what does the statement in the Mishna mean to exclude? It is needed in regard to the latter part, which states that the witnesses must be freemen, to exclude slaves.

“And the women are on the same footing,” etc. Wherefrom is this deduced? In the schools of Hezkiah and R. Jose the Galilean it was taught: It is written [ibid. xxi. 28]: “If an ox gore a man or a woman”; this signifies that the Scripture made equal a woman and a man in respect to all crimes which are mentioned in the Scripture.

It was taught: The one-half damage paid (in case of a non-vicious ox); R. Papa said damages, because he is of the opinion that usually oxen require particular care and according to the law he would have to pay the whole damage, but as that happened only once the Scripture had pity with him and remitted one-half, and R. Huna the son of R. Jehoshua holds that it is a fine, because he is of the opinion that oxen usually are considered guarded and according to the law he would have to pay nothing at all, but the Scripture nevertheless fined him in order that he should take particular care. An objection was raised, based upon the Mishna. Both the plaintiff and the defendant sometimes contribute toward the payment of the damage. It is right according to the one who says that the half damages paid is considered damage; therefore sometimes the plaintiff must also contribute (i.e., he takes less than he suffered), but if according to the one who holds that it is a fine, then he takes what he is not entitled to, how can you say that he is contributing? This statement is only in regard to loss in value of the carcass. But this was already stated in the first Mishna, as explained above, “to complete the damage.” Infer that the owners are charged with the disposal of the corpse? This need be stated twice, once in case of a vicious and once in case of a non-vicious animal; and it would not suffice to state it only once; for if it should be stated only in case of a non-vicious animal it would be argued that it is so because of that fact that he was not vicious, but in case of a vicious animal I would say it is not so; and if it would be stated only in case of a vicious animal, it could be said that it is so because the full amount of damage is paid, but in the case of a non-vicious animal it is not so, hence the necessity of stating it twice.

(An objection was made.) Come and hear: “The following is the rule: All those who pay more than actual (punitive) damage (e.g., in case of killing a slave where thirty shekels are to be paid) do not pay so on their own admission (but it must be proved by other evidence). Is it not to be inferred herefrom that in case of paying less (than actual damages), one does pay so on his own admission? Nay, this means in case where the whole damage is paid. But how is it in case of paying less--is the same the case? Then why should it state, the rule is that all those who pay more,” etc.; why not state, the rule is that all those who pay damages not according to the actual amount of damage done,” which would make it clear as to those who pay more as well as to those who pay less? This objection remains, and the Halakha, however, prevails that the half damage is a fine. Can there be a settled Halakha in spite of an objection? Yea, for what is the reason of raising the objection, because it does not teach, “as much as they have damaged”? It could not state so because there is the half damage in case of raking up gravel, which is Mosaic that it is damage and not fine. Now, when the conclusion arrived at is that the half damage is a fine, when a dog consumes a sheep or a cat consumes a hen, it is unusual (and therefore considered the derivative of the horn and pays only one-half damage); such a damage is not collected in Babylon, where fines are not collected. But this is so only where those killed were big ones, but in case they were small ones it is usual, and it is to be collected in Babylon also; but if the plaintiff has seized upon the property belonging to the defendant (even in the former case), we do not compel him to surrender it, and also if he says: “Fix me a time to go to Palestine,” his request maybe granted. And if he does not go he is put under the ban. In either case we place him under the ban until the tort-feasors are removed, as stated further on (end Chapter IV.), in the name of R. Nathan.

MISHNA IV.: There are five cases which are considered non-vicious and five which are considered vicious. A domestic animal is considered non-vicious to gore, to push, to bite, to lie upon, or to kick; the tooth (of an animal) is considered vicious to consume that which is fit for it; the foot is considered vicious to break everything on its way while walking; the vicious ox; the ox doing damage on the estates belonging to the plaintiff exclusively; and a man. The wolf, the lion, the bear, the leopard, and the bardalis and the serpent are considered vicious. R. Elazar says: When they are domesticated they are not, with the exception of the serpent, which is under all circumstances vicious.

GEMARA: From the teaching of the Mishna that “the tooth is considered vicious to consume,” it must be inferred that the case is when the damage was done on the ground belonging to the plaintiff, and it is nevertheless taught “the animal is not vicious,” which means not to pay the whole, but to pay half, and this is according to the rabbis, who say that the horn doing damage on the estate of the plaintiff is considered unusual, and pays only one-half of the damage; then according to whom would be the latter part? “The vicious ox and the ox doing damage on the estate of the plaintiff and the man,” which means that they pay the whole damage, according to R. Tarphon, who says that the horn, although it is unusual for it to do damage on the premises of the plaintiff, still pays the whole. Then the first part of the Mishna will be according to the rabbis, and the latter part according to R. Tarphon? Yea, so it is, as Samuel said to R. Jehudah: Genius, do not trouble yourself about the explanation of our Mishna, and follow my theory that the first part is in accordance with the rabbis and the latter part is in accordance with R. Tarphon. R. Elazar in the name of Rabh, however, said that both parts are according to R. Tarphon, but the first part treats of a court that was separated for fruit only to one of the parties, and for oxen for both of them, and in such a case concerning “tooth” it is considered the premises of the plaintiff only, and concerning “horn” it is considered public ground.

Said R. Kahana: I have explained this Halakha to R. Zbid of Nahardea, and he rejoined: How can both parts of the Mishna be in accordance with R. Tarphon? Did not the Mishna state, “the tooth is vicious to consume what is fit for it,” which signifies that it is vicious only as to what is fit for it, but not as to what is unfit (as then it is like the horn and pays only half), and R. Tarphon says plainly that even the horn pays the whole on the premises of the plaintiff?

Therefore said Rabhina: “The Mishna is not completed, and ought to read as follows: There are five cases which are considered non-vicious until they are declared to be vicious; the tooth, the foot, however, are considered vicious from the very beginning, and this is called the vicious ox; as to the ox doing damage on the estate of the plaintiff, the rabbis and R. Tarphon differ; and there are other vicious animals similar to those: the wolf, the lion, the bear, the bardalis, the leopard, and the serpent.” So also we have learned plainly in a Boraitha.

“And not to lie upon.” Said R. Eliezer: “It is so only when it lies on large vessels, but if on small ones it is usual, and it comes under the law applying to the foot.”

“The wolf, the lion, etc., and the bardalis.” What is a bardalis? Said R. Jehudah: It is a Nephrasa. What is a Nephrasa? Said R. Joseph: It is an Apa (Hyena).[108] Samuel said if a lion on public ground had caught an animal and ate it up alive there is no liability, for it is his usual way to do so, and therefore it is as if an ox had consumed fruit or herbs in public ground; but if he had first killed it and then ate it up he is liable, for it is not usual, and it comes under the law applying to the horn.

MISHNA V.: There is no difference between a vicious and a non-vicious animal, only that a non-vicious pays one-half of the damage, and only from the (money realized from the sale of the) body of the animal having done the damage; and a vicious animal pays the whole damage and from the best estates.

GEMARA: What is meant by “best estates”? said R. Elazar: It means, the highest of his own estates; and so it is said [II Chron. xxxii. 33]: “And Hezekiah slept with his fathers, and they buried him in the best place of the sepulchres,” etc., and R. Elazar said, “best” means among the “highest of his own family”--that is, David and Solomon.”

It is written [ibid. xvi. 14]: “And they buried him in his sepulchres, which he had dug for himself in the city of David, and they laid him in the couch which was filled with sweet odors and divers kinds of spices,” etc. “And all Jehudah and the inhabitants of Jerusalem showed him honor at his death” [ibid. xxxii. 33]. Infer from this that his disciples were placed on his grave to study the law. R. Nathan and the sages differ as to how long it continued; one says it lasted three, the others say seven, and still others say it lasted thirty days.

The rabbis taught (referring to the passage just quoted) that it means the thirty-six thousand people who preceded the coffin of Hezekiah, the king of Judah, all their shoulders bared. So said R. Jehudah. Said R. Ne’hemiah to him: “Was not the same thing done upon the death of Ahab?” The great honor consisted in that the Holy Scrolls were placed on his coffin, and it was announced, “That one resting in the coffin has performed all that is written in these Scrolls.” But do we not do the same thing at present? At present we only take the Scrolls out, but we do not place them on the bier, and if you wish you may say that at present we even place them on the bier, but do not say “that he performed,” etc. Said Rabba bar bar Hana: I was once walking along with R. Johanan, and he said that at present we say even “he performed,” etc., but we do not say “he taught” (that which is written in the Scrolls, which was said at the funeral of Hezekiah). But did not the master say: “The study of the Law is great because it causes action”? Hence we see that action has preference over study, and why was it said of Hezekiah that he “taught”? This presents no difficulty. Over learning, action has a preference; teaching, however, has preference over action.

R. Johanan in the name of R. Simeon b. Johai said: “It is written [Isa. xxxii. 20]: ‘Happy are ye that sow beside all waters, freely sending forth the feet of the ox and the ass.’” It means that those who occupy themselves with the study of the Law and those bestowing favors on others will be rewarded with the inheritance of two tribes, as it is written [ibid., ibid.]: “Happy are ye that sow,” and “sowing” means nothing else than charity, as it is written [Hosea x. 12]: “Sow then for yourselves after righteousness, that you may reap (the fruit) of kindness”; and by “water” is meant the Law, as it is written [Isa. Iv. 1]: “Ho, every one of ye that thirsteth, come ye to the water” (i.e., the Torah); “is rewarded with the inheritance,” etc., means he overcomes his enemies as the tribe of Joseph, as it is written [Deut. xxxiii. 17]: “With them shall he push nations together to the ends of the earth,” and he acquires understanding as the tribe of Issachar, as it is written [I Chron. xii. 32]: “And of the children of Issachar, those who had understanding of the times to know what Israel ought to do.”

Chapter II

RULES REGULATING THE PRINCIPLE OF VICIOUSNESS AND NON-VICIOUSNESS IN THE FOUR PRINCIPAL TORT-FEASORS ENUMERATED IN THE FIRST MISHNA.

MISHNA I.: What tendency makes the foot to be considered vicious?[109] That of breaking (everything in its way) while walking. An animal has a tendency to cause breakage while walking in her[110] usual way. If, however, she were kicking (which is not her habit to do, and therefore considered a derivative of the horn), or there were gravel being kicked up from under her feet (which is sometimes her habit to do) and vessels were broken, one-half of the damage is paid. (In the case of gravel it is so by tradition; and the case is that it was done on the premises of the plaintiff.) If she stepped on a vessel and broke it, and the fragments thereof fell on another vessel and broke it, for the first vessel the full amount of the damage is paid (for it is the damage of the foot), but for the second vessel only one-half is paid (for it is the same as that of “gravel”). Cocks have a tendency to walk in their usual way and cause breakage. If, however, something was attached to their feet, or they were hopping and they broke vessels, only one-half is paid (the reason is explained further on in the Gemara).

GEMARA: Said Rabhina to Rabha: (Let us see.) Does not the term “foot” in the Mishna mean the foot of the animal; and does not the term “animal” mean its foot? Why, then, the change of the terms in the Mishna? He answered: Our Mishna begins with “foot,” because the same term was used in a previous Mishna (page 27), (but the proper term is “animal”).

The rabbis taught: An animal has a tendency to walk in her usual way and cause breakage. How so? An animal that entered upon the premises of the plaintiff and caused damage with her body, or with her hair while walking, or with the saddle which she had on, or with the freight she was loaded with, or with the halter placed in her mouth, or with the bell suspended from her neck; and an ass with his load the whole must be paid. Summachus says: In the case of gravel and in that of a swine raking in rubbish, if damage was done the whole must be paid. “Damage was done?” Is this not self-evident? Read therefore: If he hurled it and thereby did damage, the whole must be paid. “Gravel?” Where is this here mentioned? The Boraitha is not complete, and ought to read thus: In case of gravel, although it is in their nature to kick up, still half only is paid; and the same is the case if damage was done by a swine that was raking in rubbish and hurled some of it. Summachus, however, says: Gravel and swine pay the whole damage.

The rabbis taught: Cocks that were flying from one place to another, and broke vessels with their wings, pay the whole; if, however, the damage was caused by the wind produced by the wings, only half is paid (for whatever is not done directly by the body, but only by the force produced by the body, is considered to be on the same level with “gravel,” and pays half). Summachus, however, holds that the whole must be paid.

Another Boraitha states: Cocks that were hopping on dough, or on fruit, and made the same dirty or punctured them, the whole damage must be paid. If they throw on them dust or gravel, half is paid. Summachus, however, holds that the whole must be paid.

Still another Boraitha teaches: If a cock were flying from one place to another, and the wind produced by the wings damaged vessels, only half must be paid. So we see that the above anonymous Boraitha is according to the Rabbis. Said Rabha: On the contrary, the last Boraitha is correct according to Summachus (who opposes that it was a tradition that “gravel” pays only half) and says that the whole must be paid, because he holds that one’s force is on the same level with one’s body (and therefore damage done by the wind, caused by the wings, is equivalent to damages-done by the wings themselves), but according to the rabbis, if it is considered as done by the body, then the whole must be paid; if it is not considered as done by the body, nothing is to be paid. Subsequently Rabha himself explained: It is undisputed that one’s force is equivalent to one’s body, but the force (wind) being unusual, it is considered as “gravel,” for which there is a tradition that only half is paid.

Rabha said again: All that which in case of one having a running issue is considered a sufficient contact to make the article unclean, in case of damages pays the whole; and all that which in case of one having a running issue is not sufficient contact to make unclean, pays in case of damages half; and he means to teach us the case of the wagon carrying one having a running issue (i.e., as in case of a wagon carrying one having a running issue which passes over vessels the latter become unclean, but if only “gravel” is kicked up from under the wagon and falls upon vessels the latter do not become unclean; so also in case of damages, in the first instance the whole, and in the latter instance only half is paid). There is a Boraitha supporting Rabha: “An animal has a tendency,” etc. (as stated above, page 31), with the addition that a wagon carrying a person pays the whole damage.

The rabbis taught: “Cocks that were nibbling at a rope from which a water-pail was suspended, and severing the rope broke the water-pail, pay the whole.” Rabha propounded a question: If an animal stepped on a vessel which did not break at once, but only rolled away for some distance and then broke, what is the law? Do we follow the origin and consider it to have been broken by the body (and the whole is paid), or do we follow the place where the breakage took place, and it is the same as in the case of “gravel” (and only half should be paid)? Come and hear: Hopping is not to be considered vicious; according to others, however, it may. Is it possible that damage done by hopping shall not be considered vicious (is it not in the nature of the cocks to do so)? Must it not be assumed that while hopping the vessel rolled away and then broke, and they differ on the following: One holds we trace the damage to the origin, and one holds that we consider only the place where the damage occurred? (Hence we see that in this case there exists a difference of opinion.) Perhaps (all agree that we consider only the place where the damage occurred, but) this is in accordance with Summachus, who holds that even “gravel” pays the whole. If so, how would you explain the latter part: “If a fragment flew off and fell on another vessel and the latter broke, for the first vessel the whole, but for the second only half must be paid?” Now if it be according to Summachus, does he then hold to the theory of half damage? And if you should say that he distinguishes between primary and secondary force (in case of the rolling of the water-pail it was primary force, but in that of the vessel damaged by the fragments of the pail it was secondary force), let the question of R. Ashi as to whether or not Summachus distinguishes between primary and secondary force be solved from this, that it is not on the same level with primary force? We must, therefore, say that the above Boraitha is according to the rabbis. Infer from this that we trace the damage to its origin.

R. Bibi bar Abayi, however, said: In the case of the above water-pail the latter was rolling by the continuous original action of the cock (even in the moment of breaking).

Rabha questioned: The one-half damage paid in case of “gravel,” is it paid out of the body of the tort-feasor, for we do not find anywhere that half damage is paid from the best estate; or is it paid from the best estate, for we find nowhere that damage done by usual means shall be paid out of the body of the tort-feasor? Come and hear: “A dog that snatched and carried off a cake from the burning coals on which it was being baked to a barn, and there consumed the cake, and with the burning coal that stuck in the cake set fire to the barn, must pay for the cake the whole, and for the barn only one-half.” Is the reason for that not because the damage of consuming the cake is that (directly) of the tooth, and the damage to the barn is only indirectly (remote), as in “gravel,” and we have (nevertheless) learned in a Tosephtha in regard to this latter that the half damage is paid out of the body? (Hence that it is paid out of the body?) But, on the other hand, can it enter the mind that the reason for the liability in this case is because it is the usual case of “gravel,” according to R. Elazar of the Boraitha, even if he concurs with Summachus that “gravel” pays the whole damage? Do we find anywhere that such is paid out of the body? We must, therefore, say that in the usual case of “gravel” the damage is paid out of the body, but the case in the above Mishna is that the coal was handled not in the usual way, and R. Elazar holds in this respect with R. Tarphon, who said that where damage was done by the horn in an unusual way on the premises of the plaintiff, the whole damage must be paid. In reality, however, it is not so. For what is the reason of the assertion that it is, according to R. Tarphon, because of the whole damage? We can say that R. Elazar holds, according to Summachus, that “gravel” pays the whole, and he agrees also with R. Jehudah, who says further on that the non-vicious element (even in case of viciousness) remains intact, and therefore when it is stated here that it is to be paid out of the body, it refers to that element (and in case of non-viciousness it is always paid out of the body).

Said R. Sama, the son of R. Ashi, to Rabhina[111]: (Even according to this theory) you can explain R. Jehudah’s statement only in case of a non-vicious animal that became vicious, but how can you explain his statement when the animal is considered vicious from the beginning, as in the case of “gravel in the unusual way”?

We must, therefore, say (if you wish to explain that it is “gravel in the usual way”) that R. Elazar held that the whole damage must be paid, according to him, only when it became vicious by doing so thrice, and they differ in the following: One, holds that the theory of viciousness does not apply to gravel, and one holds that it does. If it should be so, then why did Rabha question whether there can be viciousness in case of “gravel in the usual way” (i.e., as when we say that the first time one-half damage is paid, as in the case of the horn, so also it becomes vicious by being done thrice, as the horn), or viciousness cannot apply here, (for as it is a derivative of the foot (because it is natural) it is considered vicious from the beginning, and still pays only one-half damages); according to the rabbis, it certainly is not, and according to R. Elazar it is? Rabha might answer: My doubt whether the theory of viciousness applies to gravel is according to the rabbis, who differ with Summachus; in our case, however, both the rabbis and R. Elazar agree with Summachus, and the reason why the rabbis hold that only half is paid, is because the cause was in the unusual way (in which case it is a derivative of the horn), and it does not become vicious, and the point of their difference is the same as that of the rabbis and R. Tarphon. We have heard R. Tarphon say only as to the whole damage, but have we ever heard him say that it must be paid out of the body? Yea, it is sufficient that the result derived from an inference be equivalent to the law from which it is drawn, and as this is a derivative of the horn, it cannot pay more than the principal or in another manner. But we know that R. Tarphon does not hold to the rule just stated? (There is no difficulty.) He does not hold to that rule only in cases where the rule of a fortiori is applicable (as explained further on, page 51), but where this rule is not applicable he does hold to the former rule.

R. Ashi questioned: According to the rabbis, who differ from Summachus and hold that in “gravel in the usual way” only one-half is paid, does the “unusual way” in gravel (as, for instance, if done by kicking up gravel) change it to the payment of one-fourth of the damage (i.e., as the “usual way” is considered vicious, does the “unusual” way make it non-vicious to pay one-half of the amount paid in case of viciousness)? Can this not be solved from Rabha’s question, whether there is or there is not viciousness in the case of gravel, from which it is to be inferred that it does not change it (for if it does change it to one-fourth, then in case of viciousness it would pay only half, how can Rabha doubt whether viciousness in this case pays the whole--does viciousness, then, pay more than double the amount of non-viciousness)? We can explain that Rabha was doubtful in both rules (both as to change and viciousness). If you will assert that in case of gravel the rule of change does not apply, can we apply to this case the rule of viciousness? This question remains unanswered.

“If she were kicking,” etc. R. Abba bar Mamal questioned R. Ami, and according to others R. Hyya bar Abba: If she (the animal) were walking in a place where it was impossible for her not to kick up gravel, and she kicked, and by so doing kicked up gravel and caused damage, what is the law? Shall we say that because it was impossible for her not to do it, it is, although done by kicking, considered the usual way (and pays half), or we do not consider it so, because still it was done by kicking? This question remains unanswered.

R. Jeremiah questioned R. Zera: If she were walking on public ground and gravel being kicked up from under her feet caused damage, what is the law? Is this a derivative of “horn” (because gravel pays half), and she must pay even if it was on public ground, or gravel is the derivative of “foot” (because it is done with the foot), and there is no liability if done on public ground? He answered him: Common-sense dictates that it is a derivative of the “foot.” (He asked again:) If she were walking on public ground and kicked up gravel which fell on private ground causing damage, what is the law? He answered: If there is no starting, shall there be a resting (i.e., the starting being on public ground, where there is no liability, shall the resting-place of the gravel be taken into consideration)? The questioner objected: Have we not learned elsewhere: If she were walking on the road and kicked up gravel, whether on public or on private ground, there is a liability. Shall we not assume that it means that both the kicking up of the gravel and the damage were done on public ground? (Now if kicking up gravel is compared with the “horn,” therefore there is a liability, as in the latter case; but if it is a derivative of the “foot,” why should there be a liability?) (He answered:) Nay, it means that the kicking was on public, but the damage was done on private ground. But did you not argue, “If there is no starting, shall there be a resting?” He answered: I retract my argument.

R. Jehudah the second and R. Oshiyah were sitting on the porch of R. Jehudah’s house, and a question was asked: If she has done damage by shaking her tail, what is the law? (Is it considered to be in her habit to do so, and there is no liability, or not?) Said the other: Is there any duty on the owner to hold her by the tail when leading her? If so, why not apply the same argument to the horn, shall the owner hold him (the, ox) by the horn when leading him? What comparison is this? In the latter it is not in his nature to do so, but in the former it is (and therefore it is a derivative of the “foot”). If it is in her? nature to do so, then what is the question for? The question was only in case it was extraordinary shaking. (This question remains.)

“Cocks have a tendency,” etc. Said R. Huna: The statement that he pays only half and no more relates only to a case where the article got attached of itself; but if a human being attached it, the one who did so is liable to the whole damage, (for it is considered a “pit”). “If it got attached of itself,” who is liable? If we assume that the owner of the article attached is liable, how was the case? If he kept the article with good care, then it was only an accident; if he did not, then it was wilful, and the full damage must be paid. We must, therefore, say that the owner of the cock is liable.

Why does he not pay the whole damage? Because it is written [Ex. xxi. 33]: “If a man dig a pit,” which means to limit it to a human being only, and exclude the case of an ox digging a pit (in this case the article attached is considered “a pit” which the cock created), let the same argument apply even to the half damage, and let us say: “If a man dig a pit, but not if an ox dig a pit” (and let there be no liability at all). We must, therefore, say that our Mishna treats of a case where the cock has done the damage by hurling the article for some distance (in which case it is “kicking up gravel,” and only half damage is paid), and the statement of R. Huna applies to the following case: “Of an ownerless article, R. Huna says if it got attached of itself there is no liability at all; but if it was attached by a human being, the one who attached it is liable.” On what principle is he liable (for, after all, it does not resemble a “pit” in all respects, because a “pit” is stationary, while here it was removed from the place where it was tied on)? Said R. Huna bar Munoa’h: He is liable on the principle of a “movable pit,” which is made so either by human beings or by animals (e.g., if one places a stone in the public highway which, while lying in that place, did not cause any damage; and another person or an animal removed it from that to another place and damage was caused there, the latter is liable).

MISHNA II.: What tendency makes the tooth to be considered vicious? That of eating what is fit for it. An animal has a tendency to consume fruit and vegetables; if she, however, chewed up a garment or vessels, only half damage is paid. This is said only if on the premises of the plaintiff, but on public ground there is no liability. But if she derived any benefit therefrom, the value of such benefit is paid. How so? If she consumed from the middle of the public highway, the value of the benefit is paid; if from the sideways of the highway only, the amount of the damage is paid; if from the front of a store, the value of the benefit; if from within the store, only the value of damage is paid. (This Mishna is explained further on.)

GEMARA: The rabbis taught: The tooth has a tendency to consume what is fit for it. How so? For an animal that entered the court of the plaintiff and consumed food that is fit for her or drank liquids that are fit for her, the whole damage must be paid. The same is when a beast entered the court of the plaintiff and killed an animal, or consumed meat, the whole damage must be paid.

For a cow, however, that consumed barley and an ass that consumed beets, or a dog that was licking oil or a swine that devoured meat, the whole damage must be paid (although it is not their usual food). Said R. Papa: Now that you lay down the rule that an article consumed which constitutes the food of the consumer only in case of unusual necessity is considered food; for a cat that devoured dates and an ass that consumed fish, the whole must be paid. It happened that an ass consumed a loaf of bread contained in a basket and chewed up the basket, and R. Jehudah decreed that the whole be paid for the bread and half for the basket (because the former is in his habit to eat and the latter not). Why so? Is it not in his habit to chew also the basket while eating the bread? The case was that he first consumed the bread and then chewed up the basket. Is then bread the usual food of cattle? Have we not learned: “If she consumed bread, meat, or cooked food, half is paid”? Shall we not assume that it treats of cattle? Nay, it means a beast. If so, then it is in its habit to eat meat? The case is that the meat was roasted. It can be explained also that the meat was raw, but that the animal was a deer. And if you wish to explain it that it treats of cattle, then the case was that the food was placed on the table (which is unusual for cattle to eat from). It happened that a goat, noticing beets on the top of a barrel, climbed up and consumed the beets and broke the barrel, and Rabha ordered to pay the whole for both. Why so? Because: as it is in her habit to consume beets, so it is also her habit to climb up the barrel. Ilpha said: An animal being on public, ground, that extended her neck and consumed some article from the back of another animal, is liable. Why so? Because the back of the other animal is considered as the plaintiff’s premises. Shall we assume that he shall be supported by the following Boraitha: “When his basket was placed on his back and an animal extending her neck reached the food therein and consumed it, it is to be paid for”? Nay, the case is as Rabha said, that! it was reached by the animal jumping at it, so also was the case here, viz., by jumping. Where was Rabha’s explanation taught? On the following statement of R. Oshiyah: An animal on public ground, if she has consumed while walking there is no liability, but if she has done so while standing in one place there is a liability. (And it was questioned): Why is this so? Is it not usual for an animal also to stand in the public highway? Said Rabha: R. Oshiyah meant to say if the animal jumped. R. Zera propounded a question: If it was rolling, what is the law? To what case has R. Zera reference? If the animal was standing on private ground and the article was rolling toward the private ground.[112] (Do we follow the place where it was consumed, and there is no liability, or do we follow the place wherefrom it was removed, and there is a liability?)

Come and hear: “R. Hyya taught: A bundle of food being placed partly within and partly without (private premises), if the animal consumed that portion placed within, there is, and if that portion placed without, there is no liability.” Shall we not assume that it was rolled in (i.e., that the whole was consumed, and it was rolled wholly in or wholly out, respectively; hence, that we follow the place of consumption)? Nay, R. Hyya taught so only in long-leafed grass (in which case every leaf is partly within and partly without the premises, and as soon as one end is touched the other goes after it, and therefore we follow the place of consumption, but not so in case of grain).

“If she chewed up a garment,” etc. To what part in the Mishna has this reference? Said Rabh: To all parts. Why so? If one does an unusual thing (as in this case the placing of a garment in public ground), and another does an unusual act to that thing (as in this case the chewing up of the garment by the animal), there is no liability. Samuel, however, says this was taught only of fruit and vegetables, but for garments and vessels there is a liability. Resh Lakish, however, concurs with Rabh (because he adheres to his theory further on, Chap. III., Mishna 6.)

“If she derived benefit,” etc. How much? Rabba said the value of hay. Rabha said the value of cheap barley. There is a Boraitha in accordance with Rabba, namely: “R. Simeon b. Jo’hi says: Only the value of hay or straw is paid, and no more.” There is another Boraitha in accordance with Rabha, namely: “If she derived benefit, she pays as much as the value of the benefit. How so? If she consumed a kabh or two, not the full value is paid, but only so much as one requires to feed his animal on food fit for her, although he is not in the habit of using such food. Therefore (as the fitness of the food is taken into consideration) if she consumed wheat or other food injurious to her, there is no liability (if on public ground).”

R. Hisda said to Rami bar Hama: I regret that you were not in our neighborhood the other evening when very acute questions were asked of us. What were they? Thus: One who takes up his dwelling in the court of his neighbor without the latter’s knowledge, must he, or must he not, pay rent? How was the case? If the court was not to be let, and the dweller was such that he did not need to rent any (e.g., if he had a dwelling of his own, or could get one without paying rent), then the one derives no benefit and the other suffers no loss? And if the court was to be let and the dweller needed a dwelling-place, then one does derive benefit and the other suffers loss (and why should no rent be paid)? The case was where the court was not to be let, but the dweller needed one. How is it? Can the dweller say to the court-owner: “What loss have I caused you?” Or can the court-owner say to the dweller: “It does not matter, for you derived benefit at any rate”? And he answered him: For this there is a Mishna. Where is that Mishna? He said to him: If you will render me some services, I will tell you where it is. He took off his coat and rolled it together for him. He then said: It is the above Mishna which states that if any benefit was derived the value thereof must be paid. Said Rabha: How secure and careless does the man feel that knows that the Lord helps him. (See Yomah, page 31, a similar saying in the name of R. Huna.) He accepted the Mishna as a case similar to the one above, when in reality the facts of the Mishna are different from those of the case above, as in the case stated in the Mishna one derives benefit and the other suffers damage, while in his case one derives benefit and the other does not suffer any loss.

[What could Rami bar Hama say to that? Generally, one who places fruit on public ground renounces ownership of it (and therefore there is no loss).]

Come and hear: R. Jehudah said also that one who occupies his neighbor’s court without the latter’s knowledge must pay rent. Infer from this that in case one derives benefit, although the other suffers no loss, there is a liability? Nay, there it is different; it treats of a new house, the walls of which become soiled from use (and this is considered a loss to the owner). (Finally) this question was sent to the school of R. Ami, and he answered: What has he done, what loss has he suffered, or what damage has he caused? Said R. Hyya bar Abba: Nay, we have still to consider this matter (as the soiling may be considered a damage). Afterward they sent to him (to R. Hyya b. Abba) for his decision in this matter, and he said: They continue sending me this question; if I could find any reason to decide this, would I not have answered?

(In reference to above question) it was taught: R. Kahana said in the name of R. Johanan: He need not pay any rent. R. Abbubu said in the name of the said authority that he need pay rent.

R. Abba bar Zabda sent a message to Mari bar Mar to ask R. Huna for his decision in the above matter. In the meantime R. Huna departed life. Said Rabba, his son: So said my father and teacher in the name of Rabh: He need not pay. (He also said): One who rents a house from Reuben must pay the rent to Simeon. How does Simeon come in here? He meant thus: If the house, in which he was living there at the time, was sold to Simeon, the rent must be paid to Simeon (although Simeon had no knowledge that he was occupying the house). Could, then, R. Huna say two things which contradict each other? There is no contradiction, because in the latter case the occupant intended to pay for its use. The very same case was taught by R. Hyya bar Abin in the name of Rabh, and according to others in the name of R. Huna. R. S’horah said in the name of R. Huna, quoting Rabh: One who dwells in the house of his neighbor (which was unoccupied and located in an unsettled district) without the owner’s knowledge need not pay any rent, because the non-occupation causes damage, as it is written [Is. x xiv. 12]: “And in ruins is beaten the gate” (i.e., if unoccupied the gate becomes ruined, and therefore the owner of the house derives benefit from the occupation). Said Mar bar R. Ashi: I once saw such a house which was damaged and looked as if gored by an ox. R. Joseph assigned another reason, viz., a house which is inhabited lasts longer (for the inhabitants make all the repairs necessary). What is the difference between these two reasons? There is a difference when the house is used for storing wood and straw.[113]

A certain person erected a palace on the ruins belonging to orphans, and R. Na’hman collected the rent (for the use of the ruins) from the palace. Should we assume that R. Na’hman holds that one who dwells in the house of his neighbor without the knowledge of the owner must pay rent? In this case the ruins were previously occupied by ancients who used to pay a nominal rent to the orphans, and R. Na’hman ordered Carmines to go and compensate the orphans, which order was disregarded by him, and therefore R. Na’hman collected it from the palace.

“How does she pay for the benefit,” etc. Said Rabh: This was taught only when she turned around her head (from the public highway to the sideway), but in a case where one leaves a portion of his own ground open to the public highway (and an animal enters upon it while walking on the public ground and consumes fruit stored there) there is no liability. Samuel, however, says: Even in the latter case there is a liability. Shall we assume that they differ as (to the liability of a) pit located on one’s own ground (where the owner renounced his ownership of the ground, but not of the pit)? Rabh holds that (the owner of the pit) is liable (and in this case in question the fruit is considered a “pit,” and the ground being ownerless, it is considered public ground, and therefore he ought not to have done so, and for that reason there is no responsibility for consuming it). Samuel holds that for the pit in question there is no liability (consequently he was allowed to place his fruit there, and therefore the consumer is liable). Nay, Rabh may answer, I hold in case of a “pit on one’s own ground” that there is no liability; but why is here the consumer liable? Because the owner of the animal can say: You cannot have so much privilege as to place your fruit in the immediate neighborhood of public ground and hold my ox to liability. And the same is the case with Samuel, who may say: In case of a “pit on one’s own ground,” I hold that there is a liability, but here, if even it would be right (for the owner of the animal) to say that the ox could not be aware of the pit (and therefore if he should be damaged the owner of the pit would be liable), the case is different, because the fruit was exposed to view and the ox could not escape noticing it (and therefore if the ox should be injured the owner of the fruit would not be liable; the owner of the ox, however, is liable for the fruit consumed by his ox, because he derived benefit from another’s property). Shall we assume that in the above case (turning the head) the Tanaim of the following Boraitha differ: “If an animal consumed from the middle of the highway, the value of the benefit derived is to be paid; if from the sideways, the value of the damage is to be paid. Such is the dictum of R. Meir and R. Jehudah; R. Jose and R. Elazar, however, hold that it is not her usual habit to consume, but only to walk (on the sideway, and therefore there is a liability). Now, shall we assume that R. Jose concurs with the first Tana, but they differ only as to “turning the head,” viz.: The first Tana holds that in that case she also pays only the value of the benefit, and R. Jose holds that she pays the value of the damage done (and hence that the Tanaim differ)? Nay, it may be said that all agree, that in case of “turning the head” it is either according to Rabh or according to Samuel, but they differ here as to feeding in another man’s field [Ex. xxii. 4]: “And he lets his beasts enter, and they feed in another man’s field.”

One holds that it means to exclude public ground (and therefore if she consumed from the middle of the street there is no liability), and one holds it means to exclude the ground of the defendant. “The ground of the defendant?” (Why should there be any liability?) Let the defendant say to the plaintiff: What right had you to place your fruit upon my ground? We must therefore say that they differ in cases stated by Ilpha and R. Oshiyah (see supra, page 38) (R. Meir holds, if in the middle of the highway only the value of the benefit is to be paid in both the case stated by Ilpha and that stated by R. Oshiyah. And R. Joseph maintains that it is not her usual habit, etc., and holds to Ilpha and R. Oshiyah.)

MISHNA III.: A dog or a goat that jump down from the top of a roof and break vessels pay the whole damage; for they are vicious (as to jumping, and it speaks of a case on the premises of the plaintiff). A dog that snatched a cake (from the coal on which it was baked) and carried it to a barn and there consumed the cake and (with the burning coal stuck in the cake) set fire to the barn, the whole for the cake, but only one-half damage for the barn is to be paid (as explained further on in the Gemara).

GEMARA: The Mishna states a case of jumping, because in case of falling down there is no liability; we see then that the Tana holds that where the beginning of an act is wilful (in this case, allowing the goat or dog to be on the top of the roof), but the end is only by accident (the falling down, which he could not anticipate), there is no liability. We have so also learned in a Boraitha: “A dog or goat that jump down from a roof and break vessels pay the whole damage; if, however, they fell down there is no liability.” The rabbis taught: “A dog or a goat that jump up from below, there is no liability; if, however, they jump down from above there is. A human being or a cock, however, that jump are liable in either case.”

“A dog that snatched,” etc. It was taught: R. Johanan said: One’s fire is considered one’s arrow (i.e., one who allows a fire started by him to spread and do damage is liable on the same principle as one who shoots from a bow when the arrow does damage). Resh Lakish, however, said: The liability is because the fire is considered one’s property. There is a contradiction from our Mishna: “A dog that snatched a cake,” etc. It would be right according to the one who holds that one’s fire is considered one’s arrow, for in this case it is the dog’s arrow (and the dog is the person’s property); but according to the one who holds that it is because the fire is considered one’s property, in this case it is the property of the owner of the dog. Resh Lakish may say: The case was that he flung it, in which case he is liable for the cake to the full amount; for the place on which the coal fell to one-half (for it is unusual); and for the barn he is not liable at all (for the liability for one’s fire is because it is his property, and in this case it is not). And R. Johanan may explain that he placed (the cake and the burning coal) in the usual way, and therefore for the cake and the place where the coal lay he is liable to the full amount, but for the barn he is liable only to one-half. Said Rabha: There are both a biblical passage and a Boraitha in support of R. Johanan, viz., a biblical passage, for it is written [Ex. xxii. 5]: “If a fire break out”; “break” means if it does so of itself, and still “he that kindled the fire shall surely make restitution” [ibid.]. Hence we see that one’s fire is considered one’s arrow. A Boraitha: As we have learned: “The passage starts out with damages done by one’s property (the above-quoted passage, which means ‘break’ out of itself) without the aid of some person, and ends with the damages done by one’s own person: ‘He that kindled,’ etc. [ibid., ibid.], to teach that the liability for one’s fire is because it is considered his arrow.”

Rabha said again: It was first a difficulty to Abayi: It is known that there is no liability for damages done by fire to concealed articles; how can such a case be found in the biblical law, according to those who hold that fire is considered one’s arrow? Afterward he himself tried to explain it thus, that the case is where a fire started in one court and the fence of the court fell in, not by reason of the fire (but by some other reason), and on account of this the fire spread to another court and caused damage, in which case the “arrow” ceased to be such at the boundary of the first court (for at the time the fire was started it was unable to spread outside of the court, before the falling in of the fence).

If so, then the same thing may be said also in case of unconcealed articles? We must, therefore, say that the one who holds that the liability is because it is his arrow, holds that it is so because the same is also his property, and that in this case he had sufficient time to repair the fence (before the fire spread) but did not do so; and although not liable for starting the fire he is liable for allowing it to spread, in which case it is the same as if he had kept his ox in a stall without locking the door. If it should be so, that the one who holds that the liability for one’s fire is because it is his arrow holds also of the other theory, that it is considered his property (and if not liable for one reason is liable for the other reason), then what is the difference between R. Johanan and Resh Lakish? The difference is as to the liability for the four things (see above, page 6). (According to the one who holds that it is because it is his arrow also, there is a liability; and according to the one who holds that it is because it is his property, there is none.)

“For the cake,” etc., “pays,” etc. Who is liable--the owner of the dog? Why should also the owner of the coal not be liable? (For according to both R. Johanan and Resh Lakish the liability is because it is his property, and according to R. Johanan, who holds that half must be paid for the barn, the owner of the coal pays the other half; and according to Resh Lakish, who holds that there is no liability at all for the barn, let the owner of the coal be liable for the whole?) The case is that the owner of the coal took good care of it. If so, how could the dog get hold of it? The case is that the dog dug under the door and in such a way gained access. Said Mari, the son of R. Kahana: From the fact that the owner of the dog must pay the whole damages is to be inferred that ordinary doors are considered unsecured in regard to dogs (and it must not be considered unusual so as to pay only half).

Let us see: The Mishna states that the dog has consumed the cake, etc. Consumed where? If not on the premises of the owner of the cake, why must it be paid? This is not “in another man’s field” [Ex. xxii. 4] (which means on the premises of the plaintiff). We must, therefore, say that it was at the barn of the cake-owner. (From the fact that he must pay for the cake) then infer that the mouth of an animal (consuming something on the premises of the plaintiff) is considered as it is yet in the court of the plaintiff. (As the case stated in the Mishna was that the dog kept it in his mouth from the time he picked it up until he reached the barn, and it was not considered that it was on the premises of the defendant, although the dog was his property,) for if it would be considered as the premises of the defendant, he could say to the plaintiff: Your bread was all the time in the mouth of my dog, which is my property, and there it was consumed; why, then, shall I pay? We say infer, because a question was actually raised as to this. And there could no such question arise if it were certain that the mouth of the animal is considered the premises of the defendant; and besides, there could arise no case in which there would be a liability for damage by the tooth, as in order to consume it it must necessarily be taken into the mouth. Said Mari, the son of R. Kahana: If there could be no direct case of “tooth,” there could arise a case which is its derivative, as, for instance, when the animal was rubbing against the wall for her own benefit and thereby did damage, or she rolled over fruits for her own benefit, and made them dirty (which cases are derivatives of the “tooth”). Mar Zutra opposed: But is it then not written in the Bible that there must be complete destruction [I Kings xiv. 10]: “Sweeps away the dung till there be nothing left”? Which is not the case here (as the wall or the fruit is still in existence). Said Rabhina: It can be explained that by rubbing against the wall she obliterated completely the engravings thereon; (and in case of the fruit), said R. Ashi, that by rolling over the fruits she sank them into the mud (so that they could not be removed).

There were certain goats belonging to the family of Tarbu that were doing damage to the property of R. Joseph, and he said to Abayi: Go and tell their owners to keep them in safety. The latter answered him: If I do so they will tell me that you should put up a fence on your ground. [If one must put up a fence upon his premises in order to prevent consumption of, or otherwise damaging, his fruit, how can there: be a case of liability for damage by the “tooth,” for which the Scripture makes it plainly liable? That may be in case she dug under the fence or the fence fell in in the night-time (if there was no opportunity of repairing it).] Announced R. Joseph, and according to others Rabba: It shall be known to all those who are ascending to Palestine and to all those who are descending to Babylon that if those goats that are kept for slaughter during the market days do damage, their owners shall be warned twice or three times. If they listen well and good, if not the goats are to be brought to the slaughter-house, even before the arrival of the market days, and the owners are to be paid their market value of that day.

MISHNA IV.: What is considered a non-vicious and what is considered a vicious one? A vicious ox is one that has been warned three days. A non-vicious one is one that abstains (from goring) for three days. Such is the dictum of R. Jehudah. R. Meir, however, said a vicious ox is one that had been warned thrice, and a non-vicious one is one that, when children pat him on the back, does not gore them.

GEMARA: What is R. Jehudah’s reason? Said Abayi: It is written [Ex. xxi. 36]: “In time past” (in the original: “Mi-tmol, Shilshom”). It could have been written “tmol” (yesterday), and then would have counted only once, but it is written “Mi-tmol” (since yesterday), therefore it signifies twice; when “shilshom” is added it signifies thrice, and then follows, “and his owner hath not kept him in” [ibid.], which means that viciousness begins upon goring the fourth time (for the third time, however, only half is paid). Rabha, however, is not so particular about the addition of “mi” to “tmol,” and therefore this word signifies only once, and the word “shilshom” signifies twice, hence “and his owner,” etc., means the third time, when the ox becomes vicious, and he pays the whole damage.

And what is the reason of R. Meir’s theory? This is explained in the following Boraitha.: R.. Meir said: (Draw an a fortiori conclusion): If he gored at “long intervals (only once a day), he is considered vicious on the third time; so much the more if he had gored thrice in one day he must be considered vicious. They rejoined: There is no conclusion a fortiori to be drawn here, as there is a similarity in the case of a woman who has a running issue, who is unclean for seven days only when she notices the disease three days in succession once a day, but if she notices it three times or more in one day she has to wait only one day. He said again. (From this nothing can be inferred) as the verse made this case an exceptional one by the words “And this,” etc. [Lev. xv. 3], which signify that it is so only in this case, and no others can be compared to it, for we see that in this case the verse made it, in case of a man, depend upon the number of times of noticing of the issue, while in the case of a woman, it made it dependent upon the number of days.

The rabbis taught: What ox is considered vicious? One that has been warned for three days; and a non-vicious one is one that is patted by children and does not gore; such is the dictum of R. Jose. R. Simeon, however, holds that a vicious ox is such as has been warned thrice (even in one day), and the statement as to the three days is only as to abstaining (that is, if after having been warned three times he abstains for three days from goring, then he is again considered non-vicious). Said R. Na’hman in the name of R. Ada bar Ahba: The Halakha prevails as stated by R. Jehudah in regard to a vicious ox, and according to R. Meir in regard to a non-vicious ox, for the reason that R. Jose agrees with them. Said Rabha to R. Na’hman: Let the master say that the Halakha prevails according to R. Meir in regard to a vicious ox, and according to R. Jehudah in regard to a non-vicious ox, for the reason that R. Simeon agrees with them in both. He rejoined: I concur with R. Jose, for he has always his valid reasons.

The schoolmen propounded a question: The three days in question, are they as to make the ox vicious; but the owner may be liable for a vicious one in one day; or are those three days also as to the owner? In what case can there be a difference? If there appear three different sets of witnesses in one day (and testify as to three gorings in three days), if those three days are as to the ox, then he becomes vicious; but if they are as to the liability of the owner, then the latter can say all the three sets appear only now (and the Scripture requires that they shall appear in three days).

Come and hear: “An ox does not become vicious until testimony is given in the presence of both his owner and the court. If in the presence of only one of them, he does not become vicious until it is in the presence of both. If two witnesses testified as to the first goring, two as to the second goring, and two as to the third (each goring being at a different place, time, and man), we have then three sets of witnesses, but still all the three sets are considered one as to be proved in collusion. If one set is found collusive there is still the testimony of the other two sets, and neither the owner is liable to pay for a vicious one nor are his witnesses liable (to pay the other half for viciousness). The same is if also the second set proved collusive. If, however, all the three sets prove collusive, they are all considered as one set, and all of them are to pay the one-half for viciousness, and that is meant by the passage [Deut. xix. 19]: Then shall ye do unto him, as he had purposed to do unto his brother,” etc. Now let us see. If the three days are as to the ox (but the owner may become liable if testimony be given to him thrice in one day), it is correct that the witnesses are liable only when all the three sets proved collusive (for it may be that the one who was injured brought all the witnesses to testify to the three gorings, and each set knew of the other and to what they were to testify, and therefore they cannot say that they intended to make him pay only one-half); but if you should say that the three days are as to the owner also, why should the first set of witnesses (if proved collusive) be liable? Let them say that they did not know that others would come in two or three days later to testify as to make him vicious. Said R. Ashi: When I read this Halakha before R. Kahana, he said to me: Even if the three days are explained to be in regard to the ox only, would it then be correct, for (if even the first set cannot argue that they had no knowledge of the testimony to be given by the others, for they knew that on their own testimony he could not be made vicious) the last set can say: How should we have known that all these witnesses before the court were going to testify as to this case; we intended to testify so as to make him pay only one-half? We must, therefore, say (that if the three days refer to the ox) one set of witnesses gave the other a hint as to what they were going to testify. R. Ashi said: The case is that they all come together and therefore are supposed to know of the testimony of one another. Rabhina said: It may be that the witnesses knew the owner, but did not know the ox (and therefore by coming to testify they meant to make the ox vicious and must have known that there was already testimony given). If they do not know the ox, how can they make him vicious? They testify and warn the owner that there is a “goring” ox among his cattle, and therefore that he should take care of all his cattle.

The schoolmen propounded the following question: For one who sets his neighbor’s dog on a third person, what is the law? The first one is surely not liable (for he was only instrumental in the injury), but the owner of the dog, is he or is he not liable? Can he say: What did I do in this matter? Or can we tell him: Having known that your dog is capable of being set on, you should not keep him? Said R. Zera: Come and hear. It is stated in our Mishna: What is considered a non-vicious ox? One who when patted by children does not gore them, but if he does gore he is liable (although it was caused by the patting of the children). Said Abayi: Is this, then, so stated in the Mishna? Perhaps the Mishna meant that if he did gore he is no more considered entirely non-vicious, but that he is not liable for that goring. This question remains undecided. Rabha said: If you should say that one who sets on his neighbor’s dog is liable, it would follow that, if in such a case the dog turned on the one who sets him on and bit him, the owner is not liable. Why so? As stated above, page 39, that one who does an unusual thing, etc., which is the same in this case. The man was wrong in setting on the dog, and the dog should not bite him. Said R. Papa to Rabha: It was taught in the name of Resh Lakish in accordance with your theory in the case of two cows (see post, page 70). Rejoined Rabha: I in such a case hold him to liability, for the reason that we can say to him: You had permission to step upon me, but had you then also permission to kick me?

MISHNA V.: “An ox that did damage on the premises belonging to the plaintiff,” stated in Chapter I., Mishna IV.; how so? If he gored, pushed, bit, lay down on, or kicked while on public ground, he pays half; if while on the premises of the plaintiff, R. Tarphon holds the whole; the rabbis, however, say one-half. Said R. Tarphon to them: (Are we then not to draw an a fortiori conclusion.) In a case in which the law is lenient with the “tooth” and “foot” on public ground, making them not liable, it decrees rigorously if the same happened on the premises of the plaintiff, namely, that the whole must be paid; in a case where it decrees rigorously that the “horn” on public ground must pay half, is it not a logical inference that we ought to strictly adjudge the same, if on the premises of the plaintiff, liable for the whole? They said to him: It is sufficient that the result derived from the inference be equivalent to the law from which it is drawn, viz., as if on public ground only half, so also if on the premises of the plaintiff. He rejoined: I also do not infer “horn” from “horn,” but I infer horn from “foot,” and I reason thus: if in cases in which the “tooth” and “foot” were dealt with leniently if on public ground, the “horn” was dealt with rigorously, is it not a logical conclusion that the latter shall be rigorously dealt with in cases where the former were also so dealt with? They rejoined again: It is nevertheless sufficient that the result derived from the inference be equivalent to the law from which it is drawn.

GEMARA: Did R. Tarphon ignore the theory of “It is sufficient,” etc.? Is, then, this rule not a biblical one? As we have learned in the following Boraitha: “An a fortiori conclusion must be considered biblical. Where is it to be found in the Bible? It is written [Numb. xii. 14]: ‘And the Lord said unto Moses, if her father had spit in her face would she not be ashamed seven days?’ So much the more if it is toward the Shekhina, it must be fourteen days? But there is a rule that it is sufficient that the result derived from the inference be equivalent to the law from which it is drawn.” (Hence we see that the rule of “It is sufficient” is also biblical.) R. Tarphon does not hold to that rule only where an a fortiori argument can refute that inference, but where there is no such refutation he does, viz., in the Bible the seven days of the Shekhina are NOT written; only by an a fortiori argument we set it to be fourteen days, and therefore, by the rule above stated, we equal it to the father’s case, but in our case the half damage is written in the Bible and applies also to the premises of the plaintiff, and by an a fortiori argument we only add another half to it. Now if you should apply the rule above stated, then the a fortiori argument would be refuted entirely by it. The rabbis, however, maintain that the seven days in case of the Shekhina ARE written in the Bible, viz. [ibid., ibid.]: “Let her be shut up seven days.” R. Tarphon, however, may say that that is the very verse which indicates the application of the rule of “It is sufficient,” etc. And whence do the rabbis deduce the application of this rule? There is another passage for that, viz. [ibid. 15]: “And Miriam was shut up.” R. Tarphon, however, may say that that other verse is necessary to indicate that the rule of “it is sufficient,” etc., is applicable in ordinary cases also, as one might say that it is applicable to this case only because of the honor of Moses; hence the passage.

Let the “tooth” and “foot” be liable (if they do damage) on public ground by the following a fortiori argument: The horn (doing damage) on the premises of the plaintiff pays only half, still the same is the case even on public ground; the “tooth” and “foot,” which pay the whole if on the premises of the plaintiff, is it not logical that they should be liable on public ground? Therefore the Scripture reads plainly [Ex. xxii. 4]: “And they feed in another man’s field,” which signifies private, but not public ground. Do we then say that the whole must be paid (as the tooth, to which this passage has reference), we say that one-half should be paid? There is another passage [Ex. xxi. 35]: “And divide his money,” which signifies his money (of the horn), but not the money in other cases (i.e., in other cases the whole must be paid).

Let the “tooth” and “foot” be liable only to one-half if on the premises of the plaintiff by the following a fortiori argument: The horn which is liable on public ground pays only half on the premises of the plaintiff; the “tooth” and “foot,” which have no liability at all on public ground, should they not so much the more pay only half on the premises of the plaintiff? To this the Scripture reads [ibid. xxii. 4], “make restitution,” which means a satisfactory payment (the whole).

Now let the horn on public ground not be liable at all by the following a fortiori argument: The “tooth” and “foot,” which pay the whole on the premises of the plaintiff are not liable on public ground; the horn, which pays only half on the premises of the plaintiff, should it not so much the more be entirely free on public ground? Said R. Johanan: The Scripture added [ibid. xxi, 35]: “They shall divide” (which is superfluous, as it was already stated before that his money shall be divided), to signify that it is also liable on public ground.

Let a man (that kills another wilfully, but without warning, in which case he is neither to suffer the death penalty nor to be banished) pay a sum of money in atonement by the following a fortiori argument: An ox which is not liable to the payment of the four certain things (mentioned above, page 6) must nevertheless pay a sum of money in atonement; for a man who is liable to the payment of the above four things, is it not logical that he should be liable to the payment of a sum of money in atonement? To this the Scripture reads [ibid. 30], “whatever may be laid upon him,” which means upon him only (the ox), but not upon a man.

Now let the ox be liable to the payment of the four things by the following a fortiori argument: A man who is not liable to the payment of money in atonement is nevertheless liable to the payment of the four things; for an ox, which is liable to the payment of atonement money, is it not logical that he should pay the four things? To this the Scripture reads [Lev. xxiv. 19]: “And if a man, etc., in his neighbor,” which does not mean an ox, etc.

The schoolmen propounded the following question: An ox that steps with his foot on a child lying on the premises of the plaintiff, what is the law in regard to the payment of the atonement money? Shall we say that it should be equal to the case of the horn, as when the horn gores twice or thrice it is considered its habit and pays atonement money, the same shall be applied to the foot, as it is always its habit to step? On the other hand, can it be said that there is no similarity to the horn because the horn gores with the intention to do damage, which cannot be said of a foot which steps without such intention? Come and hear: One who leads his ox into one’s court without the owner’s permission and the ox gore the owner to death, the ox is to be stoned and his owner, whether in case of viciousness or non-viciousness, must pay the full sum of atonement. Such is the dictum of R. Tarphon. Now let us see: Whence does R. Tarphon infer that in case of non-viciousness the full sum of atonement money must be paid? Is it not because he holds with R. Jose the Galilean, who says (Text, 486) that a non-vicious ox pays half atonement money on public ground, and he (R. Tarphon) draws an a fortiori conclusion from the “foot” (viz., the tooth and foot, which are not liable at all on public ground, “pay the full amount of atonement money on premises belonging to the plaintiff, and the horn, which pays, according to R. Jose the Galilean, half atonement money on public ground, so much the more should be paid the full atonement money on premises belonging to the plaintiff). Hence we see that the case of atonement money applies also to the foot. Said R. A’ha of Diphthi to Rabhina: Common-sense also dictates so. For if one should think that it does not apply to the foot, and the Tana (R. Tarphon) deduces it only from the injuries caused by the foot (but not from the killing) (viz., if the foot, which on public ground is not liable for damages, pays the full damage if on premises of the plaintiff, the horn, which pays on public ground half atonement money, according to R. Jose the Galilean, is it not logical that on premises belonging to the plaintiff it should pay the full sum of atonement money?) It could be refuted and said: As far as the damage of the foot is concerned, it is its habit (to damage all things lying in its way when walking), but it is not so as to killing. Infer from this that the case of atonement money applies to the case of the foot also, and R. Tarphon has drawn his a fortiori conclusion from this case. And so it is.

MISHNA VI.: A human being is considered always vicious, whether he acts intentionally or unintentionally, when awake and also when asleep. If one blind the eye of his neighbor, or break his vessels, he pays the whole damage.

GEMARA: The Mishna teaches if one blind the eye of his neighbor that, as in the case of breaking one’s vessels, only damage is paid for, but not the four things; so also in the former case only for the damage, but not the four things, is to be paid (when done unintentionally). Whence is that deduced (that the damage is paid for even when unintentionally)? Said Hyzkiah, and so also was it taught by his disciples: The passage says [Ex. xxi. 25] “wound for wound” (which is superfluous, for it is stated [Lev. xxiv. 19]: “And if a man cause a bodily defect”), to make one liable for unintentional as for intentional damage, and for an accidental as for a deliberate act. But do we not need this passage to make one liable for the pain (which is one of the four things explained above) where damages are paid? If so, let the passage say “wound for wound,” why then “wound instead[114] of a wound”? Infer from this both.

Rabba said: One who carries a stone in his lap without being aware of it, and while getting up from his seat drops it, as regards damages he is liable (for there is no difference whether it was intentional or not), but as regards the four things he is not; regarding the Sabbath the Scripture prohibits only intentional work; as to banishment (if a human being was killed thereby), he is not liable; as to his liability to a slave (if it fell on a slave and blinded him), R. Simeon b. Gamaliel and the rabbis differ (as to whether he must manumit him or not [Ex. xxi. 26]). If in the above case he was at first aware of the presence of the stone, but subsequently forgot it, as to damages he is liable, as to the four things he is not (for the fact that he forgot it cannot be considered wilfulness); as to banishment he is liable, as regards Sabbath he is not; as regards a slave, R. Simeon b. Gamaliel and the rabbis differ. If he intended to throw the stone two (ells) distant and threw it four, as to damages he is liable; as to the four things he is not; as regards Sabbath, intention is necessary; as to banishment, the Scripture said [ibid. xxi. 13]: “And if he did not lie in wait,” excepting this case under discussion; as regards a slave, R. Simeon b. Gamaliel and the rabbis differ. If he intended to throw four (ells) and threw it eight (ells) distant, as to damages he is, as to the four things he is not liable; as regards Sabbath he is free unless he said: Let it fall wherever it may; as regards banishment the above-quoted passage means to except such a case as to his liability to a slave. R. Simeon b. Gamaliel and the rabbis also differ.[115]

Rabba said again of one who drops his own vessel from the top of a roof, and before it reaches the ground another person strikes it with his cane and breaks it, the latter person is not liable, for it is considered that he broke a broken vessel.

The same said again: One who drops a vessel from the top of a roof upon the ground which has been covered with pillows, and another person removes them before the dropping of the vessel (without the knowledge of the person who drops it) and the vessel was broken, there is no liability on the part of the person who drops it, for at the time he dropped it he thought it could not break, nor was the person who removed the pillows liable, because he was only the remote and not the proximate cause of the damage.

The same said again: If one drop a child from the top of a roof, and before it reaches the ground another person cut it with his sword, this is similar to the case of the following Boraitha, in which R. Jehudah b. Bathyra and the rabbis differ: If one was assaulted by ten different persons, no matter whether at once or at different times, and was killed, none of them has to suffer capital punishment, as according to the Scripture it must be known who was the cause of the death. R. Jehudah b. Bathyra, however, holds, in case the assault was made by one after the other, that the last one is guilty, for he hastened his death (and this rule can be applied to the above case of the child).

If (in the case of the child) a vicious ox killed it with his horns before it reached the ground, this is similar to the case of the Boraitha (post, pages 90 and 91) in which R. Ishmael, the son of R. Johanan b. Broka, and the rabbis differ.

The same also said: One who falls from the top of a roof by an extraordinary wind and does damage, or falls on a woman and causes her shame, is liable for the damage, but not to the four things. If, however, it happen by an ordinary wind and causes damage or disgrace to a woman by falling on her, he is liable for all the four things except for the disgrace.

Lastly Rabba said: One who causes the death of another by placing live coals upon his (bare) breast has no liability (for the deceased could remove them); if he placed the coals upon another one’s clothes and they were burned he is liable (because the moment the live coal was placed on the clothes the latter were at once damaged).

[Said Rabha: Both these cases are explained in Mishnayoth. The first one in Tract Sanhedrin, Mishna II., and the second in this tract, Chapter VIII., Mishna 5.] He, however, propounded the following question: If one placed a live coal upon the breast of his neighbor’s slave, is the slave considered in such case as his own body (and there is no liability, for the slave should remove it), or is he considered only his property (and he is liable)? And if one should say that a slave is considered the body of his master, what is an ox under such circumstances considered? He subsequently solved it himself. A slave is considered one’s body, and an ox is considered one’s property (and there is liability in the latter case, for the ox cannot remove it).

Chapter III

RULES CONCERNING PLACING VESSELS ON PUBLIC GROUND. INJURIES CAUSED BY PEDESTRIANS TO EACH OTHER WITH THEIR LOADS. THE VICIOUS AND NON-VICIOUS OXEN--IF THEY HAVE DONE INJURY TO EACH OTHER OR TO HUMAN BEINGS, ETC.

MISHNA I.: If one places a jug on a public ground and another person stumbles over it and breaks it, the latter is not liable; if he is injured, the owner of the barrel is liable for the damage.

GEMARA: The Mishna starts out with “jug” and ends with “barrel,” and it is the same way in several subsequent Mishnas. Said R. Papa: Jug and barrel are one and the same thing (as to the cases cited). (If so) for what purpose did the Mishna change the terms? For business transactions (e.g., if one sells barrels he may deliver jugs, and vice versa). How is the case? Shall we assume in the case of a certain locality where these terms are decidedly distinct, then jug is one thing and barrel another? It is only in the case where most of the people use those terms distinctly and separately, but there is also a small portion who use them interchangeably, in which case I would say that the majority is to be followed; hence the statement that in money matters the majority is not to be followed (but the burden of proof is on the plaintiff).

“And another person,” etc. Why is he not liable--must he then not look out? Said the disciples of Rabh in his name: The Mishna speaks of a case where he filled up the whole thoroughfare with barrels. Samuel said: When it is done in darkness. R. Johanan, however, said: The Mishna may be explained in that he placed the jug in a corner (where it could not be noticed). Said R. Papi: Our Mishna cannot be explained unless according to Samuel’s or R. Johanan’s interpretation, but not according to Rabh, because if it should be according to Rabh’s interpretation he would not be liable if even he should break the barrel intentionally, as he had no passage way. (The Gemara, however, says that it can be explained also according to Rabh’s interpretation, as R. Zbid in the name of Rabha explains it further on.) Said R. Aba to R. Ashi: In the West it was said in the name of Ula that the reason for the statement of the Mishna is that pedestrians are not in the habit of looking around.

Such a case happened in Nahardea, and Samuel held him liable. In Pumbeditha--and Rabba held him liable. It is correct of Samuel, for he follows his theory; but Rabba, shall we assume that he concurs with Samuel? Said R. Papa: It was in a corner of an oil-mill (and it was customary with those who came to the mill to place their vessels outside when waiting for their turn to enter the mill), and because it was customary to place there the vessels the pedestrian had to take care not to break them. R. Hisda sent the following message to R. Na’hman: “It was said (it is the custom of the judges to fine) one who kicks the other with his knees three (selas); one who kicks the other with the foot, five; one who strikes the other with his fist, thirteen--what is the fine if one strikes his neighbor with the handle of a hoe or with the iron of the hoe?” He returned the following answer: “Hisda, Hisda, you are collecting fines in Babylon; state to me the facts in the case.” He then sent him the following facts: There was a partnership water-basin out of which each of the partners irrigated his land every second day. Once one was irrigating his land from the basin when it was not his turn, and when the other one asked him why he did so and the former did not heed him, he struck him with the handle of the hoe. Said he (R. Na’hman) to him (R. Hisda): He would have been justified if he had even struck him a hundred blows, for even according to the one who holds that a man ought not to take the law into his own hands, in cases of loss one may do so, for when one is in the right he need not trouble himself (to go to court). And R. Na’hman says this, according to his theory which was taught elsewhere, that a man may take the law into his own hands even not in case of loss. According to R. Jehudah, however, this is permitted only in case of loss. R. Kahana objected: There is a Tosephtha: “Ben Bag Bag says: Do not enter the courtyard of thy neighbor secretly to take what belongs to you, for fear that he may look upon you as upon a thief, but do so publicly, and tell him that you take your own (in contradiction to R. Jehudah, who holds that one must not take the law into his own hands).” R. Jehudah rejoined: Your support, Ben Bag Bag, is an individual, and the majority differ with him. R. Janai, however, explained that “take it publicly” means to do so with the aid of the law.

Come and hear: If an ox mount another to kill him, and the owner of the latter come along and pull out his own ox, and the former drop on the ground and is killed, he is not liable. Shall we not assume that this is in the case of a vicious ox, in which case there is no loss (for if he had not acted thus, and his ox should have been killed, he would have been paid in full; hence even where there is no loss one may take the law into his own hands)? Nay, it is in case of a non-vicious ox where there is loss (for if he should have waited to be paid by law, he would have received only one half). If so, how is the latter part of the Boraitha: “If, however, he pushed down the ox that mounted, and the ox was killed, he is liable.” Now, if it is in case of a non-vicious ox, why should he be liable (there is loss, and he acted according to law)? Because he should have pulled out his own ox and not pushed the other so as to kill him.

Come and hear: “For one who obstructs the court of another by placing there jugs of wine and oil, the owner of the court may break the jugs while going in and out of the court.” (Hence we see that one may do so although there is no loss?) Said R. Na’hman bar Itzhak: It means that he may break them while going out to go to court and also when coming in to get his documentary evidence (in case such is necessary; e.g., when there is a dispute as to the ownership of the courtyard).

Come and hear the statement of our Mishna: “One who places a jug,” etc., “he is not liable.” The reason being that he stumbled over it, but if he broke it without stumbling over he is liable. (Hence we see that even when there is loss [for Rabh explained, above, this to be when the whole thoroughfare has been filled with jugs] no person is allowed to take the law into his own hand.) Said R. Zbid, in the name of Rabha: Nay, the same is the case even if he broke it intentionally, but the reason why he mentioned stumbling is because he had to state in the latter part that if he was injured the owner of the barrel is liable, in which case stumbling is essential, for if otherwise he himself caused his own injury; he mentioned that also in the first part.

Come and hear: “It is written [Deut. xxv. 12]: ‘Then shalt thou cut off her hand’; this means that a fine of money shall be imposed upon her.” May we not assume that this is only when she could not save herself otherwise? (Hence one may take the law into his own hands?) Nay, that means when she could do otherwise. Then how is the case when she could not--is she free? If so, instead of the Boraitha stating in the latter part: It is written [ibid. 11]: “If she putteth forth her hand,” this signifies to exclude the messenger of the court, if he has done a similar thing he is free (from paying for disgrace), let the Boraitha teach that there is a difference also in her own act; viz., the case is when she could save herself otherwise, but if she could not she is free? The Boraitha maintains thus: The case is when she could save herself otherwise, but if she could not, her hand is to be considered as a messenger of the court and she is free.

Come and hear: “One who set aside the due corner-tithe at one corner of his field and the poor came and took their due share at another corner, both are considered corner-tithe.” Now if you should say that one may take the law into his own hands, let the owner prevent them from taking at another corner by force? Said Rabha: The expression that “both are corner-tithe” means only that both are free from tithe (given to the Levites), as we have learned in the following Boraitha: “One who renounced his ownership to his vineyard and then hastened in the morning and plucked the fruit himself, he must observe peret [Lev. xix. 10], gleanings [Deut. xxiv. 21], peah [Lev. xix. 9], and forgotten heaves [Deut. xxiv. 19], but he is free, however, from the Levites’ tithe.

MISHNA II.: A jug (filled with water) that broke on public ground and its contents cause a person to slip and fall, or one is injured by its fragments, he (the carrier of the jug) is liable. R. Jehudah, however, says, if he break it intentionally he is, otherwise he is not.

GEMARA: Said R. Jehudah in the name of Rabh: It was taught only if he soil his clothes with the contents of the jug, but if he damage his person there is no liability, for the public ground (which has no particular owner) causes his damage. When I stated this before Samuel he said to me: Let us see; as to the liability for damage caused by one’s stone, knife, or load (placed on public ground), we deduced it from the “pit” on, public ground, as explained post, page 111 (in which the Scripture reads “ox” and “ass”), and in all of them I read “an ox, but not a human being”; “an ass, but not vessels,” and only as far as death is concerned (as the Scripture in this case speaks of death); as to damage, however, if to person there is, but if to property there is no liability on the part of the one who placed them there. (Hence Samuel’s theory is the reverse of that of Rabh.) What has Rabh to say to this? This (that we deduce all that from “pit”) is only where he had renounced his ownership from them (as such is the case with the pit on public ground), but if he had not it is still his property (and we deduce his liability from the “ox”). R. Oshyiah objected: (There is a Boraitha:) It is written [Ex. xxi. 33]: “And an ox or an ass fall therein,” and we say an ox, but not a human being; an ass, but not vessels; and from this it was said that if an ox or an ass laden with vessels fell into the pit and they were broken, he is liable only for the injuries to the animal, but not for the damage to the vessels. Similar to this is his stone, knife, and load placed on public ground that cause damage. Therefore if one break his glass vessels by striking them against the stone so placed, he is liable. Now the first part of the Boraitha would be in contradiction to Rabh, who holds him liable for the vessels also, and the latter part (which treats of breaking glass vessels by striking them against the stone) would contradict Samuel? [Why would this be a contradiction only to those two? Do, then, those two parts of the Boraitha itself not contradict each other? Say, then, that Rabh would explain the Boraitha in accordance with his theory that he renounce ownership, and Samuel according to his theory stated above.]

Now, when we come to the conclusion that one’s stone, knife, or load is equal to one’s “pit,” according to R. Jehudah, who holds that there is a liability for damages done to vessels by falling into a pit, if one strike his bottle against a stone he is liable. Said R. Elazar: Thou shouldst not think that he is liable only when both the stumbling and the breaking were caused by the stone, and not if only the breaking was caused by the stone, as in reality he is liable even in such case, as we concur with R. Nathan’s theory (which is explained on page 120).

“If intentionally,” etc. What means intentionally? Said Rabba, when he intended to lower them down from his shoulders (and while doing so they struck against the wall, he is liable, for his carelessness is considered a deliberate act). Said Abayi to him: Should we infer from this that R. Meir (who is very rigorous) holds that one is liable even if the jug dissolve of itself (although it is an accident)? He answered: Yea, R. Meir holds one liable if even only the handle remained in his hand. Why so? Is this not an accident, and being such, the Scripture frees him from liability, as it is written [Deut. xxii. 26]: “But unto the damsel shalt thou not do anything”? And if you should say that this is only as regards capital punishment, but as regards damages one is liable, have we not learned in a Boraitha: “If his jug break and he fail to remove the fragments, or if his camel fall and he fail to raise it, R. Meir holds him liable for the damage they cause; the sages, however, hold that he is free from human justice and is liable only to heavenly justice; and the sages concede to R. Meir, where one places his stone, knife, or load on the top of a roof, and they are blown down by an ordinary wind and do damage, that he is liable; on the other hand, R. Meir concedes to the rabbis that, where one places jugs on the roof in order that they should dry, and they are blown down by an extraordinary wind and do damage, he is free” (because it is an accident; hence even according to R. Meir damages by an accidental act are excusable)? Therefore said Abayi: They differ (in our Mishna) in two cases: during the falling and after the vessels rested upon the ground; one holds that for stumbling while falling he is liable for carelessness, and the other one holds that it is an accident. And they also differ after the resting of the vessels, in case he renounce his ownership to the articles which caused the damage; one holds him liable even in such a case, and the other one holds him free. And wherefrom is such a theory? From the fact that the Mishna mentions two cases, viz.: “If he slipped on account of the water, or he was injured by the fragments,” which is practically one and the same thing, we must say then that it means either when he slipped on account of the water while falling or that he stumbled over the fragments after they rested. But how is it with the above Boraitha, can you apply also to it the same interpretation? This would be correct regarding the jug containing water, but how can we find the above two cases in regard to the camel, as you cannot hold one liable for the stumbling of his animal, even in a case where one is held liable for his own stumbling; and if there should be a liability it should be only in one case, namely, if he renounced his ownership to the carcass? Said R. A’ha: It can be explained that the camel stumbled by reason of the overflow of a river. How is the case? If there was another way, then he is surely liable; if there was no other way, is it not accident? Therefore it must be explained thus: that he himself stumble first and the camel stumble over him, in which case his stumbling is considered carelessness. But (according to R. Jehudah, who requires intention in our Mishna in case one renounce ownership from his articles which caused damage) what intention can there be so that he should be held liable? Said R. Joseph, and so also said R. Ashi: If his intention was that he should regain ownership of the fragments. R. Elazar also holds that they differ even during the falling and concurs with Abayi’s theory stated above.

R. Johanan, however, said that they differ only as to after they rested, and he comes to teach us that only in this particular case the rabbis freed him from liability if he renounced his ownership to the articles which caused the damage because it was accidental (but where there is no accident he is liable for renouncing his ownership).

It was taught: “One who renounces ownership to his articles that cause damage, R. Johanan and R. Elazar: one holds him liable and the other holds him free.” Shall we assume that the one who holds him liable is in accordance with R. Meir and the other one is in accordance with the rabbis? Nay, as to R. Meir, all agree (that he is liable); they only differ as to the rabbis: the one who holds him free concurs with the rabbis, while the one who holds him liable may say: I say that even the rabbis who held him free do so only in the case of an accident, as stated above, but in other cases they also held him liable. There is ground for the supposition that it is R. Elazar who holds one liable. (See Pesachim, page 8, line 22, “Two things,” etc.) Have we not heard from him concerning the following Mishna (above, page 30, end): “One who stirs up manure,” etc., that it is so only in case he had an intention to claim it is his own, but otherwise he is not; hence we see that Elazar holds that if one renounce ownership to his articles which caused damage he is exempt. Said R. Adda bar Ahba: The case here is that he restored it to its original position. Said Rabbina: The case as explained by R. Adda bar Ahba is similar to one who finds an uncovered pit and he covers it and then again removes the cover (in which case he is not liable, for it is considered as if he never had anything to do with it). Said Mar Zutra, the son of R. Mari, to Rabbina: I fail to see any similarity. In the case of the pit the former act (the uncovered pit) is still as it was, while in the case of manure the act of the first one is no more in existence (because the place it first occupied is now vacant). If it has any similarity to a pit it is in case one find an uncovered pit and stuff it up, and then again dig it out, in which case the former act disappears entirely and is wholly his work (and therefore he is liable). Therefore said R. Ashi that the case of manure was that he stirred it up less than three spans (and therefore it is considered no stirring up at all [because of Lavud; see Sabbath, page 12], and whereas he had no intention of exercising any act of ownership, it cannot be considered his property, and if we cannot hold him liable as being his property, we can also not hold him liable for digging a pit). And why does R. Elazar force himself to explain it where he stirred it up below three, and the reason is only because he intended it as an act of claiming ownership, but not otherwise; let him explain it that it was above three, and although there was no intention of claiming ownership he is nevertheless liable? (Because he holds that one who renounces ownership to the articles which cause damage is liable.) Said Rabha: He did so because of the phraseology of the Mishna, viz.; Why “stirred” up--why not “lifted” up? Hence that “stirring” means below three spans.

Now when we come to the conclusion that it is R. Elazar who holds him liable, then it is R. Johanan who holds him free. Does then R. Johanan really hold so? Did he not say elsewhere that the Halakha prevails as an anonymous Mishna, and there is such a Mishna: “One who digs a pit on public ground and an ox or an ass falls into it and is killed, he is liable”? We must, therefore, say that R. Johanan holds that he is liable. Now, on the other hand, if R. Johanan holds that he is liable, then R. Elazar holds that he is not; but has not R. Elazar said in the name of R. Ishmael (Pesachim, page 8, “Two Things,” etc., hence, that he holds that he is liable? These present no difficulty. What is stated here is his own, and that in Pesachim, is his teacher’s opinion.

MISHNA III: One who empties water into public ground and causes injuries thereby, he is liable for the injuries. One who hides away a thorn or glass, or one who builds his fence of thorns, or a fence that falls in into public ground and some persons were injured thereby, he is liable for the damage.

GEMARA: Said Rabh: It was taught only if his vessels were soiled, etc. (see page 60). Said R. Huna to Rabh: If this should be considered even his mud (he ought to be liable)? Rejoined Rabh: Do you understand that the water was not absorbed? I mean when it was absorbed, and yet he injured himself by the collected earth, and therefore there is no liability, for he should have been careful.

[Why did Rabh repeat his statement here? He said that already in connection with the preceding Mishna.] This was necessary: Once as to the sunny season and once as to the rainy season, and it is in accordance with the following Boraitha: “Although it is permitted during the rainy season to empty refuse-pipes and clean excavations, still it is not permitted to do so during the sunny season; and even in the rainy season, although they do it with permission, they are liable for the damage they cause.”

“One who hides away,” etc. Said R. Johanan: It was taught only in case it is jutting out, but if it is pressed in he is free. Why is he not liable even when it is pressed in? Said R. A’ha, the son of R. Ika: For the reason that it is not the custom of man to rub against the wall. The rabbis taught: One who hides away his thorns or glass in the wall of his neighbor, and the owner of the wall comes along and pulls down the wall and the thorns or glass falls into the public ground and does damage, the one who hid them away is responsible. Said R. Johanan: This is the case where the wall was in bad condition, but where the wall was in good condition the owner of the wall only is liable. Said Rabhina: It is to be inferred from this that if one covers his well with the pail of another, and the owner of the latter comes along and carries away his pail, the former is liable (if some accident occurs). Is this not self-evident? Lest one say that because the owner of the wall did not know who hid the thorns and could not inform him to remove them, therefore he is free; but in case of the well, as the owner of the pail knows him, he should have informed him that he took away the pail, and therefore the owner of the well should be free--he comes to teach us that there is no difference.

The rabbis taught: The former pious men used to bury their thorns and broken glass in their fields three spans below the surface in order that they should not interfere with the plough. R. Shesheth used to burn them. Rabha used to throw them into the (river) Chiddekel. Said R. Jehudah: One who wishes to be pious should observe the laws of damages. Rabhina said: He should observe the teachings of the fathers (which were enumerated in the first tract of this section).

MISHNA IV.: One who places straw or hay on public ground in order to convert them into manure, and some pedestrian sustains injury through them, he is liable; and the one who takes possession of them first is entitled to them. R. Simeon b. Gamaliel says: All those who obstruct a public thoroughfare by placing chattels therein and cause damage are liable; and the one who takes possession of them first is entitled to them. One who stirs up manure on public ground and a pedestrian sustains injury thereby is liable.

GEMARA: Shall we assume that our Mishna is not according to R. Jehudah of the following Boraitha: “R. Jehudah says: During the season of conveying manure one may remove his manure to the public highway and collect it there for thirty days in order that it should be trodden by man and animal, for on this condition did Joshua distribute the land”? It can be explained that R. Jehudah concedes that nevertheless he is liable for the damage.

(There is an objection.) Come and hear: “All those of whom it was said that they may obstruct the public highway, if they do damage they are liable; according to R. Jehudah, however, they are not.” Said R. Na’hman: Our Mishna treats of the season when the manure is not conveyed, and it is according to R. Jehudah. R. Ashi, however, says: Our Mishna states “straw” and “hay” (which means before they were converted into manure, and the reason is) because they are slippery.

“The one who takes possession of them,” etc. Rabh said: This applies to both the original substance as well as to its improvement. Zëira, however, holds that it applies to the improvement only. What is the point of their difference? Rabh holds that the original substance is also to be confiscated (as a fine) because of the improvement, and Zëira holds that only the improvement is to be confiscated. There is an objection from the clause of our Mishna: “One who stirs up manure,” etc., and does not mention that the one who takes possession of it first is entitled to it. (Hence it contradicts Rabh.) Said R. Na’hman bar Itzhak: You quote a contradiction (to Rabh) from the subject of manure. In cases where there can be an improvement (e.g., straw) the original substance was also subjected to the rule as a fine, but where there can be no improvement (e.g., manure) there is no fine at all.

The Schoolmen propounded a question: According to the one who holds that the original substance is to be fined because of the improvement, is it to be fined at once or only after the improvement has taken place? This can be inferred from the fact that it was attempted to contradict Rabh from “manure” (which does not improve; hence that he is to be fined at once). What answer is this “Did not the Schoolmen propound their question after they heard of R. Na’hman’s answer, and nevertheless they were doubtful? Shall we assume that in this case the Tanaim of the following Boraitha differ? “One who removes his straw and hay to a public highway to convert it into manure, and a pedestrian sustains injuries, he is liable, and the one who takes possession of them first acquires title to them, and if one takes them it is considered robbery. Rabban Simeon b. Gamaliel, however, holds that all those who obstruct a public highway and cause damage thereby are liable to pay the damage, and the one who lays his hand upon the articles of obstruction first acquires title to them, and it is not considered robbery.” Let us see. How is this Boraitha to be understood? It reads that the one who lays his hand on the articles of obstruction first acquires title to them, and immediately thereafter it states that the one who takes them is guilty of robbery. It must, therefore, be explained thus: “One who lays,” etc., acquires title to the improvement, but the original substance is prohibited as robbery, and R. Simeon b. Gamaliel, however, says the same is the case also with the original substance. According to Zëira surely the Tanaim differ in this case, but according to Rabh do they also differ? Rabh may say that all agree that the fine applies to the original substance on account of the improvement, but in what they differ here is, whether this Halakha should be put into practice or not. As it was taught: “R. Huna said in the name of Rabh: The Halakha is so, but it is not applied in actual practice. R. Adda bar Ahbah, however, holds that it is applied in practice.” But this is not so, for R. Huna once declared peeled baley (placed by one on public ground to dry it) ownerless, R. Adda bar Ahbah did the same with date-husk. It was correct for R. Adda bar Ahbah, as he followed his theory (stated above), but shall we assume that R. Huna retracted from his statement above? Nay, in this case the owners were warned (several times).

MISHNA V.: Two potters (each carrying pottery) that walked, one following the other, and the first stumbled and fell, and the second stumbled over the first and also fell, the first one is liable for the damages of the second.

GEMARA: Said R. Johanan: It is not to be said that our Mishna is only according to R. Meir, who holds that stumbling is considered wilful and therefore he is liable, but even according to the Rabbis who hold that it is an accident and he is free. Here, however, the case is different for he had to get up (at once) and he had not done so. R. Na’hman bar Itzhak, however, holds that if he even could not get up he is liable, because he had at least to give warning to the other, which he had not done. R. Johanan, however, denies this theory, for if he could not get up he could also not give warning (because of his excitement).

There is an objection from the following Mishna: “If one carrying a barrel followed one carrying a beam, and the barrel was broken by the beam, he is free, but if it broke because the carriers of the beam stopped, he is liable.” Is it not to be assumed that he stopped in order to place the beam on the other shoulder, which is usually done, and still it is said that he is liable, because he should give warning? Nay, he stopped to rest. But how is it in the former case, is he free? Then the Boraitha should state that it is only when he stopped to rest, but if to place it on the other shoulder he is free. Why then does it state in the latter part that he is free only if he told him to stop with the barrel? With this he comes to teach us that, although he stopped to rest, if he called to him to stop he is free.

Come and hear: “Potters and glaziers that walked, one following the other, and the first one stumbled and fell, and the second one stumbled over him and the third over the second one, then the first is liable for the damage of the second and the second is responsible to the third. If, however, they all fell on account of the first one, he is responsible for the damage of all; but if they warned each other they are not responsible.” Is this not so even if they could not get up? Nay, they could get up, and it comes to teach us that even in such a case when they warned each other they are free.

Said Rabha (in explanation of the above Boraitha): “The first one is liable to the second one for both injuries to the person and to property. The second, however, is liable to the third one for personal injuries only.” [How is this to be understood?] If stumbling is considered a wilful act, let the second one also be liable; if, on the other hand, stumbling is considered an accident, then let the first one also be free. The first one is considered wilful as it is equal to a “pit on public ground,” in which case the digger is liable for both injuries to the person and to property; the second, however, who is considered as if he himself has fallen into the pit (because of the stumbling of the first) can be liable only for personal injuries because he did not get up in time, but not for damages to property, as he can say that he did not dig the pit.

The Master said: If they all fell because of the first one, the first is liable for the damage of all of them. How was the case? R. Papa said: He obstructed the way (crosswise) like a carcass (which obstructs the whole way). R. Zbid, however, said: If such should be the case the first one would not be liable for the damages of the third, who should be careful, seeing that the second one stumbled over the obstruction of the whole thoroughfare; therefore he maintains that the first one fell diagonally and did not obstruct the whole thoroughfare, and the third one in his intention to walk on the unobstructed portion of the thoroughfare did not see the stumbling of the second and stumbled over him.[116]

MISHNA VI.: If one was coming from one side of the street carrying a barrel, and the other one was coming from the other side carrying a beam, and the barrel was broken by the beam, there is no liability, as both had the right to go each his way (and the carrier of the barrel should be careful not to collide with the beam). The same is the case when the carrier of the barrel followed the carrier of the beam. If, however, the carrier of the beam stopped (without any reason), and the carrier of the barrel while walking broke it by striking against the beam, he is liable; if the carrier of the barrel was told to stop by the carrier of the beam he is free. If the carrier of the barrel was preceding, and the carrier of the beam was behind him and broke his barrel by colliding with the beam (although unintentionally), he is liable (because of carelessness); if the barrel carrier stopped, he is free; but if he told him to stop and the beam carrier did not heed him, he is liable. The same is the case with one carrying fire and the other hemp.

GEMARA: Rabba bar Nathan questioned R. Huna: When one injures his wife by having intercourse with her, how is the law: is he free because he has done it with permission, or is he nevertheless liable because he had to look out for her health? And he answered: This we have learned in our Mishna: “He is free, as both had the right to go each his way.” Said Rabha to the latter: Is there not to be drawn an a fortiori conclusion from a wood [Deut. xix. 5] in which case both had permission to enter, and nevertheless when one was injured or killed, it is considered that the defendant entered the plaintiff’s premises, and he is responsible or guilty; so much the more here it must be considered that he entered upon her premises and injured her? [But did not the Mishna state that each of them had permission to go his way? There is no similarity. In the case of the Mishna both had equal permission, and each of them did the same thing the other did, but here only he acted but she did nothing. Is that so? Did not the Scripture say plainly [Lev. xviii. 29]: “Even the souls that commit them shall be cut off”? Hence we see that the Scripture considers the female also as acting. There both of them derive pleasure and therefore are punished, but here the act is only his.] Resh Lakish said: If there were two cows on public ground, one of which was lying and the other one walking, and the latter kicked the former, she is not liable; if, however, the reverse was the case she is liable. (This was explained above, page 50.)

MISHNA VII.: Two that were on public ground, one running and the other one walking (ordinarily), or both of them running, and they injured each other, both are free.

GEMARA: Our Mishna is not according to Issi b. Jehudah of the following Boraitha: “Issi b. Jehudah says: The one who was running is liable, for it is uncommon. He, however, con. cedes that if it was on the eve of Sabbath in twilight, that he is not liable, for he is permitted at that time to run (and therefore it is considered common).” Said R. Johanan: So the Halakha prevails. But has not R. Johanan said elsewhere that the Halakha prevails according to an anonymous Mishna, and our Mishna (which is anonymous) states not so? The case in our Mishna is to be explained in that it speaks of the twilight on the eve of Sabbath, from the fact that it states, “or they were both running they are free.” Then without the above explanation it would be superfluous after the statement that if even only one was running, etc., for it is self-evident that if both were running that so much the more they ought to be free; therefore the Mishna must be considered as incomplete, and should read thus: If one was running and the other one was walking, there is no liability, when the case was in the twilight of the eve of Sabbath; on a week day, however, the one running is liable; if both were running they are free, even on a week day.

The Master said: “And Issi concedes that if it was in the twilight of the eve of Sabbath he is free, for he did so with permission.” What is the permission? It is according to R. Hanina, who used to say: Come with us to meet the bridal queen. And according to others, “to meet the Sabbath bridal queen.” R. Janai used to get up, enwrap himself and say: Come bride, come bride! (Hence it is a merit to run at twilight on the eve of Sabbath to meet the Sabbath.)

MISHNA VIII.: One who chopped wood on public ground and caused damage on private ground, or vice versa; or on his own private ground, and has done damage on another’s private ground, he is in either of those cases liable.

GEMARA: And all the three cases were necessary to be mentioned, for if the Mishna should state the case of one who chopped wood on his own private ground, and did damage on public ground only, one might say that the liability is because on a public thoroughfare there are usually many passers-by; but if vice versa there is no liability because on private premises there are not many people. And if it should state the case of public to private ground only, one might say that the liability is because he had no right to chop wood there, and as he did that without permission he is liable, but from private to public ground, where he had a right to do so, there is no liability even if it caused damage on public ground. And if it should state these two cases only, still one might say that in one case he is liable, for he has done it without permission, and in the other case because there are many persons, but from one private ground to another, where usually not many people are, and each owner is permitted to do such a thing on his own premises, there is no liability, therefore it was necessary to mention all. The rabbis taught: “One who enters a carpenter’s shop without permission, and was struck on his face by a flying splinter and died, there is no liability. But if he entered with permission the carpenter is guilty.” Guilty of what? Said R. Jose b. Hanina: It means the liability to pay the four certain things, but he is free from banishment, for it is not equal to the case of a forest, which is considered the ground of every one who enters it, but in this case he entered his neighbor’s estate. Said Rabha: Is not the following a fortiori conclusion to be drawn here: A forest, where each one enters by his own will (without the permission of the other), still it is considered as if he entered by the request of the other, and he is to be banished in case he kills one unintentionally); in the case at bar, where he decidedly enters by the request of the other, shall he not so much the more be banished? Therefore we must explain the Boraitha thus: He is free from banishment means that this alone would not be sufficient, and the reason of R. Jose b. Hanina is that it is such an act of negligence that almost amounts to an intentional act (for he should look out).

An objection was raised from the following: “One who throws a stone into a public ground and kills some one, he is to be banished.” Is this not such a negligent act as almost amounts to an intentional act, for he had to have in mind that on public ground people come and go, and still it says that he must be banished. Said R. Samuel bar Itzhak. The case is that he was tearing down his wall and threw the material into rubbish in the daytime. What was the nature of this rubbish? Was it such rubbish as people are likely to be about, then it is intentional? If not, then is it an accident? Said R. Papa: The case is that it was rubbish that people do their necessities thereon in the night-time, but not in the daytime, but still it may happen that some might do so in the daytime; it cannot be considered an intentional act, for it is uncommon to do so in the daytime, and, on the other hand, it is also not an accident, for it may happen.

R. Papa in the name of Rabha explained that R. Jose b. Hanina’s statement has reference to the first part only, viz.: “One who enters a carpenter’s shop without permission, and was struck in the face by a flying splinter and died, the carpenter is free.” Said R. Jose b. Hanina: He is liable to pay the four things, but he is free from banishment (and the difference is thus): That he who explains that it refers to the latter part of the above Boraitha, so much the more as to the first part; but according to R. Papa, he who explains that it refers only to the first part, in the latter part where be entered by request he is to be banished. Is that so? Have we not learned in the following Boraitha: “One who enters a blacksmith’s shop and was struck by an escaping spark and died, there is no liability, even if he entered with permission”? The case here is that it was the blacksmith’s apprentice. Assuming that it is so, may he be killed? It was that his employer insisted that he should leave the shop, and he did not do so. Supposing it so, may he be killed? The employer thought that he did leave. If so, then any person would come under the same rule. In the former case the apprentice usually obeys his employer (and therefore the blacksmith assumed that he left when being told to do so), but in the case of a stranger the blacksmith should look around and see whether the stranger did leave or not.

R. Zbid in the name of Rabha supported the above statement by the expression of the verse, viz. [Deut. xix. 5]: “It (the iron) found,”[117] but not when be makes himself found to the iron. From this R. Eliezer b. Jacob said: One who drops out of his hand a stone, and another one puts out his head and is injured by it, he is free. Said R. Jose b. Hanina: He is not to be banished, but he must pay the four things.

He who applies the explanation of R. Jose to the last case self-evidently holds that it also applies to the former case, and he who applies the explanation to the former case, in the last case may say that he is wholly free.

The Rabbis taught: Employees who came to demand their wages from their employer, and were gored by his ox or bitten by his dog, to death, he is free. Anonymous teachers, however, hold that employees have the right to demand their wages from their employer (and therefore he is guilty). How is the case? If the employer usually comes to town, what reason have the anonymous teachers for their assertion? If, on the other hand, he can be found only in the house, what is the reason of the first Tana? It is in a case where he is not certain, and the employee when knocking on the door or gate is told “In”; one holds that “in” means “come in” (and therefore they had the right to enter), and the other one holds that “in” means “stay where you are (and I will come out to you).” There is a support to the latter construction of “in” from the following Boraitha: “An employee that entered to demand his wages from his employer, and he was gored by his ox or was bitten by his dog, he is not guilty although he entered with permission.” Why so? We must say that it means that when knocking on the door or gate he was told “in,” and he meant that he had permission to enter, but in reality “in” meant only “stay where you are (and I will come out to you).”

MISHNA IX.: Two non-vicious oxen that wounded each other: the one who is hurt the most is to be paid one-half of the amount of the value of difference of the injuries. If both are vicious the full amount of difference of the injuries is to be paid. If one is non-vicious and the other vicious: if the vicious one injured the non-vicious more than he himself was injured he pays the full amount of the difference, if the reverse is the case only one-half is paid. So also if two men wound each other, the one who hurt the most must pay the full amount of the difference.

A man who hurt a vicious ox and was also hurt by the ox, or when the reverse was the case, the full amount of difference is to be paid. If the case was with a non-vicious ox the man pays the full amount and the ox pays the half. R. Aqiba, however, says: Even if the ox was non-vicious, the full amount is to be paid.

GEMARA: The rabbis taught: It is written [Ex. xxi. 31]: “According to this judgment shall be done unto him.” That means that as the judgment when two oxen gore each other, so also shall it be when an ox gores a man. As in the former case a non-vicious ox pays one-half and a vicious one the full amount; the same is the case if it gored a human being. R. Aqiba, however, says: “According to this judgment” means that the judgment just mentioned applies to man, but not to the preceding case. Shall we assume that it must be paid from the best estates? Therefore it is written [ibid., ibid.]: “Shall be done unto him,” which means that he pays only from the body of the ox, but not from the best estates.

MISHNA X.: An ox of the value of one hundred selas that gored another one of the value of two hundred, and the carcass was worthless, the plaintiff takes the ox (i.e., one-half of the damage).

GEMARA: Our Mishna is in accordance with R. Aqiba of the following Boraitha (which treats of the same case, and teaches): “The ox shall be appraised in court, and if he is worth one-half of the killed one the plaintiff may take him.” Such is the dictum of R. Ishmael; R. Aqiba, however, holds that the plaintiff takes the ox without any appraisement. On what point do they differ? R. Ishmael holds that the plaintiff becomes a creditor, and his demand is money, and it must be assessed by the court, and R. Aqiba holds that the plaintiff becomes a partner to the defendant, and they differ as to the explanation of the following passage [Ex. xxi. 35]: “Then they shall sell the live ox and divide his money, and the dead ox also they shall divide.” R. Ishmael explains that it means that this shall be done by the court, and R. Aqiba maintains that the passage makes the parties partners, if both oxen were of equal value; if, however, the goring ox was worth half he belongs -it once to the plaintiff. What is still the difference? When the plaintiff has consecrated him (according to R. Aqiba he is sacred, and according to R. Ishmael he is not until awarded to the plaintiff by the court). Rabha questioned R. Na’hman: If the defendant sold the ox, how is it, according to R. Ishmael, who holds him to be a creditor, is the sale valid? Or perhaps because the ox becomes subject to the appraisement of the court it is not valid? He answered: The sale is not valid. But have we not learned in a Boraitha that it is valid? He may recover him. If it is so, what is the validity of the sale? In case the vendee used him in the meantime in ploughing he need not pay for it. Then infer from this that if a borrower sells his personal property the Beth Din can recover it for the benefit of the lender. Nay, from this case in which the Scripture made the ox hypothecary nothing can be inferred.

R. Ta’hlipha, of Palestine, taught in the presence of R. Abuhu: If he sold him it is invalid, but if he consecrated him it is valid. Who sold him? The defendant, and all agree that the sale is not valid, because even according to R. Ishmael be is still subject to the appraisement in court, and if he consecrated him all agree that he is sacred, because even according to R. Aqiba, who holds that he belongs to the plaintiff without any appraisement, a sacred thing is different by reason of the statement of R. Abuhu, who said that it was so decreed for fear that it might be said that consecrated things become ordinary without being redeemed.

The rabbis taught: “A non-vicious ox that has done damage, if he was sold, consecrated, slaughtered, or presented to somebody, the act is valid if it was done before the rendition of judgment; if, however, either of these things were done after rendition of judgment, it is null and void. If the creditors levied upon the ox, whether the damage was done before or after the recognition of the court of the debt the levy is void, for the damages in case of a non-vicious ox are paid from his body only. In case of a vicious ox all the above acts of his owner are valid without regard whether it was done before or after rendition of judgment, and even the levy of creditors is valid regardless of whether the damage was done before or after recognition, for the reason that damages in case of a vicious ox are paid from the best estates only.

The Master said: “If sold it is valid, as far as the non-payment for the ploughing he has done; if it was consecrated it is valid for the reason stated by R. Abuhu; and if slaughtered or presented to somebody the act is valid.” It would be correct as to presenting, because it means as far as the value of ploughing is concerned, but in case he was slaughtered, why should not the damage be collected from the value of his meat? Have we not learned in a Boraitha: “It is written: ‘The live.’” Whence do we know that if even it was slaughtered? Therefore it is written: “And they shall sell the ox,” which means in whatever state he is? Said R. Shizbi: This (that the act is valid) was necessary only as to the reduction in value on account of being slaughtered (i.e., the owner of the ox need not pay the amount of such reduction).

The rabbis taught: “An ox of the value of two hundred zuz that gored another ox of the same value, and injured him to the extent of fifty, and the injured ox then improved and became of the value of four hundred, although it is possible that if not for the injury he would have improved still more, and would have become of the value of eight hundred, still he pays him only as at the time of the injury (one-half of fifty zuz); if, however, the injured ox became lean and decreased in value, he pays him according to the value at the time of the trial. If the ox who caused the injury improved, he pays him as at the time of the injury; if he decreased in value, as at the time of the trial. On account of what was that leanness of the plaintiff’s ox? If it was on account of work done with him by the plaintiff, let the defendant say, Why should I suffer for the decrease in value caused by you? Said R. Ashi: The case is that the leanness was caused by the blow, in which case the plaintiff can say the horn of your ox is still impressed (in my ox) and this caused leanness.

MISHNA XI.: An ox of the value of two hundred that gored another ox of equal value and the carcass was of no value whatever. R. Meir holds that of such a case it is written [Ex. xxi. 35]: “Then shall they sell the live ox and divide his money.” Said R. Jehudah to him: So the Halakha prevails in reference to the passage cited by you, but how is the last part of this passage [ibid., ibid.]: “And the dead one shall they also divide”? This can apply to a case where the carcass of the ox (which ox was of the same value as the goring ox) is still worth fifty Zuz, in which case each takes one-half of the live and one-half of the dead ox.

GEMARA: The rabbis taught: “An ox of the value of two hundred zuz that gored an ox of equal value and the carcass was worth fifty, each one takes one-half of the live and one-half of the dead ox, and this is the case of the ox intended by the Scripture.” Such is the dictum of R. Jehudah. R. Meir, however, holds this is not the ox intended by the Scripture, but it is where it is as stated in the beginning of the Mishna, and the provision of the passage that “also the dead ox shall they divide” is carried out by appraising how much the carcass is worth less than when the ox was alive, and one-half of that difference (seventy-five zuz) is paid to the plaintiff from the live ox together with the carcass. If it is so, then, according to both, if the carcass is worth fifty each of them gets one hundred and twenty-five, as even according to R. Jehudah, who divides both oxen between them, the share is only one hundred and twenty-five, what is the difference between them? Said R. Johanan: The difference is as to the increase in value of the carcass (since the time of the injury). R. Meir holds that it belongs wholly to the plaintiff, and R. Jehudah holds that they are considered partners, and each takes one-half. And this was because there presented itself a difficulty to R. Jehudah: If you say that the Scripture sympathized with the defendant and meant that he should share in the improvement (of the carcass), would you say in case of an ox worth five selas (twenty zuz) that gored an ox worth one hundred and the carcass is worth fifty zuz, that they also must divide equally the live and the dead ox (and so the defendant will still profit in that, because the one-half carcass is worth twenty-five zuz, and half of the live is worth ten zuz, which makes thirty-five zuz, while the value of the defendant’s ox was only twenty zuz), and where do we find such a case wherein the defendant should still profit? And furthermore, is it not written plainly [ibid. 36]: “He shall surely pay,” which signifies that the defendant pays, but should not profit. [For what purpose is this additional passage adduced? Lest one say that he pays only where the plaintiff does actually suffer damages, but where he does not, as, for instance, an ox worth five selas that gored an ox of equal value, and the carcass was worth six selas (by increase in price, in which case the plaintiff profits), in such a case the defendant may profit, therefore this passage is adduced to show that the defendant should always pay but never profit.] Said R. A’ha bar Ta’hlipha to Rabh: If it is so, then according to R. Jehudah, who insists upon the division of both, we find instances according to him that a non-vicious ox pays more than one-half, and the Scripture provides expressly [ibid. 351: “Then shall they sell the live ox and divide his money” (e.g., when an ox worth fifty gored one worth forty, and the carcass was worth twenty, then the damage amounts to twenty, and if the plaintiff take one-half of the live ox which is twenty-five, and one-half of the carcass which is ten, he would receive altogether thirty-five, which is more than one-half of the damage). Nay, R. Jehudah also holds of the rule that the difference should be divided and deducted from the live one. Whence does he deduce it? From [ibid., ibid.]: “And the dead ox also they shall divide.” But does not R. Jehudah deduce from this passage that each takes one-half of the dead and one-half of the live one? The passage could read: “And the dead ox they shall divide.” Why “and the dead ox also”? To infer both.

MISHNA XII.: There are cases when one is liable for the acts of his ox and is free if they are his own acts, and vice versa. How so? If one’s ox cause disgrace the owner is free,[118] but if he himself did so he is liable. If his ox blinded the eye of his slave or knocked out his teeth the owner is not liable (i.e., the slave is not to be manumitted), but if he himself did it he is. If his ox wounded one of his parents he is liable, but if he himself had done so he is free; and the same is the case when his ox set fire to a barn on Sabbath he is liable, while if he himself did so he is free, for in both last cases he is guilty of a capital crime.

GEMARA: R. Abbuhu taught in the presence of R. Johanan: All those whose acts are of a destructive nature are not liable (as regards the observation of the Sabbath), except those who wound and set fire. Said R. Johanan to him: Go and teach this outside of the college (i.e., such a statement is not to be respected by the college), as those two mentioned are no exceptions (and are also of destructive nature); they can only constitute exceptions in case of the wounding (of an animal when he needed the blood) for his dog,[119] and in case of fire when he needed the ashes (i.e., when the act was done with an intention to derive benefit from the things acted upon).

There is an objection from our Mishna: “An ox that set fire to a barn,” etc. And as the Mishna equals the owner to his ox, is it not to assume that as the ox had no need of the fire so also had the owner none, and still it is stated that he is free (civilly) because he is guilty of a capital crime (hence we see that setting fire on Sabbath is an exception)? Nay, the equality is in the reverse; that is, as the owner did it with some purpose, so also did the ox. How is this possible of an ox? Said R. Avia: It may be explained that it was an intelligent ox that had an itch on his back, and he started the fire in order to roll in the ashes. But whence do we know that this was his intention? From the fact that he really did roll in the ashes. Are there such intelligent oxen? Yea, there are, as there was an ox that belonged to R. Papa, who when he once suffered from toothache removed the cover from the beer barrel and drank from the beer to be cured.

Said the rabbis to R. Papa: How can you say that the equality is that the ox imitated the owner? Does not the Mishna state that if his ox cause disgrace he is free, but not if he himself: now can an ox have such intelligence as to intend to disgrace? Yea, for instance, when he intended to do damage (but caused only disgrace), in which case the Master said elsewhere, if he intended to do damage but caused only disgrace, he is liable.

MISHNA XIII.: An ox that ran after another ox, and the latter was injured, the plaintiff claims that the ox injured him while the defendant claims that it was not so, but that the injury was caused by rubbing against a stone: the rule is that the burden of proof is upon the plaintiff. If two oxen having different owners were running after a third, each of the defendants claiming that the other one’s ox caused the injury, both of them are free; if the two oxen belonged to one person both are liable (as explained further on); if one ox was a big one and the other a small one, the plaintiff claims that the big one caused the injury while the defendant claims that the small one caused it (the difference being that the big one is of sufficient value to pay the half damage while the small one is not); or if one was non-vicious and the other vicious, the plaintiff claiming that the vicious one did the injury, and the defendant claiming that the non-vicious did it, the burden of proof is upon the plaintiff. If the defendant’s oxen were two, one a big one and the other a small one, and so also were the plaintiff’s oxen, the plaintiff claims that the big one injured his big ox and the small one injured the small ox, and the defendant claims that the reverse was the case (so as to reduce his payments); or when one was a non-vicious and the other one a vicious one, the plaintiff claims that the vicious one injured the big one and the non-vicious the small one, while the defendant claims that it was not so, but that the non-vicious injured the big one and the vicious the small one, the burden of proof is upon the plaintiff.

GEMARA: Said R. Hyya bar Abba: This statement (in the Mishna, that the plaintiff has the burden of proof) shows that Summachus’ companions differ with him, for Summachus holds (post, page 106) that money, the ownership of which is doubtful, must be divided among its claimants. Said R. Abba bar Mamel to R. Hyya bar Abba: Does then Summachus hold so even if both of them claim to be positive in their statements? He answered: Yea. And whence do we know that our Mishna also speaks that both claim to be positive in their statements? Because it teaches plainly: One party says: Your ox; and the other party says (positively): Not so. R. Papa opposed: According to your explanation that both claim to be positive in their statements, the last part must naturally also treat of such a case; then how is it to be understood: If one was a big one and one was a small one, etc., the plaintiff has the burden of proof; how would be the law if he does not prove: he takes according to the statement of the defendant? Would this not be in contradiction to Rabba bar Nathan, who says that where one party claims to have sold another party wheat, and the other party admits to have bought of him barley, that the latter is free (and according to the above rule the seller would be entitled to recover for barley)? We must, therefore, say that the case is when one claims that he is positive, while the other one is not positive. Let us see who claims that he is positive. Shall we assume that the plaintiff claims that he is positive and the defendant does not, then there will still be a contradiction to Rabba bar Nathan. We must, therefore, say that the plaintiff does not claim that he is positive while the defendant does so (and therefore he claims his damages from both, and if he does not prove his assertion he recovers only according to the defendant’s statement). Now as the latter part speaks of a case where the plaintiff was uncertain and the defendant was certain, the same must be the case in the first part of the Mishna, and even Summachus holds to his theory, because if not it was not necessary for the Mishna to teach this case. Nay, in the latter part of the Mishna the plaintiff is not positive and the defendant is positive, and in the first part the reverse is the case.

But after this explanation the first part and last part treat of different cases; then could you not explain that the first part speaks where both were positive (and only then Summachus says that the money should be divided), and the last part treats where one is positive and the other is not (in which case Summachus does not oppose). It can be said: Certainty and uncertainty in the first part, and uncertainty and certainty in the other part is still one and the same case, but if both assert certainty in one case and certainty and uncertainty in the other case, there are two different things, and if the Mishna should mean so it would state so plainly.

“Both are liable.” Said Rabha, of Pharsika, to R. Ashi: Infer from this that if non-vicious oxen cause damage the plaintiff may collect his damages from any one of them. Nay, the case in the Mishna is that both oxen were vicious. Said R. A’ha the elder to R. Ashi: If the case were that they were vicious, why is it stated that both are liable? It ought to be “he” (the man) is liable, meaning the owner (as the damage is paid from the best estates). We must, therefore, say that the case is that they were non-vicious, and it is according to R. Aqiba, who holds that they (the parties) are considered partners, and the reason here is that both oxen are on hand, in which case he cannot shift the responsibility upon the missing ox, but where one of them is missing the defendant may say to the plaintiff: Prove that this ox has done the injury, and I will pay you.

Chapter IV

RULES IN REGARD TO OXEN REPEATEDLY GORING OTHER OXEN AND HUMAN BEINGS. OXEN OF ORPHANS AND GUARDIANS AND WHAT IS CONSIDERED “GUARDED.”

MISHNA I.: An ox that gores four or five oxen one after another, the last of them must be paid from the body of the goring ox (if he was yet considered non-vicious., e.g., when the goring was not in succession[120]), and from the balance of the half body the last but one must be paid, and if there was still a balance left the last but two must be paid, so that the later the more privileged. Such is the dictum of R. Meir. R. Simeon, however, says that if an ox of the value of two hundred zuz gores an ox of the same value, and the carcass is worth nothing, each one takes one hundred; if he again gores another of the value of two hundred, the last one takes one hundred zuz, and the former takes fifty, and fifty zuz remain for the owner of the goring ox; if he again gores a third one of the same value, the last one takes one hundred, the last but one takes fifty zuz, and the first as well as the owner takes each a golden dinar (twenty-five silver dinars).

GEMARA: According to whom is our Mishna? It is certainly not according to R. Ishmael, who holds that the plaintiffs are considered creditors, for if it be so, then not the last, but the first would be more privileged, for he was prior to the last one in point of time. Neither can it be in accordance with R. Aqiba, who holds that in case of a non-vicious ox the plaintiff and the defendant are considered copartners, for then if there is a balance left from the body of the ox after the goring of the last one, the same would have to be divided equally among all the plaintiffs previous to the last one, and the decree of the Mishna is that the last but one must be paid, etc. Said Rabha: The Mishna can be explained in accordance with R. Ishmael, and the difficulty that it is stated that the later, the more privileged, which ought to be the first (according to R. Ishmael), is to be explained thus: that the plaintiff levied upon the ox, and in such a case the plaintiff becomes responsible for the damage done by the ox while under his control, as he is then considered a bailee for hire as regards damages (and so was the case with all others). But if such was the case, then why is it stated that if there is a balance left it goes to the last but one? It ought to go to the owner of the ox (for all the gorings subsequent to the first one were made while the ox was not under his control). Said Rabhina: The statement in question means that if after the last one was paid from the body of the ox, there still remained a balance, the same must be paid over to the preceding one.[121] And so when Rabhin came from Palestine he said in the name of R. Johanan that the Mishna is to be explained in the same sense that Rabha did; that is, that the Mishna treats only about the negligence of the plaintiffs who took the ox under their control and neglected to sufficiently guard him as was their duty to do.

Now, when the Mishna is explained to be in accordance with R. Ishmael, how is it about the last part: “R. Simeon said, etc., . . . the first as well as the owner take each a golden dinar”? This is certainly in accordance with R. Aqiba’s opinion that the goring ox becomes the common property of a copartnership. Then the Mishna would be in accordance with two different opinions, viz., the first part according to R. Ishmael and the last part in accordance with R. Aqiba. The Schoolmen said: Yea, so it is, for Samuel said to R. Jehudah (concerning this Mishna): “Genius, leave alone the explanation of the Mishna and agree with me that the first part is according to R. Ishmael and the last part according to R. Aqiba.”[122]

MISHNA II.: An ox that is vicious towards his own species, but not towards other species, or towards human beings but not towards animals, or towards young cattle, but not towards full-grown cattle, the whole damage is to be paid to those towards which he is vicious and half to those towards which he is not vicious. The disciples asked R. Jehudah what the law was when an ox was vicious on Sabbath days, but was non-vicious on week days. He answered: The same is the case also here. He pays the whole for damage done on the Sabbath days, and half for that done on week days. When is such an ox restored to non-viciousness? If he refrained from doing damage for three Sabbath days in succession.

GEMARA: It was taught: R. Zbid said: The Mishna teaches “and not vicious,” which means that as to other species it was certain that he was not vicious, but if it is not certain he is to be considered vicious towards all. R. Papa, however, said: The Mishna teaches “he is not vicious,” which means that an ox that is vicious towards his species is not considered vicious towards others. The reason for their difference of opinion is the following: The former lays more stress on the last part of the Mishna, which teaches that when he is vicious towards young cattle he is not considered vicious towards full-grown cattle, and this could be correct only in accordance with his interpretation that it is certain that he was not vicious, but according to the explanation that he is considered non-vicious this statement is entirely superfluous, as it was already stated that he is not considered vicious even to young cattle if it is not certain, and it is self-evident that so much the less towards full-grown cattle. The latter attaches more importance to the first part of the Mishna, which teaches that if vicious towards human beings he is not considered so towards cattle, and this could be correct only if it is explained that if it is uncertain that he is vicious to cattle he is also considered non-vicious; then the statement of the Mishna is necessary to teach us that, although he is vicious towards human beings, he is still not considered so towards cattle, but if you should explain that he is considered vicious, even when it is uncertain, then this statement is entirely superfluous, as it was already stated that he is considered vicious even from cattle to cattle, and it is self-evident that so much the more so when he is vicious toward human beings.

Said R. Ashi: The last part of the Mishna could support R. Zbid only. Come and hear: “The disciples questioned R. Jehudah what the law was, etc., . . . and he answered, etc. . . .” Now, if the Mishna is to be explained according to R. Zbid, that when not certain he is considered vicious, both the question and the answer are correct (i.e., they questioned him, when he was certain for Sabbath days and not certain for week days, how was the law); but if you will explain the Mishna otherwise (i.e., as R. Papa) what was their question? The Mishna states plainly that he is not vicious. Did they intend to teach R. Jehudah and not to question him? And, secondly, was it then an answer of the latter? He only repeated what they said? Said R. Janai: R. Zbid’s opinion is supported even from the first part of the Mishna, which states: “The whole is paid to those toward whom he is vicious, and half is paid to those toward whom he is not.” This statement can be correct only when he is certain to be non-vicious; then it is correct that the Mishna explains its former statement: To those toward whom he is vicious he must pay so much, and to those, etc., but if the Mishna means to state that one vicious toward human beings is not vicious toward cattle, to what purpose is the latter statement? Is it, then, not known how much a vicious ox and how much a non-vicious pays? If, however, an ox gored another ox, an ass, and a camel, he must be considered vicious toward all species of cattle even according to the theory of R. Papa (as these three species make it certain that he is vicious).

The Rabbis taught: There is a case where an ox may become vicious “in alternate order,” namely, if he meets an ox and gores him, and subsequently he meets another ox and does not, the third however he meets he again gores, when meeting the fourth one, though, he does not, but when meeting the fifth one he does; and again the sixth he does not. There is another case where an ox may become vicious “in alternate order” towards all species, namely, if he meets an ox and gores him, and subsequently an ass and does not, a horse and does, a camel and does not, a mule and does, a wild-ass and does not gore him.

The Schoolmen propounded a question: How is it if he gores three oxen in succession and subsequently one ass and one camel: shall we count the third ox together with the former two, and should he be considered vicious toward oxen only but not toward other species of cattle, or shall we count the last ox with the ass and camel, so that he gored three times in succession three different species of cattle, and he is then considered vicious toward all species of cattle? This question remains unanswered.[123]

Rabha said: “If an ox gored three times, each time upon hearing the blowing of a horn, he is considered vicious when hearing the sound of a horn.” Is this not self-evident? Lest one assume that the first time is not to be counted because he became frightened, he comes to teach us that it is counted.

MISHNA III.: An ox belonging to an Israelite that gored an ox belonging to the sanctuary, or of the sanctuary that gored one of a commoner, there is no liability, for it is written [Ex. xxi. 31]: “The ox of another” (man), but not of sanctuary.[124]

GEMARA: This Mishna is not in accordance with R. Simeon b. Menassia of the following Boraitha: “An ox of a commoner that gored an ox of the sanctuary, or vice versa, is free, for it is written: ‘The ox of another,’ but not of the sanctuary. R. Simeon b. Menassia, however, says that an ox of the sanctuary that gored an ox of a commoner is free, but an ox of a commoner that gored an ox of the sanctuary, whether vicious or not, the whole damage must be paid.” Let us see what the reason is of R. Simeon’s opinion. If R. Simeon interpreted the word “another man” literally, why, then, should the commoner’s ox be liable when he gores an ox of the sanctuary (the sanctuary cannot be called another man)? And if he interpreted the word not literally, why should an ox of the sanctuary be free when be gored a commoner’s ox? And if one might say that although be interpreted the word literally, he nevertheless makes the commoner pay on the ground of the following a fortiori conclusion: When one commoner’s ox gores a similar ox he must pay; so much the more if a commoner’s ox gores one belonging to the sanctuary, and then his statement that even if he was non-vicious the whole damage must be paid would not be correct, as there is a rule that it is sufficient that an inference should be equal to the law from which it is derived (and under no circumstances more rigorous); why then must he pay the whole damage if it is based only on this a fortiori conclusion? Said Resh Lakish: In reality in all cases the whole damage must be paid; the verse, however, making an exception of goring and stating that half only is to be paid, added at the same time the word

‏רעהו‎(which means, literally, “his comrade”), with the intention to exclude all those cases where it cannot be considered of his comrade, e.g., of the sanctuary; and the correctness of this statement may be proved from the fact that when the verse speaks of a vicious ox the above word “Re-ehu” is not mentioned.

When the daughter of R. Samuel bar Jehudah died, one of the Rabbis said to Ula: Let us go and console him. He said to them: What have I to do with the consolation of a Babylonian, for it may turn into a blasphemy, as they are in the habit of saying in such cases, “What can be done?” (against the will of God), which means that if something could be done against His will they would, and this is certainly a blasphemy. He then went alone, and his consolation was as follows: It is written [Deut. ii. 9]: “And the Lord said unto me, Do not attack the Moabites, nor contend with them in battle.” Could it, then, ever enter Moses’ mind to engage in war without the consent of the Lord? But Moses drew an a fortiori conclusion for himself, thus: If of the Midianites who only came to help the Moabites the Scripture reads [Numb. xxv. 17]: “Attack the Midianites, and smite them,” the Moabites themselves so much the more? The Holy One, blessed be He, then said: “Thy conclusion was so because thou couldst not imagine what I bear in my mind. Two good doves I have to bring forth from them; namely, Ruth the Moabite and Naomi the Amonite.” Now is there not an a fortiori conclusion to be drawn? If for two good doves the Holy One, blessed be He, has saved two great nations and has not destroyed them, so much the more would He have saved the life of the master’s daughter if she would be righteous and something good would have to come forth from her.

MISHNA IV.: An ox of a sound person that gored an ox belonging to a deaf mute, idiot, or minor, there is a liability. If the reverse was the case, there is none. An ox of the three last-named persons that gores, the court should appoint a guardian and the witnesses should testify in the presence of the guardian. If in the meantime the deaf mute is cured, the idiot becomes of sound mind, or the minor becomes of age, the ox is restored to his non-viciousness. Such is the dictum of R. Meir. R. Jose, however, says that he remains in the same position. An ox of the stadium (i.e., the place where oxen are trained for fighting) is not liable to be killed when killing even a human being, for it is written: “If an ox gore,” which means of his own inclination, but not when he is trained to do so.

GEMARA: Does, then, the Mishna not contradict itself? First it states that if an ox of the three named persons that gores an ox of a sound person, there is no liability, from which it may be inferred that no guardian is to be appointed when the ox is non-vicious to enable the plaintiffs to collect from his body, and immediately after it states that an ox of those three persons that gores, the court should appoint a guardian and witnesses should testify before him, from which it may be inferred that a guardian is appointed for the purpose of enabling to collect from his body? Says Rabha: This is to be interpreted thus: If they were known to be goring oxen the court appoints a guardian, and the witnesses are examined in the presence of the guardian and the ox is declared vicious, so that if he subsequently gores again the damage is collected from the best estates. From whose best estates? R. Johanan said: From those of the orphans.[125] R. Jose b. Hanina said: From those of the guardian.

Did R. Johanan, indeed, say so? Did not R. Jehudah say in the name of R. Assi that the estate of orphans must not be touched (until the orphans reach majority, even when there is a written obligation of their deceased father to be paid), unless interest would grow on the obligation (e.g., when the deceased borrowed money from a Gentile). R. Johanan, however, says also when the widow’s marriage contract is to be paid, because she must be paid out of the estate a sum of money for her subsistence so long as her marriage contract remains uncollected. Hence we see that only for the purpose of supporting the widow, or where there is interest growing, R. Johanan permits to collect from orphans’ estates, but not otherwise. Reverse the statement in our case, that R. Johanan holds from the estate of the guardian, and R. Jose b. Hanina said from those of the orphans. Said Rabha: Because there is a contradiction between the statements in the name of R. Johanan, you make R. Jose err. R. Jose b. Hanina was a judge, and he always dived to the bottom of the law. Therefore the statement in our case is not to be reversed, but the reason why R. Johanan states in our case that it shall be collected from the estates of the orphans, is because there is no other way, as if it should be collected from the estates of the guardian nobody would consent to become one. And the reason for Jose b. Hanina’s statement that it shall be collected from the guardian’s estates is because the guardian will be able to collect what he has paid from the orphans’ estates when they reach majority.

There is a difference of opinion of the Tanaim as to whether a guardian is appointed in order to collect from the body of the ox in the following Boraitha: “An ox who has gored and his owner subsequently became a deaf mute, an idiot, or went to the sea countries, Jehudah b. Nekussa in the name of Summachus holds that he must be considered non-vicious until the evidence of viciousness was given in the presence of his owner; the sages, however, hold that a guardian is appointed and the evidence is given in his presence. Should it happen that the deaf mute became cured, the idiot of sound mind, or the owner has returned home, Jehudah b. Nekussa in the name of Summachus says that the ox is restored to his non-viciousness, and remains so until the evidence is given in presence of the owner, and R. Jose says that he remains in the same position he was in.” Now let us see what Summachus does mean by his first statement that he must be considered non-vicious, etc. Shall we assume that the ox was still non-vicious; i.e., he had not gored thrice? Then how shall his second statement be explained, that he is restored to his non-viciousness, which means that he was already vicious? We must then say that the statement that he is considered non-vicious means that it is considered that he had not gored at all, hence no guardian is to be appointed to collect from his body, and the sages say that there is one appointed. This is the explanation of the first part of the above Boraitha. In the last part of the Boraitha they differ on another point; that is, if the change of control also changes his state (i.e., whether the change from the control of the guardian to that of the owners changes also his viciousness to non-viciousness)? Summachus holds that it does, and R. Jose holds that it does not.

The rabbis taught: “An ox of a deaf mute, idiot, or minor that gored, according to R. Jacob, the half damages must be paid.” How was the case? If it was a non-vicious ox it is self-evident that only half is to be paid, as the same is the case with an ox of a sound man, and if R. Jacob means that only half is paid even if he was vicious, let us see under what circumstances it may be said so. If the necessary care was taken of him then even the half should not be paid (for it is plainly written [Ex. xxi. 29], “and he hath not kept him in,” but here in this case he had kept him in), and if the necessary care was not taken of him why should not the whole damage be paid (as according to R. Jacob there is no difference who owns the ox)? Said Rabha: This can be explained that it was a vicious ox, and care was taken of him, but not so much as was necessary to prevent him from coming into contact with other oxen; and the reason of R. Jacob’s opinion is because he holds in accordance with R. Jehudah, who says that the state of non-viciousness continues until he is declared vicious, and he also agrees with him in that imperfect care is sufficient also for a vicious one, and he agrees also with the Rabbis that a guardian is to be appointed to collect from the body of the ox. Said Abayi to Rabha: But do not R. Jacob and R. Jehudah differ from each other in their opinions? Have we not learned in the following Boraitha that the ox in question R. Jehudah holds him liable, and R. Jacob holds that he must pay half? Said Rabbah b. Ula: R. Jacob only explains the liability to which R. Jehudah holds him, but does not differ with him. Rabhina, however, says that they do differ, but the case was that there was a change of control; that is, that the deaf mute was cured, etc. R. Jehudah holds that he remains in the same position he was in (and therefore he pays the whole), and R. Jacob says that the change of control changes also his status.

The rabbis taught: “Guardians pay from the best estates, but do not pay the atonement money” (see Ex. xxi. 30). Who is the Tana who holds that the money (which is to be paid according to the verse mentioned) is in atonement, and orphans need not have atonement, for they are not of age? Said R. Hisda: It is R. Ishmael, the son of R. Johanan b. Broka, of the following Boraitha: “It is written [ibid., ibid., ibid.]: ‘And he shall give the ransom of his life’; that is, the value of the deceased. R. Ishmael, the son of R. Johanan b. Broka, however, says it means the value of the defendant.” Shall we not assume that the point of difference is, that the Rabbis hold that the beginning of that verse means the value of the deceased in money as damages, but not in atonement, and R. Ishmael holds that it is in atonement? Said R. Papa: Nay, all agree that it is in atonement, but their point of difference is: The Rabbis hold that the appraisement must be of the person who was killed (because his value is to be paid), and R. Ishmael holds that the appraisement must be of the person of the defendant, because it is written [ibid.]: “And he shall pay the ransom of his life.” And the Rabbis? Yea, it is true that it states “his life,” which means that his life is atoned for, but the amount to be paid for such atonement is the value of the deceased.

Rabha once declared before R. Na’hman that R. A’ha b. Jacob was a great man, and R. Na’hman said to him: When he comes to visit you bring him to me. When he had done so, said R. Na’hman to R. A’ha: Question something of me; and he put him the following question: “An ox belonging to two copartners (who has killed a man), how shall the atonement money be paid? If each copartner should pay the full amount then there would be two atonements, and the verse reads one; and if we should say that each of them shall give only half, then each pays only half, while the verse states that ‘there shall be laid on him a sum of money,’ which means the whole sum, and not the half.” While R. Na’hman was sitting and deliberating over the case, he put to him another question, as to whether the property of the one who has to Pay atonement is levied upon, as such is the case with one who owes sin and trespass-offerings (this will be explained in Tract Eruchin). And R. Na’hman said to him: Leave alone this question. I am still sorrowful that I could not answer the first question at once.

The rabbis taught: “One who borrows an ox with the understanding that he was non-vicious, and it was found out that he was vicious (and while being under the control of the borrower he gored again), the owner pays one-half and the borrower the other half. When, however, he became vicious while being under the control of the borrower, and he has returned him to the owner (and he gored once more), the owner must pay half and the borrower is free.” Let us see: The Master said that in case he was borrowed with the, understanding of being non-vicious, and was found vicious, each pays one-half. Why shall the borrower pay anything? Let him say to the owner, I have borrowed an ox, but not a lion. Said Rabh: The case was that it was known to the borrower that he was a goring ox. But still, he can say that he was understood to be non-vicious, and he turned out to be vicious, why shall I pay half? Because the owner may answer him: What difference does it make to you in this case, if even he would be non-vicious? As soon as he has gored while being under your control you would have to pay half; the same is now, you pay only half. But still there is a difference, for a non-vicious ox pays from his body, while a vicious one from the best estates. The owner may say: Even in this case there is no difference to you, for you would have to pay for the other half of the ox to me in money. Now let us see (the second part of the Boraitha): “When he became vicious while under the control of the borrower, etc., the borrower is free;” hence we see that the change of control changes his status, and from the first part it is to be inferred that it does not change the status, as the whole damage is to be paid if he gored while under the control of the borrower. Said R. Johanan: Break[126] this Boraitha: the Tana who taught the first part did not teach the last one. Rabba, however, says: The Boraitha cannot be broken, as in the first part it is declared that change of control does not change the status, the same must be the case with the second part. The reason, however, for its decision is because the owner can say as regards the viciousness of the ox, which occurred while under the control of the borrower: The latter did not take care of him as he was not his, and therefore I do not consider him vicious at all. R. Papa, however, says: As in the last part of the Boraitha the control does change the status, so also is it in the first part, but the reason why there the whole amount is to be paid is because the ox always bears the name of his owner, even while under the control of the borrower, and therefore the change of control is not to be considered.

“The ox of the stadium,” etc. The Schoolmen propounded a question: Is the ox in question fit for the altar or not? Rabh said he is, for he was goring by compulsion, and Samuel said he is not, for at any rate a transgression was committed with him. There is a Boraitha supporting Rabh, which states plainly that the ox of a stadium is not guilty of death, and is fit for the altar.

MISHNA V.: An ox that killed a man by goring him, if it was a vicious one, the atonement money is to be paid, but not when he was a non-vicious one. Both of them, however, must be killed. The same is the case when he gored a minor male or female. If he gored a male or a female slave he must pay thirty selas, without regard whether their value was one thousand zuz or only one dinar.

GEMARA: If a non-vicious ox killing a man must be killed, how can there be found a vicious ox in regard to man? Said Rabba: The case was that he was running after three men, two of whom escaped, and the court determined from the circumstances that if he would have caught those two he would have killed them. R. Ashi, however, holds that such determination is of no value, but the case was that he gored two, injuring but not killing them at once, and then gored a third one to death, when the first two also died, and therefore he is considered vicious as to the third to pay the atonement money. R. Zbid, however, says: By “vicious one” is meant simply that he has killed three animals, and an ox that is considered vicious as to animals is considered so also as to human beings.[127]

“Both of them,” etc. The rabbis taught: “From [Ex. xxi. 28]: ‘Then shall the ox be surely stoned’; is it not self-evident that he became a carcass, and a carcass must not be eaten, why then does the verse add ‘and his flesh shall not be eaten’?” The verse comes to teach that if he was slaughtered after judgment was rendered the flesh must not be eaten. This is the prohibition of eating it, but whence is it deduced that no benefit must be derived from it? Therefore it is written [ibid., ibid.]: “But the owner of the ox shall be quit,” which means he shall be quit from any benefit. Such is the explanation of Simeon b. Zoma. But whence do we know that the words, “his flesh shall not be eaten,” mean when he was slaughtered after judgment was rendered; perhaps it means after he was stoned, and the words “shall not be eaten” are to be explained that he shall not derive any benefit, but if he was slaughtered the flesh may be eaten also? The prohibition to eat it is inferred from “surely stoned,” and if the verse “his flesh shall not be eaten” would mean to prohibit any benefit, it should have stated “shall not be derived any benefit,” or “he shall not be eaten.” Why the addition “his flesh” to indicate that if he was turned by slaughtering into food, as other meat, it is also prohibited?

The rabbis taught: It is written [ibid. 28]: “But the owner of the ox shall be quit.” Said R. Eliezer: He is quit from paying the half of atonement money. (One might say as a non-vicious pays half damage in case of goring an animal, the same is the case when he first gores a man.) Said R. Aqiba to him: Is this not self-evident? The half payment is collected from his body, and here when the ox is stoned its owner may certainly say: “Bring it into court and collect from it.” Said R. Eliezer to him: Do you consider me as common as not to know such a case? I speak of an ox that is not guilty of death; for instance, if he killed a man in the presence of one witness, or in the presence of his owner only (in which case the ox cannot be killed, but one might say that nevertheless the half atonement money must be paid). [You say in the presence of his owner, which means that the owner admits that it was so, then it would be equal to one who confesses of being liable to pay a fine, and the law is that he who confesses of being liable to fine is free? R. Eliezer holds that this money is in atonement and not a fine.]

In another Boraitha we have learned: Said R. Eliezer: “Aqiba, do you consider me so common as to speak of an ox which is to be killed? I speak about an ox who intended to kill an animal but killed a human being, or who intended to kill a non-viable child and killed a viable one.” Which of these two statements has R. Eliezer made to R. Aqiba first? R. Kahana in the name of Rabha said the one just mentioned was made first. R. Tibiumi in the name of the same authority said that the first statement was made first. The statement of the former is to be compared to a fisher who catches fishes in the sea; if he finds big fish he takes them, and if afterward he finds small ones he takes them also (although the second statement is much straighter evidence than the first one, he nevertheless made also the other statement), and R. Tibiumi’s statement is to be compared to a fisher who keeps the small fish if he catch them first, but catching afterward big fish he abandons the small ones and keeps the big ones. (So was the case with R. Eliezer. He tried to give him evidence from the first statement, but as this was easily objectionable he tried to find stronger evidence and gave it to him.)

We have learned in another Boraitha: “But the owner of the ox shall be quit.” R. Jose the Galilean said that means that be is quit from paying the value of children (if she was pregnant). Said R. Aqiba to him (Is it necessary to have a separate verse for this)? Is it not written [Ex. xxi. 22]: “If men strike, and hurt a woman with child,” etc., from which is to be inferred that only in case of human beings there is a liability for hurting children, but not in case of oxen? (Says the Gemara): Is not R. Aqiba correct? Said R. Ula, the son of R. Idi: Another verse is necessary for the following reason: From the verse just mentioned one might say men, but not oxen that are equal to men. That means, as men are considered always vicious, so vicious oxen are free from liability for hurting children, but non-vicious oxen should be liable. Therefore comes the other verse, “The owner of the ox shall be quit,” to teach that even in such a case there is no liability. Said Rabha: Shall the native remain on earth and the stranger be lifted up to the highest heaven?[128] (i.e., how can it enter the mind that a vicious ox shall be free and a non-vicious shall be liable?) Therefore said R. Ada b. A’hba: (This verse alone would not be sufficient, for) in case of men they are liable for the children only when they intended to strike each other and struck the woman, but if they intended to strike the woman herself there is no money liability because they are guilty of a capital crime; but in case of oxen one might say that even when they intended to strike the woman herself their owner shall be punished also to pay for the children, therefore the expression “shall be quit” indicates that it is not so. And so was it taught plainly in a Boraitha which R. Hagi brought when he came from the south, as R. Ada b. A’hba explained it.

We learned in still another Boraitha: R. Aqiba said: “But the owner of the ox shall be quit,” means from the payment for a slave (in case he was killed by the ox). But why should not R. Aqiba say to himself, as he said above to R. Eliezer, page 143: “Bring it into court and collect from it,” as the ox must be stoned? Said Rabha: The verse is nevertheless needed for the following reason: One might say: Because there is more rigorousness; about a bondman than about a freeman, as for a bondman thirty shekels are paid even if he was worth only one shekel, and in case of a freeman his actual value only is paid, therefore it might be said that the payment for the bondman must be from the best estates; hence the verse to make him quit.

There is a Boraitha in support of Rabha, as follows: “The owner of the ox shall be quit.” Said R. Aqiba: Quit from payment for the bondman: but why is a verse needed for that, is it not common sense? He is liable for a bondman and is liable for a freeman: as in the liability for a freeman you made a distinction between a non-vicious ox and a vicious one, is it not common sense that there shall also be made the same distinction in the liability for a bondman. And in addition to that we may draw the following a fortiori conclusion: A freeman for whom there is a liability for his full value, and nevertheless there is a distinction between a vicious and non-vicious ox, a bondman for whom only thirty selas are paid (although he may have been worth one hundred or more), so much the more that there ought to be a distinction between a vicious and non-vicious one (why, then, is the verse needed)? There is more rigorousness about a bondman than about a freeman, for in case of the latter, if he was worth one sela he pays that much--that is, only the actual value--but in case of a bondman thirty selas are paid if even he was worth one sela, and therefore one might say that whether vicious or non-vicious the full amount must be paid, hence the verse that he shall be quit.

The rabbis taught: It is written [ibid., ibid. 29]: “And he killeth a man or a woman.” Said R. Aqiba: What does the verse mean to teach us by the expression “a man or a woman,” if it is only to teach that a woman is equal to a man? This was already stated in the preceding verse: “If an ox gore a man or a woman.” This verse is to make a woman equal to a man in this respect, that as the damages for the killed man must be paid to his heirs, so also in the case of a woman it is paid to her heirs. But does R. Aqiba hold that her husband does not inherit from her? Have we not learned in the following Boraitha: “It is written [Numb. xxvii. 11]: ‘And he shall inherit it’? From this is to be inferred that the husband inherits from his wife.” So said R. Aqiba. Said Resh Lakish: R. Aqiba meant the atonement money, which payment is made only after her death, and thus it is only considered inchoate and the husband does not inherit such a share in her inchoate as he does in her existing estates. But what is the reason that it is collected only after her death? Perhaps it is to be collected as soon as the court came to the conviction that she must die from the injuries. Therefore it reads [ibid., ibid. 29, 30]: “And he killeth a man or a woman, the ox shall be stoned, and his owner also should of right be put to death. But there shall be laid on him a sum of money in atonement.” From which is to be inferred that the money is paid only when “his owner shall of right be put to death,” which cannot be when she is still alive. But did not R. Aqiba say that even in cases of damage her husband does not inherit from her? Have we not learned in a Boraitha: “If one struck a woman and caused her to abort he must pay for the damage and pain to herself, and the value of the children to the husband; if her husband is dead he pays to his heirs; if the woman is dead he pays to her heirs. If she was a bondwoman and became free, or she was a proselyte, the one who has to make the payment need not pay, for he himself acquires title to the payment, as these classes of persons have no legal heirs.” Hence we see that even for the damage and pain the payment must be made to her heirs and not to the husband. Said Rabba: The case was that she was a divorced woman; and so also said R. Na’hman: If the case was with a divorced woman, why should she not take a share of the money paid for the children? Said R. Papa: The Scripture has awarded the money for the children to their father, even if they were begotten illegally, as it is written [Ex. xxi. 22]: “As the husband of the woman lay upon him.”

Resh Lakish said: An ox that killed a bondman unintentionally is free from the payment of the thirty shekels, as it is written [ibid., ibid. 32]: “Thirty shekels shall be given to his master, and the ox shall be stoned,” from which it is to infer that only when the ox is to be stoned the money is to be paid, but not otherwise. Said Rabba: The same is the case as regards atonement money in case the ox killed a freeman unintentionally, for it is written [ibid.]: “The ox shall be stoned, and his owner also should of right be put to death, but there shall be laid on him a sum of money in atonement,” from which is to be inferred that only when the ox is stoned, etc., the atonement money is to be paid, but not otherwise. Abayi objected: We have learned: “(If one confess, saying) my ox has killed a certain person, or his ox, he has to pay on his own testimony.” Does it not mean atonement money also? Nay, it means the money for damages. If it is so, why does the latter part state.

“My ox has killed the slave of a certain man; be is not compelled to pay on his own testimony”? Now if this is not the fine but damages, why should he not pay? Said Rabba to him: I could answer you that the first part treats of damages and the latter of fine, but I do not like to give you a far-fetched answer. Both parts treat of damages, but in the first instance the atonement money is paid upon his own testimony under the following circumstances: That witnesses came and testified that his ox killed a man, but were unable to testify whether he was vicious or non-vicious, and the owner admits that he was vicious, in such a case he has to pay the atonement money on his own testimony, but where there are no witnesses he pays only the damage, but not the atonement money. And in the case of a slave, if witnesses come and testify that the ox killed the slave, but they are unable to testify whether he was vicious or not, and the owner admits that he was vicious, he has not to pay the fine upon his own testimony, and where there are no witnesses he need not pay even the damages. R. Samuel b. Itzhak objected: We have learned: “The same liability one has for a freeman he also has for a bondman, either as to atonement money or as to the death penalty.” Is there then any atonement money in case of a bondman? We must therefore say that it means damages; hence we see that one pays damages even on his own testimony. Some say that he himself answered this objection, and others say that Rabba said to him: This Boraitha is to be explained thus: In every case where one is liable to pay atonement money--for instance, a freeman--when done with intention and there is testimony of witnesses, he is liable under the same circumstances to pay a fine of thirty shekels in the case of a slave, and in case he is liable for damages only--as, for instance, when witnesses testify that he has done it without intention--in case of a slave under the same circumstances he pays only damages, but no fine; but if he himself admits, although in case of a freeman he has to pay damages, in case of a slave under such circumstances he is free. Rabha questioned Rabba: If one’s fire has done damage without intention is there a liability or not? Shall we assume that it is only in case of an ox where, when intentionally he pays atonement money, when unintentionally he pays damage, but in the case of fire, where there is no atonement money at all (as, if intentionally, he is guilty of a capital crime), if it was unintentionally he shall not pay damages, or the atonement money is not to be taken into consideration, and the damages must be paid at any rate; as we do not know of any reason why fire should be distinguished from an ox when done unintentionally, as both are his property? This remains unanswered. When R. Dimi came from Palestine he said in the name of R. Johanan thus: It could be written: “Shall be laid on him a sum of money in atonement.” Why is the word “if”[129] added? To teach that the atonement money shall be paid when done unintentionally as well as if done intentionally. Said Abayi to him: According to your theory, why should we not say the same of a bondman, where it is also written [ibid. 31] “if,” even when done unintentionally; and if you should say that so it really is, why then said Resh Lakish that if an ox killed a slave unintentionally he is free from the thirty shekels? He answered: What contradiction do you adduce? They are two different persons, and differ in their opinions. When Rabhin came from Palestine he said that R. Johanan has declared plainly that the same is the case with a slave when killed, even unintentionally, and that he deduced it from the word “if,” as explained above.

“A male or female minor.” The rabbis taught: It is written [ibid. 3 1]: “If he gore a son or gore a daughter;” that is, to make one liable for little children as for grown persons. But is this not common-sense? There is a liability of a human being for a human being, and the same liability is of an ox for a human being; as in the former there is no difference as to whether young or old, so also in the latter case, and this can be inferred also by the following a fortiori conclusion: In the case of human beings, in which the murderer is guilty only when he is a grown-up person, but not a child, for it is written plainly “man” (and a child is not called “man”); in the case of an ox, in which there is no difference as to whether it is old or young (as the Scripture calls him ox from the very same day he was born, Lev. xxii. 27), so much the more that he shall be guilty for children as well as for grown persons. Why, then, is a verse needed? Nay (as to all that was said above could be objected thus): In the case of human beings there is a liability for the four certain things, which is not the case with an ox, and one might say, as in the case of an ox, there is no liability for the four things; so also should there be a distinction between children and grown persons; hence the above passage. From this passage we deduce only as to a vicious ox; whence do we know that as to a non-vicious one? This is common-sense: As there is a liability for a grown man or woman, and the same liability is for children, and as to grown persons no distinction is made between a vicious and non-vicious ox, the same is the case with children. This can also be inferred by a fortiori conclusion: Grown persons, who are responsible for their acts, if they were killed by an ox there is no distinction made between a vicious and non-vicious one; so much the less in case of children, who are not responsible for their acts, that no distinction is to be made whether the ox was vicious or not. Is it not against the rule to draw an a fortiori conclusion from a rigorous one to a lenient one to make the lenient rigorous? (It is deduced that no distinction is made between a vicious and non-vicious ox in regard to grown persons from the case of the children, and the verse, “If he gore a son,” etc., speaks of a vicious ox; now you compare again the case of children to the case of grown persons, to say that as there is no distinction, so is none here, consequently you draw from the rigorous one, i.e., grown persons, which is based only upon common-sense, to the case of children, where the Scripture says plainly that the ox must be vicious, and consequently lenient, as it can be said that only a vicious and not a non-vicious is meant, to make a non-vicious also liable.) And still we can say that the case of children is more lenient, for children are free from observance of the Law, which is not the case with grown man; therefore it is written: “If he gore a son, or gore a daughter,” the repetition of “gore” being superfluous, to teach us that there is no distinction between a vicious and non-vicious ox, between injured and killed, and in all cases it must be paid.

MISHNA VI.: An ox that was rubbing against a wall whereby the wall fell upon a human being and killed him; if the ox intended to kill an animal and killed a man, or a non-viable child and killed a viable one, he is free.

GEMARA: Said Samuel: He is free from death, but he is liable to pay the atonement money. Rabh, however, says that he is free from both. But why shall atonement money be paid? Is he then not non-vicious? (Is it not said that he was rubbing against the wall, in which case he is surely non-vicious, at least in this case?) As Rabha explained this (post, page 112), that it was vicious in this respect as to fall into pits, so also here that it was vicious in rubbing against the wall. But if so, then he must be put to death. It would be correct in the case of Rabha’s explanation cited concerning a pit, because he noticed therein vegetables, and intending to eat of them he fell in, but in this case here what can be said? He was rubbing against the wall to derive benefit. How do we know that? From the fact that he continued rubbing even after the falling of the wall. But then is this the proximate cause? Is it not the remote cause, as digging up gravel? Said R. Mari, the son of R. Kahana: The case was that the wall was little by little removed by his rubbing until the very moment it fell, and therefore it was the proximate cause, but still there was no intention to kill.

There is a Boraitha which is a support to Samuel and an objection to Rabh, namely: “There are cases in which the ox is put to death and the owner pays atonement money, and there are other cases in which atonement money is paid, but the ox is not put to death, and still others in which the ox is put to death, but no atonement money is paid, and finally such cases in which there is no liability to either. How so? If there are both viciousness and intention, both atonement money is paid and the ox is killed. If viciousness without intention is present, atonement money only; non-viciousness but intentional, the ox is put to death, but no atonement money. Non-viciousness without intention, no liability at all. But if, however, he has done damage unintentionally R. Jehudah holds him liable and R. Simeon holds him free.” What is the reason of R. Jehudah’s decision? He compares it to atonement money: as the latter is to be paid if unintentional, so also in damages; and R. Simeon compares it to the killing of the ox: as the ox is not to be killed if it was unintentional, so also is the case with damages.

“If the ox intended to kill an animal,” etc. But how is the case if it intended to kill one man and killed another, is there a liability? If so, then this Mishna will not be in accordance with R. Simeon of the following Boraitha, in which he says “that even if he intended to kill one man and killed another he is also free.” And his reason is because it is written [Ex. xxi. 29]: “The ox shall be stoned, and its owner,” etc. The killing of the ox is equal to the death of its owner: as the owner cannot be put to death unless he killed this man intentionally, so also the ox is not killed unless it killed this man intentionally. But whence do we deduce that it is so in case of murder? Because it is plainly written [Deut. xix. 11]: “And he lie in wait for him, and rise up against him,” etc., which indicates that he must have the intention for the man he killed.

MISHNA VII.: An ox belonging to a woman, to orphans, or their guardian, or an ownerless ox, or an ox belonging to the sanctuary, or the ox of a proselyte who died without heirs, all those (if they kill a man) are put to death. R. Jehudah, however, holds that an ownerless ox, or that belonging to the sanctuary or to the proselyte in question are not put to death, for the reason that they have no owners.

GEMARA: The rabbis taught: “The word ‘ox’ is repeated seven times in the chapter of the Scripture treating of the goring of a man by an ox, which repetition means to include all those kinds of oxen stated in the Mishna. R. Jehudah, however, says that notwithstanding these repetitions, an ownerless ox, or one belonging to the sanctuary or to a proselyte are not put to death, because they have no owners. Said R. Huna: R. Jehudah makes him free even if he was consecrated or declared ownerless after the goring. Whence this theory? Because it is repeated in R. Jehudah’s statement, “an ox that is ownerless or one belonging to a proselyte,” etc., are they not both equally ownerless? Hence for the purpose stated. And so it is plainly stated in the following Boraitha: Furthermore, R. Jehudah said: Even if it was consecrated or made ownerless after goring, they are also free, as it is written [Ex. xxi. 29]: “And warning had been given to his owner,” etc., which means that it is put to death then only when during the bringing to the court, the judgment, and its execution its owner is still in existence.

MISHNA VIII.: An ox that was sentenced to be put to death and his owner consecrated him, he is not consecrated. If his owner slaughtered him, his meat is prohibited. If, however, this was done before the completion of the sentence, he is consecrated, and if slaughtered his meat may be used.

If one delivered his ox to a gratuitous bailee or borrower, to a bailee for hire, to a hirer, all those substitute the owner as to responsibility for damage: a vicious one pays the whole, and a non-vicious one the half.

GEMARA: The rabbis taught: “An ox that killed a man; if before sentence he was sold or consecrated the act is valid, if slaughtered his meat may be used. If the bailee returned him to his owner the act is valid. If, however, all those enumerated were done after sentence, neither of those acts is valid. R. Jacob, however, said that as regards the bailee the act is valid even if after sentence, and the point of their difference is thus: Whether the ox may be sentenced in its absence from before the court. The rabbis hold that the sentence must be pronounced in the presence of the ox. Now the owner may say to the bailee: If you would have returned him to me before sentence, I would have driven him away into the swamp (so that he could not be brought before the court), and R. Jacob, however, holds that as the sentence may be pronounced in his absence, there is no difference. What is the reason for the rabbis’ theory? The verse quoted above, “The ox shall be stoned, and his owner,” etc., from which is to infer that the ox is in this respect equal to his owner, as his owner could not be sentenced to death in his absence, the same is the case with the ox. R. Jacob, however, objected and said: The owner is different, because he could argue before the court, but for what purpose is the presence of the ox necessary in the court?

“If he delivered him to a bailee,” etc. The rabbis taught: The following four substitute the owner: The gratuitous bailee, the borrower, the bailee for hire, and the hirer. If the ox under the control of the above killed a man while being non-vicious, .he must be put to death, and no atonement money is paid; if while being vicious, also atonement money is paid; and all of them with the exception of gratuitous bailee must pay the value of the ox to its owner. Let us see how was the case. If they guarded him as required, let all of them be free; if they have not guarded him as required, let even the gratuitous bailee also pay? The case was that they have not sufficiently guarded him. For the gratuitous bailee it is considered sufficient, and therefore he is free, but for all others it is not sufficient (because a greater degree of care is required of them). Let us see, according to whom is this Boraitha? If according to R. Meir, who says that a hirer is equal to a gratuitous bailee: “Why did not the Boraitha add to the gratuitous bailee also the hirer? And if it is according to R. Jehudah, who says that a hirer is equal to a bailee for hire, why did not the Boraitha add to the gratuitous bailee also that all of them in the case of a vicious ox are free from atonement money” (as R. Jehudah holds that even slight care is sufficient for the above substitutes)? Said R. Huna b. Hinua: The Boraitha is in accordance with R. Eliezer, who says that there is no guard for a vicious ox unless the knife, and he also holds according to R. Jehudah, who says that the hirer is equal to a bailee for hire. Abayi, however, says that the Boraitha is in accordance with R. Meir, and it is as Rabbah b. Abuhu changed the statement of the rabbis as follows: One who hires an ox, how shall he pay? R. Meir says, as a bailee for hire, and R. Jehudah says, as a gratuitous bailee.

R. Elazar said: One who delivered his ox to a gratuitous bailee, and the ox did damage, the bailee is liable, but if he was injured he is free. Let us see how the case was. If the bailee agreed to guard him against injury, then let him be responsible if even he was injured, and even he did not let him be free even if he did damage. Said Rabha: The case was that he did take the responsibility, but he knew at the time that he was a goring ox, and common-sense dictates that his intention was to guard him against goring as it was his habit, but it could not enter his mind that he will be gored by others.

MISHNA IX.: If its owner properly tied him and locked him up, and still he broke out and did damage, be it a vicious or a non-vicious one there is a liability. Such is the dictum of R. Meir. R. Jehudah, however, holds that a non-vicious is liable, and a vicious is not, for it is written [Ex. xxi. 29]: “And he hath not kept him in,” but here he had. R. Eliezer, however, says there is no guard for a vicious ox except the knife.

GEMARA: We have learned in a Boraitha: R. Eliezer b. Jacob said: “Whether vicious or non-vicious, if they were slightly guarded (from negligence) he is free from the whole damage.” The reason for this is because he is in accordance with R. Jehudah, who said above that slight care is sufficient for a vicious ox, and he holds that even a non-vicious ox must also be guarded from the analogy of expression “gore.” As in the case of a vicious one it is plainly written, “He hath not kept him in,” so also it is in case of a non-vicious.

R. Ada b. A’hba said: R. Jehudah made him free (in our Mishna) from viciousness, but not from non-viciousness (i.e., he must still pay half).

Rabh said: If he was vicious to gore with the right horn he is not considered vicious as to the left horn. According to whom is Rabh’s saying? (The saying of Rabh is certainly not regarding the payment, as it is certain that even when he was vicious toward human beings he is not considered vicious toward an animal, and it is therefore self-evident that if it was known to be vicious with his right horn, no claim can be made that the whole must be paid if he gored the first time with the left horn. Rabh’s saying therefore must be interpreted to have reference to “taking care.”) If it is in accordance with R. Meir even a non-vicious one must be taken good care of? And if according to R. Jehudah, who holds that only slight care is sufficient, then why is it necessary to make the distinction between viciousness and non-viciousness, as to goring with left and right horns: there is a distinction also in the very case of the right horn, viz., if no care at all was taken of him then the viciousness prevails, but if any care at all was taken of him, only the non-viciousness prevails and the viciousness is gone? It can be said that he is in accordance with R. Jehudah, but he does not hold of the theory of R. Ada b. A’hba. And Rabh’s saying is to be explained thus: To find in one and the same ox both viciousness and non-viciousness, it can be only when he was vicious to gore with the right and not with the left horn; but if he was vicious as to both horns, then the element of non-viciousness can no more be found in him (i.e., if no care at all was taken of him he is vicious in all respects, but if any care at all was taken the viciousness is gone and the non-viciousness remains).

“R. Eliezer says for a vicious ox,” etc. Said Abayi: The reason for R. Eliezer’s saying is as we have learned in the following Boraitha: R. Nathan said: Whence do we deduce that one must not raise a noxious dog in his house, nor maintain a defective ladder? For it is written [Deut. xxii. 8]: “That thou bring not blood upon thy house.”

Chapter V

RULES CONCERNING A GORING OX; EXCAVATIONS ON PUBLIC AND PRIVATE PREMISES; EXCAVATIONS MADE BY PARTNERS, ETC.

MISHNA I.: Should an ox gore a cow and the new-born calf be found dead at her side, and it be not known whether she gave birth to it before the goring or by reason of the goring, the owner of the ox pays half the damage for the cow and one-fourth for the calf. So also should a cow gore an ox and her new-born calf be found alive at her side, and it be not known whether she gave birth before the goring or by reason of the goring, the owner of the cow pays half the damage from the body of the cow and one-fourth from that of the calf.

GEMARA: Said R. Jehudah in the name of Samuel: This is the dictum of Summachus, who holds that money about which there is a doubt as to whom it rightly belongs, must be divided. But the sages said: There is a principal rule--the burden of proof is upon the plaintiff. [For what purpose is the statement that there is a principal rule? It was necessary that, even when the plaintiff claimed positively while the defendant only said that he was doubtful about it (in which case one might say that there need be no proof at all), this rule apply.] The same we have also learned in the following Boraitha (the exact statement of the Mishna with the addition): This is the dictum of Summachus, but the sages say that the burden of proof is upon the plaintiff.

Said R. Samuel b. Na’hmani: Whence is this rule deduced? From [Ex. xxiv. 14]: “Whoever may have any cause to be decided, let him come unto them.” That means, he shall produce proof before them. R. Ashi opposed: Why is a verse necessary? Is it not common-sense that one who feels pain goes to a physician? We must therefore say that this verse applies to the saying of R. Na’hman in the name of Rabba b. Abbuhu: Whence is it deduced that in case of a claim and counterclaim the claim must first be passed upon and judgment awarded and executed, and then the counterclaim must be proved (as at this stage the former defendant is now the plaintiff)? From the above-quoted passage, which means that the plaintiff who has the cause to be decided shall be heard first. The sages of Nahardea, however, said that in some cases it might happen that the counterclaim must be passed upon first, and that is in case the judgment, if awarded against the defendant, would have to be collected from the latter’s real estate; for if the judgment were allowed to be collected before the counterclaim was proved, the estate would sell much cheaper than if he should prove his counterclaim and sell his estate at a proper price.

“So also should a cow gore an ox,” etc. Half and a quarter of the damage! Why three-quarters--he has to pay only half? Said Rabha: The Mishna meant to say thus, If the cow is there, one-half of the damage is collected from the body of the cow; but if she cannot be found, one-quarter is collected from the body of the calf, and the reason is because it is doubtful whether the calf was with its mother at the time of the goring or not; but if we should be certain that it was, half would be collected from the body of the calf.

This decision of Rabha is in accordance with his theory elsewhere as to a cow that has done damage--the same may be collected from its offspring, because the latter is considered a part of her own body. A hen that has done damage--the latter cannot be collected from her eggs, for the reason that they are completely separated from the hen and it does not care any more for them.

Rabha said again (in the first instance, when the ox gored the cow): The cow and her offspring are not separately appraised, but both of them together (i.e., the value of the cow before giving birth and that after she gave birth, and not the value of the cow separately and that of the calf separately); for otherwise it would work too much harm to the defendant. The same is the case if one cut off the hand of his neighbor’s slave or if one damage his neighbor’s field (that is, in each of those cases the value prior to doing the damage and that after doing the damage is ascertained, and thus the damage is appraised, and not by appraising separately the damaged part and the main body). Said R. A’ha the son of Rabha to R. Ashi: If in reality the law is so, what do we care for the defendant? let him suffer. Why, then, did Rabha protect him? Because the defendant might say: “I caused injury to a gravid cow, and therefore the appraisement must also be made of such a cow.” it is certain, if the cow belonged to one person and the calf to another, that for the reduction of the fatness it must be paid to the owner of the cow; but for the depreciation on account of the reduction in fulness, to whom is this to be paid? (I.e., if while the cow was gravid the owner of the cow sold the calf to be born to another person, and through the injury the cow miscarried, and by reason thereof the cow became reduced both in fatness and in fulness (figure), both of which are elements making up the value of a cow; now, for the reduction in fatness the owner of the cow must be paid, for the calf has not contributed to it; but for the depreciation on account of the decrease in the fulness, shall the owner of the calf be paid? for the calf gave her that fulness, or both the cow and the calf contributed to it, and the value of this damage must be divided.) R. Papa says it is paid to the owner of the cow only. R. A’ha the son of R. Iki says that it must be divided, and so the Halakha prevails.

MISHNA II.: A potter that placed his pottery in the court of another without his permission, and the court-owner’s cattle broke them, there is no liability. If the cattle were injured thereby, the potter is liable. If, however, he placed them there with permission, the court-owner is liable. The same is the case with one who placed his fruit in another’s courtyard and it was consumed by an animal of the court-owner. Should one lead his ox into the court of another without permission and it be gored by the ox of the court-owner, or be bitten by his dog, there is no liability. If, however, the ox in question gored the court-owner’s ox, or it fell into the well and spoiled the water, he is liable. If the court-owner’s father or son was in the well (at the time, and was killed), he must pay atonement money. If, however, he led it there with permission, the court-owner is liable. Rabbi, however, says that in all these cases the court-owner is not liable unless he expressly undertook to take care of the ox.

GEMARA: Is the reason for the statement in the first part of the Mishna only because he placed them without permission, but if with permission the potter would not be liable for injuries to the animals of the court-owner, and we do not say that it is implied that the potter has assumed the care of the animals, and this can be only in accordance with Rabbi, who holds that wherever it is not expressly assumed there is no implied assumption to take care? Now, the latter part, which states: “If he placed them there with permission the court-owner is liable,’’ is certainly in accordance with the rabbis, who hold that there is an implied assumption even when nothing was expressly mentioned; and in the last part Rabbi declared that in all cases he is not liable unless the court-owner expressly assumed the care; hence the first and last parts will be in accordance with Rabbi, and the middle part in accordance with the rabbis? Said R. Zera: Separate the clauses, and say that the one who taught this part did not teach the other. Rabha, however, says: The whole Mishna can be explained to be in accordance with the rabbis, and that the case was that he entered with permission and the court-owner assured the safety of the pottery (and the potter assumed nothing), in which case he is responsible if even the wind should break them.

“If he placed his fruit,” etc. Said Rabh: The case is only if she slipped on account of them; but if she consumed them (and by reason thereof died) there is no liability, for she was not compelled to eat them.

Come and hear: “One who led his ox into another’s courtyard, and it consumed wheat which caused it diarrhœa and it died, there is no liability. If, however, he led it in with permission, the court-owner is liable.” Why not argue here the same way, and say that it was not compelled to eat? Said Rabh: “You wish to contradict a case with permission by a case without permission? In the former event he assured the safety of the ox, and therefore he is liable if even the ox should choke himself.”

The schoolmen propounded the following question: “When he assured the safety of the ox, did it only extend to himself (i.e., to protect the ox against the injury by his own animals), or also to all cattle?” Come and hear: “R. Jehudah b. Simeon taught in Section Damages, of the school of Qarna: If one placed his fruit in the courtyard of another without permission and an ox came from some other place and consumed it, he is free; if, however, with permission, he is liable. Who is liable and who is free--is it not the court-owner?” (Hence we see that he must guard him also against injury by others?) Nay, it may be said that it has reference to the owner of the ox. If so, what difference is there whether it was with or without permission? There is: If with permission, it is to be considered the premises of the plaintiff, in which case the tooth is liable (for as soon as the court-owner allowed him to enter he thereby assigned him room in his court); but without permission, it cannot be considered that he consumed it “in another man’s field,” which is required in the case of the tooth, and therefore there can be no liability.

Come and hear: “If one lead his ox into a courtyard without permission and an ox come from another place and gore it, he is free; if, however, with permission, he is liable.” Who is free and who is liable--is it not the court-owner? Nay, it is the owner of the ox. If so, what difference is there whether with or without permission? The Boraitha is in accordance with R. Tarphon, who says that there is an extra rule as to the horn if on the premises of the plaintiff, in which case he pays the whole. Now, if with permission, it is considered the premises of the plaintiff (for the reason stated above) and he pays the whole damage; but if without permission, it is equal to the case of the horn on public ground, in which case only half is paid.

It happened that a woman entered a house to bake, and the house-owner’s goat having consumed the dough, became feverish and died. Rabha then made the woman pay for the goat. Shall we assume that he differs with Rabh, who said that it was not compelled to consume it? What comparison is this? There it was without permission, and therefore the safety was not assured; but here it was with permission, and therefore the safety of the goat was assured by the woman (for the reason stated further on, that in baking by a woman modesty is required, as she has to bare her arms and the owner of the house cannot stay in the room; it is therefore considered that he has assigned the whole room to the woman, and therefore she is responsible for the damage done to the house-owner). And why is this different from the following case: If a woman enter another’s premises to grind her wheat without permission and the house-owner’s animal consume the wheat, there is no liability. If, however, the animal was injured thereby, the woman is liable. The reason then is because it was without permission, but if with permission she would be free? There is a difference: In case of grinding wheat, where no modesty is required and the owner could be present, the care of the animal devolves upon him; but in case of baking modesty is required (as stated above).

“If one lead his ox into a courtyard,” etc. Rabha said: One who leads his ox into a courtyard without permission, and the ox digs an excavation in the courtyard, the owner of the ox is liable for the damage caused to the court, and the court-owner is liable for the damages caused by the excavation (if he renounced ownership), although the Master said elsewhere, on the strength of the passage [Ex. xxi. 33]: “If a man dig a pit,” a man, and not an ox; for here in this case he had to fill up the pit (before renouncing ownership), and by not so doing it is considered as if he dug it.

Rabha said again: “One who leads his ox into a court without the permission of its owner, and it injures the owner, or the latter is injured through it, he is liable. If, however, it lie down (and by doing so breaks vessels, or while being in such a position the court-owner stumbles over it and is injured), there is none.” Does, then, the lying down relieve him from liability? Said R. Papa: Rabha means, not that the ox itself lay down, but that it lay down (voided) excrement and thereby soiled the vessels of the court-owner, in which case the excrement is considered a pit; and we do not find that there is a liability for damage to vessels by a pit. This would be correct according to Samuel, who holds that any obstacle is considered a pit; but as to Rabh, who holds that it is not considered a pit, unless ownership is renounced, what can be said? Generally from dung ownership is renounced.

Rabha said again: If one enter a court without permission and injure the court-owner, or the latter be injured through him (by jostling against him), he is liable; if the court-owner injure him, he is free. Said R. Papa: “This was said only in case the court-owner has not noticed him; but if he has, he is liable.” What is the reason? Because he can say to him: “You have the right only to drive him out, but not to injure him.” And each follows his own theory, for Rabha, and according to others R. Papa, said: If both of them were there with permission (e.g., on a public highway), or both of them without permission, if one injure the other (by striking with the hand, although unintentionally), both are liable (for as to damages there is no difference whether with or without intention); but if one was injured through the other (as by jostling), they are free. The reason, then, is because both of them were either with or without permission; but if one was with and the other one without permission, the one who was with permission is free and the other is liable.

“If he fall into the pit and spoil the water,” etc. Said Rabha: This was taught only when it was spoiled through the body (e.g., when the body was soiled); but if it was so because of the (putrefied) smell, he is free. And the reason is, because the carcass is only the germon (origin) of the smell, and for germon there is no liability.

“If his father, his son,” etc. Why so? Is he not a non-vicious one? Said Ula: It is in accordance with R. Jose the Galilean, who holds, with R. Tarphon, that the horn on the premises of the plaintiff pays the whole damage, so also here he pays the whole sum of atonement money, and for that reason he teaches, “if his father,” etc., to indicate that it was the premises of the plaintiff.

“If he lead him in with permission,” etc. It was taught: “Rabh said: The Halakha prevails according to the first Tana, while Samuel holds that the Halakha prevails according to Rabbi.”

The rabbis taught: “If he said: ‘Lead in your ox and take care of him,’ if he did damage, he is liable; if he was injured, there is no liability. If he, however, said: ‘Lead in your ox and I will take care of him,’ the reverse is the case.” Is there not a difficulty in the explanation of the Boraitha? First it states, if he told him to lead in the ox and to take care of him he is liable if he did damage, etc.--then the reason is because he told him expressly to take care of him; but if nothing was said as to care, the reverse would be the case, for the reason that, when nothing is mentioned, the court-owner impliedly assumes the care. How, then, should the last part: “If he, however, told him: ‘Lead in your ox and I will take care of him,’ etc., be explained? Is it not to infer that the reason was because he expressly said that he would take care of him, but if nothing was said as to care, the owner of the ox is liable and the court-owner is free, for the reason that under such circumstances the court-owner does not assume the care, which is according to Rabbi, who holds that the court-owner is not liable unless he expressly assumes the care, and so the first part would be according to the rabbis and the last part according to Rabbi? Said Rabha: The whole Mishna can be explained to be in accordance with the rabbis, thus: Because it states in the first part “and you take care of him,” it states also in the last part, “and I will take care of him.” R. Papa said: The whole Mishna may be explained in accordance with Rabbi, but that he holds with R. Tarphon, who says that the horn on the premises of the plaintiff pays the whole, and therefore if he tell him, “You take care,” the court-owner has not assigned him any room, and thus it is to be considered as the horn on the premises of the plaintiff, which pays the whole; but if he keep silent, it is considered that he has assigned him room in the court, and thereby the court becomes a partnership, and under such circumstances only half is paid.

MISHNA III.: If an ox intend to gore another ox, and injure a woman and cause her to miscarry, the owner of the ox is free from paying for the child. If, however, a man intend to hurt another man, and hurt a woman and cause her to miscarry, he must pay for the child. How is this payment made? The woman is appraised as to the difference in her value (as a slave) before and after she gave birth. Said R. Simeon b. Gamaliel: If so, then her value increases after giving birth. We must therefore say that the worth of the infant is appraised and its value is paid to her husband if she has one, or to his heirs if she has no husband. If she was a manumitted slave or a proselyte, there is no liability.

GEMARA: The reason is only because it intended to gore another ox, but if it originally intended to gore the woman he is liable for the infant. Shall we assume that this is a contradiction to R. Ada bar A’hba, who said elsewhere that even in such a case there is no liability? Nay, R. Ada b. A’hba may answer that, even according to our Mishna, there is no liability even if it intended to gore the woman. But why does the Mishna say that it intended to gore another ox? Because in the last part it states a case where a man intended to injure another one, in which it is essential, for so states the Scripture; therefore the same expression was used.

“How is this payment to be made,” etc. The value of the infant? It ought to read “the increased valuation caused by the infant”? (for so does the Mishna state, that the woman is “appraised,” etc.). It really means: “How does he pay the value of the infant and the increased valuation caused by the infant? The woman is appraised,” etc.

“Said R. Simeon b. Gamaliel,” etc. What does he mean? Said Rabha: He means thus: Is, then, the value of a woman during pregnancy higher than after she gives birth-is not the reverse the fact? We must therefore say “that the worth of the infant,” etc., and so also we have learned in a Boraitha elsewhere. Rabha, however, says: He means thus: Does, then, the increase in value of the woman belong wholly to the husband, and she has no share in the increase of value caused even by her infant? The infant is appraised and its value paid to the husband, and the money for the increase in valuation is divided between the husband and the wife. We have so also learned plainly in a Boraitha, with the addition that each item must be separately appraised: the pain, the damage; the value of the infant, however, must be paid to the husband only, but the increase in valuation caused by it must be divided. If so, then the two statements of R. Simeon b. Gamaliel contradict each other? This presents no difficulty. The one case is that of a first-birth, and the other is not.

And the rabbis, who hold that the increase in valuation also belongs to the husband, what is their reason? As we have learned in the following Boraitha: From the Scripture, which reads [Ex. xxi. 22]: “And her children depart from her,” do I not know that she was with child? Why does it state, “a woman with child”? To tell thee that the increase in value caused by pregnancy belongs to the husband. R. Simeon b. Gamaliel, however, applies the passage quoted to the following Boraitha: R. Eliezer b. Jacob said: He is not liable unless he struck her over the womb. And R. Papa explained the above statement of R. Eliezer b. Jacob, that he does not mean the womb only, but any part of the body except the arm or foot.

“If she was a bondwoman,” etc., “or a proselyte woman,” etc. Said Rabba: This is to be explained that he wounded her before her husband died, in which case the deceased acquired title to the money to be paid, and upon his death the same is inherited by the defendant, in whose possession the money still is (and so is the law as regards the property of a proselyte who died without leaving heirs); but if he wounded her after the death of her husband, the money is to be paid to her. Said R. Hisda: “Who is the author of this statement? Are, then, children as packages of money, that their ownership may pass from one to another? Where there is a husband alive the Scripture made an exception, in that the money to be paid should belong to him; but where there is none, no payment at all is to be made.” Regarding this statement the Tanaim of the following Boraitha differ: “An Israelite’s daughter that was married to a proselyte and she has conceived by him, and some one wounded her, if during the lifetime of the proselyte, the value of the infant goes to him; if after his decease, one Boraitha states that the defendant must pay to the mother and another Boraitha states that he is free.”

According to Rabba’s theory there is no doubt that the Tanaim differ, but according to R. Hisda’s theory, in accordance with whom will be the Boraitha which states that he must pay? It is in accordance with Rabban Simeon b. Gamaliel, who said that the mother gets one-half of the money to be paid even when her husband is alive, and the whole if he is dead.

R. Iba the elder propounded the following question to R. Na’hman: One who took possession of the documents of a proselyte (which he held against the lands of an Israelite), what is the law? Shall we assume, of one who receives mortgages on estates, that his main intention is to take possession of the lands, and whereas of the latter the proselyte has as yet not taken possession, the one who took possession of the documents has acquired no title, because these documents are not considered property, or is it considered that the proselyte’s intention was also as to the documents (and so they are his property)? He said to him: Answer me, my Master, could the intention of the proselyte be to wrap up a bottle in them? He answered: Yea, it may have been also for that very purpose.

Rabba said: “If an Israelite’s pledge is in the hands of a proselyte and the latter dies, and another Israelite comes and takes possession of it, he may be deprived of the possession (by the owner of the pledged article). Why so? Because as soon as the proselyte died the lien on the pledge became null and void. If, however, a proselyte’s pledge is held by an Israelite and the proselyte dies, and another Israelite takes possession of it, the pledgee has his lien on the pledge to the extent of his debt and the other one acquires title as to the balance. Why should not the pledgee’s premises (on which the pledge is located) acquire the title for its owner? Did not R. Jose b. Hanima say that one’s premises acquire title for their owner even without his knowledge? It may be explained that he was not there, and therefore when the owner is there, and he wishes he himself could acquire title, his premises can also do so for him; but where there is no owner to acquire title himself, his premises cannot do so for him. And so the Halakha prevails.

MISHNA IV.: One who digs a pit on private ground and opens it into public ground, or vice versa, or on private ground and opens it into the private ground of another person, is liable.

GEMARA: The rabbis taught: One who digs a pit on private premises and opens it into public premises is liable; and this is the kind of a pit that was meant by the Scripture. Such is the dictum of R. Ishmael. R. Aqiba says: The pit mentioned in the Scripture is where one renounced ownership to his premises (on which there was a pit), but did not renounce it to the pit. Said Rabba: As to a pit on public ground, all agree that there is a liability, but as to one on one’s own premises, R. Aqiba holds that even in such a case there is a liability, for it is written [Ex. xxi. 34]: “The owner of the pit”; that means that the Scripture meant a pit that has an owner, while R. Ishmael holds that it means the one to whom the cause of the injury previously belonged. But what does R. Aqiba mean by his saying, “That is the pit meant by the Scripture”? Thus: Why should this case be free from payment? Is this not the very case with which the Scripture began as regards payment?[130] R. Joseph, however, says, that as to a pit on private premises all agree that there is a liability, for the reason stated by R. Aqiba; they only differ as to a pit on public ground. R. Ishmael holds that one is also liable in such a case, thus: It is written [ibid., ibid. 33]: “And if a man open a pit, or if a man dig a pit”; now, if for the opening one is liable, so much the more is he for the digging? We must therefore say that the liability came to him because of the digging and opening only (i.e., that neither the premises nor the pit is his, as being on public ground). R. Aqiba, however, may explain it thus: Both statements are necessary, for if the Scripture should state only as to the opening, one might say that only in case of opening it is sufficient to cover it, but in case of digging it is not, unless he stuff it up; and if the Scripture should state only the digging one might say that only in such a case it must be covered, for he has done some substantial act; but in case of opening only there is no need even to cover it, for no substantial act was done. Hence the necessity of both verses. And what does R. Ishmael mean by his statement, “This is the pit,” etc.? He means that this is the pit with which the passage began as to damages.

There is an objection from the following: One who digs a pit on public ground and opens it into private ground is free, although it is not permitted to do so, for the reason that no excavation must be made under public ground. One who digs a round, oval, or obtuse-angle-shaped pit on private ground and opens it into public ground is liable. And one who digs pits on private premises adjoining public ground, as, for instance, those who dig pits to lay foundations for buildings, is free. R. Jose b. Jehudah, however, makes him liable, unless he put up a partition ten spans high, or unless the pit was at least four spans distant from the pathway for man and beast. Now the first Tana holds him free, because it was for laying foundations; but otherwise he would also hold him liable? (Hence there is a liability for a pit on one’s own premises?) According to whose theory is the statement of the first Tana? It would be correct according to Rabba, for it could be explained that the first part is according to R. Ishmael and the last part according to R. Aqiba; but according to R. Joseph, the last part is in accordance with all and the first part in accordance with none? R. Joseph may say that the whole Boraitha is in accordance with all, but the first part treats of a case where he renounced ownership neither to the premises nor to the pit (and although he must not do so, nevertheless there is no liability). Said R. Ashi: Now that we arrive at the conclusion that according to R. Joseph’s theory the Boraitha is in accordance with all, the same may be explained also according to Rabba’s theory that the whole Boraitha is in accordance with R. Ishmael; but the reason why, according to your inference, there would be a liability, if it is not for laying a foundation, is because he extended the excavation under the public ground (and therefore, if not for laying foundations, it should be considered digging on public ground).

The rabbis taught: One who digs and opens a well and delivers it over to the community is free (if any accident happened). Otherwise he is liable. And so also was the custom of Nehunia the pit-digger, to dig and open wells and deliver them over to the community. And when the rabbis heard of it, they said: “He is acting in accordance with the Halakha.”

The rabbis taught: It happened to the daughter of the very same Nehunia, that she fell into a large well. They came and informed R. Hanina b. Dosa of it. During the first hour he said to them: “Go in peace”; and so also during the second. At the third (when there was fear that she might have died), he said that she was out already and saved. When the girl was asked who saved her, she said that a ram passed by led by an old man (the ram of Isaac led by Abraham), who saved her. When R. Hanina b. Dosa was asked whether he knew of her safety by prophecy, he said: I am no prophet, nor am I the son of a prophet, but I thought to myself, “Can it be that the children of that upright man (Nehunia, who was digging wells to enable the pilgrims to drink water from them) shall die by the very thing he was taking so much pains to prepare for the welfare of Israel?” Said R. A’ha: Notwithstanding this, his son died of thirst. The reason is, that the Holy One, blessed be He, is particular with the upright around Him, even on a hairbreadth, as it is written [Ps. l. 3]: “And round him there rageth a mighty storm”[131] (and there must have been some sin committed by Nehunia for which he was punished). R. Nehunia says: From the following passage [ibid. lxix. 8]: “God is greatly terrific in the secret council of the holy ones, and fear-inspiring overall that are about him.” R. Hanina said: One who says that the Holy One, blessed be He, is liberal (to forgive every one his sins), his life may be disposed of liberally (for he encourages people to sin), as it is written [Deut. xxxiii. 4]: “He is the Rock, his work is perfect; for all his ways are just.” R. Hana, and according to others R. Samuel b. Na’hmani, says: It is written [Ex. xxxiv. 6], “Long-suffering” in the plural, and not in the singular, to signify that He is long-suffering towards the upright and also towards the wicked.

The rabbis taught: One shall not remove stones from his own premises to public ground. It happened once that one did so, and a pious one passing by at the time and seeing him do that said to him: “Thou ignoramus, why dost thou remove stones from premises not belonging to thee to thy own premises?” He laughed at him. Some time later he was compelled to sell his lands, and while walking on the public highway in front of his former lands he stumbled over the stones he once piled up. He then exclaimed: “I see now that the pious one was right in his saying!”

MISHNA V.: One who digs a pit on public ground and an ox or an ass falls into it (and is killed), he is liable. It matters not as to the shape of the pit, whether round, oval, or a cavern, rectangular or acute-angular, in all cases he is liable. If this is so, then why is it written “pit” [‏בור‎]? To infer from this that as a round pit in order to be sufficient to cause death must be no less than ten spans deep, so also all other forms must be at least ten spans deep. If they were of less depth, however, there is no liability for death; but for injuries there is.

GEMARA: Rabh said: The pit for which the Scripture made one liable is because of the vapors (therein contained), but not because of the shock (the animal receives). From this may be inferred that Rabh holds that the vapors kill the ox for which the digger of the pit is liable; if the ox should be killed not by the vapors, but by the shock received at the bottom of the pit, there should be no liability, because the ground is considered ownerless. Samuel, however, holds because of the vapors, and so much the more because of the shock; and if one might say that the Scripture meant only as to the shock and not as to the vapors, and therefore if it should be proved that the death was caused by the vapors and not by the shock there should be no liability, it would be incorrect, for the Scripture is testifying that the digger of a pit is liable, and even if the pit were filled with wool sponges, On what point do they differ (for according to both, if the ox was killed he must be paid for)? The difference is in case he formed a hill (ten spans high) on public ground (from which the ox fell down and was killed): according to Rabh he is not liable, while according to Samuel he is. What is the reason of Rabh’s opinion? The passage states [Ex. xxi. 33], “Fall into it,” which signifies that there must be the usual way of falling (into an excavation, and face downward), but according to Samuel “fall” means in any manner.

There is an objection from our Mishna: If so, then for what purpose is written “pit,” etc.? Now, it would be correct according to Samuel, for the “so also,” etc., would include also a hill on public ground; but according to Rabh, what does this include? It includes rectangular and acute-angular pits. But are these not expressly stated therein? They are first stated, and then it is explained whence they are deduced; and it was necessary to enumerate all the forms of a pit, to teach that in each of them there are sufficient vapors to kill, if they are ten spans deep. It happened that an ox fell into a lake from which the neighboring lands used to be irrigated, and its owner slaughtered it. R. Na’hman nevertheless declared him trepha (illegal, because, according to his theory, the limbs of the ox were broken by the fall). The same, however, declared that if the owner would spend only one kabh of flour in going around and asking the law in his case, he would learn that if the animal under such circumstances should be alive twenty-four hours after the fall it could be held fit for eating, and he would not lose his ox, which is worth many kabhim of flour. From this we see that R. Na’hman holds that an animal may be killed from shock in a pit less than ten spans deep.

Rabha objected to R. Na’hman from our Mishna: “If they were less than ten spans deep and an ox or an ass fell into them and was killed, there is no liability.” Is not the reason because there is no shock? Nay, because there are no vapors. If so, then why is it stated further: “If he be injured, he is liable.” Why so--there are no vapors? He answered: “There are no vapors sufficient to kill, but sufficient to injure.”

He again objected from the following Boraitha: It is written [Deut. xxii. 8]: “If any one were to fall from there”--this signifies that it means only from there, but not thereinto. How so? If the level of the public highway were ten spans higher than the roof of the house, so that some one might fall from the highway to the roof, there is no liability (because there was no obligation to make a battlement); if, however, the highway were ten spans lower than the roof, there is a liability (for a battlement has to be made). Now then, if shock in an excavation less than ten spans deep also kills, why state ten? He answered: “This case is different, for it states ‘house,’ and less than ten cannot be called a ‘house.’”

MISHNA VI.: When a pit belongs to two partners, and one of them passes by and does not cover it, and so also does the second, the latter only is liable.

GEMARA: Let us see. How can there be a pit of two partners on public ground? This case could be if we should say that the Halakha prevails in accordance with R. Aqiba, who holds one liable for a pit even if it be on his own premises, and partnership in the pit would be possible if both partners dig a pit on their premises and subsequently renounce their ownership to the premises but not to the pit; but if the Halakha prevails according to him who says that if one dig a pit on his own premises there is no liability, how is it possible on the one hand that there should be liability for the same pit on public ground, and on the other hand how can there be a partnership pit on the public ground? Shall we assume that both of them together hired an agent to dig the pit for them? Is there not a rule that there can be no agent to commit a transgression, for the agent ought not to commit any transgression if even he was hired to do so? Consequently the partners could not be responsible for the acts of the agent. If we assume that the partnership consisted in that each of them dug five spans deep, then there can be no partnership, for the act of the first one can be taken into account according to Rabbi’s theory only as to injuries; but even according to him as to death, and according to the rabbis’ theory as to both injuries and death, it cannot be counted. How, then, can there be a partnership in a pit? Said R. Johanan: It is possible if both of them together removed a lump of earth from it which completed it to make it ten spans deep.

Where are the theories of Rabbi and his colleagues, mentioned above, stated? In the following Boraitha: “If one dig a pit nine spans deep and another one complete it to make it ten deep, the latter one is liable. Rabbi, however, says: The latter one only is liable in case of death, and both are liable in case of injuries.”

What is the reason of the rabbis’ theory? It is written [ibid., ibid. 33]: “And if a man dig a pit,” which signifies that it must be by one only. Rabbi, however, explains this passage to mean that it must be dug by a man and not by an ox.

The rabbis taught: “If one dig a pit ten spans deep and another one complete it to make it twenty, and still another one make it thirty deep, all of them are liable.” There is a contradiction from what we have learned in the following: “If one dig a pit ten spans deep and another one plaster and lime it (and thereby makes it narrow and increases its vapors), the last one is liable.” Shall we not assume that the one case (where all are liable) is according to Rabbi and the other is according to his colleagues?

Said R. Zbid: “Both may be explained to be according to Rabbi only, thus: The case where all are liable is correct, as stated, and the case where only the last one is liable is where there were originally in it not sufficient vapors even to injure, and the other one by his acts produced so much vapors as to be sufficient both to injure and kill.”

Rabha said: “If one place a stone at the edge of a pit which is less than ten spans deep and thereby complete its walls to measure ten spans, whether he is responsible or not would raise the same difference of opinion as between Rabbi and his colleagues stated above.” Is this not self-evident? One might say that if one dig one span more in the bottom, and by doing so he increase the vapors to be sufficient to kill, he is liable, because the vapors produced by him killed the animal; but if he raise the walls at the top (by placing the stone), by which he did not increase the vapors, as they were there already, one might say that he was not liable, because the animal was not killed by the vapors produced by him--he comes to teach us that there is no difference.

Rabba bar bar Hana in the name of Samuel bar Martha said: A pit eight spans deep, two of which are filled with water, there is a liability. Why so? Each span of water equals two of dry ground. The schoolmen propounded a question: If the pit was nine spans deep and only one span of them was filled with water, what is the law--shall we say that as there is only a little water there are no vapors in it, or shall we say that as it is nine spans deep the vapors of the water complete it to make it ten? Again, if the pit was seven spans deep, three of which were filled with water, what is the law--shall we say that as there is much water in it there are vapors, or because it is not sufficiently deep there are none? This remains unanswered.

R. Shizbi questioned Rabba: “If one dig a pit ten spans deep and another widen it (toward one direction only), what is the law?” He answered: “Then he diminished the vapors!” The former rejoined: “But he increased the possibility of being injured?” Rabba made no answer. Said R. Ashi: “A case of this kind must be examined. If he fell in through the side which was widened, then he surely increased the possibility of falling in, and he is responsible; if, however, he fell in through the other side, then he diminished the vapors, and he is not.”

It was taught: “A pit the depth of which is of the same dimensions as its width, Rabba and R. Joseph, both in the name of Rabba bar bar Hana quoting R. Mani, differ as to the decision of those quoted: One holds that there are always vapors (sufficient to kill) therein unless the width exceeds its depth, and one holds that there are no vapors therein unless the depth exceeds its width.”

“If one passed by and did not cover it.” From what time on is he free? (That we say that the other one was charged with covering it, for the case undoubtedly is that the first one not only passed by but also used the pit; because if not so, then the first one ought to be liable as well, as it was negligence also on his part not to cover it.) As to this the following Tanaim differs: “One is drawing water from a well and another comes telling him to let him draw water, as soon as he lets him do so, the liability of the first ceases. R. Eliezer b. Jacob, however, says that the liability ceases from the moment he delivered him the cover of the well. On what point do they differ? R. Eliezer b. Jacob holds that the theory of choice[132] applies to such a case, and each drew water from his own part (and therefore the second is not considered to have borrowed from the first his share, so as to be charged with the care of the whole, and for that reason both are liable in case of damages; but if he accepted the cover, he thereby became charged with the care of the whole), and the rabbis hold that the theory of choice does not apply to such a case. R. Elazar said: One who sells his well, title passes with the delivery of the cover. How was the case? If he sold it for money, let the title pass by the payment of the money; if by occupancy, let the title pass by this act? The case was by occupancy, which requires that he should expressly tell him, “go and occupy and acquire title”; and if he delivered the cover to him, it is considered as if he told him so.

R. Jehoshua b. Levi said: One who sells his house, the title passes with the delivery of the keys (as it is the same as the delivery of the cover of the pit).

Resh Lakish in the name of, R. Janai said: “One who sells a flock of cattle, title passes with the delivery of the Mashkhukhith (the drawing-rope). How was the case? If he drew them (removed them from one place to another), let title pass by this act? If by delivery, let title pass by doing this? The case was that he drew them, which requires that the vendor shall tell the vendee expressly, “Draw them and acquire title,” and as soon as he delivered the Mashkhukhith it is considered as if he told the vendee expressly, “Draw, and acquire title to them.” What is meant by Mashkhukhith? It means the bell. R. Jacob said: “It means the forerunning goat kept at the head of the flock as leader, as a certain Galilean lectured in the presence of R. Hisda: When the shepherd gets angry at his flock, he blinds the leading-goat at the head of the flock (so that the leader falls and with him all the flock).”

MISHNA VII.: If the first one covered it, but when the second one passed by he found it uncovered and did not cover it, the latter is liable. If the owner of a pit properly cover it, and still an ox or an ass fall into it and is killed, there is no liability. If however, he do not properly cover it, he is liable. If an ox fall forward, face downward, into a pit by reason of the noise caused by the digging, there is a liability; if, however, it fall backward, there is none. If an ox or an ass with its housings fall into it and the housings be damaged, there is a liability for the animal but not for the housings. If there fall therein an ox, deaf, raging, or young, there is a liability (explained further on). If a boy or a girl, a male or a female slave, fall in, there is none.

GEMARA: Until what time is the first one free? Said Rabh: Until he again knows of his own knowledge that the pit is uncovered. Samuel, however, says: Until he is informed, even if he has not seen it himself. R. Johanan says: Time must be allowed him until he could be informed and could hire workmen to cut wood and cover it.

“If he cover it properly,” etc. If he covered it properly, how could the animal fall in? Said R. Itz’hak bar bar Hana: The case was, that the cover became rotten from the inside (and could not be noticed).

The schoolmen propounded the following question: “If he covered it sufficiently to withstand oxen but not camels, and camels came along and made the cover shaky and then oxen fell therein, what is the law? Let us see. How was the case? If camels are usual there, then certainly the act is wilful; if they are not, then it is only an accident? The question is only where camels come there at times. Shall we say that, because camels do come there, it is considered wilful, for he should have had it in mind, or do we say that because at that time they were not there it might be considered an accident?” According to others the schoolmen did not question as to such a case; for there is no doubt that, as long as they came at times, he should have had it in mind, but what they did question was this: If he covered it sufficiently to withstand oxen but not camels, and the latter are usual there and the cover became rotten from within, what is the law? Do we say that because it is considered wilful as to camels it is so also as to allowing it to rot, or that the theory of because does not apply here? Come and hear: “An ox that was deaf, raging, young, or blind, or an ox that walked in the night-time, he is liable; if, however, the ox was sound and it was in the day-time, he is free.” Now, why should it be so? Why not say because it is considered wilful as to an unsound ox it is also considered so as to a sound one? Infer from this that the theory of because does not apply to such cases,

“If it fell in forward,” etc. Said Rabh: By “forward” is meant that it fell on his face, and by “backward” that it struck the back of its head against the bottom of the pit. And both of them have reference to the pit. [And this is in accordance with his theory that the Scripture made one liable in case of a pit only because of the vapors, but not because of the shock.] Samuel, however, says: “In case of a pit there is no difference whether it fall forward or backward, but he is liable.” [For he follows his theory as to the vapors, and so much the more because of the shock.] But how is the case possible that when it fall backward from the sound of the digging he shall be free? As, for instance, when it stumbles over the pit and falls backward and strikes outside of the pit. Samuel objected to Rabh from the following Boraitha: “As regards a pit, whether it fall backward or forward, he is liable?” This objection remains.

R. Hisda said: Rabh admits in case of a pit on one’s own premises that he is liable, because the owner of the ox may say, “You are liable either way; for whether he died from the vapors or from the shock, it was yours.” Rabha, however, says: The case in the above Boraitha, which states that he is liable if even the ox fall backward, was that he turned over; that is, he first fell face downward, but before. he reached the ground he turned over and fell on his back, and therefore it is the vapors that he inhaled while falling face downward that kill him. R. Joseph says: The Boraitha in question does not mean to say that the owner of the pit is liable, but, on the contrary, that the owner of the ox is liable, and it treats of a case where the ox did damage to a well, namely, by (entering a courtyard without permission, the owner of which renounced ownership neither to the courtyard nor to the well, and) falling into the well, spoiling the water therein contained; in which case he is liable, no matter which way it fell. R. Hanina taught in support of Rabh: It is written: “And fall”--that means that the falling should be in the usual manner, face downward. From this it was said that if he fell face forward into a pit from the sound of the digging there is a liability; if backward from the same cause, there is none.

The Master said: “If he fall face downward from the sound of the digging, there is a liability.” Why so? Was this not caused by the one who was doing the digging? (In this case it is assumed that the owner has hired another person to do the digging, and the latter is only the germon (medium), and there is no liability for being the germon?) Said R. Simi b. Ashi: It is in accordance with R. Nathan, who said that the damage must be paid by the owner of the place where it was done, for the reason that the digger cannot be liable, because he is only the germon of the damage, as we have learned in the following Boraitha: “An ox that pushed another ox into a pit, the owner of the ox, and not the owner of the pit, is liable. R. Nathan, however, said that each one of them pays half (for both have their share in it).” But have we not learned in another Boraitha: “R. Nathan said: The pit-owner pays three-fourths and the owner of the ox one-fourth”? This presents no difficulty: One case treats of a vicious and the other of a non-vicious ox. But what does he hold in case of a non-vicious ox? If he holds that each one has done the whole damage, let each one pay half? And if, on the other hand, he holds that each one has done half the damage (and therefore the owner of the ox pays as for a non-vicious one one-fourth, which is half of the damage he did), only three-fourths are paid and one-fourth is suffered by the plaintiff? Said Rabha: R. Nathan was a judge, and he dived into the very depth of the Halakha. He holds that each has done only half the damage; but as to the objection raised that the owner of the ox should pay only one-fourth, it may be said that the owner of the killed ox may say to the owner of the pit: “I found my ox in your pit and you killed him; therefore, whatever I can realize from the owner of the ox who pushed mine in I will, and the balance you will have to pay.”

Rabha said: “One who places a stone on the edge of the opening of a pit and an ox stumbles over the stone and falls into the pit,” as to this question the difference of the rabbis and R. Nathan comes in (according to the rabbis the one who placed the stone is liable, for he caused the fall, and he cannot be considered as the germon, for the placing of a stone in itself is considered the same as a pit; and according to R. Nathan both are liable, for both contributed). Is this not self-evident? Lest one say: In that case the pit-owner may say to the owner of the ox, “Were it not for my pit your ox would have (instead of pushing him in) killed him”; but here, in this case, the one who placed the stone may say to the pit-owner, “Were it not for your pit, what harm would my stone have done him? Had he stumbled over, he would have gotten up at once?” It therefore teaches that he may, however, say to him, “Were it not for your stone, he would not have fallen into the pit.”

Rabha said: An ox and a man who together push some other into a pit (so that the ox, the man, and the pit have all contributed), as regards damages all are liable; as regards the four things and the value of the infant (if it should be the case), the man is liable and the others are free; as to payment of atonement money and the thirty shekels for a slave, the ox is liable and the others are free; as regards damage to vessels and an ox that became desecrated and was redeemed, the man and the owner of the ox are liable, and the owner of the pit is free. Why is the owner of the pit free in this latter case of a redeemed ox? Because it is written [Ex. xxi. 36]: “And the dead shall belong to him,” which means in a case where the dead can belong to him, excepting this case (for although it was redeemed the carcass cannot be sold but must be buried).

“If an ox fall in,” etc. Our Mishna is not in accordance with R. Jehudah of the following Boraitha: “R. Jehudah makes one liable for damages to vessels caused by a pit.” What is the reason for the rabbis’ theory? It is written [ibid.]: “And an ox or an ass fall therein,” which signifies an ox but not a man, an ass but not vessels. R. Jehudah, however, holds that the “or” means to add also vessels. Now, according to R. Jehudah, who admits that the word “ox” means to exclude man, what does the word “ass” mean to exclude? Therefore said Rabha: The necessity of stating “ass” as regards a pit according to R. Jehudah, and “lamb” as regards a lost thing according to all, is really difficult to explain.

“If an ox, deaf,” etc. What does this mean? Shall we assume that the ox belongs to a deaf person, etc., but if he belongs to a sound person there is no liability? How is that possible? Said R. Johanan: It means that the ox was deaf, etc. But if he was sound, there is no liability? Said Rabha: “Yea, an ox that is deaf, etc., but if he was sound there is no liability, because a sound ox is capable of taking care of himself. The following Boraitha is plainly in support of the above: If there fall therein a deaf, raging, young, or blind ox, or an ox walking in the night-time, there is a liability. If it was a sound one, however, and in the day-time, there is no liability.

MISHNA VIII.: There is no difference between an ox and another animal as regards falling into a pit; to have been kept distant from Mount Sinai [Ex. xiii.] as to payment of double, to restitution of lost property; as regards unloading; muzzling, kilayim [of species], and as regards Sabbath. Neither is there any difference between the above-mentioned and a beast or bird. If so, why does the Scripture mention “ox or ass”? Because the verse speaks of what is usual.

GEMARA: Concerning falling into a pit, it reads [Ex. xxi. 34]: “In money unto the owner thereof,” which signifies any animal that has an owner. Concerning Mount Sinai, it reads [ibid. xix. 13]: “Whether it be animal[133] or man, it shall not live,” which includes also beasts; and the word “whether” includes also birds. Concerning payment of double, it reads [ibid. xxii. 8]: “For all manner of trespass,” which signifies that every manner of trespass (wilfulness and even as regards inanimate subjects). Concerning restitution of a lost thing, it reads [Deut. xxii. 3]: “Every lost thing of thy brother’s.” Concerning unloading, we deduce it from the analogy of expression of “ass” used here, and in regard to Sabbath [Deut. v. 14] (as concerning the latter, other animals are also included, so also here). Concerning muzzling [Deut. xxv. 4], we deduce it from the analogy of the term “ox” used here, and concerning Sabbath [ibid.]. Concerning kilayim, if it relates to that of ploughing, we deduce it from the analogy of the term “ox” in the manner just stated; if it relates to that of coupling of animals, it is deduced from the analogy of the word “any of thy cattle” used here, and concerning Sabbath. And whence do we know that it is so as to Sabbath itself? From the following Boraitha: R. Jose says in the name of R. Ishmael: At the first commandments it is written [Ex. xx. 10]: “Thy man-servant, nor thy maid-servant, nor thy cattle”; and at the second commandments it is written [Deut. v. 14]: “Nor thy ox, nor thy ass, nor any of thy cattle.” Why were they expressly stated? Are, then, the ox and the ass not included in it cattle”? To tell thee that, as the terms “ox” and “ass” mentioned here include beasts and birds, to put them on the same footing, so also, wherever these two terms are mentioned, they include beasts and birds. But perhaps the statement in the first commandments should be taken as general and that of the last commandments as particular, and as there is a rule that the general includes nothing but the particular, this means to say that only ox and ass are meant, and nothing else? Nay, it states, at the last commandments, also “all[134] of thy cattle,” and the word “all” adds all other beasts. Is it really so, that wherever “all” is written it adds something? Is not the same word used at tithing, and still it is construed to be a case of general and particular? (See Erubim, p. 64.) We may say that “all” is sometimes also a general, but in this particular instance it must be explained only as to add; for it would have been sufficient to state only “and cattle,” as it does in the first commandments, and still it states, “and all cattle,” to infer that it plainly means to add.

Now, having come to the conclusion that this “all” means to add, why was it necessary to state “cattle” in the first and “ox” and “ass” in the last commandments? It can be explained that these particular expressions were mentioned for the purpose of deducing muzzling, unloading, and kilayim by the analogy of expression stated above. If also (that as regards kilayim it is deduced from Sabbath), let even a man be prohibited from drawing a wagon together with an animal, as he is also prohibited as regards Sabbath? Why, then, have we learned in the following Mishna: “A man is permitted with all of them to plough and draw”? Said R. Papa: One of the inhabitants of Papanai knew the reason for that, and that was R. A’ha bar Jacob, who explained it thus: It is written [ibid. 14]: “In order that thy man-servant and thy maid-servant may rest as well as thou”--that means that they are compared to them only as regards rest, but not as regards any other thing.

R. Hanina b. Egil asked R. Hyya b. Aba: Why in the first commandments is it not written “that it may be well with thee,” and in the second commandments it is so written [Deut. v. 16]? He rejoined: “Instead of asking me for the reason, you had better ask me whether it is so written at all; for I did not notice it. You had better go to R. Tan’hum b. Hanilai, who used to frequent R. Joshua b. Levi, who was well versed in Agadah.” He went there and got the answer from R. Tan’hum. From R. Joshua b. Levi I heard nothing about it, but so told me Samuel b. Na’hum the brother of R. Aha b. Hanina’s mother [according to others, the father of the same]: The reason is because the first commandments (contained on the tables) were destined to be broken. And if so, what of it? Said R. Ashi: If this had been written thereon and subsequently (the tables) had been broken, Heaven save! “good” would have ceased from Israel.

R. Jehushua said: One who sees the letter “Teth” in his dream, it is a good omen for him. Why so? Because the first time this letter is used in the Scripture is in the word “Tobh” (good) in the verse [Gen. i. 4]: “And God saw the light, that it was good (tobh).”

“And so also a beast,” etc. Said Resh Lakish: In this Mishna Rabh teaches us that a cock and a peacock and a pheasant are considered kilayim with each other. Is this not self-evident? Said R. Habiba: Because they are usually raised together, one might say that they are one species. Hence this statement.

Samuel said: The ordinary goose and the wild goose are considered kilayim. Rabha b. R. Hanan opposed. Why so? If because the one has a long beak and the other a short one, then let a Persian and an Arabian camel also be kilayim, because the one has a thick and the other a thin neck? Therefore said Abayi: The reason is because the one has his testicles on the outside, while the other has them inside. R. Papa said: The one hatches one egg at a time, while the other hatches many at a time.

Chapter VI

REGULATIONS CONCERNING THE GUARDING OF ANIMALS AGAINST DOING DAMAGE. CONCERNING THE STARTING OF FIRE; IF IT PASSES OVER A WALL. FOR WHAT DISTANCES PASSED BY A FIRE IF THE ONE WHO STARTED IT LIABLE?

MISHNA I.: If one drive his sheep into a sheep-cot and properly bolt the gate, but still they manage to come out and do damage, he is free. If he do not properly bolt the gate, he is liable. If they break out in the night time, or robbers break in the gate, and the sheep come out and cause damage, he is free. If the robbers lead them out, they are responsible for the damage. If one exposes his cattle to the sun, or he places them in the custody of a deaf-mute, a fool, or a minor, and they break away and do damage, he is liable; if, however, he places them with a (professional) shepherd, the latter substitutes him (as regards liability for damages). If the cattle fall into a garden and consume something, the value of the benefit they derive is to be paid. If, however, they enter the garden in the usual way, the value of the damage is paid. How is the value of the damage to be ascertained? It is appraised how much a measure of the land required for planting a saah was worth before and how much it is worth after. R. Simeon says: If they consume ripe fruit, the value of ripe fruit is paid; if they consume one saah, the value of one; if two, the value of two is paid.

GEMARA: The rabbis taught: When is it called properly and when not properly bolted? If the gate is bolted so as to withstand an ordinary wind, it is called “properly”; if not, it is called “improperly.” Said R. Mani b. Patish: Who is the Tana who holds that slight care is sufficient for a vicious one? It is R. Jehudah of the following Mishna (supra, page 104): If his owner secured him with the rope and properly locked him up, and still he came out and did damage, whether he was non-vicious or he was vicious, there is a liability. Such is the dictum of R. Meir. R. Jehudah, however, says: For a non-vicious there is, but for a vicious one there is no liability; as it is written [Ex. xxi. 36]: “And his owner had not kept him in,” but here he had. R. Elazar, however, said: “There is no other care for a vicious one than the knife.” It can be said that the Mishna is in accordance with R. Meir also, but the tooth and foot are different, for the Scripture required only slight care with them, as R. Elazar, and according to others a Boraitha taught: “There are four things regarding which the Scripture diminished the amount of care, and they are the pit, the fire, the tooth, and the foot: The pit, as it is written [ibid., ibid. 33]: “And if a man open a pit, or if a man dig a pit, and do not cover it”; but if he had only covered it (without placing a layer of earth on it), it is sufficient. Fire, as it is written [ibid. xxii. 5]: “He that kindled the fire shall surely make restitution,” which signifies that it must be done purposely. The tooth and foot, as it is written [ibid., ibid. 4]: “And he let his beasts enter, and they fed in another man’s field,” which signifies an intentional act, but not otherwise. Said Rabba: From our Mishna it is also to be inferred (that the reason is because the Scripture diminished the amount of care), for it states sheep instead of ox (although sheep require less care), of which it treats throughout. We must say, then, that this is because the Law requires only slight care, and therefore the Mishna mentioned only sheep, which usually do damage only with the tooth and foot, and not with the horn, and also for the reason that the tooth and foot are considered vicious from the beginning, which is not the case with the horn. Infer from all this that slight care only is required.

We have learned in a Boraitha: “R. Jehoshua said: There are four things (for which) one who does them cannot be held responsible before an earthly tribunal, although he will be punished for them by the Divine court, and they are: he who breaks the fence of the stall where his neighbor’s cattle are kept (only when the fence was shaky); he who bends his neighbor’s growing crop in the direction of fire (only during the prevalence of an unusual wind); he who hires a false witness (only for the benefit of his neighbor); and he who suppresses his own testimony and thereby deprives his neighbor from its benefit (only if he was the sole witness). But if the circumstances are different, he is liable also to an earthly tribunal.

R. Ashi said: The case of bending one’s crop in the direction of the fire may be explained that he spread blankets over the crop, and thereby made it “hidden articles,” for which there is no liability for the one who starts the fire (as explained elsewhere).

But are there not other cases in which one is liable only to heavenly justice? Yea, there are, but those just stated had to be enumerated here, for one might say that in these cases there should be no liability even to the Divine court. Thus, in the first case, because it had to be abolished anyhow; in the second, because by an unusual wind it would have caught fire without that and (according to R. Ashi it is also necessary to mention this case, lest one say he may argue that he spread the blankets over it in order to protect it against the fire); in the third, because the witness had not to listen to the one who hired him, as it was prohibited by the Law; and in the last case, because who could guarantee that if he should not have testified the other would have admitted his liability? And lest one say that in such cases there is no liability, even to the Divine court, hence the statement.

“If he expose them to the sun,” etc. Said Rabba: And this is so even if they undermined (the fence and did damage); lest one say that in such a case the damage was done through accident, he comes to teach us that even this is considered wilful. Why so? Because the plaintiff may say to the defendant: Did you not know that when exposing them to the sun they would do all they could to break out?

“If the robbers lead them out,” etc. Is this not self-evident, for by this act they place them under their own control as regards everything? The case was that they only stood before them on each side (so as to leave only the way leading to the standing crop open). And this is in accordance with Rabba, who said in the name of R. Mathua, quoting Rabh: One who leads another one’s animal to, and places it in, one’s barn (and it does damage), is liable. “Places?” Is this not self-evident? We must say, then, that it means that he stood before them (as explained above). Said Abayi to R. Joseph: You explained to us the above saying of Rabh, that the case was that he struck it (driving it on), so also was the case here with the robbers, that they did not lead them out, but only struck them with a cane (and this action is considered equivalent to leading them out with the hand).

“If he deliver them to a shepherd,” etc. From the fact that it states that he delivered them to a shepherd, and it does not state that “he delivered them to another,” it is to be inferred that the shepherd in turn delivered them to his assistant, for such is the custom of a shepherd; but if he delivered them to a layman the shepherd is not liable. Shall we assume that this will be a support to Rabha, who said elsewhere: “A bailee who intrusts his bailment to another bailee is liable?” Nay, perhaps the statement here is because it is customary so to do, but such is the law, even if it was delivered to a layman.

It was taught: A bailee of a lost article, Rabba says that he is considered a gratuitous bailee for he derives no benefit from such bailment; R. Joseph, however, says that because the Scripture imposed this duty upon him, against his will, he is considered a bailee for hire.

R. Joseph objected to Rabba from the following Boraitha: If he returned the lost article in a place where its owner were likely to see it, he is absolved from any obligation to further trouble himself with it; and if it was stolen or lost, he is responsible. Does this not mean if it was stolen or lost while under his control (and still he is liable; hence he is considered a bailee for hire)? Nay, it means from the place to which he returned it. But does it not state that he need not trouble with it any more? He answered him: The case was that he returned it in the noon-time, and it teaches two cases, thus: If he returned it in the morning, when it could be noticed by its owner, who usually passes by that place, he need no more trouble himself with it; if, however, he did so in the noon-time, when the owner does not usually pass by, and it was stolen or lost, he is responsible. He again objected from the following: “He is always liable until he return it to the control of the owner.” Does that not mean if even he placed it in his house, hence we see that he is considered a bailee for hire? He answered him: I admit that in case of animated beings more care is required, for they are used to walk away.

Rabba then objected to R. Joseph’s statement from a Boraitha which teaches: It is written [Deut. xxii. 1]: “Bring them back.” “Bring them” means to the owner’s house; “back” means to his garden or to the owner’s ruined (vacant) house. We must say, then, that in the last two places the returned property is not guarded; because if it is, then what difference is there between these two places and the house? Now then, if he is considered a bailee for hire, why is he not liable for it at the last two places? And R. Joseph answered: The Boraitha speaks of a case where the property was guarded, and the difference between those places and the house is that in the former case the owner is not notified, and it comes to teach us that the knowledge of the owner is not required, as R. Elazar states in Baba Metzia, p. 31a.

Said Abayi to R. Joseph: Do you yourself not admit that he is considered a gratuitous bailee? Did not R. Hyya b. Aba say in the name of R. Johanan that, regarding found property, if the finder claims that it was stolen from him (and it was found out that it was not so), he pays double (as it is written [Ex. xxii. 7, 8]: “If the thief be not found . . . or for any manner of lost thing”); and if he would be considered a bailee for hire, why should he pay double (by his own claim he admits that he has to pay the value of the bailment)? He answered: The case was that he claimed to have been robbed by armed robbers (i.e., an accident, in which case he is free). He objected again: If so, then it is robbery, and not theft? R. Joseph rejoined: I say that even armed robbery, when committed not publicly, is still considered theft, and he must pay, according to Scripture, double. Abayi objected again: (It was stated elsewhere in regard to the comparison between a gratuitous bailee and a bailee for hire, as follows:) “Nay, a gratuitous bailee pays double and a bailee for hire does not.” Now, if armed robbers pay also double, like ordinary thieves, there can also be a case of a bailee for hire who should pay double, as, for instance, when he claims that he was robbed by armed robbers (and it was found out to be not so)? He rejoined: It means thus: Nay, there can be no comparison between a gratuitous bailee who pays double, whatever his claim may be, and a bailee for hire who pays double only when he claims to have been robbed by armed robbers. He still objected from the following Boraitha: It is written [Ex. xxii. 9]: “And it die, or be hurt”; from this we know only as to death or hurt. Wherefrom do we know also as to theft or loss? This is to be drawn by an a fortiori conclusion, thus: A bailee for hire who is not liable for death or hurt is still liable for theft or loss, a borrower who is liable for death or hurt ought so much the more to be liable for theft or loss. And this a fortiori conclusion is irrefutable. Now, if armed robbers are considered ordinary thieves, why is it irrefutable-can it then not be refuted thus: There is an exception with a bailee for hire who pays double when he claims that he was robbed by armed robbers? He rejoined: The Tana of this Boraitha holds that even to pay only the actual value without an oath is better than to pay double under oath (and therefore the a fortiori conclusion cannot be refuted). (The explanation of this statement will be found in Baba Metzia, where this case is treated at length.)

“If it fall into a garden,” etc. Said Rabh: The case was that it struck upon the growing crop, and the benefit derived for which payment must be made is that it was prevented from striking hard upon the ground. But how is the case if it consumed some plants, does it not pay? Shall we say that Rabh is in accordance with his theory (above, page 109) “that the animal ought not to have eaten”? What comparison is this? When did Rabh say this? Only when the animal was injured by the fruit which it consumed and the owner of the animal claims payment for such injuries, in such a case the owner of the fruit can say that the animal ought not to have eaten; but when the animal did injury to the owner of the fruit by consuming it, did Rabh then say that it must not be paid? But what, then, did Rabh mean by his statement above? Rabh means to state a case of “not only”; viz., Not only that he pays where it consumed, but even when it fell on the crop and consumed nothing it must pay, for the benefit it derived in being prevented from striking hard upon the ground, and lest the owner of the animal say that this was only his duty, similar to frightening away a lion from his neighbor’s field, for which the Law awards no compensation, it comes to teach us that payment must be made for the benefit. But why is this really not to be compared to frightening away a lion from one’s neighbor’s field? Because in such cases one does not incur any expense, but here he has actual loss.

In what manner did it fall? R. Kahana said that it slipped out by reason of the urine it let. Rabha, however, said that it was pushed in by another animal. According to the latter, so much the more if it happened by reason of her own urine; but according to the former, only in such a case; but when pushed in by another animal it is considered wilful, and the value of the damage is paid, for he (the owner of the field) can say to the owner of the animal. “You should have seen to it that the animals could have passed one by one, without being pushed in.” Said R. Kahana: The case is only if it damaged one plant-bed (that it pays the benefit that it derived); but if it went from one plant-bed to another, consuming the plants, it pays the full value. R. Johanan, however, says that even in such a case, and even if it continued doing so the whole day, only the value of the benefit derived is paid (because when once it was already there it could not keep away from consuming), until the owner has noticed that the animal left the field and then returned again. Said R. Papa: It must not be said that the owner of the animal must have notice of both the leaving and the returning, it is sufficient if he only had notice of the leaving and did not care to keep it from returning, because the owner of the field may say to the owner of the animal: “You should have known that, so long as it knew the way, it would go there at the earliest opportunity, and you should have taken care of it.”

“How does it pay what it damaged,” etc. Whence is this deduced? Said R. Mathua: It is written [Ex. xxii. 4]: “And they feed in another man’s field”--this teaches us that the appraisement is made with the other field (which was not damaged). But is this passage not necessary, to exclude public ground? If so, then the Scripture ought to read, “and they feed another man’s field.” Why in another man’s field? Hence to infer both.

How is the appraisement made? Said R. Jose b. Hanina: One saah in sixty (i.e., the Mishna means not only sixty times the portion damaged, but thus: To the measure of land sufficient for planting a saah of grain, on which the damage was done, are added fifty-nine measures of such dimensions, and appraisement is then made as to the value of such a lot of land if sold as one lot of land; then the value of a measure sufficient for the planting of one saah is apportioned, and then is ascertained the difference in price of such saah on account of such damage. The reason is, that no undue advantage should be taken of the defendant; for a small plot of land is comparatively higher in price than a plot of sixty times its size, because a poor man can also afford to buy it and there are more purchasers). R. Janai, however, says: One Tirkav in sixty (thirty saah, and not sixty saah, in order not to take undue advantage of the plaintiff, as for plots of sixty saah buyers are not so numerous, because for a man of moderate means it is too much and for a rich man it is too small a plot). But Hezkiah says: The appraisement is made only by one in sixty times the quantity damaged. An objection was raised from the following: “If she consumed a kabh or two, one must not say that their value must be paid, but it is assumed as if it were a small plant-bed and is thus appraised.” Is it not to be presumed that this plant-bed is appraised separately and for itself? Nay, it means in sixty times its size.

The rabbis taught: “The appraisement is not one kabh in sixty kabh, for it increases its value; neither one kur in sixty kurs, for it unreasonably reduces its value.” What does this mean? Said R. Huna b. Menoa’h in the name of R. Aha the son of R. Ika, it means thus: A measure of a kabh is not appraised separately, for the plaintiff may unduly benefit by it; nor a kabh as relative to a kur, for the plaintiff may unduly be injured by it (for the damage may not be so well noticed), but every unit is appraised at sixty times its value (for the reason stated above).

It happened that one came before the Exilarch and complained of one who destroyed one of his trees. Said the Exilarch to the defendant: “I know of my own knowledge that the tree was one of a group of three trees which was worth one hundred zuz. You will therefore pay him one-third of this amount.” The complainant refused to accept this decision, saying: Before the Exilarch, who applies the Persian law, what have I to do? and he went before R. Na’hman, who assessed the damage by appraising the destroyed tree as relative to a group of sixty trees. Said Rabha to him: The rule of sixty was held when damage was done by one’s property (without the intention of its owner), and you wish to apply the same rule to this case, where the person himself has done the damage intentionally? Said Abayi to Rabha: Why do you think that in case of damage done by one’s own person this rule should not apply, because “sixty” is not mentioned in the following Boraitha: “One who destroys the young grapes of his neighbor’s vineyard, the damage is assessed by appraising the value of the vineyard before and after the destruction”? But have we not learned in another Boraitha, similar to this as regards damage by one’s property, viz.: If the animal destroyed a bough, R. Jose said, the assessors of fines in Jerusalem say that a bough one year old is worth two silver dinars; two years old--four. If it consumed hay, R. Jose the Galilean says that the damage is assessed by appraising the value of what remained. The sages, however, hold that the value of the land before and after the consumption of the hay is appraised (and the difference in value is the damage). If it consumed grapes in the budding stage, R. Jehoshua says that they are considered as if ready to be plucked, the rabbis, however, apply the former rule. R. Simeon b. Jehudah says in the name of R. Simeon: This was said only when the grapes or figs were still in sprouts; but if they were already developed to the size of a white bean, they are considered as ready to be plucked? Now then, as to the sages, although they do not mention the rule of sixty, still we know from elsewhere that such is their theory, and therefore it does not state it here expressly. Interpret the above Boraitha in the same manner. The Master said: R. Simeon b. Jehudah said, etc. This was said only when the grapes and figs were still in sprouts, from which it is to be inferred that if they were in the budding stage they are considered as ready to be plucked. How should the latter part be explained: “If it consumed figs or grapes when already of the size of a white bean, they are considered as ready to be plucked”--from which it is to be inferred that if in the budding stage it is appraised as to how much it was worth before and how much after? Said Rabhina: Add, and teach together thus: “This is in a case where it consumed grapes and figs in the sprouting stage; but if in the budding stage or when they were already of the size of a white bean, they are considered as ready to be plucked.” If this is so, is it not the same as what R. Jehoshua said? The difference is as to the deduction from the amount of damage of the value of the increased sap (of the tree by reason of the destroyed fruit, which benefits the remaining fruit). But it is not known who is the one who holds him liable. Abayi, however, says: It is very well known, because the Tana who takes into consideration the increase of sap is R. Simeon b. Jehudah, who holds something similar in Khethuboth, p. 39a.

R. Papa and R. Huna the son of R. Jehoshua used to appraise the tree together with a small portion of the ground on which it was growing. The Halakha, however, prevails in accordance with R. Papa and R. Huna the son of R. Jehoshua as regards Aramean trees and in accordance with the Exilarch as regards Persian trees (because they are expensive).

Eliezer the Little once put on black shoes and stood in the market-place of Nahardea. When the officers of the Exilarch asked him for the reason, he answered that it was because he was lamenting the fall of Jerusalem.

They said to him: “Are you such a great man as to be worthy of lamenting the fall of Jerusalem?” And thinking that he was doing that in search of notoriety, they placed him under arrest. He, however, protested and said: “I am a great man.” When asked to prove it, he said: “Either you ask me some difficult question, or I will ask one of you.” They said to him: “You ask the question.” He asked thus: “One who destroys a young date-tree (on which the dates are not yet ripe), what amount of damages must he pay?” They answered: “He pays the value of the tree.” “But there are already dates on it?” They rejoined: “Then let him also pay the value of the dates.” “But did he, then, take the dates with him; he only destroyed the tree?” he argued. “Well, let us then hear what you have to say to that.” He answered: “The damage is appraised as to one in sixty.” They said to him: “But who agrees with you in that?” He answered: “Samuel is still alive and his college is in full bloom.” When they inquired of Samuel and verified that he agreed with him, they liberated him.

“R. Simeon says: If it consumed ripe fruit,” etc. Why so? Was it not said above that [Ex. xxii. 4]: “And they feed in another man’s field” teaches that it should be appraised together with the ground? This is so only when the ground is needed, but in this case (ripe fruit), where they no longer need the ground, it must be appraised separately and paid in full. Said R. Huna b. Hyya in the name of R. Jeremiah b. Aba: There was a case, and Rabh acted in accordance with R. Meir; but in his lectures, however, he declared that the Halakha prevails in accordance with R. Simeon b. Gamaliel. He acted in accordance with R. Meir of the following Boraitha: If he (the husband) transferred some of his estates to one, and his wife did not sign the release of her dower (the amount stated in her marriage contract), and then he transferred other estates to another and she did sign, she lost her dower. Such is the dictum of R. Meir. (And she cannot say: I did this favor to my husband and signed the release as to the second estates because I lose nothing thereby, as I take my dower in the first estates, from which I have not released my right.) And he lectured that the Halakha prevails in accordance with R. Simeon b. Gamaliel of our Mishna, that if the fruit was ripe it must be appraised separately.[135]

MISHNA II.: One who puts up a stack of grain on another’s land without permission, and the land-owner’s animal consumed some of the grain, he is free. If the animal was injured thereby, the one who put up the stack is liable. If, however, it was done with permission, the land-owner is liable.

GEMARA: Said R. Papa: It treats here of a case where there was a watchman who told him, “Go and put up your stack,” which is construed to mean, “Go, put up your stack, and I will take care of it.”

MISHNA III.: One who started a fire through the medium of a deaf-mute, idiot, or minor, he is free from responsibility to an earthly tribunal, but he is liable to the Divine court. If, however, he started the fire through the medium of a sound person, the latter is liable. If one brought fire and the other wood, he that brought the wood is liable. But if the wood was brought first by one, and subsequently another brought the fire, he who brought the fire is liable. If one came and blew at the fire and kindled it, the one who did so is liable. If, however, it was kindled by the wind, all are free.

GEMARA: Said Resh Lakish in the name of Hezkiah: He is not liable to earthly tribunals only if he delivered to the per. sons mentioned in the Mishna a burning coal and they blew at it; but if he handed them a flame, he who handed it to them is liable. Why so? Because it is his own act that caused the fire. R. Johanan, however, says that even in such a case he is free. Why so? Because it was the deaf-mute’s tongs (medium) that caused it. And the court cannot hold him liable unless he handed them both fire and fuel, for in such a case surely his intention was to cause it.

“If the wind kindled it, all are free.” The rabbis taught: “If he was blowing at the fire and so also was at the same time the wind--if his blowing, independently of the wind, was sufficient to kindle the fire he is liable; if not, he is free. Why so--let it be as if he was winnowing and the wind helped him, in which case he is liable? Said R. Ashi: This was said only as regards Sabbath, where the Scripture requires intentional work (and of course he is satisfied with the help afforded him by the wind and thus it is intentional); but here he is the mere cause (germon), and there is no liability as regards damages for being a mere germon.

MISHNA IV.: If one start a fire and it consume wood, stones, or earth, he is liable; for it is written [Ex. xxii. 5]: “If a fire break out, and meet with thorns, so that stacks of corn, or the standing corn of the field, be consumed thereby, he that kindled the fire shall surely make restitution.”

GEMARA: Said Rabha: All those various things were necessary to be enumerated in the Scripture, for one could not be deduced from the other by comparison. Thus, if it mentioned thorns only, it could be assumed that only in such a case there is a liability, because they are destined to be burnt and one does not take proper care, and therefore it is considered gross negligence; but in case of stacks, which are not so and usually one takes proper care of them, it would be considered an accident, for which there is no liability; again, if it mentioned stacks only, it could be assumed that there is a liability, because the damage is great; but in case of thorns, where the damage is little, one might say that there is no liability. But for what purpose is “standing corn” mentioned? To teach that as standing corn is exposed to view, so everything is exposed to view (to exclude that which was concealed from view). [But according to R. Jehudah, who holds that there is a liability also for such things, what does the case just mentioned teach? It comes to include all that is in a standing position, as trees and animals.] “Field”--to include the case where the fire singed the surface of fallow ground or of stones. But let the Scripture mention only “field,” and it would include all the others? If so, one might say that it applies only to the products of the field (but not to the ground itself), hence it teaches us that (by stating “standing corn” expressly and “field,” to include the ground itself).

R. Simeon b. Na’hmani said in the name of R. Johanan: No chastisement comes upon the world unless there are wicked ones in existence, as it is written [ibid., ibid.]: “If a fire break out and meet with thorns.” When does a fire break out--when there are thorns prepared for it? Its first victims, however, are the upright, as it is written [ibid., ibid.]: “So that stacks of corn be consumed”--not it shall consume, to signify that the stacks of corn (the upright) are consumed first.

R. Joseph taught: It is written [Ex. xii. 22]: “And none of you shall go out from the door of his house until the morning?” Infer from this that as soon as permission is given to the executioner he makes no distinction between upright and wicked; and furthermore, he picks out his first victims from among the upright, as it is written [Ezek. xxi. 8]: “And I will cut off from thee the righteous and the wicked.” R. Joseph cried, saying: If they are liable to so much misfortune, what good is there in being upright? Said Abayi: It is of great good to them, as it is written [Isa. lvii. 1]: “Before the evil the righteous is taken away” (i.e., that he shall not see the evil that will come in the future).

The rabbis taught: When pestilence is raging in town, stay in-doors, as it is written [Ex. xii. 22]: “And none of you shall go out from the door of his house until the morning”; and it is also written [Isa. xxvi. 20]: “Go, my people, enter thou into thy chambers, and shut thy door behind thee”; and again it is written [Deut. xxxii. 25]: “Without shall the sword destroy, and terror within the chambers.” Why the citation of the two additional passages? Lest one say that it is so only as to nighttime but not as to day-time, hence the passage in Isaiah, which means at any time; and lest one say that this is so only where there is no terror within the house, but when there is it could be assumed that it were more advisable to go out and associate with others, hence the last-quoted verse in Deuteronomy, to teach that although within the house terror reigns, yet without it is still worse, as “without the sword shall destroy.” Rabha in times of fury used to keep the windows shut, for it is written [Jer. ix. 20]: “For death is come up through our windows.”

The rabbis taught: If there is a famine in town, do not spare your feet and leave town, as it is written [Gen. xii. 10]: “And there arose a famine in the land: and Abram went down into Egypt to sojourn there.” And it is also written [II Kings, vii. 4]: “If we say, We will enter into the city, then is the famine in the city; and we shall die there.” For what purpose is the quotation of the additional passage? Lest one say that it is so only where there is no risk of life, but where there is it is not so, hence the quotation, which is followed by [ibid., ibid.]: “If they let us live, we shall live; and if they kill us, we shall but die.”

The rabbis taught again: “When there is a pestilence in town, a person shall not walk in the middle of the road; for so long as the Angel of Death has received his permission to rage, he does so high-handed. On the contrary, when peace reigns, one must not walk on the sideways; for so long as he has not the permission, he hides himself away.”

R. Ami and R. Assi were sitting before R. Itz’hak Nap’ha. One was asking him to say some Halakha, and the other to say some Agadah. When he began to say a Halakha he was interrupted by one, and when an Agadah he was interrupted by the other. He then said: I will tell you a parable: It is like unto a man who has two wives-an old one and a young one. The young one picks his gray hair and the old one his black hair. The result is that he becomes bald-headed. I will tell you, however, now something which will be to the satisfaction of both of you: (Agadah)--It is written [Ex. xxii. 5]: “If a fire break out and meet with thorns”--that means, if it should break out of itself--”he that kindled the fire shall surely make restitution.” Said the Holy One, blessed be He, “I shall surely make restitution for the fire I kindled in Zion,” as it is written [Lam. iv. 11]: “He kindled a fire in Zion, which had devoured her foundations”; and, “I shall also build it up again by fire,” as it is written [Zech. ii. 9]: “But I--I will be unto her . . . a wall of fire round about, and for glory will I be in the midst of her.” (Halakha)--Why does the verse begin with the damage by one’s property (if a fire break out) and end with damages done by one’s person (he that kindled the fire)? To teach thee that one is liable for his fire on the same principle as liability for one’s arrow.

MISHNA V.: If the fire passed over a fence four ells high, or through a public highway or a river, there is no liability.

GEMARA: But have we not learned in a Boraitha, as regards a fence of such height, that there is a liability? Said R. Papa: The Tana of our Mishna counts regressively, viz.: For six, five, and down to (and including) four ells there is no liability; while the Tana of the Boraitha counts progressively, viz.: For two, three, up to (but not including) four, there is a liability. (Hence for four ells, according to both, there is no liability.) Said Rabha: The rule that for four ells there is no liability applies also to a field filled with thorns (which makes it very inflammable). Said R. Papa: The four ells begin to count from the edge of the thorns upwards.

Rabh said: Our Mishna treats of a case where the fire was rising upwards, but if it was creeping (and consuming whatever was in its way, and therefore if it even crossed a public highway, there is a liability) there is a liability even up to a hundred ells. Samuel, however, says the reverse: Our Mishna treats where the fire was creeping; but if it was rising upwards, any dimensions are sufficient to relieve from liability. The following Boraitha is in support of Rabh: This (that if it crossed a public highway there is no liability) was said only if the fire was rising; but if it was creeping and fuel was within reach, even a hundred miles, there is a liability. If it crossed a river or a pool eighteen ells wide, there is no liability.

“A public highway.” Who is the Tana who holds so? Said Rabha: It is R. Eliezer, who says in the following Boraitha: If it was sixteen ells, as wide as a public highway, there is no liability.

“Or a river.” Rabh said: It means a full-sized river. Samuel, however, said: It means a lake (from which the neighboring fields are irrigated). According to Rabh, it is so even if the river dried up (for so that it be wide enough, it is considered as a public highway), but according to Samuel there must be water in the lake.

MISHNA VI.: If one start a fire on his own premises, how far must the fire pass (in order to subject him to liability)? R. Eliezer b. Azariah said: It is looked upon as if it were in the centre of a space of land sufficient for planting a kur of grain (and if it pass out of such distance, he is liable). R. Eliezer says: Over sixteen ells, as wide as a public highway. R. Aqiba says: Over fifty ells. R. Simeon, however, says: It is written [Ex. xxii. 5]: “He that kindled the fire shall surely make restitution”--that means that he must make restitution for all that was burnt through the fire he started.

GEMARA: Does, then, R. Simeon not hold of distances in regard to fire? (i.e., that a fire must not be built unless it is a certain distance from other objects). Have we not learned in the following Mishna (Baba Bathra, Ch. II., M. 2): R. Simeon says: These distances were said only for the purpose that if they were observed, and still damage was done, there is no liability (hence we see that he holds of distances?). Said R. Na’hman in the name of Rabba b. Abuah: R. Simeon’s statement ill the Mishna, that one must pay for what was burnt through his fire means that the fire was made by the one who started it of such height in that it could pass the different distances stated, respectively. R. Joseph in the name of R. Jehudah, quoting Samuel, said: The Halakha prevails in accordance with R. Simeon, and so also said R. Na’hman in the name of the same authority.

MISHNA VII.: If one cause his neighbor’s stack of grain to burn down, and there be vessels therein which also are burnt, R. Jehudah says that he must pay also for the vessels. The rabbis, however, hold that he pays only for a stack of wheat or barley, as the case may be, of such dimensions. If a bound kid were therein and a slave was standing near by and both were burnt, he must pay for the kid (but not for the slave, as he should have escaped); if, however, a bound slave were therein and a kid was standing near by and both were burnt, he is free (from damages, because he is guilty of murder). And the sages concede to R. Jehudah that, if one set fire to another’s house (or palace), he pays for all that was therein contained, for it is customary with people to keep their property in the house.

GEMARA: R. Kahana said: The rabbis and R. Jehudah differ only in case he started the fire on his own and it communicated to another’s premises, in which case R. Jehudah holds one liable for the damage done by fire to concealed articles, and the rabbis do not, but if he started the fire on another’s premises, they all agree that he pays for all that was contained therein. Said Rabha to him: If so, why does the Mishna state further on that “the rabbis concede,” etc.--let it distinguish in that very statement, and say that the case is so only if he started the fire on his own premises, but if on another’s they all agree that he must pay for all that was contained therein? Therefore said Rabha: They differ in both; viz., if he started the fire on his own premises and it communicated to another’s. R. Jehudah holds him liable for concealed articles and the rabbis hold him free; and also in the other case, R. Jehudah holds that he must pay for all that was concealed therein, even if it were αρναχις; (a belt made with pockets to place money therein). The rabbis, however, hold that he is liable only for such articles as are usually kept there, as a threshing-board or an ox-bow, but not for such articles as it is not customary to keep there.

The rabbis taught: If one cause a stack of grain belonging to another to burn down, and there be vessels therein which also are burnt, R. Jehudah says that he pays for all that was contained therein. The rabbis, however, hold that he pays only for a stack of wheat or barley, and the vessels are considered as if their space was occupied with grain. This is so only when he started the fire on his own premises and it communicated to another’s; but if he started it originally on another’s premises, he pays for all that was therein. And R. Jehudah concedes to the rabbis that, if one permit his neighbor to place a stack of grain on his premises and the other did so and concealed some articles therein (and the owner of the premises cause a fire to burn them) he pays only for the grain; if he permitted him a stack of wheat and he placed there a stack of barley, or vice versa, or of wheat and he covered it with barley, or of barley and he covered it with wheat, that he pays only the value of barley.

Rabha said: If one give a golden dinar to a woman and say to her: “Take care of it, for it is a silver dinar,” and she damage it, she pays for a golden dinar; for he may say to her: “What right had you to damage it?” If, however, it was lost because of her negligence, she pays only for a silver dinar; for she can say to him: “I obliged myself to take care of a silver dinar only, but not of a golden one.” Said R. Mordecai to R. Ashi: Ye learned this in the name of Rabha, while we derived it from the above Boraitha, which states that, if one allowed him to place a stack of wheat and he covered it with barley, or vice versa, he pays only the value of barley; hence we see that he may say to him that he obliged himself to take care of barley only. So also here. She may say, “I obliged myself to take care of a silver dinar, but not of a golden dinar.” Rabh said: I heard something in regard to R. Jehudah of our Mishna, and I cannot recollect what it was. Said Samuel: Does (Aba) not recollect what was said in regard to R. Jehudah’s theory that one is liable for concealed articles? That he must make oath as to the value, as enacted in case of a bailee who claims that he was robbed.

It happened that one kicked the money-pouch of his neighbor into the river. The owner came and claimed that such and such articles were therein. When it came before R. Ashi, he was deliberating as to what was the law in such cases. Said Rabhina to R. A’ha the son of Rabha, according to others R. A’ha the son of Rabha to R. Ashi: Is this not stated in our Mishna: “And the sages concede to R. Jehudah that if one,” etc., “because it is customary with people,” etc.? He answered: If he had claimed that he had money therein it would be so, but here he claims that he had therein pearls; and the question is, is it customary with people to keep pearls in a money-pouch? This remains unanswered.

Said R. Jemar to R. Ashi: If one claimed that he kept a silver cup in his house, what is the law? He answered: It must be investigated whether he is a man of such standing that he has silver cups, or whether he is a person whom others trust and deposit with him such article. Then he makes oath, and he is paid; if not, he is not believed, and no oath is given him.

R. Ada the son of R. Avia questioned R. Ashi: What difference is there between a robber and one who uses violence? He answered: He who uses violence pays the value (to the owner who gives up the articles under duress) while a robber does not. He rejoined: If he pays the value, why is it called violence--has not R. Huna said: If even one were threatened with hanging in order to compel him to sell his property, the sale is valid? This presents no difficulty. R. Huna said so only when he finally consented, and said plainly, “I am willing to sell it”; but if he never voluntarily consented it is considered violence, even if the value of the article was received by him.

MISHNA VIII.: If a spark escape from under the blacksmith’s hammer and do damage, there is a liability. A camel that was walking on a public highway laden with flax, and the flax pressed into a store and caught fire from the storekeeper’s lit candle and set fire to the house, the driver of the camel is liable. If, however, the candle was placed outside the store, the store-keeper is liable. R. Jehudah says: If it was a Hanuka lamp, there is no liability.

GEMARA: Said Rabhina in the name of Rabha: From the statement of R. Jehudah it is to be inferred that there is a merit in placing the Hanuka lamp within ten spans (above the ground); for if it should be assumed to be above ten, why should R. Jehudah say that there is no liability--let him say that the store-keeper should have placed it above the camel and its rider? Hence as stated: Nay, it may be said that it might be placed even above them; but as an answer to the claim that he should have placed it above the camel and its rider, he may say that when one is occupied in the performance of a merit the rabbis do not put him to so much trouble.

Chapter VII

RULES AND REGULATIONS CONCERNING THE PAYMENT OF DOUBLE, AND FOUR AND FIVE COLLUSIVE WITNESSES; THE RAISING OF YOUNG CATTLE IN PALESTINE, ETC.

MISHNA. I: The payment of double (in cases of larceny) is more rigorous than the payment of four and five fold; for the former is applicable to animate as well as to inanimate beings, while the latter is applicable to an ox and a sheep alone, as it is written [Ex. xxi. 37]: “If a man steal an ox or a sheep, and kill it or sell it,” etc.

The one who steals a stolen article from a thief does not pay double, neither does he pay four or five fold if he afterward slaughtered or sold it.

GEMARA: It does not state that the payment of double is applicable to a thief as well as to one who claims that the bailment was stolen from him, and the payment of four and five fold is applicable to a thief only. Shall we assume from this that this is a support to R. Hyya b. Aba, who said in the name of R. Johanan: One who avails himself, as regards a bailment, of the claim that it was stolen from him, pays double; if he slaughtered or sold it, he pays four and five fold? Does, then, the Mishna state, “there is no difference,” etc., “and only in this case,” etc.? It states only “is more rigorous” and mentioned only one, and did not care to enumerate all.

“For the payment of four,” etc. Whence is this deduced? From the following Boraitha: The rabbis taught: It is written [Ex. xxii. 6]: “For all manner of trespass”--this is a general term; “for ox, for ass, for lamb, for raiment”--this is a particular term; “or for any manner of lost thing”--which is again a general term. It is, then, a general, particular, and again a general term, in which case it is construed to be limited to the particular term; and as the particular term states expressly a movable subject, the substance of which is counted as money (a value is put on it), so also the others mean only movable subjects the substances of which are counted as money, excluding land, which is not movable; slaves, who are likened to land; also documents, which, although movable, their substance is not counted for money; as well as consecrated articles, because the Scripture reads “his neighbor’s.” (The further discussion which follows here belongs to Mishna VI., Chapter IX. of this volume, and is to be found there.)

R. Ilaa said: If he stole a lamb and while in his possession it grew into a ram, or a calf and it grew into an ox, this is considered a (material) change while in his possession and he acquires title to it; and if he subsequently slaughtered or sold it, it is considered his own (and he is not liable to the payment of four and five fold). R. Hanina objected to him from the following: If he stole a lamb and it grew into a ram, or a calf and it grew into an ox, he is still liable to the payment of double, and four and five fold, and the payment may be made in such cattle as they were at the time when the theft was committed. Now, if he acquired title by the change, why should he pay--did he not slaughter or sell his own? He answered: But what is your opinion--that the change does not acquire title? why, should he pay as at the time the theft was committed--why not their present value? He answered: Because he may say: “Did I then steal of you an ox? I stole of you a calf!” He rejoined: May the Merciful save us from such opinions! He retorted: On the contrary, may the Merciful save us from such opinions as yours.

R. Zera opposed: Let title be acquired (if not by the change in the body of the stolen subject) by the change in its name? Said Rabha: There was no change of name, for a calf one day old is already called “ox,” as it is written [Lev. xxii. 27]: “When an ox or a sheep or a goat is born,” etc., and so also a ram, as it is written [Gen. xxxi. 38]: “And the rams of thy flock have I not eaten.” Did Jacob then mean to say that only, rams he did not eat, but lambs he did? Infer from this that a lamb one day old is already termed ram. But, in any event, is this not an objection to R. Ilaa? Said R. Shesheth: The, above Boraitha is in accordance with the school of Shammai, who hold that the change does not affect the title of the owner, as we have learned in the following Boraitha: If one give to a harlot as her hire wheat and she grind it into fine flour, or olives and she press them into oil, or grapes and she press them into wine--one Boraitha teaches that it is prohibited (to be used for an offering under Deut. xxiii. 19), and another Boraitha teaches that it is permitted; and R. Joseph said that Gorion of Asphark explained the above, that those who prohibited their use are of the school of Shammai and those who permitted their use are of the school of Hillel. What is the reason of the Beth Shammai? Because it is written [ibid., ibid.]: “For both (‏גם‎) of them,” which means to include also their changed forms; and the Beth Hillel are not very particular about the word “both,” and hold that it means only their original but not their changed form.

Now, let us see: The point of difference (between R. Ilaa and R. Hanina) is that one holds that the change does, while the other holds that it does not acquire title; but as to the payment, both agree that the original value must be paid, as further on the Boraitha teaches: He pays double, four or five fold, as at the time the theft was committed. Shall we assume that from this there is an objection to Rabh, who said above that where the principal only is paid the original value at the time the theft was committed is paid, but double, four and five fold, is paid as at the time of the trial? Said Rabha: If he makes restitution in specie, he returns lambs; but if he pays money, he pays their present value.

Rabba said: That a change acquires title is both written and taught: Written [Lev. v. 23]: “And he shall restore the robbed article[136] that he hath taken violently away.” Why did the Scripture mention “that he hath taken violently away”? (is it not understood from the words “robbed article”?)--to teach that if it is still in the same state as at the time it was stolen it must be returned in specie; if not, money only shall be paid. Taught: if one robbed wood and made it into vessels, wool and made it into garments, he pays as at the time of the theft. “If he had not succeeded in giving it to him (to the priest, the first shorn wool) until he died he is free.” Hence we see that change acquires title.

Resignation of hope (when an article was robbed or lost and its owner resigned his hope to regain it), the rabbis said that it does acquire title for the robber. But we do not know whether they mean that it is so biblically, or rabbinically only. It may be said that it is biblically, because it may be equal to one who found an article of which its owner resigned his hope to regain it immediately after it was lost and before it reached the hands of the finder; and the same can be said of the robber that, when the robbed one resigned his hope of regaining it immediately after he was robbed, the robber subsequently acquired title. On the other hand, it cannot be equalled to a lost article, for when it reached the finder he took it permissively, while the robber, when he took the article, committed a sin. Therefore biblically he never acquired title; but rabbinically it was enacted that he should acquire title for the benefit of those who might wish to repent (that they might be able to return its value). R. Joseph, however, says that resignation of hope does not acquire title even rabbinically (and the stolen article must be returned in specie), and he objected to Rabba from the following: If he stole leaven and kept it over Passover, he may say to the owner, “Yours is before you as it was” (although the owner can no more derive benefit from it, still the damage is not visible). Now, in this case it is certain that the owner has resigned his hope of regaining it, as it is of no value at all for him even if returned; and if this acquires title, why may he say to him, “Yours is before you”--did not the thief acquire title as soon as hope was resigned? And if he desires to repent, he ought to pay the full value in money? He answered: What I mean is, in a case where the one resigned his hope and the other desired to acquire title to it; but in your case, although the owner resigned his hope, the thief did not want to acquire title, as also to him it was of no value.

Rabha said: The discussion whether change in name or action, or resignation of hope, does or does not acquire title remained unexplained for twenty-two years, until R. Joseph became the president of the college, and explained that the change of name is equivalent to change in act, which surely acquires title, as the reason for both is the same. For instance, change in act--if he made vessels out of stolen wood, there is no more wood, but vessels, and at the same time the name was also changed; consequently the acquisition of title comes from both the change in act and in name. The same theory can apply to a thing where the change in act was slight, scarcely noticed; as, for instance, if he trimmed a hide into a horse-blanket, in which case the principal thing is the change in name; for before it was known as a hide, while now it is known as a horse-blanket, and title is acquired.

But is there not a case of a robbed beam which was built into a house--a case very similar to the above, and in which the principal change was in name; because before it was known as beam and after as a roof, and nevertheless, if not for the rabbinical enactment for the benefit of those who might wish to repent, biblically he had to take apart the building and return the beam in specie? Answered R. Joseph: In this case there was no change in name, as it was called a beam even after being built into the house (as all the beams together are called a roof, but each one separately still retains the name beam; and we so find it in a Boraitha elsewhere).

R. Zera says: Even if the beam in question does no more retain its original name when built into the roof, it would still not be considered a change; for as soon as the building is taken apart the original name “beam” is used again, while in the case of the hide, as soon as it was changed into a horse-blanket, it will never be called “hide” again.

R. Hisda in the name of R. Jonathan said: Whence is it deduced that a change does not acquire title? It is written [Lev. V. 23]: “And he shall return the stolen article,” which means in specie under all circumstances. But is it not also written “that he hath taken violently away” (which may be explained to include the value thereof)? This verse is needed to deduce from it that he pays an additional fifth part for his own theft, but not for that of his father (as will be explained in Chapter IX.).

Ula said: Whence is it deduced that resignation of hope to regain property does not acquire title? It is written [Mal. i. 13]: “And ye brought what was robbed, and the lame, and the sick”--that means that “what was robbed” is equal to the lame in this respect, that as the lame cannot be remedied neither can robbery, no matter whether before or after resignation of hope. Rabha deduced this from the expression [Lev. i. 3] “his offering,” which means but not what was robbed. If before resignation of hope, it is self-evident--why, then, the verse? We must therefore say that it means even after resignation. Infer from this that resignation of hope does not acquire title.

“And the payment of four,” etc. Why so? Let it be deduced by an analogy of expression of the word “ox” mentioned here and “ox” mentioned in regard to observation of Sabbath; as there “ox” includes beasts and birds, so also here? Said Rabha: The verse says here [Ex. xxi. 37]: “An ox or a sheep twice, to teach it of only those two, but no others.

“The one who steals,” etc. Rabh said: This was taught only before resignation of hope; but if after that the first thief acquired title, and the second thief must pay him double. Said R. Shesheth: “I would say that Rabh said this while he was napping, for we have learned: R. Aqiba said: Why did the Scripture say that if he slaughtered and sold it he must pay four and five fold? Because the sin was deeply rooted in him (and he acquired title to it by his acts). Now, let us see. When? If before resignation, what deep-rooting is there? (he has not acquired title and his acts helped nothing, as no one holds that title is acquired before resignation of hope). We must therefore say that it was after resignation. Now then, if resignation acquires title, why should he pay four and five fold--did he not kill or sell his own? It may be explained as Rabha said (that he must pay four and five fold even before resignation of hope, and the reason is) because he repeated his sin.

(An objection was raised.) Come and hear: It is written [Ex. xxi. 37]: “And kill it, or sell it”; as if killed it can no more return to life, so also in case of sale it must be such that it should not return again. When? If before resignation, it does return? We must therefore say that it relates to after resignation. Now, if resignation acquires title, why should he pay four and five fold--was it not his own when he slaughtered or sold it? It is as R. Na’hman said elsewhere, that even before resignation of hope, if the thief hired it out to a third party for thirty days, although the thief had no title to it, still his act of hiring was valid. So also can our case be explained.

It was taught: One who sells before resignation of hope to regain it, R. Na’hman says that he is liable to pay four fold because he sold it; and the Scripture holds him liable to pay whether before or after resignation. R. Shesheth says that he is free, because it cannot be called sale when the sale is invalid; and therefore his acts were of no effect, and the liability is only where his acts are of effect, as in case of slaughtering. So also was R. Elazar’s opinion, that it means after resignation of hope. As R. Elazar said: It must be declared that resignation of hope to regain stolen property comes generally immediately after the occurrence of the theft (and if the thief sold it, his act is valid, because there were both resignation of hope and change of control); and this theory is supported by the Scripture, which holds the thief liable to the payment of four and five fold without fear that the owner might have not resigned his hope; and this is only because generally hope is resigned immediately after the occurrence of the theft. But perhaps the Scripture means even before resignation of hope? This would not be correct, for sale and slaughtering are written together; and as in case of slaughtering his acts are accomplished and cannot be undone, so also in case of sale. But perhaps this is so when we know for certain that he has resigned his hope? This also would not be correct, for the same reason that sale and slaughtering are written together; and as in case of slaughtering there is no difference whether before or after resignation of hope, so also is the case with sale. Said R. Johanan to him: The case of kidnapping [Ex. xxi. 16], in which there is surely no resignation of hope, for no one gives up hope in such cases, and still the Scripture makes him guilty, can prove that the Scripture does not require any resignation of hope. [From this we see that R. Johanan holds that he is liable before resignation of hope.] But what is the law after resignation of hope? (Does he agree with Rabh’s opinion stated above?) Nay, he holds him liable whether before or after resignation of hope. Resh Lakish, however, holds him liable only before resignation of hope but not after that; for after resignation he acquired title, and if he killed or sold it he did so to his own.

R. Johanan said: A stolen thing of which the owners have not resigned hope to regain it cannot be consecrated. By the owner thereof, because it is not under his control; and by the thief, because he has no title thereto. Did, indeed, R. Johanan say so? did not R. Johanan say that the Halakha always prevails according to an anonymous Mishna, and there is a Mishna [Second Tithe, Chap. V., M. 1]: A vineyard in the fourth year of its planting (the fruit of which must first be redeemed before using it) used to be marked with clods (of earth), and this was a sign that benefit might be derived from it after being redeemed, as benefit may be derived from earth. In the third year of its planting, however, in which the fruit must be destroyed without deriving any benefit at all from it, it used to be marked with fragments of broken clay vessels, for a sign that as from such fragments no benefit can be had, so also none must be had from the fruit. Graves used to be marked with limestone (to warn passers-by not to step on them lest they become unclean), which is white, for a sign that therein were interred (human) bones, which are also white; and the limestone was dissolved and spread upon the graves, to be more visible. R. Simeon b. Gamaliel, however, said that the vineyards used to be marked in the Sabbatical year only, because the fruit was considered ownerless, and therefore warning had to be given not to use it (because of the third and fourth years); but in other years, when the fruit must not be used without the permission of the owner, it was not marked, but, on the contrary, let the wicked thief eat of it, and suffer the consequences.

The pious man, however, used to place money in the vineyard, declaring: “All that is plucked and gathered of this fruit shall be redeemed by this money.” (Hence we see that although not under his control, still it is redeemed--how, then, can R. Johanan say that neither can consecrate a stolen thing?) But lest one say that the above statement regarding the pious one is not anonymous, but is the continuation of the statement of R. Simeon b. Gamaliel (even then R. Johanan would contradict himself), as Rabba bar bar Hana said in his name, that wherever the teachings of R. Simeon b. Gamaliel are mentioned in our Mishnayoth the Halakha prevails according to him, except in three cases? (which are enumerated in Sanhedrin), it may be said: Do not read, The pious man used to place money in the vineyard, declaring, ‘All that was plucked,’ etc., but read, ‘All that will be plucked,’ etc. (i.e., that the money was placed when the fruit was still attached to the trees, and as in the Sabbatical year all fruit is ownerless, the one who plucks and gathers it becomes its owner and at the same time the money placed there redeems it).” But, after all, could, then, R. Johanan say so--did he not say elsewhere that the declaration of the pious ones and of R. Dosa were of one and the same theory, and in the declaration of R. Dosa it is plainly stated “that was plucked,” as we have learned in the following Boraitha: R. Jehudah said: In the morning the owner of the ground gets up and says, “All that the poor will pluck and gather to-day is hereby declared ownerless.” R. Dosa said: The declaration is made toward evening, and thus: “All that the poor have plucked and gathered is hereby declared to have been ownerless”? Change the names in the Boraitha, and read instead of R. Dosa R. Jehudah, and instead of R. Jehudah R. Dosa. Why do you declare that Boraitha incorrect--better correct the statement of R. Johanan and place R. Johanan instead of R. Dosa? It may be said that the names in the Boraitha must be changed in any event, for from this Boraitha is to be inferred that R. Jehudah holds to the theory of choice,[137] and it is known from his statements elsewhere that he does not hold this theory. But, after all, why do you change the names in the Boraitha--because it would be a contradiction between one statement of R. Jehudah and another one? There would be the same contradiction between one statement of R. Johanan and another, as it is known that also R. Johanan does not hold to the theory of choice [and if we should make his declaration read, “that what the poor will gather,” it would show that R. Johanan does hold to the theory of choice (as the declaration is made previous to the gathering of the fruit, and whatever had been gathered by the poor had been chosen previously in his mind)]. As R. Assi said in the name of R. Johanan: “Brothers that have partitioned among themselves estates that they inherited, they are considered as vendees, and the estates return in the jubilee year” (and we do not say that the part which came to him by partition was chosen previously to be his part of the inheritance, which, according to the biblical law, does not return; hence he does not hold to the theory of choice?). Therefore R. Johanan’s statement above remains unchanged, but his statement that stolen property cannot be consecrated, etc., is based upon our Mishna (supra, page 149), which states, “The one who steals a stolen article from a thief does not pay double” (which is anonymous). And why so? It would be correct that he should not pay to the thief, for it is written [Ex. xxii. 6]: “And it be stolen out of the man’s house,” but not of the house of the thief. But why should he not pay it to the owner of the property? We must say, then, that to the thief he does not pay because it was not his, and not to the owner because it was not under his control; and this is the very statement of R. Johanan. But still, why should he adopt this anonymous Mishna and ignore the other--why not adopt the anonymous Mishna which treats of the pious ones? Because for this statement support can be found in the Scripture [Lev. xxvii. 14]: “And if a man sanctify his house as holy unto the Lord,” from which is to be deduced that as “his house” is under his own control, so also other things which are under his own control (but not otherwise).

Abayi said: If it should not be said in the name of R. Johanan that “the pious” and R. Dosa are of the same theory, I would say that the pious ones hold to the theory of R. Dosa, but R. Dosa does not hold to the theory of the pious ones, viz.: The pious ones hold to the theory of R. Dosa because they arrived at their decision to make such declaration by drawing the following a fortiori conclusion: A thief who has committed a sin, the rabbis made an enactment for him not to pay double (to enable him to repent and to make restitution); so much the more an enactment must be made for the poor (to prevent them from sin). R. Dosa, however, does not concur with them, for according to him the rabbis made their enactment for the poor only and not for the thief (and the law that the thief must not pay double to the first thief is not an enactment of the rabbis but a biblical law). Said Rabha: Were it not for the above statement of R. Johanan that the pious ones and R. Dosa, etc., I would say that under “the pious ones” R. Meir is meant, because did not R. Meir say elsewhere that second tithe is consecrated property, and nevertheless as regards its redemption the Law considers it as if it were under the owner’s control?[138]

The sages of Nahardea said: No writ of replevin of personal property is granted by the court, the bailee of which denied its possession before the court. This is so when the bailee denied its possession, for it would look as if the court issued a writ the execution of which was not certain; but when he admitted possession but not ownership by the plaintiff, a writ might be issued. The same said also: A writ of replevin which does not contain the following direction: “Investigate, take possession, and retain it for yourself,” is invalid; for the bailee can say to him, “The property is not assigned to you, and you are not the proper party plaintiff.” Said Abayi: If the direction is contained, but it states only as to part of it, the bailee cannot say that he is not the proper party plaintiff; for if part is assigned to him by the court, he has authority to replevy the whole. Said Ameimar: If the writ did not contain the above direction, and nevertheless he took possession of it, the court cannot compel him to return it. (Rashi explains that according to other commentators it means that if the messenger of the court who executed the writ of replevin has kept the property for himself for a debt due him from one of the parties to the litigation, the court cannot compel him to give it up. Rashi approves of this explanation, saying that he found it in the Decisions of the Gaonim.) R. Ashi, however, says that the court has the right to compel him to return it, because when the court appointed one to execute its mandates it was upon the written condition that he should obey all the orders of the court; consequently he is only a messenger of the court and he has no right to keep it for himself. And so also the Halakha prevails.

MISHNA II.: If two witnesses testify that one stole (an ox or a sheep), and either the same or other witnesses testify that he slaughtered or sold the same, he must pay four and five fold. If one stole the same and sold it on the Sabbath, or he stole and sold it for idolatry; or he stole and slaughtered it on the Day of Atonement; or he stole from his father and slaughtered and sold it, and thereafter his father died; or he stole and slaughtered it and then consecrated it-in all those cases he pays four and five fold. The same is the case if he stole and slaughtered it in order to use it as a medicine, or to feed his dogs therewith; or he slaughtered it and it was found unfit for eating (trepha); or he slaughtered it in the Temple court without consecrating it as an offering. R. Simeon, however, makes him free in the two last-named cases.

GEMARA: “If he stole and sold it on the Sabbath,” etc. But have we not learned elsewhere that in such a case he is free? Said Rami b. Hama: The Boraitha which says that he is free from the payment of four and five fold treats of a case where the thief sold the stolen property to the owner of a garden and received in payment figs which the thief himself plucked on Sabbath (and thus incurred the penalty of capital punishment, and there is a rule that where there is capital punishment there can be no mention of civil liability). But it may be said that such must not be considered a sale. For if, for instance, the owner of the garden should claim before the court that he has not received from the thief the value of the figs, we would not make him liable to pay for the figs as he has committed a crime, and the above maxim applies also here; consequently there was no sale.

Said Rabha: Even in a case where the court would not entertain the plaintiff’s complaint, the sale would still be called a sale as regards the same required by Scripture. As, for instance, the law prohibits the hire of a harlot, even if she was his own mother (and he promised her a sheep as her hire). Now, if she would sue him before a court for failing to pay her the hire, would the court then direct him to pay it--and nevertheless if he had given her the sheep it would be called “harlot’s hire” and its use would be prohibited? The same is the case here: although as regards the enforcement of payment of the claim the court would not interfere, still, because he transferred it to him in this manner the sale is valid.

“If he stole and sold it on the Day of Atonement,” etc. Why so? It is true that there is no capital punishment; but is he not liable to punishment by stripes--and there is a rule that he who is punished by stripes is free from payment? It may be said that it is according to R. Meir, who holds that stripes do not absolve from civil liability. If so, then let him also be liable if he slaughtered it on the Sabbath. And lest one say that R. Meir holds only that stripes do not free from payment but capital punishment does, have we not learned in the following Boraitha: If he stole and slaughtered it on the Sabbath . . . (although he incurs the death penalty) he pays four and five: such is the dictum of R. Meir. The rabbis, however, make him free? Said the schoolmen: Leave the Boraitha alone, as it was taught in regard to the same: R. Abin, R. Ilaa, and the whole society said in the name of R. Johanan that the Boraitha treats of a case where he slaughtered it through an agent. But is there, then, a case where one commits a transgression and another is liable for it (have we not a rule that there is no agent to commit a sin)? Said Rabha: The case here is different, for the verse reads [Ex. xxi. 37]: “And kill it or sell it.” As in case of sale there must be another person (to buy it), so also in case of slaughtering, when it was slaughtered by another under his direction. The school of R. Ishmael inferred this from the additional word “or”; the school of Hezkiah inferred it from the word “for” used in that verse.

Mar Zutra opposed: Is there, then, a case where one, if he did it himself, would not be liable, but if he did it though a messenger he would be liable? Said R. Ashi to him: There the reason is not because he is not liable, but because he is guilty of a capital punishment, and the above rule applies. Now, when you say that the above Boraitha treats of a case where he slaughtered it through a messenger, why do the rabbis make him free of four and five fold? The schoolmen explained that by the “rabbis” mentioned in the Boraitha in question is meant R. Simeon, who holds that slaughtering which is not legal is not called slaughtering in accordance with the requirements of the Scripture.

“If he stole from his father, “etc. Rabha questioned R. Nahman: If he stole an ox belonging to two partners and slaughtered him, and then he confessed to one of the partners, what is the law? Shall we say that the Scripture [Ex. xxi. 37] meant five whole oxen, but not half oxen (for every partner has a right only to one-half of each ox), or shall we say that in “five oxen” the halves arc included? He answered him: The Scripture reads “five (whole) oxen,” and not half oxen. He objected: It states further: “If he stole from his father and slaughtered or sold it, and thereafter his father died (and the thief became one of the heirs), he pays four or five.” Now, when he is one of the heirs, is this not equal to the case where he confessed to one partner (and this makes him free entirely for the above reason--”an ox” and not “a half ox”; and the same ought to be here, because he is an heir, and the payment of a “whole” ox does no longer hold)? He answered him: The case here was that his father before he died laid already the matter before the court. But how is it if he had not laid the matter before the court--does he not pay? If so, why should it state in the latter part, “If he stole from his father and he died, and thereafter he slaughtered or sold it, he does not pay”? Let the Tana distinguish in the very first case, thus: This was said only where the deceased laid the matter before the court; but if he had not yet done so, he does not pay? He rejoined: It is really so; but because it states in the first part, “If he stole from his father and slaughtered it, and thereafter the father died,” it also states in the latter part, “If he stole from his father, who soon died, and thereafter he slaughtered or sold it.” On the next morning R. Nahman said to Rabha: (I have reconsidered the matter, have changed my mind, and came to the conclusion thus:) In the expression “five oxen” halves are included, and what I told you last night was said without careful deliberation. But what difference is there between the first and the last part (why does the latter part make him free)? He answered: The Scripture reads, “and killed it,” which means that as the stealing was in transgression, so also ought to be the killing, as is the case in the first part. In the latter part, however, the killing was no more in transgression, as it belonged to him.

“One who slaughtered,” etc., “and it was found unfit,” etc. Said R. Simeon in the name of R. Levi the elder: It is considered slaughtered only when the act is fully accomplished. R. Johanan, however, says: It is so considered from the very beginning. Said R. Habibi of Husnahah to R. Ashi: Shall we assume that R. Johanan holds that the prohibition to use meat of cattle slaughtered in the Temple court, which was not consecrated as an offering, is not biblical? (See Kiddushin, p. 58.) For if it is biblical, as soon as the act of slaughtering began it became a forbidden thing from which no benefit must be derived, and the remainder of the act was carried out on what belonged no more to the owner-why then is he liable to pay four and five fold? Said R. A’ha the son of Rabha to him: The liability is incurred from the very beginning of the act. Said R. Ashi: This is no answer, for it reads “and kill it,” which means the fully accomplished act, which would not be so in this case. But then the above question remains? He rejoined: So said R. Gamda in the name of Rabha: The liability is incurred in case he cut part of the trachea and gullet outside, and the remainder of same inside the Temple court (in which case there is the fully accomplished act before it became a prohibited thing).

MISHNA III.: If two witnesses testify that one stole an animal, and those very same witnesses testify that he had thereafter slaughtered or sold it, and subsequently those witnesses are proved collusive, the collusive witnesses must pay the full liability of four and five fold. If two witnesses testify that he stole it and other two testify that he slaughtered or sold it, and both sets of witnesses are proved collusive, the first set pays the double and the second set pays the balance of the five. If the second set is found collusive, the thief pays for two and the collusive witnesses for three. If only one of the second set is proved collusive, the whole testimony of the second set is invalidated. If one of the first set was found collusive, the whole testimony in the case was invalidated; for if there is no theft, there can be no (liability for) slaughtering or selling.

GEMARA: It was taught: A collusive witness--Abayi said that he is considered such from the date on which he gave the collusive testimony (and all the testimony he gave since then is incompetent); for as soon as he gave the collusive testimony he was considered wicked, and it is written [Ex. xxiii. 1]: “Put not . . . wicked to be a witness.” Rabha says that he is considered such only from the date on which he was proved collusive; for a collusive witness is an exception in the law, for they are two against two. Why, then, give more veracity to the latter two than to the former? Therefore the law applying to a collusive witness begins only from the date on which he was proved such. According to others, Rabha agrees with Abayi that he is considered collusive from the date on which the testimony was given; but in case they have in the meantime signed their names to a bill of sale, Rabha does not hold the conveyance invalid, in order that the grantee should suffer no damage. In which case can there be a difference in those two versions? In case two witnesses proved the collusiveness of one and two others proved the collusiveness of the other, or that their testimony was made incompetent by other witnesses testifying that they were robbers: according to the first version the reason of Rabha is because it is an exception. Here there is no exception, because there are four against two; consequently Rabha would agree with Abayi that all their testimony given in the meantime is invalid. According to the others, who say that the reason is that the grantee shall suffer no damages by invalidating the conveyance, there is no difference whether there were two or four. R. Jeremiah of Diphthi said: There happened a case and R. Papa acted in accordance with Rabha. R. Ashi, however, said that the Halakha prevails according to Abayi. There is a rule that always the Halakha prevails according to Rabha when he differs with Abayi, except in the six cases, the case at bar being one of them.

There is an objection from our Mishna, which states: “If two witnesses testified that he stole an animal, etc., they pay the full liability.” Shall we not assume that they at one time testified as to the theft and at another time as to the slaughtering, and then they were first proved collusive as to the theft and subsequently as to the slaughtering? Now then, if they were considered collusive from the date on which they gave the collusive testimony, as soon as they were proved collusive as to the theft, it was established that their testimony as to the slaughtering was incompetent, and why should they pay for the testimony of the slaughtering? It may be explained that the case was that they were proved collusive as to the slaughtering first. But still, when they were subsequently proved collusive as to the theft it was established that they were incompetent, and why should they pay for their testimony of slaughtering? The Halakha prevails that the Mishna treats of a case where their testimony was given at one and the same time, and subsequently they were proved collusive.

Rabha said: Witnesses that testified that one has committed murder and the court found the accused guilty on their testimony, and two other witnesses subsequently denied the testimony, and still another set of two witnesses testified that the first two were with them at another place at the alleged time of the murder (alibi), which testimony makes them collusive (according to Scripture), they must suffer the death penalty, for denial is the beginning of collusion which is subsequently proved by the last witnesses. And he said again: My theory is based upon the following Boraitha: “If two witnesses testify that a certain person blinded his slave’s eye and thereafter knocked out one of his teeth, and they also testify that the owner of the slave admitted it, and subsequently the witnesses are found collusive, they must pay to the slave the value of the eye.” Now, how is the case? Shall we assume that it was as stated without any other set of witnesses to deny the former testimony, and the slave was manumitted on their testimony, then the expression ought to be “and they pay to him (instead of ‘to the slave,’ for he was already manumitted) the value of his eye, and to his master the value of an uninjured slave”? Another proof is that the case is that there was no denial--that they also testify that the owner admitted it, for what purpose it this? We must therefore say that another set of two witnesses testify that he knocked out one of his teeth first, and then blinded his eye, in which case the owner must pay him the value of the eye; then came a third set of witnesses and testified that he first blinded his eye and then knocked out his tooth, in which case the owner must pay him only the value of the tooth, because there is a contradiction between the first and the middle sets, and the statement that the owner admitted it means that he is more satisfied with their testimony, as he has to pay only the value of a tooth, and the statement that they were found collusive has reference to the middle set, and nevertheless it is stated that they must pay the slave the value of the eye, hence that denial is the beginning of collusion. (For if it is not, why should the law of collusion apply to them after their testimony became incompetent?) Said Abayi: Nay, not as you say, that because if there would be three sets of witnesses, as soon as the middle one was denied by the first one the third set could not make it collusive. The case, however, was that the set which became afterwards collusive is the first set, and your proof from the fact that the Boraitha does not state that the collusive set has to pay to the master can be explained thus: The second set did not deny the fact, but only reversed the order, i.e., they say to the first set, “On that day on which you claim that the master had blinded his eye,” etc., “you were with us and you could not witness the crime; but we did witness on another day that the master first knocked out his tooth and then blinded his eye.” And therefore the Boraitha does not state that they must pay the value of the slave, etc., because the slave becomes free even on their testimony; and I take this from the last part of the same Boraitha: “We testify that a certain person knocked out his slave’s tooth and blinded his eye, and this is just as the slave says, and thereafter they were proved collusive, they pay the value of the eye to the owner.” Now, how was the case? If the second set does not admit any wounding at all, then the first set must pay to the owner the value of the whole slave. It is therefore apparent that all admit that he wounded him, but that they reverse the order of the wounding, and thus prove them collusive. Now, as the last part treats of a case where they became collusive through the reversal, the first part must also treat of a similar case. (Says the Gemara:) After all, let us see how the case was: If the second set testify that it happened on a later date, then the first must still pay the full value of the slave, because on the day on which they testify it happened the slave had not to be manumitted? We must therefore say that the second set testify that it happened on an earlier date. But still, even in such a case, if the slave had not summoned him to court before the testimony of the first was given, they must still pay the full value of the slave; for before their testimony the owner was not subject to liability (to manumit the slave)? It must therefore be said that the case was after judgment was given.

R. Zera opposed: Whence do we know that money must be paid? Perhaps when he only blinded his eye he is manumitted because of that, if when he only knocked out one of his teeth he is manumitted because of that, and when he did both-blinded his eye and knocked out one of his teeth-he is also only manumitted and no money is paid. Said Abayi: As to your question, the verse reads, “for the sake of his tooth,” which does not mean for the sake of his tooth and eye; and also “for the sake of his eye,” which does not mean for the sake of his eye and tooth.

Regarding witnesses whose testimony was first denied and then proved collusive (as to which Abayi and Rabha differ above), R. Johanan and R. Elazar also differ: One holds that they are put to death, the other holds that they are not. It may be inferred that the one who holds that they are not put to death is R. Elazar, for he said elsewhere that witnesses whose testimony was only denied (but not proved collusive), in a case in which human life was involved, have to stiffer the penalty of stripes. Now, if we should assume that R. Elazar is the one who holds that they have to suffer the death penalty if proved collusive, why should they be punished with stripes in case their testimony was only denied? is it not a “negative process” that entails the death penalty by the court, and in such cases no stripes are administered? We must therefore say that it is R. Elazar who holds in the above Boraitha that they have not to suffer the death penalty.

“They are punished with stripes.” Why so? Are they not two against two? Why should more credence be given to the one set than to the other? Said Abayi: The case is that the supposed murdered person appeared in court alive.

MISHNA IV.: If two witnesses testify that he stole it, and one witness, or he himself, testifies that he slaughtered or sold it, he pays only two, but not four and five fold. If he stole and slaughtered it on Sabbath, or sold it for purposes of idolatry; if he stole it from his father and this latter died, and subsequently he slaughtered or sold it; if he stole and consecrated it, and thereafter slaughtered or sold it--in all those cases he pays only double and not four and five fold. R. Simeon says: If one stole consecrated cattle for which the one who consecrated them is responsible, and slaughtered them, he must pay four and five fold; if, however, it is that for which he is not responsible, the thief is free.

GEMARA: The Mishna states, “If one witness,” etc. Is this not self-evident? It may be said that it means to teach us that when he himself admits that he slaughtered, it is equal to the case where one witness testifies; as in the latter case, if thereafter another witness conies and testifies to the same thing, their testimony is taken together to make up the requisite number of witnesses, so also in this case the testimony of another witness is added to his own, in opposition to what R. Huna said in the name of Rabh, that one who admits to the court that he has incurred the liability to pay a fine and thereafter witnesses appear, he is free. R. Hisda objected to R. Huna’s statement from the following: It happened that R. Gamaliel blinded the eye of his slave Tabi and he was very glad of the occurrence. When he met R. Jehoshua, he said to him: Do not you know yet that my slave Tabi is manumitted because I blinded his eye? Said R. Jehoshua to him: Your statement does not make him free, for he has no witnesses. Hence we infer from R. Jehoshua’s answer that if there appear witnesses after an admission of the incurrence of the liability to pay a fine, the latter must be paid? He answered him: The case of R. Gamaliel is different, for he had not admitted it before the court. But was, then, R. Jehoshua not the president of the court? Yea, but it was not during the session of the court, but only as to a private person. But have we not learned in another Boraitha that what R. Jehoshua said to him was: This is nothing, for you yourself admitted it (from which is to be inferred that even if witnesses appear thereafter he is also free)? And is it not also to be assumed that the reason for the different statements of the Boraithas is: The Tana who says that he told him, “because he has no witnesses,” holds that if witnesses should appear after the admission the slave would be liberated, and the Tana who says that R. Jehoshua told him, “because you already admitted,” means to say that after admission the testimony of witnesses is of no avail? Nay, all agree that witnesses who appear after an admission count nothing; but the point of difference is this: The one who says, “because he has no witnesses,” means that it was not before the court, and the one who says, “because you already admitted,” means that he had done so before the court.

It was taught: “One who admits that he has incurred the liability of a fine and thereafter witnesses appear, Rabh says that he is free. Samuel, however, says that he must pay.” Said Rabha for Ahilai: The reason of Rabh’s theory is because in the verse [Ex. xxii. 31 the word “found” is repeated twice, which means that if it should be “found” by testimony of witnesses, he should be “found” (liable to pay the fine) by the court, excluding the case of self-incrimination. But is this not deduced from the verse [ibid., ibid. 8]: “And he whom the judges may condemn”? We must therefore say that the first-quoted verse means to exclude the case where one admits his liability to pay a fine and thereafter witnesses appear.

What does Samuel deduce from this verse? He deduces that the thief himself must pay double, as it was taught in the school of Hezkiah that the double payment applies only when he himself stole it, but not where he claims that it was stolen from him. Rabh objected to Samuel from the following: If on seeing that witnesses were coming the thief admits the theft, but denies the slaughtering, etc,, he pays only the principal. (Hence we see that if he admits before witnesses appear he is free from the payment of double, which is a fine?) He answered him: The case is, that the witnesses withdrew and did not appear. But since it states in the last part: “R. Elazar b. R. Simeon said: Let witnesses come and testify (after he admitted, so that the fine should be paid),” it is to be inferred that the Tana of the first part holds that he is not liable (although the witnesses came and testify?) Said Samuel: The very same R. Elazar b. Simeon quoted by you, who holds as I do, is the basis of my theory.

According to Samuel, surely Tanaim differ (and the Tana of the first part cannot be explained to be in accordance with him); but according to Rabh is it to be assumed that he explains Elazar’s statement to be in accordance with him, namely: Elazar’s statement was only where he admits for fear of witnesses; but where the admission is made without such fear, even he would concede that he is free? (Yea, so it is.) Said R. Hamnuna: It seems that Rabh’s theory is applicable to the following case: If one confesses to theft and thereafter witnesses testify to the same, he is free from fine, for by his confession he made himself liable to pay the principal; but when he first denies, and after witnesses testify that he committed the theft he confesses to both the theft and the slaughtering, he is liable to pay four and five fold, for he sought to free himself entirely. Said Rabha to him: By your statement you caused grief to all the elders of the college: Did not R. Gamaliel by his confession, “I have blinded the eye of my slave,” make himself free from fine, and still R. Huna, who was objected to from this fact by R. Hisda, did not give the reason stated by you (and R. Huna was an actual disciple of Rabh? hence, your statement is not correct)? (Notwithstanding the objection of Rabha, it was taught by R. Hyya b. Aba in the name of R. Johanan exactly as stated by R. Hamnuna.)

Said R. Ashi: From both our Mishna and the above-quoted Boraitha it is also to be inferred that R. Johanan’s statement is correct, viz.: The Mishna, viz.: “If two witnesses testify that he committed the theft,” etc. Why should it not better state: “If one witness or he himself testifies that he stole and slaughtered it, he pays only the principal” (for all what the Mishna means to teach us is that one’s own confession frees him from the payment of fine; and if it should state as just mentioned, it would also include the payment of four and five fold)? We must therefore say that the Mishna comes to teach that only in case he did not make himself liable even for the payment of the principal, as e. g. that witnesses testify to the theft, and he only confessed, or one witness testifies to the slaughtering, etc., then only may it be said that his confession is equivalent to the testimony of one witness; so that if another witness should come thereafter and testify, his testimony would be added to that of the first witness and he would be liable; so also if after he confessed one witness appears, his testimony should be added to the confession, and he should be liable to pay four and five fold; but when he first confesses to both the theft and the slaughtering, or only one witness testifies thereto, in which case he makes himself liable to the payment of the principal, if even thereafter another witness comes, his testimony is not to be added to the confession, and he has to pay only the principal.

The Boraitha, viz.: “If one seeing witnesses coming confesses to the theft, but denies the slaughtering,” etc. Why does the Boraitha state as it does? Let it state, “ . . . and he admits that he stole it, or that he slaughtered and sold it, he pays the principal only”? (And we would infer from this that also when he even admits only the slaughtering, in which case he seeks to be entirely free, it is nevertheless considered an admission to make him liable for the principal?) We must therefore say that it means to teach us that only when he confess to the theft which makes him liable to the payment of the principal he is free (from fine), but when he does not confess to the theft, but the same is proved by witnesses and thereafter he admits that he slaughtered and sold it, and subsequently the same is also proved by wit. nesses, in which case he did not make himself liable even to the payment of the principal, he is liable (also to pay fine). Hence, we see that the admission of having slaughtered it (not coupled with the confession to the theft) is not considered an admission at all? Nay, it may be said that it means to teach us this very thing, viz.. Because he confessed to the theft, although he did not admit that he slaughtered or sold it, and thereafter witnesses testify that he slaughtered and sold it, he is nevertheless free from four and five, for the Scripture reads, “four or five,” but not “four or three” (and here, when he confesses to the theft, he is liable to the payment of the principal only, and if we should make him liable for the slaughtering, etc., he would have to pay two more for a sheep or three more for an ox, so that it would be “three or four,” but not “four or five”).

“If he stole and consecrated it, and thereafter slaughtered or sold it,” etc. This would be correct in case of slaughtering, for at the time of the slaughtering it was already consecrated property and not that of the owner, But why should he not be liable for the consecration itself--is this not considered a transfer from one owner to another, and what difference is there whether he sold it to a human being or to the sanctuary? Nay, there is a difference: In the first case its name is changed, for before the sale he is the ox of Reuben and after the sale he is the ox of Simeon, while when he consecrated him he still continues to be known as “Reuben’s consecrated ox.”

“R. Simeon says,” etc. Now, when R. Simeon holds that there is no difference whether he is sold to another person or sold to the Sanctuary, then the reverse should be the conclusion: If his responsibility still continues after the consecration, he should be free, because it is still under his control; and if his responsibility ceases upon the consecration he should be liable, for by the act of the consecration he placed it under the control of the Sanctuary; and according to him, it is the same as if he sold it to a commoner? R. Simeon’s statement has reference to the following Boraitha: “It may be said that the payment of four and five fold applies neither to one who steals stolen property from a thief, nor to one who steals consecrated property from the house of him who consecrated it, because it is written [Ex. xx. 6]: ‘And it be stolen out of the man’s house,’ which means but not out of the house of the Sanctuary.”[139] R. Simeon says: If he is responsible for the consecrated property, he is liable, for the reason that it is still under his control, and the verse, “be stolen out of the man’s house,” is still to be applied, but not when it is not under his control. Rabha questioned: If one makes a vow to bring a burnt-offering and sets aside an ox for such offering, and thereafter the ox is stolen, may the thief make restitution by returning a sheep, according to the rabbis, or a dove or a pigeon, according to R. Elazar b. Azariah, as we have learned in the following Mishna: “If one say, ‘I oblige myself to bring a burnt-offering,’ he may bring a sheep; R. Elazar b. Azariah, however, says that he may bring a dove or a pigeon.” Now, how is the law in our case: Shall we assume that the thief may say, “You obliged yourself to bring a burnt-offering, and here it is,” or the owner may say, “My wish is to do this merit in the best manner possible”? After he questioned, he himself answered: The restitution of the thief is acceptable according to the rabbis if it is a sheep, and according to R. Elazar b. Azariah if it is a fowl. R. A’ha the son of R. Iqa taught that the above saying of, Rabha was not questioned and answered as stated above, but was originally said so by him.

MISHNA V.: If the thief sells all but one-hundredth part of it, or he is a co-owner of it, or he slaughters it illegally so that it becomes a carrion, or he lacerates it (from the nostrils to the heart), or he tears the trachea and gullet, he pays only double, but not four and five fold.

GEMARA: What is meant by one-hundredth part of it? Said Rabh: It means of the meat which is made permissible for use by the legal slaughtering of the animal. Levi, however, holds even of the wool which is to be shorn. So also was taught plainly in a Boraitha. But according to whom, then, is Rabh’s statement? According to R. Simeon b. Elazar of the following Boraitha, who said: “If he sells all but one of its fore or hind legs, he does not pay four and five fold; if, however, he sells all but its horns or its wool, he does pay four and five fold.” On what point do they differ? The first Tana holds that “and kill it or sell it” [Ex. xxi. 37] means, as in case of slaughtering, it must be the whole, so also in case of sale. R. Simeon b. Elazar, however, holds that the fore and hind legs, which require legal slaughtering, if he excluded them from the sale, it is considered a sufficient remainder, and he is free from payment of four and five fold; but the horns and wool, which require no slaughtering, are not considered a sufficient remainder.

The rabbis taught: “One who steals an animal one leg of which is missing, or which is lame or blind, or one who steals an animal belonging to a co-partnership, is liable. But partners that steal together are free.” But have we not learned in another Boraitha that partners are liable? Said R. Na’hman: This presents no difficulty: The first Boraitha treats of a case where one partner stole of his co-partner (and therefore it is not considered a sale of the whole, for he himself is entitled to halo, and the other Boraitha treats of a case where one partner steals from a third party. Rabha objected to R. Na’hman: “Lest it be assumed that a partner who steals from his co-partner, or two partners that steal together (from a third party), should be liable, therefore it is written [ibid]. ‘And kill it,’ which means the whole of it, which cannot be the case here?” Therefore said R. Na’hman: This presents no difficulty: The Boraitha which states that he is liable means a case where he slaughters it with the knowledge of his co-partner (in which case he is considered the agent of the other partner, and the act is that of both partners), and the Boraitha which states that he is free means a case where he slaughters it without the knowledge of his co-partner (in which case it is considered that he slaughters the part stolen by his co-partner, which he did without permission, and it was said above that if one slaughters the animal stolen by another one is free from four and five fold; for his own half, however, he cannot be liable, for it is not considered the slaughtering of the whole).

The Rabbis taught: “If he steals it and gives it to another party who slaughters, sells, or consecrates it; or he steals and sells it to another party on credit, or exchanged it, or makes a present of it, or gives it to his creditor in payment of a loan made to him, or he gives it to his creditor in payment for merchandise sold to him on credit, or makes it a bridal-gift--in all those cases he pays four and five fold.” What new thing does this mean to teach us? The first part, which states the case where he gives it to another who slaughters it, means to teach us that in this particular case he is liable for the act of his agent, although in other cases one who appoints a messenger to commit a transgression is not liable for the act of the messenger (see above, p. 120, and the latter part, which states that he consecrates it, means to teach us that there is no difference whether he sells it to an ordinary person or to the Sanctuary.)

MISHNA VI.: (The liability to the fine of four and five fold applies only where the thief slaughters it after he acquired title to it, or he slaughters it outside of the owner’s premises, namely:) If he steals it within the premises of the owner and slaughters or sells it outside of it, or he steals it outside of the owner’s premises and slaughters or sells it within the premises, or the stealing, slaughtering, and sale are outside of the owner’s premises, he pays four and five fold. If, however, the stealing, slaughtering, and sale are within the owner’s premises, he is free.

If while the thief is leading the animal out it dies, still within the premises of the owner, he is free. If he lifts it up or leads it out of the premises, and it dies, he is liable. If he redeems his first-born son with it, or he gives it to his creditor, or to a gratuitous bailee or to a borrower to do work with it, or to a bailee for hire, or to a hirer, and the other person is drawing it forth and it dies while still on the premises of the owner, he is free. If, however, he lifts it up or he leads it out of the premises and it dies, he is liable.

GEMARA. Ameimar questioned: Was it enacted that a bailee should not be liable unless he should first draw (see above) the bailment, or not? Said R. Imar to him: Come and hear the statement of our Mishna: “If he redeems his first-born son with it, or he gives it to his creditor, etc., he is free.” Does this not mean that the bailee drew it? Infer from this that there is such an enactment. We have so also learned in the following Boraitha: “R. Elazar said: As it was enacted that a buyer has to acquire title by drawing the article he buys, so also was it enacted that the bailee should draw the bailment when he takes it under his control.” So also we have learned in a Boraitha with the addition: “And as title to real property can be acquired by money, conveyance, and occupancy (hazaka), so also title to rents can be acquired by those three.” What kind of rents? Shall we assume rent of personal property--can, then, personal property be rented by a conveyance? Must it not be drawn? Said R. Hisda: Rent of real property is meant.

R. Elazar said: If it was noticed that the thief was hiding himself in the forest (for the purpose of stealing an animal) and he slaughters or sells it therein, he pays four and five fold. Why so--he had not drawn it? Said R. Hisda: The case was that he drove it on with a stick. But if he did it so openly that it could be noticed, then he is a robber (and not a thief, and according to the Scripture he is free from the payment of four and five fold)? Nay, because he tried to hide himself, he is considered a thief. Under what circumstances, then, can he be considered a robber? Said R. Abbahu: As, for instance, Benayahu the son of Yehoyada, of whom it is written [II Samuel, xxxiii. 21]: “And he snatched the spear out of the Egyptian’s hand and slew him with his own spear.” R. Johanan says: As, for instance, the men of Shechem, of whom it is written [Judges, ix. 25]: “And the men of Shechem set persons to lie in wait for him on the top of the mountains, and they robbed all that passed by them on that way.”

The disciples questioned R. Johanan b. Zakkai: Why did the Scripture treat more rigorously with the thief than with the robber? He answered them: Because the robber put the honor of his Creator at least on the same level with that of His servant, while the thief did not do so, but, on the contrary, considered the eye and car of Heaven as if it would not see and hear; as it is written [Is. xxix. 15]: “Woe unto those that seek to hide deeply their counsel from the Lord, so that their works may be in the dark, and they say, Who seeth us?” etc.; and it is also written [Ps. xliv. 7]: “And they say, The Lord will not see, and the God of Jacob will not take notice of it”; and it is also written [Ezek. ix. 9]: “For they have said, The Lord hath forsaken the land and the Lord seeth not.”

R. Meir said: The following parable was related in the name of R. Gamaliel: To what is the above equal? To two persons who lived in one and the same town. One made a feast and invited all the inhabitants of the town, but not the princes; the other one made a feast and invited neither the inhabitants nor the princes. Whose punishment ought to be severer? Surely that of the first one.

The same said again: Ponder over the greatness of labor: In case of stealing an ox which he prevented from laboring, the thief pays five; in case of a sheep which does not perform any work, he pays only four. R. Johanan b. Zakkai said: Ponder over the greatness of the honor of creatures. For an ox who walks with his feet, he pays five; but for a sheep, for which he had to humiliate himself by carrying it on his shoulders, he pays only four.

MISHNA VII.: No tender cattle must be raised in Palestine, but they may be raised in Syria and in the deserts of Palestine. No cocks or hens must be raised in Jerusalem (even by laymen), because of the voluntary offerings (the meat of which may be eaten in any part of the city, and as the habit of the named fowls is to peck with their beaks in the rubbish, they may peck into a dead reptile and then peck in the meat of the offerings). In all other parts of Palestine priests only must not raise them, as they use leave-offerings for their meals, and they must be very careful about cleanliness. Swine must not be raised by Jews at any place. One shall keep no dog unless on a chain, and no noose is to be laid out for trapping pigeons unless fifty riss distant from inhabited places.

GEMARA: The rabbis taught: “No tender cattle must be raised in Palestine but in its forests; in Syria, however, even in the inhabited places, and, of course, in all other places.” Another Boraitha states: No tender cattle must be raised in Palestine but in the deserts of Judea, and in those of the village of Achu; and although no tender cattle must be raised, still large cattle may, for no restrictions are made for the community unless most of the people can observe them. Tender cattle may, but large cattle may not be imported from other countries. And although they must not be raised, still they may be kept during the thirty days immediately preceding a feast day, or the celebration of the wedding of one’s children. But this shall not be construed to mean that they may be kept for thirty days, and that if some cattle were bought less than thirty days before the feast day that one may continue keeping them after the feast day until the expiration of the thirty days, but that as soon as the feast day is over he must not keep them any longer. The butcher, however, may buy and slaughter them at once, or keep them (until the market day), provided that the cattle he bought last shall not be kept after the market-day to complete the thirty days.

The disciples once questioned R. Gamaliel, whether it was permitted to raise tender cattle, and he answered: “Yea.” But have we not learned in our Mishna that it is not? It must be said, therefore, that they questioned him whether it was permitted to keep them, and he answered them: “Yea, provided they are kept locked in the house, so that they shall not go out and pasture with the flock.”

The rabbis taught: It happened that a pious person was suffering from a severe cough, and the physicians declared that he could not be cured unless by drinking every morning fresh-drawn milk which was still warm. He obtained a goat, which he tied to the leg of his bed, and drew her milk every morning. Once his colleagues came to visit him, and on seeing the goat tied to the leg of the bed they turned back, saying: There are armed robbers in the house of this man (for the habit of a goat is to stray upon other’s fields), and shall we visit him? They sat down and examined into his conduct, and found no other transgression in him except that one. The pious one himself before he died said: I know that there can be no other transgression found in me except the one of the goat, that I disregarded the prohibition of my colleagues.

R. Ishmael said: My father’s family was of the citizens of upper Galilea, and why was that locality destroyed? Because they pastured their young cattle in the forests and tried civil cases by one judge; and although their forests were near their houses (in the immediate neighborhood, and they were pasturing their cattle in their own forests), still, a small-sized field was between those forests (which belonged to strangers), and they used to pass their cattle over that field.

The rabbis taught: “A shepherd (who raises tender cattle) that repented, we do not compel him to sell out all his cattle at once, but he may do so by degrees. So also is the case with a proselyte who inherited dogs and swine; we do not compel him to sell out all at once. So, also, one who made a vow to buy a house or marry a woman in Palestine; we do not compel him to do so until he finds one fit for him. It happened once with a woman whom her son used to annoy, that she swore that she would marry the first one who would propose to her, and unsuitable persons came forward with propositions. When this came before the sages, they declared that her intention was only for a suitable person.

As it was said that no tender cattle must be raised (in Palestine), so also was it said that no tender beasts should be raised. R. Ishmael, however, said that hunters’ dogs, cats, monkeys, and weasels might be raised, for they are kept for the purpose of keeping the house clean. R. Jehudah said in the name of Rabh: We follow in Babylon the practice prevailing in Palestine regarding tender cattle. Said R. Ada b. Ahba to R. Huna: But do not you raise tender cattle? He answered: Mine are taken care of by Haubah my wife. According to others, R. Huna said: We follow in Babylon the practice prevailing in Palestine regarding tender cattle since Rabh settled in Babylon (whom many followed from Palestine and who bought or rented all the land in Babylon). Rabh, Samuel, and R. Assi happened to meet at a circumcision feast, and according to others at a redemption feast. Rabh declined to enter the house before Samuel, and Samuel declined to enter before R. Assi, and the latter in his turn refused to enter before Rabh. It was then decided that Samuel should wait until Rabh and R. Assi had entered. (But why did Rabh refuse to enter before Samuel, he was surely greater than Samuel?) Rabh simply paid this courtesy to Samuel on account of his cursing him (see Sabbath, pp. 221-222). While they were so discussing a cat came and bit off the arm of the child, after which Rabh lectured that it is permitted to kill a cat and prohibited to keep it and that there can be no robbery in respect to it, and that if a cat gets lost no one need return it to its owner. If it is permitted to kill it, is it not self evident that it is prohibited to keep it? Lest one say that there is no prohibition to kill it but it may also be kept, hence the statement. Again, if it says that there can be no robbery in respect to it, why, then, the statement that it need not be returned to its owner if lost? Said Rabhina: It means even as far as its skin is concerned. An objection was raised from our Mishna: “R. Simeon b. Elazar said: Dogs, cats, etc.”? This presents no difficulty. A black one may, but a white one may not. But in the case of Rabh, was it not a black one? It was a black descending from a white one.

R. A’ha b. Papa said in the name of R. Hanina b. Papa[140] the following three things: (a) In case of a plague of the itch a fast day with the blowing of the horn may be ordered on the Sabbath; (b) if the door of success is closed to one, it will not open soon; and (c) if one buy a house in Palestine, the deed may be written and executed even on Sabbath. What does the statement, “if the door of success,” etc., mean? Said Mar Zutra: The granting of a diploma for a rabbi[141]. R. Ashi said: It means that when one falls into misfortune he cannot soon recover. “If one buy, etc., the deed, etc., on Sabbath.” Does it really mean that the Sabbath may be violated in such a case? Nay, it means as Rabha said, that a Gentile may be told to do it, although in ordinary cases the rabbis prohibited it on account of Sabbath-rest; still, in this particular case they did not. R. Samuel b. Na’hmani said in the name of R. Jonathan: One who buys a town in Palestine is compelled also to buy a tract of land around it to make it accessible from all four sides, in order to promote settlement in Palestine.

The rabbis taught: “Upon the following ten conditions did Joshua divide the land to the settlers: (a) That one may pasture his cattle in the forest of another; (b) he may gather wood upon another’s field; (c) grass may be gathered on another’s field at any place, except that of the carob-bean; (d) a branch may be cut off a tree at any place, except of an olive tree; (e) the townspeople may use the water of springs even newly opened by strangers; (f) nets may be spread in the Tiberian waters by every one for fishing purposes, provided he does not stake them so as to interfere with navigation; (g) one may evacuate behind a fence even of a field of saffron; (h) one may walk the cross way (opened on a field) until the second quarter of the season; (i) one may walk the side road when the main road is cloddy; (j) one who lost his way in a vineyard might raise and lower the tree branches in trying to find it; and, lastly, (k) a stranger who dies in a field should be interred in the place where he dies (see Erubin, p. 38).” Are there only ten, are there not eleven enumerated? The condition that one may walk the cross-walks was not made by Joshua but by Solomon, as we have learned in the following Boraitha: When all the fruit is gathered in from the field and the owner still permits no one to enter his field, do not people murmur and say: What benefit does that man derive from it and what injury would the people cause him by crossing his field? Of him the verse says: When you can afford to be good, do not cause people to call you bad. Is there, then, such a verse to be found in Scripture? There is a verse similar to it, viz. [Proverbs, iii. 27]: “Withhold not a benefit from him who is deserving it, when it is in the power of thy hand to do it.”

But are there no more than those enumerated? Is there not another one, of which R. Jehudah speaks in the following Boraitha: “R. Jehudah says: During the manuring season, etc., for on this condition did Joshua, etc. (supra, p. 66)?” Again, there are those enumerated in the following Boraitha: R. Ishmael the son of R. Johanan b. Broka says: The court declared the following conditions to have been made by Joshua when he distributed the land among Israel: (a) That one may enter his neighbor’s orchard to cut off a tree branch and use it in saving his bee-hive, paying the owner of the orchard the value thereof; (b) one shall empty his vessel containing wine and save therewith his neighbor’s honey (if one carrying wine and one carrying honey met together and the vessel containing the honey broke), and receive from him the value of the wine; (c) one shall unload his wood and load on his neighbor’s hemp (under circumstances similar to those stated above), and get from him the value of his wood? The Boraitha enumerated only those which were declared to have been so unanimously, but not those that were stated by individuals without being supported by their colleagues.

But did not R. Abin upon his return (from Palestine) say in the name of R. Johanan that one more condition was made by Joshua, namely, that whether it be a tree branching over into a neighboring field or one standing near the boundary, he may bring the first-fruit to Jerusalem and read the scriptural passages [Deut. xxvi. 51; and if the above-enumerated ten conditions were a Boraitha, R. Johanan, who was (not a Tana but only) an Amora, would not contradict it? Therefore it must be said that the phrase, “The rabbis taught. Ten conditions,” mentioned above does not mean that it was a Boraitha (as it usually indicates), but that it was taught by R. Jehoshua b. Levi (who was also an Amora, and R. Johanan may differ with him). R. Gebiah of the city of Khthil taught so plainly: R. Tanhum and R. Brice said in the name of the certain elder who was R. Jehoshua b. Levi, that ten conditions did Joshua make with the settlers.

Ten enactments were enacted by Ezra, viz.: (a) That portions of the Scripture should be read at the Saturday afternoon prayer; (b) on Mondays and Thursdays; (c) the court should be open on Mondays and Thursdays; (d) clothes should be washed on Thursdays (for the honor of the Sabbath); (e) garlic should be eaten on the eve of Sabbath; (f) a woman should do her baking early in the morning (so as to have fresh bread for the poor who should ask for it); (g) a woman should wear underwear; (h) a woman should comb her hair before immersing (in the legal bath); (i) vendors should travel from town to town and peddle their wares unmolested. He also enacted immersion (in a legal bath) for those who see Keri (wet-dreams). Ten things were said of the city of Jerusalem (when it was the capital of Palestine): (a) Real property should always be redeemed by the seller; (b) if a slain person is found in the neighborhood of Jerusalem, the ceremony of the heifer [Deut. xxi.] should not be performed; (c) it should never be declared a condemned town [Deut. xiii. 14]; (d) the laws of plagues [Levi. xiv. 35] should not apply to the houses of Jerusalem; (e) no beams should be permitted to protrude, nor any corner boards (Erubin, p. 40); (f) no dumping places for rubbish should be permitted therein; (g) no potter’s kiln should be permitted to be constructed therein; (h) no gardens or orchards should be permitted there except those of roses, that existed since the time of the first prophets; (i) no hens or cocks should be raised; and (j) no dead body should remain over-night in the city (but should be carried out of the city).

“No swine is permitted to be raised at any place.” The rabbis taught: “During the civil war of the Maccabees, Hurkanoth was within and Aristobulos was without the city wall, and every day those within lowered by means of a chair a basket full of dinars from the top of the wall to those outside, and the latter sent them up cattle for the daily sacrifices. Among the outsiders was an old man who was learned in Greek science, and he said to them: So long as your enemies continue to perform the holy service you will not subdue them. On the next day, when the basket of dinars was lowered, they sent them up a swine. When the swine reached the centre of the wall he fastened his feet in the wall, and Palestine trembled for a distance of four hundred square parsa. At that time it was declared that cursed be he who raised swine and cursed be he who taught his sons Greek science. Of that time it was taught (Tract Mena’hoth, p. 64b) that the omer was brought from the gardens of Zriphin and the two loaves from the valley of Ein Sokher.”

But is, then, the study of Greek science prohibited--have we not learned in the following Boraitha: “Rabbi said: In Palestine there is no use for the Syriac language, which is not clear, when there are the Holy language (pure Hebrew) and the Greek language, both of which are very clear; and R. Jose said: In Babylon there is no use for the Aramean language, for there are the Holy language and the Persian language”? It maybe said: Greek language is one thing and Greek science is another. But is, then, the study of Greek science prohibited--has not R. Jehudah said in the name of Samuel: So said R. Simeon b. Gamaliel: It is written [Lam. iii. 5 I ]: “My eye affected my soul because of all the daughters of my city. There were a thousand young men in my father’s house, five hundred of whom studied Scripture and five hundred Greek science, and of all of them only two remained--I here and my nephew in Assia”? R. Gamaliel’s house was an exception, for its proximity to the government, as is stated in a Boraitha: “He who cuts his hair χομη imitates the ways of the Amorites, which are prohibited [Lev. xviii. 3]. Abtulmus bar Reuben, however, was permitted to do so, for he had stood near the government. The house of R. Gamaliel was permitted to study Greek science for the same reason.”

“No dog shall be kept,” etc. The rabbis taught: No one shall raise a dog unless he is kept on a chain, or unless in a town adjoining the frontier, in which he is permitted to keep him without a chain only in the night-time. There is a Boraitha: R. Eliezer the great said: The raising of dogs is equivalent to the raising of swine. For what purpose is this equivalence? That the curse said of him who raises swine should apply also to him.

R. Joseph b. Maniumi said in the name of R. Na’hman: Babylon [Nahardea] is considered a city located at the frontier.

R. Dosthai of Biri lectured: It is written [Numb. x. 36]: “And when it rested, he said, Return, O Lord, among the myriads of the thousands of Israel.” Infer from this that the Shekhina does not rest on Israel unless they number two myriads two thousand. If it should happen that this number should be one less and there should be a pregnant woman whose child when born would complete it, and a dog should bark and cause the woman to miscarry, it would appear that he caused the Shekhina to withdraw from Israel.

It happened with a woman that entered a house to bake there, etc. (See Sabbath, p. 124).

“No nets are spread,” etc. But do we go as far as that? Have we not learned in the following Mishna: “Dove-cots may be located at a distance of fifty ells from a town”? Said Abayi: They fly for a much longer distance, but as to pecking up food they do so only within fifty ells. But do they fly only thirty ris?[142] Have we not learned in the following Boraitha that nets should not be spread out in the neighborhood of inhabited places, even at a distance of one hundred mil? R. Joseph said that “inhabited” means where vineyards are laid out, Rabba said that it means where dove-cots are kept. If so, let him say that it must not be done for the doves themselves, in order that they should not be caught in? If you wish, it can be answered that the doves are ownerless; and if you wish, it can be answered that he himself is the owner of the doves.

Chapter VIII

THE FIVE ITEMS OF PAYMENT IN CASE OF INJURY TO A HUMAN BEING, INDEPENDENTLY OF THE CRIMINAL LIABILITY. THE LIABILITY FOR ASSAULT WHEN NO INJURY IS SUSTAINED.

MISHNA I.: One who wounds his neighbor is liable to pay the following five things, viz.: damage, pain, healing, loss of time, and disgrace. “Damage.”--If he blinds one’s eye, cuts off his hand, or breaks his leg, the injured person is considered as if he were a slave sold in the market, and he is appraised at his former and his present value. “Pain.”--If he burns him with a spit or with a nail, if even only on the nail (of his hand or foot), where it produces no wound, it is appraised how much a man his equal would take to suffer such pain. “Healing.”--If he caused him bodily injury, he must heal him; if pus collected by reason of the wound, he must cause him to be healed; if, however, not by reason of the wound, he is free. If the wound heals up and breaks out again, even several times, he must cause it to be healed; if, however, it once heals up thoroughly, he is no more obliged to heal it. “Loss of time.”--The injured person is considered as if be were a watchman of a pumpkin field, as he was already paid the value of his hand or foot. The disgrace is appraised with consideration of the station and rank of the one who causes as well as of the one who suffers it.

GEMARA: Why so? Perhaps it is to be taken literally, for the Scripture reads [Ex. xxi. 24]: “Eye for eye”? This cannot enter the mind, as we have learned in the following Boraitha: Lest one say, if he blinds one’s eye or cuts off one’s hand, that the same should be done unto him, therefore it is written [Lev. xxiv. 21]: “And he that killeth a beast shall make restitution for it; and he that killeth a man,” etc. As in case of a beast only the value is paid, so also in case of a man. And lest one say, Does not the Scripture read [Numb. xxxv. 31]: “Moreover, ye shall take no redemption for the person of a murderer, who is guilty of death”? you may say that from this, very verse it may be inferred that no redemption money is to be taken for a murderer, but redemption money is to be taken for one who destroys such members of the body as cannot grow on again.

We have learned in a Boraitha: R. Simeon b. Johi said: “Eye for eye” means its value. You say, its value. Perhaps it means literally? Nay, for what should be done when a blind man blinds another, etc.--how should be fulfilled the commandment “eye for eye”? And lest one say that such a case is an exception, therefore the Scripture reads [Lev. xxiv. 22]: “One manner of judicial law shall ye have”; from which is to be inferred that it means a law which can be applied alike to all human cases.

In the school of R. Ishmael it was taught: The Scripture reads [ibid., ibid. 20]: “So should it be given[143] unto him”; and by “given” is meant a thing which is given from hand to hand. If so, how are the preceding words in the same verse to be explained? “In the manner he should give a bodily defect,” etc. (hence the word “give” is used also for such a thing as is not given from hand to hand)? It may be explained thus: The school of R. Ishmael deduce it from a superfluous verse, thus: Let us see. It reads already in the preceding verse [ibid. 19]: “And if a man cause a bodily defect in his neighbor; as he hath done, so shall it be done unto him.” Why, then, the repetition in verse 20? To indicate that it means money. But still the above-stated objection as to the use of the word “give” in the beginning of the verse remains? Because at the end of the verse the Scripture desired to use a term from which it should be deduced that it means money. It used the same expression also here.

The school of R. Hyya deduce it from the following: The Scripture reads [Deut. xix. 21]: “Hand for hand”[144]--that means something that can be passed from hand to hand, i.e., money.

It happened that an ass bit off a child’s arm. When the case came before R. Papa b. Samuel he said: Go and appraise the sum to be paid for the four items. Said Rabha to him: But we have learned that five items are appraised? He answered: I mean in addition to the actual damage. Said Abayi: But this was an ass, and an ass pays actual damage only? He then said: Go and appraise his actual damage. But he must be appraised as if he were a slave? He answered: Go and appraise him as such. Said the child’s father: I do not want to submit to such an indignity. He was told: This money belongs to the child (and you cannot deprive him of that). The father then answered: When he shall grow up, I will rather pay him of my own.

It happened that an ox lacerated the arm of a child, and the case came before Rabha. He said: Go and appraise the actual damage as if he were a slave. His disciple said to him: Are not you, master, the one who said that all appraisements which are made as of a slave are not to be collected in Babylon? He answered: The appraisement may be made, so that in case he should subsequently seize some property of the defendant he will not be compelled to return it. And Rabha in this decision follows his theory elsewhere: “Damages of an ox caused to him by another ox, or damages of an ox caused by a man, are to be collected in Babylon, but damages of a man caused to him by another man, or by an ox, are not to be collected in Babylon.” Why arc the latter damages not collected? Because it states [Ex. xxii. 8]: “Before the judges,” etc., and in Babylon the majority of the judges are not ordained, is it not the same with damages caused by one ox to another, etc.--for they are all mentioned together in the Scripture, where the word “Eloim” is written, which means ordained judges? Rabha speaks of a case when it was caused by the tooth or foot, which are considered vicious from the beginning, and such damage is at any rate to be collected in Babylon.

“Pain--if he burned him,” etc. Who is the Tana who holds that pain without damage must be paid for? Said Rabha: It is Ben Azai of the following Boraitha: Rabbi said: “Burning” is mentioned in the Scripture first. Ben Azai said: “Bruise” is mentioned first. (How is it possible that they should differ as to which is written first and which last, when the verse [Ex. xxi. 25] reads plainly “burning” first and “bruise” last?) The point on which they differ is whether “burning” without producing a bruise is considered pain which is to be paid for: Rabbi says that the word “burning” could be explained to mean without a bruise, and the word “bruise” mentioned last is only to explain that burning without a bruise is not to be considered. Ben Azai, however, maintains that “burning” means with a bruise; and because “bruise” is repeated again, it may be inferred that when it happened that the burning was without a bruise it is also considered pain which must be paid for. R. Papa opposed: On the contrary, common sense would dictate that Rabha’s statement, “Burning is mentioned first,” means to say that because usually burning is accompanied with a bruise it is also considered pain and must be paid for; and Ben Azai’s statement that bruise is mentioned first means to say that “bruise” is the main point, as burning without a bruise is not considered at all. It may also be explained that both agree that the word “burning” means with or without a bruise, and the point of their difference is: Given a general and a particular which do not follow one after the other (e.g., in the verse in question, where the words “wound for wound” intervene between them), Rabbi holds to the rule “that a general includes nothing but what is stated in the particular” does not apply to such a case, while Ben Azai holds that it does. And lest one say: If “burning” includes also a bruise, why, then, the repetition? Say that the word “bruise” means to increase the payment.

“It is appraised how much one would,” etc. When the damage is paid for, how should the pain be appraised separately? Said the father of Samuel: It should be appraised how much one would pay to have his arm, which by the decree of the government must be amputated, severed by a drug[145] instead of a sword. If so, it ought to state “give” instead of “take”? Said R. Huna b. R. Juhoshua: It means that the plaintiff shall take from the defendant what such a man would give.

“‘Healing.’--If he caused him bodily injury,” etc. The rabbis taught: If pus collected by reason of the wound and the wound broke out again, he must heal him; and he must also pay for the loss of his time until he shall be healed again. If, however, not by reason of the wound, he is free from both. R. Jehudah said: Even if it was by reason of the wound, he must cure him only, but not pay again for the loss of time.

The sages, however, say that the healing and the loss of time go together: When he must pay for one, he must also pay for the other, but not for one without the other. What is the point of their difference? Said Rabba: I found the disciples of the college sitting and declaring that the rabbis and R. Jehudah differed as to whether a wound might be bandaged or not (i. e., whether the injured person is permitted to increase the expense of healing by bandaging up his wound and thereby causing high temperature, which produces pus). The rabbis hold that it may be bandaged at the expense of the defendant as regards both healing and loss of time. R. Jehudah, however, holds that it may not be done. But if he does so, for healing, which is plainly written in the Scripture (thoroughly healed), he must pay; but for loss of time, for which there is no additional word in the Scripture, he must not pay. Said I to them: If we should come to the conclusion that a wound may not be bandaged, even healing would not have to be paid for. We must therefore say that all agree that a wound may be bandaged; but they differ, if bandaged too much (and this caused high temperature and produced pus), as to who must suffer the increased expense. R. Jehudah holds: That as one must not bandage a wound more than necessary, he is only obliged to pay for healing, because the Scripture insists on it by the repetition of the word “healing”; but regarding the loss of time, about which there is no repetition in the Scripture, he has not to pay for it. The first Tana, however (of the above-mentioned Boraitha), holds that because he must pay for the increased healing, for the reason stated above, he must also pay for the increase in loss of time, which is equal to healing in all respects.

(Let us see:) According to the rabbis, who hold that he who is liable for loss of time is also liable for the expense of feeling, and he who is not liable for loss of time is not liable for the expense of healing, wherefore the repetition of the word “healing” in the verse?[146] It is needed for what the following Boraitha states: “R. Ishmael said: It is written [Ex. xxi. 19]: Thoroughly healed,” from which is to be inferred that a physician is permitted to heal (although the affliction came from Providence).

The rabbis taught: Whence do we know that if pus collected by reason of the wound and the wound broke out again he must heal him, and also pay for the loss of time? From [ibid., ibid.]: “Only he shall pay for his loss of time, and shall cause him to be thoroughly healed.” Lest one say that it is so also if the pus collected not by reason of the wound, therefore it reads only. R. Jose b. Jehudah said: The above word “only” excludes the case when it collected even by reason of the wound.

The Master said: “Lest one say,” etc. If not by reason of the wound, why was there a verse needed? The expression in the Boraitha “not by reason,” etc., may be explained as stated in the following Boraitha: If he disobeyed the prescription of the physician and ate honey or other saccharine substances, which are injurious to a wound, and a cancer formed, shall he also be liable to heal him? Therefore it is written only.

If the defendant should say, “I will cure you myself,” the plaintiff may object, saying: “I fear you as a lion lying in wait.” And if the defendant should say, “I will get you my relative, a physician, who will cure you for nothing,” he may say: “A physician who cures for nothing is worth nothing.” And if he should offer to get a physician who lives at a distance from the plaintiff, the latter may object, saying: “One may get blind before seeing him.” And also, conversely, if the plaintiff should demand money to heal himself, the defendant may answer: “You may not comply with the directions of the physician, and thus defer the time of the healing.” And if the plaintiff should demand from the defendant to agree upon a fixed sum, the defendant may also object, saying: “You may take the money and not cure yourself, and people will call me ‘a vicious ox.’”

It was taught above: “And all those are paid where actual damage is paid.” Whence do we deduce this? Said R. Zbid in the name of Rabha: The Scripture reads [Ex. xxi. 25]: “Wound for wound,” which means that pain is to be paid for where actual damage is paid. But is this verse not necessary to make an unintentional act equal to an intentional one, and an accidental one equal to a voluntary act? If so, let the Scripture read “wound by wound”--why “wound instead of a wound”? (See supra, p. 54.) To infer both. R. Papa, however, said in the name of the same: There is a repetition as to healing [ibid., 19], to add healing where actual damage is paid. But can there be a case where one should be liable for all the four things where no actual damage was done? Yea, Pain--as is stated in the Mishna: “If he burned him with a spit or a nail,” etc. Healing--as, for instance, when he had a slight wound and it was healing up, and from the medicines applied the skin turned white, and other medicines had to be applied to restore the natural color. Loss of time--when he must be confined to the house. Disgrace--when he spat in his face.

“Loss of time,” etc. The rabbis taught: “Loss of time. He is considered as if he were a watchman of a pumpkin field; and lest one say that no justice is done in such a case, for should he be cured he could still do some kind of manual work, or serve as a messenger and get better compensation? There is no injustice, because he has already received the value of his limb.”

Rabba said: If one cut off another’s hand he pays him the value thereof; and as regards loss of time, it is appraised as if he were a watchman of a pumpkin field. If one breaks another’s leg, he pays the value thereof; and as regards loss of time, it is appraised as if he were a doorkeeper. If one blinds another’s eye, he pays him the value thereof, and the loss of time is appraised as if he were a miller. If, however, he makes him deaf, he pays the value of his whole body, for he is not fit for any work.

Rabba questioned: In case one cut off another’s hand, broke his foot, blinded his eye, at intervals, and each injury was not appraised separately when it occurred, and finally he made him deaf, how shall the appraisement be made? Shall we assume that the appraisement for the deafness will be sufficient, as he has to pay him for the whole body, or each of the injuries must be appraised separately, and the difference would be that he would receive compensation for the pain and the disgrace of each injury separately? I do not question as regards actual damage, healing, and loss of time, for each of which he has not to receive separately, as he receives now compensation for the whole body as if killed, but for the pain and disgrace suffered with each injury? Another question: How is it if each injury was appraised, but the money was not yet collected? Shall we assume that because it was appraised separately each must be paid; or, because he has not yet paid and now he has to pay for the whole body that all the previous appraisements are included therein? Both questions remain undecided.[147]

Rabba questioned: If one strikes another and makes him temporarily unfit to labor, as, for instance, when he strikes him on the hand and it gets swollen, which will pass over, shall we assume that because he will recover he need pay him nothing, or perhaps for the time during which he is incapable to work he must pay? Come and hear: “One who strikes his father or mother, but makes no bruise, and one who wounds his neighbor on the Day of Atonement, is liable to all the five things.” Does the first part of this Boraitha not mean a case like the one questioned by you; i.e., that he struck them on the hand, which will soon pass over, and still it states that he must pay all? Nay, it may be explained that he caused him deafness, but makes no bruise. But did not Rabba say that one who causes deafness to his parents is to suffer the death penalty, for deafness is impossible without a bruise, which is a drop of blood that falls into the car? Therefore the Boraitha must be explained that he shaved off his hair. His hair? It will surely grow on again, and this is Rabh’s question (as there is no difference whether the hand will recover or the hair will grow on again?) It can be explained that the Boraitha meant that he applied a depilatory which prevents the hair from growing on again. Pain--because the depilatory entered the grooves (of his head) and caused him pain. Healing--because the pain must be allayed by medicine. Loss of time--as for instance when he was a professional buffoon who shows different grimaces and gesticulations, and he is prevented from doing so on account of that. Disgrace--there can be no greater disgrace than to be without hair.

And this matter, in which Rabba was doubtful, was certain to Abayi in one way and to Rabha in the opposite way, as it was taught: If he strikes him on his hand, which gets swollen, Abayi says he must pay both the value of his hand in his trade during the time of his sickness and also the loss of time in such labor as he could do without the hand. Rabha, however, says he is paid only what he loses every day by not working. It was taught: One who cuts off the arm of his neighbor’s Hebrew servant; Abayi says he pays the value of the arm to the servant and for the loss of time to his master. Rabha, however, says: The whole must be paid to the servant, who should buy therewith land, the usufruct of which should belong to the master. It is certain that where the injury is wholly to the slave, e.g., where he split his car or his nostrils (which does not prevent him from work), that all that he gets belongs to him; but where the injury is of such nature that he cannot do any work, the difference between Abayi and Rabha concerning the loss of time remains.

“Disgrace,” etc. Our Mishna is in accordance with R. Simeon of the following Boraitha only: “All those who sustain injury are looked upon as if they were independent men that became poor, as all Israelites are the children of Abraham, Isaac, and Jacob. Such is the dictum of R. Meir. R. Jehudah says: It is according to his rank and station. R. Simeon, however, says: The rich ones are looked upon as if they were independent men who became poor; the poor ones, as if they were the very poorest class.” Hence our Mishna, which states that it is according to the station of the party, is not in accordance with R. Meir, who makes no difference, nor according to R. Jehudah, who says further on that a blind person gets nothing for being disgraced, but according to R. Simeon only (who considers rank and station).

According to whom is the following Boraitha: “The rabbis taught: If he intended to disgrace a small one and disgraced a big one, he pays the big one the amount he would have to pay the small one. If he intended to disgrace a slave and he disgraced a freeman, he pays to the freeman the amount he would have to pay to the slave”? It seems to be in accordance with neither of the Tanaim mentioned above. [At the first glance, the Boraitha is to be explained that “small one” means one who is poor in estate, and “big one” means one who is rich in estate, and therefore it is not in accordance with R. Meir, to whom all are equal, nor according to R. Jehudah’s theory, who holds no disgrace is paid for to slaves, and, finally, not according to R. Simeon, who holds that no disgrace is paid for unless it was caused to him who was intended. Why so? Because R. Simeon equals it to murder, of which it is written [Deut. xix. ii]: “And he lie in wait for him,” etc.; and we find also, as regards disgrace [ibid. xxv. 11]: “And putteth forth her hand” (which means intentionally), hence in both intention is required.] It may be explained even in accordance with R. Meir, and the terms “small” and “big” should be taken literally: a grown person and a minor. But is, then, a minor paid for disgrace? Yea, as R. Papa said elsewhere, if the minor is of such understanding that he feels ashamed when one says to him, “Be ashamed of yourself,” disgrace is paid for to him.

MISHNA II.: One who causes disgrace to a nude, blind, or sleeping person is liable; if, however, one causes disgrace when asleep, he is free. If one falls down from a roof and causes damage and disgrace, he is liable for the damage but not for the disgrace, as the latter requires intention.

GEMARA: The rabbis taught: “If he disgrace a nude person, he is liable; but still, the disgrace caused to a nude person is not equal to that caused to a dressed one. If he disgrace him in a bath-house, he is liable; but still, such disgrace is not equal to that caused to one in the market.” The Master said: “If he causes disgrace to a nude person,” etc. If he walks nude in the street--is, then, such a person capable of being ashamed? Said R. Papa: As for instance when a wind rolled up his clothes somewhat, and the defendant rolled them up more and thereby caused him shame. “In a bath-house.” Is, then, a bath-house a place for claiming for disgrace? Said R. Papa: It means that he caused him shame while on the banks of a river.

R. Aba b. Mamel questioned: If one causes shame to a sleeping person who subsequently dies while asleep, what is the law (as to the payment for shame)? On what point is the question? Said R. Zbid: It is thus: Is shame paid for, for hurting one’s feelings, and here, when he dies while sleeping, his feelings are not hurt, or it is only a fine for the indignity of one in the presence of others, and here was such indignity? Come and hear: “R. Meir says: A deaf-mute, and a minor, disgrace is paid for to them, but not to an insane person.” Now, then, if it is a fine for the indignity, it is correct that a minor be also paid, but if for hurting the feelings, has a minor, then, feelings of shame? But even if it is for indignity, why should an insane person not be paid for? Insane? is there any greater shame than this?

R. Papa says: The point of the question is thus: Is the reason because of the hurting of his own feelings--here, when he dies when sleeping, there was none--or because of the feelings of the family? Come and hear, etc. (the Boraitha just quoted). Now, then, if for the sake of the family it is correct that it states also a minor, and if for his own, is, then, a minor capable of feeling shame? But even if it is because of his family, it is not correct that an insane person shall not be paid for? There is no greater shame for a family than the insanity of one of its members. Be this as it may, let it be inferred that the reason is because of his family; for if because of his own feelings, the minor stands in the way? Said R. Papa: A minor is sometimes paid for shame if he is of such understanding that he feels ashamed when one says to him: “Be ashamed of yourself!” We have also so learned plainly in a Boraitha: “Rabbi says: A deaf-mute has, an insane person has not, but a minor sometimes has and sometimes has not, feelings of shame, as explained above.”

“One who disgraces a blind one,” etc. Our Mishna is not in accordance with R. Jehudah of the following Boraitha, who says: “A blind person has no feelings of shame; so also he used to free him from banishment, stripes, and death punishment by the court.” What is the reason of R. Jehudah’s theory? He deduces it from the analogy of expression “the eye,” which is used in speaking of disgracing a person and also in speaking of collusive witnesses: as in the case of collusive witnesses blind persons are excluded (for if they cannot see they cannot testify). And regarding banishment, as it is stated in the following Boraitha: It is written [Numb. xxxv. 23]: “Without seeing him” (which is to be explained that here he has not seen, but he is capable of seeing), which excludes a blind person (who can never see). Such is the dictum of R. Jehudah. R. Meir says: (On the contrary,) it includes a blind person. What is the reason of R. Jehudah? It is written [Deut. xix. 5]: “And he that goeth into the forest with his neighbor to hew wood.” Should we assume that this includes even a blind one? Therefore the Scripture says, “without seeing him,” to exclude him. And R .Meir? (He may explain it thus:) The Scripture reads “without seeing him,” to exclude something, and it is written [ibid., ibid. 4], “without knowledge,” which also means to exclude something; and there is a rule that where there is one exclusion after another it means to include. Hence it includes the blind. R. Jehudah, however, maintains that “without knowledge” means to exclude the one who does it intentionally (who is guilty of a crime). “From death by the court.” It is deduced by analogy of the expression “murderer” used here and in case of banishment. (In case of one killing a person the expression “murderer” is used [Numb. xxxv. 31], and so also in case of banishment.) “From stripes.” It is deduced by the analogy of the expression “Rosha” [ibid. xxv.] (the wicked, the guilty one) used here, and in case of death by the court [Numb. xxxv. 31].

We have learned in another Boraitha: “R. Jehudah says: A blind person has no sense of shame. He also relieved him from the performance of all the commandments contained in the Scripture.” Said R. Shesheth b. R. Idi: What is the reason of his statement? It is written [Deut. vi. 1]: “And this is the commandment, with the statutes and the ordinances”--from which is to be inferred that only those who can be ordained as judges have the obligation of observing the commandments, but not those who cannot be ordained (and as a blind person cannot be ordained a judge, he is exempt).

R. Joseph said: First I used to say: If there should come one and tell me that the Halakha prevails according to R. Jehudah, who says that a blind person is exempt from the performance of commandments, I shall make a feast for the rabbis, because I, who am under no obligation to do so, still do perform them; but since I heard of what R. Hanina said, that there is more reward for him who performs a commandment which he has an obligation to than for him who performs it without such obligation, I changed my mind, and I say that I shall make a feast if one should come and tell me that the Halakha does not prevail according to R. Jehudah; for if I am required to perform the commandment, the reward will be greater.

MISHNA III.: The law is more rigorous in regard to a man than in regard to an ox in this respect, that a man pays the five certain items, and also the value of the aborted children, while an ox pays only for actual damage and is free also from paying for the aborted children. One who assaults his father or mother, but does not bruise them, and one who wounds another on the Day of Atonement, is liable to pay all the above items. One who wounds a Hebrew servant is liable to pay all, but for loss of time when he is his own. One who wounds a heathen slave of another is liable to pay all. R. Jehudah says: There is no disgrace to slaves. A deaf-mute, an insane person, and a minor, one who meets with them is in a bad position, for the one who wounds them is liable, while if they do so to others they are free. The same is the case with a slave and a (married) woman, with the difference that they must pay when they become independent; namely, when the woman is divorced and the slave is liberated. If one, however, assaults his father or mother and bruises them, or, on the Sabbath, any person, he is free from payment of the above-enumerated items, for he is guilty of a capital punishment. One who wounds his own heathen slave is free from everything.

GEMARA: R. Elazar questioned Rabh: One who wounds the minor daughter of another, to whom is the compensation to be paid? Shall we assume that as the Scripture granted the income of a minor daughter to her father, the same is the case with the compensation for a wound inflicted upon her, for her value is diminished thereby; or perhaps the Scripture granted him only the income so far as she is under his control; for instance, if he wanted to marry her to one afflicted with scabies he could do so, but as to wounding, if he himself wanted to wound her he must not do so; hence it is an income which is not under his control, and therefore he does not acquire title to it? He answered: The Scripture granted him only the income first stated.

He objected to him from our Mishna: “But for the loss of time when he is his own?” (Hence we see that the loss of time is considered; and as the income from the labor of a minor daughter belongs to her father, he shall at least collect for the loss of time?) Said Abayi: Rabh concedes, as far as this is concerned, that her father gets it up to the age when she becomes vigorous. He objected again from the following: “One who wounds his grown son, he pays him at once; if he wounds his minor son, he makes an investment with the money he has to pay; if he wounds his minor daughter, he is free; and not only he, but even if others have done so to her, the father gets the payment?” He answered: This also has reference to loss of time only.

There is a contradiction to the above statement that in case of a grown son he pays him at once, from the following: One who wounds another’s children--if they are grown persons, he pays them at once; if they are minors, he makes an investment with the money due; if his own children, he is free? This presents no difficulty: The one case treats of where he provides their board, and the other case treats of where he does not. Now, let us see: You interpret the first Boraitha that it treats of where he does not provide their board; then the last part of same: “If one wounds his minor daughter, he is free, and if others do so to her the payment belongs to him,” also treats of where he does not provide her with board--why, then, should the payment belong to him? must she not pay for her board? As Rabha b. R. Ula explained elsewhere that it refers to that part which is in excess of what she needs for her board, so also is it to be explained here, that it relates to the excess. If so, then the second Boraitha treats of where the father does provide their board--why should they get the payment? does it not belong to the father? It maybe said that one is particular only about money of his own pocket, but about an income that comes from the outside one is not particular.

But is, then, a found article not an outside income, and still one is particular about it? An outside income which comes without any pain to the body, one is particular about; but an income which comes by reason of a wound, where she suffers bodily pain, is different. But does not the Boraitha state that if others wounded her they must pay to her father? It may be said that, as the Boraitha was interpreted that the children were not on his board, it is to show that the man is so penurious that he does not even provide board for his children, and such a man is certainly particular even about such an income; but in our case, where it is explained that they are on his board, it may be assumed that he is not particular about such an income.

What kind of investment (mentioned in the above Boraitha) should he make? R. Hisda said: He should buy with the money the Holy Scrolls. Rabba b. R. Huna said: (An article which brings benefit, e.g.) a date-tree, the benefit of the fruit of which should belong to the minor.

And Resh Lakish is also of the opinion that the Scripture granted to the father only the benefit derived from the labor of a minor daughter. R. Johanan, however, says: Even the money gotten for a scratch. A scratch? How can this enter the mind? Even R. Elazar questioned only in case of a wound, because her value was reduced; but in case of a scratch, which does not reduce her value, he did not question at all? Said R. Jose b. Hanina: The case is that the scratch was on the face, and in such a case it causes a reduction in her value.

“A heathen slave,” etc. What is the reason of R. Jehudah’s theory? Because it is written [Deut. xxv. 11]: “When men strive together, one with his brother,”[148] which signifies one with whom there can be a fraternity, excluding a slave. The rabbis, however, maintain that the word “brother” can also mean a slave, as there is a fraternity with a slave, because he is obliged to perform many commandments which an Israelite is obliged to perform. Now then, according to R. Jehudah, who is particular about the word “brother” mentioned in the Scripture, let witnesses who were found collusive in their testimony against a slave (to convict him of a crime punishable by death) not be put to death, for it is written [ibid. xix. 19]: “Then shall ye do unto him as he had purposed to do unto his brother”? Said Rabba in the name of R. Shesheth: The verse reads [ibid., ibid.]: “And thou shalt put away the evil from the midst of thee,” which means under any circumstances.

Now, according to the rabbis, who maintain that a slave is also considered a “brother,” let a slave be qualified to become a king? According to such a theory the same question could be put as regards a proselyte (who according to all is named brother, and nevertheless he is not qualified)? But both are excluded by the following verse [ibid. xvii. 15]: “From the midst of thy brethren shalt thou set a king over thee,” which signifies from the best qualified of your brethren. The question can, however, be put thus: Let, according to the rabbis, a slave be eligible as a witness, for it is written [ibid. xix. 18]: “He had testified a falsehood against his brother”? Said Ula: Even as regards witnesses he must be excluded by the following a fortiori argument, thus: An Israelitish woman is not eligible as a witness--a slave, who is not an Israelite and cannot even intermarry with an Israelitish woman, is it not logical that be should not be eligible as a witness? And if you should say that a slave has the preference, for he is circumcised, which is not the case with a woman, the case of a minor can prove it, who is circumcised, and still he is ineligible as a witness; and if you should say that a minor has no obligation of performing commandments, while a slave has, the case of the woman can be cited who has such obligation and still she is ineligible as a witness, and the former argument will be reinstated; from which it is to be seen that in some respects one has preference and in others the other has preference. In one thing, however, they are all equal, in that they are not fit to perform all the commandments to which an Israelite is subject and they are eligible as witnesses; the same is the case with a slave, who is not fit to perform all the commandments and is also eligible as a witness.

“A deaf-mute,” etc. The mother of R. Samuel b. Aba of Hagrunia married R. Aba, and she transferred her estates to her son R. Samuel. When she died, he went before R. Jeremiah b. Aba and he installed him in the possession of the estates. His stepfather went and told this to R. Hoshiya, who in his turn told it to R. Jehudah, and the latter said to him: So said Samuel: A woman who sells her estates to some one with a condition that her husband shall have the fruition of same during his lifetime, and thereafter she dies, her husband can recover the estates from the buyer (for he inherits from his wife, and because he had the usufruct of the estates he is considered as if he were the first buyer). When this was stated before R. Jeremiah, he said: I, however, know of a Mishna (Third Gate, Chap. VIII.) which states: “One who transfers his estates to his son, after his decease . . . If the son sell them, the buyer has nothing in them until the father dies.” We see, then, that if the father die the buyer acquires title in them, and even in case the son dies when the father is still alive, in which case they never came into the possession of the son. As R. Simeon b. Lakish said, there is no difference whether the son dies during the lifetime of the father or the father dies during the lifetime of the son, in both of which cases they never came into the possession of the son, the buyer nevertheless acquires title.[149]

When the answer of R. Jeremiah was repeated before R. Jehudah, he said: So said Samuel: This is not equal to the case of our Mishna. Why so? Said Abayi: On account of the enactment of Usha, which is in accordance with Samuel’s statement. (See Khethuboth, p. 20.) Said R. Idi b. Abin: We have so also learned in the following Boraitha: If witnesses say: “We testify that that person divorced his wife and paid her the amount of her marriage contract,” and it was found that she was still with him, and cohabited with him, and those witnesses were found collusive, they must not pay the full amount of the marriage contract (because she may die before her husband and nothing will be collected, but it must be appraised how much she would get in cash now if she should transfer her right in the marriage contract, so that if she should die before her husband the buyer would lose), but only the benefit of the same; and if she dies, her husband inherits also this from her. Now then, if the enactment of Usha should be of no effect, why should her husband inherit the amount of her marriage contract--let her be able to sell her right in the marriage contract and collect the full amount of it? Said Abayi: What comparison is this: If the enactment was made regarding a woman’s estate which she sells reserving the benefit, should the same enactment apply to guaranteed estates?

Said Abayi: As we have come to speak about benefit, let us say something regarding it: The above-mentioned benefit belongs to the wife; for if it should belong to the husband, let the collusive witnesses say to her: What loss did you sustain--if you had sold them, the benefit would anyhow have belonged not to you, but to your husband? Said R. Shalman: It does not matter: This benefit, although it would go to the husband, would be a benefit for her, as it would be used to increase the luxury of the household.

Rabha said: The Halakha prevails that the benefit in case of a woman who sells her right in the marriage contract belongs to herself; and if she bought estates therewith, her husband has nothing even in their income. Why so? The rabbis enacted that he should have the direct income of his wife’s estates belonging to her before marriage, but not the income of her estates which she acquired after her marriage in which her husband has no share (e.g., estates bought with the money paid her for disgrace caused to her, etc.). When R. Papa and R. Huna returned from Rabh’s college, they questioned: On account of the enactment made in Usha, it was taught of a slave and a woman, one who meets with them is in a bad position, etc. Now, if the enactment of Usha should be of no effect, why should the compensation for her wound be paid to her husband, let it be paid to her and let her buy estates the usufruct of which shall belong to her husband? (What question is this?) Even according to the theory that the enactment of Usha is of effect and she cannot sell the right in her marriage contract absolutely, let her sell, however, her estates of which her husband has the fruition for any benefit she could derive and pay to him whom she wounded? We must then say that she does not possess any. The same is the case here.

MISHNA IV.: If one blow[150] into the car of another, he pays one sela (as a fine for the disgrace he caused him). R. Jehudah, however, in the name of R. Jose the Galilean says, one manah. If he strike him with the palm of his hand on the cheek, he pays two hundred zuz; if, however, with the back of his hand, he pays four hundred. If he pull or cut his ear, or pull his hair, or spit in such a manner that the spittle fall on him, or strip him of his garment, or he bare the head of a woman in the market, four hundred zuz is to be paid. This is the rule: Rank and station of the parties are taken into consideration. R. Aqiba, however, says: Even the poorest of Israel must be considered as if they were independent men who had lost their estates, for they are the descendants of Abraham, Isaac, and Jacob. And it happened that one bared the head of a woman in the market, and when the case came before R. Aqiba he imposed a fine of four hundred zuz. Said the defendant to him: “Grant me time for payment,” and he did so. The defendant then watched her when she was standing at the gate of her courtyard, and broke her pitcher containing oil of the value of one issar: she bared her head, dipped her hand in the oil, and rubbed it into her hair in the presence of witnesses. The defendant then brought the witnesses before R. Aqiba and said: Rabbi, do you command me to pay this woman four hundred zuz? R. Aqiba answered: Your pleading is of no avail, for one who wounds himself, although it is considered a crime, he does not pay a fine, but if others wound him he must be paid. The same is the case with one who cuts off his plants; although it is unlawful, still he pays nothing, but if others do so (to the same property) it must be paid for.

GEMARA: The schoolmen propounded a question: The manah stated in the Mishna, does it mean a manah of the city of Zur,[151] which contains one hundred zuz, or does it mean the manah of the country, which is one-eighth part of it? Come and hear: “It happened that a man blew into the ear of another and the case came before R. Jehudah the Second, and he said: I saw you doing it, and I hold with R. Jose the Galilean; and there are also other witnesses who saw you doing it, therefore go and pay him a manah of the city of Zur.”[152] There was a man who did so to his neighbor, and when the case came before R. Tubiah b. Mathna he sent a message to R. Jose, questioning him whether the sela mentioned in the Mishna meant a sela of Zur or one of the country, which is only of the value of one-half of a zuz, and he answered: This is to be inferred from the end of Mishna I., Chap. IV., where it states “the first two a golden dinar”; and if the Mishna treated of a sela of the country, it would state one more case, viz.: “If the ox still gore another ox worth two hundred zuz, the owner of the ox and the owner of the first ox that was injured take each twelve dinars and one sela.” Said R. Tubiah: Should the Tana enumerate all the possible cases as a peddler does his wares? How was the case decided? It was decided from the statement of Rabh, which R. Jehudah said in his name, that all the moneys mentioned in the Scripture mean those of Zur, and those mentioned by the rabbis mean those of the country. (Hence one-half of a zuz.) Said the plaintiff: As I have to get only one-half of a zuz, let it be for the poor, as I do not want it. Thereafter he said again: Give it to me and I will use it for improving my health. Said R. Joseph to him: The poor have already acquired title to it, and although they were not here, we the treasurers of charities are considered the hand of the poor.

Hanan the Bisha (the bad) blew into the ear of another. When the case came before R. Huna, he said: Go and pay him one-half of a zuz. Hanan had in his possession a bad zuz that he could not pass, and he tendered it to the plaintiff, asking for one-half zuz change. When he refused, he blew in his ear again, and paid him the whole zuz.

(It is said above, “I saw you doing it.”) May a witness be a judge in the same case? Have we not learned in a Boraitha: If the Sanhedrin saw one murdering another, they shall be divided; viz., some of them shall appear as witnesses and the others shall perform the function of judges. Such is the dictum of R. Tarphon. R. Aqiba, however, said: As they are all witnesses, none of them can perform the function of judges? Did R. Aqiba indeed say so? Have we not learned in another Boraitha: It is written [Ex. xxi. 18]: “And if men strive together, and one smite the other with a stone, or with the fist.” Said Simeon the Timani: As in the case of the fist it must be investigated whether the blow of the fist was of such violence as to make him ill, confined to his bed, the same is the case with the stone; but if the stone was lost from the hand of the witnesses, no judgment can be granted. Said R. Aqiba to him: “Did he strike him in the presence of the court, so that they could testify how much, for what, and at what place he struck him; and secondly, in case one pushes his neighbor from the top of the roof of a house or palace and he dies, are, then, the court obliged to go and investigate if the height was such as to kill a man, or shall the house or palace be brought before the Beth Din? And if you should say, ‘Yea,’ how should be the case if in the meantime the palace were destroyed--shall we wait until it be rebuilt of the same height, so that it can be measured? Therefore we must assume that as in the case of the fist (which is always there) it depends upon the testimony of the witnesses whether the blow was of such violence, etc., the same is the case with the stone, except where the stone was lost before the witnesses have seen it.” We see, then, that R. Aqiba said that the court can testify how the striking was, hence that a witness can act as judge? He said it only to R. Simeon: According to your theory, should the court, etc., but he himself does not allow a witness to be a judge under any circumstances.

The rabbis taught: “A non-vicious ox who killed a man and has also caused damages to another, he must be tried for the crime but not for the damages (because a non-vicious ox pays for damages from his body, and in this case his body is to be stoned); a vicious one, however, who did the same is tried first for the damages and subsequently for the crime. If, however, he was sentenced to death first, he cannot be tried again for the damages.” What is the reason? Why shall he not be tried again for the damages. (In such a case the payment is to be made from the estates of the owner?) Said Rabha: I found the disciples of the college sitting and discussing about this case, and they came to the conclusion that the Boraitha is in accordance with R. Simeon the Timani’s theory, that in all cases the appraisement of the court is necessary also concerning damages; and in our case, as it was already decided that the ox must be killed, the execution must not be postponed for the purpose of appraisement. Said I to them: The Boraitha can be explained also in accordance with R. Aqiba, namely, that the case was that the owner of the ox ran away (and he cannot be tried when he is not present). If so, even if the ox was not first tried for the crime, can a civil case be tried in the absence of the parties? The case was that he ran away after the witnesses testified in his presence. But if he ran away, from whom shall the payment be collected? If he was not yet tried for the crime, the appraisement of the damages can be made and the ox may be hired to do work with him until the compensation for the hire equals the amount of the payment, and subsequently he shall be tried for the crime. If so, let also a non-vicious ox be tried for the damages and then hired until the hire shall equal the amount of damages, and thereafter he shall be tried for the crime? Said R. Mari bar Kahana: From the fact that it does not state so, it may be inferred that the hire paid for an ox is not considered as its body, but as the estates of the owner.

The schoolmen propounded a question: Is investigation (before appraisement) necessary in case of damages, or not? Shall we assume that only in case of a crime it must be investigated whether the blow was enough to kill, but in case of damages he must pay at any rate, or there is no difference and investigation must be had? Come and hear: It is stated above (p. 118), “As a pit of ten spans depth, which is capable of killing, so also other things, etc. If, however, it was less deep, he is liable only for damages but not for killing.” Is it not to be assumed that it means from the bottom to the top--namely, ten spans deep is for killing, less than ten is for damages? Hence we see that investigation is not necessary, as it must be paid even if it was only two or three spans? Nay, it means from the top to the bottom--namely from one up, but not including ten, is investigated for damages, but it must be investigated how many spans deep are necessary for such damage (but if it was ten or more, then we follow the tradition that from ten up it kills).

Come and hear: Concerning the five certain things it must be investigated, appraised, and collected at once, including healing and loss of time, which are also previously appraised as how long it will take before he will be cured. If, however, it was not so--for instance, during that time he grew worse, or, on the contrary, he was cured in a shorter time, it does not matter, and the appraisement remains the same. Infer from this that there is appraisement in damages. (From this the question of the above schoolmen cannot be decided yet, as) they were not in doubt that appraisement was necessary of the time needed for the injured person to be cured, etc., but they still doubted if the article which caused the damage must be investigated whether it was capable of causing such damage or not. Come and hear the decision of Simeon the Timani stated above, from which is to be inferred that investigation is necessary also for damages. And so it is.

The Master said: If he was examined, and it was concluded that the healing must take a certain time, and he was healed before the time, he gets nevertheless the full amount. This will be a support to Rabha, who said that he who is examined, and it is concluded that his sickness will continue the whole day, and he becomes cured in half a day, so that the other half day he is doing some work, he is nevertheless paid for the full day, as it is considered that his sickness was shortened by the mercy of Heaven.

“If he spat in such a manner,” etc. Said R. Papa: On those parts of his body which were not covered, but not if the spittle fell on his garments. But let it be considered as if he caused him shame by words? In the West it was said in the name of R. Jose b. Abin that from the above explanation of the Mishna by R. Papa is to be inferred that if one disgraces another by mere words he is free.

“Rank and station,” etc. The schoolmen propounded a question: The statement of the first Tana, shall it be construed leniently or rigorously? Leniently, if he was a poor person he must not be paid so much as if he were a rich one, or rigorously, that if he was of higher station he is paid more for the disgrace caused him? Come and hear R. Aqiba’s statement in the same Mishna, that even the poorest man must be considered as an independent man, etc., from which it is seen that the first Tana meant leniently. And so it is.

“It happened that one bared,” etc. Do we, then, allow time for payment in such a case? Did not R. Hanina say that in cases of wounding no time is given? Yea. We do not allow time in cases of pecuniary damage, but in cases of disgrace, where there is no pecuniary damage, time is allowed.

“He watched her when she was standing,” etc. But the Boraitha states that R. Aqiba said to him: You dived into deep waters and brought up a fragment of a clay vessel: one may wound himself, but if others wound him they must pay (and in our Mishna it states that a man must not do so)? Said Rabha: This presents no difficulty. The Boraitha speaks of a wound which is not allowed, while the Mishna speaks of disgrace, which one is allowed to cause to himself.

But the Mishna speaks of disgrace only, and still R. Aqiba said, “Although he is not allowed,” etc.? R. Aqiba meant to say thus: It is not only in case of disgrace, which one may do to himself, and still if caused by another he is responsible; but even in case of wounding, in which he is not allowed to do it to himself, and after he himself did it others came and caused him other wounds, they are nevertheless responsible.

“One who cut off his plants,” etc. Rabba bar bar Hana taught in the presence of Rabh: “If the plaintiff says, ‘You killed my ox,’ or, ‘You cut off my plants,’ and the defendant answer, ‘You ordered me to do so,’ he is free.” Said Rabh to him: If so, you would not leave life to the people-must he then be believed that he was ordered to do so? Rabba bar bar Hana answered: Then ignore it. Said Rabh to him: Why should you not explain your Boraitha that it treats of an ox which was sentenced to be killed, or of a tree which the court ordered to be cut off? He rejoined: If so, then what is the complaint of the plaintiff? The complaint is thus: I wanted to do this commandment myself, as we have learned in the following Boraitha: It is written [Lev. xvii. 13]: “Then shall he pour out the flood thereof, and cover it up,” etc. This means that the covering up must be done by the one who pours it out (if he desires to do so); and it happened of one who slaughtered a fowl and another anticipated him and covered its blood with dust, that R. Gamaliel made him pay ten golden zuz. (Hence one has the right to complain for a meritorious deed which he was prevented from doing.)

Rabh said: A tree that contains a kabh of fruit is prohibited to be cut off. Said Rabbina: If, however, the tree be worth more in wood, it may be done. We have learned so also in the following Boraitha. It is written [Deut. xx. 20]: “Only those trees of which thou knowest”--that means, a tree which bears fruit; “that they are not fruit-trees”[153]--that means, a wild tree. Now as, according to this explanation, every tree which is needed may be cut off, why, then, the words “that they are not fruit-trees”? To teach that if there are both wild trees and fruit-trees, the wild trees have the preference to be cut off. But lest one say that even when the fruit-tree is worth more in being used for a beam in a building than for its fruit, the wild tree must be cut off first, therefore it is written “only.”

The gardener of Samuel brought him dates in which Samuel tasted a taste of wine, and to the question why it was so the gardener answered that the dates were growing in the vineyard, and Samuel said: If they absorb so much sap of the vines, uproot them and bring me their roots to-morrow.

R. Hisda, when he noticed young date-trees in his vineyard, told the gardener to uproot them, saying: Vines are valuable and date-trees may be bought from their income, while date-trees are only of slight value, and from their income vines cannot be bought.

MISHNA V.: All that which is said regarding payment for disgrace is only for the satisfaction of the pecuniary damage, but the hurt feelings of the disgraced are not forgiven, unless he prays and secures forgiveness from the plaintiff, as it is written [Gen. xx. 7]: “And now restore the man’s wife,” etc. And whence is it deduced that if the defendant does not forgive he is considered cruel? From [ibid., ibid. 17]: “And Abraham prayed unto God, and God healed Abimelech,” etc. If one says to another: “Blind my eye, cut off my hand, break my foot,” he (the defendant) is liable, even if he told him so on the condition that he should be free. If he told him: “Tear my garment, break my pitcher,” he is liable. If, however, he told him so on the condition that he should be free, he is so. If one says to another to do such damage to a third person, even on condition that he should be free, the defendant is liable whether it be personal injuries or injuries to property.

GEMARA: The rabbis taught: All that which was said concerning disgrace is only for the civil court, as to how much the plaintiff should receive, but there can be no satisfaction for the injury to the feelings, for which, if he would even offer all the best rams of the world, they would not atone for it, unless he prays the plaintiff for forgiveness, as the verse quoted in the Mishna reads farther on: “For he is a prophet, and he will pray for thee.” For he is a prophet! Must, then, only a prophet’s wife be restored, and not that of an ordinary person? Said R. Simeon b. Na’hmani in the name of R. Jonathan: Read thus: Restore the man’s wife; (and) because he is a prophet, he will pray for thee-which means that another’s wife must be restored. And your claim [ibid., ibid. 4 and 5]: “Lord, wilt thou then slay also a righteous nation? Said he not unto me, She is my sister?” etc., is of no avail; for if a stranger comes to a city, he is usually questioned only what he would eat or drink, but not who is his wife or relatives, as your habit is; and because he was a prophet and he knew what you were going to ask him, therefore he and Sarah were compelled to say so. Infer from this that one is punished even when he commits a crime through ignorance, because he ought to learn and know.

It is written [ibid., ibid. 18]: “Every womb.” Said the disciple of R. Janai, even the hen of Abimelech’s household did not lay its eggs. Said Rabha to Rabba bar Mari:[154] Whence is the following saying of the rabbis deduced: He who prays in behalf of his neighbor for a certain thing which he himself needs, he is answered first? He answered: From the following verse [Job, xlii. 10]. “And the Lord brought back the captivity of job, when he prayed in behalf of his friends.” He said to him: You deduce it from this, and I deduce it from the following verse [Gen. xx. 17]: “And Abraham prayed unto God, and God healed Abimelech, and his wife, and his maid-servants,” etc.; and immediately thereafter it is written [ibid. xxi. 1]: “And the Lord visited Sarah as he had said,” etc., which means, as Abraham prayed in behalf of Abimelech.

Said Rabha to Rabba bar Mari: Whence do we deduce the following people’s saying: With the thorn the rose is also beaten? He answered: From the following verse [Jer. ii. 29]: “Wherefore will ye contend with me? all of you have transgressed against me, saith the Lord.” (“All,” although there were some who were righteous, as the prophets, etc.) Said he to him: You deduce it from this verse, and I deduce it from the following [Ex. xvi. 28]: “How long refuse ye to keep my commandments,” etc. “ye” includes Moses and Aaron also).

The same said again to the same: It is written [Gen. xlvii. 2]: “And he took some of his brothers, five men.” Who were the five? He answered: So said R. Johanan: Those whose names were mentioned twice in the benediction of Moses [Deut. xliii.] (Zebulun, Gad, Dan, Asher, and Naphtali). But is not Jehudah’s name also mentioned twice? Jehudah’s name was mentioned twice for another purpose (explained in Tract Makkoth, 10). He questioned him again: What is the origin of the following people’s saying: “One misfortune follows the other”? He answered: In the following Mishna: “The rich bring the first-fruit in golden or silver baskets (and take the baskets back), while the poor bring it in willow baskets, and the baskets remain with the fruit for the priests.” He said to him: You find it in the Mishna, and I find it in the Scripture [Lev. xiii. 45]: “And the leper. . . . Unclean, unclean, shall he call out.” (Hence, it is not enough that he is afflicted, he must himself call it out.)

He said again: Where is the origin for the rabbis’ saying: Arise early in the morning and eat something, in the summer because of the heat and in the winter because of the cold; and people say: Sixty men were running after one who used to eat early in the morning, and could not overtake him? In the verse [Is. xlix. 10]: “They shall not be hungry nor thirsty, and neither heat nor sun shall smite them.” Said he: I, however, find the origin in the following [Ex. xxiii. 25]: “And ye shall serve the Lord,” which means the reading of Shema and prayer; “And he will bless thy bread, and thy water,” which means the bread and salt and the pitcher of water one takes immediately thereafter; [and then he may be sure that] “I will remove sickness from the midst of thee.”

He said again: What is the origin of the rabbis’ saying: If your neighbor calls you “ass,” put on a saddle (i.e., do not answer him)? He answered: In [Gen. xvi. 8]: “And he said, Hagar, Sarah’s maid. . . . And she said, From the face of my mistress.”

He said again: And wherefrom is the people’s saying: “When talking to a stranger, tell him first of all the position you are in”? He answered: From [ibid. xxiv. 34]: “And he said, I am Abraham’s servant.” And wherefrom is the people’s saying: A duck while it keeps its head down, its eyes still look at a distance? He answered: From [I Samuel, xxv. 31]: “And when the Lord will do good unto my lord, then do thou remember thy handmaid.” (While praying to save her life, she hinted that he should marry her.)

And wherefrom. the following people’s saying: For the wine furnished by the host to his guests thanks are due; the main thanks, however, receives the man who takes care of serving the same in a nice manner? He answered: From [Numb. xxvii. 19j: “And thou shalt lay thy hand upon him”; and also [Deut. xxxiv. 9]: “And Joshua the son of Nun was full of the spirit of wisdom; for Moses had laid his hands upon him, etc.” (Hence we see that the whole credit is given to Moses.) And wherefrom the following people’s saying: A tree bearing bad fruit usually keeps company with trees which do not bear fruit at all? He answered: This is written in the Pentateuch, repeated in the Prophets, mentioned a third time in the Hagiographa, also learned in a Mishna and taught in a Boraitha: Pentateuch [Gen. xxviii. 9]: “And Esau went unto Ishmael.” Prophets [Judges, xi. 3]: “And then gathered themselves to Yiphthach idle men, and they went out with him.” Hagiographa [Ben Sira, xiii.]: “Every fowl associates with its kind and man with his equal.” Mishna: “All that is attached to an unclean article is unclean and all that is attached to a clean article is clean.” Boraitha: “R. Eliezer said: Not in vain did the cuckoo go to the crow, because it is of its kind.” He said again: And wherefrom the following saying: If you advise your neighbor and he does not heed your advice, press him to the wall and let him suffer? He answered: From [Ezek. xxiv. 13]: “Because I endeavored to cleanse thee, and thou wouldst not be clean, thou shalt not be cleansed from thy uncleanness any more.” And wherefrom the following saying: Do not spit in the well from which you drank water? He answered: From [Deut. xxiii. 8]: “Thou shalt not abhor an Edomite; for he is thy brother; thou shalt not abhor an Egyptian; because thou wast a stranger in his land.” And wherefrom the following saying: If you will help me to lift the burden, I will carry it; and if not, I will not touch it? He answered: From [Judges, iv. 8]: “If thou wilt go with me, then will I go; but if thou wilt not go with me, I will not go.” And wherefrom the following: When we were young we were considered as men, and now when we are old we are considered as children? He answered: It is first written [Ex. xiii. 21]: “And the Lord went before them . . . and by night in a pillar of fire, to give light to them”; and thereafter [ibid., xxiii. 20]: “Behold I send an angel before thee, to keep you on the way.” And wherefrom the following: If you keep in touch with oil, your hands will become oily? He answered: From [Gen. xiii. 5]: “And Lot also, who went with Abram, had flocks, and herds, and tents.” R. Hanan said: Whoso calls down divine judgment on his neighbor is punished first, etc. (See Rosh Hashana, p. 22. There, however, it is said in the name of R. Abin.) R. Itz’hux added to this: Woe to him who cries for such, more than to him upon whom the judgment is called down. We have so also learned in the following Boraitha: “Both are punished (by the Divine Court), but the one who calls down the judgment is punished first.” The same said again: Do not hold light the curse of a common man, etc. (See Vol. VIII., Tract Megila, p. 38.) R. Abahu said: It is better for one to be of the persecuted than of the persecutors as there are no more persecuted birds than doves and pigeons, and the Scripture made them fit for the altar. “Blind my eye,” etc. Said R. Assi[155] to Rabba: Why in the first part the condition that he should be free is of no effect, and in the second part it is? He answered: Because no one will ever forgive for the loss of the principal members of his body. Said he to him: Does, then, a man easily forgive for pain-and nevertheless a Boraitha states: “If one say to another, ‘strike me,’ or ‘wound me, upon condition that you should not be liable for it,’ and if he does so, he is free? Rabba remained silent. Thereafter he said to him: Do you know how to explain this? He said: So said R. Shesheth: The reason is for the indignity caused to his family. It was taught: R. Oshiya said: For the reason just mentioned; and Rabha said: Because one does not forgive for the loss of the principal members of his body. R. Johanan, however, said: One may forgive for all that was done to him; and our Mishna, which makes him liable, although it was on the condition that he should be free, is because there is sometimes a “nay” which means “yea” and a “yea” which means “nay” (explained in the following Boraitha). We have learned also in the following Boraitha: If one says to another, “Strike me,” or “wound me,” and the other asks, “On condition that I should be free?” and he answered “Yea!”(i.e., if so, you would like to do so)? Hence this “yea” means “nay.” “Tear my garment,” and he says, “And thereafter I should pay for it?” And he answers, “Nay.” which means “Yea, you may do so.”[156]

“Break my pitcher,” etc. There is a contradiction from the following Boraitha: It is written [Ex. xxii. 6]: “If a man . . . to keep,” etc., for preservation; but not when he says to him keep it for destruction or for charity. (Hence we see that if he told him to keep it for destruction, although he did not say on the condition of being free, he is nevertheless free?) Said R. Huna: This presents no difficulty: The Boraitha speaks of when it was delivered to the bailee for, and he accepted it for, destruction--then certainly he is free; and the Mishna speaks of when he told him to break the pitcher when the same was yet in the hands of the owner. Said Rabba to him: The words “to keep” in the Scripture mean certainly that it was delivered to the bailee; and nevertheless, if thereafter he told him to destroy it, without making the condition to be free, he is liable, unless he told him to keep it for destruction at the time of the delivery? Therefore said Rabba: Both cases treat of destruction after the delivery; but the Mishna speaks of when he told him to destroy it after he received it for safe-keeping, and the Boraitha speaks of when he told him at the time of the delivery to keep it for destruction.

There was an ἀρνᾰχίς; of charity which was sent to Pumbeditha, and R. Joseph deposited it with a certain man who did not take good care of it, and it was stolen from him. R. Joseph held him responsible. Said Abayi to him: Did not the Boraitha state, to keep it for preservation, but not for charity? He answered: The poor of Pumbeditha receive each a fixed sum from charity, so that this money belonged to them, and they can be the claimants thereof (and the reason why the Boraitha holds the bailee free, if it was given to him to keep it for charity, is because where the poor do not receive fixed sums at certain periods they cannot claim a certain fixed amount, and there. fore it is considered that there are no claimants).

[NOTE.--The last two chapters of The First Gate will be printed in the succeeding volume.]

THE END

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Notes

[←1]

Chapter I. of the original.

[←2]

The Talmud infers this from the two words shephot hashophtim, which literally mean that the judges were judged. Hence, who have judged the judges? The elders.

[←3]

The translation of this passage is entirely different. The Talmud, however, interprets this to mean Adam the First, and takes it literally.

[←4]

Chapter II. of the original.

[←5]

In the ancient times, and even now in some places of the Orient, a woman in her separation must be separated and avoid all communication with anybody during the whole time.

[←6]

We have explained it in our “Philac. Ritus,” that at that time only great men were allowed to bear phylacteries, and therefore she took them to prove that her husband was one of them.

[←7]

Leeser translates “against” the third day, but the Talmud translates it as we give it.

[←8]

There is a tradition in the Talmud that Malkizedek is identical with Shem. Salem in Hebrew means also “perfect.” Hence the analogy.

[←9]

Chapter III. of the original.

[←10]

In a Mishna at the end of Tract Pëah it is stated the reverse, viz.: That one who needs charity and refuses to take it will not depart from this world until he will be in a position to give charity.

[←11]

This is inferred from the superfluous letter ‏ו‎ and ‏ת‎; as gates ‏דלתי‎,” is also plural, not less than two, from the added ‏ו‎ and ‏ת‎ they deduce one more.

[←12]

We omitted the narrative of a pious man who was compelled too stay over night in a cemetery, as its proper place is in Berachoth.

[←13]

Chapter IV. of the original.

[←14]

Elsewhere the Talmud explains that Lebanon means the Temple, and “mighty one” a king.

[←15]

Chapter V. of the original.

[←16]

Chapter VI. of the original.

[←17]

According to this legend, R. Aqiba had a son before he married the daughter, of Calba Shebua, and thus can be explained the question of Tossaphat in Sabbath, old edition 106b, beginning with the paragraph, “R. Joshua b. Karcha.”

[←18]

See Section Moed, Vol. VI., Tract Yomah, p. 49, that it is Hillel who will be a menace to the poor.

[←19]

Calba, means “dog”; Shebua, “satiated.”

[←20]

Chapter VII. of the original.

[←21]

Chapter VIII. of the original.

[←22]

The Talmud translates ‏חושב‎ “think after” (doubt), but Leeser translates it “respect.”

[←23]

He did so in order to prevent others from doing her violence.

[←24]

Chapter IX. of the original.

[←25]

The Hebrew term is Kehorkhe Hadaionin. This translation is according to Rashi. Maimonides explains it as follows: “Do not make thyself as those who instruct the litigants what to plead.” The explanation, however, of the ancient sages will be found in the Gemara.

[←26]

Chapter X. of the original.

[←27]

I.e., do not get into such affairs as will cause the government to investigate about you. The commentators, however, interpret this otherwise.--See Gemara.

[←28]

Chapter XI. of the original.

[←29]

Chapter XII. of the original.

[←30]

‏פה‎ in Hebrew means “mouth,” and the Talmud takes it literally.

[←31]

The Hebrew term for this is “Mekapeah,” derived from “K’apah,” high (Bechoroth, 45b).

[←32]

According to the interpretation of the Talmud, but Leeser translates “obtained.”

[←33]

Chapter XIII. of the original.

[←34]

There are seventy-five letters in the Hebrew text beginning with the word ‏לבוא‎ and ending with ‏גדלים‎, the translation of which is “go to take to himself a nation from the midst of a nation, by proofs, by signs, and by wonders, and by war, and by a mighty hand, and by an outstretched arm, and by great terrors.” And in Midrash it is explained that one word, ‏גוי‎ of three letters is not counted, for it has reference to Egypt. Of the many commentaries upon this difficult and complicated passage this seems to us to be the best, which is according to Isaiah Berlin (Pick).

[←35]

Chapter XIV. of the original.

[←36]

Chapter XV. of the original.

[←37]

This is also stated in Sabbath, p. 51; but because it is here more in detail, we give it again.

[←38]

All commentators concur in the opinion that the above Mishna teaches us nothing else but a lesson of retaliation; namely, that “the Almighty pays measure for measure,” or, in other words, that the punishment fits the crime. I am, however, inclined to believe that if the author of the above Mishna had intended to teach us only the said lesson, he could find better and more striking illustrations than “the skull,” etc. I am, therefore, of the opinion that a historical fact is underlying the above Mishna. Hillel lived during the time of Herod and witnessed all the atrocities which that tyrant perpetrated on the people, and more especially on the Rabbis. Hillel was also an eye-witness of the foul murder which Herod had committed by having drowned in a bath his brother-in-law, the high-priest Aristobule III. (See Grätz’s History, Vol. III., page 203.) The ‏גלגולת‎(skull) of the Mishna does therefore refer to Aristobule, and since Hillel could not openly express his indignation, for fear of the tyrant, he made an indirect allusion to the occurrence.--From the American Israelite, by Rev. Dr. Falk Vedaver.

[←39]

Chapter XVI. of the original.

[←40]

The text reads “Eliezer,” but this must be a misprint, as Elazar was the fifth all the disciples, each of whom had three maxims.

[←41]

Chapter XVII. of the original.

[←42]

Chapter XVIII. of the original.

[←43]

Chapter XIX. of the original. The phraseology of these sentences is a little different in the Mishna.

[←44]

Chapter XX. of the original.

[←45]

Leeser translates it “vault,” but the Talmud translates it literally.

[←46]

Chapter XXII. of the original.

[←47]

This is according to Maimonides; Rashi, however, says it means: one who says that Moses wrote in the Pentateuch ridiculous things, as, for instance, that Thimna was the concubine of Eliphaz [Gen. xxxvi. 12].

[←48]

Maimonides explains it otherwise.

[←49]

The young doves sacrificed by a woman after confinement.

[←50]

The three kinds of blood of menses, which are difficult to be distinguished from each other.

[←51]

Chapter XXI. of the original.

[←52]

Rashi explains it: The honor of a disciple can be as dear to one as one’s self, because the honor of the disciple is one’s own glory, which cannot be so in case of a neighbor; and therefore the Torah equals it to the FEAR of one’s master, which includes honor also.

[←53]

Chapter XXIII. of the original.

[←54]

This is added here to R. Eliezer b. Jacob. In the Mishna, however, this statement is ascribed to R. Elisha b. Abuyah.

[←55]

The most of the Tanaim came from Palestine, and when there was one from Babylon he was pointed out.

[←56]

Chapter XXIV. of the original.

[←57]

Chapter XXIV. of the original.

[←58]

The explanation at length of this saying is to be found at p. 50 Of our “Eben Harosha.” See also the letter of the late Professor Steinthal printed in our “Schulchan Aruch und seine Beziehungen, etc,” in which he fully agrees with us. See also Section Moed, Vol. VI., Tract Hagiga, p. 32, foot-note, concerning Ben Azai.

[←59]

“Sweet sound” in Hebrew is ‏הגיונ‎; “dirge” is ‏הגה‎. The Talmud plays upon the similarity of the two words.

[←60]

“Sweet sound” in Hebrew is ‏הגיונ‎; “dirge” is ‏הגה‎. The Talmud plays upon the similarity of the two words.

[←61]

As he was at that time excommunicated.

[←62]

See Chapter IV., Mishna B.

[←63]

Chapter XXVI. of the original.

[←64]

Chapter XXVII. of the original.

[←65]

Chapter XXVIII. of the original.

[←66]

Chapter XXIX. of the original.

[←67]

Chapter xxx. of the original.

[←68]

In the Mishna, however, this saying is ascribed to R. Jonathan.

[←69]

Chapter XXXI. of the original.

[←70]

Chapter XXXII. of the original.

[←71]

Chapter XXXIII. of the original.

[←72]

The Hebrew term for both “glitter” and “lightning” is ‏ברק‎.

[←73]

The text reads “nekabim,” and the verse quoted begins with “nakab-tha” hence the supposition.

[←74]

‏חמר‎ means both “loam” and “billows.”

[←75]

‏נד‎ is ‘wall,” ‏נאד‎ is “bottle,” The Talmud plays on the similarity of the two words.

[←76]

Chapter XXXIV. of the original.

[←77]

‏תפל‎ in Hebrew means also “nonsense.”

[←78]

‏יאר‎ in Hebrew means a “river” and ‏יער‎ means a “forest”; in the verse quoted the latter word is used, but the Massorah says that the middle letter is suspended above the line, and the Talmud maintains that this shows that originally the first-mentioned word was used, but subsequently the middle letter was changed and the change indicated by the suspension.

[←79]

Chapter XXXV. of the original.

[←80]

Chapter XXXVI. of the original.

[←81]

The Hebrew term for both “grave” and “pit” is sheol, hence the analogy.

[←82]

According to Maimonides.

[←83]

Chapter XXXVII. of the original.

[←84]

See Section Moed, Vol. VI., Hagiga, 37. The repetition here is because of this addition.

[←85]

Here is a statement which is repeated in Tract Sota, 22b, under the heading: “The rabbis taught.” As there it is more comprehensible, we prefer to give it here in that form.

[←86]

According to Rashi, it means when the Jewish tribunal ceased its existence during the last years of the Second Temple; and according to other commentaries it means Kareth and heavenly death, with which the earthly tribunals had nothing to do.

[←87]

Chapter XXXVIII. of the original.

[←88]

Chapter XXXIX. of the original.

[←89]

i.e., “I do not wish to derive benefit from others, and no one shall derive benefit from me.” This was the method of the Sodomites.

[←90]

Chapter XL. of the original.

[←91]

The Hebrew terms for these are derived from the verb ‏קנה‎, which the Talmud translates literally, “to possess,” “to acquire.”

[←92]

The Hebrew terms for these are derived from the verb ‏קנה‎, which the Talmud translates literally, “to possess,” “to acquire.”

[←93]

Chapter XLI. of the original.

[←94]

See Section Festivals, Vol. VIII., Tract Taanith, pp. 52-53, the legend at length.

[←95]

Some say it means when the lender himself is in need, and it seems to us that it is the correct meaning.

[←96]

The text reads “Hamnadin,” which means “those who put under the ban,” but the commentators came to the conclusion that this is an error. We have translated it according to Elias Wilna.

[←97]

Here the Boraitha continues to enumerate things dangerous to life and health which seem to us unimportant in our age, and therefore we omit them.

[←98]

Here follows the benediction before retiring, etc., which will be explained in the proper tract.

[←99]

See introduction to Synopsis in Tract Aboth, Vol. I. (IX.), p. xi.

[←100]

Farther on we use the term “gratuitous bailee,” as being more comprehensive.

[←101]

Spoiling vessels thereby.

[←102]

According to the other explanation of Rashi it is because a human being is provident, i.e. careful, and it is not easy to kill him unless by penetrating his body with the horns with great force.

[←103]

Modern scholars come to the conclusion that originally the Mishna read ‏המבעיר‎ which means one who started a fire, instead of ‏המבעה‎ which latter word cannot be found either in the Scripture or in the Mishna elsewhere, and that this latter word originates from an error on the part of the transcriber in writing an ‏ה‎ instead of ‏יר‎. And it seems to us that this view of the scholars is correct, for we find in one Tosephtha plainly the word “Hamabir” instead of “Hamabeh.” We may add to this that Rabh’s explanation, “It means a man,” shows also that “Hamabir” is the correct word. We have therefore omitted all the citations of the passages to explain the meaning of the word “Hamabeh,” as they are too far-fetched and were probably added by the expounders of Rabh’s statement. Abraham Krochmal, however, maintains that in the first Mishnayoth it was used “Hamabir,” but Rabbi, the editor of his Mishnayoth, wrote “Hamabeh,” for the reason that this word has two meanings which can be applied to foot and tooth. (See his Notes on the Talmud, Lemberg, 1831, page 260.)

[←104]

This is no contradiction of what was stated above, that a pit does not do damage often, for it means that it does not do so as often as the foot, which treads on everything in its way.

[←105]

The reason why this was not stated till now is that there should be no interruption in the discussion of R. Ishmael and R. Aqiba.

[←106]

This seems to be the true meaning of the expression “Bene Brith,” and not, as some thought, that it means Israelites. See our introduction to this edition in our “History of the Talmud.”

[←107]

According to Leeser’s translation.

[←108]

There is a long discussion in the Talmudical dictionaries as to the correct meaning of bardalis, which is mentioned in several places in the Talmud and seems to have different meanings; we translate it “hyena” according to Mr. Sheinhack in his “Hamashbir.”

[←109]

See Gemara.

[←110]

We are compelled to use in our translation of this section for male and female animals the same terms used when speaking of human beings, for the following reasons: (a) The Bible translators use the same terms when speaking of animals, either of common or distinct gender, e.g., see Leeser’s translation (which we follow in the translation of the Talmud), Numb. xxii. 25, Exod. xxii. 5, as regards, “ass,” which is of common gender, also ibid., Exod. xxi. 29, Numb. xix. 3, as regards a distinct gender; and so in many, many other places. Now, as the Mishna and the Gemara following use the word “animal” here in the feminine (probably for the reason that in those times of domestic animals the female was usually permitted to walk the highway without one directing her, which was not so with an ox, which was usually hitched to a wagon and in charge of a driver whose duty it was to take care that the ox did not step on articles lying in the way), and as “it” is usually used for the neutre gender, we could not very well use this term. (We follow strictly this rule as regards gender in all other places, to correspond with the original.)

(b) If we used “it” and “its” instead of the above terms, it would be very hard for the reader to comprehend the true sense of the discussions.

[←111]

The Rabhina mentioned here is Rabhina Zuta, a nephew of the first Rabhina, who is mentioned in Kethuboth 100b; for Rabhina, who was a disciple of Rabha and colleague of R. Ashi, died long before in the time of R. Sama, the son of R. Ashi. See Doroth Harishonim, Presburg, 1897.

[←112]

According to Maimonides and others.

[←113]

Rashi explains this that the owner of the house used it for storing wood and straw, and the tenant lived in the same place used for such storage; and then as to “ruin,” there is none, for it is being used; but as to repairs, the owner would not see p. 42 what repairs are necessary, as he does not live there; consequently, in such a case, according to R. Joseph, he need not pay, and according to R. S’horah he need pay. We, however, would say, that the Gemara means that it was used for storing wood and straw by the stranger, and, on the contrary, according to Rabh, he need not pay, for the house is no more vacant; and according to R. Joseph he need pay, because he will not care to make repairs. We leave the choice to the reader.

[←114]

The literal translation of the text reads “a wound instead (ta’hath) a wound.”

[←115]

In the last two cases there is only a difference as regards Sabbath. In the first case, even if he said, “Let it fall wherever it may,” there is also no liability, for the Scripture requires that it should be intentional work, and in the first case the distance is so small that there can be no question as to his intention to do work.--Rashi.

[←116]

The text reads, “as the cane of a blind one,” and Rashi explains it, that when feeling the way with his cane, the blind man places it wherever it happens, longwise or crosswise. The above explanation, however, which is more lucid, is according to Tosphath.

[←117]

The Hebrew term [Deutr. xix. 5] being ‏ומצא‎, literally “it found.”

[←118]

As explained above, p. 53, from the verse Levit. xxiv. 19.

[←119]

According to the commentary of R. Hananel.

[←120]

Rashi explains this as follows: After the first goring he saw another ox and did not gore and after the second goring he saw two or three other oxen and did not gore them, and so after the third and fourth gorings in which case he is not considered vicious even in alternate order, as explained further on in the text.

[←121]

This is very complicated, and the commentaries differ as to the explanation and illustration thereof. Rashi maintains that if the value of the fifth one was only fifty zuz, the carcass being of no value, he collects from the body of the goring ox his full half of twenty-five zuz, and turns over the balance to the fourth one, whose ox was of the value of one hundred zuz, who collects nevertheless only twenty-five zuz, for the reason that the twenty-five zuz collected by the fifth one are deducted from his half damage, because the ox was then under his control, and the balance is turned over to the third one, applying the same rule; one full half value of the ox, however, belongs to the owner, as the ox was not under his control since the first goring. Hananel’s illustration of this rule, however, is in reverse order: The first one whose ox was of the same value of the goring ox, who had to collect one hundred zuz out of the body of the goring ox, loses fifty if the goring ox gores another of the value of one hundred while under his control, and so the second pays to the third the one half of the damage done to him, so that only the last one takes his full half damage, as the ox was not under his control. Tosphath remarks that in such cases it can happen that the third and fourth should collect nothing, and even the filth one may not be able to collect his full half. See the objection of Samuel Eidlis (Marsha) to these remarks of Tosphath and the answer of Sabbati Kohen in his commentary on the Schulchan Aruch, §401, and their illustrations.

[←122]

Here is an omission which will be supplied in the eighth chapter of this tract, as there is the proper place for it.

[←123]

Here follow several similar questions, all remaining unanswered, and they are of no importance.

[←124]

For the first time in our translation we omit here a statement of the Mishna regarding the goring of an ox belonging to an idolater, for it seems to us that it was inserted here not by the editors of the Mishna; the evidence for this we have set forth in a long article in Hebrew in the monthly “Ner Hamarabi.” We will probably explain this to our English readers in an appendix to the “third gate” of this section.

[←125]

I.e., those three named in the Mishna.

[←126]

This form of expression is often used in the Talmud.

[←127]

In the Gemara this last sentence is put as a question, and there are many answers to it which we deem of no importance to be translated. The law, however, prevails as we have translated in our text.

[←128]

See explanation of this expression in Tract Erubin, p. 16, footnote.

[←129]

The text reads “Im,” which literally means “if”; Leeser, however, translates it “but,” according to the sense of the verse.

[←130]

Rashi explains that of the pit mentioned as regards payment it is plainly written, “the owner of the pit shall pay”; of a pit, however, on public ground the Scripture begins with, “If one open a pit”--and the Mishna treats of one that dug a pit. Hence R. Aqiba’s statement.

[←131]

The Hebrew term is “Nisarah,” and the Talmud explains it to mean a “hair,” from the Hebrew word “saar” (a hair).

[←132]

See Erubin, pages 80-82.

[←133]

Leeser translates “beast.”

[←134]

The Talmud translates the Hebrew term literally, “all,” while Leeser translates it “any.”

[←135]

No commentary explains for what purpose this statement is made here and what the marriage contract has to do with the appraisement of fruit, or why R. Huna finds it necessary to declare that there is a contradiction in Rabh’s decision between his action in practice and the above lecture. It seems to us that this is to be explained thus: The opposition to R. Simeon b. Gamaliel in our Mishna is anonymous, and there is a rule that the author of all the anonymous Mishnas is R. Meir; and R. Meir’s decree regarding the marriage contract agrees with the decision in our Mishna, as his theory as regards the marriage contract is that, although the two estates are separate, still they are considered one, because they belong to one owner; and according to this theory, although the fruit is ripe and no more needs the ground, it can nevertheless not be appraised separate from the ground, because they belong to one owner, and the verse quoted applies. Hence the contradiction. The statement of R. Huna is the only one of its kind in the whole Talmud.

[←136]

Leeser does not translate this word literally.

[←137]

This is explained in Section Moed.

[←138]

R. Meir’s statement and the full discussion of it will be found translated in the forthcoming tracts at the proper place.

[←139]

Because it now belongs to the Sanctuary and not to him who consecrated it, it is considered as if it would be stolen from the house of the Sanctuary.

[←140]

Papa had many children, and the Gemara is not certain who of them was the author of this statement.

[←141]

There were many sages who were worthy of this honor, but circumstances prevented them from getting the diploma. The well-known Samuel was one of them, (See Vol. XI., Tract Baba Metzia.)

[←142]

Seven and a half ris equalled one Palestinian mile.

[←143]

The verse reads: “Yithain . . . Kain yinothen,” of which the literal translation is “should give . . . so should be given and the Talmud takes it as it is, and infers from this that the expression “give” means money, which is given from hand to hand. The preceding verse (19), however, reads: “Osso . . . Yeosseh,” the literal translation of which is, “did . . should be done.” Leeser translates in both instances “done,” according to the sense.

[←144]

The Gemara continues with similar questions: Is it not written, “foot for foot”; and similar answers, “There is a superfluous verse,” etc., are given. It also proceeds to cite other schools and individuals who deduce it from other Scriptural sources, with a lengthy discussion, and finally arrives at the same conclusion, that this law must not be understood literally. We have omitted all this, as all the explanations are as complicated as the one translated in the text. And it seems to us that all those who participated in this discussion well knew that at the time the Thora was given the law was literal in its meaning, as it was also at that time among other nations; but with the change of time it was positively necessary to change this law, and if it could not be deduced from the Scripture it would not be accepted.

[←145]

It probably means the use of a drug as an anodyne or anæsthetic during the amputation.

[←146]

The word “healing” is repeated in the text. Leeser translates it “thoroughly healed”; literally, it would be, “concerning healing he should be healed.”

[←147]

The codifiers of the Halakhoth, as the Alphasi, Maimonides, etc., have decided in accordance with the rule that all undecided questions found in the Talmud must be decided rigorously; i.e., that in both of the above cases the defendant pays for each injury separately and then for the whole body.

[←148]

The text reads “Ish v’ochiv,” which literally means “a man and his brother.” Leeser, however, translates it according to the sense, “one with the other.”

[←149]

Here follows a discussion as to whether the usufruct is equivalent to the principal, which is omitted here, but will be translated in its proper place.

[←150]

According to others, it means “boxing the ear.” We, however, have translated it in accordance with our method, after the second interpretation of Rashi.

[←151]

One manah of Zur is 25 selas, each sela containing four zuz. A country manah is one-eighth of a manah of Zur, and also contains 25 selas, so that a country sela is one-half of a zuz.

[←152]

From here to end of paragraph is transferred from Chap. IV., Text, 36b.

[←153]

The Talmud divides this verse into two parts, which in reality reads well as it is, and Rashi tried to explain it that because there are a few superfluous words it ought to read “only a tree that bears no fruit,” why, then, the words, “which thou knowest”? And this is the reason why the Talmud infers from this that even a fruit-tree may be cut off when needed.

[←154]

The following series of questions is placed here because of the verse quoted, “and Abraham prayed unto God,” etc., from which Rabba bar Mari delivered his statements in the text differing from Rabha; and at the same time he mentions here all other statements which each of them deduces from different verses, and casually also others. They wanted also to find the origin of even the ordinary adages of the people in the Holy Writ, on account of what is stated elsewhere in the Talmud, that there is nothing in the world for which there can be found no hint in the Scripture. (See vol. viii., Tract Taanith, p. 9.)

[←155]

This name is correct, according to Alphasi, as the name mentioned in the text would be incompatible with the time in which R. Assi b. Hama lived.

[←156]

R. Johanan explains that our Mishna speaks of when there was a question and an answer between the plaintiff and the defendant, and it was not clear whether it meant yea or nay; the Boraitha, however, speaks of when the plaintiff made the condition that the defendant should be free without any question by the other. This is Rashi’s explanation. The text, however, of R. Johanan’s saying mentioned above seems to us to be very simple: It must be investigated how the condition is to be understood--whether it is in the absolute affirmative form or in the form of a question.