Bava Kamma - Daf 28
- שור שעלה ע"ג חבירו להורגו
A proof is suggested that one may enforce the law himself: שור שעלה ע"ג חבירו להורגו – If an ox went on top of another to kill it, ובא בעל התחתון ושמט את שלו – and the lower [ox’s] owner came and pulled out his ox from underneath, causing the upper ox to fall and die, he is exempt from paying. The Gemara assumes that the Baraisa is discussing where the upper ox was a mu’ad, and the victim’s owner would have collected full damages if his ox had been killed. Still, he is exempt when taking the law into his hands!? The Gemara answers that the Baraisa is discussing a tam, where the owner could only collect half-damages. This answer is challenged from the Baraisa’s second case, which says if he pushed off the upper ox, killing it, he is liable. If the ox is a tam, and he is risking a loss, why is he liable? The Gemara answers: שהיה לו לשמטו ולא שמטו – He should have pulled out [his ox], which was less likely to harm the upper ox and he did not pull it out.
- Moving a public path through one’s field to the side of the field
A Mishnah teaches that if a public path was passing though one’s field, and the owner repossessed the path and gave the public a path on the side of his field, מה שנתן נתן – what he gave, he gave (i.e., the new path belongs to the public), ושלו לא הגיעו – and the path he took as his does not become his. The Gemara assumes the exchange was effective (which is why the new path is theirs), but he lacks the means of preventing people from using the old path. But if one may enforce the law himself, לנקוט פזרא וליתיב – let him take a staff and sit by the path to strike anyone using it!? Three answers are given for why the exchange was not effective: (1) It is a decree lest one exchange with a crooked (less convenient) path. (2) The case is where he gave them a crooked path. (3) Any path provided to the public is “crooked,” because it is closer for some but further for others. The Gemara asks, if the exchange was not valid, why can he not reclaim the new path? It answers: מיצר שהחזיקו בו רבים – a boundary which the public took possession of for a path, אסור לקלקלו – it is forbidden for the owner to ruin it.
- Machlokes about damages from slipping on water (if an owned hazardous object is bor or שור)
The next Mishnah states: נשברה כדו ברה"ר – If one’s jug broke in רשות הרבים, והוחלק אחד במים – and someone slipped on the water, או שלקה בחרסית – or was injured by a shard of the jug, חייב – [the owner] is liable. Rav explains the owner is only liable שטינפו כליו במים – where his clothes were soiled by the water, but not for the victim’s personal injuries, because קרקע עולם הזיקתו – the [ownerless] ground harmed him. Rav holds (on Daf 50) that one is not liable for bor damages from impact with the ground, which is not his. He is only responsible for damages directly from the water, which he owns.
Shmuel responded that one’s liability for a hazardous object left in public is derived from bor. Since bor is exempted from damages to utensils ("חמור" ולא כלים – for a donkey but not for utensils), he cannot be liable for the victim’s clothing. Rather, the liability is for the person’s injuries, in keeping with his position on Daf 50 that one is liable for impact with the ground caused by his bor. Rav, however, counters that hazardous objects which belong to him are in the category of שור, and liable for utensils.
