The sugya is Bava Kama 13b-14a. According to Rabbinic interpretation of Exodus 21: 35-36 and 22: 4, if damage is done by a goring ox—keren, ‘horn’—the owner has to pay only half the damage and the same law applies to every form of malicious or unusual damage done by any animal e.g. biting, kicking or pushing. But if an animal eats produce—shen, ‘tooth’—or tramples of produce—regel, ‘foot’—the owner is liable to pay the full amount of the damage. However, in another respect, keren is treated more severely than shen and regel. The owner of the animal, if the damage was done by keren, is liable even if the damage was done in the public domain whereas the owner is only liable for damage done by shen and regel in the private domain i.e. if A’s animal eats or tramples down B’s produce in B’s field, not if it is done in the public domain. This is because of shen and regel Scripture states: ‘and it feed in another man’s field’ (Exodus 22: 4). There are thus two differences here between keren on the one hand and shen and regel on the other; 1) For keren there is only liability for half the damage whereas for shen and regel there is liability for the full damage; 2) There is liability for keren even in the public domain whereas there is no liability for shen and regel in the public domain.
Supposing A and B have a courtyard in joint ownership hatzar ha-shutefin and A’s animal eats or tramples down B’s produce. It can be argued that this is analogous to A’s animal eating B’s produce in the public domain and A is not liable. Or it can be argued that A is liable since although he has a right for his animal to be there, as in the public domain, yet the domain belongs as much to B as to A and to this case the verse: ‘in another man’s field’ applies (unlike the public domain which belongs to all the public and is exclusive to no single individual). This matter is debated between the Babylonian Amora, R. Hisda in the name of his teacher Avimi, and the Palestinian Amora, R. Eleazar, both of the third century. R. Hisda holds that there is liability for shen and regel in the hatzar ha-shutefin but R. Eleazar holds that there is no liability for shen and regel in the hatzar ha-shutefin. The sugya opens with a statement of this debate and then, at first, elaborates on this by referring to the Mishnah. But our chief concern here is with the part of the sugya that continues on the next page, Bava Kama 14a.
The Talmud raises an objection to R. Eleazar’s view from a Baraita taught by R. Joseph. The Baraita reads: ‘There is liability for shen and regel in a hatzar ha-shutefin and at an inn (where there is right of access to all the guests)’. This shows that R. Hisda is right and refutes R. Eleazar. To this the Talmud retorts: ‘R. Eleazar will say to you: “And according to your reasoning (ve-tishara) do not the Baraitot disagree?”’ i.e. R. Eleazar must admit that the Baraita quoted by R. Joseph does disagree with his opinion hut he can produce another Baraita which does agree with his opinion. This Baraita (Tosefta, Bava Kama 1: 9) reads: ‘R. Simeon b. Eleazar used to speak of four rules in connection with damages. Where the domain belongs to the nizzak (the victim) he (the mazzik, the one whose animal does the damage) is liable in every respect. Where the domain belongs to the mazzik he is not liable for anything (since the animal or the produce damaged has no business to be there). Where the domain belongs to both of them, for example, a hatzar ha-shutefin or a meadow (belonging to all the farmers in joint ownership), he is not liable for damage done by shen and regel but is liable to pay half the damage for damage done by goring, pushing, biting, crouching, or kicking (all examples of keren). Where it belongs to neither, for example, a courtyard that does not belong to either of them, he is liable for damage done by shen and regel and is liable to pay half the damage for damage done by goring, pushing, biting, crouching or kicking’. Actually the Baraita formulates it that in cases of keren the owner has to half half the damage where it is tam but full damage where it is mu’ad. We have paraphrased the Baraita and have omitted this distinction to avoid undue complications. Thus while it is true that R. Joseph’s Baraita states that there is liability for shen and regel in a hatzar ha-shutefin and this, as above, refutes R. Eleazar, R. Simeon b. Eleazar states the opposite, that there is no liability for shen and regel in a hatzar ha-shutefin, and R. Eleazar will follow this Baraita and reject the Baraita of R. Joseph.
Thus far we have suggested that the two Baraitot are in conflict. R. Joseph’s Baraita has the same opinion as that held by R. Hisda, that there is liability for shen and regel in a hatzar ha-shutefin, while R. Simeon b. Eleazar’s Baraita has the same opinion as R. Eleazar, that there is no liability for shen and regel in a hatzar ha-shutefin. But the Talmud asks: ‘Are they in contradiction?’ i.e. cannot an attempt now be made to show that, despite appearances, there is, in fact, no conflict between the two Baraitot. And the Talmud does come up with a way to resolve the apparent contradiction. The two Baraitot do not disagree, both of them holding that there is no liability for shen and regel in a hatzar ha-shutefin. But the Baraitot deal with two different cases, hence the difference in law. The Baraita of R. Simeon b. Eleazar deals with the case of a courtyard of joint ownership for all purposes, both to keep produce there and to keep oxen there. Consequently, here, as R. Eleazar states, there is no liability for shen and regel. R. Joseph’s Baraita, on the other hand, deals with a courtyard held in joint ownership only for the right both have to bring their produce there but only the nizzak, not the mazzik, has the right to bring oxen there. Consequently, here even R. Eleazar will agree that the mazzik is liable since so far as the mazzik’s ox is concerned it is the ‘field of another man’. The Talmud adds that this resolution of the contradiction finds support in the Baraitot themselves since in R. Joseph’s Baraita the hatzar ha-shutefin is compared to the inn (to which oxen have no access) while the other Baraita uses the comparison with the meadow (to which the oxen of both the mazzik and the nizzak have access).
The fourth century Amora, previously in Babylon later in Palestine, R. Zera, objects to this. Let it be, argues R. Zera, that the Baraita of R. Joseph deals with a courtyard to which the mazzik has no access for his oxen yet since he has access for his produce such a courtyard surely does not qualify as ‘the field of another’. To this Abbaye replies that since the mazzik has no access for oxen it is called ‘the field of another’.
The sugya adds that the fifth century Babylonian Amora, R. Aha of Difti, asked Ravina, shall we say that just as the Baraitot have now been made to agree, the Amoraim, R. Hisda and R. Eleazar, also can he made to agree i.e. when R. Hisda states that the mazzik is liable he refers to a courtyard to which the mazzik has no access for his oxen and when R. Eleazar states that the mazzik is not liable he refers to where the mazzik does have access for oxen as well as for produce. Indeed, Ravina replies, this can be said. And even if R. Hisda and R. Eleazar do disagree it can he said that it is not on the normal case (where both have access for oxen as well as for produce, where both R. Hisda and R. Eleazar agree that he is not liable) but only where the mazzik has no access for his oxen. The debate will then be that R. Hisda will agree with Abbaye’s reply—that since there is no access for oxen it is called ‘the field of another’—whereas R. Eleazar will agree with R. Zera’s objection that it is not so called.
The pattern of the sugya (with the omission of the portion on the Mishnah, as above) is:
1) hatzer ha-shutefin
–R. Hisda: liable for shen and regel
–R. Eleazar: not liable for shen and regel
2) Refutation of R. Eleazar: Baraita of R. Joseph
–hatzar ha-shutefin and an inn liable for shen and regel
3) R. Eleazar’s reply: do Baraitot not disagree?
4) Baraita of R. Simeon b. Eleazar:
–hatzar ha-shutefin and a meadow not liable for shen and regel
5) Question: are the two Baraitot in conflict?
6) Reply: No: Baraita of R. Simeon b. Eleazar for both oxen and produce hence not liable
–Baraita of R. Joseph for produce but not for oxen hence liable
7) Proof: in Baraita of R. Simeon b. Elezar compared to meadow
–in Baraita of R. Joseph compared to inn
8) Objection by R. Zera: since both can have their produce there it is not the field of another man
9) Abbaye’s reply: since the mazzik has no right to have his oxen there it is the field of another
10) R. Aha of Difti to Ravina: can we say that just as the Baraitot are not in conflict R. Hisda and R. Eleazar are not in conflict? R. Hisda deals with case where there is no right for oxen; R. Eleazar where there is
11) Ravina’s reply: indeed this is so
–but even if they do disagree only in case where the mazzik has no right to bring his oxen there R. Hisda agrees with Abbaye’s reply hence liable because it qualifies as the field of another. R. Eleazar agrees with R. Zera’s objection hence not liable because it does not qualify as the field of another
This is a remarkable illustration of how a Talmudic sugya has been constructed. At first it is stated quite categorically that R. Hisda and R. Eleazar do disagree on whether there is liability for shen and regel in hatzar ha-shutefin and it is on this basis that in 2) to 4) the sugya proceeds (as well as in the section we have omitted). In 5) through to 9) it is still assumed that R. Hisda and R. Eleazar are in conflict but an attempt is made to resolve the apparent conflict between the Baraitot. Then in 10) R. Aha of Difti suggests that perhaps R. Hisda and R. Eleazar never disagreed but deal, as do the Baraitot, with different cases. In 11) Ravina replies either that indeed this is so i.e. so that the original report or statement of R. Hisda and R. Eleazar was in error or they debate the question raised by R. Zera and the reply given by Abbaye. How R. Zera and Abbaye offer their comments in the course of the sugya so that when R. Aha of Difti and Ravina make their comments they must have had before them the whole of our sugya from 1) through to 9)! But, then, R. Aha of Difti and Ravina did not surely record their own words so that this must have been added later still—by the final editors. We thus have before us clear evidence of three stages of redaction:
1) The earlier sugya upon which R. Aha of Difti and Ravina comment
2) The comment of R. Aha of Difti and Ravina
3) The final editing in which 1) was added to 2) to complete the sugya.