Bava Kamma 62a
בבא קמא ס״ב ע״א
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Topic
Paying for hidden or unexpected items destroyed by fire or other damage, when the owner's oath is believed, and the difference between a גזלן and a חמסן.
Overview
The ברייתא limits the argument between רבי יהודה and the חכמים about hidden items burned in a stack. It applies only when the fire spread from the burner's own land, and it lists cases where even רבי יהודה agrees the burner pays only for what he agreed to or could see. רבא rules that a woman given a gold דינר described as silver pays for gold if she damages it herself, but only for silver if she was careless. רב מרדכי says this rule is already clear from the wheat-and-barley ברייתא. שמואל explains that, according to רבי יהודה, the owner of burned hidden items may swear and collect like a robbery victim (תקנת נגזל). אמימר asks whether the same applies to the victim of a מסור, and the question ends with תיקו. In the case of a safe kicked into a river, a claim of coins is believed, but whether a claim of a pearl is believed stays תיקו. A claim of a silver goblet is believed with an oath only from a wealthy or trusted person. Finally, רב אשי explains that a חמסן pays for what he takes while a גזלן does not, and that a forced sale is valid only when the seller says "רוצה אני."
Opening lines
בַּמֶּה דְּבָרִים אֲמוּרִים –
In what case are these words said?
בְּמַדְלִיק בְּתוֹךְ שֶׁלּוֹ
When one kindles a fire on his own property
וְהָלְכָה וְדָלְקָה בְּתוֹךְ שֶׁל חֲבֵירוֹ,
and it spread and burned on his friend's property.
אֲבָל מַדְלִיק בְּתוֹךְ שֶׁל חֲבֵירוֹ –
But one who kindles a fire on his friend's property
The steps (24)
- StatementLimiting the argument to a fire that spread from one's own land
- Statementרבי יהודה agrees about a stack placed in a borrowed spot with hidden items
- StatementWheat and barley switched or mixed: pay only for barley
- Statementרבא: a gold coin given as silver that she damages herself
- Statementרבא: if she was only careless, she pays for silver
- Proofרב מרדכי: רבא's rule is already clear from the ברייתא
- Statementרב heard something about רבי יהודה but forgot what
- Responseשמואל explains: the robbery-victim rule applies to fire
- Questionאמימר asks whether the rule extends to a מסור
- RejectionThe question does not apply to those who reject indirect-damage liability
- QuestionThe real question: for those who judge indirect damage
- ConclusionThe question is left unresolved
- StatementA man kicks his friend's safe into a river
- Questionרב אשי asks what the law is in such a case
- ChallengeIsn't this already answered by our משנה?
- ResolutionThe question is about a pearl, not coins
- QuestionDo people keep pearls in a safe?
- ConclusionThe pearl question stays unresolved
- QuestionWhat about a silver goblet in a burned building?
- ResponseIt depends on who the claimant is
- QuestionHow is a גזלן different from a חמסן?
- ResponseA חמסן pays; a גזלן does not
- ChallengeIf he pays, why call him a robber?
- ResolutionIt depends on whether the seller said "I want"