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Leiden Yerushalmi manuscript, Bava Kamma 1:1

If Reuven digs or opens a deep pit and Shimon’s ox falls to its death, Reuven must make restitution, and the animal’s carcass is “his,” וְהַמֵּ֖ת יִֽהְיֶה־לּֽוֹ (Shemot 21:34). The simple meaning is that “his” refers to Reuven. Reuven pays the full amount of a live ox and keeps the carcass, so that Shimon is made whole. That is how Chizkuni and Bechor Shor explain it. The same situation two verses later, regarding the ox who regularly gores, that he pays an ox for the ox, וְהַמֵּ֖ת יִֽהְיֶה־לּֽוֹ. However, following Bava Kamma 11a, we note that לו, “his,” has an ambiguous antecedent, and could also refer to Shimon. This reading, followed by Rashi and Ibn Ezra, is that we assess the value of the carcass and deduct it from the value of the live ox. Reuven pays this money, together with the carcass, to Shimon, who is thereby made whole. In this way, we’re introduced to the concept of assessment, where one need not replace a damaged item with a new item, but just the depreciation in value, which is called שָׁמִין. Then, we see the following:

א) אָמַר שְׁמוּאֵל: אֵין שָׁמִין לֹא לְגַנָּב וְלֹא לְגַזְלָן, אֶלָּא לְנִזָּקִין. ב) וַאֲנִי אוֹמֵר: אַף לְשׁוֹאֵל. ג) וְאַבָּא מוֹדֶה לִי

“(a) Shmuel says: We don’t assess for a thief or a robber (but the robber would keep the carcass/damaged item and pay the full price), only for damages. (b) And I say, even a borrower. (c) And Abba admits to/agrees with me.”

Then, אִיבַּעְיָא לְהוּ, a group of Amoraim or perhaps Savoraim debated the meaning of אַף לְשׁוֹאֵל. Does Shmuel mean that they assess even for a borrower, or that they don’t assess even for a borrower? Does אַף expand on the גַנָּב or on the נִזָּקִין?

“Abba” refers to Rav, for that was his given name, so the Talmudic Narrator relates an incident involving Rav. Reuven borrowed Shimon’s ax and broke it. Rav ruled that Reuven should pay for a full-fledged ax. Thus, Rav agrees they do not assess for a borrower. However, the Gemara points out that Rav Asi (of Hutzal) and Rav Kahana said to Rav, “is this indeed the halacha?” and he was silent. Taking silence as admission/retraction, Rav (and therefore Abba) would agree with Shmuel that they do assess for a borrower. Therefore, Shmuel also says that they do assess.

Who Is I? Who Is Abba?

While the Bavli is clear that Abba refers to Rav, Shmuel’s contemporary, the parallel Yerushalmi (Bava Kamma 1:1) isn’t so sure. That reads:

א) רַב יְהוּדָה בְשֵׁם שְׁמוּאֵל. אֵין שָׁמִין לֹא לַגַּנָּב וְלֹא לַגַּזְלָן וְלֹא לַשּׁוֹאֵל אֶלָּא לִנְזָקִין. ב) וַאֲנִי אוֹמֵר אַף לַשּׁוֹאֵל אֵין שָׁמִין. ג) וְאַבָּא מוֹדֶה לִי. ד) וּמָאן הוּא אַבָּא. רִבִּי אוֹ רַבָּה בַּר אֲבוּהַ? ה) אָמַר רַב חִסְדָּא. נַעֲשֶׂה עִיקָּר טְפֵילָה

Vatican 116 manuscript, Bava Kamma 11a

Now, in (a) it’s second-generation Rav Yehuda (bar Yechezkel) citing Shmuel, rather than Shmuel speaking directly. In (b) it’s an explicit “we do not assess” for the borrower, running contrary to the Bavli’s conclusion. In (c) Abba again admits. In (d) the Gemara wonders whether “Abba” refers to first-generation Rav (for Ribbi is a typo), or to second generation Rabba bar Avuah (for Rabba is a contraction of ר’ אבא). This doubt doesn’t exist in Bavli. Finally, in (e) third-generation Rav Chisda says “the primary has been made secondary”, which is cryptic and can either be understood as attacking Shmuel’s position (and primary and secondary refer to borrowing or damaging), or answering who is primarily vs. secondarily called “Abba.”

Regarding (b), Pnei Moshe and Mareh HaPanim both emend the girsa from אֵין שָׁמִין to שָׁמִין. The Leiden manuscript has אֵין שָׁמִין. Admittedly, Yerushalmi text is rougher and full of scribal errors, but it seems like these commentators have a Bavli bias, and fix the text to match the Bavli’s conclusions. I would approach the question differently. Consider that the Shmuel quote in Bavli was ambiguous and confounded the Stamma (אִיבַּעְיָא לְהוּ), and that even the Bavli’s proof from Rav and the damaged ax was ambiguous, first proving אֵין שָׁמִין and then reversed to prove שָׁמִין. Rav’s silence in the face of objection might also be ambiguous. In contrast, the Yerushalmi quote is unambiguous, and it is a quote rather than a Stammaic interpretation. The Yerushalmi reading of אֵין שָׁמִין should win.

Further in (b), in וַאֲנִי אוֹמֵר, who is the speaker? “I say” could mean that second-generation Rav Yehuda says this, or that first-generation Shmuel says this? While the Yerushalmi does not explicitly pose this question, it might very well pose it implicitly. Namely, (c) states that “Abba” agrees with “me,” מוֹדֶה לִי, with the same ambiguity. Then, (d) questions whether “Abba” refers to first-generation Rav or second-generation Rabba bar Avuah. An Amora would refer to a contemporary by that person’s first name, but to someone of a prior generation with a title. Rav Yehuda would never call Rav “Abba,” but he might call Rabba bar Avuah “Abba.” (Note we are discounting “Abba” as referring to their own actual fathers. Shmuel’s father was named “Abba bar Abba,” while Rav Yehuda’s father was Rav Yechezkel.”) Thus, the question in (d) is really whether the speaker in (b) is Rav Yehuda or Shmuel.

And I Say

Logically, it seems strange for Shmuel to say both (a) and (b). If in (a), he says that they do not assess for a thief or robber, then he is saying it! Why separate off a borrower in (b) just to say it has the same law? Presumably Rav agrees regarding a thief/robber as well, with the borrower being the innovation. Rashi, bothered by this, explains that (a) is Shmuel describing the current practice in the courts, while (b) is Shmuel’s innovation. Tosafot offer an alternative, noting that the Sheiltot of Rav Achai Gaon have (a) begin אמר שמואל אמר לי אבא. A third possibility is that (a) represents Shmuel channeling an earlier, Tannaitic source. Consider Megillah 30a, which follows citing Shmuel with וְכֵן תָּנָא דְּבֵי שְׁמוּאֵל. As for manuscripts, Hamburg 165 solves this problem by beginning אמ’ שמואל אמ’ רב, conceptually matching the Sheiltot. Vatican 116 tried to solve the problem by beginning it with אמ’ שמואל תנא אין שמין, matching my earlier source suggestion, but then rubs out the word תנא.

A parallel to וַאֲנִי אוֹמֵר is אוֹמֵר אֲנִי, often said by Rabbi Yehuda HaNasi (e.g. Taanit 17a). The same expression is often employed by Rashi (e.g. to Bereishit 8:11), and some point to Rashi tracing his lineage to Rabbi Yehuda HaNasi. However, other Rashi scholars argue that when you see אוֹמֵר אֲנִי, it doesn’t mean that it is Rashi’s personal opinion (as opposed to the earlier sources he often channels). Rather, the text is often missing in some manuscripts, and reflects the opinion of his students who edited his works. They wrote אוֹמֵר אֲנִי to indicate that I (e.g. Rabbi Yosef or Rabbi Shemaya) say this, not Rashi. Similarly, we’d expect Rav Yehuda to designate his own thoughts with וַאֲנִי אוֹמֵר. If Rav Yehuda said it, and “Abba” is Rabba bar Avuah, then the Rav incident in Bavli proves nothing about Shmuel’s position, or rather Rav Yehuda’s position. (We then have Rav Yehuda, Rabba bar Avuah, and what I still maintain is at the least an ambiguous Rav. We don’t have the space here to explore the other cases where Rav rules in this consistent manner and Rav Asi and Rav Kahana object with דִּינָא הָכִי, where Rav replies to validate his approach.)

However, our Bavli has Shmuel speaking directly. Rav Yehuda doesn’t speak, so how could he express “and I say”? Still, consider that Abaye and Rava are speaking nearby, so this may be a Pumbeditan sugya. And, many statements of Rav (and presumably Shmuel) which are stated plainly are really cited by Shmuel. Consider Chullin 44a, which contains positions of Rav and Shmuel. Suddenly, Rami bar Yechezkel, who is Rav Yehuda’s brother, says “Do not listen to those principles that Rav Yehuda, my brother, formulated in the name of Rav.” Rashi (ad loc.) explains that סְתָם שֶׁמְּעַתְּתֵיהּ דְּרָבּ בַּדָּרִי בָּתְרָאֵי רַב יְהוּדָה הֲוָה אֲמַר לְהוֹ בְּבֵי מִדְרְשָׁא, plain statements of Rav in later generations are via Rav Yehuda, who said them in the study hall. In our sugya as well, perhaps Rav Yehuda was the anonymous conduit for Shmuel’s statement.

Rabbi Dr. Joshua Waxman teaches computer science at Stern College for Women, and his research includes programmatically finding scholars and scholastic relationships in the Babylonian Talmud.

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