Chapter 1 · Arba'ah Avot

Appraising Remains: Damages, Theft, and Borrowing

Lesson 4 of 50 25 min

This sugya investigates whether a borrower who damages an item returns the broken pieces and pays the difference, or must replace it with a whole new item.

Lesson goals

01Restate the source in your own words.
02Identify the central distinction and explain its significance.
03Apply the distinction in the exercise without adding a ruling absent from the source.

Source and decoding - Bava Kamma 11a

Bava Kamma 11a

אָמַר שְׁמוּאֵל: אֵין שָׁמִין לֹא לְגַנָּב וְלֹא לְגַזְלָן, אֶלָּא לְנִזָּקִין. וַאֲנִי אוֹמֵר: אַף לְשׁוֹאֵל. וְאַבָּא מוֹדֶה לִי. אִיבַּעְיָא לְהוּ: הָכִי קָאָמַר – אַף לְשׁוֹאֵל שָׁמִין, וְאַבָּא מוֹדֶה לִי; אוֹ דִלְמָא, הָכִי קָאָמַר – וַאֲנִי אוֹמֵר: אַף לְשׁוֹאֵל אֵין שָׁמִין, וְאַבָּא מוֹדֶה לִי?

Shmuel said: We do not appraise for a thief or for a robber, but for damages. And I say: Even for a borrower, and Abba agrees with me. It was inquired of them: Did he say this – even for a borrower we appraise, and Abba agrees with me; or perhaps, did he say this – and I say: even for a borrower we do not appraise, and Abba agrees with me?

This sugya addresses the appraisal of damaged remains: when an item is broken or an animal killed, does the owner retain the fragments while the liable party pays only the reduction in value ('we appraise'), or must a complete, undamaged replacement be provided? Shmuel rules that we appraise for damages, but not for a thief or robber. The Gemara investigates Shmuel's position on a borrower: do we appraise fragments for him, or not? Ultimately, citing an incident where Rav retracted following an objection by Rav Kahana and Rav Assi, the Gemara concludes that we do appraise for a borrower.

Terms to decode

שמין

appraising the value of the carcass or broken fragments in court to deduct from damages

שואל

a borrower who receives an item for use without payment

נזיקין

tort laws concerning compensation for property damage

Before moving on

Insight

This lesson is a study framework, not a halachic ruling. Check everything in the sources, and bring practical questions to a rabbi.

The sugya's flow - from Mishnah to conclusion

01·Mishnah / BaraitaBava Kamma 11a
אָמַר שְׁמוּאֵל: אֵין שָׁמִין לֹא לְגַנָּב וְלֹא לְגַזְלָן, אֶלָּא לְנִזָּקִין. וַאֲנִי אוֹמֵר
Shmuel states that we do not appraise remains for a thief or a robber, but only for damages, and that he says this applies to a borrower as well, with Rav agreeing.
02·The Gemara asks
The Gemara inquires into Shmuel's intent: did he mean that we appraise remains for a borrower as well, or that we do not appraise for a borrower?
03·Raya
The Gemara brings proof from an incident where a man broke a borrowed axe and Rav ordered him to pay a whole, undamaged axe, implying we do not appraise for a borrower.
04·Kushya
The Gemara refutes this proof: Rav Kahana and Rav Assi challenged Rav asking 'Is this the law?!', and his silence proves he retracted and agreed we appraise for a borrower.
05·Conclusion of the sugya
The Gemara concludes the ruling: we do not appraise for a thief or a robber, but we do appraise for a borrower in accordance with Rav Kahana and Rav Assi.

Practice

Explain why, according to Rav Kahana and Rav Assi, a borrower is treated like a tortfeasor rather than a robber regarding appraising fragments.

Lesson wrap-up

The sugya distinguishes torts and borrowing from theft: while a tortfeasor and a borrower return the damaged fragments and pay the deficit, a thief and a robber do not receive an appraisal of broken remains.

Check your understanding

Test yourself before marking the lesson complete.

Question 1 of 4

What is the practical meaning of 'appraising for damages' (שמין לנזיקין)?

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