Torah Community Connections

Week 93 - Monday - 3 September 2001

BAVA KAMMA: CHAPTER 3: MISHNAH 9

If an ox worth a maneh gored an ox worth two hundred, and the carcass is not worth anything, he takes the ox. If an ox worth two hundred gored an ox worth two hundred, and the carcass is not worth anything, Rabbi Meir says: Concerning this the verse says, "Then they shall sell the live ox, and divide its price" (Ex. 21:35). Rabbi Yehudah said to him, and so is the law: you have fulfilled "Then they shall sell the live ox, and divide its price," but you have not fulfilled "and the dead also they shall divide." And which is this? This is an ox worth two hundred that gored an ox worth two hundred, and the carcass is worth fifty zuz - for this one takes half of the live one and half of the dead one, and this one takes half of the live one and half of the dead one.

Kehati

The Torah writes, "And if one man's ox hurt another's, so that it dies, then they shall sell the live ox, and divide its price, and the dead also they shall divide" (Ex. 21:35). This verse teaches that the owner of a shor tam pays half-damages, from its body. Our mishnah discusses how this is done.

If an ox - a tam - worth a maneh - 100 zuz - gored an ox worth two hundred - zuz, and the ox which was injured died, and the carcass is not worth anything, he- the owner of the injured ox - takes the ox - which gored, for the owner of the tam pays half damages from its body, and this ox is worth half the amount of the damage it caused.

If an ox worth two hundred - zuz - gored an ox worth two hundred - and killed it, and the carcass is not worth anything - and half of the damage is equivalent to half the value of the ox which caused it, Rabbi Meir says, Concerning this the verse says, "Then they shall sell the live ox, and divide its price" (Ex 1:35) - i.e.. the Torah refers to such a case, and it teaches that the live ox is sold and the injured party and the injurer divide its price between them, with the injured party thereby receiving half of the damage he incurred.

Rabbi Yehudah said to him - to Rabbi Meir, And so - in fact - is the law - since the damager pays the injured party 100 zuz, which are half of the damage he has incurred, but the Torah did not refer to this case, since according to you, you have fulfilled "Then they shall sell the live ox, and divide it price," but you have not fulfilled "and the dead also they shall divide" – i.e., you have interpreted the first half of the verse, "Then they shall sell the live ox, an divide its price," but you have not interpreted the second half, "and the dead also they shall divide."

And which is this - ox that is mentioned in the Torah? This is the case of a ox worth two hundred that gored an ox worth two hundred, and the carcass is worth fifty zuz - with the damage being 150 zuz - for this one takes half of the live one and half of the dead one, and this one takes half of the live one and half of the dead one - i.e., each one receives 125 zuz, thereby incurring a loss of 75 zuz, which is half of the damage. The Gemara explains that, according to Rabbi Meir, the passage "and the dead also they shall divide" teaches that only the depreciation caused by the death is compensated to the extent of one half from the living ox, i.e., that the carcass belongs solely to the injured party, and the half-damages refer only to the depreciation in value of the ox at the time it died; if the value of the carcass depreciated between the time of death and the time of litigation, the depreciation is the injured party's alone. Even Rabbi Yehudah holds this; he and Rabbi Meir disagree only in the case where the carcass appreciated in value, e.g., if it was not worth anything at the time of death, but later appreciated in value according to Rabbi Meir, the appreciation of the carcass belongs solely to the injured party, just as depreciation of the carcass is his loss. This is the meaning of Rabbi Meir's statement in our mishnah, "Concerning this it was said, ‘Then they shall sell the live ox, and divide its price,"' i.e., the damager is obligated to pay to the injured party the value of half his damage from the price of the live ox, and he does not deduct anything for the appreciation of the carcass.

Rabbi Yehudah, on the other hand, holds that even the damager takes half of the appreciation of the carcass, and when he comes to pay the injured party his half damages, he deducts half of the amount which the carcass appreciated between the time of death and the time of litigation; this is how Rabbi Yehudah interprets the passage, "and the dead also they shall divide": each one takes half of the price of the living and the dead oxen, i.e., they divide between them the amount by which the carcass appreciated. The law is in accordance with Rabbi Yehudah.

It follows from this that if an ox gored an ox worth 200 zuz and killed it, and the carcass is worth 100 zuz, and the carcass later appreciated in value and was worth 120 zuz at the time of litigation, according to Rabbi Yehudah the damager is obligated to pay to the injured party only 40 zuz, since he initially owed him 50 zuz (half-damages), and he now deducts 10 zuz, which is half of the appreciation in value of the carcass. Rambam, however, writes that the damager is obligated to pay the injured party 45 zuz since, if a shor mu’ad gores, he pays him 90 zuz, since even in the case of a mu’ad half of the appreciation of the carcass is deducted from the full amount of damages (100 zuz) which he initially owed him. Accordingly, in the case of a tam he pays 45 zuz, which is half of the payment for the mu’ad (see Tosefot Rabbi Akiva Eiger; Yam shel Shlomo).

The Gemara explains as Rabbi Yehudah's reason for holding that the damager takes a portion of the appreciation of the carcass that the Torah took pity on the damager, so that he would not pay excessively for the damage caused by his ox. If, however, the carcass appreciated so much from the time of death to the time of litigation that half of the appreciation is more than the damage, we do not rule that the damager takes half of the appreciation, since it is written concerning a mu’ad, "he shall surely pay" (Ex. 21:36), which is interpreted to mean that the owner pays, and does not take. I.e., in such a case the owner of the ox which caused the damage is not entitled to profit. In any event, in such a case he is exempt from paying for the damage caused by his ox.

The reason why all authorities rule, concerning depreciation of the carcass, that it belongs solely to the injured party, as was explained above, is that the Torah states, concerning mu’ad, "and the dead animal shall be his own," from which we learn that the depreciation of the carcass in the case of a mu’ad is solely the affair of the injured party; Payments in a case of tam are under no circumstance more severe than those concerning mu’ad, and the damager is therefore not to be obligated to pay half of the depreciation of the carcass (B. K. 34b).

BAVA KAMMA: CHAPTER 3: MISHNAH 10

There is one who is liable for an act of his ox and exempt for his own act, exempt for an act of his ox and liable for his own act. If his ox caused indignity, he is exempt, and if he caused indignity. He is liable. If his ox blinded the eye of his bondman, or knocked out his tooth, he is exempt; if he blinded the eye of his bondman, or knocked out his tooth, he is liable. If his ox injured his father or his mother, he is liable; and if he injured his father or his mother, he is exempt. If his ox set fire to a stack of corn on the Sabbath, he is liable; and if he set fire to a stack of corn on the Sabbath, he is exempt, since he has made himself liable with his life.

Kehati

Our mishnah lists a number of differences between an ox which causes damage and a man who causes damage.

There is one who is - sometimes - liable for an act of his ox and exempt for his - doing the very same - act - the opposite may also occur: he is - exempt for an act of his ox and liable for his - doing the very same - act.

How is this so? If his ox caused indignity - to a person, he is exempt - from paying for insult, and also for the other payments (excluding that for injury), as the mishnah states, "In this (the law for) a man is more stringent than (that for) an ox, for a man pays injury, pain, healing, loss of time, and shame ... and the ox pays only injury" (8:1, below). This is learned from the passage, "and if a man maims his neighbor" (Lev. 24:19), i.e., a man causing this to his neighbor, and not an ox doing this, and if he caused indignity, he is liable - the Gemara explains that our mishnah specifically mentions indignity, in order to teach that a person's obligation concerning insult is similar to that concerning the act of his ox: just as his ox intended to cause injury and not indignity, similarly if he intended to cause injury, even if he did not intend to cause indignity, he is liable for insult, since whoever intends to cause injury is as one who intends to cause indignity.

If his ox blinded the eye of his bondman, or knocked out his tooth, he is exempt - from setting him free; if he blinded the eye of his bondman, or knocked out his tooth, he is liable - to free him, as it is written, "And if a man smites the eye of his bondman, or the eye of his bondwoman, and destroys it, he shall let him go free for his eye's sake. And if he knocks out his bondman's tooth, or his bondwoman's tooth, he shall let him go free for his tooth's sake" (Ex. 21:26-27). If his ox injured his - the owner's - father or his mother, he is liable - to pay their injury; and if he injured his father or his mother, he is exempt - from the payments, since whoever strikes and wounds his father or mother is liable for the death penalty (Ex. 21:15), and a person is not liable for both the death penalty and monetary payment for a single act.

If his ox set fire to a stack of corn on the Sabbath, he is liable - for half-damages, since in any event this is a change from the norm, for it is not natural for an ox to set fire to standing corn; and if he set fire to a stack of corn on the Sabbath, he is exempt - from paying, since he rendered himself liable for his life - for desecrating the Sabbath. The Gemara explains that even if he did this unintentionally (shogeg), in which case he would not be liable to the death penalty, he is free. This is so since for such an act, done with intention (mezid) after having been warned he would be liable for the death penalty. Seeing that a person does not become liable for both the death penalty and payments, then even when he is shogeg he is exempt from paying. This is learned from the passage, "And the one who kills a beast shall make recompense; and the one who kills a man shall be put to death" (Lev. 24:21): just as the Torah did not make a distinction with regard to the person who kills a beast as to whether he was shogeg or mezid, i.e., between an intentional and an unintentional act, to exempt him from paying money, but rather to obligate him to pay money, similarly the Torah does not make a distinction concerning the person who kills a man as to whether he was shogeg or mezid, to obligate him to pay money, but rather to exempt him from paying money. Our mishnah cites the case of an ox setting fire to a stack of corn on the Sabbath, even though, for an ox, there is no difference between Sabbath and weekday, in order to teach that the law exempts a man who sets fire to a stack of corn on the Sabbath from payments, just as it obligates the owner of the ox for payments, i.e., even if commission of the act was shogeg (Tosafot, Nimukei Yosef).

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