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Week 93 - Shabbat - 8 September 2001

BAVA KAMMA: CHAPTER 4: MISHNAH 8

If an ox was going forth to be stoned, and its owner dedicated it, it is not dedicated; if he slaughtered it, its meat is forbidden. If its owner dedicated it before its sentence was completed, it is dedicated. And if he slaughtered it, its meat is permitted.

Kehati

Our mishnah teaches when the authority and ownership of the owner of an ox which has killed a man ceases.

If an ox - which had killed a man - was going forth to be stoned - after its sentence had been passed, and its owner dedicated it - to the Temple treasury, it is not dedicated - since its owner has no rights in it whatsoever (Hameiri); if he slaughtered it - first, its meat is forbidden- as it is written, "The ox shall be surely stoned, and its flesh shall not be eaten" (Ex. 21:28): the Torah did not have to write that its flesh was forbidden, since its carcass is unfit for eating after being stoned. The passage "and its flesh shall not be eaten" was stated in order to teach that if the owner made haste to slaughter the animal before the execution of the death sentence, the animal's meat is forbidden furthermore, its meat is not only forbidden for eating, but for any benefit as well since the use of "shall not be eaten" (lo ye'akhel, passive nifal construction) throughout the Torah refers to the prohibition of both eating and benefit.

If its owner dedicated it - his ox, which had killed a man - before its sentence - to be stoned - was completed, it - the ox - is dedicated - and whoever benefits from it is guilty of me'ilah, unlawful use of Temple property, and the court nevertheless sentences the ox to be stoned. Hameiri writes that the court forces the owner to redeem the ox for its value and to give the money for Temple upkeep; after the ox has been redeemed, the court stones it; And if he slaughtered it - before the sentence of stoning has been passed, its meat is permitted - to be eaten (Rambam).

BAVA KAMMA: CHAPTER 4: MISHNAH 9

If he delivered it to an unpaid custodian, or to a borrower, to a paid guardian or to a hirer, these enter in place of the owner: mu’ad pays full damages, and tam pays half-damages. If its owner tied it with a rope, or locked it in properly, and it went out and caused damage, whether tam or mu’ad, he is liable; this is the opinion of Rabbi Meir. Rabbi Yehudah says, tam, is liable and mu’ad, is exempt, as it is written, "And its owner did not guard it" (Ex. 21:36), and this one is guarded. Rabbi Eliezer says, It can only be guarded by a knife.

Kehati

If he - the owner of an ox - delivered it - his ox - to an unpaid custodian - who does not receive wages for looking after it, or to a borrower - who uses the ox without paying rental, to a paid guardian - or to a hirer - who pays the owner money in exchange for the use of his ox (these are the four kinds of guardian whose laws are discussed in detail in Tractate B. M. 7:8), these enter in place of the owner - to be liable for the damages caused by the ox: if the ox were - mu’ad - the guardian - pays full damages, and - if the ox were - tam he pays half-damages - while the owner is exempt, since each of these custodians ordinarily accepts upon himself to guard the ox so that it will neither incur nor cause damage. I.e., if the ox is injured, they pay the damage to the owner and they engage in litigation with the injurer; and if the ox causes damage, they are liable for its damages (Hameiri).

If its owner tied it - the ox - with a rope- around its neck, by which it is pulled, or locked it in properly - with a door which can withstand an ordinary wind, which is considered to be inferior guarding, and it - the ox - went out and caused damage, whether tam or mu’ad, he is liable - for the damage it causes; this is the opinion of Rabbi Meir - who holds that its owner is obligated to guard well, i.e., to tie it with a metal chain, which it cannot break, or to lock it behind a door which can withstand even an unusually strong wind.

Rabbi Yehudah says - if the ox is - tam, he is liable - for half-damages, and - but if the ox were - mu’ad, he is exempt, as it is written - regarding a shor mu’ad, "and its owner did not guard it" - meaning that it was not guarded at all, but if the ox had been guarded, even in an inferior manner, then is exempt; Hameiri writes, "The reason seems to me to be that since it is known be mu’ad, people also should guard themselves against it"; and - the ox of - this one is guarded - and he therefore is exempt. The Gemara explains that he is exempt only from full damages, but at any rate he is obligated to pay half-damages, according to the law of shor tam, since "its legal position with regard to its being a tam remains unaltered."

Rabbi Eliezer says, It - a mu’ad can only be guarded by a knife - he must slaughter it; even if he guarded it well, he is liable.

There are three opinions on this issue: (1) Rabbi Meir holds that he is liable for inferior guarding, and exempt when he guarded it well; (2) Rabbi Yehudah holds that he is exempt even for inferior guarding regarding its status of mu’ad, but is liable due to its status of tam, until he guards it well; (3) Rabbi Eliezer holds that even with the best kind of guarding he is liable for a shor mu’ad. The law is in accordance with Rabbi Yehudah. Another opinion in the Gemara holds that even Rabbi Eliezer holds that he is exempt if it was guarded well, but he holds that the person has not fulfilled his duty to heaven until he has slaughtered the ox, in order to remove the cause of damage, as a baraita teaches: "From where do we learn that a person should not raise a bad dog in his house? As it is written, `you shall not bring blood upon your house' (Deut. 22:8)."

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