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Week 93 - Thursday - 6 September 2001

BAVA KAMMA: CHAPTER 4: MISHNAH 4

If the ox of a normal person gored the ox of a deaf-mute, a mental defective, or a minor, he is liable. And of a deaf-mute, a mental defective, or a minor gored the ox of a normal person, he is exempt. If the ox of a deaf-mute, a mental defective, or a minor gored, the court appoints for them an administrator, and testimony concerning them is given before the administrator. If the deaf-mute regained his faculties, the mental defective regained his sanity, or the minor became of age, it returns to the status of tam; this is the opinion of Rabbi Meir. Rabbi Yose says, it retains its status. A stadium ox is not liable to be put to death, as it is written, "If it gores" (Ex. 21:28), and not if it was made to gore.

Kehati

If the ox of a normal person i.e. one in possession of all his faculties gored the ox of a deaf-mute, or the ox of - a mental defective, or a minor, he is liable - to pay damages, since the owner of the ox, at any rate, has all his faculties, and is obligated to guard his ox (Hameiri).

And - if the ox - of a deaf-mute, a mental defective, or a minor gored the ox of a normal person - even though there is an administrator, as long as the ox is tam, nevertheless - he is exempt - from paying damages, for the court does not appoint an administrator for a tam for the purpose of collecting from its body (Gemara). Since the Torah took pity on the owner of the tam so that he should not pay full damages, but only half-damages, and from its body, the Sages accordingly took pity on orphans (Tosafot), and the same law applies for the deaf-mute and the mentally incompetent (see Rashi and Bartenura, who cite another reason).

If the ox of a deaf-mute, a mental defective, or a minor gored - i.e. if it has the status of a goring ox, the court appoints for them an administrator - to guard the ox, and testimony concerning them is given before the administrator - he is warned in the presence of the court to guard the ox; if the ox gored three times while under the control of the administrator, it becomes a mu’ad, and if it once again gores, a fourth time, he pays from the choicest of the possessions. The Gemara records a disagreement between Amoraim, as to whether the administrator pays from his own property and is repaid by the minors when they become adults, or whether he pays directly from the property of the minors.

If the deaf-mute regained his faculties - or - the mental defective regained his sanity, or – after - the minor became of age, it - the ox - returns to the status of tam; this is the opinion of Rabbi Meir - the Gemara explains that his reason is that the control changes, i.e., since the ox left the control of the administrator and entered that of the owner, the legal status of the ox changes, for the owner could claim, if I had been warned, I would have guarded it well, and it would not have gored (Nimukei Yosef).

Rabbi Yose says, it retains its status - of mu’ad, as before, since Rabbi Yose holds that the change of control does not change its legal status (Gemara). Rambam rules in accordance with Rabbi Yose that the ox retains its status, but gives a different reason for the ruling: he explains that there is no change of ownership here, since the ox was always in the owner's possession. He adds, however, that "An ox whose owner was warned and it was sold or given as a present returns to the status of tam, since change of ownership entails a change of legal status" (Hil. Nizekei Mamon 6:6).

A stadium ox - which was trained to gore in the arena - is not liable to be put to death - if it killed a man, as it is written, "If it gores- a man or woman, that they die, the ox shall be surely stoned" (Ex. 21:28), which is interpreted to mean, if the ox gores of its own volition, and not if it was made to gore - taught and accustomed to gore, and if such an ox gored a man and killed him, it is not liable.

BAVA KAMMA: CHAPTER 4: MISHNAH 5

If an ox gored a man and he died, mu’ad pays ransom, but a tam is exempt from the ransom; this one and this one are to be put to death. And likewise for a son and likewise for a daughter. If it gored a bondman or bondwoman, he gives thirty selas, whether he is worth a maneh or whether he is worth only one dinar.

Kehati

After the law regarding a stadium ox which gored and killed a man was taught at the end of the previous mishnah, our mishnah continues to teach the laws regarding an ox which gores a man, as stated in the Torah (Ex. 21:28-32).

If an ox gored a man and he - the man - died, if the ox was a mu’ad, the owner - pays ransom - to the heirs of the person who was killed, as the Torah states, "But if the ox had been accustomed to gore in the past, any warning had been given to its owner, but he did not guard it, and it killed a man or a woman, the ox shall be stoned, and its owner also shall be put to death [by heaven]. If a ransom shall be laid on him, then he shall give for the redemption of his life whatever is laid upon him" (Ex. 21:29-30). Ransom is the monetary value of the dead man. The Gemara asks, how is it possible for the ox to be a mu’ad since even a shor tam that kills a man is to be put to death, as it is written, "And an ox gores a man or woman, that they die, the ox shall be surely stoned" (Ex. 21:28)? The Gemara replies, e.g., it endangered three people but they have not yet died, and now when it gored the fourth person, they all died; or it killed three people, but the court did not succeed in having it stoned after each goring before it escaped; the Gemara also lists other possibilities (see B. K. 41a). But a tam - which killed a man - is exempt from the ransom - since the Torah mentioned ransom only regarding a mu’ad; this one and this one- whether tam or mu’ad - are to be put to death - by stoning, as stated in the Torah, in the verses cited above.

And likewise for a son and likewise for a daughter - if it killed a male or female child, even though they are exempt from fulfilling the commandments (Gemara, Nimukei Yosef), the ox is to be stoned; and if the ox were mu’ad, the owner also has to pay ransom, as it is written, "Whether it has gored a son, or has gored a daughter, according to this judgment shall it be done to him" (Ex. 21:31).

If it gored a - Canaanite - bondman or bondwoman, he gives thirty selas - as stated in the Torah, "If the ox gores a bondman or a bondwoman, he shall give to their master thirty shekels of silver" (Ex. 21:32), whether he - the bondman - is worth a maneh - 100 zuz; another version reads, 100 manehs, or whether he is worth only one dinar - a single zuz. This is the last only if the ox is a mu’ad; when it is a tam, the owner is exempt from the fine of thirty selas, as it is written regarding shor tam, "but the owner of the ox is quit" (Ex. 21:28), which Rabbi Akiva interprets as meaning, quit of the money for the bondman (Gemara B. K. 44a); the shor tam itself, at any rate, is to be stoned.

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