Torah Community Connections

Week 93 - Wednesday - 5 September 2001

BAVA KAMMA: CHAPTER 4: MISHNAH 2

If an ox is mu’ad to its own kind and is not mu’ad to what is not its kind, mu’ad to man and not mu’ad to cattle, mu’ad to small ones and not mu’ad to big ones - he pays full damages for what it is mu’ad to, and he pays half-damages for what it is not mu’ad to. They said before Rabbi Yehudah, If it was mu’ad on Sabbaths, but not mu’ad on weekdays? He said to them, For Sabbaths he pays full damages, for weekdays he pays half-damages. When is it tam? When it refrains for three Sabbath days.

Kehati

Our mishnah discusses an ox, which is mu’ad for some things, but is not mu’ad for others.

If an ox is mu’ad to its own kind - to gore oxen - and is not mu’ad to what is not its kind - e.g., we see it standing with horses and camels and it does not gore them, or - mu’ad to - gore - man and not mu’ad to - gore - cattle, mu’ad to small ones - calves or children - and not mu’ad to big ones - oxen or adults for what - the type - it is - mu’ad to, - he pays full damages - as was taught above, (1:4), and he pays half-damages - according to the law of tam - for what - the type - it is not mu’ad to - the Gemara records a disagreement of Amoraim concerning the correct version of our mishnah. R. Zebid holds that our version is the correct one: "mu’ad to its own kind, and is not mu’ad to what is not its kind..." i.e., this refers to an ox which we know is not mu’ad to what is not its own kind, and similarly in the other instances listed in the mishnah, but without this qualification it is considered mu’ad towards everything.

R. Papa, on the other hand, holds that the correct version is "mu’ad to its own kind is not mu’ad to what is not its own kind; mu’ad to man is not mu’ad to cattle, etc." ("is not," without "and"), i.e., that our mishnah teaches that an ox which is mu’ad to its own kind is not mu’ad to what is not its own kind and similarly for the other instances mentioned. The law is in accordance with R. Papa (Alfasi; Rambam).

They said before Rabbi Yehudah - his pupils asked him, If it was mu’ad - to gore - on Sabbaths, but not mu’ad - to gore - on weekdays - what is the law regarding this ox? He said to them, For Sabbaths he pays full damages - according to the law of mu’ad, for weekdays he pays half-damages - according to the law of tam, i.e., it has the status of mu’ad only on Sabbaths. Rashi explains the reason for the ox's behavior: since it does no work, it gores. The Jerusalem Talmud gives another reason: since the ox sees people in their Sabbath dress, it changes its ways and habits.

When is it - an ox which is mu’ad on Sabbaths once again a - tam? When it refrains for three Sabbath days - when it sees oxen or people for three successive Sabbath days and does not gore them.

BAVA KAMMA: CHAPTER 4: MISHNAH 3

If an ox belonging to an Israelite gored an ox belonging to the Temple, or one belonging to the Temple gored an ox of an Israelite - he is exempt, as it is written, "another's ox" (Ex. 21:35), and not an ox belonging to the Temple. If an ox of an Israelite gored an ox of a non-Jew, he is exempt. And of a non-Jew which gored an ox of an Israelite, whether tam or mu’ad, he pays full damages.

Kehati

We have already learned, "property not subject to the law of me'ilah, property belonging to Jews" (1:2, above), i.e., the obligation to pay damages exists only for non-Temple and Jewish property. Our mishnah returns to this law, in greater detail.

If an ox belonging to an Israelite - according to an alternate version, "an ox belonging to an ordinary person" - gored an ox belonging to the Temple, or - an ox - belonging to the Temple - whether tam or mu’ad - gored an ox of an Israelite, he is exempt - from paying damages, as it is written - in the Torah passage dealing with horn damages, "and if one man's ox hurt - another's ox" (Ex. 21:35) - which was interpreted to mean only his fellow's ox, and not an ox belonging to the Temple - which is not subject to the law of damages, whether it suffered or caused the damage.

If the ox of an Israelite - whether tam or mu’ad - gored the ox of a non-Jew, he is exempt - Rambam explains the reason for this law: "Since the non-Jews do not obligate a person for his ox which caused damage, we adjudicate with them in accordance with their laws" (Hil. Nizekei Mamon 8:5; see Migdal Oz, who writes that Rambam's ruling is from the Jerusalem Talmud); And - if the ox - of a non-Jew gored an ox of an Israelite, whether tam or mu’ad, he pays full damages - the Gemara explains the reason for this law: it is written, "He rose and measured the earth, and He released (Heb. hittir) nations" (Hab. 3:6) - the Holy One, blessed be He, considered the seven commandments accepted by the sons of Noah; since they did not fulfill them He permitted (hittir) their property to Israel (see Tosafot, Maharshal, Maharsha, and Maharam). Rambam writes, "This is a fine for the non-Jews, since they are not careful to abide by the commandments, and do not remove sources of damage; if they would not be liable for the damage caused by their animals, they would never guard them, and would cause people to lose money" (Hil. Nizekei Mamon 8:5).

Similarly Hameiri writes, "Since they do not care for the money of others, they are fined so that they will not accustom themselves to cause damage." And he continues, "according to what is written in the Gemara, this applies only to peoples who are not restricted by religious and customary laws ... but regarding all those who fulfill the seven Noahide commandments, their legal status with us is like our legal status with them, and we are not partial in law to Jews: hence it is unnecessary to state that this is so for peoples who are restricted by religious and customary laws."

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