Torah Community Connections

Week 94 - Monday - 10 September 2001

BAVA KAMMA: CHAPTER 5: MISHNAH 3

If a person brought his ox into the courtyard of a householder without permission, and the householder's ox gored it, or the householder's dog bit it, he is exempt. If it gored the ox of the householder, he is liable. If it fell into his pit and fouled its water, he is liable. If his father or his son were within it, he pays the ransom. And if he brought in with permission, the owner of the courtyard is liable. Rabbi says, In all these he is not liable unless he undertook to guard.

Kehati

Our mishnah is a continuation of the preceding mishnah. It elaborates concerning the person who brings his property into his fellow's courtyard, either with or without permission. After the previous mishnah taught concerning foot and tooth damages, this mishnah continues by teaching concerning horn damages.

If a person brought his ox into the courtyard of a householder without permission, and the householder's ox gored it, or the householder's dog bit it, he - the householder - is exempt - from paying, since he brought his ox in there without permission.

If it gored the ox of the householder, he is liable - if it was a shor tam, he is obligated to pay half-damages, and if it was a shor mu'ad, full damages. Rabbi Tarfon holds that even a shor tam in the domain of the injured party pays full damages (2:5, above).

If it - this one's ox - fell into his - the householder's - pit and fouled the water - in the pit, by the dirt on its body, he - the owner of the ox - is liable - to pay for the damage caused to the water.

If his father or his son - of the owner of the courtyard - were within it - the pit, and the ox fell on them and killed them, he pays the ransom - the Gemara explains that this case refers to an ox which was mu'ad to fall on people in pits: the ox saw some vegetable in the pit, and fell into the pit on account of the vegetable; in such a case the ox is not liable to be put to death, since it did not intend to kill a person, and its owner pays the ransom. The mishnah did not state "his father or his son" in order to restrict the law to these two cases, but merely used a common example; the law applies to any other person as well. According to another opinion, our mishnah is in accordance with the view of Rabbi Yose HaGelili and Rabbi Tarfon, who hold that a tam in the domain of the injured party pays full damages, and also full ransom; according to this, the mishnah specifically states "his father or his son" to indicate that the subject is ransom in the domain of the injured party, but he is exempt from ransom for other people.

And if he brought in - his ox - with permission - of the householder, the owner of the courtyard is liable - if the ox was injured by his ox or dog. Rabbi says, In all these - three cases taught here, i.e., the person who brought in his pots, his produce, or his ox to the courtyard of the householder with permission, he - the householder - is not liable - for the damages to them - unless he - explicitly - undertook to guard - them. If, however, he gave him permission, without any express conditions, then he is exempt, since he-did not undertake to guard. The person who brought them in also is exempt, since he brought them in with permission (Bartenura; see Tosefot Yom Tov and Tosefot Rabbi Akiva Eiger).

BAVA KAMMA: CHAPTER 5: MISHNAH 4

If an ox intended to its fellow, and struck a woman and miscarried, he is exempt from payment for the young. And if a man intended to his fellow, and struck a woman and she miscarried, he makes payment for the young. How does he make payment for young? We appraise the woman, how much she was worth before she gave birth, and how much she is worth after she gave birth. Rabban Shimon ben Gamliel said, If so, after the woman gives birth, her value is enhanced! But they assess the value of the young and he gives to the husband; if she has no husband, he gives to his heirs. If she were a bondwoman who had been set free or a convert, he is exempt.

Kehati

If an ox intended to - gore - its fellow - ox, and struck a - pregnant - woman and she miscarried - because of the blow, he - the owner of the ox - is exempt from payment for the young - since the Torah obligated a man who strikes a woman, as the mishnah teaches immediately; And if a man intended to - strike - his fellow, and struck a woman and she miscarried, he makes payment for the young - to the husband of the woman, as it is written, "And if men strive together, and hurt a pregnant woman, so that she lost her children, and yet no harm follows [to the woman], he shall be surely punished [to make payment for the young to the husband]" (Ex. 21:22). The Gemara explains that our mishnah does not restrict itself only to the specific case in which "an ox intended to gore its fellow," since the owner of the ox is exempt from payment for the young even when it intended to gore a woman; but since the mishnah needs with respect to a man to state, "if a man intended to his fellow," it uses similar phrasing in the case of the ox.

How does he makes payment for the young - i.e. how do we assess their value? We appraise the woman, how much she was worth - to be sold as a bondwoman - before she gave birth - when she was still pregnant, and how much she is worth after she gave birth - i.e. how much she would have been worth after a normal birth, not due to the blow (since her own depreciation due to the blow constitutes damage which must be paid directly to the woman - see Tosefot Yom Tov), and the one who struck her must pay the difference to her husband. According to Rashi, this difference compares two factors: (1) payment for the loss of the young; (2) compensation for the appreciation caused by the young, i.e., how much the woman appears to be improved due to her pregnancy; according to Tosafot, our mishnah does not teach how to assess payment for the loss of the young, since all agree that the young are assessed separately, but rather how to assess the payment for the improvement of the woman due to pregnancy.

Rabban Shimon ben Gamliel said, If so - if this is how they assess, then there is no need to pay anything, since - after the woman gives birth, her value is enhanced - she is worth more than before the birth, since there is a danger that the pregnant woman will die during childbirth, But they assess the value of the young - how much they are worth - and he gives this to the husband - according to Rabban Shimon ben Gamliel, there is no obligation of payment for improvement due to the embryo, but rather of payment for loss of the embryo. The Gemara explains, however, that Rabban Shimon ben Gamliel refers to a woman giving birth for the first time; since she is in danger, payment for improvement due to the embryo does not apply to her. But for a woman who has previously given birth, since she is in no danger, even Rabban Shimon ben Gamliel admits that payment for improvement due to the embryo applies to her. According to the Sages, however, all payment for enhancement due to the embryo belongs to the husband, while Rabban Shimon ben Gamliel holds that it is divided between the husband and the wife (see B. K. 49a).

If she has no husband, he gives to the heirs - of the husband; according to some commentators, even if he struck the woman after the death of her husband, the payment for loss of the embryo is nevertheless given to the husband's heirs (Tosafot, Rabbeinu Asher, Ravad); Rambam, on the other hand, rules that the payment for loss of the embryo is given to the husband's heirs only if he struck the woman during the husband's lifetime and the husband later died, but if he struck the woman after her husband had already died, the payment for loss of the embryo is given to the woman.

If she - the pregnant woman whom he struck - were a – Canaanite - bondwoman who had been set free - and was now married either to a freed bondman or a convert, who do not have heirs, or if she was a convert - married to a convert or a freed bondman, and her husband died, he is exempt - from the payment for loss of the embryo, since in the case of a convert who dies without heirs, whoever is first to take it attains his property, and this one was first to seize what he holds. This is also the law regarding an Israelite woman married to a convert: if the convert died, he is exempt from payment for loss of the embryo. However, since it is usual for a freed bondwoman or a female convert to marry a freed bondman or a male convert, the mishnah speaks of "a bondwoman who had been set free or a convert."

Rashi learns from the mishnah's use of "if she were a bondwoman who had been set free" instead of only "if she were set free," that the woman has only now been set free, and they do not yet have any children. Rabba and Rabbi Hinda disagree in the Gemara: Rabba holds that the case in our mishnah refers to a person injuring a freed bondwoman or female convert during the lifetime of her convert (or freed bondman) husband, and since the male convert died without heirs, this one retains what he possesses. If, however, he injured her after the death of her husband, the woman herself is entitled to the payment for the young. Rabbi Hisda, on the other hand, holds that even if he injured her after the death of her husband, he is exempt from making payment for loss of the embryo, since the Torah obligated him to pay to "the husband of the woman," and when there is no husband, there is no one to whom to make payment for the young. Rambam rules in accordance with Rabba (Hil. Hovel u-Mazik 4:3).

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