Babylonian Talmud: Tractate Baba Kamma

Folio 37a

do not require a prosbul:¹  and so also Rami b. Hama learned that orphans do not require a prosbul,²  since Rabban Gamaliel and his Court of law are the representatives³  of orphans.

The scoundrel Hanan, having boxed another man's ear, was brought before R. Huna, who ordered him to go and pay the plaintiff half a zuz.⁴  As [Hanan] had a battered zuz he desired to pay the plaintiff the half zuz [which was due] out of it. But as it could not be exchanged, he slapped him again and gave him [the whole zuz].

MISHNAH. IF AN OX WAS MU'AD TO DO DAMAGE TO ITS OWN SPECIES BUT WAS NOT MU'AD TO DO DAMAGE TO ANY OTHER SPECIES [OF ANIMALS] OR IF IT WAS MU'AD TO DO DAMAGE TO THE HUMAN SPECIES BUT NOT MU'AD TO ANY SPECIES OF BEASTS, OR IF IT WAS MU'AD TO SMALL [CATTLE] BUT NOT MU'AD TO LARGE [CATTLE], IN RESPECT OF DAMAGE DONE TO THE SPECIES TO WHICH IT WAS MU'AD THE PAYMENT WILL HAVE TO BE IN FULL, BUT IN RESPECT OF DAMAGE DONE TO THAT TO WHICH IT WAS NOT MU'AD, THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. THEY⁵  SAID BEFORE R. JUDAH: HERE IS ONE WHICH WAS MU'AD TO DO DAMAGE ON SABBATH DAYS BUT WAS NOT MU'AD TO DO DAMAGE ON WEEK DAYS.⁶  HE SAID TO THEM: FOR DAMAGE DONE ON SABBATH DAYS THE PAYMENT WILL HAVE TO BE IN FULL, WHEREAS FOR DAMAGE DONE ON WEEK DAYS THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. WHEN [CAN THIS OX] RETURN TO THE STATE OF TAM? WHEN IT REFRAINS [FROM GORING] ON THREE [CONSECUTIVE] SABBATH DAYS.

GEMARA. It was stated: R. Zebid said: The proper reading of the Mishnah [in the first clause is], 'BUT WAS NOT MU'AD …';⁷  whereas R. Papa said: The proper reading is 'IT IS NOT [THEREFORE] MU'AD … '⁸  R. Zebid, who said that' … BUT WAS NOT MU'AD …'is the proper reading of the Mishnah, maintained that until we know the contrary⁹  such an ox is considered Mu'ad [to all species]. But R. Papa, who said that '… IT IS NOT [THEREFORE] MU'AD … is the correct reading of the Mishnah, maintained that even though we do not know the contrary the ox is not considered mu'ad [save to the species to which it had actually been Mu'ad]. R. Zebid inferred his view from the later clause [of the Mishnah], whereas R. Papa inferred his view from the opening clause. R. Zebid inferred his view from the later clause which states, IF IT WAS MU'AD TO SMALL [CATTLE] BUT NOT MU'AD TO LARGE [CATTLE]. Now this is quite in order if you maintain that BUT WAS NOT MU'AD' is the reading in the Mishnah, implying thus that in the absence of definite knowledge to the contrary the ox should be considered Mu'ad [to all species]. This clause would then teach us [the further point] that even where the ox was mu'ad to small [cattle] it would be mu'ad also to large [cattle] in the absence of knowledge to the contrary. But if you maintain that '… IT IS NOT [THEREFORE] MU'AD …' is the correct reading of the Mishnah, implying that even though we know nothing to the contrary the ox would not be considered mu'ad, could it not then be argued thus: Since in the case where the ox was mu'ad to do damage to small creatures of one species it would not be considered mu'ad with reference to small creatures of another species even if we have no definite knowledge to the contrary, was there any need to state that where the ox was mu'ad to small [cattle] it would not be considered mu'ad to big [cattle]?¹⁰  — R. Papa, however, may say to you: It was necessary to state this, since otherwise you might have been inclined to think that since the ox started to attack a particular species, it was going to attack the whole of that species without making a distinction between the large creatures of that species and the small creatures of that species, it was therefore necessary to let us know that [with reference to the large creatures] it would not be considered Mu'ad. R. Papa on the other hand based his view on the opening clause, which states: WHERE IT WAS MU'AD TO THE HUMAN SPECIES IT WOULD NOT BE MU'AD TO ANY SPECIES OF BEASTS. Now this would be quite in order if you maintain that 'IT IS NOT [THEREFORE] MU'AD …' is the text in the Mishnah denoting that even where we have no knowledge to the contrary the ox would not be considered mu'ad [to other species]; it was therefore necessary to make it known to us that even where the ox was mu'ad to the human species and though we knew nothing to the contrary, it would still not be Mu'ad to animals. But if you maintain that '… BUT WAS NOT MU'AD …' is the correct reading of the Mishnah, implying that in the absence of knowledge to the contrary the ox would be considered mu'ad [to all species], could we not then argue thus: Since in the case where the ox was Mu'ad to one species of beast it would in the absence of knowledge to the contrary be considered mu'ad also to any other species of beast, was there any need to state that where the ox was mu'ad to the human species it would also be considered mu'ad to animals?¹¹  — R. Zebid may, however, say to you: The opening clause refers to the reversion of the ox to the state of Tam, as, e.g., where the ox had been mu'ad to man and mu'ad to beast but has subsequently refrained from [doing damage to] beast, having stood near cattle on three different occasions without goring. It might then have been argued that since it has not refrained from injuring men, its refraining from goring cattle should [in the eye of the law] not be considered a proper reversion [to the state of Tam].¹²  We are therefore told that the refraining from goring cattle is in fact a proper reversion.

An objection was raised [from the following]: Symmachus says: If an ox is Mu'ad to man it is also Mu'ad to beast, a fortiori: if it is Mu'ad to injure man, how much more so is it Mu'ad to injure beast? Does this not prove that the view of the previous Tanna was that it would not be Mu'ad?'¹³  — R. Zebid may, however, say to you: Symmachus was referring to the reversion to the state of Tam, and what he said to the previous Tanna was this: 'Referring to your statement that the refraining [from goring] beasts is a proper reversion, [I maintain that] the refraining [from goring] beasts is not a proper reversion, [and can prove it] by means of an argument a fortiori from the case of man. For since it has not refrained from [attacking] man, will it not assuredly continue attacking beasts?

R. Ashi said: Come and hear: THEY SAID BEFORE R. JUDAH: HERE IS ONE WHICH IS MU'AD TO DO DAMAGE ON SABBATH DAYS BUT NOT MU'AD TO DO DAMAGE ON WEEK DAYS. HE SAID TO THEM: FOR DAMAGE DONE ON SABBATH DAYS, THE PAYMENT WILL HAVE TO BE IN FULL, WHEREAS FOR DAMAGE DONE ON WEEK DAYS THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. Now this is quite in order if you maintain that '… BUT WAS NOT MU'AD …' is the correct reading. The disciples were thus putting a question before him and he was replying to them accordingly. But If you contend that '… IS NOT [THEREFORE] MU'AD …' is the correct text, [would it not appear as if his disciples] were giving instruction to him?¹⁴  Again, what would then be the meaning of his reply to them?¹⁵  R. Jannai thereupon said: The same can also be inferred from the opening clause, where it is stated: IN RESPECT OF DAMAGE DONE TO THE SPECIES TO WHICH IT WAS MU'AD, THE PAYMENT WILL HAVE TO BE IN FULL, BUT IN RESPECT OF DAMAGE DONE TO THAT TO WHICH IT WAS NOT MU'AD, THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY. Now, this would be in order if you maintain that 'BUT IT WAS NOT MU'AD …'¹⁶  is the correct text, in which case the clause just quoted would be explanatory. But if you maintain that '… IT IS NOT [THEREFORE] MU'AD …'¹⁷  is the correct text, this statement is complete in itself, and why then the further statement 'IN RESPECT OF DAMAGE DONE TO THE SPECIES TO WHICH IT WAS MU'AD, THE PAYMENT WILL HAVE TO BE IN FULL, BUT IN RESPECT OF DAMAGE DONE TO THAT TO WHICH IT WAS NOT MU'AD, THE COMPENSATION WILL BE FOR HALF THE DAMAGE ONLY? Have we not been told before how that in the case of mu'ad the payment is for half the damage whereas in the case of Mu'ad the payment has to be in full?¹⁸  Yet even if you adopt the view of R. Papa,¹⁹  where the animal gored an ox, an ass and a camel [successively] it would still become mu'ad to all [species of beasts].²⁰

Our Rabbis taught: If the animal sees an ox and gores it, another ox and does not gore it, a third ox and gores it, a fourth ox and does not gore it, a fifth ox and gores it, a sixth ox and does not gore it, the animal becomes Mu'ad to alternate oxen.

Our Rabbis taught: If an animal sees an ox and gores it, an ass and does not gore it, a horse and gores it a camel and does not gore it, a mule and gores it, a wild ass and does not gore it, the animal becomes Mu'ad to alternate beasts of all species.

The following question was raised: If the animal [successively] gored

1. Cf. supra p. 48, n. 4 and Glos.
2. V. p. 204, n. 16.
3. Lit., 'father'.
4. As stated by the anonymous view.
5. The disciples.
6. Apparently we are to supply the words, 'what is the rule regarding it' the remark being intended as a question. But v. infra p. 208.
7. As indeed rendered in the Mishnaic text.
8. The Mishnah should accordingly open thus: 'If an ox is Mu'ad to do damage to its own species, it is not (therefore) Mu'ad to any other species (of animals)' etc., etc.
9. E.g., by letting other animals pass in front of it and seeing that it does not gore them.
10. Since it is much less likely to attack big animals than small ones. Why then, on R. Papa's reading, have this clause at all in the Mishnah?
11. Which it would be more ready to attack than human beings.
12. Cf. supra p. 119.
13. In contradiction to the view of R. Zebid.
14. I.e., we have to read their remark as a statement and not as a question.
15. After they had already decided the question in the wording of the problem.
16. V. p. 205, n. 6.
17. V. p. 206, n. 1
18. Cf. supra p. 73.
19. That in absence of knowledge to the contrary it is not mu'ad.
20. And we should not require three gorings for each.

one ox, a [second] ox, and a [third] ox, an ass, and a camel, what is the legal position? Shall the last ox be counted together with the [first two] oxen, in which case the animal that gored will still be Mu'ad only to oxen whereas to any other species it will not be considered Mu'ad, or shall perhaps the last ox be counted together with the ass and camel, so that the animal that gored will become Mu'ad to all species [of beasts]? [Again,¹  where an animal has successively gored] an ass, a camel, an ox, another ox, and a [third] ox, what is the legal position? Shall the first ox be counted together with the ass and camel, so that the animal that gored will become Mu'ad to all species [of beasts], or shall it perhaps [rather] be counted together with the [other] oxen, in which case it will still be Mu'ad only to oxen, but not Mu'ad to any other species [of beasts]? [Again, where the consecutive gorings took place on] one Sabbath, [the next] Sabbath and [the third] Sabbath, and then on the [subsequent] Sunday and Monday, what is the legal position? Shall the last Sabbath be counted together with the [first two] Sabbaths, in which case the ox that gored would still be Mu'ad only for Sabbaths, whereas in respect of damage done on week days it would not yet be considered mu'ad, or shall it perhaps be counted together with Sunday and Monday and thus become Mu'ad in respect of all the days [of the week]? [Again, where the consecutive gorings took place on] a Thursday, the eve of Sabbath and the Sabbath, then on [the next] Sabbath and [the third] Sabbath, what is the legal position? Shall the first Sabbath be counted together with Thursday and the eve of Sabbath and the goring ox thus become mu'ad for all days, or shall perhaps the first Sabbath be counted together with the subsequent Sabbaths, in which case the goring ox would become mu'ad only for Sabbaths? — These questions must stand over.

If [an ox has] gored an ox on the fifteenth day of a particular month, and [another ox] on the sixteenth day of the next month, and [a third ox] on the seventeenth day of the third month, there would he a difference of opinion between Rab and Samuel.²  For it was stated:³  If the symptom of menstruation has once been noticed on the fifteenth day of a particular month, [then] on the sixteenth day of the next month, and [then] on the seventeenth day of the third month, Rab maintained that a periodical recurrence⁴  has thereby been established,⁵  whereas Samuel said [that this periodicity is not established] until the skipping is repeated [yet] a third time.⁶

GEMARA. The [ruling in the] Mishnah is not in accordance with [the view of] R. Simeon b. Menasya; for it was taught: Where a private ox has gored consecrated cattle or where consecrated cattle has gored a private ox, there is not liability, as it is stated: The ox of his neighbour,¹⁵  not [that is to say] an ox consecrated to the Temple. R. Simeon b. Menasya, however, says: Where consecrated cattle has gored a private ox there is no liability, but if a private ox has gored consecrated cattle, whether while Tam or mu'ad, payment is to be made for full damage.¹⁶  I might ask, what was the principle adopted by R. Simeon? If the implication of 'his neighbour'¹⁵  has to be insisted upon,¹⁷  why then even in the case of a private ox goring consecrated cattle should there not be exemption? If on the other hand the implication of 'his neighbour' has not to be insisted upon, why then in the case of consecrated cattle goring a private ox should there also not be liability? If, however, you argue that he¹⁸  does in fact maintain that the implication of 'his neighbour' has to be insisted upon, yet where a private ox has gored consecrated cattle there is a special reason for liability inferred by means of an a fortiori argument from the case of private cattle [as follows]: If where a private ox has gored private cattle there is liability, should not there be all the more liability where it has gored consecrated cattle? Why then [did he] not employ the principle of Dayyo¹⁹  [i.e. that it was sufficient] that the object²⁰  to which the inference is made should be on the same footing as the object from which it was made?²¹  And since Tam involves there the payment of half damages, [why then should it not] here also involve the payment of half damages [only]? — Resh Lakish therefore said: Originally all cases came under the law of full compensation;²²  when Scripture therefore particularised 'his neighbour' in the case of Tam, it meant that it was only where damage had been done to a neighbour that Tam would involve half damages [only], thus implying that where the damage had been done to consecrated property, whether by Tam or Mu'ad, the compensation must be in full;

1. Assuming that in the previous case we decide that the last ox will be counted with the first two oxen.
2. According to Rab it would become Mu'ad to gore every month by missing a day, so that if in the fourth month it gores on the eighteenth day, the compensation would have to be in full, whereas according to Samuel the compensation would still be a half, as the animal could not become Mu'ad until the act of missing a day is repeated three times, so that full compensation would begin with the goring on the nineteenth day of the fifth month.
3. Nid. 67a.
4. [MS.M. adds 'in skipping', cf. Rashi.]
5. And the menstruation could accordingly be expected on the eighteenth day of the fourth month.
6. I.e., until in the fourth month the menstruation recurs on the eighteenth day, in which case it would be expected on the nineteenth day of the fifth month,
7. So that full compensation should begin with the fifth occasion.
8. And full liability will commence with the fourth goring at the sound of a trumpet.
9. [Mishnah text: 'of an Israelite'.]
10. Lit., 'ox'.
11. Ex. XXI, 35.
12. As Canaanites did not recognise the laws of social justice, they did not impose any liability for damage done by cattle. They could consequently not claim to be protected by a law they neither recognised nor respected, cf. J. T. a.l. and Maim. Yad, Niz. Mam. VIII, 5. [In ancient Israel as in the modern state the legislation regulating the protection of life and property of the stranger was, as Guttmann. M. (HUCA. III 1 ff.) has shown, on the basis of reciprocity. Where such reciprocity was not recognised, the stranger could not claim to enjoy the same protection of the law as the citizen.]
13. I.e., the ox that did the damage.
14. So that they should guard their cattle from doing damage. (Maim. loc. cit.)
15. V. p. 211, n. 5.
16. Cf. supra p. 23.
17. To mean the ox of his peer, of his equal. [This would not exclude Gentiles in general as the term [H], his neighbour applies also to them (cf. Ex. XI, 2); cf. next page.]
18. R. Simeon
19. V. supra p. 126.
20. Viz. consecrated cattle.
21. Viz. private cattle.
22. As in the case of mu'ad where in contradistinction to Tam no mention was made of 'his neighbour': cf. Ex. XXI, 36.