Babylonian Talmud: Tractate Baba Kamma

Folio 40a

if he¹  follows the view of R. Judah,²  in a case where the precautions taken to control the ox were of an inferior kind and not really adequate,³  or if he¹  follows the view of R. Eliezer b. Jacob,⁴  where no precautions to control the ox had been taken at all,⁵  as it has been taught: R. Eliezer b. Jacob says: Whether in the case of Tam or in the case of Mu'ad, if precautions of [at least] some inferior sort have been taken to control the ox, there would be no liability. The new point made known to us by R. Jacob would thus have been that guardians should be appointed even in the case of Tam to collect payment out of its body. [Why then did Raba explain the former statement of R. Jacob to refer only to Mu'ad? Why did he not explain it to refer to Tam also?] — [In answer] he⁶  said: Raba made⁷  one statement express two principles [in which R. Jacob is in agreement with R. Judah].⁸

Rabina stated that [the question whether or not a change of] control should cause a change [in the state of the ox] might have been the point at issue between them,⁹  e.g., where after the ox had been declared Mu'ad, the deaf-mute recovered his faculty, or the idiot became sane, or the minor came of age, [in which case] R. Judah would maintain that the ox should remain in its status quo whereas R. Jacob would hold that [a change of] control should cause a change [in the state of the ox].

Our Rabbis taught: In the case of guardians, the payment [for damages] will be out of the best of the general estate, though no kofer¹⁰  will be paid by them. Who is the Tanna who holds that [the payment of] kofer is but an act of atonement¹¹  [which would justify the exemption in this case], as [minor] orphans are not subject to the law of atonement? — R. Hisda said: It is R. Ishmael the son of R. Johanan b. Beroka. For it was taught: [The words,] Then he shall give for the ransom of his life¹²  [indicate] the value [of the life] of the person killed. But R. Ishmael the son of R. Johanan b. Beroka interprets it to refer to the value [of the life] of the defendant. Now, is this not the point at issue between them,¹³  that the Rabbis consider kofer to constitute a civil liability¹⁴  whereas R. Ishmael the son of R. Johanan b. Beroka holds kofer to be of the nature of propitiation?¹⁵  — R. Papa said that this was not the case. For we may suppose all to agree that kofer is a kind of propitiation, and the point at issue between them here is merely that the Rabbis hold that this propitiatory payment should be fixed by estimating the value [of the life] of the person killed, whereas R. Ishmael the son of R. Johanan b. Beroka maintains that it should be fixed by estimating the value of [the life of] the defendant. What reason have the Rabbis for their view? — The expression 'laying upon' is used in the later context¹⁶  and the same expression 'laying upon' is used in an earlier context;¹⁷  just as there it refers to the plaintiff, so does it here also refer to the plaintiff. But R. Ishmael the son of R. Johanan b. Beroka argued that it is written, 'Then he shall give for the ransom of his life' [referring of course to the defendant]. And the Rabbis? — [They reply,] Yes, it does say 'The ransom of his life', but the amount must be fixed by valuing [the life of] the person killed.

Raba in his conversations with R. Nahman used to praise R. Aha b. Jacob as a great man. He¹⁸  therefore said to him: 'When you come across him, bring him to me.' When he¹⁹  later came to see him he¹⁸  said to him: 'You may put problems to me', whereupon he¹⁹  asked him: 'If an ox of two partners [kill a person] how is the payment of kofer to be made? Shall this one pay kofer and the other one kofer? But one kofer is mentioned by Divine Law and not two kofers! Shall this one [pay] half of the kofer and the other one half of the kofer? A full kofer is commanded by Divine Law and not half of a kofer!' While he²⁰  was still sitting and pondering over this, he²¹  further asked him: We have learnt:²²  'In the case of debtors for valuations²³  the Sanctuary treasury may demand a pledge, whereas in the case of those who are liable to sin-offerings or for trespass-offerings²⁴  no pledge can be enforced.' Now, what would be the law in the case of those liable to kofer? [Shall it be said that] since kofer is a kind of propitiation it should be subject to the same ruling as sin-offerings and trespass-offerings,²⁴  the matter being of serious moment to the defendant so that there is no necessity of enforcing a pledge from him; or [shall it] perhaps [be argued that] since it has to be given to a fellow man it is [considered] a civil liability, and as it does not go to the Temple treasury,²⁵  it is consequently not taken too seriously by the defendant, for which [reason there may appear to be some] necessity for requiring a pledge? Or, again, since the defendant did not [in this case] himself commit the wrong, for it was his chattel that did the wrong [and committed manslaughter], the whole matter might be considered by him as of no serious moment, and a pledge should therefore be enforced? — He²⁶  said to him: 'Leave me alone; I am still held prisoner by your first problem [that has not yet been answered by me].'

Our Rabbis taught: If a man borrowed an ox on the assumption that it is in the state of Tam but is subsequently discovered to have already been declared Mu'ad, [if goring is repeated while still with the borrower] the owner will pay one half of the damages and the borrower will pay [the other] half of the damages. But if it was declared Mu'ad while in the possession of the borrower, and [after it] was returned to the owner [it gored again], the owner will pay half the damages while the borrower is exempt from any liability whatsoever.

The Master stated: 'If a man borrowed an ox on the assumption that it is in the state of Tam but was subsequently discovered to have already been declared Mu'ad, [if goring is repeated] the owner will pay one half of the damages and the borrower will pay [the other] half of the damages.' But why should the borrower not plead against the owner, 'I wanted to borrow an ox, I did not want to borrow a lion?' — Rab said: we are dealing here with a case where the borrower knew the ox to be a gorer.²⁷  Still why can he not plead against him: 'I wanted to borrow an ox in the state of Tam but I did not want to borrow an ox that had already been declared Mu'ad'? — [This could not be pleaded] because the owner might argue against him: 'In any case, even had the ox been still Tam, would you not have to pay half-damages? Now, also, you have to pay one half of the damages.' But still why can he not plead against him: 'Had the ox been Tam, damages would have been paid out of its body'?²⁸  — [This could similarly not be pleaded] because the owner might contend: 'In any case would you not have had to reimburse me [to the full extent of] the value of the ox?'²⁹  Why can he still not plead against him:

1. I.e., R. Jacob.
2. That an inferior degree of precaution is not sufficient in the case of Tam; v. infra p. 259.
3. Hence the liability to pay half-damages, a guardian being appointed to collect payment out of the body of the Tam.
4. That a precaution of even an inferior degree suffices with Tam as well as with Mu'ad.
5. V. p. 223, n. 10.
6. I.e., Rabina.
7. [So MS.M. deleting 'he means thus' in cur. edd. of Rashi.]
8. [By explaining R. Jacob's earlier statement as referring to Mu'ad, he informs us that he shares the views of R. Judah both in regard to the question of precaution and that of the part due from Tam in case of a Mu'ad ox, whilst incidentally we also learn that guardians are appointed in case of Tam etc.]
9. Between R. Jacob and R. Judah in the second cited Baraitha.
10. Lit., 'atonement', or 'a sum of money', i.e., compensation paid for manslaughter committed by a beast in lieu of the life of the owner of the beast, as appears from Ex. XXI, 29-30; v. Glos.
11. And not an ordinary civil obligation like damages.
12. Ex. XXI, 30
13. I.e., between R. Ishmael and the other Rabbis his opponents.
14. The payment must therefore correspond to the value of the loss sustained through the death of the person killed.
15. For since it was the life of the owner of the beast that should be redeemed the payment must surely correspond to the value of his life.
16. Ex. XXI, 30.
17. Ibid. XXI, 22.
18. R. Nahman.
19. R. Aha b. Jacob.
20. V. p. 225, n. 6.
21. V. ibid., n. 7.
22. 'Ar. 21a.
23. I.e. vows of value dealt with in Lev. XXVII, 2-8.
24. Which are intended to procure atonement and which will consequently not be put off.
25. [Lit., 'To the (Most) High.' Read with MS.M. 'Since it has to be given to a fellow man and not to the Treasury, it is a civil liability.']
26. R. Nahman.
27. Though he did not know that the ox had been declared Mu'ad.
28. And not from my own estate.
29. In payment of the ox you borrowed from me.

'Were the ox to have been Tam I would have admitted [the act of goring] and become exempt from having to pay'?¹  Moreover even according to the view²  that the payment of half-damages [for goring in the case of Tam] is a civil liability,³  why should the borrower still not argue: 'Had the ox been Tam I would have caused it to escape to the pasture'?⁴  — We must therefore suppose the case to have been one where the Court of law stepped in first and took possession of the ox. But if so why should the owner pay one half of the damages? Why not plead against the borrower: 'You have allowed my ox to fall into the hands of a party against whom I am powerless to bring any legal action'? — [This could not be pleaded] because the borrower might retort to him: 'Were I even to have returned the ox to you, would the Court of Law not have taken it from you?' But why should the owner still not plead against the borrower: 'Were you to have returned it to me, I would have caused it to escape to the pasture'?⁵  — [This could not be pleaded] because the borrower might argue against him: 'In any case would the damages not have been paid out of the best [of your general estate]?'⁶  This indeed could be effectively argued [by the borrower] where the owner possessed property, but what could be argued in the case where the owner possessed no property? — What therefore the borrower could always argue against the owner is [as follows]: 'Just as I am under a personal obligation to you,⁷  so am I under a personal obligation⁷  to that party [who is your creditor], in virtue of the rule of R. Nathan, as it was taught,⁸  'R. Nathan says: Whence do we conclude that if A claims a maneh⁹  from B, and B [claims a similar sum] from C, the money is collected from C and [directly] handed over to A? From the statement of Scripture:¹⁰  And give it unto him against whom he hath trespassed.¹¹

'If it was declared Mu'ad while in the possession of the borrower, and [after it] was returned to the owner [it gored again], the owner will pay half damages while the borrower is exempt from any liability whatsoever.' Does this concluding clause [not appear to prove that a change in the] control [of the ox]¹²  causes a change [in its status], while the preceding clause [tends to prove that a change in the] control [of the ox]¹³  causes no change [in its status]? — R. Johanan thereupon said: The contradiction [is obvious]; he who taught one clause certainly did not teach the other clause [in the text of the Baraitha]. Rabbah, however, said: Since the opening clause [tends to prove that a change in the] control¹³  does not cause a change [in the status], the concluding clause [may also maintain that a change in the] control does not cause a change [in the status]. For the ruling in the concluding clause could be based on the fact that the owner may argue against the borrower, 'You had no legal right to cause my ox to be declared Mu'ad.'¹⁴  R. Papa, however, said: Since the concluding clause [proves that a change in the] control¹⁵  [of the ox] causes a change [in its status], the opening clause [may also maintain that a change in the] control [of the ox] causes a change [in its status]. For the ruling in the opening clause could be based upon the reason that wherever the ox is put, it bears the name of its owner upon it.¹⁶

IN THE CASE OF A STADIUM OX [KILLING A PERSON], THE DEATH PENALTY IS NOT IMPOSED [UPON THE OX] etc. The question was raised: What [would have been the position of such an ox] with reference to [its being sacrificed upon] the altar? — Rab said that it would have been eligible, whereas Samuel maintained that it would have been ineligible. Rab considered it eligible since it committed manslaughter only by compulsion, whereas Samuel considered it ineligible since it had been used as an instrument for the commission of a crime.

An objection was raised:¹⁷  [Ye shall bring your offering] of the cattle¹⁸  excludes an animal that has copulated with a woman and an animal that has copulated with a man;¹⁹  even of the herd¹⁸  excludes an animal that has been used as an instrument of idolatry; of the flock¹⁸  excludes an animal that has been set apart for idolatrous purposes; and of the flock excludes an animal that has gored [and committed manslaughter]. R. Simeon remarked upon this: If it is laid down that an animal that has copulated with a woman¹⁹  [is to be excluded] why was it necessary to lay down that an animal goring [and committing manslaughter is also excluded]?²⁰  Again, if it is laid down that an animal that gored [and committed manslaughter is to be excluded], why was it necessary to lay down that an animal copulating with a woman [is also excluded]?²⁰  [The reason is] because there are features in an animal copulating with a woman which are not present in an animal goring [and committing manslaughter], and again there are features in an animal goring [and committing manslaughter] which are not present in the case of an animal copulating with a woman. In the case of an animal copulating with a human being the law makes no distinction between a compulsory²¹  and a voluntary act [on the part of the animal],²²  whereas in the case of an animal goring [and committing manslaughter] the law does not place a compulsory act on the same footing as a voluntary one. Again, in the case of an animal goring [and committing manslaughter] there is liability to pay kofer,²³  whereas in the case of an animal copulating with a woman there is no liability to pay kofer.²⁴  It is on account of these differences that it was necessary to specify both an animal copulating with a woman and an animal goring [and committing manslaughter]. Now, it is here taught that in the case of an animal copulating with a human being the law makes no distinction between a compulsory and a voluntary act, whereas in the case of an animal goring [and committing manslaughter the law] does not place a compulsory act on the same footing as a voluntary one. What rule are we to derive from this? Is it not the rule in respect of eligibility for becoming a sacrifice [upon the altar]?²⁵  — No; the rule in respect of stoning.²⁶  This indeed stands also to reason, for if you maintain that it is with reference to the sacrifice that the law does not place a compulsory act on the same footing as a voluntary one in the case of an animal goring, [I would point out that with reference to its eligibility for the altar] the Scripture says nothing explicitly with regard either to a compulsory act or a voluntary act on its part. Does it therefore not [stand to reason that what we are to derive from this is] the rule in respect of stoning?

The Master stated: 'In the case of an animal goring [and committing manslaughter] there is liability to pay kofer, whereas in the case of an animal copulating with a woman there is no liability to pay kofer.' What are the circumstances? It could hardly be that while copulating with a woman it killed her, for what difference could be made between killing by means of a horn and killing by means of copulating? If on the other hand the act of copulating did not result in manslaughter, is the exemption from paying kofer not due to the fact that no killing took place? — Abaye said: We suppose, in fact, that it deals with a case where, by the act of copulating, the animal did not kill the woman, who, however, was brought to the Court of Law and by its orders executed. [In such a case] you might perhaps have thought

1. For since the liability of half-damages in the case of Tam is only of a penal nature, confession by the defendant would have annulled the obligation; cf. supra. p. 62.
2. V. supra p. 64.
3. And confession would bring no exemption.
4. And since the payment in the case of Tam is only out of its body he would have evaded it.
5. V. p. 227, n. 7.
6. For in fact the ox had already been declared Mu'ad in the hands of the owner.
7. To return the ox.
8. Pes. 31a; Git. 37a; Keth. 19a, 82a; Kid. 15a.
9. 100 zuz; cf. Glos.
10. Num. V, 7.
11. Pointing thus to the last creditor.
12. I.e. from the hands of the borrower to those of the owner.
13. I.e., from the hands of the owner to those of the borrower.
14. And it is because of this fact but not because of the change in the control that the ox reverts to the state of Tam.
15. V. p. 228, n. 8.
16. The ox therefore did not, by leaving the owner and coming into the hands of a borrower, undergo any change at all.
17. From Bek. 41a; Tem. 28a.
18. Lev. I, 2.
19. Cf. Lev., XVIII, 23 and ib. XX, 15-16.
20. Since in both cases the animal is to be killed where the crime has been testified to by witnesses.
21. As in the case of animal copulating with man.
22. V. p. 229, n. 7.
23. V. p. 224. n. 6.
24. See the discussion which follows.
25. Since this was the point under consideration, which solves the question as to the eligibility of a stadium ox for the altar.
26. [In respect of which the difference between compulsory goring and voluntary goring is admitted.]