Babylonian Talmud: Tractate Baba Kamma

Folio 42a

when he caught big ones he took them and when he [subsequently] caught little ones he took them also.¹  But R. Tabyomi, who in the name of Raba said that [the answer about] having killed [the man in the presence of one witness etc.] was given first, compares him to a fisherman who was catching fishes in the sea and when he caught little ones he took them, but when he [subsequently] caught big ones he threw away the little ones and took the big ones.²

Another [Baraitha] teaches: 'And the owner of the ox shall be quit' [implies] according to the statement of R. Jose the Galilean, quit from compensating [in the case of Tam killing] embryos. Said R. Akiba to him: Behold Scripture states: If men strive together and hurt a woman with child etc.,³  [implying that only] men but not oxen [are liable for killing embryos]!⁴  Was not this a good question on the part of R. Akiba? — R. 'Ulla the son of R. Idi said: [The implication drawn by R. Jose] is essential. For otherwise it might have occurred to you to apply [R. Akiba's] inference 'Men but not oxen' [exclusively to such] oxen as are comparable to men: Just as men are Mu'ad,⁵  so also here the oxen referred to are Mu'ad, whereas in the case of Tam there should be liability. The Divine Law has therefore stated, 'The owner of the ox shall be quit', implying exemption [also in the case of Tam]. Said Raba thereupon: Is the native born to be on the earth and the stranger in the highest heavens?⁶  No, said Raba. [The implication drawn by R. Jose] is essential [for this reason, that] you might have been inclined to apply the inference 'Men but not oxen' only to oxen which could be compared to men — just as men are Mu'ad so the oxen here referred to are Mu'ad — and to have extended the exemption to cases of Tam by an argument a fortiori. Therefore the Divine Law purposely states [further], The owner of the ox shall be quit [to indicate that only] in the case of Tam will there be exemption whereas in the case of Mu'ad there will be liability. Said Abaye to him: If that is so, why not argue in the same way in the case of payment for degradation; thus: [Scripture says] 'Men',⁷  excluding oxen which could be compared with men: just as the men are Mu'ad so the oxen [thus exempted] must be Mu'ad, and a fortiori exemption is extended to cases of Tam. Thereupon the Divine Law on another occasion purposely states, 'The owner of the ox shall be quit' [to indicate that only] in the case of Tam will there be exemption, whereas in the case of Mu'ad there will be liability [for degradation]? Now you could hardly say that this is indeed the case, for if so why not teach that, 'the owner of the ox shall be quit' [means], according to R. Jose the Galilean, quit from compensating [both in the case of Tam killing] embryos and [in the case of it having caused] degradation?⁸  — Abaye and Raba both therefore said: [You might have been inclined to suppose that] in the case of 'men' it is only where no mischief⁹  [resulted to the woman] that a liability to pay [for the embryo is imposed] upon them whereas where a mischief [resulted to the woman] no civil liability¹⁰  [is imposed] upon them,¹¹  but that it is not so with oxen, as in their case even if mischief [results to the woman] a liability to pay is imposed.¹²  The Divine Law has therefore on another occasion purposely stated, The owner of the ox shall be quit, to indicate exemption [in all cases]. R. Adda b. Ahabah demurred to this, saying: Does then the matter of civil liability¹³  depend upon the non-occurrence of mischief to the woman? Does this matter not depend upon intention [of the defendant]?¹⁴  — R. Adda b. Ahabah therefore said: [You might have been inclined to think thus:] In the case of men where their purpose was to kill one another, even if mischief results to a woman, a civil liability¹³  will be imposed, whereas where they purposed to kill the woman herself [who was in fact killed], no civil liability¹³  would be imposed. In the case of oxen, however, even where their purpose was to kill the woman [who is indeed killed by them] a civil liability should be imposed for the embryo. [To prevent your reasoning thus] the Divine Law on another occasion purposely states, 'The owner of the ox shall be quit' to indicate exemption [altogether in the case of oxen]. And so also R. Haggai upon returning from the South, came [to the College] and brought the teaching [of a Baraitha] with him stating the case in accordance with the interpretation given by R. Adda b. Ahabab.

Another [Baraitha] teaches: 'The owner of the ox shall be quit' [implies], according to the statement of R. Akiba, quit from compensating for [the killing of] a slave.¹⁵

1. So also here where the better answer was given first and the inferior one later. The answer about intention is considered the better one.
2. Here also when R. Eliezer subsequently found a better answer he withdrew the answer which he had given first.
3. Ex. XXI, 22.
4. Why then a special implication to exempt Tam?
5. V. supra p. 68.
6. I.e., how would it be possible to have exemption in the case of Mu'ad and liability in the case of Tam?
7. Deut. XXV, 11.
8. But Mu'ad is liable.
9. I.e., death.
10. For the embryo.
11. As all civil claims would merge in the capital charge; cf. supra p. 113 and infra p. 427, n. 2.
12. For the civil liability of the owner should not be affected by the ox having to be put to death.
13. V. p. 238, n. 4.
14. For where he intended to kill another person and it was only by accident that the woman and her embryo were killed, there would, according to R. Adda b. Ahabah, be no capital charge but a civil liability; cf. for such a view infra p. 252 and Sanh. 79a.
15. V. supra p. 232.

But why should R. Akiba not argue against himself,¹  Since any actual liability in the case of the ox itself [being a Tam] is not paid except out of its body [why should not the owner say to the plaintiff] 'Bring it to the Court of Law and be reimbursed out of it'? — R. Samuel son of R. Isaac thereupon said: [This creates no difficulty; the case is one] where the owner of the ox slaughtered it before [the passing of the sentence].²  You might suggest in that case that payment should be made out of the flesh; we are therefore told that since the ox [as such] had been liable [to be stoned] to death, no payment could be made out of it even where it was slaughtered [before the passing of the sentence]. But if so, why [did not R. Akiba think of this reply to the objection he made] to R. Eliezer³  also, viz. that the owner of the ox slaughters it beforehand? — He could indeed have done this, but he thought that R. Eliezer³  also probably had another explanation better than this which he would tell him. But why did R. Eliezer [himself] not answer him that he referred to a case where the owner slaughtered the ox beforehand? — He could answer: It was only there where the ox aimed at killing a beast but [by accident] killed a man, in which case it is not liable [to be stoned] to death, and you might therefore have thought there was a liability [for kofer], that there was a need for Scripture to indicate that there is [in fact] no liability. But here where the ox had originally been liable [to be stoned] to death, no Scriptural indication should be needed [to exempt from liability] even where the ox has meanwhile been slaughtered.⁴  But should not the same argument be employed also regarding the exposition of R. Akiba?⁵  — R. Assi therefore said: The explanation of this matter was delivered to me from the mouth of a great man, to wit, R. Jose b. Hanina [who said]: You might be inclined to think that since R. Akiba said, 'Even in the case of Tam injuring Man the payment of the difference must be in full',⁶  the compensation for killing a slave should also be paid out of the best [of the general estate]. Divine Law therefore states, The owner of the ox shall be quit, [implying that this is not the case]. Said R. Zera to R. Assi: Did R. Akiba himself not qualify this liability? For it was taught:⁷  R. Akiba says, As it might be thought that this full payment⁸  has to be made out of the best [of the general estate], it is therefore further stated, According to this judgment shall it be done unto him,⁹  [to emphasize that] payment is to be made out of its body, but no payment is to be made out of any other source whatsoever? — Raba therefore [gave a different explanation] saying: The implication is still essential, for otherwise you might have thought that since¹⁰  I have to be more strict in the case of [killing] a slave than in the case of a freeman — for in the case of a freeman worth one sela' the payment¹¹  will be one sela', and of one worth thirty the payment will be thirty, whereas in the case of a slave even where he was worth one sela' the payment will have to be thirty¹⁰  — there should be compensation for [the killing of] a slave¹²  even out of the best of the estate,¹³  the Divine Law therefore states, 'The owner of the ox should be quit' [implying that this is not the case]. It was taught in accordance with [the explanation given by] Raba: 'The owner of the ox should be quit' [implies], according to the statement of R. Akiba, quit from compensation for [the killing of] a slave. But is this not strictly logical?¹⁴  For since there is liability [to pay compensation] for [the killing of] a slave and there is liability [to pay compensation] for [the killing of] a freeman;¹¹  just as where there is liability [to pay compensation] for [the killing of] a freeman a distinction has been made by you between Tam and Mu'ad,¹⁵  why then in the case where compensation has to be paid for [the killing of] a slave should you similarly not make a distinction between Tam and Mu'ad? This conclusion could moreover be arrived at by the a fortiori argument: If in the case of [killing] a freeman where the compensation¹¹  is for the whole of his value a distinction has been made by you between Tam and Mu'ad,¹⁵  then in the case of [killing] a slave where the compensation amounts only to thirty [sela'] should it not stand to reason that a distinction must be made by us between Tam and Mu'ad? — Not so, because (on the other hand] I am¹⁶  more strict in the case of [killing] a slave than in that of [killing] a freeman. For in the case of a freeman, where he was worth one sela' the compensation will be one sela',¹⁷  [where he was worth] thirty the compensation will be thirty, whereas in the case of a slave even where he was worth one sela' the compensation has to be thirty.¹⁶  This might have inclined us to think that [even in the case of Tam] there should be liability. It was therefore [further stated], The owner of the ox shall be quit, implying quit from compensation for [the killing of] a slave.

Our Rabbis taught: [It is written,] But it hath killed a man or a woman.¹⁸  R. Akiba says: What does this clause come to teach us? If that there is liability for the goring to death of a woman as of a man, has it not already been stated, if an ox gore a man or a woman?¹⁹  It must therefore have intended to put the woman on the same footing as the man: just as in the case of a man the compensation¹⁷  will go to his heirs, so also in the case of a woman the compensation will go to her heirs.²⁰  Did R. Akiba thereby mean [to put forward the view] that the husband was not entitled to inherit her? But has it not been taught: 'And he shall inherit her;²¹  this shows that the husband is entitled to inherit his wife. This is the view of R. Akiba'?²²  — Resh Lakish therefore said: R. Akiba²³  stated this²⁴  only with reference to kofer which, since it has not to be paid save after [the] death [of the victim], is regarded as property in anticipation,²⁵  and a husband is not entitled to inherit property in anticipation as he does property in actual possession.²⁶  But why [should kofer not be paid except after death]?²⁷  — Scripture says: But it hath killed a man or a woman; the ox shall be stoned, and its owner also shall be put to death. If there be laid on him a ransom.²⁸  But did R. Akiba not hold that damages [for injury also are not inherited by the husband]? Has it not been taught:²⁹  If one hurt a woman so that her embryo departed from her, compensation for Depreciation and for Pain should be given to the woman, compensation for the value of the embryo to the husband.³⁰  If the husband is not [alive], his due should be given to his heirs, and if the woman is not [alive at the time of payment] her due should be given to her heirs. [Hence] if the woman was a slave that had been emancipated³¹

1. Exactly as he argued against R. Eliezer, supra p. 236.
2. In which case the flesh could legitimately be used as food; cf. infra p. 255.
3. Supra p. 236.
4. This was the reason why R. Eliezer answered as he did, and not as suggested here that the ox was slaughtered before the sentence had been passed on it.
5. And if so, the original problem will recur: Why should R. Akiba not argue against himself as he did against R. Eliezer, supra p. 236.
6. Supra p. 179.
7. Cf. supra p. 180.
8. In the case of Tam injuring a human being.
9. Ex. XXI, 31.
10. In the case of Mu'ad.
11. I.e. kofer.
12. In the case of Tam.
13. There can thus no more arise the question, 'Since any actual liability in the case of the ox itself (being Tam) is not paid except out of its body, (why should not the owner say to the plaintiff) "Bring it to the Court and be reimbursed out of it"?' Cf. supra p. 236.
14. Wherefore then the special inference from the verse?
15. That in the case of Mu'ad, kofer is paid, but not in the case of Tam.
16. In the case of Mu'ad.
17. V. p. 241, n. 3.
18. Ex. XXI, 29.
19. Ibid. 28.
20. Not to her husband.
21. Num. XXVII, 11.
22. B.B. 111b.
23. [So MS.M., v. Rashi.]
24. That the husband does not inherit the compensation due to the woman.
25. As at the last moment of her life the liability for kofer was neither a chose in possession nor even a chose in action
26. Cf. B. B. 113a and 125b.
27. Why not say that as soon as the blow was ascertained to have been fatal the payment of kofer should be enforced?
28. Implying that the payment of money as kofer is, like the killing of the ox, not enforced before the victim has actually died.
29. Infra p. 280.
30. V. Ex. XXI, 22.
31. And the husband was of the same category.