Babylonian Talmud: Tractate Baba Kamma

Folio 39a

[No exception was made in this case] so that the sinner¹  should not profit thereby. But let him pay the amount of the fine to the poor?²  — R. Mari said: It would [in that case have remained] a pecuniary obligation without definite claimants³  [and would thus never have been discharged].⁴

MISHNAH. IF AN OX OF AN OWNER WITH UNIMPAIRED FACULTIES GORES AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR,⁵  THE OWNER IS LIABLE. WHERE, HOWEVER, AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR HAS GORED AN OX OF AN OWNER WHOSE FACULTIES ARE UNIMPAIRED, THERE IS NO LIABILITY.⁶  IF AN OX OF A DEAF-MUTE AN IDIOT OR A MINOR⁷  HAS GORED, THE COURT OF LAW APPOINT A GUARDIAN, IN WHOSE PRESENCE WITNESSES WILL BE ABLE TO TESTIFY [THAT THE OX HAS GORED SO THAT IT WILL EVENTUALLY BE DECLARED MU'AD]. IF THE DEAF-MUTE RECOVERS HIS HEARING [OR SPEECH], OR IF THE IDIOT BECOMES SANE, OR IF THE MINOR COMES OF AGE, THE OX PREVIOUSLY DECLARED MU'AD WILL RETURN TO THE STATE OF TAM: THESE ARE THE WORDS OF R. MEIR. R. JOSE, HOWEVER, SAYS THAT THE OX WILL REMAIN IN STATUS QUO. IN THE CASE OF A STADIUM OX⁸  [KILLING A PERSON], THE DEATH PENALTY IS NOT IMPOSED [UPON THE OX], AS IT IS WRITTEN: IF AN OX GORE,⁹  EXCLUDING CASES WHERE IT IS GOADED TO GORE.

GEMARA. Is not the text in contradiction with itself? [In the first clause] you state, IF AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR GORES AN OX BELONGING TO ONE WHOSE FACULTIES ARE UNIMPAIRED THERE IS NO LIABILITY, implying that a guardian is not appointed in the case of Tam to collect [the payment of half-damages] out of its body.¹⁰  But read the following clause: IF AN OX OF A DEAF-MUTE, AN IDIOT OR A MINOR HAS GORED, THE COURT OF LAW APPOINT A GUARDIAN IN WHOSE PRESENCE WITNESSES WILL BE ABLE TO TESTIFY [SO THAT IT WILL EVENTUALLY BE DECLARED MU'AD]. Now, does this not prove that a guardian is appointed in the case of Tam to collect [the payment of half-damages] out of its body? — Raba replied [that the text of the concluding clause] should be understood thus: If the oxen are presumed to be gorers, then a guardian is appointed and witnesses will give evidence for the purpose of having the cattle declared Mu'ad, so that should another goring take place,¹¹  the payment would have to come from the best [of the general estate].¹²

From the best of whose estate [would the payment have to come]? — R. Johanan said: From the best [of the estate] of the orphans;¹³  R. Jose b. Hanina said: From the best [of the estate] of the guardian. But did R. Johanan really say so? [Has it not been stated that] R. Judah said in the name of R. Assi:¹⁴  The estate of the orphans¹³  must not be distrained upon unless where usury is consuming it, and R.. Johanan said: [Unless there is a liability] either for a bond bearing interest or to a woman for her kethubah,¹⁵  [so as to save from further payment] on account of [her] maintenance?¹⁶  — You must therefore reverse names [to read as follows]: R. Johanan said: From the best [of the estate] of the guardian, whereas R. Jose b. Hanina said: From the best [of the estate] of the orphans. Raba, however, objected, saying: Because there is a contradiction between R. Johanan in one place and R. Johanan in another place, are you to ascribe to R. Jose b. Hanina an erroneous view?¹⁷  Was not R. Jose b. Hanina a judge, able to penetrate to the innermost intention of the Law? — We must therefore not reverse the names, [and the contradiction between the two views of R. Johanan¹⁸  can be reconciled by the consideration that] a case of damage is altogether different.¹⁹  R. Johanan stated that the payment must be made out of the best [of the estate] of the orphans, because if you were to say that it is to be out of the best [of the estate] of the guardians

1. The seducer.
2. So that the sinner should not benefit, but why pay the money to the Cuthean if R. Meir was inclined to impose a disability upon Cutheans?
3. Any poor man claiming the money could be put off by the plea that he (the seducer) wished to give it to another poor man.
4. If the Cuthean would not have been entitled to claim it.
5. Usually up to the age of thirteen. These three form a category for themselves as they are not subject to the obligations of either civil or criminal law.
6. In the case of Tam: v. the discussion in Gemara.
7. By evidence having been delivered in the presence of the appointed guardian.
8. [ [G], the arena used for wild beast hunts and gladiatorial contests, v. Krauss, op. cit. III, 119.]
9. Ex. XXI, 28.
10. Cf.supra p. 73.
11. But no payment will be made for damage done while the ox was Tam.
12. V. p. 219, n. 6.
13. Who were minors.
14. 'Ar. 22a.
15. I.e., marriage settlement; v. Glos.
16. For as long as the widow does not collect her kethubah, she receives her maintenance from the property of the orphans, v. Keth. XI, 1.
17. [Raba regarded it as an adopted ruling not to distrain upon the estate of orphans. V. Asheri, a.l.]
18. I.e., here and in 'Ar. 22a.
19. Presumably on account of public safety and public interest it is more expedient not to postpone payment until the orphans come of age.

people would certainly refrain from accepting this office and would do nothing at all [in the matter]. R. Jose b. Hanina, however, said that the payment should be made out of the best [of the estate] of the guardians. and that these should be reimbursed out of the estate of the orphans when the latter will have come of age.

Whether [or not] guardians could be appointed in the case of Tam to collect payment out of its body, is a point at issue between the following Tannaim: In the case of an ox whose owner has become a deaf-mute, or whose owner became insane or whose owner has gone abroad,¹  Judah b. Nakosa said on behalf of Symmachus that it would have to remain Tam²  until witnesses could give evidence in the presence of the owner. The Sages, however, say that a guardian should be appointed in whose presence the evidence may be given. Should the deaf-mute recover his faculty [of hearing or speech], or the idiot become sane, or the minor come of age, or the owner return from abroad, Judah b. Nakosa said on behalf of Symmachus that the ox would revert to the state of Tam³  until evidence is given in the presence of the owner, whereas R. Jose said that it would retain its status quo. Now, we have here to ask, what is the meaning of 'it would have to remain Tam'⁴  in the dictum of Symmachus? It could hardly mean that the ox cannot become Mu'ad at all, for since it is stated in the concluding clause, 'The ox would revert to the state of Tam', it is implied that it had formerly been Mu'ad. What then is the meaning of, 'it would have to remain Tam'?⁴  We must say, 'It would remain Tam [complete],'⁵  that is, we do nothing to diminish its value, which would, of course, show that [Symmachus holds] no guardian is appointed in the case of Tam to collect payment out of its body. 'The Sages, however, say that a guardian should be appointed in whose presence evidence may be given', from which it follows that [they hold] a guardian may be appointed in the case of Tam to collect payment out of its body.

And what is the point at issue in the concluding clause? The point at issue there is [whether or not a change of] control⁶  should cause a change [in the state of the ox].⁷  Symmachus maintains that [a change in] control causes a change [in the state of the ox],⁷  whereas R. Jose holds that [a change of] control causes no change [in the state of the ox].

Our Rabbis taught: Where an ox of a deaf-mute, an idiot or a minor has gored, R. Jacob pays half-damages. What has R. Jacob to do with it?⁸  — But read, 'R. Jacob orders the payment of half-damages.' With what case are we here dealing? If with a Tam, is this not obvious?⁹  For does not any other owner similarly pay half-damages? If [on the other] hand we are dealing with a Mu'ad, then where proper precautions were taken to control it, why should any payment be made at all?¹⁰  And if no precautions were taken to control it, why should not damages be paid in full? — Raba thereupon said: We are in fact dealing with a Mu'ad, and with a case where precautions of some inferior sort¹¹  were taken to control the ox, but not really adequate precautions. R. Jacob concurred with R. Judah who said¹²  that [even in the case of Mu'ad, half of the payment, i.e.] the part due from Tam remains unaffected [being still subject to the law of Tam]; he also concurred with R. Judah in holding¹³  that to procure exemption from the law of Mu'ad even inadequate precautions are sufficient;¹⁴  and he furthermore followed the view of the Rabbis¹⁵  who said that a guardian could be appointed in the case of Tam to collect payment out of its body.¹⁶  Said Abaye to him:¹⁷  Do they¹⁸  really not differ? Has it not been taught: 'Where the ox of a deaf-mute, an idiot or a minor has gored, R. Judah maintains that there is liability to pay and R. Jacob says that the payment will be only for half the damage'? — Rabbah b. 'Ulla thereupon said: The 'liability to pay' mentioned by R. Judah is here defined [as to its amount] by R. Jacob.¹⁹  But according to Abaye who maintained that they did differ, what was the point at issue between them? — He may tell you that they were dealing with a case of Mu'ad that had not been guarded at all, in regard to which R. Jacob would concur with R. Judah on one point but differ from him on another point. He would concur with him on one point, in that R. Judah lays down that [even with Mu'ad half of the payment, i.e.] the part due from Tam remains unaffected; but he would differ from him on another point, in that R. Judah lays down that a guardian should be appointed in the case of Tam to collect payment out of its body, whereas R. Jacob is of the opinion that a guardian could not be appointed and there could therefore be no payment except the half [which should be subject to the law] of Mu'ad.²⁰  Said R. Aha b. Abaye to Rabina: All would be very well according to Abaye who maintained that they differ;²¹  he is quite right [in explaining the earlier statement of R. Jacob²²  to apply only to Mu'ad].²³  But according to Raba who maintained that they do not differ, why should the former statement [of R. Jacob] be referred only to Mu'ad? Why not also to Tam,

1. Lit., 'the Province of the Sea'.
2. [H]
3. V. the discussion which follows.
4. In the commencing clause.
5. Reading [H] instead of [H].
6. Such as from guardian to owner.
7. I.e., from the state of Mu'ad to that of Tam.
8. That he personally should have to pay compensation.
9. Why then state this at all?
10. Since so far as the owner was concerned the damage occurred by accident.
11. For the various degrees of precaution cf. infra 55b.
12. Supra p. 84 and infra p. 260.
13. Infra p. 259.
14. But this would not be sufficient in the case of Tam. Where therefore such a precaution has been taken to control a Mu'ad, the half-damages for which the Tam is liable would be enforced, but not the additional damages for which the Mu'ad is liable.
15. The Sages, whose view was explained supra.
16. Hence R. Jacob's ruling for the payment of half-damages.
17. I.e., to Raba.
18. R. Jacob and R. Judah.
19. Who thus makes precise what R. Judah left unspecified.
20. Which is paid out of the general estate.
21. I.e., that R. Jacob maintained that no guardian could be appointed in the case of Tam, and R. Judah that he could.
22. Where the view of R. Judah was not mentioned at all.
23. Where no precaution to control the ox has been taken.