Bava Kamma 15a — the Talmud in English

The Gemara answers:

The final clause was necessary for it.

What the Mishna wrote, “on the basis of witnesses,” was needed only to teach us the continuation, “on the basis of witnesses who are

free men and members of the covenant,”

and the Mishna came to teach us by saying

“free men”

that testimony is accepted to impose liability for damages only on the basis of free-men witnesses,

to exclude slaves

of Canaanite origin. And by saying

“members of the covenant,”

it intended

to exclude gentiles.

For slaves and gentiles are disqualified from testimony.

And the Gemara explains why the Mishna needed to exclude both of them:

And it was necessary,

the Mishna needed to teach us both the disqualification of slaves and the disqualification of gentiles.

For if it had taught us

if it had taught only the law of

a slave,

that he is disqualified from testimony concerning damages, we would have said that only a slave is disqualified

because he has no lineage,

for his children do not trace their lineage through him.

But a gentile, who has lineage,

for his children trace their lineage through him,

I would say, not so.

We would have said that he is not disqualified from testimony. Therefore, the Mishna teaches us that even gentiles are disqualified from testimony.

And if it had taught us

and if the Mishna had taught only concerning

a gentile

that he is disqualified from testimony, we would have said that only a gentile is disqualified

because he does not belong

is not obligated

to mitzvot. But a slave

of Canaanite origin,

who does belong to mitzvot,

for he is obligated in the mitzvot in which women are obligated,

I would say, not so,

we would have said that he is not disqualified from testimony.

It was necessary;

for this reason the Mishna needed to exclude both of them.

We learned in the Mishna:

And women are included in the damages,

for if they cause damage, they too are obligated to pay.

The Gemara asks:

From where are these words?

From where do we learn that women too are included in the damages? And the Gemara brings three beraitot teaching that the laws of a woman are equal to the laws of a man, while the middle beraita teaches this concerning monetary laws:

1.

Rav Yehuda said in the name of Rav, and likewise the school of Rabbi Yishmael taught:

And so too we learned in a beraita taught in the בית מדרש of Rabbi Yishmael: The verse says, in connection with one who swears falsely concerning a monetary denial and is obligated to bring a guilt-offering: “

Whether a man or a woman commit any of the sins of man

… and that person bears guilt.” The Torah included all the sins of man and wrote “whether a man or a woman,” and thereby

the verse made a woman equal to a man with regard to all punishments in the Torah.

For a woman is liable to punishment like a man, and from here we learn that a woman too is warned concerning even prohibitions whose punishment is lashes or excision.

2.

The school of Rabbi Elazar taught:

In a beraita taught in the בית מדרש of Rabbi Elazar we learned: It is stated at the beginning of the portion of Mishpatim, which deals with monetary laws:

“And these are the ordinances that you shall place before them.”

“Before them”—that is, before the entire Jewish people, men and women—

the verse made a woman equal to a man with regard to all laws

of monetary law

in the Torah,

including the laws of damages, in which a woman is liable like a man.

3.

The school of Chizkiya and Rabbi Yose the Galilean taught:

In a beraita taught in the בית מדרש of Chizkiya and Rabbi Yose the Galilean we learned:

The verse says

concerning the liability of ransom for a forewarned ox [which killed a person three times]:

“And it kills a man or a woman,”

the ox shall be stoned and its owner shall also be put to death;

the verse equated

here

a woman with a man with regard to all deaths in the Torah,

that is, the verse equated the law of a woman who was killed with the law of a man who was killed with regard to all types of death in the Torah. That is, whether the woman was killed by an ox that killed the woman, in which case its owner is liable for ransom just as he is liable for ransom if his ox killed a man, or whether a person killed the woman, in which case he is liable to death for her, just as he is liable for killing a man. The Gemara explains why it was necessary to equate a woman with a man in three places:

And they are necessary,

we need all three expositions, and it is impossible to learn the others from one of them.

For if it had taught us the first one,

if the Torah had taught only the first teaching, that the verse equated a woman with a man with regard to punishments, we would have said:

There,

there, where it is speaking about one who swears falsely concerning a monetary denial and must bring a sacrifice for atonement,

the Merciful One had pity on her,

the Torah had pity on her and equated her with a man, so that she would be liable for a sacrifice

so that she might have atonement,

so that she would have atonement.

But

with regard to

laws

[monetary laws], we would have said: Only

a man, who

is

engaged in business dealings,

whose way it is to engage in business dealings,

yes,

indeed, these laws were stated with regard to him. But

a woman,

whose way it is not to engage in business dealings,

no,

these laws do not apply to her.

And if it had taught us monetary laws,

and if the Torah had taught only the second teaching, concerning monetary laws that apply to women as well, we would have said that only in this regard did the Torah equate a woman with a man,

so that she might have a livelihood,

so that she would have a livelihood. That is, if the laws had not applied to her, her life would not have been a life, because everyone would rob her, while she would rob others, and everyone would distance themselves from her.

But

with regard to

atonement,

that if one swore falsely concerning a monetary denial he must bring a sacrifice for atonement, and likewise with regard to the other punishments, we would have said that specifically

a man who is a person of mitzvot

a man who is obligated in all the mitzvot,

yes,

the Torah made him liable to bring atonement. But

a woman, who is not a person of mitzvot,

who is not obligated in all the mitzvot as men are,

no,

the Torah did not make her liable to bring atonement.

And if it had taught us these two,

and if the Torah had taught only concerning atonement and concerning monetary laws, we would have said that only in these did the Torah equate a woman with a man:

here, because of atonement,

here, because a woman should have atonement,

and here, because of livelihood,

and here, because it is necessary for her life.

But with regard to execution,

with regard to an ox that kills a woman, for which its owner pays ransom, we would have said:

A man is a person of mitzvot,

specifically for killing a man who is obligated in all the mitzvot, and by killing him the fulfillment of mitzvot has been nullified; the Torah said that

he pays

the owner of the ox

ransom

for killing him. But for killing

a woman

who is not obligated in mitzvot as a man is,

no,

the owner of the ox is not obligated to pay the ransom.

And if it had taught us ransom,

if the Torah had taught only that there is liability for killing a woman as for killing a man, we would have said:

Because there is loss of a soul,

since there is here loss of a soul, the Torah was stringent. But

these two

but with regard to the other two laws,

where there is no loss of a soul,

where there is no loss of a soul,

I would say, not so,

I would have said that women were not equated with men.

It was necessary;

therefore the Torah needed to teach us that a woman is like a man with regard to all three of these laws.

We learned in the Mishna:

The injured party and the one causing the damage share in the payments,

the injured party and the one causing the damage both participate in the payment [as will be explained below].

And the Gemara brings a dispute between amoraim, for our Mishna apparently supports the view of one of them:

It was stated: Half-damage

the half-damage paid by an innocuous ox that gored.

Rav Pappa said: A monetary obligation.

This payment is a monetary obligation and is not a fine; even if he admits on his own, he becomes liable.

Rav Huna son of Rav Yehoshua said: A fine.

The obligation of half-damage paid by an innocuous ox is a fine, and if he admits on his own, he is exempt, in accordance with the law of one who admits to a fine.

And the Gemara explains the basis of their dispute:

Rav Pappa said: A monetary obligation;

the obligation of the innocuous ox for half-damage is a monetary obligation.

He holds: Ordinary oxen do not stand under an assumption of being guarded,

for even innocuous oxen are not considered guarded with regard to horn damages, and there is concern that they may cause damage; therefore their owners must guard them,

and

therefore, if he did not guard them and they gored,

by strict law he should have to pay the whole amount,

for according to the strict rule of law the owner of the ox should have paid full damages, since he did not guard his ox, which was liable to gore,

but the Merciful One had pity on him

and the Torah had pity on him and reduced his liability to half-damage,

for his ox had not yet been designated,

for the ox had not yet been forewarned three times. However,

Rav Huna son of Rav Yehoshua said: A fine;

the obligation of the innocuous ox for half-damage is a fine.

He holds: Ordinary oxen stand under an assumption of being guarded,

innocuous oxen are considered guarded with regard to horn damages, and the owner of the ox need not fear that his ox may cause damage.

And

therefore, if an innocuous ox gored,

by strict law he should not have to pay anything,

the strict rule of law is that the owner of the ox should be exempt, because he did not need to fear that his innocuous ox would cause damage, and he was not required to guard it,

but the Merciful One fined him,

and the Torah fined him so that he would pay half-damage,

so that he would guard his ox,

so that he would add guarding to its ordinary guarding.

Now the Gemara attempts to prove from our Mishna that half-damage is a monetary obligation:

We learned:

in the Mishna:

The injured party and the one causing the damage

both participate

in the payments.

Granted, according to the one who says that half-damage is a monetary obligation,

the words of the Mishna are understandable according to Rav Pappa, who holds that half-damage is a monetary obligation, and according to the basic law, since he did not guard it, he should have paid full damages;

this is why it is possible for the injured party to participate in the payments,

for in this way the injured party is considered to “participate” in the payments, by losing the payment of the other half-damage that he should have received, while the one causing the damage participates by paying half-damage.

But according to the one who says that half-damage is a fine,

according to Rav Huna, who holds that half-damage is a fine, in what does the injured party participate in the payments? For

now, he takes something that is not his,

for even the half-damage that he receives is “not his”—that is, it was not due to him according to the basic law, but is a fine with which the Torah fined the one causing the damage. If so, can it be said that

he is included in the payments!?

Is it possible to say that he “participates” in the payments?!

And if so, from our Mishna, which says that the injured party participates in the payments, there is proof that half-damage is a monetary obligation.

And the Gemara rejects the proof:

It was not necessary

for the Mishna’s statement that the injured party participates in payment of the damage to mean that he loses the other half of the damage;

rather,

the intention of the Mishna is

for the depreciation of the carcass,

for even with half-damage as a fine, which the Torah granted him, there are instances in which he suffers a loss and does not receive the entire half-damage: if the value of the carcass depreciates from the time of death until the time of payment, that entire loss belongs only to the injured party.

For in calculating payment of the damage, we assess how much the ox was worth before the damage and how much the carcass was worth at the time of death, and the one causing the damage pays the injured party half of that amount. But if the value of the carcass depreciates after the time of death and until the time of payment, that entire loss is borne by the injured party, and this is his participation in the payment.

But the Gemara raises an objection to the rejection:

Can it be said that the Mishna came to teach us the law of

the depreciation of the carcass?!

But it already

taught it at the beginning,

for we already learned this in the preceding Mishna, which was precise in saying, “I became liable for the payments of its damage,” and it was explained in a beraita [above 6b]:

“payments of damage”

that the Mishna said—this

teaches that the owners deal with the carcass.

For the carcass remains in the domain of the injured party, and it is incumbent upon him to deal with its sale. Therefore, the damager does not pay for what its value depreciated after the time of death. If so, how can it be said that our Mishna comes to state the law that was already learned in the preceding Mishna?

And the Gemara answers: Indeed, both our Mishna and the preceding Mishna convey the same halakha, but

one is about a tame ox, and one is about a forewarned ox.

One Mishna comes to teach that this is the law in the case of a tame ox, and the other Mishna comes to teach that even in the case of a forewarned ox the law is so.

And it is necessary,

and there is a need for both Mishnayot, to teach this both for a tame ox and for a forewarned ox.

For if it had informed us of a tame ox,

if the Mishna had informed us of this law only with regard to a tame ox, we would have said that specifically in the case of a tame ox the Torah was lenient, that the damager should not pay the depreciation of the carcass,

because it has not yet been designated,

since this ox had not yet become known as a goring ox, and its owners had not been warned that they must guard it. But

a forewarned ox,

which had already become known as a goring ox, and whose owners had been warned that they must guard it,

you might say: no,

I would say that the Torah was not lenient toward the damager, and he must pay the depreciation of the carcass.

And if it had informed us of a forewarned ox,

if the Mishna had informed us of this law only with regard to a forewarned ox, we would have said that specifically in the case of a forewarned ox the Torah was lenient, that the damager should not pay the depreciation of the carcass,

because he pays the entire amount,

since the damager pays full damage, and this loss is sufficient for him,

but a tame ox,

toward which the Torah was lenient, so that its owner pays only half-damage,

you might say: no,

I would say that the Torah was additionally not lenient toward him by exempting him from paying the depreciation of the carcass.

It is necessary,

therefore both Mishnayot were needed, to inform us that this is the law both in the case of a tame ox and in the case of a forewarned ox.

And the Gemara attempts to bring another proof from the Mishna below:

Come and hear

a proof from the Mishna [below 16b]:

For we learned:

What

is the distinction

between

an ox

that is tame

that gored

and a forewarned ox

that gored?

For

the owner of

the tame ox pays

the injured party only

half-damage,

and only

from its body,

of the damaging ox.

And

the owner of the

forewarned ox pays

the injured party

full damage,

and pays

from the superior property,

from the best of his assets.

And the Gemara infers:

And if it is so,

if it is true that the half-damage paid by a tame ox is on account of a fine, then

let it also teach this,

let the Mishna also state this distinction, that

a tame ox,

since its liability is on account of a fine,

does not pay on the basis of

his own

admission,

for one who admits to a fine is exempt, whereas

a forewarned ox pays on the basis of its owner’s own admission.

And since the Mishna does not mention this distinction, it follows that even in the case of a tame ox the liability is monetary, and he becomes liable on the basis of his own admission.

But the Gemara rejects the proof, for it is possible to say:

The tanna mentioned some distinctions and omitted others.

The tanna mentions some of the distinctions that exist between a tame ox and a forewarned ox, and some of them he omitted and did not mention; therefore there is no proof from the fact that the tanna did not mention this distinction.

But the Gemara is astonished at this rejection:

What did he omit, that he omitted this?

What else did the tanna omit, so that it may be said that he also omitted this distinction?

The Gemara answers:

He omitted half of the ransom,

the tanna omitted the distinction with regard to payment of ransom, for a forewarned ox that killed a person—its owners pay ransom, whereas when a tame ox killed a person, its owners do not pay even half a ransom. And since he omitted this distinction, it is possible to say that he also omitted the distinction with regard to “pays on the basis of his own admission.”

However, if so, this is difficult according to the one who says, “half-damage is monetary compensation.” For according to his view, there is no distinction with regard to “pays on the basis of his own admission,” and there remains only the distinction with regard to ransom, and so it is difficult: “What did he omit, that he omitted this?”

And the Gemara comes to resolve this:

If it is because of half a ransom,

if you wish to prove that he certainly omitted another distinction because the tanna omitted the distinction between a tame ox and a forewarned ox with regard to ransom, this is not a proof, for

it is not an omission.

For the fact that the tanna did not mention the distinction with regard to ransom is not considered an omission, since it is possible to say:

Whose opinion is this,

our Mishna? It is according to the opinion of

Rabbi Yosei the Galilean, who says

a tame ox pays half a ransom.

Rabbi Yosei the Galilean holds that when a tame ox killed a person, its owners pay half a ransom. Therefore, this distinction—that a tame ox pays half a ransom and a forewarned ox pays a full ransom—is already included in the distinction stated by the Mishna, that a tame ox pays half-damage and a forewarned ox pays full damage, and this is not considered an omission.

And the Gemara attempts to bring another proof from a Mishna:

Come and hear

a proof from the Mishna in tractate Ketubot [41a]: