Bava Kamma 15a (טו.) — the Talmud in English

The Gemara answers:

The latter clause was necessary for him.

The phrase that the Mishna wrote, “on the basis of witnesses,” was necessary only to teach us the continuation: “on the basis of witnesses who are

free and members of the covenant.”

By stating

“free”

the Mishna teaches that testimony establishing liability for damages is accepted only from free witnesses,

to exclude slaves

Canaanite slaves. And by stating

“members of the covenant,”

it intended

to exclude gentiles.

For slaves and gentiles are disqualified from giving testimony.

The Gemara explains why it was necessary for the Mishna to exclude both of them:

And it is necessary,

the Mishna had to teach both the disqualification of slaves and the disqualification of gentiles.

For had it taught us

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,

as his children are not considered to be descended from him.

But a gentile, who does have lineage,

as his children are considered to be descended from him,

I would say not.

We would have said that he is not disqualified from testimony. Therefore, the Mishna teaches us that a gentile too is disqualified from testimony.

And had it taught us

that the Mishna teaches only regarding a

gentile

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

because he has no connection

[he is not obligated]

to the mitzvot. But a slave

Canaanite,

who does have a connection to the mitzvot,

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

I would say not;

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

It is necessary;

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

We learned in the Mishna:

And women are included in the liability for damages,

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

The Gemara asks:

From where are these matters derived?

From where do we learn that women too are included in liability for damages? The Gemara cites three beraitot teaching that the laws applying to a woman are equal to those applying to a man; the middle beraita teaches this with regard to monetary laws:

1.

Rav Yehuda said that Rav said, and likewise the tanna of the school of Rabbi Yishmael taught:

And likewise we learned in a beraita taught in the school of Rabbi Yishmael: The verse states [Numbers 5:6], concerning one who swears falsely while denying a monetary obligation and is required to bring a guilt-offering: “

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

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

equating a woman with a man with regard to all punishments in the Torah.

A woman is liable to punishment just as a man is, and we learn from here that a woman is likewise warned against all negative commandments that carry the punishment of lashes or karet.

2.

The school of Rabbi Elazar taught:

In a beraita taught in the school 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 laws that you shall place before them.”

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

the verse equated a woman with a man with regard to all monetary laws

of monetary law

in the Torah,

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

3.

The schools of Ḥizkiya and Rabbi Yosei the Galilean taught:

In a beraita taught in the schools of Ḥizkiya and Rabbi Yosei the Galilean we learned:

The verse states

[Exodus 21:29], with regard to the liability of ransom for a forewarned ox [that had 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 forms of execution 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. This means that whether the woman was killed by an ox that killed her—in which case its owner must pay ransom just as he must pay ransom if his ox killed a man—or whether a person killed the woman, in which case he is liable to execution 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 all three are necessary;

we need all three teachings, and it is impossible to derive the others from any one of them.

For had it taught us only the first,

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

There,

where it is discussing one who swears falsely while denying a monetary obligation and must bring an offering for atonement,

the Merciful One took pity on her,

the Torah took pity on her by equating her with a man so that she would be liable to bring an offering

so that she would have atonement,

so that she would attain atonement.

But

with regard to

monetary laws

[monetary law], we would have said: Only

a man, who

is

capable of commercial dealings,

as it is his way to engage in commerce,

yes,

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

a woman,

whose way it is not to engage in commerce,

no,

these laws do not apply to her.

And had it taught us the monetary laws,

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

so that she would have a means of sustenance,

so that she would be able to live. That is, if these laws did not apply to her, her life would not be viable, since everyone would rob her, she would rob others, and everyone would distance themselves from her.

But

with regard to

atonement,

that if she swore falsely while denying a monetary obligation she must bring an offering for atonement, and likewise with regard to other punishments, we would have said that specifically

a man who is subject to 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 subject to all the mitzvot,

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

no,

the Torah did not make her liable to bring atonement.

And had it taught us these two,

if the Torah had taught only with regard to atonement and monetary laws, we would have said that the Torah equated a woman with a man only in these matters:

here because of atonement,

here because the woman should have atonement,

and here because of her means of sustenance,

and here because it is necessary for her livelihood.

But with regard to capital liability,

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

A man is subject to mitzvot;

the Torah specifically requires payment for killing a man who is obligated in all the mitzvot, since by killing him the ox deprived him of the opportunity to perform mitzvot; therefore, it says that the owner

shall pay

the owner of the ox

ransom

for killing him. But for killing

a woman

who is not obligated in mitzvot like a man,

no,

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

And had it taught us ransom,

if the Torah had taught only that one is liable for killing a woman just as for killing a man, we would have said

because there is loss of life;

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

these two

with regard to the other two laws,

where there is no loss of life,

where no life is lost,

I would say not;

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

It is necessary;

therefore, the Torah had 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 who caused the damage share in the payments,

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

The Gemara cites a dispute between amoraim, such that our Mishna appears to support the view of one of them:

It was stated: Half-damages

the half-damage paid by an innocuous ox that gored

Rav Pappa said: It is monetary liability.

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

Rav Huna, son of Rav Yehoshua, said: It is a penalty.

The obligation to pay half-damages for an innocuous ox is a penalty, and if he admits on his own, he is exempt, in accordance with the law governing one who admits liability for a penalty.

The Gemara explains the basis of their dispute:

Rav Pappa said: It is monetary liability;

the obligation of an innocuous ox to pay half-damages is a monetary obligation.

He holds that ordinary oxen are not presumed to be guarded,

for even innocuous oxen are not considered guarded with regard to damage caused by goring, and there is concern that they may cause damage, so their owners are required to guard them.

And

therefore, if he failed to guard them and they gored,

by law he should have to pay the entire amount,

according to the strict law, the owner of the ox should have to pay the full damage, since he failed to guard his ox, which was liable to gore.

But the Merciful One took pity on him

and the Torah reduced his liability to half-damages,

because his ox had not yet been designated as a goring ox,

since it had not yet been forewarned by goring three times. However,

Rav Huna, son of Rav Yehoshua, said: It is a penalty;

the obligation of an innocuous ox to pay half-damages is a penalty.

He holds that ordinary oxen are presumed to be guarded,

innocuous oxen are considered guarded with regard to damage caused by goring, and the owner of the ox need not be concerned that his ox may cause damage.

And

therefore, if an innocuous ox gored,

by law he should not have to pay at all,

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

But the Merciful One penalized him,

and the Torah imposed upon him the penalty of paying half-damages,

so that he would guard his ox,

so that he would add an additional level of guarding to its ordinary level of protection.

The Gemara now attempts to prove from our Mishna that half-damages are a monetary obligation:

We learned

in the Mishna:

The injured party and the one who caused the damage

both participate

in the payments.

Granted, according to the one who says that half-damages are monetary liability,

the words of the Mishna are understandable according to Rav Pappa, who holds that half-damages are a monetary obligation, and according to the fundamental law, since he failed to guard the ox, he should have had to pay the full damage.

This explains how the injured party participates in the payments:

he is considered to participate in the payments by forfeiting the half-damage that he should properly have received, while the one who caused the damage participates by paying half-damages.

But according to the one who says that half-damages are a penalty,

according to Rav Huna, who holds that half-damages are a penalty, how does the injured party participate in the payments? After all,

now, he takes something that is not his,

even the half-damage that he receives is “not his”; that is, he was not entitled to it according to the fundamental law, but it is a penalty that the Torah imposed upon the one who caused 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?!

If so, from our Mishna, which states that the injured party participates in the payments, there is proof that half-damages are a monetary obligation.

The Gemara rejects the proof:

It was necessary only

for the Mishna to state that the injured party participates in payment of the damage; it was not necessary for the Mishna to mean that he forfeits half the damage,

but

the intention of the Mishna is

for the depreciation of the carcass,

for even with regard to half-damages that the Torah awarded him as a penalty, there are cases in which he suffers a loss and does not receive the entire half-damage: If the value of the carcass diminished between the time of death and the time of payment, that entire loss is borne by the injured party alone.

For when assessing payment of the damage, we determine how much the ox was worth before the damage and how much the carcass was worth at the time of death, and the one who caused the damage pays the injured party half of that amount. But if the value of the carcass diminished after the time of death and before the time of payment, that entire loss is borne by the injured party, and this is his participation in the payment.

However, the Gemara raises an objection to this rejection:

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

the depreciation of the carcass?! Well,

it was already

taught in the first clause,

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

“payment of damages”

stated by the Mishna

teaches that the owners attend to the carcass.

The carcass remains in the possession of the injured party, and he is responsible for arranging its sale. Therefore, the one who caused the damage does not pay for the decrease in its value after the time of death. If so, how can it be said that our Mishna comes to state a law that was already learned in the preceding Mishna?

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

one concerns a tam, and the other a mu'ad.

One Mishna comes to teach that this is the law in the case of a tam ox, and the other Mishna comes to teach that the same law applies even in the case of a mu'ad ox.

And it is necessary,

as both Mishnayot are needed to teach this with regard to both a tam and a mu'ad.

For if it had taught us only the case of a tam,

if the Mishna had stated this law only with regard to a tam ox, we would have said that the Torah was lenient specifically with regard to a tam, in that the one who caused the damage does not pay for the depreciation of the carcass

because it has not yet been designated,

since this ox was not yet known as a goring ox, and its owners had not been warned to guard it. But

with regard to a mu'ad,

which was already known as a goring ox and whose owners had been warned to guard it,

say no;

I would say that the Torah was not lenient with the one who caused the damage, and he must pay for the depreciation of the carcass.

And if it had taught us only the case of a mu'ad,

if the Mishna had stated this law only with regard to a mu'ad ox, we would have said that the Torah was lenient specifically with regard to a mu'ad ox, exempting the one who caused the damage from paying for the depreciation of the carcass

because he pays the full amount,

since the one who caused the damage pays the full damages, and this loss is sufficient for him.

But with regard to a tam,

with regard to which the Torah was lenient with the one who caused the damage, as he pays only half the damages,

say no;

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

It is necessary,

and therefore both Mishnayot were needed, to teach us that this is the law with regard to both a tam and a mu'ad.

The Gemara attempts to bring an additional proof from the Mishna below:

Ta shma

a proof from the Mishna [below 16b]:

As we learned:

What

is the distinction

between

an ox

that is a tam

that gored

and one that is a mu'ad

that gored?

That

the owner of the

tam pays

the injured party only

half the damages,

and only

from its body,

from the body of the ox that caused the damage.

And

the owner of the

mu'ad pays

the injured party

the full damages,

and pays

from the superior property,

from the best of his assets.

The Gemara infers:

And if it is so,

if it is correct that the half-damages paid by a tam are considered a penalty, then

it should also teach this,

the Mishna should also state this distinction:

a tam,

since his liability is a penalty,

does not pay on the basis of

his

own admission,

because one who admits to a penalty is exempt, whereas

a mu'ad pays on the basis of his own admission.

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

However, the Gemara rejects the proof, for it can be said:

The tanna stated some distinctions and omitted others.

The tanna mentions some of the distinctions between a tam and a mu'ad, while he omitted and did not mention some others. Therefore, the fact that the tanna did not mention this distinction is not proof.

But the Gemara is surprised at this rejection:

What other distinction did he omit, such that he omitted this one?

What else did the tanna omit, such that we should say that he also omitted this distinction?

The Gemara answers:

He omitted half a kofer,

the tanna omitted the distinction concerning payment of kofer, for when a mu'ad kills a person, its owners pay kofer, whereas when a tam kills a person, its owners do not pay even half a kofer. Since he omitted this distinction, it is possible to say that he also omitted the distinction concerning “paying on the basis of his own admission.”

However, if so, this presents a difficulty according to the one who says, “half-damages are monetary liability.” For according to him, there is no distinction concerning “paying on the basis of his own admission,” and thus only the distinction concerning kofer remains. The difficulty is: “What other distinction did he omit, such that he omitted this one?”

And the Gemara comes to resolve this:

If the issue is half a kofer,

if you wish to prove that the tanna certainly omitted another distinction because he omitted the distinction between a tam and a mu'ad with regard to kofer, this is not a proof, for

it is not an omission.

The fact that the tanna did not mention the distinction concerning kofer is not considered an omission, since it can be said:

Whose opinion is this,

our Mishna follows whose view? It follows the view of

Rabbi Yosei HaGelili, who says

that a tam pays half a kofer.

Rabbi Yosei HaGelili holds that when a tam ox kills a person, its owners pay half a kofer. Therefore, this distinction—that a tam pays half a kofer and a mu'ad pays a full kofer—is already included in the distinction stated by the Mishna, that a tam pays half the damages and a mu'ad pays the full damages, and this is not considered an omission.

And the Gemara attempts to bring an additional proof from a Mishna:

Ta shma

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