Bava Kamma 15b (טו:) — the Talmud in English

One who says:

“My ox killed so-and-so. Or

who says: My ox killed

so-and-so’s ox!” —

he must pay on the basis of

his

own admission, pay the ransom to the heirs of the slain person, and pay compensation for the damage to the owner of the slain ox.

he pays the ransom to the heirs of the person who was killed, and compensation for the damage to the owner of the ox that was killed.

Does this not mean that the ox was innocuous, and that the Mishna is speaking of an innocuous ox? And if so, it is proven that the half-damage paid by an innocuous ox is a monetary obligation, and that he pays on the basis of his own admission.

The Gemara rejects this:

No.

The Mishna is not speaking of an innocuous ox, but rather

of a forewarned ox,

which pays full damages and whose obligation is monetary.

The Gemara raises an objection to this rejection:

But

with regard to

an innocuous ox, what

is the law?

Is it likewise the case that he does not pay on the basis of his own admission,

because his obligation is a fine?

If so, instead of teaching in the latter clause,

if that is the case, when the Mishna concludes by presenting a case involving a fine, let it teach the case of one who says:

“My ox killed so-and-so’s slave,”

since the obligation to pay thirty shekels is a fine,

he does not pay on the basis of his own admission; let it distinguish and teach it in its own case.

The Mishna could have distinguished within the law of an ox that caused damage itself:

“In what case is this statement said,”

that one who says, “My ox killed so-and-so’s ox,” is liable? Only

with

an

forewarned

ox. But

with

an

innocuous

ox, which pays half-damage, it is a fine, and

he does not pay on the basis of his own admission.

And if the Mishna did not state this distinction, but instead brought a proof from the case of a slave, this indicates that both an innocuous ox and a forewarned ox pay on the basis of their owner’s admission.

The Gemara answers:

The entire Mishna is speaking of a forewarned ox.

The Mishna is discussing a forewarned ox and teaching the distinctions that apply to a forewarned ox. Therefore, it did not distinguish between an innocuous ox and a forewarned ox; rather, it sought to distinguish within the category of a forewarned ox itself between a monetary obligation and a fine.

The Gemara brings an additional proof from the latter clause of the previous Mishna:

Come and hear: This is the principle: Anyone who pays more than the amount of the damage he caused does not pay on the basis of his own admission.

Any payment obligation that the Torah imposes in an amount greater than the damage caused, is a fine, and he does not pay on the basis of his own admission.

Does this not mean

that the Mishna intends to teach us:

This

means that if he pays

less than the amount of the damage he caused, he pays

on the basis of his own admission. We therefore have proof that half-damage is a monetary obligation.

The Gemara rejects this:

No.

The Mishna did not come to teach this. Rather,

this

means that if the payment obligation is

equal to the amount of the damage, he pays

on the basis of his own admission, since this is not a fine.

The Gemara raises an objection to this rejection:

But

one who pays

less

than the amount of the damage he caused,

what

is his law?

Is it likewise the case that he does not pay,

and that his law is that he does not pay on the basis of his own admission?

If so, instead of teaching

the Mishna’s formulation,

“This is the principle: Anyone who pays more than the amount of the damage he caused does not pay on the basis of his own admission,” let it teach:

It would have been appropriate for the Mishna to say:

“This is the principle: Anyone who does not pay the amount of the damage he caused

does not pay on the basis of his own admission,”

which implies both less and more.

For this wording would have implied that both when he pays less and when he pays more, the payment is a fine and he does not pay on the basis of his own admission. Since the Mishna did not use this wording, it indicates that specifically one who pays more than the amount of the damage caused is subject to a fine. But one who pays less than the amount of the damage caused has a monetary obligation. This is therefore proof for the one who says: “Half-damage is a monetary obligation.”

The Gemara agrees with the objection:

Teyuvta!

Indeed, this Mishna is a refutation and rejection of the view that half-damage is a fine.

But as a matter of practical halakha, the Gemara rules:

And the halakha is: Half-damage is a fine.

The halakha is that the obligation to pay half-damage is in the category of a fine.

The Gemara expresses astonishment:

A refutation and a halakha?!

This view was refuted by the Mishna, so how is it possible that the halakha follows it?!

The Gemara responds:

Yes.

Indeed, this is the halakha despite the objection from the Mishna, because

what is the reason it is a refutation?

Why was this view refuted? It is

because it did not teach

that the Mishna should have said: “Anyone who does not pay

the amount of the damage he caused

does not pay on the basis of his own admission.” However, this is not a complete refutation, since one can say that the tanna did not state the principle in that wording because

it was not unequivocal for him,

as he could not state it absolutely,

since there is

an obligation of

half-damage

for

pebbles

[an animal that walked and kicked up pebbles with its feet, and they broke vessels],

which we know by tradition to be a monetary obligation.

We learned by means of the halakha transmitted to Moses from Sinai that this is a monetary obligation. For damage that occurred in this manner, the damager pays on the basis of his own admission, and

because

of this he did not teach

the formulation: “Anyone who does not pay the amount of the damage he caused.”

The Gemara explains the laws that follow from the fact that half-damage is a fine:

And now, since you have said that half-damage is a fine,

now that you have said that half-damage caused by goring is a fine and not a monetary obligation,

this dog that ate lambs

a dog that strangled live lambs and ate them,

and this cat that ate a chicken,

a cat that seized a chicken, the damage

is unusual,

and therefore it is categorized as goring, for which he pays half-damage, which is a fine,

and we do not collect it in Babylonia,

and a court does not collect this payment in Babylonia, because cases involving fines may be adjudicated only by judges ordained through semikha, and there are no such judges there.

And this applies

that what we said is unusual and is categorized as goring, namely

with large animals,

when the dog and cat seized large lambs or chickens.

But with small ones,

if they seized small animals,

it is their normal manner,

this is their usual behavior and is categorized as eating, for which full damages are paid; and this payment is also collected in Babylonia.

And

although half-damage is not collected in Babylonia,

if the injured party seized

property belonging to the damager,

we do not take it from him,

we do not remove it from his possession.

And if

he did not seize property, but only

said

to the court:

“Set a time for me to go to the Land of Israel,”

set a time for the damager to accompany him to the Land of Israel to litigate before ordained judges,

we set a time for him,

we set a time for him and compel the damager to go with him to litigate.

And if he does not go,

if the damager does not go with him,

we excommunicate him,

we place him under a ban.

The Gemara adds:

And in either case,

whether the injured party—the owner of the lambs or the chicken—wishes to go to the Land of Israel to litigate, or whether he did not demand this,

we excommunicate him,

we place the owner of the dog or cat that caused the damage under a ban

until he removes the source of the damage,

until he kills them. And this law—that one may not leave a harmful animal in his possession—is derived

from

the law of

Rabbi Natan.

As it is taught

in a beraita:

Rabbi Natan says: From where is it derived that a person may not raise a vicious dog in his house, and may not place a defective ladder in his house? The verse states

[Deuteronomy 22:8]: “

And

you shall not place blood in your house.”

And therefore he is placed under a ban until he kills them.

Mishna:

This Mishna adds laws concerning damages, innocuous animals, and forewarned animals:

There are five innocuous animals,

five types of damage that are not an animal’s usual behavior, and if they cause damage, their owners pay only half-damage [as will be stated below in the next Mishna].

And there are five forewarned animals,

whose nature is to cause damage, and when they cause damage they pay full damages:

The Mishna details the five categories of innocuous behavior:

An animal is not forewarned

from the outset: a.

to gore

with its horn. b.

Nor to push with its body,

to push with its body. c.

Nor to bite,

to bite with its teeth. d.

Nor to lie down

on vessels and damage them. e.

Nor to kick

with its feet.

All these are derivatives of goring, since it is not an animal’s usual behavior to perform them.

The Mishna details the five forewarned categories:

a.

“The tooth” is forewarned to eat what is fit for it;

an animal is forewarned from the outset to eat fruits and vegetables.

b.

“The foot” is forewarned;

an animal is forewarned from the outset

to break

vessels

while walking.

c.

And a forewarned ox,

an ox after it has gored, butted, bitten, lain down, or kicked three times.

d.

And an ox that causes damage in the injured party’s domain.

An ox that entered the injured party’s courtyard and caused damage by goring, butting, or the like—even if it is an innocuous ox, its law is that of a forewarned ox, which pays full damages.

e.

And a person,

who is always forewarned.

The Mishna adds animals that are forewarned from the outset:

The wolf, the lion, the bear, the leopard, the bardelas, and the snake—these are forewarned

from the outset, and even if they cause damage by biting or the like, they pay full damages.

Rabbi Elazar says: When they are domesticated,

when a person raises them in his house and they have become accustomed to living among human beings,

they are not forewarned

from the outset.

But a snake is always forewarned,

even when it is domesticated.

Gemara:

The Gemara discusses how our Mishna understands the law of keren in the courtyard of the injured party:

Since it teaches,

from the fact that we learned in our Mishna:

“The tooth is forewarned to eat”

and is liable for full damages,

by inference

you learn

that we are dealing with the courtyard of the injured party,

as our Mishna is speaking of a case in which the damage was caused inside the courtyard of the injured party, and not in the public domain. For the tooth is liable only in the courtyard of the injured party, whereas it is exempt in the public domain.

And it teaches,

and we learned at the beginning of the Mishna:

“An animal is not forewarned to pay”

for goring, pushing, biting, crouching, or kicking

the entire

damage. But [rather,

it pays half-damages.

And if we infer that our Mishna is speaking of a case in which the damage was caused in the courtyard of the injured party, it emerges that even in the courtyard of the injured party, keren in the case of a tamed animal entails payment of only half-damages.

Whose opinion is this?

The Mishna that holds this way—according to whose opinion is it stated? It must be according to the opinion of

the Rabbis, who say: “Keren in the courtyard of the injured party entails payment

of half-damages.”

The Gemara raises an objection: If so,

say the latter clause,

interpret [learn from] the latter clause of the Mishna:

“An ox that is forewarned, and an ox that causes damage”

that is, keren

“in the domain of the injured party, and a person,”

are forewarned from the outset and pay full damages. It is thus explicit that keren in the courtyard of the injured party entails payment of full damages from the outset. Accordingly,

we arrive,

the Mishna follows here

the

opinion of

Rabbi Tarfon, who says: “Keren in the courtyard of the injured party entails payment of full damages.”

It follows that the Mishna contradicts itself, for in

the first clause

it follows the opinion of

the Rabbis, whereas the latter clause

follows that of

Rabbi Tarfon?

The Gemara answers:

Yes,

it is indeed possible to establish our Mishna in this manner,

for Shmuel said to Rav Yehuda: “Sharp one”

[you are sharp and astute],

“leave the Mishna,”

leave the Mishna—that is, do not trouble yourself to reconcile it according to the opinion of a single tanna—

“and come after me,”

come after me and state the matter as I do: that

the first clause

follows

the Rabbis, whereas the latter clause

follows

Rabbi Tarfon.